Tag Archives: trials

Defense in Trials–The Real Deal

After numerous request and demands the defendant’s part of a trial will be discussed.   We already did the first half of a trial a few months ago.  The exercise is not for the lawyers surfing the internet with idle time on their hands but for Joe the Plumber so he will have some idea how the system actually work compared to the complete mish mash you see on TV or the movies.   It is not as exciting in real life as portrayed.  At least that is what the good lawyer hopes occurs.  A good lawyer wants the trial to follow the “script” he has outlined for the trial.  He will have thought through every item of evidence he wants to introduce, which witnesses will be used for that purpose and what testimony to elicit from each witness.  A surprise in the courtroom is the last thing any trial lawyer wants and the truth is they rarely happen.  

The modern procedures require that each party exchange their basic theories of the case and list of documents and witnesses well before trial.  In addition to that each side is allowed to take depositions under oath of all potential witnesses well before trial.  With all that data in hand it is not likely that something radically new will pop during the trial itself.  All that pre trial discovery and work is like a troupe doing dress rehearsals and out of town shows before hitting the big stage on Broadway.  The actual trial will have been “rehearsed” before the trial date.   We have covered the Plaintiff’s part of the trial so we pick this up when the Plaintiff as “rested”.

When the Plaintiff announces they have rested that means they have presented what is called their case in chief.  The plaintiff at that point in the trial is supposed to have presented all the evidence they have to support the allegations in their pleadings.  They don’t get another bite at the apple.  They do have the right of rebuttal but that is not the same as introducing evidence to prove their pleadings.   The first thing that the Defendant normally does at this point is move for judgment.  That is an assertion by the defendant that the plaintiff did not offer sufficient evidence to support their claim and thus as a matter of law the plaintiff loses for a failure to prove their case.  These motions are rarely granted by the courts but routinely made.    Such motions are granted on occasion and when they are you can be assured that the lawyer for the plaintiff really messed up or brought a case that should never have been filed in the first place.  Next the defendant will  make his opening statement to the jury.  Sometimes the court will have the defendant do this at the beginning of the trial after the plaintiff’s opening statement.  But in most courts it will be at this point.  The opening statement is not the argument presented by the defendant.  That comes later at the end of the trial. The opening statement is to advise the jury of the defendant’s theory of the case, to outline the evidence that will be offered and the testimony of the witnesses.  It is an outline if you will. 

Now the defendant will begin the presentation of his case.  In the typical case much of the evidence that the defendant wants to have introduced  will have already been offered and accepted during the cross -examination of the plaintiff’s witnesses.  Also, the courts strongly encourage the parties to stipulate to the documents that will be introduced during the trial and frown on frivilous objections.  If there is no serious objection to a document the lawyers will agree to their being admitted into evidence or they run the risk of the court’s displeasure.  There will be some with those serious objections and the court will not hesitate to hold each party to the rules of evidence during the trial.   The defendant calls his first witness and you are off and running.  Each witness will be called and the respective documents proved up by the testimony of that witness until you are done.  Now all the admissable documents are in evidence either by stipulation or testimony of the witnesses.  Because of the cross-examination of plaintiff’s witnesses it is typical that the defendant’s portion of the trial will be shorter, quite a bit shorter in many cases.  The evidence offered by the defendant is to counter the factual allegations of the plaintiff, to challenge the veracity of the plaintiff’s witnesses or rebut the contentions of the plaintiff.  Remember the trial is only to determine the facts.  When the facts are not in dispute but there is a disagreement as to the law then case would have been disposed of by summary judgment motion all legal arguments by the lawyers.   The defendant will then rest.  After that the respective sides will give their final arguments.  In most every court the judge will read his charge to the jury at this point in time right before the arguments.

