June 30, 2006
Judge Buchmeyer's First Podcast
You've read his courtroom humor - now, hear the man behind "Say What?!" and "et cetera" in the Texas Bar Journal.
Judge Buchmeyer was interviewed recently by the Legal Talk Network. Click here to listen (Windows Media format).
February 1994 - The Civil Stuff
From Callan M. Billingsley of Angleton, this excerpt is from the bank president's deposition in a suit seeking a deficiency judgment for the balance due on the promissory note following foreclosure. Gary L. McConnell represented the bank and George T. Wommack was the defendant's attorney.
Q. (By Mr. Wommack) and who was the trustee, under the deed of trust, at the foreclosure sale? Well, let me ask you, who said "hear ye, hear ye, hear ye, we're going to hold a sale"? Who held that sale?
Mr. McConnell: Nobody said that. Nobody said "hear ye, hear ye." They said "O yea, O yea, O yea."
June 29, 2006
November 1990 - Don't Tell Anyone About This
From Steven C. Copenhaver of Austin (Davis v. Davis), this deposition excerpt from a probate case "in which my client, a private charitable organization, was alleging that a sizeable sum of money was supposed to be bequeathed" to it "instead of another organization with a similar name." Steve was deposing a friend of the deceased (the witness was represented by David F. Beale of Houston).
Q. Have you had an opportunity to talk with your attorney concerning what a deposition is?
A. Yes sir, he told me what a deposition was.
Q. I'm sure your attorney has instructed you to answer the question I ask.
A. Yes, sir. Did he tell you I'm incompetent?
Q. No he didn't tell me that.
A. Well, I am.
Q. What makes you say that?
A. The doctor says that. I don't get my money. My wife gets the money. She's my guardian.
Q. Have you understood every thing you and I have talked about up to this point in time?
A. You told me your name, but I forgot it.
Q. Have you understood everything I've said so far?
A. You ain't talked much.
Q. Do you remember having a conversation with me?
A. This is the first time I've met you, right here.
Q. I mean over the phone.
A. I talked to somebody on the phone. I don't know who it was because I couldn't see through the phone.
Q. Good point. Do you remember hanging up on the telephone conversation?
A. Yes sir. Some guy called, and I didn't, you know, want to talk to him so I hung up.
Q. Do you know why you hung up?
A. We finished our conversation.
June 28, 2006
May 1992 - An Unprepared Witness
From Thomas M. Harlan of Alvin, this excerpt from a deposition he took in a child custody case:
Q. Are you asking me to believe this undying mother's love will spring forth ...
A. Mr. Harlan, I don't want you to believe anything I say. That's not what I'm here for. I'm Christopher's mother, and I'll be Christopher's mother whether you or anyone likes it or not. I can give Christopher love and affection that other people cannot.
Q. Have you ever cursed in front of Christopher?
A. I've probably said "____" or something; but other than that, no, I do not swear. I make it a point not to swear around any kids that I'm around.
Q. And you've never said anything but "____"?
A. I mean, I've never said - I probably have, but nothing that Christopher would even - as he got older, no, I didn't. When he was a baby, maybe I have; but when he started talking, no.
June 27, 2006
February 1991 - Read My Lips
The deposition excerpt, which comes from Esteban A. Aguilar of Albuquerque, N.M. (The Ryan Law Firm), was taken in a lawsuit which resulted when Rio Arriba County "bladed a road through property owned by the Jicarilla Apache Tribe." Pat Harman (of the Payne Law Firm) is deposing the County Manager, Mr. Naranjo, "an elderly individual with an obvious hearing impairment" (who was represented by Mr. Rodriguez).
Mr. Rodriguez: For the record, Mr. Naranjo has a hearing impairment, and you have to speak a little bit louder than normal for him. It may require that a question be repeated. I am advising you of that so that you play it by ear in that respect.
Mr. Harman: All right.
Mr. Rodriguez: If there's any problem, then maybe you could write out your questions for him. I don't know. But let's proceed and see.
The witness: If I don't hear well, I might have to ask it a second time. We can get along pretty well. I hope so, okay?
Mr. Rodriguez: Okay.
