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LITIGIOUS SOCIETY The Case of the Tenacious Tenant

He who takes his own case has a fool for a client. At least I don’t charge $250 an hour.
By Larry Upshaw |

LAWYER JOKES ARE DIFFERENT in one important respect from those that poke fun at Eastern Europeans or agricultural college students: We think those other guys are dumb. Lawyers we envy.

Confusing real lawyers with their TV surrogates, we see them browbeat rich and famous people, expose crooked cops, even talk back to judges. They all have wonderful spouses and 2. 3 BMWs. And they’ve wormed their way into every corner of our society.

Except one: the justice of the peace courts. In the JP or small claims courts, all you need is a cause of action that amounts to less than $2, 500, and you can be your own attorney. It’s not easy, but lots of people do it every year. Last year in Dallas County, more than 152, 000 cases were filed in the 14 justice of the peace courts, 23, 472 of them small claims civil suits like mine. Most of the parties represented themselves. I was one of them.

Let’s stipulate, as we legal eagles say, that this was not my first time to seek justice before the bench. Once, in my youth. I played attorney by suing an Oak Cliff cleaning and laundry establishment before Justice of the Peace W. E. “Bill” Richburg, famous back then as “The Law West of the Trinity. ” The renegade launderers had sliced open the fabric of my only suit pants in a foul attempt at alteration, and boy was I steamed.

Judge Richburg looked at the pants, scowled at me, and ruled in favor of the defendants, saying that the pants were perfectly fine “fer ever ’thin’ ceptin’ Sunday ware. “

An attorney couldn’t have helped in the face of that bizarre, early-day Dallas jurisprudence, but I was determined that the case of Larry Upshaw vs. Gary Chubb (his name is unchanged to cause him further embarrassment) would turn out differently. Preparation was the key.

In this corner we had The Other Side, a prosperous, middle-aged couple who insisted that they had every right, nay the duty, to hold back our security deposit and certain other amounts on the Lake Highlands house we had rented from them. They claimed that we had failed to clean the house before moving, failed to water the yard, and failed at a number of other things.

Then there was Our Side. Armed with a lease, move-out instructions, and canceled checks, my wife and I were certain we had fulfilled our obligations. Now we were being dared to invest the time and trouble to get our money back. In effect, the landlord was saying, “How bad do you want it?” Our answer: “Bad enough to sue you, buddy. “

The law says you have to file in the precinct in which the defendant lives, but since no one usually questions where the defendant lives, I chose Precinct I, Place 2, because Judge Fletcher Freeman couldn’t be more different from “The Law West of the Trinity. ” Quiet, well-dressed, and businesslike, Judge Freeman teaches seminars to people wanting to pursue small claims lawsuits. He would appreciate my preparation, 1 was sure. I could smell a handsome jury award.

At the heart of our strategy was the decision to ask for a jury trial. We saw ourselves as the underdogs in this case, and juries, according to conventional wisdom, favor underdogs. And since this was a matter of principle, it just seemed right to use the most democratic form of judgment available.

I was ready for equal justice. Unfortunately, the court wasn’t nearly so eager. Three months passed before we saw the judge. And when we did, he seemed miffed that I wouldn’t waive the jury and let him divide this baby himself. Finally, he was able to clear his calendar for a jury trial.

Meanwhile, I had cleared my own docket for what turned out to be an absurd number of hours spent preparing for trial. I compiled pages of questions for The Other Side and interviewed a neighbor who had been through the house and wanted to testify. I had taken photos of the house when we moved out and mounted them on poster board. There were receipts for work performed, de-mand letters, and other bits of evidence. My trial notebook was two inches thick.

On trial day, armed with all this, Our Side stood in the hallway outside the courtroom as The Other Side approached, accompanied by another man. Yes, they had decided to go ballistic and hire an attorney. I would have been terrified, but the attorney of choice turned out to be one Bruce Longenecker, who-small, small world-had once represented me in court. (We lost. )

It was still unnerving, being pitted against a real lawyer, but I managed to bumble through the selection of the six-person jury. I heard myself telling them several times that I was not an attorney. I think there was prima facie evidence of that.

Now for the strategy. A very fine family lawyer once told me that every case comes down to a single vital point that is said, said incorrectly, or left unsaid. He also told me that while you never tell “lies” in court, it’s essential to construct your own reality, your personal rendition of the facts, and to be prepared to sell that to a jury. The flip side, of course, is that the enemy has its own version of reality as well.

I avoided crucial errors until my opening statement. Then I blundered into accepting the Other Side’s reality by agreeing that, yes, this case was a big waste of time. What I meant was that their refusal to return my money made it so. What they meant was that we were insulting the jurors by bringing the matter to court. Bad start.

So I set out to reconstruct my reality. I even had a theme-“They have my money”- and I used it like the tag line for an advertising campaign, Every chance I got, I would repeat my theme in combination with the plaintiffs’ lawyer’s favorite line: “You have the opportunity to send the defendant a message… “

All afternoon we parried back and forth, playing the game of “He Said, She Said. ” Locked into this battle, you become obsessed not with the questions or the answers, but with their impact on the jury.

For instance, my wife had met with The Other Side immediately after we moved. How would the jury weigh that meeting? Would they focus on her offer to do some more cleaning in the house? Was that an admission it had been left uncleaned? Or would they focus on The Other Side’s hardheaded claim that it was too late for that, thus reinforcing my theme of “They have my money”?

The afternoon wore on. The judge was getting irritable. Could he be mistaking my diligent preparation for the work of an obsessed wiseacre? As we recessed for the day, he called the two sides into his chambers, pointed out the weaknesses in my case, and urged me to settle for whatever they offered. I was glad I’d gone for a jury.

When we resumed the next morning, 1 realized that I had failed to do the most elementary of things-tell the jury exactly what I was asking them to do for me.

The actual damages I requested were about $1, 000, half of which could be tripled under Texas statute. With court costs and the mental distress of dealing with all this, we were hovering pretty close to the $2, 500 maximum.

While I explained this, one juror looked at me with a bemused grin that seemed to say, “Twenty-five hundred to you. and I’m here for $6 a day!”

The case trailed off from there. Attorney Longenecker found more pressing business elsewhere and left his client to give his own summation. The jury looked tired, the judge bored. His only charge to the jury was to please return a moderate verdict, since emotions ran high on both sides and they didn’t want to invite an appeal.

As it happens in most court cases, no one came away completely satisfied.

Within 15 minutes, the jury declared we had won. They awarded us half the actual damages plus court costs, and no punitive damages. I was vindicated, but only after dedicating more than 40 hours of pretrial ef-fort to recover $540 that was mine in the first place. But that was okay. The Other Side had figured the jury would strip me of all my worldly possessions, then take me outside the courthouse and flog me with a cat-o’-nine-tails. Their evident disappointment was worth thousands to me. and they paid the judgment immediately.

As for the long-term social impact of the ruling, the most important effect may be this: After that struggle, both litigants will surely attempt to settle disagreements out of court, the old-fashioned way.

Now we come to the lawyer joke. After all was said and done, which actor in this stage play prepared the night before trial, left before it was over, lost for his client, and still came away with financial rewards?

You guessed it. Seems like the joke is always on us.