The court will allocate time for each side for final argument.  It can vary a great deal depending upon the complexity and length of the trial–from 30 minutes to a side to maybe half a day per side.  Regardless of the time period the plaintiff will always go first.  The party with the burden of proof always get to open and close in any courtroom proceeding.   The plaintiff will typically take only a third or so of his time for opening then have most of his time after the defendant argues so he can rebut and refute the comments of the defendant’s lawyer.  The jury will then retire and render a verdict.  The verdict will be answers to a series of questions that have been formulated before the trial began.  The judge has the final say but the lawyers can object to his charge.  There has been many a case reversed because the court did not correctly charge the jury and formulate the correct interrogatories to the jury.  The jury is determining if the plaintiff had the credible preponderate evidence to support his allegations and legal theories.  That is what the questions are supposed to be to the jury.   The judge  renders a judgment based upon the findings of the jury.  After hearing the verdict reviewed, or in most cases sitting down with the judge and reading them, one side goes home happy and another sad.

There are wheels within wheels when it comes to the complextiy of Mother Nature and our oceans.  The spin of the earth.  Even when you are sitting there you are moving at about 24,000 miles and hour. Next the gravitational effects of our Moon which produce the tides.  The movement of the tectonic plates plays a role in the movement of the seas.  The saline content influences the motion of the current.  The jet stream has an effect on the currents and so does the ambient temperature.  Those are only some of the various factors that make our oceans move.  There is lots more going on than the actions of Man.

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Eerie Tales From the Courtroom

A number of years ago my firm was contacted to represent the family of a lady who died and whose estate was being probated in Dallas.  Her brother who came to us was a high administrator for Duke University.  Her family was an old and well established one in the South.  Before her death she had transferred virtually all her assets to a woman in Dallas who was most unusual to say the least.  This woman was a leader of a group of followers who practiced a blend of weird philosophies and new age theories.  They believed they could commune with the etheral spirits of the universe and reach a new level of understanding of the universe such that the normal laws of physics would not apply.  This woman claimed for example to be able to levitate.  She had written several pamphlets about her theories.  Her ideas were a hodge podge of Kabbala and other eastern mystic theories and philosophies.  She also was able to use hypnosis supposedly and was a poltergist.  She could make objects move without touching them was the claim.  She had been doing this for a number of years in Dallas and had a small but intensely loyal following.  The deceased lady had met her through and acquaintance and had joined her group and had been a steady member for a couple of years prior to her death.

This woman had been involved with several others who had died under stranger or unusual circumstances.  Our lady had driven off a mountain road in Colorado along with a nanny.  They both died.  On the surface not a particularly unusual event.  Tragic but not strange in and of itself.  But then we learned more.  Her first husband had died of a drug overdose several years before.  Again by itself not unheard of.  Her second husband died in an industrial accident on the job by electrocution.  An accident again.  Normally it would just invoke sympathy.  But wait, there’s more!  Our lady had a daughter who was about 14 when she met the seer.  Several months before the death of our lady she and the seer and a couple of others in the secret group had made a vacation trip to Hawaii.  Our lady’s daughter drowned in the surf just off shore even though she was a member of her school swim team.  So within a matter of a few years we now have 5 people close to this seer who had died from other than natural casuses.  It was beginning to look stranger and stranger.  But what could we prove?

Her group was a sophisticated bunch. It included a high level administrator for the Dallas School District, a professor at SMU, our lady who was well educated and many others who were not troglodytes.   This seer did practice her hypnosis on a regular basis with the members of the group.  It was a method they used to transcend the normal levels of human understanding was the theory.  They held meetings every week in some of the nicest homes in town.  They would wear robes with hoods, hold swords and scepters and chant invocations to the “Lords of the Universe” and other such supposed entities.  They truly believed that they could transport their minds and spirits out of their bodies and make space travel into the far reaches of our galaxy and even beyond.  I can’t explain what the “hold” was this seer had over these people except when we actually met them face to face later on they were all introverts and nerds even if well educated ones.  There were like zoombies in my opinion. 

After the death of our lady’s daughter she was naturally distraught and she turned even more to the seer for advice and comfort on everything in her life.   The seer somehow persuaded her to give her everything even including naming her as the beneficiary on her life insurance policy.  She also even transferred personal property, heirlooms that had been in the familhy for generations, to the seer.  Needless to say the lady’s family back home knew about the seer and were all very concerned and upset but the lady was adamant and would not change her loyalties.  This was all done quite legally with a real lawyer and everything.  In fact that lawyer was one of the devotees of the seer although not an active follower.  He even testified at the trial on behalf of the seer. 

