There are few surprises in trials anymore, thanks to the discovery rules, a lawyer learns the other side’s case before trial. Your opponent must provide you with a witness list and copies of all exhibits. You can ask written questions under oath and require production of documents. You cross-examine all your opponent’s witnesses before ever setting foot in a courtroom. So, it’s not like Perry Mason. I have yet to see a bombshell witness fly through the courtroom doors to save the day. Never have I even heard of a member of the gallery standing up and proclaiming, “All right, I admit it, I killed Norby Frebish, and I’d do it again!”
Still, you must be quick on your feet. You may think you are fully prepared-a sturdy ship maintaining a steady course-but it never works quite that way. At best, you’re a rickety boat sliding down treacherous waves in a sea peppered with unseen mines. As in a stage play, you rehearse and rehearse. Unlike a play, in court, after the first act, you often tear up the script.
You need strategy, and that is different from preparation. Building your case is one thing. Changing it as you go is another. Imagine you are building a house. You dig the foundation and carefully follow the plans. You lay every block in line, drive every nail straight, and align every wall true.
That is the way most people live and work. But with generals, coaches, and lawyers, it is different. Just when you get that two-by-four in plumb, some joker with a sledgehammer whacks it out of place. Lay in the wiring, and the same joker shreds it. As soon as the windows are in place, you hear the sound of tinkling glass.
The lawyer, like the general, must have a plan, but must also foresee the opponent’s next move. And when the move is a surprise, you’d better have plans A, B, and C ready. If war is endless boredom interrupted by moments of sheer terror, trial work is deadening preparation followed by panicky ad-libbing.
I didn’t expect the excited utterance from Melinda Tupton, and I was unsure how it would play, Tupton’s fears about a document so sinister as to evoke his worst nightmares. For once I didn’t agree with Marvin the Mayen. I doubted that the intent was to provoke sympathy for the Everglades animals. No wood storks died in the Florio wine cellar. I thought Patterson was simply trying to create animosity toward Nicky Florio. It even helped Patterson’s case that the document was unseen by the jury. What is more horrifying than the unknown?
Maybe Patterson’s strategy went like this:
First, convince the jury that Peter Tupton was a good man.
Second, suggest that something planned by Nicky Florio repulsed and terrified Tupton.
Ergo, as Charlie Riggs would say, Nicky Florio is a bad man.
At the essence of every case is the attempt to get the jury to like your client and hate the opposition. When liability is foggy, it makes the hard evidence less important than raw emotion.
It was just after lunch when I finally figured out what Patterson was doing. It became clear as I was thumbing through the plaintiff’s proposed jury instructions.
The instructions are the last words the jurors hear before retiring to their little room. Each side prepares an independent set. The introductory ones are innocuous. Jurors are told to test the believability of witnesses based on their experiences. They are instructed not to base their verdict on sympathy, an important one for the defense in a death case. They are told that negligence is the failure to use due care and that they should also evaluate the comparative negligence of the plaintiff, which can reduce a verdict.
I was standing at the clerk’s table, skimming through Patterson’s requested instructions.
Ho hum.
The standard stuff. Believability of Witnesses, Prejudice and Sympathy, Definition of Negligence, Punitive Damages. Whoops. What was that again?
Buried in the stapled stack of the plaintiff’s instructions was one simply entitled Punitive Damages.
If you find for plaintiff Melinda Tupton, as Personal Representative of the Estate of Peter Tupton, and against defendant Nicholas Florio, you may consider whether in the circumstances of this case it is appropriate to award punitive damages, in addition to compensatory damages, as punishment and as a deterrent to others. Punitive damages may be awarded in your discretion if the conduct of defendant Florio was so gross and flagrant as to show a reckless disregard of human life or safety.
The jury-charge conference would come at the end of the case, but I couldn’t wait. I buttonholed H.T. Patterson at the plaintiff’s table. “What the hell’s this?”
He shrugged. “The standard punie charge, right out of the book. You may recall we amended the complaint to include the claim.”
“I recall, but that’s a throwaway. There’s no evidence to support-”
“No evidence! Jake my boy, were you listening this morning? It’s quite obvious. Peter Tupton had discovered something so heinous that your client dispatched him.”
“Are you out of your mind! You can’t prove that.”
