My Strangest Day In Court: Hitting A Curveball

As lead trial counsel in a landmark case, there are numerous vignettes that are brought to mind in reflecting on the roller coaster that characterizes any trial. Although I have tried numerous complex cases, some lasting as long as six months, the one that yields a treasure trove of memorable moments is Real Estate Associates Limited Partnerships Litigation, which I tried before U.S. District Judge Dean Pregerson in Los Angeles in late 2002. The trial began in early October and concluded just before Thanksgiving with a jury verdict totaling $185 million — half compensatory, half punitive damages. At bottom, this valuation dispute that grew out of a rather pedestrian related-party asset acquisition transaction evolved into a seven-week trial with dozens of fact and expert witnesses and culminated in what still stands as the largest jury verdict in the history of the Private Securities Litigation Reform Act, which has governed federal securities lawsuits since 1995.

Of the pivotal moments during that trial, there is one that plainly qualifies as my strangest day in court. It arose more than a week into trial. We had empanelled a 12-person jury and were well into our case-in-chief. I was gauging the attentiveness and demeanor of the jurors during my questioning of our experts and fact witnesses. I had done the same thing during my voir dire and opening statement. As usual, the jurors varied widely, in terms of education, employment, age and cultural background — and most certainly, in terms of attentiveness. Some of the jurors took copious notes, others sat back passively. But all were engaged in the proceedings. One, in particular, stood out. He and his father owned a company that provided automotive safety and design expertise to auto manufacturers as well as to lawyers involved in auto safety litigation. It was apparent during jury selection that the defense team, assisted by two jury consultants, very much wanted this individual on the jury. So did my team. This juror, Juror No. 6, was the most engaged in the proceedings, monitoring every bit of action in the courtroom.

On the eighth or ninth day of trial, we were at counsel table for the beginning of that day’s proceedings when the deputy clerk said that the judge wanted to see counsel in his chambers. Upon entering his chambers, we observed that the judge had a somber countenance. He announced that Juror No. 6 had just notified the judge that the juror’s father had passed away. The judge’s reaction was understandable: he was very sympathetic for the juror and his family, but the trial must go on without the juror. I hesitated, but concurred, thinking that the juror would have so many pressing matters with which to contend — family and business were impacted by this sudden death inasmuch as the deceased was both the juror’s father and his business partner. The judge told the deputy clerk to call in the jury so that he could inform them that Juror No. 6 could not continue on the panel, and that trial would proceed apace. We returned to the courtroom.

As a trial lawyer, you make instantaneous decisions in courtrooms all the time — do you call a witness, do you ask a certain question, do you make a particular objection or argument? But that day was different — having Juror No. 6 drop off the panel could change the complexion, if not the outcome, of the trial. And once he was off, he was off — there was no ability once the trial resumed to bring the juror back. I had to balance my advocate’s concern for the class of investors I represented against the empathy I felt for a fellow human being’s tragic loss. In a matter of moments, as I walked back into the courtroom, my advocate self won out.

Immediately upon getting back to the counsel table, I said to my associate, “We have to go back into chambers.” Without waiting for a response, I informed the deputy clerk that the jury should not be brought into courtroom and that I needed to see the judge. The deputy clerk immediately complied and we returned to chambers. Judge Pregerson is a lawyer’s judge. Although he is an extraordinarily skilled jurist, he listens to lawyers and seriously considers reasonable points presented.

In chambers, I told the judge that Juror No. 6 was vigilant and attentive and I expressed the view that all parties would benefit by his remaining on the jury. I asked if there was a way we could accommodate the juror’s involvement in funeral arrangements and still allow him to remain on the jury. The judge readily acknowledged the manifest diligence of Juror No. 6. To his credit, my opposing counsel concurred with the uniform assessment of Juror No. 6.

Judge Pregerson informed us that he had the juror’s cell phone number and said he would call him immediately with us in chambers and on the speaker phone. The call was placed. Juror No. 6 answered; he said he was at the funeral home making arrangements for his father. The judge explained that the litigants were interested in knowing whether, if accommodations could be made, Juror No. 6 would be willing and able to remain on the jury. The judge added that it would be entirely understandable if the juror, under these extraordinary circumstances, chose to step away from the jury and attend to the myriad personal and business affairs that he was confronting in the wake of his father’s death.

I held my breath. Juror No. 6, in a measured tone after a moment’s hesitation, said that he very much wanted to remain on the jury, that he was prepared to see the case through to its conclusion, and that with an accommodation to allow him that day to make the funeral arrangements and a half day for the funeral, the trial would not be interrupted on his account. Judge Pregerson agreed and the remainder of the trial progressed without a hitch.

Juror No. 6 became the jury foreman.

—By Nicholas E. Chimicles, Chimicles Schwartz Kriner & Donaldson-Smith LLP (CSK&D)

Nicholas Chimicles is a partner at CSK&D in the firm’s Haverford office.

*This article was first published on March 15th 2017 on Law360 which can be found here*