When I was a young lawyer, fresh out of law school, I worked as a law clerk for a state district judge in small town Louisiana. My judge had sat on the bench for close to 20 years. Prior to serving as a judge, he had worked as a prosecutor for 10 years or so. So, he had a lot of court room experience. We had a certain day each week dedicated to motions hearings. We had all sorts of cases come through for their one day in court on some motion. One day, he asked me about a case he had heard that day.
He asked me what was the story behind this child support case? I had no idea what he was talking about. He quickly rattled off the "back story" to what seemed like a routine request for an increase in child support. He said the husband had cheated on his wife and was now married to his mistress. I asked him if he knew the family. No, he said. How did he "know" these things? the answer is he did not know. But, he was drawing inferences based on what he had seen during a 20 minute hearing. His message to a young lawyer then was to look deeper than just the pleadings. I did not realize it then, but he was just starting to teach me to draw inferences where it makes sense to do so.
So, today, I find it a little surprising when judges do not draw inferences, when they seem to insist on some higher level of proof. A lawsuit has been winding its way through the system regarding some property owned by the state south of downtown San Antonio. The parties had their trial this week. The trial lasted for several days.
The facts concern Lisa Wong, owner of Rosario’s Cafe, who was bidding on the former so-called DPS museum. The former museum sits across from her restaurant. She offered $1.69 million, a full $90,000 more than the successful bidder. Karl Johnson, a lawyer, was tasked by the state to sell the property. Mr. Johnson hired David Held to work as real estate agent. Testimony in trial showed that Mr. Johnson would receive $22,000 more in commission if he sold to the second highest bidder, Paul Covey and his son. Mr. Johnson insisted that difference did not affect his decision. He testified that he was concerned that the Wong bid would require a 90 day hold on the property before its conclusion. But, the Covey bid would only involve a 30 day hold.
The Attorney General sided with Ms. Wong and was asking the judge to rescind the sale and to have the sale start all over.
The testimony near the end of the trial showed that Ms. Wong submitted a back-up bid in case the Covey deal fell through. Mr. Held, the real estate agent retained by Mr. johnson, altered a material term of the back-up offer. He "whited out" a provision he did not like. Going into the trial, no one knew who did this or why. The Judge asked about the change.
In the legal world, it is not kosher to change material portions of any agreement without making the change obvious. We usually make "pen and ink" changes. In the legal business, it would be considered unethical to use "white out" and tell no one.
After the judge insisted on getting to the bottom of this change, Mr. Held took the stand and admitted he had made the change. Ms. Wong’s lawyer asked incredulously why Held had not spoken up when he heard Mr. Johnson say he thought Ms. Wong was up to some "trickery" when he saw the alteration? Mr. Held responded that he did not recall Mr. Johnson blaming Ms. Wong for the deletion. He said it might sound crazy, but he mistakenly thought Wong or her agent had deleted that section – the section Held himself had deleted. He said he had forgotten that he had deleted it with white-out. He said he knew that sounded crazy. See San Antonio Express news report.
Yes, that sounds crazy. In fact, it sounds like Mr. Held was impeached – that is, his testimony was shown to be less than credible. Yet, Mr. Held and Mr. Johnson won the trial.
It is very rare to get damaging testimony like this in trial. "Gotcha" moments are actually quite rare in court. One would think the Judge would consider Mr. Held to be far from truthful or very forgetful. Since he was employed by the lawyer Johnson, one would expect Mr. Johnson to suffer a similar evaluation. But, Mr. Johnson and the sale to the Coveys won
Even now, I can see Judge Jackson from small town Louisiana shaking his head.