Rashomon Part II: Eye Witness

Mon Sep 19, 2011 10:12pm EST 37

Rashomon

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Finally, the conclusion of my friend,Lawyer A’s “Rashomon” Slip & Fall Case. Thanks for your patience!

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EYEWITNESSES: RASHOMON

As some of you might know–“Rashomon” is a classic Kurosawa film that recounts the events of a rape through the eyes of various witnesses. Each witness, however, recounts a different story–a different observation. There’s an old saw among police detectives: “When you have a homicide you want ONE EYEWITNESS AND ONE ONLY.”

This seems counter-intuitive to us all–as we’ve been raised on notions of “two head are better than one…” and so forth. But in a court of law where burden of proof is the standard…this notion breaks down completely b/c of the Rashomon factor. No matter how much you may believe in the Platonic absolute of “truth,” different people see the same event, or instance or object differently. This Rashomon effect can be especially exasperating in a criminal case–hence the Detectives’ mantra about “One Eyewitness.”

To illustrate…imagine if one eyewitness sees a homicide. He identifies the accused and confirms that he was a medium weight white male wearing Levis and a white tee shirt. But imagine if 5 other witnesses come forward one insisting he was wearing chinos, and another saying he was a black man…and another saying he had a collared blue shirt on…………Can you say “reasonable doubt?”

Nevertheless this variety of witnesses makes investigation exciting and satisfying to the curious mind—it also it can lead to a way of finding one true thread in a case…and no case is won or lost or solved until on or both of the parties fixes to one true thread.

WITNESSES AND THEIR THREADS

First Witness: E.L.

My first witness interview was with E.L… he was the branch manager on May 21, 2009 when JH fell on the XYZ steps. E.L. began by telling me he remembered nothing of the incident. But, because I knew the identity of everybody involved I mentioned to him: “Well you were meeting with Steph and Janice that day….do you remember now?”

He thought about it and said:

“You know now I remember that a lady did fall on the steps b/c I remember Janice saying: ‘HOLY SHIT, THAT LADY JUST FELL!!!”

I said to him: “She said ‘HOLY SHIT’?”

He replied: “Yeah, she did—you gotta know Janice that’s the way she speaks.”

After that E.L. couldn’t’ tell me much more..(but he had told me enough).

Second Witness: Janice.

Even before speaking with E.L., I had identified (from documents) that Janice was THE eyewitness to this event. And I set up an interview time with her. Our first interview time was postponed b/c she was giving birth to her daughter. I worked around this schedule and set up an interview for 5:45pm on September 15. Janice’s husband would be home and would take care of the infant while I talked to her on the phone.

What Janice told me about the incident is eyewitness gold…… This is basically how it went:

“I saw Ms. J.H. walking up the walkway to the bank and she was going toward the steps on the left. And she went to those steps and started walking up them on the left side. She was holding the railing on the left side. While walking up the steps she took her hand bag in her right hand and tried swinging the loop onto her right shoulder….. And she swung the loop up there but she let go of the hand bag–which looked heavy–and it went down and swung her too…and she lost her balance for a moment, and then stumbled down the steps back to the walkway… and she still was there standing but then suddenly she went down.”

“How far up the steps was she when this happened?” I asked.

“Halfway up,” Janice replied.

“Now when you saw this, what did you do?”

“I, said….’my god’ that woman fell down'”

“Now, Janice, I talked to E.L about this and he said to me that you said: ‘HOLY SHIT THAT LADY JUST FELL.’

Upon hearing this Janice burst out laughing and said:

“OH MY GOD—THAT’S EXACTLY WHAT I SAID.”

I continued: “I want to know exactly what you said b/c opposing counsel will expose every inconsistency in our witnesses to suggest that our memory of events may be questionable.”

She assured me: “NO, NO…That’s what I said.”

At the time, I didn’t know this—-I was in Rashomon mode…..I had two witnesses..one (E.L) who remembered nothing but an utterance..and another, Janice, who remembered everything but her exact utterance.

But what happened next was the convergence of all loose ends. And I think I found truth.

Third Witness: Steph

I spoke with Steph at noon, September 16 in my office.

“Steph do you remember a woman falling on the steps at the bank on May 21, 2009?”

“No.”

“Do you remember any woman falling while you worked there?”

“No.”

“Do you remember meeting in E.L’s office with Janice on May 21, 2009?”

“No…I’m sorry–I don’t remember any of this.”

