As a lawyer with several years’ litigation experience, I do not
think of myself as a mere novice in the courtroom. I recognize, however,
that I can always learn a thing or two from my colleagues, so I try
to remain open-minded when people give me advice. I have learned over
the course of years that some advice from older lawyers, however well
intentioned, is not of use to today’s younger practitioner. This
was most recently demonstrated when I heeded the advice of a respected
and successful litigator.
“When you have a losing case with suspect facts, the most important
thing to remember when addressing the jury is to command their attention,”
the aged litigator said to me. “If they’re not listening to
your summary, they’re not going to be thinking about the facts
the way you want them to during deliberations.”
This seemed to me to be good advice, so I asked him if he had any tricks
of the trade he would be willing to share. The lawyer smiled and indicated
his pleasure at being asked by ordering another round of martinis and
picking up the check.
“The best way I have found to arrest the jury’s attention
during a long closing argument is to refill my fountain pen,” he
said. He explained then how he had perfected a technique of waving his
trusty Mont Blanc to hypnotize the members of the jury. Once they were
all watching the pen, he would proceed to dismantle it, produce an inkwell,
fill the pen and put it back together without either spilling a drop
of ink or missing a beat in his speech.
“It never fails,” he stated. “The jury is mesmerized
by the operation, and they’re impressed as all get out. The key
is to continue speaking as if nothing is happening.”
I was then in the midst of a case that was a likely candidate for trying
this procedure. I was defending a client in a dog bite case in which
my client’s bull terrier had gotten away from him and bitten the
plaintiff, who had been innocently poking at it with a sharp stick.
Opposing counsel had a won a preliminary injunction to leave the dog
still attached to the leg of the victim. I had argued unsuccessfully
that this would be unnecessarily suggestive to the jury. During the
trial the testimony of the victim had been punctuated by her screams
of agony each time the dog shifted its position. I needed some way of
diverting the attention of the jury from the animal, and this pen-filling
trick seemed to me to be as good an idea as any.
The problem was that I did not own a fountain pen. I researched the
issue and determined that purchasing one was out of the question because
a well-made pen costs hundreds of dollars, something in remarkably short
supply in my office. Moreover, I found that fountain pens are far too
complicated for me to use. I decided, therefore, to modify my learned
colleague’s advice slightly and substitute his fountain pen with
my ballpoint.
I was ready when it came time for my closing argument. When opposing
counsel had finished his summation and given the terrier a nudge to
elicit another yelp of pain from his client, I rose to my feet and began
to speak.
“Ladies and gentlemen,” I said, removing my Bic™ Round
Stic from my breast pocket. “Keep in mind that it was the plaintiff,
and not my client, who set the train of events in motion that ended
with her being bitten.”
I proceeded to outline our version of events and argue our side of the
case. While doing so, I removed the cap of the pen and found I was unable
to separate the writing nib from the plastic tube. Continuing with my
speech, I replaced the cap and, with my thumbnail, removed the plastic
cover from the end of the pen. This I accidentally dropped, requiring
me to break eye contact with the jury while I went down on my hands
and knees to retrieve it from under the opposing party’s table.
The dog yipped in pain when I crawled over its tail, and bit down harder
on the plaintiff, causing her to howl. I didn’t miss a beat in
my speech.
Unfortunately, I still was not able to remove the ink cartridge from
the pen. I returned my attention to the working end of the writing instrument
and finally managed to remove the ink cartridge by placing the writing
nib in my mouth and using my teeth to hold it in place while I pulled
the rest of the pen free. This caused some of my speech to become somewhat
garbled, as I found it difficult to enunciate words like “culpability”
with my teeth clenched around the pen. Nevertheless, I forged ahead
with my argument.
I was pleased to observe by this time that I had definitely arrested
the attention of the jury. Each of them had fixed me with a quizzical
stare. They continued to regard me thusly as I produced a package containing
two replacement pen cartridges from my breast pocket and attempted to
open it. This proved to be extremely difficult, as the manufacturer
had seen fit to have the objects vacuum-sealed into a nearly impregnable
cocoon of plastic and cardboard.
After
struggling to open the package for some time I attempted to open it
by ripping it down the middle, which succeeded in flinging the two cartridges
in opposite directions. One of the cartridges embedded itself in the
wall behind the jury box. The other cartridge hit the plaintiff who,
startled, fell out of her chair and landed on the dog. The dog in its
surprise released its grip on the plaintiff. Objecting to this change
in the status quo, it searched out and sank its teeth into the nearest
object it could find. This turned out to be plaintiff’s counsel,
who loudly voiced his displeasure and distracted me from my speech.
“Counsel,”
said the judge. “During your closing argument I have observed you
assault opposing counsel, the plaintiff, the jury, and cause damage
to exhibit ‘A.’ I am giving you fair warning that I will hold
you in contempt if you assault the Court or any of my staff.”
I
assured the judge I would do no such thing and resumed my remarks to
the jury. I had retrieved the ink cartridge from the plaintiff by this
time and, while discussing such lofty concepts as the burden of proof,
attempted to insert it into the empty pen. It was at this point I encountered
an unforeseen obstacle: Cross™ replacement ink cartridges don’t
fit into Bic Round Stics.
Undaunted,
I slammed the cartridge into place, giving the pen a few encouraging
whacks on the bar of the witness box. Ink began to dribble from the
back of the pen. I tried to stem the flow by replacing the end cap,
but this succeeded only in getting ink on my hands. My frantic attempts
to wipe the ink from my hands resulted in ink getting smeared on my
face, suit, shirt, tie, the floor, the jury box, my client, and the
dog.
By
the time I finished my closing statement several members of the jury
were trying to keep from laughing. Surprisingly, however, the speech
was not a complete disaster. Opposing counsel was compelled to waive
his rebuttal, partially because he, too, was nearly overcome with mirth,
and partially because he found it difficult to stand with the dog still
gnawing on his leg. The jury returned after a short time with a nominal
verdict in favor of the plaintiff and several requests that I perform
my closing argument at upcoming parties. The Court fined me the amount
required to repair and dry clean opposing counsel’s suit.
I
learned a number of lessons from this experience. The bottom line was
that the pen-filling trick was marginally successful. The jury retired
to its deliberations and thought about something other than the plaintiff’s
case. In the future, however, I plan to refine my pen-filling procedure
so as to avoid physical damage. The second lesson I learned is that
while it is a good thing to solicit and listen to the advice of a more
seasoned lawyer, one must not follow it blindly without giving some
thought as to its application.
The
final lesson I learned was not as pleasant: ball point ink stains never,
ever, come out.
Evan Loeffler is of counsel to the law firm Harrison,
Benis & Spence, a small law firm in Seattle, Washington.
