02.06.12 | Insights & Interviews
Elkan Abramowitz on Representing Individuals in 'The Trial'
Having built his career as a trial lawyer representing prestigious clients fallen into high stakes personal and professional crises, Elkan Abramowitz feels he’s at the top of his game. His success as a trial lawyer is legendary and for this he credits rigorous pre-trial preparation as key to handling courtroom tension—and effecting victory.
In February of 2012, Abramowitz won judgment of $16 million for his client, Donald Drapkin, in breach-of-contract suits against Ronald O. Perelman’s company, MacAndrews & Forbes, where Drapkin had served as vice chairman until 2007. On January 27 of 2012, a federal jury found that Perelman had dishonored payment obligations under the terms of MacAndrews’ severance and stock purchase agreements with Drapkin.
In the wake of the Drapkin case, Abramowitz sat down with independent journalist Thomas Adcock for a wide-ranging discussion about the making of a successful trial lawyer:
The following comes from an interview with Elkan Abramowitz conducted by Thomas Adcock, a New York-based independent journalist.
Q: Back in your student days at New York University School of Law, could you envision yourself as one of Manhattan’s leading trial lawyers?
They didn’t teach trial practice then. There was only moot court. I was kind of shy in class. I was always afraid of being called on. I didn’t feel that I wanted to spend my career speaking in public——until I participated in moot court.
Q: That brought you out of your shell?
I actually did pretty well in competition. I found that I really enjoyed oral argument. So from that point on, I thought maybe this could work for me. Then for a summer job I got into the U.S. Attorney’s Office, where I started watching people in court. After that, I became a law clerk, and kept watching. And I started thinking——I could do that, just as well as the next person. Now, obviously just watching isn’t the same as doing. So I joined the [U.S. Attorney’s] Office, and started trying cases.
Q: Do you agree with trial lawyers who say that the pressure of being alone in the well somehow makes them smarter than they normally are?
It’s not a question of becoming smarter. It’s more a matter of becoming more intense and focused. I got married in 1968 when I was still in the U.S. Attorney’s Office. My wife came to see me in court for the first time as I was giving a summation. I was pretty forceful and intense and she said to me later that she was really scared because she saw a part of me she hadn’t seen before. In court, I become totally immersed in the case: nothing but the case matters. Outside court, I meet clients and advise them. That’s fun, but not as much fun as a trial.
Q: What’s 'fun' about a trial?
It’s combat. It’s football without getting hurt. I love it! I love representing individuals in trouble, people I can help. Of course, I do a lot of cases where our client can make some more money, but I particularly like representing people with a problem that needs solving. I like representing individuals who come in with a serious problem and go out with the problem solved. That’s always been attractive to me. It doesn’t matter whether one individual has a civil or criminal problem. I can easily dance between criminal cases and civil cases.
Q: Wouldn’t life be easier if you simply settled the case?
Many civil and criminal cases need to be settled because the risk of trial may be too much to bear. But some cases should be tried. When I think we can win, I feel confident in my abilities to handle the trial. Many civil litigators do not try any cases and settle cases that shouldn’t necessarily be settled.
Q: How do you convince jurors that you’re right?
I try to establish a relationship with them. If you’re not looking at the jury during trial, you’re making a bad mistake. I read body language. If somebody has a quizzical look, I’ll question the witness again so the juror’s no longer confused. You see their eyes, and you’re communicating. If they’re not looking back at you, there may be a problem.
When I’m standing in front of jurors and I’m looking at them, I try to make sure they’re looking at me.
I have to try to be natural. If it looks like you’re performing, they won’t believe you. I want them to believe every word I’m saying. I don’t overstate. I have to get them to trust me.
Q: How can you trust jurors when all you know about them comes from questions at voir dire——what they read, for instance, what TV shows they watch?
You may be all wrong in judging a person by what they read, but that’s about as good as we’re going to get. You’ve got to take every nugget you get from the limited voir dire and extrapolate. You listen to those answers, and try to get yourself connected: If they’re a fan of a particular TV show, I’m a fan.
