So, if I had my way, I’d have twelve black women, preferably all with children.
Deck, of course, has another theory. He’s afraid of blacks because Memphis is so racially polarized. White plaintiff, white defendant, everybody’s white here but the judge. Why should the blacks care?
This is a perfect example of the fallacy of stereotyping jurors by race, class, age, education. The fact is, no one can predict what
anybody
might do in jury deliberations. I’ve read every book in the law library about jury selection,
and I’m as uncertain now as I was before I read them.
There is only one type of juror to avoid in this case: the white male corporate executive. These guys are deadly in punitive damage cases. They tend to take charge of the deliberations. They’re educated, forceful, organized and don’t care much for trial lawyers. Thankfully, they’re also usually too busy for jury duty. I’ve isolated only five on my list, and I’m sure each will have a dozen reasons to be excused. Kipler, under different circumstances, might give them a hard time. But Kipler, I strongly suspect, doesn’t want these guys either. I’d wager my formidable net worth that His Honor wants black faces in the jury box.
I’M SURE that if I stay in this business I’ll one day think of a dirtier trick, but one’s hard to imagine now. I’ve been thinking about it for weeks, and finally mentioned it to Deck several days ago. He went berserk.
If Drummond and his gang want to listen to my phone, then we’ve decided to give them an earful. We wait until late in the afternoon. I’m at the office. Deck’s around the corner at a pay phone. He calls me. We’ve rehearsed this several times, even have a script.
“Rudy, Deck here. I finally found Dean Goodlow.”
Goodlow is a white male, age thirty-nine, college education, owns a carpet cleaning franchise. He’s a zero on our scale, definitely a juror we don’t want. Drummond would love to have him.
“Where?” I ask.
“Caught him at the office. He’s been out of town for a week. Helluva nice guy. We were dead wrong about him. He’s not at all fond of insurance companies, says he argues with his all the time, thinks they need to be severely regulated. I gave him the facts in our case, and, boy, did
he get mad. He’ll make a great juror.” Deck’s delivery is a bit unnatural, but to the uninformed he sounds believable. He’s probably reading this.
“What a surprise,” I say firmly and crisply into the phone. I want Drummond to grab every syllable.
The thought of lawyers talking to potential jurors before the selection process is incredible, almost unbelievable. Deck and I worried that our ruse might be so absurd that Drummond would know we were faking. But who would’ve thought one lawyer would eavesdrop on his opponent by means of an illegal wiretap? Also, we decided Drummond would fall for our ploy because I’m just an ignorant rookie and Deck is, well, Deck is nothing but a humble paralawyer. We just don’t know any better.
“Was he uneasy about talking?” I ask.
“A little. I told him what I’ve told the rest of them. I’m just an investigator, not a lawyer. And if they don’t tell anybody about our conversation, then nobody’ll get in trouble.”
“Good. And you think Goodlow is with us?”
“No doubt. We gotta get him.”
I ruffle some paper near the phone. “Who’s left on your list?” I ask loudly.
“Lemme see.” I can hear Deck ruffling papers on his end. We’re quite a team. “I’ve talked to Dermont King, Jan DeCell, Lawrence Perotti, Hilda Hinds and RaTilda Browning.”
With the exception of RaTilda Browning, these are white people we don’t want on our jury. If we can pollute their names enough, Drummond will try everything to exclude them.
“What about Dermont King?” I ask
“Solid. Once had to throw an insurance adjuster out of his house. I’d give him a nine.”
“What about Perotti?”
“Great guy. Couldn’t believe an insurance company could actually kill a person. He’s with us.”
“Jan DeCell?”
More paper ruffling. “Let’s see. A very nice lady who wouldn’t talk much. I think she was afraid it wasn’t right or something like that. We talked about insurance companies and such, told her Great Benefit’s worth four hundred million. I think she’ll be with us. Give her a five.”
It’s difficult to keep a straight face. I press the phone deeper into my flesh.
“RaTilda Browning?”
“Radical black gal, no use for white people. She asked me to leave her office, works at a black bank. She won’t give us a dime.”
A long pause as Deck rattles papers. “What about you?” he asks.
“I caught Esther Samuelson at home about an hour ago. Very pleasant lady, in her early sixties. We talked a lot about Dot and how awful it would be to lose a child. She’s with us.”
