Don’t Be That Attorney — Learn to Take Your Lumps With Aplomb

 

Ah, memories. Like the corners of my mind.

I came across a news article about an attorney who is experiencing the sting of a footnote by an appellate court, and it reminded me of my own footnote experience.

First, my experience. In one of my more bizarre cases, I represented a small business in an action against Bank of America. The bank had closed my client’s checking account because they suddenly decided it was a competitor. That’s fine, but they did so without notice, took out all of the money, refused to return it for ten days, and were returning all checks that were presented as NSF checks (all while happily charging my client fees for the bounced checks). We sued for the loss of profits due to the company’s damaged reputation.

Bank of America brought in the most impressive accountant imaginable, who worked into the testimony that he is so trusted that he is the guy who tabulates the votes for the Academy Awards. You just had to love him. I wanted to invite him to my next barbeque.

He testified that there were no damages, but that even if all of our evidence was true, the damages would only be about $90,000. But during his examination, I noticed that he had made a terrible mathematical error in his accounting. I couldn’t believe what I was seeing. In the string of equations he had written out, he had made one error that amounted to a factor of ten.

Rather then to show him his error on cross-examination, and afford him the opportunity to try and dance around it, I left it until my closing argument. I picked up the blow-up and showed the jury the math error, arguing that if we believed Bank of America’s expert, then my client had suffered $900,000 in damages, once the math error was corrected (which was more than we were seeking).

It happened that the lunch break was held after my closing argument but before opposing counsel’s. I hate when that happens because it gives opposing counsel an hour and a half to tweak their closing argument to better address mine. But some of my staff was there, along with the clients, and we used the time to make bets on how opposing counsel would deal with the terrible math error. I thought he might go so far as to seek permission to recall his expert, and others thought he would argue that the math was irrelevant, since the expert never conceded that there were any damages.

None of us predicted what occurred. The math error I had identified was not subject to debate. It was right there in the expert’s calculations. The jurors could do the math. But incredibly, counsel for Bank of America argued that I am not an accounting expert, and without an expert to testify that 10 times 90,000 doesn’t equal 90,000, then the jury would have to accept the testimony of Bank of America’s expert.

During my final closing argument, I made the joke that we will never again be able to trust results of the Academy Awards, and that the problems with math by this particular accounting firm might explain why the films we expect to win often don’t.

The jury gave us every penny we asked for – a nice six figure judgment. The math error actually served to bolster our credibility, because we stuck to our own damage calculation, and didn’t try to argue that the jury should give us what Bank of America’s own expert had calculated.

Bank of America unsuccessfully appealed on about a thousand grounds, and amazingly they stuck to the same argument; that it was improper for me to claim a math error by their expert. Like I said, the appeal was unsuccessful.

So here is the footnote part. It was almost as though the Court of Appeal wanted to show that no expert is perfect (they apparently really liked him too), so the Justice writing the opinion dropped a footnote and noted that my expert had also made a mathematical error of . . . drum roll . . . one dollar. Really? That rated a footnote?

In reality my expert had not made an error. Apparently it was not clear from the record that my expert had rounded the cents when he was testifying, but the chart he was referring to was correct. But that doesn’t keep me from giving the expert grief every time I retain him. “Stan, would you please double check your numbers this time so we don’t get another footnote?”

At least the footnote dealt only with my expert and not me. The attorney in the news article I was reading was not nearly so fortunate. The attorney is Jerry Albert, an Assistant U.S. Attorney. The article is not clear on exactly what happened, but apparently Albert was cross-examining the defendant in a criminal trial and summarized some testimony from a prior proceeding. The court decided that he had mischaracterized the testimony, and on that basis ordered a mistrial.

The matter was appealed, and after the initial decision came down, the government moved to have Albert’s name removed from the opinion, since it spoke critically of his alleged misstatement, asking instead that he be referred to only as “the prosecutor.” The result? The Ninth Circuit Court of Appeals amended the opinion to add this:

[U]pon initial release of this opinion, the government filed a motion requesting that we remove Albert’s name and replace it with references to “the prosecutor.” The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the government’s suggestion and denied its motion. We have noticed that the U.S. Attorney’s Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. If federal prosecutors receive public credit for their good works — as they should — they should not be able to hide behind the shield of anonymity when they make serious mistakes.

Albert could have taken his lumps, which initially consisted only of the references in the original opinion. Likely few people would have ever seen the opinion or learned of his alleged misdeed. But by trying to hide the mistake, he and his office created the Barbra Streisand effect, creating much more buzz about Albert than ever would have occurred. Because of his attempt to have his name removed, many who otherwise would not have done so have now written about Jerry Albert, including me. In fact, searching for the term “Jerry Albert, Assistant U.S. Attorney,” every result for the first couple of pages, such as this one, concerns this effort to remove his name.

Don’t fan the flames. Don’t be that attorney.