Having bared my soul and written about one of my biggest professional embarrassments yesterday, I thought it might be appropriate to talk about a success. Then, tomorrow, we can think about turkey (or whatever you have instead of turkey, like a …… turkey sub).

So, in 1989, my first law firm imploded (another story waiting to be told anew), and I – along with about 20 of my fellow lawyers joined the Washington office of a large, multi-national, New York based law firm (still another story to be told anew), which I hated.

Putting my hatred aside, our new office was composed of the 20 or so of us from the old firm (maybe not quite that many) and an equal number of lawyers that had been with the new firm previously, or who came to the firm from elsewhere. We were an odd mix.

Now to my triumph:

The client was a Pittsburgh based construction company that had acquired a multifamily property in Pasadena, TX (suburban Houston) directly from HUD. It was a failed property. HUD had foreclosed on the original mortgage, and taken title to the property. Now it was selling it to the highest qualified bidder, providing (as I recall) both financing and a subsidy so that the property could serve low income families. The property required a significant amount of rehabilitation before it would be ready for occupancy.

When HUD put foreclosed properties up for sale, it issued a prospectus which described the property and the terms of the sale. One of the terms of the sale, as described, was that HUD was going to provide rent subsidies under the Section 8 program to the buyer, and that these subsidies would be available at the time title transferred to the buyer.

Our client bought the property and was told by HUD that the subsidies would not be available until after all the rehab was completed and the property inspected and approved by HUD. They said that, notwithstanding what they said in the prospectus, this is what they meant to have said. This would have made the purchase infeasible.

We sued the government for breach of contract (I don’t remember the details of the claim exactly) in the United States Court of Federal Claims. While I never was, nor wanted to be, a full time litigator, I have been involved with a fair amount of litigation over the years, and from time to time argued cases in court, but I never did it solo, and usually not as the lead counsel. I was often the strategist, the one most versed in the facts and the law, but never the one most versed in courtroom procedures, so I relied on someone else to make sure motions were filed when appropriate, deadlines weren’t missed, and the opposing counsel’s filings monitored.

In this case, I worked with a senior associate who had been with the new firm for a number of years, and was very highly regarded. I was the partner on the case, and therefore in charge, but I was very reliant on him for the procedural details. We also decided that he, since he was a full time litigator, would do the actual arguing, although I had written all of the briefs, etc. He and I carefully went over what he was going to say, and rehearsed. I went into the court room confident of our position and of his ability to present it.

The judge, whom I had met on a few pre-trial meetings, was quirky. That’s all I can say – he was a quirky guy. When it was time to put forth our case, he called on my associate, who went up to present it. After he said a sentence or two, the judge interrupted him with a question. It was pretty quick for that kind of an interruption, but as I recall, I thought the question itself reasonable. My litigator fumbled around a bit trying to answer it (I am not sure if he really ever did), and when he was finished fumbling, it was time to get back to his presentation of our position. But something happened. It was like the question threw him completely off-track, and he had no idea how to get back on course. Like he forgot everything we talked about. Like he forgot what the case was about. He finished and sat down.

I couldn’t believe it. Our winning case went down the drain. I was aghast. And it must have shown on my face, because the judge looked down on me and said, “Mr. Hessel, you look unhappy. I don’t want anyone in my court room to be unhappy. If you want to add anything to Mr. ______’s presentation, come on up and address the court.”

Wow! How often does that happen? I got up and explained what we were trying to say. I knew the situation cold, so it really wasn’t an effort. I was just explaining it, the same way I would explain it to you. And then I sat down.

Some time later, the judge issued his opinion. We won the case (as we should have). But, quirky fellow that he was, his opinion was equally quirky. I have read many, many judicial opinions, and none of them mention a lawyer, unless the lawyer is being targeted for some malfeasance. But in this case (and I am not looking at it now, so my language will not be exact), the judge said:

“In fact, I was about to rule in favor of the government, but then Mr. Hessel stepped up to the podium and convinced me of the correctness of the position of his client.”

Yes, this is written in the published opinion of the Court of Federal Claims.

So, this was a success. And the lawyer who almost lost the case for us? No, he did not become a partner in the firm. And, no, I don’t know that I ever spoke with him again. Happily, I have completely forgotten his name, his appearance, or anything else about him.