Saturday, March 31, 2012

CitiMortgage goes down

Christopher Youngs, TLC ’10 Grad. TLC Alumni List Serve, March 30, 2012.

I just won summary judgment against CitiMortgage in a case which -- in the beginning -- I did not think we could win.  I proved that CitiMortgage is a greedy cheat.  My client, Charlie, takes a mortgage with Citibank, makes one payment then defaults. CitiMortgage forecloses.  Before the sheriff sale is scheduled, the house burns down.  Nothing suspicious, just bad luck.  Charlie tells CitiMortgage he wants to pursue the fire insurance claim and try to pay down the mortgage.  The bank delays the Sheriff sale so that Charlie can get the insurance check.  As the new sale date approaches, the insurance check still has not arrived.  Desperately, Charlie calls CitiMortgage lawyer, who tells him that if Charlie gets the check to the lawyer's office before the sale, the sale will be stopped.  CitiMortgage lawyers  Are a big foreclosure mill out of Philadelphia.

Charlie turns himself inside out to get the check to the lawyer.  Naturally, the check is made out to Charlie, his wife and CitiMortgage.  He is separated from his wife and somehow gets her to endorse it.  After Charlie and his wife sign the check, Charlie sends the check to CitiMortgage lawyer - and here is where he finally starts thinking: he sends it by certified mail.  The Sheriff sale is scheduled for June 4.  CitiMortgage lawyer receives the check on June 2.  Lo and behold, the lawyer lets the sale go through anyway!  Surprise, surprise!

The check was not enough to satisfy the mortgage, but it was way more than the delinquency.  Charlie comes to me and lays all this on me.  He did not have a lot of equities going for him, though, and the mortgage provides that the bank can do what it wants with the fire insurance proceeds.  Reluctantly, I filed a petition to set aside, or undo, the Sheriff sale.  CitiMortgage lawyers farm out the case to a hotshot Philadelphia commercial trial lawyer who assures me that I am full of crap, but CitiMortgage is a nice person who wants to settle and all we need to do is arrive at a dollar amount and he will work magic with CitiMortgage and make it happen.  We were negotiating on a plan to sell the property, pay off the mortgage balance, and Charlie would get what was left.  Every time I talked with Mr. Hotshot, the price went up.  It went up from $25,000 to almost $50,000.  In frustration, I started doing some of the legal research I probably should have done at the beginning!  There is a pretty good statute in Pennsylvania that nullifies the power to hold a Sheriff sale if the mortgage debtor brings his delinquency current before the sale takes place.  Well, Charlie’s fire insurance check certainly brought his delinquency current, but the source of funds was fire insurance proceeds to which CitiMortgage had, at least, an equitable claim.

Charlie and I decided to take a chance.  We told Mr. Hotshot to go take a flying leap, that we would not pay the exorbitant amount that CitiMortgage wanted.  We reduced our offer to peanuts, and when they refused, I filed a motion for summary judgment.  This is a case of first impression in Pennsylvania because nobody ever litigated this issue.  The Judge could go either way -- in favor of the big-money interests, or in favor of the little guy.  Arguing summary judgment was fun.  I made a point of pointing out that several weeks earlier, CitiMortgage joined in with several other huge lenders in a $25 billion (give or take) settlement with the federal government over mortgage fraud.  Mr. Hotshot lawyer attended by telephone, so I did not get the opportunity to see the look on his face as I was painting CitiMortgage and its lawyers as frauds and cheats.  When Mr. Hotshot lawyer got to make his argument, he told the judge that he should disregard my argumentative comments about his client because they were inappropriate?  I looked over at the Judge's clerk and asked him if he thought I was out of line, and he shook his head no.

Got the decision yesterday - and we won.   The Judge overturned the sheriff sale and gave Charlie back his property.  The Judge took my arguments and improved on them.  It is nice to have that kind of help from the judge and his clerk.  The judge is going to schedule another hearing to see if I am entitled to statutory attorney fees from CitiMortgage.  Have not heard from Mr. Hotshot lawyer yet.

Love and peace,


Friday, March 30, 2012

My first trial after TLC.

John Mittelman, TLC ‘10 Grad. TLC Alumni List Serve, March 30, 2012

Fellow Warriors:

I left the Ranch on October 2, 2010.  On Oct. 15 I had an unlawful detainer trial, my first trial after TLC.  I represent tenants only in unlawful detainer and habitability cases.  These folks are put through the meat grinder and spit out within about 30 days after they've been given a 3-day notice to quit, often because they bitched long enough about the rats, roaches, mold, leaking roofs, bad electrical systems, leaking gas, no heat or hot water, etc., that they refuse to pay the rent.  They're helpless and damned if they don't get an attorney to step in and make the landlord fix the slums they rent to these folks.  I literally have clients that are stuffing their ears and noses with toilet paper at night to keep the cockroaches out of these orifices.

