False Dawn

2

The psychologist said I stood too close to the jury during opening statement. My client said I was too loud. The judge said I was argumentative. And Marvin the Maven wasn’t talking to me.

Everyone’s a critic.

“Be aware of horizontal space zones,” Dr. Lester (Call Me Les) Weiner warned. “You’re using social zones when the courtroom demands public zones.”

I used to know a thing or two about end zones, but this was new to me.

Dr. Weiner toyed with the top button on his black Italian silk shirt. He wore no tie, and the sleeves were pushed up on his baggy sportcoat, a look favored by Miami Vice wannabes. The pleated pants were also black and had room for another Les inside. His dark hair was moussed and slicked straight back, and he studied me from behind dark-tinted aviator glasses. The general impression was Darth Vader with a Ph. D. “Jake, you’re still a stranger to the jury, so keep a horizontal zone of at least eight feet. By closing argument, if you establish rapport, you may move up to the rail.”

Marvin the Maven sat in the front row of the gallery pretending not to listen. Even at age seventy-six, there was nothing wrong with his hearing. He had said barely a word since learning I’d hired a psychologist to help with jury selection and trial tactics. For years, Marvin had the job, his only degree a lifetime of experience selling shoes, his expert’s fee a cup of tea and a bagel with a schmear. Now, feeling abandoned, he threatened to spend the rest of the week watching the ticker at the Miami Beach Merrill Lynch office, tracking the path of his fifty shares of AT amp;T.

I was sitting at the defense table, half listening to the witness, half listening to Dr. Weiner, who kept reminding me of my many deficiencies. “Your directional gestures are also too strong. And your height power is menacing this early in the trial, especially when you encroach on the neutral zone.”

Five-yard penalty, I figured.

“Did you notice the jurors crossing their arms and turning to the side as you violated their space bubble?” he asked.

“I thought it might have been the anchovies on the Caesar salad,” I said.

The psychologist crossed his arms, and I wondered if it was something I said. Dr. Lester Weiner was deeply tanned, excessively self-confident, and for three hundred dollars an hour could tell you whether a woman will vote for the plaintiff by examining her makeup. A few blocks from the courthouse at Miami Marina, he kept a thirty-eight-foot Bertram-the Pleasure Principle — docked at what he called his Freudian slip.

“Perhaps a woman lawyer could approach the rail during opening statement,” Dr. Weiner whispered, not letting it go. He was chewing on his lower lip, and his pencil had bite marks, but I refrained from asking whether he was bottle-fed as an infant. “It is easier for women to gain rapport, but a man of your size, well…”

He let it hang there, sort of telling me that I was a bull in the china shop. As if I didn’t know.

“Now it is true the women on the jury will find you attractive in, shall we say, an animalistic fashion. The way your neck threatens to burst out of your shirt collar, it’s quite provocative.”

His burst had a faintly lascivious ring to it.

“But stay in the shadows at first. Approach too quickly, and you might intimidate them.”

What am I, Phantom of the Courthouse?

“And the men will want to identify with you. The bald ones wish they had your shock of sandy hair…” He made a motion as if to run his hand across my head, and I leaned the other way.

“… The small ones will envy your size.” What did he mean by that, remembering that we had stood shoulder-to-shoulder in the men’s room at the midmorning recess. Now, my legs instinctively crossed.

This was getting embarrassing. I wanted to use Marvin the Maven, but my client insisted I hire “Les Is More” Weiner, a guy who couldn’t get into med school but had a booming business in hypnotic regression, sex therapy, and jury counseling.

I tried to pay attention. Percy Tucker, founder of Percy’s Perfect Poultry (“The Cluck Stops Here”) and my client, sat on one side of me, the psychologist on the other. Marvin the Maven sat directly behind us on the other side of the bar. Perched on the witness stand was icily smooth Christopher Middleton, president of Chicken Prince, Inc., the plaintiff and chief tormentor of my client.

“Your witness, counselor,” H. T. Patterson, the plaintiff’s lawyer, informed me with a confident smile that invited me to take my best shot.

“Mr. Middleton,” I began, easing out of my chair and approaching the witness stand, “you never registered the name ‘Chickee Tender,’ correct?”

“Correct, but we spent millions advertising the name. It’s nearly as well known as our Poultry Burger and our Milkshake Mucho.”

“Yes, but really these so-called tenders are nothing more than breaded chicken breast with spices, correct?”

