Wednesday, August 12, 2015

Trial Phase 1 Is Done

The evidence is in, now all that's left is to draft up a brief of proposed findings of fact and conclusions of law. While that brief won't win the case for you, you can darn well lose it at this stage. So I have much more work ahead of me.

The case was a real property ownership dispute regarding a strip of land that simply wouldn't be settled due to a variety of factors, namely the other side demanding a ridiculous amount of money to formalize an easement or transfer the property, and their refusal to do some very needed things. No, you can't get Malibu-level real estate prices for a strip of land in Pontiac, Michigan, who knew?

Well, everyone but the other side apparently.

So with mediation a failure due to their intransigence, it was off to trial we went.

Trial began promptly Monday morning.

First we had to deal with a subpoena the opposing side dropped on my clients at 3 pm on Thursday. It was really quite reasonable - only asking for 18 years of business records, tax returns and related items to be produced by Monday at 8:30 am.

I had filed a motion to quash the subpoena on Friday to be heard before the trial. In short, I argued that discovery had closed in the case in September 2014 so this was a tad untimely. It was also harassing to demand our side retrieve and produce 18 years of documents at the drop of a hat. The judge agreed so point one went to me.

Since I represented the Plaintiff I went first and began calling witnesses.

We drew an objection to the admission of a mortgage survey document dated 1983 that showed the land in question that was quite favorable for us.

Defendant's attorney argued it was hearsay and could not be admitted because it was an out-of-court statement and the surveyor in question had died in early 2013 before the case even began, and there was no one to authenticate the document.

No so fast sez I. I point out the numerous exceptions to the hearsay rule that applied to the document including the rule regarding admissibility of ancient documents. This exception allows ancient documents, namely those over 20 years old, so ancient is a relative term, are excepted from the hearsay rule. I lay a foundation that the docuemnt was ordered by the prior owners who were present to testify and transferred at sale in 1998 to the present owners. I also point out a few other pertinent exceptions. The judge agrees with me and ocerules the objectiona nd admits it into evidence. Point two to me.

Overall it goes well until one of my clients on the stand under cross exam starts answering the Defenese counsel and admitting to details and events that had occurred that they had neglected to inform me existed prior to trial. This includes an act they did in 2014 quite some time after they had retained me (after switching attorneys) yet had neglected to mention that had done it.

A quick note to you dear reader. Should you find yourself in need of an attorney whether for a matter criminal or civil, it behooves you to inform them of all facts and events regarding the scenario that you are dealing with. Not only will your attorney be upset with you when they are surprised at trial with fun new facts coming from your mouth, but your case will be badly weakened if we don't know these facts and are ready to explain or otherwise deal with them. Do not worry if you think the facts are embarrassing to you or put you in a bad light. Your attorney must know them in order to represent you and in legal terms much of what you may think embarrassing or bad isn't. However, having it slip out for the first time at trial is both embarrassing and paints you in a bad light and can lose your case for you.

Think of your attorney as your legal doctor - no symptom or fact, no matter how slight or unimportant that you may think it is, should go untold to us so we can properly represent you and prevent the malady from treating you when had we been told about it, we would have done a different treatment and likely been able to win your case.

In short, at least one of my arguments, which had been damn solid up until trial, went on life support after that.

Another one was badly weakened and a third is hanging in there.

I now give it a much less rosy prediction as to a successful outcome due to these lovely surprises.

Some witnesses were great, some not so great, but all of mine were certainly honest which sometimes produced less than perfect testimony but you have to deal with the facts as they are, not how you might wish them to be which is how it ought to be.

The defense only called one witness who was pretty clearly bending some facts and sure seemed to be making them up and contradicting not just my clients but all the other witnesses. This will prove helpful. I also caught her in a statement she had made that X would not happen when she actually had a set of pictures, complete with her handwriting on the back, showing X happening. I did rather enjoy that.

The judge handling the case did so with grace, civility, focus, and definite courtroom control. You knew that she had read the trial briefs, paid attention throughout the trial, asked good questions of the witnesses, and made fair rulings throughout. You can't ask for better than that.

So, after tons of trial preparation, dealing with objections from opposing counsel, hyper-focus and attention during witness testimony, and dealing with fun surprises during the trial, I'm pretty darn wiped.

Now on to the Findings of Fact and Conclusions of law.

3 comments:

JoeMama said...

Property in Michigan can approach California prices when riparian rights are involved.

My parents (in their late 80s) are being jacked around by an attorney who purchased the seed lot in a parcel that was later subdivided. The deed survey language defines the lots from the centerline of the road X feet east. At that time, those lots went to the water line. In the last 65 years, the road bed was moved 50 feet to the west, fill was added that moved the water line east, and a channel was opened up that lowered the lake level.

The attorney is claiming ownership of all of the beaches and offering to sell "his" beaches back to the owners.

Not every surveyor is excellent. Some took shortcuts. Some were sloppy. Some took inaccurate notes. Some drank their lunch and the quality of their work was notably worse in the afternoon. We now have GPS that is accurate to the inch....Many, many people are quite surprised to find out the exact location of their lot lines. Some have even been known to "correct" the stakes in the dark-of-night.

Property law can be very ugly. I know that I am extremely angry about this low-life screwing with my elderly parents.

Aaron said...

Joemama: Yes indeed, but the property in my case is the very definition of non-riparian. Think gravel driveway.

What that attorney is doing is quite annoying and he's going to have quite a few issues. I bet there's a quiet title action against him in the future to yank the beaches back to the owners that have controlled them and paid taxes on them for over 15 years.

The surveys in our case were pretty uneventful and two separate surveyors came to the same conclusion regarding the lot lines. The fun is that everyone was off the actual lot lines and had been for well nigh 50 years, which led to the litigation.

Expatriate Owl said...

I had a client whose ex-employer we were suing. Turns out that my client had gained employment there with the aid of a resume containing some, shall we say, very tall tales about his past experience and employment. It caused him and me a modicum of embarrassment at an administrative hearing.

Fortunately, the discovery process yielded a very damning document, signed by a high-ranking official of the company, which counsel for the company wisely determined should not pass in front of the eyes of the judge or the jury. We were able to get a reasonably respectable settlement, though not nearly as much as we would have gotten had my client somewhat reined in the extent of the fiction in his resume.

I really, really, wish that I could describe the smoking-gun document that facilitated settlement. It is a real doozy! And my ex-client would be all too happy to have the world see the document.

But the settlement agreement contains a gag clause, by which both my ex-client and I am bound. What a shame!