Witness Preparation - Part 3 - September 20, 2006

I didn't see Les until the next afternoon, at lunch. It wasn't a pleasant meeting...

"Please tell me you didn't send this."

Les looked liked death had taken a holiday. "To be honest, I can't remember if I had a pledge take to the mailroom or not."

"What were you thinking?"

"Jones and Jerry stopped by and we smoked a couple blunts and the thing kind of wrote itself... That triple bourbon and coke put me over the edge."

"They served you a triple?"

"You have to know how to ask."

"This isn't bourbon... I mean, did you smoke the fucking 'Greens'¹ or something? Goddamnit."

"I don't know."

"Never plan anything drunk, eh? You violated your own rule."

"This is a mistake in execution."

Normally, I wouldn't be able to even read the text of the letter I was holding in my hands from my fingers trembling. But before I finished the first line, I knew it was Doom, and there was no use getting nervous. All fear left my body. I reverted to that primordial calm people feel when a tiger or bear has their head in its jaws - the body's instinctual coping mechanism when The End is near. As I read it aloud, Les and a few brothers left at the lunch table alternated between snickers and belly laughs...

To My Little Pakistani Friend,
Please take this as a peace offering, aimed at resolving the ongoing feud which has cost both our houses so much needless pain. The suffering must end, and the brothers of ___________ believe it should end now. As Patrick Henry said at Gettysburg, 'War is cruelty. There is no use trying to reform it. The crueler it is, the sooner it will be over.' This war has been cruel enough.

We are sorry that the incidents of this morning may have offended or hurt you in any way. _________ does not condone such a vicious attack upon the valued members of our Pakistani community, nor do we tolerate discrimination against people based on weight or sexual ability. You may rest assured that there will be no further gunplay, or demands for public exhibitionism directed toward you (not a comment on you, but a recognition of campus and, we believe, Commonwealth law).

Please let us know if you accept, so that this pointless violence may cease.

Most sincerely,

The Brotherhood of _______________

"Pakistani?!"

Les just shrugged. He'd written a letter worse than the crime itself.²

"We're being expelled... you realize that." I threw the letter in the air and trudged upstairs to watch a rerun of "The Wonder Years" and think about some, any, lie to help us dodge the impending shithammer.

"It's not a big deal. They probably didn't even pay attention to it."

"Dude, get out of the way. Kevin's working it with Winnie."

"You're overreacting. We didn't hurt anyone."

"'Hurting' someone isn't the issue, dude. It's the fucking 'Iraqi'-- and now, 'Pakistani'-- shit. Some people get fucking bent about that ethnic crap. We're going to get strung up by those freaks who went nuts at that thing at __________ Auditorium last year."

The "thing" was a "gender differences" panel on which I was one of a couple token males. It was billed as a "panel discussion," but it was actually just an excuse a crowd of shrill, sexually confused womyn to hurl tomatoes at a couple penis carriers. A hulking woman in a smock leapt from the audience and started us off - "When you're around the keg, which do you discuss more, our breasts or asses?" It went downhill from there - "Where do you get off judging my ass to your friends?" "'Betties?' 'Hotties?' You don't see that as sexist?"

I got the hook after an exchange over sexual lingo. Trying to explain the endearing subtext of verbs like "tagged," "tapped" and "nailed," I pointed to Les, seated in the nosebleed section. "My friend Les is Spanish, but he looks Italian. I call him 'Greaseball' all the time, and he calls me 'Whitey.' It sounds bad, but it's just funny."

Not in that crowd.

The whole episode was an embarrassment, and I cringe when I recall it today. I'd been given a chance to speak truth to power... to stand athwart the bullying PC dogma of these acned activists and let them know I was more than a goon in flip flops and a filthy baseball hat... And I'd blown it. I'd forgotten Nigel Tuffnel's wisdom when I needed it most... How in the hell had I managed not to say what needed to be said - "What's wrong with being sexy?"

