Part III
If a judge forces a lawsuit to linger for years, exhaustion sets in. Even if the prevailing party is the one who should have prevailed, the outcome is at best a caricature of justice.
After eight years of filing the same motions over and over with the same outrageous results, my attorney, without telling me what he was doing, cut the scope of my lawsuit down to something that couldn’t possibly be appealed, held the trial, and walked away. If asked, he would have to deny that he did that because to admit it would make him liable for a malpractice lawsuit.
The Defendant had a bait and switch pricing scheme that took something between $150,000 and $200,000 out of the community over a period of years. He claimed to be a cost plus builder, in our case cost plus 12% and he so labeled the line on his spreadsheet, but a mathematical examination showed that he was charging cost plus 13.4%. The Defendant was careful not to provide us the evidence that would have allowed us to put an exact number on how much he took from the community using this scheme. Because the consumer protection laws feature an attorney fee provision, I would have gotten something in the nature of $70,000 in attorney’s fees if we had won. I likely would have also gotten another $60,000 in interest.
My lawyer agreed to jury instructions that required him to show that I wasn’t the only victim of bait and switch advertising and then presented no evidence of the scope of the scheme. When asked why, he told me it wasn’t material. If I had been on the jury and saw those jury instructions, I would have done what my jury did – find for the defendant on bait and switch.
I’ve already stated that despite substantial evidence that a proprietary information scam was afoot, my lawyer never mentioned the words. It was his “subtle’ strategy, but to what purpose other than to ensure that he wouldn’t have to fight the judge again?
So, who is Judge Larry Schwartz? On paper, I couldn’t have asked for a better judge.
He was a former officer of the Pikes Peak Association of Realtors, meaning that the Defense attorney shouldn’t have been able to bullshit him on what MLS sheets indicating that his client was in town at a time when the attorney was claiming that he was out of state for 40 plus days to avoid providing discovery and to avoid participating in a scheduled deposition.
The 2006 4th District Judicial Performance Commission wrote of him:
Judge Schwartz received high ratings from both attorneys and non-attorneys in every category, especially in the areas of maintaining appropriate control over proceedings; giving proceedings a sense of dignity; making sure all participants understand the proceedings; speaking clearly and making decisions without fear of being appealed. Of the attorneys, 83% recommended Judge Schwartz be retained in office, 14% somewhat recommend retain, 3% recommend not retain and 0% recommended he not be retained in office. Of non-attorneys responding to the questionnaire, 93% recommended retention and 2% recommended non-retention.
A part of this evaluation is an attorney survey. The attorneys thought Judge Schwartz an outstanding and decisive judge:
Average District Judge Judge Schwartz
Overall score 3.4 3.7
Overall case management 3.4 3.6
Overall app and knowledge of law 3.4 3.5
Overall communications 3.6 3.9
Overall demeanor 3.5 3.8
Overall diligence 3.4 3.5
Promptly Ruling on Pre-Trial Motions 3.3 3.5
Setting Reasonable Schedules For Cases 3.3 3.5
Basing Decisions on evidence and arguments 3.6 3.3
Being able to identify and analyze relevant facts 3.6 3.4
Using good judgment in app of law and rules 3.3 3.5
When attorneys were asked to give Judge Schwartz a grade on “Promptly Ruling on Pre-trial motions” not a single attorney gave him a D or F.
Judge Schwartz shares the high opinion of his qualifications as a jurist, having applied for a Supreme Court vacancy in 2005.
Compare this Judge Schwartz with the Judge Schwartz who showed up for me and acted consistently for eight years.
· It took him 27 months to rule on one pre-trial 2003 Defense motion for a protective order. The judge was told in writing three times that his failure to rule was being used by the Defense to withhold discovery and only ruled after the Defense admitted as much. His ruling consisted of one sentence, but it wasted 27 months. State law gives district court judges a maximum of 3 months to rule on motions. Judge Schwartz promptly rules on pretrial motions except this in my case.
· Ignored for two years the fact that the Defense attorney wasn’t responding to our motions, claiming not to have been served. When my attorney double served the Defense attorney, he still claimed not to have been served. Judge Schwartz uses good judgment in applying the law and rules except in my case.
· When we found evidence in the Pikes Peak Association of Realtors MLS that the Defendant was in town when his lawyer was claiming that he was on a 40 day vacation in Florida to avoid providing discovery and attending a deposition the lawyer had agreed to, Judge Schwartz preferred sarcasm over fact in the argument, even though he had been an officer of PPAR and knew exactly what the MLS documents showed. Judge Schwartz bases his decisions on evidence and arguments, except in my case.
· When the Defense attorney once again claimed that his client was out of state to avoid a deposition, we required a protective order. The attorney prepared the order two days before the deposition and then held it until after the time of the deposition in an attempt to run up our bill. At the same time, he claimed that we were running up his client’s bill. The Defendant was not out of state, he was in Breckenridge. Judge Schwartz took no action but bases his decisions on evidence and arguments, except in my case.
· Even though the Defendant provided documentation that supported his attorney’s delay tactics in 2003, Judge Schwartz pretended not to notice that inconvenient fact three years later. In 2006, the defendant filed two back to back affidavits to get the lawsuit reinstated after it had been allowed to go to default judgment. The first admitted that he knew of discovery requirements in mid 2003 and the second claimed that his attorney withheld the requirements from him for months and acted alone. Judge Schwartz ignored the record and the obvious attempt to mold the contents of the second affidavit to the needs of the Defendant and granted the motion to reinstate the lawsuit. Later, he claimed that he had given the defendant the benefit of the doubt. Judge Schwartz bases his decisions on evidence and arguments, except in my case.
