What I Won From My First Loss at Trial

By Carolyn Elefant

Although I started my law firm in November 1993, I didn’t experience a loss at trial until more than two years later.  And even then, my loss began as a win.  The case involved one of my first clients; a photocopy machine repairman who was a buddy of an office clerk at the firm where I worked before I went out on my own.  The office clerk knew that I’d been laid off and intended to start a firm, so he referred the copy repairman to me, and he became my client.

The client had been charged with the misdemeanor of fare evasion, and he needed representation for the bench trial.  But because my client hadn’t cooperated with metro police, they cuffed him, arrested him and brought him to the police station where he was held for a couple of hours and subsequently released on personal recognizance.  If exonerated on the criminal charge, my client wanted to bring a Section 1983 action for false arrest and police brutality.

We prevailed fairly easily at the bench trial.  The station where my client was arrested was confusing: riders entering through the elevator would be deposited directly in the fee-area of the station.  These riders were expected to go upstairs to either purchase a fare-card or insert it in the pay-gate.  Trouble is, if you didn’t realize that you had to go upstairs, you might proceed downstairs to the train level, essentially evading fare.  That’s what my client did – he proceeded down the escalator, fare-card in hand and at the bottom, was stopped by two metro officers for failure to pay.  My client’s direct testimony along with a map of the station proved that he had a farecard, but was confused about where to insert it and therefore lacked the  requisite intent for conviction of fare evasion.

I should have cut my losses, but I was young and inexperienced, and enthralled at the prospect of bringing a Section 1983 action.  Over the next year and a half, we proceeded through discovery, depositions and finally mediation.  By this time, my client no longer had the ability to pay the case costs, so I was fronting money for medical experts and deposition transcripts out of my not-very-deep pockets.

For one reason or another, Metro never moved for summary judgment and so we found ourselves in court in January 1996, ready for trial.  It was downhill from there.  We picked a jury – though not after six African-American men recused themselves because they didn’t think that they could be impartial in a case against police, or after opposing counsel’s civil Batson claim (I had to rack my brain for what it was, then hastily concoct a racially-neutral reason for striking three caucasians in a row).

Jury seated, I gave my opening and called my client to testify.  We’d barely gotten to the point where my client described seeing the police officers for the first time, when he began to shake, jumped from the witness chair and ran screaming from the courtroom.  It might not have been so bad, except that this guy was the size of Worf, the Klingon on StarTrek with a loud, bellowing voice.  Opposing counsel demanded a mistrial and the judge seemed to think that I’d planned this scene as drama but I apologized so profusely, he allowed us to continue.  At the end of my case in chief, opposing counsel moved for a directed verdict.  We returned the next day and the court – after complimenting both of our performances – directed a verdict for the defendants.

My client was stunned, and we discussed the outcome and options then set a meeting for the following week.  By then, it was around 1 pm and I had nothing else to do so I simply went home.  I slumped on the couch and stared at the ceiling  and walls for hours as the sun faded from the room. I felt awful: the case never went to the jury, and I was out of pocket a couple of thousand dollars besides.  I’d wasted the past year and a half on a dog of a case.  How could I have been so stupid to get my hopes up? Would the client sue me for malpractice? Maybe I just wasn’t cut out for the law.

Around 5 pm, I roused myself from the couch to go to the bathroom.  And on a bizarre whim that even now, years later, I can’t understand, I decided to take a pregnancy test.  By then, my husband and I had been trying for a baby for two years and in spite of a minor surgery and several months of medication, nothing happened.  So I put the problem out of my mind while keeping busy in my practice, but even so, I kept the pregnancy tests around.  To my utter disbelief, this time, the test stick blue-lined: first pale and almost imaginary, then stronger.  A second then a third test produced the same result. I left the sticks in the bathroom and returned to the couch and waited for my husband to arrive home. When he did, I shared news of the trial, he told me about his day and then, very casually, I said “There’s something else…” and retrieved the stick from the bathroom.   Showing it to him made it feel even more real.

And so, by some divine intervention, I was spared the lingering despair of that awful first loss.  Instead, I look back on January 26, 1996 as a day of sheer joy.  And a day when I realized that as tough as the practice of law can be, there is always life waiting for me on the other side.

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