So the ProCon machine is an important little fucker in this proceeding.
Everyone in the observation room is going to have their eyes on the ProCon monitor.
Not inside the actual “courtroom.”
Inside the actual focus group room, on the other side of the window, the “jurors” are seated in a mock jury box, with individual little tables for their ProCon joysticks. There’s a witness stand, tables for the plaintiff and defense, and a judge’s bench, where the “rent-a-judge” for the focus group will sit.
The two jury consultants—a yuppie guy and a yuppie gal—and the moderator—a slightly older male yuppie—are all from TSI, Trial Science Inc., and this is what they do for a living. They’re all a little frantic at the moment because this is a rush job. They’ve spent the afternoon assembling a demographically correct focus group that would be an accurate sampling of a potential Orange County jury. Age, gender, race, education, profession have gone into the mix, plus they had to figure in the attorney’s preference.
“How do you want this one to come out?” the older yuppie had asked Casey.
Because the attorney is the one they have to keep happy, so they need to know if the attorney wants a real focus group or a dog-and-pony. A lot of times, the attorney is trying to use the focus group to persuade a client to settle or to go to trial, and because the TSI people already know the demographics that tend to be pro-defense or pro-plaintiff, they can slant their recruiting the lawyer’s way.
They can also slant the questionnaires and the live discussion, and while they can’t guarantee an outcome, they can take a lawyer a long way down his or her chosen path.
Hence the question, “How do you want this one to come out?”
“Accurately,” Casey answered.
One, because he’s not about to set up a Potemkin village for old friends like Billy Hayes and Jack Wade, and two, he already knows how this one’s going to come out anyway.
He’s going to kick their ass.
Which is what Jack thinks, too, when he sees the rent-a-judge walk in and take the bench. Dude is wearing black robes, just like this is the real thing.
Dude also looks very familiar.
“We’re dead,” Jack mutters to Goddamn Billy.
Because the rent-a-judge is none other than retired Justice Dennis Mallon.
From the Atlas Warehouse trial.
86
Mallon bangs on a gavel, which gets the expected chuckle from the group, and he asks them to finish filling out their “pre-stimulus questionnaires,” and then he tells them that they’re going to hear about a lawsuit involving a fire.
“You’ll hear a brief statement from the plaintiff, then one from the defense. Then you’ll be asked to fill out a questionnaire based on what you’ve heard. Then you’re going to hear testimony from a witness for the defense, who will be examined and then cross-examined. After which you’ll fill out, yes, another questionnaire, and then you’ll discuss the case just as you would if you were on a real jury. Then I’ll ask you to render a verdict for the defense or for the plaintiff, and if for the plaintiff, how much you would award. I encourage you to take notes; just please be aware that your notes will be collected at the end of the evening.
“During all of this, please manipulate your little ProCon joysticks so the people in the observation room know how you’re feeling.”
Which gets another appreciative chuckle from the jury.
“Can you believe,” Jack whispers to Goddamn Billy, “that with all the law, all the science, everything we do on a file, that a multimillion-dollar decision is going to be made by twelve people who show up for fifty bucks each and all the cookies they can eat?”
“I can believe anything,” Billy says.
“Sorry you got dragged into this,” Jack says.
“You didn’t drag me,” Billy says. “I walked.”
Casey gets up from the plaintiff’s table, looks at the jury for a few moments and says, “This is a story about how a gigantic insurance company, let’s call it Great Western Insurance, cheated a policyholder. How it lied, cheated, bullied and oppressed a man who had lost his wife and his home.”
Jack looks up at the monitor.
Negative 10.
“How,” Casey says, “Great Western Insurance took his premium money for years, assuring him that in his time of need they would be there for him—and then when that time came, when tragedy struck, instead of being there for him, accused him of fraud, arson and murder and denied him the millions of dollars in benefits that he is due.
“This is a story about how a big corporation thinks that it’s above the law, because even though the authorities declared that the fire was accidental, and the coroner said the death was accidental, and even though the police have not even investigated, let alone charged, let alone convicted my client of arson or murder, Great Western Insurance accused him of burning his house down and murdering his wife, and convicted him of the crimes of arson and murder without even the benefit of a hearing, let alone a public trial.”
Negative 10s across the board.
“And this is a story about a man, an individual, my client—we’ll call him Mr. White—who came as an immigrant to this country with only an old suitcase and the clothes on his back. Who through hard work and application and diligence lived the American Dream. Became a millionaire and fulfilled his dream, a dream that is now shattered by a sudden accident, and the deliberate, malicious and oppressive actions of a greedy, powerful corporation that would rather slander a good man and destroy his life than pay what it owes.
“My client’s only hope to restore what’s left of his life is you. His wife is gone, his children bereaved, his house lies in ashes. You cannot bring back his wife, you cannot comfort his small children, but you can restore to him his home and property and punish the large and callous corporation that, perhaps even more than the fire, has destroyed my client’s life. You can rebuild a home for him and his children to live in. You can send a message to the boardroom of Great Western Insurance that they must never, ever engage in this kind of despicable behavior again.
