A few years ago, Legal Aid was approached by Pro Bono Counsel of the New York-based law firm Simpson Thacher & Bartlett LLP, about starting up a DC-based, signature pro bono project for their growing DC office. The firm ultimately decided to partner with Legal Aid, and since 2009, Legal Aid has been referring landlord tenant cases to them.
The partnership between Legal Aid and Simpson Thacher has been a great success. In 2012, Legal Aid recognized the extraordinary work of Jonathan Lin by awarding him the Klepper Prize for Volunteer Excellence. The firm’s exemplary pro bono commitment continues. Just a week ago Thursday, the Court of Appeals issued a great decision for a client that Legal Aid referred to Simpson Thacher in 2010.
Initially, Kisha Bridges’ case did not jump out as a special case destined to create good law. In April 2010, Ms. Bridges’ landlord sued to evict her, alleging both unpaid rent and a lease violation of damage to the property. Four attorneys at Simpson Thacher agreed to represent Ms. Bridges pro bono in her eviction case.
With oversight from partner Peter Thomas, associates Christopher R. Kelly, Conor Reidy, and Jonathan D. Porter moved on behalf of Ms. Bridges to dismiss the lease violation claim and succeeded. The associates went on to represent Ms. Bridges at her jury trial on the claim for nonpayment of rent. They lost the jury trial, and Ms. Bridges wanted to appeal the decision. Even though they were not obligated to do so, the Simpson Thacher team found Ms. Bridges’ case compelling and agreed to represent her in the appeal.
Meanwhile, the landlord filed a new eviction case alleging a lease violation. Chris, Conor, and Jonathan readily volunteered to represent Ms. Bridges in this new case as well. In December 2011, they won the jury trial for Ms. Bridges in her lease violation case with a jury verdict in her favor. Meanwhile, the appeal was pending in the nonpayment of rent case.
Late last month, the D.C. Court of Appeals issued its decision in Ms. Bridges’ appeal. The Court ruled in Ms. Bridges’ favor and created good law by clarifying the D.C. retaliation statute. This decision will not only benefit Ms. Bridges personally but also countless other District tenants now and in the future. Chris, Conor, and Jonathan provided Ms. Bridges with excellent direct representation, and meanwhile created greater protections generally for tenants in the District. Conor Reidy and Jonathan Porter from the Simpson Thacher team describe the case and the outcome in greater detail below. . . .
On January 24, 2013, the Firm’s Washington DC office succeeded in obtaining a reversal by the District of Columbia Court of Appeals of a judgment entered against a tenant in a nonpayment eviction action brought by her landlord. The tenant appealed the jury verdict against her on two grounds: (1) that she was improperly denied a jury instruction on the defense of retaliation and (2) that a third party affidavit previously submitted to the trial court by the landlord should not have been excluded as inadmissible hearsay. The Court of Appeals agreed on both counts and remanded the case to the trial court for further proceedings. Peter C. Thomas, Conor Reidy, and Jonathan D. Porter of Simpson Thacher & Bartlett LLP, who represented the tenant pro bono after a referral from Legal Aid, were on brief for the tenant as well as former Simpson Thacher associate Christopher R. Kelly, who argued the appeal.
The Court of Appeals reversed the trial court’s decision to deny the tenant a jury instruction on retaliation. By statute, landlords are prohibited from suing a tenant in retaliation for a tenant exercising her legal rights. The statute provides a rebuttable presumption of retaliation when a landlord brings suit to evict a tenant within six months after the tenant exercising her legal rights. At trial, the tenant testified that she submitted two written complaints of housing code violations—which are protected rights in the statute—in the six months before the landlord filed the suit for eviction. However, the trial court ruled that the tenant had abandoned or forfeited the retaliation defense since retaliation was not referred to in her opening statement and she provided no explicit or direct evidence of retaliation during trial. The Court of Appeals agreed with the tenant’s argument that since she asserted retaliation in her answer, amended answer, and the joint pretrial statement, she was not required to discuss the defense in her opening statement. Further, the two written complaints made within six months of the lawsuit permitted the jury to conclude that the retaliation presumption was triggered. Therefore, the tenant was entitled to a jury instruction on her defense of retaliation. The Court of Appeals also noted that requiring a tenant to provide explicit or direct evidence of a landlord’s retaliatory motive undermines the retaliation statute because the statutory presumption relieves the tenant of that burden.
Separately, the Court of Appeals ruled that the tenant should have been permitted to introduce a third party’s affidavit as an adoptive admission of the landlord in support of her counterclaims related to water damage in the house. In his pretrial motion to dismiss, the landlord submitted a workman’s affidavit declaring that the workman fixed a leak in the roof. At trial, the landlord testified that he never found a leak in the roof. The tenant attempted to introduce the workman’s affidavit into evidence to refute the landlord’s testimony, but the trial court ruled the affidavit was inadmissible hearsay. The Court of Appeals agreed with the tenant that the affidavit should have been admitted as an adoptive admission of the landlord because the landlord manifested his belief in the affidavit’s truth by submitting the affidavit to the trial court and offering to introduce the affidavit into evidence at trial if the entire motion to dismiss was admitted. Further, he could easily have assessed the veracity of the workman’s statement since the workman declared they fixed the roof leak together. The Court of Appeals also found that this error was not harmless since the case turned on the respective credibility of the landlord and tenant—particularly their testimony about the causes of water damage in the house—and, therefore, the tenant’s ability to argue to the jury that the landlord testified falsely would have undermined the landlord’s credibility in general.
The Court of Appeals remanded the case to the trial court for further proceedings.