Category Archives: Law

A KAFKA ENDING TO OUR TRIAL

After two weeks the  jury trial I was involved in was ended by the judge declaring a mistrial. With over a hundred motions before trial and multiple motions during trial it finally just was stopped as a mercy killing. The judge decided that he should not have allowed evidence about the driver’s past driving and criminal history and  that as a result he felt he had to grant a mistrial. The entire experience reminded me of a Kafka novel  and and the continous defense objections with numerous  motions of  the Jack Nicholson classic movie scene.

You’ll remember Franz Kafka wrote a novel The Trial about Joseph K who is arrested for reasons he is never told and goes through the ordeal of a justice system that was a nightmare without explanation or reason. One passage of the novel reminds me of the lawyers involved in this trial.It reads:

“There is a story, for instance, that has very much the ring of truth about it. It goes like this:

One of the older officials, a good and peaceful man, was dealing with a difficult matter for the court which had become very confused, especially thanks to the contributions from the lawyers. He had been studying it for a day and a night without a break — as these officials are indeed hard working, no-one works as hard as they do.

When it was nearly morning, and he had been working for twenty-four hours with probably very little result, he went to the front entrance, waited there in ambush, and every time a lawyer tried to enter the building he would throw him down the steps. The lawyers gathered together down in front of the steps and discussed with each other what they should do; on the one hand they had actually no right to be allowed into the building so that there was hardly anything that they could legally do to the official and, as I’ve already mentioned, they would have to be careful not to set all the officials against them. On the other hand, any day not spent in court is a day lost for them and it was a matter of some importance to force their way inside.

In the end, they agreed that they would try to tire the judge out. One lawyer after another was sent out to run up the steps and let himself be thrown down again, offering what resistance he could as long as it was passive resistance, and his colleagues would catch him at the bottom of the steps. That went on for about an hour until the judge, who was already exhausted from working all night, was very tired and went back to his office”

The defendants  exchanges with the judge were often not unlike the scene from the 1970 movie Five Easy Pieces, where Jack Nicholson plays the role of Bobby Dupea. Dupea tries to place  an order modifying the menu,  but the waitress enforces the “no substitution” rule:

Bobby: I’d like a plain omelet no potatoes tomatoes instead, a cuppa coffee and wheat toast

Waitress: No substitutions

Bob: What do you mean? You don’t have any tomatoes?

Waitress: Only what’s on the menu. You can have a #2, plain omelet, comes with cottage fries and rolls.

Bobby: I know what it comes with but it’s not what I want.

Waitress: I’ll come back when you make up your mind.

Bobby: Wait a minute, I have made up my mind. I’d like an plain omelet, no potatoes on the plate, a cuppa coffee and a side order of wheat toast.

Waitress: I’m sorry, we don’t have any side orders of toast. It’s a muffin or a coffee roll.

Bobby: What do you mean you don’t make side orders of toast. You make sandwiches don’t you?

Waitress: Would you like to talk to the manager?

Bobby: You’ve got bread and a toaster of some kind?

Waitress: I don’t make the rules.

Bobby: Okay, I’ll make it as easy for you as I can. I’d like an omelet plain and a chicken salad sandwich on wheat toast, no mayonnaise, no butter, no lettuce. And a cup of coffee.

Waitress : A #2, chicken sal sand. Hold the butter, the lettuce, the mayonnaise, and a cup of coffee. Anything else?

Bobby: Yeah, now all you have to do is hold the chicken, bring me the toast, give me a check for the chicken salad sandwich, and you haven’t broken any rules.

Waitress: You want me to hold the chicken, huh?

Bobby: I want you to hold it between your knees.

I think you get the idea. A very frustrating and difficult experience for our client whose husband died  in the flames of  his pickup truck after a delivery truck rear ended him.

 

SOME INTERESTING FACTS ABOUT JUSTICES OF THE U.S. SUPREME COURT

The book, Secret lives of the Supreme Court by Robert Schnakenberg has some interesting facts about the people who have been appointed to the U.S. Supreme court. As Robert Ingersoll once said: “We must remember that we have to make judges out of men, and that by being made judges their prejudices are not diminished and their intelligence is not increased.” Here are some examples of that fact from the book.

Justice James Clark McReynolds was the Archie Bunker of the Supreme Court who left a legacy of racial and religious bigotry unrivaled by any other justice. He was widely loathed by his colleagues on the bench. When he died in 1941 not one of his fellow justices showed up at his funeral.

He refused to eat, shake hands with, or talk to” Hebrews”" as he called Jewish people. When Louis Brandeis was appointed to the Supreme Court in 1916, becoming America’s first Jewish justice, McReynolds refused to speak to him for three years. He would get up and leave the chamber whenever Brandeis began to speak. He refused to participate in the group photograph of the justices with Brandeis. When Benjamin Cardozo was appointed as the second Jewish member of the court, McReynolds read a newspaper throughout the swearing-in ceremony and refused to speak to him after he took his seat on the court. He was an equal opportunity bigot. He openly said that blacks were “ignorant, superstitious, immoral and with but a small capacity for improvement.” But,Jews and blacks were not the only thing McReynolds had a bias about,. It included women. When a women attorney appeared before the court McReynolds simply vacated his seat and left  as soon as they started to speak.

Felix frankfurter did not get along with his colleagues very well. He and Chief Justice Fred Vinson could not stand each other. When Vincent died of a heart attack in 1953, a gleeful frankfurter couldn’t resist saying on the ride home from the funeral : ” this is the first indication I have ever had that there is a God.”

Justice Frank Murphy professional motto while practicing as a lawyer was:” all clients are bastards.”

The book says Justice Tom Clark was one of the least intelligent and most corrupt justices ever to sit on the Supreme Court. A fixture of bribery and racketeering scandals. During his stint as US attorney general in the 1940s he was well known as a tool of organized crime. Harry Truman came to regret his appointment calling it: “My biggest mistake. It isn’t so much that he is a bad man, it’s just that he’s such a dumb son of a bitch.”

Justice William Brennan  told his friends upon taking his seat on the Supreme Court ” I am the mule in the Kentucky Derby. I don’t expect to distinguish myself, but I do expect to benefit by the Association.”

Justice Lewis Powell always  regretted having given up his law practice for a seat on the Supreme Court. One day, while having lunch with Larry Brown, the star running back for the Washington Redskins, asked the justice whether he preferred being a lawyer or being on the Supreme Court. Powell said: ” Would you rather be a player or a referee?”

A verdict for justice

After 5 weeks of trial and 4 days of deliberations the jury came in with a verdict for our clients of $40,100,000. The multi-million dollar verdict was not only fair but reasonable in this very important medical device malfunction case. The jury did a careful job of studying all the evidence and arriving at a just verdict.