The other lawyers all jump up to object on grounds of relevancy, surprise, failure to give them notice and some other grounds I never heard of before. I try to stop their objections and get permission to proceed with my display. “Your Honor, this display is not being offered into evidence, it’s only being used to refresh the witness’ memory.” The judge overrules their objections and lets me continue.
Pointing to the display, which is a two-foot by three-foot enlargement of one of the affidavits that simply states “Please refrain from sending any unsolicited faxes to this telephone number,” followed by the phone number. It is signed, dated and notarized.
“Mister Bennett, this is an enlargement of one of the eleven letters all sent to your office by certified mail, with a signature receipt requested. We are also prepared to offer into evidence the original signed receipts for the mailings. Does this refresh your memory?”
“Mister Sharp, our office receives quite a bit of mail each day… I don’t see and read every piece.”
The judge looks extremely interested now. I go over to the easel and remove the first affidavit, revealing a large poster, containing a collage of twelve faxes.
“Mister Bennett, do you admit to the fact that your company has sent out faxes like every one of these during the past sixty days? And isn’t it a fact that you do in fact represent every one of these businesses, as their fax broadcaster?”
He looks at the faxes on my easel and then looks at his attorneys. He’s getting a little uncomfortable now. “We may have sent out some faxes like that… they look vaguely familiar.”
Now I tighten the rope a little. “Mister Bennett, if I were to tell you that every one of the eleven people on my affidavit list are willing to testify that not only have they received these dozen faxes but they checked with their employers, the people whose fax machines these were sent to, and that the employers all strongly denied ever subscribing to or opting in on any list which would allow you to send them faxes – what would your response be?”
He has a smug smile on his face. “I’d say that their employers were all a little weak in the memory department. They must have done business with some company or opted in on some list that gave us the legal right to send faxes to them.”
“Mister Bennett, are you claiming here in open court, that you are right and that the superiors of every one of those eleven people are wrong?”
“That’s right counselor, their bosses must all be mistaken and I don’t think you can prove otherwise.”
I look up at the judge. “That’s all for this witness, Your Honor, and if the Appellant rests its case at this time, so do we.” I sit down and Stuart almost rips off my sleeve.
“Pete, are you nuts? They’ll kill us. You haven’t done anything but show some posters. We’re dead!”
The faxer’s lawyer stands up to make a motion, but I cut him off by speaking first. “Your Honor, at this time we would ask the court for a fifteen minute recess, so that we might confer with the appellant to discuss a settlement of this matter.”
As I look over to the other table, they are all jubilant. They think the war is over. The judge looks down at us with a slight smile on his face. “Mister Sharp, I think that’s an excellent idea. I’ll look forward to seeing you all back here in a while with a settlement for me to approve.”
The judge steps off the bench and I signal to the other attorneys that we should use the empty jury room. Stuart looks like he’s going berserk. He thinks I just gave the case away to the other side. His mouth is moving like a fish out of water, but no sound is coming out. I lean over and whisper in his ear that everything is going to be okay and that he should trust me. He sits down. Over at the other counsel table the lawyers are shaking hands with each other and with their client, Bennett. They all don’t know it yet, but they’re now experiencing a severe case of premature congratulation. We all walk into the jury room and after they’re seated, I begin my presentation.
“Gentlemen, this case is over. In the next ten minutes, a settlement will be reached and we will all be out of here.” They look at each other and exchange smiles of success.
“First of all, let me fill you in on a few things. Number one, the eleven people on my affidavit list are all clerks – for judges in this building. That means the employers your client was demeaning out there are all Municipal and Superior Court judges, all friends and associates of the judge in this case.
“Second, every one of the eleven received at least twenty unsolicited faxes from your client after they expressly informed him by certified mail that they did not want to receive any faxes from him.”
“Third, each fax number on the list was a personal fax number assigned to the machine in each one of the judges’ chambers – machines that were installed less than ninety days ago and assigned brand new numbers by the telephone company at the time of their installations.
“This means that your client is full of crap. He’s a liar. These are all new fax machines and new telephone numbers. The judges never subscribed to any service nor did business with any company and never gave the fax numbers out to anyone but the presiding judge, who wanted the fax machines solely for the purpose of sending official court memos.
“Your client obtained their new numbers by using an unlawful ‘war dialer, that automatically dials every telephone number in numerical order, hoping to randomly discover fax lines, or through some other unlawful means from an accomplice, who illegally provided him with newly assigned fax numbers on a regular basis, constituting a criminal conspiracy and therefore subject to forfeiture and seizure of assets through the federal RICO laws.
“Your client also received the notices to not send these judges any more faxes, and instead of complying with their requests, continued to bombard them with unsolicited faxes and then sold their numbers to other mass fax broadcasters who continued the same unlawful process.
