Breach Of Promise

by Perri O’Shaughnessy

  “How wonderful for you to be able to eat like that and stay skinny,” said Genevieve when the waiter left. “I could never eat a big, heavy pasta meal in the middle of the day, although during trials I stick to comfort food. Peanut butter sandwiches, chocolate chip cookies, whole milk.”

  “I order fancy when I eat out because I’m a lazy cook,” said Nina. “My son and I live on canned tomato soup.”

  “Then you both ought to take supplements,” Genevieve said disapprovingly. “I take a multivitamin plus extra vitamin E and folic acid and ginseng every day.”

  “And I suppose you like high doses of vitamin C for colds.”

  “Yes, I do,” said Genevieve.

  “And you think I should, too.”

  “You are under a lot of stress,” said Genevieve in a supportive tone, “aren’t you?” And the little voice in Nina’s head started up, saying, uh-oh, better straighten up, you’re being assessed.

  Genevieve had a Master’s degree in statistics from M.I.T. and a Ph.D. in psychology from Duke. She told Nina she had considered law school. Then, with a decidedly wicked smile, she said she had eventually settled for being the brains behind the brawn.

  By overnight courier, along with Genevieve’s impressive resume, Winston had sent Nina a copy of her thesis on “crowd psychology,” with its special emphasis on the decision-making process of jurors in the American legal system. The whole thing looked mathematical, filled with charts and formulae and statistical gobbledygook that she couldn’t follow.

  Taking a leaf of lettuce onto her fork and tasting it, Genevieve said, “This morning on the plane I read all the pleadings you sent down to Winston, and I talked to Winston late last night. If he wins his hospital malpractice case, I’m predicting one point seven to one point nine.”

  “How can you make a guess like that?”

  “Went for a split-the-difference jury, then had Winston ask for three point six.”

  “But the standard jury instruction is that you can’t have a compromise verdict. Juries aren’t supposed to-”

  “You know they do it all the time,” Genevieve said. “They just get cagey to avoid trouble. See, they’ll go one point seven because one point eight-exactly half of what we asked for-would be too obvious. Problem for him in this case is the judge, plus he got saddled with a couple of wild cards on the jury he couldn’t keep off,” she said, shrugging, but obviously more than irritated by the thought. “No matter how good you are, there’s still some risk.”

  “Will he take time off after this is over?”

  “Not Winston. He’s got trials back-to-back. The next one’s in San Diego, nonjury.” With the discipline of a drill instructor she ate another lettuce leaf, detouring around a nearby crouton. “He said to tell you Sandy faxed him the minute order with the trial date, and he’s freed up the two weeks after that. I like May twenty-first, too. I’ve got a double murder case coming up next July.”

  “I hope we can go with that date. Both sides want to get this over with. Mike Markov is furious that we’ve interfered in the business by getting a receiver and an accounting. Lindy Markov is broke for the first time in years. I’m fronting a lot of the costs myself…” including two hundred an hour for you, Nina thought. “I can’t afford to let it drag on.”

  “From what I’ve read and what Winston tells me, this is your big one, Nina,” Genevieve said, smiling. “You could hit the jackpot with what I reckon your fee agreement must be. None of my business, of course, except I want to help you make it happen. Can we sit down with Miz Markov real soon? I’d like to ask her a few questions and get a good picture of her fixed in my mind.”

  The soft voice, which occasionally slipped into a kind of countrified dialect Nina thought she must use for emphasis, coupled with the royal blue eyes, had distracted Nina for a second while she contemplated the extreme contrast between Genevieve’s savvy talk and the delicate girl sitting across the table. Genevieve probably made good use of that contrast when it suited her. Good. Maybe her looks would fool Riesner into underestimating her.

