June 3, 2016

Trial Pros: Arnold & Porter's Tim Macdonald

Published in Trials Law360

Law360, New York (June 3, 2016, 10:46 AM ET) -- Timothy R. Macdonald heads Arnold & Porter LLP’s Denver office and focuses on complex commercial litigation. Macdonald has tried cases across the country, in federal courts, bankruptcy courts, state courts and before arbitration panels. Macdonald has extensive experience in a variety of business disputes, contract claims, insurance litigation, environmental matters, breach of duty claims, securities litigation, toxic tort claims and Native American law.

Macdonald has been recognized by Chambers USA: America's Leading Lawyers for Business Litigation in Colorado each year since 2007. Macdonald has been recognized as a Top 50 Colorado Super Lawyer. Best Lawyers in America selected him "Denver Lawyer of the Year" in 2015 for Appellate Practice. Law Week Colorado chose him as a "Lawyers of the Year" in 2014. Macdonald is the board chairman for the Colorado Lawyers Committee. He co-founded two legal night clinics that have served more than 12,000 families since their founding.

Q: What’s the most interesting trial you've worked on and why?

A: One of the most interesting trials I’ve done was for a Native American tribe seeking to engage in their religious practices on land controlled by another Native American tribe. Although the sacred sites were on the aboriginal land of my client, and had been for more than a thousand years, the land had been transferred to another tribal nation thanks to the actions of the United States government. The federal government had pitted these Native American nations against one another since the mid-1800s. As a result, my client was being denied the right to conduct sacred religious ceremonies at the shrines where, according to their thousand-year-old traditions, they must be done. But just as you cannot tell Muslims, Christians and Jews not to visit Mecca, St. Paul’s Basilica or the Wailing Wall, this was not an option for the faithful. At the outset of the case, I met with the affected tribal leaders who told me that the fate of the world rested on this case. If we lost, the world would end; the earth would stop spinning. Their religious practices were not just a part of their own faith, but were conducted for all of humanity. The case involved witnesses using three different languages, difficult issues of translation, complex tribal treaties, hundreds of maps and documents dating back decades. It was tried before a special commission of five judges, two members from each of the tribes and a state court judge. It was one of the most stressful trials of my life, both because of the difficulties of the legal issues and the gravity of the situation we faced. The client was motivated in a profoundly different way than most disputes, and they were among the most gracious and appreciative people I have known. After we finished a two-week trial, the earth was still spinning and still spins today. My young son received an honorary tribal name from the elders, and I remain deeply indebted to the trust and faith that they put in me.

Q: What’s the most unexpected or amusing thing you've experienced while working on a trial?

A: During a recent trial, I thought I had a killer opening and came much closer than I thought. It led to the most unexpected experience of my trial life. As a marathon runner and avid cyclist, I use exercise to clear my head and hone trial themes. But in the run-up to a recent month-long jury trial, I was failing to make time for exercise. We had thousands of exhibits, more than 40 potential trial witnesses and sophisticated parties on both sides. In the final days before trial, my team and I were working nearly around the clock. While I am typically energized during the excitement of trial, I found myself exhausted, but chalked it up to lack of sleep and exercise. As I prepared and prepared, mooting my opening time and again, I did not feel like myself. But with the help of an amazing graphics team, we put together a powerful opening and had an excellent first day of trial. That first evening after Day 1, recognizing that I had to regain my routine, I decided to go for a short run to clear my head for the trial marathon that awaited. A mile into the run, I felt out-of-breath and had to walk, not my usual state. I made it back to the office and settled in for an evening of final tweaks to the cross outlines. After a short sleep, we headed to the courthouse for Day 2. As we entered court, I mentioned to my partner that I was having strange chest pain. Although he insisted that we call a cardiologist on the spot, I proclaimed indigestion and that we risked the ire of a federal judge if we dallied any longer. He relented, but said that we would deal with it on the first break. As often happens, the day went sideways and the breaks were filled with urgent consultation and strategy discussions. I made it through Day 2 of trial, and returned to the office that evening with additional chest pain, feeling and looking unlike my usual self. Nothing a good run can’t cure, I thought. I put on running clothes once again, but before I made it out the door, my team intervened. They insisted I head for an urgent care clinic to get checked out. While I thought about running to the clinic, to kill two birds with one stone, I jumped in a cab instead, one of the smarter decisions I made that day. I promised the team I would return to the office in an hour after I was cleared. As I waited in the ER, I honed my cross-examinations for Day 3. I remained focused, distracted only by the periodic efforts to draw blood and take a CT scan. I paced my small, curtained room, thinking about the best ways to restructure the cross for maximum effect. A nurse finally arrived, telling me to lay back down. I don’t want to, I explained, I need to finish revising my cross outline. “You will die if the blood clots move from your lungs to your heart, so you better lay down right now,” she said. I’m Macdonald, I say, you have the wrong patient. “Oh, the doctor hasn’t talked to you yet?” No. “You really need to lay down right now. You have a pulmonary embolism.” As the words rattled around my head, I worried about my family and death, yes, but also about who would do my crosses the next morning. While everyone worried about me and showered me with their concern, they also did what had to be done for Day 3. Part of having partners, true partners, is that they care deeply about you. The next morning, they announced ready and explained the absence of their lead counsel. To his great credit, the federal judge called a three-day recess, and the case that had been litigated for six years settled before the weekend was out.

Q: What does your trial prep routine consist of?

A: I start by building witness notebooks for every witness in the case. Each notebook has every potential exhibit that could be used with that witness. I build an outline for each witness, incorporating the best (or worst) admissions from deposition testimony, key questions from the documents and ideas to emphasize trial themes. I work with the most talented legal assistants on the planet to game out how the examination and impeachment will work with electronic presentation of key exhibits or video testimony. We repeat mock cross and direct exams using trial graphics, and we make sure we have back-up plans in case the electronics go down. I spend a lot of time thinking about the questions a witness will not expect. Unlike some practitioners, I do not believe in the admonition to only ask questions for which you know the answer. While that is a starting point in every cross, you must calibrate the risk of going beyond. You must be prepared, on the fly, to go down a line of questioning with “yes” “no” or “maybe.” Done properly, it can change the trajectory of a trial. But you must be prepared, and have a plan, for each potential answer. I also devote substantial attention to my own witnesses. I prepare mock cross examinations of the hardest questions they can be asked. We go over them again and again. We work on how to sit, how to present and how to engage. We figure out the most compelling way to tell our story. My witnesses often do not like these sessions, but they are better prepared on the stand because of it.

Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?

A: Prepare, prepare, prepare, know all the details and then remember the big picture and the themes to convey. Understand the details so that you don’t hit a land mine, but don’t get lost in those details. Drive everything toward your story. Trial work is energizing, and done right, it is a lot of fun. Try to remember that. And don’t have a pulmonary embolism if you can help it.

Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.

A: Rich Gabriel, now Justice of the Colorado Supreme Court, and formerly a trial attorney with Holme Roberts & Owen. When I was a baby lawyer, Justice Gabriel instilled in me the importance of having a consistent theme for every case. He taught me that the best trial lawyers are, at heart, story-tellers and that you must always weave a compelling narrative with your facts. He is also one of the most public-spirited lawyers I know and cares deeply about mentoring young lawyers.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Subscribe Link

Email Disclaimer