by Reason of Sanity (10 page)

s expected, Stuart’s case moved quickly through the court’s scheduling process. I tell the court
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far as our side is concerned, the trial should take no more than one day - but the other side gives the court notice that they might need a full week to adequately present their case. The big guns are in town for this one, representing all the country’s fax broadcasters. They obviously want to let all the other Stuarts out there know you can’t stop them from sending out their unsolicited junk faxes.

From the looks of the briefcases that are being wheeled into court, they’re probably going to present a history of the common law of England, to show how people who stirred up litigation were put into ‘stocks’ in the public square – those nifty wooden devices that only let someone’s head and hands hang through, on display for all the townspeople to ridicule.
My entire case hangs on whether or not my ace in the hole came through for me. Stuart is as white as a ghost. In a desperate effort to be judgment-proof, he’s already transferred all of his assets over to his accountant, just in case a nasty verdict comes down against him. In some ways, I don’t blame him. Every time you walk into court it’s a crapshoot. You never can tell what will happen.

The other side’s attorneys introduce themselves to me in a polite professional way. There is no jury, but the box is full of people. The bailiff tells me that it’s a small courtroom, so they’re letting the press sit there. I recognize a representative of the ACLU. I guess they’re against us too – maybe they feel the fax broadcasters’ right of free speech is being infringed on.

The bailiff makes his announcement calling the court to order and the judge waltzes in through his private entrance, looks at the full house, steps up, and takes the bench.

The judge sees that we’re all in place at the counsel tables, so he starts the ball rolling. “Civil case number C001838, Stuart Schwarzman versus Fax Broadcasters of Santa Monica, having been transferred to this court from the Small Claims Court Division, Defendant Fax Company being the moving party.”

As usual, all of us stand, stating our name and representation for the record. The judge signals their head counsel to start his case.

“Thank you, Your Honor. Appellant in this matter intends to establish to the court’s satisfaction that Mister Stuart Schwarzman’s actions are a textbook example of what the courts of Europe and the United States have held for centuries as unsatisfactory conduct. He has made numerous attempts to exploit the people’s courts for profit, by stirring up litigation among citizens who would not ordinarily be prone to institute these actions, fitting perfectly into the common law and statutory definitions of Barratry, which is not only actionable in a civil court, but is criminally prosecutable under the California Penal Code section 158, which we would ask the court to take judicial notice of.

“Furthermore, his conduct also falls within the purview of that same code’s section 159 because he has, as stated in the code, executed suits or proceedings at law in at least three instances.

“At the end of this trial, we will be asking the court to have a transcript of this matter sent to the proper prosecutorial departments for criminal action against Mister Schwarzman.”

I feel a tug at my arm. Stuart whispers nervously into my ear “can they do that?” I try to wave him off. Their attorney continues.

“And in addition to the offense of Barratry, we intend to show by a preponderance of the evidence, that Mister Schwarzman has made agreements with his assignors, so that he will share in the proceeds of each Small Claims Court action he has filed, thereby constituting the civil offense of Champerty.

“Our witnesses will testify to the fact that at no time was any claim assignor asked to expend any costs for the prosecution of these matters, all said expenses being borne entirely by Mister Schwarzman. This conduct has been termed Maintenance, and is also frowned upon by nearly all of the enlightened jurisdictions, one of which we feel is this venue.

“Therefore we will be asking the court to have all current actions being brought by Mister Schwarzman against our client, and against all other similar organizations, dismissed with prejudice, and he be ordered to pay statutory damages, our clients’ legal fees and also cease and desist the bringing of any further actions of this nature in this court or any other court in this State.”

The attorney holds up a list of all the small claims court actions that Stuart filed during the past months and hands it to the bailiff, to be given to the judge.

Once the judge starts looking over the list, the attorney continues. “Your Honor we would ask the court to take judicial notice of these fifty-nine Small Claims Court Actions filed by Mister Schwarzman, each one constituting another count in our Complaint. They were all filed down the hallway in this very building, in room 102.

“We also contend that it is Mister Schwarzman’s intent to violate our client’s Freedom of Speech rights under the First Amendment to the Constitution of the United States.

“Thank you, Your Honor.” He finally sits down. His client looks at him warmly, as if they’ve just won the first battle of this war. And maybe they have.

The press is feverishly taking notes. The judge looks down at me. “Mister Sharp, would you care to say anything?”

“Not at this time Your Honor. We reserve the right to make our opening statement at the time of presenting our defense.”

Once again I feel Stuart desperately tugging at my sleeve and whisper-shouting. “What? You’re not going to say anything? How can you let that guy get away with all that? You should say something.”

I lean over and whisper in his ear “Stuar t, the reason I didn’t say anything, is because so far, he’s correct in everything he’s said. I don’t want to get into a pissing contest with him now, because it’s not the proper time yet… just relax, I’ve got something planned that might end this whole thing.”

