Trial: Well, That Was Rather Unusual

Had a trial recently, and the outcome is still pending.

The overview:  Defendant Douche-Bag (DDB from here on in) is a handyman that not only conned a 90-year-old with dementia into doing $100k+ in "renovation" work on her condo, for which Adult Protective Services investigates and substantiates a finding of financial abuse - but nothing is done,  He also secretly obtains the deed top her condo under interesting circumstances.  

But wait, it gets better.

DDB also becomes her guardian - at the nomination of Adult Protective Services!, cuts off family and friends from seeing her, and then bilks the guardianship funds as well, including taking over $3,500 outof the account to clean it out after her death. Oh, and he does not tell anyone that she has died for 12 days, until the day before the hearing to remove him as guardian. But he does record the deed he got to the condo the very day she dies.

The deceased's remote family, who are out of state, then sues him for the money and condo that have been stolen when they find out the extent of what has happend.

The renovation work is, shall we say, sub par.

For example the new dining room floor, which we inspect at the condo during discovery:

Yep, it is that bad, it is also wavy and not level.  Click 'em to embiggen and see the suck-age in all its glory. 

Looks like scrap wood from multiple flooring kits with edges that don't even line up. No pattern at all. Other renovations DDB has done look about as bad - like repainting the bathroom wall and not moving the toilet tank while painting it, so there's a toilet-tank outline behind it in the original paint color that is really visible.

Many other renovations DDB charged for aren't even done at all, and it looks like he was making up the proposal quotes after the fact to cover himself after all the checks were written to him - checks he wrote out and either had her sign or forged her signature.

DDB is also representing himself which causes issues - he fails to comply with discovery leading the judge to sanction him, but the judge also gives him a lot of leeway as is often the case.

So we get to trial.

I had a nice opening argument prepared and the judge states no opening arguments, and to call my first witness.

Ah, well.

So,  I begin with the accountant expert I have and we start going over the accounts.

Lots of interesting things in those accounts as we trace funds he's taken and misappropriated for himself including lots of cash withdrawals, uisng her credit card to pay for his insurance and dog vet bills and more.

About 30 minutes in DDB stands up and asks the judge if we can stop so he can get an attorney as it is "more complicated than he thought".

The judge says no as we're in the middle of a trial, but if he can find an attorney to represent him before we re-start at lunch then that's fine.

DDB's mom, who is in the courtroom rushes out at that and I continue with my questioning.

Soon a fellow walks in up to the Defendant's podium and puts his name as Attorney Quickhire (never seen this guy before at court ever) on the record and states he'll be representing the Defendant.

Welcome to the party, pal.

I happily continue my questions, Attorney Quickhire never says a word, and I get more and more damning info out about the issues with the accounts and money being spent and the Judge asks me to pause.

The judge then states Attorney Quickhire has just left the courtroom.

Yep, he stood there for a bit then walked back to the mom, said something and left the courtroom.

Ooops.

Some of  my witnesses overheard him say to the mom that he can't represent him and that wasn't what they had told Attorney Quickhire this matter was about.  

Who knew that DDB's mom would lie too?  Shocker.

Unfortunately, Attorney Quickhire just committed malpractice and is on record representing DDB.  Not good for him at all.

We continue without him, and after luch the judge again notes Attorney Quickhire is not there.  We get through most of my witnesses on the first day.

Start of the second day, no Attorney Quickhire and Judge has DDB confirm Attorney Quickhire is not representing him.

I get through my witnesses.

DDB then represents himself as his only witness and I cross-examine the heck outta him.  I'll say this DDB is a very smooth liar and given the other person present for much of what went on is dead, the lies are a problem even when at times they defy belief.

I do get him to admit he is not licensed and never puled a single permit for all the work he did - including removing a wall that seems to have been load-bearing. Oopsies.

So, I have a damn nice closing prepared and ready to let it rip.

Of course the judge then says he doesn't want closing arguments.

Dammit, it was really good and I was ready to go. Ah, well.

Instead,  the judge wants very detailed briefs going into various aspects of the case as closing arguments, and he wants the financials presented differently in the closing brief to answer some specifics he wants answered.

Overall, feeling pretty good about where it is going, but one can never tell how a judge will rule but he was not impressed with the "work" DDB did at the condo and I had a lot of good evidence showing the deceased had severe enough dementia at the time, but we will see what happens.

So I get to do that now. That will be due late January, and the decision should be released in mid-February.

In short some helpful general advice: 

1. Don't rip off old ladies, you will get caught (now, if you do this in Oakland County you likely won't be criminally prosecuted as our Democrat progressive prosecuting attorney doesn't like going after such financial crimes - apparently they are too complicated and not headline-generating enough to get her interest);

2. Don't try to represent yourself at trial when you do get caught, for you are fun to play with, and will mess up, a lot;

3. Don't wait to the date of trial to try and find an attorney; and most importantly:

4.  If you're an attorney, Don't, for the love of professional responsibility, jump into a case at trial on the day of trial with no clue as to what is going on.  Nothing good will happen.

Attorney Quickhire didn't do himself any favors and may need to let his malpractice insurance carrier know about the mess he just got himself into. If DDB is bright enough to claim he committed malpractice by representing him and then disappearing without even being released by the court from representing DDB.  Really not good.

This was rather an unusual trial in many ways, and the decision isn't in yet.

Playing With Sharks Part 10 - And That Is How You Do That

"To Defeat The Enemy At Trial Without Fighting At Trial Is The Acme of Skill" - Sun Tzu, Esq  (attributed, probably).

Got to the courthouse all prepared and ready to rock.

