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A Hearing Most Lawyers Have Never Heard Of

Posted by Joshua J. Lax | Jan 23, 2024 | 0 Comments

Approximately one year ago, I completed something called a "traverse" hearing. Never heard of it? You are not alone. Since it was about a year ago I entered this Zoom hearing out of the Supreme Court of Albany County, New York, I decided to post about it now for the anniversary of this momentous occasion.

What is a "traverse" hearing? Traverse is old legal term meaning to deny or contradict something, often an allegation. In preparing to write this post, I found cases in Westlaw using the term "traverse" to describe various forms of denials as far back as 1800. Now, a "traverse" hearing appears to be limited to situations where a defendant in a civil case challenges, that is denies or contradicts, that they were properly served with a copy of the summons and complaint. When someone files a lawsuit, to actually get the defendant into court and have the court exercise its authority over the defendant (called "personal jurisdiction"), the plaintiff has to show that they delivered a copy of the summons (calling the defendant to court) and the complaint (which explains the claims against the defendant). At a "traverse" hearing, the plaintiff has to prove that they served the defendant in the way required by the law, and the defendant can offer evidence that the plaintiff failed to do so.

Why was I doing a "traverse" hearing in the first place? The plaintiff in the case was suing a professional boxer (my client), claiming the latter breached a contract where the plaintiff would serve as a boxing promoter and manager. The plaintiff claimed he served the client at his office at an address outside Cleveland, Ohio. The building, however, was a newer luxury apartment building where the client had lived years ago, not on the date he was supposedly served. Instead, the client was in the gym where he trains in the presence of trainers, managers, and sparring partners. We got an affidavit from one of the trainiers who was with the client in the gym when the client was supposedly served. In addition, the affidavit of service, which is used as proof in lawsuits that a defendant was serviced, failed to describe the person served as required by New York law (CPLR 306(b)).

Despite the seemingly antiquated nature of the thing, the hearing worked more or less like any other bench trial I have completed. To start with, as I have said many times, if you believe in your case, you should never be afraid to try it. Based on what I am about to describe, it will become clear that my belief in the case and willingness to go forward with the hearing were both well founded.

The morning of the hearing, the plaintiff's attorney provided me a new affidavit of service, stating that the client was served in the gym. I objected to this new affidavit's use in the hearing, but the judge overruled my objection. The process server who signed both affidavits testified that he realized the first affidavit was wrong while preparing to testify the night before. He further claimed he entered the client's gym, and watched an "agent" of his go up to the boxing ring and hand the papers to the client "through the ropes." In a perfect illustration that less is more, the agent testified too. The agent said he served the client while the client was in a corner of the gym working out, not in the ring and definitely not "through the ropes." I wish I could take credit for eliciting these two contrary stories, but it was all plaintiff's counsel. Also, neither witness could say at the hearing that my client was the person they served, these answers again in response to questions from plaintiff's counsel. On cross examination, other than highlighting the inconsistencies, I made two points that the Court noted in ruling in our favor. First, I committed the process server to the fact he had a file that would have corroborated his story of serving the client at the gym. Of course, the file was packed away somewhere and he did not think he would need it for the hearing. Second, the affidavit stated that they served a "summons and introduction" as opposed to "summons and complaint." Again without the server's file, the plaintiff could not prove what was actually provided to the client, if any of these stories were true in the first place. I held this last point in reserve until the hearing, because I surmised that in the end no one would be able to show what was included in "summons and introduction."

At the conclusion of the hearing, the judge told the parties to submit written closing statements up to two pages long. I decided to write the closing as if the judge was answering a question like one on a verdict sheet for a jury: "Has plaintiff proven beyond a preponderance of the evidence that he completed proper service on the defendant on April 8, 2022?" I went on to explain why the answer to that question is "no." A number of these points were used in the Court's decision.

Another factoid I learned in this case: the contract contained a choice of law provision specifying that any legal dispute should be brought in the New York State Supreme Court, Albany County. Apparently, this is a customary choice for boxing contracts based on the Albany court's experience with boxing-related disputes. 

A copy of the Court's decision granting the traverse and dismissing the case can be found here

About the Author

Joshua J. Lax

Joshua J. Lax is the head of the firm's Government Affairs and Defense Practice. Joshua combines his extensive experience in criminal and civil cases, including almost forty trials, to assist his clients present the best case possible. Joshua's work with hundreds of witnesses has given him the ty...


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