I was privileged in September 2024 to preside over two trials at the DOAH Trial Academy in Tallahassee. This is a phenomenal opportunity for lawyers to hone existing skills and gain new perspectives. A vast quantity of imagination was poured into the hypothetical case by organizers, and successful competition requires a commensurate level of imagination by the attorneys. Collaboration and collegiality are also both critical and beneficial.
One of the unpredictable challenges in this hypothetical problem involved the case style of a former state employee versus a state agency. There is a tradition under the law in which the “petitioning” party can pursue relief against a “respondent.“ Thus, the petitioner must prove her/his/their/its case. That’s all well and good. However, at times, the law supplants this "normal" process with the provision of a presumption or burden “shift.” That shift was present in this hypothetical, placing the burden proof on the state agency.
For those apt to remind me this blog is about workers' compensation, that law is impacted by various similar presumptions. I have watched various first responders represented by counsel who ignored this shifting of the burden and did not insist on the employer/carrier (the respondent) proceeding first. When the rules put the burden on the other side, a lawyer who fails to recognize that and persistently reiterate that is often making a grave tactical error.
The shock was palpable when I initially called the case and called upon the petitioner for an opening statement. The significantly-populated attorney team representing the petitioner seemed shell-shocked and confused. One team member had the presence of mind to voice “objection.“ She did so from the audience, not from the council table. And she seemed uncertain how to proceed with her concerns, beyond uttering "objection."
Shocked from the initial confusion, a teammate was soon inspired to leap to the objector's aid and voiced a cogent, coherent explanation of why the respondents should proceed first. The lawyer explained the respondent has the burden to the statute, and thus the inverse order. Why the initial confusion over jumping in with an objection? At the end of the day, judges don’t know everything about a case (or sometimes even anything), and make mistakes. If you don’t voice what you want, raise an objection, you may not get it.
The next shock came when the respondents opened by calling the petitioner himself to testify. The petitioner had listed himself as a witness, but the respondent had not. The petitioner claimed surprise, and we had a logical agent and able argument regarding whether the witness could be called.
Notice is a fundamental element of due process. Cases are pre-tried for the purpose of identifying witnesses, documents, and other evidence to avoid. The goal of trials is the resolution of disputes on their merits, not by surprise, not by trick, not by crook.
The petitioner, having listed himself as a witness, was in a somewhat difficult position to claim “surprise” at being called by the opposition. The defense team made a valiant effort to resist, based on the foundation of the traditional confines of “scope.” By calling the witness, the respondent essentially took control of the scope of the examination. That is what the petitioner feared and therefore resisted.
Under the rules, the cross-examination of a witness is limited to the “scope “of the direct testimony that was provided. If the witness testifies on direct as to “A, “and “B,” the other party will not be allowed to cross that witness regarding “C" or “D.“ The party calling witness exercises, significant control regarding the scope of examination. The petitioner wanted to only be called to the stand by his own lawyers, and thereby have his team decide what would be discussed.
Had the petitioner prevailed in this objection, then his testimony would’ve been limited significantly by this “scope" argument, and the issues specifically raised by his legal team. By calling the opposing in their case, the respondent sought to themselves this examination scope.” That is always going to be a tough argument when the witness claiming to be surprised by some inquiry is a party to the case.
The petitioner nonetheless made a valiant legal objection regarding this “surprise.” The team noted the potential for changing the "scope,” and even identified Florida’s seminal case on point. Anyone who will try lawsuits should read and understand the very brief opinion in King v. Binger Pest Control, 401 So. 2d 1310 (Fla. 1981). This analysis teaches that the question in such instances is whether prejudice "would accrue." The objecting petitioner argued instead that prejudice "could accrue." That is not the same thing.
There is an old adage "When life gives you lemons, make lemonade." The surprised attorney in this instance was essentially burdened with lemons and strove valiantly. Whether he had not read Binger recently, or whether he had misunderstood it, one will never know. But he raised the argument that this “surprise“ had the potential for significant prejudice. In other words, he did the best he could in that moment. He did not prevail.
I am certain that in some circumstances, one could make an argument of “actual prejudice“ regarding being called out of turn to testify. However, it is suggested, that such an argument might be very difficult. The witness at issue here was a party to the legal proceeding. He was ready and available in the venue and represented by counsel. He was intimately familiar with the proceedings, allegations, and likely the prior rulings already rendered. Demonstrating "actual" prejudice would be difficult.
However, any of those points might be very different for a witness who is not a party to the case. Furthermore, the issue might be entirely different for someone who is not named in any manner in the pre-trial stipulation (a complete surprise as compared to this more mundane timing surprise). Thus, it may be critical that the petitioner in this matter had listed himself to testify, and therefore seemingly was expecting to do so when he arrived at trial.
The critical points from this anecdotal example are reasonably simple. First, when trying lawsuits always be prepared for anything. Trials rarely go precisely as planned, and it is the surprises and your responses in that moment that will be critical.
Second, never hesitate to raise an objection regarding process or procedure. The worst case is that such an objection may be overruled. Nonetheless, the attorney must strive for an appropriate process, and if possible one that is advantageous. If the judge takes an unexpected direction, raise the objection and make your point. The maxim is that "you will miss every shot you do not take," Wayne Gretzky.
Third, great attorneys will keep a small toolbox of “just in case” at their fingertips. Back in the day, this was usually a legal pad long-dog eared from perennial storage in a briefcase. The pad was rarely removed and was perhaps more of a security blanket than anything else. But, it was there. Today, it could be a Word document, flash drive, or folder on a digital desktop.
The point is its contents. There, the careful lawyer keeps stored a handy reference to authorities like Binger. This allows counsel, a ready reference to an authority, which may provide the foundation to prevail on a procedure point. This cannot be encyclopedic if you hope for it to be effective (keep it short and remain familiar with it). However, there are a handful of such cases that are cited again and again by trial judges.
The trial was otherwise interesting in several regards. Future posts will address subjects that were suggested by these proceedings. In the end, there were lessons and reminders for all participants. And, if they learned nothing else, they learned judges can be unpredictable and the key is to remain attentive, responsive, and prepared. The trial counsel's job is to be ready, but more importantly to react to the challenges of surprise.