Anyway, an attorney friend who doesn't do this kind of work asked me to try a case for her client.  She lived in a garage converted to a 3 bedroom flat, totally unpermitted, with all of the above defects, and on top of it, the living room floor was detached from the wall in the corner and mice and other vermin were entering the unit.  We go to trial, the landlord sought possession and about $3200 in back rent, fees and costs.

We put on our proof, and I felt pretty good about it.  We actually put into evidence a recording made by the client when the LL's repair guy was at her unit doing some work, and he said "If I lived in your place with all the crap going on there, I'd sue my own boss.")  Judge heard this evidence and takes the case under submission.  As I'm gathering my stuff, the judge leaned over to us after the hearing and whispered "you guys did a really good job."  This was totally unsolicited and something I'd NEVER heard from a judge before...I took it as a good sign. I knew that this judge had been a law school class mate of Jude's, and Jude had mentioned to me that he was a good guy, so I was now feeling pretty good about the outcome. Well, later that day he ruled against us and entered a judgment for the LL, allowed fees and costs, and gave possession of the unit back to the landlord.  BUT, he reduced the rent down to about $900 because of all the bad conditions.  I was floored, because the LAW SAYS IF THERE'S SHITTY CONDITIONS AND THE RENT IS ABATED, the TENANT IS THE PREVAILING PARTY and gets fees, costs, and can retain possession.

So I file a motion to clarify the judgment...The judge listens attentively as I argue the cases at a noticed hearing.  He's totally wrong on the law, but he's unable to state why he did what he he claims he was just trying to balance the equities, etc.  I tell him the LAW DOESN'T ALLOW you to balance anything if you find the conditions were a substantial breach of the habitability statutes.  He says "the breaches were "material" but not substantial."  HUHHHH????

Now I'm kind of upset...this little case is decided for us in theory, but against us in reality.  I file a notice of appeal....and then the client had to move out but I can't let this judge continue to wrongly decide all these cases and essentially evict tenants from their homes in violation of the LAW, so I call the Goddess of All Appeals, Sharon Arkin, and she gets upset when I told her the story, and she says "John...I'll do this appeal.  FOR FREE!!!  It's totally wrong what this judge did, and WE HAVE TO PUT AN END TO IT."  There is no better appellate attorney in these parts than Sharon!

Briefing was completed in September, 2011.  Case was lodged before a three judge panel of the Appellate Division of the Superior Court, San Bernardino County.  Oral argument was last Friday, March 23rd.  Yesterday, I got the decision....REVERSED, WITH FEES AND COSTS TO APPELLANT!!!  (The lease provides for up to $500 in atty fees, so I'm now rich!)

This journey has made me a better person.  My client will now be able to rent another apartment now, without having to explain the judge got it wrong...without having to pay a double security fee and higher rent because of this judgment on her record.  Her credit score will be resurrected.

Most importantly, my client's rights were vindicated....and she got justice and now she can hold her head high again, without the weight of an illegal, improper, void judgment around her neck.

I'm walking on air right now...

John M

DWI "Not Guilty" for three time Iraq War Veteran!

Richard L. Duquette, TLC ‘2000 Grad. March 13, 2012

Attorney Duquette represented a law enforcement officer and three time Iraq war veteran in a .16 blood DUI case.  Pretrial investigation revealed that the MVRS (CHP – video) showed no bad driving.  Further, the lab methodology and results themselves were flawed.  Moreover, the handheld PAS (Preliminary Alcohol Screen) device was determined to have had the fuel cell (the engine of the instrument) replaced prior to arrest.  After a five day jury trial, the jury returned a verdict of not guilty on CVC 23152(a) – Driving impaired and 11-1 for not guilty on CVC 23152(b) – Driving with a .08 or higher blood alcohol level.  Post-trial, a PC 1385 motion/invitation to dismiss the charges was filed and the court ultimately dismissed the charges against Mr. Duquette’s client, thereby saving his career.  In closing, Mr. Duquette urged the jury to hold the laboratory to reliable testing methodology because their laboratory and the reliability of their results affect not only his client, but the community at large and hundreds of samples a year.

