Adventures of a Litigious Law Buff

When I was in college, I thought about going to law school, until someone in a movie I saw said, "I'll have my lawyer draw up the papers." It was Clark Gable, or someone equally in command of the situation. Having closed his deal man to man, Clark began to stride toward the door, casually tossing off that final line as he jammed on his hat. I suddenly realized what a lawyer would be left with to say under similar circumstances: "Now I'll have to go back to the office and draw up the goddamned papers."

When my family suggested to me that I might go to law school, I said, in a tone that was meant to approximate Clark Gable's way of dealing with such suggestions, "I'm no papers-draw-upper." That closed the subject for me and left them, I think, more convinced than ever that law school would have been a good idea, since eccentricity is always more acceptable in a professional man.

I don't really regret not having a law degree--as it happens, a friend of mine who owns a computer-programmer college in Kansas City has offered to award me an honorary degree in anything any time I want it--and I certainly don't regret not having to draw up the goddamned papers. But when my mind wanders, I have to admit, it often slides to a stop in front of a vision of me as the shrewdest courtroom operator of them all. There I am, pacing back and forth in a three-piece suit--an elegant suit, but not so elegant as to give the jury the impression I am putting on airs. With my cutting cross-examination I am transforming the previously self-assured witnesses of my opponent into instant neurotics. I am summing up my case with simple and deeply moving eloquence. I am constantly saying, "May it please the court." I am making the fine points. A fantasy lawyer? Certainly. But it's not all fantasy: Sometimes I sue.

I now realize that during the first few years of my vicarious practice in New York the legal advice I handed out casually at parties was not always precisely appropriate--since I had picked up most of my law in the early Sixties while sitting in Federal courts in the South as a reporter covering the race story, my advice would have been precisely appropriate only for those people whose personal legal problem was how to desegregate a school district--but my jargon was so impressive that nobody seemed to notice. If someone mentioned that, say, the aluminum siding he had contracted to have installed on his house at horrifying expense had reacted to its first exposure to rain by sliding slowly and gracefully to the ground, I would say something like, "Well, I think the thing to do would be to get a temporary restraining order on that until you can schedule a show-cause hearing on a permanent injunction, and then if that doesn't work, you could slap him with a writ of mandamus and maybe get it kicked up to the Fifth Circuit." I believe it is generally accepted in legal circles that I was the first person ever to cite Brown vs. Board of Education as a precedent for the awesome damages that could be collected from a department store that delayed the delivery of a floor lamp--a position I took during a conversation with an employee of Macy's customer-relations department in 1964.

It may seem astonishing that in the Federal court of the Southern District of New York a man of my legal knowledge was permitted to serve as a juror with ordinary laymen. Anybody with an extensive legal background, after all, can obviously exert disproportionate influence on the other jurors. The way it happened was that I did my best during the examination of prospective jurors (the voir dire, as we litigators say) to pretend that I was an ignorant layman myself. I figured that being left on the jury and given an opportunity to observe its deliberations firsthand would be invaluable preparation for the day when I would be trying a case before a jury myself. When one of the lawyers asked me where I lived, for instance, I refrained from saying "Perhaps you would like to refresh your recollection by consulting the card in front of you"--even though I had waited for years to invite someone in court to refresh his recollection, since the vision that the phrase always brought to my mind was of a tired, gray old memory suddenly being transformed into a memory fresh and bright and green as a Salem ad.

From the beginning of the trial, I tried not to overwhelm the lay jurors with any dazzling displays of legal acumen. When the plaintiff's lawyer told us in his opening statement that the case we were about to hear involved a train, I decided against interrupting to tell him that everyone was perfectly aware of the Supreme Court's reversal of its Plessy vs. Ferguson ruling on separate but equal facilities for railroad-coach passengers--which was just as well, since the case, as it turned out, did not concern the constitutionality of segregation on trains in Louisiana but the possibility of a whiplash injury during a derailment in New Jersey. The plaintiff, a young man who had studied the violin, claimed that the accident had shattered what might have been a lucrative concert career, and the defense lawyer implied that the accident had given the plaintiff an excuse to abandon a musical career whose financial rewards probably would have depended on how generous people emerging from the Times Square subway station were feeling toward some earnest but screechy fiddler sawing away on 42nd Street.

