Impact (40 page)

Listening to Chambers's bombast, Tollison scans the room. In contrast to Altoona, where he performs before folks who are easily impressed, this crowd seems impatient, as though it has a right to a tour de force. The single friendly face belongs to Hawthorne. Tollison barely subdues a smile. The beard invokes their Berkeley days and the hippies Hawthorne disparaged in everything from their dress to their indulgences. Now, in furtherance of hallucinations of his own, Hawthorne has come to look like Ram Dass.

He wishes he knew what Hawthorne really thought about the case. “There are some problems,” is as pessimistic as he has ever been when asked to assess their chances, “but also opportunities.” Despite the easy optimism, Tollison knows they are on the horns of a dilemma.

Because Laura has steadfastly refused to press a loss of consortium, he has dismissed that claim, leaving Laura in the case only as Jack's conservator and as witness to his pain and suffering. The development would not have been disastrous had not the basic case—Jack's loss of earnings—been even weaker than Art Ely had suggested. As the airline's witness list made clear, Chambers's detective had tracked down every soul in Altoona who ever dealt with Jack and felt skinned in the process. The list is long and menacing—Tollison knows at least three people on it whose hatred of Jack Donahue had prompted threats of violence.

But Hawthorne and Martha are convinced they have the perfect counter—the case will be won, they predict with confidence, when Laura takes the stand to describe her husband's suffering and reveals her own ordeal as well. Barred from rewarding her directly, the jury will multiply its allotment to her husband, rogue though he may be.

Given the decision to base the case on Laura, argument on the best approach has ebbed and flowed. How should she appear—lovely and vibrant, or reduced to misery by the crash? Intelligent and capable, or dependent on a substantial judgment for a decent life? Coolly professional, or a hapless housewife unhinged at what has become of the man she married? As baldly stated, the spectrum hints of sham and artifice, but at one time or another Tollison has seen Laura exhibit each and every posture they discussed.

They have decided to defer Laura's testimony until the liability evidence is in. In the interim, they hope to catch a glimpse of Chambers's hand, to learn how much he knows about the Donahues, meaning how much damage he can do to Jack. Tollison and Hawthorne are experienced enough to know that the only safe assumption is that their opponent knows everything that they do. But what only Tollison knows, and what he has not yet been able to reveal to his partners in the enterprise, is that Laura's testimony entails great risk—if she takes the stand, Chambers may impeach her by revealing her romance with her lawyer.

Tollison shakes his head, curses both his predicament and his inattention. Chambers is denying his clients' culpability with an amplitude that makes it impossible that the plane crashed for reasons other than an act of kamikaze madness by the pilot. Slick enough to slide him onto a skewer at any stage of the proceedings, Chambers's every word must be weighed and heeded. The pressure is immense and unrelenting, and comes from all directions. Tollison is on trial as surely as anyone in the courtroom.

Chambers shifts to firmer ground. Gingerly but unmistakably, he begins to attack Jack Donahue. With the blows of a velvet hammer, he denounces Jack as a reckless plunger, an unscrupulous adventurer to whom an award for lost earnings would be tantamount to a prize for a pickpocket. The decision to damn a man whose brain has been pulverized by his clients is either brave or foolish, typical of the decisions a trial requires; only time will tell if Chambers has erred in attempting to shift stigma from the tortfeasor by smearing the victim of the tort. An injury trial is a quintessentially subjective decision for a jury, of the type that drives insurance companies and their lawyers to drink or to the legislature, often depending in large part on their measure of Donahue the man. In the final analysis, Tollison believes, the judgment may depend on whether it is Donahue or his wife who reveals the pathos of his condition. And that particular decision is not Chambers's but his own.

During the first days at Tahoe, Tollison and Hawthorne had assumed Jack would be unavailable as a witness. But their regular calls to Laura revealed that her husband had begun to progress at a startling rate—according to her, Jack was increasingly aware and verbal, occasionally even charming. But improvement was erratic and haphazard; Laura described black moods and vacant trances that came and went like zephyrs. One day, milk and cookies would be just the thing; the next, the tray would be thrown across the room. One day Jack would enjoy being manipulated and massaged; the next he would order his nurse to vacate not only his sickroom but his house, even when his nurse also happened to be his wife.