Esther Samuelson’s late husband was an officer with the Chamber of Commerce for many years. Marvin Shankle told me this. I cannot imagine the type of case I’d want to try with her on the jury. She’ll do anything Drummond wants.
“Then I found Nathan Butts in his office. He was a little surprised to learn that I was one of the lawyers involved in the case, but he chilled out. Hates insurance companies.”
If Drummond’s heart is still beating at this point, there’s only a faint pulse. The thought of me, the lawyer, and not my investigator out beating the bushes and discussing the facts of the case with potential jurors is enough to blow an artery. By now, however, he’s realized that there is absolutely nothing he can do about it. Any
response on his part will reveal the fact that he can listen to my phone calls. This would get him disbarred immediately. Probably indicted as well.
His only recourse is to stay quiet, and try to avoid these people whose names we’re tossing around.
“I’ve got a few more,” I say. “Let’s chase ’em until ten or so, then meet here.”
“Okay,” Deck says, tired, his acting much better now.
We hang up, and fifteen minutes later the phone rings. A vaguely familiar voice says, “Rudy Baylor, please.”
“This is Rudy Baylor.”
“This is Billy Porter. You stopped by the shop today.”
Billy Porter is a white male, wears a tie to work and manages a Western Auto. He’s a weak one on our scale to ten. We don’t want him.
“Yes, Mr. Porter, thanks for calling.”
It’s actually Butch. He agreed to help us with a brief cameo. He’s with Deck, both probably huddled over the pay phone trying to stay warm. Butch, ever the consummate professional, went to the Western Auto and talked to Porter about a set of tires. He’s trying his best to imitate his voice. They’ll never see each other again.
“What do you want?” Billy/Butch demands. We told him to appear gruff, then come around quickly.
“Yes, well, it’s about the trial, you know, the one you got a summons for. I’m one of the lawyers.”
“Is this legal?”
“Of course it’s legal, just don’t tell anybody. Look, I represent this little old lady whose son was killed by a company called Great Benefit Life Insurance.”
“Killed?”
“Yep. Kid needed an operation, but the company wrongfully denied the treatment. He died about three months ago of leukemia. That’s why we’ve sued. We really need your help, Mr. Porter.”
“That sounds awful.”
“Worse case I’ve ever seen, and I’ve handled lots of them. And they’re guilty as hell, Mr. Porter, pardon my language. They already offered two hundred thousand bucks to settle, but we’re asking for a lot more. We’re asking for punitive damages, and we need your help.”
“Will I get picked? I really can’t miss work.”
“We’ll pick twelve out of about seventy, that’s all I can tell you. Please try to help us.”
“All right. I’ll do what I can. But I don’t want to serve, you understand.”
“Yes sir. Thanks.”
DECK COMES TO THE OFFICE, where we eat a sandwich. He leaves twice more during the evening and calls me back. We kick around more names, folks we allegedly talk to, all of whom are now most anxious to punish Great Benefit for its misdeeds. We give the impression that both of us are out there on the streets, knocking on doors, pitching our appeals, violating enough ethical canons to get me disbarred for life. And all this horribly sleazy stuff is taking place the night before the jurors gather to be examined!
Of the sixty-odd people who’ll make the next round of cuts and be available for questioning, we’ve managed to cast heavy doubts on a third of them. And we carefully selected the ones we are most fearful of.
I’ll bet Leo Drummond does not sleep a wink tonight.
Forty-two
F
IRST IMPRESSIONS ARE CRUCIAL. THE JURORS arrive between eight-thirty and nine. They walk through the double wooden doors nervously, then shuffle down the aisle, staring, almost gawking at the surroundings. For many, it’s their first visit to a courtroom. Dot and I sit together and alone at the end of our table, facing the rows of padded pews being filled with jurors. Our backs are to the bench. A single legal pad is on our table, nothing else. Deck is in a chair near the jury box, away from us. Dot and I whisper and try to smile. My stomach is cramped with frenzied butterflies.
In sharp contrast, across the aisle the defense table is surrounded by five unsmiling men in black suits, all of whom are poring over piles of paper which completely cover the desk.
My theme of David versus Goliath is decisive, and it begins now. The first thing the jurors see is that I’m out-manned, outgunned and obviously underfunded. My poor little client is frail and weak. We’re no match for those rich folks over there.