I was not impressed with the plaintiff's lawyer, although professional courtesy kept me from showing my disdain during the trial. He obviously had the same idea I had about not appearing in court in clothes that made him seem flashy. He was wearing a plain gray suit and a striped tie and a white button-down shirt. But somehow he looked suspiciously flashy anyway--as if his wife had to station herself at the front door of their house on courtroom mornings so that she could strip off his diamond wrist watch and make him change his white-on-white shirt (the one he always wore with his eight-ounce gold cuff links) and send him back to wash the stickum out of his hair. Also, he made no fine points at all. And he didn't say "May it please the court" once.

Not long after the jury had begun its deliberations, I realized that keeping my legal knowledge to myself would have amounted to dereliction of duty. One elderly woman on the jury had announced that she refused to render a verdict on the case one way or the other. She explained that the violinist had not proved that he was injured in the wreck, but the railroad had not proved that he wasn't. She considered the case a draw. The other jurors, not being accustomed to offering cogent explanations of legal points, could not seem to persuade her that the violinist, as the party suing, was the one who had to demonstrate his loss.

"If I may explain, madam," I finally said, rising from my chair and beginning to pace up and down the jury room--which was not easy, since the tables and chairs left practically no pacing space--"what you have failed to understand is the concept of 'burden of proof.' It is a concept fundamental to our system of jurisprudence. In every case brought to court, one party has the burden of proof. In criminal cases, the prosecution must prove its case beyond a reasonable doubt. In civil cases, such as the one we are now considering, the plaintiff must prove his case by the preponderance of evidence. Therefore, the violinist must present more evidence than the railroad presents--demonstrating that he was, indeed, injured during the train wreck in question and that said injury did constitute cause for a loss of income, as well as what we call pain and suffering. Thank you very much."

I returned to my chair and sat down. The other jurors looked quite impressed. The woman stared at me for a long time. "That's your opinion," she finally said.

Eight and a half hours later, despite having heard me repeat my cogent legal explanation approximately 60 times, she remained unconvinced. I was no longer pacing the room but standing at my place, pounding on the table. "Burden of proof!" I shouted at her. "Burden of goddamned proof, lady!"

"Everyone's entitled to their opinion," she said. "But fair's fair."

My entire practice changed when I realized that what I should be talking about to Macy's and other New York bureaucracies was not Brown vs. Board of Education but small-claims court.

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Whoever invented New York's small-claims court had me in mind. For a filing fee of $3.18, anybody can sue anybody for damages up to $500. For $3.18, in other words, you can become a lawyer. You have the right to subpoena witnesses. You have the right to cross-examine. You have the right to deliver a simple and deeply moving summation before an audience of several dozen people. You have the right to say "May it please the court" to a real judge who is wearing a black robe and looking solemn. For an extra $25 or so--making a total investment of around $30--you can buy a professionally prepared transcript of your performance. And it all takes place in the evening--meaning that your job does not interfere with your practice.

When I'm in the audience at small claims (waiting quietly for my turn to exact justice, or perhaps just taking in the evening's cases as a sort of busman's holiday), I can never understand why the court reporter looks so bored--letting his head loll back and closing his eyes occasionally, like a man typing in his sleep. ("When people in this city don't have anyone to talk to," I was once told by a small-claims court reporter, "they come down and talk to me.") I myself find every new case fascinating even before either party says a word, since the appearance of the parties alone gives me a strong impression--invariably wrong--of what the case will be about. Is that husky man going to be sued for the medical expenses that resulted from breaking the nose of the timid-looking man on his left? No, he turns out to be the plaintiff, suing the timid-looking man for permitting his dog to devour the husky man's newly upholstered settee.

