Five Decades in Court
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"Lieutenant, may I make a career suggestion. When you get out of law school, pick a specialty that keeps you out of court." That’s what my commanding officer, Major Willems, told me at the end of 1956. I was a first lieutenant in the 519th AAA Battalion, stationed inside the Hanford Atomic Energy Reservation. I had been called to active duty in the Army in June 1955, after finishing two years of law school.
Because of my legal training, I was often appointed to defend soldiers charged with Court-Martial offenses. The Major’s suggestion was made shortly after I had unsuccessfully defended an enlisted man on a charge of negligent damage to government property. He had wrecked an army three-quarter-ton truck. One of the senior officers who convicted my client was a friend of Major Willems, and he’d apparently told the Major that I’d screwed up.
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Major Willems either forgot or didn’t heed his own advice, because several months later he appointed me to defend a private on charges of forgery and bigamy. The private’s battery commander thought he was a "knuckle head." As military veterans know, many commanders used the court-martial as a vehicle to weed out problem soldiers, and that’s what this commander tried to do with my defendant. The story went like this.
The private was from Alabama and had minimal education. When he was about twenty, he married a fourteen-year-old. My research revealed that fourteen-year-olds could marry in Alabama. As you might expect, the union didn’t work out, and my client went to a local lawyer for a divorce. About that time he joined the Army because he couldn’t find another job. Before he reported for duty, he checked with the lawyer and was told the divorce would be final in a couple of weeks. Over a year later, when he was stationed at Hanford, he met a girl in Richland, Washington, fell in love, and got married.
Somehow his parents discovered that the local lawyer had never gotten the divorce. My client, not being very smart, went to his battery commander and asked for leave to go home to Alabama to straighten things out. The light went on for the commander, and he denied the request and began preparing bigamy charges. My client went AWOL and returned to Alabama. He met with the lawyer, who finalized the divorce. My client’s mother then altered a copy of the decree by backdating it to a date before his second marriage. When the private returned to his unit and presented the copy of the decree to his commander, the commander knew it had been forged. He had previously obtained a copy from the Court in Alabama. My client was presented with bigamy and forgery court-martial charges.
Unfortunately, my client would not implicate his mother in the forgery. All he would do is deny that he did it. When we appeared for trial, we were faced with a court made up solely of officers. It looked hopeless, but I’d learned some trial tactics from the earlier defeat. I crafted a defense around the technical language of the Military Code of Justice, my client’s lack of education and the vindictiveness of his commander. Under the Code the crime of forgery required proof that the act caused damage to the government. I argued that, although the date of the decree had been altered, it caused the government no damage. The Court agreed and dismissed the forgery charge after the prosecution rested its case. Sympathy for the private’s dilemma coupled with the vengeance of the commanding officer swayed the Court in favor of my client, even though technically he had committed bigamy. He was found not guilty.
That trial helped me disregard the Major’s advice. After I finished law school I spent more than 40 years as a trial lawyer. During that time I tried many hundreds of cases, covering nearly every field of law. That’s what this story is about.
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About the Book
This book was written at the suggestion of some colleagues and relatives to record the highlights of my forty plus years as a trial lawyer. Because of the timing of the beginning of my trial practice, I participated in what today would be an unusual number of major trials, a number of which were quite unique. Some of the book comes from published materials; the rest is the product of my seventy year-old memory, which, surprising to me, turned out to be quite satisfactory for the job.
About the Author
Jerry Banks was born and raised in Portland, Oregon. He attended Stanford University and the University of Oregon School of Law. He practiced for forty-one years with the same law firm, now known as Schwabe, Williamson & Wyatt in Portland. He held positions within the firm as a partner, a senior partner, and the managing partner, and he is now a retired partner. During his professional life he was president of the Oregon Association of Defense Counsel and of the University Club of Portland. He was a member of the Board of Governors of the Oregon State Bar, and he was Chairman of the American Bar Association’s Committee on Product Liability & Consumer Law. He is an arbitrator member of the American Arbitration Association’s panel on complex litigation and a fellow of the American College of Trial Lawyers. He was a frequent lecturer and author on product liability and other trial law subjects. He was the editor and a major contributor to the firm’s The Business Client’s Guide to Litigation. He is now retired and lives in Rancho Mirage, California.