Q. What is your present occupation?
A. I am county manager of Rio Arriba county.
Q. How long have you been county manager?
A. I would say approximately 12 years now ...
Q. What are you duties as county manager?
A. Will you repeat yourself, sir?
Q. Yes. What are you duties as county manager?
A. Did you ask about Duda when he became employed sir?
Q. No. What are your duties?
A. Oh, my duties of county manager. I am an administrative assistant to the County Commission.
Q. Do you know of any filing made by Rio Arriba County with the State Highway Department in 1988?
Q. Are you aware of any 1988 filing made by the county?
The Witness: Funding?
Mr. Rodriguez: Filing.
Mr. Harman (Wisely) Let me go ahead.
Q. Do any of those cases, Mr. Naranjo involve county roads?
A. Involve what?
Q. County roads.
A. Would you repeat yourself?
Q. Do any of the cases involve county roads?
A. No, sir.
Q. County money, not state money?
A. (Nods head)
Q. You will have to answer yes or no, Mr. Naranjo.
A. (Nods head).
Q. Did that case involve any county roads?
A. I am very sorry, sir?
A. I am not getting you, sir. See, I have problems with a person with a mustache, I'll be honest with you.
Mr. Rodriguez: He can't read the lips.
A. The upper lip.
A. I'm sorry to say this.
Q. I may not have time to shave, so let's try it again.
A. I didn't mean to insult you, sir.
Q. How much money did you receive under the will?
A. One hundred twenty-four thousand four hundred eighty dollars and no pennies. I know that.
Q. You've got it down to the dime.
A. You better believe I've got it down...I get beat out of money so often that, man, I'm real careful.
Q. Did your wife receive the same amount of money?
A. Yes sir, she gets check, too.
Q. Are you controlling your money, or is she controlling it?
A. It's in the bank, but don't you tell anyone.
June 26, 2006
November 1990 - Taking The Fifth for God
Charles E. Johnson of Austin was taking the deposition of the leader of an anti-abortion group; this excerpt "after the deponent had claimed the Fifth Amendment privilege about 75 times (and... more than 100 times in the deposition)."
Q. On page seven you were asked, Well, don't you recognize yourself as the leader of Austin Rescue? [And your answer was] "No, I do not." Now, what do you mean by [that]?
A. I mean I do not experience myself as being the leader of Austin Rescue.
Q. You don't recognize yourself as a leader of Austin Rescue, [yet] you are taking the position that Austin Rescue is a sole proprietorship?
A. Yes, I am.
Q. Can you reconcile that for me, please?
A. Oh sure, I consider God to be the leader of Austin Rescue in the same way as if I was an attorney who owned a law practice I would consider God to be the leader of my law practice and my law practice may still be a partnership or sole proprietorship. ...
Q. So you are saying that God is the one that directs what happens in Austin Rescue, God is the one that signs the checks, God is the one that makes the plans, God is the one that lays out the stuff like The Welcomer?
A. No, I didn't say that. You asked me does God do those five things. God hasn't signed any checks, but neither have I. Would you go ahead and give me, the other list?
Q. Well, preparing newsletters like The Welcomer?
A. I respectfully decline to answer that question based on the Fifth Amendment.
June 23, 2006
May 1992 - A Really Prepared Witness
From Karen Jones of Bellevue, WA (Riddell, Williams, etc.) - who clerked for Chief Justice Barefoot Sanders of Dallas (N.D. Texas) - This reprise of a classic deposition excerpt:
Q. ...Do you recognize the person in [this photograph] Plaintiff's Exhibit B?
A. It is Mr. Edgington.
Q. Do you recall approximately the time that you examined the body of Mr. Edgington at the Rose Chapel?
A. It was in the evening. The autopsy started at about 8:30 p.m.
Q. And Mr. Edgington was dead at that time, is that correct?
A. No, you dumb _____. He was sitting on the table wondering why I was doing an autopsy.
June 22, 2006
April 1991 - Did I Really Hear That?
Tom Whitlock of Denton contributes this trial excerpt from "a mental health probable cause hearing in which he represented the proposed patient." Tom is cross-examining the mother of his client:
Q.Has she ever [acted suicidal] or threatened to hurt anyone else?
Q. I believe you testified that she had some kind of psychosis. What kind?
A. Post-mortem psychosis.
Q. Post-mortem psychosis.
Tom adds: "I know that dying always makes me psychotic!"
