Katrina: The Jury Answers

by Don Wittig

  “Mama, you haven’t even been on a date in five years. You better behave.”

  “I’ll think about it. Don’t worry about me.”

  46 Clarence Softens

  T IASHI WAS GREETED IN THE jury room by a great big Clarence T. smile. She returned the favor with an equally optimistic grin. Her optimism was constrained by the task at hand. Clarence’s smile had a broader reach.

  Meanwhile, a new tone brightened the jury rooms as they entered their fourth day of deliberation. Julia picked up on the new vibrations and decided to ply her advantage. “Clarence, you seem to be in a really good mood today. How do you suggest we break this deadlock?”

  “Well, Julia, I know I’m not going to convince all of you that the Corps was not negligent. I think if we can agree on the percentage of liability or responsibility, question three, then we’ll all be going home sooner. If I remember our last straw vote, we were at about thirty-three percent responsibility. You might even get Frank and me to go up to ten percent. But thirty-three is just too high.”

  “Thanks, Clarence. Where are the rest of you on the percentage question?” Tiashi spoke up. “Looks like Clarence wants us to split the difference with him. That would put us about twenty-two percent. That’s just too low. Twenty-five percent is the absolute bottom for me.”

  The room buzzed. For the first time since the jurors sat down to deliberate, four long days before, the end was in sight. The optimism of both Tiashi and Clarence was infectious. Two of the really green jurors fussed about going below 50 percent. But with their leader agreeing to 25 percent, they didn’t want to hold out on this one question. As long as they got close to half a trillion dollars in damages, they could compromise on question three about the percentage of responsibility. Julia asked for another straw vote. Nine jurors voted yes to 25 percent. Clarence and Frank held out for a lower number. Marianne stood firm at 75 percent. “OK, we’re really close. Let’s talk about damages again and see if we can’t wrap this thing up today.”

  Around the room they went. O’Reilly’s friends wanted eight hundred billion. Frank said one hundred million tops. A majority seemed to be around four or five hundred billion dollars.

  Julia spoke up again. “Look, if we award eight hundred billion dollars, this case will be on appeal for twenty years. Look at the Exxon Valdez case. It’s still in the appeals courts going back and forth. Five hundred billion dollars is an enormous sum. Any more than that and everyone will think we’re mad—crazy mad. Mad in the head. You know what I mean.”

  “We’ve got to be practical,” Tiashi argued. “Five hundred billion is exactly half what the plaintiffs want. It’ll look like we just split the baby. I think if we come in around four hundred billion, it’ll look more thoughtful and be more acceptable to the judge. Maybe he’ll be less likely to give Mack and the feds a new trial.” Tiashi couldn’t believe she was in such a compromising mood. She, like most of the jurors, just wanted out of the courthouse. Get back home and to work. Enough is enough.

  “Tiashi makes a good point. Let’s have a show of hands. How many can go for four hundred billion in damages, question two?” The same nine raised their hands. Consensus was forming. Who is holding out besides Frank and Clarence? Julia’s eyes made a quick survey but somehow she missed the third dissenter. “What shall we order for lunch today?”

  After their morning break, Carrie spoke out for the first time since they went around the table on day one and gave their first impressions.

  47 A New Twist

  C ARRIE WAS FINISHING HER SECOND year of law school. Her background as a CPA helped her with the tax courses, technical regulations, and business transactions. She reveled in the details and minutia of the law. She took off her bifocals and looked Julia in the eye. “I think we are overlooking a very important thing Judge Martin told us. I agree the Corps was negligent. And I think twenty-five percent responsibility is in the ballpark. I could maybe go a little higher. But think about this. If the Corps is only twenty-five percent responsible, that means the state of Louisiana, the local levee boards, the sewer and water boards, and everybody else is seventy-five percent responsible. How can we award all four hundred billion in damages against the Army Corps of Engineers? Under the judge’s instruction, we have to reduce the damages to twenty-five percent. That’s all the Corps is responsible for. Twenty-five percent of four hundred billion is one hundred billion. So our final damage verdict should be one hundred billion.”

