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By Optical Character Recognition (OCR) program. Omni-Page.

Obviously it has some problem. (It has too much flexibility and constantly jumps between fonts, character sizes, and spacing.)

But look down to page 28 for "A Beautiful Mind"

1 REPORTER'S RECORD

2 VOLUME 1 OF 1 VOLUMES

3 TRIAL COURT CAUSE NO. 00‑619

5 THE LAW OFFICES OF IN THE DISTRICT COURT

6 G. DAVID WESTFALL, P.C.

8 VS. OF VAN ZANDT COUNTY, TEXAS

10 UDO BIRNBAUM 294TH JUDICIAL DISTRICT

13 CLOSING ARGUMENTS FROM JURY TRIAL

14 APRIL 11, 2002

17 On the llth day of April, 2002, the

following proceedings came on to be heard in the

18 above‑styled and ‑numbered cause before the HONORABLE PAUL BANNER, Judge Presiding, held in Canton, Van

19 Zandt County, Texas:

20 Proceedings reported by Computerized Machine

Stenography, Reporter's Record produced by

21 Computer‑Assisted Transcription.

22 Court Reporter: D. KEITH JOHNSON, RDR, CRR,

Texas CSR #3781

23 Official Court Reporter

294th Judicial District Court

24 P. 0. Box 120100, Tyler, Texas 75712

(903) 596‑7800 * 596‑7809 (fax)

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1 REPORTER'S RECORD

2 VOLUME 1 OF 1 VOLUMES

3 TRIAL COURT CAUSE NO. 00‑619

5 THE LAW OFFICES OF IN THE DISTRICT COURT

6 G. DAVID WESTFALL, P.C.

8 VS. OF VAN ZANDT COUNTY, TEXAS

10 UDO BIRNBAUM 294TH JUDICIAL DISTRICT

13 CLOSING ARGUMENTS FROM JURY TRIAL

14 APRIL 11, 2002

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

17 On the 11th day of April, 2002, the

following proceedings came on to be heard in the

18 above‑styled and ‑numbered cause before the HONORABLE PAUL BANNER, Judge Presiding, held in Canton, Van

19 Zandt County, Texas:

20 Proceedings reported by Computerized Machine

Stenography, Reporter's Record produced by

21 Computer‑Assisted Transcription.

22 Court Reporter: D. KEITH JOHNSON, RDR, CRR,

Texas CSR #3781

23 Official Court Reporter

294th Judicial District Court

24 P. 0. Box 120100, Tyler, Texas 75712

(903) 596‑7800 * 596‑7809 (fax)

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A P P E A R A N C E S

3 MR. FRANK C. FLEMING

Attorney at Law

4 PMB 305

6611 Hillcrest Ave.

5 Dallas, Texas 75205‑1301

REPRESENTING THE PLAINTIFF

8 MR. UDO BIRNBAUM

540 VZ 2916

9 Eustace, Texas 75124

903) 479‑3929

APPEARING PRO SE

15 REPORTER'S NOTE

16 Uh‑huh Yes Affirmative response

17 Huh‑uh = No Negative response

18 Quotation marks are used for clarity and do not

necessarily indicate a direct quote.

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1 INDEX

2 PROCEEDINGS: PAGE

3 Mr. Fleming's closing arugment ............................................ 4

4 Mr. Birnbaum's closing argument .......................................... 16

5 Mr. Fleming's final arugment ............................................. 26

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P R 0 C E E D I N G S

2 (Beginning of Excerpt.)

3 (The Charge was read by the Court.)

4 THE COURT: As I've told you earlier,

5 all exhibits that have been received in the course of

6 the trial will be sent to the jury room right after

7 you go in to deliberate.

8 And now I invite to you listen to

9 argument of counsel.

10 Mr. Fleming.

11 MR. FLEMING: Thank you, Your Honor.

12 May it please the Court.

13 THE COURT: Yes, sir.

14 MR. FLEMING: Well, we're getting

15 close. We're getting close, and I appreciate ‑‑ I

16 appreciate very much your attitude and your demeanor

17 through this process. You've kept your smiles,

18 whether you wanted them there or not.

19 I know we'd all rather be somewhere

20 else on a beautiful day, but I do appreciate the

21 attention that you've appeared to show in this case,

22 and I want to say to you that although the Court is

23 going to allow me ‑‑ up to ten minutes of my two times

24 to talk to you, I'm going to try to give you some time

25 back.

