by Reason of Sanity

by Gene Grossman

  Harold’s shrink exam results probably won’t be back for at least another month, and the special investigations I requested won’t be completed for at least a week or two, so now’s a good time to concentrate on Stuart’s defense to those barratry and champerty counter-claims.

  At this point I’m a little confused. According to the common law definitions of Champerty and Maintenance, anyone who finances another person’s lawsuit and then shares in the proceeds is guilty of the offense, but that’s what lawyers do every day. It’s the main basis of an attorney’s Contingency Agreement. The client pays nothing unless the lawyer wins the case. In the typical contingency case, a lawyer advances all costs of litigation and if there’s a victory, the lawyer gets reimbursed for his expenses and also takes a percentage of the recovery.

  Several years ago the legislature saw fit to prohibit private investigators from also working on a contingency basis, because they’re usually called to testify. It was felt that no witness’ credibility should be tempted by monetary reward. That’s the reason why people who’ve already sold their story to a magazine are looked upon as less than credible witnesses. If they change their testimony in court in any way that differs with the exaggerations contained in their previously sold story, they run the risk of being asked to return their fee from the magazine.

  I guess that because most of the legislature is composed of attorneys, they rationalized exempting contingency lawyers’ fees because the lawyer can’t be called to testify in a case he’s working on. Also, contingency fees give people access to legal representation that they’d probably never be able to afford.

  But this reasoning doesn’t help Stuart. He can’t claim he was working on a contingency, because he’s not a lawyer. And if he were a lawyer, he wouldn’t be allowed to bring all those actions, because they don’t allow lawyers to represent people in Small Claims Court.

  It’s true that S tuart advertises for clients who have received un-solicited faxes but he doesn’t create unfounded claims. Unlike a recent situation where some Beverly Hills law firm filed actions against hundreds of small businesses claiming that the risk of consumer fraud might exist, Stuart has actual fax receivers who have valid claims. All that Stuart does is organize them and process their claims. He’s one step above those typing services that help people fill out divorce and bankruptcy forms, because he goes the extra mile and appears as their assignee in the courtroom.

  It’s quite obvious what’s going on. The business of sending out huge numbers of un-solicited faxes is big business and those fax broadcasters are all probably organized into an association of telemarketers with some political clout. If they allow someone like Stuart to get away with what he’s doing, it might get publicized and set a precedent, so that they’d be facing someone like Stuart in every jurisdiction in the country. They can’t afford to have that happen, so they’ve ganged up on Stuart with this outrageous counter-claim, to stem a possible tide of costly litigation. They’re fighting for their lives here and I’ve got to come up with some good defense to stop them in their tracks. I really can’t blame them for trying to defend themselves, but a lawyer can only be on one side at a time, and in this battle, Stuart is my client.

  If I try to fight the law, I don’t have much to work with, so I’ll have to completely destroy the witness in this case. That’s why I’m glad Jack Bibberman did that secret, naughty task for me at the Santa Monica courthouse. I’ve now got the answers to their Interrogs, so I’m going to push for a trial on this case as soon as possible. It’s only a municipal court action, so we should be able to get a trial date pretty soon. They’re not as backed up as the higher courts are.

  The only snag so far is that Jack B. has failed to come up with anything derogatory about the fax spammers. They report their income, pay their taxes and have no criminal records. They’re also young, attractive guys who work very hard and will probably make excellent witnesses on their own behalf. That would ordinarily be tough to combat, but I’ve got an ace up my sleeve. I’m having our office fax a very small set of supplemental Interrogs to the other side’s lawyer. It’s about time their side received an unsolicited fax.

  The Mike Drago medical reports and evaluation have come in. Other than the damage to his ribs, the only other injury the x-rays showed was a bruised coccyx, or tailbone. That’s understandable, because the bank’s security video shows him falling on his ass. Protection of the coccyx is why people wear padding on their rear ends when they go skating. Other than wrist and head injuries, the coccyx is a target part of the body for anyone who falls over backwards like Mike Drago did.

  Unfortunately, the medical experts all agree that his broken ribs were not pre-existing injuries. Knowing how anxious insurance doctors are to find pre-existing conditions, when they say something wasn’t there before, you can take it to the bank. The only other possible conclusion is that the slip-and-fall in our insured’s bank caused his broken ribs and bruised coccyx.

  But the doctors are as confused as I am as to how landing on his back like that could damage his ribs. This is just another in a series of unanswered questions I’m faced with on this case. I send a statement to Indovine’s office and to my surprise, he sends a note to me, expressing his satisfaction with the work I’m doing.

  What the hell is he satisfied with? All I’ve done so far is show that the claimant’s injuries actually were the cause of his fall at the bank. That’s not good for us. What’s good for Indovine is the fact that I’m putting in plenty of time on this case – all billable hours that he and his firm will make money on. Someday someone will make a scale of justice that shows the balance between the lawyer’s bank account and the client’s welfare. I wonder which side will outweigh the other. And I’m part of it now because shortly after sending in each of my weekly hourly statements, a check from Indovine’s firm comes in the mail – and neither me nor the teller at my bank refuse to accept each one.

