JANUARY 27, 2024 – It’s safe to say that if I live to be 100 and practice law till I’m told I shouldn’t, I won’t see another day of head-to-head combat in front of a jury. I’m too well entrenched in my future—writing about my past. Besides, I never considered myself a trial lawyer despite a half dozen or so notable “wartime” exceptions. The first was the unlikely trial I described in Chapter Two. The last of my jury trials was notched into my belt in the aftermath of the Great Recession. The case was a doozy, and in the most direct way possible I was recently reminded of it—Fraser firs, tobacco breath, and all.
Ironically, the case rounded the full circle of my legal career, with touchpoints at each of the various “shingles” under which I’ve practiced—the firm where I started, the bank where I staged the second installment of my C.V., the next corporate firm to which I was then recruited, then the second bank of my vocational journey, and finally, to my own law firm.
It all began when one of my contacts at a community bank for which I’d handled a number of real estate financings and workouts summoned me to a meeting with senior management. The encounter forced me to pull out an old but still serviceable 20-game winner suit from my semi-retired wardrobe “pitching staff,” which harkened back to the Pre-Casual Sartorial Era.
The bank had a major problem loan that required some outside legal attention. Actually, it was multiple problem loans to a single borrower. Over time the debtor had been given a very long leash—so long he (and his enterprise) had gone rogue and rabid. The bank’s suit-wearing senior management team needed a junkyard dog to chase down the beast. Was I mean enough? Were my fangs sharp enough?
The circumstances described to me were so over-the-top, I was downright fascinated and eager to plunge into the challenge. I convinced my audience that despite my solo shingle, as it were, I was the lawyer for the job; that I had the experience, the know-how, and most of all, the moxy for the mission; that despite my solo practice sloop, I could easily associate with proven “destroyers” and mount an offensive just as effective as the Royal Navies in town but for a fraction of the cost.
“Besides,” I said, “even though you should do all you can to avoid a trial in a case like this, if it does go to trial up there in the boonies, you’re far more likely to curry favor with the jury if you’re represented by a guy with a Swedish name from a solo office than you are with a bevy of lawyers from a Goliath silk-stocking firm.”
I was in. For the promised backup I brought in my old boss at my second big business law firm; a certifiable curmudgeon who took no prisoners; the same lawyer who’d recruited me to his department 20 years before and who’d since left the firm to join the largest firm in the region, and after that, gone out on his own. He could be mean, and he had fangs. As things turned out, however, while I worked on the attack, he served mainly as guard dog, chewing on an old steak bone and growling on cue to keep our adversary off balance.
That adversary was himself a solo practitioner. From a substantive legal standpoint, he was wholly out of his element—consumer advocacy. The case at hand involved a wild jumble of commercial loans to a commercial tree farmer secured by a crazy patchwork of real estate located in the back country north of the Twin Cities. If the lawyer had any advantage over me, it was that he pretty much lived in courtrooms—all over the country. For the most part, he’d made his way suing banks and big corporations on behalf of “the little guy,” goading the behemoths with spitballs, and collecting a percentage of the coinage he’d manage to shake loose.
He was actually an interesting character with extensive travel and side-business experience in Russia, of all places. By way of my own on-the-ground exposure to Russia, I established an early rapport with the man to get a better sense of the methods to his madness.
It would be my biggest, as well as my longest, jury trial. If my first trial more than three decades before had been against a lawyer with banking law expertise, opposing counsel in my last trial represented the utter lack of expertise. Early on, I experienced the danger he posed—especially when combined with the assigned judge, who was as unfamiliar with the applicable law as was the lawyer.
Ignorance and chutzpah are a challenging combination. At every step in the case, Mr. Spitball used a spray gun to keep our side jumping. The case involved no fewer than 42 standard form (fine print) promissory notes—sloppy documentation for continual loan renewals, which, for the most part, “rolled” or capitalized unpaid, accrued interest over a period of years. The total claim had ballooned into millions. Spitball, Esq. made giddy sport of shooting randomly at all the fine print until he’d figuratively shredded the documents. Pushing back against his shotgun tactics was a constant challenge best summarized by, “Where do I start?!”
