Red Herrings May Distract Jurors but not the Judge: Don’t Give Up Your Case

A CLOSING ARGUMENT IN FEDERAL COURT

I was up for the closing argument in a federal civil rights trial for age discrimination. Typically, the defense had raised a lot of “fluff” and other spurious defenses that were designed to be distractions and give some of the jurors a reason to doubt our case. As I approached the jury, I pretended to stumble, then recovered quickly. (You all do understand that a trial is a kind of a play and all the parties are actors, including the attorneys, right?)

I explained that I’d tripped over all the “red herrings” the defense had scattered around the court room, and of course explained that a red herring is often used to distract from the evidence and to divert attention to something that is misleading or irrelevant, but appears to be relevant.

But, after just a few minutes I knew I had a problem. One man sat in the back, arms folded, staring at me. Uh, no, let me rephrase that–glaring at me. I knew I had my work cut out for me. And, after a few more minutes I realized I had another juror to deal with. She sat on the front row and never once looked at me. I was the kind of attorney who kind of walked around in front of the jury, so I quickly noticed that her eyes never followed my movements. Not once. I felt good about the rest of the jurors.

The jury went out and it was nearly 10 p.m. before they came out. We’d finished up early in the day, so they’d been in there about 7 hours. Finally, they came out. The verdict was $110,000.00 for our client. (We’d asked for $150,000.00, but our client told us he’d be happy with just $10,000.00!) The statute allowed us attorney fees and after some negotiations, they paid us a fair sum. I received a call from a juror the next week who wanted my card, and he told me that those two jurors who were both supervisors in the workforce, didn’t want to give him anything but that the rest of the jurors had persuaded them, with one young juror threatening to “be here until hell freezes over!” unless they gave our client something. The two jurors wanted to go home.

This case was one which I tried to turn down. I really thought it was a loser. I even argued with the client, who was from Poland and had a heavy Polish accent. I still recall his initial declaration in my office, “Dey can’t do dis to me!”

There was so much against us in the case. Eventually, we won the case because of one witness who was a current employee who was willing to come forward and, at risk of his job, testify to things he’d overheard the Plant Manager make at a company Christmas party where, in a drunken rant, the man had talked about how he planned to get rid of our client because he was too old and “we need to get these old fools out of here.” But, in the beginning of the case, we did not have that testimony. In the beginning, we really had a loser for a case.

God Sees Events We Cannot See

I learned some things from that case, both as a lawyer and as a Christian. One thing I learned is that even when we have situations in life that are clearly against us and look really, really bad, we cannot give up. God sees some “evidence” coming into our case that we don’t see. God sees people coming forward to help us that we don’t know about and cannot foresee. God sees twists and turns and events that we cannot even imagine. And, where we see a “losing case,” God sees a case that ultimately, will be rewarding.

I recall the years when I started having heart issues, but was ignorant of my problem. I got to a point where I had almost no energy and would go into the office and just sit. If a new client came in or called, I’d turn it down. I learned living on savings is not the best way to save money. It doesn’t take long (unless you’re very well off) to see your savings dwindle to next to nothing. During these years, I went to three doctors over a 7 year period. All of them mis-diagnosed me, one telling me it was age (I was in my 60’s) and another saying he didn’t know. I actually concluded I probably had cancer. I never said anything to my wife about it. I’d accepted it and I felt the Lord would take care of things, somehow.

One evening, about two in the morning, I woke up with my heart racing. My wife was staying over at my daughter’s house that night for some reason. So, I didn’t want to bother her and wake everyone up, so I drove myself to the hospital. It was actually a comical event (now), looking back. One thing I learned is that when your heart races as mine was doing, you will discover you have more liquid in your body than you have in your refrigerator. It took me 3 pit stops to make it there.

Once there, they gave me something to stop the racing heart, then put me through all kinds of tests. After about 10 hours, I met with a heart doctor. He had all the test results and gave me a stress test. They’d slowed my heart rate down, then I’d spent the day taking tests. At the end of the day, after a stress test, the doctor slapped me on the back, handed me a prescription and said, “Well, your heart looks fine. You’re blood pressure is a bit high, and I’m giving you a prescription for that. Come back and see me in 11 months.”

