Marine One

26

THE TRIAL WAS upon us. I drove to the courthouse with Rachel, Braden, and Justin, my paralegal. The back of the Volvo was full of boxes of deposition transcripts, motions, attachments, witness outlines, and pleadings, all in clearly marked three-ring binders. I never knew what I would need, so I usually took too much. We walked up to the courthouse from our reserved parking spot. The first lady had to park out front too; there was no underground or secret parking anywhere. The journalists were quite happy about that.

It was a beautiful, sunny day, and fairly warm for Annapolis that time of year. The press had been there all night. The satellite vans were everywhere. Cords and cables ran across the street and through the bushes. Some cameras were set up on tripods, others were on the shoulders of cameramen who walked around looking for something to film. We were an hour early for the motions in limine, which were to be heard at 9 AM.

As we grabbed our boxes and began putting them on our luggage carts to wheel them into the courtroom, we were surrounded by the press. Do you have any comments, Mr. Nolan? What is your theory of the case? You say in your expert reports that the NTSB was wrong, but what do you think happened?

They had been doing their homework; they had read all the expert reports that had been filed with the court and had of course published them for all the world to see. They had read the motions in limine and had their legal consultants on top of all the issues. They were ready to go. But I wasn't talking. Nor was anybody else. "Thanks for your interest. I can't talk about it. I'll be happy to talk to you after the trial is over."

"You've got to give us something, Nolan. Tell us who your witnesses are going to be. Tell us what you're going to ask the first lady. Are you going to cross-examine her? Do you think you'll win any of your motions in limine?"

I smiled and ignored the reporters. The four of us made our way through the throng. The courthouse was brand-new, but unlike many federal and state courtrooms built today, our assigned courtroom actually had windows. Real, live daylight streamed in. Many courtrooms feel like post-op rooms, but this courthouse was designed by an architect who respected the traditional colonial architecture that dominated Annapolis. It was beautiful and inspirational, and new. It made me proud to be a lawyer every time I walked in.

We walked up the aisle and through the small gate and put our materials at the defense table, always the table farthest from the jury box. The windows were on the long wall to the right, and the imposing bench of Judge Betancourt was in the front, with the windows to her left. The clerk was going through the exhibit lists and the premarked exhibits and smiled as we walked in. She glanced at the members of the press who had nearly filled the available seating and were looking for something to do. Many began scribbling, describing no doubt that Rachel had decided to wear a navy blue gabardine pantsuit on the first day of trial rather than a skirt. I didn't care what anybody wore as long as they looked respectful to the court. But I'm sure with Rachel's looks she was going to get a lot of ink about how she dressed and how she behaved as a woman attorney in a massive trial. What a pain. Many of the reporters had already commented on what weaklings we were compared to the irresistible force of Tom Hackett and his army. I saw it as an advantage for us, but the press didn't see it that way.

I wheeled my cart up to the table, unloaded the boxes, lined up exhibit and witness notebooks in order in front, and placed the boxes in the corner with the cart. Rachel did likewise on her side of the table. The table bent around in an L shape, and our notebooks lined their way around the corner. Braden put the remaining exhibit books behind us and took a seat directly behind us in a chair on the inside of the rail. Justin, my paralegal, did likewise. I pulled out my motions in limine notebook and began rereading the argument outline that I had prepared for the twenty-three motions in limine that we and Hackett had filed. They were motions that attempted to limit the evidence and keep prejudicial or wrong evidence from even coming into play in the trial. I thought that some of them might get granted, but wasn't optimistic we'd get them all. As I continued to study my outline, I could hear the reporters whispering questions behind me. I continued to ignore them as I had the reporters outside.

Suddenly the door opened and Hackett and his entourage walked in like they owned the place. He had a cart, as did each of the other attorneys that were with him. There was Bass, his buzz-cut hatchet man, his stunning female paralegal, and an associate I didn't recognize at all. Hackett walked through the gate, placed his briefcase on the table, and said, "Mr. Nolan."

"Mr. Hackett," I said in response without looking at him. "Mr. Bass."

"Ms. Long," they said.

"Mr. Hackett. Mr. Bass."

I waited for one of the plaintiffs, one of the widows, to come in for the arguments because I had figured Hackett for someone who wanted his client there during the motions in limine arguments to elicit sympathy from the judge. Most of the time clients skipped the motions in limine because they were usually legal and technical in nature and not something to which the parties could individually contribute. But sometimes they would show up in the hope that the judge would grant their motions out of sympathy.

The judge had considered conducting a lottery for seats to the trial because of the demand from the public. Instead, the court had opted, at least for the first week, to have people line up outside the courthouse for the back five rows. The doors would be open to the general public thirty minutes before court began. By the time I had gone through my outline three times and begun reviewing the motion papers, the bailiff opened the doors of the courtroom to the public. They had gone through security and been thoroughly checked and now were abuzz with excitement. They tried unsuccessfully not to be loud. They could also see that the judge was not on her bench. They thought that gave them freedom to converse loudly, which I suppose it did, but the noise was annoying.

After the public was seated behind the press, the bailiff went up on the other side of the gate and stood between the counsel tables by the lectern. He turned around and said, "If I could have everybody's attention, please."

