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Posted in In the News on March 9, 2016   |  by Gary Burger

Zealous and Creative

Missouri Supreme Court ethics rules require that “a lawyer should act with commitment and dedication to the interests of the client, and with zeal and advocacy on the client’s behalf.” As a practical matter, in addition to the ethics rules, the only way a lawyer can be successful is to be a zealous advocate on his client’s behalf.  A plaintiff and his lawyer have the odds stacked against them in personal injury or other litigation; the plaintiff has the burden to prove all parts of the case and to persuade the jury to award them money against the “poor” little defendant.  It is also important to be creative in representing plaintiffs.  Here are some examples of zealous creativity.

I represented Debbie Stelzer in a rear-end automobile collision case against Leroy Jackson.  We won the trial in St. Louis County, Missouri, but the creative part of the trial came towards the end of the case during the cross examination of the defendant.  In any soft tissue automobile case, the defendant tries to minimize the force of the impact and property damage to try to show that a little fender bender could not have caused the problems in the injured plaintiff.  So, I asked the defendant whether he had any property damage from the accident, he replied “No”.  Then I pulled out a document I had obtained from his insurance company showing that they had done an estimate on his older car for a little over $500 in property damage.  But the defendant denied he had ever seen it before.  Thus, the document could not come into evidence (you need a foundation and identification for a document to come into evidence).  The defendant insisted in cross examination that no estimate was done to his car and he had no property damage from the accident.  This lie fed the defendant’s insurance company lawyers position that the accident could not have caused the injury to Debbie.  The defendant got off the stand and the defendant’s case was done.  The judge wanted to give the case to the jury, but how were we going to let the jury know about the property damage estimate?

Well, I told the defense lawyer and the judge that the defendant should stipulate (or agree) to the document coming into evidence or I would issue a subpoena for a records custodian of Allstate insurance company to provide the foundational basis to get the document into evidence.  The judge told the defense lawyer to stipulate, but he refused because he thought he could prevent us from getting this into evidence.  The next morning before the jury was brought out, I told the Court I was calling to the stand the claims adjustor who had been sitting in the courtroom during the trial, as she was an agent of the insurance company and could testify about the damage estimate to get it admitted into evidence.  The judge then told the defense lawyer, “and when Mr. Burger calls her to the stand, he will have to ask her name, who she works for, what her job title is, and in what capacity she knows that this is a business record of the insurance company.  That’s what Mr. Burger was trying to tell you when he was asking you to stipulate.”  Well, the defense lawyer finally figured out that if he forced me to call this witness, the jury would know the insurance company was defending the case and would pay any judgment.  Insurance defense lawyers do anything they can in trials to keep insurance from the hearing of the jury.  So, the defense lawyer stipulated and I read the document to the jury, which was important to our victory in the case and proved the defendant lied about the property damage.

Then there was the time I represented New Beginnings C Star, Inc. in a lease dispute called Adbar v. New Beginnings. This was a complicated case that was tried and won in the City of St. Louis.  New Beginnings had leased a building in North St. Louis.  The Alderman for that ward did not want my client at that location and he used his considerable political muscle to prevent New Beginnings from moving in.  He had the City of St. Louis cancel and take back the occupancy permit that had been provided to New Beginnings.  I filed and won a lawsuit ordering the City of St. Louis to issue the occupancy permit.  The City did issue one.  But then the Alderman made another call and the City retracted the occupancy permit again.  I had the court order that the City be held in contempt, and the City issued the occupancy permit, again.  Meanwhile, New Beginnings had put in $50,000.00 worth of repairs and updates to this building.  The Alderman next contacted then State Senator Paula Carter, who called a director of the Department of Mental Health, Michael Couty, for a favor.  New Beginnings received all of its funding through the State of Missouri to help adolescents with drug and alcohol problems, and Michael Couty was the person who controlled the contracts, oversaw the inspections, and basically decided whether New Beginnings would be in business.  Michael Couty called New Beginnings and told them that they were not allowed to move into the new building, and if they did, all their contracts with the State of Missouri would be cut off.  Well, how can we prove that Michael Couty threatened New Beginnings at trial?  He denied doing these things in deposition - it would be inappropriate to do so.

At trial, among other evidence, I called Michael Couty to the stand.  He denied talking with Senator Carter about this and denied really knowing anything about it.  So Mr. Couty was asked, “How often do you call or talk to Paula Carter?”  And he answered hardly ever and very rarely.  Indeed, it would be unusual for someone like him to have a lot of contact with a State Senator.  Next question: “ Let me show you copies of you cellular telephone records that I have subpoenaed – Are these yours?”  He answered yes and admitted they were his.  I had obviously looked at these records before and found that he had called Paula Carter many times within three days right around the time period we said this all happened.  So, I got him to admit these many phone calls, told him this was Paula Carter’s phone number and asked for an explanation.  Mr. Couty had no real explanation and was caught in a lie.

Lastly, I tried an employment discrimination case called Yoshiko White, et al. v. Step Inc in federal court, in St. Louis.  The case was the subject of a front-page article in the Riverfront Times.  The case involved a social service agency, Step Inc., which permitted gross sexual harassment against the lead plaintiff in the case.  Then, when she complained about the sexual harassment and identified her three witnesses, she, and those three witnesses were fired within thirty days of each other in retaliation for complaining and just being witnesses.  This is not the way employers should handle complaints of sexual harassment or treat their employees.  We were able to do a lot of creative things in that case to show that the defendant had hired the harasser even when they knew he had a serious criminal record and other problems.  The real heat in the case, however, came when we were able to introduce evidence of a prior incident of harassment and improper behavior on the part of the bad employee.  We played the jury an audio recording that had been made prior to the harassment of our plaintiff.  This prior victim related how she was a drug addict and had come to the defendant for treatment, but that the same bad employee told her that he had drugs for her, took her out after a treatment session and sexually assaulted her.  She ran and hid under a truck until she could find a safe way back to her home.  It is hard to express in words how moving that recording was from the victim’s intonation, sadness, and anger at what had happened to her.  It was almost unbelievable that the defendant would have kept such an employee and would let him sexually harass co-employees and to continue employment there.

After two days of trial in which the lead plaintiff had testified and the tape had been played, Judge Mummert, brought the lawyers into his chambers and said to the defense lawyers: “Burger has just disproved your whole opening statement, why don’t you guys try to settle this case.”  Over the lunch break, the Defendants yielded and agreed to pay a significant amount to settle the cases.