Friday, March 16, 2012

Police Dog Brutality - Michael Maddux Case

Maren Chaloupka – TLC Faculty & ’99 Grad – Jan 16, 2012

At this time last year, our brother Michael Maddux had received discouraging news from a federal district court in the Middle District of Florida.  In a 1983 action against two officers of the Orlando Police Department, the trial judge had sustained the defense’s motion for summary judgment on qualified immunity.  Michael’s client, Colin, was driving on a suspended license, and blew through a stop sign.  When a police vehicle activated its siren and light, Colin turned into a parking lot, then got out of his car and ran.  One of the defendants chased him on foot into a wooded area.  Colin stopped running, and lay face-down on the ground.

The police announced to Colin that they would use a police dog if Colin did not surrender.  Colin did not respond at first.  Then he shouted, “you got me.  I only ran because of my license.”  Even as Colin voiced his surrender, one of the defendant officers released the dog, which began biting Colin on the leg.  Colin shouted, “I’m not resisting” and begged the police to call off the dog.  This attack continued for five to seven minutes, during which Colin did not resist.  They neither handcuffed nor arrested Colin - - they just stood over him while the dog continued to bite.  Eventually, the officers finally handcuffed Colin and gave the dog a verbal command to release the bite.  By then, Colin’s leg was mangled, requiring emergent surgery (and six days of hospitalization).  The officers joked that Colin’s leg “looked like filet mignon.”

Colin hired Michael, and Michael brought Colin’s case through two causes of action under 1983:  a 4th Amendment violation through the mere use of a police dog, and a separate constitutional violation for the prolonged attack after Colin surrendered.  The defense responded that qualified immunity shielded the officers from accountability to Colin.  The trial judge approved the defense’s claim, and dismissed the case.

Michael determined that this case was too important - - Colin should not walk away, and Michael, as Colin’s attorney and confidante, could not walk away either.  Knowing that the Eleventh Circuit is hardly a bastion of liberal thought on civil rights laws, Michael took a deep breath, noticed his appeal, and began the careful work of preparing a brief and thinking ahead to oral argument.  Michael then argued the case in Atlanta in November 2011, to a three-judge panel which included two judges who were appointed in 1975 and 1976 (the ultimate author of the opinion was Mr. 1976).

And last week, the Eleventh Circuit issued its decision - - a published decision, no less - - reversing the order of the district court and remanding Colin’s case for trial.  The court held that the initial decision to use a dog to help track and “initially subdue” Colin was constitutional; but, the officer used unconstitutionally excessive force for allowing the dog to attack Colin for five to seven minutes.  The court wrote:

“Critical to this determination is the fact that, in subjecting [Colin] to the dog attack, Officer Shanley increased the force applied at the same time the threat presented by [Colin] decreased … Evaluating Officer Shanley’s conduct at the time of the prolonged attack makes its unreasonableness plain.  Because [Colin] was begging to surrender, and because Officer Shalney could safely give effect to that surrender, the further infliction of pain was gratuitous and sadistic.  This the Constitution does not tolerate.”  (Emphasis in the original.)

Providing a careful analysis of decisional authority on the use of police dogs, Michael moved this conservative court to find that there is a meaningful difference between a “split second” decision to use a dog to subdue and immediately arrest a fleeing suspect, versus a prolonged attack.  The court approved Michael’s research and analysis, and Michael’s application of that decisional authority to the facts of Colin’s case.  The court characterized the attack as “obviously cruel and unreasonable” and said that this case was “an ‘easy’ case about conduct so obviously unconstitutional that no prior case would be needed to make the holding explicit.”

On those strong holdings, the conservative Eleventh Circuit Court of Appeals sent Colin’s case back to the district court, to be set for trial.  Michael will now have the opportunity to present to a jury the arguments that moved this three-judge panel.  Michael has won Colin his day in court; he has made great new law in a defense-friendly area of the law; and he has shown us another example of how we can, and should, continue to serve our clients on appeal, no matter how daunting the prospect of appearing before a grumpy federal appeals panel.  Atta boy Michael (!

(PS – Admitting my bias, I’ll share that I am a proponent of incorporating TLC methods into appellate work, and persuading more TLC Warriors to do their own appellate work.  No one knows our cases and clients as well as we do.  Writing briefs is not tedious - - it is storytelling on paper rather than out loud.  And, given that many courts circulate draft opinions before oral argument, our oral arguments for our clients are our last and sometimes best chance to penetrate the thick hide of a cynical judge who rarely sees real humans.  For those Warriors who are contemplating attending Grad Course II this year, I am looking at convening a breakout session on the use of TLC methods in appellate work, as a cooperative sharing effort between those who handle their own appellate work and those who don’t but would like to start doing so.)

Thursday, March 15, 2012

"Hunting" for Justice.

