To Be Able To Do A Little “Horse Trading” When Necessary

Some years ago, defense counsel subpoenaed the records of the plaintiff’s psychologist in a personal injury case. Plaintiff’s attorney realized what was in the records and brought a motion to quash the subpoena and to prevent defense counsel from using the word “addict” at trial. The quid pro quo was that plaintiff would not object to the subpoenas for the plaintiff’s medical records from the other health care practitioners she had consulted. The records of plaintiff’s primary care physician contained several notes of concern about the quantity of pain pills plaintiff was taking, as well as noting the requests for new prescriptions because the prescription was lost, or the pharmacy refused to fill the last prescription… The records of the plaintiff’s gastroenterologist revealed that the plaintiff told her gastroenterologist everything – that she took three oxycontin in the morning just to get going!

By virtue of those records the defense had the evidence it needed to compel the jury to conclude the plaintiff was an addict – even without the psychologist’s records, and without using the word “addict”. [By the way, one of the side effects of decreasing the quantity of oxycontin is pain – indistinguishable from the pain caused by an injury; except in this case, there was no medical evidence the plaintiff had sustained any injury from the minor impact].

Plaintiff ate dinner at a local fast food restaurant. One of the employees working that evening had a cut on his finger. The Plaintiff complained that she had found a bloody bandage in the hamburger wrapper and got a free dinner. The employees threw out the dinner wrapper – assuming that was the end of the matter. Plaintiff talked to several friends and filed a complaint alleging she had been exposed to AIDS from the bloody bandage. The demand stated in the complaint was for $3 million.

The defendant (fast food restaurant) demurred to the complaint. Since a demurrer is described in the statute as a “trial”, plaintiff served subpoenas on several of the defendant’s employees to appear at the hearing on the demurrer. Counsel for the defendant brought a motion to quash the first three subpoenas; at the hearing on the motion to quash the judge explained that witnesses could not testify at the demurrer hearing. Notwithstanding which plaintiff served another two subpoenas!

At the hearing the plaintiff objected that none of the subpoenaed witnesses had appeared. The demurrer was sustained with leave to amend, but the plaintiff failed to amend; the motion to dismiss was granted and the defendant was awarded his costs. On several occasions after the dismissal, the plaintiff contacted defense counsel to reiterate her demand for $3 million…upon receipt of which she would pay the defendant’s awarded costs.

but perhaps it’s just as well he doesn’t – at least in the case he presented to the jury. Your editor has sat as a juror on two criminal trials…

 The first case involved a series of petty thefts by the defendant employee from the supply room of a government office; the “loot” was stashed in the trunk of an abandoned car in the garage of the same building. The prosecution argued the defendant intended to sell the stuff; the defendant claimed it was to preserve the evidence of the allegations against him. The jury was composed primarily of older, unemployed and retired people on a fixed income. The jury delayed deliberations in order to get the free lunch. After lunch deliberations were quickly concluded: the defendant was determined to be not guilty because it was the opinion of all but one of the jurors that it is okay to steal, especially if it is from the government.

 The second case involved the possession for sale of a controlled substance. The defendant dropped the evidence the moment before his arrest and claimed the drugs were not his – which would be proven by the witness at the scene, a petite young black woman dressed in a pink tracksuit, who was unknown to the defendant. The witness at trial was a tall, heavyset black woman, dressed in a pink track suit. When she stepped down from the witness stand, she embraced the defendant and was overheard agreeing to meet him outside after the trial. The foreman led the jury through a careful and thorough review of all the evidence and weighed the creditability of each of the witnesses; the jurors carefully deliberated and found the defendant guilty.

You had the facts and the law in your favor, and you presented your case brilliantly.  The problem was that the jury did not like your client.

 Maybe your client was perceived as greedy and overreaching; your client was Russian, the defendant was Japanese and the jury was predominately Chinese – with their respective cultural values.

 Or maybe the jury failed to understand that when your client said she wanted to look like the picture of her taken 40 years earlier, she didn’t want the dentist to make her look 19 again, she just wanted to have a full set of teeth - like she had in the picture.

