A Time for Mercy

20

A sizable chunk of the funds from the litigation loan at Stan’s bank had been used to pay the fee of a fancy jury consultant named Murray Silerberg. He owned a firm based in Atlanta and boasted of securing huge verdicts for the past twenty years. Jake had heard him speak at a convention of trial lawyers and was mightily impressed. Harry Rex didn’t want to spend the money, and claimed he could pick a jury better than anyone else in the state. Jake had to remind his friend that he had not picked a jury in ten years because he realized back then that jurors didn’t like him. They had spent a day driving to Atlanta to meet Murray Silerberg, after which Harry Rex reluctantly got on board. The fee was a flat $20,000, plus travel expenses.

Jake made the call to Stan and said hit the credit line. Stan once again told him he was crazy, to which Jake replied, in true trial lawyer fashion, “Gotta spend money to make money.” It was true — litigation loans were becoming popular across the country, and trial lawyers, ever eager to brag about their verdicts, had begun bragging about how much they borrowed and spent convincing juries.

Silerberg’s firm studied every civil verdict in the country, with a special interest in the Deep South and Florida. Most of their clients, and verdicts, were close to home. A partner followed verdicts in urban areas, while Silerberg was fascinated with small towns and counties where the juries were much more conservative.

When he got the green light from Jake, he immediately began polling rural voters in north Mississippi to gauge their attitudes about courts, lawyers, and lawsuits. The polling was extensive and included hypothetical cases involving parents and children killed in auto accidents.

At the same time, an investigative team working for Silerberg began digging through the backgrounds of the names on the golden list. The Smallwood suite had been a large, empty storage space for years, but when Jake filed suit thirteen months earlier it was converted to a war room. The investigators took it over and were soon thumbtacking sheets of paper and enlarged photos on all four walls. Photos of the homes, trailers, apartments, cars, trucks, and places of employment of the prospective jurors. They dug through land records, court filings and dockets, anything that was in the public domain. They were careful and tried not to be seen, but several prospective jurors complained later that they saw strangers with cameras in their neighborhoods.

Of the ninety-seven names, eight were soon confirmed to be dead. Jake knew only seven of those still living, and as he studied the list he once again marveled at how few names he recognized. He had lived his entire life in Ford County, population 32,000, and thought he had a lot of friends. Harry Rex claimed to know something about twenty of the potential jurors.

The early polling was less than encouraging. Not surprisingly, Murray Silerberg knew that juries in the rural South are suspicious of big verdicts and tight with money, even when it belonged to large corporations. It was extremely difficult to convince hardworking people to hand over a million dollars when they were living from paycheck to paycheck. Jake was well aware of this. He had never asked a jury for seven figures, but even so he had been burned. A year earlier, he got a bit carried away and demanded $100,000 from a jury in a case that was worth less than half of that. A split jury gave him only $26,000 and the case was on appeal. Harry Rex watched the closing arguments and thought Jake alienated some of the jurors by asking for too much.

The lawyers and their high-priced consultant knew the dangers of appearing greedy.

Privately, though, Jake and Harry Rex were delighted with the list. There were more prospects under the age of fifty than over it, and that should translate into younger parents with more sympathy. Old white jurors were the most conservative. The county was 26 percent black, and so was the list, a high number. In most white counties, blacks registered to vote in lower numbers. They were also known to be more sympathetic for the little guy battling the corporation. And Harry Rex claimed to know two “ringers,” men who could be persuaded to see things the plaintiffs’ way.

The mood around Jake’s office changed dramatically. Gone were the worries about defending Drew Gamble and dealing with that tragedy. They were quickly replaced with the excitement of a major trial and the endless preparations for it.

But the gamble case was not going away. For reasons having more to do with overcrowding than proper care, Drew needed to leave Whitfield. After eighteen days, his doctor, Sadie Weaver, was ordered to ship him back to Clanton because his bed was needed by another juvenile. She telephoned Judge Noose, Jake, and Sheriff Walls. Ozzie was delighted to get the kid back in his jail, and tipped off Dumas Lee at The Ford County Times. When the defendant arrived in the backseat of a patrol car driven by the sheriff himself, Dumas was waiting and clicked away. The following day, a large photo appeared on the front page under the bold headline: “KOFER SUSPECT BACK IN CLANTON JAIL.”

