David v. Goliath

The average citizen who had a grievance against the government typically was using a slingshot against an adversary with far greater financial resources and armaments. It was not a level playing field.

My name is Allan Henshaw, and I have lived in Eagleton, Colorado, for twenty years. I was admitted to practice law in Colorado twenty-five years ago and worked for a large law firm in Denver prior to moving to the relative serenity of Eagleton. Seven years ago, the governor of Colorado appointed me to the position of district judge for the northeastern quadrant of the state. After five years in that position, I resigned and resumed my previous law practice. I got more pleasure out of advocating for clients than I did from listening to their issues and making decisions that would affect their lives.

As a lawyer in a relatively small community such as Eagleton, my practice encompassed almost every type of law imaginable, from the simplest drafting of a will to representing clients in criminal cases and everything in between. Whenever a case was beyond the scope of my expertise, I referred it to other counsel in one of the larger metropolitan areas in Colorado. Over the years some of my cases did not sound like anything a city lawyer would know anything about—boundary disputes, encroaching fences, diversion of water for crops, and so on. Most of my practice, however, dealt with business matters, criminal and personal injury cases, and a smattering of divorce litigation. My tenure as a district judge significantly helped my subsequent return to my law practice, as potential clients figured I knew everything about the law. Nothing could have been further from reality, but it did result in so many new clients that I had to hire two young lawyers to assist me. The pace in a small town was more relaxed than in the metropolitan areas, and the commuting time took very little out of my day.

Tom Newman, a local farmer, had been a client for many years, and I handled a number of different matters for him, including a personal injury case when his wife was in a car accident, reviewing the title for some additional farmland he purchased, and representing his teenage son when he got arrested for possession of marijuana. Tom was in his midfifties and slightly built, with a ruddy complexion from spending so much time outdoors as a farmer. There was usually a toothpick dangling from his mouth that bounced up and down as he spoke and he always had a pliers attached to his belt. He was mild mannered and generally seemed to be truthful, which was more than I could say for many of my clients over the years.

About two months after another local farmer, George Schmidt, was injured, Tom came to see me to talk about George. He discussed his business arrangement with George and told me what he knew about an accident several months earlier that had severely injured George when his pickup rolled over on a county road. I had, of course, heard about the incident but did not pay too much attention to it, as it was not unusual to hear about people getting injured while driving their cars. Tom related to me the opinions being floated at the coffee shop about the cause of George’s injuries and asked me if I would talk to him and discuss his options with him…if there were any. I agreed, and Tom said he would have George call me.

I had previously represented several clients who brought lawsuits against the county for various reasons, and I could only imagine the comments the county commissioners had made about me. Not every attorney in a small town would take cases that might cause controversy with the governing fathers, but that was not a concern of mine. Representing a client embroiled in litigation against a governmental agency was often a one-sided affair, as the resources of the government would no doubt exceed those of the client in most cases.

A few days later, George made an appointment with my assistant to meet with me. I had not met him before, although his name was familiar to me. I was somewhat surprised when I first saw him in my waiting room. His head appeared to be turned to the right instead of looking straight ahead. He was using a cane and had a pronounced limp. His voice was muted, and his right eye seemed to be tearing. The expression on his face was one of despair, and I sensed immediately that he had a long way to go before recovering from the injuries he had sustained. First impressions were important to me, and I knew this man had some serious problems.

“Good morning, George. It’s nice to meet you, and thanks for coming to see me.”

George’s response was not immediate, as though he had to think about it. Tom had told me he had also suffered a concussion when his pickup rolled over. “Thank you, Judge. Tom told me what a good lawyer you are, although I’m not sure I need one.”

“Please dispense with the judge title. I prefer to be called Allan. My judgeship is a thing of the past, and I prefer not to dwell on it.”

“OK, that’s great. I’m just a homegrown farm boy and we don’t do formalities much on the farm. Tom told me he explained my situation to you. You probably heard plenty about it in town. The newspapers and TV stations all covered it. It’s somewhat embarrassing to have your life put out in the open like that. I prefer the quiet and simple life where nobody bothers me and I don’t have to deal too much with people.”

“Small towns tend to look for newsworthy events other than loose dogs and DUIs. Your case was publicized rather heavily because you have lived here your whole life and people respect you for who you are. No doubt the police scanner was full of information about the accident when it happened, and you know where it goes from there. Now what can I do for you?”

“Tom and some of the guys at the Coffee House seem to think that I may be able to get back some of my medical costs and some other money from someone, but I really don’t see how anyone else is at fault for my injuries. I don’t remember anything about the accident. I only know what I have read in the newspaper and what the sheriff told me. I do remember driving south on County Road Sixty-Four before the accident, but the next thing I remember is asking a nurse where I was. She told me I was in the hospital in Greenway. Darned if I know how all of this could have happened without me knowing anything about it.”

I hesitated for a moment, trying to visualize in my mind what could have happened and then projecting how a case like this would proceed when George didn’t have the slightest idea what had happened. “George, from what I have read and heard, there was some significant road damage close to where your pickup went off the road and rolled over. The first thought that comes to my mind is whether you were paying attention to the road or whether your attention was diverted elsewhere.”

“As I said, I don’t remember what happened, so I can’t tell you what I was doing.”

My mind immediately went into cynical mode, which came from years of dealing with clients, some of whom either didn’t tell me the truth or shaded everything to make it look as if the other guy was always at fault. Was he telling me the truth, or was he covering up the facts because he knew he was not paying attention at the time of the accident?

“Well, there is another possibility to be considered. I haven’t seen the condition of the road, but if it was in poor condition and the county knew about it, they had the responsibility to repair it. Further, if the repairs could not be done quickly, they should have put a warning sign along the road so drivers could take extra caution when approaching the damaged road.”

“I don’t remember seeing any signs along the road, but I hadn’t been on that road for over a year, and I really can’t tell you what signs I saw before my pickup crashed.”

“George, it’s hard for me to give you any advice at this time because I don’t know all the facts. If it’s all right with you, let me do some investigation into what happened, and then we can talk again after I have a better handle on the facts. I won’t charge you any fee for my initial investigation, and I hope to be able to meet with you again in a few weeks to let you know what I found out. Does that sound agreeable to you?”

“Sure. I’ve always heard that lawyers cost a lot. It’s kindly of you to look into this without charging me first.”

“OK. Let’s leave it at that, and I will call you when I’m ready to meet with you again. Take care of yourself, and make sure you follow up with your doctors as necessary. If you have any questions or concerns before I get back to you, just give me a call.”

Continues...