Back before I started my business law firm in 1990, I was hired by a respected personal injury law firm to try their bad cases as well as the “impossible cases.”
So, what is an “impossible case”?
Here’s an example: I tried a case where two motorcyclists in Western Maryland collided head on coming around a turn and, along with lots of broken bones, both drivers got amnesia so neither could testify who crossed the center line and, of course, there were no witnesses.
Midway through the trial, which came down to the inferences of skid marks and comparisons of the two front wheels, the case was settled when the insurance companies came to their senses and decided to pay the litigants instead of the lawyers.
No one will ever know who crossed the center line and so no one will ever know what the truth really was.
It was one of those “impossible cases.”
Over forty years ago, there was one impossible case I tried that still troubles me.
It was just a simple red light/green light case. The high school girl who I represented was listening to the radio while driving late one December afternoon down Eastern Avenue where it crosses Gusryan Street in eastern Baltimore.
As the girl approached the traffic light at the intersection, she claimed her light was green, so she drove through the intersection and hit a car. The driver of that car and his three passengers claimed his light had changed to green as he approached the intersection, so he kept up his speed climbing the little hill and got hit under the stop light at Eastern Avenue.
Both drivers and the passengers in the man’s car all claimed the other car had gone through the red light and caused the accident. It was a fine example of a classic “he said/she said” impossible case.
I wanted to win the case and there wasn’t much to work with, so I decided to use cross examination to question the credibility of the driver and his passengers’ testimony and use it against them.
I asked the judge to sequester each of the witnesses in the car so that they could not talk to each other before or after each went on the witness stand to answer my cross examination.
I asked everybody in the man’s car the same two questions: “Did you yourself see the light change to green before your car went through the intersection?”
And then I asked the passengers, “Isn’t it true that the driver is your boss?”
Both the driver and all the passengers answered yes to both questions.
I set the trap and it snapped shut.
At the close of the case, I asked the jury what is the likelihood that all four people in that car were watching exactly at the moment that the light changed from red to green? And then, “Wasn’t it true that the reason that all the passengers in the car were allwatching when the light turned green was because the driver was their boss?”
It was a magic trick.
It is the trick I play on myself neatly everyday but rarely do I get caught. It pits my belief that it is not okay to imply the truth and twist a situation just a little bit against my need to win.
I won the case, but the logic doesn’t hold.
After the jury came back, the boss came over to me. He had just lost the case but there was no anger. He held out his hand and congratulated me. “You did a wonderful job for your client but I do know in a way that you can’t. I know the light was green. I saw it.”
I saw it in his eyes.
It was no longer one of those impossible cases. I had made a mistake.
Okay, I may have a problem. I am a recovering lawyer and now aspiring playwright and poet. Is it possible that I miss time sheets? “Every six minutes” for a lifetime?
People used to say: “You are what you eat,” but what if you are what you “do” or have done?
Maybe I’m getting worse. At the law firm, I made a rule that if anybody could finish a story that I was telling I would stop telling it.
Now I don’t care. If I can get a second laugh or even a third from the same story I will repeat it, again and again. (And I’m going deaf so I’m the only one who doesn’t have to hear it.) It could be senility. It could be I’ve lost any sense of embarrassment, but it definitely demonstrates no merciful memory loss, at all.
The other thing is, even in retirement I must “work.” I have grown even more intolerant of delay because everything I’ve written should be on stage by now! Damn it!
What has happened to me?
In the past year, I have written or rewritten three plays. One (Onaje) has been produced in New York, two will be produced in New York (Vox Populi, for which I wrote the libretto, and The Grace of God & The Man Machine). Another, The Naked House Painting Society, is looking for a home.
Yes, I used to be impatient as a lawyer but now my stuff is not produced fast enough? Do I still need litigation? The need to measure work on massive conflicts in tight building blocks of measured time along with a new project have made me afraid.
I have started working on a poem based on Dante’s Inferno. Dante’s Inferno has 34 cantos and 23 six-line stanzas in each canto. That in itself was my wake-up call. How sick is this?
The law can definitely create “delusions of grandeur.” Might it also imprint the structured, ordered, anal impact of time sheets?
Is it now that I require 34 cantos and 23 six-line stanzas in each canto? Seriously? But I haven’t given into it yet, I think.
Still, as I started the Prologue and began to “write about what I know,“ I found a schizophrenic litigator’s theme begging for harmony. This is how it starts:
With first light, or birth, or perhaps before/
And maybe after, comes the dialogue:/
The debate in the mind. Waves on the shore/
Each overriding the last. No monologue./
Two nagging voices in constant conflict./
One “as doubt“ the other “as hope,“ both spent/
Bickering on some path I did not pick/
Living the daily schedule of events/
As I wake and wonder where each day went:/
The debate in the mind. Waves on the shore/
Each overriding the last. What event,/
What plea, what prayer from my central core,/
What keeper of my life long travel log/
Can cure me of this endless dialogue?/
I start with a sonnet? How sick is this?
T.S. Eliot said:
“evenings, mornings, afternoons,/
I have measured out my like with coffee spoons;”/
And the poor man was just a banker.
