When someone asks me why I am a trial attorney, I am still at a loss for words. It’s like trying to explain the ocean to someone who believes sharks are messy eaters. Or the love you have for your dog to someone who has been afraid of dogs all their lives. Why bother? I have plenty of practical experience justifying myself to myself. Why justify myself to somebody else?
What I always forget is the bottomless fear most people have of speaking in public, persuading strangers to do anything, let alone speaking truth to power to somebody in a black robe sitting up on a bench purposely set higher than them.
The better question is: When did you decide to be a trial attorney? This is a question I can answer as I still hear the split-second it was signaled to me by the sound of a cheap door buzzer bleating twice in an otherwise quiet Orange County courtroom. Buzz, buzz, your calling is calling.
It was late June afternoon in a second-floor courtroom in Santa Ana when the foreman announced a verdict after the jury had deliberated for a total of twenty-three seconds and rung the buzzer twice to signal their decision. The sound of the second buzzer was like a snap of white-hot electric shock to my exhausted, empty, dozing mind with all the cold synapses firing as one, the dead circuits of my lower brain buzzing from the back of my head down my neck and spine. A verdict that quick could only mean we had won. And everybody knew it. Even our dour judge with plastered black hair was looking down at his lap, smiling to himself up on the bench.
Plaintiff’s attorney was a cocky little Irishman named Kennedy with a round, barrel chest, tiny waist and startling, bright red ties which offset his wiry, ginger hair. He had been strutting around the courtroom for six days like a bantamweight fighter in the tiny ring of the courtroom well, impatiently waiting for the biggest purse of his career. Nothing was going to keep him – and his client – from a big payday because nothing could go wrong.
Kennedy had caught the defense flat-footed at the start of the trial and he knew it. With every minute, every witness, every piece of evidence and every word he had been closing in for the kill with months of preparation and every fact at his fingertips for one straight week. The jury was in his thrall, mesmerized by his delivery and rocking at his quick wit at all the right times. They were now his personal laugh track, primed and ready to chuckle at each knowing wisecrack he made.
Kennedy’s client was in her mid-forties with sad features and bad posture, probably owing to her broken back. She was working as senior clerical staff for the Santa Ana Unified School District when she stepped up onto the bottom shelf of a metal shelving unit in a back storage room at district headquarters to reach a binder on the top shelf when she brought all the shelves down on top of her, landing on her side on the floor in the shape of a question mark draped over the foot stool she should have been standing on, buried beneath piles of sprung three-ringed binders and account ledgers. Her back was broken. The hard plastic brace she wore black and white proof she would never be who she had been. Workers’ compensation had rated her permanent and stationary and she settled her claim with monthly total disability payments for life. She would never work again.
And now she was suing the manufacturer of the metal shelves which had ended life as she had known it. Twenty-two years of continuing lost wages. Thirty-seven years of doctors’ appointments for her unrelenting back pain. A long-suffering husband who now did everything she could not. Hers was quite a story to sell. It took five days for Kennedy to spoon it out and the jurors were busy lapping up Plaintiff’s every ache and pain like bowl-licking kids attacking fudge stuck to the side of a mixing spoon after the bowl was clean. They couldn’t get enough of this real-life version of Queen for A Day.
It was my third year clerking and my second year as a law clerk at a defense firm with offices in West Los Angeles, Santa Monica and Irvine. I was assigned to one partner, Bill Koska, and one associate, J. Earl Rogers. Earl was a former Navy jet pilot during Vietnam who yearned to be a ski bum for just one winter. He lived in a one-bedroom beachfront rental in Malibu and drove a battered, light brown late model Porsche coupe. Fast. Earl was uninhibited to a fault: he had no regrets for anything he said or did once he mustered out of his final posting at Miramar and went to law school on government loans. Being a lawyer was the end of his ride.
After Earl’s ski weekends began stretching into weeks the year before, the managing partner made a deal with Earl: if he could close out half of his assigned cases by winter he could take a three-month ski sabbatical – without pay – and sill have a job when he deigned to come back. Earl shook on it. At the time he was assigned over 160 cases for trial, most of them filed 3-4 years earlier when Earl began with the firm.
I learned about the deal late that afternoon when Earl dropped a stack of files in suit on my desk and said, “We need to settle some cases, son. These are yours.” As he was leaving, he turned in the doorway and smiled. “Just don’t tell anybody you haven’t taken the Bar exam yet.”
