McElhaney on Litigation

Be Careful in the Woodshed

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Three weeks ago, Angus walked into my office and tossed a letter on my desk.

“What do you make of this?” he said.

Dear Angus,

I’m in civil practice and represent Alice Malone, a young woman who works as a secretary in the legal department of the Metropolitan Power Company. Alice was referred to me by a friend, John Krueger, Metro Power’s general counsel.

That was two years ago. I represented Alice in a personal injury case and was able to get her a nice settlement.

Yesterday, Alice walked into my office and asked to see me again–this time about appearing before the grand jury.

You see, in the past year the power company has gotten into a pack of trouble. One of its line crews mis wired some new high-power transformers in a residential neighborhood. The next time it rained, the transformers shorted out and sent 50,000 volts into a whole block of houses. Four were burned to the ground. In one of the houses, three kids who were watching Saturday morning cartoons were electrocuted by a huge ball of electricity that came out of the TV set. Only one lived long enough to tell what happened.

It made a big splash in the newspapers, and the parents of the electrocuted children brought a massive lawsuit against the power company.

Then just a few weeks ago, the front-page headlines said: “Metro Power Accused of Destroying Evidence in Child Electrocution Case.”

Next day the headlines said: “Chief Prosecutor Prom­ises Indictments if Metro Power Destroyed Evidence. Mike Foley Says, ‘Justice Will Be Done.’ ”

The following Monday, Alice Malone went to the prosecutor’s office and told Patrick Mc Garrity, the head of the felony division, that she had seen people in her office destroying documents from the electrocution case files.

I needed to leave for a deposition, so I didn’t talk to Alice very long.

Even so, there are two things that bother me about this situation.

First, the chief prosecutor, Mike Foley, hates John Krueger, the general counsel of Metro Power. They’ve been enemies ever since law school.

Second, Alice’s attitude is a little troublesome. She said, “Don’t you lawyers have ways of saying things that sound true but aren’t the whole truth? Our state doesn’t protect whistle-blowers, and I’m afraid if I testify against the power company, I’ll lose my job.”

I don’t see Alice again until the end of next week. Any thoughts on how I should handle the situation when she comes back?

Worried on the West Coast

Things Don’t Always Add Up

I read the letter out loud to make sure we both had everything straight.

Then I said, “I think there are more than two things to be concerned about. For example, what does ‘Worried’ know about criminal practice? He does civil work, and there are lots of little traps and nuances in grand jury procedure– especially when you’re in the wood­shed preparing a witness to go into the grand jury room by herself while you’re waiting for her out in the hall.”

“And why did Alice go to the prosecutor?” Angus asked. “Civic duty because she realized she had seen fellow workers destroy evidence? Or did she actually participate in it and decide that the way to stay out of trouble was to blow the whistle on her fellow workers? Is she a target in this investigation or just a potential witness?”

“And was any evidence actually destroyed?” I said. “Lots of civil lawyers are pretty reckless in throwing around accusations that the other side is stonewalling in discovery or destroying documents.”

“A lot of that happens,” said Angus. “Just look at the newspapers. The country seems to be filled with high-level business executives who figure they’ll never get caught.”

“That publicity makes it a tough climate in which to defend a big business charged with concealing the truth and destroying evidence,” I said. “Think how those news­paper articles have already tilted the scales in this case.”

“And there’s more,” said Angus. “Helping a witness lie to a grand jury is a good way for a lawyer to get indicted.”

“That’s right,” I said. “It sounds like Alice was looking for help in trying to cook her testimony.”

“Which is why I’m not just going to write ‘Worried’ a letter,” Angus said. “I think it would be better if we gave him a call and explained why he should have Alice talk to a good criminal defense lawyer who will know how to protect both Alice and himself in this situation.”

Caught in a Trap

We called “Worried” that same morning. after talking to him for nearly an hour, we were sure he was going to get out of the case. But just yesterday morning, Angus got this letter in the mail:

Dear Angus,

First, I am writing to thank you for your telephone call and all your thoughtful advice. I regret to report, however, that I did not follow your recommendations and decided there would be no harm in advising Alice Malone on how to testify before the grand jury.

When I saw Alice, she told me she was really worried about losing her job if she testified that the legal department of the power company had destroyed some of the important documents.

I said the company wouldn’t dare. Even though we don’t have a whistle-blower statute, the power company is virtually a public utility and would get into all kinds of trouble. But she insisted. She said she needed to soften her testimony so she wouldn’t be making “wild accusations” against her boss and the other lawyers in the legal department.

So I questioned her. What did she actually see? What did she actually know? It turned out she saw some secretaries take papers out of the filing cabinets where the electrocution case documents were filed and bring them to the shredder, but she didn’t actually see what they were.

Then I said, “That’s it. You have nothing to worry about. If you need to soften your testimony to the grand jury, that’s how you do it. Tell them what you saw, what you heard and what you know. You have no obligation to guess or speculate for the grand jury.”

When I asked Alice about going to the prosecutor’s office before she came to see me, she said she talked to Patrick McGarrity, the head of the felony division. When he said she needed a lawyer, she said she already had one: me. And she told McGarrity she got in touch with me because I was a friend of her boss, John Krueger.

What I didn’t know is that Alice Malone is Patrick McGarrity’s cousin–and that he asked Alice to wear a wire when she came to talk with me, and that there would be a phony air-conditioning-repair truck outside my office picking up our entire conversation. And now, as a result of telling Alice that she could “soften her testimony” by not guessing or speculating in her testimony before the grand jury, I’ve been indicted for obstructing justice.

The theory is that since the rules of evidence don’t apply to grand jury testimony, it is an obstruction of justice to tell a witness not to guess or speculate.

I think that’s outrageous.

By the way, the word on the street is that the real target of all this is my old friend John Krueger, the general counsel of the power company. Mike Foley–the chief prosecutor–has been out to get him for years. The thinking is I got indicted so that I would give up Krueger in return for them dropping the charges against me.

But I don’t have anything on Krueger, and I’m not about to make something up. Meanwhile, the plaintiffs in the electrocution case have gotten every document the power company ever had, and there is no more talk about anybody destroying evidence.

Which brings me to my second reason for writing. Will you come out and represent me?

Really Worried on the West Coast

Angus answered that letter.

Dear Really Worried:

I’m sorry, but I cannot represent you. I have just enough experience in criminal practice to know what to do till the plumber comes.

You need a real plumber.


James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Dis­tinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

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