Wednesday, October 20, 2004

From the archives, an old trial tale

I wrote this in 2001:

Some years ago I tried a case in Kentucky with local counsel. The judge has since passed away.

When I appeared before him to be admitted to practice pro hac vice, the judge said that my partner was ok but he'd have to hear oral argument on whether I should be allowed to appear in the case, and started asking questions. He asked where I went to law school and was told William and Mary. The judge commented, "That must be a co-ed school." We were bewildered at the counsel table. The judge explained, "well, you've got both your William and your Mary, that makes it co-ed."

Later on, recalling that I was from out of town but not that I was also from out of state, the judge asked me with which of the Lexington firms did I work. Lexington is the "big city" in Eastern Kentucky. When I reminded him that I was not from Lexington at all, he said it was all right then. After he made the connection that we were from a town with a popular NASCAR track, he told us how much he liked going to the races there.

En route to a motion hearing in the case, I was running late and got stopped for speeding, and called ahead telling them to try to move us back in the docket until I got there. As it turns out, I got there in plenty of time, but someone had already told the judge that I had been ticketed. When I rose to argue the motion, the judge said, "Mr. Minor, in light of your recent brush with the law, have your civil rights been restored to where you are able to argue this motion?" "Judge," I said, "I'm innocent until proven guilty."

Our client was a company in the food business. At trial, one of the essential company witnesses, a nice woman who worked in the bakery/deli, was very shy and nervous and I wanted to get her on and off the stand as quickly as possible. After a minimal cross-examination by plaintiff's counsel, I jumped up and declared the witness was free to go. Detecting my anxiety, the judge said "Not so fast, the Court has some questions." My heart sank. The judge turned to the witness and said, "Are you the woman who makes those fried chicken livers on Saturdays? I go up there
every weekend and spend all my money there." When the woman left the courtroom and went out where the other witnesses were waiting, she exclaimed, "He asked me about my chicken livers!"

In the same trial I tried to question another witness, who was a licensed attorney working in-house for the company, about what he heard the plaintiff say at the earlier hearing on her claim for unemployment benefits. We expected some arguments about the admissibility of this evidence, but no one mentioned the statute I had in mind. Instead, the lawyer on the other side objected on the inscrutable grounds that the witness "was going to testify about something he heard while he was a lawyer." Before I could say anything in response, the judge ruled, even more inscrutably, "Objection sustained, the witness can answer." I told the judge I didn't understand his ruling. He pointed back to the table where our local counsel was still seated and said, "go back over there and find out." I thought he meant I could get the answer from local counsel, who of course had no idea what the judge meant. As it turns out, the judge meant for me to ask more questions, that the witness could say what he heard but that the unemployment hearing transcript (which we had not yet tried to introduce, but the witness held in his hands) would not be allowed into the case as an exhibit.

Eventually, the judge grew tired of our evidence. The claim was about hostile environment sexual harassment. After several of the plaintiff's co-workers recounted incidents in which she was the one telling detailed and unusual stories in the workplace about sexual matters, the judge called me to the bench and let me know that no more such evidence would be allowed. "This is a court of law," the judge said, "and we're not going to have any more of that kind of talk in here."

When the jury retired, immediately upon the closing of the door to the jury room, all of them laughed together so loudly we could hear them as we were packing up in the courtroom. Some minutes later, the jury brought back a the defense verdict, so we can laugh when these stories are retold. As the day was fine, the local lawyer and I retired to the golf course, and got in about 15 holes before dark, then I left to drive back to Virginia.

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