He waited until the room was completely silent. I continued to work. He went on, "Although court is not in session, the attorneys and other people working on behalf of the parties are preparing for the hearings which are about to take place. I therefore request that you remain quiet during this time. I will ask you to stand when the judge enters and court is about to be in session."

They all nodded, anxious to please, and the room grew silent. The artists there on behalf of the press were sitting front and center. They were drawing Hackett and me and undoubtedly Rachel. Judge Betancourt had made it clear there were to be no television or still cameras. The only images that would be allowed out of the courtroom were artist drawings of the participants and witnesses.

After another twenty minutes had passed and it was ten to nine, the court's clerk came in and took her seat before her computer. She began typing away on her keys and asked for appearances. Hackett and I both got up, walked to the clerk, and handed her our business cards. She knew who we were, who we represented, and why we were there; she just needed to go through her procedures, which I actually appreciated. I liked precision and order in the conduct of a trial. I liked rules that everybody followed and I could count on being applied equally. I told her I was there on behalf of WorldCopter SA, the European company, and WorldCopter U.S., and she nodded and wrote those names on my card. Hackett did likewise and told her he was there on behalf of all the plaintiffs, whom of course he called "widows." He said, "I'm here on behalf of all of the widows of Marine One."

I tried not to roll my eyes and went back to my seat. I could feel the pressure rising in my chest as we approached the commencement of this immense trial and was sure that my heart rate was now over a hundred beats per minute.

Rachel seemed calm and was preparing a chart for me for the jury selection, or voir dire, as it is officially called. Judge Betancourt was a bit unusual, at least for federal courts now, in that she actually allowed the lawyers to conduct some of the questioning of jurors. Most federal judges made you submit written questions, some of which they would ask, then ask the rest on their own. They would give you no room at all in your attempts to load the jury box with people favorable to your client and to eliminate those you believed might be against you. That was of course what we did; it was part of the adversarial process. The idea was that the resulting jury would end up somewhere in the middle and therefore be fair. Judges, thinking themselves unbiased and balanced, often cut the process short, made their own decisions, and ended up with a jury that was in fact biased. I'm sure the judges were less rosy about the role of judges when they were trying cases as lawyers.

The door in the back corner of the courtroom opened and Judge Betancourt came in. She stopped just short of the three steps that led to her seat behind the bench. The bailiff said, "All rise. United States District Court for the Eastern District of Maryland is now in session. The Honorable Patricia Betancourt presiding. Please be seated and come to order."

The judge climbed up to her black leather chair and sat down. She looked smaller then I remembered. She was perhaps five foot three and 115 pounds. She had short-cropped brown hair and reading glasses. I could tell she'd spent extra time on her makeup that morning. I wondered if she actually thought of the reporters, the press, and the artists who would be drawing her that day. It's human nature to try to look good, especially if you think it's for a big audience. This was without a doubt the biggest audience she would ever be in front of in her entire life. Would trying to "look good" affect her decisions? It was disquieting to think of the judge of your case primping for the press.

"Good morning, counsel."

"Good morning, Your Honor," all the attorneys responded, standing.

She had the clerk call the case, then said, "Mr. Hackett, I don't believe you've ever tried a case in front of me."

"No, Your Honor, I've never had the pleasure," he said.

"Usually I do motions in limine in chambers, but since this is a case of such note, we will have the motions in limine arguments here."

"That's fine, Your Honor, wherever you'd like to do it is fine with me," Hackett said.

"Mr. Nolan, good morning."

"Good morning, Your Honor."

"We have twenty-three motions in limine to argue this morning, and I believe you win the prize as you filed thirteen of them. We shall therefore deal with yours first."

"That's fine, Your Honor, how would you like to address them?"

"In order. I don't think we need to stand on formality during this initial proceeding. Why don't you be seated, Mr. Nolan. Mr. Hackett, I will ask you for your comments in addition to whatever you said in your opposition as we proceed through his motions, and then we will address yours. Do you understand?"

We all did and we began. Judge Betancourt was clinical in her rulings on the motions. For each motion she gave us her tentative ruling and explanation and asked for comments from the side that would be unhappy with the ruling. It was extremely efficient. When that party had had his say, her ruling stood, and we went on to the next one. Her rulings were well thought out, precise, and fair. It was a good start. Six of my motions had been granted, and four of Hackett's. None of them gutted the other side's case. The rulings resulted in evidentiary changes that nibbled at the edges of the case, but nothing that went to the heart of anything significant.

After completing the arguments on the motions, Judge Betancourt launched right into her explanation of how she was going to do the jury selection. We hadn't even reached our morning break yet. She had the clerk call the jury room to have the jury panel come in the room immediately after the morning break.

They were all there when we returned. The bailiff had asked three of the observer rows to wait in the hallway during the jury selection process. They would be allowed to return to their seats after the jury was selected and trial had commenced.

