30 april 2022

Motion Day

Friday was motion day in Judge Dupart's division of Civil District Court. On Friday morning from about nine to nine-thirty, the Judge typically reviewed the docket sheet prepared by her docket clerk, Wenona, and the hearing notes prepared by her law clerk, William. Judge Dupart took the bench at nine-thirty.

On this particular Friday morning, Judge Dupart arrived at her chambers at about nine-fifteen. Hurriedly she scanned the docket sheet, particularly the names of the attorneys appearing in support of and in opposition to the various motions. Many of the names were familiar to her, like James Sitwell, a partner in the downtown defense firm, Moore Sitwell, which had maxed its contribution to her second election campaign, although the firm had supported her opponent in the first campaign. Sitwell's opposing counsel, George Saia, had three strikes against him: she didn't know him, he was from St. James Parish, and he was a sole practitioner. Even if he had money, he probably wouldn't contribute to a campaign in an Orleans Parish election, so he hardly counted. Judge Dupart circled Sitwell's name on the docket sheet.

On the third page of the docket sheet, number 33, "Helwig vs. Bergeron," the name Harold Harris got the Judge's attention. Not only was Harris a partner in a big downtown firm which had supported her in both elections, but he also was a former federal prosecutor who made regular appearances on the local news as a legal consultant during high-profile federal criminal trials. She circled his name immediately while noting the name of his opposing counsel, Victor Callo. She knew Callo, a Canal Street plaintiff's lawyer who, if she recalled correctly, might have attended a fundraiser for her. But she'd be damned if she was going to piss off Harris and risk giving the news media to her opponent in the 2002 election.

At nine-thirty Wenona appeared in the doorway. "Ready, Judge?"

"Two minutes," said Judge Dupart. She finished reviewing the docket sheet, then took her robe off the hanger and put it on. She would catch up on William's hearing notes as each case was called. Or she would just let the attorneys fill her in as they made their arguments.

* * *

"Next on the docket, Ms. Johnson?" Judge Dupart inquired from the bench.

"Number 33, Helwig vs. Bergeron," announced Wenona.

From among the dozen or so attorneys remaining in the courtroom, Harry Harris and Victor Callo rose and approached the counselors' table. Harris went straight for the center position at the table, but Callo spoke first. "Good morning, your honor. Victor Callo for the plaintiffs, Robert and Deborah Helwig."

"Good morning," said the Judge. "How are you this morning, Mr. Harris?"

Suddenly Callo realized the significance of Harris's TV appearances: She's kissing his ass. She's afraid of him.

"Fine, thank you, Judge," replied Harris. "Congratulations on your new granddaughter." Harris had picked up the little tidbit about the granddaughter from Wenona earlier this morning when he'd checked in and had a friendly chat with her. Since he'd been making TV appearances, the Court staff, like many attorneys and all politicians, including judges, had become his best friends and freely confided in him with all sorts of inside information.

"Thank you, Mr. Harris," said Judge Dupart. She thought she almost blushed, but from what Tony Callo saw, it was more than almost. She flipped through Joseph's hearing notes until she found the case. "What can I do for you this morning?"

"Your Honor, we're asking the Court to dismiss this frivolous and ridiculous lawsuit in which Mr. and Mrs. Helwig have sued the Bergeron heirs based on the alleged existence of a ghost."

The audience snickered.

"A what?" questioned Judge Dupart. She scanned the hearing notes to see what Joseph had to say: "... sale ... house ... haunted ...." Haunted! she thought with a smirk. Then she saw Joseph's recommendation: "Deny motion to dismiss." What's that about? she wondered. "Are you saying they bought a haunted house?" she asked Harris while glancing at the chuckling audience.

Harris also had tuned in to the audience and instinctively inflected his voice. "That's exactly what the Helwigs are saying in their lawsuit, Judge. And what we're saying is that's absurd, ridiculous, impossible, and irrational." He directed these last words at Callo. "And in addition, Your Honor, even if it were possible for a house to be haunted, the Helwigs bought this house ‘as is' with a waiver of all warranties against hidden defects."

Judge Dupart found the words "as is" in Joseph's hearing notes. She turned to Callo. "What's your position, Counselor?"

Harris remained standing as Callo stood to speak. "Judge," began Callo, "these issues can't be decided on a motion to dismiss. Whether you believe in ghosts and haunted houses or not, these are issues for a jury to decide. Our burden of proof is only to prove that more probably than not, the house contains a hidden defect. That's not an issue of law for the Court to decide, but an issue of fact for the jury."

Judge Dupart twirled her finger at Callo. "What about this ‘as is' clause?" she asked him.

"Judge, we have evidence that the Bergeron heirs had actual knowledge of the defect in the house and that they failed to disclose it to the Helwigs. This is fraud, therefore the ‘as is' clause is invalid and unenforceable."

The audience murmured.

"If I may, Your Honor," Harris cut in, and the Judge nodded. "The Helwigs had ample opportunity to inspect this house before the sale, and in fact they had a structural engineer and a termite inspector to inspect it before the sale. The termite inspector even found an active termite infestation, at which point my clients paid to have the house treated. So, if they were so concerned about whether or not the house had a ghost infestation, they could just as easily have had the Ghostbusters to inspect it before the sale." Harris smiled wide, pleased with himself as laughter erupted in the audience.

"May I, Judge?" asked Callo.

"No, Counselor, you may not," retorted Judge Dupart, judging the audience was ready for her decision. "The motion to dismiss is granted. ‘As is' means ‘as is,' ghosts and all." She was not disappointed by the laughter in the audience. "Mr. Harris, please prepare a judgment."

"My pleasure, Your Honor," said Harris.

Stunned but not surprised by the abrupt decision and bogus reasoning, Callo knew it was futile to try to argue with the Judge, but he had to cover his bases. "For the record --"

Judge Dupart cut him off. "There is no record in this Court on motion day, Counselor, unless there's witness testimony."

Astonished, Callo noticed for the first time that there was no court reporter present. This is supposed to be a "court of record," he thought. "In any event," he pressed the Judge, "the Helwigs give the Court notice of their intent to appeal the judgment granting the defendants' motion to dismiss."

"As you wish, Counselor," said Judge Dupart.

Callo said nothing as he picked up his file to leave.

"Nice to see you, Mr. Harris," said the Judge.

"You too, Judge," replied Harris.

"Next on the docket, Ms. Johnson?"

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