Clients often ask attorneys, “what are my chances of winning?” It sounds like a reasonable question. But what clients do not seem to understand is that there is “the law” and there is “reality.” All a good lawyer can tell you is: here is what I think is good about your case and here is what I see as the weaknesses, and here is the law “as I see it”. Huh?
I was preparing for a hearing in Broward Circuit Court, on an Order to Show Cause why the other party’s entire case against my client and several others should not be dismissed. I had case law precedent from both the Supreme Court of Florida and the District Court that binds the Judge hearing the case to support my client’s position. I provided a copy of these cases to opposing counsel as we waited for our turn.
Before our case was heard, opposing counsel came over to me and advised that he agreed to dismiss my client as defendant from the case (leaving other defendants still in the case). I thought this was great news, because the client would be very happy.
I still had to wait my turn for the hearing, because I wanted to make sure that the Judge’s order clearly reflected that my client was now out of the case.
I waited and waited and then I heard the calendar begin on the next round of hearings. I asked the Clerk what happened since my case from the earlier round had still not been called. The Clerk advised that I should notify the Judge that my case was not yet called. the Judge asked me for the name of the case and I told him. The Judge then blurted out “I find that cause was shown why the case should not be dismissed.” As I said, luckily, opposing counsel and I had already agreed that my client was being dismissed from the case. Opposing counsel so notified the Judge and he was ok with the dismissal of my client.
But what would have happened if we did not work it out? What would have happened if I did not give opposing counsel a copy of the cases that supported our position? Instead of going into the hearing with “the law on my side”, I would be going into this hearing with a Judge who had already made up his mind. Perhaps I could have changed the Judge’s mind. But I cannot count on that.
Instead, my client would be stuck in this case for who knows how long. Could we appeal the Judge’s finding of cause to not dismiss the case, maybe. Courts of appeal do not let you appeal every ruling as soon as it is made. We could try, but it is likely it would not be heard until the case is over.
Maybe we would win the case in the end. But maybe not. And, if we did not win, could we appeal and argue that that the plaintiff’s case should have been dismissed at the Order to Show stage. Probably. Would we get the entire proceeding thrown out for failing to follow the correct procedure, maybe.
So many “maybes”. Hmmm. Sounds like there is “the law” and there is “reality”.
Eric N. Assouline, Esq., Litigation Partner, Assouline & Berlowe, P.A.