Can a Poorly Timed Bathroom Break Jeopardize Your Case?

a yellow post-it note with the words "be right back!!" written in black marker pen.
By Laura Temme, Esq. on September 25, 2019 7:00 AM

A Court of Appeals in Texas’ 14th Circuit says, no.

Attorney Chris Ainsworth was present to answer the trial court’s pretrial conference docket call at 9 a.m. on August 23, 2018. Thirty minutes passed, and Ainsworth informed opposing counsel and the court coordinator that he needed to use the restroom. Four minutes later, the trial court called his client’s case – but Ainsworth had not returned. For reasons not delved into by the trial court, Ainsworth’s client had not yet arrived for the pretrial conference.

So, the judge removed the case from the jury docket.

Is Being Late Enough to Lose Your Right to a Jury Trial?

The Texas Rules of Civil Procedure state that failure to appear for trial “shall be deemed a waiver” of a party’s right to a jury trial. However, failure to appear for a pretrial conference does not constitute such a waiver, according to the court that heard this case on appeal. Furthermore, client and counsel were late, as opposed to not showing up at all. Finding tardiness was not enough to waive the jury trial under the state’s rules, the court moved on to consider whether a sanction was appropriate under the circumstances.

Removal Was an Abuse of Discretion

The Court of Appeals found tardiness did not warrant removal of the case from the jury docket, primarily because there was seemingly no relationship between the action and the punishment. In fact, it was never made clear whose conduct the court deemed offensive: the attorney or the client. Furthermore, the court found that the opposing party was not harmed in any way by counsel being out of the courtroom for a few minutes that morning.

Ainsworth told the ABA Journal: “I agree with the Court of Appeals that depriving my client of one of our most precious rights, trial by jury, was excessive… That said, I could have died of embarrassment reading the opinion.”

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