I Was Told There Would Be No Math

They lied.

Fun case where my client owns a restaurant.

A mismatch occurs in the food orders and the bills, and the provision company claims he owes over $20k over the year relationship.

This is compounded by the fact that the head chef (now appropriately fired) was apparently ordering things on the restaurant's dime that he was then taking out the back door to use for his own benefit - apparently with the knowledge and in cahoots with the delivery guy from the food provision company.

So they sue, and I'm defending against this 20k claim.

Both delivery guy and head chef are now no longer with their respective companies and not about to admit what they did, we have some hearsay statements from other employees as to what was going on but admissibility of such statements are rather difficult.

Even better, the food provision company claims they had no idea what was going on and denies they ever made a statement to my client that they also thought something was off when they saw stuff being ordered that had not been ordered before that was out of character for the type of restaurant it is.

So we want to see how much is owed.  They had sent invoices they claimed were unpaid but did not provide all of the invoices so we can't match payments to invoices.  Nor do they provide an actual running balance nor record of payments being applied. 

We ask for the invoices in discovery, they send the same ones they already sent and do not send all of them, even as we had asked for all of them.

We're on a stupid tight timeline, and the court had originally ordered it to trial without any discovery period.

I asked for discovery and the court is rocketing this one through and give exactly 30 days for it - and parties have 28 days to respond to a request for discovery.  Not good, so I send the requests out immediately.

They answer claiming they already provided the invoices.  Well, no they did not - they only provided those they claim are unpaid as they are the most recent.

They finally provide all invoices a few days before the scheduled trial date as I threaten to do a motion to compel them to produce it - unfortunately it wouldn't be heard until after the trial date so that is a problem. But at least they provide them.

Over 192 pages.   Not given in any particular order. Many pages are not invoices either. A couple days before trial I might add.

So we start going through and adding them up.

And we find duplicate invoices salted into the pile. Not beside one another, but shoved in throughout the stack.

So we stop, reshuffle all 192 pages to date order, remove the duplicates that just happened to be the highest possible invoice amounts,  purely a coincidence I'm sure, and start again. 

We also calculate all the payments from the cashed checks my client has to see what was paid.

The mathing really doesn't math. 

Totaling up all the payments and charges, instead of owing 20k, he at most owes $8k and possibly less.

We do it again to make sure and come up with the same result.

This isn't even counting the issues with the invoices themselves, nor the fact that stuff on them is clearly not for the restaurant, just straight comparison of the numbers. Total truly owed is likely even less. 

With this pointed out to opposing counsel, we get a very quick settlement for a lot less than the revised 8k amount, as they are stuck with the evidence they provided and the math is not exactly going their way, and neither side wants to spend money on a trial at this point and with no time to further prepare.

So instead of a trial we put the settlement on the record and are done with the matter. 

Their delay in providing the backing for their claim certainly raised the pressure on getting this done, but done it is. Sheesh.

I Believe That's What Is Called A Clue

Heading into court today and after passing through the metal detectors I got to watch the deputies stop a fellow after he had gone through to let him know he could not take the handcuff key on his key ring into the building.

They nicely agreed to hold onto it for him as it was raining out.  

They don't want just anyone wandering about the courthouse with a handcuff key, as there is often handcuffed prisoners around the facility and having people wandering around with they keys could get interesting. Good on them for paying attention and seeing it.

When asked where he was going, the fellow stated he had an appointment to see his probation officer.

Yet another good reason to relieve him of his handcuff key, that.

So, a good thing to keep in mind for law enforcement is felons they stop on the street may be carrying around handcuff keys to get out of handcuffs after they are arrested, so it pays to check for it.

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.

Covid Court Condition Confusion

Michigan has what is called a One Court of Justice.  However, that doesn't mean the courts all follow a unified plan and follow the same procedure.  Not at all. Each one has their own peculiarities and own procedures that vary immensely.

Take how they are handling Covid for example.

37th District Court in Warren is not just hybrid, but at times the judges demand people appear in person for a hearing or a conference, which sucks as something that takes 10 minutes now takes an hour plus of drive time, sitting around in court waiting to be called in a courtroom with insufficient seats when you could be doing it by Zoom far more efficiently.

There are magic pieces of plexiglass abounding, but tons of gaps in the plexiglass and it is far more for show than for it to be virus no-go.  No requirement for wearing masks and no temperature taking or anything else.

Then there's the 50th District Court in Pontiac.

Live hearings there are just not on and you cannot get within 6 feet of the building.  No kidding.

Went there to pickup a processed filing as told to do so by the court staff, and the court officer stopped me six feet from the door of the building, I had to and did have a mask on, he asked who I was and what I wanted.  After I replied he then kicked over a post office mail carton that had my filing inside.  I picked up my filing and kicked the box back to him. Yes, really.

2 courts. Less than an hour away as the car drives, and completely different responses and protocols.  You really don't know what you're going to get at any particular court.

Personally I'm finding Zoom a great time saver for myself and my clients - no need to drive, find parking, or wait in a crowded courtroom when instead you can get on Zoom at your appointed time and be done fast.  Hopefully they clue in to the efficiencies and permit Zoom usage to continue and the courts all get on board with one protocol so we know what the heck we're dealing with.