The Power of Persuasion

Forum Column, Los Angeles Daily Journal
January 3rd, 2008

by Thomas A Mesereau Jr.

Persuasion is key to any jury trial. One can meticulously prepare but communicate poorly and lose. Conversely, a lawyer with less factual knowledge may be a genius at presenting the themes that win. Trials are a gamble.

Twenty-two years ago, the “civil trial of the century” took place in Houston. It involved three oil companies, Pennzoil, Texaco and Getty. Pennzoil sued Texaco, claiming it had tortuously interfered with Pennzoil’s contract to acquire Getty. Pennzoil sought $15 billion in compensatory and punitive damages. At the time, it was the largest civil claim ever made and resulted in the largest civil verdict in history ($10.5 billion). The verdict caused Texaco to file the largest bankruptcy, and greatest settlement, in history.

Texaco was running out of oil reserves. Pennzoil needed reserves to become a major competitor. Getty’s reserves were abundant.

Pennzoil thought it had acquired Getty and issued a press release announcing this. The Getty Board of Directors had approved the transaction “subject to the execution of a definitive merger agreement.” A family owned trust also approved the transaction with a document that required its actions to be consistent with fiduciary duties. No final merger agreement or contract was signed.

Within days of the announcement, Texaco offered a higher stock price and closed the deal before Pennzoil knew what had happened. In purchasing shares from the Getty family trust and museum, Texaco agreed to indemnify should any lawsuit grow out of the Pennzoil transaction.

The plaintiff’s lead counsel was Joe Jamail of Houston. A self-described “sore-back lawyer,” Jamail had won more verdicts and settlements of a million dollars or more than anyone in America. But he had never tried a case involving mergers and acquisitions or securities law, nor was he an expert in commercial law or oil and gas. One journalist claimed that a less likely lawyer was hardly imaginable for the case.

Jamail was raised in a large family of Lebanese grocers. A street fighter and self-proclaimed rabble-rouser, he dropped out of the University of Southwestern Louisiana and the University of Texas before later returning to finish college at UT. He talked his way into Texas Law School without taking the entrance examination and failed his course in torts. Jamail charmed the bar examiner and passed the Texas Bar without fulfilling all the requirements. He was a former Marine with a “gift for gab” and a severe dislike for arrogance, pomposity and bullies.

Jamail had tried every kind of personal injury case, as well as murder, incest and mule sodomy. He was a short man with a huge smile, engaging personality and devilish spirit. Jamail was eccentric, controversial and, at times, outrageous. His trial victories caused significant changes in tort law involving guns, drugs and product recalls.

By his own admission, Jamail liked to break the rules. He decried the notion that a lawyer should remain objective and not become emotionally involved with the client. Jamail believed that his passionate and emotional connection with his clients’ causes helped him win. He described a trial lawyer’s ego as both benefit and demon.

Jamail believed a lawyer must project outrage in order to empower a jury to award large damages. For example, he sued General Motors on behalf of a black woman who was crippled in a car accident. He tried it in front of an all-white, all-male Houston jury in 1972. He argued “She didn’t crawl in here and she isn’t crawling out. She is no Aunt Jemima. She is a human being. Either you are big enough to look at it that way or you’re not.” The jury awarded $1,551,620. His client was the first black woman to receive a million-dollar verdict.

Jamail would accept cases that looked like losers. He would take them because something didn’t “feel right.” In a close decision involving what juror to accept, he sometimes used a zodiac. One Jamail associate affectionately described him as “weird.” Jamail would instruct lawyers that everything in a courtroom comes down to how you feel about people. He would ask them how deep their understanding of people is, including human frailties, strengths, doubts, beliefs, dreams and hopes. Jamail believed a lawyer could not simply copy another or merely quote from common texts.

One lawyer described Jamail as the most adroit observer of human behavior he had ever seen. Jamail’s son, also a lawyer, claimed that his father taught him how important courage, honesty, justice and compassion were in court. Others described Jamail’s humility, generosity, humor and hatred of greed as powerful courtroom weapons.

Jamail tried the Penzoil case as a morality play where simple honor was more important than concepts like fiduciary duty and definitive merger agreements. He continually maneuvered the opposition into relying on legal and business technicalities to rebut common sense and simple, everyday honesty.

Jamail emphasized the fact that key witnesses had shaken hands after Pennzoil’s alleged acquisition, and had drank champagne. He sarcastically attacked the character and integrity of various New York lawyers and investment bankers. He painted Texaco’s conspiracy with these professionals as sinister and malignant. Jamail challenged the jury to decide what a promise and a handshake are worth. He cast Texaco’s indemnities as the price they were willing to pay to steal a billion barrels of oil from Pennzoil. An accomplished corporate lawyer, Bart Winokur, was labeled by Jamail as Texaco’s “Backdoor Bart.”

One observer described Jamail’s ability to sense what a witness would say as scary. He claimed Jamail could absorb energy from others and know what they were thinking. When forming trial strategy, he would question all kinds of people about what he was doing, especially non-lawyers. He believed trial communication had to be plain, powerful and simple.

In the Pennzoil case, a key strategic decision Jamail made involved courtroom choreography. In telling his story, Jamail decided to buttress his arguments with contrasting witnesses. He would call a likeable, believable witness on his client’s behalf and immediately call an equally unlikable, hostile witness from the other side. After questioning Pennzoil’s chairman, he had the temerity to quickly call Texaco’s chairman as a hostile witness. Human warmth, passion, outrage and humility were contrasted with a cold, stoic attention to precision, detail and procedure. Realizing that the trial would be lengthy, he felt this would leave immediate, lasting impressions. He was right.

Jamail appealed to the jury as society’s conscience and requested that they set the standard of morality in American business. He told them that you can only have “half justice” with “half injustice.” He challenged, “They think you are not big enough to assess those kinds of damages. I think you are.” Jamail said that the only lesson that Texaco could learn was through a big blow to its pocketbook. Reportedly, Jamail’s contingency fee was $335 million.

Jamail’s closing argument in the Pennzoil case sometimes appeared disjointed. By comparison, his Harvard Law-trained opponent gave a closing argument that seemed to flow in a more orderly fashion. But it was Jamail, not his opponent, who grabbed the jurors’ hearts. His folksy ways appeared to continually flummox the Ivy Leaguer. Kirk Douglas described Jamail as a great actor who played the humble, ordinary guy who hides his genius.

Jamail’s memoirs contain a photograph that is telling. Jamail has a wild, glowing smile as he leans against a bar in a loosely buttoned collared shirt. He has a full drink in one hand and a raised, middle finger in his other. The caption reads, “When asked what I thought about investment bankers!”

Copyright © 2008 Daily Journal Corp. Reprinted and/or posted with permission.


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