· Just getting Judge Schwartz to initially grant the motion for a default judgment required a threat to Judicial Discipline that if he did not rule on a motion that was by then four months old, I would file a complaint. Schwartz ruled and back dated the ruling to conceal the fact that he was ruling on the last day I gave Judicial Discipline. Judge Schwartz promptly rules on pretrial motions, except in my case.
· In the same order reinstating the lawsuit, Judge Schwartz attempted to force a trial within 16 days without any attempt to solve the underlying discovery issues other than to finally rule after 27 months that we were entitled to discovery. It is impossible to guess how he thought that we could get discovery, finish a deposition, and get to trial in 16 days. Judge Schwartz sets reasonable schedules for cases, except in my case.
· Over five years, we asked for a default judgment four times because of the complete non cooperation of the Defense. The first time, we asked because the Defense would provide no discovery and had dodged two agreed upon depositions with claims that the Defendant was out of state. Judge Schwartz signaled his intention not to enforce any court rule with a $150 sanction that was never paid. The default judgment motion cost $1500 to prepare, so even if the sanction had been paid, it wouldn’t have covered my obvious costs. The sanction was so minimal that any attempt to force collection would cost more than the sanction would produce. Judge Schwartz uses good judgment in the application of the law and rules, except in my case.
· In 2004, I submitted a 30 page, 12 item list of examples of plain attorney misconduct. Judge Schwartz was required by both his own ethics rules and by court rules to take action. He took no action. That left the attorney free to steal $50,000 from other clients and do $750,000 in damages to one individual. Judge Schwartz uses good judgment in the application of the law and rules, except in my case.
This is just a sample. Despite an obvious record of misconduct by both the Defendant and his now disbarred lawyer, Judge Schwarz ran interference for them for five years in ways that suggest that he was intentionally trying to sabotage my lawsuit.
Until now, I have observed that I have never met Judge Schwartz nor been in the same room with him. What I have not revealed is that there is a high probability that he had a reason to damage me. In 1996, I wrote a letter to Judge Gilbert Martinez identifying myself as a potential court reformer. Only three people should have seen that letter. In December 2000, a burglar left a print out of that letter on my office closet floor, suggesting that he thought that it meant that I couldn’t get a fair hearing in the Colorado courts. Simultaneously, the Defendant’s attorney suggested that we drop the lawsuit and go to arbitration.
How did Judge Schwartz’s actions damage me?
· We needed to prove that a proprietary information scam existed, and to do that we needed to know when the Defendant had started marking documents proprietary and how consistent he had been. In 2003, the Defendant told us he had so many documents that he would provide samples, but provided nothing. In 2007, he told us that he never kept anything and had nothing.
· We needed those same documents to prove that the damage of his bait and switch pricing scheme impacted the public at large.
· He was a cost plus builder, meaning that he provided bills and copies of checks to the bank and collected his fee based on the amount of those checks. Not all subs prepared their own bills, allowing the builder to prepare the bills himself. When I discovered that one sub (actually two) had charged me 50% over the going rate for that skill, I wanted to see the builder’s check records to see if he was writing but not issuing checks. When we got the statements, seven years later, the builder provided nothing for the period that our house was being built. The later records that he did provide showed that on average, six checks a month were never presented to be cashed. The builder claimed under oath that those represented spoiled checks written in the field. The checks that he had presented to my bank were in sequence and printed using a program like quick books. Judge Schwartz ran interference for the builder so long that the bank had destroyed its records by the time we knew we needed to get them from the bank.
· I had a burglary problem discussed elsewhere. While I can not accuse the builder of being the burglar, and will not, I thought the burglaries might stop if I could get photographs of the builder and that I might even bring the issue to a conclusion by canvassing the neighborhood. For 27 months Judge Schwartz refused to rule on a motion that prevented my getting the photos. I did get the photos, in 2007, seven years after I was first aware that I had a burglary problem and two years after what I have called “phase four” of my experience commenced.
· I asked in discovery for the dates that the builder had visited my neighborhood and the locations he had visited. In 2003, I was told that he had no records. That wasn’t the question. In 2007 he finally claimed to have driven by my home once and had picked his insurance agent up for golf from time to time.
· Judge Schwartz helped the builder keep the list of contractors who the builder claimed had bid on my house secret until 2007. That ensured that I could not follow up on my theory that he had had no sub bid on the house after framing and HVAC in the expectation that he would leave me with no means to disprove a future claim that any sub I used in my building business was one he claimed to have told me about. That also effectively stopped me from restarting my business for seven years.
· When the motion in limine was filed to preclude the introduction of the police report and the police officer’s testimony, Judge Schwartz refused to make a final ruling until the day of the trial, forcing us to prepare for the event that he would rule against us and running up my bill.
· When Judge Schwartz reinstated the lawsuit, he observed that I had been the victim of three years of attorney misconduct but allowed us to collect for only one year. Because the Defendant’s lawyer had malpractice insurance, he is getting that one year back. I’m the person who was victimized by malpractice and the only one required to foot the bill. Judge Schwartz, after opining that I was the victim of three years of misconduct allowed a fourth to occur and forced us to file for still another default judgment which he refused to grant.
· If someone in authority were to examine the events and decide that someone should be prosecuted because he has committed a crime against me, it would be impossible. Judge Larry Schwartz has made certain that they can never be prosecuted due to the expiration of the statute of limitations, not once, not twice, but almost three times.
I could go on, but I don’t think that there is any question that Judge Larry Schwartz needs to explain why his conduct in my lawsuit was so out of character for eight years, especially given that he may have had a motive for his actions.
No one should read into this paper any criticism of my attorney. He could only beat his head against a wall for so many years, and I think that eight (years) is enough.
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