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September 01, 2018 Feature

The Trial Lawyer : What It Takes to Win

An examination of the tactics used in two winning cases.

David Berg

Download a printable PDF of this article.

“At the end of your life you will never regret not having passed one more test, not winning one more verdict, not closing one more deal.”

—Barbara Bush, commencement address Wellesley College, 1990

Well, Barbara was wrong about that. With apologies to the late First Lady, even now, fighting against the ineluctable tide, I find myself eager to put aside the paperwork, tee it up, and try to win one more verdict.

When I began practicing, during what some now call the Golden Age of Jury Trials, I would station myself in the green-tiled cafeteria of the Harris County Criminal Courthouse, just to bump into Richard “Racehorse” Haynes, who was then in the process of becoming the most famous lawyer in America.

I wanted to be as famous as he and just as good in the courtroom. I wore cowboy boots, as did he, and a Stetson to the courthouse, just as he did. (One glance, and he said, “Berg, you look like a thumbtack”; I never wore a cowboy hat, or even a baseball cap, again.)

My law license opened doors I never dreamed of, most notably those of the Supreme Court, where I argued and won a case when I was 28, less than three years into practice. I have hung around great lawyers and learned much that I have put to use in the courtroom. I spent nearly two years reading most of the 25,000-page transcript of the 1985 Pennzoil v. Texaco case and studying how the late Joe Jamail, a man possessed of extraordinary trial skills, won a $10.53 billion verdict.

In 2017, at age 75, I won a jury trial, my skills further elevated by reading about Jamail’s. What a great profession!

I often find myself thinking about those early days of practice, when I drove from county to county over dusty Texas roads, trying cases in aging state courthouses and then in gleaming federal courts. Years passed. I started trying civil cases. And now I find comfort in the fact that I have tried virtually every kind of civil and criminal case there is, and that I, as you, have helped many people, all because of this license and the life it opened for me.

I also find myself thinking of those years and that golden age as an era that will never come again. It didn’t occur to us that it might end. Now, it essentially has.

I have seen the great right of trial by jury in civil cases all but destroyed by this abiding slander: Jurors are not to be trusted; they are too stupid to get it right.

While not the only reason for the vanishing jury trial, it is the one that has burrowed itself into the consciousness of the public and, with far greater consequence, the judiciary—including the Supreme Court, which has, with little opposition even from liberal justices, invented one new procedural hurdle after another to make it all but impossible for a trial lawyer to seat a jury and proceed.

As a young man, I read the speech John Steinbeck delivered in Oslo when he accepted the Nobel Prize for Literature. “I roar like a lion with pride in my profession,” he said. I have felt that way forever. My wish is that others will see the practice the same way—some for the first time; others perhaps once again. Take it from me: Even as my briefcase grows heavier, I still find comfort in announcing “Ready,” a jury in the box and a witness taking the stand.

There is a life unto itself in the well of the courtroom, one truly worth living. But these days, I have a second—I hope, loftier—aspiration: I want to share what I have learned with future generations of trial lawyers.

The first lesson is perhaps the most important: A good trial lawyer must be an effective cross-examiner. The reason is simple. In every civil trial, each disputed element of a claim, counterclaim, or affirmative defense arises from differing versions of the facts and is a question resolved by jurors. Powerful cross-examination can resolve those questions in the examiner’s favor, whether explicitly or impliedly.

The most effective way to make that happen is to cross-examine with words and phrases that will appear in the questions the jury will have to answer to reach a verdict. That is true whether you are impeaching with prior inconsistent statements, confronting with damning documents, or simply outwitting the witness. Once the jurors see those questions in writing, they will understand why you asked what you asked and the answers that you want them to give.

Of course, it is not always possible to elicit damning admissions. Still, that should always be the goal. There is nothing more persuasive than proving your case out of an opponent’s mouth.