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1 1 think you've followed this case.

2 I've watched you. I think you've listened to what

3 both sides have to say and where we are. And I'm not

4 going to waste a lot of time reminding you of what you

5 already know.

6 1 do want to remind you, as we said in

7 the beginning and the Judge pointed out to you, the

8 evidence is over. What I'm going to tell you now is

9 not evidence; what Mr. Birnbaum is going to tell you

10 now is not evidence. I'm here to wrap it up,

11 summarize it,put my spin on it,and hopefully get the

12 conclusion we want for our side. And Mr. Birnbaum is

13 going to try to do the same thing. But this is not

14 the time for more testimony, more evidence. That's

15 not what we're doing here. This is argument.

16 And I'm going to argue to you that

17 Mr. Westfall has come to court seeking money that was

18 owed to him for work he performed, for a man who asked

19 him to perform it, for a rate at which he said he

20 would provide it,and for the rate the man‑said he

21 would pay for it. And it's a real simple case.

22 Mr. Birnbaum has got some ideas in his

23 mind about why he doesn't owe it, but they're not

24 valid reasons to not pay Mr. Westfall's bill.

25 Let's look at the Court's charge and

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1 let's go through this a little bit.

2 If you'll go to Question Number 1.

3 We're the plaintiff. We get to go first, but it's our

4 burden to prove our case. And we feel like we have

5 proved our case with the evidence, with the testimony.

6 And the first question is, what sum of

7 money, if paid now in cash, would fairly and

8 reasonably compensate the Law Offices of G. David

9 Westfall for its damages, if any, that have resulted

10 from the Defendant, Udo Birnbaum's, failure to comply

11 with the agreement between the plaintiff and the

12 defendant, the agreement, Plaintiff's Exhibit

13 Number 1.

14 He comes in and he signs an agreement

15 and he says he'll pay for legal services, will pay for

16 it at the rate of $200 an hour till the $20,000 is

17 spent and then he'll pay for it for $100 an hour.

18 You've heard the testimony over and

19 over. You're going to get Exhibit Number 3 brought to

20 you, and that's where we come up with the number,

21 $18,121, Exhibit Number 3.

22 Now, Ladies and Gentlemen, you are the

23 sole determiner of what that number is to be. And if

24 you want to go in there and decide, well, maybe

25 Westfall and Ms. Hearn made a~ mistake, they didn't

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1 calculate the paralegal damages at $30 an hour at some

2 point when they were still billing $60 an hour or

3 something like that, or if you‑all want to decide that

4 Mr. Westfall should not be entitled to charge for a .1

5 hour telephone call the day before the contract is

6 signed and knock $20 off the bill, you're allowed to

7 do that.

8 But our evidence and our testimony, we

9 feel like, is we are entitled ‑‑ that they got fair

10 and reasonable services, and probably a whole lot more

11 work was done than what is actually being billed for

12 here up through December 31st. And you heard

13 testimony that work was done after December 31st and

14 it wasn't billed for. We're asking you to award

15 Mr. Westfall $18,121.10. That's Question 1. It comes

16 from exhibit ‑‑ Plaintiff's Exhibit Number 3.

17 Question Number 2, what's a reasonable

18 fee for the necessary services of Mr. Westfall's

19 attorney in this case, stated in dollars and cents.

20 Mr. Westfall represented himself as an

21 attorney, which he's allowed to do, and he's allowed

22 to collect attorney's fees for collecting his

23 attorney's fees, if it's necessary. He represented

24 himself up until October the 31st or thereabouts of

25 last year.

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1 What is ‑‑ what we are asking for, for

2 Question A, we're asking for $41,306.91. You will

3 find that number by looking at Plaintiff's Exhibit

4 Number 4, Mr. Westfall's charges at $150 an hour for

5 his own time up to October the 31st, and then the oral

6 testimony you heard from me and Mr. Westfall that I've

7 estimated my time to be at least 44 hours that I have

8 expended in this lawsuit, at $175 an hour, which is

9 $7,700 since November the 1st, or thereabouts, after

10 Mr. Westfall's wife and daughter were eliminated from

11 this lawsuit and I came in to represent him.

12 $41,306.91, that's a lot of money.

