With today's liberal discovery rules and push for settlement, trial lawyers rarely get the chance to use a smoking gun, that single piece of evidence that can blow an opponent's case away.  A few years ago I had the good fortune to find and use at trial a smoking gun that completely destroyed the defendant's credibility and turned a close case into a punitive damage verdict.

         The case was a sexual harassment claim by a paralegal against her former boss, Ronald Clark (all names are pseudonyms), a plaintiff's personal injury lawyer in Sacramento. My client, Julia Merriweather, worked for the defendant for two and a half years. It was her first paralegal job and she was bright-eyed and ambitious, anxious to launch a successful career. An attractive twenty-four year old with long dark blonde hair, she was also a single mom and the sole support of her two small children, which made her particularly vulnerable and dependent on her boss.

         Within a year, Clark began to ask her to do things that she alleged created a sexually hostile environment. In his mid-30's, Clark was married with young children. Ms. Merriweather alleged in the complaint that he described his sex life, including his extramarital affairs, in graphic detail. He also insisted she run interference for his affairs, asking her to accompany him and the office receptionist to lunch to cover up their affair from other workers in the office suite.

         On one occasion, Clark and the receptionist dropped by her apartment unannounced. Clark handed Merriweather a fifty-dollar bill and told her to take her two young children out for pizza. Seething with anger, but still obedient, she drove the kids to Round Table. When she returned over an hour later, she found her bed undone, the sheets damp, and a wet towel hanging from the shower door. Her daughter found Clark's tie on the doorstep.

         According to Merriweather, the next year Clark began an affair with a friend of hers, Hannah Estes. As with the prior affair, he required her to run interference. She would tell callers, including Clark's wife, that he was in the library when he was actually spending the afternoon with Estes. Although Merriweather had complained about Clark's forcing her to be involved in his affairs, her complaints became more forceful after Clark instructed her to make reservations for him and Estes at the Hotel Nikko in San Francisco. The Hotel Nikko is where we found the smoking gun.

         Merriweather made the reservations as instructed. The specific date stuck in her mind because it was the night before the firm's Christmas party. That afternoon she drove to Estes' apartment to pick her up and bring her to Clark. At Clark's insistence, she told Estes' husband that she and Estes were going to San Francisco for a seminar. The next day, a Saturday, Merriweather met Clark and Estes at a prearranged location and drove her home.

         At his deposition, Clark denied having an affair with Estes and denied ever instructing Merriweather to reserve a hotel room for him and Estes. He admitted, though, that he stayed at the Hotel Nikko from time to time and that Merriweather usually made the reservations for him. He was vague about whether he'd stayed there the night before the firm Christmas party.

         Trial was set to begin in January 1997. Because many potentially corroborating witnesses could not be located, the case would turn on the credibility of Merriweather and Clark, in many ways a typical "he said, she said" case. There were no witnesses to Clark's statements to her. Because Clark was an attorney, we were concerned the jury would believe him over her, surmising that an attorney would know better. It was obvious we needed some objective evidence to corroborate Merriweather's story. After brainstorming the problem with Merriweather for several weeks, we decided to subpoena records from the Hotel Nikko.

         Such a subpoena had to be narrowly drawn to avoid privacy objections or an argument that the subpoena was unduly burdensome and oppressive. Therefore I limited its scope to the night before the firm Christmas party. I asked for every document that might show that Estes was with Clark that night, including all reservation, registration, phone, and room service records.

         My next concern was whether I had to give Clark any notice of the subpoena. If hotel records were considered consumer records under the Code of Civil Procedure, I knew I would have to send a copy to Clark and give him a chance to object. Since the usefulness of the records depended on surprise, their value would be diminished greatly if defendant had them before trial. After carefully researching the law, I decided Clark was not entitled to any notice and sent the subpoena out for service.

         Shortly before trial, the controller of the hotel, Robert Simpson, called. He had pulled all the records, but didn't want to travel to Sacramento to testify. Did I want to look at the records before trial to see if I really needed him?  Sure, I said. He agreed to fax the records to me and phone later to explain them.

         He faxed about a dozen pages. I was amazed at the level of detail of the hotel's records. One thing was certain:  Clark had stayed at the Hotel Nikko the night Merriweather claimed. Using these records, I could easily reconstruct Clark's activities that night, specifying the times he checked in, made phone calls, removed drinks and snacks from the in-room refrigerator, watched a movie, and ordered room service.  What was missing, to my disappointment, was any mention of Estes.

