Note: I’m going to try and tell this true saga while keeping it vague enough to protect the innocent. But if anyone figures out who I’m talking about, most of it is in the public record in the various courts anyway. I’m going to publish it in first draft form because I’m lazy and need to just get something down. (I have a stack of handwritten stories waiting to be recorded somewhere.)
The case came in as a call for assistance from another civil law firm in the town an hour over.
They had this big-ass case that was gonna require a lot of lawyers on some complex issues and in our judicial district, our small firm was known for doing that sort of stuff.
It’s relatively small town country law. Most of it works according to systems of friendship and informalities. Cases that needed extensive motion lawyering and appellate work were our thing.
Let’s call the protagonist Wild Bill (WB). WB was millionaire who at the time we met had been accused of about $34M worth of fraud, had not been charged with anything, but had had his two businesses and his own and his family’s assets (worth about $17M) frozen and put into a conservatorship.
WB had two lucrative gas stations near the state line. They were placed right where people went on holiday and wanted to gas up before they crossed the state line into the world of higher gas prices. He was making a killing.
They accused him of tampering with the gas pumps to defraud tourists stopping for the cheap gas.
The State Bureau of Investigation (SBI) had been crawling WB’s ass for a year. They had records and charts and expert accountants with models. They had video of his employees destroying written records in a bonfire. There was a weights and measures can with a false bottom, and the inspector who had been bribed to use it to fake the results had already killed himself.
All in all a pretty compelling criminal case sitting there, and yet no criminal charges had been filed.
The essential thing about civil forfeiture is that it’s a civil case brought by the state to seize any property that might be related to a crime. The procedure is that you have to go to civil court to win back your property. The criminal part is separate.
A private law firm who I’ll call Pilfer, Occupy, and Sell LLC (POS) was our primary enemy. They were working with the SBI and had come in and frozen everything and started operating the two gas stations.
(You might notice that there is this weird mixture of the State and the POS.)
One of the problems here was that if WB testified in the civil case, everything he said would be used against him later and he would lose his right to take the 5th Amendment in the criminal case. But there was no criminal case. That’s where they get you.
A search of the law, and we realized POS had done this same exact game on another company some years prior. They seized everything, took over the company, ran it into the ground while collecting enormous fees, and then the SBI jumped in and did their criminal prosecution thing.
The lawyers for that poor defendant made it all the way to the State Supreme Court but, get this, because the POS firm had run the business down to zero, the issue was moot.
Ah, but one justice, a woman I’ll call Justice Name wrote a concurring opinion where she expressed her feelings that the issue of whether this was a constitutional forfeiture law was still a live issue.
So the legal team was four of us civil litigation folks from two firms. I was the junior partner, and the other firm had a senior and junior partner. There were about seven criminal lawyers there too. They were top notch.
We all met and broke out the duties. My job was to analyze whatever data we could get, analyze and cross examine their expert accountant on his Damages Model, and do the oral argument at the State Supreme Court on our motions about this being a ludicrous unconstitutional situation.
So first a junior guy from POS takes me out in the woods to this storage shed filled with bank boxes. “Here’s the data from the gas pumps.” It was miles of that old computer paper of unreadable numbers.
“Ha. Ha. I’m not stupid enough to even look into one of these boxes. This had to have be printed from some file, so give me that.” Which they had to, and I had this massive file of gibberish.
But a week’s effort at some of the finest data extraction I’ve ever done on Excel, I converted the gibberish into the truth.
In the meantime, all the lawyers went out to WB’s estate to talk to him. It was a luxurious estate by the water, and there he was a bitter old man.
We had learned that he had been in prison decades prior for the fraud of turning odometers back on cars and selling them.
But he told us that here he was completely innocent, that they had taken everything from him, that he couldn’t even buy a gallon of milk, and that he would kill himself before he went to prison again.
A couple of days later I showed all of the lawyers what I could see from the pump data. It showed marked irregularities around weekends and especially near holidays.
So the client was full of shit and lying to all of his lawyers. One of the criminal defense lawyers asked me “Can they show what you just showed us?” “I doubt anyone did the process I did, but for all I know they could have created reports from the system with the a few clicks.”
The next scene for me is the deposition of their accounting expert about his model that showed $34M in fraud. As with the pump records, they handed us a paper report and acted like I wouldn’t ask for the file.
Which I did. And here’s the thing. The world of litigation lawyers tends to be a highly specialized thing. Like doctors, most of them know tons about what they do but at the expense of everything else. (I’ve been an auditor and a lawyer, the two natural enemies of the doctor).
The result is that most lawyers don’t expect another lawyer to know much about Excel spreadsheets. But I spent two nights going through every cell of his model and came ready. About twelve of us fit at the boardroom table with the window overlooking the marshes and sea, all of the lawyers, the accounting expert, and me doing the questioning.
It’s one of my favorite moments of lawyering. As we were all assembling and introducing ourselves, I asked about where he worked just in an off the record polite way but also mentioned that I had worked for Big Accounting Firm. He got visibly nervous.
I’ve written whole essays about this deposition, but the gist of it is that I started steamrolling him pretty quickly to the point where the other lawyers were laughing, these old guys watching this expert trapped by this young unknown lawyer. The expert ended up sloughing the whole model off on his assistant (which meant he couldn’t testify about it), but I kept on digging because it was funny.
So the data from the pump tells us our client is guilty and lying to us. But we’ve thrown out their Damages Model.
So now onto the question to the State Supreme Court on whether any of this was Constitutional.