“Your client lied in open court under oath, and you gentlemen have already asked that the court send a copy of the transcript of this trial to the prosecutors. You wanted to see my client nailed for a misdemeanor Barratry charge but instead your client may go to the penitentiary for felony perjury.”
I look down at their faces and wish I had a camera with me to capture the scene. If it was printed up and distributed, I’ll bet it would sell more copies than the ones of those dogs playing poker.
“Now here’s what I suggest. You go out there and tell that lying client of yours that he is dismissing his counter-claim and agreeing to pay the minimum five hundred dollars damages on each of the first faxes sent to the judges’ chambers. Due to the fact that he continued his practice after receiving notice to cease and desist, the damages on each of the other 19 faxes sent to each of the eleven judges’ chambers qualifies under the federal law for a treble penalty of fifteen hundred dollars each. This portion of the settlement check will be made out directly to whatever charities the judges select.
“As for the remaining cases out of the fiftynine actions you so generously told the court about, your client will pay the minimum of five-hundred dollars plus court costs, for each – said payment to be made to my client, the assignee, Stuart Schwarzman.
“And lastly, your client will agree to immediately remove those thirteen numbers from his list, along with any other numbers of people who ask to be removed in the future – and make no mistake about it. Every once in a while he may be tested by another request for removal and he’ll never know if it was from us or not.”
After a prolonged silence, I get up and walk out of the room. Shortly thereafter, all the big guns come slinking out of the jury room, tails between their legs. A note is given to the clerk, telling the judge that the action has been withdrawn and a settlement has been reached. Before we have a chance to leave, the clerk tells me that the judge wants to see me in chambers. This a request that no attorney ever refuses, so I follow the bailiff back into the private hallway.
“Mister Sharp, that was a nifty job you did out there toda
y, but you realize that if they didn’t ‘cave,’ I would have had to recuse myself from hearing the case.”
“Yes Your Honor, I knew that. You can’t be on any case where there’s even the remote possibility that you or one of your staff might be called as a witness.”
“You took a big chance there, Peter – you’re lucky it worked.”
“It’s the old rule, Your Honor, you can’t shake down an honest man. Bennett’s a liar. He doesn’t care who he spams with that junk as long as he gets his fee. Anyway, thanks for the courtesy Your Honor. As soon as your clerk sends me the list of the charities your associates want the donations sent to, we’ll see to it that the checks are sent out.”
As I step out of his chambers door he calls out to me. “Oh, by the way, I got a great deal on a vacation from one of those faxes.”
12
T
he problem with performing magic is that you never want to repeat the same trick more than once to the same crowd, because if they get wise to
your slight-of-hand, you’ll never get away with
anything again.
Once again I got lucky and won a case
without using any knowledge of the law, which has
always been my weak suit. I explain to Stuart that he
really owes his thanks to the guy driving our car, Jack
Bibberman, for getting all the judges’ clerks to go
along with our plan.
With this case out of the way, I’ll have some
time to concentrate on designing new illusions to use
for my other clients. On Harold Blitzstien’s murder
case, I’d like to be able to create a cloud of smoke
and disappear from the courtroom just before the
guilty verdict comes in.
I’m also definitely going to need some magic
for the other two cases on my plate. Mike Drago’s
ribs were definitely broken by his fall in the bank,
which may increase the insurance company’s
liability. Not only did the claimant die, but he
probably took my insurance defense career with him. Vinnie’s defendant wasn’t a customer at the
restaurant – Harry Michaels ‘self-medicated’ himself
into a state of drunkenness, so I probably won’t be
able to use the Dramshop laws against Patty Vogel’s
restaurant client. Things are definitely not looking
too good for me. If it weren’t for the steady
paychecks from Melvin’s old practice, I’d be in deep doo-doo, because all of my fees from previous cases are tied up in CDs.
Every time I see a magician he seems to have a beautiful long-legged female assistant who wears a Playboy Bunny-type of costume and sensuously parades around the stage handing him things.
My assistant is Jack Bibberman, who isn’t particularly long-legged and if he ever shows up at my boat wearing one of those Bunny suits, he’ll immediately be fired. The one thing he does have going for him is his ability to get the assignments done.
Today his assignment is to find out anything he can about the party that Harry Michael worked. Who hired him, what the party was for and anything else we might be able to use, because once I wrap up Vinnie’s case I intend to spend full time on the Bank matters – both the slip-and-fall and the murdered claimant.
Somewhere in the back of my mind I have the strange feeling that these two cases are tied together. It’s just too coincidental that I happen to be representing the insurance company for the bank where a guy fell and also the guy who is charged with killing him. There must be some fate at work here.
With Jack concentrating his efforts on finding the facts, I think I’ll try to hold up my end of the work by concentrating on the law – and the law is kind of strange when it comes to liability of land owners to people who injure themselves on that land. If this were going to be a California case, we wouldn’t have much of a problem because claims for pain and suffering don’t survive the death of a claimant. But the lawyer representing Drago’s family will be filing this case in the Federal courts of Illinois, and that puts me back at square one.
