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Doing The Right Thing Because It's The Right Thing.

By Randall K. Edwards - Email Editor

Date : Oct 19, 2006

Dear Subscriber:

My first jury trial was a disaster. I didn’t win. In fact, I didn’t even get the chance to submit my case to the jury. I dismissed it halfway through the presentation of my case, and I worried whether I would ever get a chance to represent another client in court. As trials go, it was an abject failure.

It was also a great experience, although it didn’t seem like it at the time.

It all started when an older lawyer came to me, a week before the trial was scheduled, and handed the file to me, telling me that he couldn’t handle the trial because it appeared that he would actually be a witness in the case. I was thrilled that he placed so much confidence in me to take this important case on such short notice, and assured him that I’d do everything I could to not only represent his clients to the best of my ability, but to win the case. As I reviewed the file, I came up with a great strategy for presenting the case in such a way that no jury in the world could possibly find against me. I was young, full of confidence, and knew that I couldn’t be beat.

Although all of the details of the case mercifully escape me after all these years, I remember that the clients were two “good ol’ boys” from Oklahoma, I think, (who I’ll call Clem and Honker, since I honestly can’t remember their names anymore), who claimed to have lost a huge opportunity for millions of dollars in a mining venture in rural Nevada, and who laid out what appeared to me to be a pretty compelling case against the person they claimed had defrauded them, as well as his lawyer. I stayed up until the wee hours of the morning in the week I had to prepare, outlining anticipated testimony, looking up obscure mining cases (there are a ton of them in Nevada) and preparing a thunderous final argument for the jury.

Calamity struck the first day of trial. After we had selected our jury, I called our first witness, Clem, who simply froze during his testimony. He couldn’t “rightly remember” anything that we had so carefully rehearsed in my office the night before. He stared at the floor. He hemmed and hawed about the most important points of his claim, and he almost whispered when he was supposed to dramatically point to the defendant and state, “that man defrauded me” – and this was during his direct examination. On cross-examination, he didn’t look like a doe in the headlights. That would have been a relief. He looked more like an armadillo that had just been smacked by a pickup truck that didn’t slow down. It was awful. When the judge finally ended for the day, Clem ran from the witness stand like a death-row prisoner who’d been given a pardon by the governor. For my part, I simply slumped out of the courtroom, stunned and disappointed. I couldn’t see how I could salvage this catastrophe.

Honker, my other client, could. The next day, over breakfast, he proudly announced how he could save the day in his testimony. He’d thought about it all night, and had formulated a story that was not only consistent with Clem’s earlier testimony, but also put all of the evidence in a light that was stunningly convincing in our favor. Honker’s story was brilliant. It was a winner. There was only one problem: It was a complete lie, from top to bottom. When I pointed this out, Honker stared at me as if I had just grown a new head and said, in a voice that can only be described as resembling the Warner Brothers cartoon character Foghorn Leghorn, “Boy, I tell ya, I’m the client! You’re just the lawyer! You gotta do what I tell you to. Don’t he, Clem?” Clem stared at his plate of fried eggs, silent.

“I can’t do it,” I told Honker. “I can’t let you tell that story. It’s false. It’s perjury. It would not only be dishonest, but I could get disbarred for letting you do that.”

Honker wouldn’t budge. Neither would I. Clem wouldn’t speak.

And so it was, as I walked over to the courthouse. Finally, I came up with a plan. I’d explain to the judge that I had a conflict of interest with Honker, ask the judge to sever Honker’s case from Clem’s, and go forward with just Clem’s case. If that wouldn’t fly, I’d simply dismiss Honker’s case. It probably wasn’t the most brilliant plan ever concocted, but it was the best I could do on short notice. The judge’s bailiff made the arrangements for me to meet with the judge a few minutes before the trial was to commence and give my pitch. Opposing counsel sat silent, and so did the judge, as I told them I had a conflict that couldn’t be reconciled and that I couldn’t go forward with the two cases together. The judge blinked and said, “I’m going to talk to Mr. Edwards alone for a minute. Everybody clear out. Anybody got a problem with that?” Opposing counsel didn’t, and a minute later, it was just me and the judge looking at each other across his broad, shiny desk.

“I think I know your problem,” he said. “Your client’s testimony yesterday was pathetic, and so your other client is going to tell a brand new story today that he just came up with, right?” Obviously the judge, a veteran of hundreds of trials, had seen this tactic before.

“That’s about the size of it, Your Honor. I can’t let him get up on the stand and lie. That would be perjury, and I can’t be part of that.”

What the judge said next stunned me.

“I don’t see why not, Mr. Edwards. We’re in the second day of a jury trial. I’m not going to let your client screw this up. And as for your little ‘perjury’ problem, well … Nancy, get in here!”

Nancy was the judge’s court reporter, who scurried in with her shorthand machine. The judge cleared his throat.

“This is on the record,” he said, as Nancy began to type. “Mr. Edwards has told me that he has a conflict of interest with his client and has asked that he be allowed to withdraw from his representation. I deny this request. In fact, I’m ordering Mr. Edwards to go forward with this case and to represent both his clients, and to allow both to testify as they see fit. I’m also denying Mr. Edwards’ motion to dismiss or sever any of the claims. We’re off the record now.”

As Nancy picked up her transcribing equipment, the judge looked at me with a broad smile.

“Now, I guess that solves your little problem. The State Bar can’t go after you now, and neither can anyone else. I’ve ordered you to go forward. Now, just let your boy say what he wants to say and let’s get this over with.”