Stuart sits back in his chair but I know he’s not relaxed and I don’t blame him. The only chance we have of winning this case is if people behave as I assume they will. I look to the back of the courtroom and see Jack Bibberman sitting there. He gives me the ‘thumbs up’ sign. I wish I felt as confident as he does.

The other side starts calling their witnesses, which are no surprise, because in accordance with the rules, we were provided a copy of their list. As each one is called to testify, I check his or her name off on the list. Included are several well-known scholars of Constitutional Law, the president of some national telemarketing organization, several clients who have built up successful businesses as a result of mass fax campaigns they conducted, some idiot lady who claims she likes to receive all those faxes – makes her feel like she’s got friends, a mailman who testifies that without fax broadcasting cutting down on the mail being sent, he wouldn’t be able to carry his mail bag every day, and on and on.

Notwithstanding Stuart’s wrinkling my goin’to-church suit sleeve with his incessant tugging, I pass on my turn at cross-examination of every witness – until they call their own client to the stand
– Marvin Bennett, the nice young hard-working man who owns the company that sends out all of the faxes.

His attorney does a nice job of estab lishing him as a pillar of society, family man and one who donates to charities. The lawyer sits down. The judge is no doubt wondering if I intend to cross-examine any witnesses in this trial, so he politely addresses me. “Mister Sharp, do you have any questions for this witness? Any at all?”

It’s now or never, so before Stuart goes into cardiac arrest, I stand up. “Yes, Your Honor, we do have just a few questions for this witness.” The judge looks relieved, probably glad to see that I finally came out of what he must have perceived as some trance during the first portion of the trial.

I start out very politely, asking some softball questions about where he gets the telephone numbers that he broadcasts to. As expected, he explains how they are all on lists sold to him by companies that gather the numbers from people and businesses that have no objections to receiving the faxes.

Next, I let out a little more rope. “ Mister Bennett, do you ever add to your list the numbers of people who have asked you to never send them a fax?”

He denies this very strenuously. I produce a list of names from my briefcase and one by one, start to read off the names. “Mister Bennett, do you recognize any of the eleven names I’ve just read off of my list?”

“Not a one, counselor.” The judge looks at me with a puzzled expression on his face… and I know why.

I address the court. “Your Honor, with the court’s permission, I would like to use a display, which is an enlargement of the affidavit which all eleven of the names just recited have executed.

The other lawyers all jump up to object on grounds of relevancy, surprise, failure to give them notice and some other grounds I never heard of before. I try to stop their objections and get permission to proceed with my display. “Your Honor, this display is not being offered into evidence, it’s only being used to refresh the witness’ memory.” The judge overrules their objections and lets me continue.

Pointing to the display, which is a two-foot by three-foot enlargement of one of the affidavits that simply states “Please refrain from sending any unsolicited faxes to this telephone number,” followed by the phone number. It is signed, dated and notarized.

“Mister Bennett, this is an enlargement of one of the eleven letters all sent to your office by certified mail, with a signature receipt requested. We are also prepared to offer into evidence the original signed receipts for the mailings. Does this refresh your memory?”

