Mistrial was on the table in marathon legal malpractice case

Steve Korris Mar. 21, 2008, 3:26am

Attorneys in the Thompson Coburn legal malpractice trial care deeply about constructive trust and fiduciary duty, but the jurors don't seem to care at all.

On Thursday, March 20, with sunshine beckoning through high windows in Circuit Judge Daniel Stack's court, the jurors wore expressions like teens in detention.

They expected to have returned to their daily routines by this time, but instead they sat in their box watching men exchange contempt.

At the height of hostility between Regions Bank counsel Rex Carr and Thompson Coburn witness retired Adams County Judge Dennis Cashman, three jurors dozed, one slumped forward, one shook his legs, and one bent hard left.

At one point Carr dramatically sent a single sheet of paper to each juror and then ran so far off point that, one by one, the jurors slid the sheets into their folders.

The unfortunate 12 didn't know that two days earlier, Cashman's testimony on fiduciary duty and constructive trust had plunged the trial into doubt.

On Tuesday, March 18, with the jurors away, Stack admitted he created confusion and told attorneys it might be a mistrial.

He chose to press on, so these jurors get to decide if Thompson Coburn should have told its client, then Magna Bank, to seek a court order for a constructive trust to protect money that personal injury victims had won in court.

James Gibson stole the money. He now serves time in federal prison.

At the start of trial, Stack signed an order barring testimony that would dispute or contradict an order he signed last year on constructive trust and fiduciary duty.

Cashman disputed it Monday, and on Tuesday Stack met with attorneys.

Carr said, "This witness yesterday didn't just say that he disagreed with your ruling. In my judgment he insulted you."

"You found that a constructive trust could have been imposed to prevent Gibson from getting the money," he said. "This witness has gone directly against your order."

Stack said, "Quite frankly, I think my rulings have been confusing to you."

Carr said, "You can fail to correct this if you want to, but then -"

Stack said, "I want to correct it."

Carr said, "If I lose this case, we are doing it for nothing."

He told Stack to instruct the jury that what he said is the law of the case.

Carol Hogan, for Thompson Coburn, said, "Anything you say to the jury about what Mr. Cashman did will make it look as if Mr. Cashman violated an order."

Stack said, "It's such a difficult line to walk because I made this ruling and said everyone has to accept that this is the ruling that I've made but they can disagree with it."

Hogan told him that on Feb. 26 he said he should have ruled that a constructive trust could have been imposed.

"I remember that I said that," Stack said. "I think it was incorrect."

He said there was a fiduciary duty.

Hogan said, "That's your ruling now? That there was a pre existing fiduciary duty?"

Stack said, "I think that was always my intent, but I said it wrong. Maybe it's a mistrial. I don't know."

Carr said, "No way, judge. The crucial thing is there was a fiduciary duty created by these documents. You said that."

Stack said, "I said that a year ago."

Hogan said, "When Mr. Cashman got up and said, I don't think the fiduciary duty can ever come after, it's because this is what everybody understood your ruling was."

She said, "We have worked so hard in this case. I do not want a mistrial."

Stack asked for time to write.

"The defendants in this case have been unintentionally misled by the Court's prior rulings and have built their defense around those misstatements," he wrote.

The appropriate resolution, he wrote, would be to admonish the jury of what the rulings should have stated.

"Defendant should also be granted the opportunity to either move for a mistrial or to have a recess long enough to redesign their defense to fit these rulings," he wrote.

When he read it to the group, Carr said, "You're trying to pacify each side here and it's not fair to sacrifice the plaintiff's rights."

Carr said, "You have to say, your honor, to protect the plaintiff in this case, that this witness was wrong in his statement of the law, that the court gives the statement of the law, and you're not going to countenance being called a bloody dunce."

Hogan told Stack he should instruct the jury "that you have found a constructive trust could have been imposed and it's their obligation to figure out whether our failure to do that was malpractice."

Hogan didn't ask for mistrial, so the trial resumed and Cashman continued testifying.

On Thursday, Stack told jurors that evidence would close Tuesday, March 25.

After that, he said, they would hear closing arguments. Then, he said, he would instruct them and they would deliberate.

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