Check the Fine Print

If you represent individuals or small businesses, business has probably slowed down in the last week or so, hasn’t it?  Part of it is the economy (remember: the economy is always cyclical — we’re gonna bounce back just fine!), but the main reason that your phone hasn’t been ringing as much as usual isn’t because you’ve done anything wrong, it’s just that your clients would rather spend their money on Christmas gifts rather than on legal services.

Don’t worry.  There are only two and a half more weeks left in the year, and you’ll soon have more business than you know what to do with.  But what should you do in the meantime?

You could join your clients at the mall, and do your part to keep the economy strong, or…

You could join other local lawyers for a few pints at the bar near the courthouse and exchange war stories, or…

You could stay in your office and invest two minutes per file to review every file in your filing cabinet!

“Why would I want to invest two minutes reviewing each file?  What could I possibly accomplish in that miniscule amount of time?”

Actually, it may not even take the full two minutes.  If you’re really knowledgeable about the essential elements of your cases, it may require less than a minute per file.  But with that small investment of time, you may save your case from a premature death, or set up a directed verdict for your client.

Let me explain.  Last year, I was waiting to learn when my case would be called up for trial.  The case before mine was a sexual molestation case.  I’d been told that the prosecution’s case would take about a day, and the defense case would probably take another half day.  Since they’d started the previous afternoon, I decided to poke my head into the courtroom and see how far they’d progressed, so that I could ask the judge when to expect my case would be called.

The prosecution had rested their case shortly before I arrived, so as I walked in, the attorneys were arguing the motion for Judgment of Acquittal (directed verdict).  In sexual molestation cases, these are usually pro forma motions, so you can imagine my surprise when I heard the judge announce, “The State has failed to allege an essential element in their Information (indictment), so the motion for judgment of acquittal is granted.”

Basically, here’s what happened.  In Florida, the crime of “Sexual Battery on a Child Less than 12 Years of Age” is treated differently depending on whether the defendant is older or younger than 18 years of age.  One of the essential elements that must be proven is whether the defendant is 18+ years of age.  Unfortunately, from what I gathered, the essential element of the defendant’s age was never charged and never proven during trial, so the judge had to dismiss the case.

To avoid the same problem with your cases, invest a few moments with each file and look through the language to assure that each and every essential element is listed in your charging document.   Are there special circumstances that must be specifically pled in your complaint?  If so, are they listed?

From the defense perspective, looking through each and every element may allow you prepare a J.O.A./directed verdict argument that you otherwise might have overlooked.

I know that this week’s advice sounds basic and obvious, but sometimes we need to be reminded about the basics of trial practice.  Invest a few minutes looking through each of your files — I guarantee that you’ll be happy you did.