13 There's been a lot of work done. There's been a lot

14 of work that was made necessary by the actions of the

15 other side. This would not have normally been this

16 much effort to try to decide whether or not we're

17 entitled to $18,000 or not.

18 But as I told you at the beginning.

19 And we don't have Mr. Anderson here and we don't have

20 Mr. Groom, who I called Mr. Hart by mistake, but

21 remember when we're mowing that yard and Mr. Westfall

22 said he'll mow the yard after Mr. Birnbaum comes over

23 and solicits him? He starts the transaction. He

24 comes over and he says, "Will you mow my yard?"

25 He says, "Yeah, I'll mow it and I'll

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1 fertilize it."

2 "Well, is there any danger in

3 fertilizing it?"

4 "Well, no, not if you keep it watered."

5 You know, not if you do all of the things that you're

6 supposed to do to the yard.

7 Mr. Westfall shows up and he mows the

8 yard. The agreement was to pay him $50. He got $25

9 up front, sends him a bill for the remaining $25,

10 doesn't get anything.

11 Two months later he sends him a

12 reminder bill, another six weeks go by, he sends him

13 another reminder bill. Another two months go by, he

14 sends him another reminder bill, and he finally sends

15 him a certified letter bill, saying, "Hey, I mowed the

16 yard; why aren't you paying me? If I don't hear

17 anything from you, I'm going to file a lawsuit to

18 collect the money for having mowed the yard."

19 And then lo and behold, after we file

20 the lawsuit for the first time, we hear, You mowed

21 that yard, but you cut it too short and you fertilized

22 it too hard and the ground washed away and then the

23 house washed away after the rains came. And not only

24 do I not owe you that $25, you owe me $250,000 for

25 that house that's gone."

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1 Well, how much time, trouble and effort

2 is it going to take to come to court to prove the

3 fertilizer was just fine and I warned him, "You'd

4 better keep it watered"?

5 "1 warned him that judicial immunity is

6 a problem in this lawsuit. I warned him that there

7 might be some problems along the way, just like I

8 warned Mr. Collins."

9 And Mr. Collins got the message. He

10 changed what he did to his yard. He changed his

11 1awsuit.

12 Mr. Birnbaum said, "No, I don't believe

13 it. I'm going to do it my way. But would you still

14 help me do it my way?"

15 After the building washes away and the

16 yard is gone and everything, here we are having to

17 prove I am, still entitled to my $25 remaining for

18 having cut your yard, I am entitled to my remaining

19 $18,000 for all the legal work I did for you,and

20 by‑golly, I'm not giving up asking for my 18,000 even

21 if I have to expend $41,000 defending myself against

22 your bogus claims that your lawsuit went down the

23 tubes for something I did or failed to warn you about

24 or failed to make you aware of.

25 It just didn't happen that way, Ladies

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1 and Gentlemen. The evidence doesn't show it happened

2 that way, the credible evidence.

3 The remaining items on there, oral

4 testimony, you heard that an appeal to the ‑‑ to the

5 first level ‑‑ and we know this man will appeal. ‑He's

6 appealed everything else he's gotten involved in.

7 We're asking for $20,000 protection in case he does

8 appeal it and we have to spend a lot of time going to

9 the Court of Appeals.

10 If he loses on appeal, he'll appeal it

11 to the Texas Supreme Court. We're asking $5,000 to

12 respond to his request to do that. And if they should

13 somehow grant his request to open it up for argument

14 down there, we ask for an additional $10,000.

15 So Question 2, we're asking for

16 $41,306, for preparation and through this trial,

17 $20,000 for appeal, $5,000 if a petition for review is

18 submitted to the Supreme Court of Texas, and $10,000

19 if that petition is granted. Those last three would

20 be contingent, obviously, upon prevailing on appeal.

21 What's interesting for you to notice,

22 all of these numbers for attorney's fees, they've

23 never been contradicted by Mr. Birnbaum. He's never

24 had anybody come up here on the witness stand and say,

25 "Boy, to try to collect this 18,000, you spent

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1 $41,000? That's horrible. That's absurd. You're

2 just running up your bills and everything." Nobody

3 came in here and said that. He didn't even say that.

4 The way you would do that is you would

5 have another lawyer come in here and say, "I have

6 reviewed Mr. Westfall's files, and he's running up his

7 bills and this is ridiculous and it shouldn't be this

8 high." And if you don't have any testimony from

9 somebody, you have to take the testimony that you've

10 been offered.

