Back in the 19th Century, it was rare for anyone living out in what is now generally referred to as “flyover country” ever to have seen an exotic animal. There were pretty much no zoos, and back then the notion of loading up the family and going on a “vacation” didn’t exist for any but the very, very wealthy, and they didn’t live in small-town America. About the only time that your typical 1840s child had a shot at maybe seeing something so outlandish as an elephant was when the circus came to town. Back then, the circus company, in addition to setting up the big top outside town, would parade through town, with its dangerous beasts in cages on wagons, and invariably The Elephant being the star attraction. The kids — especially the farm kids — would come from miles around “to see the elephant.”
The experience of “seeing the elephant” and making a special effort to do so was so common that “to see the elephant” became a metaphor for any Life Experience long desired and finally attained. In the Civil War, the initial experience of combat — remember that thousands of young men had enlisted in fear that they might miss out on the fun — was universally known as “seeing the elephant.” There is a very famous letter from a soldier to his family back home (it’s quoted in Ken Burns’s film series, although I first ran across its mention in Bruce Catton, if memory serves), right after his first battle. At some point in the letter he allows, “Well sister I have seen the elephant, and now I don’t want to be a soldier no more,” or words to that effect.
These past two weeks I have seen the elephant.
I post under the nom de blog of Countrylawer because that’s what I do for a living. Been doing it for roughly 20 years, give or take a bit. I don’t do criminal defense and I don’t do either plaintiffs’ tort or insurance defense litigation. Which is why I’d lasted so long without ever trying a case to a jury. Such courtroom work as I have done, up until now, has all been bench trials. Commercial contract disputes, eminent domain, deficiency actions, land title and boundary lines, business entities, and so forth. I got started on a jury trial a couple of years ago and then the judge made an absolutely imbecilic evidentiary ruling which resulted in a mistrial.
Way long time ago — January, 2006, to be precise — I filed a bad house case on behalf of a couple who’d built their dream house and within less than a year of completion the thing was coming apart on them. Massive water intrusion into the basement, exterior walls out of plumb, the entire brick veneer bleeding white all over, the dining room ceiling repeatedly leaking despite the contractor’s repeated statements that he’d fixed the problem. And then the foundation walls started sprouting cracks; some vertical, but some horizontal, and it’s the horizontal cracks that are the more serious. What a horizontal crack is telling you is that your basement wall is bowing inward from lateral pressure on the outside of it. As things later turned out, the basement walls (concrete blocks) had been built eight feet below grade, with zero reinforcement of any kind in them. The brick veneer had been largely put on in weather that was getting down below 24 degrees at night, with no protection from the elements. What was supposed to have been a 1″ air void behind the veneer was partially plugged in large areas by enormous cakes of excess mortar, some of them three feet tall and ten or more feet long. The windows had been flashed so that water would run behind the house wrap vapor barrier, which itself had been installed in part reverse-lapped, so that it would channel water into the interior of the wood frame. And the wall penetrations had no through-wall flashing or weepholes beneath them so that water intruding would find its way back to the surface. The chimney, the first time they lit it off, bled oozing, sticky, black creosote all over its surface (interestingly the heaviest concentration of creosote matched, on a 1:1 basis, the areas of strongest white leaching on the brick’s surface before they began using their basement wood stove). And so on and so forth.
I sued their builder, who hired a lawyer who has a reputation for taking very aggressive positions on his clients’ behalf, even when that’s not necessarily in his client’s best interests. As happened now. We did depositions, we did discovery, we had petrographic examination of brick and mortar sections of the veneer (had to fly to Chicago to take our petrographer’s deposition), and on and on and on. The case took forever, in no small measure because it took roughly a year to get them to make discovery. We finally got the thing set for trial in early June, 2013. That was continued at the defense’s request to October, 2013, which was continued once more, again at the defense’s request, to February of this year, which was continued by the court sua sponte (perhaps uncharitably, I cannot dispose of the suspicion that the last continuance came about because the judge before whom it would be heard was new to the bench and had never practiced civil law a bit, having been an assistant district attorney for 25 years).
