August 01, 2012

Sidebar: My First Trial

How do you prevent blunders, from overlooking a crucial case to having your expert barred from testifying?

Kenneth P. Nolan

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I never wanted to be a lawyer, but I went to law school anyway. After a few years of studying Palsgraf, the UCC, the Rule Against Perpetuities, and other garbage, I decided I needed some experience—especially since I had never even been in a law office. I taught high school English and attended law school at night, so one hot summer I volunteered at Legal Services in Brooklyn where I could meet real lawyers, clients and, maybe, a black-robed judge or two.

With shoes shined, I climbed the steps to the Legal Services worn and tiny offices and was assigned to assist a soft-spoken lawyer who looked like Al Pacino in Serpico without the white mouse. I sat and watched as poor, mostly helpless blacks, Hispanics, a few whites, told painful tales of cruel landlords and filthy, dilapidated tenements. These heart-wrenching stories nearly made me cry but were met with business-like questioning from the lawyer. No “How ya doin’,” no “Sorry for your troubles” which were part of my DNA. Simply:  “What can I do for you?”

And he didn’t help everyone. Some were callously told “sorry” and dismissed.  If he could help, he’d fill out a form, and send the weary client to another who would begin the paperwork to fight the evil, ruthless landlord in filthy, dilapidated civil court a few blocks away.

I learned to complete the forms, and visited the zoo that was the Landlord/Tenant Part with lawyers shouting names, cutting deals, until the judge arrived and tried to quiet the throng. Some judges were polite and tolerant of the buzz emanating from the hundreds who jammed the giant courtroom. Others were like lion tamers minus the whip. “Quiet,” they screamed. “Take off your hats. This is a courtroom,” “You sir, remove your hat now or I’ll have you tossed out.” “You picking your nose, stop it. That’s right.” After all, this was Brooklyn in the mid ’70s, all elbows and simmering heat, which would erupt next July during a blackout when neighborhoods were looted and torched.

For me it was pure excitement, constant action with hundreds of cases on every day. Landlord lawyers, arms loaded with files, would demand eviction; the tenant lawyer would beg for a few months of mercy. The judge would instantly rule and move to the next poor slob.

An alien language that all understood except me and the few innocent souls who believed justice would prevail when they politely explained why the rent was overdue. “You have a lawyer?” the judge would demand. “Why don’t we put this over for two weeks so you can get a lawyer. Next.”

No cases were cited; the law rarely. Not exactly how we were taught in quiet classrooms. The real world was noisy, crowded, chaotic—a hulking, massive beast where each case was decided in seconds; no time for contemplation, reflection, analysis. Lawyers handled 10, 20 cases at once, scurrying to various courtrooms, tossing dimes into pay phones, stopping only to scrape and bow when a judge strolled by.

After a week of observing, I was assigned a case. An elderly, proper woman with a Scandinavian accent told me that her husband, with whom she didn’t live, was evicted while an in-patient at Methodist Hospital even though the rent was paid. The judgment of eviction had been entered and her husband’s clothes and furniture, she maintained, were piled on the sidewalk.

Ridiculous. Who would toss an old, sick man onto the bitter concrete? And commit fraud by affirming that the rent was delinquent? Such malice exists only in the imagination.

We drove to the shabby brownstone in Park Slope to find bags of clothes and decrepit furniture piled near the curb. It’s not like I was a rube from Peoria or Dubuque—I was brung up in Brooklyn as we say—but I was shocked and shaken. And I was told the same sad story at bedside by William Schaefer: how he lived alone in the apartment for years, always paid his rent, and didn’t even know about the eviction until his wife found the papers taped to his door.

I eagerly prepared—with assistance—an order to show cause to overturn the eviction. Since I was part of the Legal Services’ summer program, I could act as an admitted lawyer—appear in court, try cases. So I pleaded my case before some cynical judge and silently steamed while the landlord’s attorney gave a million reasons for the eviction. As I recall some 35 years later, we were in court one or two more times, pressed to settle, until the exasperated Judge assigned a date for a nonjury trial.

