Impact (39 page)

Crossing his legs, he felt the scrape of denim rather than the itch of worsted wool. In response to a sudden tickle, he scratched his cheek, burying his fingers in an unfamiliar beard. Strange sensations all, in keeping with the unclipped hair, the dimestore eyeglasses, and the flannel-and-Levi's combination he had donned that morning in furtherance of his disguise. But the acid test lay beyond the bar of the court, in the person of Hawley Chambers.

Seated at the defense table, whispering terse directions to his young assistant as Judge Powell addressed the freshly impaneled jury, Chambers was simultaneously taking the measure of the courtroom. Alert for the lawyer's bane—a surprise, an unexpected presence, a thrust from his inevitably unscrupulous opponent—Chambers was also, Hawthorne knew, devoting a crease of his mind to searching the room for him.

In the settlement that excised his clients from the SurfAir suit, Hawthorne had promised not to appear in the action in any capacity and not to provide materials obtained in the litigation to attorneys for other plaintiffs. Technically, he had observed the caveat. What he had provided was not evidence but advice—suggestions, counsel, tips—the amorpha of litigation that had never been encompassed in any writing, not even those published by the many enterprises that promised to teach what had always seemed to Hawthorne essentially unteachable—how to be good in court. Such abstract aids had not been foreclosed by the artless verbiage of the settlement agreement, or so Hawthorne was prepared to argue, but his position was so far from solid that Martha had prepared a brief on the subject, in case he was found out.

The more tangible assistance he had proffered—the records, reports, and analyses Martha had carted to Tahoe a month ago and back the night before—had been amassed long before the Hastings had gone down, as part of the data Hawthorne accumulated to keep current with the technology whose eccentricities rendered him his living. Such assistance lay outside the settlement bounds as well, he believed, though with regard to a few documents the argument stank of sophistry. Whatever the legalities, were Chambers to learn of his presence he would quickly cry “contempt” and throw the proceedings into an uproar. Still, Hawthorne was uncommonly tranquil. It was nice to be in a courtroom without the weight of a client on his back.

From the bench, Judge Powell was reading his opening instructions to the jurors, outlining their duties, recalling their oath, briefing the case. Courtly, polite, bordering on the unctuous, in both intonation and demeanor Powell suggested that the task the jurors and their alternates were about to undertake was as vital as any they had ever done. Unless they had led lives more remarkable than the voir dire had revealed, the suggestion was unquestionably correct.

Below the bench, the portly clerk returned a handful of numbered balls to the cylinder from which they'd been extracted to randomly select the jury. At his flank, a court reporter kneaded her Stenorette in obeisance to the judge's words, the breathy ripple to her scarlet lips perhaps revelatory of a lascivious train of thought primary to the autonomic output of her job. Opposite the jury, half a dozen news-people splayed across the tables set out for their convenience, looking more like entries on the bankruptcy docket than members of the fourth estate. To the rear, Powell's law clerk tilted his chair against the wall, implying he had seen it all before.

Meanwhile, the audience settled in for the show. A few were lawyers on their way to other venues, stopping by to look in on the first trial to come out of the SurfAir crash. Others had more specific interests. Vic Scallini had dispatched a lissome young associate to monitor the proceedings. Legal pad poised atop her slender lap, she would pass along anything that might advance the claims of other victims or save her boss some work. An assistant U.S. Attorney was present for similar reasons. The remaining onlookers consisted of what Hawthorne called “the float,” regulars who moved from courtroom to courtroom enjoying the fruits of vicarious existence—the absence of consequence and the immunity from mistake. Like Hawthorne, they were eager for the trial to begin, having no stake in the outcome beyond what their sense of justice and fair play would conclude as the proceedings moved toward judgment. What was unsettling to Hawthorne was how often the collective ethic of the bedraggled mob exactly matched his own.

Seated at the table closest to the jury, dressed in the boots, suspenders, and wide-wale corduroys that fit his chosen court persona, Keith Tollison was at that moment tilted toward a question posed by the most pivotal player in the game, who looked in both dress and decorum to be present as an ambassador from God. Hawthorne sighed with envy. Never in twenty years of practice had he been the attorney for an angel.

