A Monday(‘s) Work - April 21, 2008

At 10:00AM, I was sitting in property. Two hours seemed like an eternity. This was especially so because I spent the weekend at my roommate’s parent’s house for the holiday. It was definitely a bit more intense that what I was used to, but the food was plentiful and the guests made some great conversation.

My pseudo-parents love having me around. They have three daughters, and not one son. Every time I come over, they treat me like close family, and definitely utilize my young male self. As they say, it is always good to have a son to take out the trash. And, boy, did I make a great many trips out to the trash.

Anyhow, the weekend made the wake-up on Monday quite difficult. I was to have a packed day. After the two hours of class, I prepared for my second-to-last hearing of the year. I was excited to close another case, but worried about my less than spectacular client.

This is the case that deals with multiple criminal charges, a union collective bargaining agreement, surveillance video, and a lengthy trail of allegations and complicated stories. My partner was a first-timer, so she was relying on me heavily to guide our client (and her) through the hearing.

As has become the pattern, I was told and prepared for a hot-tempered employer to sit opposite my client. I had not seen their main piece of evidence prior to the hearing, so I could only prepare for an under-described video that my client tried to tell us about.

The hearing went quite well, at first. It lasted a total of 2.5 hours, which was incredibly long. Most hearing go anywhere from 30 minutes to one hour. Because we were dealing with two allegations of petty theft (allegedly took a package on two different instances) and multiple videos, we knew this would go a little longer than normal.

There were two people on behalf of the Employer the last time around, but only one this time. He was one of the higher level investigators for the company. Ten minutes into his testimony, the surveillance video was ready to be shown. I made an objection as per the authenticity of the video, and whether or not it was an original, non-edited version. The judge noted the objection, and the video was played, anyhow.

The surveillance system saved to a hard drive in a digital version. To save hard-drive space, the video only recorded if there was movement on the screen. To make the record complete - and to really piss-off the employer – I made a verbal notice every time the time on the screen ran, and when there was no change in recording. Basically, the video had dozens of seconds of action missing. Every time I noted the still picture, but moving time, the employer became increasingly mad. This occurred a great many times, and the Employer was, obviously, angry a great many times. I had not even begun my cross examination and he was an upset man.

During his direct testimony, he told the judge that he was absolutely positive regarding certain dates. Of these dates was the day he began an investigation into the allegations. When it was time for my cross examination (“cross”) to start, I knew exactly where to start. The Judge had entered an internal memo into evidence as Hearing Exhibit 1. The Exhibit was very helpful to my client’s case.

H – Mr. C, you told the judge, not too long ago, that you are absolutely positive about the dates of certain events, right?

Mr. C – Of course. I am positive.

H – Are there any changes you would like to make to any of those dates?

C – No.

H – Would you say that, as a general rule, your memory gets better or worse over time?

C – I would assume it would get worse.

H – So, your memory on, say, January 2nd, was better than your memory now?

C – I’d say so.

H – You just told the Judge that you started your investigation on the 13th of December, is that right?

C – Yes, that is when it started.

H – On the internal memo that you authored, marked in evidence as Hearing Exhibit 1, you say the investigation began on December 17, but you just said that you are positive the date of the start was December 13th. Were you lying then, or are you lying now.

C – (Insert something incoherent and babbling here.)

The hearing only became better as we continued.

H – Also on Hearing Exhibit 1 (“HX1”) you wrote that my client put four items into the delivery vehicle, and removed one item. Is that correct?

C – Well, when I say removed, I meant that he took it out of the back and brought it to the front of the truck with him.

H – But, that is not what you said. I quote he “removes the shipment that had been tossed into the vehicle earlier and then closes the door.” Isn’t that right?

C – Yes, that is what it said. (He read the entire paragraph out loud.)

H – So, he put four items in, and took one item out?

C – Yes.

H – Leaving three items in the truck?

C – Yes.

H – You also said in HX1 that he delivered three items?

C – Yes, that is what it says.

H – So, to make this clear, you say he took three packages, and delivered three packages?

C – (More incoherent, fall-over-himself babble.)

H – That seems simple enough to me.

… Some time later …

H – You showed us surveillance video earlier. How many cameras are there in the distribution area?

C – 54.

H – How far off the ground are the cameras?

C – They are 7 to 10 feet off the ground.