So we finally had our trial date beginning June 22. It took eight mortal days of proof, and over a full day of jury deliberations, but we got our verdict yesterday evening. Although they didn’t give us everything we asked for, it was still a plaintiffs’ verdict, and the jury specifically ruled in our favor on every single count of the complaint.
Now I can say I’ve seen the elephant. Here are some things I hope I have learned.
1. Do as much of the work up front as you can. I had done my requests for jury instructions and special verdict form two years ago. Everything was just so and all I had to do was print them out, make service copies, and ship them out before trial. By like token I had combed and combed and combed through all the parties’ and witness depositions, cross-indexing, gathering specific quotations with page citations into themes, and so forth. While it didn’t completely avoid some late nights during trial, there was only one night I dragged back into my house past midnight, and that was the last night before cross-examining the defense’s star witness, their consulting engineer.
2. Include not just citations to authority in things like requests for jury instructions. Put in the actual quotations of the relevant language so the judge can see for himself that you’re not just making it up. Also generate a “clean” copy of the proposed instructions, without citations; save them in as many different document formats as you can, organize them in folders on a CD, and include that with your courtesy copies of your motions that you send to the judge. Judges and their assistants aren’t any less susceptible to letting someone do their work than anyone else is, and the easier you make it for them to use your work, the more likely you are to own more of the process. Inertia is a powerful mental force as well as physical.
3. Eat well, but not copiously, during trial. This trial was a good 40 minutes away from my home. So each morning I would grab a 24-ounce cola and have that, with two bananas, on my way to court. I kept a granola/power bar or two in my brief bag, so that if I weren’t in a position to take lunch I would have at least some fuel. On those days I did have lunch, it was never more than a 6-inch Subway sandwich, so I never got bogged down in the afternoon. I’m a big ol’ boy (the less euphemistically inclined would describe me as “fat,” I’m sure), and one of my large concerns was hypoglycemia during trial.
4. This ties in with doing as much work up front as you can, but get good sleep in adequate amounts. Remember your body is used to X hours of sleep per night, and if you suddenly ask it to continue for longer stretches on less than that, it will rebel. I made sure to come home as early as I could, take a shower, grab a modest supper, and then read something that had nothing at all to do with law, lawyering, or especially this case for a half-hour or so. I’d take a melatonin tablet (never tried them before, ever, by the way) around 8:45 p.m. and by an hour later be turning out the light. I was able to sleep and get up aware and ready to hit the decks running at 5:30 a.m. Mental activity uses enormous amounts of calories, and in addition to the adrenaline of a full day in front of the jury, your levels of concentration are going to be ferocious and sustained for much longer periods than you’re used to.
5. If you can, get your family out of the house. Spouses and children, especially young children, are going to have a very hard time wrapping their minds around the notion that You Need to Stay Away From Daddy/Mommy until this trial is over. They’re going to be knocking about the house, making noise, impinging on your dwindling attention energies. I know it sounds heartless as all get out, but playing with the kids, or playing with the kids’ mommy, is going to tax a limited reserve of psychic energy. They’ll still be there when the jury has come back; you can catch up with them then.
6. Get to court early each day. You need to get set up, get yourself calmed down, and focus in on the work you’ve got ahead of you. Get there early enough and you should have the courtroom to yourself. If you should need to finish up your morning business in the bathroom, you’ll be able to do so without risking a jury member strolling in and wondering what just died and can’t you give it a decent burial. Take a breath. If you need to set up any demonstrations or suchlike, you can tinker with the physical arrangements. And if your projector blows a lamp, or your laptop won’t read a disk, or whatnot, you may have time to come up with a work-around.
