THE BOARD MEETING: A LAWYERS PERSPECTIVE

Published on: November 20, 2017

July in Boston can be stifling, this was one of those days.  It was 9:00 AM and it was already 90⁰.  Temperatures were expected to hit 103⁰.  I was headed to the kind of meeting every lawyer hates….a meeting after a loss.  Trial lawyers hate losing just like athletes and coaches.  Meeting clients after a loss is worse than facing the media after losing the Super Bowl.  You feel bad enough about the loss, litigators are competitors, we hate losing (did I say that already)!  I hate losing…there I said it again.  However it’s part of the legal landscape.  Clients ask all the time what are my chances of winning?  I give odds and then I explain to them that unlike in sports the best team or the team that scores the most points does not always win.  Legal victories and losses often come down to the whims of a single judge or juror.  Prejudice and bias are in play.  You need not look farther then OJ Simpson or Tom Brady to understand that the legal process is not fair and does not always dole out justice.
On this particular day I was traveling to explain how the Appeals Court had taken away or “reversed” a victory in the trial court.  There is no Appeals Court in the sports arena.  The closest thing might be instant replay, but that is nearly instantaneous and reverses decisions on plays.  The Appeals Court affirms and reverses wins or losses.  Imagine winning the Super Bowl only to have the outcome changed 9 months later.
This case involved a unit owner who had spent 7 of his last 10 years in maximum security prison for dealing cocaine out of his unit.  When he came back, he got into a series of disputes with his neighbors.  The disputes escalated as they often do.  He purchased his unit through a lottery from the Boston Redevelopment Authority.  His unit was a so-called “affordable unit” sometimes known as a 40B unit.  He purchased his unit before he was caught selling cocaine out of his unit.  The BRA did not take any action to terminate his ownership in his unit after his drug conviction, although they could have.  Anyway, upon his return he contended that the percentage interests in the condominium were unfairly and illegally established.  He filed a lawsuit in the Land Court and he lost.  That lawsuit was expensive and took a couple of years to resolve.  The Land Court found that the percentages in the condominium were properly established and that the developer was not required to provide affordable units with a lower percentage and or lower condominium fees.
The loss of that lawsuit angered the unit owner.  He devised a plan to get his revenge.  He began dumping 50 lb. bags of birdseed on the sidewalk in front of the President of the Board’s unit.  He did this at least daily…sometimes twice a day.  The results were predictable.  The condominium became “pigeon friendly”.  Bird poop adorned the building and the front steps.  Umbrellas were necessary to leave the building, it was literally raining birdsh*t.  The massive birdseed piles also attracted mice and rats.  The President of the Board’s unit became infested with rats.  The condo asked him to stop.  He responded that feeding the birds helped his anxiety disorder.  The condo told him to feed the birds in the public garden or Boston Common but don’t dump a 50 lb. bag of seed on the sidewalk.  He continued and the condominium fined him.  He refused to pay the fines.  The condo took him to court and was awarded substantial fines and legal fees.  He stopped feeding the pigeons.  Victory!
The unit owner was of course represented by a prominent law firm through a college clinic that provided pro bono representation.  On appeal the story became about how this poor individual was prevented from feeding the birdies to help his anxiety disorder.  The condo board was picking on and beating up on the poor unit owner.  He contended 50 lb. bags of birdseed are needed to feed all those poor birdies.  The more birds he reached the better he felt.
The Appeals Court was intrigued.  They were sympathetic.  They focused their attention to the location of the birdseed.  Most of the 50 lb. bags of birdseed were placed on the sidewalk, which was technically outside of the condominium.  So the Appeals Court reversed the decision holding that the condo could not fine a unit owner for doing something on the sidewalk even if it impacted the condo.  I recall the frustration arguing to the Appeals Court “what if he blew up a bomb on the sidewalk and destroyed the building” or if “he lit a fire on the sidewalk”…could we fine him then or charge him for cost of uninsured losses”?  Alas, Judges rarely answer lawyers’ questions or hypotheticals.
So here I was pulling into Boston.  I was a little early and amazingly there was an entire row of metered parking spaces.  So I parked my brand new car (I had picked it up less than a week earlier, it still had that new car smell) pumped the meter with 8 quarters which was more than enough to cover the time of the meeting and walked it two blocks to my meeting.  It was hot, especially wearing a suit.  I was a little sweaty but I made it to the building and met with the condominium board.