H – Are they visible?

C – They are in your face, you cannot miss them.

H – Do the employees know there are cameras recording every movement they make?

C – Yes, everybody knows.

H – So, my client knew he was being recorded?

C – Yes.

H – Did you check the video of my client’s return to the facility on those days?

C – No. But I think I have it here.

H – So, it is possible that my client would be shown unloading the packages you say he stole.

C – I guess so, it is possible.

H – You surely identified the specific packages as the one’s you say were missing, right.

C – Yes

H –The company with the logo on the alleged boxes uses your company exclusively for shipping?

C – Yes.

H – So, it is safe to estimate that thousands of packages that look exactly like the ones you say were taken go through this area regularly, right?

C – Right.

H –And there is no identifiable mark that would set the box on the video apart from any other box from that company?

H – How many employees work for this branch of your company?

C – Hundreds.

(In reference to the man we viewed on the video earlier, where the person was wearing a hat, jacket and pants; no face was visible at any time.)

H – How many employees wear hats at work?

C – Hundreds.

H – How many wear jackets?

C – They all have those jackets and wear them.

H – How many employees wear pants? (My partner had to cover her mouth to keep from laughing.)

C – (With a bit of exasperation.) They all wear pants.

H – How many packages come through this facility on a daily basis?

C – Thousands.

H – How many per year?

C – I dunno. Millions.

H – Has your company ever lost, misplaced, forgotten, mis-delivered or otherwise lost possession of any one of these millions of packages?

C – It happens, of course.

H – How many people have access to these packages?

C – I dunno, I can’t really say.

H – Can you give an estimate? Hundreds? Thousands?

C – Thousands, I guess.

H –Can people from the public access the area and/or the millions of packages?

C – I guess it is possible. To be honest, people could probably steal it from the trucks when they are out on delivery.

H – You track the packages, right?

C – Yes. We use a scanner system.

H – Have you ever owned an electronic device?

C – Yes, of course.

H – Has any device you owned ever malfunctioned suddenly?

C – Yes.

H – Have any of the scanners not worked?

C – Yes.

H – Sometimes they do not scan?

C – Correct?

H – Sometimes they do not transmit?

C – Yes.

H – Sometimes they do not even download?

C – Right.

H – But it saves any information on the handheld device as a backup, right?

C – Yes.

H – Did you check the devices my client used on the days in question?

C – No.

H – You filed a police report, but you did not even investigate the allegations enough to check the device?

C – I did not feel it was necessary.

H – It is convenient for you that you did not find it necessary. How nice.

H – The packages that my client allegedly stole were not in his delivery area?

C – No, they were outside the area he was assigned to.

H – Do delivery persons ever go outside their assigned area?

C – Honestly, sometimes the supervisors will give them something to deliver that is not in their zone. So, it is possible that it could happen.

H – Did you ask his supervisors if he had been assigned to areas outside of his normal zone?

C – No.

H – How convenient, again.

H – The first incident for which my client was terminated for accused theft occurred on October 30?

C – Yes.

H – You terminated my client’s employment on December 17?

C – That is right.

H – And you later filed criminal charges on January 16, 2008, correct?

C – Right.

H – You waited 48 days from the first incident to look into a charge of theft and terminate my client’s employment?

C – Yes.

H – And then, you waited 30 MORE days before filing charges with the police?

C – It is my right to file charges whenever we want.

H – Is it company policy to wait 78 days to seek justice when your customer’s belongings are lost or stolen?

C – We could not investigate until our customers tell us something is missing.

H – You want the Judge to believe that a customer would wait 48 days to report to your company a package was missing worth over $850?

C – We can’t control what our customers do.

Before I was done with my lengthy cross that included far more than what accompanies above, I asked one final question:

“You want us to believe that, although you waited 78 days to charge an employee with the theft of a customer’s property, when all you have to support your accusations is admittedly low quality (at best) surveillance video of an alleged theft, without any surveillance of the accused that would show the return of the package, that somehow identifies a box without any identifiable markings, accessible by any one of a few hundred persons, that was supposedly never scanned nor tracked in a computer system that thousands of people can alter at any given time, when you have no idea where the package finally ended up, or who currently possesses the allegedly stolen goods, that my client did what you accuse?”