11 Now, you're to decide the weight and

12 credibility of that. But you have ‑‑ Mr. Birnbaum is

13 not contesting that $20,000 is the correct amount on

14 appeal. He's not contesting that $5,000 to the

15 Supreme Court or $10,000 ‑‑ there's no controverting

16 testimony that our amounts are fair and reasonable for

17 these items.

18 That's all our issues. That's the

19 plaintiff's case. That's ‑‑ you know, we tried to

20 make it as clear as we can. We've tried to answer any

21 questions we think that might have come up in your

22 mind as you've heard other witnesses throughout this.

23 And I'm sorry it's taken so long to get us here today.

24 But that's our case, two questions.

25 The rest of them are going to be

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1 Mr. Birnbaum's questions, starting with Question

2 Number 3: Did the P.C., the law firm, engage in false

3 and misleading and deceptive acts or practices that

4 Mr. Birnbaum relied on to his detriment.

5 To find a false, misleading or

6 deceptive act, you're going to have to find the

7 failure to disclose the information about his

8 services, about his legal services, at the time of the

9 transaction.

10 Look at Plaintiff's Exhibit Number 1.

11 We offered it. It says in there, there is no

12 guarantee about the outcome of your litigation, no

13 guarantee.

14 The only encouragement he was given is,

15 "If what you say is true, if what you say is true, you

16 have a good case."

17 Well, I'll have more to say about that

18 in a moment. It didn't turn out to be true, as least

19 as far as what the federal magistrate and the federal

20 judge thought. It was an allegation. It was some

21 information about maybe some impropriety going on down

22 here in Van Zandt County, but it never did prove to be

23 true. It was thrown out.

24 I don't think you can find that

25 Mr. Westfall or his P.C. engaged in any misleading,

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1 false ‑‑ false, misleading or deceptive act or

2 practice which caused Mr. Birnbaum to rely upon to his

3 detriment. He relied upon his own suppositions, his

4 own allegations, his own mental impressions about what

5 was true and what was not true. He didn't rely upon

6 what Mr. Westfall told him was true and not true.

7 Question Number 4: Did the law offices

8 engage in any unconscionable action or course of

9 action?

10 Well, this would take into account

11 whether or not Mr. Birnbaum came into Mr. Westfall's

12 office a babe in the woods,never having dealt with

13 lawyers or the legal system whatsoever in the past and

14 had such a low level of knowledge and understanding

15 that Mr. Westfall fleeced him. That's what he's

16 trying to say.

17 THE COURT: You've used 13.

18 MR. FLEMING: 13, thank you.

19 The truth of the matter is, he had been

20 involved in several lawsuits pro se. He had his

21 relationship with Michael Collins, his friend, who

22 knows all about these lawsuits and all about these

23 lawyers and everything. They came to him with plenty

24 of ability, plenty of knowledge, plenty of

25 understanding. They just wanted things put in the

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1 right form to make sure we didn't miss dotting any I's

2 or crossing any T's. They weren't taken advantage of.

3 They had plenty of knowledge and understanding.

4 Question 5 says did Mr. Westfall engage

5 in these practices knowingly. Well, one, I argue he

6 did not engage in those practices. And, two, it would

7 have to say that he knowingly‑tried to deceive

8 Mr. Birnbaum by failure to disclose something about

9 judicial immunity or something.

10 "1 did it on purpose. Not only did I

11 not tell him about judicial immunity and all of the

12 in's and out's, but I did it on purpose. I just

13 wanted that money."

14 You're not going to find anything from

is the examination of the testimony to support that

16 allegation.

17 The same thing, the next one is simply

18 intentionally, instead of knowingly. It's just two

19 ways to look at the same question.

20 The next question, Number 7,

21 compensation on damages where Mr. Birnbaum is asking

22 you for damages. And I would just simply point out to

23 you, this is not where you would adjust the bill. If

24 you want to say his $18,000 is too much to ask, he

25 forgot to lower his paralegal rate, you don't make it

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1 up over here; you do it in Question Number 1.

2 Questions Number 8 and 9 are simply, as

3 they say, additional damages. That's a key word for

4 punishment damages. Mr. Birnbaum wants you to punish

5 the law firm for what he alleges was done.

