Sycamore Row

35

Two weeks before the scheduled start of the war, the lawyers and their staffs met in the main courtroom for a pretrial conference. Such gatherings were unheard-of back in the old days, but the more modern rules of engagement called for them and even provided an acronym, the PTC. Lawyers like Wade Lanier who fought on the civil side were well versed in the strategies and nuances of the PTC. Jake less so. Reuben Atlee had never presided over one, though he would not admit this. For him and his Chancery Court, a major trial was a nasty divorce with money on the line. These were rare, and he handled them the same way he had for thirty years, modern rules be damned.

Critics of the new rules of discovery and procedure whined that the PTC was nothing more than a rehearsal for the trial, and thus it required the lawyers to prepare twice. It was time-consuming, expensive, burdensome, and also restrictive. A document, an issue, or a witness not properly covered in the PTC could not be considered at trial. Old lawyers like Lucien who reveled in dirty tricks and ambushes hated the new rules because they were designed to promote fairness and transparency. “Trials are not about fairness, Jake, trials are about winning,” he’d said a thousand times.

Judge Atlee wasn’t too keen on them either, though he was duty-bound to follow them. At ten o’clock Monday morning, March 20, he shooed away the handful of spectators and told the bailiff to lock the door. This was not a public hearing.

As the lawyers were getting situated, Lester Chilcott, Lanier’s co-counsel, walked over to Jake’s table and laid down some paperwork. “Updated discovery,” he said, as if everything were routine. As Jake flipped through it, Judge Atlee called them to order and began scanning faces to make sure all lawyers were present. “Still missing Mr. Stillman Rush,” he mumbled into his microphone.

Jake’s surprise quickly turned to anger. In a section where all potential witnesses were listed, Lanier had included the names of forty-five people. Their addresses were scattered throughout the Southeast, with four in Mexico. Jake recognized only a handful; a few he had actually deposed during discovery. A “document dump” was a common dirty trick, one perfected by corporations and insurance companies, in which they and their lawyers hid discoverable documents until the last possible moment. They then dumped several thousand pages of documents on the opposing lawyer just before the trial, knowing he and his staff could not possibly dig through them in time. Some judges were angered by document dumps; others let them slide. Wade Lanier had just pulled off a “witness dump,” a close cousin. Withhold the names of many of the potential witnesses until the last moment, then hand them over along with a bunch of surplus names to bewilder the opponent.

The opponent seethed, but suddenly had more pressing matters. Judge Atlee said, “Now, Mr. Brigance, you have two motions pending. One to change venue, the other for a continuance. I’ve read your briefs, and the responses from the contestants, and I’m assuming you have nothing more to add to these motions.”

Jake rose and wisely said, “No sir.”

“Just keep your seats, gentlemen. This is a pretrial conference, not a formal hearing. Now, is it also safe to assume there has been no progress in the search for Ancil Hubbard?”

“Yes sir, that’s safe to assume, though with more time we may make some progress.”

Wade Lanier stood and said, “Your Honor, please, I’d like to respond. The presence or absence of Ancil Hubbard is of no importance here. The issues have been boiled down to what we expected, to those always in play in a will contest; to wit, testamentary capacity and undue influence. Ancil, if he’s alive, did not see his brother Seth for decades prior to Seth’s suicide. Ancil can’t possibly testify to how or what his brother was thinking. So let’s proceed as planned. If the jury finds in favor of the handwritten will, then Mr. Brigance and the estate will have plenty of time to keep searching for Ancil and hopefully give him his 5 percent. But if the jury rejects the handwritten will, then Ancil himself becomes irrelevant because he’s not mentioned in the prior will. Let’s move on, Judge. You set the trial date of April 3 many months ago, and there’s no good reason not to go on as planned.”

Lanier was not flashy, but he was down-to-earth, even homey, and persuasive. Jake had already learned the man could argue effortlessly off-the-cuff and convince anybody of just about anything.

“I agree,” Judge Atlee said gruffly. “We will proceed as planned on April 3. Here, in this courtroom. Please sit down, Mr. Lanier.”