Les knew exactly what I meant when I said we'd be "strung up"... Hell hath no fury like the politically sensitive crowd with its panties in a bunch. The people who run colleges know we're dreaming of late breakfast at Denny's or envisioning the most attractive person near us fucking us when they teach those seminars about how the Native Americans had a more advanced society than Europeans, or Capitalism is destroying the world. They know the fantastic lefty politics they preach are recalled for brownie points in papers and exams and forgotten almost immediately afterward. But when you pull shit like we did, you're rubbing that reality right in their faces, reminding them they're fighting a losing battle against an entrenched idiocy that views the degree as finishing school for battle in the salt mines of commerce. Stomping through their world shitfaced, chucking ethnic slurs, is wiping your ass with their mission statement. If our escapade hit the student newspapers, we were cooked.

"Fucking candyass!" Kevin Arnold had once again failed to score with Winnie.

"So I guess you didn't hook up with Jill Kelly last night..."Les was still standing next to the television.

"I hooked up with her. I did some work downstairs and then she said she felt sick, so I got Heismanned for the rest of the night. I left at, like, 5:00 or something like that..."

"You did not chow Jill Kelly."

"Why?"

"She gave Carlton gonorrhea... toxic box. Huge bush, right? Didn't smell all that great, right?"

It had been dark, and I'd been Keith Moon drunk, but the memories came back... Les was describing my prior evening at Jill's as though he'd been there. You don't forget a bush like Jill's... it crawls up your nose like ivy, gets stuck in your teeth and grasps your lips like velcro. The smell isn't going to flip your gag reflex, but even to a whiskey numb nose, it smells a shade past it's "sell by" date. I recalled attacking hers with gusto, and now I discovered I'd been sucking a bacteria sponge.

"Why the fuck didn't you tell me at the bar?"

"It's common knowledge."

Les got back to the task at hand... "We could say someone else wrote the letter."

"No, we can't. Who the fuck else would know those details? We go with it."

"Go with it?"

"Yeh, we spin it to our advantage... We do what Christian did Freshman year in Bio 101."

Christian was a brother from Norway skipped his entire second semester of Freshman year Biology 101 classes to fuck his crunchy girlfriend and rehearse "Ballad of the Thin Man" and "John Barleycorn Must Die" with his folk band. Realizing he'd no way to escape an "F," Christian did the only reasonable thing he could... He smoked a joint, swallowed five fingers of whiskey, waited for both to take optimal effect, opened his front door, strode across the academic quadrangle, stubbed out his Camel Light on the steps to the Infirmary, marched into the Psychological Services Office and announced himself an incorrigible marijuana addict in desperate need of help. Nevermind that marijuana isn't technically addictive; one call from Psych Services to Christian's biology teacher and Christian was allowed to drop the course, as though he'd never taken it. He strode back to his room a pitiful victim of an insidious drug... with a now sterling transcript and a grin that cramped his jaw.

Les looked concerned. "We admit it?"

"Fuck no. We deny it like crazy. We just acknowledge they have a case against us. If we have to compromise and eat some punishment later, we can say it was a hedge, not an admission. But the first step is to get our stories straight."

"Alright."

"Gonorrhea can't get transmitted into your mouth or eyes, can it?"

Anyone who's prepared a client to give testimony knows you don't ask open-ended questions in the process. Questions lead to answers, which lead to admissions, which lead to problems for everyone. If you even sense the client is about to say something that contradicts his claim - that crumbles the foundation of his case - you stop him before he finishes his next syllable. You have to learn the facts that could hurt your client's case, and be prepared to address them, but you can't learn the answer to the $64,000.00 Question - whether your client is lying. You can lose your license for suborning perjury, and are technically obligated to advise the Court of it. The only way to thread this needle with the at least a dozen or so liars you'll represent during your career is to remain ignorant of the liar's lies. You can't even have a scotch-soaked heart to heart off-the-record talk with him about "what really happened." You only believe the story that will win his case. Some cynics call this "willful ignorance"...

