Update (June 12, 2017): Legal analysis can be complicated, which is why legal reasoning is generally transmitted in writing, rather than orally. Lawyers (and lawmakers and judges) must set out their words and ideas with great care.
But in trial, we all have to “think on their feet” and, of course, “speak on their feet.” It is sometimes painful that our spoken words are transcribed because they very often seem inarticulate.
During the Blue Cross Blue Shield v. Wells Fargo trial, U.S. District Court Judge Donovan Frank (D. Minn.) said:
But with respect to not submitting the [Deceptive Trade Practices Act claim] to the jury, what’s the procedural — I want to just make sure there’s a meeting of the minds by counsel, well, here’s — we agree to that but we don’t agree, or we do agree and here’s how that will be decided with or without the jury’s verdict.
Then that raises an issue in an entirely different case that actually—it’s a case—by just saying what I am about to say, people could figure out what case it is because it is about to get tried a third time. I am overly sensitive because I have been reversed one time on a jury verdict in 29 years, and it was a year and a half ago or whatever. That is exactly—on a separate issue that didn’t result—it was a very [un]usual state statute where I—the Eighth Circuit ruled, and it is the Vaidyanathan case is which one it is, the state statute, they ruled, is more like a criminal statute with specific intent. And I treated it more like a fraud statute, so now it was back, and the jury hung up on the second trial. Well, what does that got to do with this? Well, now, even though we’ve tried it twice—and it’s good faith arguments; I will just assume that for both sides. One side is saying, Judge, even though you threw out the Plaintiffs’ promissory estoppel, the equity claim that was tried to you as part of the jury case, even after the jury came back with a $2 million verdict that was then reversed by the Eighth Circuit, even though you did that, we now claim—this would be the Plaintiffs’ argument—we now claim that somehow that is inconsistent with the [jury verdict] —so you were bound by something that the—in the contract case. So, therefore, you have to try them together, even though we still agree it is all up to you, Judge. And even though I don’t agree with that, and I don’t believe the Eighth Circuit does either—that’s really why I raised—the question is, well, is there something the jury is going to do that the two of you don’t agree on the procedural effect? And maybe, obviously, if counsel agrees with what you just said, then it is a nonissue. If they don’t, I guess I will have to hear from you briefly.
(Emphasis in original at p.6.)
The lawyers responded:
[Plaintiffs’ counsel]: It is an injunctive count, and we think liability and relief is for the Court to decide….The standard is it is a different cause of action; it is injunctive relief only. It is a cause of action for the Court to determine.
THE COURT: [Defendant]?
[Defendant’s counsel]: Certainly wouldn’t disagree that the injunction lies with the Court. I just don’t understand where it fits in with this[.]
Now, relying in large part on those two ambiguous sentences by defense counsel, Judge Frank has decided that Defendant Wells Fargo waived it right to argue the benefit of the jury verdict in its favor binding the judge’s subsequent determinations of non-jury issues.
One has to have sympathy for a lawyer whose vague extemporized words at trial on June, 2013 (in a case that had been litigated for two years before that) are construed against his client four years later. All hope is not lost, of course. I strongly suspect that the U.S. Court of Appeals will have another opportunity to review this case in the coming months.