I remember when we finally went to trial that on opening argument my partner told the jury that if the seer could levitate out of her chair during the trial we would pack our bags and go home.   She never did.   The case was in probate court even though we weren’t challenging the will as such, we were challenging the transfers to the seer prior to the death on behalf of the estate.  Most unusual legal proceeding.  You can look but I guarantee you won’t find another like it anywhere.  You might know the judge was very young and he had only been on the bench a couple of months when our case was ready for trial.  He was out of his depth.  But ultimatley ruled correctly in our favor to introduce some letters that outlined the bizarre nature of the relationship between our lady and the seer.  All those well educated people did in fact come to testify for this seer at trial.  We had a hard time getting into evidence the prior deaths of all  the other people near her but we did.  Almost every one of her witnesses cried on the stand and they all thought and said it was terribly unfair to challenge her righ to the property and her integrity.  Our position was she had no integrity.  We did introduce all her writings for the jury to see and read.  They were literally gobble-di-gook.   Incomprehensible.   When the case was about over they offered to settle.  Things were not going their way.  We had an expert who testified about post hypnotic suggestions and it was our position that this seer had used her influence over these people to induce them to suicide.  That was a pretty tall order to achieve that.  We were getting on thin ice ourselves but I don’t believe in multi-coincidences.   We got everything except we didn’t retrieve the money she had used to pay her lawyers who were very good ones.   But we got everything else.   Her family wanted those heirlooms back. 

As a follow up the seer’s husband during our trial died also under weird circumstances about a year later.   The local DA finally got more interested.  He was interested when we did our case but there  wasn’t enough proof to bring any charges.  The seer filed for bankruptcy and had her discharge denied shortly thereafter and was finally  convicted if memory serves for manslaughter in the death of her last husband.  She was sentenced to several years in prison.  No telling how many more she’s had since then.  Well, I best stop here.  So many more details but we move on.  It was about the weirdest trial ever for me.

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The Scary Arson Trial Addendum

Sometimes I think everyone of you out there went to law school we have so many of them in this country.  We have more lawyers per capita than any place else on earth.   Either we didn’t heed Shakespeare’s advice very well or we just love telling stories and like a captive audience in the courtroom.  Like I saw we had about 1 lawyer for every 235 folks.  In England for example it is closer to one in a thousand per capita.   So for those few who didn’t attend law school I thought you might enjoy a little taste of the hidden stories that sometimes occur after the headlines have faded from the front page. After those sensational criminal trials there is often more to the tale and future actions that revive those old memories and terrors of the original crime.   

When I was a young lawyer I was a jack of all trades lawyer.  If you needed a lawyer I was your guy whether it was a criminal matter, divorce or corporate formation.   That was not unusual at that time.  There weren’t all that many lawyers who specialized in areas of the law.   There were specialist in patents, tax, criminal and securities law but that was really about it.  There were a few in handled plaintiff’s cases for personal injuries but not all that many then.  We all would have a niche but lots of lawyers were generalists, that would do it all–the paperwork practice like drafting wills and trust and also do trial work for disputes.   Some of the finest and best lawyers I ever knew fell into these category.  It has a proud tradition, Lincoln, Jefferson, Burr, and Adams were in these category to name only a few.

So I was up to accepting any type of case to try and earn my keep and pay for the kids’ dinner the next night.  There had been a rather sensational criminal trial a few years before involving arson, threats, incest , and attempted murder against a prominent docotor in our town.  He was an ENT.  He had been molesting his own daughters for several years.  After he was exposed by his wife and she was seeking a divorce and he was out on bail pending the trial for incest and child molestation he firebombed the home of the attorney representing her in the divorce proceeding.  Fortunately he was a better doctor than an arsonist and the attempt failed.  But it was an attempt to kill everyone in that house.  He had also attempted to shoot his wife by firing shots through the door of their house.  The wife’s attorney and the victim of the failed arson and murder attempt by coincidence was now working at the same small law firm as me.   At his trial the doctor pleaded not guilty by reason of insanity and he won.  Of course that meant he was committed to the State hospital for the criminally insane for an indefinite term.  He was to be held prisoner until he recovered his sanity.   That is the way it works.  In the movies they always portray criminals getting off by pleading insanity but that is temporary insanity.  That is where you were insane only at the time of the crime but now have regained your wits.  That is a tough one to pull off and is very rare indeed but noteworthy and I guess that is why Hollywood always uses that type scenario.   But in the real world a successful plea of insanity, temporary or otherwise usually results in a commitment to prison for the insane.

