Michael A. Collyard: A behind-the-scenes Look at the Case That Made Minnesota History

“Michael Collyard! You just won the largest jury verdict Minnesota has ever seen!” What will you do next?

“All I want is to find the next case and do it all over again.”

Michael A. Collyard is a partner at Robins Kaplan LLP, and the chair of the firm’s banking and financial crime litigation and ediscovery group. His most recent legal win is comparable to a Super Bowl victory.

In Kelley v. BMO Harris Bank N.A., Collyard was the lead trial counsel for Douglas A. Kelley. This case arose out of one of the most notorious Ponzi schemes in American history, perpetrated in part by Tom Petters. After Collyard proved that Petters had laundered almost $74 billion through small business accounts at M&I Bank (which was purchased by BMO Harris Bank) in 2011, Petters was sentenced for fraud to 50 years. In November 2022, a jury convicted Petters of fraud. The trustee is seeking prejudgment interests that would increase the bank’s total liabilities to $1 billion.

Even for Collyard, it is difficult to win a case this large. This was not Collyard’s first high-stakes case. His ability to turn complex financial issues into compelling stories is a hallmark his practice.

He says, “This was a huge and complex case that lasted five-and-a half years.” It was extremely difficult, but the jury had to make it as easy as possible.

If there were only a few themes to the case, the jury could see a few photos to get an idea of how it works without having to go through the entire thing.

Collyard’s winning formula of focusing on the most important issues and creating a simple narrative was a success. He says that there are two easy themes that I will always return to. The only way to win the case is if there are a few themes. And the jury could see a few photos to understand how it works without having to go through it.

The case’s overarching theme was “How a bank helped criminals use small business checking accounts to commit the largest frauds in American History and then covered it up.”

Collyard showed a photo of what he called “line of sight” of the bank to support his theory.

The evidence proved that the bank could see money flowing in and out of the business that was not profitable. Tom Petters was moving billions in and out of his small-business checking account. The bank needed to know his business and determine if the money flow was consistent with his business model. They ignored the alarms that indicated this was suspicious activity. They could see that something was wrong from their “line of sight”.

Collyard and his team also proved that the bank destroyed thousands of millions of pages worth of evidence. We found out the hard way, but it took us months to prove that backup tapes were the best source of evidence. A great judge allowed us discovery to prove it. We were able get some documents from third parties which would have been on our destroyed backup. These documents were helpful in proving that they were harmful to the defense. The judge instructed the jury to assume that the documents destroyed were detrimental or adverse to BMO, although it was not required to. The jury awarded my client $80 million in punitive damages.

This gave me an advantage over the rest. They would be able to follow the story if I told it right.

Collyard was required to use his legal skills in a case that involved a lot of new things. Collyard decided to use visual aids instead of droning the jurors to sleep with legal jargon. In anticipation of writing the key points for the jury, he spent a year improving handwriting. However, it turned out that Doodle and Powerpoint were more visually appealing mediums.

People retain information by seeing it and hearing it simultaneously. To make sure the jury was able to retain the information and understand the case immediately, I used video clips and pictures of depositions in my opening statement. It was almost like watching TV, which I found to be very enjoyable. One example: I would play a video clip that I thought was false, and it was great to see the jury evaluate the credibility of the witness. I found the videotaped depositions recorded by witnesses who weren’t present at the trial to be a great way to get a head start on the story. They would listen if I told it right. The account had billions of dollars. I presented checks that had been written by insiders for millions of dollars, with memo lines such as ‘Merry Christmas’. I wanted to show people how this case related in their lives. All of us want our money safe. All of it mixed with the main themes of the case.”

Collyard was also challenged in his trial skills by having to prove much of the argument through cross-examination. My client Doug Kelley is a trustee so you can’t call your employees in this case. All facts were discovered by calling bank employees that were adverse parties and cross-examining them. It was extremely difficult. It took a lot of time to think about depositions and how you get the admissions that tell the story to the jury, not just cross-examining. This meant creating a roadmap, explaining to the jury why it was important and reminding them that the witness was not in the best interest of the court.

Kelley, his client, is one the most prominent Minnesota attorneys. This added to the stress. He has been a lawyer for almost 50 years and has tried hundreds of cases. He has more experience than me. Joe Anthony, my second chair is also an excellent trial lawyer and cross-examinator. It was great fun working with two legends who rely on you.

Collyard believes that trial lawyers are humble, despite the media attention and high stakes. You must be able talk to people in the same way you would with them every day. A good trial lawyer speaks in a simple way. They organize their thoughts and give their audience the key points that they need to win. There were many positive things in this case that we couldn’t leave out. We wanted to talk about them so much, but it was difficult because you can only bring three concepts to life without confusing the jury.

Collyard uses mock juries and focus group to test his trial themes. But he insists that instinct is the best substitute. “Mock jurors can say things I disagree with, but I will always follow my gut instincts.” It all comes down to how you feel about the matter.

Collyard’s ediscovery service was developed in 2010. Acumen Powered by Robins Kaplan LLP is an award-winning suite interdisciplinary professional services for litigation. It uses cutting-edge technology to assist clients in increasing efficiency, reducing costs, and developing specialized solutions to meet their business goals.

“Ediscovery was a new concept. The motivation was to make sure that the client did not get in trouble for not keeping evidence. My system was designed to protect my client by making sure that clients are gathering the right information and not spending too much money hiring people to review and house documents. Robins has all of this information in-house. We win cases by getting facts. So we created a solution to document review in our main team. It is very efficient. This saves our clients tons of money.”

As an example, Collyard’s team was successful in cutting the ediscovery costs of a client by more than half in a case worth more than $1B. This resulted in millions in savings.

Collyard believes that his win against BMO Harris Bank has affirmed his core beliefs regarding trial practice. “Nothing is easy and nothing happens in one go. This case was a lot of work. I had to rework many things until I found the right one. Preparation is the most important thing. You must be ready for anything and everything when you are litigating at this level.

It is not easy and it’s not possible to do everything at once. Preparation is the most important thing.

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The post Michael A. Collyard – A Behind-the Scenes Look at a Case that Made Minnesota History originally appeared on Attorney at Law Magazine.

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