OMG, I can’t believe it took me 140 posts to write this. You can’t get any lower or higher than I did during this, one of just a few jury trials in which I participated. Joe Moss, a senior partner in my first law firm, tried this case three times, and I was right beside him for all of them.
I was a year or two out of law school, and, though I wanted to be a corporate lawyer, the firm didn’t have enough corporate work (corporate formation, governance, finance, employment issues, transactions, stock offerings) for everyone who wanted to do it. They made me try cases with a big-headed, greying, stocky, glowering ex-Duke fullback named Joe Moss.
Moss was a legend. Everyone had a story about having to “second-seat”, i.e., assist him at some proceeding or another. Jeff Meyers told me about being a first-year lawyer and assigned at the last minute to assist Moss at an arbitration, which procedure was new to everyone then. After a good number of rulings went against him, Moss proclaimed, “I’ve done 26 arbitrations and not one has been handled as badly as this!” and stalked out, leaving Meyers at the counsel’s table, where he shrugged and grinned, having no idea what he was supposed to do next.
As a consequence, the rumor was that no one wanted to go to court with Moss. I loved him. He was smart, funny, irreverent, and, though he was still pretty young, had zero fucks left to give.
We got this case at the last minute before trial; Shelby Morgan’s lawyer had become incapacitated, or suspended, or jailed, who knows what. Mr. Morgan came in to meet with us. He was a fidgety little man with dark hair and glasses and a plaid sports jacket—I’m afraid that undistinctive is accurate, except that he talked too much, in a low, quick voice that matched his motions: fidgety.
What I remember most was Shelby describing what had happened and Joe leafing through Shelby’s files, nodding, reading, glancing, turning pages over, nodding more—somehow listening and taking it all in while examining Shelby’s documents.
Later, at trial, Joe would be questioning someone and would lean over and whisper, “Give me that document!”
What fucking document? I’d been through them by then as carefully as Joe, but somehow no one knew them as well as he.
Shelby Morgan had opened a nut and candy kiosk in a mall in Greensboro, NC. I doubt that the mall even exists now. His lease stated on an exhibit attached to the end that he was to occupy the front area of the front entrance to the mall—guaranteed excellent foot traffic.
At some point, maybe because the rent was based on sales, and sales weren’t what they should have been, the owner, developer, and landlord, an utter snake of a man called Cam Jackson, moved him to the basement level of the mall, where there were maybe two other stores and no foot traffic. I don’t recall whether Shelby waited for his business to fail, but he moved out, and he sued Jackson for wrongfully dispossessing him of his space.
Litigation these days resembles nothing like the Joe Moss wild west of Greensboro, NC. We didn’t have time to take discovery of the other side. Why Joe didn’t ask for a continuance to take some given Shelby’s prior lawyer’s disability I never questioned. Maybe the judge wouldn’t allow it.
Anyway, Joe didn’t like the endless drudgery of discovery; he said, "Just tell them to come to the courthouse and bring their documents, put them on the stand, and ask them what they know.”
No one tries cases like that anymore. No one tries cases at all. Joe loved trying cases. At a later case during which we had to stay in Raleigh for a week, he admitted, “I blow out the bottom of the toilet on mornings before trial, but I must love doing this.”
The judge in the first trial was a newly appointed young woman from the mountains. Think a darker-haired Amy Coney-Barrett but somewhat brighter and more diligent.
She took a long time to respond to objections—at least five-to-ten seconds, whereas an experienced judge would rule immediately. She was very stern, no jokes at all. But though the lawyer on the other side looked like Sam Waterston, he was pretty slimy. She was going to face almost nothing but slick old white men like him in her career, so she was right to be careful.
My job in trials like these was to haul the “bowling-ball bag”, as we called it, to the courthouse, a not inconsiderable task in a suit and tie in summertime North Carolina. Walking outside felt like gulping a glass of warm water.
When we were questioning someone, and Joe needed documents to show them, I had to make sure they were ready. When he was finished examining someone, he’d lean over and whisper, “Have I forgotten anything?” I think only once I reminded him of something. But if I had any ideas, he always wanted to hear them.
When we put Shelby on the stand during that first trial, Joe asked him his damages. Shelby sat up straight, looked at his notes, and said, “Two million dollars.” Joe nearly had a heart attack.
I’m pretty sure that Joe had walked Shelby through his damages in a conference room in the weeks before trial, so Joe was satisfied with them. But in the interim, Shelby must have gotten greedy and invented wildly different numbers.
Shelby had a five-year lease with an option on both sides to extend for another five years. Shelby was assuming a profit of $200,000 a year, times the full ten years of the lease, assuming Jackson would have allowed him to stay on after the first five years. In today’s dollars, that’s over a half a million net annually for a nut and candy kiosk. On the far side of you’re kidding me silly.
Joe got him off the stand fast and back at our offices chewed him out but good.
But it didn’t matter as this first trial ended in a mistrial because Cam Jackson, our defendant, got sick. Back then I didn’t know and I still don’t know the rules about that, but was that right?
So we had to try the case again, and we won when Joe put Jackson on the stand and asked him where he lived.
Jackson acted mystified by the question and then even more so when Joe restated it a few times—I mean, who can’t say where he lives? Jackson lifted his hands in the air in confusion and gazed around the courtroom, mouth open.
Joe let him do that for a minute so that the jury would notice, and then Joe asked, “Mr. Jackson, if the IRS wanted to find you, where would they show up?” The jury laughed out loud, and Jackson just looked dumb as a donkey.
When I asked what that was about, Joe said, “Everybody else in the county has a judgment against Cam and would like to collect, too. Jackson has property all over the place, and he doesn’t want us to know where it is or we’ll seize it if we win.”
Years later, I heard that Jim Williams, a lawyer at Nancy’s firm, had been at his vacation home down near the beach (good for him) on some river, and he saw Jackson sail by on his yacht. Williams leapt up, called the sheriff, and managed to get him to seize Jackson’s yacht to pay off a judgment he owed to Jim Williams’s client. So Jackson did have reason to be worried.
We won the second trial. Jackson had different counsel, but I don’t recall who he was. Jackson appealed, and I had the task of assembling the record: everything that the court saw in the trial, briefs, exhibits, a transcript of the trial. We duly sent the record up to the Court of Appeals. I don’t recall the exact holding, but the bottom line was that the Court was sending the case to be retried yet again. It found for us on some things, for Jackson on others. The clear message to both parties was, would you losers please settle this case so we don’t have to look at it again?
Jackson’s lawyers appealed everything, including something before a final judgment—I forget what. I wrote a brief saying, “This is why the public hates lawyers.” This occasioned a hurried meeting in this or that office amongst the ethics experts, who finally decided we couldn’t say that. Why not? I was glad to get someone’s attention, anyway.
The court sent the record back to us, and I took it apart and reassembled it for the third trial. Tedious but necessary work. In bigger and better firms, you’d have a paralegal perform this essentially mindless task. But our firm typically made associates do that sort of work, for which you couldn’t bill so much. As we had this case on a contingency—we only collected part of the judgment as a fee if we won—it didn’t matter how many wasted hours I put into it. I could go to the bathroom and masturbate if I preferred and it wouldn’t have mattered. Given what happened, maybe I did.
In two weeks, I’ll complete this story. Trying cases is a lot more tedious than I’ve made it sound here. But thanks for listening!
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