June 21, 2006
April 1991 - Did I Really Ask That?
This deposition excerpt comes from Sandra Givens, secretary to Berry Bishop of Austin (Clark, Thomas): it is from a deposition that Barry took of an expert in an oil and gas case.
Q. So what you did then is reach a conclusion as to what would have happened if something that didn't happen did happen. Am I getting that right?
A. I did the calculations based on if West Texas complied with the contract. I didn't understand that question. You might try it again.
Q. You got a couple of if's in there that didn't happen.
A. The if's is a hypothetical called for in the contract.
Q. So it is just like I'm saying, you reached a conclusion of what would have happened if what happened didn't happen?
A. I think, if I got all of those if's right, I think that's probably correct.
Q. That's an interesting way of going about life. I was thinking about that last night. If I could fly, how far could I fly?
A. I don't think you could fly very far, Mr. Bishop.
Q. You have testified so much that I knew you would have an opinion on that too, Mr. Rhodes.
A. I didn't really mean that the way it sounded.
Q. I knew you would have an opinion. I really wanted to know what your opinion was before I got airborne.
June 20, 2006
October 1990 - Just How Fantastic Was He Doing?
These two trial excerpts from a medical malpractice case come from John R. Halliburton of Shreveport (Assistant U.S. Attorney, W.D. LA). John explains that the plaintiff was a widow; that her husband was hospitalized three times in a two-month period; and that he died during the third hospitalization when he suffered a stroke after surgery.
First, from John's cross-examination of the widow; he has just read parts of her deposition testimony - that she was asleep and did not talk to one of the doctors who called on Sept. 18, 1987, when her husband died - and asked the plaintiff if she remembered that deposition testimony (which apparently was taken under the Most Unusual Conditions):
A. Not in that way, no, sir, because she said that she told [the doctor], said mother's going to want to talk to you. But I talked to [one doctor] and I talked to [a second doctor]. But she woke me up on both of them. It was rather early in the morning.
Q. So just what I read from your deposition there, that's not what you teestified to May 27, 1988, then?
A. May 27?
Q. 1988, yes. You saying you didn't tell me that?
A. May 27 is not when he passed away. He passed away on September.
Q. Yes, Ma'am, just asking you.
THE COURT: Do you remember when he took your deposition in May, the following May, do you remember that?
THE WITNESS: Yes, Sir, But I thought he took it in August.
THE COURT: Well.
MR. HALLIBURTON: For the record, it was May 27, 1988?
A. It was.
Q. Yes, but.
A. I remember being in the bathtub at that time, and I thought it was August.
Next from John's cross-examination of the stepdaughter - with some help from the Court about the use (and meaning) of the word "fantastic."
Q. And the last time you talked to your mother prior to the date of [your stepfather's] demise would have been Sunday, Sept. 16, 1987, by phone, wouldn't it?
A. Yes, sir.
Q. You were informed by your mother that he was doing fantastic?
A. That he was doing fine, that he was going to get to go to a nursing home.
Q. The word in describing that was fantastic, wasn't it?
A. I mean he couldn't get up and do cartwheels, no, sir.
THE COURT: No, the question, I'm sorry. If you will listen carefully to the question that counsel asks and try to answer it, please, ma'am. Was the word you used "fantastic"
THE WITNESS: I'm sorry. I don't know.
Q. Do you remember the deposition that I took of you on June 16, 1988?
A. Yes, sir.
[John reads a portion from deposition where the witness testified that her mother called and said that her stepfather "was doing absolutely fantastic."]
Q. You remember testifying to that to me, don't you?
A. Yes, sir.
Q. So you did use the word fantastic?
A. If that's on the piece of paper I'm sure I did.
Q. You don't take issue with that now, do you?
A. I really don't understand what you mean.
THE COURT: Do you agree?
THE WITNESS: That he was doing fantastic?
THE COURT: Yes.
A. No, I don't agree. He couldn't have been doing too fantastic to have died just two days later.
June 19, 2006
February 1998 - The Wondrous World of Pro Se
(1) From a letter I received from a state prisoner concerning his unsuccessful habeas petition:
I am appealing to your sense of ethnics and the power you've been given by the higher court. I could not get this burglury overturn all though I challenge in my Pro-Se Grief.