“I’m not claiming it was a premeditated murder, and you’re half-right. There’s no way I could prove it, at least not in criminal court. But, Jake, we’re downtown with the buzzards, who, strangely enough, only circle the civil courthouse. I’ve always wondered why they stayed away from the criminal-justice building, but-”
“What’s your point?”
“Simple. I only need to prove my case by a preponderance of the evidence, and the way I figure it, the jury will conclude that Florio discovered Tupton in the den. They argued over the document. Nicky Florio’s not the kind of guy to pull out a gun. He tries to smooth-talk Tupton, maybe even offers him a bribe again.”
“What do you mean again? My objection was sustained. Your client never got to answer-”
“But there was the question, wasn’t there, Jake? Come now. You knowhow jurors pick up the slant on things. You were sweating bullets to keep out the answer, and you did it, but the jurors saw it. They think your guy’s dirty, and frankly, so do I.” Patterson gave me his cat-to-the-canary smile. “You want to hear more?”
“I’m all ears.”
“Whatever Florio tries, threat or bribe, it doesn’t work. Tupton’s too honest. Florio isn’t used to this. He’s been buying off zoning boards and county commissioners for so long, he doesn’t know what to do. He needs time to think. Tupton’s already had too much to drink. Florio wants him to drink some more. At first, I thought they probably went back out to the pool. But no, at this point, Tupton’s getting loud and excited. You heard his wife’s testimony. He was hyper, and there are politicians and journalists outside. Florio can’t afford a scene. And if you recall, none of the guests can place Tupton outside again after he went inside to piss.”
“Or to spy.”
“Have it your way. But there’s a wet bar in the den, did you know that?”
I didn’t know, and I didn’t answer.
“It’s really quite a nice bar.” Patterson smiled malevolently. “When we had the inspection of the house in discovery, we took photos. Polished teak, I believe. So perhaps Florio offered Tupton something a little stiffer than a mimosa. Just a couple of men in a dark, paneled den. A little scotch, perhaps. Tupton would be staggering by now. From the den, it’s just a short walk down the hall to the wine cellar. No one would see them. There are two chairs in there, bleached wood to match the shelving. White pads for comfort. Maybe open a bottle of wine, or more champagne, the good stuff, showing his guest respect.”
“I still haven’t heard anything about murder.”
“And you won’t, not in this courtroom. Florio just wanted to keep Tupton on ice…sorry about that, keep him away from the crowd, buy some time. I figure he left him there with all the bottles and goes to get his partner, what’s his name?”
“Rick Gondolier.”
“…who’s making nice with the ladies out by the pool. Florio and Gondolier come back, and there’s Tupton sprawled out on the floor, passed out, with some expensive champagne running down his chin. They just leave him there. It gives them time to figure out what to do when he wakes up. Except…”
Except he wakes up dead, I thought.
“…he doesn’t wake up. Are you following me, Jake? Florio doesn’t figure Tupton’s going to die, but he doesn’t really give a shit. That’s the essence of punitive damages, isn’t it? Complete disregard for the well-being of another.”
H.T. didn’t have to say the rest. The damages are assessed in an amount sufficient to punish the defendant. The richer the defendant, the bigger the award. Biggest bummer of all, punitive damages are the equivalent of a criminal fine, and insurance won’t cover them.
“So, Jake, I’m wondering if the blackboard is big enough to hold all the zeros I’m going to put up there in closing argument. How does ten million sound to you?”
Like a funeral dirge, I thought.
“Why tell me all this?” I asked. “Why lay out your case?”
“To give you a chance to save us all a lot of work. The trial, appeals, years of delays.”
“How much?”
“Five million,” he said with a shrug. “Think about it.”
I thought about it. H.T. Patterson had succeeded in making a simple negligence case into a civil version of a murder trial. I hadn’t been ready for it, and now I was beating myself over the head. I had deposed Melinda Tupton. What should I have asked? Did your husband call you and make an excited utterance? No, of course not. But a simple “When was the last time you spoke to your husband?” would have done quite nicely.
The case had turned from the negligence of a social host serving alcohol to a guest-a tricky case for a plaintiff because jurors expect people to take care of themselves-to something far different.
Gross negligence.
Willful and wanton misconduct.