During preparation, you say things like "If we can convince the Court that this happened, we will be successful," or "We need to convince the Court that the following occurred..." The burden's on the client as that point. You make certain he understands the goal - a recreation of the facts to support his case. If he agrees the facts are as you need them to be, and doesn't tell you he's lying, and you have no independent knowledge that he's lying, you're not lying. Everybody's covered.

You then ask the client a series of soft cross-exam style questions to hone his story to the fine points you need to win the case, and lecture him about his ethical duty not to speculate about facts which might damn your case. "You weren't there when that provision of the contract was discussed, were you? So it would be speculation for you to opine as to the benefit of the bargain between the parties because you can't be certain the parties didn't have conversations outside those you were present during? Testifying as to what you understood to be the benefit of the bargain would be inappropriate. You can't be sure you wouldn't be saying something inaccurate which harms either side unfairly. The only response you can give would be "I don't know." And if you can't be sure about something, the only thing you can say is 'I don't recall.' Remember, no speculating. That's against the rules."

Les and I had it easy. There were no licenses to lose or games to play. We had the luxury of being direct with one another - the freedom to honestly build our lie.

"Here's the drill. The story's simple. We didn't do it. Somebody did it, sure. But it wasn't us. Nothing tricky to recall. Deny. Deny. Deny."

"Where do we say we were?"

"My room, on the other side of the house. Nobody ever goes in there, so nobody in the house would even know we were lying."

"What were we doing there?"

"We were just hanging out."

"Two guys... at 9:00 a.m. on a Sunday?"

Les was right. It was weak... intentionally so.

"It's vague. They'll suspect bullshit, and we'll act like we're concealing something. They'll dig to find out what we we're hiding or some hole in our story. We'll long-line them with a sympathetic red herring."

"What's the red herring?"

"We're dope victims. We couldn't explain what we were doing because we were smoking pot in my room when all that shit went down. Automatic built in excuse if we fuck up a detail in the story... 'I was superbaked and still drunk... morning after formals... I have a 'problem.'"

"That's the dumbest--"

"They think house is a bunch of drug monkeys anyway... It's perfect. They'll make us go to counseling and that'll be it."

"It's contrived, and the dope thing's gratuitous."

"They have to win, dude. Somebody's gotta get punished for something."

"What about the chicks?"

"What about them? No one knows any chick was there except us, and We. Weren't. There."

Letting the girls to get dragged into this thing would be a disaster. Trapped in a landslide of trouble, the natural chickenshit tendency is to drag as many conspirators as possible down with you. This is folly. The more people you drag into a thing, the more divergent stories and potential confessions... the more people blaming you to save their own asses. Where you might have walked alone, a conspirator or two with big mouths put you all on the scaffold together. If Les and I kept the focus of the investigation on us, we controlled the investigators. We picked the blind alleys they went down. When they tired, we'd confess to being hopeless idiot potheads. In 80% of zero sum games like this, after a while, one side finds itself playing to "not lose." They don't start that way, but if you make their job difficult enough - if you dig in and refuse to acknowledge guilt, or the absurdity of your position - they'll start looking for any easy plea bargain they can bank as a "win."

We didn't have to give them a drug admission. It could have been about anything, since it was really just a read-between-the-lines confession of the entire crime, structured to avoid the capitol penalties of the bigger offense. But pot fit under the circumstances... Why not play it safe? Nobody involved - not the school or fraternity people - wanted the PC hangmen involved. Everybody wanted an easy way out. We'd all wink at each other and put the thing behind us. Win/Win.

"Create a second crime as an alibi? This is really warped..."

"Not really. It's justified. He threw the bottle through the window--"

"Wellllll..."

"His house threw the bottle through the window. And I'm not getting expelled for this. I'm not fucking up my college career for one judgment lapse. If this were the 70s, this'd just be a silly prank. It's not my fault a few freaks take this shit so seriously... This is the only thing we can do."

The investigation plodded along as ineffectively as I'd hoped. All inquiries focused on disproving our alibi. Williams dragged things out, dodging calls from the inquisitors and giving noncommittal responses when pressed. Les and I eventually admitted through him that we hadn't accounted for what we were doing that morning because we couldn't really recall, as the embarrassing fact was, we were sitting around getting high to kill a hangover when it happened.