Under the old laws of England and the United States, the liability of a land owner to people who were injured on his property depended on the classification of the injured person – whether they were a business customer – referred to as ‘invitee,’ social guest, or trespasser. Each category of visitor was owed a greater degree of care.
In a landmark 1968 decision, the California Supreme Court said “…A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose…” With one stroke, they eliminated the distinction between the categories – but in my mind they still exist.
Although it may sound rather pompous for an attorney to disagree with his own state’s Supreme Court, I don’t think I should be blamed for feeling that a burglar who breaks into your house shouldn’t be able to sue you because he tripped over your kid’s toy fire engine and fell down the stairs. Maybe the court would be happier if the burglar didn’t trip and instead made it into the upstairs bedroom, where he might have gotten shot – with no chance of recovery at all in a court of law.
This may not make much of a difference as far as the black letter of the law is concerned, but it sure will count in the minds of the jury. In a case like that they might get an instruction from the judge that the burglar is entitled to an award for damages, but I’d be surprised if the jury gives him much more than the minimum of one dollar.
With respect to the Drago case, we’re still waiting for the bank to come back with some info on whether or not he had an account there, or with any other branch of that same chain of banks. If our search shows that he did have an account, then he was a business invitee while present in the bank and that category of visitor gets the highest treatment, outside of California.
If Drago didn’t have an account at the bank, then he would only be a business invitee if he was there to open an account, apply for a loan or other service offered, or to transact some business with a teller.
His personal p roperty stored in the police evidence locker didn’t contain any check to be cashed, money to be deposited, or any other documentation that would make him a customer of the bank, so the question still remains as to what he was doing in the bank on that day. He is lucky about one other thing though… he was taken out of there before the bank robbers arrived.
If I can get his status lowered below that of a business invitee, it might save the insurance company some money. Even better would be if I could get him lowered to ‘trespasser’ status, but that’s a magic trick I haven’t learned yet. Jack Bibberman is out working on the case, so anything’s possible. I see Jack’s cell phone number on my caller ID display as the phone rings.
Jack checked criminal court records over the past two years and we’ve had subpoenas issued to the bail bondsman who bailed Harry Michaels out each time he was arrested for drunk driving. Big surprise – the sponsor on his bail bond each time was a Mister Robert Palmer, who I crossed swords with once before on a sexual harassment suit. He owns two restaurants on Washington Boulevard in the Marina, a seafood place next door to our favorite Chinese restaurant, and the Mexican place across the street, where Harry Michaels did his bartending the night of Vinnie’s tree injury.
I tell Jack to concentrate on the party Michaels tended bar for, and to find out the names of some guests who attended. We certainly could use some witness statements on this case if we’re to have any hope of hanging liability on the restaurant under the state’s Dramshop laws.
Until Jack comes up with anything interesting, all I have to work with are the videotapes. There are only two five-minute portions crucial to the cases. On the bank tape, it’s the one where Drago slips and falls, and on the hospital tape, it’s w
hen Harry Blitzstien ‘visits’ Drago and smothers him with the pillow.
There are several UHF and cable channels that keep re-running the old Matlock and Diagnosis Murder shows. Andy Griffith and Dick Van Dyke both share the uncanny ability to look at the same photos or videos that the police and everyone else have seen, and miraculously spot some previously missed clue that completely destroys someone’s alibi and reveals who the killer is. Van Dyke will usually create an ingenious plot to trap the bad guy. Andy Griffith’s Matlock character does it by crossexamination, getting the killer to break down on the witness stand and confess. I’ll never be that good. No lawyer will. Things just don’t happen like that in real life.
I’ve looked at these videos and the still photos of some frames over and over again. Nothing. I’m getting the feeling that there’s nothing that I’m missing… there’s just nothing to find. I’ve shown this stuff to Stuart, Jack Bibberman, the dog, and I’m sure that the kid has seen it all too. No comments from anyone. I can’t believe that both Myra and Drago’s estate lawyer are going to be able to walk all over me. It’s not fair.
The only thing I can see that might help out a little is that in the bank, the kid who spilled his coke on the floor did it completely un-noticed by anyone. For the next ten minutes or so there was a steady stream of people over to the deposit-slip island in the middle of the bank lobby and with that morning’s heavy bank traffic, it’s no wonder that nobody saw the small spill to report it. That part of the bank isn’t too well lit and the coke was almost the same color as the dark marble floor.
Maybe I’ll be able to argue that it wasn’t negligence on the part of the bank to not have discovered the spill and that because the tape shows numerous customers walking around it, that it wasn’t hard to see, thereby making Drago partly to blame for not watching where he was walking.
I receive a brief email from the court clerk that lets me know the psychological examination results have come in on Harold Blitzstien. She was nice enough to give me an advanced tip that he was found fit to stand trial.
by Reason of Sanity Page 8