Lesson Number One for Trial Lawyers

Tell me a fact and I'll learn. Tell me a truth and I'll believe. Tell me a story and it will live in my heart forever.   Indian Proverb

You could write a book about the things they don’t teach you in law school.  Once you begin working in a legal practice as a law clerk, and later as a lawyer, you learn more.  Trying cases to a jury is a whole other story.  The education never ends.  You never know it all.  There is at least one lesson in every case.

My first trial was in Federal Court.   It was toward the end of 1981, my first year in practice.

James A worked for the Federal Reserve Bank in New York City as a Bank Examiner.  He would occasionally travel out of town to conduct audits of banks.  In December 1978 He was doing exactly that in Rochester New York.

            One of the senior bank examiners that he worked with was retiring.  On Saturday evening, there was a retirement party being given for him at a floating restaurant known as the Robert Fulton which was located where the South Street Seaport is now.

            James returned to the City for the weekend so he could attend the retirement party for his friend.  The bank had a facility near the restaurant where he was able to place his luggage in a locker during the party.  This was not the same location where James’ office was.

            During the evening, James became very drunk.  So much so, that a security guard was called to remove him from the restaurant.  Unknown to any of the partygoers, and certainly unknown to James, the guard on duty that evening had a criminal record for violent crime.  He handcuffed James behind his back and removed him from the restaurant.  Tragically, he also took the opportunity to beat James about the head and face.  While James was attempting to escape, he fell off of the dock and into the river.   By the time he was pulled from the water, his life was over.

            The bank provided its employees with a policy of travel accident life insurance.  The policy provided that the coverage was in effect when an employee traveled on the business of the bank including any sojourns, until the employee returned to his or her regular place of employment.  The benefit was $45,000.00.

            The insurance company denied coverage on two grounds; first, that James had returned to New York, and second, that this death resulted from his own unlawful conduct.

            I became involved in the case before I was admitted to practice while I was a law clerk at the law firm I was working for.  The senior associate gave me the assignment of making a motion for summary judgment based upon the policy.  Even if we won, we would still need a trial on the second cause of action which alleged fraudulent conduct on the part of the insurer and sought punitive damages.

            The motion was denied.  By the time the case was reached for trial, I had been admitted to practice.  I suppose in retrospect that the firm did not have great hopes for the punitive damages cause of action.  Since the value of the case was limited by the policy amount, and since I was familiar with the file based on having prepared the motion papers, I was assigned to try the case.

            There really was no contest on the punitive damages part of the case.  James’ brother, George worked in the insurance business.  He was the only witness called to support the claim of fraud.  In New York, to recover punitive damages, you must prove not only that the defendant defrauded you, but that the conduct was part of a larger scheme to defraud the public at large.

            As for the claim on the policy, we really should have won the motion for summary judgment.  The party who drafts a contract will have ambiguities interpreted against their interests.  James had not returned to the building where his office was, so there really was no question of fact – he was on a sojourn during business travel and the coverage applied.

            The jury – which was basically selected by the Judge (because we were in Federal Court) – found in our favor on the policy and against us on the punitive damages claim.

            The hours of waiting for the jury’s verdict are tense.  You cannot read.  You cannot concentrate on work or puzzles or much of anything.  If you are lucky enough to be in a courthouse where you know people, you can pass the time in idle chatter.  You might stop into another courtroom to observe what’s going on, but you also don’t want to be unavailable if the jury has a question or a verdict.  You don’t feel like eating.  So you pace. 

While our jury was deliberating, George and I were pacing together in the Courthouse halls.  He was a very nice guy and my only companion during the trial.  He was very complimentary while we were waiting, and I know he meant no offense, but shortly before the jury announced their verdict, he revealed to me his philosophy for finding good legal representation.  “I always said, if you want a good lawyer, find yourself a hungry Jew.”

            It was jolting at first.  Fortunately, there have been very few times in my sheltered life that I was aware of somebody perceiving me as a “Jew”, let alone mentioning it to my face.  In his mind he was paying me a compliment much like Archie Bunker boasting about his lawyers; "Rabinowitz, Rabinowitz and Rabinowitz – the Killer Jews."  

            After the trial, I was briefly congratulated by the senior partner in the firm.  He told me that I had done a good job then added “All of the great trial lawyers lose their first case”.  Now you tell me?!. 

            Oh well, if you want to be a trial lawyer, you’ve got to have a thick skin.   Lesson learned.