“Well,” I sputtered, “I guess that solves the professional problem, but, Your Honor, it doesn’t solve my ethical problem …”

“Ah, if you don’t want to argue his credibility in front of the jury, just don’t say anything about it. But I’ve got a trial to start. Now, let’s go.”

“Can I have a couple of minutes with my client?” I asked.

“Sure,” the judge said, magnanimously, “Take 15 minutes, and we’ll tell the jury we had a little delay dealing with some legal issues.”

At that point, I had some hard decisions to make. Was I going to let Honker lie under oath to the jury, knowing that it was a lie? After all, no one could blame me for doing that. In fact, the judge had ordered me to do exactly that. On the other hand, could I live with myself for being part of a fraud – a fraud that I knew was a fraud? And if I didn’t go forward with the case at that point, what would happen? I might be held in contempt of court. I could never face the lawyer who had referred the case to me again. For all I knew, Clem and Honker would sue me for malpractice. My head was aching and my hands were shaking, and it wasn’t even nine o’clock in the morning yet.

I walked into the witness room, where Clem and Honker were waiting. I began to explain what had happened.

“Uh, the judge said that I have to let you testify the way you want to,” I started.

“I told you so,” Honker interrupted, “I’m the damn client! I told you so.”

I gulped hard and continued.

“But I won’t do it. I won’t let you go on and lie. It’s not right. It’s perjury. I won’t be part of it. Sorry.”

Honker stared at me again, his mouth hanging open. Clem stared at the floor.

Finally, Clem said, “Uh, Honker, you know, it’s really not the truth, and, in fact, uh, you know, they really didn’t … “

Honker went nuts. He yelled at me. He yelled at Clem. I can only dimly recall the words he used (OK, I can recall them all, but I’m not going to repeat them here), but suffice it to say that Honker wasn’t happy. I should also add here that Honker never once suggested that he was willing to go in and tell the truth. There was no need to. In Honker’s view, the judge had already given him sanction to lie.

The judge’s bailiff knocked on the witness room door.

“Could you keep it down in there?” he asked. “And, by the way, the judge says you’ve got two minutes and he’s starting, with or without you. I suggest you be there.”

Honker looked at me.

“You heard the man. Now let’s get in there and get this show on the road.”

“No.”

“You’re gonna piss off the judge. Let’s go.”

“No.”

“I’m gonna sue you.”

“No.”

The room was silent. I was getting lightheaded. I was in uncharted territory here in my nascent legal career, and I had nothing going for me except the hope that what I was doing was the right thing. My guts were knotted up, and I was contemplating a day in jail, a lifetime of shame and a new career in something a little less stressful – something like defusing bombs.

Finally, Honker spoke.

“Dammit, Clem, we don’t need this case to make our fortune. Let’s get the hell out of here and go make us some real money.”

He strode down the hall to the elevators, Clem shambling along behind, yelling about how I hadn’t heard the last of him. The last view I had of him was as the elevator doors were closing. He was giving me the finger.

When I got to the courtroom, the jury had already been seated. The judge looked down at me, scowling.

“Where’re your clients, Mr. Edwards?” he roared.

“Uh … they’re gone, Your Honor.” It was my turn to stare at the floor.

“Case dismissed. The Court apologizes to the jury for this waste of your time and mine. We’re done here.”

He strode from the bench without looking back. As the jury left and opposing counsel gathered up his briefcase and notes, I sat on the front row of the gallery, exhausted, hoping I hadn’t shot my legal career in the head.

The aftermath of the story wasn’t pleasant and it wasn’t pretty, and I won’t bore you with it. I (mercifully) never saw Clem or Honker again, although I heard about them from time to time in the Nevada mining community. Through the years, I discovered that the original story that Clem and Honker presented to me bore only a passing acquaintance with the truth – something that no doubt would have come up if the trial had gone forward. The lawyer who referred the case to me never sent me another one, although we ended up on pretty good terms. The judge retired soon after, and I never tried another case in front of him. Opposing counsel good-naturedly razzed me for years about my first jury trial whenever we met up again. And the defendant … well, he later became one of my good friends.

I relate this experience for one purpose only – to tell you that I lost my fear that day of doing the right thing for the simple reason that it’s the right thing. I won’t say that I’ve never acted foolishly or made any mistakes in my career or my life, or that I’ve always seen all of the aspects of a situation in the pure light of truth, justice and clarity. I will say that I’ve tried to do the right thing – simply because it’s the right thing. In the end, that’s enough. At least, it has been for me.

Now, what does all of this have to do with Asset Protection? Quite a lot, in my view. You see, there are a lot of “advisors” (hustlers) out who would try to convince you that doing the wrong thing is OK. Their “Asset Protection Plan” includes dishonestly playing “hide the ball” with your assets, encumbering your property with sham “friendly liens,” jacking the banking system with confusing offshore wire transfers, relying on the scam idea of “bearer shares,” or encouraging their clients to flat-out perjure themselves if and when they are called on in a courtroom to testify. The problem with these “plans” isn’t just that they don’t work. It’s that they are wrong. Wrong in a legal sense, wrong in an ethical sense, and wrong in a moral sense. If something can’t be done honestly, honorably and ethically, it shouldn’t be done. That most certainly includes Asset Protection.

There’s good news in all of this. You don’t have to sacrifice your decency to protect your assets. You can accomplish ethical, legal and smart Asset Protection, if you’re willing to pay the price, use the right tools and act honestly. If you’re not, you might want to give my former clients Clem and Honker a call. They’ve probably got a couple of ideas you could use.

Randall K. Edwards practices law in Utah, Nevada, California and Arizona, with his main office in Salt Lake City.

Randall K. Edwards

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