  Harry Michael’s court date is today and I intend to be there, with a twenty-dollar bill in hand for his jail inmate account. If the Public Defender is true to his word I should have about fifteen seconds to talk to Michaels before he’s taken away to start serving his sentence.

  The courtroom looks like something out of a movie, completely packed with attorneys and relatives of the defendants, who are brought out from the holding cells in groups of twelve and seated in the jury box. After each dozen cases concludes, the court takes a short recess and another group of prisoners is brought out from lock-up and seated.

  The bailiff points out the Public Defender I’m looking for. He looks harried, with a bunch of files under his arm and another batch on the counsel table in front of him. I introduce myself and hand him the twenty-dollar bill. He holds it up in the air so that his client can see it. I look over at the jury box and see one of the defendants nodding in recognition. The P.D. tells me that because I’m an attorney, it will probably be okay for me to go over to the jury box and talk to the defendant. Other lawyers are over there talking to their clients, so I won’t look out of place.

  I go over and introduce myself. “Hello, Mister Michaels, my name is Peter Sharp, and I represent….’

  Harry cuts me off mid-sentence. “I don’t care who you represent. All I care about is that you’re the guy who’s putting some money in my account at the jail. Whattaya wanna know?”

  There’s nothing like cutting out the small talk. “Mister Michaels, I wonder if you’d please tell me what you were doing in the restaurant that night you had the accident. Were you a customer there, or an employee?”

  “I wasn’t none of those.”

  “Well you were there for six hours that night, and you had quite a bit to drink, so if you weren’t a customer or employee, what were you doing there?”

  “I was working a private party upstairs in the banquet room.”

  “Doing what?”

  “I was the bartender.”

  “Whose party was it?”

  “It was for some rich old g
uy who lives in the neighborhood, but didn’t want to dirty up his penthouse, so he had the party in his restaurant. They paid me fifty bucks and I worked until the party broke up.”

  So that’s it. That’s the reason why his name didn’t show up as an employee, and he couldn’t be picked out as a customer. He was upstairs working a private party and getting drunk. This is nice to know, but presents another set of problems with respect to the dram shop laws, because one of the requirements is that the liquor-providing establishment must have had notice of the drunk’s intoxication or that his outward appearance should have given someone notice that he deserved to be cut off, or ‘eighty-sixed’ for the evening. But if he’s the one who’s doing the serving, who is supposed to cut him off from drinking? I can tell that it’s back to the law library for this one. No wonder Patty Vogel was so quick to deny the claim. She must have known all of this from the beginning.

  The only good thing about all this is that she doesn’t know that I know. It’s not a big advantage, but any time you have even a little bit of knowledge the other side doesn’t know you have, you’re ahead of the game.

  This is another case that’s going to turn on the law itself. No tricks on this one.

  11

  A

  s expected, Stuart’s case moved quickly through the court’s scheduling process. I tell the court that as far as our side is concerned, the trial should take no more than one day - but the other side gives the court notice that they might need a full week to adequately present their case. The big guns are in town for this one, representing all the country’s fax broadcasters. They obviously want to let all the other Stuarts out there know you can’t stop them from sending out their unsolicited junk faxes.

  From the looks of the briefcases that are being wheeled into court, they’re probably going to present a history of the common law of England, to show how people who stirred up litigation were put into ‘stocks’ in the public square – those nifty wooden devices that only let someone’s head and hands hang through, on display for all the townspeople to ridicule.

  My entire case hangs on whether or not my ace in the hole came through for me. Stuart is as white as a ghost. In a desperate effort to be judgment-proof, he’s already transferred all of his assets over to his accountant, just in case a nasty verdict comes down against him. In some ways, I don’t blame him. Every time you walk into court it’s a crapshoot. You never can tell what will happen.

  The other side’s attorneys introduce themselves to me in a polite professional way. There is no jury, but the box is full of people. The bailiff tells me that it’s a small courtroom, so they’re letting the press sit there. I recognize a representative of the ACLU. I guess they’re against us too – maybe they feel the fax broadcasters’ right of free speech is being infringed on.

  The bailiff makes his announcement calling the court to order and the judge waltzes in through his private entrance, looks at the full house, steps up, and takes the bench.

  The judge sees that we’re all in place at the counsel tables, so he starts the ball rolling. “Civil case number C001838, Stuart Schwarzman versus Fax Broadcasters of Santa Monica, having been transferred to this court from the Small Claims Court Division, Defendant Fax Company being the moving party.”

  As usual, all of us stand, stating our name and representation for the record. The judge signals their head counsel to start his case.

  “Thank you, Your Honor. Appellant in this matter intends to establish to the court’s satisfaction that Mister Stuart Schwarzman’s actions are a textbook example of what the courts of Europe and the United States have held for centuries as unsatisfactory conduct. He has made numerous attempts to exploit the people’s courts for profit, by stirring up litigation among citizens who would not ordinarily be prone to institute these actions, fitting perfectly into the common law and statutory definitions of Barratry, which is not only actionable in a civil court, but is criminally prosecutable under the California Penal Code section 158, which we would ask the court to take judicial notice of.