  Silence griped the jury room. Julia was speechless. Carrie had waited until the fourth day of deliberation to show off her sophomoric appreciation of the law. She was wrong, but no one could articulate why she was wrong. The group was stunned. A cloud of depression seemed to descend on most of the dozen. Clarence thought that the way Judge Martin had instructed them to answer all the damages “caused by the occurrence” meant just that. If the storm’s aftermath caused a hundred million, they should answer a

  DON WITTIG KATRINA: THE JURY ANSWERS

  hundred million and not reduce the damages. Still, Clarence reveled in this unlikely ally who appeared from nowhere. Some kind of miracle , he thought. Carrie had thrown a monkey wrench in the cogs of justice. Julia and Tiashi knew something was wrong, but like the rest of the jury they were worn down as they approached the end of their third week of jury service. The days and hours crept by like a tortoise crossing the desert.

  Only three people were happy. Carrie, who obviously had never tried a single lawsuit, was proud she could show off her recall of a couple of cases she studied in her legal procedures course. Trouble was, the cases were not from Louisiana and had no application to this case. Clarence and Frank were happy for another shot at reducing the damages by yet another compromise.

  However, Frank had had enough and his big trip was coming up in two days. At close to five o’clock, he blurted out his plea. “Look, we need to get through this case. I’ll concede on the negligence question and concede on the percentage question if we can go with Carrie. That means we’ll find the Corps negligent. We’ll find damages of one hundred billion and find the Corps twenty-five percent responsible. How about it? I want to go home, and I know everyone else does too.”

  Clarence scowled. He had finally lost Frank. Still, the jury had come a long way from a trillion dollars. I’d better keep my mouth shut while I’m ahead.

  Julia resumed control. “We’ve had a long, hard day. It’s almost five o’clock. Let’s all go home, sleep on it, and vote first thing in the morning.”

  Carrie opened her mouth again. “Just one more thing.” “No,” Julia commanded. “We’ll vote first thing in the morning, and then you can talk all you want.” We’ve been waylaid by this foureyed bimbette. I don’t want any more of her newfound revelations today. “See you all tomorrow morning at nine o’clock. Marshal, we’re ready to go home.” The marshal escorted the jurors back to their secure parking area.

  Julia was despondent. Her plans for a five or six hundred billion-dollar verdict had slowly slipped away. It seemed the longer the deliberations, the more the jury ignored the evidence of the egregious conduct of the Corps. The Corps had destroyed the environment and nearly wiped out New Orleans but were getting ready to skate with a measly hundred billion-dollar verdict. “Still, that’s a lot of money,” Julia muttered to herself as she approached her Toyota Prius for the ride home.

  48 The Final Verdict

  T HE JURY SHOWED UP FRIDAY morning both hopeful and exhausted. The trial and deliberations had taken their toll on everyone. Julia called the jurors to order. “Let’s see how close we are to Carrie and Frank’s numbers. Everyone write down on a slip of paper either ‘yes’ to Carrie’s compromise or write out your alternative to what you think we should do. Fold up your answers and hand them down to me. If you vote yes, you are saying ‘yes’ the Corps was negligent, the damages from the occurrence were one hundred billion, and the Corps was twenty-five percent responsible. If you disagree, write down your own suggestion for each question.”

&
nbsp; The jurors hurriedly cast their secret written ballots and handed their answers down to Julia. Julia was cautiously optimistic. She opened the first ballot. It read “yes” the Corps was negligent, the damages were one hundred million, and the Corps’ responsibility was five percent. Julia knew this had to be Clarence, so she held her optimism and her breath. The next ten ballots voted the Corps negligent, found one hundred billion dollars in damages, and declared the Corps twenty-five percent responsible. “OK. Who didn’t give me an answer?”

  Tiashi sheepishly glanced at Julia and then spoke. “I’ve enjoyed about all I can stand of you guys. Seriously, it’s been fun but grueling. I’ve learned a lot. I still think we are way too low on the damages and that the Corps was at least seventy-five percent responsible. But I also think we’ve been here long enough—probably too long. So I’ll go with the majority.”

