Mind Open, Mouth Open!
Updated: Mar 4, 2020
I recently brought on a motion to litigate certain aspects of a case. At the beginning of the appearance, opposing counsel stood up and said, “I just want to define the parameters of this proceeding. My understanding is that counsel …” and she went on to state what she believed was the basis of my motion. She asked the court to limit me to the facts that I had put in my papers.
It was, in my opinion, good practice on her part – to limit me to issues I had raised even if the testimony brought up something I hadn’t raised. The judge agreed and defined the parameters as requested.
HOWEVER, whenever an adversary seeks to limit me, I am always aware of the possibility that he or she may be doing it to bind me even when they bring up something that I didn’t raise. So I was alert, during my adversary’s cross examination of the first witness, for any matters not related to the “parameters” that were set.
Sure enough, on cross examination, opposing counsel brought up an entirely new issue that I had not raised – one which displayed stronger parts of her case.
Was I bound by the court’s ruling that limited me to the issues I raised in my papers? Whatever the “legal” answer may be, an abstract point of law is not going to stop me from opening my mouth.
Some young attorneys expect that the judge will notice if opposing counsel overlooks or deliberately skirts a prior ruling, and so they sit there waiting for the judge to say something. Don’t make that mistake. The judge may notice or may not. The judge may be thinking of something else entirely. Or – the judge may be thinking, if you’re not objecting, then you must think it’s okay. It’s your proceeding, after all! You made the motion. You need to speak up. You are the one who must protect your client.
I stood up and opened my mouth. I stopped the proceeding to say that if she went into additional matters, then so would I. I refused to be bound by any pre-set parameters, if she was not bound as well. The fairness aspect was obvious even to the judge, and opposing counsel elected to retreat.
Moral of the story – do not agonize with yourself over what “the law” is in any situation where your adversary is taking unfair advantage. You don’t have time to research! Mind open, mouth open! If your mind says whoa, this isn’t fair, open your mouth.