TO QUESTION OR NOT TO QUESTION, THAT IS THE QUESTION

In litigation, it is tempting for a lawyer to cross-examine with vigor any witness who opposes the position of the lawyer's client. However, the challenge is to know when to cross-examine and when simply to keep quiet and to resist the urge to talk. I have some examples of this challenge from my own experience.

In a contested rate hearing, a customer of a water utility appeared to testify about the quality of water. The customer produced a glass jar allegedly containing a "sample" of the utility's water taken from the customer's faucet. The contents of the jar were cloudy and colorful. Cross-examination of the witness yielded the fact that the water had been collected in a mayonnaise jar which had not been sanitized.

In another case, a wastewater utility was accused of polluting the "stream" into which its treated effluent was discharged. The stream was a low flow, intermittent stream-meaning that unless it rained, the only flow was the discharged treated effluent. A witness for the state EPA testified that the utility's discharge was polluting the stream.

On cross-examination, the witness admitted that he never had walked the stream, and that he did not know that he took his samples downstream of the point where two storm water runoff tributaries and several large storm water drains entered the stream. Subsequent samples of these storm water sources disclosed much higher levels of contaminants than were contained in the effluent leaving the treatment facility. Thus, cross-examination was able to discredit the entire testimony of the witness due to his sampling errors.

On the other hand, I am reminded of one of my most unusual ratemaking hearings. Again, at issue was the quality of water service provided by a utility client. Several customers spoke, complaining that iron in the water was staining their laundry. Finally, a woman testified, holding up her new bra purchased that day and an older one washed in water provided by the utility. Both bras were offered as exhibits, and closer inspection invited. At the close of her speech, she threw the older bra into my face, and clutching her new one, she ran off. After I regained my composure, my only question was whether she wanted the old bra back. No, she gasped. Cross-examination was over.

POP QUIZ: HOW WELL DO YOU KNOW THE CONSTITUTION?

I save everything, it seems! Recently, I unearthed a copy of the final exam I gave my law school class in Constitutional Law in May, 1975. One of the questions still seems timely 35 years later. I reproduce it below. How would you answer the question? Hint: identify the issues and the arguments on both sides of the issues.

A Presidential commission on natural resources conducted a study which concluded that the nation's available water supply is limited, and unless water conservation is practiced, will be exhausted as early as within 15 years in some parts of the country. The commission noted that sources of water supply vary across the country and include wells, lakes, rivers, surface water retention ponds, and oceans. It found that although some water suppliers attempted to impose water conservation, generally such efforts were not successful and there was no consistency through the country. The commission recognized, however, that to be effective, conservation has to be observed by the ultimate user of the water.

Reacting to the commission's report, Congress passed, and the President signed, the Water Conservation Act. The Act established a federal Water Conservation Board (WCB) to develop for all water suppliers uniform national rates and rules for water service which would impose water conservation. Subsequently, the WCB promulgated graduated rates which increase as usage increases. For example, for the first 1,000 gallons of water used per month, the rate was $2, and for the next 1,000 gallons, the rate was $3. The WCB also developed rules to conserve water, such as a ban on sprinkling, car washing, and non-recycling swimming pools. If any water supplier failed to adopt or enforce the rates and rules developed by the WCB, the Act imposed a 20 per cent tax on the gross earnings of the supplier.

The Village of Leaky Pipe owns and operates its own municipal water supply system to provide water service to its residents. It obtains the water from large wells. The Village refused to adopt the WCB rates and rules, and the federal government assessed the 20 per cent tax. The Village sued to enjoin collection of the tax, but was unsuccessful in the lower courts. The United States Supreme Court agrees to hear the appeal. What ruling and why?

HANDSHAKE MISTAKE: THE IMPORTANCE OF WRITTEN CONTRACTS

In a "comic" strip several years ago, Lucy promised Charlie Brown to stop pulling the football away when he tried to place kick it. They shook hands on the promise. But, when he ran up to the football, she again pulled it away, and he went flying. When he complained to her, she said that a woman's handshake is not legally binding.