The best way to see this is to look at successful examples. Let’s look at excerpts from the trial transcripts of Pennzoil v. Texaco and my own 2017 jury trial, which I won on behalf of one of my closest friends, the artist John Alexander, and his business partner, friend, comic genius, and entrepreneur, Dan Aykroyd. Let’s start with a case of vodka.


The Case of the Skull-Shaped Bottle

Alexander, a renowned landscape artist, had an idea—an idea totally out of keeping for a serious artist. Although he lived and worked in New York City since the late 1970s, Alexander grew up in Beaumont, Texas, where he was influenced primarily by a love of nature but also by the images of the Mexican Day of the Dead, including the calaveras, a skull-shaped candy.

His idea was to sell tequila in a skull-shaped bottle. He shared his idea with Dan, who owned the Patron license for his native Canada. Aykroyd loved Alexander’s idea, but he would not sell tequila in the bottle because of the conflict with Patron. So the two men settled on selling vodka.

Two years later, in September 2008, the company they formed, Globefill, brought Crystal Head Vodka to market, the first skull-shaped bottle ever used to sell an alcoholic beverage. Two years after that, in December 2010, Kim Brandi’s company, Elements, brought out KAH Tequila, also in a skull-shaped bottle.

Litigation ensued. Globefill accused Brandi of infringing on its trade dress—the skull-shaped bottle. At trial, Brandi claimed she completed the design of her own skull-shaped bottle in 2009, but knew nothing about Crystal Head Vodka. She alleged that, like Alexander’s design, her design was inspired by the calaveras holiday treat.

Globefill, under prior counsel, lost at trial. To their credit, on appeal the verdict was reversed. My firm retried the case in 2017, which was replete with the kind of admissions described above—those that answered the jury questions—as well as three actual Perry Mason moments, the result of hard work by determined colleagues and the information they dug up before and during trial.

There were two jury questions at trial. The first asked if the defendants used their skull-shaped bottle in a manner that was likely to cause confusion among ordinary consumers about the “sources, sponsorship, affiliation or approval of the parties’ goods.” If the answer to that question was yes, then the second question asked if the defendants infringed willfully or intentionally.

The remedy for a finding of simple infringement would be a much-needed, value-adding injunction precluding the defendants from manufacturing or selling any alcoholic beverage in a skull-shaped bottle. That would shut Elements down and scare off a growing list of infringers. But if the jurors also decided that the defendants had infringed willfully or intentionally, Globefill would be entitled to disgorgement of Elements’ profits and, possibly, depending on whether our case was also “exceptional,” a recovery of attorney fees.

In the first trial, the defense set the agenda, emphasizing the differences in the bottles and arguing that no consumer would buy a bottle of Crystal Head Vodka thinking it was KAH Tequila or vice versa. Globefill’s lawyers denied it, arguing that the bottles were so similar that consumers could make that mistake.

Were they right?

In looking at the bottles, the answer is pretty obvious. The bottles do not appear at all alike—at least on the surface. Brandi had, in a manner of speaking, reverse-engineered the Crystal Head bottle, altering its appearance in so many ways that a reasonable consumer was never going to be confused about what was in the bottles. Standing in a liquor store to buy KAH Tequila, no one would walk out with Crystal Head Vodka by mistake instead.

During opening statement, I reversed course and made that winning defense argument about the bottle’s differences myself. But, I told them, we were not in court because of the differences in the bottles, rather because of their similarities. Brandi intentionally had copied Crystal Head’s unique skull shape to make it appear that KAH and Crystal Head were part of the same family of products for a single purpose—to capitalize on Crystal Head Vodka’s hard-won goodwill, branding, and skyrocketing sales.

Alexander was our first witness. He testified, through an artist’s eyes, that in the bright lights of the courtroom, the differences in the bottles were obvious; but in darkened bars and on crowded liquor store shelves, where they were often displayed side by side, their skull-shapes were obvious, and that many people had congratulated him on adding KAH Tequila to the Crystal Head brand.

