JANUARY 30, 2024 – As I explained to a non-lawyer recently, my half dozen or so jury trials (and a couple dozen court (judge as trier of fact; no jury) trials and various evidentiary hearings in between) represented but a small fraction of my entire practice over 40-plus years. Yet it was those jury trials that produced the most intense and memorable war stories though by no means the only ones worth recounting[1].
My worst jury trial from the standpoint of raw stress was a week-long comedy act staged in Hennepin County District Court. A long-time developer-client of mine had been sued by another developer for “misrepresentation” in the course of a real estate transaction between the two characters. The other developer was a laconic gentleman, in his late 50s with plenty of gray hair, respectable sartorial tastes, well guarded flaws, and no overtly annoying traits. My guy, on the other hand, was . . .
To protect his identity I’ll call him “Walter.”
I’d worked with Walter for years. He was self-made, a savant, impulsive to an extreme, who was accustomed to barking orders condensed into a single sentence that directed polar opposite actions simultaneously. Periodically he’d call me in for a meeting to vent about some pending conflict with a broker, buyer, builder, seller, subcontractor and tell me face-to-face with spit flying, “I want you to sue that f__ing, lying, cheating bastard for everything he’s got and ever will have, but go easy on ‘im, ‘cause he’s actually a really good guy, but I want you to sue his ass as soon as you get back to your office but wait until I tell you to pull the trigger.”
After the first such order, I learned that Walter never really wanted me to pull the trigger. He was just blowing off steam, and I shouldn’t waste time thinking he was serious.
Everyone who worked with Walter was familiar with his impulsivity and managed to adjust—usually successfully but at the cost of unhealthful increases in blood pressure. He had many quirks. One was a high-volume voice—even when he was supposed to be whispering, as I learned the hard way in the courtroom.
Another eccentric mannerism was his regular deployment of the phrase, “Do the math!” even when math had absolutely no imaginable connection to the context. For example, you could be at lunch with Walter at his favorite sports bar, and if you asked him, “So, Walter, what are you getting?” he might well answer, “Do the math!” before saying something along the line of, “The triple burger with an extra load of fries.”
In his office were photos of his various recreational activities, all of which involved a machine with high horsepower—jet ski, power boat, snowmobile, motorcycle, for instance. Behind his desk was a photograph of his airplane—in flight.
One day in the fall of 2002, Walter called to ask me to join him on an inspection tour of a large tract of land he’d recently acquired for a new development. I met him at his office and switched to the passenger side of his gigantic pickup. When we reached the property just beyond the metro area, he peeled off the county road as if it were merely the fork in an eight-lane freeway: he paid no heed to the rough, off-road ground. Some site-grading and excavation had already commenced, giving the land the look of a battlefield with broken tree trunks and random shell holes.
As we bounced all over the inside of the cab, Walter became a talking super-computer. He recited how many lots he could squeeze into the development, taking into account streets, curbs, ponding areas, playgrounds, and other mandatory greenspace. He spat out a series of numbers—so many fractional acres for this; so many square feet for that; so many lots in “Phase I” and so many in “Phases II, III, and IV.” Over the growling engine he shouted a raft of itemized costs of infrastructure, then multiplied retail lot prices times the number of lots—by each phase of the development—subtracted his itemized development, acquisition, and carrying costs and BINGO! . . . stated his anticipated bottom line down to the last dollar.
No sooner had he finished his whiz-bang computation than we approached a sizable berm. We couldn’t see what lay beyond it—level ground or a large “shell hole.” As Walter gunned the truck, I shouted, “Walter! Do you know what’s on the other side?”
He turned his head toward me and as we went airborne said “No, but I guess we’re about to find out.” Then he let out a big laugh as if he were an oversized kid on the merry-go-round behind the school where he’d been held back a couple of grades. We landed hard just to the left of big shell hole on the other side.
On our return to his office, we got to talking about the recent plane crash that had killed Senator Paul Wellstone, his wife, a son and others.
“What a way to go,” said Walter.
“What’s your take on the cause of the crash?” I asked.
“Stuff goes wrong, gravity wins, you die,” Walter said, turning his big head my way as we passed a semi.
I waited until Walter had worked his truck back into the righthand lane. “Have you ever had a close call in your plane?” I asked.
“Pffff. All the time,” he said. “My girlfriend refuses to fly with me.”
“Smart woman,” I said.
“Yeah, she probably is . . . Hey, I should take you up for a spin some time.”
“Bad choice of words, Walter,” I said.
“What . . . Oh, spin? Yeah, ha! But I know how to get out of a spin, don’t worry.”
“Walter, no offense, but I’d rather not fly with you. Driving is crazy enough.” He laughed, and with my fingers still furtively crossed, I joined in.
In any event, a year or two later is when Walter got sued. He sent me the complaint and with angry profanity gave me his side of the story. I looked over the file he had on the matter, asked a bunch of questions, and pulled together a formal answer for his review. “Looks good to me,” he said, and off it went to be served and filed.
Soon I was deluged with discovery requests, which I counter-deluged. The lawyer on the other side was decent enough guy but exceptionally reserved. In temperament he was a good match for his client; a bad match for Walter, who put the lawyer through hell during Walter’s deposition.
The case dragged on and eventually wound up in non-binding arbitration, a compulsory ADR stop on the way to trial. It was in the arbitration hearing that Walter would put me through hell . . . before putting me through even greater hell during the actual trial. (Cont.)
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© 2024 by Eric Nilsson
[1]See Golf Law: What Goes around Comes Around (10/18-20/19 posts); and The“Open and Shut” Case (5/29/19 post) in conjunction with“Are you Familiar with the Poetry of Wallace Stevens?” (5/31 – 6/2/19 posts).