And we had been settling cases since then, sometimes at the clip of two or three per day. I was drafting releases and sending out settlement drafts every day. Nobody ever asked if I was actually an attorney or had passed the bar. Nobody really cared as long as the cases were going away. We were just closing files which might not see a courtroom for years. This made everybody happy.
The trial with Kennedy had slipped by us. The trial date had not been calendared and would not have been noticed had Orange County Superior Court not sent a notice to all parties of a new settlement conference date. That day Earl found out Kennedy wanted four times more than the insurance carrier would ever pay. Preparation for trial the following week fast-forwarded at full-tilt.
Four days before trial our expert concluded there was no way to assemble the metal shelving unit where it would not always fail by pushing down with one foot on the bottom shelf. There was something definitely wrong with the structural integrity of the side bracing between all of the shelves. He was working from photos of other shelving units still in use at the Santa Ana Unified School District office produced by Kennedy in discovery. Our expert could not understand how any of these shelves were still standing. And he had run out of new exemplars to test. Everything he had was now twisted and ruined. Could we send for three more units for his grad students to assemble?
None of this was good.
Two days before trial I told Earl our expert was bailing because he couldn’t figure out how to make the storage shelves not fail unless he had more to test. Earl said, “Make the call.”
Once trial started Earl was driving back and forth from Malibu to Santa Ana every day to get his ass kicked by Kennedy and a judge who felt the case should have settled long before it reached his department. Earl was leaving at sunrise and driving back at sunset in rush-hour traffic. Still no new shelves from the manufacturer in Detroit. They should arrive by the weekend. Maybe.
Earl was not happy. When other attorneys asked him how his trial was going when he got back to the office, he would let loose a quick snort, sadly shake his head and walk away.
The new shelves for testing had not arrived. The owner of the shelving company was flying out on Tuesday morning to observe the trial. Our expert was not returning my calls to set up a pre-trial meeting to discuss his opinions before he took the stand. And some Malibu trust fund hippie had stolen the radio from Earl’s Porsche where it was parked at the side of Pacific Coast Highway by breaking out his driver’s side window. Earl had stopped smiling.
This is what Earl said to me Friday night: “And if I had a dog, it would have ass cancer.”
Monday evening Earl called a little before midnight. He had gone out to his car to retrieve our stack of jury instructions to give to the judge next morning and found his Porsche had been broken into a second time. With no radio or cassette player to steal, his trial box and brief case had been savaged and every piece of paper in every file torn to pieces, some blowing across PCH.
“Could you come over and bring some Scotch tape?”
Earl let me in and showed me a brown grocery bag of shredded pleading paper on his dining-room table. He went back outside to find whatever was still tumbling down the Coast Highway in the dark. I dumped the bag on the table and started spreading out the scraps of paper, one by one.
At 3:00 a.m. Earl wandered to bed, loosely cradling a beer by the bottle neck with two fingers at the neck. I was still sitting at the dining-room table facing his open sliding-glass doors. I could hear – but not see – the waves breaking outside. The lights on the Malibu pier shone moon-yellow through the night’s light fog, streaming fine, pale golden particles of light downward. You could feel the pull of the surf against the building’s pilings, steady like the slow pulse of a soundly sleeping, shapeless sea creature, trying to pull and drag the coastline out to sea.
Page after page of lined instructions requested to be read to the jury by the defendant torn with a vengeance into jig-sawed, rough eighth and sixteenth-inch squares were now being taped back together so as to not obscure the bland wisdom of the maxims of products liability law. The definitions of reasonable care, fitness for a reasonable purpose and how to judge ordinarily reasonable persons acting under the same or similar circumstances. How the law views circumstantial evidence. How one’s attitude at the commencement of deliberations is important. No verdicts by chance. Here are some examples of how you arrive at a chance verdict. Page after type-written page cross-hatched with tape. Some tape showing the smudged ridges of my fingerprints. A patchwork of rough law.
I was standing at the sliding-glass door, watching the cheerless ocean sky gaining pale light. Four empty tape dispensers on the kitchen floor. Late-night movies turned to early morning news.
I had learned earlier that day the other law clerks were jealous of all the fun I was having assisting Earl during trial. Whispered comments. Well-placed complaints. Hurt feelings. I now had an advantage over them all by assisting Earl through his trial.
Unbelievable! This would bore a smart eight-year-old. I felt like I had just re-rolled six rolls of toilet paper by hand.
