Gamboa v. Metzler (CA1 2/2/10)

This adds nothing to the law. But the courts need to publish one of these every once in a while to reassure trial judges and to teach/remind/scare lawyers.

Gamboa’s lawyer fouled up his witness scheduling, even after various discussions and agreements about it with defense counsel and the court. As a result, come 5:00 or so on the last day of the evidence he had only been cross-examining the defense expert for 43 minutes when the court stopped him. He objected but didn’t seek to have the witness return the next day and didn’t make an offer of proof of what he expected to show. The jury gave him a lot of money but gave the defendant only 10% of the fault, so he appealed.

After reciting the facts, the court’s entire legal analysis is, quite appropriately, “the court did not abuse its broad discretion.”

Well, not quite the entire analysis since without an offer of proof the plaintiff couldn’t show harm even if there had been error.

Plaintiff’s lawyer made noises about “due process”; they always do. But this has happened many times before and the law is clear. The trial judge doesn’t violate anybody’s rights by putting a reasonable limit on you. Its your burden to prove that it wasn’t reasonable. Its a big one. And its an impossible one unless you make a record.

And, by the way, if you haven’t made all your main points on cross within 43 minutes, fuggedaboudit.