The transition from Alexander’s direct to Brandi’s cross-examination suggested itself. The starting point was proximity:

Q: Ms. Brandi, isn’t it a fact that not long after KAH Tequila came on the market, you often saw the KAH Tequila bottle and the Crystal Head bottle displayed side by side?
A: I have seen them displayed side by side.
Q: Did you ever see them in liquor stores where they are displayed side by side?  
A: I have seen it in pictures many times. I have been to an event where they were both displayed there, both bottles, yes.
Q: Did you ever object to anyone that these bottles were being displayed side by side?
A: No.
Q: And that was because you liked that association of those bottles, isn’t that true?
A: That’s not the fact.
Q: You disapproved of the bottles being side by side?
A: I did not.
Q: Isn’t it a fair statement to say, that when . . . KAH Tequila [was displayed] next to Crystal Head Vodka, that KAH Tequila benefited from that association?
A: I really don’t have a comment either way. I don’t have an opinion either way, whether it would or would not.
Q: Well, let me ask you this: Did any consumer ever say to you they thought the KAH Tequila bottle—your bottle—looked like the Crystal Head bottle?
A: No.
Q: No consumer ever said that?
A: No.
Q: Do you recall being asked the identical question during your deposition?
A: Yes, I do.
Q: I want to be fair. So let me ask again. Has any consumer ever told you that they thought that the KAH Tequila bottle looks like a Crystal Head Vodka bottle?
A: No.

We then played this clip from Brandi’s deposition, under questioning from her own lawyer:

Q: Has anyone ever told you that they thought the KAH bottle looked like a Crystal Head Vodka bottle?
A: Yes.
Q: Who told you that?
A: Some consumers.
Q: When?
A: Sometimes I’m out in the market talking about the tequila, and they’ll say—will say, the crystal skull? That’s what they’ll say. But they actually don’t see it like in front of them. They won’t see KAH. So if I was saying, “Well, oh, I created the skull-shaped Tequila . . . .” And if we talk about it, they’ll say, “Oh, the skull one? The crystal skull one?” So sometimes they say that.

Then, we returned to her cross-examination:

Q: All right. Having seen that video clip, will you now admit that consumers told you they thought the bottle, your bottle, looked like Crystal Head Vodka’s bottle?
A: What is your question?
Q: Perhaps it was the way I asked my question. Will you now admit that consumers told you they thought the KAH Tequila bottle looked like the Crystal Head bottle?
A: No.
Q: You did see the video?
A: Yes, I did.
Q: And in the video, did you say that consumers told you that they thought the KAH Tequila bottle looked like a Crystal Head Vodka bottle?
A: When I was speaking in this video, I talked about how consumers, if I mention—
Mr. Berg: Objection, Your Honor. Unresponsive.
The Court: Sustained. I don’t think it is necessary to ask the question again. The jurors have heard the questions and the answers from the video. It’s a part of the record now, and they may consider it during deliberations.

I wish the judge had not stopped me. I was just doing some victory laps, the trial lawyer’s drug of choice. But there was a saving grace—her harsh tone of voice addressed at Brandi, not at me.

There is never a better time to extract case-killing admissions than when a witness has just been embarrassed by the judge. Now, having admitted to actual confusion when our burden was merely to prove likelihood of confusion, and having exacerbated the damage by denying the undeniable, Brandi had all but answered the first question that would be put to the jury during its deliberations.

What was left was to force her to admit that the confusion was due to the skull shape of both bottles.

Q: Is it a fair statement then, that to whatever extent consumers told you this, rarely or frequently, that they were confused about the two bottles?
A: Yes.
Q: If they were confused, it wasn’t what was on the exterior of the bottles, was it?
A: Correct.
Q: It would be the shape of the bottles, true?
A: Yes.
Q: So you are admitting to the possibility that those consumers were confused because of the skull shape of the bottles?
A: I’m not sure if it is confusion. But they would know Crystal Head Vodka, and they would assume that it was Crystal Head Vodka.
Q: Forgive me. Perhaps it was the way I asked that question. A moment ago you agreed that it was the shape of the bottle that they were confused about, did you not?
A: I guess that’s fair, yes.
Q: And if they were confused about the shape of the bottle, it would be because they are both skull-shaped bottles, true?
A: Yes.
Q: And the consumers told you that they were confused even when they were not even looking at the bottles, didn’t they?
A: Yes.
Q: They told you this, although they may have had just a fleeting glance at the two bottles side by side?
A: Yes. Absolutely.