 Or maybe your client was a Christian (and a minister’s wife) and the defendant was an infidel (Sikh) being defended by an unbeliever (Jew) [this comment by the plaintiff stating the reason for her confidence she would win, the facts were unimportant, was overheard by your editor] … notwithstanding which the jury determined your client’s version of events was simply not believable.

The following Tale clearly illustrates the importance of the detail.

 The defendant claimed to have stopped at the stop sign before accelerating through the intersection.  On the far side of, and at least one parked car beyond, the intersection, the plaintiff stepped off the curb between two cars and ran into the street to catch a bus which would stop at the island. The issue was whether the plaintiff ran into, or was struck by, the defendant’s vehicle. The point of impact was on the passenger side of the car, just behind the front fender.

 The decision hung on 4 seconds (according to the expert). If the defendant had not made the stop (a traffic violation) he would have probably arrived at the point of impact approximately 1-2 seconds before the plaintiff stepped off the curb and the plaintiff would have run into his car as the defendant passed him. On the other hand, if the plaintiff had stopped before accelerating through the intersection he would likely have struck the plaintiff – arriving at the point of impact approximately 1-2 seconds after the plaintiff stepped off the curb.

but sometimes you can’t trust your own client! 

 A number of years ago your editor was representing the plaintiff in a dispute over an alleged theft of the plaintiff’s personal property by the defendant. During a break in the plaintiff’s deposition which was being taken in the defendant’s conference room (defense counsel was in-house had his office on the client’s premises) the client took your editor outside for a conference – advising that the conference room was bugged and the attorney would listen in to our conversation.

 In another case, your editor’s client was involved in a contract dispute. The client called your editor to advise he was taking the contract to the opposing party, who was also represented by an attorney, to have him sign it. The client called later that same day to say that the contract was signed. That case eventually resolved… but the client was not satisfied with the result and sued his attorney for professional malpractice, specifically unauthorized contact with a represented party! The defense to the claim rested on your editor’s notes of the client’s calls - advising he had taken the contract to the other party and persuaded him to sign it.

The plaintiffs were injured in a motor vehicle accident and sued the driver of the other vehicle for damages. The plaintiffs’ attorney had been advised by the clients’ son that his parents had returned to Belize (where they lived); he was also advised they did not have a telephone, or postal service, and that the only way to reach them was by a monthly delivery by Federal Express. The son offered to facilitate communications between the attorney and his parents. The discovery requests were sent to the son and after an appropriate delay the verified responses were returned with the clients’ notarized signatures (which the son had advised was required in Belize). Eventually the defendant made a settlement offer which was accepted; the settlement agreement was returned with the clients’ notarized signatures and the settlement check forwarded to the clients – care of the clients’ son.

Some time later the plaintiffs’ attorney came to believe that the clients’ signatures on the discovery responses and the settlement agreement had been forged by the son and the son’s girlfriend. Your editor does not know what prompted the attorney’s concern, nor what the attorney decided to do; when your editor last spoke to the attorney, he was considering whether he should travel to Belize to meet with the clients and possibly have to unravel the settlement or let the proverbial sleeping dog lie…What would you do?

A few years ago a woman came to your editor for help. She had left her husband and relocated to California from Georgia to start a new life; she intended to bring out her two young children when she was settled. After leaving Georgia, her husband filed for divorce, custody of the children, and child support. The client advised she had received notice of the custody hearing and claim for child support with less than 24 hours to travel from California to Georgia to appear – the court entered judgment by default. The client's ex-husband had followed her to California with the children and was seeking an increase in the monthly child support; the increase would have meant he was taking approximately 90% of his ex-wife’s salary!

Your editor consulted attorneys with more experience in family law and was advised to get a copy of the divorce decree from the Georgia court and appeal the order. There was neither the time nor money for that (the case was pro bono and the hearing set for the following week).

