In his forty-three years as a practising lawyer, Kevin O'Donnell encountered a wide and sometimes weird mixture of characters lawyers, clients, police officers, and others. When it came time to tell the story of his career, he knew that he didn't want to write a book only about the law; he wanted to write a book about the people with whom and for whom he worked.
Some of these stories may come off as improbable or even impossible, but they're all true. He shares tales of the more notable people he had the privilege of dealing with and the unusual situations those associations created. He received the occasional threat of violence, but fortunately, none of them came to pass. He also survived the aggression of his peers, in and out of court. During his experience as a law student, articled clerk, employee lawyer, senior associate for substantial law fi rms, and partner in a fi rm in regional Victoria, he saw it all- and some of the best anecdotes from those years await within.
Many of the people he writes about are still his friends (and some never were), while some of them are now deceased. They've all provided him with amusement over the years, as well as wry smiles as he brought their shared adventures to life in his memoir.
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Tales from the Oldest Profession
As Told by a Very Common Lawyer
By Kevin John O'Donnell
Balboa PressCopyright © 2014 Kevin John O'Donnell
All rights reserved.
Some Confrontations, and the Manly Art of Self Defence
Gus and Me
Way back in the 1970's I used to do some legal work for the collection of unpaid debts. I knew quite a few lawyers who did some of this work, although some of the more pretentious of them said they worked in "commercial litigation".
One of my first debt collection experiences, following my admission to practice in 1970, involved the legendary boxing referee, actor and raconteur Gus Mercurio.
As a very young lawyer, one of my duties was to attend the County Court whenever a judgment debtor was due to appear to give evidence as to their income and assets, in relation to money they owed under a judgment.
So, each month, for about five months, I would be at the County Court, when the name August Eugene Mercurio would be called, followed shortly by the statement "No appearance, Your Honour".
The procedure was that the judgment debtor would be served with a subpoena requiring them to attend. In Gus's case, the subpoena was, each time, returned to the court with the notation "Unable to serve, whereabouts unknown".
At the time, each of Melbourne's three commercial television channels, 7, 9 and 0 (before it became channel 10) had a live boxing program on weeknights. So, after the day's work which included attending the County Court, I'd go home that night and watch the boxing on channel 0. As I recall, the referee for every bout, as large as life, was Gus.
At no time in my attendances at the County Court was Gus ever served with a subpoena. I figured that the process servers weren't brave enough to track Gus down at the TV studio and serve him. Gus had a reputation for being a tough man, and I doubt that I would have served the subpoena in their position.
After a while, the matter was no longer listed. I concluded that Gus's finances had improved and that he ultimately paid the debt.
A couple of years later, I was watching Division 4, a police drama (each of Melbourne's commercial channels had one of these too), on channel 9.
In this particular episode, the main characters, played by Gerard Kennedy and Terrence Donovan (Jason Donovan's father) were approaching the front door of a house, where they were trying to track down a suspect. The front door burst open, and out came Gus, swinging like a rusty gate.
In the show, the police characters quickly overpowered the aggressor, and demanded to know why he was attacking policemen to which Gus's character replied, in his raspy voice "Oh, police? I thought you was process servers!"
Sometimes the writers of fiction don't know how closely their work reflects real life.
The Man Who Shouldn't Have Been in Prison
At that time there was a piece of legislation called the Imprisonment of Fraudulent Debtors Act. The way it worked was that a person who hadn't paid a judgement debt would be required to attend court to give evidence about their income and assets. If the magistrate found that they could afford to pay the debt (e.g. by instalments), they would be ordered to pay it off, at a specified rate, in default a number of days imprisonment.
One of these cases involved a man we'll call Trevor, who owed money to my client, a finance company. After telling the court about his finances, Trevor was ordered to pay the debt and costs by fortnightly instalments, in default ten days imprisonment. He made a couple of payments and then stopped paying. Acting on the client's instructions, we applied for a warrant, which the court issued, and the police (in those days, police executed all warrants) picked up Trevor and carted him off to jail.
First thing the next morning, I received a phone call from a very capable young lawyer I knew, Peter Ryan, who much later became deputy premier of Victoria. Peter was one of a number of lawyers on a roster system to give legal advice to those who'd been recently been taken into custody. He told me that Trevor's story was that he'd actually gone back to the finance company and that they'd re-written his loan.
I immediately called the finance company who confirmed Trevor's story, and added "Oh, didn't we tell you?" (Gee thanks, fellas!)
I called Peter back and confirmed the position with him. Then I raced down to the court to apply to have Trevor released. The magistrate noted the injustice of Trevor being locked up, but said he couldn't order his release as the imprisonment order was not defective in any way. It was a proper order of the court, executed properly.
The magistrate instructed the clerk of courts to make some phone calls, and see if anyone in the department could find a way through this.
