They think my dog might have cancer,” said the judge to no one in particular, closing her cell phone and gazing down from the bench.
“Your dog’s like a member of the family, isn’t he, judge?” said my attorney, seated next to me at the defendant’s table.
“He’s got a broken leg, too,” the judge added.
“Oh Lord, when it rains, it pours!” said my attorney, now in full empathy mode.
The Dallas County judge had called a recess in my civil court trial to telephone her dog’s veterinarian. The jury had been sent off to the jury room, and the rest of us sat looking at ourselves. The judge finished her call, and another 10 or 15 minutes passed. I got up and walked to the back of the courtroom. “What’s going on here?” I muttered to a representative of the insurance company that was paying for my defense in this lawsuit. “Nothing,” she replied and rolled her eyes.
It was times like this that I wondered just how I got here.
In July 2004 at DFW Airport, I nudged another car while backing out of a parking space. There was no discernable damage to either car. (My insurance company later determined the cost to repair the other car at $77.) Some days later, the other driver decided he was feeling poorly and went to one of the medical clinics around Dallas whose business plan is based on extracting money from insurance companies. The clinic treated the driver for a few days, running up a bill of $1,200, and released him.
Now this driver had a problem: he owed the clinic $1,200. He went to see a personal injury lawyer. The lawyer referred the driver to a second medical clinic with the same business plan. That clinic gave the driver more medical treatment: MRIs, physical therapy, etc.—$4,000 worth of medical treatment.
A year and a half later, two years after the accident, just before the Texas statute of limitations expired, the driver and his lawyer filed suit against me for medical expenses, for pain and suffering, for mental anguish.
That’s when things got crazy.
When you file a civil suit against someone, you have to let him know he’s being sued, which is what a process server does. You pay him $60 per hour and he takes the legal papers over to the person’s house. This can be a tricky business for the process server if the recipient doesn’t want to be served. I, however, made no attempt to avoid the court papers. Even so, one month melted into the next and no papers.
In Texas the plaintiff is supposed to serve legal papers on the defendant within two or three months of filing suit. It’s part of what is called due diligence. My mother-in-law, who was also being sued—it was her car I was driving at DFW that day—called me when she got her papers. She figured out the mystery: according to her papers, the other driver’s lawyer had the wrong address for me.
I called my lawyer, who told me, yes, they cited the wrong guy.
I asked if we should we let them know.
My lawyer: “How long have you lived in your house?”
“How long have you had your phone number?”
“Are you in hiding?”
“If they want to sue you, it’s their right,” he said. “It’s not my job to help them.”
In December 2006, five months after supposedly filing suit against me (and two and a half years after the accident), I still had not been served my papers. My lawyer petitioned the court to have the case dismissed. The judge denied the petition.
I phoned my lawyer: “If the plaintiff doesn’t serve me papers within a reasonable time, doesn’t the judge have to dismiss the case?”
“The judge doesn’t have to do anything she doesn’t want to do,” he said.
“What’s she waiting for?”
“Look,” he said, “she’s a Democrat.”
Finally, in January 2007, I was served the court papers. A trial date was set for May 2007. Meanwhile, the judge ordered both parties to appear before a mediator. My insurance company offered the plaintiff $500 to end the suit. The plaintiff’s attorney (originally from Ethiopia) found the offer “insulting” and, according to those present, demanded $25,000 or “you can go to hell.” My insurance company chose Hades, and the plaintiff’s attorney departed angry.
The next day my lawyer called to say that at the plaintiff’s request the trial had been rescheduled to August 2007. On the appointed day, three years after my accident, I walked into the courtroom in downtown Dallas. My lawyer was there; the judge was there. The judge shuffled some papers and looked down from the bench. Her exchange with my lawyer, as I recall, went something like this:
The judge said, “Has anybody seen the plaintiff or plaintiff’s counsel?”
“No, Your Honor,” my lawyer said.
“Hmm. Are you going to petition for dismissal?”
“I already did, Your Honor.”
“Yes, Your Honor. You denied it.”
“Oh. Well, do it again.”
“Yes, Your Honor.”
So my lawyer would petition to have the case dismissed, the judge would grant it, and the whole stupid business would be over. A week later my lawyer phoned me.
The judge denied the petition for dismissal. Again. My lawyer’s response: “Yeah, that’s kinda hard to figure.”
The trial was reset for November 2007. All the while I’d been receiving for my perusal an avalanche of paperwork from my lawyer: requests for disclosure, amended requests for disclosure, responses to disclosure, responses to production, all manner of affidavit, plaintiff’s and defendant’s motions for this and that. There was even a prayer. In one section of a Defendant’s Motion for Reconsideration called “Prayer,” my lawyer “prays that the Court reconsider its ruling” of such and such a date regarding something or other. The divine apparently chose not to intervene, as the judge denied the motion.
For reasons I don’t remember, the trial was rescheduled for April 2008, then for July 2008, and finally for December 2008. Turns out that was the month the plaintiff’s lawyer went back to Ethiopia for a visit. The trial was rescheduled for January 2009.
Miracle of miracles, in January of this year, all of us were there: judge, plaintiff, plaintiff’s lawyer, me, my lawyer. Before we could do anything, the plaintiff’s lawyer told the judge he had to run to another courtroom for just a minute. He’d be right back, he said. The judge said, Okay, hurry up. The plaintiff’s lawyer departed. The judge grabbed her cell phone and called her dog’s vet.