Client was there, the two pro per parties appeared soon afterward.  Always good to be the first in the courtroom.

Gave the opposing parties a copy of my trial exhibits binder, and they gave me theirs so at least they knew to have that ready.  Many a tree had lost its life for both sides' exhibits. I had 36; Pro Per Plaintiff had 91; and Pro Per Third party Defendant had 24.

The clerk asked if we were ready, and I said we had some preliminary matters to get through before trial but otherwise we were good to go.

Preliminary matter 1:  Needed to get the order entered barring Pro Per plaintiff Spouse, who was Pro per third-party Defendant from testifying to everything she refused to testify to at her deposition.  They had been holding this up with a frivolous objection.

I won that argument handily, as in epic happy-smackdown. No testifying by her on anything she refused to testify to in her deposition. Point one to me.

Then Plaintiff stated his doctor might be available after all by phone at 9:30 or 11:00.  

I stated I had no objection to his doctor being called out of order if necessary to accommodate his schedule. But, I noted Plaintiff's subpoena of his own doctor said live testimony, the Court had ordered all witnesses to be live to give testimony, and I had concerns about being able to effectively cross-examine him if this was going to be by phone.

The Judge noted that was a very good point.  

Point two to me.  Trial Pinata Mode was well and truly getting started.

The judge then offered all sides to meet with his staff attorney to discuss possible settlement. Note that the offer, while stated as an offer, was clearly conveyed as an order.

And so we met with the Judge's attorney separately in the jury room. The attorney, like the judge, is a very smart individual.

I stated my client really didn't want to settle as the medical records all showed Pro Per Plaintiff couldn't prove his damages, that it was highly questionable if he even had any damages.  I also noted he had a key problem as he actually did not have any admissible evidence that there even was the alleged mold at the premises. On top of that, he seemed unable to actually get his experts in to testify.

Judge's attorney asked if I could get my client to pay any money to settle and I stated I didn't think so as the evidence was so strongly against the Pro Per Plaintiff and she's had to pay too much already to defend the case and she was a semi-retired person without buckets of money.  

He noted my demand for attorneys fees against Third Party Plaintiff, if we succeeded and dismissed Pro Plaintiff's claim, was risky.  I agreed as it's somewhat atypical and normally each side pays for their own fees. But, I did have legal grounds to make the argument but it was obviously not a slam dunk and indeed was a reach, but a carefully argued and legally persuasive reach.

He then talked with them.

He then came back and I followed him back to the jury room alone.

"They've agreed to drop their claims completely if you drop going after her for attorney's fees from the case."

And just like that, it was over.

We went on the record and they dismissed with prejudice any claims either of them could have had against my client from the beginning of time to today, and my client dismissed any claim against them from the beginning of time to today.

I had won the trial without even having to go to trial.

Playing With Sharks Part 9 - No, That's Really Not How That Works

Trail in the ongoing case of the pro-per Plaintiff is set for tomorrow and I am busy preparing accordingly as it may in fact actually go tomorrow.

Mr. Pro Per Plaintiff send over two new exhibits this Saturday.

That's a trifle late as discovery ended in June 2022.

Even better, one is an affidavit from his Medical Expert (He has two an internist and an allergist) in lieu of his (the allergist) testifying tomorrow.

That is very much not how this works.

Indeed, the affidavit isn't admissible as evidence as it is hearsay, and if his expert doesn't show up, I daresay he's gonna be sunk as the Internist likely can't testify as an expert as to his alleged allergy that he claims was caused by my client (But, the medical evidence actually says - No, no, it's not).

While he can get his medical records admitted as an exception to the hearsay evidence rule, he can't analyze them as he's not a doctor so this could be much fun.

The second exhibit is a printout from the CDC website regarding mold after hurricanes and floods.  

Since neither hurricanes nor floods were recorded anywhere in the entire state of Michigan, on the alleged day of the incident, I daresay that one is out for that alone, not to mention being, you know, unsupported hearsay of dubious probative value.

The idiot actually asked if I would stipulate to those exhibits.

I was disinclined to acquiesce to his request.

This trial is going to be so much fun.

Well That Sucked

Had a trial today live in Wayne County Circuit Court.  first live appearance down their since Covid started.  Had to wear a mask going into the building and it was rather hot and unpleasant.

Getting there was more than half the fun.

Due to Joe Biden being in town to visit the auto show, the highway exit I normally use to exit the highway and get to the courthouse was closed off.  No notice until I was right at the exit and saw it blocked with police cars.

So I had to navigate a rather roundabout way to the parking structure near the courthouse in rather heavy traffic that also had a really high percentage of police and DHS vehicles of all types around.  Upside, crime in downtown Detroit probably dropped significantly.

So I get there and we start.

Right off, I lose a motion I had filed to dismiss for lack of subject matter jurisdiction, as I point out even if we total all their alleged damages and apply the law, it still doesn't reach the Circuit Court's $25,000.01 floor. 

Plaintiff cunningly argues we can ignore the law and facts that would fix their damages below the limit. and in a bizarro world ignoring the facts of the case, that they even admit to, they could be able to get over the limit if those facts are ignored.

The Court agrees and on to trial we go. It would be one of those trials.

In short, I knew going in that cannot win this trial in the normal sense of the word. 

There's not too many trials where I on the defense side get to say that we admit and stipulate to my clients breaching the contract (that is an uncontested fact), but the clients don't owe all the damages the Plaintiffs claim we do, but do owe some damages.  Plaintiffs refused to settle the case at all.