“ Nothing more? They are the product of years of research, consumer testing-”

“So you’ve testified. But the name ‘tender’ is just an abbreviation of tenderloin, the meat covering the chicken’s breastbone, correct?”

Christopher Middleton eyed me warily. His delay told the jury that he didn’t want to answer the question, that he knew the question would lead to another and another, and somewhere down that road was a patch of quicksand. He touched a finger to the fringes of his blow-dried hair. “The meat does come from the breastbone,” he answered, finally.

“And isn’t it commonly called the tenderloin?”

Another pause. “I’ve heard it mentioned.”

“I’m sure you have,” I said quietly, causing the judge to stir, but no objection rose from the plaintiff’s table. H. T. Patterson knew when not to call attention to his client’s squirming. “Now, my client’s frozen food product, Percy’s Perfect Chickee Tender, also uses chicken from the tenderloin, does it not?”

“If you say so.”

“Oh, come now, Mr. Middleton. You hired a testing lab at great expense to analyze my client’s product.”

“Objection!” Patterson was on his feet, realizing there’s also a time to protect your witness. A former preacher at the Liberty City Baptist Church, my learned opponent was resplendent in a white linen three-piece suit. He stood ramrod straight, which took him to five-feet-five on his tippy-toes. “Mr. Lassiter is baiting, bedeviling, and badgering my client,” Patterson railed in his seductive revival meeting singsong. “If counsel were a novice at the bar, we could forgive his transgressions, but given his experience, his erudition, his perspicacity, yea, his very wisdom, acumen, and sagacity, we must consider these malefactions to be intentional violations of the rules of evidence and trial procedure.”

Was he talking about me, a guy who got straight C’s in law school because they didn’t offer phys ed?

“Sustained,” intoned Judge Harold Bricklin, a man of imposing girth and sour demeanor. “Ask questions, Mr. Lassiter, and refrain from comments on the testimony.” That was a mild rebuke from someone whose idea of judicial restraint is not plugging obstreperous lawyers with the seven-shot 380 Walther PPK he carried under his flowing black robes.

“ Did you hire a testing lab-”

“Yes, yes. Your client uses the same meat.” Middleton was growing edgy.

“So you don’t contend Percy’s Perfect Chickee Tender is misrepresenting its product?”

I knew the answer, of course. One of the trial lawyer’s oldest tricks is to exclude allegations against his client that have never been made.

“No.”

“And you don’t claim trademark infringement?”

“No.”

“And you can’t possibly contend that consumers are confused, since my client’s products are sold only in supermarkets while yours are sold only in your own fast-food convenience stores.”

I tried to make “fast-food” sound like toxic scum.

“Well, maybe not,” he allowed, “but Percy’s trading off our name. We created consumer name identification with our advertising, and they’re-”

“Thank you, Mr. Middleton. Nothing further.”

I left him stammering while H. T. Patterson rose, bowed to the jury, buttoned his suit coat, and stroked the pink carnation in his lapel. Patterson knew he could still rehabilitate his client on re-direct.

Percy Tucker looked fat and happy as I sat down next to him. They always do when someone else is skewered on the witness stand. His turn would come.

“Now, Mr. Middleton,” Patterson began in a tone of affection and deep respect, “how much money did your company expend on market research, consumer testing, and the like?”

I didn’t hear the answer because Percy was whispering suggestions in my ear. Clients always second-guess their lawyers-and often sue them-so it’s good to listen, or at least pretend. I doodled on a yellow pad so the jury thought I was taking notes. Percy was saying the jurors should taste both companies’ products. I wasn’t sure. The opposition’s chicken was soaked in a slimy grease, while Percy’s was dry, stringy, and coated with salt. I didn’t want to make the jurors sick and risk a mistrial. Trying this case once was enough.

At the end of the day, Marvin the Maven stopped me in the corridor. “Even though you didn’t ask, Jake, I think you’re meshuga, leaving on that woman, number four.”

Mrs. Kvajic. Late forties, a handsome woman with a big smile. “Dr. Weiner liked her earrings,” I said. “Large hoops, a little flamboyant. Figured she’d go for the chicken farmer over the big company.”

Marvin screwed his face into a septuagenarian’s pout. “Earrings, schmearrings. Did you look at her shoes, boychik? Charles Jourdan, three hundred bucks at Mayfair. She’s establishment all the way.”

Then Marvin walked away muttering to himself, not telling me how much I needed him.