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Washington Lawyer

Legal Spectator: A Trial That Never Was

From Washington Lawyer, July/August 2002

By Jacob A. Stein

spectatorI am back in the courtroom. We have just settled the case in the judge’s chambers. The judge, before dismissing the jury panel, says to the jurors: “While you have been waiting here, the lawyers in the case have been with me in chambers discussing the case and the lawyers have reached a settlement. Courts encourage settlements. This settlement came about in part because you jurors were waiting in the courtroom. The presence of jurors encourages the lawyers to focus on the issues. The court and counsel thank you for your time and patience. Please report back to the jury room and you will be told if you are released for the day.”

That was an interesting comment the judge made to me after the case settled. She said: “Now that this case is settled, you have to worry about getting another case. I don’t have to do that anymore. I get all the cases I want from the assignment office.”

How right she was. No worry about clients. No sending out bills.

Was it a good settlement or a bad settlement? Who won, who lost? Did I leave something on the table? Why, in the settlement discussion, didn’t the defendants bring up that weak spot in our case—the causation issue? Were they holding back? During the negotiation in chambers did I say too much? Have I finally learned the eloquence of silence?

And what of the judge? Although she gave no indication of what her ruling would be, she did have 99 F.2d on her desk. Was she going to follow it or distinguish it?

Would the judge have let us use the graphics in the opening statement?

What of the expert we identified after discovery closed? Would the judge let us call him as a rebuttal witness?

What of the impeachment documents we intended to use on cross-examination? Would they be excluded because we did not disclose them in discovery? But if we disclosed them, the defendant would have explained them away. Nothing like surprise. This judge had years of trial experience before she went on the bench. Would she understand our strategy and let us use them?

Is it a mistake to settle such a good case—good liability and good damages? Aren’t these the cases to try? But then as the judge told us in chambers, no case is perfect, and the defendant’s offer made the case too dangerous to try. Yet there is a quality of recklessness—real or theatrical—that is a factor in a negotiation and in the trial practice itself.

When I arrived at court this morning and unpacked my five briefcases, I discovered I was missing the folder with the notes for the opening statement. I left them on my desk in the office. Why does this happen over and over again? When I prepare to go to court an invisible adversary enters the office and hides the pleading file, my fountain pen, and the key exhibits.

I did remember to bring the draft of what was to be the great closing argument. As I read it through I wonder how really great it would have been. A judge told me that juries fasten on to the court’s instruction. His advice was to tailor the closing argument to the instructions and then praise the trial judge. He said it was a foolproof combination. I was going to try it out.

Perhaps I would have made a better argument if I had put aside these notes and relied on spontaneous inspiration. I have been lucky in having things come to mind while speaking. When I get one of these good inspirational thoughts, I say it only once. I have learned not to repeat it. That is a dead giveaway. If I repeat the thought, I signal that the thought just occurred to me. And if it did just occur to me and it really has some validity, why did I not think of it long ago?

These bright ideas are of a type that students of closing argument classify as romantic. Not classic. Romantic. Classic is preparation, orderliness, analysis, measurement, verifiable truth, scientific proof, and deductive logic.

Romantic is poetry, the unanalyzable, the imponderable, the intuitive, the mysterious, the emotional. It is the fleeting present, the glorious past, and the infinite possibilities of the future. It is melodrama and farce. It the beauty that never was. It is the happy ending overcoming adversity. It is Charlie Chaplin mixing farce with tragedy. It is the big idea that cannot be bothered with details.

When the inspiration is in the full tide, it discloses unexpected connections between the facts and the law that turn the case my way. These tricks are best done on rebuttal when the defendant’s lawyer has no chance to reply.

Reliance on romantic inspiration is seductive. It requires no preparation, no work. Either it happens or it doesn’t. It is mysterious and irrational. There are those who believe in both inspiration and preparation. There are those who claim that preparation brings inspiration. Those are the winners.

After I settle a case I conduct the trial in my mind in the form of an elaborate daydream. I do all the things I am told to do at the continuing legal education conferences. I control the courtroom (whatever that means). I make objections that are short, to the point, and by the federal rule number. When my opponent tries to do the same, he misses the number and I correct him. The jury returns a verdict twice the size of the ad damnum. The verdict sticks because I amend the complaint in accordance with the applicable federal rule.

Sara Teasdale, a poet who never tried a case, knew exactly what it is like:

It was a spring that never came,
But we have lived enough to know
What we have never had, remains;
It is the things we have that go.

Jacob A. Stein may be reached by e-mail at jstein@steinmitchell.com.