This had all occurred several years before when I was just getting out of high school.  Now some 5 or 6 years later I was practicing and a judge appointed me to represent this doctor in his bid to be released from the mental prison.   In an effort to generate income and build my practice I had thrown my hat into the ring of lawyers who would take those appointments.  We were paid the grand sum of $15 an hour plus expenses.  Not a king’s ransom even then I assure you.  But I didn’t want to say no to the judge.  I didn’t know anything about the case then other than very vague memories of it from news reports.  My fellow associate who had represented the wife filled me in with lots of gory details and warned me how dangerous he was.  I learned that he had threatened many other people including the prosecutor and judge at his original trial.  He was suspected to have cased their homes but he was never tried for anything regarding that.  Also a friend of mine from law school was with the DA’s office then  and he was assigned this case to oppose the release.  He gave me even more details including the abuse of the daughters that was more than just sexual in nature.  By this time I would rather not have had the damn case but I had already told the judge yes and I couldn’t appear wimpy or picky about the cases he might give me.   I needed the business and I suppose I was just a bit stubborn about it–even a villain has a right to counsel and all that high falutin stuff.   

I went to visit him in prison.  It was quite a drive.  There was only one such facility in those days for those kinds of prisoners.  The psychiatrist on staff had recommended that he be released that is why he was able to petition the court in the first place.  The psychiatrist gave me a bunch of background and his medical opinion.   He was not impressive as a person or doctor.   I am sure that some physicians that work in those places are altruistic and truly care about their work and the patients; however, I fear many are there becasue they weren’t good enough to find a spot somewhere else.  I think this fellow fell into the latter group.   I finally met my man.   He was a small impish looking guy.  Rather quiet spoken.  I saw no need to go back over the details of his prior crimes other than to explore with him his ability to respond to the questions and barbs from the prosecutor (my friend who had warned me about taking this case).  I knew they would be tough on him.   The State was vehemently opposed to his release as were ther ex wife, his daughters and even  my fellow associate where I worked.   He talked lucidly and was friendly enough but there was something just “off” about him.  Mostly I didn’t like it that he wouldn’t look you in the eye or when he did it appeared to be a vacant stare.  So we reviewed the case and the prior problems without going into the gory details.  After all, those facts had already been proven. 
The issue now was only whether or not he was sane and a danger to anyone.   I warned him pointedly that his demeanor on the stand would be critical.  We spent a lot of time on that topic.  The bad things that happened would be reviewed and I advised he should acknowledge them without trying to justify or rationalize any of his prior actions.   I met with him several times before the trial.  It was a jury trial at the insistence of the DA.  In most cases like this it was tried only to the judge and often the DA would even agree with the recommendation of the doctors at the facility.  But not this one. 