When the plaintiff’s lawyer returned an hour later, we proceeded with jury selection. Twenty are called, six are chosen. Of the six jurors who were seated, three of them were good-looking young women, which probably made it an atypical Dallas County jury.
The plaintiff was not a bad guy, and he made a decent, if slightly pitiful, witness. At that point, so long after an accident he hadn’t caused, he probably wanted just to cover his medical expenses and make a few bucks besides. When my lawyer cross-examined him, he asked why it had taken so long to serve the defendant (me) the lawsuit papers, thereby bringing up the issue of the plaintiff’s due diligence. The plaintiff was at a bit of a loss there, and his lawyer started objecting a blue streak.
The plaintiff’s lawyer, a practitioner of spectacular and extravagant incompetence, recognized the threat due diligence posed to his case, so he took the only action that he deemed could vanquish it: he called himself to the witness stand. In doing so, he took a case that had already gone from the ridiculous to the absurd into the surreal. I was hoping he would embrace that surreality by asking himself questions and answering them. But no, he simply took the witness stand and spoke. On the matter of trying to find the defendant (me) and serve the lawsuit papers:
“I did due diligence, specifically Internet searches in my office with my paralegal, letters to post office inquiring about George Palmer, local phone companies if there’s a listing for George Palmer. I did all that trying to find George Palmer.”
Apparently what the plaintiff’s lawyer did not do was check the telephone book. In 2006, when he filed the lawsuit, there were seven listings for people with my name. Two of the seven were me.
It was at this point that the plaintiff’s lawyer acknowledged that, after he realized he’d served the wrong person, he tried to find me, only to serve papers to the same person, the wrong person, again.
When my lawyer cross-examined the witness, he enumerated the myriad ways the plaintiff’s lawyer could have learned that he had sued the wrong person and how he might have found the right one (request for disclosure, interrogatory, request for production, deposition).
Regarding due diligence, none of the jurors I spoke to after the trial understood its implications, namely that if the plaintiff had been deemed not to have done it, he would have lost the case outright. They apparently decided that, if he hadn’t exactly done due diligence, he had at least shown some diligence, and that was enough for them.
The bigger issue the jury wrestled with, according to the jury foreman afterward, was how to be fair to the plaintiff in spite of his lawyer. (Outside the courtroom after the trial, one juror was heard to mutter, “He’s the most disorganized lawyer I have ever seen.”) On the stand, the defendant—that’s me—had admitted responsibility for the accident, and that is what mattered to them.
Initially the jury was divided. Two of them wanted to give the plaintiff a lot of money (beyond medical expenses); two others wanted to give him only a little. Thereafter, the jury’s deliberation consisted of negotiating that divide. In the end, they awarded him his medical expenses plus 15 percent, which means he and his lawyer got to split about $790.
That the plaintiff got what money he did may be due to something that happened during jury selection. Among the 20 prospective jurors were 16 whites, two Hispanics, and two blacks. The judge can strike prospective jurors who under questioning show themselves to be obviously unacceptable. The plaintiff and defendant are allowed to strike three each without cause, but these strikes may not betray a racial bias. The man who sued me was an Ethiopian, as was his lawyer. (Both were U.S. citizens, making them truly African-Americans.) So if I, as a white male defendant, had attempted to strike both black prospective jurors, the plaintiff would have objected, and the judge would probably have sustained the objection.
We saw a bias problem with each of the black prospective jurors. One was born in Nigeria (also now a U.S. citizen), and we suspected he might sympathize with the Ethiopian plaintiff. The other was a stocky 30ish woman dressed from head to toe in camouflage gear. So we decided to strike Camouflage Woman, for weirdness rather than blackness, and take our chances with the (former) Nigerian.
Later, while the jury was deliberating and I was hanging around the courtroom wondering why they were taking longer than 10 minutes to decide the case in my favor, I picked up some papers on the floor near the jury booth. They were the phone bills of an account delinquent by about $800 and showing numerous calls to Nigeria. I suspected they were the juror’s and that the story of the Ethiopian plaintiff in hock to medical clinics would resonate with him. Later, when the case was over, I learned that this juror was one of the two who had wanted to make a sizeable award to the plaintiff.
In the end, in addition to the plaintiff’s $790, my lawyer cost the insurance company $11,875 (95 hours at $125 per hour), and a couple of shady medical clinics got $5,300. The case occupied the Dallas County court and staff intermittently for two and a half years, and six jurors missed two days of work.
“Your case is relatively common,” former State District Judge David Kelton told me. It seems that one out of every two or three civil cases in Dallas County (but only about 10 percent of actual court time) involves what insurance companies call minor-impact, soft-tissue injuries (MISTI). The term is so common it has its own acronym. Treatment tends to be MRIs, followed by physical manipulation, heating pads, and lots and lots of chiropractic. The cases are initiated by a synergistic network of personal injury lawyers and medical clinics. A guy has an accident and goes to see a lawyer who refers him to a medical clinic, or he goes to a medical clinic where he gets referred to a lawyer.
The good news, according to former judge Kelton, is that “juries are pretty smart.” “They can see a broken bone, real physical and emotional trauma, and know it’s honest-to-goodness pain. Soft-tissue injury is different,” he says. “And in Dallas, juries don’t give huge awards for that.”
Which is my small comfort. In my last exchange with my lawyer, I told him I felt as if we’d lost.
“We lost but we won,” he said.
“But the jury found in his favor.”
“The guy wanted $25,000 and got pocket change.”
So the system worked. Shout it from the rooftops.
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