Clients were residential renters and had economic hardship due to Covid and lost their income.  They were evicted and now Landlord who is a complete dick, is suing for the entire Lease amount. They failed to re-rent the property and instead decided to list it for sale at a high amount and sold it after months of doing not much to sell it.

I argue they failed to mitigate and for at least four of the six months they seek additional damages, as they didn't even list the property at the time. I have the MLS listings(form them in discovery no less) to prove they didn't.

At trial, for the first time ever, they claim they put it up for sale as a FSBO without an agent and placed a sign out front during those 4 months.

I note they never produced any evidence of this in response to my discovery requests pre-trial, and  have no evidence they actually did it, and not even a picture of the sign to introduce as evidence.

The judge rules their claim that they did the FSBO, with no evidence but their testimony that they did it and nothing more, as credible to her, so we get slapped with those months as well.  Not happy about that ruling.

But the judge now wants me to do a brief on whether their choice not to try and rent it for those months at all affects their damages and if it could be considered a failure to mitigate.

Ugh. 

Well, at the very least, I saved my clients $1,000.00 when I get Plaintiff's claim of damages to the premises (there were none, it was a complete BS with a suspicious invoice for work allegedly done 3 months after they left) dismissed due to their not following Michigan law.

Oh yes, even if the damages are fully applied now they are still well under the jurisdictional limit.  Sheesh.

Victory Is Mine

Had the continuation of my trial in Downriver today.

In short, Plaintiffs lied through their teeth, got caught lying through their teeth, and had no evidence of any wrongdoing by my client, a company, because there wasn't any.

In short, the whole case was a scam on their part to try and get my client to pay them money to go away.

Notably, one of the two plaintiffs didn't even testify.  Because she couldn't.

Had she testified, I could have brought in evidence of her prior felony fraud conviction.  

Stupidly, she hadn't told that to her attorney and he learned of it through me when I disclosed all my exhibits, including her fraud conviction, before trial.

Her attorney was really not happy to hear about that from me.

So finished presenting my side of the case today and the judge granted a verdict in my favor of a no cause of action and a dismissal their case with prejudice. 

Plaintiffs were not happy to lose and having their scam fail, and were cursing at us in the parking lot afterwards yelling they hope we all die in a traffic accident.

Not very nice people.

My trial record is still without a loss so far, with one tie due to a jury screw up after a verdict in my favor that led to a retrial that ended in a win for me.

Well That Delay Sucks, AKA When Judges Don't Want To Hear A Case

Had a pretrial in a case in a local district court today.

This case has been going on for a heckuva long time.

Plaintiff filed it in 2019 (on his own without a lawyer, which was his first mistake) as a breach of contract when Defendant, an unlicensed contractor, royally screwed up the renovation of his home after a fire had occurred and botched it and then never completed it.  Defendant also did not have a lawyer and it bounced on through the process, with some major goofs along the way due to neither side having an attorney.

Plaintiff retained me to handle the trial set to be held in May 2020 as he realized he needed an attorney.  

It is now April 2021.

We've already had 4 adjournments:

The first was on June 2020, when Defendant, not being a complete fool, stated he didn't want to do a trial by Zoom when the judge gave him an option to do so.

The Court then reset the trial date for another Zoom hearing for September 2020.

The second delay was when he again refused to do a Zoom trial.  Most judges would have said too bad, but this judge was all for delaying.

The court then set a live in-person hearing for October 2020.

For a third delay, Defendant got out of that at the door to the courthouse by claiming he had been exposed to someone with Covid in the last 14 days.  Trial adjourned yet again.

Date was then set for a live trial on February 24, 2021.

As you might have guessed there was another delay.  The Court then on that day, of its own accord,  delayed it when Defendant got an attorney and instead of having the trial go as scheduled turned it into a pre-trial and then set today for yet  another pre-trial, denying my request to set a new trial date then and there for today.

I'll note we had to spend time preparing before each of these dates, getting the couple witnesses ready to go, and all for nought each time.

So today we show up for pre-trial and the Judge is like 

"Did you settle it?"  I said that we had made a settlement offer but they never responded to it, so can we get a trial date now?

Judge is, yes you can get a trial date - in March 2022.  He suggests we settle the case.  Kinda hard when the defense doesn't respond to settlement offers.

Judge claims the court is all backed up with criminal cases and that's the earliest he will do.

My client hit the roof at that point and justifiably so.   The delays are great for the defendant but justice delayed is sure as heck being justice denied.

Most other judges would have proceeded with the trial back in June 2020 and held it via Zoom and not let it get this delayed out. We're getting close to a year past that and it will be over 3 years since the case was filed before it gets to trial - and this is a simple half-day to at most a 1 day trial.

For whatever reason, he's bending over backwards for the defendant and really refusing to hear this case.

Now My Trial Record is 15-0-1

Well I'm now busily hopping through and back and forth all the different stages of grief over the loss of Matt, but at least one stage, anger, found a valid use.

Yesterday, I had a Zoom trial, and it was a commercial landlord-tenant case, the first commercial landlord-tenant case the 16th District Court has had since Covid.

I'm representing the Landlord against a tenant who has not paid rent and CAM (common area maintenance fees) since even before Covid hit, a tenant that has been busily trying to unilaterally expand its tenancy beyond its space by setting up an outdoor restaurant on the back parking lot when the lease only allows outdoor seating in the front, and is otherwise acting as a pain in the rear to the landlord.

Quick note of advice:  If you as a tenant want any opportunity to settle a case and stay in your premises while not paying rent, then blatantly violating the terms of your lease and blocking a parking lot will not be helpful. Even more valuable advice - texting the landlord the weekend before the trial and calling him a bitch will really not help you get a favorable settlement.  - That's your free legal tip of the day - and it's worth what you paid for it.