We were told to clean up our acts, and suggested to attend workshops on diversity and substance abuse. Of course, the State Police, the school, the fat little man, his house, our house... anyone with above mongoloid intelligence exposed to the thing knew we did it. At the time, I thought we'd slipped the noose purely because the people wielding the shithammer were just too lazy to chase us. It seemed wrong that we'd get away based on pure endurance, rather than the merits of our bullshit. The last decade in the law business has shown me little we knew... or how much we knew, and didn't realize at the time. The best lies - the kind people pay lawyers lots of money to tell, don't withstand scrutiny - they avoid it altogether.

Les and I had stumbled ramshackle into a strategy people pay attorneys, consultants and PR men millions of dollars to employ when they're caught taking bribes, screwing young boys or driving Hemingway drunk, frothing with Anti-Semitic gibberish. We'd changed the issue, played the victim, blamed it on a drug and exhausted the people chasing the truth. So now, 14 years later, as I sit in meetings and listen to lawyers tell war stories about their great strategies - how they massaged facts proving their plaintiff a fraud, deflected the focus to dodge damning evidence, or "papered the other side to death," I smile and laugh to myself, thinking about the feeling of that rusty gun in my hand... There are only so many ways to lie, and unless you have shit for brains or led an incredibly dull life, you'll have picked up most of them by voting age. I spent 3 years, $__,000.00 and a decade listening to lawyers discuss in 50 cent words a handful of elementary concepts as apparent as the sun to the average gin-addled 21 year old.

The only thing that stops me from laughing is pondering whether I'm the punchline...

...or Jill Kelly's pussy.

Postscript:If you want to see how lawyers "prepare" a witness from the witness' eye, read Devil Monkey's excellent "Courting Disaster," posted on September 17. Our two pieces were written without each other's knowledge, but wound up dovetailing into the same insight. Read his site for a different angle on the process...

Yours in Jesus,
PL
----------

¹ Marijuana "shake" or, pathetically, random herbs (yes, basil, oregano, etc...) soaked in liquid PCP, which was, for some reason, popular on campus at the time.

² When you're an associate, you'll hear 'document everything!" over and over from partners. This is a half-truth. What those partners actually want you to do is document every filing extension the other side grants you, and every agreement that helps you. But they don't say it that way because, by omitting that limitation, a new associate hearing the directive will document everything, creating endless .3, .4 or even .7 time entries on their system for writing the letter, and a server's worth of .2, .1 and .3 entries for sending e-mails about the letters to the partner, who will in turn bill his own pile of hours for reading those e-mails. Kaching, kaching, kaching...

No one documents his every move. The only letters lamentably worth writing are of the "CYA" variety. I say "lamentably" because, writing the standard whiny CYA letter is like waking up in the middle of a wet dream about fucking your first cousin, or stealing change to pay for cigarettes from the Cystic Fibrosis money jar when the 7 Eleven clerk turns his back. If there's any task lower, anything that makes you feel more a cur, or hopeless and disgusted by the terminal flaws of humanity that require such correspondence, I haven't seen it. As I write them, I can almost visualize the words being spoken in a bitchy nasal voice - the sort of genetically beta male yelp that begs a right cross to the face of its speaker on principle alone. "I am writing to confirm that you said you'd agree to _____ and _____ and that I agreed only to ____ and ____." "If you don't do that, I am going to tell the judge on you." I dash those letters off and throw them at my assistant sign them for me... I can't even read the things.

Posted by PhilaLawyer at 1:03 PM

Print Friendly · Digg it · del.icio.us · StumbleUpon · Netscape

Comment Policy:

Anonymous comments are allowed. All anonymous comments and comments from those not registered with TypeKey are moderated. They WILL NOT appear until they are read and approved by a moderator.

It is strongly encouraged that you sign up and login with a TypeKey account. Once you do that, your comments will be immediately posted.