The Trial

by Philip Greenspun, part of the Smyly litigation saga.

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Preparing for a trial is hard work. All I was planning on doing was showing up and telling the truth. It should have been easier for me, who had personally experienced the facts, than for a lawyer who'd have to review his client's story before going in for trial. Nonetheless, between getting organized and writing notes for opening statements and closing arguments and such, I was up until 3 am.

I showed up in Malden District Court at 9 am to find Judge Brian R. Merrick, who'd denied all of my discovery motions, sitting on the bench. Civil motions went first. My favorite was a lawyer arguing that her medical doctor client couldn't be sued for an incomplete liposuction because statute of limitations barred a malpractice action. The patient's lawyer, also a woman, argued that her client sought only economic damages and therefore a six year statute of limitations governed. It seemed that the patient had paid $3500 for liposuction of the upper and lower abdomen and "rear flanks." The doctor, who proved ultimately not to be board certified, only did the lower abdomen.

"My client still needs the liposuction," one of the carefully dressed and coiffed women argued. "Doctor <foobar> didn't do the rear flanks..."

Civil motions weren't over until about 10:30 and then we were all kicked out for a "juvenile matter" that was supposed to be brief. The Commonwealth was trying to declare a mother unfit and take away her child and she apparently resisted with enough lawyers, etc., that we were sent home and told to return at 2. Only one actual trial went forward in the morning (a personal injury case stemming from an auto accident).

Promptly at 2 pm, Judge Merrick entered the courtroom and asked us to proceed. I had with me a thick book on trial technique that I'd bought at the Harvard Law School Coop. I started to make the florid opening argument recommended in said book. Judge Merrick cut me off, "That's for a jury trial. Just tell me what you're going to prove."

I stood in the witness box and told my story more or less as I laid it out in the Complaint. During cross examination, Smyly's lawyer asked me a few relevant questions and then proceeded to hammer me about previous litigation. I objected that the fact that I might have sued Ford was irrelevant to this case. Judge Merrick permitted the questioning on the grounds that it might show that I made my living somehow by litigating.

When I called Alec DeSimone to the stand, he looked pathetic, deflated and weak. I'd built him up into kind of a monster in my mind after reading dozens of lawsuits in which he seemed to be the kingpin of Smyly's consumer fraud operation. He said that he was utterly mystified by the disappearance of my stereo. He'd been in the automobile business for 40 years and had always seen them taken out by force, never neatly like this. I came armed with a copy of a judgment from Cambridge District Court in an earlier case. Alec DeSimone had appeared in that case for Smyly and presumably would have been aware that the Cambridge court ordered Smyly to pay $1200 to a man whose stereo disappeared while his car was in their possession.

I asked DeSimone if Smyly had ever been ordered by a court to pay for a stolen stereo. Smyly's lawyer objected. I told the judge that the answer would go to show that their violation of 93A (Consumer Protection Act) was wilful. Judge Merrick refused to permit me to ask any questions about Smyly's rich history of litigation with consumers. "Their previous lawsuits aren't relevant." This illustrates an interesting point that individuals in the court room have to face. If a business has litigated 100 times against its customers, then it is just doing business. They are still an upstanding member of the community and maybe contributors to the Democratic Party in Massachusetts that appoints judges. If a consumer, however, has filed even one lawsuit in the past, then he is presumptively a professional litigant and can be questioned at length.

DeSimone's main testimony was that he'd wanted to reimburse me for the stereo from Day 1. He'd left at least 20 messages on my answering machine but I'd never called him back. If I'd merely sent him a receipt for the stereo, he would have sent me a check.

It was all a lie, of course, but even I was beginning to believe him. I pulled out my laptop computer and the journal I keep of all my phone messages. I half expected to find a bunch of calls from Alec DeSimone (of course I didn't). I thought to myself, "if he has almost convinced me, the only person in the world who can be sure that he is lying, then how is the judge supposed to sort out the truth?" At that moment, I found it hard to believe that trials ever get to the truth or even that there really is a truth to human affairs.

The trial was over after about an hour. I got the impression that Judge Merrick had made up his mind before the proceedings began. When it was over, Judge Merrick said, "the court finds for the plaintiff on Count I and for the defendant on the other counts. Judgment is for $760."

In several senses, the Judge had been rather harsh to me. He'd denied what I thought was a very good 93A claim. Smyly's outrageous conduct should have gotten them slammed for treble damages or there would be no reason for them to avoid cheating the next N customers. I felt that Judge Merrick had consistently been unfair to me in letting Smyly question me and in not letting me question Smyly. On the other hand, he'd awarded me $10 more than Smyly's earlier Offer of Judgment. That meant that I wasn't going to be on the hook for any of Smyly's expenses since they'd made their $750 offer.

Reader's Comments

I read this article series with sympathy, as this sort of thing is always painful to hear about, and there's always a sense that shady businesses are often able to skirt the bounds of decent behavior under approving eyes of the law. Sadly, the law is not often easily interpreted or utilized. Judge Merrick is actually a family friend of mine and despite his raspy smoker's voice and harsh demeanor, he is a warm, knowledgeable and fair man. If there is a lesson to be learned, I think it might be that a person should hire a lawyer to represent them in this situation. Especially since legal fees can be repaid by the defendant in the event the plaintiff wins....

-- Conor McDonough, October 29, 2002
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