The Ultimate Resolution

by Dave Sullivan

  "All right, Madame Clerk," said Judge Hawthorne, "call twelve names, please."

  At the pre-trial conference, the court and counsel had agreed to two alternates in addition to the normal civil jury of six. Each side would have two peremptory challenges to bring the number of jurors who would sit in the jury box throughout the trial to eight.

  Professor Stanton had explained to Sarah before the trial started. "Juries have always been required to have twelve members. Civil juries have been reduced to six while felony cases still remain at twelve. In order to avoid a mistrial if a juror gets sick or something and you end up with less than the required number, alternates are used, but they do not deliberate. Instead, they are excused at the end of the trial before the jury retires to deliberate. The courts are talking about changing the rule so alternates in civil cases will deliberate even if you finish with more than six. Judge Hawthorne isn't doing that yet. Criminal cases will still require exactly twelve so alternates will not deliberate even if they change the civil rule. In this civil case in this court, alternates will not deliberate."

  "Jerrod Malcolm Bennett," The clerk read the name from a computer printout which had pre-selected the order in which the jurors would be called. The computerized random selection process had replaced the old spinning basket of name slips which resembled bingo equipment and had performed the task for many years.

  A tall black man in a business suit stood in the back of the room and made his way forward. The bailiff directed him to the back row of the jury box and to the seat closest to the front of the courtroom.

  "Carolyn Marie Sonneson," the clerk read another name. A young blonde woman dressed in dark slacks and a green knit sweater came forward, sitting next to Mr. Bennett.

  The clerk called ten more names. The jury box was filled with six people in each row.

  The bailiff moved a podium into place in front of counsel table facing the jury. The podium was directly in front of Jake.

  "Mr. Hamilton, who will voir dire for the defense?" asked Judge Hawthorne.

  "I will, your Honor," said Ed Hamilton as he rose from his chair.

  "Very well, you may proceed."

  "Thank you, your Honor." Hamilton gathered some papers which he carried around counsel table to the podium. He carefully arranged the papers on the podium, looked up at the jury and smiled. He began.

  "May it please the Court and counsel . . . Ladies and Gentlemen of the jury. . . this is the time we lawyers have the opportunity to meet you and visit with you about this case to determine, or try to determine if there are any reasons any of you might not be able to sit as a fair and impartial juror on this particular case. As one of the attorneys for the defendant, I have the first opportunity to ask you questions."

  Hamilton went on to ask the jury collectively whether they knew anything about the accident, knew any of the parties or knew any of their attorneys. He interviewed each juror separately, learning about their jobs and families, their hobbies and interests. As he conducted the voir dire, he made notes on the papers in front of him. The associates at the defense table were busily taking notes. At last, Hamilton turned to the bench and said, "Your Honor, Defendant passes the jury for cause."

  "Mr. Kingsley?"

  Jake carried the notebook to the podium and opened it before him. He looked at the jury, making eye contact with several.

  "Thank you, your Honor," he said. May it please the Court, Mr. Hamilton and Mr. Whittemore and counsel, Ladies and Gentlemen . . ."

  Jake talked with the jurors about the type of case with which they were involved. He asked whether any of them were opposed to awarding a verdict of more than a million or two or three million dollars if the evidence warranted it.

  "Mr. Bennett," He addressed the black man in the far right seat in the back row, "you said you worked for the Oneida Company. They manufacture metal working equipment here in Minneapolis, don't they?"

  "That's right." The juror shifted in his seat.

  "How long have you worked for them?"

  "Twenty-three years," said Bennett.

  "Mr. Bennett, do you think there is anything about the fact that you work for an equipment manufacturer that would make it impossible for you to sit as a fair and impartial juror in this case which is against an equipment manufacturer?"

  "No, I don't think so."

  "Would you be able to listen to the evidence and apply the law as his Honor gives it to you?"

  "Yes."