7. Google every last single witness. I mean that: Search Facebook, Twitter, MySpace, anything. This especially applies to experts. In fact, I am convinced that it’s why I got that verdict. The defense’s testifying engineer was an accomplished liar (he’d screwed over some friends of mine 18 years ago, back when he was, in addition to his regular engineering gig, running a foundation repair service). And I mean he was good; in some ways I think he could give Bill Clinton a close run. Perfectly dishonest, of course. He was perfectly willing to take a photograph of mold growing so thickly on a block wall that it cast its own shadow when photographed with a flash, and testify that was calcium carbonate efflorescence (even though a swab sample of it showed it to be Aspergillus/penicillium). He did no testing or sampling of anything (or even asked to) in the house over the 9+ years of the suit, and then felt perfectly comfortable sliming the competence, methods, and integrity of a petrographer who not only followed the ASTM book in analyzing the mortar work, but in fact to some degree participated in writing that book, so to speak.
Our petrographer’s résumé listed two and a half pages of publications in all manner of masonry industry publications, as well as papers presented at international industry conferences. I wanted to see if this opposing engineer had any publications out there, so I looked around. I didn’t find any, but I did find his blog. And on his blog I found a blog post. And that blog post dealt in great depth with an issue that formed a central pillar of his testimony: To what extent is it appropriate to use residential building code standards to evaluate the workmanship and quality of a house in a county in which no building codes have formally been adopted by whatever government authority would do so? As you might surmise, on the witness stand he pooh-poohed the notion that the building codes were helpful. “Out here where there aren’t any codes,” you see, you have to look into what are the “community standards.” In other words, if every builder in the county builds a lousy building, then it’s perfectly acceptable that you got a lousy building, too. And on his blog he in great detail and in unambiguous words (that last in marked contrast to his rambling, Cliff Claiborne-like trial testimony) gave exactly the opposite opinion. As in 180 degrees out. As in no way to reconcile the same.
Thus, at the bottom of my cross-examination of him, having previously got him to nail his flag to the mast of codes don’t apply here, I popped a print-out of his blog in front of him and then proceeded to read, one juicy snippet at a time, his opinion when he wasn’t being paid for it.
When the jury’s special verdict form came back, it was obvious that they hadn’t accepted any part of his testimony.
8. Don’t play gorilla. You’re not a gorilla, and anyone acting like a gorilla who is not, in fact, actually a gorilla only looks silly. Chest-thumping isn’t likely to work on anyone who’s been doing this for more than six months, and all you’re going to do is convince the other guy that you in fact have that little class. My learned opposing counsel kept making these just incredibly tacky remarks to me over the course of the trial. On the first day, at the lunch break, he excused himself with the observation that “we’ve got trials to win.” Well, dontcha now, buddy? He kept busting on the minivan I drove to court. It’s filthy, because for years now it’s sat under an oak tree in my driveway. Well, what of it? For starts, those jury members (this was a small overwhelmingly rural county) got to see me loading and unloading myself and my stuff from what was obviously a beat-up old vehicle. At any rate, Dear Opposing Counsel kept making snide observations about the condition of my van, and at one point he said, “After I’ve won this trial, I’m going to come out to your office and wash your van.” Knock yourself out. He borrowed a laser pointer from his engineer, to use while he was taking his engineer through the pictures he took, and during breaks he’d keep shining it at my face. Never in my eyes, but on my moustache (I do enjoy my soup-strainer), hair, etc. He even called my attention to it and asked if I didn’t think it just hilarious. I only observed that me must have been just an absolute prince on Halloween, back in the day. As I said: Tacky. And now he gets to eat his words.
9. Do not have your gas-bag of an expert witness explain each and every last one of 250-plus photographs to the jury, especially if many of them either don’t show anything that’s directly relevant to the claimed subject matter of the lawsuit, or show the same penny-ante detail from three separate perspectives and with as many different shutter speeds or contrast settings. This Cliff Claiborne of an engineer just about put me to sleep, and I can only imagine what he did to the jury members, every one of whom could see that was a fucking water stain on a concrete block. It took hours.
