We thought that the arresting officer was both off duty and had been drinking. Witnesses saw a plainclothes officer come out of a bar and smack our client's head against the roof of his car. However, the arrest reports said nothing about a plainclothes officer. Instead, the paperwork indicated that arrest was made by two uniformed officers in a patrol car.

Our client was transported from the scene in a squadrol (a police wagon). At deposition, the wagon driver said that he had been dispatched to pick up a prisoner being held by a plainclothes officer. When he arrived, there was no plainclothes officer to be found. He saw two patrolmen in uniform, and asked if they saw a plainclothes officer with a prisoner. The uniformed officers said "No". He left, but before he got very far, he was called back to pick up a prisoner held by two uniformed officers. The same officers now produced our client, and the wagon driver took him to jail.

We suspected that the uniformed officers arrived, saw that the plainclothes officer had been drinking and had roughed up our client, and told the plainclothes officer to get lost. I knew from prior cases against the police that whenever a squadrol is sent to pick up a prisoner, the dispatcher filled out a card identifying the officer who called for the wagon. If we were right, the dispatch card would have the identification of the plainclothes officer who actually made the arrest. We sent a request to the City's lawyers to produce the dispatch card.

After some delay, the lawyers got back to us and said that the card had been inadvertently thrown out. We didn't believe it. Our plan was to let the jury know that the City's lawyers had the name of the plainclothes officer, but say that they threw it away. The City decided to fight back. They called someone from their records department as a trial witness. The records keeper said that he looked for the card, and that it was not found. He said that many of their records were lost in the process of switching everything to computerized records. Fortunately for us, that is not all that he had to say.

I asked him when they started converting the dispatch cards to computer records. He told me the date. It turned out that they did not start converting the dispatch cards until almost a year after we sent our request for the record. He confirmed that no one ever asked him for the card until just before the trial started. Further, the record keeper said that although the card was lost, the name of the arresting officer would still be in their records. He said that the cards were only lost after the information on the cards had been entered into their computer.

So, the City could have easily gotten the name of the arresting plainclothes officer. For all we know, they did. I told the jury that the City's lawyers must have thought they had a very strong reason to hide the identity of that officer. The judge told the jury that they could presume that the City hid this evidence because it was harmful to them. The jury told the City to pay our client $1.9 million. I'm sure the record keeper's testimony played a part in the jury's verdict.

So, the moral of the story is that a lawyer who puts a witness on the stand without a complete understanding of what the witness will say is asking for a pie in the face. Why did the City put the record keeper on the stand? Because they thought that they needed to show why they were unable to say who called for the wagon. There is nothing wrong with the plan. However, a good lawyer would have spent some time with the witness. A good lawyer would have learned that the witness might do more harm than good. A good lawyer would have realized that the first thing to do when you are in a hole is to stop digging.