  “Furthermore, his conduct also falls within the purview of that same code’s section 159 because he has, as stated in the code, executed suits or proceedings at law in at least three instances.

  “At the end of this trial, we will be asking the court to have a transcript of this matter sent to the proper prosecutorial departments for criminal action against Mister Schwarzman.”

  I feel a tug at my arm. Stuart whispers nervously into my ear “can they do that?” I try to wave him off. Their attorney continues.

  “And in addition to the offense of Barratry, we intend to show by a preponderance of the evidence, that Mister Schwarzman has made agreements with his assignors, so that he will share in the proceeds of each Small Claims Court action he has filed, thereby constituting the civil offense of Champerty.

  “Our witnesses will testify to the fact that at no time was any claim assignor asked to expend any costs for the prosecution of these matters, all said expenses being borne entirely by Mister Schwarzman. This conduct has been termed Maintenance, and is also frowned upon by nearly all of the enlightened jurisdictions, one of which we feel is this venue.

  “Therefore we will be asking the court to have all current actions being brought by Mister Schwarzman against our client, and against all other similar organizations, dismissed with prejudice, and he be ordered to pay statutory damages, our clients’ legal fees and also cease and desist the bringing of any further actions of this nature in this court or any other court in this State.”

  The attorney holds up a list of all the small claims court actions that Stuart filed during the past months and hands it to the bailiff, to be given to the judge.

  Once the judge starts looking over the list, the attorney continues. “Your Honor we would ask the court to take judicial notice of these fifty-nine Small Claims Court Actions filed by Mister Schwarzman, each one constituting another count in our Complaint. They were all filed down the hallway in this very building, in room 102.

  “We also contend that it is Mister Schwarzman’s intent to violate our client’s Freedom of Speech rights under the First Amendment to the Constitution of the United States.

  “Thank you, Your Honor.” He finally sits down. His client looks at him warmly, as if they’ve just won the first battle of this war. And maybe they have.

  The press is feverishly taking notes. The judge looks down at me. “Mister Sharp, would you care to say anything?”

  “Not at this time Your Honor. We reserve the right to make our opening statement at the time of presenting our defense.”

  Once again I feel Stuart desperately tugging at my sleeve and whisper-shouting. “What? You’re not going to say anything? How can you let that guy get away with all that? You should say something.”

  I lean over and whisper in his ear “Stuar t, the reason I didn’t say anything, is because so far, he’s correct in everything he’s said. I don’t want to get into a pissing contest with him now, because it’s not the proper time yet… just relax, I’ve got something planned that might end this whole thing.”

  Stuart sits back in his chair but I know he’s not relaxed and I don’t blame him. The only chance we have of winning this case is if people behave as I assume they will. I look to the back of the courtroom and see Jack Bibberman sitting there. He gives me the ‘thumbs up’ sign. I wish I felt as confident as he does.

  The other side starts calling their witnesses, which are no surprise, because in accordance with the rules, we were provided a copy of their list. As each one is called to testify, I check his or her name off on the list. Included are several well-known scholars of Constitutional Law, the president of some national telemarketing organization, several clients who have built up successful businesses as a result of mass fax campaigns they conducted, some idiot lady who claims she likes to receive all those faxes – makes her feel like she’s got friends, a mailman who testifies that without fax broadcasting cutting down on the mail being se
nt, he wouldn’t be able to carry his mail bag every day, and on and on.

  Notwithstanding Stuart’s wrinkling my goin’to-church suit sleeve with his incessant tugging, I pass on my turn at cross-examination of every witness – until they call their own client to the stand

  – Marvin Bennett, the nice young hard-working man who owns the company that sends out all of the faxes.

  His attorney does a nice job of estab lishing him as a pillar of society, family man and one who donates to charities. The lawyer sits down. The judge is no doubt wondering if I intend to cross-examine any witnesses in this trial, so he politely addresses me. “Mister Sharp, do you have any questions for this witness? Any at all?”

  It’s now or never, so before Stuart goes into cardiac arrest, I stand up. “Yes, Your Honor, we do have just a few questions for this witness.” The judge looks relieved, probably glad to see that I finally came out of what he must have perceived as some trance during the first portion of the trial.

  I start out very politely, asking some softball questions about where he gets the telephone numbers that he broadcasts to. As expected, he explains how they are all on lists sold to him by companies that gather the numbers from people and businesses that have no objections to receiving the faxes.

  Next, I let out a little more rope. “ Mister Bennett, do you ever add to your list the numbers of people who have asked you to never send them a fax?”

  He denies this very strenuously. I produce a list of names from my briefcase and one by one, start to read off the names. “Mister Bennett, do you recognize any of the eleven names I’ve just read off of my list?”

  “Not a one, counselor.” The judge looks at me with a puzzled expression on his face… and I know why.

  I address the court. “Your Honor, with the court’s permission, I would like to use a display, which is an enlargement of the affidavit which all eleven of the names just recited have executed.