In the end we had to try this nightmare for yet a third time. Even as a young lawyer with no other trial experience, the prospect was depressing. As court opened and the trial started, Joe learned over and said, “You look like you don’t want to be here, and the jury can tell.”
He was right. I didn’t. But I sat up, leaned forward, and tried to look intent and fierce.
The first thing we had to establish was that Shelby had a lease that described precisely where his shop was to reside. Joe took the lease, Plaintiff’s Exhibit 1, to the stand and handed it to Shelby.
“I hand you what’s been marked as Plaintiff’s Exhibit 1 and ask if you can identify it,” Joe intoned.
“Yes.” At least Shelby had learned to answer only the question asked and not go on howling like an offended Siberian husky, which he’d done during the first two trials.
“What is it?”
“It’s the lease I signed with Mr. Cam Jackson of Jackson Builders,” Shelby said, glaring at Cam Jackson. Shelby’s tone indicated that signing a lease was unseemly.
Joe tendered the lease to the court, which introduced it into evidence.
“Now Mr. Morgan, I ask you to look at the last sheet of the lease and tell me if you can identify it.”
“Yes.”
This was Exhibit A, which would win us the case, as it showed that Morgan’s nut stand was to be located on the first floor and not all alone in the moldy basement.
“What is it?”
“Well, it’s the last page, the signature page of the lease,” Shelby said, but shakily.
Joe leaned over the witness box; “It’s not Exhibit A, the map of the first floor?”
Shelby just shrugged and held up the lease. Joe stood up, glared at me, and mouthed, “It’s not here!”
Oh fuck me. The map exhibit was missing. As I searched for a copy of it in the bowling ball bag, my heart thundered. We’d have to take a dismissal so we could refile the case later, oh fuck me, fuck me, I would be fired.
The lease and all of the other documents had been sent to the Court of Appeals as part of the record, and some numb nuts in Raleigh had torn it off and didn’t staple it back on. But it was my fault: I had one job, and that was to be sure that all of the exhibits were in order. Why didn’t I take 30 seconds to be sure that the map was still attached to the lease?
Finally I found the tragically wayward exhibit as Joe marched back to our table, glaring at me. I handed it to him. He grabbed a pen and marked it “Exhibit 1-A.”
He marched over to Jackson’s lawyer, showed it to him, then up to the judge, showed it to him. The third time through, everyone knew what it was and didn’t demand their own copy.
The judge nodded the exhibit into evidence, and Joe gave it to Shelby. “Mr. Morgan, I hand you what’s been marked as Plaintiff’s Exhibit 1-A and ask if you recognize it.”
“Yes.”
“What is it?”
“It’s the map to the lease that shows where my kiosk was supposed to be, before Mr. Jackson caused it to be moved illegally.”
For this trial, Jackson had hired a more upscale lawyer, a blond fellow called Albert Dubois, who objected furiously to the “illegally” part, and the judge upheld the objection. Shelby, having taken all of this personally, tended to editorialize.
“And when you signed your lease, did you consider Exhibit 1-A to be attached to and a part of your lease?”
“Yes, I did.”
“Thank you, Mr. Morgan. Move the admission of Plaintiff’s Exhibit 1-A”
“Admitted,” the judge intoned, bored. Wha….? Didn’t everyone just see that magic? I’ve come to see that as a routine solution to the problem of a missing exhibit, but at the time I felt like falling to the floor and weeping in gratitude and guilt to Joe.
The trial continued. My heart stopped pounding in a little while.
Closing arguments at this last trial were essential Joe. Having sensed his audience, Albert Dubois took a Bible with him. His statement essentially boiled down to some recitation of a Bible verse that held, if your cherry tree offendeth thee, cut it down. (No scholar of the Bible, I do not vouch for the accuracy of any of that.)
Shelby’s cherry tree offendeth because it didn’t produce enough revenue, which determined the amount of the rent in this case. Then he put his Bible down on the podium and sat down.
Joe got up quickly, strode to the podium, and said, “I’m glad Mr. Dubois brought this Bible up and quoted to you. That’s right, if your cherry tree offends you, you have the right to cut it down.” Then Joe stopped and looked up and down, back and forth at the jury. “But. Not. If you don’t. Own it.”