         The records seemed, to my untrained eye, unclear on whether Clark had stayed at the hotel alone. So when Simpson called me later that day, I had no idea what to expect. He took me through each page, line by line. For my purposes, there were two significant documents:  a computer printout of registered guests for that day and Clark's room service receipt. Both had the number "2" on them, the registration printout beside Clark's name and the room service receipt hidden amidst many other numbers. I didn't know what the number meant, but Simpson had no doubts.

         The registration printout, he explained, showed that two people had checked into the room.  And, he added, the room had only one king-sized bed. The number "2" on the room service form, continued Simpson, meant that two settings were ordered, indicating two diners.

         In analyzing these records, I came to the conclusion that they provided strong evidence of the affair. My strategy was clear:  induce Clark to testify either that he had not stayed at the Hotel Nikko that night, or that he had stayed there alone. I realized that by itself the evidence would probably not have much impact. But if I could attack Clark's credibility, the case could swing toward plaintiff. My strategy would work, though, only if I kept  the records secret until Clark had committed himself on the stand. Otherwise, he could explain away the evidence by saying he had been with his wife, and simply had forgotten about the trip.

         Keeping the records secret proved more difficult than I had imagined. No judge was available for January so the trial was rescheduled for May. That meant I had to hold the records for four more months without giving Clark any hint that I had them. In several phone conversations with Clark's attorney in which he offered paltry sums in settlement, I had to bite my tongue and politely decline the offer. I almost broke down once, at a settlement conference the day of trial. In arguing his position to the settlement judge, Clark called Merriweather a liar and denigrated her as well as me. When the settlement judge asked for my response, I gritted my teeth, thought about it for a second, then said simply that I disagreed and we'd have to let the jury decide.

         I was again confronted with the problem of maintaining secrecy when submitting my witness list to be read to the jury before voir dire. Normally I would include all potential witnesses, except rebuttal witnesses. Because defendant's story was uncertain, I didn't know if Simpson would qualify as a rebuttal witness. On the other hand, since Simpson would testify only as custodian of records, with no personal knowledge of the facts, I decided not to mention him on the witness list.

         To obtain the maximum effect from this evidence, I started with plaintiff so the jury would first hear her version of the Hotel Nikko incident. Plaintiff's version, of course, was corroborated by the hotel records.  After a few minor witnesses, I called the defendant under Evidence Code section 776. My hope was that he would flatly deny staying at the Hotel Nikko the night before the firm Christmas party. I knew, though, that more likely he would say he had stayed there in the past but did not recall staying there on that particular night, which was over three and a half years ago. The latter testimony would present the greatest problem since it would be difficult to impeach. The jury would be sympathetic to a failure of memory regarding a single night that long ago. If that were his testimony, my only hope for impeachment would be if he said he had always stayed there alone. As I began cross-examination, I believed that was the best I could hope for.

         As it turned out, Clark gave me a lot more than I ever anticipated. He readily admitted staying at the Hotel Nikko the night before the firm Christmas party. In fact, he had a clear recollection of that night. He had a meeting the next morning in San Francisco with a doctor who had treated one of his clients. As was customary, he said, Merriweather made the reservation using his office credit card.

         At first I was taken aback by this testimony. Clark had mentioned none of this in his deposition. But then I realized that the best strategy was to play along, to let defendant dig this hole deeper and deeper so that there would be no way for him to climb out. So I let him spin his tale in a matter-of-fact tone of voice, detail by detail.

         Because he was recovering from foot surgery, he said he could not drive. Therefore his old friend, Frank D'Angelo, gave him a ride. D'Angelo dropped Clark off at the hotel and went to visit his fiance. The next morning Clark met with the doctor at the doctor's office on California Street. After the meeting D'Angelo picked him up and they drove to Sacramento together.

         Once the story was cemented in, I changed to leading questions. The key, of course, was the number of people in the room. Did Estes stay with you in the room?  No, of course not. Was she with you at all that night?  No. He was emphatic, angry and insulted that I would imply such a thing. But I had expected that answer. The key question was the next one. I looked at my client, who was biting her lip. Only she knew about the smoking gun. After defendants had beat her up on cross-examination, she was looking forward to hitting back.

         As casually as I could, I asked, So you stayed in the room alone?  I held my breath, still thinking he would say his wife was with him. Clark shifted on the witness stand, looking confident. His story had come out smoothly and he probably thought he had helped himself a lot. But he had no idea what was coming. To him, the question probably sounded silly. He wasn't with Estes, as he'd already testified, so what difference did it make if he was alone. Yeah, he said, shrugging, I was alone all night.

