Nothing like a good trial to . . .

Today, I had my first trial in about four and a half years. Boy, did I feel rusty. When you aren't doing it on a regular basis, you forget how it works and the words don't come as fast when you need to say them and objections aren't made as quickly as they should be.

I think the reason I've had so few trials is that most cases with reasonable attorneys are settled. That must mean one of the attorneys in this case was not reasonable. It was probably me. :)

So, let me give a brief run down of the facts and then I'll try to give a blow-by-blow for the trial.

Facts: This lady gets loaned about $2,700 from a distant relative in the Philippines. She doesn't know what the interest rate is and didn't actually agree to the loan before it was put in her bank account. Over the course of about 21 months, she pays the guy about $8,500. He claimed his claimed interest rate was 5% PER MONTH. But if you do the math, that is more like 100%. (He also claimed he loaned her more like $5,500.)

Also, the reason he was suing her is that she had given him three more checks in the amount of $1300 each and those were not honored by her bank. His attorney's mantra: "She needs to make good on her checks."

Of course, we counterclaimed for usury. For usury, you can recover all usurious interest within two years of filing and treble the amount of usurious interest paid within one year of filing.

When you do trials all of the time, you maintain a level of confidence and ability to think quickly on your feet and respond to issues as they arise. Because I had not done one in a while, I felt rusty . . . like I needed some more practice. I told Debra to pray for me that I would have the right words to say at the right time.

There is nothing quite like the adrenaline rush of presenting your case before the Court, especially when you have an ornery opposing counsel. He kept threatening me, even in the hearing of the judge, that "Mr. Fear, you and I are not finished, I'm going to sue you for malicious prosecution." And he objected to everything he could think of objecting to. Only about half of his objections were sustained.

I objected to his client presenting any evidence that had not been disclosed in discovery because he failed to respond to a Request for Statement of Witnesses and Evidence. CCP 96 provides that one party may serve a request for statement of witnesses and evidence at least 30 days before trial. It must be responded to within 20 days from the date of service. Where a document is served by mail, CCP 1013 extends the time for any responsive action that must be taken by 5 days. So, opposing counsel makes this outlandish argument that somehow my service was late because it was served on the 30th day before trial and he seemed confused (without realizing that he seemed confused) on the effect of CCP 1013. So, I calmly explained the actual effect of the statute. The judge sustained my objection.

Then, opposing counsel tries to get the judge to knock out our cross-complaint by arguing that the law of the Philippines should apply and that there is no usury statute in the Philippines. Get this, in support of this statement, he introduces a letter from a Philippino attorney stating that there is no usury law in the Philippines. I object to the statement as hearsay. He says that the court can take judicial notice of the letter (and by implication of expert testimony). He was essentially saying that the court can take judicial notice of expert testimony! Of course, I said I would like to cross-examine the writer of the letter about several things, including his qualifications. The judge sustains my objection and the letter is tossed out.

Then we get to the substance of arguing which law should control. Debra's prayer was answered for me here. It seemed like each case he cited, I remembered the case, the facts surrounding it and was able to explain to the court why it was inapplicable. The wierd thing is that I had explained why most of these cases were inapplicable to opposing counsel in letters several months before. He sent me condescending letters stating that I should read the whole case instead of just the headnotes. It might have been good to heed his own advice, because I don't think the judge was impressed with his arguments.

In retrospect, the most amazing thing was the contempt shown to me by opposing counsel. He was frequently harrumphing and sneering at things I said. The unfortunate thing for him is that the judge seemed to agree with my take on most of the issues.

After going through about 2 hours of testimony (this was a limited case that was only supposed to take 2 hours), we took a break and the judge called opposing counsel and myself into chambers. "Why didn't this case settle?" he asked. How do you say "because clients and attorneys don't like each other" to the judge. We attributed it to the anger between the parties, especially his client. So, we each argued our case in chambers a little bit. One fact that had come out made it sound like the judge might rule for the opposition as to one of the checks. Then an idea hit me. I said, "well, even if plaintiff prevailed as to that check and the court awarded damages to plaintiff for that check, the court would then have to award treble the amount of those damages to my client because the interest was usurious!" After going back and forth for a little while the judge says, "what would you guys think of a complete dismissal, everybody walks away and pays their own costs?" We agreed to present the potential to our clients.

Eventually, they agreed to settle the matter by each dismissing and going their separate ways. After we announced this to the Court, the judge commented that he felt both counsel had done an excellent job preparing for the case.