While his charges conversed in careful whispers, Hawthorne's nervous knot unraveled. If he had passed the test of anonymity, Tollison had passed his threshold test as well: The jury that listened to Judge Powell's homilies was the one he would have chosen had he been trying the case himself.

Four women and two men. Not perfect, of course—Chambers was too good a lawyer to allow an unabashedly plaintiff's panel to sit in judgment of his cause—but most signs were encouraging. According to the profession's enduring bigotry, the Italian was the right temperament, the cook the right class, the jeweler the right faith. The female majority was also a plus, as long as Laura was careful not to alienate them by challenging the definitions of their gender. Juror number one was perhaps too dominant in word and body language to admit to much compassion, but juror number two—a black construction worker—could surely be counted on to compensate Jack Donahue to the full latitude of the law, unless the pathway to the middle class had burdened him with conservatism's least defensible belief—that misfortune is the fault of the unfortunate.

Conversely, the widow was the wrong age and tax bracket, the bookkeeper might think herself too slick with numbers to accept expert projections at face value, and the veteran might have endured such prolonged terror near Da Nang that Jack Donahue's instantly inflicted trauma would seem trivial in comparison. It was, as usual, a crap shoot. The most that could be hoped for was what Tollison had apparently achieved—the dice were not, as far as anyone could tell, loaded against his client.

That his friend had selected a jury of promise was not surprising to Hawthorne. During their weeks in the mountains, it became evident that Tollison had picked more than a hundred juries in his career and had tried cases of factual complexity if not of monetary gleam. Previously beset by demented jurists, forgetful witnesses, vanishing exhibits, deceitful counsel, and eerily ungrateful clients, Tollison was sufficiently alert to litigation's pitfalls to endure the preparatory tedium that was the only antidote to disaster.

At least up to a point. At 3
A
.
M
. three nights before, Tollison had protested that if he didn't know it now, he couldn't possibly absorb it in the hours they had remaining, that at this point the best use of time was sleep. Hawthorne disagreed, and Martha sided with her boss. Tollison damned them both, only to have his commitment to the cause denounced by Martha. Eventually the point was mooted—Tollison fell asleep in his chair and could not be roused. Belying her earlier accusation, Martha draped him with a comforter and kissed him on the cheek. But that was the only lapse. By the eve of trial, Hawthorne found himself looking forward to watching his friend perform.

In the process of picking his jury, Tollison had accomplished the crucial corollaries—he had begun to sell his case and to sell himself as well. More important, as legitimately as he could, Tollison directed attention to the woman sitting next to him. The result would not be known for days, but it was their collective wisdom—the only point Hawthorne, Tollison, and Martha had united behind—that the key to the case was Laura. As he watched the jurors repeatedly glance her way, Hawthorne decided the bargain was halfway made.

His welcome concluded, Judge Powell looked expectantly at the plaintiff's table. On what was obviously his second try, Tollison managed to stand, stagger to the podium, and begin his opening statement.

He was nervous. Hawthorne saw it from where he sat, and the jury saw it vividly. Although veteran lawyers occasionally feigned jitters to foster sympathy for the underdog, such ploys often backfired—a lawyer succeeded not by tricks or artifice but by making the courtroom a world in which he was the sole teller of the truth. But Tollison's parched words and inelegant gestures were so surely symptomatic of his state they could actually prove endearing, especially compared to the pomp and polish of Hawley Chambers.

The opening continued as planned: simple, to the point, void of cant or emotionalism. Tollison described the Donahues' lives, noted the trip to Los Angeles, and mentioned the crash, all in neutral phrases. Because all but one of the jurors had seen or read accounts of the disaster, he urged them to suspend judgment until all the evidence was introduced, so he would not plead his case to persons who knew even before the first witness was sworn how they were going to vote after they ostensibly retired to deliberate.

As the opening neared its end, Tollison seemed to become convinced by his own rhetoric. Mentioning Jack's injury in its barest guise, he listed the compensatory sums he would ask the jury to award. Then, because he knew they expected it of him, he returned to the crux of the case.

“There is a big question in your minds at this point, I would guess,” he said as he approached the jury box closely enough to suggest candor. “You're wondering what happened that night; you're wondering why the airplane crashed.”