Lynda Carter - TLC '10 Grad - TLC Alumni List Serve 2/20/2012:

I have to relay this here as it has been the most fun I have had in trial to date. This case was referred to me by Jerry Bosch from Wyoming. My client was charged with three aggravated wildlife charges stemming from shooting a mule deer buck that was trophy size and shooting it on property he did not have permission to hunt on. He was also charged with criminal trespass for going onto the landowners property where the deer was wounded without getting permission from the landowner.

The ADA was supposed to wrap her case up on Thursday at 2:30 but she did not get done until Friday at 2:45. I have to admit I was really angry because this was scheduled for one day not three, and Monday was a holiday. My client drove in from Washington and could not stay until Tuesday. I started my case at 2:45, went through my client and my expert. My expert is a retired Tampa police homicide detective who testified about blood splatter, ballistics, crime scene investigation, bullet wounds and police protocol. Because he is an outfitter and guide in Colorado, he also testified about protocol and prey animal instincts.

The jury got the case at 4:50 yesterday and we had a verdict at 5:45. Not guilty on all wildlife charges and guilty on a misd. trespass to which the judge sentenced him to pay a $100.00 fine. Oh, he got to keep his trophy mule buck that DOW had taken on Halloween, 2010. I will now be filing a motion to reimburse him for the value of the meat that DOW carved up and donated, but did not say to what "charity". It is presumed to be a DOW officer as they were vague on where it went.

Essentially, DOW insisted my client shot the deer on land he was not supposed to hunt on. It was alleged that he came from sea level, climbed up a hill at 7000 ft. shot at a deer from a prone position, missed, ran 15 yds. proned out again, shot, missed, got up, again proned out and hit the buck, from 450 yards away with a rifle zeroed in at 200 yds in the kill zone.

They also testified that the entire investigation was done using the fact that my client was right handed, used a right handed rifle, and the shells were ejected from a place that showed he  had to be shooting towards the deer already on the neighboring property. DOW also stated that the deer's wounds showed too much damage to move very far.

Using a soft cross on the primary and then secondary officers, I was able to show that  the picture of the deer showed scrapes on its leg showing he had jumped the fence, had a barb wire puncture from the fence, and the primary officer testified that only if my client was shooting left handed could his story be true. I pulled out a picture of my client sighting in his rifle last year. It is a special ordered Weatherby rifle, ordered with a Leopold Scope with a left handed bolt action for my left handed client.

The officer also admitted that he qualifies twice a year with his service rifle, essentially the same caliber as my client, that he lived at 7000 ft. and after steadying his hand on a fence post, and taking aim at a wounded deer laying down 25 yds. away he missed two out of three times. This was priceless. There was also only one exit wound so the damage had been done mainly from the DOW officer, not my client.

My favorite part was that the primary officer tried to convince the jury that a deer can't jump a 4  ft. high fence with a damaged front leg. I did not bring a picture of a deer jumping a fence and I wanted to show the relationship of the back legs and how powerful they were compared to the front legs. It dawned on me that I always keep the card from the Ranch showing the deer jumping over the fence in my briefcase. I begged the Court's indulgence and asked permission from the DA to use it to help the jury, the officer, and even the DA. She agreed and the judge asked to see it.

The judge asked me about the picture and I told her what it was a picture of. She let me use it with the understanding that I could only show the officer and the jury the front of the card and not open the inside which of course had the picture at graduation of Gerry and me. She made me get copies of the front of the card at lunch and enter the copies into evidence instead of the card.

After the jury got the case, she (the judge) called me up and made me show her the card. She is a big TLC and Gerry Spence fan. she also recognized the ranch because her family has raised Simmetals here in Colorado, and she knew the ranch sign.

Another TLC thing I used was non-verbal communication with the jury pool and awareness of the jury. The ADA left a man on the jury that had elk antlers tattooed all down his arms, and another one that had an "In loving memory of" under a deer head tattooted on his neck. She also left a woman with a Master's in forensics and retired Air Force Capt. (Crime scene investigator)  from MacDill AFB in Tampa on the jury. I was handed a gift like no other.

Sorry for the long post but I had so much fun and this trial took so many twists and turns and you just could not make this stuff up! On my way out of the courtroom after closing arguments, I had three people in the audience come up and say they were so glad I had taken this to trial. I guess DOW has been in conflict with some of the smaller outfitters around there. While my client still had to pay a $100.00 fine, he was facing 2 yrs in jail, loss of his hunting privileges for life in 30 states with reciprocity with Colorado, and almost $16,000.00 in fines.

Best of all, the judge invited me back to her courtroom and said she hoped I took more cases there. That was the best compliment I could have gotten other than the audience's reaction to my closing argument.

