October 1991 - Summer Clerking
Finally! The first et cetera contributions from summer clerks from McCleod, Alexander, Powel & Apffel
of Galveston (and Houston).
From Jennifer E. Patton
, excerpts from a deposition in a real estate dispute - with Jennifer's explanation that the plaintiff's attorney is deposing the owner of some adjoining property (a doctor); that the defense attorney "had been objecting 'almost continuously;'" and that, after this went on "for quite some time" the good doctor" decided to strike back:"
Def. Attorney: I object to the responsiveness of that answer.
Q. Doctor...The Witness: Am I qualified to state my name?
Def. Attorney: You certainly are qualified to state your name, and I didn't object to that part of your testimony.
The Witness: I'm surprised.
May 2005 - The Juror Note
This contribution is from District Judge Gary L. Clingman
of Lovington, N.M. It is a note "written on the back of a response to a post-jury service comment/suggestion survey we regularly send out!"
"I have a comment, or complaint about one of the public defenders' lawyers. I cannot remember his name, but I remember his appearance and mannerisms very well. He is not very tall and a little overweight. He desperately needed to shave and get a haircut. He mumbled very badly and I couldn't hardly understand him. He weaved back and forth from the microphone, it was very annoying. It was so irritating. I wanted to convict him of something. Someone really needs to let him know that his appearance and actions in the courtroom has a lot of bearing on people's perception of him as an effective lawyer. Thanks."
April 1999 - But How Dead Is He?
From Louis Abraham III
of Tulsa (Jarboe & Stoermer), this excerpt from a deposition he took in a case pending in Dallas County. The opposing attorney was Michael A. Miller
of Dallas, and the witness was Judge Dan Gibbs
Q. Says here: We view with equal concern your indication that employees of our management company are well aware of this defiance without having advised their employer.
Likewise, Judge, was that a concern of yours?
A. Who is "we"?
Q. Well, in this context, did "we" include you?
A. I don't know.
Mr. Miller: He didn't write the letter.
Mr. Abraham: I understand, but Mr. Collins is responding on behalf of the board. We've seen that -
Mr. Miller: You can ask Mr. Collins that.
Mr. Abraham: He's dead, Mike.
Mr. Miller: You deposed him.
Mr Abraham: Uh-huh.
July 1998 - I Object!
In a trial before Judge Russell Austin
of Houston (Probate Court No. One) - as Judge Austin explains - "An old and wise attorney of many years recognized his young and energetic opponent was mining pure gold from his client on cross-examination. Wanting to stop his client's gifts of ingot, he jumped up and loudly exclaimed:
O&W Attorney: I object!
Judge Austin: And the basis of your objection?
O&W Attorney: (with arm and index finger extended toward the bench)
... Give me a minute.
May 1989 - I'm Glad We Cleared That UpJudge William L. Baskette, Jr.
of Kerr County sends this "unplanned discussion" which took place in a hearing before him:
The Court: And what is the basis of your motion? Do you have any case law or anything you'd like to cite to the Court at this time?
Attorney: In our last hearing in this case, I was left here with the thought that the Court had said based on some 25 cases of Mr. Stehling's that the Court was issuing an edict or ruling, or a ruling that he contemplated or whatever, saying that if the state —
The Court: The court doesn't issue edicts; only the Pope does.
May 1993 - Did I Really Ask That?
From Judge David Cleveland
of Palo Pinto (29th District Court), this testimony from the trial of will contest involving two wills left by Walter Howeth:
Q. When did you last see Walter?
A. At the funeral.
Q. Did he make any comment to you at that time?
A. No, sir.
Judge Cleveland adds: "I have wondered who might have been most relieved that the answer was no: the jury, opposing parties, mortician, or the doctor who signed the death certificate."
June 2003 - I Can Now
From Joseph Jacobson
, Texas Bar Journal, Vol. 49, No. 4 — April 1986.
Q. Isn’t it a fact that you have been running around with another woman?
A. Yes, it is, but you can’t prove it!
May 1987 - Did I Really Hear That?
In a murder trial, the policeman testified, "When I arrived, the victim was still alive and he said ..."
At this point, the witness was abruptly interrupted by the judge, with stern warning that the witness should not say anything else until it was determined whether the evidence was admissible. The jury was excused and, for the next several hours, the attorneys argued subtle legal points as to whether or not the victim's statements were within the "dying declaration" exception to the hearsay rule. The prosecution, of course, contended that they clearly were; however, the defense argued that there was no showing that the deceased victim actually knew he was dying when he spoke to the policeman. Finally, the trial was recessesd and, after hours of his own research, the judge announced the next morning that the testimony was admissible as a dying declaration. So, the policeman returned to the stand for this exchange:
Q. Now officer, yesterday you were about to tell us what the deceased said when you arrived on the scene. Please tell the judge and the jury what he said.
