The Good Wife

Bump Bounce and Roll: Trying to start a trial.


On The Good Wife or Drop Dead Diva, the attorneys get the cases in the morning.  Try them in the afternoon.

In the real world the case is filed and then has to wait a year and a half for a trial date.

If it survives for that long, there is a fifty-fifty chance  the defense will ask the judge for (and get) a continuance.  Delay is a friend of the defense: Deny. Defend.  Delay.

So now the case has been waiting for a couple years.  The judge says – no more continuances.

As the trial date approaches, the office starts buzzing.  Call all witnesses.  Coordinate schedules.  Make sure everything will fit together as perfectly as possible.  Because judges don’t like even ten minutes of down time.

Just a few days away and we get the call from the bailiff.  Sorry.  Judge has a conflict.  Your case is getting brokered.  You are on standby.


Frustrated.  But not surprised.

Office buzzes again.  Calls all witnesses.  They are unhappy.  Some will now be unable to attend.  They had already scheduled time off with their bosses.  Or they had travel plans.  Or they are doctors and have 50 patients booked solid every day.

The witnesses all want to know what the next date will be.  We can’t tell them.  The court hasn’t told us yet.

We wait until we get the call.  Case will start just one day late.  Just. This still plays havoc with everyone’s schedules.

The defense lawyer says they won’t agree to one day late.  Their witness isn’t available.  They bring a motion to continue the case again.


Deal is worked out.  Case is continued for a month.

All the witnesses are notified.  All the schedules are reworked.  Plans made.

And we all cross our fingers and hope that this time it will actually go out on time.

Photo:  John, Anne and I making the best of the trial date continuance by eating lunch at the space needle. 

And on the tenth day, the Court declared a mistrial…


Tomorrow we were supposed to be giving closing arguments.

Instead, today the Court sent everyone home.

Can’t write about what exactly happened.  This case is going to be tried again.

But can tell you what it’s like to have a Judge say they’re granting a defense motion for mistrial.

This is the third time I’ve had the experience.

The first time , it was because I told the jury in opening statement, that we were in court because the defendant filed a jury demand.  The defense lawyer and the judge were both former criminal prosecutors.  The defense lawyer argued my comments violated his client’s due process rights because he had a constitutional right to a jury.  The judge agreed, over my sputtering protests that this was a civil case.  This is what I learned from that experience:  even if a judge is completely wrong, it doesn’t matter.  Once they announce a mistrial and send the jury home, there’s nothing you can say or do to change the fact that the trial will need to start all up again.

The second time, it was because I was able to excuse so many jurors for cause.  There were not enough left to empanel a jury.  That was more interesting than anything.  Sure we were inconvenienced, but the actual taking of testimony hadn’t happened yet.

This third time stands apart  because it was done virtually at the close of the case, after the defense had rested.

Here is what happens to a plaintiff lawyer when a judge grants a defense motion for mistrial:

  • Body tenses, bracing in case the judge actually agrees with the defense.
  • Initially hope the words out of the judge’s mouth are philosophical meanderings that will eventually come round to the concept of denying the motion.
  • Eventually lose that hope.
  • Hear the order without blinking, grimacing, or giving any cue of being upset.
  • Become inwardly upset.
  • Think about the client having to go through this all over again.
  • Think about how the jurors are going to feel when they get the phone call not to return.
  • Try to understand the court’s ruling, then realize there’s nothing to understand because it is over and done.
  • Think of all the reasons why the judge shouldn’t do this.
  • Look at the defense lawyers who are not making eye contact.
  • Consider the defense lawyers getting paid for trying a case that they are going to try all over again (and bill for all over again).   Am not saying defense lawyers who get paid by the hour have an incentive to ask for a mistrial at the end of a case.  Am not saying that…
  • Unplug computer, start rolling up cords, put projector in case, all while the judge is still talking about some type of logistical issue.  Have temporarily lost the ability to hear what the judge is saying.  Good thing co-counsel is paying attention.
  • Hear the Judge say they will give the jurors our contact info so they can talk to us if we wish.  We wish.
  • Email office announcing the mistrial and ask for Mike to come pick up the big screen.
  • Begin setting up appointments on other cases  to fill tomorrow now that will not be in trial.
  • Temporarily ignore the questions from law firm asking what happened.
  • Listen to tummy rumble due to spending the lunch hour researching legal grounds for mistrial in the law library
  • Decide that being upset won’t help anything.
  • Analyze feelings and decide more  resigned and irritated than actually mad.
  • Channel irritation, pick up Nala at doggie day care and get a salad at Whole Foods.
  • Think about eating salad, but instead  invite co-counsel over to the house to unwind.
  • Which is nice.
  • After she leaves for airport, eat salad which is delicious.
  • Go for run with Nala that includes a lot of wind, the sun going down, and the slightest amount of drizzle at the very end.
  • Make popcorn and watch yesterday’s episode of The Good Wife on Amazon.  It’s not the same without Will.
  • Watch an episode of Drop Dead Diva. Decide it’s also past its prime.
  • Begin to write blog
  • See email come in from one of the jurors.  Asking what happened.

Photo:  The Court’s cow collection on the shelf behind us.

Preparing for Deposition: Oh. And by the way, he’s a white supremacist too…


John, Anne and I are a Toulouse Petite.  Having our staffing meeting while eating breakfast.

A:  Do we need to do anything else to take X’s deposition.  We have the court order.  The Assistant Attorney General says he doesn’t think X will agree to say anything.

K3:   We could issue a subpoena and have him served.  But he’s already in prison.

A:  Can’t we just give it to the AAG.

K3:  No, we didn’t sue the criminal, we’re suing the State.  So they aren’t representing X.  I guess we could send a notice of deposition to the Warden to give to  X.

A:  Okay.  Well, you know he’s in the big prison right.  The one where really bad people go.

K3:  That’s okay, Ed (cocounsel) is coming too.

A:  Right.  Okay then I’ll get it set up.  We’ll see if he’ll talk to you.

K3:  Well, he may.

A:  The AAG said they will arrange for extra security.  Oh, by the way.  Did you know that he’s a white supremacist.

K3:  What.

A:  Jody mentioned it to me the other day.

K3:  Oh that’s just great.  He’s going to really like Ed (African American) and I (Hapa).

A:  I wasn’t sure if you knew.

K3:  Fantastic.  Well, I better just go do this on my own.

John:  I can go with you.

K3:  The Good Wife goes to jail all the time to talk to felons.  I can handle it.

John:  That’s tv.

K3:  Trust me.  Won’t be a problem.

A:  If you don’t pull your hair back straight and leave it fluffy he might think you’re Italian or Mediterranean.  It’s only when your hair is more flat that you look real Asian.

K3:  Super.  I’ll do my best to look as Italian as possible.  We need to get him to talk.

Photo:  Anne showing up with her sunglasses.  on a completely overcast slightly dreary morning.

P.S.  Notice my initials.  Yes.  My mother decided that it would be a good idea for me to “own” having 3 Ks as my initials.  How appropriate.



Check out a recent interview by Super Lawyers about my blog. Yes, I'm a lawyer. But I'm also a human being. I have a doggie named Nala, three daughters, eat brown sugar cinnamon pop tarts for breakfast, and wear jeans as often as possible when not in court.
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