From the Multnomah Lawyer: Tips from the Bench: Making Better Trial Time Estimates
“Ti-i-i-ime is on my side, yes it is.” -The Rolling Stones
While time is (surprisingly) still on Mick Jagger’s side, it is not always on the side of a trial lawyer, especially when giving the court an estimate of how long a trial will take. There is no question that making an accurate time estimate is difficult, but it often appears that lawyers are either unrealistically optimistic about their time estimates, or simply have not given the thought and attention that is needed to be accurate. When lawyers fail to accurately estimate how long trial will take, that creates difficulties for jurors, judges, witnesses, and their clients.
When a trial is assigned to a judge, the judge does not have an unlimited amount of time, or often even a single day, available beyond the days the parties requested. In many instances, the judge will already have a full docket on the days following the trial; thus, if the trial runs long, presiding court will have to scramble to move multiple judges’ schedules around to accommodate the last-minute change, or the trial will have to stop mid-stream for days until the judge is available again. Similarly, many jurors have commitments immediately following the trial, and if there is an 11th hour demand that they extend their service, that could either greatly inconvenience the jurors or even result in a mistrial if enough jurors are lost.
This is not to suggest that lawyers should wildly overestimate the expected time for trial, thinking that everyone will be happy when the trial takes less time than estimated.
Overestimating also can have negative impacts on the judge’s and jurors’ schedules as they may have had to decline or postpone other engagements thinking they would be in trial for a longer period of time. Rather, the goal is to be more intentional and thoughtful about the many factors that impact how long a trial will take (though when in doubt, it is better to overestimate than underestimate).
Following is a non-exhaustive list of items that lawyers don’t always take into account, or at least underestimate, when reporting to the court how long trial will take:
First, expect the unexpected. Almost every trial will have unexpected delays. By definition, you won’t be able to anticipate a particular unexpected event, but you should know they happen and build in a cushion for that.
Even if you can control every aspect of your own life – which you won’t always be able to do - you can’t control every aspect of the lives of all the other people involved in the case. A sampling of the many problems that can delay a trial includes inclement weather, traffic accidents, car problems, sick family members, long security lines, fire drills, and bloody noses.
Second, be realistic about how many hours you have each day with the jury. Trials generally run between 9 a.m.-12 p.m. and 1:30- 4:45 p.m., a total of 6.25 hours. But after factoring in morning and afternoon breaks, brief delays between witnesses, often not-so-brief delays when various legal or factual disputes arise, inevitable delays where at least one person crucial to the proceeding is late, and in criminal cases transport delays, realistically, the total amount of time in front of the jury is often well less than five hours.
Third, don’t forget pretrial motions and disputes over jury instructions and exhibits. You may think your pretrial issues are no-brainers and that the judge should simply agree with your positions on everything, but if your opponent opposes your positions, it will take time to work through all the disputes. If there are dozens of substantive disputes, hours, if not more than a day, may be needed.
Fourth, don’t forget jury selection. And when factoring in time for jury selection, don’t just think about how long your questioning will take; remember that the judge first gives basic instructions to the venire, then addresses conflict and hardship issues, and then has each prospective juror answer a standard list of questions before it’s even time for the lawyers to start asking questions.
Fifth, don’t forget cross examination. You obviously have no control over how long your opponent will cross examine your witnesses, but the response shouldn’t be to just ignore cross when estimating your time. Rather, you should meaningfully confer with opposing counsel about all aspects of trial to jointly determine timing and logistical issues. Part of this conferral should be a discussion about who will be the likely witnesses and how long each direct examination will take, and then a reasonable lawyer should be able to give an informed prediction about how long the cross will take.
Sixth, don’t forget post-evidence motions. Most trials involve either a motion for judgment of acquittal or a motion for directed verdict. Sometimes these motions are brief, but not infrequently they require a significant amount of time. If your case involves the later, factor that in to your time estimate.
Seventh, don’t forget instructing the jury. Reading jury instructions does not add a huge amount of time to the trial – maybe 30-60 minutes combined for initial and closing - but when you are already pushing the envelope, every minute counts.
Eighth, don’t forget deliberations. The lawyers can’t control how long the jury deliberates, but it’s important to get the case to jury early enough in the final day of trial so that the jurors don’t feel rushed to reach a verdict by 5 p.m. This is especially important if the last day of trial is a Friday, because some jurors may hurry to reach a verdict so they don’t have to come back the following week.
Ninth, be efficient. It’s important that each side be able to fully present its case but it is also important to be concise. Often times lawyers are not efficient at the beginning of the trial and this makes them feel squeezed later on when trying to stay close to the estimated timeline.
Tenth, for your next trial, compare your estimates to the actual time spent on each segment. Lawyers are often surprised to hear that they took longer than expected for a particular segment because time flies when a lawyer is speaking in front of a jury. If you keep track of these times that will help you estimate better in future cases, especially if you realize your estimates are not as accurate as you had hoped.
No one expects lawyers to predict to the minute how long a trial will take, but if you are intentional and realistic about taking into account all aspects of trial before giving your estimate to the court, you will have a better chance of avoiding harmful and disruptive overruns.
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