Jake took notes and waited for the next argument. Judge Atlee looked at his notes, adjusted the reading glasses far down his nose, and said, “I count six lawyers sitting over here on the contestants’ side of the courtroom. Mr. Lanier is the chief counsel for the children of Seth Hubbard-Ramona Dafoe and Herschel Hubbard. Mr. Zeitler is the chief counsel for the two children of Herschel Hubbard. Mr. Hunt is the chief counsel for the two children of Ramona Dafoe. The rest of you guys are associates.” He removed his glasses and stuck a stem in his mouth. A lecture was coming. “Now gentlemen, when we get to trial, I have no intention of tolerating a lot of excessive and unnecessary chatter from six lawyers. In fact, no one except lawyers Lanier, Zeitler, and Hunt will be allowed to speak in court on behalf of the contestants. God knows that should be enough. And, I’m not going to subject the jury to three different opening statements, three different closing arguments, and three different examinations of witnesses. If there is an objection, I do not want three or four of you jumping up and waving your arms and yelling, ‘Objection!’ ‘Objection!’ Do you follow me?”

Of course they did. He was speaking slowly, clearly, and with his usual heavy authority. He continued, “I suggest that Mr. Lanier take the lead for the contestants and handle the bulk of the trial. He certainly has more trial experience, not to mention the clients with the greatest interests. Divide the work any way you want-I wouldn’t dare give advice,” he said gravely, advising. “I’m not trying to muzzle anyone. You have the right to advocate for your client or clients. Each of you may call your own witnesses and cross-examine those called by the proponents. But the first time you start repeating what’s already been said, as lawyers have a natural inclination to do, you can expect swift intervention from up here. I will not tolerate it. Are we on the same page?”

They certainly were, for the moment anyway.

He jammed the reading glasses back onto his nose and looked at his notes. “Let’s talk about exhibits,” he said. They spent an hour discussing the documents that would be admitted into evidence and shown to the jury. At Judge Atlee’s heavy-handed insistence, the handwriting was stipulated to be that of Henry Seth Hubbard. Arguing otherwise would be a waste of time. The cause of death was stipulated. Four large color photos were approved. They showed Seth hanging from the tree and eliminated any doubt as to how he died.

Then Judge Atlee said, “Now, let’s review the witnesses. I see that Mr. Lanier has added quite a few.”

Jake had been waiting impatiently for over an hour. He tried to keep his cool, but it was difficult. He said, “Your Honor, I’m going to object to a lot of these witnesses being allowed to testify at trial. If you’ll look on page six, beginning there and running for a while, you see the names of forty-five potential witnesses. Looking at their addresses, I’m assuming these people worked in Mr. Hubbard’s various factories and plants. I don’t know because I’ve never seen these names before. I’ve checked the latest updated responses to interrogatories, and of the forty-five, only fifteen or sixteen have ever been mentioned by the contestants before today. Under the rules, I was entitled to have these names months ago. It’s called a witness dump, Your Honor. Dump a pile of witnesses on the table two weeks before the trial, and there’s no way I can possibly talk to them all and find out what their testimony might be. Forget depositions-it would take another six months. This is a clear violation of the rules, and it’s underhanded.”

Judge Atlee scowled at the other table and said, “Mr. Lanier?”

Lanier stood and said, “May I stretch my legs, Your Honor? I have a bad knee.”

“Whatever.”

Lanier began pacing in front of his table, limping slightly. Probably a courtroom trick of some variety, Jake thought.

“Your Honor, this is not underhanded and I resent the accusation. Discovery is always a work in progress. New names are always popping up. Reluctant witnesses sometimes come forward at the last minute. One witness remembers another one, or another one, or he remembers something else that happened. We’ve had investigators digging and digging for five months now, nonstop, and, frankly, we’ve outworked the other side. We’ve found more witnesses, and we’re still looking for more. Mr. Brigance has two weeks to call or go see any witness on my list. Two weeks. No, it’s not a lot of time, but is there ever enough time? We know there is not. This is the way high-powered litigation goes, Your Honor. Both sides scramble until the very last moment.” Pacing, limping, arguing quite effectively, Lanier inspired grudging admiration, though at the same time Jake wanted to throw a hatchet at him. Lanier did not play by the rules but he was quite adept at legitimizing his cheating.