  Genevieve was saying, “Right off the bat let me tell you women might not necessarily favor Lindy, unless we strike fast and make sure they do. They might think she got what she deserved. She knew what she was getting into. She knew he didn’t want to marry her. She knew he kept things in his own name to maintain his ownership. So we’ll need to be cunning as the little snake that slips through the grass and zaps the dragonfly before he even knows she’s there.”

  “I understand you and Winston have worked together before.”

  “Right. On a worker’s compensation case against a bank down in Long Beach. Remind me to tell you all about that sometime after I’ve had a few and we’ve got some time to burn. He’s quite a lawyer. In the beginning, nobody liked our client, but Winston spun their heads around and lined ’em up just the way we wanted by the end. I can’t wait to work with him again, and with you for the first time, Nina. I’ve read about you, which, if you think about it, is remarkable. L.A.’s about a million miles away from Tahoe, psychologically speaking.”

  “You live in Los Angeles?”

  “I grew up in New Orleans. Now I live in Redondo Beach, a half block from the ocean on Catalina Avenue in a little Spanish bungalow.”

  “Any family?”

  “No. My parents are both dead, and I don’t seem to have time for a steady guy. Just another lonely gal, lookin’ for love,” she said. Dimples peeked through her cheeks. “When I first got there, I learned to surf. Had to give it up when I started workin’ twenty-hour days.”

  “You did? So did I. In a wet suit of course. I grew up in Monterey.”

  “Well, it’s warmer in Redondo, but my favorite spot was the wedge in Newport.”

  They shared some stories. Nina couldn’t help liking Genevieve. She wouldn’t put it past her to be fibbing about surfing, although she couldn’t catch her in an outright lie. But wouldn’t it be just like a person with her speciality to research Nina’s background, seeking some common ground before showing up for an interview? She enjoyed the conversation and had to admire Genevieve’s strategy, if that’s what it was.

  “I have to tell you, I’ve never used a jury consultant before. And I have my doubts about it.”

  “I’m your first,” said Genevieve. “I’ll take that as a compliment.”

  “You need to realize that you’re coming on as a consultant. I want you to give me the benefit of all of your knowledge, but I reserve the right to make my own decisions.”

  “You’ll listen to me if you plan to win. What exactly do you know about jury consulting?”

  “Very little.”

  “It all started over twenty years ago with the trial of the Harrisburg Seven. That was the first time I know of when some of these techniques were used to help the defense team in selecting jurors.”

  “Did they win?”

  “That case was settled the night before the trial began,” said Genevieve. “But since then, social scientists have shown that, when employed by a knowledgeable pro, these techniques can work. Name any recent major trial, and I’ll give you five to one odds they used a jury consultant.”

  “I’m not sure why it makes me uncomfortable,” Nina said. “Maybe I just don’t like the idea of manipulating a jury… but of course that’s exactly what I’m trying to do myself every single moment.”

  “It’s war out there, honey. And it’s not like you know for sure how people will vote once those doors to the jury room shut behind them.”

  “You’re right. There are always facts to muck up the works.”

  “Too true,” Genevieve said vehemently. “The dominant factor in any trial outcome, no matter how carefully you handpick your people, is still the facts. But what people will come to believe are the facts and how they will react to them, that’s where we come in. I’d say it’s legal malpractice not to use a jury consultant in a big case these days.”

  “Funny, Winston said the same thing. I guess that makes me
just a little old small-town lawyer committing malpractice left and right,” said Nina.

  “Yes, just a small-town lawyer. Not much, is it, when you could be a superstar?” Genevieve said without a hint of sarcasm. “You’re attractive; that’s a big plus for most juries. A little short, but a session with a shoe salesman should cure that. All that long hair“-she shook her short hair disapprovingly-”you might think about cutting. If not, we’ll work on style. That leaves your clothes and your… um… attitude for later.”

  “Mighty nice of you to hold off.”

  Genevieve couldn’t ignore Nina’s irritation this time. She laughed. “You’ll get used to me. I’m going to be after you worse than your own mother. Now, what’s the word? Are we doing this thing together or not? I’ll do a damn good job for you.”