Dumas reported that, according to Lowell Dyer, the district attorney, the defendant had been served with his indictment and they were awaiting a first appearance in court. No trial date had been set. Jake was quoted as offering a “No comment.” Same for Judge Noose. An unnamed source (Jake) told Dumas that it was not at all unusual in serious cases to have the defendant examined at Whitfield. Another anonymous voice predicted a trial by midsummer.

At 8:00 a.m. on Saturday, Jake met a group of people at the rear door of the courthouse, which was closed for business. Using a borrowed key, he unlocked it and herded them up a service stairway to the main courtroom where the lights were on and his team was waiting. He seated them, thirteen in all, in the jury box, and then introduced Harry Rex, Lucien Wilbanks, Portia Lang, and Murray Silerberg and one of his assistants. The courtroom was locked and, of course, there were no spectators.

He called thirteen names, thanked them for their time, and passed out thirteen checks of $300 each (another $3,900 from their litigation loan). He explained that mock juries were often used in big civil cases and he hoped the experience would be pleasant. The mock trial would consume most of the day and there would be a nice lunch in just a few hours.

Of the thirteen, seven were women, four were black, and five were under the age of fifty. They were friends and former clients of Jake’s and Harry Rex’s. One of the black ladies was Portia’s aunt.

Lucien assumed his place up on the bench, and for a moment seemed to enjoy being a judge. Harry Rex moved to the defense table. Jake began the trial with a scaled-down version of his opening statement. Everything would be scaled down for the sake of time. They had one day to complete the mock trial. The real one was expected to last for at least three.

On a large screen he showed color photos of Taylor and Sarah Smallwood and their three children, and talked about how close the family was. He showed photos of the crash scene, the demolished car, and the train. A state trooper had returned to the site the following day and taken a series of photos of the warning lights. Jake showed them to the jurors, and several shook their heads in disbelief at the badly maintained system.

Wrapping it up, Jake planted the seed for a big verdict by discussing money. He explained that, unfortunately, in death cases the only measure of damages was money. In other cases, the defendants could be forced to take remedial action. But not here. There was no other way to compensate the Smallwood heirs than with a money verdict.

Harry Rex, for the first and last time in his career in the role of an insurance defense lawyer, went next with his opening statement, and began dramatically with a large color photo of the fourteenth boxcar, the one struck by the Smallwoods. It was fifteen feet high and forty feet long, and it was equipped, like all railroad cars, with a set of reflective strips that when hit with headlights emitted a bright yellow glow that could be seen for three hundred yards. No one would ever know what Taylor Smallwood saw or didn’t see in that final crucial second, but what he should have seen was quite obvious.

As a defense lawyer, Harry Rex was good, sufficiently dubious of the plaintiff’s case, and most of the jurors followed him closely.

The first witness was Hank Grayson, played by Murray Silerberg’s assistant, Nate Feathers. Eight months earlier, Mr. Grayson had been deposed in Jake’s office, and he swore, under oath, that he was about a hundred yards behind the Smallwoods when the crash occurred. For a split second he wasn’t sure what happened and by the time he hit his brakes he almost hit their car, which had gone airborne and spun 180 degrees. The train was still moving by. Most important, the red warning lights were not flashing.

Jake had always worried about Grayson. He believed the man was telling the truth — he had nothing to gain by lying — but he was timid, could not maintain eye contact, and had a squeaky voice. In other words, he did not project veracity. Plus, on the night in question he had been drinking.

Harry Rex pounced on this during cross-examination. Grayson stuck to his story of having only three beers at a joint down the road. He was far from drunk, knew exactly what he had seen, and spoke with several policemen in the aftermath. Not a single officer asked him if he had been drinking.

In the mock trial, Nate Feathers, the jury consultant, was a far better witness than the real Grayson would ever be.

The next witness was a railroad-crossing expert, played by Silerberg, who was holding a copy of their expert’s deposition and knew his testimony well. Using the enlarged photos, Jake proved in abundant detail that Central & Southern had done a lousy job maintaining the crossing. The lenses over the red flashing lights were choked with dirt, some were broken. One pole was leaning. Paint was peeling from around the lights. On cross, Harry Rex argued a few points but didn’t score.

So far, Lucien had said little and appeared to be napping, just like a real judge.

