I haven’t posted a war story in a while. I don’t even think I’ve told one in a bit, and that’s unusual. Lawyers are like veterans of one of those minor foreign skirmishes, we like to talk about our time spent locked in combat with other attorneys. Sometimes it’s because we’re fighting on the side of truth and justice. Other times, it’s because we’re trying to make the best of a bad situation.
Take Marcy (not the real name) for example. Marcy was an unemployment case. She had been let go from the medical facility she worked at for a litany of reasons, all of which she claimed were unjustified. Marcy had applied for unemployment, and, after her employer responded to the request, had been turned down for unemployment, being found to have been let go for cause. Marcy did not believe this was the case, and showed up in my office one day asking me to help her in front of the unemployment compensation referee’s hearing.
Marcy was one of those types of people you come to identify immediately. Too big sweatshirt with the name of some now-defunct night school “college” on it, stringy hair that had probably been within sniffing distance of a bottle of Pert Plus in the last month but you still weren’t too sure, sallow skinned with bags under her eyes. In fact, in later years I would be able to identify a “Marcy” immediately as an “ex-addict.” At that time, though, I was full of piss and vinegar and ready to believe my client.
This was the case with Marcy, who advised that someone from the employer would likely be present. Because of that, I wanted to make sure the case was in order, advising her to tell me everything and leave nothing out.
“Remember,” I would admonish her at the end of every meeting or phone call, “If there’s something you haven’t told me that’s related to this, I need to know about it now. If the first time I find out about it is at this hearing, we’re going to have a problem.”
“I know Mr. BoozyBarrister,” Marcy would answer, “I told you everything.”
Marcy was a lying sack of shit.
Now, for all that I rail on the need to be paid, and I’ll admit it’s often enough that you, dear reader, would be entirely entitled to envision me as Augustus Gloop from Willy Wonka swimming in a river of fees and client tears, I do take some pro bono work. Small stuff, the occasional tenant hearing in an eviction or, like this, an unemployment hearing. They’re quick, and normally painless, hearings where the employer almost never sends anyone but an HR representative who has no firsthand knowledge and whose testimony and evidence I can usually get excluded as hearsay. However, every blue moon, the employer sends a manager, co-worker, or someone who has some actual knowledge of the events leading to termination.
Marcy’s employer sent the manager. I discovered this when I walked into the referee’s office in my best off-the-rack suit and carrying my battered brown briefcase the day of the hearing. Like prizefighters, the combatants were in opposite corners. In one corner, weighing about 110 and wearing a nice pantsuit, holding a thick and imposing employment file, sat the Manager. In the other corner, weighing a combined 180 pounds, dressed in tattered jeans and hole-y t-shirts in direct contravention of the attorney’s instructions to “dress like she was going to church,” was Marcy and some beanpole motherfucker I’d never seen before with a goatee and a haunted look.
“Who’s this?” I whispered to Marcy as I sat next to her, leaned in, then immediately leaned back from the overwhelming odor of patchouli, thrusting a finger out at the beanpole who was now stroking his goatee and apparently counting the number of ceiling tiles.
“Oh,” she said, “That’s my boyfriend.”
“Why is he here?” I muttered again, pulling out a notepad.
“Oh, I thought he could testify for me,” she answered, smiling at her own strategy. There had never been any talk of a boyfriend or any other witness. Why was there a boyfriend here now and why was he wearing…
“Yes, Mr. BoozyBarrister?”
“Is he wearing an ankle bracelet?”
“He’s on work release, but they know he’s here today! They gave him permission!” She was positively aglow.
I looked him over, and decided that regardless of his actual name he would forever be known to me as Cletus. Cletus had three teeth visible when he smiled. Cletus had track marks on his arms. Cletus had the look of a man who would shove a can of Vienna Sausages in his pants at the gas station then amble outside proud of the feast he’d scored. Most importantly, though, Cletus was wearing a god-damned monitoring bracelet. In my learned opinion, Cletus wasn’t going to bolster our case if I used him as a witness.
“Hey man,” Cletus offered, “Pretty wild, huh?”
“He’s not testifying.”
“Why not?” Marcy squawked, forgetting we were whispering because the opposing party was literally across the room.
“Voices, Marcy, she can hear you,” I muttered, “Look, he’s not going to add anything to the case, I don’t think he’ll help the case considering he’s going to be testifying while wearing an ankle bracelet, and, more importantly, if everything goes right in the beginning of this case I won’t need any testimony, I’ll be able to keep all of their evidence and testimony out of the record.”
