Tuesday, April 29, 2014


One of the first cases I handled on my own as a new lawyer was a lawsuit between adjacent property owners. The word "neighbor" could not be used to describe their situation.

My clients lived out in the country on about 25 acres. They leased 20 acres of their land to a farmer, who accessed the portion he leased and farmed via a dirt road. The access road ran along, but very near, the outside edge of my clients' land. The owner of the adjacent property sued to prevent my clients and their lessee (the farmer) from using the road, such as it was, because it would interfere with their septic system which ran under the tract and on my clients' property. They claimed ownership of that portion of the property in which their septic system was located by a legal concept known as adverse possession.

I was nearly a year out of law school. Adverse possession is covered in depth in first year Real Property Law and is a popular topic for essay questions on the bar exam.  Since the majority of the cases referenced in the textbooks largely dated from previous centuries, I never dreamed I'd actually have to litigate one. Nonetheless, when I met with my new clients for the first time and reviewed the complaint with which they had been served, I was able to recite the requirements from memory: "open, obvious and exclusive possession of the property, adverse to the owners' interests, for a period of at least 21 years."

They were impressed with my knowledge. I was flabbergasted that I actually had a live adverse possession case.  I crafted a counterclaim for trespass and we were off to an auspicious beginning. I visited their farm and took pictures. I researched the law. I reviewed the allegations with my clients at length. I even interviewed someone at the health department to learn about septic systems.

It was quite clear to me, based upon the facts, that adverse possession simply couldn't be proven in this instance. Unfortunately, the plaintiffs and their lawyer had obtained a temporary restraining order, preventing my clients from clearing and using the roadway and it was spring planting season. Their farmer tenant was getting anxious. I'd need to get that set aside as soon as possible or my clients would lose their lease income.

The day for the first appearance arrived, warm and sunny. My clients met me at my office and we walked the two blocks to the courthouse for a hearing on the temporary restraining order. I was, shall we say, over-prepared. I had a binder tabbed with sections for each witness, copies of exhibits, outlines of questions and copies of all of the relevant case law. It might have been a capital murder case as far as I was concerned. Not yet a year beyond the bar exam, I knew the rules of evidence and civil procedure backwards and forwards, inside and out.

Once we arrived at the courthouse, a crumbling 1880's Gothic Victorian on the town square, I checked in with the judge's bailiff to let him know we were ready. My clients pointed out our adversaries, sitting on a nearby bench in the hallway. I had tried to contact the opposing attorney to discuss resolving the case, but he never returned my calls, so I had yet to meet him.  I approached him now, easily identifiable as the only other person in a suit, and extended my hand in greeting.

"Hi. I'm Meg Pauken. I represent Mr. and Mrs. X."

He looked me up and down with raised eyebrows and exaggerated movements as if I were a sideshow freak. This took effort on his part since I was easily 6 inches taller than he was, without my 3 inch heels.

"I'll see you inside, counselor," he oozed, not even looking me in the eye.

With that, he turned back toward his clients as if I were not there.

Someone had made a very grave error in judgement that day.

The bailiff invited the attorneys to come into the judge's chambers prior to the hearing. The judge, a well-respected and fair-minded man, turned to us and asked if we had discussed settlement.

"No, Your Honor, we have received no offers of settlement," I replied.

He turned to the plaintiffs' attorney, "Why not? Is there any possibility this can be resolved by agreement?"

"Certainly. I have a deed drafted and if her clients will just sign over the property my clients have already acquired by adverse possession, we can be done and we won't need to waste your time with a hearing."

"Your honor, this is the first I have heard his offer, but I can't recommend it to my clients given the facts and the law. If he has any other ideas, I'd be happy to listen."

"No. That is all we are prepared to discuss," he said smugly.

"Can we at least resolve the temporary restraining order?" the judge asked.

"I don't see how," my opponent barked, "since she is so unreasonable. I am sorry we have to take up the court's time, Your Honor."

"Well, then, let's get on with it, counselors," he said as he rose.

