As a litigation manager for a large corporation, I had the opportunity to see many great trial attorneys in action. Sometimes they were working for me, sometimes against me, but always fun to watch. I had a very serious case in San Antonio, Texas. The plaintiff’s attorney was known as one of the “Inner Circle of Advocates,” an invitation only group that considers themselves to be the best plaintiff lawyers in the United States. You only get into this group if you have won really big jury verdicts. This guy used to send me letters, almost daily, addressed to “Mr. Checkwriter.” He even hired a Hollywood Studio to recreate the incident. It was a truly horrific incident, but not necessarily the result of our negligent acts or omissions. If you go to the website for the “Inner Circle of Advocates,” they still consider themselves to be 100 of the best plaintiff attorneys in the U.S.

I didn’t exactly use a recent law graduate to represent my interests. I used the senior law partner in a major firm who was also a highly skilled trial attorney. I still remember the numerous settlement conferences with this plaintiff attorney. He always came armed for bear and ready to put on a show. At our final settlement conference, he had demanded I show up with adjusters from my reinsurers. I showed up alone. He asked me why I ignored his request. I said I have full authority on this claim, I don’t need to call anyone or get approval from anyone. All the money that will ever be offered to settle this claim will be approved by me. He then said: “But I have a five-hour presentation ready for them.” I said: “Go ahead. I opened my briefcase and showed him that I had brought lunch.” He said: “I would obviously be wasting my time showing this to you, you already know all about this case.” I just smiled, and he sat down and began to negotiate. We were able to settle that case.

Really special trial attorneys are a different breed. The only way to accurately evaluate them is to see them in action. Even then, most people don’t know what they are seeing. That is because these attorneys put on a show and they are extremely good at making their case.

Many people have highly criticized Bruce Castor for his opening statement during the Trump impeachment trial. But the people criticizing him are often people rooting against him or frankly self-promoting. I was watching what I consider to be a brilliant trial attorney doing exactly what he intended to do. He was not there to convince Democratic Senators of anything. They weren’t listening. He was talking to the American people, and a lot of them got the message. That message was that the reason Democrats are trying this case is not because of the evidence, but because they are terrified of Donald Trump. Here is exactly what he said:

Defense attorney: Trump ‘removed by the voters’ (yahoo.com)

“I was struck. I thought that the House managers who spoke earlier were brilliant speakers, and I made some notes. And they’ll hear about what I think about some of the things they said later when I’m closing the case. But I thought they were brilliant speakers, and I loved listening to them. And they are smart fellows.

But why are the House managers afraid? And why is the majority of the House of Representatives afraid of the American people? I mean, let’s understand why we are really here. We are really here because the majority in the House of Representatives does not want to face Donald Trump as a political rival in the future. That’s the real reason we’re here.

The reason that I am having trouble with the argument is the American people just spoke, and they just changed administrations. So, in the light most favorable to my colleagues on the other side of the aisle here, their system works. The people are smart enough in the light most favorable to them. They’re smart enough to pick a new administration if they don’t like the old one. And they just did, and he’s down there at Pennsylvania Avenue now probably wondering how come none of my stuff is happening up at the Capitol.”

Some have concluded that he is admitting that Trump lost the election. The AP headline shouted: “Defense attorney: Trump removed by the voters.” But he didn’t say that. He said that the people trying Trump have concluded that Trump lost the election. He seemed to be appealing to their better nature, but he knows they have no better nature. Bruce Castor is a lot of things, but he is not stupid. I believe every word was intentional and it was effective. By praising the House managers for being brilliant speakers he actually put extreme pressure on them to make their case. They couldn’t deflect from the evidence by claiming that the Trump attorneys were arrogant and rude and unwilling to accept reality.

This reminded me of the trial performance by one of my top trial attorneys. The allegation was that the plaintiff, also an attorney, had suffered serious brain damage that among other things affected her short-term memory. When my attorney was trying to cross examine her, he messed everything up. He spoke in bumbling terms, repeated questions, and literally looked like a hot mess. He was an Irish guy with a great sense of humor and was in his seventies at the time, So, he came across as this nice, older guy, who was having a tough day. He even laughed at himself. At one point he accidentally knocked his coffee cup over when trying to find his notes. The plaintiff was becoming very angry and annoyed. At one point she said: “You are deliberately misquoting me. That is not what I said. Then she quoted word for word from her deposition transcript.” At that point, my seventy-year-old stammering attorney turned instantly into the dangerous trial attorney representing me in that trial. He stood up straight, snapped to attention, and said: “Pretty remarkable short-term memory.” The jury literally laughed out loud.

They were out for less than an hour and gave her zero damages. I have to admit his performance was so good that even I was a little concerned that he was losing it. I should have known better.

I think a lot of people have greatly underestimated Mr. Castor. He did pour oil on the waters, but never underestimate a skilled trial attorney. They are a rare breed, unlike anyone else. They didn’t get there by accident and it has been my experience that even other attorneys often underestimate them. Mr. Castor is a highly experienced trial attorney. I think he threw those House Managers a large curve ball and they may just swing and miss before they even realize what happened.

TDM