For Wade Lanier, it was a crucial moment. Buried in the list of forty-five was the name Julina Kidd, the only black woman Randall Clapp had found so far who was willing to testify and admit she’d slept with Seth. For $5,000 plus expenses, she had agreed to travel to Clanton and testify. She had also agreed to ignore phone calls or any contact from any other lawyer, namely one Jake Brigance, who might show up desperately sniffing around for clues.

Not buried in the list was Fritz Pickering; his name had not been mentioned, nor would it be until a critical moment in the trial.

Judge Atlee asked Jake, “How many depositions have you taken?”

Jake replied, “Together, we’ve taken thirty depositions.”

“Sounds like a lot to me. And they’re not cheap. Mr. Lanier, surely you don’t plan to call forty-five witnesses.”

“Of course not, Your Honor, but the rules require us to list all potential witnesses. I may not know until we’re in the middle of the trial who I need next on the stand. This is the flexibility the rules contemplate.”

“I understand that. Mr. Brigance, how many witnesses do you plan to call?”

“Approximately fifteen, Your Honor.”

“Well, I can tell you fellas right now I’m not going to subject the jury, or myself, to the testimony of sixty witnesses. At the same time, I’m not inclined to restrict who you may or may not call at trial. Just make sure all witnesses are disclosed to the other side. Mr. Brigance, you have all the names and you have two weeks to dig.”

Jake shook his head in frustration. The old Chancellor couldn’t help but revert to his old ways. Jake asked, “Then would it be possible to require the attorneys to submit a brief overview of what each witness might say on the stand? This seems only fair, Your Honor.”

“Mr. Lanier?”

“I’m not sure how fair it is, Your Honor. Just because we’ve hustled our butts off and found a bunch of witnesses Mr. Brigance has never heard of doesn’t mean we should be required to tell him what they might say. Let him do the work.” The tone was condescending, almost insulting, and for a split second Jake felt like a slacker.

“I agree,” Judge Atlee said. Lanier shot Jake a look of contemptuous victory as he walked by him and sat down again.

The PTC dragged on as they discussed the expert witnesses and what they might say. Jake was irritated at Judge Atlee and did not try to hide his feelings. The highlight of the meeting was the distribution of the jury list, and the judge saved it for last. It was almost noon when a clerk distributed it. “There are ninety-seven names,” Atlee said, “and they’ve been screened for everything but age. As you know, some folks over the age of sixty-five do not want to be exempted from service, so I’ll let you gentlemen handle that during selection.”

The lawyers scanned the names, looking for friendly ones, sympathetic ones, smart folks who would instantly side with them and bring back the right verdict. Atlee went on, “Now, and listen to me, I will not tolerate contact with these people. As I understand the nature of big lawsuits these days, it’s not unusual for the attorneys to investigate the jury pool as thoroughly as possible. Go right ahead. But do not contact them, or follow them, or frighten them, or in any way harass them. I will deal harshly with anyone who does. Keep these lists close. I do not want the entire county knowing who’s in the pool.”

Wade Lanier asked, “In what order will they be seated for selection, Your Honor?”

“Entirely at random.”

The lawyers were silent as they rapidly read through the names. Jake had a distinct advantage because it was home turf. Every time he looked at a jury list, though, he was astonished at how few names he recognized. A former client here, a church member there. A high school buddy from Karaway. His mother’s first cousin. A quick review yielded maybe twenty hits out of ninety-seven. Harry Rex would know even more. Ozzie would know all the black ones and many of the whites. Lucien would boast about how many he knew, but in reality he’d been sitting on the front porch for too long.

Wade Lanier and Lester Chilcott, from Jackson, recognized no one, but they would have plenty of help. They were chumming up with the Sullivan firm, at nine lawyers still the biggest in the county, and there would be a lot of advice.

