A Day in the Life-Part 2
In part one I discussed the non-court activities a lawyer like me does in an average day. Today I’m going to talk about the flipside, reasons I may find myself in court.
The classic “court” experience. I was asked recently how often I go to trial. The answer was, of course, “it depends.” The average I suppose is 1-2 times a month, but really it can vary. Suffice to say, trial is a legitimate reason to be in court. But trial is really only one of a number of reasons I can be in court.
A hearing is a court appearance where one or both sides in a matter are “heard” by a judge. These are not trials because there’s no factual issue being litigating, e.g. whether someone is guilty. Rather they exist to facilitate the process to get to that factual inquiry.
The term hearing is always modified by an adjective, e.g. a “pre-trial hearing.” In other words, there’s no such thing as a naked hearing. There’s a reason everyone is getting together in court, even if that reason is that it’s a scheduled time to discuss the issues in the case.
I’ve discussed the arraignment process previously. Briefly, it’s the hearing where a defendants enters a plea of guilty or not guilty. It’s a critical stage of the proceedings and everyone is entitled to an attorney at arraignment.
This is the very broad category of preliminary hearings to discuss issues with the case. Informally, the attorneys will use the face-to-face time to negotiate. Formally, the parties may go on the record to file or discuss motions, discuss bail, or discuss discovery issues, or anything else that may have arisen in the course of the case.
The finale of this hearing is determining where the case is going next. If the parties reached a resolution, either a plea or a settlement or dismissal, that can be put on the record to resolve the case. If the parties want another pre-trial hearing, they will move for a continuance. This maintains the status quo and brings everyone back in 30 days or so. Finally if the parties are ready to go to the trial phase, there will be a trial set, where the parties will pick trial dates and discuss final logistics.
There are often a couple continuances in a case. Depending on the stakes and the individual circumstances, things can drag on for quite a while. Judges are not keen on cases going on too long, as they want their calendars cleared for the inevitable incoming cases. At some point a court does not have to grant a continuance. But realistically if a party has a good reason for requesting one, and they’re not being abused, the court will continue things for a while.
This is the final pre-trial hearing before the trial. This is the opportunity for the parties to say they’re ready to go to trial, or if not, why not. These are usually quicker affairs than regular pre-trials because presumably all the logistics have been taken care of in past hearings. Still, things can happen. A witness may suddenly take ill, or a critical document has not been turned over. The court has discretion to delay the trial or any number of other remedies to resolve the issue.
Alas, sometimes a person loses at trial and they must be sentenced. Sometimes the sentencing happens right away, and sometimes it’s set over for a few weeks. In either event, this is the hearing where the court levies a punishment.
Sentencing is about spin. If we presume a crime has been committed, why does the defendant deserve a lighter or harsher sentence? This requires effort by the attorney to explore the defendant’s life, and the ability to present the facts favorably. The prosecution will do the same in reverse, but they’ll usually focus on egregiousness of the charge (if it exists) and past criminal history (if it exists).
A hearing to quash (not squash) is set up when a defendant or witness misses a court date and a warrant is issued for their arrest. The idea is that when the person is locked up, they won’t miss the next hearing.
Clearly no one wants to be locked up, so hearings are calendared to quash the warrant. Technically these can happen before or after the person is arrested, but they’re easier to win if the warrant is proactively addressed before arrest.
The primary question at these hearings is why the court date was missed, have other warrants been issued in the past, and to some extent, how long did it take for the person to be brought into court?
For example, if it’s someone’s first warrant and they addressed it the day after the missed hearing, and told the court they wrote the date wrong on the calendar, the warrant would likely be quashed. Some courts issue a fee for quashing but the point is, the person would not be in jail.
On the other side, a person who missed a court date because they were out robbing a bank, and were on the lam for a couple years on the matter, they would more trouble being released. I’d give it the old college try, but that would certainly be a tough one.
In general, people usually get one missed court date without drawing up too much trouble. Warrants are a pain, so they should be taken care of promptly.
I discus probation reviews in more detail in this post. Unfortunately these are extremely unpredictable. Whether a judge admonishes a person, versus throwing the book at them, for say missing a treatment date, is impossible to know with certainty.
Reviews go similarly to the other “bad act” hearings: Are their mitigating circumstances or does the defendant have a history of this kind of behavior? Again the good lawyer will do some digging to present some positive information to the court.
This is one of my favorites. Motions are a catchall for a wide variety of remedies, including ordering parties to produce documents, preventing you from producing document, suppressing evidence, outright winning the case, and so on. They can be a very big deal.
The procedure for motions varies wildly by court but the essence is that one side (the moving side) files a document that outlines their legal position (why the court should grant their relief). The other side files a document that says why the moving party’s request is stupid. There may be another round of paper, then at the hearing the judge makes the determination.
The argument portion is a fun dance of using legal and logical rhetoric to present your points in a positive light. It’s an interactive process, where the judge questions the lawyers on a specific points of law or fact. A lot of benefit goes to a well-prepared attorney, as well as one who can correctly read and address the judge’s concerns.
This is a non-exhaustive list. Some esoteric events occur too, but the above are the most likely reasons an attorney has to be in court.
Court is a comfortable place for most criminal and trial attorneys. A lot happens there, although as I wrote last week, a lot happens behind the scenes too. An attorney uses the tools at their disposal to get the best results for their clients.