Reckless disregard of human life.
Punitive damages.
Yeah, let old Jake handle the case. He can’t fuck it up. And if he does, the insurance company will cover his ass. Not anymore, Nicky.
I stood up for cross-examination of Melinda Tupton and strode confidently toward the witness stand. Never let them see your fear. I buttoned my navy-blue suitcoat, proving I could walk and accomplish other rudimentary tasks simultaneously. My shirt was white, a tad too tight at the collar, which is what happens when you have an eighteen-and-a-half-inch neck. My tie was burgundy and didn’t have any gravy stains, as far as I could tell. My face was tanned but felt overheated and flushed.
What to ask?
There was the stuff about Florio’s threatened STAPP suit. I could get her to admit that her husband’s main tactic was doing the same thing, threatening suit. These days, it’s sometimes a race to the courthouse to see who files first, the developer or the bird-watchers. But that was a double-edged sword. Tupton’s threats could provide the motive for killing him-or letting him die-even without the mysterious document in the den.
The document.
Whatever it was, Nicky either didn’t know or wouldn’t tell me. I could ignore it, of course, and try to show the jury it didn’t bother me. I could also hope that the tooth fairy would deposit silver dollars under my pillow. On the other hand, by getting into the phone call and the document, I might open the door to redirect examination that could go even further than the so-called excited utterances on whose petard I was now hoisted.
I opted for the low-key approach and hoped I would know what to do when the time came. My questions were so soft, the jury had to lean forward to hear them. You don’t come out of the box swinging wildly at a widow lady. Not unless you want the jury to lynch you and bankrupt your client.
I asked about her education and her job as a public school teacher, gently implying that she was self-supporting and didn’t need a fortune to sustain her. I asked her age, thirty-four, not to be impolite, but to let the jury know that there was still time for her to meet, to marry, and to procreate. I asked-because I knew the answers-whether she had been treated by a psychiatrist for depression after her husband’s death, whether she had missed an excessive amount of work, and whether she needed sleeping pills or other medication.
No, no, and no.
Slowly, I asked one boring question after another, trying to build an impression that might chip away at the mental-anguish claim, the ominous intangible that lights up the scoreboard in wrongful-death cases. The conclusion I wanted the jury to reach was simple: This is a young, strong, intelligent, vital woman who will survive, and in time, prosper. So don’t break the bank at Monte Carlo to help her out.
I established that her husband had been a workaholic who spent little time fixing things around the house, or repairing the cars, so as to reduce the lost-services claim. I purposely did not ask if she had started dating or planned to remarry because it angers jurors, and the answer wouldn’t have helped my case. I made no gestures and accepted every answer kindly and tried to let the jury know that I am a decent-enough fellow who does not strangle kittens or malign widows.
I paused and walked back to the defense table. Nicky Florio looked up at me expectantly. His eyes seemed to be pleading for more. He couldn’t believe I was finished.
Neither could I.
I put all my notes on the table, turned, and moved closer to the witness stand. “On direct examination,” I began, “you testified about a phone call from your husband on August ninth.”
She nodded, prompting the judge to remind her to keep the answers audible for the court reporter.
“During this phone call,” I said, “your husband seemed excited, did he not?”
Melinda Tupton sat with her legs crossed, her hands folded in her lap. “Yes.”
“Was his voice louder than usual?”
“Yes, somewhat.”
“Was he speaking rapidly?”
“Yes.”
“Some of his words slurred?”
“Not slurred, exactly. But he wasn’t as articulate as usual. It’s hard to explain.”
“Did he say he’d been drinking?”
A pause. She was thinking about it. “Yes. He either told me outright, or I asked him, I don’t remember which. Either way, he said he’d been drinking champagne mixed with orange juice.”
“And the reason you think you may have asked him is that he didn’t sound quite like himself?”
“That’s right.”
“Mr. Tupton was not a heavy drinker, was he?”
“No, I already said that when Mr. Patterson asked.”
I smiled my tolerant smile. “I understand, Mrs. Tupton, but this is cross-examination, and your answer may lead us to something else, so please bear with me. The few times you saw your husband drink, he became tipsy, didn’t he?”
Bluffing her.
She couldn’t know if I knew…
Holding my breath now.