“Do you remember Janice saying: “HOLY SHIT, THAT LADY JUST FELL!”

“YES!…YES!!! SHE SAID THIS, OH MY GOD, I REMEMBER!”

And then she went on to recount various details about the day.

What I discovered from this exercise is that memory is fleeting and subjective..memory is as beautiful or ugly as you make it……But that’s the poetic side of memory. The working, practical and honest side of memory is more physiological…it proceeds from the five senses…sight, sound, smell, touch, and speech…and these physiological “docking stations” are less prone to mull it over–they just observe and recount…they don’t rehash or consider–they react, instinctively. And it is that unconsidered and uncontrived instinct that is the litmus test of truth when it comes to witnesses.

The trigger of “Holy Shit….” triggered Steph’s memory. The fact that it did convinced me that that was exactly what was said.

RASHOMON REDUX: THE ESSENCE OF TRUTH

But what was “said” is only one piece. Nevertheless it is the essential and trumping piece here b/c it is triangulated and confirmed by three witnesses w/o any other piece so confirmed and triangulated.

It’s this one piece that can make or break the case if it goes to the jury. This is because nobody will ever know exactly what happened. We can only interpret based on recounts from witnesses. And if as jurors we endeavor to find the truth we endeavor to find the recount or recounts that are most consistent. All consistency must reside on common links and overlapping observations.

The only overlapping and consistent observation in this case is the utterance “HOLY SHIT THAT LADY JUST FELL!”

Once the jury is convinced that that is what was said—I win the case because the utterance is attributed to Janice as truthful and by association everything that Janice says she observed is considered truthful….

CONCLUSION

Taking witness statements in cases like this is all the great fun of the law. It mixes lawyers and layperson’s skills. The layperson in me recognizes the sincerity and truth in a statement beginning “Holy Shit….” We all hear that every day–that’s how people speak–it’s real–and therefore credible. The lawyer in me loves the part of orchestrating all the interviews and “chessing” this out to show to opposing counsel bringing down his demand from mid -six figures to mid five figures…and ending the whole affair.

It’s these moments when I love the law…I do pity the fact that these moments, however, make up about 3% of my practice…

Cheers.

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Rashomon: The Strange Case of the Slippery Fall

Mon Sep 19, 2011 12:20am EST 32

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I don’t often feature guest bloggers or writers, but I figure some of you might enjoy this piece from a friend (I’ll call him “Lawyer A”) I’ve known since my early adolescence in Noo Yawk. He’s now a Midwest country lawyer with an ironic eye for the quirky situation. I know a number of my readers are attorneys, so I’m hoping you’ll enjoy this story…

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THE SETUP

My practice of law, as you know, is litigation and trials.   All litigation involves investigation.   Investigation of documents, the law, background, etc.   Investigation runs the gamut. It can be dry and full of dead ends; it can be revelatory and bright—filling you with joy when you discover something that helps your case–especially when you’re excited about your case.   (Which is not always the case).

In my experience, the best and most rewarding part of investigation is witness interviews–whether by telephone or in person.

However, in many of my commercial cases, there is not too much to the witness interview. This is because commercial cases are mostly document driven. Either this document was signed or it was not. Either this document means this or it does not (a question of law that has nothing to do with witness testimony).   Occasionally there are “oral” contracts or agreements, which sometimes bring arguments about the parol evidence rule or if that rule does not apply, bring he-said/she-said type dynamics to the case. But that investigation is quickly concluded when one finds out the story that “he” is sticking to and what “she” is sticking to.

Recently, I was blessed, in a sort of way, with a personal injury case from a good client–we’ll call them XYZ Bank.   I do commercial work normally for them, but we have a good rapport, and they thought they’d ask me to do a PI defense case for them– at a “competitive” rate. I booked it at $175/hr–which is actually a premium rate in any market in the Midwest (most PI defense runs in the $115-$160 rate in these parts).

THE CASE and “Rashomon”

So, on May 21, 2009, Ms. JH decided to go to her local XYZ Branch in town. It was a clear bright sunny day and at about midday she parked her car in the bank parking lot and walked up the sidewalk to the set of four stairs that led to the entrance of the bank. In the course of going up those stairs, Ms. JH fell down.   Within a minute, XYZ employees attended to her and helped her up and she then went into the bank.   When asked if “she was alright” she answered, “yes.”   She did her banking and left.