So yeah, some anger on behalf of my client was called for and put to good use.

So to trial we go:

Defense counsel came out swinging with Argument #1 demanding a jury trial. Defendant has a cocky grin on his face as this is demanded, as it will delay the trial for at least another month and he'll get away with not paying rent the whole time.

Sorry, I say, but when there's no question you haven't paid rent, you lose your right to a jury trial.  The Judge agrees with the court rule and my position on that. 

Defendant appears unhappy and a tad less smug.

Defense counsel then tees up Argument #2 and still says there's triable issues before a jury as the Michigan Liquor License Commission gave them a license to setup in the back parking lot of the mall and my client is a bad man for not letting them do that, and is thus violating the covenant of quiet enjoyment by not letting him do so.

I point out that no, its not a breach of quiet enjoyment, and the Lease diagram and written language shows the only place allowed for outdoor seating is in front of the building and note that while it's really nice the MLCC gave him a permit to setup a restaurant in the back parking lot, the MLCC cannot change the terms of a lease, and next time he really should have asked his landlord for permission first, and perhaps even have made a rent payment.

The Judge is not amused with his argument and it is rejected.  

Defendant is more unhappy, and the cocky smile has turned upside down into a frown.

Defense counsel comes out with Argument #3 - allegedly my client orally agreed at some point to let his client pay CAM and outstanding rent over time and thus modified the contract.  Client did not do that in reality and funny, there's nothing in writing nor in their relationship that shows this happened.

I point out the lease clearly states any one waiver even if one occurred, which it did not, cannot modify the lease, and the lease states any modification must be in writing, so his making stuff up isn't legally cognizable. 

Judge shuts down his argument that there was this fabled verbal agreement as the lease clearly states these kinds of agreements need to be in writing to stop just this kind of making stuff up.

Defendant is much sad at this point.

Defense counsel then swings for the fences with Argument #4 and claims since there's frustration of purpose due to Covid, then the tenant doesn't have to pay rent and can still stay there operating his restaurant/bar with impunity and thus he should get a jury to decide this case.

I point out that's a nice argument but it has no legal authority in the state of Michigan for that.  The only case that comes close and deals with frustration of purpose states that if there is frustration of purpose, then the lease is rescinded at that time of frustration and the tenant would have to leave - he can't get all the benefits by claiming the portion that lets him stay is not frustrated but his requirement to pay rent is frustrated.   Yep I had that case all lined up and ready to go.

Judge agrees with my point on that too. 

 Defendant is showing visible signs of depression and the smug look on his face that was there at the start of the trial has completely vanished.

Then I, in a more legally dignified manner, but conveying the same meaning, gave basically the following summation:

So yeah, some anger was put to good use.

Judgment in my client's favor.  

Defendant tenant can pay the rent, or move out in ten days, or try to delay further by appealing.  

Sadly No Zoom Zoom Trial Today, Maybe Tomorrow, There's Always A Zoom Tomorrow

I was scheduled to have a Bench trial in district court today.

I was all prepared and ready to go, exhibits already marked and filed with the court and mailed to the defendant last week.

I put my client in a conference room on my iPad, and we get connected to the court, client is ready to go, we've gone over the exhibits and line of questioning and I'm feeling pretty good for doing a trial by Zoom for the first time.

It's a dispute over a breach of contract. The guy my client hired to fix his house after a fire turned out to be not only unlicensed but also (surprise!) incompetent. The guy's work was not up to code and he then failed to show after being paid $24K. My client was obviously not very happy about that as he's had to spend $26k to fix the mess.

Like I said I'm ready to rock on this.

So we connect and the judge starts off with appearances. Now I've been in this case since April, and the case had been going on a lot longer than that before my client finally figured out he should stop trying to do it himself and needed an attorney (quick note he would have saved himself a lot of grief where he completely screwed up a major pre-trial hearing if he had an attorney then - he didn't and he lost a shot at attorneys fees as a result).

The judge starts of with appearances and then asks if we're ready to go.

I state we are, even though I can't get the building inspector as a witness as the municipal building is locked, their office is closed, they don't answer their emails or voicemails, and I can't subpoena him as a result, but we'll run with what we brung.

Since Defendant is representing himself and the facts are good for me, we're ready to go.

The Defendant then enters his appearance and the judge then states: Since we're doing this by Zoom both parties must agree to do the trial by Zoom.

I agree. The Defendant however . . . .

Defendant quickly sees a shot to delay the inevitable and says he now doesn't want to do it by Zoom and wants to go in person.

Crap.

Judge then says it'll be awhile and sets it for September 23 as we don't know when they will be able to do it in person.

Defendant just won himself a delay of three more months.

Drat. That would have been fun.

Settling In The Courtroom On The Day Of Trial

Blogging has been a tad light as I've been preparing for a civil jury trial that was to start today.

Prepping to go to trial is like nothing else in a lawyer's life - it takes 100% of your time and effort to get ready, do your jury instructions, prepare your jury selection, prepare your witnesses, prepare your expert witnesses, plan your opening, craft you exhibits, prepare exhibit books, prepare your witness questions, prepare your cross examinations of the other side's witnesses and be ready to go. It's nerve-wracking as there's a lot riding on it and you don't want to miss even the smallest detail that might help win your case.

So I get to the courthouse and am in the courtroom setting up at 8am this morning.

The other side had so far refused to settle. Amazingly when we were looking at over $130k if it went in our favor, we were all of $5,000 apart after major concessions by my clients in settlement numbers. The other side had refused to even give the courtesy of a response on Friday to my offer of splitting the baby and us coming down and they coming up by $2,500 to be done. So I work all through the weekend getting everything ready to go.

