We trailed, of course, but we finally got a courtroom. Now that it's over, I can talk a bit more about the case. It was a pretty small case. Some people think that smaller cases are easier cases. I think the opposite is true. Small cases are harder to try. You can't afford to turn over every stone and gather every fact in small cases, because you'd spend more than the case is worth. But small cases are fun because they help you sharpen your legal skills by forcing you to try a case by the seat of your pants.
The case involved a verbal contract to split the cost of a boundary wall between two commercial buildings. My client built the wall. The bad guy agreed to pay for half, but reneged. There was a bit more than $18,000 at issue. Neither side was going to recover attorney's fees.
Before trial, the only discovery we conducted was a two-hour deposition with document demands. We also visited the site and took a bunch of photos of the wall. The defense took no discovery, and I doubt that the lawyer ever actually looked at the wall.
As we were waiting for our trial assignment, I ran into one of my friends from college, who is now a prosecutor. He asked what I was in court for, and I told him it was a "limited civil" case involving a verbal contract. "It's a 'he said, she said' sort of thing," I told him.
"Oh, God!" He replied. "What a nightmare. Well, good luck with that." My client heard him. A nightmare? How could that be? We were telling the truth. How can we lose?
Borrowing a phrase from "A Few Good Men" (no, not that phrase) I reminded my client that trials are not about what we know. They are about what we can prove. And although verbal contracts are every bit as enforceable as written contracts, they are much harder to prove. Over lunch, we talked more about the difference between the truth and what can be proven. Frustrated, my client said, as politely as possible, that he really needed me to "work some magic" or something, and expose the other guy as a liar.
To make a long story short less long, the trial evidence consisted of my client telling his story about the conversations in which they discussed what kind of wall to put up, what it would cost, and how they would split that cost; my client explaining what was shown in all the photos; his wife testifying that the deadbeat had offered to pay $2,500 as a "down payment" that never was paid; and the deadbeat denying that any of it happened, even though some of the documents didn't seem to match all of the details in his long, grand explanation for how the wall came to be built at my client's sole expense.
The corroborating evidence supported my client's version of events. Among other things, there were several expensive features in the wall that cost my client a bunch of extra money, and which suited only the needs of the neighbor; there were a few site plans submitted to the city, in which the neighbor set forth that the wall would be going in as part of his overall construction plan; and there was the neighbor's vehement denial that he had offered to share in the cost of construction, because the wall's expense "was not in his budget. Period." But then, afterwards, he extended parts of the wall across his front facade and even built a matching masonry garbage enclosure.
When I pointed some of these apparent inconsistencies and odd coincidences to the bad guy on cross-examination, he bristled, argued, avoided answering about a third of the questions and tried to play some oneupmanship games with me. The guy contradicted his deposition testimony three times, each on relatively unimportant facts, but they were the sort of details that a liar can get mixed up, but a truthful man either gets right or can't remember. He volunteered some information that afforded me the chance to read an arrogant quote from his deposition in which the bad guy said that when he got my client's written demand for half of the cost of the wall, he didn't respond to it at all, except that he "snickered at it." That seemed to annoy the judge a bit. Then, about three quarters of the way through my cross-examination, the witness flatly refused to answer my question, and instead posed a sneering question to me:
"Don't you think it's a much better practice for people to put their agreements in writing?"
As badly as I wanted to say "Had he known how dishonorable you were, I'm sure he would have in this case," I resisted the temptation, and instead told him that I wasn't under oath, and it wasn't my turn to answer questions. As soon as I finished that remark, the judge exploded.
He told the witness that he was tired of his attitude. It was disrespectful to the lawyers and disrespectful to the court. And, to paraphrase, the judge went on to say same something along the lines of this:
You've avoided answering the questions all afternoon. Your answers have been evasive or non-responsive. You've been smug and obnoxious from the moment you took the witness stand, and now you seem to think you have the right to cross-examine the lawyers. You don't. Keep in mind, sir, that part of my job in evaluating the credibility of the witnesses is to consider their demeanor while testifying. And your demeanor has been awful. You had better change your attitude if you have any hope of rehabilitating yourself with this court.
The guy was shocked. He thought he had been scoring points by being a schlickmeister. It had never occurred to him that judges prefer sincere witnesses who testify with straightforward honesty. He then apologized with all the sincerity of a schoolboy busted for fighting with his hated rival. The judge accepted his apology, then looked back toward me and said "[Lex], you may continue."
I looked down at my notes and briefly pondered how truly critical my last 5 or 6 questions were. It was some good stuff. But I've seen lawyers snatch defeat from the jaws of victory by continuing to talk even after they had won. I don't ever want to be one of those guys. It was clear that I had won the case. And it was equally clear that those questions, as powerful as they may have been, weren't going to score any more victories than I already had. So I decided to shut the hell up.
Though I didn't mean to, I smiled (as discreetly as possible), and then I spread my hands apart and said "Your honor, that was actually my last question."
The judge seemed pleased. He asked the other lawyer if he had anything else to ask, and remarkably, he did not, so I told the judge we were ready to rest our case just as soon as we moved our exhibits into evidence. The judge ordered all of the exhibits we used into evidence, and we made our closing arguments immediately, without even taking a break. The judge told us he would give us a decision in five minutes.
As we waited outside, my client asked me what I thought our chances were. "We won." I told him. "The judge is just figuring out how much to give you." Five minutes later, the judge gave us every dime we had asked for, plus interest.
You know the expression "Money doesn't buy happiness?" It's true. I've made money, and don't get me wrong, it's great. But winning that trial, a "he said, she said," by the seat of my pants, on a budget of next-to-nothing, was just as satisfying as my last seven-figure settlement. Maybe even more.
Now, on to the next case.
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