Six months later, I was being rushed to the ER by my wife in the early stages of a fatal heart attack. They told her that if she’d been five minutes more, I’d be dead. I nearly died on the operating table after getting a bad dose of Heparin. I’d end up being in the hospital a month and it took me nearly six months before I really was functioning somewhat normally. I had gone through a quad-bypass. The doctor I’d seen 6 months earlier had missed the fact that I had 2 main arteries that were 96% blocked, and 2 others over 85% blocked.

But, by the time that event had hit, we’d gone through all of our savings. I had maybe one or two cases in the proverbial “pipeline” so they had to be settled before I was paid, and the fees were only a few thousand dollars. In short, we were dead broke.

ORDEALS AWAIT ALL OF US

I won’t detail here how God took us through that time. The enemy tried, time after time, to toss “red herrings” in our path in those days. But, friends helped pay our utility bill for a few months, and the church paid our mortgage for a few months, and family assisted in other bills. And, God brought me a case that was truly miraculous.

Several months prior to my heart event, I’d invited a long time friend, the Lake County Prosecutor, to church for a prayer breakfast. Afterwards, he’d asked me if I would be interested in a contract job doing civil forfeitures for the State. This is where the cops do a drug bust and seize all the ill-gotten gains of the drugs, including cash. As one of a few attorneys doing these cases, we were paid a percentage of whatever was seized for our fee. I didn’t know it at the time, but God was looking down the road and putting someone in my path who would be instrumental in my being able to get through a very, very tough financial time.

Just before going down with my heart issue, I’d accepted a case where the State Police had stopped two guys who’d come up from Ohio to sell their drugs. (We are a drug corridor, in case you didn’t know it.) After they were stopped, the officers found some drugs and in the trunk, $55,000.00 duck-taped.

Just a month before I went into the hospital, I’d moved for a Default Judgment after serving them in Ohio with a Summons. They’d not responded to the Summons. When I came home after a month in the hospital, I found the Court had granted my Motion. Then, an attorney appeared and I was pretty dismayed because there was a good chance he’d get the default overturned. A hearing was set. Meanwhile, there was absolutely no income. If I did not get paid, bankruptcy was almost a certainty.

The attorney was an older lawyer who I’d never met. I listened as he argued his case for nearly a half hour to the judge. I listened as he made spurious arguments, little more than “red herrings” designed to distract the judge. I’d prepared a trial brief, something I’ve always done as it sometimes can be essential to educate the judge who may not understand the legal issues clearly, or see the correct application of the law. I’d done that in anticipation of those red herrings and wanted the judge to focus on the law, and only the law. After he sat down, I stood (rather unsteadily, as I was just 4 weeks out of the hospital). I made a 5 minute argument, and looking back, I doubt I could have done much more than that.

The judge opened the Rule book and began, “I’m not surprised that Attorney Glover has argued this Trial Rule,” then proceeded to elaborate on the importance of that rule to the case. I left the court room knowing that my bills would be paid for the next 3 or 4 months, long enough for me to recover my health and renew my law practice.

God has shown me, in life, that while we may be stupid enough to destroy our health (like I did with my abuse of my body with grueling, long hours and an unhealthy diet), or dumb enough to make some mistakes in life, He is not going to abandon us. When the enemy tosses “red herrings” into our path to distract us, they are never a distraction for God. While we may see them as important, God sees them as mere chaff blowing in the wind of His breath.

Whatever hard times you’re going through, keep on trusting the Lord. Realize that, although you are afraid, you have the same remedy that King David, the Warrior whose bravery is unquestionable, but who came to know what it was to be afraid.

He said: “What time I am afraid, I will trust in thee” (Psa 56:3).

If you want to hear an extreme example of the Lord protecting His servants where death was an almost certainty multiple times, follow the link and listen to the story of a Missionary family in China. A Thousand Miles of Miracle in China