It was a simple district court case. Minimal damages, but hotly contested liability. I had my client and a witness. The defendant corporation brought their store manager to trial. Like many cases, this one boiled down to a single issue. In this case, it was whether the defendant knew or should have known that there was a dangerous condition on their premises.

None of the defendant’s records, most produced at the 11th hour, backed up our claim. It was tough case, but I had my witness. My witness who was going to testify that she spoke to a store employee immediately after the injury. That store employee told my witness that the store had been having the same problem before my client’s injury.

My witness gets to the stand. I lay the foundation–she was at the store, she saw someone putting product away, that person was dressed in the uniform bearing the logo of the defendant. I asked my witness if she talked to that employee. Yes. I asked my witness what that employee said.

“Objection. Hearsay.”

Evidence 101.  I didn’t even get that heart flutter you get when there’s a chance something isn’t going to work out. Rule 5-803(a), exception to hearsay. “Your honor, statements by defendant’s employees, while they are in the scope of their employment and pertaining to that employment, are admissible as statements by a party opponent.”

Judge: Sustained.

To my witnesses’ credit, she tried everything she could to get that statement out, but she was shut down by objections at every turn. Defendant’s motion for directed verdict was miraculously denied, but that just prolonged the pain. Defendant put up his witness, we gave our closing arguments, and the judge took a fifteen minute break to think about it. That was more painful, but perhaps there was a way this would work out. I knew I shouldn’t have won without that evidence, but you never know….

I lost. No notice.

I knew the case was a tough one from the beginning. I liked my client, I believed her, and I thought this was a case worth taking. There was a good chance I was going to lose. But I lost for the wrong reason.

What lesson did I learn from that?

First, a sidebar story, which I heard while commiserating with another lawyer:

I was at trial, and I had some photographs of the scene. I asked my client to identify them. The judge, sua sponte, said: “Counsel — you know better than that. You can’t get those photographs into evidence unless you have testimony from the person who took the photographs.” That most certainly wasn’t the law, and the private investigator who took the photographs was not on my witness list.  I explained to the judge the law about photographs, but he was dead-set on keeping them out. I asked for a quick moment to confer with opposing counsel. I told the defense lawyer that the judge was about to make a critical error in law, and it might cause me to lose the case, at which point I would appeal, and we would spend a lot of money only to end up right back to this point. He told me he agreed, and he informed the judge that he had no objection to the photographs. The judge asked, “are you sure?” Opposing counsel told him he was sure, and the photographs were admitted. Ever since that case, I try to have memos of law on anything, particularly evidentiary issues, that a judge might get wrong. It doesn’t matter if it seems basic — the best way to avoid a problem is to be prepared.

Be prepared. The Boy Scout motto. The lesson here is to never assume anything. Next time I walk into court, I’ll have memos from A to Z. I know I won’t need them in most cases, but it’s better than an appeal. A chat with opposing counsel can’t hurt, either. They might think it’s better than an appeal, too.

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