From the Trenches – Genius Advocacy or Sleazy Tactics?

sleazy tactic with sick attorney

Remember the days before the pandemic when we actually went to court for trials? In one of my many weird cases, the defendant had managed to continue the trial seven times and delayed my client’s day in court for over a year. Here is the technique he used, and while it is not something I would ever do, I must begrudgingly acknowledge his creativity.

The defendant is a doctor. His first attorney billed a bagillion hours at $500 per hour, until the Defendant could no longer keep up with the huge bills. That attorney brought a motion on the eve of trial to be relieved as counsel, alleging he was not being paid. I’ve seen a number of judges respond to such a request with “too bad, so sad”, but this judge took pity and let the attorney out of the case. Continuance number one, to give the defendant time to find new counsel.

The defendant then showed up on the eve of trial with a new attorney, who begged for more time to prepare. Continuance number two. He asked for four months, but we kept it to two months.

A series of sick attorneys

As the trial approached, we could not get the new counsel to cooperate in the pre-trial exchanges and the like. We found out why when he showed up and asked for another continuance. At the risk of sounding insensitive to his medical condition, his claim was amazing. He represented to the court that he suffers from a medical condition that requires medication, but that the medication makes him too loopy to prepare for trial. Therefore, since the court had only afforded a two month continuance, he had to go off the medicine in order to put his mind in a place where he could prepare for trial. But that then let his condition worsen, so now he could not proceed with trial. He had a doctor’s note in hand, attesting to the fact that he absolutely had to get back on the meds for a couple of months to get his condition back under control.

When it appeared that the judge was going to continue the matter again, we explained the obvious scenario opposing counsel was creating. If the medicine renders him unable to prepare for trial, then what good will it do to grant another two month continuance to let him go back on the meds if he will be unable to prepare for trial? The judge met us halfway, and set a deadline for the ill attorney to do the pre-trial conference, and if he could not, defendant would have to find new counsel. Continuance number three.

sick attorney

That deadline came and went, so we went to court to explain what was going on, and new counsel appeared, asking for six months to prepare for the trial. (We must really intimidate opposing counsel, who feel that they need half a year to get ready to fight us in court on a case that prior counsel has already spent a year preparing.)

Anyway, the details are getting tedious, but the punch line is that this new attorney showed up on the trial date claiming he was too sick to go forward, and the trial was continued. This is pure speculation, but if I were the suspicious type, I would think that the defendant doctor, who had announced that he wanted to continue the trial as long as possible, was intentionally hiring attorneys with medical conditions in order to delay the trial.

From the standpoint of getting the matter continued, opposing counsel’s tactic of using a parade of sick attorneys was undeniably successful. However, at trial, we got a $1.6 million verdict against the defendant for sending a defamatory email, and it was apparent that the latest in the string of attorneys was not as prepared for the case as he could have been had he not been part of a parade of attorneys. (Although, to his credit, I was very impressed by how familiar he was with the case after coming in so late.)

So, bottom line, the tactic worked, but it may have come at a very high price.

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