The divided verdict surprised experts, but alternatives were also very costly.
Former Minnesota Gov. Jesse Ventura defied expectations again, in a big way, by winning a $1.8 million verdict in his defamation case.
It’s easy to look back and say the defense made a critical mistake in agreeing to accept a less-than-unanimous verdict. But I’m confident it was thoroughly considered from every angle. I’ve been opposing counsel in defamation matters with the defense’s lead counsel, who is an extremely smart and hardworking attorney.
What were some of the considerations facing the defense, and why did it make the choice it did? Here’s my speculation as a distant observer.
First, if the defense had not agreed to U.S. District Judge Richard Kyle’s proposal to accept a divided verdict, a mistrial would have ensued. Ventura would then have decided whether to continue to a second trial. I was very briefly involved (as a lawyer) in a lawsuit Ventura brought in the early 1990s, and saw up close how seriously he guards his persona.
Second, after a mistrial, a settlement would have been unlikely, given the history of failed settlement attempts in this case, the nature of the parties and the stakes involved.
So a second trial would have seemed a virtual certainty.
Another trial would have been very costly for both sides. Ventura appeared to have more financial means and personal stamina for it than the defense here. A second trial also could have been vastly different from the first, as witnesses have a tendency to bow out, and what was once strong testimony might change or fade in potency. It is uncertain how long it would have taken to get to a second trial.
No doubt the defense thought it had presented a strong case to the jury. Certainly, many local legal experts and longtime practitioners believed Ventura was the underdog in this fight, including me. The conventional wisdom, just as in 1998, was upended.
That the defense was wrong shows that for even the very experienced and learned, juries have a way of surprising. And, that “The Body” is never on the mat for long.
Phillip Trobaugh is an attorney in St. Paul.
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