My First Trial
Written by Robert J. Kopka, Managing Partner
Published in KPD Connect, September 2016
I remember my first jury trial. The year was 1984 and I was an associate at a cool, fast-paced insurance defense firm. I was beyond excited. I had tried a few bench trials, but this was a solo jury trial, all mine. I actually bought an Armani suit. In my closing argument, I called one of the witnesses a liar. “He lied to you,” I explained to the jury, “because he lied to his insurance company in order to collect on his property insurance. And since they paid him, he had to lie to you yesterday, or else he would be admitting to insurance fraud!”
To tell you the truth, I didn’t know if he was lying or telling the truth. It didn’t matter. What mattered was that the jury believe that he was lying. After the verdict, one juror approached me smiling with his hand extended in kinship. “I knew that son of a bitch was lying, that sack of….” he asserted. I just smiled and gave the guy my card.
It wasn’t an insurance case, exactly. It was a subrogation case. The firm had taken the case on a contingency basis and it was a lousy case, such a long shot, that they gave it to me to try. To make matters worse, the defendant was uninsured. In other words, even if I won a lot of money, we never would have collected it.
I really didn’t care about all that. All I cared about was getting to trial. So when the day came for the opening statement, I was ready. The case involved a fire which we claimed had spread to an inner city grocery store from an adjacent, abandoned building. The actual cause of the fire was undetermined. We were suing the inspector who had been hired by the insurance underwriter to inspect the property and issue a report of hazards. He had noted an adjacent building in his two page hand written report, but did not indicate that it was abandoned. An abandoned building was a fire hazard which should have been noted. I introduced the county gas and water department records which indicated that the building was padlocked when the county inspectors came. (I was either too inexperienced or too dumb to actually find the inspectors and call them as witnesses; but I was smart enough to get the public records admitted into evidence.)
The defendant claimed that the building was not abandoned nor a hazard and that it had been noted in the report. The defendant’s attorney was a high school friend of the defendant. Neither side had an expert. Oh, and did I mention how much the insurance company had paid for this inspection report? $10. I was suing a fellow who had an uninsured business personally inspecting inner city properties for insurance companies and now his client was seeking $700,000 for his negligence in a $10 report. My Motion in Limine to exclude as prejudicial the cost of the inspection report was denied. The judge, the jury, the court reporter, the witnesses. I felt like I was the star of a Hollywood movie. Bad facts? I made light of them. Bad witnesses? I called them liars.
The case was exhilarating as has been every jury trial in my life. But that jury trial that exhilarated me in my 20’s, came back to teach me a valuable lesson in my 30’s.
By this time, I was a name partner in a cool, fast-paced insurance defense firm of my own. I was in court at the Daley Center in Chicago, on a multi-party case. After the arguments, counsel retired to the hallway, overlooking the plaza. I introduced myself to the other defense attorneys.
“I won’t shake your hand” is all I heard in response to my outstretched arm and salutation. “You put my family through hell.” I still remember her exact words. She was an associate at a well-regarded firm in Chicago. She had been in high school during the trial. I had sued her dad for $700,000. He had no insurance, and his friend was defending him as a favor. He was facing a judgment that would have bankrupted him. I knew all those things when I tried the case; but they didn’t register. She never did shake my hand.
Trial is war and you are soldiers. People get hurt in war just as they get hurt at trial too. For every win, somebody loses. When our clients lose, we don’t really lose along with them. We are the soldiers. We fight for others; we fight their battles. When our clients want to go to trial, we go. It doesn’t matter what we think. It doesn’t matter what we believe. It only matters what the jury believes.
This is a tough lesson to learn. The best results we achieve for our clients are most often settlements, which are under-appreciated as great lawyering. That’s because it isn’t a Hollywood movie, and those movies are not real. Trials are real. So learn this skill. Understand the art of persuasion and cross-examination; but know that this is real to the people at trial and that people will get hurt.
Are you wondering what the verdict was? There is a lesson to be learned from the verdict too. Before trial, the judge pulled the parties into chambers and heard about the case. He looked at me and said: “Tell your client to take $14,000” and he looked at defense counsel and told him to tell his client to pay $14,000. Well, I had authority to take it but the defendant refused it and so I had my first jury trial.
Those were the days of pure comparative fault. The jury returned to the courtroom. I sat at counsel table, my stomach in free fall. The jury foreman handed the verdict form to the judge who read it and smiled from ear to ear.
He began to read the verdict: “We the jury find for the plaintiff….” (Hey. That’s me!) “We find damages in the amount of $700,000….” At this point the defendant made a sound as if he was having a heart attack right there in court. “Aghhh” he exclaimed. Everyone in the court looked at him. He looked as if he was about to faint. The judge kept reading, “We find the plaintiff 98% comparatively at fault and assess damages in the amount of $14,000.” The judge didn’t attempt to conceal his Cheshire cat smile. He thanked the jury for their service and it was over.
The lesson learned? It’s not that the judge is always right; it’s not that every case should settle. No. It’s this: experience breeds good counsel and with age comes wisdom. I see that now.
I am looking forward to our upcoming Trial Techniques Symposium. There we will learn the techniques and strategies with which to wage war, and will become better soldiers. These are skills that, when properly employed more often than not, will help us achieve outstanding settlements and, when necessary, prepare us for battle.