Twice this week, when talking with clients, or prospective clients, I’ve been told they are waiting on the judge to do something. The language they used was “I’m at the mercy of the court.” Their lamentations are painful reminders of the nature of our work. Often the idea of “mercy of the court” is mentioned, in life and in entertainment, in the context of “throwing oneself on the mercy of the court” when it comes to criminal sentencing. This post is NOT about that. It is about the Court’s (a.k.a. the judge’s) ability to impact the timetable of litigation. Setting trial dates, and ruling on minor, or major, motions, are at the discretion of the judge and there is often no timetable they have to follow to make a decision, or set a date. One of the people I spoke with is awaiting a decision based on a hearing held 3 or 4 months ago on what was supposed to be a “quick” motion cycle; he expected the ruling in less than 30 days. The other client is having trouble nailing down a trial date. This is, in part, due to COVID-19, but it is also a matter of the judge needing to balance other cases. In both of these cases, and many others, we are also at the mercy of the Court – even though the Court will never know that. Our work is down stream from that of the attorneys. If they are “tied up” by the Court, we are as well. We’re downstream, or said another way, down the food chain. And, others are down the food chain from us. The facility (hotels) we will use, the jury recruiter, the mock jurors, and more, are hung up by these delays. Worst of all for us, business wise, is that, with every delay, our cash flow is held up. We’re hoping the dam will break and all these things will flow soon, but for now, we’re at the mercy of the Court!
“I’m at the mercy of…” usually means one is powerless to protect oneself from someone or something. When attorneys tell David and me they are at the mercy of the Court, this expression doesn’t have the same ominous meaning that it does in other contexts. Often, attorneys mention being at the Court’s mercy as a way to buy some time with Magnus, for example, as a means to avoid paying our retainer until the last minute. Sometimes, however, we at Magnus, particularly I, get caught up in a judge’s merciless decision to schedule a trial at exactly the wrong moment. An example from many years ago will illustrate this point. Magnus was working with a long time client from my hometown, Fort Myers, who had a federal case in Tampa. My research team and I flew from Fort Lauderdale to Tampa (those were the glory days when flying was easier than driving), where we conducted mock trials. At the time the mock trials were scheduled, the trial date was several months away, giving us ample time to complete our report, prepare videos of the mock jurors’ deliberations, etc. Late in the afternoon on the research day, our plans changed drastically when our client received a panicked call from someone in his office to advise him that the federal judge had just moved up the trial, and that it would begin at 9:00 a.m. the next day. Needless to say, the attorney and I also began to panic. Neither of us had any clothes or other necessities to stay overnight in Tampa, nor did we have time to go home to get what we needed in time to return. Luckily for both of us, we called our spouses and arranged for suits, etc. to be brought to us (the client’s wife drove from Fort Myers with his clothes and David took the last flight out of Fort Lauderdale that night with mine). Due to this, and several other “close calls” I have had over the years, when an attorney tells me he/she is at the mercy of the court, I completely understand!