10. Be very careful how you call a man a liar. In my closing argument I explained to the jury that they had to decide whether to believe my clients’ engineer, who had not been hired to help in a lawsuit, who had not been hired to come up with any corrective action plan (they had a different engineer do that), but rather had been hired months before anyone lawyered up and only to help two distraught people figure out what was wrong with their house, or alternatively the defendants’ engineer. Then I observed that if they were going to believe this other fellow, they needed to decide whether they believed the opinion he had when he was undeniably speaking just for himself and wasn’t getting paid for it, or alternatively the one he’d just offered to them on the defendants’ behalf. And I left it at that. I also had, after much consideration, decided not to bring out on cross-examination that the defendants’ lawyer was also this engineer’s personal business lawyer. Two lawyers getting in a pissing contest and descending to personalities is the sort of thing that can put a stranger off, and prompt in him thoughts of a pox on both your houses. In contrast, during Learned Opposing Counsel’s closing, he alleged that, in presenting the defendants with a detailed, written repair agreement (it even attached the most recent engineering report they’d received the week before) to be signed before they’d let the defendants back on their property to take yet another shot at getting the work right, that I — I, the lawyer — had “attempted to imposed [my] will” on these poor defendants. Huh? I just have a real hard time imagining that he scored many points with that theory. I could be wrong, of course, but I doubt it. And remember a jury member whom you’ve offended by your conduct is going to do your client’s case a great deal more harm than one who hasn’t formed a personal opinion of you one way or the other can do you good.
11. Practice with your clients, especially if they’ve never been personally involved in courtroom proceedings. Then practice some more. Then some more. If you have multiple clients (like a married couple), work them through actual outlines of their testimony, both yourself with them and them with each other. Their answers can’t meander. They can’t come across as either hesitant or as too-well rehearsed. They can’t answer you in a questioning tone of voice, as if they were looking to you, the lawyer, for confirmation they’re correct. They need to practice phrasing answers to include punchy, easily-comprehended visible images. One of my clients, when I asked why they hadn’t gone behind this builder to check up on every last thing he told them, responded that that’s why they’d hired a licensed contractor; when their car breaks they go to a mechanic; when the husband had a hernia that needed fixing, they went to a doctor. Avoid trying to script things, however. It won’t work. You’ll get a feel that a particular line just isn’t playing well, or something else will come up to knock your flow a little out of channel. It’s a guide, not a script. This is not for you and your client to memorize (it’s impossible to memorize proposed testimony anyway), but rather so that your client will feel comfortable with, because thoroughly familiar with, the substance and general phrasing of everything you’re going to ask.
12. Ask as many of the other guy’s questions for him. If your client has said something stoopid in his deposition, drag it out. He might look poorly, but I guarantee he’ll do better at damage control if he’s taken through it by a friendly questioner. Especially ask the other guy’s rhetorical questions for him. My clients noticed their house’s moisture and mold problems gradually getting worse over the first summer they lived in the place. They’d decided to get their contractor back out there in early September, and then a hurricane blew through, causing their dining room ceiling to leak a stream of water for the fourth time (the first three times had been during construction). They got the contractor out there afterward and he looked at the saturated top-to-bottom basement block walls (including the two-plus courses of block above grade level), and allowed he couldn’t understand where the water was coming from.
So my folks got another contractor out for a second opinion. That guy recommended a home inspector, who looked around, found indication of multiple other serious problems, and he recommended an engineer, who came, saw, and noted several major issues in a formal report. My folks got that in early October and, in shell shock, they spent the next five or so weeks gob-smacked. Then in mid-November they lit fires in their wood stove and the creosote came blooming out. Beginning the first week of December their rear basement wall grew cracks so fast they were visibly longer from one day to the next. So they got their engineer back out (he couldn’t make it until after the new year). But between that early-September visit from the contractor and the second week of January, my people didn’t call the contractor. The contractor alleged as a defense the failure to provide notice and an opportunity to cure. And so repeatedly I worked my way back around, with my witnesses on direct, to the question of, “Well, why ever did you not call?” By the time Learned Opposing Counsel got to cross, they jury would have been thinking This is Old News and They’ve Already Explained It Four Times; Now Move Along.