Thanks to everyone who has helped me and taught me along the way. I owe each victory to everything I have learned from so many people and one day hope to be able to pass along knowledge to other new Warriors! Have a blessed day!

Your Fellow Warrior TLC Grad Lynda Carter 2010 II

Tuesday, March 13, 2012

Liza's rape case - 16.9M Verdict

Todd Kelly - TLC '09 Grad. TLC Alumni List Serve - 3/12/2012

Thanks to everyone.  Here is what I wrote while waiting on the jury to come back…

“Gabriel made me get on my hands and knees.
He did something to my butt.
He got my back wet.”

These are the words that Liza spoke in hysterical tones as she reported what one of her “caregivers” had done to her.

The jury received facts on this case, including the following:

Marta, Liza’s mother, told how special she was, and how loving.  She explained how it was great to have “landed in the Netherlands” (thanks Andy).  She talked about how she looked for a safe place to leave her daughter, and how she trusted the people of St. Jude’s to do the right thing.  She talked about how they never even apologized.  (the draft apology letter was handed to her on the stand – she cried and said she had never seen this unsigned document).  Then she showed us what Liza did to report her rape – she came into the well of the courtroom, got on her knees, placed her hands over her head, and leaned forward.  Every person in the jury box stood up to see her.  She told us how she grabbed her rear-end and said that he had put something inside and it hurt.  Then she told how her back was wet.  She cried.

Gabriel had dated Vickie Armstrong (a caseworker at St. Jude’s, and one of the co-defendants), but she broke it off with him because he “did weird things, sexually.”

Gabriel had been seen by residents in one of the homes masturbating and watching pornography on the sofa.

Virginia Onuorah, the owner of the home, was aware (as was Vickie) of the above-events, and failed to fire the sexual deviant.

Virginia asked Gabriel to pick Liza up to bring her to the Day Hab facility on November 11, 2008.

He was very late getting back.

When she came in, she reported the words above to Rhonda Peveto, and asked that she please pick her up in the future, don’t let Gabriel do it.

Rhonda informed a co-worker, Monette Chapa, and the two reported to Virginia and Vickie.

Virginia and Vickie told them not to worry – that they would handle it.

They spoke with Gabriel, who said that all he did was touch her butt while helping her onto the van.

They took Liza out for candy and food to calm her down, then took her home. They claimed to have reported this to the babysitter.

Babysitter is recovering from surgery, so she was not at trial, but Liza’s mother testified that when she confronted her with Virginia/Vickie’s story, she was “offended.”  Enough said.

Virginia/Vickie both admit that they never reported to the parents, the hospital, or the police what had happened.  State regs say it has to be done within an hour.  St. Jude’s Policies and Procedures say “within 24 hours or at least within the quarter.”

Virginia/Vickie say that Liza never reported the rape, but only the butt touching, but they cannot explain how Liza was able to draw a perfect layout of the home that she was raped in – and in which she was never supposed to have been.

When Rhonda learns that Virginia/Vickie failed to inform the mom, she takes it upon herself.

Mom removes Liza and takes her to the hospital where the police are called, and investigations begin.

Staff meeting ensues to discovery who is the “snitch.”

Rhonda admits her role.

They say they were going to fire her – but she quits.
They create incident reports and try to make her out as a bad employee.  (Mistake – she worked for THEM!)

Then they fire Monette a couple of weeks later, allegedly for taping a patient’s mouth shut and tying her hands with phone cord.  They create a “bad employee” file on her, too.

They have fake incident reports on Liza, Rhonda, and Monette.  Monette had already called MHMR about other forgeries, and MHMR had pulled the license from St. Jude’s for forgery of her signature.  Rhonda testified that they tried to coerce forgeries out of her, too.  When I stacked up the incident reports on Liza in front of the jury, they saw that the pens used on these several incident reports (supposedly written months apart) were in surprisingly similar (same) ink.

Then, the jury learned that after Gabriel was indicted, Virginia posted his bond and he fled to Kenya – out of reach of our justice system.

Vickie blurted out that the home was closed, so I ran with it:  Yes, the home is closed.  Yes, the defendants have run to Africa.  What else can we do?  When people wake up in New York City tomorrow morning, I hope that you have told people loudly that those least capable of caring for themselves will not be treated this way – not in Galveston County, Texas.

Props to Rafe Foreman for DIMTY, and to Andy Rubenstein for reminding me of it last week – and for the Netherlands.  Thanks to Ron Estefan for his advice on how to approach this jury with a request for a LOT of money, and thanks to all of you for the support that I have gotten throughout the case.

