Tanuvasa v. City & County of Honolulu

August 29, 2013

In 1977 I was practicing personal injury trial law in the firm of legendary trial Honolulu attorney David Schutter. He assigned me to represent a victim of a police assault. Our client, Onasai Tanuvasa, had been an outstanding public high school football player before playing for the University of Hawaii. Hawaii has no professional sports, so high school football is a hugely popular sport and also attracts a substantial amount of gambling activity. There were, unfortunately, rumors that Onasai (Sai) had thrown games for the local mob while in high school. In college, Sai worked as security in illegal gambling houses run by the mob. Sometimes, players winning heavily wanted to exit quickly while they were ahead. Sai was present to convince them to stay a while longer. He was mainly there to prevent robberies. Sai once told me with a wink that the concealed gun he carried was unloaded.

Of Samoan ancestry and amazingly strong, almost six feet in height and two hundred twenty or so in weight, Sai could run a hundred yard dash in the low tens. Most of his close friends were local Japanese. Sai married a beautiful young girl of Japanese extraction. Her father, a successful businessman, was under five feet in height. At Farrington High School, with a mix of ethnicities, Sai had a reputation for protecting the smaller Asians from the much larger locals. There were stories of Sai pulling bullies into the Farrington High School bathrooms, where the sound of screams and flushing toilets was heard.

On the evening of the incident, Sai was at a parking lot with several friends showing them a new pistol, which he shot twice in the air. Honolulu Police office Gerald Lam arrived at the parking lot shortly after receiving a report of gunfire. He accosted Sai, who did not have the weapon in his possession when the officer arrived. The officer struck him three times on the head with a lead-filled flash light and placed Sai under arrest for criminal assault. Sai managed to stay on his feet without losing consciousness. He had several large, ugly gashes deep in the scalp, which Sai had the foresight to have professionally photographed the next day. The average male who sustained the same beating to the head would probably have been left in a coma.

Dave Schutter wasn't much interested in the case. He had too much on his platter and passed the case off to me. Sai was understandably skeptical about me representing him instead of Schutter, but developed more confidence in me as the case developed. We had demanded that the City pay $17,000 in settlement, but the City's attorneys didn't offer a dime. Schutter would have been happy to settle the case for $12,000. Sai urged me to take his case to trial.

About two months before trial, the former coach of the University of Hawaii football team testified at his deposition that Sai would likely have had a professional football career if he had not suffered a concussion in the police incident. The coach was a popular local figure with a charismatic personality. Schutter and I both felt that Sai's college football coach would have a big impact on how the jury viewed our client.

Sai had suffered several prior concussions before officer Lam beat him. The neurosurgeon hired by the County to examine Sai in an "independent" medical examination concluded that the concussion suffered in the incident made the risk of continuing in the sport of football too dangerous to his health.

Schutter was enjoying a honeymoon in Europe when I called him to request his immediate return to try the case with me. We split the duties at trial. The deputy corporation counsel for the police officer's employer, the City & County of Honolulu, was named "St. Sure." He had a twin brother who also was an attorney with the County. We called them the "not so sures." St. Sure was a gruff man who appeared to be in his early 60′s, with a distinctive gravelly voice.

We first picked the jury of eleven men and a woman who looked manly. From day one of the trial, St. Sure began the first of what would be several days of continual profane verbal tirades, murmured at a barely audible level. Around the third day of trial Judge Harold Lanham, a kindly judge with a mild temperament asked St. Sure if he was mumbling, which he denied. "Ask Mr. Weinberg," he implored the judge. The Judge nodded in my direction and instructed me to respond. I affirmed that counsel had indeed been mumbling. The judge asked what he had been mumbling. I asked the judge if he really wanted me to repeat what St. Sure had been mumbling and was instructed to do so. Without pausing, I ran out a string of various profanities which had been spewing from St. Sure's mouth. Judge Lanham's face turned bright red and glared at St. Sure. "You're in contempt," he announced dramatically. "What for?" St. Sure grumbled back. "For mumbling." Then the judge banged his gavel hard on the top of the podium for emphasis.

The closing argument by Schutter was unusual. He read slowly from the score of "The Impossible Dream," the lead song in the Broadway musical, "The Man of La Mancha." Some of the jurors appeared to be softly crying. The personal lawyer for the police officer stated in his closing argument that this was his first trial, attempting to seek relief from his poor trial performance. In rebuttal Schutter was merciless. "First of all, who believes him?", he asked. "And, second, who cares?"

The jury returned its verdict later in the evening, after deliberating for several hours. The Court clerk called us at the law office to return to court immediately. It was about 8:00 p.m. In 1977, before budgetary constraints, juries continued deliberating after hours, sometimes until midnite. As we awaited the jury foreperson to announce the verdict, Schutter and I couldn't help noticing a young Filipino male in the back row shaking his head side to side with a grimace. We thought all along he was on our side. At one point during the trial the judge admonished this juror for silently mouthing the words, "F*** you" to St. Sure.

As we anxiously awaited the jury verdict, Schutter whispered to me, "Well, you never know. Maybe we just lost." The foreperson then announced the verdict of $256,000. $250,000 of the verdict was awarded for pain and suffering and emotional distress. We had not attempted to prove the amount of future earnings loss, but argued instead that Sai had suffered loss of enjoyment of life by being denied his opportunity to have a professional football career. On appeal, years later, the Hawaii Supreme Court upheld the verdict. Sai had repeatedly encouraged me to take his case to trial. He said we would win big. Sai always had more confidence in his case than either Schutter or me. In this case, the client definitely knew best.