This week’s question is from Frank via the form. Frank asks:

What does a lawyer do if they have to take a dump during a hearing? Like what options do you have to call for a recess so you don’t soil yourself?

Great question, Frank! I just had a hearing in Hood county this week. Luckily it only lasted about 20 minutes, so I was able to make it through with no need to slip out for a dump. However, as a person who constantly has to go to the bathroom, this thought has crossed my mind a lot. A LOT.

My initial instinct would be that you simply ask the judge, “Your honor, may we have a short recess?” This should work, unless the judge is frustrated or doesn’t quite understand what you’re getting at.

Not wanting to lead you all astray, I decided to consult with an expert, Julie Aguilar. Julie is a family law attorney and regularly tries cases. I go to Julie for all my family law questions or any time someone asks me for a referral to a family law attorney.

Today I had to audacity to ask this D Magazine Best Lawyers Under 40 honoree just what one does when a turtle head starts poking out during a hearing. She obliged because she is infinitely patient and wonderful. She said that my “May we have a short recess?” idea should work. But, she suggested, if the request for a recess didn’t work, an attorney could then ask the judge for a quick side bar to discuss “an urgent matter.” At that point, you would tell the judge that nature was calling.

I asked another excellent litigator I know, Ian Ross Phillips, the same thing. He confirmed that asking for a recess should work. Attorneys could also discuss scheduled bathroom breaks with the judge and opposing counsel before the jury was brought in. That way the breaks could be at convenient times like after a witness has been questioned or before the witness is cross-examined by the opposing side.

Phillips also said that jurors are normally instructed to alert the bailiff with a note or signal if they need to use the restroom during proceedings.

God bless friends who answer late night texts like “What if you have to poop in trial???” Love you guys.

WHEN GOING TO THE BATHROOM GOES WRONG

Whether to go on recess is up to the judge’s discretion, but denying a party access to a jury trial simply because a lawyer was squatting a grumpy down the hall is an abuse of discretion.

An attorney in Texas had an unfortunately-timed bathroom break in 2018. The suit at issue was a custody battle where a grandmother, having lost her daughter to cancer, was fighting for the right to see her grandchildren. The case was set for a pre-trial conference at which the attorneys and all parties were scheduled to appear before a judge at 9:00am.

The notice of pre-trial conference informed the parties that failure to appear would constitute a waiver of a party’s request for a jury trial. This means if they missed the meeting with the judge, the grandmother would lose the chance to have her case heard by a jury.

What happened next is the stuff of my nightmares as a lawyer.

The grandmother’s lawyer answered the docket call at 9:00 am. This means he went in and informed the court coordinator that he was there. He then left the room, and accounts vary whether he went to the bathroom or to another court room. He then came back at 9:25 and let them know he had returned. He left again at 9:35, telling opposing counsel and the coordinator that he had to go to the bathroom. The coordinator told him, “Hurry up.”

He didn’t hurry up enough for the judge’s liking. The judge called the case at 9:39am, just four minutes later, while the lawyer was still out launching his sea pickle. Four minutes is definitely not enough time to get any bathroom business done, let me tell you.

Nonetheless, the judge marked down with the coordinator that neither the lawyer nor his client appeared. The judge considered this momentary absence as “not appearing” and set the case for a non-jury trial. The lawyer’s morning constitutional lasted around ten minutes, and he returned to the court at 9:50am, horrified to learn he had missed the conference.

The lawyer asked the court to reconsider several times, but it refused. The lawyer was forced to file for mandamus relief on his client’s behalf. Mandamus is when you ask a higher court to look at a case and require a lower court judge to do something they are obligated to do. To obtain mandamus relief, a person must show both that the trial court clearly abused its discretion and that the person has no adequate remedy at law, such as an appeal.

The Fourteenth Court of Appeals took up the request for mandamus and determined that the judge’s removal of the case from the jury docket was an abuse of discretion. It was over a year before the lawyer finally got relief for his client. That didn’t take the sting away from him. He told the ABA Journal, “I could have died of embarrassment reading the opinion. But I cannot afford to dwell on it. Instead, I will take advice given by my late grandmother: ‘Pick up the pieces, and move on.’”

Here’s a piece of advice from my mom, “Go to the bathroom before you leave.”

Great question, Frank!

Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don’t send those. Love you, but I don’t do that.

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This piece first appeared in Sunday Morning Hot Tea. Subscribe so you don’t miss another piece.