The Runaway Jury

The Runaway Jury Page 2

The beach house was modern and sprawling and built without the benefit of a beach. A whiteboard pier disappeared into the still and weedy waters of the bay, but the nearest sand was two miles away. A twenty-foot fishing boat was moored at the pier. The house had been leased from an oil man in New Orleans-three months, cash, no questions. It was being temporarily used as a retreat, a hiding place, a sleep-over for some very important people.

On a deck high above the water, four gentlemen enjoyed drinks and managed small talk while waiting for a visitor. Though their businesses normally required them to be bitter enemies, they had played eighteen holes of golf this afternoon, then eaten shrimp and oysters off the grill. Now they drank and looked into the black waters below them. They loathed the fact that they were on the Gulf Coast, on Friday night, far away from their homes.

But business was at hand, crucial affairs that necessitated a truce and made the golf almost pleas-ant. Each of the four was the CEO of a large public corporation. Each corporation was in the Fortune 500, each was traded on the NYSE. The smallest had sales last year of six hundred million, the largest, four billion. Each had record profits, large dividends, happy stockholders, and CEO's who earned millions for their performances.

Each was a conglomerate of sorts with different divisions and a multitude of products, fat ad budgets, and insipid names such as Trellco and Smith Greer, names designed to deflect attention from the fact that at the core they were little more than tobacco companies. Each of the four, the Big Four as they were known in financial circles, could easily trace its roots to nineteenth-century tobacco brokers in the Carolinas and Virginia. They manufactured cigarettes-together, ninety-eight percent of all cigarettes sold in the United States and Canada. They also manufactured such things as crowbars and corn chips and hair dye, but dig just below the surface and you'd find that their profits came from cigarettes. There had been mergers and name changes and various efforts at preening for the public, but the Big Four had been thoroughly isolated and vilified by consumer groups, doctors, even politicians.

And now the lawyers were after them. The survivors of dead people out there were actually suing and asking for huge sums of money because cigarettes cause lung cancer, they claimed. Sixteen trials so far, and Big Tobacco had won them all, but the pressure was mounting. And the first time a jury handed out a few million to a widow, then all hell would break loose. The trial lawyers would go berserk with their nonstop advertising, begging smokers and the survivors of smokers to sign up now and sue while the suing was good.

As a rule, the men talked of other matters when they were alone, but the liquor loosened their tongues. The bitterness began to ooze forth. They leaned on the railing of the deck, stared at the water, and began to curse lawyers and the American tort system. Each of their companies spent millions in Washington on various groups trying to reform tort laws so that responsible companies like themselves could be protected from litigation. They needed a shield from such senseless attacks by alleged victims. But, it seemed, nothing was working. Here they were somewhere in the backwaters of Mississippi sweating out yet another trial.

In response to the growing assault from the courts, the Big Four had created a pool of money known simply as The Fund. It had no limits, left no trail. It did not exist. The Fund was used for hardball tactics in lawsuits; to hire the best and meanest defense lawyers, the smoothest experts, the most sophisticated jury consultants. No restrictions were placed on what The Fund could do. After sixteen victories, they sometimes asked, among themselves, if there was anything The Fund couldn't do. Each company siphoned off three million a year and routed the cash circuitously until it landed in The Fund. No bean counter, no auditor, no regulator had ever caught wind of the slush money.

The Fund was administered by Rankin Fitch, a man they collectively despised but nonetheless listened to and even obeyed when necessary. And they waited for him. They gathered when he said to gather. They dispersed and returned at his command. They tolerated being at his beck and call as long as he was winning. Fitch had directed eight trials without a loss. He'd also engineered two mistrials, but of course there was no proof of this.

An assistant stepped onto the deck with a tray of fresh drinks, each mixed to exact specifications. The drinks were being lifted from the tray when someone said, "Fitch is here." In unison the drinks shot upward then downward as the four knocked back a stiff belt.

They quickly stepped into the den while Fitch was parking Jose just outside the front door. An assistant handed him a mineral water, no ice. He never drank, though in an earlier life he'd consumed enough to float a barge. He didn't say thanks to the assistant, didn't acknowledge his presence, but moved to the faux fireplace and waited for the four to gather around him on the sofas. Another assistant ventured forth with a platter of leftover shrimp and oysters, but Fitch waved him off. There was a rumor that he sometimes ate, but he'd never been caught in the process. The evidence was there, the thick chest and ample waistline, the fleshy roll under his goatee, the general squattiness of his frame. But he wore dark suits and kept the jackets buttoned, and did a fine job of carrying his bulk with importance.

"A brief update," he said when he felt he'd waited long enough for the honchos to settle in. "At this moment, the entire defense team is working nonstop, and this will continue through the weekend. Jury research is on schedule. Trial counsel are ready. All witnesses are prepped, all experts are already in town. Nothing unusual has yet to be encountered."

There was a pause, just a little gap as they waited long enough to make sure Fitch had finished for a bit.

