Irresponsible malfeasance and blatant incompetence could not better describe the Judge today. I remember back to the good days of trying employment cases. The judge was mean. She was nasty. In fact, the Judge was downright not having it from me. Well, I tried a case in front of the same judge again. She was much worse this time.
A legal advocate can only build up the nastiness and abrasive nature of a judge to their client to a certain level. The experience is always poised to be very different, yet contain some of the characteristics as described.
Though Mr. Moneybags Employer has 5 stores and two companies, he did not bring legal counsel. He did not introduce any evidence, and all his testimony was hearsay and irrelevant. Of course, being a prudent counselor, I made the correct legal objections. My objections and the employer's inadmissible statement (under the law) did not matter to the Judge. After a few times, I stated a "standing objection" for the record, so that I could stop trying to, with futility, keep things off the record that did not belong.
He even referred to documents that we had not been able to see. I objected on the basis of authentication. The judge said, as is her style, "Mr. H, he has not offered anything into evidence. There is nothing to authenticate." I told her that he referred to documents, and, if he is able to refer to the documents and you are not entertaining a hearsay objection, that since it was on the record, I wished to authenticate the documents. She told me no. At least it is on the record.
After dealing with the illegitimate statement the employer made, where my head was spinning and Lindsay was restraining me from jumping over the table, it was my turn to put the employer on the hot-seat.
I always prepare my line of questioning, but somehow, never use it. I knew exactly what I wanted, and how I was going to get it. But, this time it was a bigger-than-normal challenge, because the judge was not upholding court rules whatsoever.
My objections during cross-examinations to the answers of the employer were just as useless as before. I think that, out of all my time thinking on my feet, presenting questions, being extremely analytical and putting on a performance, this was my shining moment.
There were many times which I was content (even though the Judge was a big Debby Downer), and, under the circumstances, things went relatively well. To verbalize my feelings, I told my client the following after the hearing was complete (and both statements are true) : "I feel VERY confident in the proceedings." I told Lindsay that "I feel abused and battered."
The cross examination of the employer included some elements of hilarity. I cannot share everything, but I can, however, share some of my favorite lines of questioning. As we proceed, please keep in mind the following: I was only able to elicit an answer of "no" once during the entire hearing. The judge had no basic respect for the law and rules of the court. Again, I made "narrative," "non-responsive" and other such objections that were all failed attempts at upholding my clients basic judicial rights. At one point, I even went so far as to say, "Yes or no. I am looking for a "yes" or "no" answer. It is true that… "Yes" or "no"? Of course, I did not get a "yes" or a "no". The judge would not do a thing about it. She said, "Mr. H, you asked the question, now let him answer." And sometimes, he would not even answer my question. I would have to state, I appreciate your response, but you did not answer MY question. I would then repeat. The hearing was a circus of shampoo directives. Wet. Wash. Lather. Rinse. Repeat.
So, when I refer to "yes" or "no" as an answer, you can thank me for cutting out five-minutes of narrative response to my close-ended "yes or no" questions.
I asked the employer if he was the owner and president of the store for which my client worked.
Employer - "Yes," he replied. (Reminder: that answer was a long, drawn-out answer.)
Me - "So, you know what is going on in your company at all times, right?"
Now, it is important to mention that this is what is referred to as a "trap" question. Regardless of how the employer answers, we trap him in some way. For example, if he answered in the affirmative, my responding question would have been along the lines of "then how come you did not review the order before it was made?" or "Why did you let the problem fester for this long?" But alas, things are not that easy.
Of course, he did not answer "no," and somehow, I did not get a "yes" either. This guy was good at being non-responsive. But, the answer I received was classic.
Employer - "Well, I run two companies and one of those companies has five stores, so I do not know everything that goes on. If you want a number, I would say I know more than 90 percent of those things which occur."
Me - "So, a little less than 10 percent of the time, you have absolutely no idea what is going on?"
Employer - "That’s not what I meant. In this situation, I can tell you I know 100 percent of the things that occurred."
Me - "But, we cannot be absolutely positive that you know everything, right?
Employer - His response is unnecessary, long, and verbose. I got in what I wanted.
I then entered the realm of the chain-store's prehistory ordering/merchandising system; a system where they - I am not making this up - look at the shelves to see what they need to order. If an item is missing or running low, as they walk aisle-to-aisle they mark it down and order it.
Me - "Does your company have an advanced inventory system?"
Employer - "No."
Holy batflakes! I got my first, and only, "no". Praise the lord!
Me - "Does your company have a barcode inventory system?"
Employer - "No." Insert narrative again.
Me - "In fact, your company does not even have a basic, pen-and-pencil inventory system. Isn't that correct?"
Employer - "You cannot. I am not Walmart or a big store like that. We cannot afford a system like that! This isn't… It is not right to hold me to the same standards that you hold a big company. Because I am not a big company, it isn't fair, I shouldn’t be punished because I am smaller!"
Me - "Well, it is not fair to use those same standards, and punish my client either, now is it?
Ding. Ding. Ding. Man down!
Well into my line of questions, he was getting frustrated - a feeling I mirrored from his lack of actually answering my questions, an offshoot of the judges incompetence and unwillingness to uphold the law - and he turned to the judge and I and said the following about me:
"You use what I say against me. I did not mean it like that. You take things out of context and twist my words!"
That is what we in the field refer to as "validation". I turned to Lindsay and gave her a smile and nod. It is truly nice to have realized the true gift of lawyering. Everybody has it, but mine was validated.
There were definitely points of happiness. But more so, there were an abundance of frustrating times with this judge.
I was also charged with giving a closing argument, however, the employer was to proceed with his closing argument first.
His impassioned speech gave rise to an abundance of objections, including: assumes facts not in the record, unauthenticated evidence, loads of hearsay, relevance and so many more. Of course, that did not stop him from saying anything. He even said that "[My Client's] attorneys put on a brilliant theatrical production."
Validation again. Lindsay looked at me this time. Both nodded and definitely smiled big-time. He could not have made a worse attempt at trying to make us sound horrible. Go team!
I ended with my argument and we ended the hearing concluded. We walked out, and went our ways after chatting shortly. My father asked me how the client felt. My response is that no matter how much I prepped my client for the evil judge, until you experience it and know that she hates everybody equally, you are not going to feel good.
I told my client to go home and relax because there is no point on dwelling on the proceedings. The hearing is over, and the facts are on the record. I also told him I felt very confident that we did well.
We now await the judge's ruling. I am not holding my breath. One never can tell.
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Below, for your enjoyment, is my closing argument. It must be very short and to the point (or the already upset judge become even more upset). Cheers!
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(My client's name has been changed to oblige client privilege.)
May it please your honor,
TC worked for [the company] for 7 years. The evidence shows that he spent all seven years as a District Manager during which time he did not receive a single warning for any wrongdoing or misconduct. The facts of the case are clear: TC was a model employee who operated, for a significant part of a decade, in the best interest of the company.
There was no oversight in ordering, no evidence of misconduct and no evidence or documentation of a demotion. The is no evidence that is not hearsay. There was no company handbook. There were no company ordering guidelines. There was no merchandise inventory system. And, most of all, there is no evidence of any prior warnings.
Under the given circumstances, Mr. C CANNOT be guilty of misconduct. It simply is not justified. He was thoughtful, efficient and thorough in his duties.
Being released from employment was just the first of many injustices TC suffered. Give him what he deserves. The evidence and testimony leave no room for dispute: Mr. C is innocent of any misconduct. Find for the Claimant, TC , and award him unemployment benefits.
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