Utility systems operate by many contracts-with customers, vendors, construction contractors, engineers, developers, consultants, accountants, attorneys, other utilities, etc. Often times, these contracts are oral-a handshake, if you will-or if in writing, the writing is sketchy or incomplete.

Oral agreements may be workable as long as no dispute arises. However, many different kinds of disputes can arise over the terms of an oral agreement, such as price, completion date, performance standards, etc.

If a contract is not in writing, or the writing is incomplete, any dispute is a ticket to the courthouse. There, the terms of the agreement-if in fact the court concludes an agreement exists-will be determined by a judge or jury, not by the parties to the contract.

The purpose of a written contract is to fully state the intent of the parties. In such a case, any dispute will be resolved in court by review solely of the "four corners" of the document. External evidence of the parties' intent-extrinsic or parol evidence-is not to be presented.

As the Illinois Supreme Court has stated, "an agreement, when reduced to writing, must be presumed to speak the intention of the parties who signed it. It speaks for itself, and the intention which with it was executed must be determined from the language used. It is not to be changed by extrinsic evidence." Air Safety, Inc. v. Teachers Realty Corp, 706 N.E. 2d 882, 884 (1999).

However, if a contract is oral, or incomplete or ambiguous if written, extrinsic evidence generally is allowed to be presented by witnesses, prior conversations, documents, etc. J & B Steel Contractors, Inc. v. C. Iber & Sons, Inc., 642 N.E. 2d 1215, 1217 (1994). In other words, a he said/she said situation arises. The risks of such litigation and uncertainty of outcome are apparent.

What conclusions follow?

1. Water and wastewater utilities should reduce agreements to writing.

2. Written agreements should contain accurately all terms and conditions intended by the parties in unambiguous language.

3. If a written agreement is prepared by the other party, the utility should carefully read and understand all terms. This is true particularly for the so-called "boiler plate" provisions.

4. The agreement should be signed by representatives of all parties with evidence of their authority to sign.

5. The agreement should contain an "integration clause" to the effect that the contract contains the full agreement of the parties.

6. At least non-routine or complex agreements should be crafted or reviewed by counsel.

WASTEWATER DISPOSAL FOR A SIMPLER LIFE

In today's complex worldwind, we often reflect upon the "good old days," days that seem to have been of a more "simple life." At times, this seems to be true even for the apparently more mundane world of wastewater disposal. Today, thanks to the federal Clean Water Act and related regulations, there is constant concern with such subjects as biological demand, suspended solids, ammonia-nitrogen, inflow-infiltration, heavy metals, pharmaceuticals, pre-treatment, advanced treatment, etc.

When my parents had their cottage in Indiana (see my post of January 21, 2010), we did not have "indoor plumbing." Yes, we had an outhouse. It was a small, narrow structure on a small, narrow terrace below the house. It was painted white (by me) and had a tiny glass window high up the back wall for light. It was a two holer. As a kid, I long wondered why two holes--who would want to share such a private moment? From a more technical standpoint, I supposed that maybe the intent was that users would alternate so as to spread the joy. However, people tend to be creatures of habit, sitting in the same seat on a commuter train, for example.

Regardless, as a user, I did not have that much joy. I always feared that some sort of creature, a fecal gremlin, would bite my bottom. Even above ground, the inside of the outhouse always housed vicious-looking spiders waiting to pounce on me in an unguarded moment. At night, it was even more scarey. One had to bring a lantern or flashlight, stumbling over tree roots along the path and wondering who or what would be waiting for me in the dark inside.

On a more positive note, one could sit inside, prop open the door, and view the lake. Oh look, there goes Mr. Nelson in his 12 foot rowboat powered by a 5 horsepower Sea King motor putting by until seaweed killed his progress right opposite my door. "Hi" he yelled. So much for the pastoral.

Maybe the "simple life" was not all that simple.

Obviously, today outhouses a more a curiosity than a necessity. Some persons have collected outhouses much as persons have collected stamps or coins. Others have written photogenic books about them.

A few years ago, my wife and I bought an outhouse door from a shop in Kentucky. It was painted blue, had all the hardware, and had a quarter moon cutout near the top. The door sold immediately in my wife's booth at a Wisconsin antique center. If an outhouse door is an antique, what does that make me? I am flushed with answers.