“My client rests his fate in your hands.
“I know that you will see the truth for what it is and act on that truth. Thank you.”
Positive 9s and 10s.
The jury, Jack sees, is “happy.”
Jack hears Herlihy mutter, “I’m glad that son of a bitch is on our side.”
“It’s the standard Paul Gordon opening,” Reinhardt says. “Just fill in the blanks.”
“Shit.”
Emily Peters, one of Casey’s partners, gets up to respond.
“Go, Emily,” Jack whispers.
“It’s not easy, following that kind of speech,” she says. “That was a great speech, a real tearjerker, a real appeal to your emotions. But ladies and gentlemen, a lawsuit should not be decided by emotions, it should be decided by the law and by the facts. And the law says that if a person burns down his own property, the insurance company cannot—by law—cannot pay that claim. And when you listen to the two witnesses that I will bring on, ladies and gentlemen, I am confident that you will recognize that, sadly, those are the facts.”
Maybe yes, maybe no, Jack sees. The monitor is hovering around a lot of Neutrals, a few 1s and 2s on either side of the line. The jury doesn’t “like” Emily as much as they do Tom.
She goes on anyway. “Mr. White, as we’re calling him, is rather like the man who murders his parents and then asks for mercy because he’s an orphan—”
Not a laugh or a murmur or a chuckle from the jury. Uh-oh, Jack thinks, they’re pissed at us already.
Yup, Negative 4s and 5s.
“—because that is the sad fact of this case.
“Now, my esteemed colleague, Mr. Casey, has told you—correctly—that the authorities ruled the fire an accident and the death an accident. That is true. What he didn’t tell you is that those findings are not binding upon an insurance company. Great Western doesn’t thi
nk itself above the law. The law states that an insurance company has the right, indeed the obligation, to independently investigate a claim and render its own decision. And the law further states that the insurance company may deny a claim if it reasonably concludes that it was ‘more likely than not’ that an insured set fire to his own property.
“That is the law—’more likely than not’—and when you hear our witnesses, and carefully consider the facts that they present, I am confident that you will also conclude that it is far more likely than not that Mr. White is an arsonist and a murderer. And that far from awarding the millions of dollars that he is asking for, you will be asking, ‘Why isn’t this man in prison? Why isn’t he the defendant in this trial?’
“Now, Mr. Casey asked you to send a message.
“So do I.
“Send a message that you are not going to be swayed by cheap dramatics. You are not going to be swayed by emotion. That you are instead going to consider the facts and send the message that, far from being rewarded, Mr. White should be charged, convicted and punished.
“Thank you.”
As the jury starts filling out their questionnaires, Jack hears Reinhardt say, “She came out too strong.”
“I liked it,” Herlihy says.
It was strong, Jack thinks, but that’s what she had to do. You come out half-assed in an arson trial, all you do is get your half-ass totally kicked.
Jack sees the TSI consultants typing like mad. Typing and waiting like vultures for the responses to the opening statements to come in. Jack knows that the responses are key: if Casey “wins” the opening, it’s going to be damn hard to convince the jury otherwise. The TSI people would say that 80 percent of jurors have their minds made up after the opening statements.
It’s also going to be damn hard to convince Mahogany Row not to settle.
The jury finishes writing and one of the consultants rushes in to get their papers.
Peters says, “Calling to the stand Mr. Smith.”
Which is me, Jack thinks.
Now Jack’s in an interesting position here.
If he goes in there and does a good job and wins, Sandra Hansen drops the hammer on him.
If he goes in there and does a bad job and loses, then he gets to keep his job but Nicky Vale gets away with arson and murder.
Sort of your basic dilemma.
87
He walks in a Negative 7.
He can’t see that, of course, but Jack can look into the jury’s eyes and know they already don’t like him.
It’s one thing to look at a “jury”—even a focus group panel—from behind a one-way mirror. It’s a whole different deal, Jack thinks, to be eyeball to eyeball with them, them staring at you like you’re some sort of zoo animal.
A bad animal.
Anyway, he does his best to do what Peters advised him: Make eye contact, speak a little slow and a little loud and answer the questions directly. Be calm, be cool, be confident.
Right, Jack thinks. Even as he sits down he can feel the sweat starting to bead on his forehead.
And Mallon staring at him.
Like, I’ve seen you before.
A long time ago, Judge, in a galaxy far, far away …
Peters starts him off with his background, his education, his experience level.
Then asks, “And how many fire claims would you say you’ve handled for Great Western?”
“I would estimate hundreds.”
“As many as a thousand?”
“That’s possible.”
“And of that thousand,” she asks, “how many were eventually denied for arson?”
“Very few.”
“Can you give me a number?”
“A handful. Nine, ten.”
“It’s rare, isn’t it?”
“Objection. Leading.”
“Sustained.”
“Could you give us an idea,” Peters asks, “of the frequency of arson denials?”
“It’s rare.”
A low chuckle from the jury.
“Is it difficult to prove arson by an insured?”
“It can be.”
