Monday, August 15, 2005
Report from the trial court trenches
When I was a pup, new to the practice of law as an associate at Houston's Baker Botts, among the many superb trial lawyers I tried to learn from was Walter E. Workman. Way back in 1982, Walter sat an incredibly light (i.e., incredibly patient and forbearing) second-chair for me on my first-ever state district court first-chair jury trial. And I learned more about our shared profession from his comments during the gaps in that trial than I've probably learned in any five other trials put together.
I remember one of Walter's comments that came after I'd expressed my frustration in front of the jury when a series of my objections had been overruled. I'd been fidgeting, playing with a rubber band and a paper-clip while I was listening to my opposing counsel (very effectively) cross-examine my company representative. And to my horror, just as I was sitting back down after the judge had overruled my fourth or fifth (absolutely valid!) objection, the paper-clip accidentally slipped out of my clammy fingers and, propelled by the rubber band, shot across the room — loudly TWACKing the hollow wooden front of the judge's bench.
"And I object to Mr. Dyer shooting his paper-clip across the room when he loses his objections!" thundered my opponent.
"Sustained!" thundered back the judge, glaring at me. Whereupon I pouted, conspicuously, for at least the next ten minutes (but with my hands clenched, empty, under the table).
So that same night, over a couple of beers (one a bit tear-diluted), the following conversation ensued: "Bill," Walter E. Workman (Senior Partner at Baker Botts and a Fellow in the American College of Trial Lawyers) calmly asked me, "what do you think the jury thought about that little tantrum this afternoon, when you shot the paper-clip?"
"I dunno," I said sullenly, still angry at the judge, and angry at Walter for not being angry along with me.
"Well," said Workman gently, "there's exactly three possibilities. The jurors who're already in your camp, if there are any, figure that you didn't mean to shoot that paper-clip, so they're feelin' sorry for you and mad with you at that mean old judge. But they're already in your camp, so that's no help to our side."
Workman paused to take a controlled sip of his own beer. "But the ones who are already against you," he continued, "however many they may be, now have their proof that you're a little snot who badly needs a whippin', and they'll be lookin' forward to givin' it to you."
Another sip, and then he dropped his jaw and locked my eye. "And then there's the ones who're on the fence. They're the ones who count most; they'll decide this case in the end. So tell me, Bill — do you think your tantrum helped persuade them? If so, which way did it tilt 'em?"
Yet another slow sip from his beer. "Brother Dyer," he softly concluded, "can our client really afford another tantrum like that from you?" Workman assumed a broad grin that brooked no answer out loud, and then he finished that beer. Thus endeth the lesson.
At this point, I vividly recalled an old Navajo phrase I'd learned as a Boy Scout in the Order of the Arrow: "Oooh-whadd ... tan-naaah ... sigh-aahm!"
The only way I can ever hope to repay the kind of debt I owe to old hands like Walter Workman is by my sharing their lore with younger lawyers I encounter. So some of the war stories I tell now are ones originally told to me by Walter, and some of them are stories I've been told by others about Walter, and a few (like the one I've just told) are stories that I've lived with Walter and amazing trial lawyers like him. Telling all those stories is one reason I write this blog.
Another such story that I've heard from multiple sources — all purporting to have been eye-witnesses, or to have gotten it from someone who was, of course! — is about the time Walter was soundly whipped in the mid-1960s while defending a worker's comp case in Angleton, some miles south of Houston down in Brazoria County.
Apparently, for whatever reasons and despite Walter's best efforts, this particular jury just hated Walter and his client — and they showed it by answering every single question they were asked against Walter's client just as forcefully as the judge's instructions permitted. The judge was reading aloud their entire verdict, and each successive answer from the jury was just like another punch landing squarely on Walter and his client — uppercut to the jaw, jab to the nose, jab to the nose, roundhouse to the temple, bam-bam-bam, they're down for the count!
When the distinguished trial judge had finished transmitting this methodical thrashing from the jury, he looked up from the verdict form and solemnly asked the lawyers present for both sides the ritual question: "Do I hear any motions?" The judge and everyone else was expecting the plaintiff's lawyer to give the ritual answer appropriate to the big win he'd just been handed — something to the effect of, "I move that the jury's verdict be duly received by the Court and filed among the papers in this cause."
But before the plaintiff's lawyer could speak, Workman bounded to his feet. "Yes, Judge, I do have a motion!" The judge was startled; the plaintiff's lawyer froze in his seat, stunned. "You have a motion, Mr. Workman?" the judge asked incredulously — perhaps figuring that Workman was already planning his motion for new trial or some other clever if premature set-up for an appeal.
"Yes, Your Honor!" said Walter Workman earnestly, "I respectfully move the Court to grant me and my client a fifteen minute head-start toward the county line before you discharge this dad-gummed jury!"