I have difficulty restraining myself from making comments. I want to walk up to the plaintiff's table and congratulate a young woman who, in suing an apartment-building owner for the return of some illegal "key money" she says she had to pay him to get an apartment, bolsters her case by presenting as witnesses other tenants who respond to her carefully prepared series of questions by testifying that they had similar experiences with the same man. ("That's doing your homework, counselor," I want to say. "A very solid piece of work, indeed.") After a prosperous-looking gentleman itemizes a legal bill for which he is suing another prosperous-looking gentleman, the defendant--who claims the work involved was just some informal advice to a friend, in the days when they were still friends--says, "At the rate he's charging, Judge, it figures out to eight hundred and eighty thousand dollars a week, or over forty-five million dollars a year. What's a man who makes that much money doing spending all night in small-claims court?" ("Bravo!" I want to shout. "That's telling that pompous papers-draw-upper!") A woman goes into amazing detail to explain how a mover hired for a simple job of moving her belongings from one small apartment to another managed to do hundreds of dollars' worth of damage and break parts of three sets of china. ("What the hell are you doing with three sets of china, lady?")

Small claims is used by a lot of New Yorkers who are interested not in making brilliant cross-examinations but merely in wreaking some small vengeance on the phone company or a department store or Con Edison or some other organization that has no way to react to a summons except to assign some conventional member-of-the-bar lawyer to handle its defense. I was in the audience one evening when a young engineer was suing a rental-car company for not having a car ready for him at the London airport despite his confirmed reservation. The lack of a car had obviously spoiled the beginning of a carefully planned vacation, but the engineer was having some difficulty proving any financial loss, since the use of public transportation had probably saved him some money. The rental-car lawyer, a young man who devoted a lot of his energy to maintaining an expression indicating that he was accustomed to practicing in a court of considerably higher jurisdiction, was the one making the fine points --the relevant fine point in this case being a lack of mutuality in the contract. (Since the rental-car company would have been unable to collect from the engineer if he had broken his part of the agreement by not showing up at the airport, he could not collect from the company for breaking its part of the agreement by not having a car there in case he did show up. For the customer's immense pain and suffering, there is, as we litigators say, no remedy.) But as the engineer walked out of the courtroom, it was apparent from the look on his face that he believed some small measure of justice had been done. What he was thinking about as he left, I would guess, was not how he might have countered the point about a lack of mutuality but how much a rental-car company has to pay a supercilious-looking papers-draw-upper per hour, and whether that rate increases after five, perhaps to double time.

Naturally, it would be unprofessional of me to engage in anything that could be considered a harassment suit, but there is nothing at all unprofessional about the threat of a harassment suit. In much the same way that minor mobsters in novels win debating points with a local merchant by mentioning the fearsome names of their patrons, I occasionally catch the ear of the bureaucracy by talking about the model of American justice that can be found at small-claims court--the proud feeling it gives us all to know that any simple citizen with $3.18 can go right down to 111 Centre Street and seek his evening in court against even a mighty corporation and its exceedingly highly paid attorneys. Invoking the name of small claims, I find, breaks through the relentless politeness of even that grounded stewardess I'm always connected with when I call the telephone company to complain of its eccentric billing methods. As a method of dealing with department stores, I find the mention of small claims surpassed in effectiveness only by the calm threat I occasionally make to chain myself to the front door at 8:50 the following morning.

The first time one of my small-claims discussions actually materialized into a court appearance was several years ago, when, according to my complaint, the deft repairwork of some garage people had caused the motor of my car to fall out on the Long Island Expressway. Since the motor fell out several weeks after the repairwork had been done, my evidence was what we litigators call circumstantial ("Why else would my motor fall out?" was one of the questions I had prepared). Reduced to its essentials, in fact, my case rested principally on the possibility that the garage people would not show up in court. I remain convinced that if they had not appeared, my strategy would have worked brilliantly and I would have triumphed in my very first court appearance.

A lesson was learned, of course, about the risk involved in even a forceful and articulate practitioner's going into court armed with only circumstantial evidence. For my next case--a suit against a contractor for the money I had to spend having his repairs repaired--I amassed a fat file of bills and photographs and carbon copies of stiff, legalistic letters. My witnesses were carefully prepared. I had practiced my final argument for hours in front of a mirror. Three weeks before our scheduled appearance, the contractor sent me a check for the money he owed me. I was heartbroken.

"Do you think we could go to court anyway?" I asked my wife.

"The case is moot," she said. "As you litigators say."