         I turned toward my client who was still biting her tongue. Only this time her lips were stretched into a thin smile she was trying hard to suppress. I felt like running to her, jumping in the air and slapping her five. Clark had just sunk himself, but only the two of us knew it. Somehow I managed to control myself and ask another question. I asked him about dinner. He admitted ordering room service. And I assume you ate dinner alone?  Perhaps I was getting a little cocky here. My demeanor seemed to irritate Clark. He frowned, leaning forward. Yes, I ate alone.

         As Clark left the stand, all I could think about was Simpson. I wished I could put him on the stand right away, but he was unavailable until the next day.

         Simpson was still unhappy about having to drive to Sacramento, but he came prepared. He had reviewed the records carefully. He even made an extra copy for the defendant, and gave it to him before taking the stand. He made an impressive appearance in his dark suit and tie. He was balding, in his early forties, and spoke in a loud clear voice. There was no doubt he knew what he was talking about. When he identified himself as controller for the Hotel Nikko, the jury put their notepads aside and leaned forward. They must have been wondering why I'd asked so many questions about the Hotel Nikko. Certainly by the end of Clark's testimony I hadn't impeached him one bit. With Simpson on the stand, I knew the jury expected something big.

         I started slowly, showing Simpson all the documents, establishing their purpose and the hotel's customary way of maintaining them. I started with the receipt showing the number of defendant's business credit card, the one my client had used to make the reservation. The receipt had been torn in half, but the hotel had still maintained a photocopy of the two halves. It was torn up, Simpson explained, because Clark decided to use a different card when he checked in. As proof, he pulled out an imprint of defendant's personal credit card. But it was not filled in with any dollar amount. Again Simpson had an explanation:  when checking out, Clark had decided to pay cash.

         I glanced over at Clark. He was whispering in his lawyer's ear, no doubt trying to offer some explanation for these documents. For the first time since the trial had begun, Clark seemed worried, his cheek muscles quivering.

         With each document Simpson identified, the more worried Clark got. Now he was frantically taking notes. He ripped the page from his legal pad and slid it over to his lawyer. The lawyer read it, frowned and slid it back.

         By the time I got to the key documents, there was a small pile of Clark's notes on counsel table. My client was relaxed, her prior anger over the cross-examination gone. That morning she had talked about how she had been waiting years for this day, the day when people would finally believe she had been telling the truth.         I showed Simpson the registration form with the number "2" beside Clark's name. I moved closer to the jury box. And what does this number "2" mean?  I asked. He leaned back. Clark shuffled in his seat. His lawyer gave him a worried look. That shows, Simpson said without hesitating, that there were two people staying in the room.

         The reaction to this testimony was nothing like I'd ever seen before. Two jurors gasped, so loudly my client heard them fifteen feet away. I couldn't tell which ones had gasped, though both gasps sounded like they came from women. I was tempted to turn around and try to identify them. The judge looked especially displeased, scrunching his face, which by now had turned bright red.

         But it was Clark's reaction that quickly diverted everyone's attention. Without a word, Clark rose from his seat at counsel table, his head down, and walked past the courtroom attendant and out the side door of the courtroom. The judge stared at Clark walking out, then turned toward his attorney. The attorney shrugged and muttered something about Clark's having a conference call.

         I wrapped up quickly, showing Simpson the room service receipt. I asked him to explain the meaning of two settings. When a guest calls for room service, he said, the person answering the phone will always ask how many people will be dining. Room service will deliver a complete setting - napkin, knife, fork, and spoon - for each diner. And so this means that Mr. Clark ordered two settings for dinner?  Yes, of course, he said.

         At the end of the day, after the jury had filed out, the other defendant - Clark's former partner - walked past counsel table on his way out of the courtroom. He tapped me on the shoulder and said, Remind me never to play poker with you.

         From that day on, the tenor of the trial changed. The defendants were no longer on the attack and their aggressiveness had turned almost to meekness. For closing argument I made the most of the Hotel Nikko. The trial had been tape-recorded, as is the practice now in many courtrooms. I ordered a copy of Clark's testimony and, using a tape-to-tape recorder, excerpted the testimony in which he said he was alone in the room and ate dinner alone. I also made a transparency of the registration and room service records. I projected both records on the screen at the same time and circled in bold red both number "2's." Then I turned on the tape recorder and played Clark's testimony. I didn't have to say much; the point was obvious.