The book says you don’t ask a question on cross-examination unless you know the answer. But instinct told me I was right and that Melinda Tupton was honest. The book also says that you try to frame the question to get admissions. You’re allowed to lead the witness. The perfect cross-examination does not elicit a series of long-winded explanations. The answers should be a string of yes’s and no’s, depending how you phrase the questions.
“I’m not sure what you mean,” Melinda Tupton said.
Not knowing where I was going, but figuring the truth would hurt her case. Still, not wanting to lie.
Fake a risk, now. Chide her, let the jury see her reluctance to answer, but be careful not to offend. “Come now, Mrs. Tupton, you know the meaning of the word ‘tipsy.’”
“Objection, argumentative!” H.T. Patterson was not going to imitate a potted plant.
“I’ll rephrase,” I offered before the judge could rule against me. “Could your husband hold his liquor?”
This time the answer came quickly. “No.”
Heaven praise an honest woman.
“So it took only a couple of drinks to make him inebriated?”
“Yes.”
“People respond differently to alcohol, don’t they, Mrs. Tupton?”
“Objection!” Patterson was on his feet again. “Calls for an opinion. Outside the witness’s expertise. No predicate. And irrelevant.”
“Anything else?” Judge Boulton asked.
“It’s a silly question,” Patterson said.
“Overruled. It’s a matter of common observation.”
“I suppose they do,” the witness said.
“Some people get loud and obnoxious. You’ve seen that, haven’t you?”
“Yes.” Her voice barely a whisper.
“Some people get sleepy and quiet.”
“Yes.” Softer still.
“And your husband would become excited and hyper, would speak rapidly, wouldn’t sound quite like himself.”
“Yes.”
Though her voice was faint, I heard the answer, and so did the jurors. But I wanted them to hear it again, so I fibbed. “I’m sorry, Mrs. Tupton. I couldn’t quite hear you. When your husband became inebriated, he would become excited and wouldn’t quite sound like himself, correct?”
“Yes, that’s correct.”
“And when you spoke to him on the phone on August ninth, you knew he’d been drinking, didn’t you?”
“I thought so, yes.”
Time for a quick change of pace. Keep her off-balance. “Your husband wasn’t the kind of man to snoop through someone else’s desk, was he?”
Whack! Patterson slapped the top of the plaintiff’s table. “Objection! Mischaracterizes the evidence. No one snooped through-”
“Denied,” Judge Boulton declared. “The jury heard your direct exam and can make up its own mind.”
I turned back to the witness, my eyes asking her to answer.
“No,” Mrs. Tupton said. “He wasn’t like that.”
“But he changed when he became inebriated, didn’t he?”
“I suppose we all do, to an extent.”
“He became less inhibited?”
“I guess.”
“Did you ask him what it was he had found in Mr. Florio’s den?”
“Yes.”
I walked back to my table and picked up my trusty yellow notepad. I thumbed past my A”s and O’s diagram of a sprint draw play and found my notes of the direct examination. “But he ‘didn’t say exactly what it was.’ Weren’t those your words?”
“I believe so.”
“Just as a drunk driver doesn’t hear the train whistle or see the Stop sign, he may not have even heard you, correct?”
“Objection! Calls for a conclusion.” Patterson had stayed on his feet. No slipping a fastball by him now.
“Sustained,” the judge said.
“At any rate, it was apparently hard for him to concentrate on your end of the conversation, wasn’t it?”
“I don’t know.” Not as good as a yes, but the jury could still get the point.
“And despite your request, he never told you what he allegedly saw.”
“That’s right.”
“And you have no way of knowing what it was, do you?”
“No.”
“It could have been something that had nothing to do with Cypress Estates, something of no concern to the Everglades Society.”
“Well, I doubt that.”
“But you don’t know, do you, ma’am?”
“No.”
“And you have no way of knowing whether he understood what he allegedly saw?”
“He was a very bright man.”
“When he was sober,” I added gratuitously. “How about when he was drunk?”
“He was so seldom…I just don’t know.”
“Did your husband tell you that anyone at the party had forced him to consume alcohol?”
“No, of course not.”
“Did he say anyone treated him badly?”
“No. He said he’d been eating and drinking…”
“So, at a party at which he was drinking champagne and being treated as an honored guest, he exceeded his tolerance for alcohol, and thereafter sneaked into a private room and snooped through a desk…”
I shot a little look at Patterson, needling him.