The lure in place, Tollison stepped back. “I'm afraid I have bad news for you, ladies and gentlemen,” he admitted amid their full attention. “The answer is, I don't know. To my knowledge,
no one in this courtroom
knows why flight 617 crashed that night, not even Mr. Chambers over there, and he's the lawyer for the people who flew it. So I hope you will put that out of your minds for the next few days because, as important as it is, that question will not be answered in this trial. We're not going to be talking about the
first
collision that occurred that evening, ladies and gentlemen; we're going to be talking about the
second.”

Tollison paused for effect. When the murmurs of disappointment subsided, he continued. “The question that
will
be answered in this trial is a simple one,” he said softly, making his audience work to hear and thus remember. “And that question is—why was Jack Donahue so badly injured in the crash of flight 617?”

Tollison folded his arms across his chest. “I
can
answer that one for you. Our evidence will show that the Hastings H-11 aircraft that crashed on the evening of March twenty-third of last year, as manufactured, sold, operated, and maintained by the defendants, was
not a crashworthy vehicle
. Had it
been
crashworthy—had the defendants been careful and prudent in building it and flying it, had they exercised due care in the decisions they made about the design and conformation of that airplane—Jack Donahue's brain would not have been damaged in the crash. Had the airplane been built the way it
could
have been and
should
have been, Jack would have walked away without a scratch because, as our witnesses will demonstrate,
the crash of flight 617 was survivable
.

“What's true is this: The defendants' failure to build and operate a crashworthy aircraft, in face of their duties under the law and the availability of alternate technology, was so willful and reckless in its disregard for the safety of the passengers on flight 617, that you will be justified—indeed you will be compelled by your collective sense of right and justice—to award Jack Donahue the amounts I have mentioned, plus punitive damages against these defendants in the aggregate amount of two and one half million dollars.”

With a gulp of unburdened breath, a last look at the jury, and a quick glance toward the man in the rear of the room who had crafted the position he just set forth, Keith Tollison took his seat.

Hawley Chambers is deeply into his opening before Keith Tollison begins to sense its substance. Opposed by a tableful of lawyers and their data-laden advisers, his own beginning a glossary of terms he incompletely understands, Tollison can't believe the event he has dreaded for a month is actually upon him. There is so much to remember, to anticipate, to beware, that he is, for several minutes, unable to do any of it.

On the bench above, Judge Powell seems deep in meditation. At his side, Laura Donahue makes notes on a yellow pad. Somewhere behind him, Alec Hawthorne lolls like a jaded critic, passing judgment on his every move. At the podium, Hawley Chambers declares that what the jury has just heard from Tollison is a flight of febrile fancy—the word
nonsense
is used, as are
baseless
and
absurd
.

The charges sting. Anger swells, heated by a flame of rectitude. As if from a photographer's bath, Tollison's senses reappear. If he is as able in this venue as in Altoona, before the trial is over, they will reach a state of near omniscience.

Chambers continues, his rhetoric precise, his expertise a gloss on every phrase. Tollison suspects he has used the exact wording countless times before, but this is something the jury cannot know. To them as to Tollison, SurfAir is unique.

As he watches SurfAir personnel exchange approving nods at one of Chambers's sarcastic sallies, Tollison feels sorry, for the merest moment, for his adversary. Vic Scallini's digression into Oriental manufacturing techniques, coupled with Hawthorne's private plea to Judge Powell, let the Donahue case exceed the normal pace of discovery, so Chambers knows far less than usual about the plaintiff's case. Also, in a sense, the trial will likely be without profit for him. If the Donahues receive nothing, Chambers will have done no more than meet his clients' expectations. Even if the verdict is for Jack, the amount will most probably be small, still no great achievement. But the threat of punitive damages, which are uninsurable and thus potentially disastrous, looms large until the trial is done. Though such a judgment is, quite obviously, seen by the defense as less likely than world disarmament, an award of millions to the Donahues could end Chambers's career as a leading defense counsel. It is permissible to lose—indeed, Alec Hawthorne claims you should not make the Trial Lawyers' Hall of Fame until you have both won
and lost
a million-dollar judgment—but it is not permissible to take a bath so deep that it jeopardizes the client's existence. If insolvency is a possibility, you settle out of court.