The next witness was another railroad safety expert, played by Portia Lang. She explained to the jury the various warning systems now used by railroads at their crossings. The one used by Central & Southern was at least forty years old and badly outdated. She described its shortcomings in abundant detail.

At ten o’clock, Judge Lucien woke up long enough to call for a recess. Coffee and doughnuts were passed to the jurors as everyone took a break. After the recess, Lucien told Jake to proceed. He called to the stand Dr. Robert Samson, professor of economics at Ole Miss, played by none other than Stan Atcavage, who would rather have been on the golf course, but Jake would not take no for an answer. As Jake had explained, if Stan were really worried about the litigation loan, he should do anything to help the cause. Stan was definitely worried about the loan. The real Dr. Samson was charging $15,000 for his testimony at the real trial.

The testimony was dull and filled with too many numbers. The expert’s bottom line was that Taylor and Sarah Smallwood would have earned $2.2 million if they had worked for another thirty years. Harry Rex scored a few points on cross by pointing out that Sarah had always been a part-timer and that Taylor changed jobs frequently.

The next witness was Nate Feathers again, this time in the role of the state trooper who investigated the accident. After him, Portia was back as the doctor who pronounced the family dead.

Jake decided to rest the plaintiff’s case at that point. At trial, he planned to call two close relatives to the stand to personalize the family and hopefully rouse up some sympathy, but that would be difficult with a mock jury.

Lucien, who by noon was thoroughly bored with life on the bench, said he was hungry and Jake broke for lunch. He led the entire group out of the courthouse and across the street to the Coffee Shop where Dell had a long table waiting with ice tea and sandwiches. Jake had asked the jurors not to discuss the case until their deliberations, but he and Harry Rex and Silerberg couldn’t help themselves. They sat at one end of the table and replayed the testimony and the reactions from the jurors. Silerberg was delighted with Jake’s opening statement. He had carefully watched each juror and thought all were on board. However, he was worried about the simplicity of the defense: How does an alert driver not see a moving train covered with reflective lights? Back and forth they went at their end of the table, while the mock jurors chatted among themselves over a free lunch.

His Honor went home for lunch and returned in a better mood, no doubt bolstered by a cocktail or two. He called things to order and the trial reconvened at 1:30.

For the defense, Harry Rex called the train’s engineer to the stand. Portia played the role and read his sworn testimony from a deposition taken eight months earlier. He testified that he had twenty years’ experience with Central & Southern and had never been involved in an accident. One of the most important rituals of his job was to monitor the warning lights at each crossing as the engine passed them. On the night in question, he was absolutely certain the red flashing lights were working properly. No, he did not see vehicles approaching on the highway. He felt a bump, knew something had happened, stopped the train, put it in reverse, saw the wreckage, then moved the train so rescue units could approach from both directions.

On cross, Jake revisited the large color photos of the poorly maintained lights, and asked the engineer if he expected the jury to believe that they worked “perfectly.”

Harry Rex called an expert (Murray Silerberg again) who had not only inspected the crossing system but had tested it just days after the accident. Not surprisingly, everything worked perfectly. Regardless of its age, there was no reason for the system not to work. He showed the jury a video that explained the circuitry and wiring, and everything made sense. Sure, the lights and poles could use some work, or even replacing, but their aged condition did not mean that they didn’t work. He showed another video of the crossing at night with a similar train passing. The bright reflectors practically blinded the jurors.

At the real trial, Central & Southern would be required to park a corporate officer at the defense table to represent the company. Jake couldn’t wait to get his hands on the guy. Through discovery he had obtained a stack of internal memos and reports documenting forty years of near-misses at the crossing. Drivers had been complaining. Neighbors could tell stories of close calls. Miraculously, no one had been killed, but there had been at least three accidents since 1970.

Jake planned to slaughter the executive in front of the jury, and he and Harry Rex believed it would be the most crucial part of the trial. For the mock version, though, they couldn’t create the right drama, so they had decided to prepare some stipulated facts that His Honor would simply read. Lucien finally had something to do and seemed to enjoy the moment. A nighttime accident in 1970, with the car’s driver claiming the warning lights were not working. Another one in 1982, with no injuries. Another in 1986, with the crash narrowly averted by an alert driver who managed to skid into a ditch and avoid the passing train. Six memos detailing complaints from other drivers. Three memos with complaints from people living near the crossing.