Within the month, she entered into the hospital complaining of all sorts of serious injuries.   She was treated for those injuries and the cost of treatments at that time, and then subsequently went well into six figures.

Then she engaged an attorney. The attorney notifed XYZ that Ms. JH sought reimbursement for her treatments and sought compensation for pain and suffering.

Since XYZ is self insured, they have a contract with a Third Party Administrator “TPA,” which is basically an insurance adjuster company that administers and settles claims.   For 2 years this case percolated through the TPA with give and take and back and forth–but the parties did not see eye to eye.

Then Ms. JH’s attorney filed a lawsuit. That’s when the TPA engaged counsel to defend the lawsuit.   And that’s where I came in.

Once a dispute goes to the lawsuit phase–everything changes. You see the adjustment phase focuses on the “bottom line:”   Damages.   If Ms. JH had said “Gimme $11k,” this case would have ended at the adjustment phase. But once Ms. JH demanded in excess of 6 figures—-things changed.   Even big companies like XYZ don’t simply accept and payoff 6-figure demands…if they did it would be like the proverbial mistake of feeding a stray cat.

No, big companies must always watch the soft underbelly of liability. And they must fix and focus a consistent policy in addressing claims.

So, the policy is basically that if we can settle for nominal nuisance value–then skip the expense of investigating liability…and pay the parking ticket. However, if the demand is too high, then focus on exploiting the Plaintiff’s weaknesses on liability.

LIABILITY AND HOW TO HANDICAP A CASE

Every PI case is like a triangle. There are three vertices.

Vertex 1= Liability

Vertex 2= Damages

Vertex 3= Collectability.

Those three vertices are the essence of every garden variety negligence lawsuit.   Attorneys that don’t understand the dynamic of those vertices will fail miserably.

(As an aside–you can always tell a young attorney from a seasoned attorney simply by which vertex that attorney focuses on. A young attorney focuses on vertex 1….liability.     For instance….A homeless man steals a car, negligently runs a red light and kills a pedestrian.    The young attorney gets the case from the decedent’s family and promptly pours money into suing the homeless man.   It’s a slam dunk case….a default judgment!!!!    For $800,000…..      You know what you do with that judgment?   You frame it. B/c it’s worthless. This is because the defendant was not COLLECTIBLE (see Vertex 3)).

The seasoned attorney on the other hand–concentrates on the defendant.   “Oh…it was Target that was involved in this…right?”      Target, indeed.   Once the seasoned attorney sees a collectible defendant (which Target Corp. is ) he/she looks into liability.    This is because the seasoned attorney knows that the bottom line is getting paid.

THE INVESTIGATION.

Once I’m involved it really is very simple.   The vertices to concentrate on are damages and liability. But already damages have been alleged–we know they are not palatable.

So we have damages….and we don’t like them and to impugn them involves incessant and expensive document review.  Consequently the ertix to concentrate on is liability.   Liability…..Liability….. Because most importanly about liability is this: If you defeat it—the issue of damages is moot. (If someone is damaged that’s one thing they still must prove another party is liable to be compensated).

LIABILITY

In a slip and fall case–one of the hardest of all for any PI attorney, the Plaintiff basically has to prove that the premises where they fell were negligently maintained or designed.   In essence they must prove that a normal person would have slipped b/c of some kind of negligence on the part of the owner of the premises.

Like in all PI cases, LIABILITY in slip and fall cases rise and fall on what eyewitnesses might say….

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Stay Tuned for PART II of “Rashomon” — The Eyewitness Testimony… (it’s funnier, but the set up was important)… Best to you all.

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Weekend Comedy

Sat Sep 17, 2011 5:43pm EST 10

[youtube:http://www.youtube.com/watch?v=XZPwDRZ6pTM&feature=player_embedded 450 300]

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You’ve seen a bunch of these, I’m sure... but this one is almost as good as the famous “Giants Beat the Patriots??” SuperbowlXLII take.

The laughs just keep coming, thanks to the Circular Firing Squad Re-Election Committee.

Enjoy.

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The Silver Test

Fri Sep 16, 2011 1:58am EST 9

[youtube:http://www.youtube.com/watch?v=y5MKuJ8ZnJQ&feature=related 450 300]
A Masterpiece, and Highly Recommended

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I was looking at some silver metal statistics this afternoon and came across and old fibonacci chart of the silver commodity ($SILVER).   It looked to be running into a relatively significant Fib line of support at approximately $39.50. That line should hold, given the overbought conditions of the dollar, but here’s the daily chart:

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Presenting….