  “If we can work out the financial details. You’re going to have to receive the bulk of your fee at the end of the trial…”

  “We’ll work those details out later. Meanwhile, just let me tell you what else I’m going to do for you.”

  Nina pushed her empty plate away and sat back to let the meal settle heavily into her stomach.

  “I’ll be up here a lot from now on. We’ll begin with a telephone questionnaire to people in the local venire. That’s to get a handle on who lives here, their prejudices, type of work, political leanings, group affiliations, etcetera. From that information, I determine whether the jury list reflects that population. If it’s not a favorable group, we might want to request that the pool be increased. I believe in this county, El Dorado, you can request that the pool be expanded to include jurors from adjacent counties. That might be useful to us. I’ll find out.”

  “What kinds of questions do you ask?” said Nina.

  “Questions that will help us determine underlying personality characteristics. Then you and I will get together to analyze the survey results. I do what’s called a factor analysis-bottom line, I create a scale of factors predicting juror favorability. That’s where we decide what the crucial issues are in this case and what critical set of opinions, determinants such as economic status, racial prejudice, distributive equity positions, and so on will end up being deciding factors.”

  “No graphs, please!”

  “I’ll hide them in a hole in the wall and never tell you where,” Genevieve promised.

  “And that last thing you said. Distributive equity?”

  “That’s an old idea. Aristotle defined it first. You’ll be hearing a lot from me about it. The question is, to what degree will a certain prospective juror tolerate inequity in a relationship?”

  “Like the one between Mike and Lindy Markov.”

  “Correct. I’ll figure out which types of people are most likely to recommend specific remedies for the particular perceived inequity in this case, a good specific remedy for our client being stacks of leafy-green money.” The thought fired her up and she extended her empty hands over an imaginary pile of money.

  “I can’t knock that,” Nina said slowly.

  “So the most important part of what I do before the trial is to work with you to develop two juror profiles, one of your friend and one of your enemy. That involves juggling information, using at least two common approaches, multiple regression and automatic interaction detection, to find out what characteristics we need to know and how they can be combined to create our good and bad Frankensteins.”

  “I’m not sure I know what you’re talking about.”

  “I’m sorry, I’ve degenerated into jargon. You don’t have to worry about that stuff.”

  “Okay.”

  “After that, I’ll be working with you on your voir dire questions. And I’ll help you figure out which facts to emphasize and deemphasize in your opening statement. And how to present your evidence. And-”

  Nina’s mind reeled with the possibilities Genevieve raised at the same time as it mused over the compromise of her own principles. Her way was not Genevieve’s way. But she had no choice. She needed Winston, and he insisted on Genevieve, so she would make the most of the situation, taking what served her purposes and discarding the rest. “Can you do all this on your own?”

  “I’ve got two assistants in L.A. who’ll conduct the phone interviews and help me collate what we gather. Later, we’ll need a private investigator. I can recommend…”

  “That’s okay. I work with someone from Carmel, Paul Van Wagoner.”

  “If we can get hold of the potential jury list ahead of time, he’s going to have to run around and talk to the neighbors and friends to give us some early info. If not, while the judge and attorneys are interviewing candidates during the voir dire, he should be out there digging in the trash cans so we can make a more informed decision about your peremptories and challenges for cause.”

  There actually seemed to be some cockeyed attempt at science behind what Genevieve did. Maybe it actually would work, giving certitude to an area of legal practice that had always been pure hunch. Genevieve was like an army sneaking up on Riesner’s flank… of course, he’d have a jury consultant, too.

  Though she had been ready to dislike and merely tolerate this upstart, she found she enjoyed the grinning Genevieve, who now sat across from her, all attention turned to twirling a fork between fidgety little fingers.

  “Maybe I’ve been missing a bet, not using a consultant before.”