6 Thank you very much.

7 THE COURT: Thank you, Counsel.

8 Mr. Birnbaum.

9 MR. BIRNBAUM: I have a prepared

10 closing, very short, that I want to go into later.

11 I'm just going to respond very carefully just quickly

12 to some of the points he put on.

13 He says he'd put his spin on it. I

14 don't have to put a spin on it.

15 He commented, attorney's fees ‑‑ suits

16 upon attorney's fees. Suits upon attorney's fees must

17 be the least socially productive activities I can

18 think of .

19 He's testified that there was something

20 that judicial immunity was a problem. No,‑it's an

21 obstacle, impossible to overcome.

22 He said there was arguments of Mr. ‑

23 me suing everybody. That was not the case. I have

24 sued one person, and Mr. Westfall was my lawyer. I've

25 been sued two times. One was relating to the

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1 underlying suit, I was sued, and I'm sued on this one.

2 You've heard testimony that I was sued.

3 Mr. Fleming said that the law office

4 made no guarantee that I have something ‑‑ that the

5 something I said did not turn out to the true.

6 You heard the testimony. I asked

7 Mr. Westfall again and again what it was that I said

8 wasn't true. He couldn't give you an answer.

9 The lawyer said there was testimony or

10 something that I relied on my own impressions. No, I

11 gave you testimony that I relied on Mr. Westfall at

12 the time that the suit ‑‑ as you see me here today, I

13 didn't ‑‑ I did not have the knowledge that I have. I

14 was not the person at that time that you see in front

15 of you now. I was lost. I had been 'sued. I had been

16 run through the mill, in the bottom. I was running

17 for help. I was not the person that you see today. I

18 did not have the knowledge of it.

19 All the knowledge that I have came

20 after these ‑‑ these years after he became my lawyer.

21 I had been run over before that. And as I researched

22 some of these things as I went along and picked up on

23 these things, I learned. I may be old, but I can

24 still learn. But I didn't know all of these things.

25 1 have a background in engineering, integrated

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1 circuits. I had no knowledge of law at that time, and

2 I relied totally on Mr. Westfall when he said I had a

3 good case. And he lied to me. Judges are absolutely

4 immune from suit, and he knew it and I didn't. If he

5 would have told me that, I surely wouldn't have gone

6 on.

7 Again, something about several

8 lawsuits, not true.

9 He mentioned punitive damages. I'll

10 come back to that.

11 Now, let me get into my portion of what

12 I'm talking about today. That was a very short

13 response to that.

14 I sincerely thank each of you for

15 dedicating your time away from your work and family to

16 resolve this matter. I genuinely appreciate your

17 patience with my lack of courtroom skills.

18 Judge Banner has given you some

19 questions. You have heard the other side admit that

20 they told me I had a very good case when they knew I

21 did not.

22 You have heard my testimony that at

23 that time that Mr. Westfall got me to sign that

24 contract and pay him the $20,000 up front, I did not

25 know that judges were absolutely immune. You have

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1 heard why judges are absolutely immune. I fully

2 concur that judges should be absolutely immune.

3 The way to remove judges ‑‑ any

4 problems can be resolved by the appeals to judicial

5 conduct, the State Bar, you name it. Don't elect the

6 guy if you don't like him, okay? They have to be

7 absolutely immune. I have come to appreciate that.

8 It is ridiculous to sue judges when they're acting in

9 their judicial capacity. I didn't know that at that

10 time. I clearly know that now, okay? But I did not

11 have that knowledge at that time. I learned that in

12 the course of ‑‑ since ‑‑ since the ‑‑ after that, as

13 1 sort of picked up on it. But I did not know that,

14 and Mr. Westfall knew that.

15 They failed to tell me -- you have

16 heard testimony that they told me they would bill me

17 monthly when they knew they did not even have a

18 legitimate accounting system.

19 You have heard testimony that they told

20 me they would not obligate me for any large expense

21 without my approval, but they did.

22 What you witnessed this week is the

23 evil inner workings of how these lawyers created

24 fraudulent documents and were able to not let those

25 acts be revealed to you.

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1 As jurors, you can believe everything

2 you heard, part of what you heard, or none of what you

3 heard. But I plead with you to take this opportunity

4 that may never ‑‑ that you may never have again to

5 send a message to these Dallas lawyers that Van Zandt
6 County citizens will not tolerate such unconscionable
7 conduct by lawyers.

