After years of litigating a hard-fought commercial dispute in which we represented a domestic importer of foreign goods in a breach of contract action, my colleagues and I found ourselves in a relatively unique position: the other side suddenly gave up and defaulted, after which point, we were awarded a default judgment. Next step was an unopposed hearing in the form of an inquest in which we would itemize our damages and offer proof of the same.
While inquest hearings — single party trials without opposition — can be conducted via examination or on the papers, our judge requested paper submissions which we prepared and submitted. However, consistent with our firm’s practice of mooting arguments whenever one could arise, we brought our client’s vice president into our office to moot the inquest hearing.
Although we weren’t expecting a full argument, we knew that there was a chance that we may have to put him on the stand to clarify some points in his affidavit which itemized our client’s damages or, alternatively, to answer questions from the judge herself. We made good use of our preparation time, and asked our client-representative the toughest questions we could anticipate the judge asking him — and some which we were almost positive that the judge would not ask.
Feeling overprepared, we arrived at the courthouse expecting a very brief hearing in which we would only be required to answer limited clarification points which the judge had on our papers (although we did bring a slew of redweld folders, and a laptop, containing nearly all relevant documents in the case just in case necessary). However, as soon as our case was called, the judge immediately proved us wrong, and requested that we call our first witness, thus signaling that she wanted the entire examination conducted in court.
Rather than panic, we knew that our pre-argument mooting of the hearing encompassed a mini direct examination with the client’s vice president in which we rehearsed the procedure to offer evidence under the New York rules. Armed with our extensive preparation, we were able to put on a direct examination and offer documentary evidence of our damages into the record without incident after requesting only a brief moment to confer amongst ourselves and organize the materials which we had prepared for this very purpose.
When the hearing was over, the judge awarded us the entirety of the damages which we sought, and, to our surprise, even complimented our presentation. As is our practice, we conducted a post-mortem and made a note to always prepare for a full-blown argument or examination in the future.
David Forrest is an attorney for Balestriere Fariello. He graduated from Benjamin N. Cardozo School of Law in June 2018. David works on all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach him by email at david.a.forrest@balestrierefariello.com.