Dr Marcin Lemkowski

If you don’t go to court, the court may come to you

Failure to appear at a court hearing where testimony will be taken from the parties or witnesses does need not necessarily mean that the hearing will have to be continued to a later date.

While it requires more involvement from the court, it is possible to have the case decided more quickly.

Given the realities of the Polish judicial system, the saying that the wheels of justice turn slowly remains all too true. There are many reasons for this, but without a doubt one of them is that persons called to testify often fail to appear. This old trick for prolonging proceedings still works. A fine may be imposed on a witness for unjustified failure to appear, and only after that may the court order that the witness be hauled into court by the police. But in the meantime many precious months may be lost.

Court-appointed doctor required

An excellent change in procedural regulations, which should help expedite cases, was introduction of a requirement to present a medical certificate from a court-appointed doctor to justify the witness’s failure to appear in court. Failure to present such certificate is tantamount to unjustified failure to appear, which in the case of testimony by a party entitles the court to reject such evidence (Civil Procedure Code Art. 302 §1), or in the case of a non-party witness first to impose a fine on the witness and then order that the witness be brought in by force if he or she fails to appear again (Art. 274 §1).

It would be desirable, however, out of respect for the justice system, that the fine for failure to appear be significantly higher than it is now. An amount like PLN 100,000 would appear to provide a sufficient incentive to show up even for wealthy witnesses, and even then the court should have the ability to increase the fine in the event of persistent failure to appear.

Justified, but unjustified

If a party witness presents a certificate from a court-appointed doctor, the failure to appear should be regarded as justified. Even then, valuable information about the party’s true intent can sometimes be gleaned from the surrounding circumstances.

In one case the defendant had first sought to have his testimony taken through the court in the city where he resided, which was quite a distance from the court where the case was pending. Then, when the defendant was summoned to appear at his local court to testify, he presented a medical certificate stating that he was unfit to testify. The certificate was not issued by a doctor in the defendant’s home town, however, but by a doctor in the city where the case was pending. The judge in the district court decided that if the defendant could get to a doctor in the other city, he could just as well testify there. The court then refused to allow the defendant’s testimony.

Typically, however, in cases like that, the court will reschedule the hearing, often for months later.

Mountain takes taxi to Mahomet

But the Civil Procedure Code does provide help in this type of situation as well. Under Art. 263, persons who are unable to leave the place where they are staying because of illness or disability may testify where they are.

This procedure was used by the Poznań Regional Court in one case to bring the hearings to a close and proceed to decision of the case. In that case, the plaintiff sought to set aside an alleged gift from a woman to her mother, who was in her 80s, as a fraudulent transfer intended to defeat execution on a judgment entered against the daughter for several million zlotys. The conveyance involved real estate that was the debtor’s only valuable asset.

At the final hearing, when the parties were supposed to testify, the defendant daughter failed to appear, without justification. The defendant mother submitted a certificate from the court-appointed doctor that she was unable to appear in court. The judge decided to hear the plaintiff’s testimony, reject the daughter’s testimony, and reschedule the mother’s testimony for a later date.

The plaintiff then moved under Civil Procedure Code Art. 263 to take the mother’s testimony at her home, on that very same day. The court had set aside three hours for the parties’ testimony, and it would take no longer than 15 minutes to travel from the courthouse to the mother’s home. Defence counsel objected that the mother might be taking medicine that would leave her in a state in which she was unable to testify. The court clerk checked with the doctor to determine whether the defendant was unable to testify then at all or simply could not come to court. A few minutes later, word came back that the mother only temporarily had difficulty getting to the court, and in a couple of weeks was planning to go on a trip.

Based on this information, the judge decided to take the mother’s testimony at her home. Defence counsel tried unsuccessfully to reach the mother by phone. Interrupting the plaintiff’s testimony, everyone headed for a taxi for the short drive to the mother’s apartment.

Meanwhile, defence counsel managed to reach the client by phone. The mother said she preferred not to testify at all, and her lawyer then moved to skip her testimony. The plaintiff then resumed its testimony, counsel made their final arguments, and the judge closed the case. Two weeks later the court handed down a judgment in favour of the plaintiff.

The result was possible thanks to the creative approach of the plaintiff’s counsel and the judge’s determination to wrap up the case, which otherwise would have been delayed by several months.

A week after that, the daughter paid the original judgment in full.

If every case could be like that

Judges must find it very rewarding to decide a case when they have been able to give it proper consideration and reach a just verdict. Their job satisfaction would be even greater if they had effective tools for battling the pathologies they encounter in the justice system, such as failure to appear by parties or witnesses.

The example above shows that it is possible to prevail against such obstacles when the court and the lawyers go beyond the call of duty in order to resolve the case—particularly when it is apparent that one of the parties is just trying to prolong the proceeding.

In everyday practice, it is rare to encounter such an attitude of openness on the part of the courts. That makes it all the more important to spread such examples to show what can be achieved when proper use is made of the procedural solutions that are already available.

Marcin Lemkowski, PhD, Dispute Resolution and Arbitration practice group, Wardyński & Partners