I had asked questions using the language of the jury questions and Brandi’s responses provided their answers. The jury ultimately found that she and her company, Elements, had infringed on Crystal Head’s “trade dress,” using it to create confusion among reasonable consumers about its source.

Next came the first Perry Mason moment.

In the first trial, Brandi sobbed as she explained why, having started work on the KAH bottle in 2008, before the Crystal Head bottle came to market, she did not finish until 2009, after it came out. “I lost my daughter late in 2008,” she said, leaving her emotionally unable to resume her work until several months later, in April 2009. That the KAH and Crystal Head bottles were both skull-shaped, she insisted, was only a coincidence.

Donna Dixon, Aykroyd’s actress wife, was in the courtroom for Brandi’s sympathetic testimony. After Brandi’s testimony, Donna told Dan that they had just lost the case. And they did.

During the retrial, Brandi’s lawyer had her repeat that testimony, also through tears, but even more detailed and compelling than before:

Q: Now, is there a period of time where you stopped working on the brand?
A: Yes.
Q: When was that?
A: It was after July 2008.
Q: And I know this is sensitive. But why did you stop working on the projects?
A: I had a loss in my family.
Q: What loss was that?
A: I lost my daughter.
Q: And that, of course, had a major impact on your life?
A: Yes, it did.
Q: All right. What—how much work did you do on the development of KAH in the later part of 2008 after July?
A: I—I actually didn’t do anything. . . . I had a very difficult time coping. I went through a depression. I—it was just a very dark time for me.
Q: I’ll bet. When did you start working again in the project?
A: Early in the next year, 2009.
Q: And what prompted you to get back on your feet?
A: It was my good friend.
Q: What did she do?
A: She had a long talk with me. I, she—I just—I wasn’t taking care of myself, my two sons. I mean, all of us. And I realized that I had to—that I had to, you know, be a good mom, and I had to live and give my children a good, happy life. And—it’s—that’s what I did. And she helped me. She helped me to realize that I needed to do that.

For trial lawyers—skeptics by nature—not even death is certain. On re-cross, I immediately waded into the loss of her daughter:

Q: Ms. Brandi, this is very sensitive, but I need to have this for our timeline.

What was the date of your daughter’s death in 2008?

Alexander knew what I knew and had been waiting for this moment. Though I do not recall it, he tells me that Brandi stared at me for what seemed a very long time before answering. Finally, she spoke.

A: I don’t know.
Q: You don’t know because your daughter didn’t die, did she?
A: My daughter—I don’t know where she is.
Q: You don’t know where she is, but she was reported having been heard from as late as 2010; that’s true, isn’t it?
A: No.
Q: So when you tell us you had a loss in your family, that you lost
your daughter, that’s just not true, is it?
A: That is true.
Q: I guess on some level it’s true, but you’ve implied that she died, haven’t you?
A: Mr. Berg, I have no idea of where my daughter is. She has disappeared.
Q: But you’re a woman who is precise with your language, are you not?
A: Yes, I am.
Q: And you testified—and I want to get your words right. You testified that in 2008 you suffered a loss in your family. You lost your daughter. Those were your words?
A: Yes.
Q: Now, you said that that was the reason why you didn’t go back to working on the KAH bottle until 2009, didn’t you?
A: Yes. I did.
Q: And isn’t that a way to explain the fact that you really didn’t start working until 2009 on [your KAH] bottle until after Crystal Head Vodka came out?
A: No.

My colleagues said the jurors were stunned. Some gasped, audibly. Some looked away.