So, trial arrives.  We had the burden of proof so we went first.  That is always the way it is in any court proceeding, whoever has the burden of proof is the “plaintiff” if you will.  I started with the psychiatrist and he did ok.  His testimony was dull and lifeless but at least he said the right words.  He was not persuasive at all.  On cross examination he was defensive about his diagnosis and prognosis rather than being firm in his convitions about the mental health of my man.  Then my man was there on the stand.  He did alright under my direct examination.  Unfortunately, he tried to “play” to the jury too much.  He had watched too many TV trials or Perry Mason.  He was emoting rather than telling his life story.  He thought he was delivering the Hamlet soliloquy.   On cross he was terrible.  He tried to downplay his actions against the others he threatened and firebombed.  He indicated the firebombing was merely a prank because he was mad about the terms of the divorce proceeding.  Bad move.  He gave almost no response to questions about the abuse of his daughters.  He did everything I told him not to do.   Even  though the issue was his current sanity the grossness of his crimes hung over the courtroom like a pall.  The State called their own witnesses. Their psychiatrist testified my guy was still loony and a real threat and danger to society.   He didn’t attack the other doctor which was the smart way to handle it but gave his own analysis.   My guy was fidgeting and uttering a few oaths under his breath which the jury could hear.   The daughters were called to recount the events with their father.  They didn’t have to give details but they said enough that the jury got the picture of what was happening to them by their own father when they were teens.   I crossed the State’s doctor but only to try and show their could be a difference of opinion and have him admit that our psychiatrist was fully qualified and competent and dealt with these type of cases on a daily basis and that he had even more experience than him.   I chose not to cross the daughters.  That was a loser.  They still hated their dad, had been abused.  What could I possibly ask that would do my guy any good?  The jury retired. We had much better juries in those days before political correctness and diversity-itis took a paramount position over getting the best jurors you could.   They found my guy was not ready for release, that he was still insane  and that he had to return to the hospital for the mentally insane. My guy immediately made vague threats about the unfairness of the trial and my presentation.  If I had done it right he would have been set free was his position and he wanted to have my ethics and legal abilities reviewed.   Alas, so turns the world.  All for a few hundred dollar fee.  He did go back and remained there for many more years.  Upon his release I was warned by my frend at the DA’s office to keep an eye out.  I talked to a few of the jurors after the case and I think most of them really believed he was sane but that his crimes were so awful that he deserved more time in prison.  That would have been the wrong thing to do because his sanity was the only issue to be decided.  But juries have a way sometimes of seeking justice and not merely adhering to the seemingly artificial dictates of the law.  All and all, that probably is not a bad thing.  I never mentioned anything to the family about his threats.  No point in making them nervous but I did stay alert.  Nothing ever happened and I never saw or heard about him again. 

For those who might think my comment about the quality of jurors harkens back to some bad old days, I would point out that then the rolls for juries came from the poll tax roll or property rolls in the county.  You got a better class of people, regardlesss of ethnic origin or any other factor.  They were more responsible citizens.  Today they take them from voter rolls and the standard jury is not of the same caliber.  I would mention that I had two black defendants acquited by all white juries during those days.   They were monolithic rednecks.  They would work the dcase and the evidence.  Sadly today I fear too many juries simply go with the sympathjy or lack of it with a defendant to determine guilt

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The Right Gets It Right Despite Liberal Outcry

How many times do we have a “trial of the century”?  It seems at least once every decade some sensational trial comes along that the media immediately labels that way.  There was the Leopold and Loeb trial for murder in the twenties where they were tried for an especially gory and cruel murder.  They picked their victim at random and literally killed for the sport of it.  Clarence Darrow saved their worthless skins from execution.  Then of course there was OJ.  I can’t believe that one even made the headlines but we seem to dev0ur “popcorn” entertainment and that qualified I suppose.   The court martial of Billy Mitchell was a big deal to some and the trial of the Lindberg kidnapper was the sensation of the papers during the late thirties.  The Rosenbergs treason trial and subsequent execution sure ranked up there high on the media ratings.  The Left loved them and tried to convince everyone they were innocent as the driven snow.  That was not true as ultimately proved after the opening up of the Soviet records after the fall of the USSR.  Even their son admits they were traitors.  There are others of course that were nominated for the sobriquet of the trial of the century.  You may recall your own favorite from your memory box.  One of those in the running was the conviction of Alger Hiss.  The story involves spying, politics, trials and the conflict between left and right over the dangers of socialism and totalitarian regimes.

Alger Hiss was a classic East Coast elite.  He was educated at Johns Hopkins and Harvard.  He joined the Roosevelt Administration in the ’30’s and was very active in a number of government agencies or departments within the State Department.  He even attended the fateful and important Yalta Conference with Joe Stalin, Roosevelt and Churchill.  He was by all accounts and from the old newsreels, sauve, urbane, handsome and trim.  Unfortunately, he had been  a secret agent working for the Soviet Union since the ’30’s.  He was part of a communist cell called the Ware group.  Another member of that group was Whittaker Chambers.  He was a journalist and had been an active member of the Ware group for years but finally broke with the communist as he found their methods and dreams evil.  The Ware group had spies in the Agricultural Adjustment Administration, a New Deal agency to regulate farming; the National Recovery Agency (which the Supreme Court found to be unconstitutional much to the fury of Roosevelt); the Office of Price Administration; the Treasury, the National Labor Relations Board; and even the Farm SecurityAdministration and the State Department. Hiss nd a fellow named Wadleigh were at the State Department.   For years they passed along very sensitive documents to Chambers for him to copy and forward along the spy network to the Soviets.

