By Lisa L. Pittman, Pittman Legal, Austin, Texas
The lawsuit was over an alleged breach of contract. My client was sued, not because there was a valid contract where one party owed the other something, but because of a personal vendetta arising out of events at the Texas Legislature in 2021, to which my client was only tangentially involved, thus bringing in all of the intrigue and power struggles of a leading Western drama to what would otherwise be a dull case decided by a judge alone.
But I insisted on a jury trial so my client’s peers could consider the circumstances of the alleged contract and the character of the parties. Jury trials are a dying art and more attorneys should be willing to leverage their power. I called numerous witnesses, and their emotional investment to supporting my client made it a charged trial fueled by principle.
The Contract 101 issues were: (1) whether there was a valid contract, and (2) if so, who breached it first?
Plaintiff was in the consumable hemp product business and had extra jars he wanted to get rid of. He asked my client, also in the business, if he would take the jars off his hands. My client is a genial and helpful guy, and he agreed to help get rid of them. He bought two large batches of the jars. On the second batch, Plaintiff slipped in some notes onto a one page invoice he sent through docusign (received by my client in the field on an iphone 4) that made it appear my client had agreed to future payment terms for additional jar purchases. He also “set up” my client pretty well with a series of leading texts that made it look like he agreed to the future terms.
In reality, my client just offered to help, as in, to see if he could use the jars or find others to buy them. It turned out, though, that the jars were not as represented and my client was forced to spend significant time and money to sterilize the jars, only to then discovery they were too heavy to send through the mail anyway. Plaintiff only disclosed the problems with the jars (“a funky film from China”) after my client purchased and took them. My client later returned the unused jars but the Plaintiff refused the shipment, preferring instead to go to trial in an attempt to make my client buy around $9,000 worth of jars, plus a unilateral assertion of almost $3,000 in storage fees.
Plaintiff was represented for free by his mother’s attorney, which made the case all the more challenging. The mother’s attorney refused to settle or walk away, and as we last hung up, he quipped, “Let’s have fun with this!” advising me of her instruction “to appeal this all the way to the Supreme Court” if he lost.
My challenge was to overcome Plaintiff’s showing of a rudimentary contract, to get the jury to see the jars were defective, to get the jury to understand that delivering defective goods is a breach of contract and implied and express warranties, and to recover a lot of attorneys’ fees for all the court appearances and discovery battles Plaintiff imposed on us throughout the pendency of the case. My strategy was to make this interesting, present the human element and let the jury evaluate the parties. I banked that in such a situation, the jury would side with my client.
Although I insisted on a jury trial, I underestimated the interest that the jurors would have in this case. When I arrived for trial, I could see that there was a whole new dynamic at the courthouse. The halls were filled with prospective jurors. This was one of the first jury trials after pandemic court closures, and the first time in the court’s history that all the jurors showed up. And they all wanted to be part of it!
It was because of the Johnny Depp trial. After weeks of that sensational trial, televised on split screens and led by the fearless Camille Vasquez, who performed at the highest level of excellence and spunk, the jurors were here for that kind of action. Usually, people either actively try to get out of it or try to disappear during voir dire (jury selection). But everyone eagerly raised their hands and promised they could be unbiased – even about cannabis.
Several volunteered to explain the difference between hemp and marijuana for me, raising their hands in “Me! Me! Me!” fashion. Those that didn’t make it on the jury seemed disappointed, and some even stayed behind just to watch. This is all unheard of! Jurors will sleep in front of you to let you know the disdain they have for the waste of their time. But during this trial, everyone took avid notes, smiled frequently, and asked many questions during deliberations to get it right.
So take note, this story is really about the new era of trials – no more C-Span!
I knew they wanted a show and I was determined to give them one.
I was dressed as Beth Dutton, in an ultra feminine dress with ruffles around the slightest bit of top boob, and wearing my favorite fringed cowboy boots that swished with every step in the courtroom. I used limp plumper and while I didn’t have a cigarette, I was smoking! I was feisty, unapologetic, and I took no prisoners.
My client is a rancher. He asked me how he should dress, and I said, “like a dressed up rancher.” Which meant his cleanest dirty shirt. He showed up in a faded print shirt, gigantic square toed boots, and the dirtiest, most beat up cowboy hat I’ve ever seen. He is from West Texas and has the perfect and most polite Texas drawl you can imagine. He was Rip Wheeler and Tyler Sheridan in one. He garnered two compliments on his hat by passersby in the Courthouse, and it was something else to watch him remove it in respect in the Courtroom.
The Plaintiff was Jamie Dutton. He was sinister and smug, revealed himself to be a crybaby, and was an even worse actress on the stand than Amber Heard. His strategy was legal entrapment and trickery to suit his own personal aggrandizement.
Plaintiff’s attorney was the Market Equities lawyer. They were both wearing 3 piece pin stripe suits and shiny shoes. This was Western Travis County. Market Equities lawyer objected during my opening and closing, which you just don’t do unless it’s something egregious. He objected to a business records affidavit, making me have to call a live custodian of records just to get undisputed documents admitted into evidence. He still objected to every exhibit I tried to enter, interrupted me constantly, and, in poor taste, tried to condescend Rip on cross-examination, going so far as to accuse him in a deep bellowing voice: “So you think you are above the laws of the State of Texas?”
Rip gave him a dead stare right in the eye like he was about to draw at the OK corral. His body tensed and lunged forward in the witness stand, in an intense showdown of Texan morals causing great suspense.