I believe that to be a true story, but if it's not, it oughta be. Conventional (and largely valid) wisdom among trial lawyers, from any side of the bar, criminal or civil, is that if you're not losing any cases, you're settling (or pleading out) way too many. And another bit of conventional (and largely valid) wisdom among trial lawyers is that real trial lawyers' real measure of success isn't how many cases they've won or lost, but how many cases they've lost that they shoulda won, and how many they've won that they shoulda lost.
That's conventional wisdom that's intended to be a comfort when you've just gotten your butt kicked and needed a fifteen-minute head start out of town before the jury was discharged, and it was about the only comfort I did have after the results of my most recent jury trial, which was in a rural county somewhere north of Houston.
Oh, I guess there were a few other comforts. I think I did my best, or pretty close to it, as did my colleagues on the case. We had a good judge, and very worthy opponents. We basically had no choice but to try the case — there'd been no settlement offers at all — and we and our clients knew going in that, given the dance of the pretrial testimony from expert witnesses, our case had some bald spots that needed something of a comb-over to look presentable. Some of the courthouse regulars who'd watched the trial privately professed surprise at the result and had nice things to say. (Which is peachy, but won't buy a dab of coffee at the very fine and friendly local cafe across the street from the county courthouse — "Y'all come back now, y'hear?") And while this particular result was a disappointment, it doesn't shake my confidence in either myself or in the jury system; the good folks on this particular jury weren't buyin' what my team and I were sellin', but they were doin' their best to follow their oaths, and I do genuinely respect and appreciate that. The fact remains that we got whipped, and that's the bottom bottom-line.
I can't go into more details about the particulars of the case at this point for a variety of reasons, some legal and tactical, some simply having to do with taste and decency. But I'll tell you just how lopsided this particular loss was: The bailiff hadn't even gotten the exhibits sorted to send back to the jury room before they had a 12/0 verdict against us! They took all of thirteen minutes — less time than it usually takes for most juries to re-read the court's charge aloud and select their "presiding juror" (f/k/a "foreman" or "foreperson").
In fact, as fast as these folks were, I genuinely don't believe a fifteen-minute head start toward the county line would've been nearly long enough. But I think had I had the presence of mind to make the "Workman Motion," it certainly would have been granted. "Fly like the wind, Mr. Dyer! You'd better!" I believe the trial judge woulda said.
Oh well. Onward and upward.
Other weblog posts, if any, whose authors have linked to Report from the trial court trenches and sent a trackback ping are listed here:
» War Stories from janewoodworth's JournURL weblog
Tracked on Aug 16, 2005 9:47:26 AM
» Catching my eye: morning A through Z from The Glittering Eye
Tracked on Aug 16, 2005 10:02:45 AM
(1) Mark L made the following comment | Aug 16, 2005 7:29:02 AM | Permalink
Was the trial in Anderson County by any chance?
I sat juror in two civil trials there (mainly because I did not work for either the state prisons or the railroad -- which generated 75% of the cases between them) despite being an engineer.
If you want some tips on how to handle those juries, e-mail me. (I am giving my spam-trap address, but I check it regularly.) I think I can give you the country boy outlook.
Oh well. Off to jury duty -- again, but for the first time since moving back to the Houston area -- this time in Galveston.
Nope, was elsewhere. And we weren't "home-towned," that wasn't among our problems in this particular case.
Judging by your oblique description, seems to me that the other side won the case, rather than you losing it.
Does that make any sense given the context to which we aren't totally privy?
Great comment, Cerdip, it's prompted me to write a whole nuther post in reply! Thanks!
And we'll read that blawg post, won't we class.
Thanks for this post, Beldar, as Evan says it takes a Lot of Lawyer to Admit When He Was Whupped (although he uses purtier language).
(6) Carl Pham made the following comment | Aug 18, 2005 5:48:00 PM | Permalink
A 12-0 decision in 15 minutes is so overwhelming it sounds like the bare facts of the case meant you just didn't have a chance. Is it really possible that with the very same facts and St. Augustine himself as head lawyer you could have turned 6 jurors?
I figure you probably get more upset at the squeakers, where a narrow majority of jurors turns against you after hours and hours of deliberation. In such cirx you can ask yourself whether this or that small straw broke the camel's back. But when the camel has had a 16-ton weight dropped on him, even a bale or two of straw more or less won't matter.
(7) Claire made the following comment | Aug 22, 2005 10:55:43 AM | Permalink
So what you're saying is, a trial verdict depends as much on the skill, personality, style, and behavior of the lawyers as it does on the facts of the case. Both sides deliberately try to select jurors who will be on their side, which leads to dismissals of educated and intelligent people and selection of those who make decisions emotionally and based on personalities but without regard to facts.
Somehow, that does not inspire me to consider our system 'justice'.
When the skills and egos of the lawyers are more important than the facts, and 'winning' and 'losing' is a power game disconected from the merits of the case, then I say that this is not 'justice', but rather 'gamesmanship'.
It's no wonder lawyers don't get any respect. I'm not sure it's deserved.
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