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THE LAW IS A ASS for 02/19/2002
DOCKET ENTRY
"The Law is a Ass" Installment # 133
Originally written as installment #285 and published in Comics Buyer's Guide issue # 1469, January 11, 2002 issue
There's drawing a line in the sand.
There's waving a red flag in front of a bull.
And then, there's doing a six-part comic-book story the basic premise of which is that the main character Matt Murdock, a lawyer who also happens to be the secret identity of the super-hero Daredevil, agrees to represent a man in his property damage law suit against Daredevil.
Sometimes a person should just know better.
******
"The Law is a Ass"
Installment # 133
by
Bob Ingersoll
It's not that I'm trying to take sides--one CBG columnist sticking up for another--but if, as Terrell Hardcastle said in Comics Buyer's Guide# 1456's "Oh, So," "[Bob] Gale has done his homework [for the story he wrote in Daredevil 20-25] and has created a realistic, litigious world for Daredevil to navigate," then exactly where did Gale do his research? Watching the Bloopers reel marathon from ABC's The Practice? I'm sorry but Gale's story arc in Daredevil was to realism and the law what Gale's movie Back to the Future was to physics and time travel theory--pure fantasy. There was so much wrong with this story one hardly knows where to start. But, as "the very beginning" was good enough for Julie Andrews...
In the beginning... No, a little after that, Matt Murdock--the secret identity of the Daredevil, the titular, but blind, super-hero with the hyper senses--is representing Benjamin Rosen. Rosen's ex-employee, Lloyd Braxton, is suing Rosen for wrongful dismissal, claiming Rosen is a racist and fired him because he is black. What's wrong with that, you ask. Surely as a lawyer, Matt Murdock does represent people in lawsuits. But the problem was how Matt represented Rosen.
(As an aside, let me first address another problem with this suit: Braxton hired Claude Unger an attorney who, according to the story, "has yet to lose a case." That's a standard cliche in fiction, the lawyer who has never lost a case. They only exist in fiction. In real life, if you ever see a lawyer who has never lost a case, I suggest you check his or her bank accounts for large and unexplained withdrawals, because somewhere there's got to be a jury that got its Christmas bonus early.)
Matt represented Rosen on the theory that Braxton wasn't fired for his race but for, "gambling on company time," with company assets. After three hours of deliberation, the jury returns its verdict. "We the jury find the defendant, Benjamin Rosen, not guilty," which is the wrong verdict. Not because Rosen is a racist, but Braxton filed a civil suit seeking damages because he, the plaintiff, was injured by Rosen's, wrongful act. Civil juries don't find their defendants not guilty. Not guilty is a verdict found only in criminal trials. Civil juries would simply find for the plaintiff or the defendant and award (or deny) damages accordingly. It's a minor point, but anyone who has "done his homework" in lawsuits should have known this.
Now, before you get the idea that I'm going to nitpick this story to death--though there will be a few more nits to pick before I'm done with this whole long story--let me move on to the major problem of this lawsuit. After the trial, Unger, whose office tried to hide Braxton's gambling, asks Matt how he learned about it. Matt doesn't tell Unger, but his thought balloons reveal to us that he learned about it while taking Braxton's deposition. When Matt asked Braxton whether he had any bad habits like gambling, his super-sensitive hearing detected Braxton's irregular heartbeat.
Remember earlier how I told you to suspect Unger of buying juries like Armani suits? Well, now we know how Matt maintains his won-loss record, he suborns perjury.
There was only one way Matt could prove that Braxton was fired for gambling on company time with company assets, putting Rosen on the stand to say that. Yes, Matt could have brought in the books and accountants to explain how assets were missing and presumably embezzled. Yes, Matt could have brought in Braxton's employee evaluations to show his on-the-job performance was deteriorating. But the only way Matt could prove Rosen fired Braxton for gambling was to have Rosen testify and say he fired Braxton for gambling.
Actually, Matt would have done this in cross-examination. To prove his case, Unger would have to call Rosen first--defendants can be called as witnesses in civil suits, as there is no possibility of self-incrimination--and asked him his alleged racism. After that, Matt would cross-examine Rosen and had him explain about the gambling.
The problem is Rosen couldn't testify he fired Braxton for gambling on company time with company assets. He didn't know about the gambling, when he fired Braxton.
This is a given. The story itself makes it impossible for Rosen to have known about the gambling. Matt first learned about the gambling when he deposed Braxton. Depositions are part of what lawyers call discovery, a pre-trial process by which opposing sides in lawsuits share their information so that neither side is surprised. (Discovery is so important that satellite TV systems have seven Discovery Channels.) In depositions, each side gets to question the witnesses the other side intends to call while under oath. It was when Matt deposed Braxton that he, thus Rosen, first learned about the gambling. (Come on, if Rosen had known about the gambling earlier, don't you think he would have told his attorney?)
Because depositions are part of the pre-trial discovery process, they can't take place before the lawsuit is filed. This isn't the Thought Police. You don't get to depose people, learn their secrets, and then decide to sue. So, if Rosen didn't know about the gambling until after he was being sued--which couldn't happen until after he fired Braxton--he couldn't have fired Braxton for gambling. And that means, if Matt had Rosen testify that he fired Braxton for gambling on company time with company assets, he had Braxton perjure himself.
Suborning perjury is a very serious offense. It looks pretty bad for Matt. But don't worry, I'll rescue him this one time and explain how he could have successfully defended Rosen without suborning perjury. I will, however, have to do it in the next installment.
Hey, it took Bob Gale five installments to weave this bunk, you've got to give me a little more than one to debunk the story.
******
BOB INGERSOLL, who can be reached at P.O. Box 24314, Lyndhurst, OH 44124-0314 or law@wfcomics.com, really is going to solve Matt Murdock's suborning perjury problems next installment. Hey, it's my duty as CBG's legal analyst, Just because I'm a public defender and not a civil attorney doesn't mean I can't be civilized.
Bob Ingersoll
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