A similar fickleness stamped Jack's memory. On the first of four visits Tollison and Hawthorne made from Tahoe to his bedside, Jack remembered Tollison clearly, including the rules of engagement in the chilly war they had waged for forty years. On the next, he seemed never to have seen Tollison before. On a third, he seemed to think they were fast friends, to the extent that he wept when Tollison said goodbye. The pattern was so perverse that Tollison began to think Jack was having them on, as a method of amusing himself during the dull routine of convalescence.

As for the crash itself, Jack never varied. He remembered nothing, not the trip to LA, not the financing arrangements he negotiated while there, not the return on flight 617. On his final visit, when Laura had left the room, Tollison had mentioned Carol Farnsworth. Not that she was dead or had been in the crash as well, just her name. But it evoked no reaction beyond mild curiosity about a slight acquaintance. The same was true of the other ventures Jack was pursuing at the time of the crash. It was as though the hole in his head had never closed and all memory of the past few years had leaked into the mattress. For her part, Laura seemed incapable of looking further than the next item on the rehabilitation schedule.

A juror coughs. Beyond Tollison's reverie, Chambers again maligns the victim. At his side, Laura clenches a fist and mutters. When he realizes she has asked a question, he shakes his head. There is nothing he can do—Chambers can say anything he wants, there is no rule of court to stop him, there is only proof to the contrary. If they can marshal it. When the time comes.

Belittling the claim to punitive damages as the product of irrational minds and avaricious advocates, Chambers begins to close. An unfortunate accident, is his assessment. Tragic, to be sure, but the fault and responsibility of no one. To find otherwise would be to make mockery of die concepts of duty and justice. The defendants did all they could to bring the flight in safely, obeyed each and every regulation regarding the safety of passengers in the event of a crash landing. There is no reason in law or equity for making SurfAir or Hastings pay a single dollar to the Donahues, let alone the millions Tollison is asking for, no basis beyond notions of revenge or sympathy that have no foundation in the law. By the time Chambers has finished, Tollison is sure that at least two members of the jury believe he and the Donahues are scoundrels.

Chambers takes his seat Judge Powell looks at Tollison. “If there is nothing further at this point, I believe we should read the stipulations.”

The lawyers nod. The judge clears his throat and informs the jury that the matters he is about to elucidate have been agreed by the parties and are to be taken as proven for purposes of the case. “The crash occurred on March 23, 1987, at approximately 6:35
P
.
M
., in the vicinity of Woodside, California. The aircraft in question, a Hastings model H-11, was manufactured by defendant Hastings Aircraft Corporation in April of 1985.

“At the time of the crash, the plane was owned by defendant SurfAir Coastal Airways and operated by that company through its authorized agents and employees. At the time of the crash, plaintiff John Charles Donahue was a ticketed passenger on SurfAir flight 617.

“In fiscal 1987, defendant Hastings Aircraft Corporation had net earnings after taxes of twenty million dollars; in fiscal 1987, defendant SurfAir Coastal Airways had net earnings after taxes of five million dollars.”

Finished, the judge regards the courtroom. When he is certain all is in readiness, his eyes fall like a guillotine. “Call your first witness, Mr. Tollison.”

BASIC JURY INSTRUCTIONS

RESPECTIVE DUTIES OF JUDGE

AND JURY

Ladies and Gentlemen of the Jury: It is my duty to instruct you in the law that applies to this case. It is your duty to follow the law. As jurors, it is your duty to determine the effect and value of the evidence and to decide all questions of fact. You must not he influenced by sympathy, prejudice, or passion.