13. If you know your clients’ case better than your clients, you’re both in trouble. They’ve got to be able to articulate, in their own words, in coherent form, what happened, when, in what order, by or through whom, and What It All Means. If they can’t do that, in painful detail, then they’re not going to be able to convince a jury to make some stranger (at least from the jury’s perspective they’re strangers) cough up money to your client. Just not going to happen. I once years ago tried a bench trial on an option to purchase commercial real estate. The case had been pending for not quite four years when it went to trial. My client spent seven hours on the witness stand that day, and under cross-examination she was nearly completely unable to explain to the court what she wanted by way of relief and why she thought she was entitled to it. We won the case, but the judge ruled in a manner that cost my clients about an extra $250,000. If your client obviously doesn’t know his own damned case, don’t expect your jury to spend much effort trying to understand it either.
14. Don’t ask your witnesses to be any more positive than they genuinely are comfortable being. If they’re basically honest, that stretching of their narrative will stick out like spines and the jury will conclude they’re lying. If they’re basically dishonest (and you know, sometimes the only witness you have to something is one of your county’s notorious crooks; it just works out that way and if that’s the only way you’ve got to get your facts into evidence then you’re going to have to figure it out), you’re shooting dice that nothing will happen like happened to that engineer. All through my case in chief Learned Opposing Counsel was cock of the walk, strutting about and playing Dutch Uncle to my poor little dirty-assed-van redneck self. He acted like he had a massive bombshell in reserve, just waiting to chamber it up and send it down-range onto our target coordinates. After I blew up his star witness in front of God and everybody that sonofabitch “sulled up” as we say around here and spoke scarcely eight words to me until late yesterday afternoon. All that having been said, if your witness has a fact to recite, or an opinion to form, for God’s sake don’t pussy-foot around about it. That comes across as dishonest as well. Purge “I might have,” and “I think,” or “it could be that” or “it might have been” or “As I remember it” from the vocabulary. This did happen. So-and-such did not happen. I saw whatever-it-was. Don’t have your expert say, “My opinion is such-and-stuff”; you ask him if he has an opinion and let him state his opinion in the form of a fact: “There was nothing wrong with this house that a little time wouldn’t have cured without spending a bunch of money.” “There were no termites present on whatever-date-it-was.”
15. Never, ever, ever, ever put on proof, unless the substance of the claims or defenses makes it absolutely unavoidable, of what your client is paying you or has paid you, especially if you’re a big-city lawyer appearing in front of a jury full of people at least half of whom either live from government hand-outs themselves, or have relatives or friends who do. Our total claim for compensatory relief was for not quite $90,000; ol’ Learned Opposing Counsel had one of his clients testify that, exclusive of the trial, they’d already paid over $96,000 in attorney’s fees. That didn’t even get to the engineer’s fees (and they’d paid him to be present for the trial from Day 1). Think about it: How likely is it that Average Jury Member is not going to ask himself the deadly rhetorical question, “Wouldn’t it just have been simpler for you to have built the house right in the first place?”
And so I saw the elephant over the past two weeks. We have post-trial motions and then I am assuming Learned Opposing Counsel is going to file an appeal, which for several tactical reasons I’m all for, since it is likely to make my clients’ ultimate collection much more certain. I cannot say I have enjoyed it, except to the extent that winning (assuming nothing blows up between here and the final order) beats losing all to hell and gone. It was an 8-day adrenaline rush and I’m still coming down off it. But at least the magic spell is broken.
I can do this.