Witness Preparation - Part 2 - September 13, 2006

"Don't question him, Les... Accuse him."

"You threw that bottle, you little fuck!"

The pie-faced little man yelped back. "I... deed... nutheeng... nuhhh-theeng."

"Fuck this," I pushed in front of Les, shoving the barrel of the gun out the window so the little troll could clearly see that it was aimed at him. "Move and I'll pull the trigger."

The fat little man was stunned. He froze, paralyzed, squinting to make out the gun barrel against the sun's reflection in the window. He didn't appear afraid so much as confused, shocked, unable to process the scenario. It was a late spring day. He was standing outside his fraternity house. People were riding to the library on mountain bikes. Stoners were kicking hackey sacks in the parking lot next to him. Girls were sitting on a soccer field in front of him. The Ultimate Frisbee Team Freaks were playing Frisbee golf nearby. The Spin Doctors were blasting from a basement of one of the nearby fraternity houses. And right there, in the middle of this picture of collegiate bliss, a drunken lunatic dressed like Angus Young was pointing a rifle at his head. I could see him scanning his photographic memory of the school handbooks. "Roommate with drug problem..." "girlfriend with bulimia..." "roommate with different values..." "signs your friend has a drinking problem..." "indicators of suicidal ideation..." "terroristic threats?"... "assault with a deadly weapon?" This was not in the brochure.

I could see his mind doing flips. "Is that a real gun? Maybe it's a water pistol. A pellet gun perhaps. But those people, they're not right. They could have a real gun. They're on drugs. They might have a real gun, and think it's empty, but they may have forgotten to remove the last chambered bullet. Do rifles follow that rule? Is there one extra bullet in the chamber? Or is that just automatic pistols? Shit... I've seen this on television - 'Student dies in freak prank mishap.' Should I run? Can I move? If I run, will that call his bluff? He couldn't actually intend to shoot me. He'd piss away his life. But what am I risking? What if he's really drunk, or on some heavy narcotic? What if he's so twisted that when he sees me lurch to make a dash for it, he just pulls the trigger instinctively and there is one bullet in the chamber?"

I just kept the rifle trained on him, saying nothing.

The little man he just stood there, in near rigor mortis, nothing but his lips moving. "You are insane! I... did... nuh-theeeng!" And Les kept screaming out the window. "Have you ever kissed a girl, you Iraqi bastard?"

I turned and looked at Les for a second. "Are you kidding me?"

"You got anything better?"

"I'm the gunner. I don't talk."

"You're a virgin... a fat Iraqi virgin!" Anne was now standing behind me, wailing in her cracking, hoarse, Joplinish voice. "You've never had sex, have you?" The insults were so juvenile and atrocious, so clearly coughed from chemically damaged heads, that anyone watching the episode outside would have felt bad for us instead of the poor bastard in the gun sight. I was tearing from holding back laughter and nearly dropped the rifle several times from giggling.

"Answer the question!" Les boomed. "Have. You. Ever. Kissed. A. Girl?"

"I... am... not... Iraqi! I am Moroccan!"

"He's ducking the issue, Les."

"You Iraqi bastard. I'm going to shoot you myself!"

The little man's eyes blew open as wide as saucers. For a second, I thought he was sure Les was actually going to grab the gun from me and plug him.

"Careful with that 'Iraqi' shit. You don't want people to think we're racists."

"Iraqi isn't a race," Anne quipped.

"Let me go! I did nuuhhh-theeenng! I'm Moroccan! Moroccan!" The fat little man just kept screaming.

"I don't care. Shut the fuck up or I will shoot you," I screamed over the barrel. "This guy actually thinks we're going to shoot him. Can you believe that?"

Holding a gun on a person, even a pellet gun, is a very queer gig. Unless you're a serious gangsta or sociopath, it's always a bluff. Looking back, holding that rusty old pellet rifle on that blubbering brown little man might have been where I learned it wasn't what you had in the gun, but what people thought you had in the gun...

