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What's a judge to do?

Twenty lawyers, lots of waiting

Philadelphia Common Pleas Court Judge M. Teresa Sarmina preferred to call it "streamlining."

Some defense lawyers insisted that she was "excluding" them and it could result in a reversal on appeal because it was limiting their Constitutional right to defend their clients.

The case was the civil trial involving the deadly 2013 demolition collapse that destroyed a Salvation Army thrift store. And the issue was sidebars — the mid-trial conferences among judge and lawyers about legal issues held in court but beyond the jurors' hearing.

Sidebars are part of the trial process but in the collapse trial, now in its seventh week, the conferences have consumed 21 percent of the trial. Yes, the lawyers counted. On  Wednesday, Sarmina said she was worried about exhausting the amount of time this jury — seven men and five women — could serve.

Sarmina said the length of the trial was posing an extreme hardship on the jurors and their employers.

"I thought for sure we would have been finished before the break," Sarmina told the score of lawyers represent the victims of the collapse and the seven people or corporate entities accused of causing it.

The trial went on hiatus from Oct. 26 until Tuesday to accommodate a vacation the judge planned before being assigned the trial in July.

When the jurors returned to the City Hall courtroom on Tuesday, the trial had lost one of its five alternate jurors.

The jurors have been told that the trial will run through Feb. 3 although they will be off on Thanksgiving and "Black Friday," and for extended periods in late December for Christmas and other end-of-year holidays.

One problem with the sidebars is the sheer number of lawyers who must wend their way through a maze of tables in the well of the cavernous courtroom to an area to the left of the judge's massive marble bench.

"You all come meandering up like some old boys' club chatting with each other," Sarmina said.

And so on Tuesday Sarmina tried something different: inviting only the lawyer who objected and the lawyer objected to to participate in sidebar. Other lawyers could ask the court stenographer to read back the sidebar transcript later and enter their own objections for the record.

The response was quick and negative. John J. Hare, a lawyer representing the Salvation Army, argued that the Constitution gives them a right to be present during any sidebar conferences to protect the interests of their clients.

Hare cited several Pennsylvania and U.S. Supreme Court decisions although Sarmina maintained that they were not "on point" on the questions of lawyers having a right to attend sidebars.

Robert J. Mongeluzzi, a plaintiffs' lawyer, said he had found no court precedent or rule of civil procedure governing sidebars and accused the defense lawyers of "trying to run out the clock and have a separate jury decide the issue of damages."

Sarmina agreed that if the trial goes much longer the parties may indeed have to allow this jury to decide which, if any, of the defendants should be liable for money damages to those killed and injured in the collapse and impanel a new jury to decide an amount.

Ultimately, Sarmina agreed to try a compromise: each party could send one lawyer to the sidebar and their arguments would be limited — possibly using a timer.

"I'm not putting form over substance but moving things along is absolutely part of the responsibility of the court," Sarmina added.