A. Well, he just said "Ugh!" and died.
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!"
September 1997 - Did He Really Say That?
From Walter Cowger
of Dallas (Akin, Gump), this excerpt from the deposition of the plaintiff in a wrongful discharge case.
Q. Did you come here today [from Oregon] just for this deposition?
A. Yes, I did.
Q. You're not planning to move back to Texas anytime soon?
A. We're planning on moving back this summer. Or I am. I think my wife wants to stay in Oregon.
Q. Why are you planning to move back?
A. Because I think Oregon sucks!
Q. (Wisely) Well, of course.
May 1985 - Were You in the Military Service
Q. Were you in the Army?
A. No sir, I didn't go.
A. Well, when I was ready to leave they said, 'Well, everything is over,' and I say, 'Okay,' So I didn't go.
February 2002 - Classic Typo's
From Trish Nasworthy of Grand Prairie (Trish is an Assistant City Attorney), this mistake she spotted in an ad in the Dallas Morning News.
LITITAGATION ATTORNEY needed immediately. Large plaintiff's personal injury firm seeks associate. Duties include depositions, medication
, and trials ...
June 2004 - Classic TyposCharles W. Hury
of McAllen received this last page of an apartment lease guaranty form from a friend whose son is attending Texas A&M.
7. Binding Nature. This Guaranty shall be binding upon and unsure
to the benefit of the parties hereto and there respective heirs, legal representatives, successors and assigns.
Charles adds: “Apparently … the parties to the contract, in an unusual flash of honesty, are actually admitting they do not have a clue as to how a guaranty actually works.”
February 1997 - I'm Not Sober, But ...
From David L. Traylor
of Dallas, this exchange that took place recently before U.S. District Judge Joe Kendall (Dallas Division, Northern District of Texas):
Judge: As you stand here today, are you sober?
Defendant: No, I'm not sober.
Judge: Are you drunk?
Defendant: No, I'm not drunk.
Judge: Are you under the influence of drugs or alcohol?
Judge: Are you drunk?
Judge: Are you sober?
Defendant: No, I'm not sober.
Judge: Perhaps sober is a word that is not in your vocabulary. I know several people like that.
April 1999 - Using the Faculties
From Gregory P. Propes of Denton (Gregory is an appellate attorney in the Denton County District Attorney's Office), this excerpt from a DWI trial before Judge Jim E. Crouch (County Criminal Court No. 1). Assistant District Attorney Debra Bender was the prosecutor and Joshua Webber of Dallas was the defense attorney.
The excerpt begins at the end of Mr. Webber's cross-examination of the state's witness, who was testifying about his contacts with the defendant on the day of the offense.
By Mr. Webber:
Okay. And you don't know whether or not he had the normal use of his faculties that day, do you? You don't know one way or the other, correct?
Q. Okay. So you're not telling the jury that he did not have the normal use of his faculties, are you?
Q. Is that correct?
Mr. Webber: Okay. Pass the witness
Redirect Examination by Ms. Bender:
Q. Do you know what faculties are? It's kind of a legal term we throw around. The jury heard a little bit about it yesterday. But do you know what we're talking about?
Q. No. I just wanted to clear it up. Do you know what he means when he's asking you, did he appear to have his "faculties"? What did you think he meant?
A. I thought he meant using the faculties of the restroom.
Q. You didn't see the defendant go to the bathroom?
A. No, of course not.
Q. Did the defendant appear to be out of it?
A. Yeah. Yeah, you know, like when Bob was talking to him, like he didn't know what was going on.
June 1996 - Typo's (Classic & Otherwise)
From Roger A. Berger of Houston (Glover, Anderson, etc.), this typo from answers to interrogatories by the plaintiff in a medical malpractice case, where the plaintiff was "claiming unnecessary surgery and claiming that his symptoms (before the operation) were not caused by gallstones or an inflammation":
Interrogatory No. 9: If you contend that Defendant PASTOR ALVARADO, M.D. was negligent, in any respect, and/or contributed to or caused the incident made the basis of this lawsuit, in any way, then describe in detail all your contentions, assertions, and beliefs.
