My foes? The lawyers you see on billboards—advertising lawyers—the ones who talk juries into awarding big bucks for coffee spills. I’m a defense lawyer in trial right now. I’ve lost two trials in a row and my reputation’s foundering. I must win this one. A trial lawyer may have brilliant skills, but a winning rep underpins the practice. Without it, one sits in a posh office staring out the window trying Mitty-like cases, going broke. Beyond that selfish reason, I’ve got to win for Dr. David Cooper, my client. He’s being sued for millions. I don’t believe he’s committed medical malpractice, but my gut tells me we’re losing.

Dr. Cooper and I are sitting at counsel table in an old courtroom, built in the thirties, watching opposing counsel, Miranda Fuentes, standing at the lectern facing the jury. She’s tall and poised, dressed in a well-tailored black suit, complemented with a scarlet scarf. My pre-trial inquiries revealed she’s won her last four trials. She’s arguing her case to the jury.

She turns and scowls at Dr. Cooper. His hands move to his chin and partially cover his mouth. He’s on edge. For good reason. A big verdict would destroy his reputation. And still being in debt from medical school, it would destroy his young family’s finances. I picture him when we first met, seated in my office, hands clasped, the same look of fear on his face. His wife, Denise, was sobbing when she went to check on their two-year old twin daughters who were being entertained by my secretary in our waiting room.

Fuentes raises her right arm, extends a slender index finger targeted at Cooper, and announces with the conviction of a fundamentalist preacher, “That man put my client in a wheelchair for the rest of her life.”

Dr. Cooper looks at me. I read his eyes: “Do something!” But there’s nothing I can do. During closing argument you have to sit stoically while the other lawyer talks to the jury. I hate it. You can object to inappropriate argument, but my opponent hasn’t used any. Some lawyers object solely to disrupt the other lawyer’s pace or nerves. Not my style.

My arms are resting on the bold-boned mahogany table. Spread out in front of us are my computer, trial notebook, rule book, and yellow legal pads. Straight ahead, seated behind a lofty bench, is the Honorable Louise Pomeroy, a strict but fair judge, wearing a traditional black robe. To our right is opposing counsel’s table, beyond which is the jury, separated from the rest of us by a wooden railing. The smell of polishing wax wafts off the old heart-pine floor. The high, white plaster ceiling, with its feather-pattern imprints, reflects craftsmanship long gone. It’s a courtroom where I sense the ghosts of trial lawyers past are watching us. A moral force emanates from behind the judge where there’s a faded mural of the Lady of Justice. I wonder who she’ll slay with her sword today.

Ms. Fuentes, a smart, aggressive litigator, seems unfazed by the rigors of the past six days of hard-fought trial. She’s presenting the first half of her argument. In civil trials, plaintiff’s counsel argues first and last, and defense counsel has one argument in between. This is because the plaintiff’s attorney has the “burden of proof,” having to prove her client’s allegations.

She gestures toward her client with an open hand and dons an expression like she’s pointing out a starving orphan. “Mrs. Lissanti will never again be able to pick up her grandchildren.” The jury is listening intently. They appear concerned, even angry.

All seven jurors, one being the alternate, take quick glances in the direction of Ms. Lissanti, as if they aren’t sure they’re allowed to look away from Fuentes. She’s dominating their attention like an accomplished thespian in a single-actor play. Fuentes is pounding us with the strongest part of her case: the injury and damages. She has a dream client if you’re the lawyer doing the suing. Ms. Lissanti is the archetypical grandmotherly plaintiff, and she’s lost both legs. My client is the surgeon who allegedly caused that to happen. Ms. Lissanti is sitting in a wheelchair. Dr. Cooper is sitting in a smart suit.

Accompanying me to trial today, as they always do, are my inescapable inner voices: Atticus, my encourager, who’s like my hero lawyer from To Kill a Mockingbird, the book that led me to become an attorney, and Hutz, who is similar to Lionel Hutz, the derelict lawyer from The Simpsons. My Hutz sees trials as games with jurors to be manipulated. He preys upon my doubts about the legal system and myself. Hutz mutters that I’m in over my head. 

I’m listening to Fuentes, but my eyes have drifted to the listless gray clouds outside the palladium window high to our left. Fuentes is halfway through the first part of her argument, and then it will be my turn. Despite sixteen years of litigation and over fifty trials, I’m uneasy in my chair and I fidget with my pen. That’s not unusual. I’m always edgy before closing argument. But a shudder grips me. That never happens. “It’ll be three straight losses,” Hutz points out. Is it the losing streak that’s bothering me? No. I suspect it’s because I’ve broken a personal rule. I’ve grown to care about Dr. Cooper. He’s an exceptional physician. But, more than that, he’s devoted to his patients, his family, and his community. He didn’t tell me this, but I learned he provides countless hours of free medical services to the poor.

Fuentes shakes her head. “And he promised her everything would be fine.”

Dr. Cooper passes me a note. I move it to my lap and discreetly take a peek. “Not true. I told her I’d do my best. I’m scared to death!”

Fuentes faces the jury and says, “Ladies and gentlemen, how would you feel if you were wheelchair bound the rest of your life?”