The case was called and we entered the courtroom. I unpacked my binders and rule book onto the counsel table reserved for the defense and seated my clients alongside me. I had not done this on my own before and I was a bit nervous, but more than that I was just pissed. I had experienced condescending behavior from older attorneys before and I was determined that this time it would not continue.

Little Napoleon put the Mister of his clients on the stand and went through questions designed to show that they would be "irreparably damaged" if my folks used the dirt road and that they had established the elements of adverse possession of the property.

I objected to leading questions, irrelevant questions and questions that elicited hearsay.



"Sustained, again. Counselor, you might want to rephrase your questions."

Someone was getting rattled.

It was harder to tell whose face was redder, Little Napoleon's or his client's. Until I started my cross-examination. At that point Little Napoleon's face turned purple.

It seems his clients had failed to tell him a few things, things backed up by photographs and letters, things that completely undermined his entire case. Whoopsie.

When I was finished with the Mister, the judge asked Little Napoleon if he had any other witnesses.

"Not at this time, but I'd like a recess to call a couple of others, Your Honor," he asked, in a nonchalant voice that suggested he expected this request to go unchallenged.

"Your Honor, I have to ask you to deny that request. My clients are being greatly harmed by the temporary restraining order currently in place. Time is of the essence since it is spring planting season and the plaintiff should have been prepared to prove his case today. Additionally, Your Honor, I would like to make a motion to dismiss his entire case since, based upon his own client's testimony, there is no way he can prove the elements of adverse possession no matter who else he calls as a witness."

Someone was now apoplectic.

"She has a point, you know. I don't think you can make your case based on what I have heard. Are you prepared to argue the legal elements?" The judge looked us both over.

Little Napoleon swallowed hard, his Adam's apple barely visible in what must have once been a wrestler's neck.

"Your Honor, I have a brief already prepared that I can submit, but I would be happy to summarize the state of the law in Ohio right now, if that would be helpful," I said.

Little Napoleon rolled his eyes.

The judge looked at him pointedly.

"I am going to deny Plaintiffs' request for a recess. Proceed."

"Well, I guess we are being forced to rest, your Honor."

"Miss Pauken? Are you ready to proceed?"

"Your Honor, I would like to renew my motion to dismiss."

I made a brief argument to the court describing the law of adverse possession and pointing out the lack of facts to support the claims made by the Plaintiffs. At the end of my argument, the Plaintiffs' attorney argued something, but I am not sure what, exactly, because the adrenaline in my system was causing a roar in my ears that made actually listening to him nearly impossible.

"Motion granted. Case dismissed."

Holy shit. I just won.

"Excuse me, Your Honor, you do realize we have a counter-claim for trespass that remains?" I asked.

"You do?" He shuffled through his file. "Of course. Bailiff, set the remaining claim for a pretrial in two weeks."

The judge stood and then exited the courtroom.

I was shaking. What had just happened? I returned to the counsel table and packed up my things. I very quietly told my clients we would discuss our next steps back at the office.

Bulging briefcase at my side, I approached my opponent and once again extended my hand with a smile.

"Mr. _____, I guess I'll be seeing you again in a couple of weeks."

Once again, he refused to return the courtesy.

"You know what you are? You are nothing but a barracuda," he hissed at me before spinning around to follow his clients out of the courtroom.

And now I had my personal theme song.

Wednesday, April 23, 2014

Old Men Talking

Early on in my legal career, I did time, significant time, in the trenches known as "Asbestos Litigation". This litigation was HUGE. Thousands upon thousands of cases occurred simultaneously all over the country.

Back then, I worked for a defense firm that represented a couple of manufacturers of asbestos products.  My job (among many others) was to attend the depositions of workers making claims against the companies we represented.  I asked them questions and tried to get them to commit under oath that their exposure was limited to certain places and times and to specific types of asbestos products, with the goal of excluding our clients from liability. I was good at it; good at establishing rapport and getting them to open up and give descriptive answers to my questions.

As a tiny cog in the machinery of this industry-spawned industry, I sat, day after day, in conference rooms with ten or fifteen other lawyers, a court reporter and the plaintiff in exotic locations like Parkersburg, West Virginia and Canton, Ohio.