  “You have indeed, but it’s never too late to start doing it right,” Genevieve said. “You and me and Winston, we’re going to give that rich man a lickin’ he won’t forget.” She patted the napkin to the edges of her lips and said, “Do we have time to play a few slots? I won eleven hundred last time I was here. Three red sevens. Had to have a row of red, white, and blue sevens to win the car. I was so very pissed!”

  Genevieve played like a kid with Monopoly cash, tossing a hundred dollars down the progressive slots in the quarter of an hour they stayed. Nina stuck to her regular quarter slot machine and lost twenty. One thing she learned about Genevieve in those fifteen minutes: she could talk about statistics until she had the whole world snowed, but she was a gambler to the bone. The casino brought out that basic personality trait in sharp relief.

  And, she thought, that makes it unanimous. Genevieve, Winston, and Nina. Rub-a-dub-dub, three gamblers in a tub.

  7

  Lindy lay facedown in the cold sand listen-ing to the black water brushing the shore beside her. This strip that ran along the edge of their property belonged to her, and now a judge had ordered her to stay away from it.

  Sometime long after midnight her eyes had snapped open in Alice’s guest bedroom, after a dream that had left no images, just an urgency. Urgent! Her chest burned with the moment.

  This urgency felt like sexual anticipation, potentially explosive, and as her physical cravings had for years, it fixed on Mike. She needed him and the comfort of his arms, as she always did when things got rough. She had to talk to him. So she had gotten out of bed, thrown on her cross-trainers and her jacket, and gone in to the dark dining room to find her keys.

  At the gate to the estate, though, her mood had altered. A new sign on the curved iron arrows of the gate said KEEP OUT. Mike had probably put it up for the reporters, but it applied to her now, too, so she walked the perimeter of the fence to the little gate on the far side in the woods and climbed right over it, and walked down toward the water, and lay down near the dock until she could figure out what to do, her chest feeling tighter every moment, as if her heart wanted to rupture. She wished she had pebbles to toss at his window, something that would tell him she was here, waiting. Tell him how angry she was. How hurt.

  For a while she lost herself in the rhythmic sound of the wavelets and the cold, grainy feel of the sand. Geese honked above, flying overhead, late for their appointment down south. The breeze moved gently over her back, stirring her hair. She remembered the other times she had awakened in the middle of the night, after her father had died.

  When he died he left her with no support. She wou
ld lie in her bed looking at the ceiling, imagining death, wondering what it was like to be nothing and nowhere, getting so far into the blackness she could barely claw her way out in the morning.

  Aunt Beth, who had often stepped in when times were bad, took her in permanently, and when Lindy was seventeen, helped her find a job at a coffee shop in Henderson and a room in town. Lindy spent only her base salary, saving all her tips in a big pickle jar, an antique her aunt had kept around, God knew why. When she saved enough, she moved on, putting on her suit jacket from the Salvation Army store and applying for a job as a secretary at the Burns Brothers’ Car and Truck Stop in Mill City.

  After a few years she was booking the acts at a casino in Ely, making enough to rent an apartment and send a hundred dollars to Aunt Beth every month, taking night courses at the business school. She earned a reputation as hardworking, never late, never missing a day, always giving it a hundred fifty percent.

  After a brief, disastrous marriage, she had met Mike. He worked as a bouncer in the club, a guy on his way down at thirty-five, ten years older than she was but like a kid in so many ways. He stood the exact same height as she did, five feet eight, and he had a surprised, boyish expression, eyebrows raised high like he still couldn’t believe he’d been given a knockout punch. After sixty fights, thirty-two as a pro, he’d cut open his eye one too many times and the Nevada Boxing Commission doctor had said he would lose the eye if he kept fighting.

  He didn’t care about that, Mike had told her; he still had the other one. He wouldn’t accept that his fighting days were over. He came from a family of poor Russian immigrants who had settled in Rochester, New York, in the forties, and they had all the faith in the world he would still someday make it big and send his smart younger brother money for school.