JANUARY 26, 2024 – Something I learned early during my year-long rotation in the firm’s litigation department was that full-bore jury trials were a rarity among the high-powered lawyers who surrounded me. For the most part the department’s clients were business concerns, and successful businesses are about principal (and interest), not principle. This isn’t to say that business owners and managers lack principle. Most conduct themselves with an ample supply of it, but as a practical matter, business litigation is hugely expensive, and trials prohibitively so. From a purely cost-benefit standpoint, money nearly always trumps pursuit of principle, and in the vast number of business lawsuits, money dictates settlement before trial.
Furthermore, at some time or another, most businesses of consequence are beset by a dispute of some kind—with a competitor, a supplier, a customer, or an employee. As a result many businesses have had multiple brushes with litigation and litigators. The legal system is familiar territory. Business litigants know that if a case goes to trial, someone has made a gross miscalculation. The hallmark of business is certainty, but uncertainty is the hallmark of trials, and for that reason too, good business people strive to avoid them.
Individuals are a different breed of litigation client. Most have never sued or been sued. Incensed by a “lying, cheating reprobate” in a boundary dispute or home remodeling project gone awry, the individual client often seeks vengeance in the guise of “justice.” Of course there are the realms of traffic infractions, marital dissolutions and custody battles, personal injuries, and accusations of criminal behavior, but such matters are usually the purview of smaller specialty firms.
Rarely did such “specialty” cases cross the threshold of “my” law firm, which focused on corporate/business matters. Exceptions existed, of course—the business owner or manager who got mixed up with some personal financial dispute or neighbors who’d planted a row of mature spruce trees on the “wrong side” of the boundary of a business client’s home turf.
One such exception found its way to my desk several months into my year-long rotation in the litigation department. A partner in the transactional commercial department came down to my office one day with a bizarre personal case involving one of his business clients. The client was a boat—big boat—enthusiast, who’d owned an expensive motor yacht on Lake Minnetonka, the crown jewel of recreational waters in the Greater Twin Cities. Deciding to upgrade, the skipper-client sold his old boat and purchased a new vessel through the same broker-dealer. All went swimmingly until said broker-dealer proved himself to be a fraudster. Upon sniffing the air of wrong-doing, the bank that had issued a cashier’s check to our client on the fraudster’s account (in payment to our client) swung into action, er, slammed on the brakes: it stopped payment on the cashier’s check, leaving our guy high and dry.
As is so often the case with unadulterated fraud, the perpetrator had victimized multiple parties. Meaningful recovery against him was unlikely, but we had a perfect alternative target—at least in financial liquidity: the bank.
The partner from the commercial department believed that a bank couldn’t legally stop payment on its own cashier’s check. “The whole banking system would implode,” he said, “if cashier’s checks could no longer be treated as cash.” I saw his point, but in contrast to many other avenues of life, when it comes to the law, a strong hunch or firm belief has to be backed up by binding legal authority—statutory, regulatory, or case law. I therefore had to conduct legal research to nail down such authoritative support for what seemed like a rational conclusion. It took some stitchwork on my part. With my legal memo in hand, however, the partner relayed a positive assessment to the client. Not surprisingly, the client wanted to sue the bank, but surprisingly, the partner asked me, not a more experienced litigator, to do the suing. I guessed that my lower billing rate had something to do with his decision.
It was my first actual lawsuit wherein I was captain of the ship, but I was surrounded by a deep reservoir of advice and expertise, from which I liberally drew. The partners and senior associates of the department were always ready and willing to field questions and guide me away from shoals and whirlpools.
It wasn’t long, however, before I encountered troubled waters. My opponent was a well-established banking lawyer at a large firm over in the Big Smoke—Minneapolis. He was perfectly civil and respectful toward me, but I felt intimidated by his superior pertinent knowledge and experience. He challenged my research but obliquely. With encouragement from my mentors, I moved for summary judgment against the bank. I did so with trepidation, however: I was sure my adversary would mount a strong opposition.
The hearing was on a busy day with a gaggle of lawyers on other cases crowding the courtroom. My case was first on the docket. I was plenty nervous: it was my very first motion for summary judgment—a dispositive procedure seeking victory as a matter of law. In the crowd I espied my opponent, who acknowledged me with a nod and polite smile. I told myself that whatever happened, at least I wouldn’t die.
Just then, however, I noticed another familiar face: one of our firm’s most prominent litigators, who coincidentally, was in attendance for a hearing on the same docket, different case. He was sitting right next to the aisle, toward the back of the courtroom. I gulped. My performance would be judged by a senior partner—and he would certainly tell others in the firm about it back at the office.
Soon the bailiff gave the “All rise . . . Hennepin County District Court is now in session, Judge Robert Schiefelbein presiding.” Show time.
Since it was my motion, I went first. I’d rehearsed my presentation ad nauseam and tried to anticipate all the possible questions the judge might ask. My voice never cracked nor did my arguments. Mr. Expert Banking Lawyer then gave his pitch. I was surprised. Nice guy, smart guy, experienced guy, but he was no public speaker. He landed no substantive punches; just emphasized that the case involved “material facts in dispute,” the waters in which most summary judgment motions founder.
The judge spared me humiliation by not ruling from the bench. He would take the case “under advisement.” As I exited I passed the firm partner sitting in back. When we made eye contact, he saluted with a serious wink and a furtive “thumbs up.” I took his gesture as a vote of confidence.