Please god, I prayed, let everything go right.
“You remember what I told you about documents, right?” I asked.
“If I don’t recall if it’s the exact same document I signed, I say I don’t know.”
“And you told me the manager wasn’t there for any of this, right?”
“Right,” she nodded.
“That woman over there, she’s the manager, right?”
“So she wasn’t there for any of this, right?”
“What do you mean ‘Except,’ Marcy? There’s no ‘except.’ Why is there now an ‘except?'” I asked, very aware the clerk had stood from behind the bulletproof glass and was heading to the door to the hearing room, getting ready to usher us inside and ending my chance for further, heretofore unnecessary, consultation with a client that had added the word “Except” into her prior statements.
“Well,” Marcy began, “There was that one meeting where I . . .”
“Marcy v. Rehab!” the clerk yelled, opening the door, “You can head on into the hearing room.”
Upon entry the referee sat everyone down at their tables and started his recorder. I handed over my business card, and glanced over as the smartly dressed woman from the employer began to shuffle through her neatly organized papers. Marcy, meanwhile, began to scratch her arm nervously while, behind me, Cletus blissfully prospected in Nose Shaft #2 for gold nuggets. The referee went through the papers, cleared his throat, and looked up.
“Alright, this is Marcy v. Rehab, File No. xxxx-yy,” he intoned, “Mr. Barrister is present for the claimant, and for the respondent…” he paused, looking at the smartly dressed woman.
“Ms. Manager,” she answered.
“Ms. Manager. The employer bears the burden in this appeal, is that correct? Alright. Now, Mr. Barrister, you’ve had a chance to review the record. Any objections?”
“Yes sir. We object to exhibits 1, 2, 4, 6, 9, and 12 as hearsay. These are all documents that were produced by the services center or by employees of the employer that are not present here today or were not present for the events they state occurred.”
“1, 2, 4, 6 are sustained as hearsay. 9 and 12 are…appeal forms from the employer signed by one Ms. Manager,” the Referee stated, looking up, “Are you Ms. Manager?”
“Yes,” Ms. Manager answered.
“You prepared these forms?”
“Were you present for the events described in them?”
“No,” she answered.
“Is the employee who was present here today?”
“Sustained as to 9 and 12. Any further objections?”
“No sir,” I answered, breathing a sigh of relief.
“No sir,” Ms. Manager stated.
“Who is that?” the Referee asked, pointing to Cletus.
“That’s my client’s boyfriend,” I answered, glancing back to find Cletus resuming both his mining and the counting of the ceiling tiles.
“Will he need to be sworn in?”
“Well, he can say…” Marcy began.
“No.” I answered.
“Alright Mr. Barrister, are you ready to proceed with questioning Ms. Manager?”
Ms. Manager was swiftly sworn in, and in short order I was able to establish that she had neither seen nor otherwise witnessed any of the violations of policy listed in the documents the employer had submitted. Hearsay, pure hearsay! As such, I was about to let the matter rest, but I asked the infamous “one question too many.”
“In fact,” I cross-examined, “you weren’t present for any of these infractions, correct?”
“Well, no, not these,” she admitted.
I heard the emphasis. I knew what the emphasis meant. I quickly turned to the referee.
“Nothing further,” I said, clearing my throat.
“I have something further,” the referee said, “What did you mean by ‘not these?'”
In these unemployment hearings, especially where there isn’t counsel present for one side, the referee is allowed to ask questions to get to the facts of the matter. This referee, based on the emphasis, had.
“Well,” Ms. Manager said as she pointed to Marcy and Cletus, “There was the time I caught her and him having…relations…on the home’s couch.”
This was news to me. I looked at my client, and then looked at Cletus. From her blushing and his triumphant look, I knew in that one moment I would need to put them both on the stand to rebut this information. I knew what they would say. I knew, in that moment, that the case was lost.
“One moment, sir?” I asked the referee, who graciously nodded. I turned to my client, “You said there wasn’t anything else,” I hissed out.”
“Well,” Marcy answered, “That wasn’t in their appeal documents, so I thought it didn’t matter.”
Sad to say, I wasn’t able to salvage the day on that case. It was, in the end, a total loss. But to this day, I use this story, which, while basically true I’ll admit here I’ve changed in significant ways to preserve client confidentiality and confidential information that isn’t a part of the public record, as a perfect example of why it’s important for a client to be fully honest with me, and to let me have all the facts of this case.
And I know that somewhere, out there, Cletus and Marcy are likely still together, smutting up the care centers of America with their daliances.