Most importantly, the jury now had all the information it needed. We probably could have stopped right there. With Brandi’s admission, in conjunction with the fact that Brandi did not produce a single piece of physical evidence—nothing but her word—that she worked on the KAH bottle in 2008, the case was all but over, making the jury’s finding of intentional infringement inevitable.

Pennzoil v. Texaco

Next, let’s look at Pennzoil v. Texaco. The case began with the wheeler-dealing of two giant oil companies vying for a third oil company’s assets, and ended in double-dealing. Litigation followed, and the result was the largest verdict ever affirmed on appeal: $10.53 billion. Three years later, the case ended in a settlement and a $3 billion deposit.

How did Joe Jamail do it?

In December 1983, Pennzoil made an offer for 20 percent of Getty Oil Company. A few days later, Pennzoil chairman and CEO Hugh Liedtke and Gordon Getty, trustee of the Getty Family Trust and owner of 41.2 percent of Getty Oil stock, executed a memorandum of agreement (MOA). Once Pennzoil completed its stock purchase, the two entities would control more than 60 percent of Getty Oil’s stock and take possession of its 2.3 billion barrels of oil and gas—the lifeblood of any oil company.

The next day, the Getty Oil board of directors, faced with various pressures, including a poorly performing stock price, voted 15–1 to affirm the MOA, but only if Pennzoil upped the offer by five dollars. Liedtke quickly agreed and went to sleep assured that he had transformed his medium-sized company into a major player, poised to compete with the likes of Texaco.

The following day, Pennzoil and Getty Oil separately made press releases announcing the “agreement in principle” and quoting verbatim terms from the MOA. Then everything changed. Getty Oil’s board soon turned around and announced it had sold the company—lock, stock, and every barrel of oil—to a higher bidder: Texaco.

Enraged, Liedtke flew back to Texas, sought the counsel of his close friend Jamail, and filed suit against Texaco, claiming $15 billion in damages.

Pennzoil’s good fortune began even before trial started. There are trial skills; and there are trial gods. On July 9, 1985, the trial gods smiled on Joe Jamail.

On the first day of jury selection, Texaco chairman John McKinley, the man who personally conveyed Texaco’s $125 a share offer to Gordon Getty, arrived at the court in person. Until the moment he set foot on Harris County soil, McKinley was out of subpoena range; and because his deposition had gone so badly, he was never going to be called live, much to Jamail’s disappointment.

Now, however, within spitting and subpoena distance, McKinley was a sitting duck. Jamail immediately had him served and called him as an adverse witness, just after Pennzoil’s Liedtke stepped down from the stand.

The jury had the opportunity to compare the antagonists back-to-back—a core Jamail strategy.

Next, Jamail executed a brutal cross of Texaco’s board chairman. While his cross-examination skills are legendary, few lawyers outside his firm know how relentless Jamail was about asking questions that the jury would have to answer, and eliciting game-changing admissions that put those questions to rest.

In preparing to cross-examine McKinley, Jamail worked from a 79-page outline drafted by his brilliant, longtime colleague Janet Hansen. As they had done countless times before, the two of them pored over the questions and McKinley’s likely answers, editing and revising, as they imagined the cross-examination. Given the talent and experience of Texaco’s trial team, McKinley was well prepared. If at times in these excerpts it appears that he was not, it’s due to Jamail’s skill and precision. Jamail had a unique ability to pummel a witness, making him look as though he had staggered into the courtroom from a bar down the street.

At trial, there were eight jury questions, called “Special Issues” in Texas. Special Issue No. 2—the most instructive for our purposes—asked if Texaco knowingly interfered in the Pennzoil/Getty entities’ agreement. The sides stipulated that if Texaco tortiously interfered, it had to have done so knowingly, the rationale being that you cannot tortiously interfere with anything by accident.

