As a lawyer with several years’ litigation experience, I do not think of myself as a mere novice in the courtroom. I recognize, however, that I can always learn a thing or two from my colleagues, so I try to remain open-minded when people give me advice. I have learned over the course of years that some advice from older lawyers, however well intentioned, is not of use to today’s younger practitioner. This was most recently demonstrated when I heeded the advice of a respected and successful litigator.
“When you have a losing case with suspect facts, the most important thing to remember when addressing the jury is to command their attention,” the aged litigator said to me. “If they’re not listening to your summary, they’re not going to be thinking about the facts the way you want them to during deliberations.”
This seemed to me to be good advice, so I asked him if he had any tricks of the trade he would be willing to share. The lawyer smiled and indicated his pleasure at being asked by ordering another round of martinis and picking up the check.
“The best way I have found to arrest the jury’s attention during a long closing argument is to refill my fountain pen,” he said. He explained then how he had perfected a technique of waving his trusty Mont Blanc to hypnotize the members of the jury. Once they were all watching the pen, he would proceed to dismantle it, produce an inkwell, fill the pen and put it back together without either spilling a drop of ink or missing a beat in his speech.
“It never fails,” he stated. “The jury is mesmerized by the operation, and they’re impressed as all get out. The key is to continue speaking as if nothing is happening.”
I was then in the midst of a case that was a likely candidate for trying this procedure. I was defending a client in a dog bite case in which my client’s bull terrier had gotten away from him and bitten the plaintiff, who had been innocently poking at it with a sharp stick. Opposing counsel had a won a preliminary injunction to leave the dog still attached to the leg of the victim. I had argued unsuccessfully that this would be unnecessarily suggestive to the jury. During the trial the testimony of the victim had been punctuated by her screams of agony each time the dog shifted its position. I needed some way of diverting the attention of the jury from the animal, and this pen-filling trick seemed to me to be as good an idea as any.
The problem was that I did not own a fountain pen. I researched the issue and determined that purchasing one was out of the question because a well-made pen costs hundreds of dollars, something in remarkably short supply in my office. Moreover, I found that fountain pens are far too complicated for me to use. I decided, therefore, to modify my learned colleague’s advice slightly and substitute his fountain pen with my ballpoint.
I was ready when it came time for my closing argument. When opposing counsel had finished his summation and given the terrier a nudge to elicit another yelp of pain from his client, I rose to my feet and began to speak.
“Ladies and gentlemen,” I said, removing my Bic™ Round Stic from my breast pocket. “Keep in mind that it was the plaintiff, and not my client, who set the train of events in motion that ended with her being bitten.”
I proceeded to outline our version of events and argue our side of the case. While doing so, I removed the cap of the pen and found I was unable to separate the writing nib from the plastic tube. Continuing with my speech, I replaced the cap and, with my thumbnail, removed the plastic cover from the end of the pen. This I accidentally dropped, requiring me to break eye contact with the jury while I went down on my hands and knees to retrieve it from under the opposing party’s table. The dog yipped in pain when I crawled over its tail, and bit down harder on the plaintiff, causing her to howl. I didn’t miss a beat in my speech.
Unfortunately, I still was not able to remove the ink cartridge from the pen. I returned my attention to the working end of the writing instrument and finally managed to remove the ink cartridge by placing the writing nib in my mouth and using my teeth to hold it in place while I pulled the rest of the pen free. This caused some of my speech to become somewhat garbled, as I found it difficult to enunciate words like “culpability” with my teeth clenched around the pen. Nevertheless, I forged ahead with my argument.
I was pleased to observe by this time that I had definitely arrested the attention of the jury. Each of them had fixed me with a quizzical stare. They continued to regard me thusly as I produced a package containing two replacement pen cartridges from my breast pocket and attempted to open it. This proved to be extremely difficult, as the manufacturer had seen fit to have the objects vacuum-sealed into a nearly impregnable cocoon of plastic and cardboard.
After struggling to open the package for some time I attempted to open it by ripping it down the middle, which succeeded in flinging the two cartridges in opposite directions. One of the cartridges embedded itself in the wall behind the jury box. The other cartridge hit the plaintiff who, startled, fell out of her chair and landed on the dog. The dog in its surprise released its grip on the plaintiff. Objecting to this change in the status quo, it searched out and sank its teeth into the nearest object it could find. This turned out to be plaintiff’s counsel, who loudly voiced his displeasure and distracted me from my speech.
“Counsel,” said the judge. “During your closing argument I have observed you assault opposing counsel, the plaintiff, the jury, and cause damage to exhibit ‘A.’ I am giving you fair warning that I will hold you in contempt if you assault the Court or any of my staff.”
I assured the judge I would do no such thing and resumed my remarks to the jury. I had retrieved the ink cartridge from the plaintiff by this time and, while discussing such lofty concepts as the burden of proof, attempted to insert it into the empty pen. It was at this point I encountered an unforeseen obstacle: Cross™ replacement ink cartridges don’t fit into Bic Round Stics.
Undaunted, I slammed the cartridge into place, giving the pen a few encouraging whacks on the bar of the witness box. Ink began to dribble from the back of the pen. I tried to stem the flow by replacing the end cap, but this succeeded only in getting ink on my hands. My frantic attempts to wipe the ink from my hands resulted in ink getting smeared on my face, suit, shirt, tie, the floor, the jury box, my client, and the dog.
By the time I finished my closing statement several members of the jury were trying to keep from laughing. Surprisingly, however, the speech was not a complete disaster. Opposing counsel was compelled to waive his rebuttal, partially because he, too, was nearly overcome with mirth, and partially because he found it difficult to stand with the dog still gnawing on his leg. The jury returned after a short time with a nominal verdict in favor of the plaintiff and several requests that I perform my closing argument at upcoming parties. The Court fined me the amount required to repair and dry clean opposing counsel’s suit.
I learned a number of lessons from this experience. The bottom line was that the pen-filling trick was marginally successful. The jury retired to its deliberations and thought about something other than the plaintiff’s case. In the future, however, I plan to refine my pen-filling procedure so as to avoid physical damage. The second lesson I learned is that while it is a good thing to solicit and listen to the advice of a more seasoned lawyer, one must not follow it blindly without giving some thought as to its application.
The final lesson I learned was not as pleasant: ball point ink stains never, ever, come out.
Evan Loeffler is of counsel to the law firm Harrison, Benis & Spence, a small law firm in Seattle, Washington.