The Power of the TLC Soft Cross

Haytham Faraj, TLC ’09 Grad & Faculty Member. 

My recent jury trial victory in the U.S. District Court for the District of Columbia did not involve huge sums of money, at least not if measured by some of the verdicts we hear about, but it was every bit as important and significant to my client who stood to lose his livelihood.

The case arose from events that began in the summer of 2005. As the war in Afghanistan waged and as the U.S. government sought to establish some measure of normalcy in Afghanistan, it reopened the U.S. Embassy and put out solicitations to bring in contract guards to provide security for the Embassy. A large government contractor by the name of MVM won the contract. They then hired a startup company by the name of 3D Global Solutions -my client- to recruit guards from Peru to provide security outside the Embassy.

Now these are not mercenaries. They are mere guards; good and decent men whose sole function is to guard the Embassy and provide access control. They would receive a meager $1800 a month for their work. Another facet of the contract required the prime contractor to also provide senior guards who would provide security to high profile personnel and act as a roving force. MVM recruited elite former military Namibians with South African citizenship for that part of the contract. The Namibians are black. When the Namibians showed up, the Regional Security Officer (RSO) who is the State Department official responsible for security at the Embassy objected. He wanted “real expats.” In other words, he wanted white mercenaries. You can imagine what he wanted, the khaki clad, muscle bound men donning Oakley shades and driving around in black 4X4 vehicles blowing away everyone in sight. After a few weeks of frivolous nitpicking, the RSO managed to terminate the contract based on a pretext that the guards provided by MVM did not meet the language requirement to effectively discharge their duties. MVM had spent nearly 7 million dollars to take over the Embassy security. The termination was devastating. MVM hired a top DC law firm and threatened to sue the State Department, effectively arguing that the guards were qualified and that the termination was pretextual to get rid of the black Namibian guards and bring in white guards.

The State Department relented and changed the termination for default into a termination for convenience. They paid MVM the value of the losses they had incurred.

Instead of MVM paying 3D Global Solutions for the 230 Peruvian guards they recruited, MVM then argued that the Peruvian guards were actually unqualified because they lacked English proficiency. They hired a company to test the guards from Atlanta by cell phone. The guards were in Kabul and were interviewed by telephone under the stress of the realization that failure would result in them being returned to Peru without work or pay. Almost all of them failed the test. This test would become a point of great debate in trial.

In March of 2006 3D Global represented by a small DC law firm sued MVM. In September of 2006 MVM countersued for 2 million dollars, the alleged difference between their costs and what they recouped from the State Department.

The case moved at a snail’s pace. In 2009, 3D Global’s law firm concluded that the chance of winning was too narrow to justify going forward without substantially more money from 3D Global. 3D was in a jam. They had no more money to spend on legal fees but believed in their claim. The delay had effectively succeeded in defeating 3D because their opponent had the resources to outlast them.

The owner of the 3D Global Solutions is a good friend and a fellow former Marine. He asked if I would take the case. I reviewed the file and agreed.

Soon after I took the case we went to court directed mediation. The mediator was a lawyer and partner in a large law firm who engaged in “altruistic endeavors” by helping convince plaintiffs that their claims were frivolous and that they should drop their claims against large corporate defendants and insurance companies that, it just so happens, his large DC firm represents.

The mediator spent an entire day working to convince us that we would win nothing and that MVM’s offer to drop their counterclaim of $2 million dollars in return for us dropping our claim was a great offer. We obviously did not accept his advice. That does not mean that I did not consider it. I felt great fear and anxiety. If I lose my client’s case, he would have a $2 million judgment against him that he certainly could not pay. He would lose his tiny company and it would ruin his life. His company was started with a loan on his home which funded the recruiting work. He and his wife and children almost lost their home when MVM refused to pay. It made sense to give up the fight in return for MVM dropping their $2 million dollar counterclaim which was supported by test scores that clearly showed the Peruvian guards failed to meet the language requirement of the contract. The problem of course is that the test was administered by telephone from thousands of miles away. No one was considering the human elements at stake. And of course, we still had the matter of that letter.

Trial started on September 10 in Judge Gladys Kessler’s Courtroom. She is a senior judge with a no non-sense approach to trials.

From the beginning I had the advantage. I was prepared with exhibit binders for the court and all jurors. My opponent was not. I had prepared the jury instructions and moved to admit my exhibits before trial even started. I wanted the jury to immediately appreciate that I was more prepared than my opponent.

I opened by acknowledging that MVM was also a victim of the RSO’s misconduct. The theme was the “victim becomes the victimizer.” I only put on three witnesses and 18 exhibits a total of 193 pages of which 135 pages were only provided as examples of the files provided by 3D of the men they recruited. My opponent was overwhelmed. He showed up on the third day of trial with an exhibit book of over 1000 pages none of which was relevant. He was dumping random discovery on them.

I focused the jury on the substance of the evidence. My opponent got up to open and yelled at the jury. He insulted my client and ranted about how much money they lost. He refused to acknowledge the argument his client made in their letter to the State Department which resulted in a payment to them of nearly 4.5 million dollars.

He angrily crossed my client. He yelled and pontificated and held on to the podium for safety.

I did a soft cross on the President of MVM. I adopted his argument of pretext and got him to admit that he was a victim of the RSO’s misconduct. He admitted that his company could have accomplished the mission had they been given an opportunity. He admitted that the Peruvians were capable of being led and that they were good men. At that point I turned to my client and said good job Mr. Dodd. You recruited good men. My opponent objected. The judge told me to ask a question. The jury understood what I meant.

We talked about the letter his law firm sent to the State Department which essentially argued that the termination was based on a racist pretextual agenda. He said that they had sent the letter because a termination for default would have meant the end of his company. I told him that I understand. I then asked him if it would be ok with him if I also lie to this jury like his lawyer and he, it now seems, lied in the letter to the State Department in order to save my client’s company. The answer was obvious, of course not. We had already agreed at the beginning of the cross examination that the truth does not change and that if something was true then it remains true today. We talked about his responsibility to tell the truth as the President of the Company. We agreed together that allegations of racism are ugly if untrue and that he would never make those allegations unless he believed them to be true at the time the letter left his office. And of course if it was true then it was also true today. The letter his law firm sent to the State Department was written 6 weeks after the test results of the Peruvian were known.

I asked him why he paid the recruiter of the Namibian guards if they were unqualified yet he refused to pay my client. He had no real answer. I asked him if he thought it was time that my client, I pointed him, should get paid. He said no. I let that stand. At the conclusion of the cross one of the jurors submitted a question to the judge asking why he did not agree that my client should also be paid if he paid the other recruiting company? The judge did not ask that question. It didn’t matter.

His lawyer objected to just about every one of my questions. But his objections could cite no rule. He was just angry. The judge told him to stop interrupting and to sit down.

He objected again. The judge said “Mr. Rosenblum SIT DOWN.” I paused and looked at him. I said” you really don’t want them to hear the truth do you,” pointing at the jury. That upset the judge. She admonished me to never do that again. I decided not to do that again. But that also stopped my opponent from jumping up.

The trial took two full weeks. The jury deliberated for three days. After the second day fear took over. I began to doubt that I would win. I went through the evidence. I could not understand why they were taking so long. On the morning of the third day, they decided.

They gave my client his contract damages. The judge gave me 7 years of interest.

The jury found that my client did not breach his obligation. He owed them nothing.

We had won, against all odds.
Haytham Faraj

2017-12-27T11:21:54-07:00 September 20, 2012|TLC Blog|
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