About an hour later, I received a phone call from a gentleman who introduced himself as "Booth, Director-General of Social Welfare". He quizzed me about the case and the circumstances. I was able, in my capacity as solicitor on the record for the judgement creditor, to confirm that Trevor should not have been in prison. Mr Booth, as it happened, had an overarching discretion to order the release of a prisoner when he was satisfied that justice so required.
In the circumstances, and as I verbally confirmed that Trevor should not be in prison, Mr Booth ordered his release. Trevor walked free that afternoon.
Trevor would have had a strong case to claim damages from the finance company for wrongful imprisonment. It's possible that the company made a payment to him, or at least gave him a discount on his loan. If they did, they certainly didn't tell me about it.
"Come Outside and Say That"
The reader might think that lawyers, as people who engage in a combative process, would often be challenged to a fistfight. Actually, it's very rare, although it did happen to me once, when I was quite a young lawyer.
One day when I was working in Morwell, fairly late in the afternoon, I heard a man's raised voice at reception. I arrived there in time to hear a middle aged man yelling at the teenage girl who was at reception at the time. He was roundly abusing her, and calling her some very unpleasant names. She found the abuse more than she could handle and collapsed in tears.
He had apparently, just that afternoon, been served with a summons for a debt he owed to one of our clients. I suspect he had been drinking, and he was certainly in a foul mood.
I demanded to know what he thought he was doing, and suggested that it didn't reflect well on his manhood to be abusing a young girl. He asked if I was calling him a coward, and I replied that his conduct was certainly cowardly.
At that, he challenged me to step outside and repeat the comment. So, we both stepped out onto the footpath. He was still angry, telling me that his son was a policeman, and that he knew what "you lot" were like.
He then shaped up to me, saying "You called me a coward. Now prove it." I have never been a fighter and had no intention of taking a swing at him. My strength was in the use of words (some might call it sledging), so I responded "I don't need to. You've already proved it for me."
He asked "What do you mean?" I replied "A real man wouldn't talk to a girl like that."
He was still angry and menacing. I was a fair bit younger than he was, and light on my feet, so I figured I could keep out of his way if he took a swing at me. He didn't, but he kept repeating that I had called him a coward and should prove it. I kept responding that I didn't need to; he'd already proved it beyond doubt.
After a few minutes of this, and still muttering, he eventually gave up and wandered away.
I never came across him again, but I noted that the debt and the costs were paid the next week.
A few years later, when I was a sole practitioner, I acted on a number of occasions for a couple, Manny and Eva who were, over a few years' time, involved in various businesses.
Manny and Eva were slow to pay their bills, which would mount up over some months, but whenever they sold an asset, I would deduct what they owed me from the proceeds of the sale.
The last time I acted for them, I had been waiting longer than usual, and the money owed had grown significantly. There was finally another sale, and I duly deducted the total debt from the sale proceeds as usual, and sent them a statement setting out how it was all worked out.
A few days later, Manny rang, demanding to know why I had "stolen" his money. I explained that I had only taken what they owed me, as I had done previously, and that I was entitled to be paid.
At this time, I was starting work at 5.30 am. I would work till about 7.45 or so, go home for a shower and breakfast, and return to the office by 9.00.
One morning, as I opened the door to leave the office, at about 7.45, Manny and Eva and their adult son brushed past me and stepped inside the office.
Manny told me that they were there to collect the money that I had withheld from their last cheque.
Over the next twenty minutes or so, Manny continued to demand the money, with what I took to be an implied threat of violence.
I explained to them that:
I had no intention of paying him anything,
The office did not carry cash,
I was not proficient in the accounts system,
If I did give him a cheque, I'd call the bank and stop payment on it before he had a chance to cash it, and
He was committing a criminal act which could cost him his freedom and/or a lot more than the money we were talking about.
While all this was going on Linda, one of my employees, arrived for work. She regularly started work at 8.00 and I was normally gone home for breakfast/shower by then. She raised an eyebrow at what she saw, but I told her things were under control, and she went into her office.
After a bit more time had passed, Manny and Eva seemed to realise that their plan was seriously flawed, and they left. I never saw them or heard from them again. Good riddance.
Some years later, when I was working with a law firm in Geelong, I represented Rod, a young man who was defending a claim which related to the use of his car.
I thought we achieved a good result for Rod, and he initially seemed very happy with the outcome, but he did not pay the bill. Eventually we sued him, and obtained judgement for the amount of our bill and the further costs of the new summons.
When Rod still did not pay, we applied to the court and obtained a warrant for the Sheriff to seize and sell his assets (specifically his car) to pay the debt.
A month or so later, the Sheriff sent in a report on the warrant, saying that Rod claimed he owned nothing, and that the car was not his. He said (as did his father) that, although the car was registered in his name, it was really the father's car and was only in his name for family reasons.
We didn't buy this argument, and responded that the Sheriff should proceed to seize and sell the car to satisfy the judgement debt.
About a week later, Rod and a friend of his came to the office. They marched past reception without a word, and stormed into my office in quite a threatening manner.
Rod demanded that the firm withdraw the warrant. I told him that
It was no longer up to me,
There was a committee of the partners of the firm that was in charge of these matters, and
They would be very unlikely to write off the debt.
