washingtonpost.com  > Columns > Art Buchwald

Have Gun, Will Smoke

By Art Buchwald
Thursday, April 14, 2005; Page C02

"The class will come to order. Today we will discuss the smoking gun, the most important subject you will learn in law school. Who knows what a smoking gun is? The man in the back."

"A smoking gun is a piece of evidence that is produced in a trial, most of the time as a surprise to the other side."


"Very good. Where will you find a smoking gun? The lady over there."

"The best place to find it is in e-mails that people have sent to each other because they never dreamed a third party would read them."

"Example, please?"

"I am the plaintiff's lawyer in a suit against an automobile company. I want the in-house e-mails written by executives pointing out the brakes don't work, the vehicle rolls over when another car passes it, and the wheels fall off when you go down a hill. If I can prove the company knew all this, I have my smoking gun."

"Good answer. So the first thing you must confiscate is a defendant's computer before they erase the messages on it. In most cases you need a judge's order. Now who knows of any other example?"

"The government used Enron's confidential e-mails to prove fraudulent bookkeeping, greed, conspiracy, offshore banking and natural gas that never existed."

"Professor, what if I defend Enron executives?"

"Then be sure to get your fee in advance. Now, next question. What is a perfect smoking-gun case? The gentleman in the front."

"That's easy -- the State of New York v. General Electric."

"What was the smoking gun?"

"The Hudson River."

"Professor, do most smoking guns come from computers?"

"No. Many come from whistleblowers. Let's say an ex-employee at a drug company found out that an antidepressant caused depression. The whistleblower would produce e-mails proving the executives insisted on doubling their advertising budget to sell the pill before the FDA made them take it off the market."

"Professor, suppose I was defending the drug company?"

"Then you would try to prove the whistleblower was a disgruntled employee, a wife beater and someone who cheats at solitaire."

"Are smoking guns permitted in court under the Second Amendment?"

(Laughter)

"That's not as funny as it sounds. There will be lots of work for you when you get out of school defending gun manufacturers, dealers and the National Rifle Association, who, every day, are being sued by the relatives of people who were shot. The most important thing to remember today is that people on a jury have seen thousands of hours of television and are influenced by what they've seen. Every show ends with the good-guy lawyers producing a smoking gun and the bad guys going off to jail. You will never see a 'Law and Order' segment with a hung jury."

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