You have to have good instincts. When I’m doing a criminal case, I look for jurors who can think abstractly. A certain type of smart person who can say to themselves, “The guy did it, but the government didn’t prove it.” In a civil case, where I might be representing very wealthy clients, I’m looking for smart jurors who also can abstract a little bit. I need people who can say, “These guys are too rich, their salaries are ridiculous, but the law’s the law.”
Q: A weeklong trial may reflect years of litigation. How do you help jurors absorb that history?
You boil it down to a presentation that will hold a juror’s interest. You’re the stage manager, producer, director, screenwriter——you’re everything.
Q: Your wife is Susan Isaacs, a best-selling novelist. In court, are you also a kind of storyteller?
There is art in both oral presentations and written presentations. In both, you have to prepare, you have to have order and structure. A reader of a novel is prepared to devote 15 or 16 hours to reading it. In a summation you cannot keep anyone’s attention for an hour anymore——even if it’s a six-month trial. It’s got to be forty-five minutes but feel like fifteen.
Q: Are you conscious about word choice when addressing jurors?
Absolutely! First, talk English——not legalese. Use colorful but not disrespectful language. For example, I wouldn’t say, “My client did not materially breach the contract.” The jury will tune out from that. Breach is legalese. So instead I say things like welshing on a deal, cheating, reneging. You have to bring it to the jurors’ level, without being condescending; you’ve got to be one of them, not superior to them. Language is important. I give it a lot of thought in preparing openings and summations.
Q: Beyond trust in individual jurors, you seem to have a deep faith in the jury system. Why?
I’ve tried close to fifty cases, and I can’t tell you of one where I thought the jury made a mistake——even when I’ve lost. I really can’t. People who serve on juries think it’s one of the most important things they’ve ever done. They take it seriously. I’ve had discussions with lawyers [at client corporations] when we’re brought in to try the case. They view all juries as a gamble, but I just don’t. If we have a winning case, I feel confident that I can convince a jury of that fact.
Jurors with only a high school education know what’s going on, the same as anyone else. There’s a general intelligence about life and life’s problems. If I couldn’t break down [my case] into simple talk where I’m sitting at a table having dinner with somebody and explaining why my position is right, then I shouldn’t be a trial lawyer.
Q: What’s your win-loss record?
I haven’t kept score in a while. But the win count is pretty good.
Q: What accounts for losses?
Usually the facts were deadly. Again, it’s a function of how intelligent a jury is. If I haven’t got a factual defense, I can stand up and talk about the burden of proof and how you have to find guilt beyond a reasonable doubt. Juries see through that. If I’m talking like that, it means the facts hurt our side and juries can spot that.
Q: You’ve represented a lot of powerful individuals with large egos. What’s that like?
Generally, my clients are not meek. So I deal with it. I’ve had my share of lawyer clients, for instance, who can be difficult. They’ll tell me, “I want to say this.” So I’ll say, “You’re a corporate lawyer. Listen to me! You don’t know what you’re talking about. You can’t say that.” They ask, “Why not?” And I’ll say, “Rules of evidence. Remember that? You took a course?” But generally I’ve gotten along with my clients.
Q: How do you prepare a powerful client for relating to jurors they might not consider their peers?
I tell them, “If it’s a one-word answer, look at me. More than one word, look at the jury. Make eye contact so that they’ll listen to you.” I have a rule of thumb: one-sentence answers on direct examination. Because on cross-examination, you’re supposed to give short answers. I tell the client, “I don’t want to see a noticeable difference in your personality between direct and cross. If there is, the jury won’t believe you.”
Q: Your firm is a litigation boutique with fifty-five attorneys. What distinguishes you from large firms that assign hundreds of attorneys to their litigation departments?
Every big firm does litigation, but they certainly don’t have the number of trial lawyers of the caliber we have. There are very good trial lawyers at every big firm. But it’s one, or two. Here, we have somewhere between twelve and fourteen with first-chair trial experience. There’s not another firm in New York City like that. Which means that when a client comes to us and I’m tied up in the middle of a trial, I can say, “Try one of my other partners who try cases. They’re experienced trial lawyers and they know what they’re doing.”