January 2000 - Did They Really Say That?
From W. Marc McDonald
of Fort Worth (Bourland, Smith, etc.), this "classically confused" statement made by one of his partners, William R. Korlo, Jr. during a recent deposition.
Mr. Korlo: All right. Let me turn your attention to Plaintiff's Exhibit No. 3. I'm sorry. For purposes of the record, I've been messing up. I keep saying Plaintiff's Exhibits and I'm actually Defendant's.So let the record reflect that I don't know who I represent.
September 2005 - Exploratory Surgery
This marvelous (!!) contribution is from John E. Haught
of Beaumont (Mehaffy Weber, P.C.). It is from a recent deposition he took “of an elderly plaintiff who got right to the point in explaining her physician’s motivation in performing ‘exploratory surgery’ on her”:
Q. Have you ever been hospitalized?
Q. For what type condition?
A. I had surgery for adhesions in ’83, and that was my last one.
Q. Okay. What type of adhesions?
A. They were from old surgeries.
Q. Okay. What type of surgeries?
A. I had an appendectomy, and they removed a tube. Then I had another surgery; they took out an ovary. And then I had adhesions; and the rest of them are just adhesions, exploratory.
Q. What were they searching for in these exploratory surgeries?
A. Money. That’s the best answer I can give.
Mr. Haught (wisely): We can go off the record.
July 1993 - Did They Really Say That?
From Scott Ozmun
of Austin (Whitehurst, Harkness, etc), this excerpt from the deposition of the daughter of Scott's client in a breast implant case.
Q. And what do you mean by "deformed"?
A. Well, her breasts were -
Q. This is one of those -
A. This is when I wish you were a lady. I'm embarrassed. This is so embarrassing.
Q. Well, if it makes you feel better, just imagine I'm a lady.
A. I can't do that.
February 1997 - The Doctors Horn In
From Gerald B. Shifrin
of Portland, Ore. - who "spent over 40 years practicing law on the Rio Grande in El Paso" - these excerpts from a newspaper story in The Oregonian
showing "how the medical profession is trying to horn in on our humor." This is "actual dictation from actual doctors, as collected by medical transcriptionists.
"The patient injured her right fifth hand
while playing basketball." ... "SKIN: Somewhat pale but present." ... "her children are 12, 10, and nine; husband is approximately the same age
." ... "Both the patient and the nurse reported passing flatus." ... "Rectal examination revealed no masses but did show yellow shoes
October 1993 - Be Careful With Experts
From Judge Frank Andrews
of Dallas (116th District Court), this excerpt from the testimony of the obstetrician/gynecologist in a malpractice-death case.
Q. All right. Let's go back to 4:15 [on the patient's chart]. It says "Dr. Prince" here. Right?
A. Yes, sir.
Q. Then 4:25, "Back to procedure due to bleeding and passing of clots." Did I read that right?
A. Yes, sir.
Q. 4:30, Dr. Prince began resurrection
A. No, sir.
Q. Resuction procedure.
A. I'm not that good. I can't resurrect anybody.
February 2003 - The Exploding Toilet
From Melody Bock
Womble of Maryville, Tenn., this deposition excerpt “from a Federal case involving an alleged exploding toilet at a tourist motel near the Tennessee Smoky Mountains.” Melody represented the toilet manufacturer.
(Examination by the motel owner’s attorney)
Q. And how long did you stay there on the commode doing your business?
A. Well, it didn’t take very long.
Q. Five minutes? 10 minutes?
A. No. It didn’t take that long. Everything went along pretty smooth.
Q. You used paper?
A. Yeah. We got rid of corn cobs a long time ago.
(Discussion off the record.)…
Q. You had not put any toilet paper down the commode?
A. Not — no, no.
Q. Okay. Had you used any toilet paper?
A. Yeah; I used toilet paper.
Q. But you didn’t put it down in the commode?
Q. You put it in another receptacle?
A. I guess so. A basket, we call them up home. I don’t know what you call it down here
, a trash can or something.
February 2002 - Are You a Spirit?
From Karen Hogan
of San Antonio (Karen is the Court Investigator for Judge Polly Jackson Spencer, Probate Court No. One in Bexar County), this note sent to Judge Spencer by William Goodman, the court-appointed attorney ad litem
“in the guardianship proceeding of the proposed ward the day after the hearing.”
Prior to the hearing, I was talking with my client, the proposed ward, about her belief in spirits, and about how her deceased husband is a spirit who lives with his spirit girlfriends in the walls behind the bathroom mirror.
At one point she asked, “Are you a spirit?”
I said I wasn’t sure — and anyway, how would I know?