Your editor argued in response to the petition that the amount of the claim for child support was exorbitant. It came out at the hearing that the ex-husband, although “able bodied” (as the judge described him) and as ex-Army had received training in transferrable job skills, was not working – and expected his ex-wife to continue to support him through the “child support” payments. It also came out that the children had been taken by child services in California. The grounds for the claim for child support had been effectively removed!

The court not only declined to increase the child support award, but reversed the support award of the Georgia court – not sure the judge had jurisdiction to do that, but she did it anyway!

The defendant had spent the evening at a “crab feed” where he had had a couple of beers with dinner. As the defendant was driving home, he stopped at a controlled intersection not far from where the event had been held. He noticed the plaintiff approaching the intersection from the opposite direction, and changing lanes into the left turn lane. Having the right of way, the defendant proceeded into the intersection. Plaintiff made a left turn in front of the defendant, who braked but did not have time to stop before hitting the plaintiff’s car. At the scene, the defendant was arrested and charged with DUI, as well as responsibility for causing the collision.

 During discovery plaintiff admitted to having seen the defendant stop, and further admitted that he thought he could beat the defendant through the intersection, so he accelerated into the intersection. The defense established that the plaintiff had made an unsafe left turn right in front of the defendant who was already in the intersection and traveling at a safe speed for conditions, and that the defendant’s conduct did not contribute to the occurrence of the accident. Not only was the plaintiff’s claim for punitive damages denied, but the case was “defensed” and the DUI charges were dropped.

In an episode of “Doc Martin” on PBS, Doc Martin observed that a colleague who had specialized saw every complaint in terms of her particular specialty and consequently failed to properly diagnose the complaint of the patient scheduled for surgery.

 Your editor was recently consulted about a rental agreement. The property manager rented a residential unit to new tenants at well below the market rate, and accepted the first month’s rent. The rental agreement was an oral agreement; the written rental agreement was not signed by the property manager or tenant, and further omitted mention of certain terms apparently included in the oral agreement, such as the use of one of the limited parking spaces.

The property owner was advised by a landlord-tenant lawyer that the oral rental agreement was valid and binding, and perhaps under the local landlord-tenant regulations it was. However, the attorney apparently failed to consider (he certainly failed to advise the client) that the Statute of Frauds renders invalid an oral lease of real property, as well as a contract with a duration of more than one year. Nor did he advise the client property owner that she could rescind and cancel the rental agreement on the grounds it was a fraud on the property owner perpetrated by a disgruntled property manager and complicit tenants.

Defendant prevailed at arbitration and attempted to settle the case without resorting to converting the award into a judgment. Plaintiff rejected all settlement efforts and the defendant was forced to bring a motion to confirm the award as a judgment.  Plaintiff filed an objection and delayed the hearing on the motion - using the delay to file for bankruptcy.

Notwithstanding the bankruptcy, an argument could, ethically and in good faith on the facts of the particular case, be made for confirming the award as a judgment. The judge did so (i.e. confirmed the award as a judgment) on the record, but refused to sign the written order confirming the award, and admonished the attorney to not insist on a signed order.

Although the order of judgment was not signed, the ruling granting the motion to convert the award into a judgment was on the record.

The case involved a rear-end collision at the stop light where the freeway exit merged into Cesar Chavez Street. To prove the plaintiff’s claim it was a high speed impact causing serious damage, plaintiff’s attorney called as an expert witness at trial a collision repair specialist to opine that the impact was so severe the undercarriage of the plaintiff’s car was torqued by the impact.

On direct examination the expert gave his name and place of employment; he was shown a photograph of the rear bumper of the plaintiff’s car and described the damage to the undercarriage. 

Cross-examination clarified the fact that the expert who was called at trial was not the expert who was disclosed in plaintiff’s expert disclosure nor the expert who appeared on the plaintiff’s witness list. Further cross-examination revealed that the expert had not seen any photographs other than the one of the rear bumper introduced in to evidence, that the photograph did not show that the undercarriage was torqued and that the expert had not seen the vehicle in question, let alone actually inspected it for damage.