【Episode 27 – A Petty Lawsuit (4)】
“The Pro Bono case managing attorney is pickier than I thought. But on the other hand, I get it. The claim amount is huge, after all.”
“So what are we going to do now?”
“Should we ask my brother?”
“Your brother at Kirkland?”
“Yeah.”
“Do you think he’ll take it?”
“He won’t do it pro bono. But since the lawsuit amount is large, if we persuade him well, he might agree to do it on a contingent fee basis.”
“Michael, that’s a good idea!”
“Really?”
“Then should I ask him? Heon, what do you think?”
If there was no way for us to take the case, that plan wasn’t bad either.
However, the reason we had gone to meet the owner of
“No, let’s try harder to take it on ourselves first.”
“How? The Pro Bono Director said ‘no discussion.’ He didn’t seem like the type to budge if we begged.”
He looked just as stubborn as Professor Mitchell.
Then we would have to find another way.
“Donguk-hyung, would you come with me to meet Professor Mitchell?”
“Huh? Oh, sure. Let’s go. Just the two of us?”
“Yes, I think that’s better this time.”
***
Next day, afternoon.
Vanderbilt Hall, Room 411.
Knock, knock, knock—
“Yes—.”
“Professor, we’re here.”
“Oh—come in.”
After making an appointment by email first, we visited the professor’s office the next day.
I was still slightly nervous in front of Professor Mitchell, but he was much kinder than when we had first met.
“The reason we came is······.”
“I read the email Jeheon sent me carefully. And I spoke with Kyle Peyton as well.”
Kyle Peyton was the name of the managing attorney in charge of NYU’s Pro Bono department.
When I sent the email to Professor Mitchell yesterday, I hadn’t simply asked for a good time to visit.
I briefly explained the facts of the Haejangguk restaurant case, what the issue was, what the relevant laws were, and attached a legal memo arguing why we absolutely had to take this case, formatted in IRAC style.
｢Legal Memo (or memorandum of law):
A legal opinion document primarily written to be shown to clients or fellow attorneys.
In format, it is no different from a brief. However, it is written from a more objective perspective.｣
Perhaps because my email was detailed and quite earnest, he had checked with Kyle Peyton.
“After reading Jeheon’s email, I was honestly almost convinced.”
“Does ‘almost’ mean you don’t agree with our opinion?”
“That’s right.”
“May I ask why? Is it because the claim amount is too large?”
“That is certainly a major hurdle, but I’m more concerned about something else.”
“What is that?”
Before continuing, Professor Alastair Mitchell poured himself another cup of tea. He looked as if he was organizing his thoughts.
“A considerable number of lawsuits currently filed in various state courts are lawsuits without merits. Nevertheless, not many cases are dismissed as frivolous litigation. Do you know why?”
“Isn’t it because they are difficult to prove?”
“That’s right. As Jeheon mentioned in his email, to argue frivolous litigation, two requirements must be met. One is that the lawsuit lacks legal basis, and the other is that there is no possibility of winning. In practice, these are very difficult requirements to prove.”
“Are you saying it’s difficult to assign the case to us because we have no practical experience?”
I grew anxious, thinking that Professor Mitchell, whom I had pinned my hopes on, was about to say the same thing as Kyle Peyton. I interrupted and asked. Fortunately, he didn’t seem offended.
“Correct. However, seeing you and Donguk come together today, I suppose you’re going to refute that refusing due to lack of practical experience is ignoring the fact that Donguk is a practicing attorney with experience in Korea.”
On the contrary, I felt as though he was enjoying the debate.
“That’s right. Donguk is a veteran attorney with more than six years of litigation experience in Korea. It’s hard to accept that such a person can’t be entrusted with pro bono work due to lack of experience.”
“This isn’t just any pro bono work. It’s a $7.2 million lawsuit.”
The claim amount was undeniably large.
“The client wants to entrust the case to us.”
“I know. Then let me ask Donguk a few things. Is there a legal concept in Korea similar to frivolous litigation?”
Before answering, Donguk glanced at my face.
“It is not exactly the same, but a similar concept exists.”
“Is that so?”
“Yes.”
“Then have you ever handled such a case?”
“Yes.”
It wasn’t a lie.
He had answered “similar,” and since hyung had taken on a case of “false accusation.”
If the professor had asked for more details, it could have gotten awkward, but as hyung predicted, he didn’t, and that prediction proved correct.
Donguk-hyung wanted to take this case too.
“Hm—very well. Then I won’t refuse on the grounds of lack of experience. However, American litigation procedures and the legal system differ from Korea’s. Moreover, there are differences between states, so unless it’s a federal court case, an attorney from another state cannot take a case in that state. Therefore, if I let you take this case, you must follow my instructions. Understood? That’s my condition.”
Those words meant that if we accepted the conditions, he would help us take on the Haejangguk restaurant case.
“Yes, we will!”
***
“We did it, Heon!”
“Yes, hyung!”
“He acted like he wouldn’t do it at first, but then he agreed.”
Somehow, I had a feeling he would if we persuaded him well.
He himself had suggested that we find a case to take on, and we had found one following that suggestion.
Of course, the claim amount was large and the case’s issues might be tricky, but I figured he would feel rather uncomfortable adamantly stopping students who had acted proactively under his own instructions.
Besides, he was a professor with strong pride.
I didn’t think he would say we couldn’t do it because the case was too difficult.
“It seems he’s entrusting it to us because you’re a lawyer, hyung.”
“Your strategy worked. Alright, so now instead of reporting to Kyle Peyton, we report to Professor Mitchell, right?”