"What about those jurors?" asked D. Martin Jankle, the most nervous of the bunch. He ran U-Tab, as it was formerly known, an abbreviation for an old company which for years was called Union Tobacco but after a marketing cleansing was now traded as Pynex. The lawsuit at hand was Wood v. Pynex, so the roulette wheel had placed Jankle on the hot seat. Pynex was number three in size with sales of almost two billion last year. It also happened to possess, as of the last quarter, the largest cash reserves of any of the four. The timing of this trial was lousy. With a bit of bad luck, the jury might soon be shown blowups of Pynex's financials, nice neat columns which would indicate in excess of eight hundred million in cash.

"We're working on them," Fitch said. "We have soft data on eight. Four of whom might either be dead or gone. The other four are alive and expected to be in court Monday."

"One rogue juror can be poison," Jankle said. He'd been a corporate lawyer in Louisville before joining U-Tab, and he always insisted on reminding Fitch that he knew more about the law than the other three.

"I'm well aware of that," Fitch snapped.

"We have to know these people."

"We're doing our best. We can't help it if the jury lists here are not as current as other states'."

Jankle took a long drink and stared at Fitch. Fitch, after all, was a well-paid security thug, nothing remotely near the level of CEO of a major company. Call him whatever you want - consultant, agent, contractor - fact was, he worked for them. Sure he had some clout right now, liked to swagger and bark because he was pushing the buttons, but dammit he was just a glorified thug. These thoughts Jankle kept to himself.

"Anything else?" Fitch demanded of Jankle, as if his initial inquiry were thoughtless, as though if he had nothing productive to say then maybe he should just keep his mouth shut.

"Do you trust these lawyers?" Jankle asked, not for the first time.

"We've covered this before," Fitch answered.

"We can certainly cover it again if I choose."

"Why are you worried about our lawyers?" Fitch asked.

"Because, well, because they're from around here."

"I see. And you think it'd be wise to bring in some New York lawyers to talk to our jury? Maybe some from Boston?"

"No, it's just that, well, they've never defended a tobacco case."

"There's never been a tobacco case on the Coast before. Are you complaining?"

"They just worry me, that's all."

"We've hired the best in this area," Fitch said. "Why do they work so cheap?"

"Cheap. Last week you were worried about defense costs. Now our lawyers are not charging enough. Make up your mind."

"Last year we paid four hundred bucks an hour for Pittsburgh lawyers. These guys work for two hundred. That worries me."

Fitch frowned at Luther Vandemeer, CEO of Trellco. "Am I missing something here?" he asked. "Is he serious? We're at five million bucks for this case, and he's afraid I'm pinching pennies." Fitch waved in the direction of Jankle. Vandemeer smiled and took a drink.

"You spent six million in Oklahoma," Jankle said.

"And we won. I don't recall any complaints after the verdict came in."

"I'm not complaining now. I'm just voicing a concern."

"Great! I'll go back to the office, gather all the lawyers together, and tell them my clients are upset about the bills. I'll say, 'Look, fellas, I know you're getting rich off us, but that's not good enough. My clients want you to bill more, okay. Stick it to us. You guys are working too cheap.' That sound like a good idea?"

"Relax, Martin," Vandemeer said. "The trial hasn't started yet. I'm confident we'll be sick of our own lawyers before we leave here."

"Yeah, but this trial's different. We all know that." Jankle's words trailed off as he lifted his glass. He had a drinking problem, the only one of the four. His company had quietly dried him out six months ago, but the pressure of the lawsuit was too much. Fitch, a former drunk himself, knew Jankle was in trouble. He would be forced to testify in a few weeks.

As if Fitch didn't have enough to worry about, he was now saddled with the burden of keeping D. Martin Jankle sober until then. Fitch hated him for his weakness.

"I assume the plaintiff's lawyers are ready," asked another CEO.

"Safe assumption," Fitch said with a shrug. "There are enough of them."

Eight, at last count. Eight of the largest tort firms in the country had allegedly put up a million bucks each to finance this showdown with the tobacco industry. They had picked the plaintiff, the widow of a man named Jacob L. Wood. They had picked the forum, the Gulf Coast of Mississippi, because the state had beautiful tort laws and because juries in Biloxi could at times be generous. They hadn't picked the judge, but they couldn't have been luckier. The Honorable Frederick Harkin had been a plaintiff's lawyer before a heart attack sent him to the bench. It was no ordinary tobacco case, and everyone in the room knew it.

"How much have they spent?"

"I'm not privy to that information," Fitch said. "We've heard rumors that their war chest may not be as loaded as advertised, maybe a small problem collecting the up-front money from a few of the lawyers. But they've spent millions. And they have a dozen consumer groups hanging around ready to pitch in advice."

Jankle rattled his ice, then drained the last drop of liquid from his glass. It was his fourth drink. The room was silent for a moment as Fitch stood and waited and the CEO's watched the carpet.

"How long will it last?" Jankle finally asked.

"Four to six weeks. Jury selection goes fast here. We'll probably seat a jury by Wednesday."

"Allentown lasted three months," Jankle said.

"This ain't Kansas, Toto. You want a three-month trial?"