(2) From a letter sent by a criminal defendant I was to sentence:
I have a serious cyst that could lead to tormoil illness. If you want me to, I will come down and let you feel the knot.
(3) From a letter I received from a defendant sentenced to a short prison term:
I am a law binding citizen and no criminal act has not been committed by me, and none will not be committed, Judge Buchmeyer, Trust me. God do. And my word is my bound. IF I TELL YOU IT GOING TO RAIN, GET YOUR UMBRELLA. PEACE.
June 16, 2006
March 1997 - Did They Really Ask That?
From Oliver "Jackson" Schrumpf of Sulphur, La. (Schrumpf & Schrumpf), this excerpt from the deposition of the Vehicle Permit Manager, Louisiana Department of Weights & Measures, taken in a civil case involving an overloaded log truck.
Q. And then under that appears the permit for the axle and gross vehicle load limitations. First, you have single axle. What is a single axle, Mr. Norman?
(after a long pause ...)
A. That's one axle.
Q. You're talking to lawyers.
Mr. Schrumpf : He thought it was a trick question.
June 15, 2006
March 1996 - Looking the Other Way
From W. Bruce Williams of Midland (Cotton, Bledsoe, etc.), these deposition excerpts from a workers' compensation case he had in 1987 with Clyde C. Bishop of Odessa (Childs, Bishop & White). Bruce sets the stage: "The plaintiff (Clyde's client) was the owner of an oil field service company" who was "in the middle of a divorce." He tried "to lock his wife's car in the company yard, but she jumped the car and drove through the gate." The plaintiff "bashed in her windshield with a gate post," but she drove off - and, after having a "couple of drinks, she returned with a gun and shot him. They remarried six months after the divorce."
Bruce finally enters the picture - to defend the workers' compensation case in which the plaintiff alleged that being shot by his wife was "work related," and not the result of a personal argument - and he asks the plaintiff:
Q. And can you tell me in your own words the reason for filing for divorce?
A. I don't know the reason for it. I couldn't tell you.
Q. You don't know why you filed the divorce?
A. No, sure don't. I don't know why I married her back, either.
Q. Had there been any problems between y'all? I mean had you been with any other women before the shooting?
A. I imagine. All men does.
Q. And I don't imagine she was very happy about that?
A. I don't know. She never did say nothing to me abou it.
Later, after the plaintiff testified that "he never saw the person who shot him," Clyde Bishop tries to clarify his client's testimony.
Mr. Bishop: Bruce, if you don't mind ... I don't think he actually saw her. But when he was running, he heard her voice; and so in his mind, he knew it was her.
A. Yeah, I knew it was her the second shot.
Q. What had you heard her say?
A. She said she was going to blow my damn head off. I knew her voice.
Mr. Bishop: But you were looking the other way running.
A. I was looking the other way. You would have been, too.
[RECESS ... for both lawyers to regain their composure.]
June 14, 2006
January 1995 - If You Drink, Don't Medicate
From Judge Pete Lowry of Austin (261st District Court), these excerpts from the father's testimony in "a trial in which the state sought to terminate [his] parental rights." Assistant District Attorney Ann Foreman of Austin asked the questions.
Q. You told Dr. Zamorski you could drink about two six-packs a day?
Q. Is that about right?
Q. Can you please sort of tell us where you've been employed in the last three years?
A. Well, I worked at Church's Chicken and then I worked at the Finish Line on Bee Caves Road.
Q. Why did you quit?
A. Well, the reasons why I quit was because my high blood pressure was getting next to me on the job and they said that I should take my medication, but I wasn't taking it.
Q. Why weren't you taking it?
A. Because they said it is not good to drink and take that medication that they had me on, so I just said - you know, I didn't want to be bothered by taking the medication if I was going to be drinking.
Q. Okay. So you chose to drink instead of taking the medication?
June 13, 2006
February 1994 - Did I Really Ask That?
Edward Ross of Coldspring thinks he "recently topped" the Industrial Strength Stupid Questions - "And was he alive when he was doing this?" - in his last probate hearing:
Ross: (handing the will to the witness) So far as you know, did she make any other will after the date of her death?"
June 12, 2006
January 1993 - What Is Your Marital Status?
