Procrastination (But I Digress)

Thursday, August 16, 2007

I Won

I was the trial attorney last year in a slam dunk case. Although it was a slam dunk, I still diligently put on all of the appropriate evidence and meticulously proved every point--well, ok, I would have liked to have my client testify to put the nail on the coffin so to speak, but she lived out of town and quite frankly it just wasn't necessary. At one point, I was asked if there was any posiblity that we could lose the case. The idea was preposterous--of course we would not lose the case.

The defendant in the case had been the mayor of a local town. Since it was a very small town, I assumed that sometimes small time politics is choosing the person who says yes they'll take the job. I must admit that I never got the connotation that the defendant was somehow a corrupt politician--I afforded her the more pleasant connotation of being a willing fish is a very small pond.

The trial court ruled against me. I had to be pealed off the floor because I was so surprised. Even worse (or ultimately better as the case may be), the statement of decision had a finding of fact that was blatently disproved. I couldn't believe that the judge was so blind to the clear proof that I had presented.

For days, nee months, I doubted my abilities as a litigator, doubted my instincts. My partner insisted that we file an appeal. I resisted mightily because no court of appeals is going to overturn a trial court's findings of fact--its' just not done. Of course here, there was such clear error that I was finally convinced to file an appeal. It was very difficult to write a brief asking the court to overturn, but I thought I did a good job. The responsive brief was a joke. The opposing counsel latched on to the clearly erroneous finding by the court and misstated the procedural history of the case. I had to seriously question whether he had any brain cells. It was difficult to write the reply brief, because how do you nicely say the other guy is completely off their rocker.

So yesterday, we went in for oral arguments. My partner instructed me to repeat the main points, but I resisted. I didn't think that we should be at oral arguments at all, because I had said everything in my brief, but my partner insisted. The justices came onto the bench and admonisted the crowd of attorneys not to repeat what they had in their briefs (ha, I thought, I'm right). So I stood up and opened with a brief overview of the case, intending to only ask if they had any questions. I was halfway into my first sentence, when the lead Justice (there were three), said "You don't have to speak, we'd like to hear from your opponent". When a judge tells you, that you don't have to speak, shut up. I promptly sat down. The opposing attorney got up and basically said that the truth is, someone else was at fault, but had to admit that the record didn't reflect it. One of the Justices ripped into him and said the evidence is pretty overwhelming and if it's not in the record how can it be considered. Then they asked if I had anything to add. Stupid, stupid me couldn't believe that the other attorney had got up and basically lied, so I pointed out that the record correctly reflected that in fact defendant had acted. Again the lead Justice pointed out that I didn't have to make any statement. I can't believe I still opened my mouth--never get emotionally involved--who cares if the other guy wants to lie. Anyway, I don't think that hurt my case--it was pretty obvious: I won. The court of appeals is overturning the findings by the trial court.

The moral of the story, never underestimate overwhelming facts in your favor.

The p.s. to the story is that I mentioned the name of the town that the defendant was the mayor of to a collegue and he said, that city is notorious for corrupt politicians. He said that while someone actually bribing a judge would be unthinkable to him, that would be his first inclination with a politician from that city. Me, I think the Judge was not interested in the case, got bored and fell asleep. I just can't fathom corruption.


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