For an NYU Law student to take on a pro bono case, first, the client’s consent was needed, and second, a supervising attorney was required.
The latter was usually the school’s Pro Bono Director, but depending on the case, it could be a professor or an attorney.
Our case would now be supervised by Professor Alastair Mitchell.
“I think this turned out even better.”
“Yeah.”
“Alright, so what should we do first? The professor told us to carefully examine causation and the excessive damages amount first, so we should start with that. I’ll tell the others to look for relevant precedents.”
In exchange for allowing us to defend the Haejangguk restaurant case, Professor Mitchell had set one condition.
｢“If I let you take this case, you must follow my instructions. Understood? That’s my condition. If you disobey my litigation instructions, I will tell Kyle Peyton to replace you with more experienced students.”｣
After saying that, he had instructed us to target the insufficient causation and the excessive damages amount, saying there wasn’t enough evidence to argue frivolous litigation in this case.
“No.”
But I had no intention of doing that.
“What do you mean, no?”
“I’m going to proceed with the deposition first.”
At my answer, Donguk-hyung’s expression darkened.
I understood. We had just agreed to the professor’s instructions, and now my actions were different... Moreover, if things went wrong, it could be an action that would get us on the bad side of the Moot Court coach professor we had worked so hard to secure.
But this time, I was right.
In the third trial that would take place five years later, this case would be ruled as frivolous litigation.
I was simply trying to move that up.
“That doesn’t sound like a good idea.”
“Hyung, earlier when the professor asked if there was a similar concept in Korean law, you said yes.”
“That’s...”
“I know. It’s not that you lied. But you answered that way knowing full well that the professor’s question wasn’t really about that, didn’t you?”
“...So you’re saying you did the same? Get permission first and think about the next step later?”
“Yes.”
Donguk-hyung’s expression grew much more serious.
“Heon, this isn’t some school project. The professor is right. It’s a lawsuit worth nearly 10 billion won. Even if most of the amount is inflated, it’s a staggering sum.”
“I know.”
I answered as seriously as I possibly could.
“Are you that confident?”
“Yes.”
“What’s your basis?”
“Hyung.”
“Go ahead, tell me. You must have some idea if you’re acting like this. Are you planning to call that woman, Samantha Chen? If so, she already refused to testify.”
“Samantha Chen will testify.”
I would make sure of it.
“But I’m not planning to summon her for this deposition.”
“Then who?”
Every lawsuit needs a strategy.
Even if I knew the whole truth, revealing my cards in haste could ruin everything.
To smash that bastard’s malicious lawsuit from the outset, more than anything, I needed to obtain a statement with legal force that he couldn’t later contradict.
“Him.”
The lawyer bastard who made the absurd claim that he ruined a trial because he burned his tongue eating gukbap.
Maxwell Donahue.
A Petty Lawsuit (5)
56 Wall Street, New York.
Office of the law firm Davidson, Dunn, & Hamilton.
“Looking at the complaint you submitted to the court, you acknowledge that the owner of
“It’s true.”
“But you stated that you did not understand that statement as ‘the temperature is hot,’ but rather as ‘the food is spicy.’ Is that a fact?”
“It’s true.”
“You’re wearing glasses now. Were you wearing glasses on the day of the incident?”
“What?”
“Could you please answer?”
“Good grief, I don’t remember clearly, but I think I was. Satisfied?”
“You were wearing glasses. There is footage remaining from the entrance CCTV on that day.”
“Yeah, well. I suppose I was.”
“Could you please touch this takeout coffee cup?”
“What are you trying to do now?”
“Please bring it up to your mouth. It is an important experiment to properly understand the situation at the time.”
“Ha—this is driving me crazy. There, done?”
“The coffee I gave you is approximately 50°C, whereas the gukbap served at
“Hey, students. You said you go to NYU Law School? I’m doing this as a senior in the industry to give you good experience, since I heard students are defending this case pro bono. This isn’t how you do a deposition. Are you interrogating a criminal suspect right now? Why are you asking about my fault? You should be confirming the facts.”
“Are you saying it wasn’t your fault? Please answer the question.”
“Ha—this is insane. Fine. I’ll say it one more time, so record it well. The owner’s warning wasn’t clear, so I ate without accurately receiving the information that the food was hot. I thought it would be ‘warm,’ not ‘hot.’ Honestly, the fact that food is served that hot is itself a problem. It’s dangerous. I don’t know what the customs are like in Korea, but this is New York. The restaurant is largely at fault. Don’t you think so?”
“So what you’re saying is...”
“I’m not finished yet. Now, you said my glasses would have fogged up? Maybe... maybe not. But that phenomenon can happen whenever there’s a large temperature difference. It happens when you come into a room at room temperature after being out in below-zero weather, you know? You’re going to conclude from something like that that the food was hot enough to burn? You’re quite something. Must be nice. I can’t do that. Is that the answer to your question?”
...
“Let me confirm one last thing. You are now claiming that if you had correctly understood the owner’s warning as ‘the food is hot, so be careful,’ you would not have eaten it so hastily. Is that correct?”
“No matter how inexperienced you students are, this is too much. How many times are you going to ask the same question?”
“Is that your claim? Please answer.”
“Hahaha. Yes, that is my claim.”
“Then, that is to say, if you had not eaten hastily, you would not have suffered the burn in your mouth, and if you had not suffered the burn in your mouth, you would not have been hindered in presenting arguments at the trial that took place on the day of the incident. Is that right?”
“Yes, that’s right. A lawsuit with $7,100,000 at stake, yes. Are we done now? Too bad if not. I’m busy. If you have more to ask, do it on the trial date, okay?”