At sunrise I handed Earl a loose stack of patched jury instructions, some of which were still missing corners, phrases and evidentiary cautions. I had helpfully written in what I could remember to fill some holes. Without checking the re-assembled jury instructions, Earl snorted, threw the papers on his passenger seat, dumped coffee from his mug out on the sandy roadside, handed the mug back to me and drove off, his white sleeve resting on the frame where his window had been.
I picked up the president of the shelving company curbside at LAX two hours later. He was hard to miss, dressed in a long black overcoat and black fedora with a black goatee of Cossack pedigree. He was holding a large black leather case with worn black leather handles with white scuff marks. He was wearing a pair of soft black leather gloves. In June. From his volatile glance when I opened the passenger door for him, my appearance was just as startling to him.
On the drive down to Santa Ana on the 405 I filled him in on the progress of the trial, pausing for his brusque interruptions as he seized control of our conversation. I told him what our expert had found. In a heavy Slavic accent he curtly asked if I had copies of these photographs we had been working from. When he said “photographs” his emphasis was mock serious, as if he was asking to examine used toilet paper. It was entirely possible I had insulted him.
When he was finished he turned to face me and slowly asked, “Is this expert an idiot?”
This had not occurred to me. But I truly had not thought to ask anyone as he was our expert.
Before I could answer, he had another question. “Are you an idiot?”
Having spent six hours taping a hundred typed pages back together, the thought had a certain appeal, but I still shook my head. He laughed loudly, his head shaking back and forth. His was pure, unadulterated, Old World disbelief at the absurdity nibbling at the edge of every lawsuit. It was the clarion call of every plaintiffs’ attorney’s closing statement at the end of trial:
Ladies and Gentlemen, if only something more had been done, we would not be here today.
“Then who is the idiot who put these shelves together?”
I explained the school district had a large maintenance staff which assembled equipment and furnishings like desks and shelves in a small warehouse. I did not add this staff was probably not representative of the best and the brightest of the Orange County workforce, but day laborers fat with benefits and pensions. Apparently our client had already reached this conclusion on his own.
“Then they are the idiots.”
As he explained what had happened, I picked up speed on southbound 405 to get him to trial.
We arrived at the courtroom a little before 10:00 a.m., twenty minutes before the morning break. Court was in session. The jury in the box. Counsel seated at counsel table, their backs to the door. Earl stared at me for a moment, frowned and then turned back in his chair.
Apparently there was something wrong with the way I looked that morning. It did not occur to me I was sitting in the front row of the courtroom grinning like a happy idiot, living proof our client’s hunch about me may have been right after all.
With the morning break Earl came up to us in the hallway after the jury had filed out. Earl looked miserable. I looked worse.
“What’s wrong with you?”
No sleep, no food, no shower, no razor, no toothbrush. Sticky fingers. You don’t have tea.
I introduced him to our client who explained he ran the family business in Detroit, all of it starting with his grandfather’s original shelving design. They sold their shelves to schools, churches, warehouses and stores across the country. Maybe even the clerk’s office in this courthouse which he took in with the sweep of a hand. This was the first time any shelf of theirs had ever failed, let alone caused anyone injury. Our shelves never fail. He gestured toward me with his right hand outstretched. I beamed at Earl.
I was family now. Our shelves never fail.
As if on cue I handed him Plaintiff’s photographs of the assembled shelves and our client showed Earl what he had shown me earlier that morning. The cross braces which supported each shelf and attached to the main posts in an X pattern had been placed outside the outer edges of the shelves rather than inside the posts and under the shelves. This backward bracing would provide no support whatsoever for any weight. The shelves had been assembled in a manner in which they would most suredly fail, completely contrary to the printed instructions which he pulled with a flourish from his inside coat pocket and opened like a road map. Earl gave me the same grin he had when he dropped the stack of litigation files on my desk. This is going to be fun.
We went back in the courtroom after the break. He called our client as the last defense witness after the break. Kennedy objected because he was not on our witness list. There was a long bench conference to the side of the judge in which Earl smiled and Kennedy waved his arms. The jury leaned forward, trying to listen in. The judge eventually told the attorneys to step back, making a dismissive motion with the back of his right hand. Earl walked back to counsel table still smiling. He turned and looked to the judge.
“Proceed with your next witness, Mr. Rogers.”
