Tom Wallerstein

Like millions of others, I spent Tuesday night watching television. I wished I was watching the misfit Giants win the World Series (again). Instead, I was watching America’s other favorite pastime: the presidential election. Like everyone else, I watched a giant map of the country light up in rosy red and electric blue. We tweeted witticisms to our followers, and liked our friends’ posts.

I’m sure it was nerve wracking for President Obama and Governor Romney. They had done all they could, and there was nothing left to do but smile, smile, smile. I imagine that they must have felt similar to a trial lawyer waiting for a jury to return with its verdict….

I thought back to my first jury trial, a pro bono case in federal court. My firm had been assigned to represent an indigent prisoner who was suing a state prison for violations of 28 U.S.C. § 1983. He alleged his Eighth Amendment rights were violated because the prison staff failed to adequately diagnose and treat his hepatitis. I was tasked with writing an opposition to the prison’s motion for summary judgment.

In retrospect, I don’t think my firm ever intended that I would actually win the motion. I was naïve to the economics of a law practice, and it never crossed my mind that the firm might prefer that I spend my time working on billable work. To my firm’s credit, I received nothing but encouragement, and I spent many hundreds of hours working on the matter and taking it to trial.

Ultimately, I thought we put together a compelling case. I felt confident going into closing arguments.

But we had a big decision to make. The client wanted us to ask for millions of dollars in damages. I knew we had no chance of getting that, and I was worried that the jury would resent the request and return a defense verdict. I told my client that if we could ask the jury for a much more modest amount, I thought that we had a good chance of prevailing.

Asking for millions was also against my firm’s financial interest. If we prevailed, we would be able to seek attorneys’ fees. Thus, the client’s insistence was likely going to cost not only him, but my firm as well. I asked my client if I could at least remind the jury of its prerogative to award a lesser amount, and even nominal damages, in order to “send a message” to the defendants.

Unfortunately, against my advice, the client insisted that I ask for the moon.

The jury deliberated for a long time, and the next day returned with a defense verdict. Polling the jury confirmed that we were very close, and confirmed my suspicion that we could have prevailed had our damages request been more reasonable.

***

On election night, I was remembering those tense hours I spent waiting for the jury’s verdict. It was excruciating, and yet strangely addicting. I wondered if our elected officials are driven, in part, by the same competitive urge.

The election made me think of jury trials for other reasons, too. Our presidential candidates and their parties each have their own policies and platforms which will attract or repel various constituents. But those policies will not alone determine who wins the election. The winner will be picked by the previously undecided voters in swing states. Those voters are not going to be won over by broad party platforms. Rather, they make their choice based on more subtle and elusive factors that are personal and unique to the candidates. As much as they care about tax policy, they care about which candidate they trust more, or whose values seem more in line with their own.

As a trial lawyer, I’m committed to playing the hand I’m dealt. The law and the facts often “are what they are.” Just as a wartime president running for reelection will rarely be defeated, sometimes the facts and the law combine in such a way that the result is predetermined. In that case, the lawyer can’t change that outcome. I don’t think any defense attorney alive could have won an acquittal for Jerry Sandusky in light of the evidence that was available.  

But that is the exception, not the rule. A trial lawyer in front of a jury gets to speak to a pool of undecided voters who usually can be persuaded by either side. Both sides have the same facts to work with, but a skilled lawyer can make all the difference. Many if not most trials could go either way, and the performance of the lawyers is the key. Sarah Palin was perceived very differently than was Paul Ryan, and for reasons that far surpass their policy differences or external factors like the economy.

A politician has to convince people to vote for him just as trial lawyer has to convince a jury. Personality and the art of persuasion play critical roles for both the politician and the trial lawyer. Both are limited by the facts they must confront, but rarely in either case is the outcome predetermined by the facts alone.

Both the politician and the trial lawyer have to tell a narrative story that strikes a chord and resonates, either with Joe the Plumber or Joe the Juror.

Litigators in smaller firms and boutiques often have the luxury of taking more cases to trial than their Biglaw counterparts. They can more often experience the thrill of victory, the agony of defeat, and the nervous tension I’m sure our presidential candidates felt on Tuesday.  

Some trial attorneys seem to think that each side is either objectively right or wrong, and that the jury is tasked with confirming some ethereal “truth.” But the lawyer’s task is to persuade the jurors just as a candidate’s task is to persuade the electorate. For a trial lawyer, a jury can’t be wrong.

Even before I went to law school I was puzzled that Marcia Clark said the jury in the OJ Simpson trial was biased, or got it wrong. It was her job to persuade the jury, pure and simple. Even if the jurors all had certain preconceived viewpoints — and I don’t know that they did — it was the job of the lawyers to understand those viewpoints and to convince the jurors. Complaining about the makeup of the jury makes about as much sense as would presidential candidates complaining about the demographics of Ohio or Florida voters.

Having failed to unseat a president perceived as vulnerable, Romney supporters are experiencing the same shock that Kerry’s supporters experienced in 2004. I hope those who are disappointed with the election results can calm their rage and stop denigrating the electorate by accusing it of making the wrong choice. Both candidates knew what they had to do to win, and precisely who they had to persuade, and they had all the resources they needed to do that.

When a lawyer loses a jury trial, he will gripe that one or two particular jurors were idiots, or were biased, or whatever. With a jury of millions, even that lame excuse isn’t available for our presidential candidates.


Tom Wallerstein lives in San Francisco and is a partner with Colt Wallerstein LLP, a Silicon Valley litigation boutique. The firm’s practice focuses on high tech trade secret, employment, and general complex-commercial litigation. He can be reached at [email protected].


comments sponsored by

16 comments (hidden for your protection) Show all comments