JANUARY 28, 2024 – (Cont.) Seasoned jury trial lawyers will tell you that to prepare your case for the crucible of trial, you need to work backwards, starting with jury instructions. These are proposed and negotiated between counsel and the judge, then finalized and presented by the judge to the jury after closing arguments and prior to jury deliberations. Jury instructions are statements of law that provide the framework within which the jury is to evaluate the evidence.
Again, working backwards in your trial preparation, after preparing proposed jury instructions, you construct your closing argument supported by the evidence you expect to marshal. Your preparation then turns to that evidence—witness testimony, exhibits, and so on—to support your closing argument. Finally, you prepare your opening statement based on the evidence you plan to show the jury. In the news you often hear reporters mischaracterize a lawyer’s opening as an “opening argument.” It’s not. Technically, it’s a preview of the evidence you expect to be admitted at trial. An good opening statement phrases such as, “As you will see and hear . . .” or “As I will show you . . .”
The challenge in many business cases is that they turn—often slowly—on a mountain of documents. Strike that. Lots of boxes of documents—physical, back in the day; digital in today’s world. In addition, piles of paper can be horrendously complicated and a challenge for a jury to follow without paying very attention. In my last trial I worked for days distilling the bank’s loan files down to a presentable volume. My opponent did the opposite: his objective was to suffocate the jury with exhibits—and argue that the sheer poundage of fine print together with a mish-mash of testimony would prove “unfair” and “unjust” behavior by the bank. With great commotion, he and his assistant wheeled in a cartload of storage boxes conspicuously labeled, “BANK DOCUMENTS.”
The lawyer’s aim with the labeling, I concluded, was to win the jury’s sympathy; to send the message, “My client—a poor little guy—was pummeled by the big bad bank,” Except . . . the poor little guy wasn’t so little and had borrowed not-so-little sums of money, and the local sheriff with the name “Mansavage” was afraid of him. Oh yeah, and the poor little guy had guns.
In preparing my opening statement, I’d worked feverishly on reducing my entire case to the absolute conceptual minimum. I’d aimed not for the proverbial “elevator speech” but for the “stop sign summary.” My challenge was to take those 42 promissory notes, umpteen mortgages, numberless guaranties, and reams of ancillary paperwork and explain them all on a level anyone could comprehend. In addition, I had to convince anyone that whatever the other side offered in defense was nothing but inedible cotton candy.
Once I’d consolidated concepts and figured out how to compress a description of all my evidence down to a few sentences, I wrote them down and memorized them—an easy task, given their brevity. I then rehearsed my presentation—repeatedly. To this day I remember well my words and gestures:
“Ladies and gentlemen, as you know by now, my name is Eric . . . Eric Nilsson . . . and with my colleague sitting over there [I pointed to my old boss and uttered his name], I represent the friendly community bank, [Town Square Bank (not its real name)]. The most important thing you’ll see from start to finish is how simple this case really is when all is said and done, despite the vast piles of evidence you’ll see and hear. In fact, this case is so simple that your elementary school age kids and grandkids would be able to understand it. How can that be? Well, it’s . . . really simple. Boiled down to its essentials, this case is about four words . . . and three numbers. That’s right—four simple words and three numbers.
“Okay . . . first the four words.”
Taking a small step toward the jury box, I raised my hands in front of me, and using the index of my right hand, I struck in sequence four fingers on my left hand, each corresponding to a word, as in, “I . . . promise . . . to . . . pay. Four simple words that we all understand and the four words at beginning of every promissory note signed by the defendant—all of which I will show you in this trial. Those are the most important words of this entire case, and the bottom line here is that they’re really the only four words that matter.”
I then took a couple of steps to the side, hesitated, tugged my beard, and stepped back to the center. “Now, as to the three numbers . . . The first number is five million.” With “million,” I opened my stance and spread my arms out as far as they’d reach. “That’s the amount that the bank gave to the defendant in the form of loans over a period of years . . .”
Dropping my arms, I then said, “That brings us to the second number.” With that, I pressed my feet together and my arms straight against my sides, trying to look as skinny as possible. “The second number . . .” I continued, as I pursed my lips and held out my hands in front of me, palms facing about three inches apart, “. . . is seven hundred thousand. That’s the amount of the only money the defendant has paid back . . .”
Letting that figure sink in for a few seconds, I then widened my “thin” stance. “That leaves four point three million dollars,” I said, chopping the air in front of me with my hands a yard apart, “. . . which is what the defendant still owes the bank. That third number—four point three million dollars . . . plus interest . . . is still covered by those four simple words, ‘I. promise. to. pay,’ just as the first number of five million and the second number of seven hundred thousand were covered by the defendant’s promise.”
I waited a few beats before continuing. “As I said, ladies and gentlemen, that’s what this case is really all about—four words, three numbers . . . But for the next few days, the defendant’s lawyer over there,” I said, turning briefly to nod in his direction, is going to try to pull rabbits out of all those boxes surrounding his table, and use them to try to explain to us why his client shouldn’t have to honor those four simple words, ‘I. promise. to. pay.’ . . . Thank you.”
After a brief pause but long enough to establish eye contact with all the jurors, I turned and walked back to my table.
As I approached, I obscured the jury’s view of my old curmudgeon boss. Looking straight at me, he mouthed the words, “Good job.” In that instant I recalled an unsettling incident years before back at our old firm.
His corner office was right next to mine on one side and adjacent to the office of another associate on the other side. I was walking down the corridor to my office just as my fellow associate was following our boss into the latter’s office. The door closed—hard—behind them. Moments later I heard the two lawyers going at it—shouting, cursing. Then came a devastating line louder than all the rest; one I’ll never forget. Our boss screamed, “You’re not a good lawyer, and you’ll never be a good lawyer.”
I figured the associate must’ve screwed up something awful. I was on good terms with both lawyers, but in that moment I cringed in empathy for the associate. He was good guy but a bit on the brash side and had never gotten along with our curmudgeon boss, who was likewise abrasive. I remember thinking how lucky I’d been to that point—I’d never yet been chewed out—but then worrying that someday I’d slip up and be forever scarred by our boss’s verbal branding iron. For the rest of that day I was beset by self-doubt: “When was I going to ‘arrive’? When would I feel like a complete lawyer, free of the risk of scorching criticism after screwing something up miserably?”
Returning my focus to the courtroom of my last trial, I joined my old boss at our table. I thought of his “good job” juxtaposed to his merciless invective 20 years earlier and settled back to hear our opponent’s opening statement. (Cont.)
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© 2024 by Eric Nilsson