Now that we’ve completed discovery, I’ve come to realize how unnecessary it is to have five lawyers defending this case. Five very good lawyers. Now, I’m amazed that Drummond does not realize how menacing this looks to the jurors. His client must be guilty of something. Why else would they use five lawyers against only one of me?
They refused to speak to me this morning. We kept our distance, but the sneers and scowls of contempt told me they’re appalled by my direct contact with the jurors. They’re shocked and disgusted, and they don’t know what to do about it. With the exception of stealing money from a client, contacting potential jurors is probably the gravest sin a lawyer can commit. It ranks right up there with illegal wiretaps on your opponent’s phone. They look stupid trying to appear indignant.
The clerk of the court herds the panel together on one side, then seats them in random order on the other side, in front of us. From the list of ninety-two, sixty-one people are here. Some could not be found. Two were dead. A handful claimed to be sick. Three invoked their age as an excuse. Kipler excused a few others for various personal reasons. As the clerk calls out each name I make notes. I feel like I’ve known these people for months. Number six is Billy Porter, the Western Auto manager who allegedly called me last night. It’ll be interesting to see what Drummond does to him.
Jack Underhall and Kermit Aldy are representing Great Benefit. They sit behind Drummond and his team. That’s seven suits, seven serious and forbidding faces glowering at the jury pool. Lighten up, guys! I keep a pleasant look on my face.
Kipler enters the courtroom and everybody rises. Court is opened. He welcomes the panel, and delivers a brief and effective speech on jury service and good citizenship. A few hands go up when he asks if there are valid excuses.
He instructs them to approach the bench one at a time, where they plead their cases in muted voices. Four of the five corporate execs on my blacklist whisper with the judge. Not surprisingly, he excuses them.
This takes time, but it allows us to study the panel. Based on the way they’re seated, well probably not get past the first three rows. That’s thirty-six. We need only twelve, plus two alternates.
On the benches directly behind the defense table, I notice two well-dressed strangers. Jury consultants, I presume. They watch every move from these people. Wonder what our little ploy did to their in-depth psychological profiles? Ha, ha, ha. Bet they’ve never had to factor in a couple of nuts out there the night before chatting with the jury pool.
His Honor dismisses seven more, so we’re down to fifty. He then gives a sketchy summary of our case, and introduces the parties and the lawyers. Buddy is not in the courtroom. Buddy is in the Fairlane.
Kipler then starts the serious questioning. He urges the jurors to raise their hands if they need to respond in any way. Do any of you know any of the parties, any of the lawyers, any of the witnesses? Any of you have policies issued by Great Benefit? Any of you involved in litigation? Any of you ever sued an insurance company?
There are a few responses. They raise their hands, then stand and talk to His Honor. They’re nervous, but after a few do it the ice is broken. There’s a humorous comment, and everybody relaxes a bit. At times, and for very brief intervals, I tell myself that I belong here. I can do this. I’m a lawyer. Of course, I have yet to open my mouth.
Kipler gave me a list of his questions, and he’ll ask everything I want to know. Nothing wrong with this. He gave the same list to Drummond.
I make notes, watch the people, listen carefully to
what’s said. Deck is doing the same thing. This is cruel, but I’m almost glad the jurors don’t know he’s with me.
It drags on as Kipler plows through the questions. After almost two hours, he’s finished. The vicious knot returns to my stomach. It’s time for Rudy Baylor to say his first words in a real trial. It’ll be a brief appearance.
I stand, walk to the bar, give them a warm smile and say the words that I’ve practiced a thousand times. “Good morning. My name is Rudy Baylor, and I represent the Blacks.” So far so good. After two hours of being hammered from the bench, they’re ready for something different. I look at them warmly, sincerely. “Now, Judge Kipler has asked a lot of questions, and these are very important. He’s covered everything I wanted to ask, so I won’t waste time. In fact, I have only one question. Can any of you think of any reason why you shouldn’t serve on this jury and hear this case?”
No response is expected, and none is received. They’ve been looking at me for over two hours, and I merely want to say hello, give them another nice smile and be very brief. There are few things in life worse than a long-winded lawyer. Plus, I have a hunch Drummond will hit them pretty hard.