Article written by Dax Watson.
Several years ago I was defending a real estate agent in a jury trial down in Tucson. The trial was scheduled for five grueling days. Interestingly, the only claim against the agent was for Fraud. I note this because Fraud is an incredibly serious claim, which carries a high burden of proof.
I really wanted to hammer that ominous note home for the jury and put the actual claim of “fraud” on trial. I needed the jury to understand that it was astonishing that these plaintiffs were claiming that my client had actually set out to intentionally harm them, plotted even. To alert them from the outset that plaintiffs had to prove that she was some sort of a criminal no less.
I had a large paper flip board placed in front of the jury for my opening statement. I use paper flip charts or grease boards quite a lot in trial. During opening statements or when examining a witness I drive home key issues/points by writing on the board. This stimulates additional senses for the jurors and engages them in the trial process. They listen, watch what I am writing and absorb those key points – if it is important enough to write down, it must be important for them to remember. It is an old lawyers’ trick.
So, at the outset of trial – the opening statement – I walk up to the flip board and write, in big bold black letters the word Fraud. I then spend the next forty five minutes putting on my best lawyer show. I was theatrical, impassioned… I was Tom Cruise from “A Few Good Men.” I underlined the word Fraud several times to make a point. I drew arrows, circled it, even put a star next to it. It was a show.
When finished, I walked back to defense table and took a seat. I left my flip board behind, staring at the jury. This is another old lawyer trick…leave it up and make plaintiffs’ counsel remove it. If he or she is paying attention, they will immediately take it down. If not, it will sit there while the trial marches on, reminding the jury of my impassioned plea and, of course, my brilliance. Plaintiffs’ counsel left it there in all of its glory.
I had a young attorney with me at this trial. So, I leaned over and asked him how he thought the opening statement had gone. Dead silence. I looked towards him. He was pale and appeared to be almost shaking. Something was wrong. Frantic, I asked him, “what is it… did I mess up?” Almost quivering, he replied…”you misspelled Fraud.” What? I looked over to the flip board and staring back at me was not Fraud, but FRUAD. And, not only was it staring back it me, it was doing so in all of its disgusting glory – in bold, underlined, starred, with arrows. I think I almost wrote a smiley face up there. How humiliating. What a colossal mistake. The first impression I left with the jury was that I was/am a moron. How can this moron possibly defend this agent and protect her license?
I had five days to stew over this devastating turn of events, caused by my own hand. The trial went on. I vigorously defended my client and we kept with our game plan. But, that lemon of an opening was still hanging out there and weighing on my mind. What to do… what to do?
The next and only other opportunity I would have to directly speak to the jury was during my closing argument. Five days had passed, but, it had felt like five years as I had been yearning for this moment to address the great FRUAD incident.
I calmly stepped up to a now blank flip board. I stood in front of it so as to block the jury’s view. I then proceeded to write in big bold letters: FRUAD. I moved away from the board to show the jury my wondrous work. They looked at me quizzically. I could see it in their eyes, “he did it again!!!”
I began my closing. I acknowledged that I had misspelled the word. I did not run from it. I even commented that it must have puzzled them. It may have even caused them some concern that my poor client did not have the sharpest tool in the shed on her side. I noted they probably had a good laugh about it during breaks in the jury room. I then told them that I had done it on purpose. Once again, their faces contorted and confusion set in. I said… “yes, I did it on purpose. I intentionally wrote Fruad for you, I switched the A and that U. I did so because I am a two time graduate from ASU and an ASU boy – but, I wanted to show my respect down here in Tucson so I switched the A and the U to give a nod to the U of A.”
They laughed. I made a connection and I had successfully moved on from a mistake I had made five days earlier. We won the case.
I practice law. Real estate licensees practice real estate. Neither is a science. Neither is perfect. I like to say real estate licensees are in the mistake business. Licensees are going to make mistakes. You are human and it is inherent in what you do for a living. Your job then, is to work hard at your craft to minimize those mistakes. You do so through education, experience, asking “why” and “how” and seeking HELP. Use your brokers. Use me. We can minimize issues, solve problems and limit when things go sideways.
Perhaps most importantly we need to address mistakes when they happen. We never run from them. I gave myself a lemon in that trial and made it into lemonade. As a team, we can and will address and solve problems and overcome mistakes. We will never turn the practice of real estate into the perfection of real estate…but, we can come darn close!
About the Author
Dax Watson has extensive litigation and professional liability defense experience. In addition to his legal practice, Watson is approved to teach legal issues, agency and disclosure, and property management by the Arizona Department of Real Estate. He regularly teaches risk-reduction classes to, and seminars for, real estate Brokers throughout Arizona.
To learn about the Lipson Neilson law firm please visit www.lipsonneilson.com.
Contact: Dax Watson