Still, it will be funny and too long for me to repeat, so that may be progress.
There is only one lawyer I know who will go to heaven — Mike Millemann. He recently wrote a law review article about a theater class aimed at teaching law students how to be better lawyers, which we taught together several years ago at The Carey School of Law at University of Maryland. The class was both bizarre and beautiful.
The students were tentative at first but, by the end, definitely loved it. In almost every case, the students were amazed by a third dimension this class offered to their law school education: compassion as it is embodied by our professional responsibility.
One of the students commented:
“Ten years from now, I am certain that when I am asked to share my most eye-opening class in law school, I will mention this class. It has been a learning experience that no other law school class that I have taken can come close to in comparison.”
The model for the class came from the stories of African American males incarcerated and serving life sentences in Maryland, who were later exonerated because they were determined to be completely innocent.
At the first class, one of these innocent men who had spent most of his life incarcerated under a life sentence, was introduced to the class. He quietly answered the student’s questions, remarkably without anger.
Each of these men had been through hell and had escaped it unexpectedly, and they shared that experience.
Throughout the writing and performing process, the students learned in a way that is completely different than the traditional law school education.
After going through trial transcripts, appellate briefs, the underlying facts and the law of each case, the students wrote a play. They collaborated, they wrote the roles of corrupt prosecutors under public pressure and eager for a conviction and incompetent defense lawyers who took $300 from the family of the defendant and provided only half-day trials in capital cases without prior research or exonerating witnesses. But also, the students wrote the story of the diminished hope and desperation of family members who were in shock by the verdict, and who over time grew despondent about American justice.
And then the students lived the roles which they created as they performed their play before a live audience.
In one case, Michael Austin, who had been recently released and had taught himself music during his incarceration, stayed with us throughout the class and was asked to join a class member at the side of the stage to add musical accompaniment.
In the last scene, the governor of Maryland announced publicly that Michael Austin was to be released. On stage, the student playing Michael Austin was asked: “Are you angry about what has happened to you?”
To the extreme surprise of the audience, Austin, barely noticed previously, took center stage and announced: “I am Michael Austin and I am thankful for the lawyers who accomplished my release and for the efforts of this class and this law school for telling my story.” From the surprise, came tears in the audience.
But more importantly, the class had learned what law school doesn’t teach: that a lawyer, when he or she takes the oath required to be licensed, has a greater responsibility to the society than almost everyone else. The oath is not a license to make money. It is a responsibility to “protect the Constitution” and the democracy in which we live.
The brilliant Elliot Rauh, a founding member of Single Carrot Theatre and I worked together on this class, but the suggestion and support for the project came from Professor Michael Millemann. He is going to heaven for his lifetime commitment to public justice and the unfairly incarcerated, and for this class.
Professor Michael Millemann’s article has already been accepted by one law review for publication and others are expected to express interest. When it is published, I will post where it can be read.
Featured in the photo: Michael Millemann, Michael Austin, Robert Bowie, Jr.
Regardless of how partisan things seem, Nancy Pelosi’s duties no longer run exclusively to the Democratic Party.
As Speaker of the House in an impeachment proceeding, she has a duty to every citizen of the USA to ensure that the constitutional requirements of an impeachment trial be carried out before she proceeds to the trial in the Senate. She is the lead prosecutor. She is an officer of that court.
It would be a dereliction of her duty, a violation of the Constitution, and an acquiescence to obstruction of justice to proceed with a trial knowing that the defendant is withholding witnesses and documents, and that the jury has predetermined a verdict of acquittal before the trial begins.
She must wait for the federal courts to enforce the Constitution. She must not compromise for anything less. She must put the spotlight on the head-on collision between fascist partisan politics and the clear violation of our Constitution, and have the Federal Courts confirm the Constitution and her protection of it.
The senators will take their oath “of objectivity” and for many the hypocrisy quite possibly can’t be stopped. (It might be fun if the prosecution asks Chief Justice Roberts, the judge in this case, for the right to voir dire the jury to determine if there is pre-existing bias, which should require disqualification of senators who have publicly stated that they have made up their minds and are working for the defendant.) No matter what, however, Pelosi must wait for the federal court’s rulings requiring the testimony of witnesses and production of documents.
Time is not the enemy of the country in all of this, but it is the enemy of an obstructionist defendant.
President Trump and Senator McConnell will show their hand if they lambast Pelosi for waiting for a court ruling, because they will show that the court and the delay is what they really fear.
They want to force a vote by a biased jury so they can declare victory in the President’s campaign. But if they are forced to wait, and they lose in the courts (as they will) before or even after the election, they will not be able to sweep their obstruction under the rug. It will be a historical record. It will be irrefutable.
No, time is not the enemy! Given the time and a chance to talk together, more people will have a chance to understand and get it right. Nixon was elected by every state of the union except Massachusetts. Two years later, he resigned when it became clear he was about to be impeached by a bipartisan vote.