So another couple attorneys walk in - uh oh, looks like we're about to be bounced for a criminal case as criminal trials get precedence over civil trials. This means rescheduling everything and everyone and we would go sometime after the criminal case ends.

The judge calls us in to chambers and we discuss, and she's not amused that the other side is not settling over $2,500 after all the good faith concessions we had made to try and settle it. She also talks with the parties (separately) about settlement as well.

Unfortunately, the dynamics of the case is the other side is represented by the Defendant's daughter, for free. Even worse, she's a family lawyer by trade so it makes some things even more difficulty in what is a property damage case.

It was also very clear the judge wanted this case settled. After much browbeating they finally come up the $2,500 and my clients grudgingly accept it after having us had to work so hard this weekend when this should have been resolved Friday without all that time spent.

We put the settlement and entered judgment on the record and we're done.

Most cases settle because there's no guarantee as to what a jury will do.

This case also settled as getting the Defendant to pay up even if we got the full $13k we were after would be difficult as in the over a year and a half since we filed, he's had health issues and become much less collectible than he had been before when the case started.

The clients decided not to take the risk of trial and save themselves days of trial and also having to wait for the trial to be rescheduled and instead got this finally done. Too bad the other side couldn't have done that on Friday.

Can't blame my clients one bit for deciding to settle and getting this case, which has been on since 2018 over, and it's always their decision, but taking this to trial would have been fun after all the work and sweat put into preparing for it and dressing up for the occasion.

Today's Trial: It Was A Dog-Bites-Dog Kind of Case

Just finished a nice half-day trial.

Yes, it actually was about an idiotic Defendant letting their pit bull roam free and attacked my client's dog, causing a few thousand in vet bills.

Not only idiotic as their city bans pit bulls and they had one anyways, nor just because you're required to control your dog, but idiotic as they refused to pay anything for the medical bills and demanded to go to trial. Most people would step up and pay for the damage their animal did, these folks decided to give it the ostrich treatment. They actually were busy claiming their dog hadn't bit my client's dog and had only gotten out that one time and nothing happened.

Witnesses who were at the scene begged to differ. Witnesses who noted the dog had escaped on multiple times also differed with their story of this being a one-off.

Their attorney did his best, but had to run with an inconsistent story - that the dog didn't bite my client's dog, and if it did then the damages weren't all that bad. This led to some strange questioning from him, including playing math and mind games with the vet bills, but in the end it wasn't nearly enough and I got a judgment in favor of my client.

It was kinda crazy to be going to trial on this as most reasonable people would have settled or offered to pay or even arrange a payment plan or something to get this resolved. Not these bozos.

Trial record remains undefeated.

Another Trial, Another Pro-Per Defendant, Another Win.

Perfect trial record remains perfect.

The Judge should have begun today's court session with "Let the Perjury Begin".

The defendant didn't just take liberties with the truth, you might say he drove it like he stole it and then left the truth abandoned by the roadside somewhere far far away from the courtroom.

Won a judgment against him anyways.

There were times I badly wanted to use the My Cousin Vinny retort, but figured it would land me in contempt of court:

Perfect Trial Record Remains Perfect

I had a nice, short District Court trial this morning.

It was a good lesson in both the need of having attorneys draft the contract for the sale of your business, and especially the utility of having an attorney represent you in court.

A doctor decided to sell one of his practice locations to another doctor. Of course they don't use an attorney and make a rather goofy and ambiguous contract where my client sells the practice charts for $10,000 and the furniture and accessories for $2,550. Of course the other doctor only pays the $10,000 and does n ever follow through and buy the furniture. My client drafts a nice letter to the patients at the practice telling them doctor 2 is taking over and he'll no longer be in that area.

Eventually my client gets annoyed at never being paid for the furniture and goes in to take it back, which he does, and the office manager gives him 12 charts of patients that have requested to switch to him.

Doctor 2 doesn't like that and sues, first in small claims court which is then removed to District Court The judge tells them both they should get attorneys and Doctor 1 hires me. Doctor 2 fails to hire an attorney, and then the fun begins.

At the first hearing he gets an adjournment as he said he's decided to get a lawyer, so we adjourn to today. He of course yet again appears without a lawyer. The judge indicates this is a really bad idea for him but its time to go to trial.

Since he's the plaintiff he goes first. He starts making mistakes and never stops - hearsay, inadmissible evidence, statements instead of questions, the lot. He has two witnesses in addition to himself, one of whom had no personal knowledge of the transaction. He fails to admit stuff into evidence and later tries to admit completely inadmissible items into evidence. I get to cross examine his witnesses and him and he admits that patients can go where they choose and if they contact my client they can go to him. He also admits never paying for the furniture and accessories. He hilariously calls my client to the stand and goofs up the entire exam.

He finally rests and I then move for an involuntary dismissal as he's failed to make even a prima facie case of a breach of contract nor of a conversion claim, and as to his emotional distress claim - don't even get me started....

An excellent trial win and I didn't even need to put on any witnesses or evidence, done in 3 hours from appearance at court to the verdict.

August Trial Result: Victory

I've just received the opinion and order for the Bench Trial I did back in mid-August.

In short, I won and the judge has entered an order in favor of my client.

It's always nice when the court quotes extensively from your Findings of Fact and Conclusions of Law brief to come to its conclusion that based on the evidence presented at trial we should win.

