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May 2017 - Where There’s Smoke . . .

by Richard W. Millar, Jr.

Some years ago, I wrote a column entitled “LLPOF” about a judge who had penned those letters across a particular lawyer’s points and authorities—a precursor to an unfavorable decision. LLPOF, as you may remember, stands for “Liar, liar, pants on fire.” The second line on the version I learned as a kid, and which I confess I never fully understood, was “Caught his pants on a telephone wire.” Somehow my young imagination was too unformed to conjure an image of someone climbing a telephone pole, getting his pants caught on the wire, and then lying about it. Try as I might, I could never get the two concepts to intersect. Still can’t.

Well, since I never offer these columns without first engaging in at least five minutes of deep and thorough research, it seems the origin of “Liar, liar” is foggy at best. Some attribute it to a poem by William Blake called, not surprisingly, The Liar, the first stanza of which reads:

Deceiver, dissembler

Your trousers are alight

From what pole or gallows

Shall they dangle in the night?

Others suggest the poet in 1810 was merely rephrasing the rhyme, which was already in use. Whatever its history, the phrase isn’t going away anytime soon.

It may, however, get slightly rephrased, as in “Lawyer, lawyer pants on fire.” Certainly, we lawyers have been called deceivers and dissemblers, as well as a host of shorter words, before. But, as far as I have been able to verify, the name-calling has been just that—name-calling. I have been unable to find any examples of a lawyer’s pants spontaneously combusting.

Especially during final argument.

In an arson case.

But, maybe I haven’t spent enough time in Miami.

One Stephen Gutierrez is now in the history books. He was defending one Claudy Charles in an arson case. Mr. Charles had been charged with deliberately setting fire to his car, something I confess to have considered while waiting for a tow truck. His defense was not only he didn’t do it, but the car did it to itself, i.e., it spontaneously combusted without any help from Mr. Charles.

By what could only be called a remarkable coincidence, Mr. Gutierrez in final argument was trying out his “the car suddenly spontaneously combusted” defense, when, lo and behold, smoke started emanating from his trousers. Pants ablaze, he ran to the restroom and returned with a singed pocket.

His explanation was that he had a couple of e-cigarette batteries in his pocket when he noticed his pocket “got hot.” Others took a more jaundiced view, and the courtroom deputies took his singed batteries as “evidence,” and they are being held for investigation. Mr. Gutierrez is quoted as denying the fire was staged, and said that no one thinks a battery left in one’s pocket will explode.

The jury didn’t buy what Mr. Gutierrez was selling so flamboyantly (with the emphasis on “flam”) and convicted Mr. Charles of second-degree arson. I don’t know if Mr. Charles will appeal based on his lawyer’s partial pant immolation, and it is hard to know if his cause was helped or hurt thereby. I can see appellate justices holding up their metaphorical hands and saying, “We have no idea whether his lawyer’s burning pants helped or hurt Mr. Charles, but we are going to reverse, just in case.”

Even if Mr. Gutierrez is found to have offered himself up as demonstrative evidence in closing argument, I can’t see what crime he could be charged with . . .

Other than Battery.

Richard W. Millar, Jr. is a member of the firm of Friedman Stroffe & Gerard, P.C. in Newport Beach. He can be reached at rmillar@fsglawyers.com.

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