November 2004 - The Dog Ate the Citation

Cheryl S. Lay of El Paso (Leslie & Lay, P.C.) serves as an associate municipal court judge — and she recently had this motion presented to her to recall a warrant:

“DEFENDANT’S MOTION TO WITHDRAW A
WARRANT AND TO SET MATTER FOR HEARING”
…
2. Defendant is a teenage boy and therefore, as a matter of law, doesn’t have a lick of good sense. Despite the fact that his parents are licensed attorneys, Defendant felt it was the better course to not tell them about the citations. Therefore, upon information and belief, the dog ate the citations. …

Ray, Valdez, McChristian & Jeans
By Robin Collins, Attorney for Christopher C. Collins

Cheryl adds: “After wiping the tears from my eyes, I signed the order as Municipal Court Judge/Mother of a Teenage Son.”
- posted by texasbar @ 12/30/2005

 
January 2004 - Did She Really Ask That?

From Robert A. Bragalone of Dallas (Cooper & Scully), this excerpt from a deposition he recently attended.

Q. And where are - how are you calculating that? How old do you believe Damien was when he was born? We'll start there.

Mr. Bragalone: Object to form. That's one of those for Judge Buchmeyer.

Ms. Vaughan: Let me rephrase that.

A. From the discharge -

Q. (By Ms. Vaughan) That one would have definitely been misleading. Let me rephrase that.
- posted by texasbar @ 12/29/2005

 
January 1995 - Did He Really Ask That?

From Mark. R. Kolitz of Dallas (Liechty, McGinnis & Kolitz), this question from a recent set of interrogatories served on Mark by a "rather respected personal injury defense attorney" who shall, of course, Remain Nameless.

Q. Please state the content of any conversations between you and the vehicle operated by David Gonzalez at the scene of the accident made the basis of this lawsuit.
- posted by texasbar @ 12/28/2005

 
April 1991 - Did I Really Ask That?

From Jimmy Morris, this trial excerpt from one of his criminal cases:

Q. Are you related to Johnny Darrell Bailey?

A. Yes.

Q. And what is the nature of that relationship?

A. I'm his mother.

Q. And you have been all of his life; is that right?

A. Yes, sir.

***

From Richard Lederer's Anguished English:

Q. At the time you first saw Dr. McCarty, had you ever seen him prior to that time?

***

Q. I understand you're Bernie Davis's mother.

A. Yes.

Q. How long have you known him?
- posted by texasbar @ 12/27/2005

 
July 1990 - Did I Really Hear That?

From Frank Douglass of Austin (Scott, Douglass, etc), these excerpts from the deposition "given by a Ph.D in accounting" in an arbitration proceeding. The dispute concerned this paragraph in the contract between the parties:

"13. Operating Overhead. To compensate X for overhead costs incurred in the operation of the Plant, X shall charge the Plant Account an amount equal to 15 percent of the total operation and maintenance expense of the plant, including insurance, taxes, plant shrinkage costs, which compensation shall be in lieu of the salaries and expense of X's principal business office, division offices and district offices."

On direct examination, the "expert" testified that the intent of the parties was "fuzzy." On cross, Frank asked the witness "point out the fuzzy words" - and, with Frank's help, new dimensions of fuzziness were established.

A. Okay, "operating overhead," "overhead" is fuzzy; "to compensate" ... I don't quite know what that means. "Incurred in the operation of the plant" is not clear.

Q. You skipped a few there. "To compensate X for the overhead costs." ... The second overhead is fuzzy, too?

A. "Overhead," wherever it occurs ...

Q. How about "operating," that is okay?

A. "Operating" is all right. ... And the two of them together ("operating" and "overhead") are less fuzzy than "overhead" by itself.

Q. That improved the fuzziness of "overhead," to put "operating" in front of it?

A. It would make it less fuzzy, yes, sir.

[The witness then testifies that "to compensate," "overhead costs" and "incurred in the operation of the plant" are all fuzzy].

Q. All right. [Any] fuzzy words in [the next phrase]? ...

A. Medium fuzzy, but not nearly like the others that we have talked about.

Q. The whole phrase is medium fuzzy?

A. Yes. But I'd put it on the lower - that one is reasonably concrete to me.

***

Q. All right. Continue ...

A. And the final phrase, "of X's principal business office, division offices and district offices," is, for me, somewhat open to interpretation.