I also pointed out that what he and his mate were doing constituted a serious criminal offence, and that they should leave before things got out of hand.
After a bit of muttering, they seemed to accept what I had said, and left somewhat sheepishly.
A few days later, we received payment in full.
One of the steps we used to take to enforce a judgement debt was called a garnishee. This involved serving notice on their employer requiring money to be taken out of the debtor's wage or salary.
In the Latrobe Valley, by far the biggest employer in those times was the State Electricity Commission (SEC). In some quarters it was referred to as the slow easy and comfortable. I heard it said that, in the local administration offices you might be talking to a person in the morning, and see that they had a piece of paper in hand. Many hours later, they'd still be clutching the same piece of paper.
Each Friday morning, my first duty was to drive to the administration office and deliver a handful of garnishee orders to the SEC.
Of course, there were also many contractors who worked in the power construction projects for the SEC. The boss of one of these companies was George Cole, a large, overweight impatient, irascible man who liked to drive his Rolls Royce around construction sites and yell at people. I had heard that George had an inflated idea of his own importance.
On one occasion, we served a subpoena on George's company, requiring it to deduct money from the pay packet of one of his employees. George responded with an irate letter accusing us of wasting his time, telling us to keep out of his business, and not to bother him again. He said he would ignore the notice, and had thrown it in his rubbish bin.
I wrote back to George, apologising for annoying him, detailing the relevant legislation under which the garnishee had been issued, explaining that he was obliged to act in accordance with the order, and setting out the penalties for failing to comply with it.
We didn't hear from George again, but a cheque came in the next week.
On another occasion, we were seeking to enforce a judgement against a person who lived in the Gippsland lakes area. We applied for, and the court issued a warrant for the seizure and sale of the debtor's assets, and sent it off to the local police for execution (the police handled all such warrants in those days).
A couple of weeks later, we received a letter from the local police sergeant, who said he personally knew the defendant and would vouch for his honesty. He outlined the debtor's position that he did not actually owe the debt claimed, and that in fact the judgement creditor was the one who owed money to the debtor. He finished by saying "... In view of his obvious truthfulness, I have declined to execute the warrant."
I sent a letter in reply, pointing out that it wasn't the police officer's function to determine the question of liability - the court had already done that. I also noted that the warrant was an order of the court, and that he was duty bound to carry it out. I added that he was subject to potential disciplinary action from both the court and the Chief Commissioner of Police if he refused to do his duty.
He didn't reply, but soon afterwards, he executed the warrant and we received payment for the full judgement debt.
Better Memory Than Barry Jones?
As a young lawyer, I had a file where Barry Jones was on the other side. This was after Barry had become famous as a quiz king, but before he entered politics.
Curiously, I was in a position to correct Barry's memory of a very minor incident. What happened was that Barry rang one day when I was in court. He asked who was handling the file, and was given my name. Apparently he requested a copy of a document, and was told it would be posted to him.
The person who took the call made a note for the file, but did not detail the request. A few days later, he called, not happy that I had not done what I had promised. I told him that we had not, in fact spoken. While my memory might not be in his class, it was nevertheless very good, and I would not have forgotten a call from the famous Mr Jones.
Excerpted from Tales from the Oldest Profession by Kevin John O'Donnell. Copyright © 2014 Kevin John O'Donnell. Excerpted by permission of Balboa Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Chapter 1 – Some Confrontations, and the Manly Art of Self Defence, 1,
Chapter 2 – Students and the Law, 11,
Chapter 3 – Odd Lawyer Tales, 15,
Chapter 4 – Christopher, 25,
Chapter 5 – Charlie, 29,
Chapter 6 – Seamus, 33,
Chapter 7 – Some Other Characters, 39,
Chapter 8 – Keith and His Firm, 56,
Chapter 9 – Randy, 71,
Chapter 10 – A Few .05 Tales (and an Overdose), 78,
Chapter 11 – Some of the Difficulties of Being a Lawyer, 88,
Chapter 12 – More Lawyers and a Little Funny Business, 108,
Chapter 13 – Cricket and Other Social Activities, 132,
Chapter 14 – A Few Comments About Estate Agents, 136,
Chapter 15 – Weddings and Other Romantic Disasters, 139,
Chapter 16 – Some Comments About Clients, 144,
Chapter 17 – From a Different Angle, 161,
Chapter 18 – Family Relationships and Wills, 186,
Chapter 19 – A Few Issues With Mortgages, 196,
Chapter 20 – More About Lawyers, 201,
Chapter 21 – How Could You Be So Stupid?, 211,
Chapter 22 – The Bench and Their Helpers, 220,
Chapter 23 – Barristers, 243,
Chapter 24 – The Long Arm of the Law, 255,
Chapter 25 – My Time as a Mentor, 266,
Chapter 26 – My Contribution to Academia, 287,
Chapter 27 – And Finally, a Lawyer's Wish List, 290,