The plaintiff was usually a man in his 70's or 80's, most often in a flannel shirt neatly tucked into jeans or khaki pants; sometimes in a suit; nearly always visibly nervous. Many were attached to oxygen tanks. They universally removed their caps upon entering the room, with hands that were callused from years of real work.

During his deposition, each man answered questions under oath about his work history, health history and social habits. Generally one lawyer took the lead and then each lawyer would be given an opportunity to ask questions pertinent to his or her client. The plaintiff's own lawyer was present and would occasionally interject with an objection to a question or request for a break. Each deposition lasted nearly a full day.

The rules of this game were well-known to the regular players, but not to the plaintiffs. They all seemed surprised by the collegiality amongst the lawyers and the ease with which we rattled off our questions. They may not have realized we did this every day, for months on end.

The majority of these men had worked out of union halls and were sent to jobs all over the region. Two weeks here, two months there. Many of them had small, battered notebooks in which they had kept track of their jobs over a lifetime of work. Lines of old-fashioned script in different inks covered the pages, along with various smudges, smears and blotches of coffee.

They were pipe fitters, bricklayers, carpenters and laborers. There was a definite hierarchy among them in the real world, but within the confines of a usually windowless conference room, each man was, for perhaps the first time ever, the most important person in the room. Highly educated and well-paid lawyers by the score listened, raptly, as they told their stories. Heroic stories about industrial accidents that nearly killed them, about handling toxic materials with no protection whatsoever, about strikes and labor disputes, about reporting to the union hall each morning hoping for an assignment.

They described their work, adding excruciating levels of detail when asked, baffled that with all of our education, we didn't understand the process of mixing mortar or fitting steam pipes. They would shake their heads in pity at our incomprehensible ignorance, not realizing that our questions were traps we might catch them in later.

I was often the only female in the room other than the court reporter. Most of the lawyers were young men who felt the need to preen before the crowd and were (in my opinion) unnecessarily harsh in their questioning. I usually waited to be the last one to ask my questions rather than join in their jockeying for position.

I know I wasn't supposed to, but I really liked the majority of these gentlemen. Because that's what they were. Not all, but most. I looked them in the eye when they answered, scribbling my notes between questions. I tried hard to keep it friendly and conversational.

They tried hard to maintain their dignity.

"Sexual relations with my wife? That's none of your goddamn business!"

And they were honest.

"Yes, ma'am, I did smoke cigarettes. I was about 12 when I started and I never should have. We didn't know any better back then."

"I smoked Lucky Strikes. No filter."

"No, ma'am, I never did ask for a dust mask to wear. There wasn't none around and we had a job to do. You didn't cause problems if you wanted regular work and I had a family and all."

They built power plants along the Ohio River; factories in Cleveland, Parkersburg and Charleston; hospitals, schools and bridges. Structures we rely upon to this day. They got sick doing it and now were forced to sue for compensation for their injuries. Injuries that were indisputably caused by asbestos, asbestos they couldn't have encountered in their personal lives. Injuries that took away the retirement that they most definitely earned.

These men had lived hard lives and it showed in their red-rimmed eyes, their lined faces and their shaking hands. Yet they didn't complain; not really. They let the medical records speak for themselves. What they did was tell their stories; stories about life as they knew it and lived it. And as far as they were concerned, it had been a good life. They made good money on those union jobs; supported families and proudly spoke of sending kids to college.

When it was all done, all the questions asked and answered, I thanked them. I thanked them for telling us their stories and giving us an opportunity to hear from them directly. I extended my hand to shake theirs. Most often, I received a handshake and a nod in return.

The other lawyers ribbed me about that after the plaintiff and his lawyer left the room.

"Why are you thanking them? They are the ones suing us!"

"Because they are human beings, that's why, you ass."

And then I would escape to my car, feeling sick to my stomach, tears escaping down my cheeks, before collecting myself and driving off to prepare for the next day's stories.

Wednesday, April 2, 2014