“…where he found something that excited him,” I continued, “though you have no idea if he understood it, and as you sit here today, you couldn’t begin to describe it, correct?”
“I don’t think he sneaked-”
“No further questions,” I said.
That night in my little coral-rock house in Coconut Grove, I listened to the sounds of the neighborhood possum banging over garbage cans and the occasional whine of a police siren. When Nicky Florio called to reject Patterson’s settlement demand, I asked if he had a counteroffer.
“Yeah, tell him I offer to punch his lights out.”
In the morning, I would inform Patterson that, after due deliberation, we must regretfully decline his thoughtful proposal for settlement.
After grilling some hog snapper over hot coals for my supper, I opened the Florio file and thumbed through a stack of folders until I found what I wanted. In discovery, we had given Patterson a list of the party guests. Like a lot of lawyers, when it came to filing a witness list, Patterson listed everyone who ever passed within ten miles of the locus delicti. He didn’t really intend to call all of them. It’s just a safety net. Rick Gondolier’s name was there, but Patterson had never taken his deposition. When I filed my witness list, I named everyone on Patterson’s list plus some of my own. I had planned to interview Gondolier at the bingo hall but never did it.
I found Gondolier’s number and was ready to call him when my phone rang.
Rick Gondolier.
Funny how things happen that way. Maybe some electromagnetic force in the universe, who knows? Gondolier was in his office at the bingo hall. For some reason, I expected to hear the announcer calling out “B-thirteen” in the background, but it was quiet on the other end.
“I got two subpoenas here,” Rick Gondolier said. “One from you and one from…” He paused, and I heard papers shuffling. “Henry Thackery Patterson.” Calm voice. Deep and resonant. I pictured him. Thick, sun-bleached hair swept back, a hand toying with his little diamond earring. Las Vegas slick.
“You’re a popular guy,” I said. “Patterson is Tupton’s lawyer. He may call you to testify, though I doubt it. He knows he can’t get you to say what he wants.”
“Which is what?”
“That Florio caught Tupton reading an incriminating document in the den and then got him drunk and waltzed him into the cooler. That Nicky either intended to kill him or didn’t care if he died or not. And that maybe you helped him.”
He didn’t take a deep breath or curse or laugh. “Pretty far-fetched, don’t you think so, Mr. Lassiter?”
Unruffled. Maybe that’s the way Gina liked them.
“Yeah. And damn hard to prove. But I may want to put you on the stand, so I have to ask you some questions. Did you see Tupton at the party?”
“Of course. Nicky introduced us out at the pool by the buffet table. Tupton was hitting the mimosas pretty good, trying to be sociable, talking up a storm. Told me how Everglades mosquitoes could kill a horse with enough stings around the eyes. Some anecdotes about how to tell alligator shit from crocodile shit. A real raconteur.”
“What did you say to him?”
“I told him to watch the mimosas, they sneak up on you. He giggled, stumbled around, and grabbed another drink from a tray. Is that useful?”
“Very. What else? I don’t suppose you know anything about a document Tupton saw on Nicky’s desk.”
“Sure I do.”
“What!”
“It was late in the afternoon, but not yet dark. I was talking to Tupton out by the seawall. Like I said, he’d been drinking a lot. His face was flushed and sweaty. Anyway, he excused himself to find a bathroom. I didn’t see him for maybe twenty minutes or so. Then he came back out to the pool-”
“He came back out?”
“Yeah, what of it?”
“Nobody else at the pool saw him once he went into the house.”
“Maybe nobody was looking. He was a pretty nondescript guy. Anyway, he came back out, flapping his jaw about the golf course.”
“What golf course?”
“At Cypress Estates. A championship course.”
“I didn’t know there was one. I didn’t see it in the model.”
“’Course not. It was under wraps. We knew there’d be a blowup from the Everglades Society. Not that there’s anything wrong with it. It’ll be a real showpiece, completely in sync with nature. Nothing else like it in history. The water hazards will be the natural slough, the roughs will be saw grass. Ponds and streams everywhere. Every imaginable bird would inhabit the place. ‘Course, we’d have to regulate the water levels. Can you imagine the development potential for the town houses and condos if we got a PGA event out there on national TV?”