Ow. As he walked away from the podium, the jury was nodding, as they say, as one. That settled the win.
I really don’t know why Jackson persisted in defending that case. It cost him, but Joe said that Jackson would just pass the attorney’s fees and the judgment on to his tenants as increased rent.
I don’t recall when this occurred to me, but I thought what Jackson did to Shelby fell under North Carolina’s Unfair and Deceptive Trade Practices Act. The judge said yeah, and that statute triples the damages.
The $250,000 damages that Shelby proved (as opposed to $2 million haha) was tripled to $750,000, the biggest jury verdict in the history of the firm, no big deal as we didn’t generally act as counsel for plaintiffs. In litigation, to my everlasting shame, we represented defendant insurance companies that had denied claims.
With interest, after years of Jackson’s appeals, the firm’s take was probably around $300,000, or about $750,000 in today’s dollars. I wasn’t around to accept the plaudits as I’d left the firm. A nice woman named Trudy Ennis wrote our responses to Jackson’s appeals after I left.
By the way, that paltry million is more like $2.5 million in today’s dollars. Still pocket change, but pretty good for a small businessman who had run a nut and candy stand.
When we finally had our victory at the North Carolina Supreme Court, Joe invited Morgan and his wife whose name escapes me, Trudy, and me to a big dinner in a fancy restaurant at the top of a hotel in Greensboro. Money can change people. Shelby and his wife were all spruced up, he in a very pretty darned nice suit. His wife looked frilly.
I don’t mean to be condescending. Shelby was an unfailingly nice guy, and his wife was sweet though diffident. They had gotten out of the nut-and-candy stand business and were selling or leasing medical uniforms. To save money, Mrs. Morgan and their teenaged kids were models in their catalog. Mrs. Morgan was always so frail-looking and pale that she didn’t convince as a nurse.
The bottom line is that a nice, well-meaning, overly optimistic businessman (redundant) beat one of the least self-conscious villains I’ve ever encountered. Out in the hallway during a break in the trial, Jackson approached Joe and proposed that they have lunch and go fishing sometime. He probably liked Joe’s style; his own lawyers, which changed every trial, were querulous, buttoned-up, and pretentious. I asked Joe why Jackson approached him given that we were fierce opponents. “Oh,” Joe said, “this trial doesn’t mean anything to him, it’s just business.”
That was a good lesson that I was surprised to learn and have never forgotten.
When the jury had found for us the last time, we hustled back to the firm, as Joe was anxious to drive to the beach. He must have had something pretty enticing waiting for him, for Joe never missed an opportunity to hold court on trials.
But I was allowed the privilege of telling everyone how we’d won and what a genius Joe was. Partners who’d never had a victory like that sat, eyes wide, mouths open. I have to admit that it was fun, especially as generally they saw me as a dopey Yankee.
Joe always gave me too much credit. Sure, triple damages were my idea, but if he hadn’t worked his magic with the jury, three times zero is you know what.
The case even made the paper. That might have been a disaster. With Joe out of town and before the age of cell phones, a reporter called me. He asked, “Isn’t that kind of money kind of wild for a nut and candy kiosk?”
I started to laugh and say, “Man, it sure is.” I don’t know what cut through my naivete to stop me and say, “Well, we put the facts before the jury and presented the law to the judge, and that’s what they decided.”
I saved the article; I remember putting the paper on the stairs at our house. Somehow Nancy recycled it, and the Greensboro News and Records files don’t go back that far. It doesn’t matter. I will never forget that case, including especially the fury on Joe’s face when at the witness box he held up the lease and mouthed, “It isn’t here!”
Joe died a few years ago. We kept in touch for years and spoke for the last time after he’d had a heart attack and bypass surgery. He said, “It was 4th of July and I tried to eat every hamburger in Guilford County.”
I heard that he had a difficult recovery, and I’m not sure was ever at full speed again. He called me “George Jarhead Jarecke!” and was unfailingly loyal. After I left the firm and fell on hard times, he was eager to give me contract work to help out, but the mean-spirited firm put the kibosh on that.
He was about the best, smartest, and least pretentious trial lawyer I ever met, which is truly saying something. By the end of our trials together, I began even to think that I could try cases, which was just a mirror of Joe’s confidence. I miss him like a father.
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