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Page 394 DEFENSE COUNSEL JOURNAL–October 2012plaintiff’s counsel would bearmed with a roadmap of thedefense’s strategy.Time limits may hamper theplaintiff’s ability to meet itsburden of proof and/or crossexaminedefense witnesses.Time limits can create a numberof problems for a plaintiff whomismanages its clock. In theextreme case, a plaintiff mayneglect to introduce necessaryevidence or otherwise fail toaddress all the elements of itsclaims. More commonly,plaintiff’s counsel who is notused to working within timelimits will be inclined to spendfar too much time putting oncertain witnesses, layingfoundation for an expert’sexpertise, or simply trying tointroduce the jury to complexsubjects for the very first time.As long as the court does notchange the rules of the trialmidstream, a defendant willbenefit from plaintiff’s timemismanagement in a number ofways, including the fact thatopposing counsel will have lesstime to cross-examine defensewitnesses.Time limits re strict the numb erof video depositions played attrial. In the mass tort context inparticular, the playing of videodepositions of unavailablecompany witnesses during trialis becoming increasinglycommon. If left unconstrained,many plaintiff lawyers wouldlike nothing more than to playdozens of hours of depositiontestimony where one witnessafter another is asked about thesame emails with the sameinflammatory languagehighlighted for the jury. In ashorter trial, a plaintiff is notonly forced to narrow the scopeof proffered depositiontestimony but also the judge, inthe interest of time, will sustain adefense objection on the basis ofcumulative evidence. Forexample, a defendant can arguethat each time a video depositionis played showing the sameallegedly “bad company”documents, the defense mustspend time counter-designatingtestimony to put the evidence inits proper context.Time limits red uce cumulativetestimony by experts. Just astimed trials limit redundanttestimony from fact witnesses,they likewise discourage judgesfrom allowing cumulativetestimony by expert witnesses.If, for example, the jury hasalready heard one expert testifyat length about whether amedicine causes a certain sideeffect or that the defendantcompany has violated FDAregulations, a defendant shouldnot be required to use up its timecross-examining another witnessabout the same topics. In otherwords, a court may be morewilling to restrict cumulative
Court-Imposed Time Limits on Trial Page 395expert testimony in the setting ofa time-limited trial.Time limits mo tivate judges tocontrol evasive adve rsewitnesses. In our experience,judges presiding over timerestrictedtrials are particularlyreceptive to control an evasiveand nonresponsive witness.Even where a judge is notproactive in controlling thewitness, the cross-examinershould remind long-winded orfilibustering witnesses about theneed to be responsive given thetime limits in the case. If theevasiveness continues, counselshould ask the court to instructthe witness accordingly. Again,judges appear to be particularlyreceptive to this request in atime-limited trial. This approachmay well create the impressionthat, unlike the plaintiff’switness, the defense is mindfulof and respects the jury’s andjudge’s time.Time limits provide clients withsome logistical and budgetcertainty. Clients and clientrepresentatives appreciatepredictability in an otherwiseunpredictable trial environment.A time-limited trial gives inhousecounsel a betteropportunity to plan andcoordinate with the company’strial witnesses. It also helpsoutside counsel to coordinate theschedules of expert witnesses, asopposed to having to keep themon “standby” for several weeksat a time. Even though it isobviously impossible to predict averdict with certainty, a shorter,time-limited trial can at leastprovide the client with the abilityto budget for the cost of tryingthe case itself.Notwithstanding the benefitsdescribed above, time limits during trialcan be detrimental to defendants incertain circumstances, particularly wherethe limits are unfair or not properlyenforced by the court.Inadequate total time li mitsand/or allocation can prejudicedefendants. Time constraintsduring trial have the potential toprejudice defendants if theoverall time is too short or if thetime is unfairly allocated amongthe parties. With respect to theallocation, the unfairness mayarise in a single defendant case(e.g., 75% to plaintiff and 25%to defendant) or in a multidefendantcase (e.g., 50% toplaintiff and 50% to be splitamong defendants). To preventthis, the parties should makeevery effort to present a realisticexpectation of the time needed topresent their case, and the courtshould take into account thefactual complexity of the caseand such factors as the numberof parties, legal claims, andwitnesses per party. Fairlyallocating time is even moredifficult in cases involvingmultiple defendants, particularly
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U.S. Postal Service Statement of Ow
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