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| Jan/Feb 2010 |
| Tales From the Front |
Arguing in the Alternative;
How to Lose Your Case Lickety-Split
At the New York Meeting in November, I met another attorney, whom I shall call, “Fake Rich Little,” who enthusiastically wanted to share his own tale from the front with me. Perhaps in flattery, mimicry or even mockery of my missives, Little began to passionately and painstakingly detail a story of how he was embroiled in a “heated” (or, from my perspective “lukewarm”) litigation regarding a “highly specialized” (“run-of-the-mill”) sale of goods for which the debtor who received the goods (astoundingly) refused to pay.
Fake Rich Little was making an argument in his motion for summary judgment that the creditor sold the goods to the debtor, who never objected. However, arguing in the alternative, Little told the court that if the debtor did indeed make any objections, they were never in writing. Assuming arguendo that the objections were made in writing, Little argued that they were untimely under the agreement between the parties. He strongly believed that by loading his case with all three alternative arguments, he would forestall any possible defense that the debtor could muster and certainly vindicate his client. However, Little was utterly shocked and appalled that the judge would dare deny his motion based on the (anything but axiomatic) “triable issues of fact that exist.” He told me that I should use his story in my next submission. I told him that I would definitely consider it.
From this conversation, I garnered three epiphanies: Fake Rich Little wasn’t as funny as I am, despite his belief to the contrary; Fake Rich Little’s “argument in the alternative” tactic made him lose his case; and Fake Rich Little reminded me of one of my own tales from the front.
On behalf of a nonprofit hospital, my firm sued a woman, whom I shall call, “Barbie Kardashian.” Apparently, the woman inexplicably found herself with a broken nose. Barbie drove herself to the hospital and requested that her damaged nose be repaired. And, of course, while they were fixing her nose, she went ahead and had some other work done. She never presented any insurance information (although I don’t think that cosmetic rhinoplasty is a covered service under a typical insurance plan). However, the woman paid $1,000 toward the $4,000 medical bill. The hospital never got another payment and, as such, we started suit. Her attorney, whom I shall call Al Eustis (Sydney Pollack’s evil lawyer from “A Civil Action”), filed an answer to the summons and complaint, with the following affirmative defenses:
“Barbie was never in the hospital.”
“If Barbie was in the hospital, she never consented to any treatment.”
“If there are any signed consents to treatment, they are forged documents.”
“If the consents were signed and were not forged, then the services were never rendered.”
“If the services were rendered, they were rendered in a negligent manner.”
“If they were not rendered in a negligent manner, the charges were over inflated.”
“If they were not over inflated, the charges were improperly coded in medical records.”
“If they were properly coded, the amount of the charges were incorrect.”
“If the bill was correct, it was sent to an improper address.”
“If it was sent to the proper address, Barbie never got the bill.”
And — after that list — he threw in the boilerplate statute of limitations, laches, accord and satisfaction, and novation defenses. Finally, for good measure, the attorney filed a counterclaim for medical malpractice. (Did they make Barbie’s nose bigger?)
I called my contact at the client, who laughed so hard I think he snarfed coffee through his nose. I then called Al Eustis to ascertain whether or not he had a prescription for the drugs he had been taking while he drafted the answer. Eustis said that my telephone call to him was a third-party disclosure of a debt owed to Barbie, in violation of the FDCPA — and that he was going to terminate the call. If I recall, my exact response was, “Um … I guess you ARE as ignorant as your answer makes you sound.”
I immediately moved for summary judgment. The last paragraph of my affirmation in support was, “Plaintiff has set forth a prima facie case and there is no valid defense to this action. In the event the court finds that plaintiff has not set forth a prima facie case, the court would be rewarding the defendant’s attorney for his idiocy.”
The defendant’s attorney requested an adjournment of our motion to interpose opposition papers, but never did so. We won summary judgment, and after entry of judgment, Barbie called our office, told us that she had fired Eustis and we negotiated a payment arrangement for the full balance at $500 per month. |
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