by John Grisham
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.”
21
The collision of a small car weighing three
thousand pounds with the wheel unit of a loaded boxcar weighing seventy-five tons created a nasty accident scene. Once it was determined by the first responders that all four occupants were dead, some of the urgency subsided as the crews went about the grim task of prying and cutting out the bodies. Over two dozen officers and rescue personnel were at the site, along with other travelers who happened upon the scene and couldn’t pass around it. A state trooper took a series of still shots, and a volunteer from a local fire brigade filled four rolls of film with the recovery and cleanup.
Early in discovery, Jake obtained sets of all the photos and had them enlarged. Over a three-month period, he meticulously collected the names of the responders and the strangers who watched them work. Identifying the firemen, police, and medics was easy. He spent time in three volunteer firehouses out in the county, as well as two from the town of Clanton. Everyone, it seemed, answered the call.
Putting names with the faces of the strangers was a far greater challenge. He was looking for witnesses, anyone who might have seen anything. Hank Grayson, the only known eyewitness, said in his deposition that he thought there was a car behind him, though he made it clear he wasn’t certain. Jake went through every photograph and slowly collected the names of the people at the site. Most were from Ford County, and some admitted they showed up when they heard the chatter on their police scanners. At least a dozen were late-night travelers who got stuck on the road during the three hours it took to remove the bodies and clear the scene. Jake tracked down each one of these. Not a one had witnessed the accident; indeed, most arrived long after it happened.
But in six of the photos, there was a white man with a bald head who looked out of place. He was about fifty, wore a dark suit, white shirt, dark tie, much too nicely dressed for rural Ford County on a Friday night. He stood with other spectators and watched as the firemen cut and sawed to remove the four bodies. No one seemed to know him. Jake asked the first responders about the man, but no one had ever seen him. In Jake’s world, he became the mysterious stranger, the man in the dark suit.
Melvin Cochran lived a quarter of a mile from the crossing and was awakened that night by sirens. He got dressed, went outside, saw the carnival-like scene down the hill, and grabbed his video camera. As he walked to the scene, with the switch on, he began to pass cars parked on the shoulder, all headed east. Once at the scene, he filmed for almost an hour before the battery ran low. Jake got a copy of the video and had watched it, frame by frame, for hours. The man in the dark suit was in several scenes, observing the tragedy, at times seemingly bored and wanting to move on.
As Melvin approached the site, he passed a total of eleven parked vehicles. Jake was able to identify the license plates on seven of them. The others were obscured. Five of the seven were from Ford County, one was from Tyler County, and one was from Tennessee. He doggedly tracked down each one and eventually matched the vehicles with the names and faces of their owners in the crowd.
On a wall in a workroom, Jake cut and pasted and pieced together a large composite of the scene with small nameplates for twenty-six rescue personnel and thirty-two spectators. Everyone was identified, except the man in the dark suit.
The vehicle with Tennessee plates was registered to a food brokerage firm in Nashville; thus, no individual name was available. For a month Jake considered this to be a dead end, which didn’t bother him. He figured that if the mysterious man had seen anything relevant he would have spoken to an officer on the scene. But it nagged him. The man had an odd look about him, and Jake was chasing every detail. The case could be the biggest one of his career and he was determined to know everything about it.
He would later curse his curiosity.
He finally paid $250 to a private investigator in Nashville and sent him a photo of the mystery man. Two days later, the investigator faxed Jake a report, one that he at first wanted to destroy. It read:
I went to the corporate address with the photo and asked around. I was directed to the office of Mr. Neal Nickel, a district rep of some sort. He was obviously the man in the photo and I showed it to him. He was surprised that I had found him and he asked how I did so. I said I was working for some of the lawyers involved with the case but did not give any names. We talked for maybe fifteen minutes. Nice guy, with nothing to hide. He said he had been to the wedding of a relative down in Vicksburg and was on his way back home. He lives in a suburb of Nashville. Said he was not familiar with Highway 88 but thought it might save some time. As he crossed into Ford County he began to follow a pickup truck, one that was all over the road. So he backed off and gave the guy plenty of room, said the driver was obviously drunk. As they went down a hill, he saw the highway signs indicating a crossing ahead. Then he saw the red warning lights flashing at the foot of the hill. There was a loud noise. He thought at first it was an explosion of some sort. Then the truck in front of him hit the brakes and swerved. NN stopped in the road and hurried to the scene on foot. The train was still passing. The crossing lights were still flashing red. The warning bell was still ringing. The driver of the truck was yelling at him. Steam and smoke were coming from the wrecked car. He could see small children crushed in the rear seat. The train stopped, then moved backward and cleared the crossing. By then other drivers were stopping, and before long the first policeman and ambulance arrived. The road was blocked and he couldn’t pass so he had no choice but to hang around and watch. For three hours. He said it was pretty gruesome watching the recovery of four dead people, especially when they pulled the little kids out. Said he had nightmares for weeks, wished he hadn’t seen it.