* * *

I didn't know it then, but I'd be replaying variations on this scene in my head for the next 13 years. Law school was the first bluff. Would my essays, in which I vomited reams of facts furiously memorized the night before the exam, garner me passing grades? Would volume of buzzwords written on the page in raging scribble overcome the absence of any real analysis? Could creative prose alone ease me past the obvious lack of understanding of the theories? Could I surf my way to decent grades by sheer overpowering verbiage? Did I ever really need to understand what the hell I was talking or writing about? Or could forceful waxing about the scattered general elements of the subject matter get me through? Could I sneak by memorizing outlines and adding a few obscure facts into my analyses to make it appear I'd studied the text in detail?

Well, that's almost enough to get you through most standard commercial disputes.

I'm still holding that unloaded gun on that fat little man today. Most business litigation is one big bluff. We're all spread far too thin, working on far too many matters, to actually know any case - to truly understand its every intricacy the way we should. In a sense, we're all committing a subtle form of malpractice. The winner in most cases is a reverse runner up - second worst. But we have no choice. The market makes the rules, and the market says our services are worth less and less each day. Even the class action players, who don't eat unless they win, half ass it, throwing hundreds of frivolous cases at the wall and hoping for a good "Hit Rate." In 2006, a business litigator's skill set depreciates faster than a new Cadillac, no matter how hard we try to artificially goose it North by raising rates.¹

Today's lawyer is focused on the billable hour first, the result second. In terminal economies like Philadelphia's, there's less and less money to cover the overhead. Everybody works 2200 hours (even when they're working 1850). Business litigation is the new "Insurance Defense" - a billable hour-crunching scam. We're all frazzled, running in circles, working on 10 things at once, none garnering our full concentration. We race around like idiot meth fiends chasing fixes - tearing our hair out and gnawing our fingernails to bloody nubs, mainlining Adavan, Xanax and Paxil, scavenging like sewer rats for paying business and fudging the work we have so we can feed more new projects into the billing machine, all while dragging out the cases we could dispose of early to squeeze out maximum hours. We can't actually try anything the way it ought to be. We bluff the case along to the courthouse steps, one side calls the other's cards and we settle, sighing under our breath about how we dodged a bullet... both firms stuffing piles of cash in their pockets.²

Some of us work a double bluff. We realize early that, outside Federal Court, you can keep any action alive until trial. I can sustain the weakest of cases through a motion to dismiss, preliminary objections or summary judgment motions. Frivolous leverage counterclaims were my specialty for a few years. The rules are forgiving to the non-movant in every conceivable regard. Keeping a specious claim alive for months, maybe years, can turn a weak case in which a client doesn't want to invest into one it'll champion with double fisted gusto and every ounce of its wallet. The client sees the endless stream of successful motions and arguments you've piled up and starts thinking that dubious claim of its just might have some merit. The case could be a Hail Mary... it could put a GC or CEO's daughter through Colgate. Nevermind that the "victories" the client sees have all been procedural - exploitations of the rules - which are already heavily slanted toward granting even the most ludicrous pro se litigant his day in court. Nevermind that the Judge has all but point blank stated on the record that he plans to blow out the client's case at trial. So what? I'm just the advocate... I've given the client what he paid for... I've pushed his pig all the way to the beauty pageant.

The problem with this cash grab strategy is having to unscrew the mess you're in if the case doesn't settle. What do you do when the other side calls your bluff and you actually have to try that shyster's quilt of bullshit claims you filed? What's your exit strategy?

* * *

"What do we do now? He knows we got nothing."

Les was right, but I decided to go for broke. "Take your pants off." The fat man stared at me, pretending not to hear. "You heard me. Moon those girls over there." I pointed in the direction of the group of girls about 20 yards away.

"Whip out the sausage, you Iraqi bastard!" Anne screamed from behind me.

"I told you... careful with the 'Iraqi' stuff... Can I have a drag off your smoke?"

"Careful why?"

"Some people get all pissy about that shit."

"What people?"

I didn't realize it then, but my use of 'people' was deeply Freudian. I was twisted, but not loaded enough to believe this thing wouldn't have consequences. 'People' of some sort, likely of the rule custodian variety, would analyze what we'd done here today. The fat little man and his house wouldn't let this thing drop like the soccer house across the street. They wouldn't take matters into their own hands and beat the shit out of a few of us like the football house next door. No, the sort of person who'd stand frozen and actually believe we'd shoot him was the sort of Nanny-Stater who'd call authorities to do his fighting for him - it was only a matter of what kind.

