On Our Way Home: Chapter Three

I sat at the rectangular wooden table, next to Sandy Matherson. I fought the temptation to review the twenty-seven pages of large-font notes I’d printed and three-hole punched and placed into the black binder in front of me on the mahogany surface covered with a half-inch of smoked, tempered glass. It was more important to act as if I were listening intently to the judge reciting the instructions to the jury, even though I already knew what every single word would be. To nod at the right times. To steal glances in an effort to figure out which jurors were paying attention, which ones were just pretending to do it, and which ones seemed to be thinking about something else, like everything they had to do that weekend, given that Christmas was coming on Monday. 

Prior to the start of any trial, the lawyers give to the judge dueling versions of the various specific legal explanations that cover every point of law relevant to the case. After the jury hears all the evidence, the lawyers stick around in a half-lit courtroom for two or three hours and haggle over a Frankenstein monster of paragraphs and principles to be placed in logical order and read to the jury, with the expectation that any of it will truly register with them. Little of it ever does.

Plenty of judges, including the Honorable Donald T. Robertson, refuse to send a copy of the instructions with the jury as they deliberate. This raises the stakes. But it also gives the lawyer an extra opportunity to build credibility. By explaining in plain and simple terms what they’d just heard, the lawyer becomes part of the process of educating the jurors. By setting out the sometimes complex concepts in a way that makes sense and seems reasonable and believable, I could build a stack of chips that would come in handy when trying to get the jury to accept my version of the many conflicting and confusing facts they’d heard. What was important, what wasn’t important. What they should listen to. What they should ignore. 

I’d have forty minutes to make my initial presentation. Gunther Anderson III, an older man with homespun charm and a voice not quite as deep as Sam Elliott’s but every bit as pleasing to the ear, would speak for up to an hour, if Anderson chose to use every minute of the time he had. I’d then have twenty minutes to get the last word.

I didn’t like overwhelming the jury with technology. Lawyers paid by the hour love to use projectors and slickly produced video clips and computer-generated charts and graphs. I’d tell the jury this was all a way to try to distract them from the truth, of impressing them with bright, shiny objects instead of the dull, stubborn reality of cold, hard facts. For me, it was important to make a personal connection with each of the six jurors (only criminal cases use twelve), and to speak to each one of them as if I was in their living room, or as if they were in mine. Bells and whistles that interrupted this connection would make it harder to re-establish it.

That didn’t mean I relied only on the words that came out of my mouth. I had a whiteboard on an easel. Old school. I’d write key words on there, just two or three at a time. I’d leave them up there so they’d sink in while I talked more about them, and I’d wipe them clean when moving on to the next point I was trying to make. I’d converted some of the most important documents into large cardboard posters that I’d prop onto the fold-out hooks of another easel when discussing how U-Sav-Plentee’s own paperwork helped show that the company had screwed Sandy Matherson.

Proving that an employer fired a worker in violation of applicable state laws becomes a little bit of a magic trick. The lawyer representing the fired former employee needs to systematically peel away every plausible reason the company has thrown at the wall for making its decision. When they’re all gone, there’s only one explanation left. The company actually fired the employee for an illegal reason, even though none of the company’s witnesses would ever admit it.

It gets tricky. The lawyer representing the company will argue it’s impossible that each and every one of those fine, hard-working people got on the witness stand and committed perjury when they supported the company’s version. That’s when I’d explain it’s not about deliberately choosing to lie under oath. It’s about locking into a story months before coming to trial, and sticking to that version, no matter what. That the lie is never made up on the witness stand. That the tall tale gets spun when the decision get made, and from that point forward the lie keeps getting repeated and repeated and repeated until it feels like it’s the truth. 

Those thoughts popped around inside my brain, exploding kernels of ideas and reminders causing the perspiration to begin to gather in my armpits and along the top of my back well before I had to stand up and perform. I knew the structure and the flow of the instructions well enough to realize the judge was nearing the end. His voice had become more raspy as the week went on. He mentioned at one point he’d been developing a cold. I spotted him from time to time unwrapping lozenges and discreetly popping them into his mouth. As he worked through the instructions, his voice was getting more hoarse than it had been.

He was explaining how to calculate Sandy Matherson’s financial damages, if any. The other lawyer had managed to work a few extra if anys into the instructions, and I found myself wondering whether Judge Robertson was pausing on purpose before saying if any as a way to stick it to me, subtly. The campaign checks had long been cashed, and he had six years left on his term. He could get away with something that would be impossible to ever prove, something I could never accuse him of actually doing without potentially screwing up every other case of mine he’d handle. Or maybe it was just the cold he was catching. I couldn’t tell, no matter how hard I tried.

I then tried even harder to push those ideas out of my brain. None of it would help me deliver the kind of closing argument I’d need to take advantage of the possibility that the four men and two women of the jury would be inclined to grant a tie to the runner, in the spirit of the season. Or maybe even to give Sandy the benefit of the doubt on a close call. Either way, it was time to roll out that red kettle and start clanging away with the bell. 

“Are the lawyers prepared to make their closing arguments?” Judge Robertson’s words rumbled through what remained of his voice. He seemed relieved to be finished speaking. He’d have not much more to say, unless squabbles occurred during closing arguments. And that becomes a very high-risk proposition. If a lawyer interrupts the opponent’s closing argument with an objection, the arrow had better hit the center of the target. Otherwise, it looks like the lawyer who made the objection was trying to keep the jury from hearing something extremely important to the point the other lawyer was trying to make.

I pressed my hands against the glass top of the table. It was cool to the touch. I wished I had panels of that same glass taped against my chest, my back, and my armpits. I looked down at the binder. For the longest time, I wanted to have enough confidence in my knowledge of a case to pitch the notes. I’d always be in awe of lawyers who could deliver their remarks without this crutch, to touch on every point that needed to be made from memory alone. I’d told myself that, one of these days, I’d be able to do it. 

I don’t know why or how I did it, but I decided then and there that today was one of these days. I picked up the binder, and I stuck it down on my chair. I pushed the chair back under the table. It all made me think of the time I found my dad taking the training wheels from my first bike and throwing them in the garbage can. 

“You know how to ride this damn thing,” he’d said to me. “Now, just go ride it.”

I knew I might have been making a mistake. But something pushed me forward. I’d never been much for deliberately self-destructive behavior; I preferred digging my holes without realizing it. It felt as if I was floating over myself, peering down at what I was doing and urging myself not to risk coming off as a babbling idiot in the most critical juncture of a case on which I’d spent so many hours and so much money. But I couldn’t stop myself. I’d left the old man and his wife alone out on the highway. I knew I shouldn’t have done it. I suppose I was inflicting a punishment, making myself feel the way I’d made them feel, unprotected and alone and exposed to whatever may happen next.

I could sense Judge Robertson shifting in his robe from the perch above the rest of the courtroom. I knew he was about to say something along the lines of, “Mr. Persepio, are you ready to proceed?” I also could see Sandy Matherson fidgeting in the chair next to me as she surely wondered whether she should have listened to her husband and hired the guy with the TV commercials who morphs into a poorly-generated computer animation of a Rottweiler, and then calls himself a bulldog.

I noticed a trash can tucked to the side of the table just in time. I bent down and scooped it up just as the Frosted Flakes and cup of coffee with two packs of Equal and a splash of the same two-percent milk I’d poured into the bowl of cereal escaped quickly and violently from my stomach.

On Our Way Home: Chapter Three originally appeared on Pro Football Talk