When I thought about it, I decided I had outgrown small-claims court anyway. Decisions are always made by the judge at small claims, and I felt ready to face a jury. I was somewhat pessimistic (concluded on page 200) Litigious Law Buff (continued from page 190) about the likelihood of finding an appropriate case, since opportunities to perform before a jury are limited for someone who has not gone through the formality of becoming a member of the bar. Then, to my absolute delight, I was threatened with a suit by a fuel-oil supplier. A letter from the company's lawyer said that if I did not pay $94.06 for some fuel oil my wife had supposedly ordered, I would be taken to court and would therefore be faced with paying much more--a calculation he apparently based on the assumption that he was dealing with some layman whose response to being sued would be to hire a lawyer. I waited quietly for the summons to be served.

When it arrived, it turned out to be an even more splendid document than I had dared hope for--a handsome form that went on and on about deponents and complainants, and then, as if that weren't enough, repeated it all in Spanish. It said that we were being sued in the civil court of the Bronx for $94.06--the price of the fuel-oil delivery that, according to an informal deposition I had already taken from my wife, we did not need and had asked to have removed. I tossed the summons dramatically onto the breakfast table. "We'll see about this in court," I said.

"You'd better call Wally," my wife said. Wally Popolizio is a lawyer who represented us when we bought our house a few years ago and has ever since felt some responsibility to prevent me, if possible, from doing anything that would clearly result in my being sold into bondage.

"I see no need to consult another attorney," I said.

"Call Wally," she said.

When I got Wally on the telephone, I was pleasantly surprised at his attitude.

"Naturally, I will refuse to pay the ninety-four dollars and six cents," I told him.

"Naturally," he said.

"And I will demand a jury trial," I said.

"Everyone has a right to a jury trial," Wally said.

"I expected you to offer me all sorts of sensible advice about restraint and compromise, Wally," I told him. "I think I've been underestimating you."

According to my wife's theory, Wally figured that getting the jury trial out of my system was a bargain at $94.06, since it made it less likely that I might leap from the audience during some criminal trial one day to harangue the jury with my summation and thereby get myself arrested for impersonating a mouthpiece.

A few days after I filed a request for a jury trial, I got a telephone call from the fuel company's lawyer. "Hello, counselor," I said, in my most professional manner, when he had explained who he was. He immediately offered to settle for half. I was intransigent, of course, having the negotiation advantage of knowing that I would not give up the jury trial even if he offered a settlement that paid me $94.06. I had already spent several days polishing the questions I would ask the prospective jurors in the voir dire. Having sat through a lot of voir dire examinations, I had prepared my questions with the awareness that sly litigators often use what is supposedly an examination of the jurors' qualifications as a pretext for arguing their cases. "Tell me, madam, if you will be so kind," I would say. "Do you think you would be able to render a fair verdict in this case even if one of the parties is shown to be a simple homeowner trying to protect his family in the city and the other party is shown to be a rich and probably rapacious oil corporation?"

When the notice of the trial date finally came from the court, I was ecstatic--until my wife informed me that the day in question was the day we were to start a long weekend in the country she had been looking forward to for months.

"But it's only a weekend in the country," I said.

"But it's only forty-seven dollars and three cents if you settle for half," she said.

"But a legal principle is involved," I said. "Think of the sacrifice that engineer we saw in small claims made when the rental car wasn't there on the first day of his vacation. They had offered him a gift certificate, if you'll remember, and he turned them down."

"He should have taken it," she said. "Wally says smart lawyers settle."

"The trial must go on," I said.

"In that case," she said, "I might have to testify for the oil company. They did go to a lot of trouble bringing that oil all the way from the Bronx."

"That's an outrage," I said.

"Fair's fair," she said.

I still think a lot of what the trial might have been like. The jury, of course, would have been convinced of our case before the first piece of evidence had been introduced--my voir dire having played them like a finely tuned guitar. The oil-truck driver would have turned vague and nervous under my questioning about what authorization he had been given to deliver the oil. ("Do you always do business that way, Mr. Pabaloma?") At times, my opponent would try to object as I turned his witnesses to jelly, but my calm rebuttal would result in his being overruled every time. "If it please the court," I would say to the judge, "I am merely trying to refresh the witness' recollection."