The Litigators

CHAPTER 36


Five days before the trial, Judge Seawright reconvened the lawyers in his courtroom for the final pretrial conference. The three stooges looked remarkably put together and professional, thanks to David’s efforts. He had insisted they wear dark suits, white shirts, ties that were anything but flashy, and black shoes. For Oscar, this had not been a serious problem since he had always dressed the part of a lawyer, albeit one from the streets. For David, it was second nature because he had a closet full of expensive suits from his days at Rogan Rothberg. For Wally, though, it had been more of a challenge. David found a men’s store with moderately priced clothing, and he had actually gone with Wally to make selections and supervise the fitting. Wally had bitched and bickered throughout the ordeal, and he nearly bolted when the final tally came to $1,400. Eventually, he put it on a credit card, and he and David both held their breath when the clerk processed it. The charges cleared, and they hurried away with bags of shirts, ties, and one pair of black wing tips.

On the other side of the courtroom, Nadine Karros, in Prada, was surrounded by half a dozen of her attack dogs, all spiffed up in Zegna and Armani suits and looking like ads from glossy magazines.

As was his custom, Judge Seawright had not released the list of prospective jurors. The other judges released their lists weeks before trial, and this invariably set in motion a frenzied investigation by highly paid jury consultants for both sides. The bigger the case, the more money was spent probing into the backgrounds of the jury pool. Judge Seawright detested these shadowy maneuverings. Years earlier, in one of his cases, there had been allegations of improper contact by investigators. Prospective jurors had complained of being watched, followed, photographed, and even approached by smooth-talking strangers who knew too much about them.

Judge Seawright called the meeting to order, and his clerk handed one list to Oscar and another to Nadine Karros. There were sixty names, all of which had been prescreened by the judge’s staff to eliminate any juror who (1) was taking or had ever taken Krayoxx or any other cholesterol medication; (2) had a family member, relative, or friend who was taking or had ever taken Krayoxx; (3) had ever been represented by a lawyer remotely connected to the case; (4) had ever been involved in a lawsuit involving a drug or product alleged to be defective; (5) had read a newspaper or magazine article about Krayoxx and the litigation surrounding it. The four-page questionnaire went on to cover other areas that might disqualify a prospective juror.

In the next five days, Rogan Rothberg would spend $500,000 delving into the backgrounds of the jury pool. Once the trial started, they would have three highly paid consultants scattered around the courtroom observing the jury as it reacted to the testimony. Finley & Figg’s consultant cost $25,000 and was brought on board only after another firm fight. She and her associates would do their best to check backgrounds and profile the model juror, and she would observe the selection process. Her name was Consuelo, and she quickly realized that she had never worked with such inexperienced attorneys.

It had been determined, through an unpleasant and often testy process, that Oscar would take the role of lead counsel and do most of the footwork in the courtroom. Wally would observe, offer advice, take notes, and do whatever the second-in-command was supposed to do, though none of them were certain what this would entail. David would be in charge of the research, a monumental task since this was the first federal trial for all three and everything had to be researched. Through the course of numerous arduous strategy sessions around the table, David had learned that Oscar’s last jury trial had been in state court eight years earlier, a relatively simple who-ran-the-red-light car accident that he had lost. Wally’s record was even more modest—a slip-and-fall case against a Walmart in which the jury deliberated fifteen minutes before finding for the store, and an almost forgotten car wreck up in Wilmette that had also ended badly.

When Oscar and Wally locked horns over strategy, they had turned to David because he was the only one there. His votes had been crucial, a fact that disturbed him greatly.

After the lists were handed over, Judge Seawright delivered a stern lecture about getting close to the jury pool. He explained that when the prospective jurors arrived Monday morning, he would grill them on the subject of improper contact. Did they feel as if someone had been prying into their lives, their backgrounds? Had they been followed, photographed? Any violations, and he would be a very unhappy judge.

Moving on, he said, “No Daubert challenges have been filed, so it’s safe to say that neither side wishes to challenge the other’s experts, am I correct?”

Neither Oscar nor Wally was aware of the Daubert rule, which had been around for years. Daubert allowed each side to challenge the admissibility of the other’s expert testimony. It was standard procedure in federal cases and was followed in about half of the states. David had stumbled across it ten days earlier when he was watching a trial down the hall. After some quick research, he realized that Nadine Karros could probably exclude their experts before the trial even started. The fact that she had not requested a Daubert hearing meant only one thing—she wanted their experts on the stand so she could castigate them before the jury.

After David explained the rule to his partners, the three made the decision not to file Daubert challenges against the experts for Varrick. Their reason was as simple as Nadine’s but on the reverse side. Her experts were so experienced, credentialed, and qualified that a Daubert challenge would be fruitless.

“That’s correct, Your Honor,” she replied.

“That’s correct,” Oscar said.

“Unusual, but then I’m not looking for any extra work.” The judge shuffled some papers and whispered to a clerk. “I see no pending motions, nothing left to do but start the trial. The jurors will be here at 8:30 Monday morning and we will begin promptly at 9:00 a.m. Anything else?”

Nothing from the lawyers.

“Very well. I commend both sides on an efficient discovery process and unusual cooperation. I intend to oversee a fair and speedy trial. Court’s adjourned.”

The Finley & Figg team quickly gathered its files and papers and left the courtroom. On the way out, David tried to imagine what the place would look like in five days, with sixty prospective and nervous jurors, moles from other mass tort law firms on hand for a bloodletting, reporters, stock analysts, jury consultants trying to blend in, smug corporate honchos from Varrick, and the usual courthouse observers. The knot in his stomach made breathing difficult. “Just survive it,” he kept telling himself. “You’re only thirty-two years old. This will not be the end of your career.”

In the hallway, he suggested they split up and spend a few hours watching other trials, but Oscar and Wally just wanted to leave. So David did what he’d been doing for the past two weeks; he eased into a tense courtroom and took a seat three rows behind the lawyers.

The more he watched, the more fascinated he became with the art of a trial.