BELIEVABILITY OF WITNESS

You are the sole and exclusive judges of the believability of the witnesses. In determining the believability of a witness, you may consider any matter that has a tendency in reason to prove or disprove the truthfulness of the testimony, including but not limited to the following:

• the demeanor of the witness while testifying;

• the character of that testimony;

• the extent of the capacity of the witness to perceive, recollect, or communicate any matter about which the witness testified and the opportunity of the witness to perceive any matter about which the witness has testified;

• the character of the witness for honesty or veracity or their opposite;

• the existence of a bias, interest, or other motive.

CONCERNING INSURANCE AND

INSURANCE COMPANIES

There is no evidence before you that the defendants have or do not have insurance against the plaintiff's claim. Whether or not such insurance exists has no bearing upon any issue in this case and you must refrain from any inference, speculation, or discussion upon that subject.

STATEMENTS OF COUNSEL—EVIDENCE

STRICKEN—INSINUATIONS

Statements of counsel are not evidence; however, if counsel have stipulated or admitted a fact, you must treat that fact as having been conclusively proved.

You may not speculate as to the answers to questions to which objections were sustained or as to the reasons for the objections. You may not consider evidence that was stricken; that evidence must be treated as though you had never known of it.

A question is not evidence. You may consider it only to the extent it is adopted by the answer.

INDEPENDENT INVESTIGATION

FORBIDDEN

You must decide all questions of fact in this case from evidence received in the trial and not from any other source. You must not make any independent investigation of the facts or the law, or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene of the crash, conduct experiments, or consult reference works for additional information.

TWELVE

From his perch on the back row, Alec Hawthorne stifled a snicker. For the first time since he had known him, Ray Livingood seemed unsure of himself as he took the witness stand—hesitant, perhaps even a touch alarmed. Ironically, had Hawthorne been handling the case himself, he would not have used Livingood at all, would have relied instead on the report of the NTSB investigators, under the theory that the findings of government servants are immune to impeachment. But such evidence cannot be given live—it must be read from transcripts—and Hawthorne feared that Tollison's brand-new expertise might not hold up without the aid of a friendly face on the witness stand. So in the final days of pretrial preparations he had summoned Ray Livingood to the lake, only to discover that he had promoted a fight.

Irked at the demands of the preceding weeks, edgy from a month of sleeping a third of his normal diet, within minutes of Livingood's arrival, Tollison bridled at what he perceived to be the expert's accusation that he had not done his homework. For his part, Livingood responded with ill-concealed contempt and, as he estimated the effect a feeble showing in the SurfAir trial would have on his consulting business, became increasingly churlish. Like cats in a cage, the men snarled and snapped for hours, until Hawthorne called a halt by sending Livingood back to the city. Which was why, in the moment before Tollison began to question what was supposed to be his safest witness, the men were eyeing each other with crystal glints of insolence.

Garbed in a fresh-pressed suit that lacked only a row of ribbons to pass for a colonel's greens, Livingood adjusted his body to the witness seat and his mind to the man who was about to interrogate him. Poised at the podium, Keith Tollison uttered what was supposed to be a brilliant fanfare but was more a croak than a call to arms.

“What is your job, Mr. Livingood?”

The question was routine and the answer would be perfunctory, which made Tollison's swollen smile seem forced and false. Hawthorne cringed: Such patent artifice could alienate the jury for the duration.

“I'm the founder and chief investigator of Aviation Investigations, Incorporated,” Livingood intoned, his practiced importance still unbowed.

“What business does that company engage in?” Tollison asked.

“Precisely as it sounds—we investigate plane crashes.”

“Are you a government agency?”

Livingood shook his head. “Totally private.”

“There is an agency that investigates plane crashes, is there not? So why not let the government do the job?”

Livingood's look implied a bureaucracy less competent than Inspector Clouseau. “Sometimes they miss things, sometimes they take too long to reach a decision, sometimes they're too eager to pin the problem on the pilot instead of on the airlines and manufacturers. And sometimes they're just plain wrong.”

Hawley Chambers pushed himself to his feet and clutched at his lapels with a gravity he clearly hoped was Lincolnesque. “Objection, Your Honor. Move to strike as argumentative.”