I made sure he was clear about the warning lights. He said he heard the driver of the truck tell a state trooper that the lights were not working, and he started to say something. But he refused to get involved. He refuses to get involved now. Wants nothing to do with the case. I asked him why and he said he was involved in a bad car wreck years ago and he got blamed for it. Had to go to trial and he has a strong dislike for lawyers and courts. Also, NN has a lot of sympathy for the family and doesn’t want to hurt their case.
Interesting note: He said that a few months ago he was in the area, near Clanton, stopped by the courthouse and asked if he could see the file with the lawsuit. They said it was public record, so he read some of it and was amused to see that the witness, the driver of the pickup, Mr. Grayson was still saying that the lights were not working.
NN definitely wants to stay out of this.
When he was sure he wasn’t going to vomit, Jake managed to walk gingerly to the sofa and lie down. He pinched his nose and closed his eyes and saw his fortune fly away.
Not only was Nickel a far more credible witness, he could confirm that Hank Grayson, their star, was drinking that night.
When he could finally move, Jake folded the report into an unmarked envelope, resisted the temptation to burn it, and hid it in a thick lawbook where maybe it would vanish, or maybe he would just simply forget about it.
If Nickel wanted to avoid the trial, that was fine with Jake. They would keep the same secret.
The fear, though, was the defense. Seven months into the lawsuit, Sean Gilder had shown little interest in the case and had only gone through the motions of discovery. He had filed one set of standard interrogatories and requested the basic documents. They had agreed to depose a few of the key witnesses. Jake estimated that he had put in three times the hours as the defense lawyers who actually got paid by the hour.
If Neal Nickel insisted on lying low, there was a good chance he would not be discovered by anybody working on behalf of the railroad or its insurance company. And barring a sudden change of conscience, he would get his wish of staying out of any lawsuit.
So why did Jake spend the next three days with a knot in his stomach? The big question was Harry Rex. Should he show him the report and watch him freak out? Or should Jake simply bury it, along with any knowledge of the mysterious eyewitness?
The quandary roiled Jake’s world for days, but with time he managed to shove it into another compartment and concentrate on the rest of the case.
Two months later, on January 9, 1990, to be exact, the issue returned with a vengeance. Sean Gilder filed a second set of interrogatories that sought answers he already had, for the most part. Again, he appeared listless and totally unimaginative. Jake and Harry Rex had become convinced that Gilder was not sandbagging, a common defense tactic. Rather, it appeared as if Gilder was overconfident because of the fact that Taylor Smallwood drove into a moving train. End of case.
But the last interrogatory, number thirty in a package of thirty, was lethal. It was one that was commonly used, especially by lazy or busy lawyers. It read: “List the full name, complete address, and phone number of any and all persons with knowledge of the alleged facts of this case.”
Also known as “the Round-Up,” it was a much debated, and hated, tactic that punished lawyers who worked overtime and dug for the facts. Under the rules of discovery, trials were supposed to be free of ambushes. Each side swapped all information and it was laid in a transparent fashion before the jury. That was the theory, anyway, the goal. But the new rules created unfair practices, and the Round-Up was widely despised. It said, in other words: “Work diligently to learn all the facts, then hand them to the other side on a platter.”
Two days after receiving the second set of interrogatories, Jake finally placed the investigator’s report on the large, messy desk in front of Harry Rex. He picked it up, read it, dropped it, and without hesitation said, “There goes the lawsuit. There goes the case. Why did you find this clown?”