“Well, to be a spirit
,” she said, “you would have to be appointed by God
“I guess not then
,” I replied. “I’m just an attorney appointed by the judge
September 2005 - Delusions of Normalcy
Another "transquip" from Lynn Brooks
Sir, are you familiar with the phenomenon of a person presenting an appearance of complete normality when, in fact, the reality they're presenting to you is a delusion?Mr. Smith:
Well, are there people who have --Q.
Are there people who appear --A.
-- delusions of normalcy? They may be in this room.
July 2005 - Ozzie and Harriett
This contribution is from Stephen A. Doggett
of Richmond. It is from the examination of the husband in a divorce case.Q.
So, what are you saying? Are you saying she is not a good mother? ...A.
I'm just saying that sometimes I may have felt that she did things I wouldn't have done.Q.
Well, you are not supposing ... that everybody is an Ozzie and Harriett
kind of family situation, are you?A. I don't know who Ozzie and Harriett are.Ms. Scardino:
Can I ask Roger if he would take all of that out of the record?The Court:
No, Ms. Scardino. You have shot your own foot off about your age.Ms. Scardino.
Okay. I guess I will continue now.
September 2005 - "Transquips" from Lynn BrooksLynn Brooks
of DeSoto, who is a certified shorthand reporter, sent me a number of transcript excerpts - which she calls "transquips." Here is one:A.
There's a study we did for NASA where we kept college students head-down for several weeks.Mr. Jones:
I hope you paid them good money for that.The Witness:
In New Mexico, you could get them to do anything.
December 1985 - Clear Up Any Confusion.
Q. Was that the same nose you broke as a child?
Attorney: Defendant's DD for identification is an excerpt from a publication called Biochemische Zeitschrift
, and the article is called "Die Rhodanbildung in Tierkorper," by Konrad Lang, l-a-n-g.
Q. Dr. Yamamota, the reporter seems to be having difficulty hearing you today. He wants me to ask you a question to clarify the record. As far as I am concerned, the record is clear. But just in case: When you testified that the body upon which you performed the autopsy had cuts on the hands, did you say they were fresh
wounds or flesh
A. They were fresh wounds.
Q. Thank you, Dr. Yamamota. Did -
A. Some of the cuts went right through the -
Q. That's all right, Doctor; I'm sure the reporter has it down correctly in the record as "fresh wounds." Thank you.
April 2002 - Did They Really Say That?
From David A. Lowrance
of Fort Worth (Kirkley, Schmidt & Cotten), this excerpt from an asbestos case deposition.
Q. What you have in front of you is what has been marked as Exhibit A to your answers to interrogatories, and this is a list of, by my count, close to 300 different jobsites. I think we have got 296 different jobsites. Have you seen this list before?
A. Yes, I've seen something that looks kind of like it. I didn't read it through, or whatever.
Q. How was that list put together, do you know?
Q. Ask a stupid question -
A. I'm sorry.
September 2005 - Classic TyposNathan Majors
of Dallas (Ekvall & Byrne, L.L.P.) found this allegation in the Plaintiff ’s Second Amended Petition in a Dallas County court case:
Defendant Myra Cardenas was a headless
driver which Defendant Jose Cardenas is liable to Plaintiffs under the theory of Negligent Entrustment.
From Bruce W. Cobb
of Beaumont, this typo in a news release concerning a case where he was counsel for the defendant:
Over the past four years, law enforcement across America increased federal gun crime prosecutions 76 percent. Here in the Eastern District of Texas, gun grime
prosecutions are up 93 percent.
Bruce added: “Therefore, when you come to the Eastern District of Texas, you better not have a dirty gun.”
From U.S. District Judge Sam Sparks
of Austin, this excerpt from a brief discovered by one of his law clerks:
In Israel Martinez v. Computer Sciences Corp
. … in the U.S. District Court for the Western District of Texas, in plaintiff ’s reply brief to the defendant’s Second Motion to Dismiss, Plaintiff’s counsel, with tongue in cheek, writes:
“Plaintiff has expensively
briefed this standard and has shown that the events in this case exceed numerous recent cases. …”
November 2002 - Did They Really Say That?
From Judge Irma Ramirez
Advanced Writing Course Problem (Civil and Criminal Assistant U.S. Attorneys)
To: Course Participants
From: [Harvard Professor]
Re: Peparation for first session tomorrow
Please review the following sample memorandum in support of the motion to dismiss. The memorandum is a representative composite in terms its effectiveness in making the case for dismissal to a fairly busy but conscious
September 2005 - Compelling ExplanationsJerome S. Levy
of Dallas found this item in the weekend guide (called “The Calendar”) from the June 17, 2005, edition of the Reno Gazette Journal
James Carroll Bayley, 44, pleaded guilty in May to killing his brother, Robert, in an incident in Raleigh, N.C., in which James alleged that Robert had come by, drunk, to retrieve his power drill that James had borrowed.