There it is. She crossed the line. I stand quickly. “Objection, Your Honor.”

“Sustained,” comes from Judge Pomeroy without hesitation.

A lawyer can’t ask the jury to place themselves in the shoes of a party. Trial lawyers know this as the “Golden Rule.”

Atticus congratulates me.

There’s no doubt in my mind that most jurors try to do the right thing and believe that they will deliver justice if only they can uncover the truth. I also think they focus on the lawyers in that search. Despite the witness testimony and physical evidence from which they’re supposed to discern the truth, they’re primarily watching the lawyers. They assume both lawyers know the truth and believe one of them is the “truth-giver” while the other is a deceiver trying to fool them. Of course, it’s never that simple, but I’m convinced that’s how the typical juror thinks. I’ve learned that the facts of a case aren’t identical to the truth. In a courtroom, truth is comprised of facts processed with judgment. If my client is blameless, my job, as I see it, is to bring out the facts that favor my client so the jury can find the truth: my client’s innocence. That’s how we arrive at truth’s sibling, justice.

Because jurors are scrutinizing, a trial is an event where anything a lawyer or a client does might influence a juror. That’s why I’ve asked clients to take off showy jewelry, sunglasses, and even a shirt before heading to trial. As for the shirt, I’d advised a well-known corporation’s representative to wear to trial something he’d wear to a job interview. He appeared at my office the morning of trial in a polka-dotted shirt, one with a black background and yellow dots. One of my partners surrendered a shirt to him that day. Ever since, I’ve kept three light-blue dress shirts hanging on the back of my office door, a small, a medium, and a large. I consider Dr. Cooper; maybe his suit is a little too nice.

Plaintiff’s counsel takes a step back from the lectern and again dramatically points toward my client. “We’ve proven beyond any doubt that Dr. Cooper recommended the surgery and operated on my client’s legs, and then she lost them both. And it’s because of him that Mrs. Lissanti will be handicapped and forever dependent on others.”

“How true!” says Hutz.

Dr. Cooper hyperventilates. Seeking a lifeline, he turns toward Denise, who’s sitting in the courtroom gallery. She’s among the many spectators who often gather to watch closing arguments. I guess it’s cheap entertainment. I, of course, warned Dr. Cooper ahead of time what to expect, but hearing an explanation in a comfortable office and having someone accuse you in open court of botching a surgery are two entirely different matters. All I can offer the man is a nod of assurance—one that may be a facade.

On the drive to my office today, I rehashed my closing argument. Atticus and Hutz debated its effectiveness. Then, like when sleep steals you away, I was back in my teenage daydreams plotting trial tricks I’d read about. Things such as nudging a large book incrementally toward the edge of counsel table, letting it teeter on the edge to distract the jury while the other lawyer spoke, or even allowing it to drop to the floor, startling everyone. This excited Hutz, who encouraged me to do it, but I now view such things as unprofessional.

This is why I’m surprised when I hear Fuentes accuse me of dirty tricks. I can object but don’t. I have a better idea. I sit silently as she accuses me of all sorts of shenanigans.

With about a minute left before I’m to speak to the jury, I close my eyes and hope I will have “it” today. There are times when the argument is effortless. Words flow as easily as when singing along to a familiar song. Other times, however, it’s not so easy. I know what I want to say, but the words have to be found. And while they can be persuasive, they don’t seem as natural. When it’s easy, I feel like the truth-giver, and I believe the jurors feel that too. So today, I too am seeking the truth-giver—the truth-giver in me. I’ve won every trial when I’ve become the truth-giver.

I hear Fuentes say, “It’s like in those movies about the Civil War.” Where’s she going with this? I sense it won’t be good, and my leg muscles tense, ready to stand.

She then says, “Dr. Cooper should be nicknamed Sawbones for the way he sawed off Mrs. Lissanti’s legs.”

I’m up. “Your Honor, this isn’t a fair comment and—” Judge Pomeroy interrupts me and says, “I agree. The jury should ignore that last statement. Please move on, Ms. Fuentes.”

Fuentes never looks toward the judge and stays focused on the jury. Her voice becomes louder. “My client and I thank all of you for your kind attention, and we’re confident you’ll do the right thing and render a verdict for Mrs. Lissanti in the amount of one-hundred million dollars.” She smiles at the jury, turns, and brandishes disdain toward me as she walks back to her seat.

The judge looks at me. “Counselor.”

“This is what trial lawyers relish.” It’s Atticus speaking. “All eyes are on you. This is your moment. This is why you endured law school, grunt work as an associate, and countless nights arriving home after dinner or after the kids were asleep. It’s time to save the day. Go get ’em champ!”

I stand, give Dr. Cooper another nod, and fasten the top button of my dark-blue suit jacket. Hutz starts to say something, but I ignore him and say to the judge, “May it please the court?”

At the lectern, I face the conscience of the community, the somber-faced souls who will dispense justice today. I must win for justice to be done. That’s why I’m so anxious. Maybe justice wasn’t on my side during my last two trials—my clients were arguably negligent. But Cooper wasn’t, and to do honor to my profession, Dr. Cooper, and Lady Justice, I’ve got to persuade this jury that I’m the truth-giver.

