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.


  1. WOW! Love this Meg. Great last line.

  2. I do so love a good a$$-kicking story, especially when the heroine is my barracuda of a pal, one Ms. Megan.

    What's more, I adore comeuppance to the condescending. Keep these stories coming, as they make me feel better about missing the current season of THE GOOD WIFE.