Your pre-trial was six months ago. When the judge asked how much time you needed for trial you practically shrugged.

Opposing counsel looked at you.  You looked back at opposing counsel.

“Two days?”

Sure. Why not.  The case will have settled by then, or at least big pieces of it.  What could take more than two days anyway? You’ll breeze through your client’s testimony.  The experts will probably testify by written report. Your cross-examination will be brilliant, devastating and brief.

“Two days at the most,” you agree.

That was then.

Now you’re one day, five hours and forty-five minutes into trial, and your first witness is still talking about things that happened three years ago.  Your experts haven’t even gone yet.  You’re completely out of time.

What do you do?

Get out your Rules of Evidence.  Or just keep reading this post.

1. Ask for more time.

Obviously. A trial court “has considerable discretion in scheduling matters and in furthering what it has identified as the interests of judicial administration and economy.”  Rice Park Props. v. Robins, Kaplan, Miller & Ciresi, 532 N.W.2d 556 (Minn. 1995).

It also has authority to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence…” Minn. R. Evid. 611(a).

So if you run out of time at trial, ask for more.

If the Court says “no,” keep reading.

2. Make a timely objection.

Be sure to object to the Court’s denial of your request for more time, and make an offer of proof as to the evidence you would have presented but for the time limit. Minn. R. Evid. 103(a)Life Plus Int’l v. Brown, 317 F.3d 799 (8th Cir. 2003).

Then.

3. Raise the issue in your motion for a new trial.

Remember, evidentiary issues not raised both at trial and assigned as error in a motion for a new trial  or motion for amended findings are waived.  They’re beyond the scope of appeal. Grigsby v. Grigsby, 648 N.W.2d 716 (Minn. Ct. App. 2002).

So make your objection during trial, then make it again afterwards.

4. Appeal.

And be sure to identify the time-limit as error. There’s a whole body of federal case law that (though arguably inapplicable) is at least informative.  See Fed. R. Civ. P. 16(c)(O); Life Plus Int’l v. Brown, 317 F.3d 799 (8th Cir. 2003); General Signal Corp. v. MCI Telecomms. Corp, 66 F.3d 1500 (9th Cir. 1995).

But you should probably read this case first:

Phelps v. Sterling, No. A14-1107 (Minn. Ct. App. Aug. 31, 2015.)

In hindsight, wouldn’t it just make more sense to overestimate in the first place?

“Three days, your honor. We’ll need at least three days.”

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