by Don Wittig
2
“Mr. O’Reilly please, Bradley Mack calling.” O’Reilly sat at his massive, solid walnut Knoll desk. He rested the Supreme Court brief he was editing and pressed the speaker button.
“Yes, Bradley. Guess you are calling about our FEMA proposal.” “You should be on Wheel of Fortune. I’m ready to try the whole case, and we both know you can’t win the FEMA claim. So here’s the deal. You voluntarily dismiss FEMA with prejudice and my client will pay you a minimum of two hundred million. We also want an up-side limit of one billion on your claim against the Corps. Even you don’t want to put the economy in a recession if you’re lucky enough to hit a big score. We also both know the Fifth Circuit probably won’t let you keep any ten-figure verdict or even a high nine-figure award. So think about it and give me a call.”
“Bradley, you know I don’t like to negotiate any more than you do. One billion cash now and FEMA is gone. Thirty-five billion limit cap on any verdict. That’s about as much as the circuit appeals court would probably let us keep. Anything less and my clients will balk. I assume you want confidentiality so no press conferences and the jury will not be informed of our high-low agreement. Agreed?”
“Let me run it by the White House. I might be able to get a twenty billion cap, but that’s it. Are you ready for trial next month? Judge Martin is pushing hard.”
“We’re ready. I still need your last expert report, and we have to depose our expert from Earthcore. He is going to the Antarctic again to take ice core samples and won’t be available for trial. I’ll have Avrum call Sherry and schedule it. I’ll assume we have a deal on FEMA unless I hear back otherwise.”
“One billion up front and a damage cap of twenty billion.” O’Reilly hesitated then blurted, “Make it twenty-five billion cap and we’ll have a deal.”
O’Reilly hung up and wheeled his chair around toward Avrum. He wore his patented Cheshire cat grin. The settlement offer was an insurance policy guaranteed by Uncle Sam. “Get Dr. Lewis on the line. We have good news. Stick around for the call.” Avrum connected him to Lewis immediately.
“Dr. Lewis, this is Richard O’Reilly. I have some good news for you. I think we are going to be able to settle the weakest part of our case for one billion dollars. Congratulations!”
“One billion? Incredible! What’s the catch?”
“The catch is we let FEMA out of the case. The deal is called a high-low. Even better, we get our first billion up front just for letting FEMA out. Remember what I told you about FEMA. They are probably immune from our lawsuit, we likely lack standing, and to prove FEMA in fact caused real damage would be difficult at best. The other catch is our damages will be capped at twenty-five billion. The high-low deal will be confidential. In other words, we’ll have to keep it secret until after the trial. We’ll have to tell the judge, but the jury won’t know when they answer the damage questions. No press. Not even your husband can know.”
“That sounds great. And how much are the attorney’s fees and costs?”
“As we agreed, my firm will get the first twenty-five percent. The greens will get their five million dollars that they advanced back right away. You and the greens then split the balance according to the deal you made with them.”
“Mr. O’Reilly, you know I am doing this to help the people of New Orleans. I don’t want to make a penny for myself, just reimburse my expenses. And I want to make sure people start learning about the real environmental issues we face and how the Army Corps of Engineers needs help to be able to do its job. Are we guaranteed the twenty-five billion?”
“No. That is the most we can win at trial regardless of the jury’s answers. So if the jury awards one billion, we get nothing. If they award fifty billion, we are limited by the high-low to twenty-five billion. Make sense? Remember we are talking billions, not millions. Anything else?”
“No. Thanks for the fantastic job. I look forward to the trial!”
2 “General Medina, Bradley Mack here. The best that O’Reilly will do is one billion cash, let FEMA go, and a damage cap of twenty-five billion. I like the cap part, though I doubt any rational jury, even a New Orleans jury, would do anything in the billions. I don’t like the billion up front and strongly advise against it. What’s your call?”
“Can you hold one minute? Carl is right here so wait one second Carl says make the deal. It’s confidential, I assume?”