8 I will quickly go over the Court's

9 charge. And if you would care to follow me, I would

10 appreciate it.

11 Go to Question 1. It says what money,

12 if paid now ‑‑ I'll let you figure that out ‑‑ that's

13 the money he wants for the damages that resulted from

14 my failure to comply.

15 You have heard testimony that they got

16 paid 20,000 up front by deceiving me. You have heard

1~ testimony that they fraudulently came up with a

18 gigantic $18,000 bill.

19 Just because they did not succeed in

20 their fraud is not evidence that they were, damaged by

21 their failure to perpetuate the fraud.

22 You have heard testimony that they

23 indeed damaged Mr. Birnbaum. So the answer to

24 Question Number 1 is zero. They were not damaged.

25 Question Number 2, what is a reasonable

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1 fee for the necessary services regarding for

2 preparation and trial in this matter? Zero. There's

3 no reasonable ‑‑ there's no reasonable fee for

4 bringing an unreasonable suit. The answer is zero.

5 There's no reasonable appeal on an

6 unreasonable suit. Answer, zero.

7 There's no reasonable fee for putting

8 up all of the things ‑‑ these folks want to run up

9 legal services. You have heard testimony that the

10 bills kept on going on, attorney's fees on attorney's

11 fees and so forth. For the C, answer, zero.

12 And I don't know what even to say for

13 D. Put in a zero, or put whatever it is. They're not

14 entitled to attorney's fees.

is Question Number 3. Did the law office

16 engage in any false, misleading or deceptive act or

17 practices that I relied on to my detriment and that

18 was the cause of damages.

19 Yes, they told me I had a good case

20 when I didn't. They told me that they would bill me

21 monthly and didn't even have an accounting system. I

22 relied on their statement. And they told me they

23 would not obligate me to a large expense, and they

24 did.

25 So did the law office engage in false,

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1 misleading and deceptive acts and false, misleading ‑

2 failing to the ‑‑ failing to disclose information

3 about services. They failed to disclose that I really

4 didn't have a good case. They failed to disclose they

5 didn't have any legitimate accounting system. They

6 failed to disclose ‑‑ you've heard testimony they had

7 no intention of billing or ‑‑ or getting my approval

8 before obligating me to a large expense. Answer to

9 Question 3 is yes.

10 Answer to Number 4, did they engage in

11 any unconscionable action or course of action that was

12 a producing cause of the damages? Unconscionable, you

13 can read the definition. What these guys did was .

14 unconscionable. You've heard testimony from me that

15 bringing this suit, and if this suit is fraudulent,

16 it's unconscionable. So on Question Number 4, did

17 they engage in these things, the answer is yes.

18 Answer to Number 5, and ignoring the

19 details in the instruction, everybody knows what

20 "knowingly" means. Did they do this stuff‑knowingly?

21 You've heard the testimony. Of course they did.

22 You've seen everything. You've seen ‑‑ you can decide

23 for yourself whether you believe they did this

24 knowingly or they didn't know anything about this

25 stuff. They did this knowingly. Answer, yes.

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1 Number 6, did they engage in such

2 conduct intentionally? They brought the lawsuit,

3 they're inclined to get 18,000 out of me. You've seen

4 the stuff. Did they engage in it intentionally? Of

5 course they did.

6 Number 7, damages. What sum of money,

7 if any, if paid in cash now, would fairly and

8 reasonably compensate Udo Birnbaum for his damages, if

9 any, that resulted from such conduct? It says,

10 consider the following elements. Consider answers

11 separately. The difference, if any, in the value of

12 the services received and the price paid and so forth.

13 1 paid him $20,000. All I got out of it was a bunch

14 of headaches. That's why we're here today.

15 So for the difference in the value, I

16 paid 20,000. I didn't get any value of it. The

17 services had no worth. There was a lot of flopping of

18 documents and.‑‑ who knew something where. No worth

19 came out of it. Answer for that, 20,000, which is the

20 initial retainer that I paid him. I got nothing out

21 of it .

22 The expense cost to Udo Birnbaum, if

23 any, produced by this. I testified earlier that I had

24 expenses of about $3,000 considering all of the

25 transcripts and the running back and forth and making

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1 copies of mailings and who knows what all. So for

2 expenses, about 3,000.