The court also kindly pointed out in its opinion that an issue I brought up and pointed out on cross examination (which I mentioned in the blog posting on the trial) to the defendant was very dispositive, so yay me.

The court found in our favor and ordered a memorialized easement to be recorded, so there's likely some amount of finagling ahead as the exact dimensions are worked out as the court got a little cryptic when it came to that.

So I shall bask in the glory of a court victory.....

Ok, basking is now over, time to get back to work.

My perfect trial win record remains intact.

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.

Trial Victory Number 10 - A Win Against A Truly Crazy Defendant

Trial Number 10 has resulted in a win after a two day trial against a bug-house nuts pro-per defendant, and I don't use the term nuts lightly.

This defendant had her condo foreclosed on her by the condo association after failing to pay any condo dues for the past three years. She's also terrified the neighbors and is absolutely convinced that they are members of the mafia and are secretly breaking into her attic to spy on her.

Did I mention she's nuts?

She also threatened to kill my process server and has claimed she's going to go out and buy a gun. Great, I'm so looking forward to this trial. I've got the facts and law on my side, she's got the crazy.

On the first day of trial, we were required to talk outside of the courtroom to attempt to resolve the matter before going to the judge. She was interesting to watch - one minute seemingly sane and rational, the next going on about this great conspiracy and all the important people she knows who will intervene on her behalf and destroy the condominium association, the law firm, me, the process server, etc. Amazingly long diatribes that the judge just won't shut down even as she sustains my objections.

On the second day, she gets even more aggressive, yelling at me in front of the court clerks and other people at the front desk, claiming among other things that she's going to file a complaint with the bar association and she'll get us, and then jabs her finger at my face twice, the second time leaving it up there.

I tell her to get her finger out of my face and back off.

Surprisingly, she does so.

It seems like I actually have a reasonable command voice when necessary.

Throughout the trial she makes a big show, alternately being calm and rational, then crying, then shouting and back and forth like a switch through all these stages. She tries to have totally irrelevant documents admitted and also pulls out a quitclaim deed she made and recorded transferring the condo to her "trust", claiming it now can't be foreclosed.

One little problem with that strategy is that she filed this transfer after the Sheriff's foreclosure sale and as such the only thing she transferred (assuming this mythical trust even existed) was her redemption rights which she waived when she didn't pay the outstanding condo assessments that equaled the amount in the sheriffs deed during the six month redemption period.

It was a nice try but it didn't work.

She continually tries to name drop to the judge and claim she can't be foreclosed on and that she got a 1099C from her mortgage company canceling her mortgage. Which of course means nothing. In other words, she hasn't paid a dime to live there for 3 years now, at the expense of other condo residents that have to pay more in order to make up for he failing to do so.

At times she states she loves the condo.

She admits she hasn't paid a condo assessment in over 3 years and hasn't paid her property taxes in the last three years either, with the result that not only did the association foreclose on it but the county has also foreclosed on the condo.

She doesn't have a mortgage and can't pay less than $300 a month in condo dues and property taxes? Heck all she had to do to redeem it was pay a few thousand dollars and she could have got that before the foreclosure by putting a mortgage on her place. While the condo isn't worth much, it is worth much more than the few thousand she owes.

Did I mention she also dresses to the nines and has very expensive stuff yet won't pay for what she claims is her prized home?

So much for loving her condo.

Unfortunately, the judge bends over backwards, giving her plenty of leeway to make wild and crazy conspiracy accusations even as she admits she has no factual defense and admits she didn't pay and was properly served with all the required documents. This turns a half day trial into a two day affair.

She also continually goes on about how she's a "shark on land", which doesn't make a heckuva lot of sense. She also continually states how she is just so smart and sophisticated.

After two days, including my presentation of rebuttal witnesses to exhaustively enter into evidence every step of the foreclosure so that there is no question it was properly performed, the judge rules in our favor.

Given the judge's demeanor and the insanity of the defendant I don't just prove my case by the preponderance of the evidence which is the standard I must meet, instead I prove the foreclosure was proper by clear and convincing evidence, demolishing all frivolous claims to the contrary.

The judge finds in my favor granting me my 10th straight trial victory and preserving my perfect record.

Our insane defendant doesn't take this well, claiming she's not through, she's a shark on land, and we'll never see it coming. Great.

Unfortunately, the judge, instead of just giving her 10 days to move out as required by statute gives her 30 days after coaching her to ask for more time.

Yeesh.

I know the judge wants her leaving the courtroom happy with her and identifying with her as a friend rather than a foe for giving her more time. Still, after the judicially-inspired delays already in the case and the fact she's been living rent free for 3 years and all her carrying-on at trial it is a little frustrating.

On top of that extra time, the judge had already giving her an initial extra 3 week adjournment from the initial trial date so she could try to get a lawyer. Just like the offer of more time to move, the judge had again offered it to her sua sponte rather than waiting for her to bring it up. Of course she didn't really plan on doing so but certainly took the judge's suggestion to play for more time.

I half expect she will file a frivolous appeal to try and stall for even more time.

The joy of dealing with insane pro per defendants.....

A Trial Victory for the Good Guys

It's nice to know you're on the side of right when you walk into a courtroom to settle a dispute at trial.

We represented elderly parents who sold their son their house, keeping a life estate for themselves. Of course they didn't have a lawyer draw it up, the son, a financial planner did, and the contract only vaguely lays out the terms.

You can guess what happened right?

The son after a while gets greedy, wants the property right away and has them sign a deed under interesting circumstances, a deed that doesn't mention the life estate.

The son then kicks his parents out of the house, and claims there never was a life estate.