"No, I was just, well . . ." Jankle's words trailed off sadly.

"How long should we stay in town?" Vandemeer said, instinctively glancing at his watch.

"I don't care. You can leave now, or you can wait until the jury is picked. You all have those big jets. If I need you, I can find you." Fitch set his water on the mantel and looked around the room. He was suddenly ready to leave. "Anything else?"

Not a word.

"Good."

He said something to Jose as he opened the front door, then he was gone. They stared in silence at the posh carpet, worrying about Monday, worrying about lots of things. Jankle, his hands quivering slightly, finally lit a cigarette.

WENDALL ROHR made his first fortune in the suing game when two offshore oil workers were burned on a Shell rig in the Gulf. His cut was almost two million, and he quickly considered himself a trial lawyer to be reckoned with. He spread his money around, picked up more cases, and by the age of forty had an aggressive firm and a decent reputation as a courtroom brawler. Then drugs, a divorce, and some bad investments ruined his life for a while, and at the age of fifty he was checking titles and defending shoplifters like a million other lawyers. When a wave of asbestos litigation swept the Gulf Coast, Wendall was once again in the right place. He made his second fortune, and vowed never to lose it. He built a firm, refurbished a grand suite of offices, even found a young wife. Free of booze and pills, Rohr directed his considerable energies into suing corporate America on behalf of injured people. On his second trip, he rose even quicker in trial lawyer circles. He grew a beard, oiled his hair, became a radical, and was beloved on the lecture circuit.

Rohr met Celeste Wood, the widow of Jacob Wood, through a young lawyer who had prepared Jacob's will in anticipation of death. Jacob Wood died at the age of fifty-one after smoking three packs a day for almost thirty years. At the time of his death, he was a production supervisor in a boat factory, earning forty thousand a year.

In the hands of a less ambitious lawyer, the case appeared to be nothing more than a dead smoker, one of countless others. Rohr, though, had networked his way into a circle of acquaintances who were dreaming the grandest dreams ever known to trial lawyers. All were specialists in product liability, all had made millions collecting on breast implants, Dalkon Shields, and asbestos. Now they met several times a year and plotted ways to mine the mother lode of American torts. No legally manufactured product in the history of the world had killed as many people as the cigarette. And their makers had pockets so deep the money had mildewed.

Rohr put up the first million, and was eventually joined by seven others. With no effort, the group quickly recruited help from the Tobacco Task Force, the Coalition for a Smoke Free World, and the Tobacco Liability Fund, plus a handful of other consumer groups and industry watchdogs. A plaintiff's trial council was organized, not surprisingly with Wendall Rohr as the chairman and designated point man in the courtroom. Amid as much fanfare as it could generate, Rohr's group had filed suit four years earlier in the Circuit Court of Harrison County, Mississippi.

According to Fitch's research, the Wood case against Pynex was the fifty-fifth of its kind. Thirty-six had been dismissed for a multitude of reasons. Sixteen had gone to trial and ended with verdicts in favor of the tobacco companies. Two had ended in mistrials. None had been settled. Not one penny had ever been paid to a plaintiff in a cigarette case.

According to Rohr's theory, none of the other fifty-four had been pushed by so formidable a plaintiff's group. Never had the plaintiff been represented by lawyers with enough money to level the playing field. Fitch would admit this.

Rohr's long-term strategy was simple, and brilliant. There were a hundred million smokers out there, not all with lung cancer but certainly a sufficient number to keep him busy until retirement. Win the first one, then sit back and wait for the stampede. Every main street harn-and-egger with a grieving widow would be calling with lung cancer cases. Rohr and his group could pick and choose.

He operated from a suite of offices which took the top three floors of an old bank building not far from the courthouse. Late Friday night, he opened the door to a dark room and stood along the back wall as Jonathan Kotlack from San Diego operated the projector. Kotlack was in charge of jury research and selection, though Rohr would do most of the questioning. The long table in the center of the room was littered with coffee cups and wadded paper. The people around the table watched bleary-eyed as another face flashed against the wall.

Nelle Robert (pronounced Roh-bair), age forty-six, divorced, once raped, works as a bank teller, doesn't smoke, very overweight and thus disqualified under Rohr's philosophy of jury selection. Never take fat women. He didn't care what the jury experts would tell him. He didn't care what Kotlack thought. Rohr never took fat women. Especially single ones. They tended to be tightfisted and unsympathetic.

He had the names and faces memorized, and he couldn't take any more. He had studied these people until he was sick of them. He eased from the room, rubbed his eyes in the hallway, and walked down the stairs of his opulent offices to the conference room, where the Documents Committee was busy organizing thousands of papers under the supervision of Andre Durond from New Orleans. At this moment, at almost ten o'clock on Friday night, more than forty people were hard at work in the law offices of Wendall H. Rohr.

He spoke to Durond as they watched the paralegals for a few minutes. He left the room and headed for the next with a quicker pace now. The adrenaline was pumping. The tobacco lawyers were down the street working just as hard.

Nothing rivaled the thrill of big-time litigation.