General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Summer 1997 copyright American Bar Association. All rights reserved.
The Chair's Corner
Robert R. Wright III
The subject of this issue is litigation, and the temptation to write something either in defense or critical of our justice system is tempered by the fact that this sort of uplifting thing is about all that I have written here or in The Best of ABA Sections all year long. We are not, after all, in the midst of the London Blitz or the Great Depression, and we ought to be permitted to have a laugh or two every now and then.
Therefore, whether you find these few stories amusing or not, here are some that will find their way into the history of the bench and bar of Arkansas, which I am currently writing.
One of them concerns me. When I was a young lawyer, I was in a small firm with a general civil practice. Among our clients were a number of insurance companies that we served as defense counsel. One of them sent me a file one time that I thought must have been invented by one of the pranksters I had known in law school.
The insured defendant, it seems, late one Saturday night was speeding down the wrong side of the road in West Memphis, dead drunk, when he ran through a red light and hit a Baptist preacher and his wife who were returning home from a Youth for Christ rally. The police were right at hand because they were chasing my client at the time. He told me that he had been in a hurry because he wanted to get another bottle of whiskey before the liquor store closed so that he could return to a nightclub where he was with a woman other than his wife. Fortunately, I did not have to admit liability and try to limit the trial to the damages; I was able to settle it.
Another experience involved a closing argument to the jury. I had on a new gray suit. This old courthouse had some undetected and unclosed opening (probably a loose screen) in the area above the courtroom that permitted pigeons to get into the building. Sometimes, they flew around the high ceiling of the old courtroom. I had just said, "Ladies and gentlemen of the jury," when I felt something fall lightly on my right shoulder. A pigeon had nailed me, and after the court recessed for me to attend to my needs, I came back and closed - and a couple of hours later, the jury did the same thing as the pigeon.
Many strange things can happen with demonstrative evidence no matter how much care is taken to be certain that nothing goes wrong. In one personal injury case in Eastern Arkansas, a large ceiling fan had fallen in a store, and on impact its blades had flown out all over the place, injuring one woman's leg rather severely. The defense contended that the blades would not break loose as alleged. To demonstrate it, they used pulleys and ropes to elevate the fan to the same height as in the store, and then turned on the fan and cut the ropes. Well, you can guess what happened. Confident defense lawyers barely escaped the same fate as the plaintiff. Anyone with any sense got on a chair or table. The jury awarded big bucks.
In an Arkansas murder case, the defense was that the gun allegedly used would not shoot because of a defective firing pin. (The defense lawyer had repeatedly tried unsuccessfully to get it to shoot.) As he reached his peroration, he casually slipped the weapon that he had secretly loaded earlier off of the reporter's table and under his coat. Pulling the gun out dramatically, he pointed it in the air and said dramatically, "And I say that if my client is guilty, then this gun must be able to shoot!" BANG! All the jury had to do was select a foreman.
Judges are sometimes productive of interesting moments. In one case involving what actually amounted to gross mismanagement of a small rural bank, the defendant banker was actually a lawyer who was in the Arkansas legislature. The defense was that he was too ignorant and ill-informed to run a bank and therefore could never intentionally commit a crime. One of the defense witnesses was a prominent justice on the Arkansas Supreme Court who was a social and political friend of the U.S. district judge handling the trial. When he came forward, the trial judge left the bench, went down and shook his hand, and introduced him to the jurors as an old friend, an astute judge, and one whose word could be relied upon without fail. Having thus been blessed by the federal court, the justice thereupon informed the jury that he had known the defendant very well all of his life and that he was an honest man although one who was far too dumb to be running a bank, much less to commit a crime in connection with it. The jury was not out long.
In another case, prominent trial lawyer and former governor Sid McMath was arguing a case to a federal jury. The defense lawyer was a prominent Missouri practitioner who would later become president of the ABA. He kept objecting. Finally, the judge admonished the gentleman from north of the border, "Mr. Blank, will you please keep quiet while Governor McMath explains the law to the jury."
Judges themselves are not immune from personally embarrassing situations. On one occasion, reported to me by a federal judge, a goodly number of the U.S. Eighth Circuit Court of Appeals judges went hunting for Canadian geese in Canada. They shot too many of them and were taken into custody by the Canadian Mounties. I never quite got to how this ended because at this point, the judge who was telling the story (and who wasn't there) broke up in laughter and never finished.
At this time it is probably well for me to quit before I am guilty of the judgment rendered by one Arkansas lawyer to his partners on the closing argument for his long-winded opponent: "What did he say? Why he spoke for 30 minutes and generally subtracted from the sum total of human knowledge."