By Dan Stevens, TLC July 2011
This is a summary of my trial, what worked and what I thought I could do better. This might encourage some of you to take some risks in the future. I came back from TLC with a big back load and had to jump into a jury trial the following week that was worked up by my associate. The trial was in another county so I stayed in a hotel. My client bought a house through a real estate agent. After moving in my client experienced some water in the basement because there were no sump pump in the sump crock. He put two pumps in the sump crock which eliminated the problem, but these pumps run continuously from February through April. The case was against one of Wisconsin’s largest real estate agencies. The seller (owner) also acted as the listing agent for the house. The agency hired the best trial lawyer in the county where the case was venued.
In preparing the case, I spent nearly all of my time finding the story. Trust and betrayal. Trust the real estate company, betrayal when you find out what the truth is. I did not want to make the agent/owner nor the manager the bad guys but the corporation itself.
The danger point in voire dire was anti lawsuit bias, lawyer advertising, tort reform, too many lawsuits, and nobody likes attorneys. I found it difficult trying to ask questions to twenty-one jurors at the same time. We usually voire dire from our desks here in Wisconsin but I asked the Judge if I could to stand up and talk to the jury, which he agreed to. After exposing mine, I ask if any juror even felt a little bit like I do, had any sentiments against lawyers or lawsuits. First no one wanted to volunteer, but with prodding and silence one man eventually raised his hand. He hated lawyers and lawsuits and felt lawyers pushed people into lawsuits (pure gold!). Agreeing and thanking him I got him to talk and talk and talk and talk. This gave some others courage to speak up also, including a doctor who is working with the State Legislature on tort reform. Agreeing and thanking these people I flushed out a total of three jurors who shared this sentiment but couldn’t get anybody else to volunteer on this point of view. After that I asked others if they had a different point of view. Heads began nodding. Got many to volunteer about the importance of lawsuits and the right to a jury trial.
I worked trust and betrayal into voire dire also. “Has anyone had an occasion to trust a real estate agent in the past?” “Did that agent honor your trust?” I also asked the jury (got this from Rafe), “I’m going to ask you to award my client $197,000.00.” “Does any of you have any reason why that would shock you or why you wouldn’t consider that at the end of the trial” No one volunteered so I asked the three hard core Jurors, “How do you feel about that?” They responded that they had no problem with it (they were gone anyway)
In opening it was an all out attack against the real estate company with only a small portion of the discussion at the end relating to my client’s issue. Throughout the trial I tried to do everything without notes and found that it was easier than I thought. The defense in its opening launched into an attack on my client repeatedly calling him a liar. I put my client on the stand and the first question I asked him was, “How do you feel about being called a liar in open court in front of all these people?” I then went into his interrogatory answers, his deposition testimony and established that everything he said is truthful.
I tried to take my client back to the scene on several occasions and describe what happened as if it were live. He is a man of few words so this was difficult to do and I need to work on this. More client prep. I asked my client what he thought the jury should award him (Rafe again)
In cross, the defense launched a vicious attack against my client. My client basically just answered yes or no courteously and enthusiastically with no argument and very little explanation. Four Jurors were asleep during defense cross. With every witness I worked in trust and betrayal. Noting what I believed to be the defendant’s strong points that came out in its opening, I thoroughly discussed each one of these with each witness before the defense had a chance to cross examine. In most cases, after I had thoroughly discussed the issue he chose not to even touch it on cross examination. For example, my expert had testified for me twenty or thirty times. We discussed this at length on direct.
At the conclusion of my case the defendant began calling his witnesses including several experts. My cross was soft and compassionate spending a great deal of time discussing the pressures and motivations of each witness, complimenting them on their achievements and their cooperation. Because most of the defendant’s witnesses were not hardened trial experts they became relaxed and cooperative using the soft cross. At the end of his testimony their key expert witness, an engineer, admitted that he would not purchase this house for his family.
I asked different kinds of questions than I would of asked before, for example I asked the real estate manager, “Do you believe your real estate company has any responsibility whatsoever for my clients losses?” I delved into this subject very compassionately but she reacted with anger and indignation final shouting it’s not our fault we did nothing wrong. That was my theme for justice in my closing. Not accepting fault or responsibility making them the villain.
I was surprised when the defense offered a letter in evidence authored by my associate accusing a witness of theirs, a war veteran, of lying in his depo. No objection by me but a soft apologetic cross showing what a liar the witness really was while honoring his service to our country. In his depo he said he saved no documents but brought a stack with him at trial. I apologized for my associate.
Because the defense attorney was a seasoned veteran of the courtroom he realized that all of the damage had been done during the questioning and chose to object on very few occasions. His objections would have only highlighted the questions I asked. Everything I did came in.
In closing I followed Gerry’s seven point attack. I spent very little time discussing the facts of the case, but mostly about the “trust/betrayal relationship.” We need to protect the public, the jury’s family, their friends, their parents in future real estate transactions.. That consumer protection statutes that we based our claims on were designed to maintain the trust relationship of real estate brokers and have them honor it. That a positive verdict would protect the Jurors, families and friends in the future and make real estate companies more accountable.
It was a different experienced writing everything out in detail and in advance, but not using my notes while speaking. I would review the notes prior to voire dire, opening, witness examination, and closing, but once I started I abandoned the notes.
The mental image I had in my mind was that I was standing before the jury in my underwear fully exposed, fully vulnerable, hiding nothing, willing to turn everything over to them and trust their judgment. The most important change that I made that seemed to make the most difference was becoming “real person” and not a lawyer. This was hard to do and at times I didn’t feel like I was being a strong advocate for my client, but overly passive. My client could hardly believe the results of this trial. 10k offered before trial, verdict 110k subject to trebling under statute and actual atty fees. Two dissenting jurors would have given more. (my client bought the house for 230) There are quite a few things I need to work on, but I can see an immediately benefit to the things that we learned at TLC.