That stipulation was precisely the subject of Jamail’s cross-examination of McKinley. But why cross about a fully established, and thus moot, point? After all, it was undisputed that McKinley knew all about the Pennzoil/Getty “agreement in principle” before he pulled the trigger on the Texaco tender offer.

For a variety of reasons that will become apparent, it was important for Jamail to have McKinley admit the obvious:

Q: Now, Mr. McKinley, you did acquire Getty Oil’s assets knowing that there was an agreement in principle in place?
A: Subject to the definitive merger agreement and that negotiations that were taking place.
Q: You did that intentionally and knowingly, knowing of the existence of the Memorandum of Agreement and the press releases?
A: The Memorandum of Agreement was—I had not read it. I had been informed by our general counsel that it was not a factor in the Museum’s presentation of its desire to receive an offer.
Q: You should have read it. You might not be in this courtroom.

The objection was sustained. Jamail moved on.

Q: Well, my question to you, sir, is, did you conclude the acquisition of Getty intentionally—you wanted to do it?
A: Yes. No question.
Q: And you did it knowingly, and knowing of the fact that in existence at the time were the Memorandums of Agreement and the press releases?
A: We did it knowingly and intentionally knowing that the [public press] said that they had an agreement in principle subject to a definitive merger agreement.

In that brief colloquy, there is a lot going on. Yet, most importantly, Jamail successfully linked the words “knowingly and intentionally” in a single question. And while it was not Special Issue No. 2 Jamail was after, it certainly was Special Issue No. 4, which conditioned an award of punitive damages on a finding that Texaco acted “intentionally, willfully and in wanton disregard of Pennzoil’s rights.”

With McKinley’s admission, Jamail was about two-thirds of the way home to proving up the elements of punitive damages.

By the time of the Pennzoil trial, Jamail had tried at least 150 personal injury cases to a verdict. He understood how significant it was to prove that “but for” the defendant’s unlawful conduct, the injury would not have occurred. What all those trials taught him was that once he established the “but for” conduct, little else would stand between him and money damages.

Jamail brought that essential technique into the Pennzoil case, where he adduced a “but for” admission from McKinley that all but surrendered to Pennzoil its case against his company.

Q: So at that time on January 4, when you met with Texaco’s president, you, John McKinley, believed that prompt action was necessary to acquire Getty?
A: It was very clear that from the “agreement in principle” announcement in the press releases that negotiations were underway and that means that we should make a bid promptly if we wanted our bid considered.
Q: And the prompt action—the tender offer which you intended to make—were intended to defeat the negotiations, as you call them, that were being held between Pennzoil and Getty?
A: We were not trying to defeat anyone else’s position. We were trying to analyze the matters and if it appeared attractive, review it with our board and with their proper approvals, make a bid and not to defeat anybody else but to make a bid that could be considered in furtherance of Texaco’s desire to acquire Getty’s assets.
. . . .
Q: You knew that acquiring Getty’s assets would defeat whatever was going on between Pennzoil and Getty, wouldn’t it, Mr. McKinley?
A: Well, I can’t answer you from my own knowledge, everything that was going on between Pennzoil and Getty. The consideration that we were having was whether or not Texaco should acquire substantially all of Getty’s shares.
Q: Which would prevent Pennzoil Company from getting it.
A: I don’t know what all Pennzoil had going on with Getty. I keep telling you that. I don’t know whether they had some other agreements or other things with them, but we weren’t—we went out to try to acquire the shares of the Getty Oil Company.
Q: Well, what Texaco finally did ended up resulting in the defeat of whatever this agreement was that Pennzoil had with Getty.
A: You like the word “defeat.” I don’t have any problem with it, but it was not a purpose of ours and it wasn’t my word.
Q: Well, the end result was that Texaco’s bid did in fact defeat whatever agreement or whatever. . . .
A: Whatever bid or whatever negotiations that others might have been doing—Pennzoil or Chevron or any of the rest of them.
Q: Well, let’s zero in on Pennzoil. Texaco successfully prevented Pennzoil from acquiring the Getty interest it was negotiating at the time; is that not correct?
A: The completed definitive merger of Texaco and Getty certainly would not permit the anticipated concept of that agreement in principle to take place. Both things couldn’t be at the same time.
Q: Texaco’s success, very simply, defeated whatever this arrangement was that Pennzoil had with Getty?
A: I don’t have any problem with that if you’d like to phrase it that way.
Q: Is your answer that it did?
A: Well, you keep using the word “defeat.” We weren’t out to defeat Pennzoil and we were out to—
The Court: Mr. McKinley, if you understand the question and it is an obvious yes or no question, answer it with yes or no and if you care to explain it, explain it, but first, answer yes or no.
A: All right, sir. Ask the question again.
Q: Texaco’s success, and because of Texaco’s conduct in this matter, the result is, Pennzoil’s agreement or arrangement or whatever you want to call it, was defeated? Will you agree that that was the result of Texaco’s conduct?
A: Yes, but as I pointed out to you, Mr. Jamail, Texaco wasn’t interested in defeating Pennzoil or any other potential bidder. . . . [T]he answer to your question was, I suppose, yes.
. . . .
Q: Do you know, sir, of anything that would have prevented the completion of the Getty Oil–Pennzoil agreement if Texaco had not made its offer at the time?
A: Yes, I know of possible things—
Q: I’m not looking for possible things, Mr. McKinley. I’m looking for actual knowledge. And the truth is, is it not, sir, if Texaco had not stepped in and made its bid at this time, you know of no reason why this definitive merger agreement would not have been completed, do you?
A: I don’t know of any specific reason it might not have been completed.
Mr. Jamail: Your honor, I have no more questions of Mr. McKinley and I pass the witness.