Answer: He was present at the surgery, as the assistant surgeon for Dr. Gustavo Stern. I believe that he should of told Dr. Stern that more testing should of been done to get an adequate digeneous. I also believe that he should of questioned that how a young 24-year-old male could have gallstones, and further question that if an x-ray of the gallbladder had been done since the ultra-sound did not show a clear view of the bio-duck.
November 1994 - Is That Clear?
From William R. Kendall of Reno, NV (Laxalt & Nomura), this excerpt from his deposition of a safety engineer in a slip and fall case:
Q. Were you aware that Mr. Lowe testified that he slipped off of one of the stairs and fell down the stairs?
A. No, I don't know that.
Mr. Cole: He doesn't know what any of his testimony is.
The Witness: I have no knowledge of that.
Mr. Kendall: I don't know that he doesn't know that.
Mr. Cole: He knows that, you don't know it.
Mr. Kendall: I don't know that he doesn't know that.
Mr. Cole: Okay.
Mr. Kendall: Is that clear?
Mr. Cole: Clear enough. I'm not going to touch it again.
May 1994 - From The Twilight Zone
From W. Bernard Whitney
of Fort Worth, this excerpt from the deposition of the defendant-husband in a case involving the mental and physical ability of his wife - who was "the testatrix in 1984 and who subsequently died in May 1992":
Q. Okay. And then do you recall the time in September of 1984 when she was using the commode and she fell, and she fell off the commode and hit her head?
A. No, sir, I don't because just before she passed away she was still using the commode
and they didn't nobody hold her on it.
Q. So you're saying
in September 1984 she didn't fall off the commode
A. She did not, she sat there until the day they took her to the hospital and died
[in May 1992].
July 1993 - Did She Really Say That?
From Thomas S. Terrell
of Kerrville, this excerpt from the deposition of the wife in a custody case:
Q. Your husband says you smoke marijuana. Is that true?
A. I quit.
Q. Why did you quit?
A. My attorney told me I would have to, if I wanted to get custody.
February 1994 - The Payment Plan
From Thomas G. Sharpe, Jr.
of San Antonio (Whetley & Sharpe), this excerpt from his deposition of a defendant regarding the collection of a judgment for Tom's client:
Q. First of all, what I'm asking, sir, is what are you going to do to pay this judgment?
A. Well, you said you had a payment plan and I said I would pay you half when I die and the other half
when I come back or, if you have another plan - do you have a plan where I can pay nothing down or nothing a month?
Q. Neither one of those would be satisfactory to settle the judgment.
January 1990 - Let's Be Particularly Careful
From Robert F. Alexander
of Houston, this testimony from a cocaine possession trial before a jury and Judge Miron Love (177th District Court, Harris County). The cocaine was allegedly found by the jail officer/witness during a "routine inventory search"; on cross, Robert is trying to establish that this "client was quite sober during his search."
Q. So my question once again is, with regard to whether or not he had been drinking, do you have an opinion as to whether he was heavily intoxicated, mildly intoxicated or stone sober?
A. I do not have an opinion on that, sir.
Q. Do you think if he had been falling down drunk, you would have noticed?
A. I'm sure I would have.
Q. And do you think if he had a strong odor of alcohol about his breath, you would have noticed?
A. No. I can't smell.
Q. (With Disbelief) You can't smell?
A. No, sir.
Q. No kidding?
A. No kidding.
[Pause — then question from defense counsel, now with genuine concern and empathy.]
Q. Is that for like all the time?
A. Well, it has to be a very, very, very strong odor for me to be able to smell.
Q. I'm sorry to hear that.
A. Working in the jail, sometimes it's an advtange.
November 1989 - Let's Be Particularly Careful Out There
From Judge James A. Blackstock
of Angleton (County Court at Law No. 3 and Probate Court), this bit of direct examination by the state's attorney who is interrupted by an objection by the guardian ad litem for the children.
Q. Describe your daughter, Dianna, for me.
A. Dianna's a smart girl. She's a pretty girl.
Q. What's her personality like, Mr. S____?
A. Well, for the past few years, all I've seen her is for visitation; so, it's hard to get a handle on that.
Q. You have no idea what her personality is like?
A. Being that she was taken from my home in 1985, I haven't had enough contact with her to really know much about the things she likes to do.
Ad Litem: Objection, Your Honor, the witness is testifying.
Father's attorney: Which is exactly what he's supposed to be doing, Your Honor.
Court. Overrule the objection.
___Judge Blackstock notes that the imaginative objection, although overruled, was apparently effective because the jury voted unanimously to terminate parental rights.