Federal Judiciary

Time Limits at Trial - 2008 Fifth Circuit cases

By Michael Smith

One of my favorite research sources is Fifth Circuit Federal News, edited by Robert McKnight and Maureen Blackburn Jennings which in addition to monthly publications on cases and issues of interest to practitioners in the Fifth Circuit also provides a daily report of all published (and selected unpublished) cases out of the Fifth Circuit.  (I've even written the occasional case summary for them).  I saw Bob recently at the In re VW arguments, so I'm looking forward to his expert take on what he saw.
This morning's e-mail from FCCN noted an unpublished decision from the Fifth Circuit yesterday, Seymore v. Penn Maritime Inc., No. 07-40430 (5th Cir. June 5, 2008) (Reavley, Benavides and Owen) (per curiam) in which the defendant appealed the district court's "limitation of its time to cross-examine witnesses and present its case to 10 hours."   On plain error review of the time restriction (since the defendant did not object at trial) the Fifth Circuit found no abuse of discretion. "We are convinced from a review of the record that Penn had sufficient time to develop its defensive theories and present its case," the per curiam opinion wrote.  "Penn fails to show that the district court abused its broad discretion to manage its docket and control the trial."  What FCCN was nice enough to then point out was a recent decision out of the Eastern District in which time limits were at issue.  In McClain v. Lufkin Industries, Inc., No. 05-41417 (5th Cir. Feb. 29, 2008) (Jones, Higginbotham and Clement), the Court found no abuse of discretion in giving each side 20 hours to present its case: "[W]e do not doubt that it was difficult for Lufkin to mount a defense ... in the mere twenty hours the district court allowed each side," but Lufkin failed on appeal to show how it "suffered reversible prejudice."  (It reversed the case in part on other grounds anyway).
Now I know what you're saying is "gee, how I can I get twenty hours to put on my case in the Eastern District!"  I thought the same thing - I don't think I've ever had that much time, even in a patent case (actually there have been a very few cases that did go over a week).  But the cases also point out what I see in practice, which is that while attorneys pull their hair out beforehand thinking how they can try a case in 13-18 hours per side, they always end up giving time back, rather than asking for more (which, along with demonstrating why you need it, is what you have to do to preserve a claim for appeal).  I'm a big believer that the time limits actually help you put on a better case, rather than hamper you, and I think many lawyers who have actually tried cases under the limits would agree.
So the chess clocks are staying.

Full post as published by Eastern District of Texas Federal Court Practice on June 06, 2008 (boomark / email).