Q. Semi fuzzy?

A. Semi fuzzy.

Q. Let me ask you about the [next phrase]. "Rates" fuzzy? "In practice" is fuzzy?

A. Oh, yes, very definitely.

Q. Maximum fuzz?

A. Maximum fuzzy, yes, sir.
- posted by texasbar @ 12/22/2005

 
February 2002 - Did They Really Say That?
From David Bryant of Dallas (Hughes & Luce), this excerpt from the deposition of a defendant who had promised a former employee (the plaintiff) stock in the defendant’s company. The Defendant “was not quite clear about inter vivos trusts, even though he had created one for himself.”

Q. Do you consider yourself an alcoholic?

A. Sometimes I do; sometimes I don’t.

Q. Do you recall any particular occasion when you called [plaintiff] when you were intoxicated during business hours?

A. I’ve called him when I’ve been drinking. I can’t recall being intoxicated, no …

Q. I guess it’s pretty hard to remember that sometimes, but ...

A. It really is ….

Q. Did you talk with anybody else in 2000 about the possibility of selling stock?

A. Probably my trustee, just casual talk. I can’t recall anybody else.

Q. And what trust is he a trustee of?

A. My trust, my personal.

Q. Does it have a name?

A. Intravenous, whatever you say it, Trust — these legal words. I can get my checkbook out and show you what it says, but that’s as close as I can tell.
- posted by texasbar @ 12/21/2005

 
October 1996 - We Just Made Buchmeyer

From Judge David M. McCoy of Childress (presiding judge, 199th District Court), these two examples of "making Buchmeyer" - an invaluable and painfully descriptive phrase - that took place in two separate revocation cases he heard on the same day, with the same two attorneys: District Attorney Earl Griffin and defense attorney Randall Sims.

The Powell Case
By Mr. Griffin:

Q. Mrs. Powell, would you state your name for the court, please?

A. Marjorie L. Powell.

Q. Mrs. Powell, how are you related to Danny Powell?

A. I'm his mother.

Q. And you've known Danny, I guess all his life, right?

Mr. Sims: Judge, I think we just made Buchmeyer.

The Gonzales Case
By Mr. Sims:

Q. Where [are] your kids you keep referring to?

A. Well, with their mother, I guess. I haven't talked to her mother - well, my daughter was with my girlfriends' mom and -

Q. Where's she live?

A. In Paducah.

Q. How many children do you have?

A. I've got one and one on the way.

Q. Where is the one on the way at?

A. With her mom.

Mr. Sims: I may have just made Buchmeyer, too.
- posted by texasbar @ 12/20/2005

 
December 2001 - The Whole Enchilada

From Stephen White of Austin, this excerpt from a disciplinary hearing before the Texas Board of Medical Examiners heard by Administrative Judge Ann Landeros.

Q. And do you have your office space within this 1.4-mile area?

A. I do not.

Q. And some physicians do and some physicians don’t?

A. Correct.

Q. But having — based upon your experience at the various hospitals, do all of the ophthalmologists who have — who are — have a special training or such specialty in guacamole —

THE COURT: You want a motion to strike?

MR. PICKENS: Move to strike guacamole and insert enchilada.

Q. (By Mr. Pickens) Let’s get back to the situation, and we’re talking about the whole enchilada here or tortilla here, it looks like on the map here.

Do all of the physicians who have subspecialty training in glaucoma have privileges in all the hospitals?
- posted by texasbar @ 12/19/2005

 
January 1994 - Did He/She Really Say That?

From Stephen M. Schlacks of Conroe (Hope & Causey), this excerpt from the plaintiff's deposition in a slip and fall case:

Q. Okay. Your feet went out from under you when you hit a slick spot, correct?

A. My one foot went under the cabinet and the rest of my body just kept going, and that's what broke my foot.

Q. You broke your left ankle?

A. Broke both ankles and broke the center bone. You got the medical report, didn't you?

Q. I thought you only broke your left ankle.

A. Well, there's two ankles on the left foot, inside ankle and outside ankle.

Q. Okay. Let me get this straight, then. Your right foot did not get anything -

A. Didn't hurt a thing on the right foot.

Q. Broke your left foot?

A. Broke my left foot. Broke the center bone and busted two ankles, the inside ankle and the outside ankle.

Q. All right. So your testimony is you have four ankles, correct?

A. That's right.
- posted by texasbar @ 12/16/2005

 
November 1991 - But Let's Take This One More Time, From the Top!

From Vincent K. Foreman, a Texas attorney who is currently on active duty with the Marine Corps.

Vincent first sets the stage by explaining: "The enclosed verbatim transcript is from an Article 32, UCMJ, pretrial hearing. One of the charges was obstruction of justice in which the Marine was accused of influencing a complaining witness to change her 'story' to match his. According to the governmental counsel (trial counsel), the lack of clarifying punctuation in the transcript is accurate as the witness never took a breath."

