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Lawyer Tries To Beat Flooding Case By Arguing, 'What If It Never Rains Again?'

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When your client’s on the hook to pay for sewage overflow dumping nine feet of effluent into someone’s basement, it’s probably time to settle. But if settlement isn’t in the cards, it’s an opportunity to let those creative juices flow. Sometimes that will produce a true gem of an argument.

Sometimes it will produce more effluent.

The Finney Law Firm blog tells us the story of one of the weirdest expert cross-examinations ever:

This trial was an MSD claim relating to the MSD’s administrative claims process for basements subject to sanitary sewer backups. This case was an extreme instance in which our client experienced more than 9′ of effluent that came into his basement on a regular basis, and MSD simply refused to stand behind its obligations under a consent decree arising from prior litigation with the US EPA.

That sounds… awful. But it also sounds like a case that shouldn’t have to go to trial. If effluent is ending up in this basement then it needs to be repaired.

That’s when Tim Sullivan of Taft, Stettinius & Hollister representing the defendant opted for this line of questioning of the plaintiff’s expert witness:

Q. And if we had no rain, if climate change really turns out to be as dire as some people tell us, you would agree this property would have no problem in the future?

A. If there was no rain?

Q. Right, or not enough rain to cause any surcharge from any part of the Sewer District system.

A. Yeah, I would think the property would be — certainly you could take another look at living there and going there if you have no risk of backups, any kind of backup.

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“Everyone knows it rains in Cincinnati, what my case presupposes is… maybe it won’t?” What kind of Eli Cash nonsense is that? As the Finney blog continues:

I must admit it was a creative question: “What if it never rains again?” Brilliant! And we already had our lineup of witnesses named. Who could testify with requisite expertise that, in fact, Cincinnati would experience a rain event in the future?

We ultimately settled the case. But after 30 years of doing this I once again learned the hard lesson that lawyers can argue over absolutely anything.

It’s arguments like these that remind us of one of our favorite lawyers, Pepper Hamilton L&E associate Rogers Stevens who once wrote (or at least helped write): And I don’t understand why sleep all day/And I start to complain that there’s no rain.

Perhaps that’s a new slogan for the firm. “Do you suffer from narcolepsy? Do you live in a sun-scorched hellscape amid roving bands of cannibalistic scavengers? Taft, Stettinius & Hollister can help.”

THE BEST EXPERT WITNESS CROSS EXAMINATION QUESTION EVER! [Finney Law Firm Blog]

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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