James told the judge that he certainly didn’t mean to kill Robert, but had grabbed his gun for protection, then “shot him in the right leg to knock him down.” Then, said James, after a short time, “I shot him in the head to make him dizzy so he would fall.”
January 2002 - Did They Really Say That?
From Al Ellis
of Dallas (Al is of counsel with Howie & Sweeney), this excerpt from “a routine personal injury deposition” in which he received “the final answer as to why the divorce occurred.”
Q. What was the reason for your mom’s first divorce, if you know?
A. My dad
October 1988 - The Official Air Controllers Handbook
In the case before federal Judge David Belew in Fort Worth, both Delta and the individual plaintiffs claim that the government's air traffic controllers should have warned Flight 191 about lighting and rain which was seen off the end of the runway within 10 minutes of the crash - by four controllers and two FAA assistants in the DFW tower. John Herrick of Fort Worth, who represents one of the individual plaintiffs, begins he cross-examination of a government expert Mr. Beaudoin), who has testified on direct that these six people did not observe any weather conditions that were a threat to Delta 191.
Q. Do you agree with me, Mr. Beaudoin, that heavy rain is more hazardous to flight navigation that light rain?
A. I wouldn't agree with that .... Heavy rain is not a detriment to flight.
Q. Would you agree that a thunderstorm is more hazardous to flight navigation than light rain? Would you agree?
A. I would agree that generally a thunderstorm could be more hazardous than any rain area....
Q. Now with reference to the six FAA employees in the DFW tower. I'm going to read to you a poem called" The Blind Men and the Elephant." Very short. It's by John Godfrey Sachs.
(Herrick then reads the entire poem.)
IT was six men of Hindustan,
To learning much inclined,
Who went to see the elephant,
Though all of them were blind.
That each observation might
Satisfy his mind.
The first approached the elephant
And happening to fall
Against his broad and sturdy side
At once began to bawl
'Bless me but the elephant
Is very like a wall."
[The other blind men, of course, felt different parts of the elephant - and described it as spear (the tusk), a snake (the trunk), a tree (the knee), a fan (the ear), and (the tail).]
And so these men of Hindustan
Disputed loud and long.
Each in his own opinion,
Exceeding stiff and strong.
Though each was partly in the right
And all were in the wrong.
(Mr. Herrick, continuing) Now I'm going to ask you, Mr. Beaudoin ... would you not agree that those six men in that tower who did not see the hazardous [weather] condition were might like the six blind men of Hindustan? Would you agree?
A. Obviously I wouldn't agree.... [M]aybe the blind men were in the Delta 191 cockpit because they saw lightning, they saw weather, and they continued their approach.
Q. ... I'd like to ask you to substitute an elephant for the thunderstorm for the purposes of this question. Is it not true that if a reasonably prudent controller saw an elephant right north of the runway, the controller could not say [to the pilot] "I see an elephant," [but would have to say "I see what appears to be a fan," or a snake, and so forth]? ...
A. Sir, we don’t' cover elephants in our handbook. We talk about elements of weather. We would pass on the elements that we observe to a [such as lightening, rain, or a thunderstorm] pilot and then the pilot can determine whether or not it's an elephant...
Q. (Mr. Herrick, continuing a bit later). Based on what you know is it your opinion that [the Delta 191 captain] was of the opinion that he was in light rain when he reported the rain to the controller?
A. That's very difficult to answer because - he says he's in the rain, feels good. To me that means that he is encountering rain of some intensity and he is not encountering any turbulence...
Q. I'm going to ask you a hypothetical question, Mr. Beaudoin...I am going to ask you to assume that you're a pretty good tap dancer...I'm going to ask you to assume that you enjoy tap dancing. Now assuming those two facts, would you rather tap dance with Gene Kelly in a light rain or in a thunderstorm?
A. Am I inside a building?
Q. No, you're outside.
A. That's my only choice, Gene Kelly?
Q. Yes, sir.
A. [There are] other people I'd rather tap dance with.
Q. Well, I'm asking you to assume that your most favorite favorite person to tap dance with would be Gene Kelly...[W]would you rather tap dance with Gene Kelly in the light rain or in the thunderstorm?