  "Thank you," said Jake moving on to another witness. Jake had already decided he liked Bennett and did not want him struck from the jury for cause. However he thought the discussion would help Bennett and others in holding Cherokee to the law. Juror number nine was another story. He was William Garrett, a forty-five year old contractor who looked like he was irritated to be in court instead of working. Jake had not liked some of the answers he gave to Hamilton's questions. Jake was afraid that he might hold it against the plaintiff, believing that if she had not brought this lawsuit, he would not have to be here. He also seemed to Jake to be somewhat chauvinistic. He might not be very sympathetic to Sarah. Jake hoped he could give him an opportunity to get off the jury without wasting a peremptory challenge.

  "Mr. Garrett," began Jake, "is this trial taking you away from your contracting business?"

  "You bet it is," responded Garrett.

  "I think you said you were the owner and principal operator of your business. Is it able to operate as well without you on the job?" asked Jake.

  "No way," growled the juror, "no way at all."

  "Will you be uncomfortable sitting here as a juror for a week or more and not being able to attend to your business?"

  "I sure will."

  "Is it possible Mr. Garrett, that you might hold it against my client because she brought this lawsuit?" Jake looked directly at Garrett with an understanding look on his face.

  "Yes," said Garrett, "I think that's possible."

  "Would that fact make it uncomfortable for you to sit as a juror on this case?"

  "Yes." Garrett nodded agreement. "It would."

  "Your Honor," Jake turned toward the bench, "under the circumstances, I don't think Mr. Garrett should be compelled to sit on this case. I think he should be relieved from being on this jury and I offer a challenge for cause for that purpose."

  Judge Hawthorne leaned forward and addressed juror Garrett. "Mr. Garrett, do you believe it would be impossible for you to sit as a fair and impartial juror on this case?"

  "Yes, Judge, it would." Garrett's conviction on this point was getting stronger.

  "Are you sure?" demanded the judge.

  "I'm sure."

  "Any objections from defense counsel?" Judge Hawthorne looked to the defense counsel table where Hamilton and Whittemore were huddled in discussion.

  After much whispering and shaking of heads, Ed Hamilton rose and addressed the court. "No objection," he said and sat down.

  "Well, all right," said the judge. "Madam Clerk, call another juror, please."

  "Nancy Louise Jackson," read the clerk from the printout. A pleasant faced, middle-aged woman walked to the jury box as William Garrett left.

  "Mr. Hamilton, would you care to voir dire this new juror first?" asked the judge.

  "Yes, thank you, Judge." Hamilton walked to the podium, while Jake sat down.

  "Is it 'Ms.' or 'Mrs.' Jackson?" Hamilton asked the juror.

  "'Mrs.' is fine," she answered.

  "Tell us about your family."

  "I'm married twenty-nine years. We have five children . . . three boys and two girls." She looked at Sarah Pallmeyer. "Of course, they're all grown and working now."

  Jake liked her already.

  Hamilton asked a few more questions and turned the podium back to Jake.

  Jake continued his voir dire. Two more jurors were excused for cause, Jake carefully avoiding antagonizing the excused juror or the remaining jurors. Finally, Jake said to the judge, "Your Honor, Plaintiff passes the jury for cause." />
  As Jake walked to his seat, the judge directed the clerk to obtain the peremptory strikes. She walked over to the defense table and handed a jury list to Ed Hamilton. Hamilton and Whittemore went back into a huddle. After a minute, Hamilton handed the list to Dick Edwards who walked over and handed it to Jake.

  Jake looked at the list. The names of the jurors excused for cause were crossed out by the clerk and additional names appeared at the bottom of the list for those who had replaced the excused jurors. Hamilton and Whittemore had crossed out the name of juror number 10 and written, "Def. #. 1" alongside it.

  Jake held the list out and pointed to the name of juror number 8, Jeffrey Thomas Tyler to Sarah and Charles. They nodded. He crossed out the name, wrote "Pl's # 1" next to it and stood to carry the list back to the defense table.