Chambers was the opposite of Hiss–he was pudgy, rumpled and not socially smooth.   But he had a change of heart about the communists and felt compelled to expose the ring.  Chambers went public with his accusations and Hiss denied everything, calling Chambers a liar and traitor.  The liberal media went nuts.  They rushed to the defense of one of their own.  They vilified Chambers and praised Hiss.  They accused the right of fomenting fear and fear mongering against the Soviets and their fellow travelers in the US.  Here Richard Nixon entered the scene and was truly determined to ferret out the truth.  He was convinced that we did indeed have communist sympathizers in our government and working to undermine the USA.  At the beginning it was a “he said, she said” dispute.  Chambers claiming the treason of Hiss and Hiss standing by his denials.  Likely, Hiss would have prevailed if hard evidence hadn’t emerged.   Chambers had some undeveloped film of secret documents given to him by Hiss for transmission to the Soviets.  They contained secret documents from the State Department and the Navy.   Hiss and his wife had made copies of them on typewriter.  The film had been hidden by  Chambers in a hollowed out pumpkin on his farm.  Nixom pursued the matter and the film was found where Chambers said it would be.  Even then many on the Left still defended Hiss saying they were just a plant.  But the typewriter used by Hiss to cope the documents put to rest any denial that he copied them.   The statute of limitations for treason had expired but Hiss’s denials before the HUAC were the basis for his later trial for perjury.  (HUAC was the House UnAmerican Activities Committee)  Hiss had even tried to claim he never owned the typewriter but the man he gave it to later disputed that allegation.  Nixon was the lead questioner of Hiss before the Committee.  Nixon got lots of publicity for his actions and correctly so.  Many were too intimidated by the press to pursue the matter.  But Nixon smelled the truth and sized up his man-Chambers_correctly.  That launched his political career onto the national scene.

It is amazing that the Left continued to defend Hiss even after his conviction.  His release was duly noted by them and he was praised again as a “victim” of the horrible McCarthy era.  After the fall of the USSR the documents clearly revealed that Hiss had been a spy indeed for years for the Soviets and had passed along numerous secret documents to them.  He had been close with Henry Wallace a real left winger and Vice-President of Roosevelt.  An earlier death by Roosevelt might well have seen Hiss move up even higher at the State Department.  He was a traitor.  Nixon was right.  Chambers for all his rough edges and gauchness was telling the truth all along.   Even when the truth couldn’t be denied any longer the liberal media reported the exposures of the truth on the back pages.  Were his two trials for perjury the “trial of the century”, I doubt it.  But there is a lesson there for those who care to learn or think.

Don’t believe what you hear from Washington that these huge deficits will have to be paid by our children and grandchilren.   The due date on those debts will be much sooner than that.  WE will  have to worry about dealing with that debt long before our children are old enough to carry the burden.  It is a crushing burden indeed and not everyone in the country is pulling equally on the oars.

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Watch Out for the Fall

We have been taught that pride goes before a great fall.  Also that don’t leap before you look.  I would add too that being a horse’s behind can motivate an otherwise indifferent foe to extraordinary heights of fighting spirit.  Those lessons have real application to our daily lives.  There are more than mere adages they can be useful guideposts for your plans and how you deal with folks.