I sit waiting on a jury which has most recently asked for clarification on a percentage of fault question.  I am feeling hopeful that celebration is warranted, but cautious because I have jumped the gun before.

I know that regardless, there will be no payday from these defunct corporations and penniless, uninsured, defendants.  Nonetheless, for Marty and Joe to go home after having driven up from the Valley to seek justice for their daughter would absolutely make my week.  A payday would be nice, of course, but this is the type of case that just reminds me of why I AM a Fucking Trial Lawyer!

Here is the verdict (shortened for lawyers):
1. Did Gabriel Mwancha commit an assault against Marta Liza Grimaldo?...YES

2. Did the negligence, if any, of those named below proximately cause the occurrence or injury in question:

a. Vickie Armstrong:     Yes

b.  Virginia Onuorah:     Yes

c.  Judith Onuorah:       No

d. Gabriel Mwancha:     Yes

e.  St. Jude’s Home, Inc: Yes

f.   St. Jude’s Day Services:   Yes

3. On the occasion in question, was either St. Jude’s Home, Inc. or St. Jude’s Day Services, responsible for the acts of any person listed below?

a. Vickie Armstrong:     Yes

b.  Virginia Onuorah:     Yes

c.  Judith Onuorah:       No

d. Gabriel Mwancha:     Yes

4.  Did the conduct of any defendant listed below intentionally inflict severe emotional distress on Marta Liza Grimaldo?

a. Vickie Armstrong:     Yes

b.  Virginia Onuorah:     Yes

c.  Judith Onuorah:       No

d. St. Jude’s Home, Inc: Yes

e.  St. Jude’s Day Services:   Yes

5. Was the conduct of Gabriel Mwancha a proximate cause of the injury to Marta Liza Grimaldo?    YES

6. Was the conduct of any of the persons listed below a proximate cause of the injury to Marta Liza Grimaldo?

a. Vickie Armstrong:     Yes

b.  Virginia Onuorah:     Yes

c.  Judith Onuorah:       No

d. St. Jude’s Home, Inc: Yes

e.  St. Jude’s Day Services:   Yes

7. What percentage of negligence that caused injury to Marta Liza Grimaldo do you find attributable to each of those found by you to have been negligent?

a. Vickie Armstrong:     20%

b.  Virginia Onuorah:     45%

c.  Judith Onuorah:       0%

d. St. Jude’s Home, Inc: 10%

e.  St. Jude’s Day Services:   20%

8. Did Virginia Onuorah or St. Jude’s Home engage in any false, misleading or deceptive act or practice that Marta Liza Grimaldo relied on to her detriment and that was a producing cause of damages or injury to Marta Liza Grimaldo?

a. Virginia Onuorah:     Yes

b.  St. Jude’s Home, Inc: Yes

9. Did Virginia Onuorah or St. Jude’s Home engage in any unconscionable action or course of action that was a producing cause of damages or injury to Marta Liza Grimaldo?

a. Virginia Onuorah:     Yes

b.  St. Jude’s Home, Inc: Yes

10.           Damages:

a.  Past Mental Anguish:        $2,000,000

b.  Future Mental Anguish:       $2,000,000

c.  Past Physical Pain:          $5,000,000

11.           Do you find by clear and convincing evidence that the harm to Marta Liza Grimaldo resulted from Malice by any of the listed defendants?  (unanimous required)

a. Vickie Armstrong:     Yes

b.  Virginia Onuorah:     Yes

c.  Judith Onuorah:       No

d. Gabriel Mwancha:     Yes

12.           Do you find by clear and convincing evidence that the harm to Marta Liza Grimaldo resulted from gross negligence attributable to St. Jude’s Home? (unanimous required)

_ NO ANSWER (jury told me later that they were 11 – 1 on this one)

13.           Punitive Damages

a. Vickie Armstrong:            $   400,000

b.  Virginia Onuorah:            $4,000,000

c.  Judith Onuorah:              $0

d. St. Jude’s Home, Inc:        $1,000,000

e.  St. Jude’s Day Services:       $2,500,000

Friday, March 9, 2012

Dismissal of all 62 charges against Andrew Skeith

Robert Robles - TLC '98 Grad. TLC Alumni List Serve - March 2, 2012

Merle Gile (TLC '98 Grad) was hired to defend Andrew Skeith, a local lobbyist, in Oklahoma City. Skeith, along with Mike Morgan, ex State Senator and prominent high profile attorney Martin Stringer were accused of over 62 counts of conspiracy, bribery, extortion, mail fraud and other crimes related to influence peddling at the State Capital. Andrew Skeith, was accused of 62 counts of conspiracy related to the bribery, extortion, mail fraud allegedly committed by Morgan and Stringer. The story is this. A landfill operator wanted to open a landfill in Oklahoma. The landfill was opposed by the neighbors and local state representatives. The landfill operator hired Martin Stringer to get the permits for the landfill and Stringer said they had to hire State Senator Mike Morgan on retainer (to the tune of hundreds of thousands of dollars) to get the job done. Skeith was present at meetings and gave advice on how the legislative process worked. Stringer was paid for legal advice. Morgan was paid for legal advice and Skeith was along for the ride. Talk about a bumpy ride for Skeith.