  After much discussion on the defense side, the list was returned. It looked like this:

  J U R Y L I S T

  1. Bennett, Jerrod Malcolm

  2. Sonneson, Carolyn Marie

  3. Peterson, Martha Jane Def # 2

  4. Saunders, Helen Carson

  5. Kubiske, Georgiana Helen

  6. Kutler, Henry William

  7. Donovan, Mary Claire

  8. Tyler, Jeffrey Thomas Pl's # 1

  9. Garrett, William Smith

  10. Vogel, Ellen Celia Def # 1

  11. Trempe, Kevin Allen

  12. Duchien, Cynthia Genevieve

  13. Jackson, Nancy Louise

  14. Micken, George David

  15. St. George, James Ernest

  Jake leaned close to Sarah and motioned Charles to come close. He showed them the list, pointing to the crossed out names.

  "We already decided we want as many women on the jury as we can get," he whispered. "Look at this. Four men and five women left. If we strike number 11, Trempe, that leaves three men and the last two are the alternates! If we strike Kevin Trempe, we'll almost undoubtedly have a jury of Bennett, whom we like, and five women all of whom we like. We don't like St. George very much, but he's almost surely an alternate and won't be on the jury who decides the case."

  "Brilliant!" whispered Charles. He turned to Sarah. "That's what we should do."

  Sarah nodded . . . and whispered hesitantly, "It sounds right to me. You do what you think is right."

  Jake cross out the name of juror number 11, Kevin Allen Trempe, wrote, "Pl's # 2" after it and brought it back to the defense table.

  The clerk retrieved the list from Ed Hamilton and stood at her desk waiting for Judge Hawthorne.

  "Thank you for your patience, Ladies and Gentlemen," he said. "We have now completed the jury selection process. The clerk will read the names of those of you who will not be needed on this case. As your name is read, please rise and remain standing until we are done. Those of you standing when we are done may return to the jury lounge and report to the Court Administrator's jury deputy. The rest of you will be our jury. You will first be sworn in as the jury in this case. Then we'll give you time to get your belongings settled in the jury room back there," he pointed behind the jury box, "and then we will break for lunch and start opening statements at 1:30.

  "Peterson, Martha Jane." The clerk read as the discharged jurors stood.

  Charles, Jake and Sarah sat at a table in the cafeteria in the basement of the government center eating lunch.

  "Jake," said Charles, "I loved the way you manipulated the voir dire. I always thought it didn't make much difference, but I like the looks of your jury."

  "Well, you can't always be lucky, but it's always worthwhile to try," said Jake sipping a Diet Coke. He turned to Sarah. "How are you holding up to the experience?" he asked.

  Sarah poked at her salad. "It is an interesting process," she said. "I just wish I weren't in the middle of it. I'm not looking forward to when we talk about Bobby . . . or when those other lawyers question me on the witness stand."

  "You'll be fine," said Jake. "They'd be real foolish to go after you very hard in front of this jury. As far as Bobby is concerned, we can arrange for you to miss that, if you wish. Remember, it's our job to make this as comfortable for you as possible. You just let us know if you need help."

  "Thank you. You are very considerate." Her blue eyes looked at his.

  Back in the courtroom, Judge Hawthorne spoke from the bench. "Mr. Kingsley, are you ready?"

  "Ready, your Honor."

  "You may proceed."

  "Ladies and Gentlemen of the jury," began Jake at the podium, "on a quiet street in a quiet neighborhood in Duluth, there is a stately one-story building on the shore of Lake Superior, set well back from the street, and set well back from the shore on the bay side of the peninsula that Duluthians call Park Point. The building has two wings. In the east wing, in the third room from the end, a man sits in a wheelchair staring straight ahead with a vacant expression on his face and in his eyes. He cannot walk. He cannot talk. He cannot eat except through a tube into his stomach. His body is broken. Fractured vertebrae and a damaged spinal cord make him paraplegic so he cannot use his legs. Brain damage prevents use of his left arm and hand, making him essentially tri-plegic. That brain damage reduces his mental age to four to six years of age. He is twenty-two years old.

  "The building is the Greysolon Health Care Facility. The man is Robert Pallmeyer. This case is about what happened to Robert Pallmeyer and why."