Three weeks later I received the order denying my motion. I’d been told by my mentors not to be surprised or unnerved. It was part of the unnatural process of business litigation. The matter now lurched toward trial. Settlement efforts failed, and after more time passed—I was now into my second year with the firm but in the real estate department several floors up from litigation—an actual trial date loomed. I had intentionally requested a jury trial, thinking that if my opponent had more substantive experience, it wasn’t as a performer in front of a crowd.
As I would learn by fire, however, head-to-head combat in a full-blown jury trial is to lawyering what hand-to-hand combat is to soldiering. Few lawyers at my firm, it seemed, were veterans of regular head-to-head combat experience in front of a jury. From those who did, I drew as much advice and counsel as I could. In the end, however, I charted my own course, including for my opening statement, construction of a large graphic display to illustrate the factual sequence I intended to show. Of one thing I was certain: whether you’re trying your first case or your thousandth, you can’t bore or confuse your audience, the jury. Of a second thing I was just as certain: you have to give the jury a reason to like you and your client.
My client was a real person, earnest and decent enough, and followed directions well. I didn’t have to worry about him straying off course when on the witness stand. I told him to dress well but not too well. To cultivate favor with the jury, on voir dire (the jury selection process), I tried—with reasonable success—to establish a positive rapport, smiling appropriately, listening attentively, nodding acknowledgment. At all times during the trial—during direct and cross-examination of witnesses—I kept one eye glued on the jury box. Who was smirking, who looked skeptical, who was nodding in agreement—and who was nodding off?
Never had I realized what focus head-to-head courtroom combat required.
Toward the end of the third day—a Friday—of trial, we were down to closing arguments. The judge said he wanted to wrap up the case—including the return of a verdict—by “his” closing bell at 5:00. When the courtroom clock read just past three the judge called opposing counsel to take his turn.
Counsel collected a sheath of papers—his notes—stood up and moved from his table to the center of the floor facing the jurors. He gave the papers a good shake, as if to organize the thoughts they outlined, and without a hint of fanfare or engagement with his audience, he waded into his closing argument.
It was more like a swamp. Rocking nervously, annoyingly back and forth on his feet, he started off by lecturing the jury not to disfavor his client just because it was a bank, a corporation. “America was built by corporations,” he said. I nearly fell of my chair. Trying hard to maintain a poker face, I listened in amazement as my opponent gave an exposition on the history of corporate America. Say what?! I thought—the steel, railroad, and lumber barons? It didn’t take a genius to see that the jury was definitely not eating out of his hand or off his page. His “speech” seemed to curry favor with his banker clients, not his courtroom audience. After the history lesson, the lawyer got all tangled up in the confusion of facts that had had led his client to stop payment on a cashier’s check. The deeper he went into the weeds, the more comatose the jurors appeared. My own thoughts began to wander. For the first time in the trial, I began to wonder what my next meal options would be . . . It’s Friday, I thought—dinner out night with Beth. A big self-disruptive throat-clearing by the lawyer yanked my head back into the courtroom.
The clock was pushing four when the droning ended. The jury was in la-la-land. Several jaws hung loose. One needed to close—fast—to arrest imminent drooling. Eyelids were universally heavy.
Before counsel had reseated himself, the judge called me forth.
“Your turn, Mr. Nilsson,” he said. I felt immediate dismay. The jury was all but dead asleep, putting me at a distinct disadvantage. I’d practiced my closing as if preparing for a violin recital. I’d written it out, word for word, then memorized it backward and forward until I could deliver it sounding wholly extemporaneous—and clear, succinct, articulate. Based on an optimal cadence, my closing would take just over 15 minutes. But now, thanks to my opponent’s exercise in boring blather, my audience was nearly asleep, and to the extent any of the jurors was still awake, doubtless their thoughts were on . . . Friday evening meal options. Somehow I had to wake up the jurors.
Feeling desperate I rose and addressed the judge, who was older than my dad. “Your honor, at this time I’d ask for a brief recess.”
My request was met with an immediate smackdown. “No, Mr. Nilsson. No recess. You’ll give your closing argument now.”
In the split second that followed, a back-up plan popped into my head. “But your honor,” I said, “I have to go to the bathroom.”
Spontaneous laughter filled the courtroom, led by the jurors with the judge a willing follower. Of course I didn’t have to go to the bathroom, but how could the judge deny my request? In any event, my ploy had accomplished my objective: the jury was now wide awake and laughing on my side, not at it.
The judge granted a five-minute recess, and to lend an appearance of necessity to the scene, after thanking his honor I made a bee-line for the restroom down the hall. I waited a full minute before anyone else appeared, then hiked straight back to the courtroom.
By the time the jurors had reassembled in the jury box, their jaws were fully in place with eyes wide open. The judge himself looked refreshed.
“Alright, Mr. Nilsson, time to get underway.”
By this time I was pumped. As I took my place before the jury box—no sheath of fluttering papers in my hands—I had the jury’s full attention. Now that I did, all I had to do was keep and sway it.
Shortly before five-thirty, the jury returned a verdict. They’d taken only 45 minutes after receiving instructions. As the jurors filed into the courtroom, I couldn’t be sure that thoughts of meal options weren’t a factor in the early decision. I was fine with that, provided it favored my client.
When the verdict was read, my client—self-restrained to that point in the trial—unleashed a “Yay!” and thrust both arms into the air in victory.
Me? I couldn’t wait to tell my wife—over our Friday evening dinner out.
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© 2024 by Eric Nilsson