“Of course.” Mack shook his head. He could not believe his ears,
giving away a billion dollars of taxpayer money.
“Thanks, Bradley. I know this pains you, but there are other
considerations that I’m sure you can guess. Keep us posted during
the trail, although you probably won’t need to. There will be more
cameras there than during the Enron case. Let us know if anything
changes. Good luck in the trial. We know you’ll do well.” “Thank you, general. My best to the president. Tell him not to
worry.”
15 Jury Selection, “Voir Dire, and Voo-doo”
T HE SCENE WAS SET FOR the lawsuit of the century. The gallery was packed with anxious jurors. A few seats in the jury box had been reserved for an excited press corps. The tension in the courtroom was palpable. Agitated onlookers waited impatiently in the halls, hoping for a seat at the heavyweight fight about to begin.
“All rise. The United States Federal Court for the Eastern District of Louisiana is now in session, the Honorable Jeffrey Martin presiding. God save the United States of America and this honorable court!” Deputy US Marshal Doolittle scowled as usual and limped to his corner perch. He was excited to have a blockbuster case going to trial. He would have many opportunities to lead the jurors and boss the lawyers around. This was the kind of case he lived for. He should be able to hoard a year’s worth of gossip from this two-week trial.
“Be seated. Ladies and gentlemen of the jury panel. My name is Jeffrey Martin, and I am the judge assigned to this case. The name of the case going to trial is Melinda Lewis and others versus the Army Corps of Engineers and the United States Government. In just a moment, I will ask you some questions concerning your background and attitudes about this lawsuit. The gravamen of this claim by Ms. Lewis, the Sahara Club, Earthcore, Natureone, and Greenpreserve concerns alleged negligence in the design, construction, maintenance, and inspection of the flood protection system in New Orleans. Further, it is claimed that the Corps ignored the clear signs of global warming and its effects on hurricanes. The people bringing the claims are called the complainants, and they are represented by Mr. Richard O’Reilly. Mr. O’Reilly, will you please introduce any attorneys with you who will be participating in the trial?”
O’Reilly stood, nodded to the judge, and introduced his fivemember team. Holly and Avrum rose, grinning from ear to ear, enjoying their first opportunity to be part of the trial team in a mega-tort case. The team was dressed in the uniform of the day, dark blue suits, white shirts or blouses, and muted ties. O’Reilly alone wore a red power tie.
“Mr. Bradley Mack represents the Army Corps of Engineers and the federal government. Mr. Mack, please introduce anyone from your team that will participate in the trial.”
Mack complied, but red-faced begged the court’s indulgence because one of his associates was late. Not a good start, he thought and moaned to himself.
“Thank you, Mr. Mack. I’m sure that’s the last time any of your people will be late. Ladies and gentlemen of the jury, we will now begin asking you some questions about your background and qualifications to hear this case. This procedure is called voir dire. I will ask you some preliminary questions, then have the attorneys for each side follow up with a few more questions. I have given the lawyers one week to try the case so you won’t be here too long.
“My first question to you is whether or not you know any of the complainants in this case? As I mentioned, they are Ms. Lewis, the Sahara Club, Earthcore, Natureone, and Greenpreserve. By the way, anytime I ask a question that yo
u need to respond to or do not understand, please raise your hand until I call on you.
“Yes, Mrs. Landry. Who is it you know and are you related?” “My husband and I are both members of Earthcore. And let me say, we are all very upset....” “Just a moment, Mrs. Landry. Please just answer the question. You may sit down.”
Judge Martin’s procedure was to orally question all the prospective jurors and then allow the attorneys to challenge any prospective juror for cause at the conclusion of the voir dire selection process. Mack drew a line through Landry’s name, and the judge would excuse her for cause, meaning her impartiality was questionable.
“Anyone else know any of the complainants? Yes, Mr. Dupuis. Whom do you know?”