3 1 testified to the reasonable value of

4 my lost time, which is sort of like my earning

5 capacity, and I said 40,000 a year. And since the

6 time that I signed the contract, it's almost ‑‑ you

7 know, in a month or so, it will be three years. Three

8 years times 40,000 is 120,000. So answer, 120,000.

9 That's what I testified. Of course, you can put any

10 numbers down you want, but that's what I believe is a

11 fair value of my time, 40,000. It totally used up ‑

12 you heard the testimony, totally used up my time.

13 Number 8 what sum of money ‑‑ and

14 this ‑‑ the Question Number 8 is predicated ‑‑ that

15 means it's based on ‑‑ if they did it knowingly.

16 The instructions on the top will lead

17 you, that if you found that they did it knowingly, in

18 other words, what additional penalties ‑‑ that's

19 called exemplary damages. What sum of money, in

20 addition to actual, what other damages should be added

21 in addition to these Question Number 7 expenses. What

22 should be added to them because their conduct was

23 committed knowingly.

24 You are the guide. Send a message to

25 these guys that such conduct will not be tolerated in

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1 Van Zandt County. Answer a million dollars or

2 whatever you feel is necessary to stop this kind of

3 conduct by Dallas lawyers in Van Zandt County, by

4 these lawyers to stop them from ever doing this again

5 on anybody else. Answer is a million dollars or

6 whatever you want.

7 Number 9. What sum of money, in

8 addition to the actual damages, should be awarded

9 because the conduct was committed intentionally,

10 whatever you want to add there. If you find that they

11 did this stuff intentionally, that they intentionally

12 perpetrated a fraud on me, sock it to 'em.

13 I'm not going to go over all of the

14 exhibits. You saw the little sticky tags they found

15 that wasn't right and this entry wasn't right. You

16 saw the accounting page that went, from 20,000 to

17 negative 18,000 in one giant step. You‑all saw all of

18 the stuff on this. We couldn't even find when the

19 account went through zero.

20 Nobody could remember who the owner of

21 what is. I can't even remember all the things.

22 You saw it all. You saw the accounting

23 sheet where I tried to give you some sort of

24 reference, and I told you, I swear, testified that,

25 quote, bill ‑‑ billing statement was dated

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1 December 31. No, that was mailed to me, that green

2 card date of July 31. Six months earlier, those

3 things ‑‑ all of those notices, all of that stuff did

4 not happen. That stuff was sent on July 31.

5 And even if it had been sent on

6 December 31 like it said, you know, you've heard

7 testimony that was the first inkling that I ever got

8 that I owed him $18,000. It came out of thin air.

9 First document I ever saw. This is unconscionable.

10 Send a message to these clowns.

11 And let me close. What you witnessed

12 this week is the evil inner workings of how these

13 lawyers created fraudulent documents and were able to

14 not let those acts be revealed to you.

15 I plead with you to take this

16 opportunity that you may never have again to send a

17 message to these Dallas lawyers that Van Zandt County

18 citizens will not tolerate such unconscionable conduct

19 by lawyers. Let your conscience be your guide. And

20 thank you.

21 THE COURT: Mr. Fleming, you have five

22 more minutes.

23 MR. FLEMING: May it please the Court.

24 I'm a Dallas lawyer. He's a Dallas

25 lawyer. I've lived in Dallas for 50 of my 50 years,

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1 and Mr. Westfall has lived there his entire 39‑year

2 professional career. We were in Dallas when

3 Mr. Birnbaum came to meet Mr. Westfall. And if

4 anybody down here in Van Zandt County decides to come

5 over and talk to us about a case, we'll be glad to

6 talk to them, too.

7 1 would like for you to think about one

8 thing. When you're analyzing what the truth is, just

9 like those judges in that 12(b)(6) motion had to

10 analyze what the truth is, I hope you will take not

11 only what you've been told, but what actions you see.

12 Now, Mr. Birnbaum, I guess, would argue

13 now that he's got religion. He now knows about

14 judicial immunity,, and if he'd known when he walked

15 into the office about it, he wouldn't have gone

16, forward. Take Plaintiff's Exhibit Number 5 in there

17 if you want to and look at it, and examine and see

18 what he did when he found out in September of 1999,

19 when he knew about judicial immunity ‑‑ what did he

20 say about it?

21 He said, "Oh, all the reasons, I can

22 get around that. That's not going to stop me. No,

23 sir, here are all the reasons I can get around

24 judicial immunity. I've gone to the law library.

