the air for emphasis, shook it and said, “this is too many witnesses, you need to lose about half of these.” (It was terrifying in the moment, but, in retrospect, obviously sage advice, which he doled out equally and perfectly to both sides.) I knew we might close on Wednesday instead of Thursday and I made difficult decisions about where to allot my free time late Tuesday evening, facing the daunting tasks of working more with my client’s wife (and in my opinion the most important damages witness who I needed the jury to connect with) who was terrified to testify; preparing to cross defense’s only witness, a medical doctor and toxicologist who I knew little about, but had a stack of unread but perhaps useful published articles and treatises that might just contain the key to my success therein; and putting on paper the closing I felt ought to come out almost intuitively, but I knew might not. I also knew I might just get the extra day I needed and probably put a little too much stock in that hope. Ultimately, and somewhat begrudgingly, I chose to put in the work to make sure the wife was comforted, comfortable and ready to testify in the compelling fashion I knew she could. I’m glad I did this, because she was truly wonderful on the stand, in no small part because she was able to get past her anxiety late into the evening — but other balls were dropped as a consequence and I ultimately threw in the towel with about a 65% rough plan for closing. In any case, as I grappled with the simple question of “today or tomorrow” in chambers, I desperately did not want fear to be the motivating factor and feigned an ambivalence, at which point the Judge proposed, “or we could let the jury decide,” to which I apprehensively but readily assented. One lesson from my clerking days is that it is of utmost importance to respect a jury’s time and its wishes. When the answer was, “let’s go,” my stomach fell, but I thought, “if they want it, they must be ready for it,” and tried to keep the faith. I halfheartedly tried to bolster myself with thoughts like, “maybe they already know, maybe if they were listening carefully, it doesn’t matter what I say at this point, if we’ve done our job, maybe I don’t have to say anything. . .” It certainly wasn’t all bad. Despite the insidious doubt that takes over your mind in the wake of an imperfect performance, we gave the jury what they needed. I hit important points in closing, but it wasn’t as passionate or as compelling as one would hope, and I quite frankly fell off the map somewhere around damages and sort of petered out with some inaudible thanks to the jury for their obvious attention throughout. Thankfully, my co-counsel Ron Cheng came with all the enthusiasm in his rebuttal close and likely woke everyone up again. This far off, it’s kind of amusing to think about — but it’s so much easier to say that Stories That Linger continued from p. 45 46 Trial Lawyer | Fall 2024
RkJQdWJsaXNoZXIy Nzc3ODM=