The condo board was understandably upset about the loss.  One board member in particular was irritated.  He was looking for a substantial discount on legal fees because of the loss.  He had no issue with the quality of the work performed, which of course he agreed with and directed and wanted carried out, but he was using the loss to his advantage.  The meeting got a little heated for a bit but the issue ultimately resolved.  I reminded the condo board that no guarantees had been made and that settlement efforts had been rejected and that I was just as disappointed by the court’s decision.  I hate to lose!  Did I say that already?  So I agreed to a possible compromise, but the board wanted to speak a little bit more about it and communicate with their property manager and call me later in the day.
An hour later I stepped back into the heat.  Man was it hot.  I was sweating in my suit.  I approached the parking meters and could not see my new car.  Where was my car?  Did I have the street wrong?  No, I recognized the little store I parked next to.  I noticed a tow truck towing a car a block up.  I ran up to him and asked if he had seen my car.  He said yes.  He told me that it was towed 10 minutes ago because Wednesday morning is street cleaning day on this street no metered parking allowed.  This of course explained the 8 open parking spots.  I asked him where was it towed to.  890 Mass. Avenue, the city lot, he said.  I knew where it was.  It was about 4 miles away.
So I thought ok I will call a cab.  It was at that moment that I realized I had left both my phone and my wallet in the car.  I thought about heading back to the board meeting to ask for help but thought better of it.  Now I was pissed at everyone.  So what did I do?  I walked the 4 miles in 100⁰ heat.  By the time I arrived I was covered in sweat.  I cursed that condo board the whole way.  I cursed everyone along the way.  I cursed the pigeons, I cursed the unit owner, I cursed the Appeals Court, I cursed the pro bono legal services organization.  I imagined the call coming to me when I eventually got back to the office, I fantasized about it, “oh you want a discount, do you”?  “I’ll give you a discount”!
It took me about an hour to arrive.  I saw my car there, all scratched up from the tow truck.  Nice, my happy thoughts continued when I walked into the onsite trailer.  I was met by a handsome unpleasant women who sat behind bullet proof glass.  I explained that my car had been towed and gave her the make and model.  She said that will be $328.  I explained that my wallet was in the car.  She laughed at me and said, yeah right.  I assured her I needed my keys to get in the car so I could pay to get my car back.  She said “Do I look stupid to you”?  I did not respond…I just stood there sweating.  Then she asked me with a smile if I was stupid, how did you leave your wallet in a car that got towed?  I explained I left my phone in it too, she smiled and noticed I was sweating through my suit, she quipped, what are you a lawyer or something?  What did you do, “piss off the judge”?  I said, yeah something like that.  She told me to sit in the chair and wait ‘til she was finished with everyone else and she would walk me out to the car, I looked at the 10 people behind me in line and plopped into the chair.  Another hour and I was finally back on my way to Braintree.
I guess I looked like a disaster when I walked in.  I told the story to the first floor staff, they laughed so hard most of them had tears in their eyes.  No sooner had I finished telling the story and the laughter had subsided, the board member was on the phone looking for his discount.  I picked up the phone and he said I called you an hour ago and they said you weren’t back yet, what took you so long?  Did you take the slow road so you could bill more time?  I told him no, I went for a short walk on a beautiful day to clear my head.  We chatted and came to an agreement.  I hung up, leaned back and chuckled.  I looked at my email and saw I had 68 unread messages, unopened mail on my desk and the red light on my phone was blinking meaning I had messages waiting.  I stripped off my jacket tie and shirt and put on my jeans and an extra t-shirt I had lying around and chuckled again.  I settled in and focused on the next task at hand.
I chuckled again as I settled in and thought well at least that was not the worst condo board meeting I ever had, in fact it was not even in my top 5.  I know condo owners and property managers had far worse stories than that.  Stories that impacted their lives and their homes.  So I settled in and focused on my job which is to minimize those catastrophic and real life impacts that board members, unit owners and property managers face every day.  I took solace in the fact that my office laughed at my story.  Whether you are on the board, managing the board or providing legal advice to the board it’s all about perspective.

Written by Ed Allcock eallcock@meeb.com.