“I am an engineer, and I believe I have met Major Lewis at an engineering conference. I don’t know her well, but I have met her before. I have also seen Bob Deerman at some conference, but I don’t know him personally. I believe he is the executive director of the Sahara Club.”
“Thank you, Mr. Dupuis. Alright, how about the lawyers for the complainants? Does anyone know Mr. O’Reilly or any of his staff? I take it by your silence you do not. Now let’s turn to the defendants. I don’t need to know if you know your local postal person or some other government worker in no way connected to this case. But do you know anyone who works for the Army Corps of Engineers and any other federal government worker connected with the levees or the flood-prevention system in New Orleans? Yes, Mr. Castille.”
“I know the FEMA guy I went to for six months to get my trailer. Does that count?”
“That’s fine, Mr. Castille. You may be seated. Now what about the defense lawyers? Does anyone know Mr. Mack or any of his attorneys who were introduced to you? Yes, Mr. Babin.”
“I know Lawyer Fontenot sitting there with Mr. Mack. He represented me in two criminal matters. Damn good lawyer too. Heard he never lost a case.”
“That’s fine Mr. Babin, you may be seated.” Mack tried to crawl under the counsel table. He didn’t know Fontenot did criminal work too. What a bloodletting, he thought to himself. Mack asked to
approach the bench. “Counsel, approach the bench.” Judge Martin commanded. “Yes, Mr. Mack?” “Your honor, I would again urge the court to consider submitting the rest of the questions in writing, as I previously moved the court. There seems to be an unusually large number of potential jurors who have some kind of ax to grind.”
“What say you, Mr. O’Reilly?” O’Reilly knew when to quit when he was ahead. He knew there could be some equally damning statements against the complainants if the oral voir dire continued. “No objection, your honor.” O’Reilly feared that some voodoo Cajun might hex his jury with some offhand remark or disqualify herself with an obvious bias.
“Very well. There being no objections, we’ll proceed with the written questionnaire. Ladies and gentlemen of the jury, to expedite the voir dire examination and let most of you folks go home earlier, I’ll submit to you a written questionnaire that has already been prepared. Deputy, please hand the questionnaires to the jurors. I’ll go over the questions with you. Raise your hand if you do not understand the questions. Then please answer the questions as required. We’ll start with question number five. ‘You’ refers to yourself or any member of your immediate family. That would include your spouse, your parents, your children, their children, or anyone else residing in the same household with you, plus your brothers and sisters.
“Allright,” Judge Martin continued, “were you or your neighbor’s home directly affected by the flooding from Katrina? Was your business directly affected by Katrina? Did you lose a family member or friend in the flooding? Have you been prevented from returning to your home since the flooding? Do or did you work for the parishes or any state agencies that deal with the flood prevention? Do you work for the Army Corps of Engineers? Do you work for FEMA? Do you work for any other private or government agency involved with the levee reconstruction of New Orleans or adjacent parishes? Are you now or have you ever been a member of the Sahara Club, Earthcore, Natureone, Greenpreserve, or other environmental organization? Do you work for a law firm or in the courts system, state or federal?”
Judge Martin peered over his spectacles to make certain the jurors were keeping up. The prospective jurors were diligently following along, wondering where the questions were leading. Martin methodically continued the voir dire process. “Do you have a fixed opinion about any fault on the part of state and local agencies concerning the failures of any of the levees? Do you have a fixed opinion about any fault on the part of the Army Corps of Engineers concerning the failure of any of the levees? Is anyone a member of ‘Mr. Go’s Gotta Go’ or similar protest organizations? Do you have a fixed opinion about the Army Corps’ involvement or noninvolvement with the maintenance, improvement, or reduction of the wetlands? Do you have a fixed opinion regarding the effects of global warming on the intensity of hurricanes? Yes, Ms. Hebert. You have your hand up.”
“Judge, when you say a fixed opinion, does that mean we have read a bunch of articles and heard a lot of scientists talk about something or what? I’ve certainly heard a lot about climate change and global warming.”