25 I've done my own research. I've read all of these

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1 cases

2 The truth of the matter is, if he had

3 taken Mr. Westfall's advice and dismissed all of the

4 judges in that case, the case still went on. You

5 didn't hear any testimony that says if he dropped the

6 judges in that lawsuit, that that dropped out

7 everybody he was suing. He still had other defendants

8 in that lawsuit. He still was going to need a lawyer.

9 He still was going to have to overcome 12(b)(6)

10 motions about whether or not it was a frivolous claim

11 and whether or not he could prove it. He was still

12 going to have those legal fees even if he dropped the

13 judges out of the case. He wouldn't do it. He just

14 wouldn't do it.

15 I have to admit I haven't seen it yet,

16 but I feel like I have, there's been so much talk

17 about it, a great movie out, "A Beautiful Mind." I

18 imagine some of y'all have seen it.

19 You know, some people have a beautiful

20 mind to do certain things. Mr.Birnbaum has a

21 beautiful mind. And, boy, when you go into integrated

22 circuits and you start talking about electronics, he

23 has a beautiful mind. And he came to Mr. Westfall and

24 convinced Mr. Westfall he had a beautiful mind, and "I

25 know all about this corruption down here in Van Zandt

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1 County, and I know how to do a lot of my legal

2 research. And with my beautiful mind and your legal

3 abilities, we're going to get this case going and

4 we're going to make a million dollars," Mr. Collins

5 thought, "using my beautiful mind."

6 Well, you know sometimes that beautiful

7 mind doesn't work as good in other areas as it does in

8 some areas.

9 You know, they also say that a mind is

10 a terrible thing to waste. And I would argue with you

11 that Mr. Birnbaum has spent a whole lot of time

12 wasting his beautiful mind in courtrooms in Van Zandt

13 County, in Tyler, in Dallas County, federal court, and

14 a lot of other places.

15 1 think if we're going to send a

16 message, we need to send a message that,

17 "Mr. Birnbaum, you need to take your beautiful mind

18 and you need to quit wasting it and you need to do

19 what you do best, and you need to let lawyers do what

20 they do best. And you're right, make sure‑you have a

21 lawyer with honesty and integrity. That's important,

22 too. But you've gotten yourself into your own

23 problem."

24 1 think it's just like Mr. Westfall

25 said. If Mr. Birnbaum thinks something, if he

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1 conceives of it in his head, he's already jumped to

2 the conclusion that it's true.

3 There's one other movie, Mel Gibson

4 starred in it, called "Conspiracy Theory." And

5 everywhere Mel turned around, he knew there was a

6 conspiracy. And he lived his life in fear. But the

7 only difference in that movie is finally it turned out

8 there was one conspiracy in that movie.

9 But Mr. Birnbaum has alleged a lot of

10 conspiracies all throughout his 15 years of living

11 down here in Van Zandt County. Not one of them has

12 proved true yet. I think you need to send a message

13 to Mr. Birnbaum, "Take your beautiful mind and quit

14 putting it to waste in the courtroom. Pay your legal

15 fees, and go on about your life."

16 Thank you very much.

17 THE COURT: Thank you.

18 (End of Excerpt.)

19 ‑‑ooOoo‑

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1 STATE OF TEXAS

2 COUNTY OF SMITH

3 1, D. KEITH JOHNSON, CSR, RDR, CRR, Official

4 Court Reporter for the 294th Judicial District Court

5 in and for Van Zandt County, Texas, do hereby certify

6 that the above and foregoing contains a true and

7 correct transcription of all of the portions of

8 evidence and other proceedings requested in writing by

9 counsel for the parties to be included in this volume

10 of the Reporter's Record, in the above‑styled and

11 numbered cause, all of which occurred in open court or

12 in chambers and were reported by me.

13 1 further certify that the total cost for

14 the preparation of this Reporter's Record is

15 andSs:p::ai~d)~will be paid by ‑‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑

16 WITNESS MY OFFICIAL HAND this the day of

‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ T ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ T ‑ ‑ ‑

D. E OHN 0 RDR, CRR, TX CSR #3781

19 Certification Expires: 12‑31‑03

Official Court Reporter

20 294th Judicial District Court

P. 0. Box 120100, Tyler, TX 75712

21 (903) 596‑7800

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