I lay my notes in front of me. Here we go.

The “Sourpuss Seven” get my warmest smile. There’s no hint of a grin in return. “They’re suspicious of you,” comes Hutz’s chilling words. He may be right.

“You’re the truth-giver,” Atticus says.

Grabbing the other edge of the lectern, I blink hard, and force myself to a state of complete composure. I begin. “Folks, during her argument, Ms. Fuentes accused the defense, and specifically me, of what can only be described as underhanded tricks.”

Fuentes jumps to her feet. “Your Honor, I object. It’s improper for him to raise this subject.”

I turn and calmly address the judge in an authoritative but matter-of-fact tone. “Your Honor, everyone sitting in this courtroom today knows I didn’t raise this subject. Ms. Fuentes did. It’s only fair that I respond. She opened the door.”

Fuentes doesn’t give up. She starts to speak, but the judge raises a hand toward her and says, “Yes, she did. Objection overruled.”

I turn back to the jury. “Ms. Fuentes took issue with me for making objections, offering irrelevant evidence, and making improper statements in your presence. This simply is not true. There are courtroom rules and I followed them. We have an excellent judge, and it’s common sense that she’d never allow either lawyer to do things in her courtroom that are so improper.” I gesture toward the judge, and to my surprise, and delight, she smiles.

I’m attempting to undermine Fuentes’ credibility and the impression she might be the truth-giver.

“And further, Ms. Fuentes has accused us of trying to minimize Ms. Lissanti’s injury. We haven’t done that at all. And to leave no doubt, I stand before you, and right here and now, say that Ms. Lissanti has sustained a tragic, life-changing injury.”

Who else would admit that other than the truthful lawyer? That’s what I want the jury thinking right now.

I pause to gather my thoughts.

Oh no! What’s happening? I don’t know what to say next. I try not to panic, but in my head I’m scanning a dark abyss. The world ends at the four walls of this ancient courtroom. And everyone inside that world, the judge, the jury, Fuentes, the gallery, Denise, my client, and those trial lawyers from the past, are all waiting for me, for my next words—none are queued. As I frantically search for inspiration, I’m inexplicably distracted by a cold drop of sweat tracing my spine. As I take a desperate deep breath, I notice two jurors staring toward Fuentes. What’s going on?

Wham! It’s loud. It startles me. And the five jurors who aren’t looking toward Fuentes flinch. I pivot to see Fuentes picking up a very large book from the floor. It’s Black’s Law Dictionary. When I’d said hello to her this morning, I noticed that book on her table and wondered why she’d brought it. That book, while sometimes useful in an office, is rarely useful at trial. She brought it to drop it.

A cloud in that other world outside must be moving. A sliver of gilded light coming through the pallium window illuminates my argument notes on the lectern. There’s a warmth on the back of my neck. “The argument is begging to be made,” Atticus says.

 I give Fuentes a knowing grin, and she looks away. I’m ready.

 When I turn back to the jury, I give them a soft smile, but then assume a serious expression and pause a moment to signal I’m about to say something important. “Although we agree Ms. Lissanti suffered an injury, we disagree with Ms. Fuentes on two important things. The first is her asking you for an amount of money befitting a Powerball lottery.” One juror chuckles slightly and quickly covers his mouth. Good sign.

I continue. “And the second thing, the more important one—the evidence shows that Ms. Lissanti’s injury is not the fault of Dr. Cooper.”  The words are lined up and flowing. I review for the jury all the evidence presented during the trial that shows Dr. Cooper wasn’t negligent.

When I hesitate a second, Atticus interrupts, and whispers to me, “Abandon the notes, and close from the heart.” I step from behind the lectern and take a couple of steps closer to the jury, leaving my notes behind. I look into the eyes of the woman juror I sense will be elected jury foreperson.

“Here’s what actually happened. Dr. Dave Cooper attended four years of college and four years of medical school, where he graduated number one in his class. He had more training during a year of internship and even more as a resident in orthopedic surgery. He has over ten years experience doing surgeries and is board certified by his peers. He’s recognized by the medical community as an outstanding surgeon.”

I now shift eye contact among the rest of the jury. “And despite all of this training and experience and his very best efforts, he simply was unable to save Ms. Lissanti’s legs. They were too badly mangled in the horrendous car accident. Sometimes good results are nearly impossible. Dr. Cooper explained this to Ms. Lissanti before the surgery. They both understood that.” I pause, then again address the likely foreperson. “The truth of the matter is that, unfortunately for Ms. Lissanti, no one—not Dr. Cooper, not anyone—could have saved her legs that day. Sometimes, without anyone’s mistake or anyone’s fault, bad things happen.” That juror gives me the slightest nod. Done.

I thank the jury for their service and walk back to my seat. Dr. Cooper is staring at me. Without speaking or moving, he’s saying, “Thank you.”

I smile to myself. I’m him. I am the truth-giver. I’m certain we’ll win. Atticus is beaming.

 

Previously published: Cleaning Up Glitter, vol. 1, issue 4, Aug. 2019