After the voir dire panel had been seated, Mrs. Collins entered the courtroom. Nice timing. Everybody knew who she was. Her picture had been in the paper hundreds of times over the last few months. She was always the sympathetic and grieving widow, who was extremely pretty and everyone wanted to meet. She had not granted a single interview since the accident, and the public was starving to hear her voice and find out more about her. As she made her way down the aisle, Hackett feigned surprise as he stood to welcome her. He walked over to open the gate for her, and she sat down gracefully next to him. She looked even prettier and more radiant than during her deposition. She obviously knew how to take care of herself. She wore a nicely fitted suit with a gold Celtic cross around her neck. As she sat, she turned back around toward the gallery and smiled at the prospective jurors. Her smile was perfect for the occasion. It wasn't a smile ingratiating herself to the jury, nor was it a smile of embarrassment. It was an acknowledgment of their presence, a statement of her appreciation of them, and a quick demonstration of humility. I just couldn't imagine it had been rehearsed, but I also couldn't dismiss that as a possibility.

The judge came in, the courtroom was called into session, and jury selection began in earnest. The court had sent out a large number of jury subpoenas to accommodate the necessary jury pool for this case. It was thought that a lot of people would be dismissed for cause, for not being able to be fair in a trial. That was certainly my expectation. A French corporation that "killed the president" was likely to be unpopular. Some would probably want to make speeches about how outraged they were. It was important that the court acknowledged that, but equally disheartening. No one was going to be biased against the first lady or the widow of the pilot; any bias was going to run toward WorldCopter, the evil foreign corporation.

The judge had required everyone in the jury pool fill out a questionnaire. The jurors were identified by number. We had copies of all the questionnaires and had stayed up late the night before going over them. Rachel and I had huddled together in my office to make a list of those we planned to challenge for cause depending on who from the larger group ended up in the actual jury box. You don't know that until the clerk calls out the numbers randomly selected from the larger group.

My final list was given to Braden and Lynn Carpenter, two of our contract attorneys, in the morning so they could compare our thoughts to their own. WorldCopter had also insisted we use and at least "include in our decision process." The consultant was sitting in the audience looking like any other observer. If we had time to talk, we'd compare notes, but if not, the consultant would send me a "Must Strike!" list by BlackBerry. It made it a little more challenging, but I refused to have a jury consultant sit at counsel table during voir dire the way some lawyers did. It's the kiss of death with a jury, in my opinion. It was like bringing a psychologist with you on a first date.

Judge Betancourt motioned to the clerk and said, "Call the first twenty-four." Judges selected juries differently, but this judge had decided to bring twenty-four people up, twelve into the box, and twelve outside the box, for initial questioning. This would allow us to question them together and know who was coming next if someone inside the box was stricken. In addition to trying to remove somebody for admitted bias, we were each entitled to three peremptory challenges, where we could strike a juror without any explanation at all. I watched as the clerk called each person by juror number, each of whom was then told exactly where to sit, from seat number one, whose occupant would become juror number one if sworn in, through juror number twelve, and then four alternates. Federal court, of course, has no alternate jurors. The requirement is a minimum of six jurors in a civil trial, with no fewer without a stipulation by all parties. Judge Betancourt had told us she intended to seat twelve because it was going to be a long trial. Fine with me. I'd have preferred fifty. Hackett had to convince all of them; he needed a unanimous jury to win in federal court.

The clerk called out the numbers. The twelve in the box were a diverse group of old and young, men and women, black, Hispanic, and white. It was a cross section of America. I liked the looks on their faces. They were intelligent, and ready. One of the concerns, one of the things I was watching for, was eagerness. People really wanted to sit on this jury. They would be able to tell their grandchildren about this trial. Some were probably thinking they could cash in on this experience somehow. They'd be interviewed by innumerable television shows like a cat with a new toy. But they wouldn't know they were the toy. They'd get their fifteen minutes of fame, then the interest of the world would turn to the next question or crisis. If you were able to discern who those people were, it would be best to ask them to leave, especially on my side of the case. Because what kind of book would be most likely to sell? One about a defense verdict saying the French company did nothing wrong, or the first trillion-dollar verdict in the first presidential wrongful-death case that found a foreign corporation killed the president?

The judge began the voir dire herself by asking questions that had been agreed upon before the trial by the parties. The prospective jurors were asked whether they knew any of the attorneys. Many knew of Hackett, but nobody knew him. They were asked about their knowledge of the case from the press and whether they had formed an opinion based on the press reporting. No, no. No one had, they all assured the judge. They were asked about their understanding of helicopters, the safety of helicopters, the safety of flying, foreign corporations, foreign manufacturing of goods destined for the American military, and their ability to be fair to a foreign corporation. All the usual kinds of questions that any high school student would know to ask when trying to find out whether a juror was biased.

The prospective jurors assured everybody in the room that they were certainly not biased against either party and would absolutely give a fair hearing if allowed to serve. Most of the jurors were nearly gleeful. The press hung on every word, although they knew the jurors only by number. The judge didn't want the press doing background investigations on every juror to try to figure out how they might vote or digging up dirt on them to throw the trial into disarray. They were to be known by numbers only until the conclusion of the trial or they were dismissed from the jury pool.

After the judge completed her preliminary questioning, she looked at Hackett. "Mr. Hackett, you may examine the jury."