From Scott L. Davis of Dallas (Gardere & Wynn), this excerpt from the deposition of an officer of his client - being taken by Doug Perrin of Dallas (Brown, McCarroll, etc.). Scott explains that his witness "was extraordinarily well-prepared" and that her answers about "her marital status were all that an attorney could hope for, succinct yet responsive, informative yet reserved."
Q. State your name, please.
Q. Full name?
A. Charlotte Johansen Franco.
Q. And where do you live right now?
A. In Clayton, MO.
Q. Your husband's name?
A. I'm divorced.
Q. Ok, I'm sorry.
A. I'm not.
June 09, 2006
May 1992 - A Prepared Witness
From Stephan C. Barth of Houston (University of Houston), this excerpt from the deposition of his client, the debtor in a collection case, which was being taken by the attorney for the plaintiff bank:
Q. You in fact received the $250,000 loan from the bank.
Q. And how did you spend that money?
June 08, 2006
May 1991 - Is That Objectionable or What?
This contributed by Roger C. Davie of Fort Worth (Cox & Smith). Here is the excerpt, with Roger's explanation:
"I recently had the misfortune of trying a property damage case in J.P. court against attorney Steve Pierret of Arlington. Steve was attempting to get into evidence a document when I objected because of hearsay. Steve pronounced boldly (and probably rightly) that this was not hearsay because it was not offered for the truth of the matter asserted. Immediately after saying this the J.P. scolded Steve and stated:
"listen here mister...in my court you may only introduce matters which are the truth and you better not be trying to introduce matters which are not for the truth of the matter asserted."
Despite the fact that the judge would not let Steve introduce any evidence, he was ultimately given a verdict. We settled on appeal."
June 07, 2006
October 1989 - I'm Glad We Cleared that Up
Theodore A. Hargrove, III of San Angelo sends this story about the Very First Divorce Client of Judge Royal Hart (51st Judicial District, Tom Green County):
His client, the wife "lived on a ranch and apparently got none of the benefits of grocery shopping. When going through the list of required questions to have the divorce granted, Judge Hart realized he had never inquired of his client as to why she wished to get a divorce."
Q. Tell the Court why you want this divorce.
A. Well, I just can't eat any more deer meat.
The divorce, of course, was granted.
June 06, 2006
April 1995 - Did He Really Ask That?
From Bruce E. Anderson of San Antonio (Brin & Brin), this excerpt is from the deposition of his client in a personal injury case. The defense attorney, Donald L. Crook (Plunkett, Gibson & Allen), is asking the plaintiff to describe "how the elevator doors closed on him and caught his foot."
Q. Now, did you try to jump out and your leg caught and then you fell, or did you just fall?
A. No. I think I went straight like that.
Q. And then your leg caught?
Q. And then you went down?
Q. And so you fell about three to four feet to the ground?
A. To the floor, yeah.
Q. And once you landed, did your leg stay up in the elevator or did it come with you?
A. It came with me.
June 05, 2006
April 2004 - Can You Describe the Pain?
This deposition excerpt is from Marvin L. Cook of San Antonio (he is general counsel of Southwest Business Corp.). The plaintiff in a slip-and-fall case is being questioned about the injuries allegedly suffered at the time of the fall.
Q. And you say you also complained about pain down your right arm?
Q. Can you describe that pain?
A. It hurt like hell. …
June 02, 2006
June 2006 - Classic Typos
Hazel L. Porter, who clerked for U.S. Magistrate Judge Jeff Kaplan in Dallas, but who now works for U.S. District Judge Robert Blackburn in Denver, Colo., found this great typo in a motion to dismiss filed in an equal protection claim brought against the Colorado Department of Corrections:
Article XII, section 13, of the state constitution … makes it clear that appointments and promotions to office and employment in the personnel system shall be made according to merit and fitness … without regard to race, greed, or color or political affiliation.
June 01, 2006
October 1991 - Summer Clerking II
From Kelly P. Forester, a student at South Texas College of Law. This excerpt from the testimony of "An immigrant who was giving his deposition through a translator" - With Kelly's astute observation that "obviously there was a breakdown in communication:"
Q. What doctor did you see next?
Q. What did Dr. Babu do for you?
A. He already wanted to operate. He wanted to take my heart out.
Q. I don't have to ask why you didn't go back to him.