June 27, 2019
As I meet with clients to explain the expensive and drawn-out odyssey that litigation can become, it can be a challenge to explain the mind-bending mental gymnastics that attorneys can force parties to endure. Things that are painfully logical and simple to ordinary folks (laymen, non-attorneys) can be expensive and difficult to establish in court as litigants want to argue over absolutely everything.
The best example I can give of this is an exchange I had in a trial held before Federal District Court Magistrate Litkovich in January of this year.
This trial was an MSD claim relating to the MSD’s administrative claims process for basements subject to sanitary sewer backups. This case was an extreme instance in which our client experienced more than 9′ of effluent that came into his basement on a regular basis, and MSD simply refused to stand behind its obligations under a consent decree arising from prior litigation with the US EPA.
To win, we had to prove these things: (a) sanitary sewer “surcharge” flooded his basement, (b) on multiple occasions, (c) that MSD was unable to develop an “engineering solution” that would stop the flooding, and (d) that he had made a claim to the MSD hotline within 24 hours after an incident.
The flooding was so severe and repeated that these elements were easily proved. Yet for two years, MSD had refused to negotiate a settlement in good faith. They insisted upon a trial, even though there was no factual issue in dispute; from our perspective, there was simply nothing to try.
So, MSD’s attorneys adopted the defense at the hearing that our client, the Plaintiff, could not prove that it would actually rain again:
Tim Sullivan of Taft, Stettinius & Hollister represented MSD at the hearing and here he was questioning my client’s expert witness:
Q. And if we had no rain, if climate change really turns out to be as dire as some people tell us, you would agree this property would have no problem in the future?
A. If there was no rain?
Q. Right, or not enough rain to cause any surcharge from any part of the Sewer District system.
A. Yeah, I would think the property would be — certainly you could take another look at living there and going there if you have no risk of backups, any kind of backup.
I must admit it was a creative question: “What if it never rains again?” Brilliant! And we already had our lineup of witnesses named. Who could testify with requisite expertise that, in fact, Cincinnati would experience a rain event in the future?
We ultimately settled the case. But after 30 years of doing this I once again learned the hard lesson that lawyers can argue over absolutely anything.
And for the record, since this hearing, Cincinnati has experienced 15″ in rainfall more than is average for this point in the year. Yes, Virginia, it is going to rain again.
A copy of the transcript excerpt in this exchange is attached here. The quoted language is at page 19, starting at line 13.