“How did Tupton know about it?”
“He’d found the architect’s drawings on Nicky’s desk. The schematics, the cost estimates, impact studies, and he was running off at the mouth, going ape shit.”
“What’d he say?”
“The usual environmental crap about the dredging and the filling, the canals and locks disturbing the natural water flow, the effect of the pesticides and the fertilizers. I made a joke about a golfer reaching for his lost Titleist in a gator hole, and he went bananas. Whining about gators swallowing golf balls and shitting tees, that kind of thing.”
“That’s all he found, a document about the golf course?”
“Yeah, that’s all he was carrying on about.”
“Anybody else overhear this?”
“I don’t know. When he got started, I sort of steered him back along the seawall toward the bay. Like I said, we’re not publicizing the golf course. We don’t plan to announce it until all the financing is in place and we’re ready to go.”
Something wasn’t ringing true, but what?
“Why didn’t Nicky mention this to me?”
“Guess ‘cause I didn’t mention it to him.”
“Tupton dies at the house, your partner gets sued, and you don’t mention this conversation?”
“Yeah, it didn’t seem important. Is it?”
Later, sometime after midnight, I was lying in the hammock between my live oak trees, listening to the warble of a mockingbird calling its mate, or at least looking for a one-night stand. I wondered what Clarence Darrow would do. He once said there was no such thing as justice, in or out of court. That didn’t help any, so I had a beer. A sixteen-ounce Grolsch with the porcelain stopper. That didn’t help either, so I had another.
I thought of Melinda Tupton, a good woman by any standard. I thought of Gina and tried to pretend I didn’t miss her. What was the hold she had on me?
I thought of Rick Gondolier. I wouldn’t trust him as far as I could throw Hulk Hogan. What kind of guy sleeps with his partner’s wife?
Probably the same kind of guy who sleeps with his client’s wife.
And I thought of Nicky Florio. He clams up, but his partner talks. What could be so secret about the golf course? And what was so terrible about it? If they’re going to bulldoze the marshy hammocks and mangroves for the condos and the shops, what difference does a golf course make?
Not much, except as a symbol of man’s callousness. Destroying nature for a manicured playground of the rich.
A nightmare. That’s what Tupton told his wife about it. Worse than anything I had imagined.
It didn’t fit. Way too strong. He already knew about the proposed development. It was a whole town, for crying out loud.
The condos, the shops, the town, it’s all a cover.
But the town can’t be a cover for a golf course. Maybe for something else, but not that. Sorry, Gondo, but I think you’re making it up. Maybe there was a golf course planned, but in my heart, I know that’s not what Tupton saw. But is that my job? Don’t I have to present the evidence as it rolls in the door?
And what a piece of evidence. Two pieces, really. First, Gondolier told Tupton to watch how much he drank, and Tupton ignored the advice. Talk about a plaintiff’s comparative negligence. Second, Gondolier witnessed Tupton’s drunken overreaction to the golf-course plans. No wonder the guy ended up unconscious in the wine cellar. He was out of control.
Hey, Gondo, you’re a real gamesaver. That phone call to me. How timely. Wonder who called you earlier in the evening. Nicky probably figured I wouldn’t use evidence if I thought it was phony, so the two of you cooked up this little charade.
I had another beer and began thinking abstract thoughts, something that’s not my strong point. Words like ethics and perjury and conflicts of interest fluttered across the beer-soaked landscape of my mind. I like to win, but I like to win fair and square. A lawyer isn’t supposed to use perjured testimony. You can look it up. But who made me a mind reader? I could put Rick Gondolier on the stand, and if the jury didn’t believe him, we would lose.
Justice would be done. Fake that, Clarence Darrow.
But the jury might believe him. And we would win. But then, we deserved to, because if the jury believed him, we must be right. Isn’t that the way the system works, or is that circular reasoning?
I needed another beer to answer the question. I crawled out of the hammock to get one, then slipped a Jimmy Buffet disc into the machine. I sang along, not more than half an octave off-key, and twanged an imaginary guitar, and by the time Jimmy got to “Why Don’t We Get Drunk and Screw?” a quiniela I found to be physically improbable, I was drifting off toward a restless sleep.