  Sarah Pallmeyer touched her cheek with a tissue from her purse. She watched Jake continue his opening. The jurors were watching Jake intently.

  "The story begins in July of 1990, but there will be flashbacks to earlier times."

  "The evidence will show you that on Wednesday, July 22, 1990, up on Otter Island in the Apostle Islands of Lake Superior, a crew from a company called Northland Logbuilders was constructing a log cabin for the Park Service on the island. Robert Pallmeyer, who was called Bobby or Bob by his friends on the crew, was driving a tractor hauling the logs from the beach up the hill to the cabin site."

  Jake related the details of Bobby's accident.

  "The evidence will show you that the tractor was a Cherokee T-350 manufactured by the Defendant Cherokee Tractor & Implement Company in 1965. Expert witnesses will testify that the tractor design was unsafe without some type of operator protection such as a rollbar and seat belt because of the tendency of this type of tractor to roll over from front to rear too quickly for the operator to stop it or avoid injury. While we expect the Defendant's witnesses to deny it, the evidence will show you that the industry knew of the problem long before 1965. In one of those 'flashbacks,' the evidence will show you that industry experts were publishing the results of studies on this aspect of farm tractor safety as early as 1927!"

  While Jake added emphasis to the early dates of knowledge of tractor rollover, he was careful not to be "arguing" the case during opening. Counsel were given some leeway, but the intended purpose of opening statements was to describe the evidence to be introduced and to give the jury an outline of the trial. Argument was to be reserved for final argument at the close of the evidence.

  As the courtroom listened, Jake described some of the patent evidence and the development of ROPS as far as it went before 1965. In fact, he did not use the term "Roll Over Protection System" or its acronym "ROPS." That term and that system was not fully developed or commonly used until after the manufacture of the tractor in this case. The rules of evidence would prohibit introduction of evidence of a subsequent remedial measure. If ROPS had been developed after Bobby's injury it would clearly be a subsequent remedial measure. Even after the original manufacture, it might be a subsequent remedial measure or at least not part of the state of the art at the time of manufacture. Jake intended to offer proof about ROPS development, but only when defense witnesses argued it was not feasible at the time and he believed they would, taking the position that such optional designs were not part of the state of the art at the time this tractor was manufactured.. Then it would be admissible under the rules of evidence.

&nb
sp; He described Bobby Pallmeyer's injuries and his life in greater detail and told the jury he would prove those injuries and ask them to award damages at the end of the trial

  Jake thanked the jury and told Judge Hawthorne, "Your Honor, that concludes my opening remarks on behalf of Plaintiff. We are prepared to call our first witness."

  "Mr. Hamilton or Mr. Whittemore," said the judge, as he looked to the defense table, "Do you wish to make an opening at this time?"

  "Everett Whittemore stood up. "Your Honor, Defense will reserve its opening statement at this time."

  "Thank you," said the judge, looking at the clock on the wall above the door at the rear of the courtroom. "Let's take a fifteen minute break and return here at 3:00 o' clock to begin the testimony." He rose and exited the courtroom through the doorway to his chambers.

  Charles was congratulating Jake on his opening statement when Sarah excused herself and left the courtroom for the ladies' lounge. Her eyes were moist. She still clutched the tissue with which she had been wiping her tears.

  "I'm surprised at their reservation of opening statement," said Charles.

  "Me too," Jake nodded.

  "Don't you think they should have got their story to the jury early on?"

  "Absolutely," said Jake. "That was always my rule. I think they want us to get committed to a theory before they commit to a particular defense."

  "Aren't you committed already, with that opening statement?" asked Stanton.

  "I think so," replied Jake, "but they may figure we can't get some of the things I talked about into evidence, like the 1927 journal articles or early patents. Then they can later argue that we didn't prove what I said we were going to prove."

  CHAPTER TWENTY-FOUR

  In a suburb of St. Louis, Bert Hanson said, "Thank you for seeing me," as he accepted a cup of coffee,