"I'm Moroccan... fuck you bitch!" The little fat man yelped up at us.

"I know, I know..."

As I handed Anne back her cigarette, I realized the best part of the song - the section near the end where the band rips through a chunk of Howlin Wolf's "The Hunter" - was churning through the speakers."Turn that up."

"Cause I got you in the sights of my guuuuuuuuunnnnnnn...."

I turned and mouthed the words at Les and Anne. "That's a sign from Jesus."

"Take those pants off... Now!" The fat little man didn't budge... He'd called my bluff. What could I do? He'd dared me to pull the trigger. Every second I hesitated he grew more and more sure he'd reached the right conclusion - that I couldn't shoot him, even with a pellet gun.

"Fuck, I'm folded."

Les shook his head. "Pull the trigger... that popping sound'll scare the shit out of him." I never got the chance. When I returned my gaze to the fat little man, all I saw was the back of his leg as he ran into his fraternity house. A tall, mulleted man with a middle part in his hair and severely Appalachian features appeared in his place. "You assholes are fucked. Enjoy jail!"

We didn't wait to find out if 'Cletus' was bluffing. Les and I immediately hopped in the truck and headed to an off campus apartment. "Shit, I knew the mooning bit was over the top."

"Yeh, but you had to break the stalemate. You couldn't just hold the gun on him all day."

"I should've made him dance. Breakdance."

"The Worm... that would have killed."

"The Robot."

"Next time..."

When we got back to the house that evening, everybody was waiting for us. "Duuuuude, the State Police came and searched Les's room!" "You guys shot somebody?" "We had to hide, like, ten bongs when the cops came through... they almost found Bailey's digital scale." "Dude, Williams is fuckin' pissed."

"Whatever..." I had no concerns about Williams, the president of the fraternity. First, Williams never got pissed at anything, and didn't take any element of his job seriously. He'd only been elected because he was the sole candidate, and he only ran because the job paid free room and board, and he'd gone $20,000.00 in debt on his Amex partying in New York during his internship the prior summer. Second, Williams was as crooked a president as we'd ever had. He allowed people to pay astounding bar tabs with the house credit cards and let me gamble over a thousand dollars of brothers' dues, badly, on football. Like every president we had while I was there, he went into the job with no illusions of rehabbing the place or its finances. If anything, he approached it more cynically than his predecessors. The outgoing president before him, Carlton, had bought his way into the job (which he viewed as a necessary resume builder considering his 2.2 GPA) by promising to purchase the 'baking faction' of brothers free sacks of dope if they voted for him. The baking faction, seven or eight brothers whose lives revolved almost entirely around pot, came out in force for him, which was more than enough to ensure a majority. Hence, Carlton won in a landslide... and immediately began bankrupting the house. Carlton blew money at a Conrad Black pace on countless brotherhood bourbon festivals, which wound up costing thousands of dollars apiece when we factored in the ancillary costs of replacing windows, vending machines, kitchen equipment and fire extinguishers. Rather than cut spending to staunch the waterfall of red ink Carlton started, Williams went on a Bushian bender, slashing every budget in the house save the social fund (a bourbon, beer and drug slush account that technically didn't even exist). When national fraternity officials audited our books, I transferred social money from the slush account back into the house accounts to show us flush. When Williams got busted by some pledges drunkenly writing house checks to some brothers just because it seemed funny, people like Les and I got his back, ensuring everyone they were refunds of dues overpayments. Williams was good people - I was sure he'd get our back, or at least have the decency to play dumb and hinder any investigation.

"Why are the State Police and school officials here investigating a 'hate crime'? Did you point a gun at someone and call him an 'Iraqi'? They're threatening to press some kind of charges. It happened in your room, Les. You guys have to fix this shit." Williams wasn't laughing. He wasn't upset, but he was fairly annoyed. This had cut into his day of fucking his girlfriend, sitting in the sun and playing tennis.

"I don't know what you're talking about."

Williams smirked at me. "Come off it. Nobody's buying that shit."

"What's wrong with calling someone an Iraqi?"