Even when recited in a flat monotone from the bench, the facts were damning enough. Some of the jurors shook their heads in disbelief as Lucien droned on.

In his closing argument, Jake hammered away at the railroad’s antiquated system and its “grossly” negligent maintenance. He waved the internal memos and reports that proved the “arrogance” of a company that cared nothing for safety. He delicately asked the jury for money, and lots of it. It was impossible to quantify with dollars the value of a human life, but they had no choice. He suggested a million dollars for each of the Smallwoods. And he asked for five million in punitive damages to punish the railroad and force it to finally upgrade the crossing.

Harry Rex disagreed. He said nine million dollars was an outrageous sum that would do nothing to help anyone. It certainly couldn’t bring back the family. The railroad had already renovated the crossing.

Jake thought Harry Rex lost some steam about halfway through his closing, and it was probably because he really wanted the nine million and felt silly trying to belittle it.

After he sat down, Judge Wilbanks read some instructions to the jurors and asked them to pay close attention to the legal concept of comparative negligence. If they were inclined to find against the railroad, then their award could be reduced because of the negligence of Taylor Smallwood, if they indeed found him to be at fault to any degree. He said that in a real trial there was no time limit on deliberations, but today they would have only one hour. Portia led them back to the jury room and made sure they had coffee.

Jake, Harry Rex, Murray Silerberg, and Nate Feathers gathered around the defense table and broke down the trial. Lucien had had enough and left. The jurors might be getting $300 for the day but he was being paid nothing.

Forty-five minutes later, Portia was back with the jury. The foreman said they were split: nine in favor of the plaintiff, two in favor of the railroad, and two on the fence. The majority would award $4 million, then reduce it by 50 percent because they felt Taylor Smallwood was also negligent. Only three of the nine would award punitive damages.

Jake invited all of the jurors to join the discussion but also said they were free to leave. They had earned their money and he was thankful. At first, no one left and they were eager to talk. He explained that in a civil case with twelve jurors only nine had to agree on a verdict. In criminal cases, a unanimous verdict was required. One juror asked if the railroad was required to produce an officer to sit through the trial. Jake said yes, one would be sitting at that very table and he would be called to the stand.

Another was confused by the economic-loss testimony of Dr. Samson. Harry Rex said he was too and got a laugh.

Another wanted to know how much of any verdict went to the attorneys. Jake tried to dodge it by saying that their contract with the family was confidential.

Another asked how much the experts were paid, and by whom?

Another asked if the railroad had insurance coverage. Jake said yes, but it could not be revealed in court.

A couple of jurors then left, but the others wanted to stay and talk. Jake had promised to turn off the lights at 5:00 p.m., and Portia finally told him it was time to go. They left down the back stairway, and once outside Jake thanked them again for their time and trouble. Almost all of them seemed to enjoy the experience.

Half an hour later, Jake walked through the rear door of Harry Rex’s office building and found him in the conference room, cold beer in hand. Jake fetched one from the fridge and they fell into chairs in his library. They were thrilled with the day and the verdict.

“We got nine votes for two million dollars,” Jake said, savoring the mock win.

“They liked you, Jake. I could see it in their eyes, the way they followed you around the courtroom.”

“And our experts are better than theirs, in the flesh, and Sarah Smallwood’s sister will make everyone cry with her testimony.”

“That, plus a good mauling of the railroad officer, and we might get more than two.”

“I’ll take two.”

“Hell, Jake, right now I’d take a lousy million.”

“A lousy million. This county has never seen a million-dollar verdict.”

“Don’t get greedy. How much do we owe right now?”

“Sixty-nine thousand.”

“Say they offer a million. The expenses come off the top. Forty percent of the rest is, what, three hundred and seventy thousand? Half for you, half for me, about one-eighty-five each. Would you take a hundred and eighty-five thousand dollars right now and walk away?”

“No, I’d sprint.”

“Me too.”

They had a laugh and gulped some beer. Harry Rex wiped his mouth and said, “This needs to play in Jackson. What would Sean Gilder do if he knew a mock jury in Clanton, in the same courtroom, gave us two million dollars?”

“I love it. Who do you tell?”

“Let’s go through Walter Sullivan. Let him find out, because he thinks he’s the man around here. Word will spread pretty fast.”

“Not in this town.”