After poking so many holes in their testimony and evidence that their boat had become a splinter, it was my client’s turn to testify. He is not now, nor has he ever been, the smartest person in any room. He made worthless the better part of 45 minutes of my life with one of the first questions he answered.

Q – You watched the video earlier?

Client – Yes, I saw it.

Q – Was that you on the video?

Client – Yes, that was me on there.

I nearly lost it. I could not believe he said that. I spent a great amount of time to making the unidentifiable person on the screen out to be just about any one of the thousands of employees for the company. In a few seconds, he screwed everything up. I could not believe what had occurred.

There was only one other exchange that made my head spin. The employer was a smart guy, who caught on to the closed-ended questioning type that was needed for a cross examination.

C – Have you ever lied.

Client – I do my best never to lie.

C – That was not my question. Have you ever lied.

Client – (Obviously agitated) Of course I have, haven’t you lied.

The Employer, in all his stupidity, actually answered the posed question.

C – Of course I lie. What makes us believe you are not lying today.

Client – I am telling the truth. I did not take the packages. I haven’t ever taken anything that was not mine. I had no reason to.

The Employer turned to the Judge and said, “I do not know if this is a question I can ask, but…” He turned to my Client and asked, “Do you have a criminal record?”

Before you could say, “Why, golly-gee willickers!” I objected. “Objection, relevancy, Your Honor.”

The Judge directed my client not to answer and sustained the objection.

My closing was a quaint summation of ever hole I poked in the case.

“Scanner malfunction. Transmissions do not go through. Downloading malfunctions. Thousands can access the distribution area where there are thousands of packages every day. Thousands can access and alter the computer system. The trucks are accessible, and packages are regularly lost or misplaced. No video of my client’s return to the area after delivery. There is no evidence that my client even took the packages in question. There has been no chain of custody for any evidence, and no original evidence presented. The Employer said that items can be altered, and that employees can be assigned irregular duties. The employer wants us to believe that customers waited over 50 days to report missing shipments worth over $850. The employer wants us to believe that he reviewed hours of unclear, low-quality and incomplete video of multiple days in a few hours. He alleges that even though the video is unclear and incomplete, skipping a great amount of time, and freezes in recording, that my client did as alleged. All the evidence shown is incomplete, without proper authentication, and does not prove the Employer’s case. Furthermore, my client was making over 24 dollars-per-hour, and the highest education he has if that of high school. No person with his education level, making that much, who knew that there were cameras recording his every move would risk his job by stealing from the employer for which he had worked for longer than one decade. It is unreasonable. New York law provides that there must be a direct relation in point of time between the offenses committed and the discharge, and misconduct must be proved to be the direct cause of discharge. There is no such link here, and no evidence to support any allegations of misconduct. The employer has not met his burden. Find as the law requires: reinstate my client’s benefits.”

And, with that, the hearing ended. As we walked out, my client was pretty happy. He turned to me an exclaimed that the other guy looked horrible, and that he thought everything went perfectly. When he asked me what I thought, I replied, “I will not sugar-coat this. I have been in dozens of hearings, and this is the first time I have walked out unhappy with the way things went.”

He asked me what went wrong, and I explained that when he identified himself in the video, he shot himself in the foot. He retorted that he did not know what to say. I told him that he should have said anything but that, but now, he is on the record for life as being the person in the video. My partner later told me that her “five-year-old son knows better than to do that, and he is only five.” I could not believe it.

I have had clients who have had much stronger cases and almost lost, and clients with weaker cases who have won. It could go either way. Regardless of my client identifying himself, the Employer has an admittedly weak case that asks the Judge to make giant leaps in conclusions. However, administrative judges are not the most reasonable persons in the world. This is a grab-bag. Nobody knows what is going to happen.

My client sent the following email later:

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To: H and Partner

From: Client

Subject: you both did well

i was thinking this all over and i want you to both know i think you did a fine job. you tore this guy apart and to me he did not know what he was talking about. if the judge does not see thru this its pretty sad what can happen to anyone, at any given time of their life. i will be in touch as soon as i hear a decision. thanks again.

Client

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We wait and see.

After the hearing, I had the last Student Bar Association meeting of my life (hopefully). The meeting was a complete waste of time, and lasted no longer than 20 minutes.

I went home and got down to studying.

All in a Monday’s work.