Carr attacks defense as 'amoral' in closing; jurors deliberate in legal malpractice trial

Steve Korris Mar. 28, 2008, 12:20am




Rex Carr, down to a precious few minutes with jurors at the end of an eight week legal malpractice trial, branded his opponent as amoral.

"She can't help what she is or what she says," Carr said in rebuttal to Carol Hogan, defense counsel for law firm Thompson Coburn, on March 27.

Carr, representing Magna Bank, said some people can't tell truth from lies.

"Those people are called amoral," Carr told jurors.

For a moment Hogan, breathless perhaps, said nothing.

Then she objected, and Circuit Judge Daniel Stack sustained the objection.

Hogan had braced jurors for Carr's comment an hour earlier, warning that he would get personal and pleading with them to think about it as she would.

Whether jurors appreciated Carr's attitude or understood the theory of his case, no one knew as the day ended.

Stack instructed the jurors after Carr's final words, and he sent them away at 4:30 p.m. They were sent home after 45 minutes and were scheduled to return at 9 a.m. Friday.

Carr set out in January to persuade jurors that Thompson Coburn's negligence in 1997 cost Magna Bank $11,789,000.

Magna Bank later merged into Union Planters Bank, which merged into Regions Bank.

If Thompson Coburn had helped Magna Bank set up a constructive trust for money that personal injury plaintiffs invested at SBU Inc., Carr argued, SBU owner James Gibson wouldn't have stolen the money.

Evidence closed March 26.

Hogan, in closing argument the next day, mixed facts of the case with enough jabs at Carr to raise his temperature.

At times she let others speak for her, showing video of former Magna Bank executives who testified Thompson Coburn did all it could to prevent Gibson's theft.

Hogan told jurors Carr's case rested on testimony of attorney Tom Keefe.

"He is a great trial lawyer," she said. "He has spent his whole life convincing juries to accept his arguments."

She said Keefe could argue a case and, five minutes later, argue the opposite side.

She called Keefe an independent witness and Carr said, "We never claimed he was an independent expert."

Hogan told jurors to look at a letter from Keefe stating he would make amends to Carr for suing him by testifying for him as a favor.

"Mr. Keefe just readily answered the questions the way he was told," she said.

"They weren't his opinions," she said.

She said Keefe and witness Bernard Ysursa advised clients to enter structured settlements with SBU.

"Couldn't they find someone who wasn't tainted?" she asked.

She said Magna Bank continued hiring Thompson Coburn after Gibson's victims sued the bank and even after Magna Bank sued Thompson Coburn.

She said Thompson Coburn told the bank it could no longer represent the bank.

She said she waited for Keefe to explain how the bank could have stopped Gibson.

"I waited to hear the air tight way that any of this mattered," she said. "I waited and I waited but it never came."

"No one told you how anyone was going to stop him," she said. "Sooner or later Gibson was going to get the money, no matter what Mr. Carr said."

Then Hogan turned up the pressure on her opponent, reminding jurors that Carr signed investment agreements for his clients with SBU.

She said Carr told clients they faced no risk and he told them SBU would have no control over their money.

She said Carr knew Magna Bank would be trustee only as long as SBU wanted it to be.

She said Carr offered an excuse that everyone was doing it, claiming there were 30,000 structured settlements with similar language.

"When Mr. Carr tells you all these lawyers agreed to this language, he hasn't read his own exhibits," she said, "because some of them took that language out."

She said Keefe admitted he paid a client who lost money and Ysursa was pretty sure he notified his malpractice insurer, and she called Carr "the only lawyer who steadfastly refuses to accept one bit of responsibility."

The Titanic looked safe, she said.

"Mr. Carr bought his clients tickets on a ship he had never looked at," she said.

"That ship was full of holes," she said.

"It was their job to protect their clients," she said. "It was not the job of Magna Bank or Thompson Coburn."

She told jurors they would be the first to assess the responsibility of plaintiff lawyers for what Gibson did.

Next she ridiculed testimony of Carolyn Ryseff, the bank's chief legal officer.

"You couldn't refresh this woman's memory with anything," Hogan said. "Why would somebody in her position feign complete loss of

She flashed a clip of television's "Hogan's Heroes," with Sergeant Schultz declaring, "I know nothing."

"It was a complete and utter setup from the beginning," Hogan said. "She couldn't remember her own name."

She said the bank wanted to recover money it spent settling claims of Gibson's victims.

She asked why they would settle, and she answered that they were afraid of judges Nicholas Byron in Madison County and Robert LeChien in St. Clair County.

She said that according to the bank's Randy Wuller, Byron would do whatever Rex Carr asked him to do.

"If you settle because you're afraid you won't get a fair trial," she said, "that ends my responsibility."

She said the bank hatched a plan to settle the claims, manufacture evidence and come after Thompson Coburn.

"They thought we would be afraid too," she said. "They thought that if they sued us, we would settle with them.

"They never expected that I would be standing here, but here I am."

She said that according to Wuller, Carr had great influence in Madison County.

"Only Randy can tell you what he meant by that," she said.

She said Carr told them not to talk about testimony of witness Dennis Cashman.

"He made it sound like if one of you says 'Cashman,' someone has to knock on the door and tattle," she said.

"You can talk all you want about Mr. Cashman's testimony," she said.

She thanked the jurors for bravery and dedication, and said she appreciated that none of them asked to get off.

She said Carr would speak next and she wouldn't get another chance.

She said he would get personal.

"When he does," she said, "try to think what I might think or what I might say."

If Hogan intended to rattle Carr, she succeeded. For the 32 minutes that remained, he talked mostly about himself.

"It is not often I am ashamed of my profession but I am today," he began.

He told jurors Wuller didn't say he had improper influence.

He said he hoped every favorable result he had achieved had been due to the merits of the case and his integrity.

He said it was the first time he had been accused of colluding with a judge to get an improper result.

He said if anyone manufactured evidence, "That's a crime. That's a fraud."

"Anything she needs to do to win this case, she's going to do," Carr said.

He said Hogan's remarks on Ryseff were abominable.

He said she accused Keefe of perjury.

He said he hoped she would turn Byron and Stack in for misconduct.

Hogan objected and Stack sustained.

He said Judge LeChien wrote a brilliant opinion.

The pages of yellow paper in his hands fluttered as the hands

He said he too felt responsible for client losses.

"I felt for them," he said. "I did not charge them another fee. I could have.

"If I'm going to be condemned, let the world be condemned."

He told jurors he could show a dozen places in Hogan's closing argument where she lied to them.

"I'll withdraw it," he said, but instead he escalated it by calling her amoral.

Then he said, "Did we prove it? Tom Keefe says we proved it."

Hearing that his time had run out, he said he proved breach of contract, Thompson Coburn didn't prove its defenses, and jurors should award $11,789,000.

Stack then read instructions to jurors, spending several minutes reading 17 separate allegations that Carr brought against Thompson Coburn.

Minutes later, at 4:25 p.m., Stack found himself starting to read the same list.

He said, "Does anybody feel that I have to read these all over?"

Carr said yes, Stack droned on, and jurors stopped listening.

While Stack finished, three jurors propped up chins with hands, one rocked back and forth, one jiggled his legs, and one, a smoker, chewed his fingernails.

At last Stack wrapped it up and sent them to deliberate.

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