FEBRUARY 6, 2024 – (Cont.) Well into the fast-moving trial I called Jeff to the stand. “Mr. S_________ [Jeff], can you tell us what you do for a living?”
“Auto mechanic.”
“How long have you had that occupation?”
“About 25—30 years.”
“Continuously?”
“Yeah. I drove truck for a couple of years—year and-a-half, to be exact—summer of ’95 to the end of ’96, but otherwise, yep, I’ve worked steady as an auto mechanic. Different garages—maybe three or four—but always employed as an auto mechanic.”
“Over the span of your career, how many vehicles do you suppose you’ve worked on?”
“Gosh, I’d have to say it’s been a lot.”
“Can you give us some idea of what ‘a lot’ is?”
“It’s gotta be in the thousands.”
“Thousands?”
“Yeah, if you figure at least a car or two a day times five days a week times over 25, 30 years minus the year of driving truck. . . yeah, it’s gotta be thousands.”
“So would it be fair to say you know your cars—by make and model?”
“Absolutely,” Jeff said, oozing with sincerity.
“Now let’s talk about the incident that brings us here today . . .”
I stole a glance at the other lawyer. He knew full well where I was going. His poker face was being ruined by a discernible blushing effect.
But actually, he didn’t know exactly where I was going—because neither did I exactly.
Up to that point I’d latched onto the same theory everyone else had: someone was lying. If you were the woman and her attorney, the liar was John. If you were John, Sue, Al, Jeff, Skip, or I, the woman was the liar. The case was that simple, and it boiled down to the judge, the trier of fact, deciding who was the liar—John or the woman.
But in the brief time I’d had a chance to observe the woman—out in the hallway, inside the courtroom and on the stand—she didn’t strike me as a liar. Nor did John, Skip or Jeff seem to be a liar, and that conclusion deepened through the course of our fairly intense if brief interaction over the previous couple of hours.
As I ad libbed my questioning of Jeff and listened to his responses, I tried to solve the riddle, “Suppose neither side is lying, how can I reconcile John’s side of the story—that his car has barely grazed the Pontiac—with the photograph of the woman’s bashed-in Buick?”
The obvious solution jumped out right in front of me.
And just in time. I pushed aside my legal pad and stood to give my closing argument. I felt like a kid who’d just figured out the answer to what was a trick math problem and couldn’t wait to tell the teacher and the whole class of struggling students.
“Your honor,” I said, struggling to contain my excitement. “I thought this was a ‘He said, she said’ case; one in which you’d have to decide who was telling the truth. I think that’s how everyone else was approaching it too. But in the course of the testimony, I realized that no, that wasn’t the case. No one was lying! Everyone was telling the truth—everyone—except we were all working with the wrong set of assumptions.
“Now, having just experienced a Eureka! moment, I can explain everything. The simple answer to the puzzle is this:
It comes down to mistaken identity—first of a car, second to a person. Mr. S___________, who knows his cars better than anyone else in this courtroom ever will, testified that the car Mr. J_________ bumped was not the same make as plaintiff’s car. That testimony is entirely consistent with the conflict between the testimony of Mr. J__________ and his two friends that Mr. J__________ just barely bumped the car parked behind his, on the one hand, and on the other hand, the serious damage shown in the photos of Ms. W_________’s vehicle.
“What happened after Mr. J_________’s car had had contact with the mystery car? He did what any honest and responsible person would do. Not knowing who was the owner of the car he’d grazed, he went back inside the bar and gave his name and number to the bouncer, just in case there turned out to be any damage at all to the mystery car.
“We then have testimony that Mr. J________ and his friends left the bar at around midnight. We have plaintiff’s testimony that she left later—at closing time; seeing the damage to her car, she went back into the bar to tell the bouncer. What did the bouncer do? Of course! He connected the dots—except they were the wrong dots. Understandably, since Mr. J_________ had earlier mentioned he’d bumped a car out in the parking lot, the bouncer assumed Mr. J__________ was the one who’d smacked into plaintiff’s car.
“I submit, your honor, that it was someone else who’d rammed into the rear of plaintiff’s car, causing all that damage. Having trashed her car, the real culprit fled the scene, leaving plaintiff in an unfortunate position. Based on the bouncer’s innocent conclusion that my client had in effect confessed to it, he led plaintiff—and her lawyer—to the same conclusion and this lawsuit.”
Nodding slowly at first, then more affirmatively, the judge was tracking everything I said. When I finished, she led out a laugh, and without really thinking before she spoke, everyone heard her apparent decision, “Oh my gosh!”
The judge then said, “I’ll get my order out soon.”
The faces at the other table were no longer deadpan. The lawyer looked stunned. His client was slowly shaking her head, not in denial but in surprise. Sitting on a front row bench, Jeff snapped his hands together. Skip threw his head back with a giant smile. John, sitting beside me at the table, shook my hand and leaned toward me to say, “You got it!”
On the walk back to my office, John and his buddies were ebullient. I was treated as a hero, and John insisted on paying for my soup-and-half-sand lunch at the Federal Café inside the federal courthouse. When Sue learned of our victory, she told me to give her my invoice and she’d pay it right away.
Little did any of us know that in the end, we’d lose.
The order didn’t arrive until the 90th day after the trial—the deadline for judicial decisions without a dock in the pay of a procrastinator judge. I had every reason to expect a decision in favor of John. It wasn’t. Out came a judgment for plaintiff—in the full amount of her $7,000 claim.
“What the hell?!” I said very out loud inside my office. The only explanation I could conjure was that the judge had forgotten all about the case—and perhaps a whole stack of others—until she was bumping up against the deadline. She’d then instructed her law clerk—who’d been present for the trial testimony but absent for the closing arguments—to write up an order for judgment and memorandum. Not having been present for my solution to the riddle, the clerk had gone down the road everyone had blazed before my Eureka! moment. The clerk then submitted a whole stack of orders and memoranda to the judge for signature and mailed them out.
Sue asked about a motion to reconsider—a procedural device sometimes deployed to request a judge for a change of mind. Such motions rarely succeed, though John’s case was an unusual one in a way that would give extra traction to such a motion. Nevertheless, it would take time—and money—to prepare the motion and attend a hearing. Opposing counsel forced a decision by going dark and silent when I broached the idea of settlement in exchange for agreement not to bring a the motion. In the end, given the cost of bringing the motion and the possibility, albeit slim, of losing it, Sue and John decided not to have me bring a motion to reconsider.
I went on to other matters, and John took his lumps—heavily subsidized by Al, who was convinced the court had given John a raw deal. I used the outcome to counsel other clients hellbent on suing or going to the mat when being sued. “There’s no such thing as an open and shut case,” I’d say, “even in the case of an open and shut case.”
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© 2024 by Eric Nilsson