I strategically avoided objecting to Market Equities’ antics. Frankly, I found it unnecessary. I hoped the jury would see that I did not need to interrupt him or prevent anything from getting in, as well as my confidence in the story I was telling supported by the evidence I was presenting.
The judge was brunette lawyer Sarah Atwood. She was helping Jamie every step of the way in a relentless plot to kill my case. She ruled against me every time, sometimes even sua sponte (on her own without objection from a party). She would tell my witnesses to hurry up and cut short their testimony, and she made inappropriate comments to the jury like, “I know how I would rule on this but you guys can decide what you want,” and irresponsible stuff like that.
She sustained most of Market Equities’ objections and tried to eliminate a lot of my proposed jury charges and instructions. She was nonplussed and dismissive with everything I tried to say in response to objections. Sometimes it’s good when this happens. The side who gets all the rulings in their favor has very few bases for appeal.
The cute dirty blond goateed bailiff in a livestock agent bullet proof vest, that sheepishly smiled at me with every exhibit I handed him, he was Kayce.
A witness I called to testify about a detail in a case was a seasoned chef. He was also a cowboy.
He was Gator. ….
The judge tried to strike him, saying that despite being a life-long and degreed chef who has studied fermentation in Italy, he couldn’t testify as to whether a jar would be sanitary enough for food as an expert. I replied I was asking him based on his extensive personal knowledge. She said, “nope, you need an expert for that and he’s not the right type of expert.” Fine. But the jury already heard enough. Gator’s testimony about the condition of the jars, and the time and expense it took to sanitize them at his commercial facility, was an essential element to show Jamie breached the warranty of merchantability and specific purpose, thus breaching the alleged contract first and relieving Rip from buying more useless jars.
I called Rip’s ex-girlfriend, a young lobbyist with long flowing blond hair, a prairie dress, and a soft East Texas accent. I called her to narrate the history between Jamie, Jamie’s family, and Rip, which involved land grabs and power struggles at the Capitol.
The jury was really taken by her testimony, which was eloquent and fascinatingly spoke of working for Senators on big issues at the State Capitol. I wanted to get an affidavit she had prepared into evidence – something we crafted specifically for this moment, containing all the details we wanted the jury to know but could not work in through oral testimony. Over the Judge’s opposition, I got her affidavit in. It was a telenovela by itself and contained very damning statements about Jamie. I can’t believe the other side wanted the affidavit to come in too. When Market Equities contested the Judge’s attempted exclusion of the affidavit, he said, “we have no objections. Let them read it!” And you can too, attached to this story – it has been public record since July 2022 when I tried to get the case dismissed.
The beautiful witness was Elsa, and she strode out of court as if upon a palomino, and with a departing smile, she was lightning with the yellow hair, leaving her narrated words behind her in the affidavit for the jury.
I called my client’s CPA, who was a ringer for Senator Huntington, proper and authoritative on the outside, but with a smile and a tattoo that showed she’s likely to get rowdy with the Governor on the inside. She was my avenue to get all the other exhibits in and to further demonstrate Rip’s credibility.
It had all the makings of the show that stars with “Y” including drama, revenge, vendettas, politics, and romance, including salacious content exposing Jamie for who he really was with a trail of regretful texts screenshotted by Elsa. I held Jamie hostage with those texts and employed every trial trick known to me. Nothing was off limits.
Market Equities gave his closing and remarked that he charged Jamie “zero dollars” for “the pleasure” of representing his client’s son in this case.
In my closing, I made use of the court’s flip chart, again over Judge Atwood’s objection. I gave a quick lesson on the elements of breach of contract, pointing to the missing requirement of a “meeting of the minds.” I then flipped the page to go over damages. I started with Jamie’s damages and whittled them down to nearly nothing based on the testimony. I drew a huge “0” for attorney’s fees.
I listed out all of Rip’s damages, and then his attorney’s fees for defending himself. Despite the Judge interfering in my closing and trying to limit the amount of damages I wrote up for Rip, the jury got the picture.
As I concluded, I gave the jury the option of awarding both parties nothing, leaving it to psychology. I never told the jury what they had to find, but I provided them all the pieces to put together themselves so they would feel more invested in their own conclusions. I used various types of evidence and presentation styles, both electronic, and the plain old flip chart, which I always think is a compelling tool. I purposely left the chart out open to the page showing the staggering amount of Rip’s attorneys’ fees while the judge read their instructions.
The jury was prepared to issue a Johnny Depp style reward!
They returned a take nothing verdict for Jamie (“zero dollars!”), and the maximum amount allowed by the Court for Rip, sending the strongest message a jury could possibly send to the parties in this case.
After Judge Atwood read the verdict, she left the bench grumbling, and with no compliments to counsel. The way she handled the case made victory in spite of it all the sweeter. Juries are unpredictable and you never know what will happen or what facts they will focus on, and sometimes it seems like justice is rarely served, but in this case, everything came together like it was orchestrated by Tyler Sheridan himself, and the truth prevailed.
A jury trial is one of the most exhilarating professional experiences, despite it being a lot of stress and months of (or years of) hard work. I am glad that post Depp, juries see the work that goes into it, and that they take their responsibility very seriously. The secret is to tell them a great story, give them people and things they can relate to, and to guide them in answering the jury charge, which yes, is the first thing you should prepare and focus the narrative on in any lawsuit. If the narrative has been well developed, you can then focus on the theater of its live presentation!
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