Tex Abuse

I had been intently focused on the proceedings during the hearing – and when the hearing abruptly ended, the sudden decompression left me feeling a little disoriented.

I collected my belongings, which basically consisted of a notepad, a file folder, and a pen, which shouldn’t have taken me very long. And, in actuality, it probably didn’t take more than a few seconds. But time seemed to have slowed down.

When I finally got to my feet, the next attorney was standing over me, ready to take his seat at the counsel table. He didn’t exactly look impatient, but he didn’t look especially patient, either.

Once I stood up, my brain snapped back into place, and I was ready to head out of the courthouse and drive home.

But much to my surprise, Mitch and Tommy had other plans for me.

The Corridor Conversation

When I walked out of the courtroom into the corridor, Mitch immediately engaged me in conversation, while Tommy sat on a bench, maybe 20 feet away. I remember snatches of my discussion with Mitch, and I’ll present those snippets here. Don’t assume these are sequential, because I’m not at all sure of what order they occurred in. But here they are, to the best of my recollection.

• I asked Mitch if he believed that, because Judge Bouressa had requested evidence of his attorney’s fees, she had probably decided to rule in his favor. Mitch agreed that was likely. Later in the conversation, I began to suspect that he may have been trying to encourage me to agree to a settlement, so it was in his interest to make me believe that I was about to lose the case.

• I asked Mitch for an estimate of how much money he was seeking from me. He said it would be somewhere in the neighborhood of $17,000, and he asked: “Can you pay it?” I pointed out that I live on Social Security – which was true, but which I recognized did not fully answer his question. I figured that the details of my finances were none of his business. (I later learned that was not entirely true.)

• While we were on the subject of the money that Mitch thought I was about to owe him, I said: “You can’t take my house.” Mitch said something to the effect that he could “attach” my house – which I don’t think was the word that he used, but I suspected he meant that he could get his money when I sold my house, or when I died. “Well,” I said, “I guess I should warn my heirs that they’re going to inherit seventeen thousand dollars less than they’re expecting.” “I think that would be wise,” Mitch shot back.

• Mitch asked if I wanted to live the rest of my life fighting with my neighbor. It was ham-handed, and it sounded like a prepared speech. I rolled my eyes. I responded that no, I wanted to live in peace and harmony with my neighbor for the rest of my life – but if Sonia’s behavior didn’t change, the odds of that kind of rosy future would be low.

At some point, I got the impression that Mitch might have been hinting that he would be willing to drop his demand for $17,000 if I would drop the libel lawsuit and agree to stay off Sonia’s property. But I told Mitch that I intended to keep cutting across Sonia’s driveway to get to the north side of my house. So that was the end of our “settlement discussion.”

A Question of Ethics

It didn’t occur to me until later that not only had we discussed the libel case, we had discussed the easement case as well. And the problem with that was that I was represented by an attorney in the easement case, and ethics rules prohibit lawyers from discussing cases with litigation opponents who are represented by attorneys:

“Communication with One Represented by Counsel: In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization, or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” – Texas Disciplinary Rule of Professional Conduct 4.02(a)

Mitch later claimed that there was so much overlap between the two cases that it was impossible for him to talk about one case without bringing the other case into the discussion. I’m not a lawyer, and it’s certainly possible that some fine points (and maybe some not-so-fine points) of the law escape me – but personally, I didn’t think there was much of any overlap between the lawsuits, and I wasn’t persuaded by Mitch’s explanation.

For example: While we were discussing the easement lawsuit, I pointed out that I believed that Sonia’s carport encroached on my property. Mitch immediately responded: “That carport is legal.” The carport in question bore no relation whatsoever to the libel lawsuit, but it was an issue in the easement lawsuit. Shouldn’t Mitch have told me that he couldn’t discuss that issue outside of the presence of my lawyer?

Also, I remember mentioning that, now that the weather was cooling off, Donna wanted to go outside and wash our windows, but she was concerned that Sonia might confront her again. Mitch pounced, gleefully asking: “So, your wife is capable of dragging equipment around and washing windows?” This was a reference to an obscure point in the easement lawsuit – and again, I wondered whether it was proper for Mitch to discuss that with me because my lawyer was not there.

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Our conversation lasted only about ten minutes, and then it was time for me to drive home and wait for Mitch to submit the affidavit that the judge had told him to file by the following day, which would be Friday, August 26. And then, if I wanted to respond to Mitch’s affidavit, Judge Bouressa had given me a deadline of the following Monday, August 29, because she planned to issue a ruling just two days after that, on Wednesday, August 31.