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Posted by ekjadmin on October 9, 2010
A client of mine suggested I post a blog entry on what it means to certify a case for trial. It’s a good question, so with that client’s permission,
I reproduce that e-mail in the left column below, with my comments in the right column:
| Dear Eric, | My responses: |
| 1) If motion(s) are currently filed/pending with the Court can one party still certify a case for trial and ask the Court to have the motions heard at trial instead of setting a hearing date specific to the motion? If not, then it would seem one party can simply continue to file motions to keep the case from being certified. | Good question. It’s true—some (many, too many) unscrupulous parties and their attorneys file motions to drag a case out and prevent it from going to trial, and it’s a tactic used effectively and far too often by attorneys who wage wars of attrition and/or who churn their own client’s accounts. It’s a tactic, however, that only works as long as the opposing side allows it to work.
To answer your question: Yes, if a motion is filed and awaiting decision by the court, either party can certify the case for trial.
But it does not necessarily mean that by certifying the case for trial that the motions will be heard at trial. Why? Because usually, when a case is certified for trial, one to three months pass before the trial actually takes place. In that time between the date the case is certified for trial, the court could (and sometimes does) hear and decide pending motions before trial. And, as you wondered, sometimes a motion can be heard at trial, rather than being placed as an obstacle to certifying the case for trial. |
| 2) Can motions be filed after one party certifies the case for trial? | Motions can be filed at any time before, during, and after trial. The question then becomes, are there any limitations to what kinds of motions can be filed? The answer is yes.
For example, after a case is certified for trial, there would be no point to filing a motion for a discovery and case management order because in certifying a case for trial a party certifies that all discovery is complete. So motions that could have and should have been filed before the case was certified for trial will usually be denied after the case is certified for trial. |
| 3) Can a party successfully use objections to a certification of a case by the certifying party to get the Court to reject the certifying parties certification?
Can a party prevent a case from being certified for trial by filing objections and/or motions? |
Yes.
Yes, but eventually it becomes apparent that the motions and objections are not being filed in good faith, but are being filed for burdensome, costly, bad-faith purposes. Of course, by the time the bad faith is apparent, the bad-faith actor’s objective is largely met; much of the damage is already done. |
| 4) Can a party Certify the case for a future date. For example, say a Petitioner’s deposition is on September 24th, 2010 can the Respondent’s Council certify the case on September 20th, 2010 and still be able to depose the Petitioner on September 24th? | Technically, no.
Utah’s practice is for a case to be certified for trial only after discovery has closed and/or all discovery is completed, so the “anticipatory” certification of a case for trial before discovery is complete would likely get a frosty reception by the court.
That doesn’t mean that certifying a case trial slightly before discovery is complete (knowing that trial will be scheduled for a date one to three months hence) isn’t a good idea. But like many good ideas, this is one that is squashed by self-serving hacks and complacency. |
| 5) After one party Certifies for trail, does the Court generally accept the certification, given that a reasonable amount of time for discovery has passed? | Yes.
That being stated, there are some attorneys who are masters of delay and who can (and do) play a judge like a cheap fiddle to prevent a case from getting to trial so that cash is burned and earned to its fullest extent. |
| 6) Why do some lawyers appear to file motions and go to numerous hearings instead of simply going through a round of good faith discovery and Certify the case for trial? | You know the answer to this question. Here are the reasons (in no particular order):
1. The longer a case stays pending without going to trial, the more money can be made.
2. The longer a case stays pending without going to trial, the better your odds of outlasting the opposing party and causing them to capitulate due to running out of money and/or patience.
3. Going to trial is for all the marbles. Many attorneys (both good and bad, to be fair) wish to avoid trial because they would rather try to keep the outcome more within their control by obtaining a settlement agreement with the opposing party. |
| 7) Why do some lawyers appear to be nervous about certifying a case and appear to make money an extremely central issue? | Your question, being rhetorical, implicitly contains its own answer. |
| 8) Once a lawyer certifies a client’s case, is the certifying lawyer bound to try his client’s case regardless of whether the client pays the lawyer for rendered services?
If so, that is understandable from the perspective that the client’s case will be heard and, hopefully, a fair judgment will be made by the Court. It is not fair to the lawyer who could put countless hours representing a client case with the risk of never making a penny for the actual work the lawyer performed. |
Technically no, in actual practice, yes.
Not all clients are as understanding and fair-minded as you.
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