I recall many years ago when a client came to me and my partner because he had been sued by a bank over a car loan.  It was a fancy car and our guy had been living beyond his means.  The suit was filed and in fact a trial date had been set.  We immediately filed an answer to the suit so there would be no default.  This was like on a Thursday afternoon.  The trial was scheduled for the next Monday morning in San Antonio.  Not a convenient location especially on such short notice.  Under the circumstances it is usually customary for an attorney representing the plaintiff to agree to a continuance of the trial for a little bit to allow the defendant’s counsel to get up to speed.  Our fellow had a defense on the guarantee he had signed for the car loan to his company.  It wasn’t a very good defense but at least it was something.  We called the opposing counsel and he was a real jerk.   He said if we wanted a continuance we would have to present it to the court on Monday.  He wouldn’t agree to anything.   He knew of course that meant we would have to make a trip to San Antonio just for the motion.  That would run up costs even when we won the motion.  It was very likely the Court would grant the motion since we had only a few days notice of the trial setting but it was only a $10,000.00 or so lawsuit and costs would overwhelm the efficacy of winning the motion.  We were in a real bind.  He was adamant and very unpleasant about it to boot, downright rude.   So we got with the client and pulled an all nighter and worked on Saturday.  We got as ready for the trial as we were ever going to be.  It wasn’t a complicated lawsuit and we only had the one possible defense on the paperwork supporting the guarantee.   Our opponent no doubt spent the weekend relaxing and feelling quite proud of himself for showing how tough he was.

Well, we arrived at the Courthouse on Monday ready for trial.  Our opponent was under the impression we were going to pursue the motion for continuance.  But when the Court called our case and asked how the parties announced, the jerk naturally said he was ready for trial and anticipated us submitting our motion to continue.  However, we did not submit the motion but announced we were ready for trial.  He was taken back and then  asked the Court to continue the case.   We successfully defeated that request since we were from out of town and the Court knew we had gone to trouble and expense just to get there and after all, the jerk had just announced he was ready for trial only moments before.   So we marched of to the Courtroom for the actual trial after the docket call.  He asked for an immediate recess so he could get his witnessess there.  He got that but only for an hour.  He approached us about working out a deal or compromise but hell after all his rudeness we weren’t interested and let him know we were only interested in having the trial and catching our plane home.  We waived the jury so the case would go to the Court and could be concluded in one day.  His witness from the bank finally arrived and the Court started the trial.  Our young legal paladin had miscalculated in so many respects. It was obvious  from the beginning that he had never tried a case in his life.  He was a “paperwork” lawyer and was used to getting default judgments against debtors without a fight.  He had made the old mistake of underestimating his opponent.  In fact he was so raw and inexperienced that he couldn’t even introduce into evidence the docments that supported the loan.  He kept trying but I objected everytime because he had not laid the predicate to introduce the document.  All document have to be proved up in court, they have to be authenicated and there are rules about how you do that and sometimes copies aren’t good enough and you have to trace the origin of the document and the signatures.  He was pathetic.   He tried and failed to introduce the original note for the car, the guarantee, the payment history on the loan and even the notice of default.  He was so bad that I didn’t even cross examine the witness because nothing had been proved by his testimony other than he worked at the bank and knew our client.  Everything else that was offered had been rejected by the Court on my objection.

The dimwit was beside himself and just rested his case.  Since nothing had been proven we moved for directed verdict and it was granted by the C0urt.   For those not up on trial procedure that is like hitting the proverbial home run.  His clock was cleaned and not only did he lose, his client was furious with him.   We won, our fellow owed nothing to the bank. 

I relate this story only has a warning about hubris and not planning ahead, underestimating your foe and not embarking on something you are not prepared to complete and not knowledgeable  about.   This guy did not belong in a courtroom.   I have always felt particularly good about that win.  He truly got exactly what he deserved.  We didn’t make  anything on the case because the fees and costs couldn’t be justified for the amount of the dispute.  But the victory was its own reward that time.  I had only been practicing a couple of years at that point and it was a learning lesson for me that I took to heart during the rest of my career.

How did they get those huge lintel stones on the top of the supporting stones at Stonehenge?  I know the latest theory is that they built large earthern ramps to pull them up and into place.  But even if that is correct can you imagine the manpower that would have required.  Those stones weighs tons each.  Pulling and shoving them up such a ramp would have been painstaking at best.

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Dumb Criminals

Every now and then you will read one of those short little blurbs in the paper about something really stupid that a criminal did that lead to his arrest, like falling asleep during his burglary or getting caught in a window that was too small for him to sneak through.   Those things really do happen.   I recall one particular case I had when a very young lawyer where a fellow committed a crime that was off the charts on the stupidity factor.