“Very good question, Ms. Hebert. It doesn’t mean you have heard arguments for or against any idea. It means regardless of whether you’ve heard anything or not, you have made up your mind. It means that even if you hear or see proof to the contrary in this trial, you are not likely to change your mind. So, in other words, you may have heard that global warming has caused an increase in the severity of hurricanes, but you are open to the possibility that the intensity of hurricanes is strictly cyclical. Perhaps the intensity is caused or contributed to by ocean currents, El Niño’s, sun spots, or other climate events. Does that answer your question?”
“Yes, thank you, your honor.” O’Reilly cautiously hid his consternation as any well-polished trial attorney could. But he knew that federal judges can comment on the evidence and didn’t want to accentuate the point by making an objection. His instinct to allow the written questioning of the jurors was proven correct. He certainly didn’t want any more explanations like that from the judge.
“Any other questions from the jury? All right, let’s continue. Do you have a fixed opinion that global warming is caused by man-made emissions of CO2? Do you have a fixed opinion that global warming caused by CO2is a hoax or scientifically unsound? Do you have a fixed opinion that the glaciers are melting, causing a significant rise in ocean levels? Do you have a fixed opinion that global warming is caused by the sun, asteroids, volcanoes, forest fires, or other naturally occurring events not caused by man? I realize you may find some of these questions puzzling. But remember, we are simply trying to determine if you can be a fair and impartial juror in this particular case.”
Many of the prospective jurors could not keep up with Judge Martin. They plodded through the questionnaire. A couple shook their heads. Most silently worked their way to the end and signed the form.
“Let me continue with your questions. Do you have any religious or moral convictions that no one should ever bring a lawsuit, regardless of the fault or culpability of a defendant? Do you have a fixed opinion that there is a certain fixed upper limit on the amount of damages a complainant may recover? Is there any reason that you believe you cannot be a fair and impartial juror to both sides? If so, please explain your answer in the space provided.
“After you have finished writing your answers to the questionnaire, please put your juror number on the top left side of the paper, sign it at the bottom, and hand your completed questionnaire to the marshal. Then you can take a fifteen-minute break. We’ll probably have a few more individual questions when you return from your recess. You folks go ahead and answer the questions while I talk with the attorneys. Counsel, please see me in chambers.” The jurors quietly completed their assigned task, although one of the jurors took another forty-five minutes to complete the form.
As the jurors filed from the courtroom, th
e teams of lawyers pored over the jurors’ answers. Each team wanted “fair and impartial jurors” who would lean their way. Many of the jurors on the venire had lost their homes or were affected by the floods. Others knew friends or family who lost everything, worked for the Corps, or even worked on the levees themselves. Six jurors confessed their strong belief in global warming. Five opined that man-made climate change was a hoax or political mischief.
The attorneys and staff proceeded to Judge Martin’s chambers. They argued over who should stay and who should be disqualified from sitting as jurors. The judge was liberal in granting challenges to the jurors. He had learned long since, he was unlikely to err by excusing a questionable juror. Error in the voir dire process usually occurred when a biased juror was allowed to remain.
After the hearing the attorneys retired to separate rooms and exercised their peremptory challenges. Each side was allowed to excuse ten jurors they didn’t like for any reason. Judge Martin had generously allowed each side ten peremptory challenges. So the respective teams decided whom to eliminate from the list. After the internal debates a line was drawn though the names of the jurors being excused. The jury panel was culled to the final twelve, those who survived the elimination strikes of each side. Not surprisingly, no prospective juror was struck by both sides, or as the lawyers said, there were no double strikes.
The jury was empaneled, sworn in, and seated as the trial began in earnest.
16 Major Melinda Lewis Testifies
T HE COURTROOM WAS DEADLY SILENT, like the calm before the storm. Then Richard O’Reilly brought his six-foot-four frame to its full height as he almost imperceptibly bowed courteously to the judge. “May it please the court, Major Lewis, please introduce yourself to the court and to the jury. Tell us your name, where you live, and your occupation.”