The legal team gave the oral argument task to me and the junior guy from the other firm. Understand that laws don’t get thrown off the books based on oral arguments. You have about eight minutes to pound the table and the issue is resolved by legal briefs from all of the stakeholders.
I was mostly in charge of it because I had been through the Supreme Court system prior. I carried the briefcase containing briefs I had written for the former Governor of our State who argued it in an unrelated series of cases. (its own war story essay).
So I had learned from the very best of how it all really operates. (It’s a trip following a powerful but consummate politician around).
At the Supreme Court there is this little dance of signing in and then going into the lawyer’s lounge next door where the proceedings come through on speaker, but where the real game is to psych each other out while you wait for your eight minutes.
I navigated this and was happy to pass along to the much younger junior guy (not sure he even had ever done a trial) the simple rules.
90% of lawyering is about exuding confidence, and knowing the little ceremonies gives you that.
So the various firms in our team had submitted various briefs. We were relying on the argument that Justice Name had made in the prior case, and my job was to pound the table and point out to her “here in fact was the case you asked for. Our state laws are far beyond even the Federal version of civil forfeiture and to that extent are unconstitutional. And if this court doesn’t address this now, POS is going to keep doing this.”
My confidence was shaken from the start because as I stood before the panel of justices on their riser with their name plates and all, I look around for Justice Name so I can point my argument at her, and then I see that she is actually Justice Nome and that I had misspelled her name every time I used it in my brief.
That’s like nightmare stage fright material. But I summoned the ludicrous self-confidence I had seen from the Governor and just waltzed through.
Here’s where it twists.
On my way out in the elevator, a guy starts asking me how to spell my name. Turns out he’s a reporter from the large regional newspaper, and damn it if two days later there’s not a story in that paper but also picked up in the neighboring state’s major paper. It quotes me at length. I was making an emotional plea, not a legal argument, and has me talking about him not being able to buy a carton of milk.
Idiot Wild Bill read the article in the paper and doesn’t understand it. He thinks junior lawyer goes to the Supreme Court and talks about milk is legal malpractice and fires us!
If you are a lawyer and a client fires you, unlike in the rest of the world, this is a moment of happiness. The new law firm sent some junior guys to get the boxes of files, and I was happy to hand them away. The guy was a crook who was lying to his own lawyers. You can have that shit.
Over the next couple of months the court got briefs from fancy organization like the State Club of Public Defenders, the State University Law School and others.
And then we get the ruling in the mail one day that we won. We had freed up his property and his business.
But most important we had gotten some shitty law thrown off of our state law.
Epilogue:
Once the property was released from POS, the SBI came in with a raft of charges.
Wild Bill took an overdose of benzos before trial. (like he said he would)
I hope I'm commenting on 'Law War Story' but I think I might be commenting on your whole 'Inkspread'
As I've already written in reply to one of your comments on my Substack (I think it was 'Wemyss'.) I read through your work before commenting yesterday (21/09/23). I was a bit laconic, which is unusual for me, many would say fortunately (that I was laconic, not that it was unusual). Somewhere I'd set myself the goal of getting a post or two out for the equinox and then jammed myself into a corner by putting it in writing and then made quite sure I couldn't back out by posting it, i.e. I posted it, so I couldn't back out (without losing face). So, that's why I was unusually laconic.
Having spent the last days and weeks wondering why the hell I didn't get on with the job I knew I was going to do but put it off and procrastinated right up until the very last minute, so I'd have to concentrate all my attention on it and wouldn't be able to indulge sudden extraneous indulgences, however alluring they may be, I'd got on with it the day before and it had picked up steam to keep me going with only a short break to wee and make a coffee or two a couple of times. Fortunately, I'd made some really good pasta in a great sauce the day before so all it needed was a little nuking and I was good to go. I've eaten it all now, so I'm not sure what I'll do about food today. I think I got enough done yesterday, so I can relax and maybe cook something. Shit, I'd better get something out of the freezer. (I hate 'defrost' on the microwave. They should call it the '(Cook) Edges Only' setting.) But that's all beside the point. Now, you see why I should avoid these indulgences if I'm to get anything done. And people, as a rule, just resent it and think I'm being a smart-arse to make myself feel good without bothering to worry about how it makes them feel. But that's not actually the case at all.
Anyway, the point that kept popping up in my mind yesterday about your writing was the great difference I felt reading about what you had enjoyed doing and about what you had not enjoyed doing. I found it really interesting to sense how your attitude to what you were doing, and how you felt about it, made such a big difference to how much I enjoyed reading it. Before I'd had an e-mail notification to say you'd liked my comment and replied 'Me too,' which I don't have to stop what I'm doing to see, my attention had kept returning to your 'Law War Story'. Specifically, I remember the thing that really made me think: it was "...state laws are far beyond even the Federal version...". I'd never thought of that before. I'd realised immediately, of course, that there's absolutely no reason why this shouldn't be the case — I understand (at a very basic level) how State law and Federal law work together (to complement, not contradict, each other) so, in theory, there's no reason why State law shouldn't advance beyond Federal law at any given point. It makes sense, it just hadn't occurred to me, and I really enjoyed finding out by thinking about it. Probably, I think, because you enjoyed finding out about it too.
That's it, really — all I wanted to say: I think your post about lawyering was so much better than the two previous about bean counting because you enjoyed it and that enjoyment comes across in the writing. It's a really good point I hope to learn from (about writing) myself. So, thanks for that.