FEBRUARY 1, 2024 – (Cont.) After numerous attempts, I finally nailed down a block of time when I could begin prepping Walter for his trial testimony—my direct examination and opposing counsel’s likely cross-examination.
Upon emerging from his office, Walter ushered me into a small conference room. Walter began pacing as I dumped a load of files onto the table and drew a legal pad out of my briefcase.
“When’s the last time you were in a bar room brawl?” he asked, stopping abruptly.
“A trial I had representing Hazeltine National Golf Course,” I said, assuming his question was figurative.
“No, no, no,” he said, waving his finger at me. “I mean a real bar room brawl.”
“You mean an actual fight in an actual bar where drinks are served?” I asked.
“Yeah. You know, a fight at a bar. When’s the last time you were in that kind of fight?”
“Uh, Walter, this might surprise you, but I’ve never been in such a fight. And truth be told, since college I haven’t been in that many bars, at least of the sort where fights typically break out. When’s the last time you were in a bar room fight?”
“Mmm, ’bout month ago.”
“You’re not kidding, are you?”
“Nope. I decked a guy who gave me lip. We both got kicked out.”
“Walter, let me explain something to you. This trial that we’re preparing for is going to take place in a courtroom. When’s the last time you’ve been involved in a courtroom brawl?”
Walter didn’t answer.
“Walter,” I said. “You have nothing to worry about. I’m going to be laser focused. With your active participation, Walter, we’re going to out-prepare and out-power the other side. We’re going to throw nothing but fastballs and curveballs. We’ve got the winning side of the case, Walter, and we’ve just got to drive that home to the jury. Are you with me?”
“I’m with you,” he said.
Walter took a seat, and I managed to cover a fair amount of ground, despite regular interruptions from outside the conference room—his assistant and the various “walk-in” characters that I’d become used to on previous meetings at Walter’s office.
The thrust of the plaintiff’s case was that Walter had withheld information about and thus “misrepresented” subsurface soil conditions on the property he’d sold to the plaintiff; discarded asphalt shingles that had been dumped on the parcel long before Walter had acquired it. In an era before people worried about the environment, some genius had used shingles to “pave” a driveway and parking area. The shingles got mixed into the soil to firm it up. The plaintiff had had ample opportunity to inspect the property before closing but had chosen not to; instead, he relied on an old environmental assessment report furnished by Walter—which report recommended explicitly that because the assessment had not involved any subsurface investigation and the site had once been a lumberyard, such an investigation should be undertaken. The estimated cost of cleaning up the shingles—now considered an environmental hazard—was several hundred thousand dollars.
Our defense turned on the fact that the plaintiff was a sophisticated developer and should’ve known to undertake a thorough environmental assessment of property he was buying explicitly “as is.” Moreover, the environmental report that Walter had given him explicitly identified the past use of the property and specifically recommended a subsurface inspection.
Walter’s instincts about the case were good. He had the facts down straight and consistently. I was confident I could get him to tell his side of the story clearly and convincingly—provided he was having a good day. My job was to keep him focused and make sure he behaved himself in the courtroom.
After a week of 12-hour days and intense preparation, I was ready for showtime. I told Walter to wear a modest sport coat I’d seen him wear, a light blue dress shirt and “calm” tie; no cowboy boots or fancy shoes; hair under control—and to meet me at my office no later than a half hour before the court’s opening gavel. We’d then walk together to the Hennepin County Government Center two blocks away . . . to pick a jury. (Cont.)
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© 2024 by Eric Nilsson
