I’ve just spent almost the entire month of September serving jury duty on a civil case brought by Mr. Park, a member of the Los Angeles Korean community, against Wells Fargo Bank. Let’s see if my notes on the trial can be less painfully drawn out than the trial itself.
Background
A few notes about civil cases. Decisions do not need to be unanimous, 9 out of 12 does the trick. Blame does not have to be absolute. One side could be 70% responsible, the other 30%. The burden of proof is not “beyond all reasonable doubt.” Depending on the accusation, it could be “more likely than not” or “clear and convincing.”
Now on to the case. Mr. Park was robbed of over 6 million dollars by a con artist. The con artist has fled back to Korea. Looking for somebody to sue, Mr. Park turned to Wells Fargo, who accepted checks not intended for the con artist. The checks were intended for Carlin Equities Corporation, a brokerage firm in New York. Acting as a middle man, the con artist took the checks and deposited them in his own account.
The Case Against Wells Fargo
The first count brought was one of negligence. Wells Fargo accepted for deposit checks made out to “Carlin Corp” into the con artist’s “Carlin Co” account, the full title of which was “Won Charlie Yi, dba Carlin Co”. In the business/banking world there’s a huge difference between a dba (doing business as) account, and a corporation.
The second count brought was one of aiding in fraud. A web of conspiracy theory was woven around the idea that a Wells Fargo employee helped the con artist, that she was totally in on it.
Regarding the negligence, in actual practice checks are regularly made out to something other than the company’s exact name. Clearly the system could be better (how archaic is the practice of scribbling the payee by hand on a piece of paper?) but that’s the current industry standard. As to the fraud, it would be easy to prove that she “should have known” what was going on, given suspicious circumstances surrounding the deposits, but the burden of proof was to convince the jury that she “must have known.” That was not done.
The Weird Ways of the Law
Here’s how the trial went:
- both sides gave opening statements,
- the jury sat through 2 1/2 weeks of the most mind numbingly repetitive testimony and evidence,
- the judge presented the law in the form of a series of questions and instructions (like a choose your own adventure book!),
- the lawyers gave their closing arguments, and
- the jury deliberated.
Notice that the relevant law is not presented (or even agreed upon by the lawyers) until after the evidence phase.
Deliberation
The jury, as a whole, was incapable of following basic instructions and understanding simple logic. A portion of the jury also had significant difficulty making rational decisions, bowing instead to emotion. It was only under direct orders from the judge that the law was followed. Here’s how it went down.
When the jury goes into the deliberation room another trial starts out in the courtroom, but the jury has the right to ask questions. Those questions require that the judge and all the lawyers all come back into court, suspending the new trial. The jury did this twice, once to satisfy its stupidity, and again to bandage its conscience.
The first questions on the jury verdict form determined whether we would go on to the negligence questions, or skip straight to the fraud question at the end. The questions contained some legal jargon like, “impostor”, “intended payee”, and “fictitious company”. The instructions clearly defined these terms, and the lawyers even agreed whom all of these terms referred to. All that was left was to read and understand the simple sentences that formed the question, inserting actual names in place of the legal terms. With the help of the librarian juror (one of the 4 intelligent & sensible people on the jury), I did this.
We wrote the question on the easel pad for everyone to see, “Did Mr. Park not want Carlin Equities Corporation to get the money?”
But there was a problem. The obvious answer to the question resulted in a double negative. The jury as a whole was unable to wrap their heads around this concept. Some of them were just being stupid. Others, I think, had a cultural language problem. I have heard that in Spanish and African American dialects a double negative actually means more negative. Another jury member skipped to the instructions, saw that we would not be able to find Wells Fargo even partially guilty of negligence, and refused to ever change her answers.
We called the judge back in, and forced the lawyers to change the wording so that the question was positive. The instructions were also changed, becoming more complex, but at least we could move on, or so I thought!
Now that we were moving on and skipping the negligence questions (more on the legal loophole Wells Fargo used to avoid those later), several members of the jury, including the presiding juror, were losing sleep over not being allowed to talk about the alleged negligence. The judge and lawyers were called back in so that the presiding juror could say, “The jury is feeling hamstrung by the questions, and doesn’t understand why we can’t go on to the question of negligence, would somebody please explain the law behind these questions?” The judge, amused by this point, still refused to say anything other than, “Can you reach an agreement on the answers?” and, “Follow the instructions.”
So that was that. The jury moved on to the question of fraud. Opinions were shared about the reliability of witness testimony, and evidence was reviewed. Three people arguing for fraud, but the evidence was so speculative that the only real argument was an emotional one. Without being able to make a rational argument, the three could not come up with enough substantial evidence to persuade anyone else to find the Wells Fargo employee guilty, and Mr. Park ultimately walked away with nothing.
The Legal Loophole
After the verdict the lawyers all wait in the hall outside the courtroom to talk to the members of the jury. Most of the jurors brushed them off, but I held back and got the Wells Fargo lawyers to approach me, eventually becoming surrounded against a wall. I had a piece of information for them, and in return I had a question to ask. The juicy bit of info that I had to share was that one of the jury members was so hostile towards the banking industry that she didn’t even own a checking account. Oops! Next time if there’s no loophole they’d better ask the right questions during jury screening.
My question in exchange was to ask them to explain the loophole that Wells Fargo used to avoid the negligence charges altogether. They explained that much in the way that attorneys and clients have special privileges (we’ve all seen enough cop shows to know how that works), banks and their customers are also protected by the law. Since Mr. Park was not a customer, certain special criteria had to be met. The Wells Fargo lawyers regretted not being allowed to explain this more clearly in their closing arguments, but they are not allowed to argue about the law, only evidence. Now, I personally remembered that they did mention this law in their closing, but I couldn’t get anybody else on the jury to recall it.
To add to my personal amusement after this excruciatingly boring experience was finally over, while we were gathering our paperwork I spoke with the above mentioned “hostile jurist”. She expressed her sympathy at my being cornered by the lawyers, not knowing that I had initiated that exchange. I told her that I had grilled them back, and explained what I had learned about the legal loophole. She said that in another trial I would make a good presiding juror. I thanked her, but know that on a future case I would want to be exactly where I was on this one, sitting beside the presiding juror, making loud, forceful, and most of all logical arguments, but not feeling responsible for making sure that everybody got their say. If I had lead this jury we could have avoided all the whining about feelings, but the job our presiding juror did at involving everybody in the discussion was really commendable.
Why Were We Even There?
– or –
Mr. Park’s Day In Court
A theory was presented by the librarian juror as to why this case was even brought to court when the law did not support it at all, is that Mr. Park wanted his day in court. Back in 2004 Mr. Park was sued. His insurance company decided to settle, paying Mr. Park’s lawyer fees and the $500k settlement, but Mr. Park never got to see it through to the end. The theory is that this case was his chance to fight it out in court, and he used his money&influence to force his lawyers to try a case that couldn’t be won. The other option is that his lawyers just sucked, and the Wells Fargo lawyers were very good, even if they did come off as “evil corporate lawyers”.
Anecdotes
Now that I’ve made it through the process of explaining the case I could share some amusing anecdotes about the jurors, lawyers, judge, and witnesses. But I’m tired of writing about this, so we’ll just have to take it up offline.
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