The lawyer’s spitballs got under my client’s institutional skin. The poor bankers were mystified, angry, and frustrated with the constant barrage. They thought the lawyer should be disbarred. The indecisive judge was charmed by the lawyer and too out of his element to distinguish B.S. from baseline substance. I prevailed on a motion for the appointment of a receiver pending the outcome of the case, but otherwise, the matter was destined to be tried in front of a jury.
The other side’s strategy was clear: take advantage of a huge stack of “fine print” documents, throw them up in the air in front of the jury and let the paper descend like confetti upon the lawyer’s parade of lame assertions, such as his guy being such a bad risk, the bank should’ve known at the time the loans were made they wouldn’t be repaid. It was a classic “lender liability” case, replete with legal defense tactics popularized in previous economic downturns.
Given what little else the lawyer had to work with—except a judge bending over backward in a show of impartiality—the Hail Mary strategy posed a very real threat. Moreover, the remedy I sought for the bank was an order to foreclose a stack of mortgages on the debtor’s sprawling tree farm—located in the poorest county in Minnesota.
This demographic fact alone posed a major challenge. The Great Recession was still in session, putting my bank client at a distinct disadvantage from the very outset of the jury trial. On voir dire I’d asked the judge to pose a number of general questions to the group. When he asked, “Have you or has anyone in your family been through foreclosure?” every single hand went up. I wasn’t surprised, nor was I sanguine.
We’d tried several times to settle the case before trial[1]. Some weeks after a failed mediation session, the opposing lawyer called me to suggest a site visit and meeting at his client’s operations. That effort failed as well. A couple of weeks later, the lawyer called again about a follow-up on-site meeting. He said his client had a proposal that entailed giving up a portion of his land as part of a global settlement.
I was surprised, because on the first visit his client had strutted about like a bellicose rooster in his own barnyard. A big-framed rustic, the tree-farmer made a point of showing us his office gun rack, forcefully exhaling his tobacco breath in all-too close proximity to us, and popping the clutch on his souped-up four-wheeler to throw sand in our faces. And now suddenly he’d come to Jesus and conciliation?
My client wanted to be done with the matter and agreed to the meeting. I was wary. I’d taken measure of the debtor in his deposition and during mediation and most pointedly, during our prior site visit. I recalled the well-publicized incident during the farm crisis of the 1980s when a banker and his lawyer were ambushed by a shot-gun-wielding farmer on whom the bank was foreclosing. It did not end well for banker or lawyer.
In an abundance of caution, I called the local sheriff’s office. I’ll never forget the sheriff’s name: on my previous trip to the tree farm, I’d encountered signs between the freeway and the farm that read, “Re-elect SHERIFF MANSAVAGE.” The dispatcher transferred my call to a deputy.
I explained my concerns and asked if the sheriff’s office could post a couple of deputies close to the farm—“just in case”—during the proposed time of our second site visit.
“What’s the name of the guy you’re concerned about?” the deputy asked.
When I told him he said, “Oh-h-h. We know all about him. I can tell you, we’re not going anywhere close to his place. If you run into trouble, just call us. Then we’ll send someone out.”
“Nice in theory,” I said, “but I know from having been out there two weeks ago, I couldn’t get cell coverage within a couple miles of the place.”
“Huh,” the deputy grunted in semi-acknowledgment, but he was otherwise unhelpful. I silently scoffed at his boss’s name.
I wasn’t taking any chances. The second on-site meeting didn’t happen—nor did the re-election bid of Sheriff Mansavage.
Two months later I stood in front of a jury inside the local courthouse. (Cont.)
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© 2024 by Eric Nilsson
[1] In any event, under the Rules of Procedure in Minnesota, litigants are required to take a swing at formal “ADR” (alternative dispute resolution, such as mediation or arbitration) before a civil case can be tried.