Then:

Trial Counsel: You are saying, the night before PFC M. told you to what?

Miss A.: What I should have told them what happened.

Trial Counsel: I am sorry, say again.

Miss A.: He told me that I told him what I told them what happened in the room.

Trial Counsel: You told him that you made a statement saying that he hit you?

Miss A.: Yes, I asked him what he told them and he told me what he said and that's what he wanted me to say what he said.

Trial Counsel: What did he say?

__
Not being able to restrain himself, Vincent adds: "Amazingly, the witness eventually told us what he told her he told them so she could then tell them, too. Say again?? (or in non-military terms, 'Huh?')
- posted by texasbar @ 12/15/2005

 
October 2005 - Classic Typos

Lias J. “Jeff” Steen of Houston (who is the “vice president, administration/ legal” of ReedHycalog) has clients who were engaged in a declaratory judgment action filed in another state.

He asked outside counsel to conduct “an expansive review of possible jurisdictional issues related to this particular battle which included a number of non- U.S. business entities.” However, when he received the billing statement, he noticed the following provision:

Per instructions from Mr. Steen, conduct an expensive search into any and all possible jurisdictional issues.
- posted by texasbar @ 12/14/2005

 
September 1996 - Truth is the Light, Brother

From Lewis R. Sifford of Dallas (Sifford & Anderson), these two excerpts from his deposition of the plaintiff - a landscaper and a minister of the gospel - who claimed that he had been injured when a gun accidentally discharged in a pawn shop (represented by Lewis).

Q. Mr. Bradford, what type of injuries did you have [in a previous accident]?

A. Head injury, back fracture, wrist, nose broke, jaw broke, head busted.

Q. Were you hospitalized?

A. Yes, sir. Parkland.

Q. How long were you there?

A. About a month.

Q. And, how long were you off work [after the accident]?

A. I don't remember, I can't remember right off. ... This happened in '79 - let me see here. July the 24th, 1979. I was off maybe about a year and a half or two years as far as I remember. I was just a vegetable. I can't exactly remember. I just know -

Q. You say - I'm sorry. You say you were a vegetable?

A. I was just about a vegetable to nothing.

Q. What kind of vegetable?

A. Well, I mean - what I mean is that, unable to do anything.

***

Q. Now [about the accident in the pawn shop] you're saying that you had been leaning over the counter talking and horse trading ...

A. Leaning over the counter? No, no.

Q. That's what you testified to earlier.

A. No. No. I didn't say leaning over. I said I was leaning on the counter.

Q. Well, isn't that leaning over?

A. No, sir. Leaning over is meaning I'm hanging over towards you. That's over. That's what the over means.

Q. All right. Well, I don't want to split hairs with you.

A. Well, I mean, that's the truth. Truth is the light, brother. That's it. Leaning over. Leaning on.
- posted by texasbar @ 12/13/2005

 
October 2005 - Let'em Sleep

This contribution, from U.S. District Judge T. John Ward of Marshall, is from an employment case Ward tried recently “wherein plaintiff was alleging race and age discrimination and retaliation for protected activity":

The defense was that the plaintiff had been discharged because of poor performance. Part of the performance issue involved sleeping while on the job. The plaintiff was a home healthcare nurse.

The defense attorney asked the following question:

Attorney: Do any of you think that sleeping on the job is not grounds for firing someone?

Juror: I think if a person wants to sleep on the job and they can get away with it, that’s their prerogative. Let ’em sleep.

Ward adds: “The response brought considerable laughter from the remaining jurors.”
- posted by texasbar @ 12/12/2005

 
January 1998 - Covering the 100-Year Floodplain by Leaps and/or Bounds

Gene Majors of San Marcos (Fitzgerald, Majors & Stevens) - Gene is board certified, commercial real estate law - begins his letter with "Real estate lawyers never have anything funny happen, and they seldom get to participate in a deposition." However, he recently sat in on the deposition of the county floodplain administrator and ...

Q. What is a 100-year floodplain?

A. That's a floodplain area that has one chance a year of flooding, is why they consider it a 100-year floodplain.

Q. One chance - per year?

A. Right.

Q. Why is it called the 100-year floodplain if it's one chance per year?

A. You got me. That's just what they refer to it as, the 100-year floodplain. But the chances of flooding is not once every hundred years; there's once chance a year of flooding.

Q. All right. And are you certain that the 100-year floodplain means one chance per year?

A. That's what they've always told me, yes ...

Q. And what I would like for you to do now is try to locate this property as you see it here on this survey on this FEMA map.