So, in fact, time and the Federal Courts are Pelosi’s ally. The more she waits out the storm and requires that the Constitution be respected, the more President Trump and Senator McConnell will be punished for their stonewalling and other violations when the courts rule against them.
It is not about the election. It is about whether we can hold on to our Constitution and who we are as a country.
The question is: Does Pelosi have the guts to withstand the storm and represent all the people of the United States, not just the Democrats?
No guts, no glory, Nancy. Weakness won’t work. “Oh, say can you see?” We will see soon enough.
I remember when Congress actually had good manners and I almost got a chance to cite the Constitution in traffic court.
Many years ago, from within a culture of politeness, I watched the U.S. Congress impeachment proceedings of Richard Nixon. Now, 45 years later, this culture of politeness in Congress doesn’t exist, but back then it seemed to have several benefits.
I got a job in the office of Senator Charles “Mac” Mathias (R-MD) as his mail clerk. My “office” was directly behind the wall that separated me from the receptionist and everybody else.
After several months, I got a chance to demonstrate my enthusiasm. The Senator knocked on my door and told me he had a “special assignment” for me.
He told me that there was a lobbyist right on the other side of that wall who was sitting in the receptionist area. The lobbyist had just threatened to pull all of his airline clients out of BWI unless the Senator voted in favor of a bill that would be considered by the Senate that afternoon.
The senator told me to take the lobbyist to the Senate dining room and take detailed notes on what he wanted.
I straightened my tie, went through the door, and introduced myself.
After a brief moment, the lobbyist looked me over and asked me, “What exactly is your job title?”
I proudly told him, “I am the mail clerk!”
He thanked me, declined my invitation to the Senate dining room, and left.
One of the benefits of this culture of politeness was it encouraged good manners without public reprimand.
The Senator eventually took pity on me and I became his driver.
Back then, the Senate was bipartisan and the senators got along. We filled up the back seat with the likes of Kennedy from Massachusetts and Tower from Texas. We all listened to the political news in the car together on WTOP.
Despite often radically different points of view, this civility grew from a collective belief that these representatives were exercising a shared power. It made sense. This responsibility of shared power allowed a culture of compromise and progress that we have not seen since the country has been polarized.
There was a reverence on both sides for the Constitution. Mathias always had a copy in his coat pocket.
No one was immune from this culture, including me. One time as we were headed to Washington from the western part of the state, Mathias leaned over to me, turned down the radio, and said, “We can pick it up a little. You are going to law school. If we get pulled over, you will be able to cite the Constitution to the officer.” Mathias smiled as he patted his coat pocket. “It is illegal to hinder a member of Congress on the way to a vote.”
I never asked him for the chapter and the verse. I just drove a little faster. It just made sense.
Several years ago Professor Mike Millemann, on the left, contacted me to see if I wanted to help him fulfill a grant made to the University of Maryland Cary School of Law to teach law differently by using the theater.
We signed up Elliot Rauh, of Single Carrot Theatre and decided the class should write plays about prisoners who had been released from prison after they had been determined to be absolutely innocent after years of incarceration. One of those plays was about Michael Austin, at the center, who was imprisoned in Maryland for over 27 years for a murder he did not commit. He was freed through the brilliant legal work of Larry Nathans, Esq., of Nathans & Biddle.
Last week we got together again at Lexington Market in downtown Baltimore as a reunion of old friends to help Michael because Michael had just found out that due to a typo in his arrest record he was never exonerated and that has kept him from getting work. This will be resolved but the reunion between friends nonetheless was wonderful.
In Michael’s case, and in most of the cases that we turned into plays, the process was remarkably similar. On the first day of class we brought Michael in to meet the class and answer questions. He was calm, collected, and despite the injustice of his incarceration not angry but very wise. In prison he had perfected himself and along the way he had become quite a remarkable musician.
Throughout the following weeks of the semester, the first third of the class was used to do deep research on what went wrong and what led to his conviction. The class went through trial transcripts, records of an incompetent defense lawyer, and files of prosecutors that withheld evidence and a transcript recording of the judge that sentenced an innocent man to life in prison.
The second third of the class the students wrote the backstory, and in the third and final part of the class, Elliot Rauh taught acting and turned inexperienced law students into the actors of their own play which was performed before the law school.
Michael stayed with the class from the beginning. One of the students said that he should provide music for the play and he agreed. Another one of the students suggested that at the end of the play, Michael should leave his instruments behind and identify himself as the Michael Austin about whom the play was written. The audience gasped and some wept.
At first I thought this class might have limited value so we asked that the students provide a one minute clip to the people who had provided us the grant to state whether they thought the grant money had been used appropriately. I became convinced when one student faced the camera and said “I wrote the part of a defense lawyer who was unprepared, acted the part of the prosecutor who withheld the time card that would have exonerated him, and read the exact words 30 years ago when an innocent man was pronounced guilty by a state court judge in the circuit court of Baltimore city and sentenced to life and I have never been in a courtroom.”
At that point we were convinced that the class worked. People were learning from mistakes made before they were fatal. We taught the class for seven years and it was ranked as one of the most appreciated classes at the law school during that time.