I don’t remember being nervous as I sat with this odd couple—married 30 years, lived together only a few months, never divorced. I had never seen a trial, so I simply reviewed the facts and told them to tell the truth. How hard could it be?  

My adversary was a heavy, pleasant fellow who spent his life representing landlords. Perpetually frenzied, he was interested in a fee, not justice. When they don’t pay, we evict them. That’s what I get paid for. Whaddya expect? Right and wrong never entered his mind.

I’m sure an offer was made for my client to vacate since he was paying peanuts and the rent could be doubled for a new tenant. Indeed, the landlord leased the apartment to a new tenant as soon as the Judgment of Eviction was issued. With my client having nowhere to live, this was rejected.   

We were assigned to an older, amiable judge. The small, drab courtroom was empty except for the clerk, my clients, and the landlord, a thin, older gentleman in suit and tie, holding a hat that went out of style in the early 1960s. Certainly, this grandfather type wasn’ t the malevolent ogre I had imagined. 

In my most serious voice, I opened and told a tale of outrage and illegality. My adversary was more measured, describing a pattern of late payments and detailing the legalities of the eviction. I called my client and began to ask about living on Sterling Place. During the direct, Mr. Schaefer wandered, discussing events of years ago or his illnesses. He talked about everything except the eviction.

Isn’t it true that the landlord knew you were in Methodist Hospital?

Objection, leading.

Sustained.

I had no idea what that meant, so I continued: Your landlord was aware you were in Methodist, isn’t that right?

Objection, leading.

Sustained.

Even though you paid the rent, you were still evicted?

Sustained, the Judge said without prompting.

I continued with nearly every question met with “Objection, leading,” until eventually, with the judge’s assistance, I wrestled the narrative from my befuddled client. 

The first question on cross from my adversary was:

Isn’t it a fact that you didn’t pay rent for two months?

Objection, I stormed. Leading.

No, no, the judge laughed. On cross he can lead; on direct you can’t.

Who knew? I then realized my law school education was worthless in a courtroom.

My adversary, not exactly Clarence Darrow, damaged my client’s credibility, and for the first time, I realized that I could lose. I was panicking.

Mrs. Schaefer took the stand and I asked a few open-ended questions and shut up. Articulate and sympathetic, she told of their unusual yet simple lives. Immigrating to Brooklyn, marrying, working at menial jobs, and how she cared for him as his health deteriorated. A fascinating saga of real love, not the fleeting romantic kind, but the long-term love of another. One grown old and ill could easily be ignored. Instead, she stepped into his life with compassion and without complaint.

Her goodness and benevolent demeanor didn’t spare the landlord her wrath. And the judge loved it. My cross of the landlord was somewhat effective or at least that’s what I was told by one of the Legal Services lawyers who stopped by. During summation, I was emboldened with indignation and sarcasm. Way over the top.

A week later, on August 13, 1976, the judge ruled that the landlord “without cause or justification, wrongfully, unlawfully and illegally took possession” of my client’s apartment and reinstated him as of August 31. In addition, my client was awarded legal fees of $125 which, I was told, was rare, and for which I was congratulated. I hoped the meager amount was not a reflection of my ability.

The summer soon ended, and I returned to teaching and law school. I had stumbled upon a vocation, having enjoyed all of the trial, even the pathetic landlord who couldn’t comprehend his own immorality. I relished the give and take, the direct and cross, the closing.  

Back then, I knew it all. I was 26. Yet I had experienced a heartless world, inhabited by greedy landlords and cheating tenants, where justice occurs rarely. Happy endings, I realized, were fleeting since Mr. Schaefer died shortly after returning to his home.

Yet I still smile when I recall the words and face of the landlord, who I ran into a few months later when he recognized me and spit, “You really screwed me up, you know that?”

Kenneth P. Nolan

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, New York City.