  All the other jurors stood up and cheered except Clarence. He smiled, not his little boy salesman’s grin, but more of a Cheshire cat expression. “So, Julia, are we reporting back an eleven to one verdict?”

  “Yes, Clarence. We just need to all agree among the eleven of us. Sure you won’t make it unanimous?”

  “Can’t do that. Matter of principle. But I congratulate you

  for reaching a consensus. I know it was difficult for a lot of you.”

  Clarence gazed and then winked at Tiashi. She returned a cool

  glance.

  Julia stood and smiled. “For once Clarence is right. A lot of us

  want to give more money and you Grinches beat us down. That’s

  the way the system works. However, if you want to get something,

  you have to give up something. At least we made it through finally.

  Any other questions before we call the marshal and announce our

  verdict?” Everyone smiled and started packing up their belongings.

  The mood was ebullient. Everyone was ready to go and get back to

  their normal lives.

  49 Back to the Courtroom

  “A LL 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!”

  “Good morning, counsel. Be seated, please. I understand we have a verdict. Before we bring the jury in, let me explain to the audience our procedures here. I’ll have the presiding juror read the jury’s verdict. Counsel will let me know if they want the jury polled. There are to be no displays from inside or outside the bar. Our jurors have been working hard deliberating for almost a week and deserve our attention and respect. I expect both silence and respect. After the jury is dismissed and I have returned to chambers, you can cry or celebrate as you choose. But remember the country is watching you. Don’t show them the side of you that you wouldn’t want your mother to see. Remember, no cameras on the jurors. Marshal, please bring the jury in.”

  “Ladies and gentlemen of the jury, have you reached a verdict?” Julia stood up proudly and announced, “Yes, we have, your honor.”

  “Please hand your verdict to the marshal.” Judge Martin quickly glanced through the charge and verdict form, noting eleven jurors agreed to all the answers with one lone dissent signed by Clarence T. Holmes. “Marshal, please hand the verdict back to the presiding juror. You may now read your verdict into the record.”

  Julia began. “To the first question, was the Army Corps of Engineers negligent, we have answered yes.” A few audible sighs could be heard from the anxious gallery. “To the second question, how much were the damages caused by the occurrence, we answered one hundred billion dollars.” The gallery tried to muffle its excited approval. Anxious reporters bolted from the courtroom to talk with waiting camera crews and phone in their stories.

  “Order in the court! Order in the court!” The embarrassed marshal stood red-faced before the courtroom, raising his hands for silence, like a marshal at a PGA tour event.

  Judge Martin expected as much. He waited for what seemed an eternity and then reluctantly banged his gavel three short raps. This was only the second time in his long, distinguished career that he actually used his gavel. You only have power until you use it. The courtroom drew deathly quiet. “Ladies and gentlemen of the jury, I must apologize for the conduct of some of our fellow citizens. However, I must note that most of the people in the gallery are obviously from other parts, judging by their conduct. I’m afraid I am going to have to ask everyone behind the bar to leave the courtroom. I mistakenly thought my instructions were crystal clear. Apparently not. Marshal, clear the courtroom of everyone on the gallery side of the bar. Ladies and gentlemen of the jury, I’ll excuse you for a few minutes back to your jury rooms while we calm things down. I’ll call you back very shortly.”

  “All rise,” the marshal intoned. Judge Martin descended from the bench and returned to his chambers. In chambers, one of his briefing attorneys asked what had happened.

  “One big compromise, Mark,” the judge responded. “Guess what percentage they will put on the Corps.”

  “Fifty to seventy-five percent.”

  “No sir. Much more conservative than I expected. But that’s our system. A true ‘runaway verdict’ is very rare.”

  DON WITTIG KATRINA: THE JURY ANSWERS Once out of the courtroom, Clarence shuffled past the other jurors and grabbed Julia’s arm. “Aren’t you forgetting something, Julia?”

  “No, Clarence. At the end of the form there is a place that shows who was with the majority and if anyone did not join the verdict. Don’t worry. Everyone will know who you are and that you wouldn’t even agree to a hundred billion. What is your mother going to think?”

