Dam Lawyers

I’m sitting in a packed, Perry Mason courtroom; in an elevated, dark-oak witness box, testifying about the 30-million-dollar liability for a dam breach flood.  In my tweed jacket with elbow patches and a turquoise Bolla, I feel so ponytail-professorial that I might as well be smoking a pipe.  It is tense but I feel relaxed and empowered by being the uninterrupted center of attention and the hydrology expert with 40 year’s experience.  My attorney; an old school, hardworking, dick swinging litigator, Mormon A-team, West Point type, tough guy in a thousand-dollar suit, starts asking me some technical questions that involve some mental mathematics and unit conversions.  I answer the first one and take my best guess at the numerical magnitude of the results.  He seems impressed but skeptical, so he pulls out his phone and incredulously asks Siri.  It turns out I get the answer right, plus or minus.    I’m a math man, a numbers guy but I am perplexed.  He asks another similar question, obviously un-rehearsed, with the same results, the judge and jury look at us quizzically since lawyers typically don’t ask a question that they don’t know the answer to.   When we do it successfully a third time, the grey-haired, owl-wise judge smiles and the disheveled, working-class jury laughs out loud.  The ice is broken.  They trust me, and more importantly, they like me.  Now I can tell them anything and they will believe me.  We are halfway there.

We had been working on this case for five years, thru Covid and numerous other delays.  We have had mock trials, arbitration, mediation and negotiation, with endless days of fieldwork and surveying and countless nights of inundation computer modeling and risk calculations.  Our crack legal team, the best in the west, invited me originally to ‘just have a look’ at the evidence and the case and ‘just give them some ideas’.  It was pushing my ambition and comfort zone but I became embroiled personally and professionally early on and was committed to my limits.  Once it started there was no way out of it since if you are in for a dime you are in for a dollar.  I was our only expert against the opposition teams that kept changing and expanding and requesting more information and delays.  Never-the-less I had convinced our team that we could win this one; for we were on the right side of truth, justice and the American way, but they repeatedly reminded me that it was ‘my case to lose’.  This was not my first rodeo but it was my biggest.  Besides, they consoled me avuncularly that it was not my money and we would settle out of federal court.  They always do. 

But we didn’t.  The mediation and negotiations were not in good faith and there was very little pursuit of truth and justice, just a desire to keep the process adversarial and billable.  The attorneys were impressive, quick studies in the facts and the nuance of hydraulics and hydrology, meteorology and dam safety.  We would work long days training on; not what to say, but how to say, it with late night dinners devoted to what questions to ask to the plaintiff.  I was not sure who was training who.  At every pivot point they would craft these masterful memos to the court and the opposition, seemingly out of nowhere, instantaneously, over a long night or weekend, that dove to the heart of the matter elegantly and efficiently with perfect punctuation and grammar. We would submit voluminous expert reports only to have the competition vindictively destroy them requiring us to destroy their rebuttal reports in a vicious cycle of he-said, she-said acrimony.  It is a nasty business. 

              Over the period I fell victim to several bike crash concussions that compromised my heart, vision, mental acuity and emotional perturb-ability.   Wanting to make sure I was still competent and coherent; I undertook a day long intelligence test for full disclosure and personal confidence.  The test involved analytics and memorization, problem solving and critical thinking.  The results indicated that in the morning my analytical ability was off the charts but faded by afternoon when ‘I don’t freaking care’ was my preferred answer.  This did not come to a surprise to me since my irritability had increased in the afternoon, especially if I was unable to take a timely nap.  I shared the results with our team and it was all ‘duly noted.’  ‘Stay in your lane and don’t blow smoke’ was their advice.  ‘Do not drift from what you know and what your expertise.  Beter to be a curmudgeon than a charlatan.’

              Coming down the home stretch, on the second afternoon of two tough days of my testimony, the plaintiff’s attorney kept misinterpreting my data and graphs, falsely concluding erroneous hypotheticals.  He repeated and rephrased the same question several times and I looked to my bench for some relief with an objection of ‘badgering’ or ‘asked and answered’ but there was no response.  Inappropriately and non-proportionately, I raised my voice and chastised him for misconstruing the data and misleading the court.  In my diatribe, when at a loss for a word I came up with a better word.  I was in the ‘you can’t handle the truth’ zone.  When I calmed down and finished, almost apologetically, I looked at the judge who grinned slightly in approval.  ‘It had to be said’.  Then I looked at the jury, who, to a person, nodded their head understandingly.  ‘It’s Friday and it’s about time’.  I looked at our bench and they smiled wildly.  ‘Game.  Set. Match.’   They used my weakness to prevail.  It was over.  We had just won. 

After the two week trial, he jury deliberated for two hours and exonerated our client of all culpability.  The famous Force Majeure - Act of God and the But/For - incremental damage defense prevailed.  We appealed successfully to the jury’s personal predilections and anecdotal instincts.  They liked me and knew this was a big flood that was nobody’s fault.  The plaintiff was ordered to pay all our client’s legal and engineering fees.  Our head litigator came to me, paternally clasped my shoulder and told me that I had won it for them, but we shook hand and celebrated the team.  I said that I was dropping the microphone and was done with this nefarious exercise.  They said that I was now ‘the man’ and could name my pay rate since they always think they will win and the other guy will ironically pay the bill of the guy who beat them.  The team flew home that night to their families, but I stayed and went out for a big dinner alone.  The owner saved $30 million and gained $20 million on the property sale value that was delayed by the trial.  I had room service for breakfast and an Uber to the airport. 

              I enjoyed the experience but lament that the real engineering issues were never brought out in court, by accident or design.  I thought that, in the end, despite the maneuvering and mal-intentioned machinations, the final verdict was the right one, almost by accident, but probably by the system that has been serving us for so many years.   I went back to my simple life as a field hydrologist, decommissioning dams and restoring rivers.   My final vindication came a few years later when our old plaintiff, my nemesis, called me to ‘just take a look and give them some ideas’ on a new case they were working on.  Nahhhh.