When our client was through the entire courtroom was silent. He did not need to be led through his testimony. After all, this was the third time since he had landed from Detroit he had described why his family’s shelves could not fall or fail. His accent remained. His steady tone never faltered. Fortunately, he kept from singling out all the idiots which had led to this moment.
Throughout his testimony Kennedy sat stock still. He took no notes and showed no reaction. His cross-examination was strangely deferential, almost respectful. He had been bested by some guy dressed for winter from Detroit. There was no need for re-direct by Earl.
At noon I drove our client back to LAX. He had no interest in lunch. His work was done.
We talked about the overcast sky. He hoped he could catch an earlier flight back home. He showed me photographs of his grandchildren. One grandson had his intense, dark eyes, over-sized black marbles in a small boy’s no-shit face. Some day all of the family shelves would be his.
We never spoke of the trial, not even what would happen next. We shook hands at the curb. He put his black fedora on and walked inside without looking back. He would return home to Detroit and walk in his front door that night most suredly justified. Our shelves never fail.
The hallways of a court house are strangely still in the late afternoon. There are no attorneys meeting with their apprehensive clients sitting on hallway benches or grouping like dull, gray-suited fish who can only face forward toward courtrooms, waiting to appear for the first morning session. Even during the morning rush courtroom doors are not the least bit welcoming to the average citizen. You cannot open or close courtroom doors softly and gently. They are unnaturally heavy with grimed hinges and bent frames which sync to make the most noise possible when slowly opened, making it impossible to slip into an afternoon courtroom unnoticed.
The jury turned as one as I sat down in the back and then turned back to Kennedy who was finishing his opening closing argument in a subdued, even tone. This was exhaustion, not the glazed eyes of a marathoner ten minutes after finishing 26 miles, but the dead eyes of a witness to a back alley massacre.
The jury stared at him, mostly disinterested and impatient. No one was taking notes, not even when he asked them for a quarter of million dollars for his client. I tried to avoid eye contact by closing my eyes.
It was before 4:00 p.m. when Earl stood to give his closing argument. Nothing in his hands, his notes left open on the counsel table. Earl looked at the jury and grinned widely.
“During the war I was CQ training to do take-offs and landings in a F-4 Phantom from the roof of a carrier off the coast of San Diego. I was six minutes off when my back guy in the pit tells me the F-4's fire warning light is on. There is nothing lit on my up display. But the red light is not going off. I got on the radio and requested return to base. The controller puts my instructor on, the Assistant Air Boss. I told him we were on fire and ready to pull the loud handle to punch out. And the Mini-Boss asks me to look around.
“Do you see any flames?
“No. I do not see any flames.
“Do you see any smoke?
“No. No smoke.
“Can you see any sparks?
“No sparks. No arcing. Nothing electrical going on.
“Son, if you ditch that bird in the water based on one teensy-weensy red light, you will be throwing away two point four million American taxpayer dollars, so you better have a damned good reason for doing so. Throttle back and get back to mother.”
Earl said this in his best, slow-talking Chuck Yeager drawl. He might as well have been on a movie screen. Rapt, jurors were following him around the well with their eyes. They are thinking, This...this is worth the price of admission.
“I took a deep breath and turned around to land.
“After we were back on the carrier deck we found out the fire warning light had malfunctioned. It was a simple short in a bad circuit. There was never any fire.
“Folks, Mr. Kennedy would have you believe the fire warning light is still on in this case. But if you look around, there are no flames. There is no smoke. Not a single electrical spark anywhere. There is no reason for the warning light to be on in this case. And before you throw a quarter of a million dollars away you better have a damned good reason for doing so. Thank you.”
And Earl sat down.
The jury began their deliberations at 4:20 p.m. The bailiff went in with the trial exhibits right after them. When the bailiff re-opened the door there was a burst of laughter from the jury room. The bailiff backed out and shut the door. A few seconds later the buzzer from the jury room buzzed twice. A verdict had been reached.
Shaking his head in disbelief, the bailiff walked back and opened the jury room door.
“No. You buzz once if you have a question. Twice if you have a verdict.”
The jury laughed as one again.
“We have a verdict,” the foreman said.
As we were leaving the courtroom to talk to jurors waiting in the hallway, the bailiff told Earl he had the time for the jury’s deliberations. 23 seconds.
And that is the moment I decided to become a trial attorney.
Law Offices of Kevin M. Smith • 2330 Marinship Way, Suite 230, Sausalito, California 94965 • Telephone (415) 234-7191 / Facsimile (415) 234-7162