A. I probably would like light rain. We could go with "Singing in the Rain" and dancing in the rain, things like that.
Q. Because it would feel good, wouldn't it?
A. Probably wouldn't feel too good if it's raining on your...I wouldn't want to tap dance in the rain, period, but if I had to pick light rather than heavy, I guess I would pick light.
(Immediately following Herrick's cross-examination.)
Judge Belew: John, you finally got your name in the paper now. Kara [Kara Rogge, Star Telegram reporter] if you can work him in tormorrow, we'll appreciate it.
Mr. Herrick: I hate to think of the adjective she might use, like idiotic. I hate to think of the adjective she may use in front of my name.
Judge Belew: Oh, I may help her out a little bit. I think I know where you went last night.
(Immediately following the noon recess)
Judge Belew: Everybody recovered from that brilliant cross-examination of Mr. Herrick's?
Ms. Fadely: (Kathlynn Fadely, one of the government attorneys) I will probably never forget that cross-examination of Mr. Herrick's. It's the only time I have ever heard a discussion of tap dancing and Gene Kelley covered on cross-examination. I imagine it is the only time I will ever hear that in my career.
Judge Belew: I've been in the courtroom off and on with him for 35 years and I've never seen him do anything so brilliant. Even when I have been on the opposite side we've always been good friends, but he never did anything like that to me, so hope you don't feel too bad, Kathlynn.
Judge Belew: (To the reporter) That's (spelling) H, E, R, R, I, C, K, Kara.
Ms. Fadely: Matter of fact, we can probably get Mr. Herrick in the Atlanta papers this afternoon. Bert, did you get that, (spelling) H, E, R, R, I, C, K. If you would like comments about Mr. Herrick, see us later.
(The next morning, July 13, the day of the newspaper article about Herrick's cross-examination of the government expert).
Judge Belew (probably with a touch of sarcasm): Go ahead, Kathlynn, I'm going to sit here and read the paper.
Mr. Herrick: (probably with a touch of sarcasm): It's on the first page of the second section.
Judge Belew: Hell, I'm going to sit here and read it. Can you imagine waking up to something like this? Now John, Kathlynn and John and I have been back there talking and they've been here since March and you have, too, and the most they've gotten is just that Kathlynn examined somebody or John - we got a whole damn newspaper full of your nonsense here. Kara, we thank you. You made him happy.
October 1989 - I'm Glad We Cleared That Up!
From Judge Michael D. Schattman
of Fort Worth (348th District Court), this exchange "between attorney Ken Kreis of Bosie, ID and a pretty hostile witness in a case I tried Feb. 15 of the year."
Q. Well, my question wasn't whether he made a lot of trips to the office. My question was, when he did bring anything over for you to sign, any of these administrative or corporate documents, was he personally present most of the times when he hand delivered these things to you?
A. Was Mr. Fugit present when he hand delivered them to me?
Q. Yes, ma'am.
A. Well, I think he would have to be.
Not able to restrain himself, Mike adds this note: "Did tempus fugit or had Fugit already fugited?"
March 1998 - But I'll Try To Do BetterEmmett Colvin
of Dallas (Of Counsel to Bruner, McColl) admists that "the late Jim Bowie — of Dallas, not the Alamo — and I told this story so many times with embellishments, that the truth may been lost in the process." Nevertheless, "the complaining witness in an attempted murder case came to the D.A.'s office for questioning," and this took place:
Q. O.K. Henry, tell us what happened.
A. Well, I was in this bar and this other dude and I got into a tussle and he said that he was going home to get his gun and shoot me!
Q. What happened then?
A. Well, that's exactly what happened. He came back in with his gun and I was standing in front of the bar. He shot me in the stomach and I fell back, flat on my back. Then he looked down at me and said, "You ain't dead yet — I'm gonna shoot you again!"
Q. What did you do, Henry?
A. Well, I didn't do nothing. I just looked at him and said, "Wait a minute man — gimme time — I'm dying as fast as I can."
March 1994 - Matters of Opinion
From Jim Sitgreaves
of South Padre Island, this recent opinion by Judge Robert Garza
of Brownsville (138th District Court):
The Court is of the opinion that the claims being asserted by Mr. Donoho and Mr. Hiltzman are barred under the Statute of Frauds. Furthermore, in my opinion both parties were not very credible and their respective stories on the transactions in question were incredible
. I will deny both parties' claims. Each side will bear their own costs.
March 1994 - Did He/She Really Ask That?
From Judge Jeff Walker
of Fort Worth (96th District Court), this question "asked by a young trial lawyer on direct examination of his client":
Q. Now, Mrs. Roberts, did you recognize the "repo" man who was going to take your van to be the defendant sitting over here in the beard?