Steve’s Thoughts on…

The Court House is Where?

By Steven E. Clark

David Pomeroy’s funny piece in August about his first jury trial reminded me with horror of mine. In December 1975 I was fresh-faced, three months from being sworn in and two months into my job as an associate at King & Roberts, an insurance defense firm.

In those days, insurance companies actually litigated automobile property damage subrogation claims instead of arbitrating. Since they didn’t pay an hourly rate for subrogation, it was a win-win. The carriers got some chump change back and the baby lawyers in the insurance defense world got some on their feet trial experience. My first trial was over a $1200 property damage claim filed in Marshall county. Don’t laugh—Charlie Alden and I once tried an $800 case to a jury.

The insurance company was too cheap to send me down the night before and spring for a $30 motel room. So, I called the insured, who was obligated under the policy to appear as a witness and told him I would meet him “at the courthouse” Monday at 7:30 the morning of trial. The defendant was uninsured and was represented by a local lawyer.

I realized on Sunday night that the defendant’s attorney was not going to stipulate to the reasonableness of the repair charge— no courtesy could be expected for an Oklahoma City insurance lawyer. In a panic, I called my boss, Tom King, who suggested that perhaps my insured had at one time or another worked in a garage or salvage yard and using the repair bill could testify that it was reasonable. I couldn’t get hold of the guy that night and so had to just go and take my chances.

Sleepless the night before as any newly minted lawyer would be, I finally got out of bed exhausted at around four, dressed in my new trial suit, purchased from Harold’s, and headed south. I was as nervous as if I were arguing before the Supreme Court of the United States. However, somewhere between Friday and Monday morning I got my “M’s” confused.

Driving in a cold, pouring rain I zipped past Ardmore on my way to Marietta. My windshield wipers were lousy, big trucks sent huge waves splashing over me, but I trekked on. About two miles from the Marietta exit, a bolt of lightning struck. The county seat of Marshall county seat is Madill. Not Marietta, dummy!

I turned around, went back to Ardmore, and sped east as fast as I dared on slick roads. All the while I was thinking that the case would be dismissed, costs taxed, and bar complaints filed. And how would I word my resignation letter?

I made it to Madill five minutes before 9:00 and sure enough my young insured/client assured me he knew a lot about fixing cars. A jury was promptly impaneled and I made a stirring opening statement. Then I put the insured on the stand and had him tell about the accident (it was a rear-ender). I showed him the repair bill and asked if that was a fair and reasonable amount, based on his “experience.” Playing it over the top, the guy said, “Absolutely, in fact it should have been a whole lot more than that. At least $500 more.”

On cross examination, the local lawyer swiftly pointed out that the witness’s insurance company had paid considerably less—probably a valid point on cross. Having learned perhaps little else in my short time as a defense lawyer, I did know you are supposed to move for a mistrial if somebody injects insurance into the proceedings. So, I jumped up and moved for a mistrial. The judge stared at me a moment and asked if I really wanted a mistrial. With utter determination I said, “Absolutely, your Honor.” No small town lawyer was going to take advantage of me.

With great solemnity he declared a mistrial. I eagerly waited over the next months for a resetting and further adventures in Madill. But, as time passed I remembered the sly smile on the judge’s face as he dismissed the jury, a smile directed at the defense lawyer. Undoubtedly, the judge decided that a local man did not need to reimburse a company in New York for a property damage claim that was less than a drop in its ocean of money and the company had had its chance to get a judgement.

After several letters and Motions to Enter over the next couple of years, I moved on to slightly bigger things and the case eventually disappeared down the rat hole of forgotten litigation. Perhaps in the grand scheme of things it was a fair result.

The moral of the story? Know where the court house is.

Steve Clark is senior partner at Clark & Mitchell and the author of two legal suspense novels in his Kristen Kerry series

http://c.ymcdn.com/sites/www.okcbar.org/resource/resmgr/briefcase/09_BRIEFCASE-Web_Version.pdf

Okcbar.org – September 2017 Briefcase page 15