At 12:30, Judge Atlee was tired and dismissed everyone. Jake hurried out of the courtroom, wondering if the old man was physically up to a grueling trial. He was also worried about which rules would control the trial. It was obvious the official rules, the new ones on the books, would not be strictly adhered to.

Regardless of the rules, Jake, and every other lawyer in the state, knew the Supreme Court of Mississippi was famous for deferring to the wisdom of local Chancellors. They were there, in the heat of the battle. They saw the faces, heard the testimony, felt the tension. Who are we, the Supreme Court had asked itself over the decades, to sit here far removed and dispassionately substitute our judgment for Chancellor So-and-So?

As always, the trial would be governed by Reuben’s Rules.

Whatever they happened to be at any particular moment.

Wade Lanier and Lester Chilcott walked straight to the offices of the Sullivan firm and made their way to a conference room on the second floor. A platter of sandwiches was waiting, as was a feisty little man with a crisp Upper Midwest accent. He was Myron Pankey, a former lawyer who’d found a niche in the relatively new field of jury consultation, an area of expertise now nudging itself into many major trials. For a handsome fee, Pankey and his staff would work all sorts of miracles and deliver the perfect jury, or at least the best available. A phone survey had already been done. Two hundred registered voters in counties adjoining Ford County had been interviewed. Fifty percent said a person should be able to leave his or her estate to anyone, even at the expense of his or her own family. But 90 percent would be suspicious of a handwritten will that left everything to the last caregiver. The data had piled up and was still being analyzed at Pankey’s home office in Cleveland. Race was not a factor in any part of the survey.

Based on the preliminary numbers, Wade Lanier was optimistic. He ate a sandwich while standing and talking and sipping a Diet Coke through a straw. Copies of the jury lists were made and scattered across the conference table. Each of the nine members of the Sullivan firm was given a copy and asked to review the names as soon as possible, though all were swamped as usual and just couldn’t see how they could add five more minutes of work to their overloaded schedules.

A greatly enlarged road map of Ford County was mounted along one wall. A former Clanton cop named Sonny Nance was already sticking numbered pins onto streets and roads where the jurors lived. Nance was from Clanton, married to a woman from Karaway, and said he knew everyone. He’d been hired by Myron Pankey to showcase this knowledge. At 1:30, four more new employees arrived and received their instructions. Lanier was blunt but precise. He wanted color photos of each home, each neighborhood, each vehicle if possible. If there were stickers on the bumpers, take photos. But do not, under any circumstances, take the risk of getting caught. Pose as survey takers, bill collectors, insurance runners delivering checks, door-to-door proselytizers, whatever might be believable, but talk to the neighbors and learn what you can without being suspicious. Do not, under any circumstances, have direct contact with any potential juror. Find out where these people work, worship, and send their kids to school. We have the basics-name, age, sex, race, address, voting precinct-and nothing else. So there are a lot of blanks to be filled in.

Lanier said, “You cannot get caught. If your activity arouses suspicion, then immediately disappear. If you are confronted, give them a bogus name and report back here. Even if you think you might be spotted, leave, disappear, and eventually call in. Questions?”

None of the four were from Ford County, so the chances of being recognized were zero. Two were former cops, two were part-time investigators; they knew how to work the streets. “How much time do we have?” one asked.

“The trial starts two weeks from today. Check in every other day and give us the info you’ve collected. Friday of next week is the deadline.”

“Let’s go,” one said.

“And don’t get caught.”

Jake’s expert trial consultant was also his secretary/paralegal. Since Judge Atlee was now administering the estate as if all funds came directly from his own tight pocket, a real consultant was out of the question. Portia would be in charge of gathering the data, or rather, keeping up with all of it. At 4:30 Monday afternoon, she, Jake, Lucien, and Harry Rex gathered in a workroom on the second floor, next to her old office. Present also was Nick Norton, a lawyer from across the square who had represented Marvis Lang two years earlier.

They went through all ninety-seven names.