“Mister Sharp, our office receives quite a bit of mail each day… I don’t see and read every piece.”
The judge looks extremely interested now. I go over to the easel and remove the first affidavit, revealing a large poster, containing a collage of twelve faxes.
“Mister Bennett, do you admit to the fact that your company has sent out faxes like every one of these during the past sixty days? And isn’t it a fact that you do in fact represent every one of these businesses, as their fax broadcaster?”
He looks at the faxes on my easel and then looks at his attorneys. He’s getting a little uncomfortable now. “We may have sent out some faxes like that… they look vaguely familiar.”
Now I tighten the rope a little. “Mister Bennett, if I were to tell you that every one of the eleven people on my affidavit list are willing to testify that not only have they received these dozen faxes but they checked with their employers, the people whose fax machines these were sent to, and that the employers all strongly denied ever subscribing to or opting in on any list which would allow you to send them faxes – what would your response be?”
He has a smug smile on his face. “I’d say that their employers were all a little weak in the memory department. They must have done business with some company or opted in on some list that gave us the legal right to send faxes to them.”
“Mister Bennett, are you claiming here in open court, that you are right and that the superiors of every one of those eleven people are wrong?”
“That’s right counselor, their bosses must all be mistaken and I don’t think you can prove otherwise.”
I look up at the judge. “That’s all for this witness, Your Honor, and if the Appellant rests its case at this time, so do we.” I sit down and Stuart almost rips off my sleeve.
“Pete, are you nuts? They’ll kill us. You haven’t done anything but show some posters. We’re dead!”
The faxer’s lawyer stands up to make a motion, but I cut him off by speaking first. “Your Honor, at this time we would ask the court for a fifteen minute recess, so that we might confer with the appellant to discuss a settlement of this matter.”
As I look over to the other table, they are all jubilant. They think the war is over. The judge looks down at us with a slight smile on his face. “Mister Sharp, I think that’s an excellent idea. I’ll look forward to seeing you all back here in a while with a settlement for me to approve.”
The judge steps off the bench and I signal to the other attorneys that we should use the empty jury room. Stuart looks like he’s going berserk. He thinks I just gave the case away to the other side. His mouth is moving like a fish out of water, but no sound is coming out. I lean over and whisper in his ear that everything is going to be okay and that he should trust me. He sits down. Over at the other counsel table the lawyers are shaking hands with each other and with their client, Bennett. They all don’t know it yet, but they’re now experiencing a severe case of premature congratulation. We all walk into the jury room and after they’re seated, I begin my presentation.
“Gentlemen, this case is over. In the next ten minutes, a settlement will be reached and we will all be out of here.” They look at each other and exchange smiles of success.
“First of all, let me fill you in on a few things. Number one, the eleven people on my affidavit list are all clerks – for judges in this building. That means the employers your client was demeaning out there are all Municipal and Superior Court judges, all friends and associates of the judge in this case.
“Second, every one of the eleven received at least twenty unsolicited faxes from your client after they expressly informed him by certified mail that they did not want to receive any faxes from him.”
“Third, each fax number on the list was a personal fax number assigned to the machine in each one of the judges’ chambers – machines that were installed less than ninety days ago and assigned brand new numbers by the telephone company at the time of their installations.
“This means that your client is full of crap. He’s a liar. These are all new fax machines and new telephone numbers. The judges never subscribed to any service nor did business with any company and never gave the fax numbers out to anyone but the presiding judge, who wanted the fax machines solely for the purpose of sending official court memos.
“Your client obtained their new numbers by using an unlawful ‘war dialer, that automatically dials every telephone number in numerical order, hoping to randomly discover fax lines, or through some other unlawful means from an accomplice, who illegally provided him with newly assigned fax numbers on a regular basis, constituting a criminal conspiracy and therefore subject to forfeiture and seizure of assets through the federal RICO laws.
“Your client also received the notices to not send these judges any more faxes, and instead of complying with their requests, continued to bombard them with unsolicited faxes and then sold their numbers to other mass fax broadcasters who continued the same unlawful process.
“Your client lied in open court under oath, and you gentlemen have already asked that the court send a copy of the transcript of this trial to the prosecutors. You wanted to see my client nailed for a misdemeanor Barratry charge but instead your client may go to the penitentiary for felony perjury.”
I look down at their faces and wish I had a camera with me to capture the scene. If it was printed up and distributed, I’ll bet it would sell more copies than the ones of those dogs playing poker.
“Now here’s what I suggest. You go out there and tell that lying client of yours that he is dismissing his counter-claim and agreeing to pay the minimum five hundred dollars damages on each of the first faxes sent to the judges’ chambers. Due to the fact that he continued his practice after receiving notice to cease and desist, the damages on each of the other 19 faxes sent to each of the eleven judges’ chambers qualifies under the federal law for a treble penalty of fifteen hundred dollars each. This portion of the settlement check will be made out directly to whatever charities the judges select.
“As for the remaining cases out of the fiftynine actions you so generously told the court about, your client will pay the minimum of five-hundred dollars plus court costs, for each – said payment to be made to my client, the assignee, Stuart Schwarzman.
“And lastly, your client will agree to immediately remove those thirteen numbers from his list, along with any other numbers of people who ask to be removed in the future – and make no mistake about it. Every once in a while he may be tested by another request for removal and he’ll never know if it was from us or not.”
After a prolonged silence, I get up and walk out of the room. Shortly thereafter, all the big guns come slinking out of the jury room, tails between their legs. A note is given to the clerk, telling the judge that the action has been withdrawn and a settlement has been reached. Before we have a chance to leave, the clerk tells me that the judge wants to see me in chambers. This a request that no attorney ever refuses, so I follow the bailiff back into the private hallway.
“Mister Sharp, that was a nifty job you did out there today, but you realize that if they didn’t ‘cave,’ I would have had to recuse myself from hearing the case.”
“Yes Your Honor, I knew that. You can’t be on any case where there’s even the remote possibility that you or one of your staff might be called as a witness.”
“You took a big chance there, Peter – you’re lucky it worked.”
“It’s the old rule, Your Honor, you can’t shake down an honest man. Bennett’s a liar. He doesn’t care who he spams with that junk as long as he gets his fee. Anyway, thanks for the courtesy Your Honor. As soon as your clerk sends me the list of the charities your associates want the donations sent to, we’ll see to it that the checks are sent out.”
As I step out of his chambers door he calls out to me. “Oh, by the way, I got a great deal on a vacation from one of those faxes.”