Merle told me that he talked to the Federal Prosecutor and asked, after reading the indictment, exactly what crimes did Andrew Skeith commit? The prosecutor said you'll see.

Well, after two weeks of trial, the prosecution rested and Merle, persuaded Judge Cauthron to dismiss all 62 charges against Skeith. The judge called for a conference after the Prosecutor rested and asked out loud: Looking at the prosecutor, can you tell me specifically what crime, Andrew Skeith committed? In reaction, the Prosecutor produced a transcript and volumes of evidence which the Judge rejected.

Merle told me that he had to do a lot of investigation, and use all of the skills learned at the Ranch on the Government witnesses. He interviewed as many of the witnesses as would talk to him and found out that they did not feel that Skeith had done anything wrong. Well, Merle asked every witness, when they were on the witness stand, that he was confident would not burn Skeith, if they felt that Skeith did anything wrong. They all said no, Skeith didn't figure in to any of the charges. Agents for the government in an attempt to ensnare Skeith gave Skeith money to spread around which he did. Well done Merle.

I certainly had my doubts when Merle told me about the case because the dollars involved were very large for buying political influence and normally, Oklahomans enjoy a political spectacle before burning a politician. I thought for sure, one out of the 62 charges would stick but none did. Skeith walked out a free man. After the Defense had its turn, Martin was found not guilty on all charges, but Morgan had one charge of bribery stick on him. He faces 10 years.

Thursday, March 8, 2012

Missouri family sex case charges being dropped

Marjorie Russell - TLC '94 Grad. TLC List Serve - March 8, 2012

TLC Staff member Kim Benjamin has been helping elderly client defend bizarre and ridiculous sex crime allegations for two years. He rotted (literally) in jail for most of it, until the judge finally released him very recently, due to her dogged persistence in challenging pretrial detention. One of his co-accused died in jail.

It was all based on "repressed memory" and the stories were full of holes. The claims were of things that supposedly happened 20+ years ago when the accusers were children. Despite claims of forced sex with horses and such, it took most of the two years to get an order for in camera review to determine whether the accused could get access to medical records that most certainly would have shown injuries if the claims were true.

Tuesday, March 6, 2012

Voir Dire from Gerry's "Ugly Client / Confession" and "Reasonable Doubt" wins again!

Sean Brown – TLC ’11 Grad. TLC List Serve – March 2, 2012

This week I traveled down to Dillingham, Alaska, a small fishing town in Southwest Alaska for a Felony DUI/OUI trial.  The District Attorney dismissed a Vehicle Theft prior to the jury being sworn.

Overview:  An officer spotted a pickup truck in the brush alongside the road, upon investigation he spotted my client in the cab of the truck asleep/passed out on the bench seat.  My client confessed to the initial investigating officer that he was driving, and later at the hospital confessed to another officer that he was driving.  My client’s BAC was .4.  Five times the legal limit in Alaska.

My client’s history:  3 prior DUI convictions; 4 prior vehicle theft convictions; plus 11 other various convictions. 

I based my voir dire on Gerry’s “Ugly Client / Confession” and  “Reasonable Doubt” voir dire examples that are on CD/DVD I purchased at the ranch this summer.  The jury let me know their thoughts on confessions, and what they would need to know regarding whether to believe the confession.

To address their concerns, during trial, I used a table in the courtroom as a hospital bed where the most damning confession was obtained, and I pulled witnesses off the stand to testify around it.   Another important scene regarding who was driving/operating the truck occurred at my client’s home.  For that I pulled a witness off the stand and I directed the scenes.

During the directed conversations, the DA repeatedly objected on the basis of hearsay and counsel may not testify.  Eventually the judge said he had enough of my theatrics in his Courtroom.

At one point during my closing, I had my client stand with me before the jury and I asked them to judge him with their heart.

The verdict:  Not Guilty.

Following the trail, the judge actually complimented the style, and said he believed it helped the jury better understand the evidence.