A. It would be impossible for me to do that. This is by leaps and bounds, and the FEMA map really don't show any leaps or bounds.

Q. Did you say "leaps or bounds"?

A. That's what they call it, a survey - or calls it in their surveys, leaps and bounds or whatever.
- posted by texasbar @ 12/09/2005

 
January 1995 - The Verdict

From Judge Wallace Bowman of Fort Worth (County Criminal Court No. Four) and his court reporter, Julie A. New, this conclusion to an assault/bodily injury trial:

The Court: Would you please hand the verdict form to the bailiff for inspection by the court. At this time, I'll ask the defendant to please rise. The verdict form is signed by Becky Summer Stroope as presiding juror. At this time, I'll read the verdict to the defendant. "We, the jury, find the defendant not guilty as charged."

Presiding Juror: Damn! I signed the wrong one.
- posted by texasbar @ 12/08/2005

 
September 1991 - In Cameras & the Courtroom

From District Judge Jack Carter of Texarkana (5th Judicial District), this excerpt from testimony "in a custody case in which the respondent had certain notes with him on the witness stand":

Q. Mr. Lair, the first question I would like to ask you is what you have in your possession up there?

A. All my notes when my daughter has been in custody with me and all that stuff that she's lied to her daughter about.

Q. I would like all of the suppressed, Your Honor, as hearsay.

Judge Carter: He hasn't offered anything yet. You're the one that asked him about it.

Mr. Williams: I would ask at this time, Your Honor, that he not be allowed to rely on those things, they refer to a third party, and they're not ...

Mr. Kusin: ...he has a right to keep his own personal notes, Your Honor.

Judge Carter (wisely): Overruled.

Mr. Williams: Note our exception, Your Honor, and we would like the court to have an in camera observation of that.

Witness: There ain't no camera up here and I ain't got no pictures.

Judge Carter (confidently): That takes care of that. They tell me they're going to have to start having cameras in the courtroom too.
- posted by texasbar @ 12/07/2005

 
February 1989 - Verbal Typos

Victor Fleming of Little Rock (Catlett, Stubbfield) makes this contribution to the deposition series:

A. I believe he asked if HUD was willing to accept a Deed in lieu and when he was there in my office, I received a telephone call from Doug Chavis that said, "Yes, he would accept the Deed in lieu" and Mr. and Mrs. Loomis were ready to sign the documents...

Q. Okay. What documents had you prepared?

A. An agreement for a Stopple. Warranty Deed from Loomis' to FHA, a Mechanics and Affidavit or Mechanics and Lumberman's Affidavit and I believe that was it.

Vic also recalled "in a letter long since discarded (transcribed by a secretary who met a similar fate). I advised a client on "the Rule of Thum - not to be confused with Perpetuities, Shelley's Case, etc."
- posted by texasbar @ 12/06/2005

 
January 1990 - Did I Really Say That?

Judge Robert Lee Eschenburg, II of Floresville (218th District Court) notes that "you rarely write about a judge's goof" — and contributes one of his own:

I have just finished a criminal trial. During the final argument by one of the attorneys, the other attorney raised an objection. I quickly responded "overstained." Just let the 4th Court of Appeals in San Antonio reverse me on that!
- posted by texasbar @ 12/05/2005

 
October 2005 - Did They Really Provide That?

John Albach of Dallas - who is general counsel for Half Price Books - recently negotiated a "Subordination, Non-Disturbance, and Attornment Agreement" for a shopping center in Boston where Half Price Books was a tenant.

Because the lender's attorney had made a number of mistakes in the proposed agreement she drafted, John decided to re-read the entire agreement and found this clause:

"9. Should any action or proceeding be commenced to enforce any of the provisions of this Agreement or in connection with its meaning, the prevailing party in such action shall be awarded, in addition to any other relief it may obtain, its reasonable costs and expenses, not limited to taxable costs, and unreasonable attorney's fees."
- posted by texasbar @ 12/02/2005

 
October 2005 - The Lease

Peter L. Kilpatrick of San Antonio (Langley & Banack, Inc.) sent this marvelous (!!) provision from an August 2005 lease agreement:

“13. DISPUTES. If unanimously hereafter agreed by the parties, any disputes regarding this lease shall be settled by an old-fashioned fistfight or best single draw five-card poker hand.”

Peter adds: “The lease is between friends in the Marble Falls area, who, as you might guess, occasionally play poker together. I can hear the judge now, ‘Do you want to call your first witness or do you want to take it outside?’”
- posted by texasbar @ 12/01/2005