“Why?”
“Arson is a crime that consumes its own evidence,” Jack says. “It’s also a crime in which the perpetrator tends to leave the scene before the event … for obvious reasons.”
Jack feels himself flush because he used the word “crime” not once but twice—a supposed no-no in civil arson litigation, but then he thinks, Fuck it, I can’t play for a tie here.
“Well,” Peters says, “how do you prove arson by an insured?”
“As I understand the law,” Jack says, “you need three elements: incendiary origin, motive and opportunity.”
She takes him through the meaning of the Tripartite Proof, then asks him, “Did you conclude that the White fire was of incendiary origin?”
“Yes, I did.”
“What led you to that conclusion?”
“A number of things.”
“Could you tell the jury what they were?”
Oh, yeah, Jack thinks. I sure could.
I could also take a dive, because this is the moment to do it. This would be the place to fumble, mumble, get my shit out of order, just generally look like a doofus.
Do the old two-and-a-half triple gainer with a twist and land headfirst in a pool with no water.
Crack.
Jack says, “It would be easier to explain using a chart and some photos I brought.”
He gets up and walks over to a tripod stand. Flips the cover over to reveal a big blowup of his INCENDIARY ORIGIN/MOTIVE/OPPORTUNITY chart.
And runs it.
No mumbling, no fumbling.
Shit totally together, Jack runs the jury through the Tripartite Proof. Runs down all the evidence—the kerosene-soaked samples, the holes in the floor, the hole in the roof above the bed, the pour pattern. He matches each item with a blown-up photograph and he talks to the jurors as if they’re in the house with him when he took the pictures.
Peters lets him go. You got a Thoroughbred, you give it its head, you let it run, and Jack is running like freaking Secretariat.
His ProCon numbers shoot up into the Positive 8 range.
Jack is amped.
He starts in on motive.
Runs the column.
Tells them how he concluded that White’s motives were both personal and financial. Walks the jurors through the Whites’ marital problems, their public fights, her drinking and rehab, the restraining order, the separation and the upcoming divorce.
Then he takes them through White’s finances: the $600,000 balloon payment on the house, the tax debts, the flat real estate investments, the tapped-out bank account, the delinquent credit card bills, the expensive furniture collection, the threat of alimony and child support, the threat of losing half of his meager assets to his wife.
The jury is tripping on Jack. They’re pulling back on their joysticks like they’re triggering a cocaine drip. There are 9s and 10s lighting up on the old monitor like Jack is some sort of eighty-five-pound adolescent girl on the uneven parallel bars.
“Did all this lead you to reach any conclusions?” Peters asks.
“Yes,” Jack says. “That he was about to lose his home, his business and his furniture.”
“You seem to think the furniture is important, why is that?”
“It represented a very considerable investment,” Jack says. “Also, it was one of the first things Mr. White asked me about the day of the fire.”
“The day of the fire?”
“Yes.”
“Mr. White called you about his claim the same day his wife was killed?” Peters asks, looking at the jury, an incredulous little tremor in her voice.
“Yes,” Jack says, matter-of-factly. Better to let the jury get indignant.
“So the fact that he was about to lose all these things,” Peters says, still shaking her head a little, “did that mean anything to you?”
“Yes
, it meant to me that he had sufficient motive to set the fire.”
“And murder his wife?”
Casey launches up. “Objection!”
Jack says, “It’s hard to reach the conclusion that the fire was intentional and the death accidental. There is also forensic evidence to indicate that she was dead before the fire broke out.”
“Which is probably beyond the scope of this inquiry tonight,” Mallon quickly tells the jury. “Suffice to say that a coroner has ruled that Mrs. White died as the result of an overdose of drugs and alcohol.”
And thank you very much, Your Honor, Jack thinks.
Mallon gives Jack a dirty glance, because Pam Vale’s death was supposed to be out-of-bounds. Jack gives him an innocent look but he’s thinking, Fuck you—Casey brought it up in his opening and he’s not playing by the rules, so I’m not playing by the rules. In fact …
“Mr. Casey told the jury we accused his client of murder,” Jack says. “We didn’t—we’re not the police—but I thought the jury should know why we denied the life insurance claim.”
“You’re out of order, Mr. Smith,” Mallon says.
“Sorry.”
Jack looks over at Casey, who is working, albeit none too hard, to suppress a smile.
The jury is grooving on this little spat. Winging happy numbers back to the observation room.
Mallon says, “Ms. Peters, if you would continue your direct …”
“Gladly,” Peters says. “Let’s talk about opportunity.”
She says this giving Jack a look like, Get back on the leash, claims dog. He does, and she leads him through his testimony on whether White had the opportunity to set the fire.
Jack takes the jurors through the points on the locked doors and windows, the burglar alarm not going off, the time it would have taken White to drive from his mother’s house, set the fire and drive back.
Then Peters asks, “Did you talk to White’s mother about his whereabouts that night?”
“Yes.”
“What did she tell you?”
“That her son was home watching a movie that night, and that she saw him at her house during the time the fire was being set.”