FEBRUARY 2, 2024 – (Cont.) I liked the jury pool. I was looking for alert, practical people whose mouth corners at rest were turned up—a sign of folks less severe and buttoned down. The plaintiff and his lawyer were of the opposite ilk: rigid and serious. Walter was anything but rigid. He could get out of sorts, but he could also be quite likeable. He had an outgoing personality, and though he could be a royal pain in the butt, he was never disingenuous and never, ever boring. He’d lose at poker.
My half of the voir dire (jury selection) was conversational. I rather enjoyed my exchanges with the prospective jurors, who were alive and alert. I remember thinking I knew who the likely foreperson would be: a bright young woman who sat in the middle of the front row.
She was a graduate of Drake University, articulate, intelligent, a school teacher, and the daughter of a locally prominent criminal defense lawyer. I was confident that when the evidence was in, she’d be in our corner, and would no doubt lead other jurors there too. She survived two rounds of pre-emptive strikes by the plaintiff’s counsel. Unfortunately, one day halfway through the trial she was absent. The judge explained that this star juror had called in sick. She’d be replaced by an alternate.
This was a setback, but by the time it occurred I’d been dealing with quite a different—and more serious problem: Walter.
The first day and a half of trial he’d behaved himself. I reminded myself of this when things went south on the third day. I clung to the hope that the initial impression he’d made—presumably positive—would outweigh his not so positive behavior over the rest of the trial.
Walter decided to go rogue soon after opposing counsel commenced his direct examination of his client.
“Liar. He’s lying,” Walter said, leaning into my ear and whispering. Except he wasn’t whispering. He was talking. Out loud.
I put my finger to my lips as inconspicuously as I could.
Walter didn’t take the hint—and kept on talking into my ear, and I kept on trying to silence him. As things progressed, however, Walter’s volume increased—along with the frequency of profanities.
My head was ready to explode. At the same time I had to listen to opposing counsel’s direct exam questions for making objections and my cross-examination of the witness (the plaintiff himself)—a normal challenge in any jury trial—I had to worry how the judge and jury were reacting to Walter’s antics and the further distraction of my trying to suppress them.
When Walter dispensed with the pretense of whispering altogether, the judge gave me welcome cover. “Could I have a word with the lawyers,” he said. It was a command, not a question. When we reached the bench, the judge leaned forward. For the jury’s consumption, he moved his gaze back and forth between us, as if he were addressing both of us. His words, however, were directed solely at me.
“Your client’s disruptive behavior, Mr. Nilsson has got to stop. If it doesn’t I’ll hold him in contempt and the jury can draw the conclusions it will.”
“Your honor, we’re of like minds. Would you be open to calling a recess to give me a chance to put the hammer down?”
Moments later I was reading Walter the riot act—in the corridor outside the courtroom before anyone else from inside had wandered out.
“But G__________ [plaintiff] is up there lying his face off!”
“Walter!” I said. “I can deal with his testimony on cross-examination, but I can’t focus, I can’t concentrate, hell, I can’t even listen to his testimony when you’re talking right into my ear. If you’ve got something you have to tell me, write it down. You’ve got to stop talking in there. The judge and the jury are going to crucify you if you don’t straighten up.”
At that moment the jurors emerged from the courtroom and walked right past us.
“I don’t care about those jurors,” said Walter. “They’re a bunch of idiots.”
“Wltr! Shhhh,” I said, doing an impression of a ventriloquist. “Thse jrrs will decde yr cse.”
I didn’t know and couldn’t tell if any jurors had heard Walter’s offensive description of them, but for the rest of the trial, it weighed heavily on my thoughts. A few minutes later after the jurors had cleared the hallway, I lit into Walter again. “Okay, Walter, the show is about to resume, and I don’t want to hear a peep out of you, you got that? I’ll give you a legal pad and a pen, but no talking or you’re going to have a big sign pinned on you that says, loser, you got that?”
“Got it.”
Less than five minutes into resumption of plaintiff’s direct testimony, I was regretting the decision to give Walter a pen and pad. He was scribbling madly down one sheet and up the nextr. I leaned toward him and pulled the pen slowly from his hand. I then slid the legal pad toward me, pulled the top sheet over quietly and wrote nonchalantly on the next page, STOP! To enforce the law I’d laid down, I decided to keep the pen.
The rest of the trial went our way. With frequent reminders, I kept Walter under enough control to prevent a contempt order. It was exhausting work.
On cross-examination, Walter gave me—and me alone—some unexpected amusement. Opposing counsel’s questions served no obvious purpose or direction. For the most part, Walter was following my mantra during preparations: On cross-examination, don’t volunteer information; make the cross-examining lawyer work for it; answer yes, no, or I don’t know. But then came the question, “You gave my client a copy of the old environmental report, correct?”
“Do the math,” said Walter, using his favorite go-to phrase that never meant anything. I started to laugh out loud but caught myself soon enough to disguise it as a combination cough/clearing of my throat. Opposing counsel had no idea what Walter meant by “Do the math,” and made the mistake of trying to find out. By the time it was established that Walter hadn’t meant anything by it, the jury was off in la-la-land.
Even before the close of evidence I was quite sure the jury was on our side, but to be safe, on the evening before closing arguments were scheduled, I rehearsed long and hard.
About halfway into the delivery of my actual closing argument, however, I was afraid one of the jurors in the front row was fighting sleep. He’d dozed sporadically, I’d noticed, for most of opposing counsel’s monotonic closing argument, which had preceded mine. Now the sleepy juror was again in real danger of wandering off the rails of consciousness. I tried to adjust my deliver to wake him up and keep him engaged. I modulated my voice more; annunciated more clearly; moved about in front of the jury box. But nothing seemed to be working.
Just then an idea occurred: insert a “furthermore” in my spiel and infuse it with emphasis. It would give me a perfect chance to startle the guy just as a deer jumping out in front of a car late at night causes a shot of adrenalin to wake a drowsy driver.
“And furthermore,” I said with great emphasis, as I simultaneously stepped forward and slapped my foot on the floor. The juror jumped. He was wide awake for the rest of my closing argument.
We went on to win, after only an hour of deliberation by the jury. I was proud of Walter for hanging in there—under control. To this day I can’t be sure meds of some sort weren’t involved. Walter was ebullient. As we left the courthouse, he told me to prepare my invoice for the trial and trial preparation. “You earned your fees,” he said. “If you want to drop by my office tomorrow, I’ll give you a check.” The usually parsimonious Walter couldn’t have given me a bigger compliment.
As always, he was good to his word.
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© 2024 by Eric Nilsson