Monday, March 5, 2012

Excess Jury Verdict Against the "Good Hands" People

Matthew Wright – TLC ’11 Grad. TLC List Serve – March 3, 2012

I am pleased to announce that after a short (5 hour) jury trial, my client obtained an excess verdict in an automobile/PI case where Allstate had not made any offer before trial denying both liability and damages in a minor impact soft tissue case ("MIST" - their lingo).

Brief facts:  an elderly male stopped at a yellow light and was rear ended by a younger male.  Damage to the rear of the pick-up truck was not visible and he was not offered an ambulance at the scene so he drove his pickup truck home.  Once home, however, his wife did take him to the emergency room where all x-rays where negative and he was diagnosed with lumbar/cervical strain.  His family doctor ordered several weeks of physical therapy and he was released.  He had a prior hip replacement and some of his therapy appeared to be unrelated to the wreck but may have aggravated his underlying condition.

I took over the case about one month before trial from another lawyer.  We made a policy limits demand of $25,000 with no response or counter.  So, at trial they suddenly stipulate liability and want to argue damages only. I objected because the defendant had denied he was at fault in his deposition.  During voir dire, I used a lot of material from Gerry's "invisible injury" voir dire and told them when I met the client, Mr. Charles Warlick, that I had concerns about presenting his case to a jury when all the diagnostic tests did not show any injury.  When I asked if anyone else shared concerns like I did there was the long awkward pause and then finally an PI insurance adjuster raised his hands to say that he did have concerns about this type of claimed injury and that got the floodgates open and people talking.  We got lucky with one gentlemen who was head of a large agency in Madison County because he also had a lawsuit pending.  So I asked if all his injuries showed up on x-rays.  He replied "no" and so I asked if he still believed he was injured and he said "yes".  He was promptly struck by the defense.

The funniest part of voir dire was the judge (who I had just met for the first time) actually sent his clerk down to our table and gave my co-counsel a note that said, "what is he doing, an opening or voir dire?"  He must have been scared to try to cut me off, because the jury was listening.  After the trial, my co-counsel told me the judge kept looking at him and gave him the cut throat motion, but yet he never tried to shut me down.  I asked the jurors what information they would want to know in order to be able to decide the case and most replied that they would want to hear from my client.  "That's important isn't it?"  "Can you all listen to Mr. Warlick and give me the chance to prove his case?"

Opening I emphasized that this case was solely about whether Mr. Warlick was liar, cheat and fraud (thank you Rick Friedman) or whether he is injured.  I asked them to send him away without anything if they listened and felt in their hearts that he was a liar and had made all this up for financial gain.

Proof was: 1) called defendant driver first and hammered him on stipulating liability after having denied it for over a year and got him to admit that he violated the Tennessee driver's manual by failing to stop for a yellow light.  He said he did not expect the driver to stop at a yellow light; 2) my client (a retired janitor and current lay-preacher, elderly African American man); 3) doctor deposition from treater; and 4) client's wife.

There was long gap where there was no medical treatment and what the defense tried to characterize as "new" complaints of neck pain that had never before been documented.  Mr. Warlick explained that he didn't have enough money to keep going back to the doctor because he was retired and some of his old bills had already gone into collections.

In closing I suggested there was a box of money (a cardboard banker's box) that they hired the defendant to defend (from "Win Your Case").  Defense attorney went berserk over this and asked to approach the bench and said it suggested there was insurance.  The judge told me I had to clarify to say that this was the amount we sought in the complaint and not a "fund".  I got a kick that he didn't want to address the jury about this. 

The Allstate attorney actually made the argument that if "I were hurting, I would go to the doctor in those nine months".  In rebuttal, I pointed out the obvious: "She is a lawyer, Mr. Warlick is a retired janitor on a fixed income and can't afford to spend $100 every time he needs to go"

I had suggested the correct amount was $100,000 of the verdict was.   

After hearing proof, the jury deliberated 45 minutes and gave a verdict of $30,000, which was $5,000 over the policy limits and for which Allstate can be held liable for bad faith and treble damages (and attorney fees) for failure to tender the policy limits after demand was made.

They juror forewoman worked in the healthcare field and my co-counsel had seen her mouth the word, "traction" when my client was trying to describe a procedure he had been through in physical therapy.

Although this is not a large verdict, it will make a substantial difference in Mr. Warlick's life and he was genuinely appreciative and grateful.  This made me feel better than I have felt after some other seven figure settlements clients may have obtained.

I have some thoughts on how I may increase the verdict through eliminating negative anchors. However, it was clear that the smiling jurors thought this was a very large verdict and maybe it was when the offer was zero.  I look forward to making some refinements and getting back in there as soon as I can get another case before another jury.