"Nothing, Les... But people kind of take anything you say as an insult when you're holding a gun on them and demanding they strip. By the way, why the fuck did you do that?"

I shot Les a look and he nodded in return. We were on the same page, both realizing the only course at the moment was stone faced silence. No admissions - not even to Williams. This was a shit hurricane.

"Like I said, I didn't."

"You two are real assholes." Williams turned and walked out of the house. "Just fix this shit. I'm not dealing."

Les looked to me, half serious, but half stifling a smirk. "How do we deny this?"

"How do we not deny it? Let's go to the bar. I can't think straight here."

"I fucking hate the bar on Sundays."

"$5.00 pitchers, dude, and we need to come up with a plan."

"I'm still sooooo hungover."

"Exactly, think of it like a Pre-Test Bong Hit."

"The 'Pre-Test Bong Hit' doesn't work with alcohol. Beer makes you dumb. That's why it's called a 'Pre-Test Bong Hit, and not a 'Pre-Test Pitcher'."

"Bullshit. Churchill was laced on brandy his whole life."

"You can make decisions drunk. But you can't plan shit... you get angry and give up."

The Pre-Test Bong Hit was a concept championed by a friend named Hanley, a six year junior who lived in a dingy apartment downtown. Hanley believed that after you'd been in one chemically altered state for long enough, you became 'sober' within that state, and best able to function only when so twisted. You weren't an addict. You could perform sober, just not quite as good as you would high. Following this logic, Hanley ripped multiple bong hits before every exam, as though he were on his way out for the evening, or ready to start a Simpsons marathon. I thought Hanley's theorem specious, and offered his own atrocious academic record as proof it was fundamentally flawed. But the fact was, I was biased, and scared of it... If I add up nearly all of the weekends since I was 16, plus the entirety of law school and college, I'm left with the conclusion that I've spent about a fourth to a fifth of my adult life well out of my mind. As a Junior in college, it would have been about one third of my adult life. Since alcohol was my primary alterant, under Pre-Test Bong Hit logic, my choice of substance had robbed me of years of use of a great talent my pothead buddies enjoyed. I shudder to think how much further I'd have gotten in life had I smoked more dope and drank less...

"I'm going to the bar. You in or not?"

"You want to try to hook up with Jill Kelly is all you want... You using the house card?"

"Allright."

"Maybe one or two drinks."

One pitcher turns into two, which turns into a table full of people, which turns into trays of bourbon shots. The tension snaps - the tendons release, the teeth stop grinding, the stomach settles, the tremors and cold sweat leave. You're back in the moment, holding court in your palace of smiling, red faces... a million miles from worry about the possibility that somewhere, people you barely know could be signing papers to have you arrested, thrown in a cell and charged with pointing a weapon at a person to whom you've never so much as nodded hello. You're invincible, and when your partner in crime grabs your ear and tells you he's got a plan - half spitting it on you through Jim Beam and Parliament fumes - it sounds like the most brilliant thing you've ever heard...

"I think we should reach out anonymously, you know, and... try to settle the thing, before it gets anywhere... No admissions... fold it into a global truce. Make it part of a larger dispute. Bury it, like a minor battle in the war between the houses. Take the focus off what we did and make the war the emphasis. Look like peacemakers."

Sounded good... solid reasoning, lots of complex words. I'd defer to Les - he was an Economics whiz with a phenomenal grade point average. And I was looking at Jill sitting at the bar, trying to figure out how I could get a repeat performance. I'd hooked up with her the week before totally out of the blue. One minute I'm drinking, then everything gets blurry, then suddenly she's next to me, at this very booth. Sometimes it happens like that... Problem was, I forgot a condom. But I was ready tonight.

"Sounds... uh... great." Jill wasn't wearing a bra, and I could clearly make out the outline of a nipple under her thin white shirt. "How, uh, are you going to do it?"

"I got a plan. Izz under control."

To Be Continued...

----------

¹ Which effects no forward progression, when the decrease in realization accompanying rate hikes is factored in.

² I'd shudder to estimate how many laid off workers could have been paid salaries with my billings in senseless cases that should have been settled early and recoveries in wrongheaded shakedown cases I've brought against businesses.

Posted by PhilaLawyer at 12:28 AM

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