Here’s one reason Jamail won only a $10.5 billion verdict. He should not have asked if Texaco “defeated” Pennzoil’s contract after McKinley’s first denial. There is a special method to forcing a witness to admit the obvious, which is by having the witness deny the obvious. Jamail next should have taken the verb down one notch at a time—from “defeated” to “interfered”; to “interfered in any way”; to something as ridiculous as, “Well, would you agree that offering $12.5 a share more than Pennzoil, that by putting almost $500 million more into the pockets of all those heirs to the Getty Family Trust, just might have influenced Gordon Getty’s agreement to sell to Texaco?”

If he answers “no,” he looks ridiculous. If he answers “yes,” he has admitted Pennzoil’s allegation of interference.

Using Hypotheticals

Jamail once told me that hypotheticals were his favorite kind of questions because they allowed him to argue his case. What he did not say was just how much more than that they allowed him to do. He not only used them to back witnesses into corners from which they could not escape without repudiating their own testimony; he also posed those questions in such a way that opposing counsel was forced to forgo objecting or risk looking foolish, and thus the witness was forced to answer.

For those reasons alone, his hypotheticals are worth deconstructing. Jamail asks them in an “if, then” format. He never asks the witness to “please assume with me. . . .”—a critical and powerful difference. Note also that Jamail invites McKinley to tell Texaco’s story and to stake out the moral high ground:

Q: Sir, is it Texaco’s policy to interfere with other people’s contracts?
A: No, of course not. I have told you that.
Q: If that is the case, then, would you stop anyone at Texaco from interfering with [a third party] who has a prior agreement with the same party that Texaco is negotiating with?
A: Why certainly I would.
Q: I assume that if evidence came to you that such an agreement was in fact in existence, then would you have the obligation to make some study, some good faith effort to find out if in fact there was or was not an agreement between the two parties?
A: Yes, of course. That’s what I did.

Typically, hypotheticals are posed by asking the witness to assume something harmful about the witness’s own side of the case. But witnesses are coached not to take the bait. Had Jamail approached McKinley that way, he would not have succeeded. McKinley would have responded, “Mr. Jamail, I cannot accept your premise. There was no contract. I have spent 40 years negotiating contracts for Texaco and I know the difference between an agreement in principle that needs to be worked out and a binding contract.”

