Michael A. Collyard: A Behind-the-Scenes Look at a Case That Made Minnesota History

“Michael Collyard, you just won the largest jury verdict in Minnesota history! What are you going to do next?”

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

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

Collyard served as lead trial counsel for Douglas A. Kelley in Kelley v. BMO Harris Bank, N.A., a case which arose from one of the largest Ponzi schemes in U.S. history perpetrated by the now notorious fraudster Tom Petters. Petters was sentenced to 50 years in prison for fraud after Collyard proved that he had laundered nearly $74 billion using small business accounts held at M&I Bank, which was acquired by BMO Harris Bank in 2011. The $563 million jury verdict came down in November 2022, and the trustee is pursuing prejudgment interest that would bring the bank’s total liability to more than $1 billion.

Litigating and winning a case of this magnitude is a daunting task for any attorney, even one with Collyard’s credentials. But this was not his first high-stakes fight, and his gift for turning a complex financial muddle into a clear and compelling story is a hallmark of his practice.

“This was an incredibly massive and complicated case that was five-and-a-half years long,” he comments. “It was incredibly hard, but it had to be made as simple as possible for the jury.”

The only way the case could be won is if there were a few themes, and the jury could look at a few pictures to understand exactly how it worked without having to think through it."

Collyard’s formula of limiting issues and crafting a simple narrative proved a winning strategy. “There are a couple of easy themes I would always go back to,” he says. “The only way the case could be won is if there were a few themes, and the jury could look at a few pictures to understand exactly how it worked without having to think through it.”

The overarching theme of the case was simple: “How a bank helped a criminal use a small business checking account to commit one of the biggest frauds in American history and then covered it up.”

To prove his theory of the case, Collyard presented a picture of what he called the bank’s “line of sight.”

“The evidence showed that the bank could see money going in and out that did not make sense for the business. Tom Petters was moving billions of dollars in and out of his small business checking account, and the bank had to know what his business was and that the flow of money didn’t match his business model. Alarms were sounding off that this was suspicious activity and they should look into it, but they ignored them. They could see from their ‘line of sight’ that the activity was not right.”

Further, Collyard and his team proved that the bank destroyed tens of millions of pages of evidence. “We found out in pieces, and it took months to prove that the best source of evidence in this case was on backup tapes that the bank destroyed and didn’t produce. We had a fantastic judge who allowed us to get discovery to prove this. We were able to get a few documents from third parties that would have been on the destroyed backup and demonstrate why they were detrimental to the defense. The judge ultimately instructed the jury that it could assume, but it wasn’t required to, the documents destroyed would have been adverse or detrimental to BMO. And in the end, the jury’s verdict included an award of $80 million in punitive damages for my client.”

To me, [that] gave me a leg up on the story. If I could tell it the right way, they would follow it and be in it."

The case demanded that Collyard stretch his legal muscles to do things he had never done before. He decided early on to make liberal use of visual aids rather than droning the jury to sleep with legal jargon. He spent a year improving his handwriting in anticipation of writing key points out legibly for the jury, but as it turned out, Doodle and Powerpoint software were more visually impactful mediums.

“The way people retain things is that they have to see it and hear it at the same time. I tried to use pictures and video clips of depositions early on in my opening statement, so the jury could retain the information and know instantly what the case was about. I tried to make it kind of like watching TV for them, and I found this really fun. For example, I’d play a video clip of a witness I believed wasn’t telling the truth, and it was fun to watch the jury scrutinize the credibility of the person on the screen. To me, the videotaped depositions of witnesses who didn’t appear live at trial gave me a leg up on the story. If I could tell it the right way, they would follow it and be in it. There were billions of dollars in and out of the account. I showed checks written by insiders to themselves for millions of dollars with memo lines like ‘Merry Christmas.’ People don’t want to be scammed, and I wanted to show them how this case related to their life. We all want our money to be safe. It all mixed with the themes of the case.”

The case also challenged Collyard’s trial skills in that he had to prove much of his argument through cross examination. “My client, Doug Kelley, is a trustee, so this is not a case where you call your own employees. All the facts had to come out through calling bank employees who were adverse parties and cross examining them. It made it incredibly difficult. A lot of thought went into depositions and how to get the right admissions to tell a story for the jury instead of just cross examining. It meant creating a road map, telling the jury through questions why something was important, and reminding the court and jury that the witness was adverse.”

Adding to the strain was the fact that his client, Kelley, is one of most well-known attorneys in Minnesota. “He has been a lawyer for nearly 50 years, has tried hundreds of cases and has way more experience than I had. And my second chair, Joe Anthony, is also a fantastic trial lawyer and one of the best cross examiners on the planet. Doing this with two legends who are relying on you — that pressure was part of what made it fun.”

Despite the high stakes and media pomp, Collyard says the best trial attorneys are humble. “You have to be able to talk with people just like you would talk with them in everyday life. Every good trial lawyer talks in the simplest way, organizes their thoughts and spoon feeds their audience a couple of key points they need to win. In this case, there were so many good things we cut out because we had to. It was so hard because we desperately wanted to talk about them, but you can only bring to life about three concepts without making things confusing for the jury.”

While Collyard makes use of mock juries and focus groups to test his trial themes, he says there is no substitute for instinct. “Mock jurors sometimes say something I totally disagree with, and I will still go with my gut. A lot comes down to a game-time decision of how you feel about it.”

In 2010, Collyard developed proprietary ediscovery services that are now part of Acumen Powered by Robins Kaplan LLP, an award-winning suite of interdisciplinary professional services for litigation that leverages cutting-edge technologies to help clients increase efficiency, reduce costs and develop specialized solutions to their business goals.

“When ediscovery was first coming out, the motivation was making sure the client didn’t get into trouble for not preserving evidence. I built a system designed to protect the client first, by making sure clients were gathering information correctly and not spending all this money on hiring vendors to house and review documents. I just brought it all in house here at Robins. The way we win cases is to get facts, so we came up with a solution for document review as part of our main team, and we do it in a way that is really efficient. It saves our clients a ton of money.”

To demonstrate, in a recent matter with more than $1 billion at stake, Collyard’s team was able to reduce a client’s ediscovery expenses by more than 50%, resulting in millions of dollars in savings.

Collyard says his historic win against BMO Harris Bank affirmed his core beliefs about trial practice. “Nothing comes easy, and nothing comes at once. I redid many things in this case until I found the one that felt right. You cannot replace the value of preparation. When you’re litigating at this level, you have to be prepared for just about anything and everything.”

Nothing comes easy, and nothing comes at once. ... You cannot replace the value of preparation.

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