Legally Speaking: Expect the Unexpected

John G. Browning Feb. 18, 2009, 3:35pm

I've had my fair share of moments in court dealing with the unexpected, like a witness who suddenly changes his testimony or a long-lost document that mysteriously resurfaces.

Once, I even had an opposing witness say that he couldn't swear to tell the truth because "my lawyer told me not to" (that lawyer had some explaining to do!).

Take it from me – if there's one thing you should expect, it's the unexpected.

New York Family Court Judge Timothy Lawliss recently experienced such a moment, when a doctor called as an expert witness took the stand and said that he couldn't swear to tell the truth, since "there is no such thing as the truth."

Dr. Bruce Kokernot elaborated, stating that scientifically he didn't recognize truth as an absolute, just something that was sought.

Judge Lawliss hastily improvised, crafting an oath that the good doctor would be philosophically comfortable with; as long as Dr. Kokernot affirmed that his testimony would be "accurate, correct and complete" and that he understood that testifying falsely could subject him to perjury, he would be sworn in as an expert.

Randy and Melissa Pratt found a different way to deal with the unexpected. The Bloomsburg, Penn., couple noticed last summer that a $1,772.50 deposit to their bank account showed up as $177,250.

According to police, instead of notifying the bank, they withdrew the money, quit their jobs, and moved to Florida.

Now facing trial on felony theft and conspiracy charges, Randy Pratt claims that he considered the money not as a bank error, but as "a gift from God."

Let me know how that divine providence defense works for you, Randy.
Twenty-nine-year-old Chicago lawyer Ari Madoff probably didn't expect to be contemplating a name change when he hung out his shingle. But that was before the recent billion dollar Wall Street investment scam involving the now-notorious Bernie Madoff.

Ari Madoff, who is not related to the accused scammer, has been doing a lot of explaining and disclaiming since the scandal broke, so much so that he's thinking of changing his name for the sake of his professional future.

Let's face it, a law firm slogan like "Madoff – the most trusted name in securities litigation" won't go over well.

Like many Guns N' Roses fans out there, I never really expected frontman Axl Rose to make good on his promise to release the album "Chinese Democracy" in my lifetime. Apparently, neither did the good folks at Dr. Pepper.

In March 2008, they rolled out a marketing campaign that poked fun at the 17 years in-the-making album, promising a "free soda" to "everyone in America" if Axl Rose released the long-awaited "Chinese Democracy" in 2008.

Shortly before the end of the year, however, the album finally came out. Dr. Pepper made good on its promise, posting a coupon on its Web site for a can of soda, with one catch: fans had 24 hours to go to the site and print out the coupons.

So many people rushed to do so that they overwhelmed the site, causing it to crash. Disgruntled consumers started blaming the band, prompting Axl Rose to threaten a lawsuit against the soft drink giant and to demand an apology.

Dr. Pepper says it has tried to live up to its end of the bargain by extending the window giveaway, adding a toll-free line to handle coupon requests, and other measures. Despite this, Rose hasn't backed off the threats of litigation.

Here's some free legal advice, Axl: stand down. You've got enough to deal with already – the album has gotten mixed reviews, has had disappointing sales, and the Chinese government has lashed out at the title as a "venomous attack" on China. Welcome to the jungle, Axl.

Appellate judges see a lot of arguments raised in an effort to persuade them to uphold or reverse a result at trial – evidence came in that shouldn't have, evidence that should've been admitted wasn't, and so on. But in 2005, California appellate judges in Ciolino v. Ryan encountered a rather unexpected argument from John Ryan in support of his contention that the jurors had been confused by the instructions given by the trial judge during his trial on fraud charges.

In his brief, Ryan said "If page 2269 of the reporter's transcript is held face down and shaken, thousands of confusion flakes will drift to the ground like snowflakes falling on a snowy winter's day…"

Evidently, the Court of Appeals didn't find any such "confusion flakes;" they denied his appeal.

The people who draft the laws aren't immune to dealing with unexpected turns of events either. Florida legislator Tim Smith faced some criticism when, as a Fort Lauderdale city commissioner, he successfully pushed for a requirement that bike owners register their bicycles with the city.

The justification for this added bit of paperwork was that it would deter theft, since registration would enable police to track and return the stolen bikes.

Unfortunately, however, Smith himself became the victim of a bicycle theft – and he had to admit that he himself had never actually gotten around to registering his bike.

Similarly, in 2005, the New Mexico legislator who had drafted a dog owner responsibility law (the "Dangerous Dog Act") found himself technically guilty of violating that very law when his dog committed an attack – on him! Talk about the law coming back to bite you.

Finally, something really unexpected happened to public defender Jeffrey Martin on Jan. 26 when he was defending suspected home-invasion robber Weusi McGowan at trial in San Diego Superior Court.

Upset because the judge refused his request to remove Martin as his lawyer so that he could represent himself, McGowan suddenly whipped out a plastic baggie filled with human feces.

He smeared it on the lawyer's face and hair, and then flung more excrement at the jury box, narrowly missing one of the jurors.

The judge declared a mistrial, dismissed the jury, and ordered that McGowan would have to get a new lawyer.

Poor Jeffrey Martin – I've had crappy days at trial before, but nothing like that.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

More News