As a young lawyer I had a family to feed and was willing to take just about any case or client that came my way.  I had signed up to be a court appointed lawyer for defendants that couldn’t afford their own lawyer.  We were paid the princely sum of $15 dollars an hour for our work.  Even in the late ’60’s that was not considered big bucks I assure you.   But babies were at home and wanted to be fed on a regular basis and more were on the way.   So one day I was called to defend a guy on a charge of armed robbery.   I checked his “beef” sheet which was a history of his arrests and convictions.  It was mostly pretty petty stuff and DWI’s.  Nothing of a violent nature there but he wasn’t a pillar of society by any means.   I got the basic story from the DA who said he robbed a cab driver with a knife and had been ID’d by the driver and others.   But there was no confession so there might be some hope.  I went to interview my guy.   His version of what happened was fairly vague.  He wasn’t forthcoming and stated the cab driver gave him some money because he felt sorry for my guy.  

I went back to the DA to get some more facts and check the police report.  The facts were that dum dum had gone to a local bar for a night out on the town.  He was still on parole and was not supposed to be in a bar.   He was dressed that night in a white ten gallon cowboy hat and white pants that were tucked inside his red cowboy boots.  Wait, it gets better, he had a white cowboy shirt with sequins and to top it all off he was wearing a scarf around his neck, red.  It wasn’t one of those small ones but very long and reached down to his waist.  He had gone to the bar and ordered several drinks.  Then he asked the bartender to call a cab for him after spending a couple of hours there drinking and generally making a nuisance of himself.    You might say he stood out in any crowd.  Forget his obnoxious behavoir, I many people could miss someone dressed like that.  Even in a Dallas that was pretty unusual attire.  He had been telling the bartender his life story and tale of woe.  Well, the bartender did call a cab for him.

When the cab came he got in and gave an address but as soon as they started up he pulled a knife on the cab driver and demanded all his money.  The cab driver complied.  As soon as he got the money, he told the driver to stop and he got out and started walking.  Even in those ancient days the cabs had two way radios so the driver called in to  dispatch and reported what happened and asked for police help.  He did this while watching my guy amble down the street like it was the Easter Day Parade.  The call was made to the police and sure enough there was a squad car in the neighborhood and it arrived before my guy had gone more than a block.   He wasn’t hard to find.  I mean how many people were walking down the street with white pants, a sequined white cowboy shirt, ten gallon white hat and red cowboys boots and red scarf!  He still had the knife and the cash.

When I confronted my guy with the complete story he insisted his original version was correct.  He was just showing off his knife to the driver he said and after the driver heard about how bad his life was, the driver insisted on giving him some money to help him out.  There was no robbery, merely a misinterpretation of the facts by the villainous prosecuter according to my guy.  Since he already had two felonies he demanded his right to a trial and wouldn’t consider a plea.  Three convictions carried pretty stiff manadory sentences.  So,,,,,I went to trial.  My only witness was my defendant.   The prosecution called the bartender, the driver and the cops who arrested him within minutes of leaving the cab.  They introduced the knife the cash and the red scarf and boots.    They had mercy or a sense of humor and didn’t introduce the pants and shirt.

Knock me over with a feather the jury believed the prosecution’s case.  They didn’t believe my guy’s version of the gift from the driver and the story of only showing him the knife because he thought the driver would be interested in seeing it.

How in the name of heaven he thought that would sell is beyond me to this day, but I guess he figured he had nothing to lose which was pretty close to accurate.  Maybe one of the jurors would be feeble minded or like wild cowboy outfits.    So, a suggestion, the next time you plan a major crime be sure to at least dress discreetly for the event.   Definitely don’t wear red scarves or boots, people tend to notice those things.   You might want a better escape plan than my guy also.

I have always felt that  Sept. 1st should be New Year’s.  Things change so much at that time–hunting season starts, Football starts, the kids begin school, the “social season” is just around the corner and the weather begins to soften from the oppressive heat of summer.  Think about it.  On January 1st nothing really changes.  The kids are still in school and have been, the weather is the same before and after and there are no new major events on the way.  All the new stuff starts in September not January.   It is an arbitrary designation anyway so why not make it fit our “rhythm” of life.

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