To avoid that trap, Jamail disguised his hypotheticals, never asking the witness to assume anything. Instead, he posed the “if, then” form of hypothetical, which allowed him to make the assumption himself, and to make it unarguable.

His assumption—the “if” component of his question—was precisely what McKinley had just testified, that Texaco did not interfere in third-party contracts and that he would have stopped any Texaco employee from so interfering if he found out about it.

What, precisely, could have been the objection? That the question called for speculation?

If opposing counsel had said that, he would have been saying that his own client was speculating when he testified that Texaco did not interfere in third-party contracts. Not a good look for McKinley’s credibility.

Also note that Jamail did not ask his hypotheticals in a vacuum. Despite McKinley’s protestations of Texaco’s innocence in the matter, the jury had heard substantial evidence that McKinley himself had killed Pennzoil’s merger with the trust, personally offering trustee Gordon Getty $125 a share for Getty Oil stock.

They also knew that Getty could not refuse the offer. Once Texaco completed the purchase of the outstanding shares, Texaco would own a controlling interest, which risked leaving the family trust, with 41 percent of the company, a locked-out Texaco minority, devastating their shares.

How different things might have been if McKinley had admitted the truth and told the jury that business is rough, that reserves are hard to find, and that Texaco had simply outmaneuvered Pennzoil because its lawyers fumbled around after the board meeting with nitpicking contract issues.

That testimony would have been far more credible to any jury, especially one in Houston. The jury members would not have to be convinced that oil companies play hardball; and no one could have convinced them that playing hardball in Texas is unlawful.

Yet, masterfully, Jamail took what McKinley had testified to as gospel, and then used that truth to demonstrate its falsity.

Jamail’s longtime second chair Janet Hansen helped to develop and hone his strategy of using hypothetical questions. Here is her explanation of how to pose those questions in various ways in virtually any kind of case:

First—Joe asked the defendant to admit or deny Joe’s client’s claim: You (or your employee) interfered with my contract/you failed to follow the standard of care/you failed to act like a reasonable driver.

Second—after the defendant denied the claim, Joe made the defendant agree that if the claim were true, it would be bad/inappropriate conduct/and he or his employee should be held responsible.

Third—he made the defendant agree that if the jury happened to hear evidence that the defendant—or his employee—interfered with the contract/failed to follow the standard of care/or acted unreasonably, he would then be responsible for the unlawful act.

Once these initial admissions or denials were in the record, Jamail sealed off any and all exits by turning an adverse witness’s claims or defenses into a barrage of possibilities he used against the witness, a technique easy to master and accessible on both sides of the aisle. Janet continues:

I don’t know what to call this—but Jamail took his claim and the defendant’s defense and twisted it around every way he could: If you won’t admit you were negligent, admit that if someone engaged in this conduct, they would have been negligent. And admit that if there was evidence that someone did engage in that conduct, it would be dangerous—and unreasonable. And admit that a reasonable person would know that this type of conduct would subject another person to an unreasonable risk of harm. For instance:

Q: Were you negligent?

A: No, of course not.

Q: Would (the offensive conduct) create a danger to others?

A: Of course.

Q: You would never condone that type of conduct—or fail to discipline an employee who engaged in that type of conduct, would you?

A: Of course not

Q: If you had been negligent, should you be held responsible?

A: Of course.

Q: If the evidence at trial shows that you ran a red light/misdiagnosed my client’s epiglottitis/interfered with my contract, would you expect this jury to hold you accountable?

A: Of course.

Jamail’s deadly use of hypotheticals is available to all of us. And it’s never too late to learn. I used it in my last trial, with profound effect, and I have only been practicing 50 years.

As the great TV reporter Brian Fantana once said, “I’m telling you, it don’t get much better than that.”

David Berg

The author is the founding partner of Berg & Androphy, Houston. This article is exerpted from the second edition of The Trial Lawyer: What It Takes to Win (ABA 2018).