Defending Goliath

Kenzo Kawanabe of Davis Graham & Stubbs on what ultimately influences jurors

Published in 2010 Colorado Super Lawyers — April 2010

Question: What is your most difficult case? I’m not sure that I can point to one case as my most difficult, but two cases I’ve taken to trial stand out because they had unique facts, and, in one of them, potentially deadly consequences.

The first case involved a couple who purchased a legal services plan from my client, a New York Stock Exchange company that sold such plans across the country. The couple sought millions of dollars in damages, claiming that a legal services plan law firm negligently referred the couple to another attorney, who missed a statute of limitations deadline for a personal injury case stemming from an auto accident. The challenge was that it was a “case within a case,” so we had to prove, 1) the lack of merits in the plaintiffs’ underlying personal injury case, and 2) the fact that the legal services plan was not to blame in the referral of the case to the attorney who ultimately missed the deadline. The challenge was increased by the complexity of having to gracefully distinguish our client from, while working with and sitting next to, the co-defendant law firm.

Plaintiffs often use David v. Goliath themes, and this case was no exception. Over objection, the plaintiffs were allowed to introduce evidence of our out-of-state client’s revenues and sales techniques. We countered by demonstrating that the auto accident had not caused the injuries the couple claimed to have suffered, and by highlighting the settlement that the plaintiffs had already reached with the attorney who missed the deadline. We worked to show that, in this case, the plaintiffs were trying to obtain a windfall from an unfortunate situation rather than compensation for their actual damages.

While jurors are certainly influenced by David v. Goliath themes, I believe they are ultimately driven by fairness. In this case, the judge dismissed certain of the plaintiffs’ claims directly, and the jury returned a full defense verdict on the remaining claims.

 

Question: What about the other case? I generally try and handle at least one pro bono case as part of my practice, and in 2003, I represented a refugee from Togo, Africa, who was seeking asylum. In Togo, my client was arrested and jailed four times, and beaten on all four occasions, for helping to organize political opposition in a country that historically has had a single family controlling power for decades.

My client’s fourth arrest occurred while he was speaking to a mass of people about the opposition party’s boycott agenda for the upcoming summer presidential election. During the third week of his imprisonment, guards ordered him and another colleague to fight the other two prisoners in their cell. When they refused, the guards brutally beat them with belts, wood and shoes—killing my client’s friend. My client suffered multiple wounds from that beating and still bears a large scar on the bridge of his nose. He eventually escaped from prison and fled to the United States, leaving behind his pregnant wife and young daughter.

The Rocky Mountain Survivors Center arranged my representation for his asylum trial before the Immigration Court. We had to show that he was wrongfully persecuted based on account of his political opinion.

We assembled a large binder of documents for proof. Additionally, we were able to garner volunteer experts, including a country-conditions expert from a New York university, as well as medical experts who verified that my client’s scars were consistent with the reported beatings and torture, and diagnosed him with post-traumatic stress disorder from this persecution. But the key piece is the client’s testimony and credibility. It’s preparing him and putting him on the stand to tell his story.

In the asylum world, more times than not, you lose, and the person is sent back to their home country. I think in Denver there is less than a 40 percent grant rate, but that’s pretty good compared with other jurisdictions. The odds are always against you.

But, for me, the stakes were the most difficult aspect of this case. Unlike my commercial cases, a loss meant that my client would be returned to Togo, where he would likely be jailed, beaten and possibly killed.

At the close of evidence, the judge granted my client asylum. As a result, he was able to bring his wife and daughters, including his second daughter, whom he had known only through pictures, to Colorado. Now they have a third child, a son, born in the United States.

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