Judge: Mark H. Epstein, Case: 19SMCV01960, Date: 2022-12-05 Tentative Ruling

Case Number: 19SMCV01960    Hearing Date: December 5, 2022    Dept: R

This case is here for an FSC.  At the prior FSC the court determined that the matter was ready for trial and that the FSC materials had been filed.  The court also ruled on the parties’ MILs.  The matter was continued to this date to attempt to avoid forcing the parties to trail in light of the fact that the court was engaged in trial at the time.

Sadly, the court is still engaged in trial (albeit a different one).  The court is likely to be in trial on December 12, 2022 as well, although the current trial will likely conclude that week.  There is another matter that is already been trailing from week to week.  However, in light of the fact that the parties to the instant case have agreed to waive jury, the court will consider hearing this case first.  That depends, however, on the estimated length.  The current estimate is 3 days, although the court is unclear whether the parties took into account the court’s abbreviated schedule.  (The court is only able to provide about 4.5 hours of net trial time rather than the 6 hours that can be provided in a normal trial court with no morning calendar.)  Even so, that would be only four days at the 4.5 hours/day pace.  However, the witness list suggests that there will be about 32 hours of testimony, which is seven days plus openings, which puts it closer to 8 or 9 days.  If this is going to be a two week endeavor, the court will have to determine whether the other case will take priority over this one.  The other case is running on the five year statute, so it is likely to have the priority.  That said, the court understands that witness lists are documents of preclusion; that is, the failure to name a witness could bar a party from calling the witness, but there is no penalty for putting a witness on the list that ultimately is not called.  As a result, the normal (and proper) practice is to be overinclusive on the witness list so as to avoid an adverse result, which in turn means that the time estimates are long.

The court will inquire as to the actual length that the parties estimate.  The court will ask for an “all in” number and it will ask for the number in hours (not days).  If the number is low enough, the court will give this case the priority, but at the same time, the court plans to hold the parties to their estimate and to divide the time evenly.  That means that if a party runs out of time, that party will no longer be able to examine, cross examine, or close.  If the number is not low enough, then the court is likely to give the parties the choice of moving the trial date again or trailing.  If trailing, the court is willing (if the parties are willing) to hear the case on non-consecutive days such that if there is a day that the other case will be dark, this case can have a trial day.  The court will not do that, however, absent the parties’ consent given the high degree of stress and inconvenience such a rule imposes on the parties, counsel, and their witnesses.

The court will also inquire whether the parties have agreed to retain a court reporter for the proceedings.  Doing so is more than strongly encouraged.  (See the court’s trial rules regarding meeting and conferring on settled statements.)