“Would you really be my lawyer if I got sued for legal malpractice?” I asked Roy Chang whose Hawaii law firm was called Shim & Chang for short although Mr. Shim had long retired and the other partners separated from the firm.
“You could easily defend yourself,” he said complimenting me.
“No, Roy. I no longer have a huge office, not even an associate attorney, and I just got back from sabbatical leave....”
Mr. Walter Davis concluded the arbitration hearing. “This is a serious matter involving the legal profession of defendants and the injury of plaintiffs…I will do the legal and moral thing, or I have no business sitting here.”
He looked at all of us and announced his ruling. “My decision is for the defendants. You will all receive my written decision in a few days. There is absolutely no malpractice. Nobody committed malpractice.”
I won! The arbitrator clearly saw the total absence of malpractice.
“Do you know why they appealed?” I asked. “It almost seems that someone is advising them to keep going with a hit or miss, assume and guess.”
It was for the malpractice lawsuit of the Barnedo couple against me and my law office, my previous associates Ron Ashlock, Thomas Kaster, William Copulos, David Kuwahara, Thomas Walsh.
“Well, she was told that the jury gave you a low figure in your recent trial before Judge Sabrina McKenna. Jurors hate you.”
“That’s on appeal. How can I be prejudged? We don’t even know who the jurors will be in my case...”
“Can't you see how trapped I am? You are giving the jury limitless choices to find me negligent!"
“Oh? Trapped?” Roy was suddenly curious.
Harvey was silent and looked worried.
“I couldn’t explain my concern in a simpler way,” I said. “The ‘and/or’ is as monosyllabic as ‘me, Tarzan…you, Jane.’”
“Erlinda, the judge will not dismiss any count. Even the obvious illogical conclusion of the jury that you were negligent because you did not sue the Hawaii company that did not sell or distribute the noodle machine, and had absolutely no involvement,” said Roy.
“Why?” I asked. “That’s so common sense deduction. The law requires her to dismiss that count.”
“She’s not comfortable dismissing anything,” they said.
“She’s never comfortable to do what she’s supposed to do. She even ordered the jury to interpret the Hague treaty for her!” I exclaimed.
I called and wrote to Pohl. No response. Finally, a meeting was arranged with Sharon Himeno and Kenneth Okamoto in their office.
They were ready when I arrived. It was an eerie feeling. The same conference room, the same two people, Sharon and Ken. That was when we signed our joint venture and partnership agreement some years ago.
I remembered how Pohl was so delighted getting paid from our volumes of joint cases. Now, I was facing this lawsuit by our previous clients alone without any help from them.
I looked around. There could be visual cameras or audio recorders. Attorney Robert Marks who was married to the judge may be steps away from the room talking to Warren Price—the two recent State Attorneys General. And they were discussing my lawsuit. I had no doubt about that.
I checked my office calendar. A case was coming up for a jury trial. I was representing a young boy who sustained serious brain injury in a car accident.
The case was assigned to Judge Marks as the trial judge. My situation was getting worse. I wouldn’t give her another chance to stereotype me before an audience with her description of my law practice—like a Silas Marner hoarding his coffer of gold. Or to broadcast to her audience that I am hated by the jury.
If that happened again, or even worse, I would be publicly humiliated. But my clients—of my same brown color, and working so hard in this country—might feel discriminated, even despised. Their ideas of the decency and professionalism in courts, and their aspirations for the American dream, could be trashed. That would be so unfair.
I had to get out of the case.
It felt woefully lonely. The two attorneys I hired to protect my interest—Roy Chang and Harvey Demetrakopoulos —were not seated beside me. Instead, they were outside the room as the ready witnesses for my opponents and the
judge, and waiting to be called.
Appearing on the transcript, verbatim, word for word, my questions and the answers of the witness, Mr. O’Brien, were as follows:
“Q. (BY MS. DOMINGUEZ) You know that that’s important, don’t you?
A. I consider it exceedingly important.
Q. Okay. Since you consider that disclosure
and recusal, all of those exceedingly
important, as an attorney, did you remind
the Honorable Judge Marks, Judge, let’s
put this in writing, it’s very important,
it might decide the outcome of the case?
Did you say anything like that?
A. There was no reason to.
Q. You did not in other words.
A. No. I did not.
Q. Even if you thought it was very important.
A. I did not think it was necessary.
Q. That’s your best answer?
A. That’s my only answer.
I gave the witness a quick time to catch his breath, then I proceeded with my cross-examination. He had regained his composure and relaxed his guard. A portion of the transcript reads verbatim, word for word:
Q. “Okay. I’m not going to breach your
privilege with your clients ‘cause I
know better than do that, Mr. O’Brien,
but did you ever, ever, ever, put down in
your notes, as an attorney, that Judge Marks
disclosed her spousal relationship?
A. No, ma’am. I knew it anyway. I knew
it—I’ve known Bob Marks for a long time.
I knew where he worked.”
O’Brien glanced at the judge as he called her husband a nickname, Bob, instead of a formal Attorney Robert Marks. I was sure that he conveyed his silent communication of familial affection to the judge.
“You saw another mistake? What mistake?”
“The opponents did not serve their Notice of Appeal from the arbitrator’s decision on my co-defendants, my associate attorneys. That’s jurisdictional,” I exclaimed. “Therefore, the arbitration decision in my favor became final. I should never have gone through that humiliating, expensive, disastrous jury trial!”
“Your associates were dismissed, Erlinda. The opponents did not need to serve them the Notice of Appeal.”
“You never filed their formal dismissal, Harvey.”
The new judge, Judge Gary Chang, was a partner in a personal injury firm before his appointment. I was always for the plaintiffs and he was for the defense. Our relationship was adversarial, often very bitter.
Judge Hifo issued an order. She didn’t wish to be involved in oral deposition issues....Judge Patrick Yim was assigned the task. He confirmed in writing that he had no conflict of interest. His family had nothing to gain or lose in the lawsuits. He did not have strong feelings for or against anyone involved. His written disclosure was detailed.
O’Brien didn’t use the word “gossip.” But he testified that in a social conference, the Pohl partners called me “crazy” and continued to humiliate me and my legal practice. As if I was so far beneath them as a practicing lawyer in the Halls of American justice.
The deposition transcript shows verbatim, word for word:
“THE WITNESS (MR. O’BRIEN): Well, one of the
things that Mr. Price said was that he
thought you crazy.
- - - -
Q. (MS. DOMINGUEZ): Obviously, I was not
there to defend me, right?
A. You were not party to the
“I really want to help you, Ms. Dominguez. That’s why I scheduled this conference,” Judge Hifo said.
“How would you help, Your Honor? The malpractice case is now on appeal with the Supreme Court and it does not involve your court.”
“Your malpractice opponents should drop their case,” she said. “I totally agree with your ‘alien versus alien’ defense. Collection of that federal default judgment would be a severe fraud against our U.S. Constitution. It’s so clearly described as such in the law books and in court decisions nationwide.”
“And to pursue such ultimate fraud is so professionally unethical!” I blurted out.
Judge Hifo’s forehead wrinkled. She was looking extremely concerned. Then she asked, “Is it alright, Ms. Dominguez, if we remove the confidentiality of this conference? I’ll tell them what you said, and I’ll tell you what they said. We could function better that way. Nothing is confidential in this case.”
The courtroom was crowded. They were all supporters of Pohl, seated behind their three lawyers—William McCorriston, Kenneth Mansfield, Becky Chestnut. Even Francis O’Brien, the main attorney who sued me, was in their group.