Thankfully, the son was quite greedy and didn't want to pay more taxes on the property so before he kicked them out, but after he gets the deed, he files a Michigan tax exemption after he gets the deed, claiming his parents are co-owners so the property is exempt and didn't transfer so it shouldn't uncap and have a property tax increase.

He then writes a few letters to the Treasury when they question the exemption and states in it that they do have a life estate. He then claims he was just told to say this to avoid taxes and it doesn't really mean it is true. Anyone out there buy that claim?

The Judge didn't buy that either.

We (the partner and myself on the file) got the house back for the parents for them to have as their life estate, putting them where they should be under the terms of the sale. It was a very happy moment for them and it felt good to win it, I can tell you that.

A cautionary note: whenever serious money or property is involved in a deal, even among family members, its best that you spend a few dollars on having a lawyer review the deal and make sure your intent is fully spelled out in the contract. This saves a lot of grief and serious attorney fees later. Everything may be great when you start the deal, but serious money can bring serious complications and risks.

Trials, tribulations, and a real boring dark room

There's a reason I haven't been blogging.

Last Thursday, I began a trial couple hours away in Port Huron. It turned into a 16 hour day with 2 hours of travel to and from, and a return to the office at night to get some prep done before returning to trial expected to begin on Friday morning.

A snowstorm was predicted for Friday morning.

So Thursday night I get the car ready, make sure all the fluids are at the right levels, get the car packed with all the trial stuff, and go to bed with a slight eye ache. I suppose its just eye strain from a long day and long drive in darkness to and from the trial.

I get up around 5, shower, down a quick breakfast and get the Jeep out and hit the road.

Its already snowing - heavily. No lane markers remain visible, everything is a nice sheet of white and its still coming down. The eye hurts some more.

I press on, getting to the highway in 4 wheel drive. The snow gets worse, speed is down to about 30, visibility 10 feet and dropping. Its not getting better.

I keep on going but the visibility keeps dropping, cars are skidding wildly, some already in the ditches. In the time so far I've gotten just about a third of the way, less than what it normally takes to get half the way there.

Time to reconsider.

I call the partner on the file and let him know the score, he's on a different highway heading there and wants to press on. Since the conditions and visibility are nearing zero I decide I'm done spinning for the day, let the partner know that I'm not willing to get in a wreck for the client as that will not help anyone, and try to reach the opposing counsel, after a while I reach him and we agree to adjourn because we're all in near zero viz.

I call the court and leave a message and then begin the adventure in returning home. The snow is blowing so badly I can't even see the highway off ramps, I finally make one and get home in an hour, using the caution sharp curve yellow signs to let me know I'm still on the road.

I get home, talk with the court who finally gets in around 9:30 and they're happy to cancel as the Court is closing at 11:30 due to the bad weather so its just as well we didn't try to keep making it there - we would have been stuck there with no trial to be had. We schedule a new date and go from there.

Oh yeah, the eye is now hurting quite a bit. I take out contacts, put some drops in and get on with working from home as I'm done driving for the day and the street is totally snowed in and the snow keeps blowing making any thought of getting out ridiculous.

Still no eye relief, I keep the drops flowing, try a cool compress, ice and even finally advil with no relief.

Finally Saturday morning I'm almost doubled over in pain with the sensation of red-hot needle being shoved in my eye- "Honey, it's time to visit the emergency room - NOW."

So we drive over, with the road not yet plowed in my trusty jeep, get to the ER with almost no waiting, and I'm in a fair bit of pain.

They do some more checks, I'm sure my vision is fine but when they check it the eye isn't seeing much at all - this begins to be worrisome.

They look at the eye with the equipment and some dye and find out I've got a torn cornea. They figure it happened while I was photocopying Thursday night- some toner or staple fragment got under the contact lens and my eye was so strained I didn't feel it as it tore the cornea.

The doc then gives me one drop of tetracaine in the eye - lovely stuff, it numbs the pain and makes it a bearable ache in the eye rather than a constant stabbing pain. But then the doc tells me it will only last a half hour and he won't give me more as it could make it worse - I consider grabbing the eye drop bottle that is just in arm's reach and making a run for it but better sense prevails.

The doc prescribes an antibiotic drop, says to take Advil regularly and keep the eye shut in the dark, no reading, no tv, no computer, no nothing and to get an appointment with an ophthalmologist immediately.

So I stay in a dark room, dealing with the aches by popping Advil and taking the antibiotic drops on schedule for all of Saturday and Sunday, bored beyond belief, but catching up on my sleep and listening to a book on CD when I'm awake.

On Monday I go to the eye doctor and he confirms the situation, gives me another drop to take and wants me back on Tuesday - no reading, tv, computer, driving nothing. Obviously, work is out of the question - a lawyer that can't read, drive or use a computer is not a lot of help around the office. I do some work over the phone.

On Tuesday I go back and the eye seems to be responding well, he prescribes another drop that I should start to take in three days as due to the holidays he won't be in, and off I go. Now he tells me I can keep the eye open but no reading, computer, but I can see TV if my eye is up to it in small amounts, and then slowly add reading and computer over time.

So now its Sunday and I've been able to do a little TV watching, a little computer and a little reading, all with breaks and the eye is a lot better vision wise. A lousy thing to happen over the holidays but I'm getting through it and it seems to be healing up decently, i'm off the Advil and just doing the drops.

Its still achy, I've got lots of stuff to do piling up at work and another eye doc appointment tomorrow. Got lots to blog about including a visit from Lagniappe and his keeper, finding out that snow WILL stop the mail, and other goodies, but it will have to wait as I need to take a break after typing all this.