Thu Sep 15, 2011 1:08am EST 46

[youtube:http://www.youtube.com/watch?v=X43ZyUGOPyw&feature=related 450 300]
The Greatest New Wave Hit Ever to Prominently Employ an Accordian

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Aside from that fantastic musical interlude, as written, played and sung by musical prodigy Matt Johnson of The The (no, really, that was the band’s name), who later in life went on to shave his head and post semi-lucid conspiracy rants on the internets. And no, I kid you not– it’s kinda sad actually.   I won’t link his blog, as you’ve seen it all before.

On the trading scene, I’ve got very little to add tonight.   We only need see this dollar issue resolve. If we are in a bull flag situation, we should quickly spurt above $78.1o on the DX-Y, and then we are “clean” out of all PM’s and miners. I will continue to keep my Skiffles (SKF) as I believe that will be keeping me somewhat warm throughout the Mort Kondracky Winter. A break of that $78.10 number on the dollar will actually induce me to store away more Skiffles as I await massive bank death via the whirling blades of European currency demise.

For the love of Ticonderoga pencils under $35/ a piece, please do not get shaken out too early.   I assure you it will be worth the $1 or so move on the dollar index to make sure you are not being head-faked here… again. Whatever does happen, however, you should not head out to the moors seeking the Werewolf’s curse, or go down to your local discotheque seeking mad mad passionate love from Big Baby Glenn Rice. Let’s keep things in perspective and ride this puppy together.

Best to you all.

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One Last Errand

Tue Sep 13, 2011 11:59pm EST 40

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What Goes On at Jake’s Desk Whilst He’s Away
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What the hell goes on around here while I’m gone? I mean, a man takes a couple of days to go on a top secret mission, and the place falls to wrack and ruin.   I come back and my desk is all askew… my papers molested, my fine Cuban cigars gummed and caked with salivatory drool.   What in the bloody blazes has been going on in my absence!?

What’s that? Random Errand Boys stealing up to my desk and attempting to short the silver lode??   My impulsive young man! Why not just go bounce on the high-tensile strength trampoline with a fistful of extra-sharpened #2 Ticonderoga Pencils??

Honestly, I just don’t understand the tendency toward self-immolation that pervades this site in my absence. Why is it some many of you “traders” look to shower yourselves with butane and then engage in “roman candle horseplay” of the most ill-advised variety? This is not an episode of “Jackass,” this is high-thesis investing!

Don’t you like money?

Why take the high risk trade? For thrills, a la Beavis, et al?
[youtube:http://www.youtube.com/watch?v=XchwE9zVdnw&feature=related 450 300]
It’s nonsensical, I tell you. If there’s one thing my compadre Gary Savage and I agree on… it’s this maxim: NEVER SHORT A BULL MARKET!

How many times must I repeat it, and still, like moths to the flame, Icarus to the sun and an Obama Voter to a Trans Fat protest march, you insist on ruining your fragile portfolios by playing with pinless grenades whilst cavorting in a cranberry bog. And here you come again, your fingerless hand-stumps held out in silent imprecation, blaming me for your troubles.

Well, it’s true, I am here to help.   But you mustn’t be led astray again. Remember, fading over-confidence in certain sectors of this site is almost as sure a signal as an overbought dollar.   Here’s the latest on that curmudgeonly currency, btw… note how we are advancing into significant zone of resistance on this weekly:

Note that I think the dollar can extend all the way back up to that0 $78.10 area, where both the 61.8% golden ratio fibonacci retrace and the rising trend line offer strong resistance.    So don’t be surprised if we pull back a touch more in both the markets and the commodities in the next couple of days as the dollar reaches that resistance level one more time.

After that re-touch, I predict that we will see one final glorious “plungerooni” in the dollar… down to the lows indicated on the above weekly chart.   At this juncture I expect the typical bull here will get drunk on cheap cherry wine and– in the the throes of sock-tongued inebriation– bury his face in the bosom of some local tavern wench.

This, I would contend, would be an ill-usage of your time.   I would rather suggest taking that period to phase out of your remaining long positions including, sadly, your precious metal miners (at least for the nonce), whilst battening down the hatchest with some choice shorts (like the Skiffles).

In the spirit of caution I of course must warn you: should we break significantly past that $78 dollar index price marking our resistance, all wagers are off, and the window should be closed all the sooner.

My best to you, my Nuttiest of Professors.

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