  “She passed.” “Gosh, I’m sorry, Clarence. That was uncalled for by me. Please forgive me. I really didn’t mean it. Just tired and a bit frustrated.”

  “That’s OK, Julia. No hard feelings. You did a great job.” Clarence held out his arms and Julia gave him a genuine hug. “That we can disagree and still get along as neighbors is one of the many things that make this the greatest country in the world.”

  A small tear slid down the side of Julia’s face. It was time to put the trial and Katrina behind her.

  2 Back in the courtroom, only the attorneys and parties remained. A gaggle of reporters pressed against the stately dark-oak doors, which were now locked shut. Bob Deerman frowned his displeasure. He thought the jury was way too low on damages. Melinda Lewis looked happy and glad it was over. Richard O’Reilly seemed nonplused. He didn’t allow his serious concern for the last answer, the percentage of responsibility, to show. He knew they had won, but how much would the damages be reduced by the percentage of responsibility? The lower the percentage of responsibility, the lower the ultimate damages. He glanced across the room to Bradley Mack.

  Mack tried to restrain himself. Whatever the jury answered to the last question, he knew it would only help him. The way the law worked, the damage figure would be reduced to the percentage found by the jury. Even if they found fifty percent, the damages would be knocked down to fifty billion. Mack thought back to the secret settlement deal the White House ordered him to make with O’Reilly. One billion up front guarantee with a twenty-five billiondollar cap. Neither side could appeal. Damn if the White House wasn’t smart for a change. I wonder if that was Arturo Medina’s idea, Carl’s, or the former Halliburton boss. Probably the vice-president. He’s the wily one at 1600 Pennsylvania Avenue. He brought his business savvy and experience with litigation to the lame duck president. Bush wanted gravitas and did he get it, in spades. This was one of the few times the client turned out to be right and old Bradley Mack was wrong. Still think we could have won on appeal. Oh well. We gave our appeal away.

  The jurors returned to the courtroom. Judge Martin told Julia to continue. She responded, “To the third question concerning the percentage of responsibility, we answered twenty-five percent. The verdict form is signed by the eleven jurors who agreed. The eleven were unanimous. One juror
dissented, Clarence Holmes. He voted….”

  “Just a minute,” Judge Martin interrupted. “Please do not disclose Mr. Holmes’s vote. Ladies and gentlemen, thank you for your service as jurors in this important case. I will now release you from all the instructions I previously gave you not to discuss the case with anyone. You are now free to discuss the case, but remember your deliberations are still considered sacred and secret. You can share your own thoughts about the evidence and the case with your family, friends, or anyone, including the press. You also have the right not to discuss your thoughts with anyone. It’s up to you whether you talk with the press or not. I’m sure many of them will be anxious to talk with you. And that includes the attorneys and the parties. The lawyers almost always like to talk with you. I’ll now excuse you to the jury rooms, and I will come back and answer any questions you might have.”

  50 Questions Remain

  “J UDGE, THANK YOU FOR TAKING the time to talk with us. We know you must be very busy, especially after spending the last couple of weeks with us. One problem came up, and I hope you can answer our question.” Julia was still concerned about Carrie’s insistence that the jury reduce the damages to twenty-five percent. “One of the jurors insisted we reduce our damage figure to the percentage of responsibility that we found. We originally found four hundred billion dollars in damages, but that juror said that because the Corps was only twenty-five percent responsible, we should reduce the damages to one-fourth of the four hundred billion. So we answered one hundred billion. Is that right?”

  “I’m very sorry. You’ll remember that in my instructions I said you should not concern yourself with the effect of your answers. That instruction still holds true. I can only tell you that you were supposed to answer question two with the damages you found that were caused by the occurrence in question. Over the years there’s been a lot of dispute and confusion about the use of that term ‘occurrence.’ Sometimes it is worded ‘proximately caused by the negligence’ of whomever. In this case, the Army Corps of Engineers. That’s about all that I can ethically tell you. Unfortunately, I cannot tell you the effect of your answers. Are there any other questions?”