Of Trials, Tribulations and A Really, Really dumb Juror

Generally a Jury will do the right thing: Listen to the facts, decide a case and get on with life. Of all the jury trials I've had the Jury has come to the right decision and most have been quite sharp and perceptive.

How do I know this? After a trial judges often give the jurors the option of talking with the attorneys and the jurors often graciously give some time to talk with us, give us pointers on our performance as attorneys and ask questions, oftentimes very pointed questions, such as why didn't the police report come in as an exhibit? (You then get to explain that the rules of evidence preluded it from being admitted.), or why we said something or what we should have said to be even more convincing or what questions they still would want to have resolved.

The Juries I've been before also have consistently some of the best poker faces I've ever seen - we're talking tournament quality here, and you just couldn't read them.

As I said most juries do the right thing....but this one juror...

I was in District Court on a landlord-tenant eviction case and was doing the entire trial by myself with no partners present. It was a jury trial as it was to evict a harrasing and threatening tenant from a HUD subsidized apartment.

The trial went very well indeed, and we awaited the Jury's verdict.

After long deliberation and some interesting questions from the Jury (showing that they clearly were paying attention during the trial and were taking their deliberations seriously) the Defense Counsel and I were called by the Judge into her chambers.

The Judge (a very professional, courteous, smart and capable Judge indeed by the way, she ran a great trial) told us that the jury had reached a verdict but there was a problem. The jury had sent a note that one of the jurors had gone and visited the apartment complex twice.

Now this is a no-no. The instructions to the Jury are very clear, they are not to go visit the scene or do their own investigation.

The Defense attorney knowing a walk is as good as a run immediately requests a mistrial. (A mistrial results in the trial being held once again and the tenant gets to stay while that is happening).

I request that we at least interview the juror and jury and see what actually has happened and the judge agrees.

So we interview the Juror and he says he only drove by the building to see if there were air conditioners, which were a side issue in the case. He also says he thought it was a nice place.

The Defense immediately claims that the juror and jury was tainted by this excursion and again demands a mistrial.

I point out that this is the very definition of harmless error as both Plaintiff and Defendant admit its a nice place to live, otherwise why would Defendant want to keep living there? I also point out that the outside of the building has nothing to do with the Defendant's behaviors that are leading to his eviction nor to his retaliation claim against Plaintiff for trying to evict him.

The Judge sadly for me, grants a mistrial.

On speaking with the Jury after the trial, the verdict was for my client and for the eviction 5-1 (In Michigan a civil jury does not need to be unanimous, you only need 5 of 6 jurors).

So 4 court days, 3 of which were trial days before the jury are down the drain and the trial has been rescheduled and we get to do it all over.

Thanks a lot, Juror Clouseau, next time please wait for the trial to be over to satisfy your curiosity.

Another Trial victory and a great example of what not to do at trial

I just received a jury verdict on behalf of my client, after a two day trial, for the entire amount demanded, $160,000.

This was for a breech of contract case where defendants were seriously hosing my client, not only buying his business for very favorable terms but doing the deal in such a convoluted way that he stood to risk not getting anything at but the initial payment for the business.

The lesson my client has learned from this is that its better to have a lawyer review the deal up front rather than have to go to court later - no ehtical lawyer in the world would have let him go forward with this deal. The defendants drafted the contract (and had assistance from a lawyer or at least a legal secretary who um, was somewhat shady to say the least), which specified the sale was to be for $210,00 with 100k up front and 110 to be paid under a promissory note (without interest!) to be paid monthly as the revenue from the business permitted. My client was only paid 50k at the closing and told he'd get the other 50 in a week.

Oh, did I mention my client does not read english and only speaks it somewhat, and that he was relying on the other side to be truthful? Thankfully defendants messed up and had an integration clause to the contract, which precluded them from claiming all sorts of riddiculous allegations and side agremeents that they claimed occured but did not make any sense.

At the trial Defendants made two mutually exclusive arguments - The first was that they had paid my client 50k in cash at the closing in addition to the 50k they paid by check, and that they had paid the remaining 110k already. The second argument was that they claimed the revenue of the business did not permit the payments so they didn't have to pay under the promissory note and therfore did not owe him the 110K.

Anyone see the obvious contradiction between those arguments?

After I took the direct exam of their accountant and explained to the jury that the business in the two relevant years had the following amounts in cash: In 2003 it had 68,000 in cash at the end of the year and the business had bought a $80,000 Dodge Viper. Interestingly the business claimed on the tax forms that the Viper was solely and 100% for business use - but on the stand Defendant 1 first said it was just for the business but then admitted that he had exported it to Lebanon for a personal trip and had reimported it back. Hopefully the IRS will catch on to this guy's shennanigans (He's already in serious criminal trouble with some other federal agencies so the IRS may as well join in).

In 2004, the business ended the year with a cash entry of over $244,000 - certainly enough to at least make monthly payments under the proimissory note and even to pay it off fully.

Then the icing on the cake. Defendant 1's attorney for his closing argument says (slightly paraphrased):

'This is a case about credibility and figuring out what makes sense and who is telling the truth. Now I can't tell if my client is telling the truth or if plaintiff is telling the truth but you need to decide on what makes sense.'

Note to the aspiring lawyer out there - never tell a jury you can't tell if your client is being truthful, even if, as I suspect the defendant's lawyer knew in this case, that you know your client is lying. This other lawyer by the way was much more experienced than I was and really should have known better than to make this kind of a closing argument.

All in all, an excellent victory. It was again nice to be working on behalf of a client that I knew was the one being victimized and taken advantage of, and yes, my client was telling the truth and the jury clearly saw that.