I GO TO THE MALL AT LEAST THREE TIMES A week now, usually in time for dinner. In fact, I have my own table on the promenade, next to the railing overlooking the ice rink, where I eat chicken chow mein from Wong's and watch the small children skate below. The table also gives me a safe view of the pedestrian traffic, so I won't get caught. She's walked by only once, alone and going nowhere in particular, it seemed. I wanted so desperately to ease beside her, take her hand and lead her off into a chic little boutique where we could hide between the racks and talk about something.
This is the largest mall for many miles, and at times it's quite crowded. I watch the people bustle about and wonder if any of them might be on my jury. How do I find ninety-two people out of a million?
Impossible. I do the best with what's available. Deck and I quickly made flash cards out of the juror questionnaires, and I keep a collection with me at all times.
I sit here tonight, on the promenade, glancing at the people walking the mall, then flashing another card from
my stack: R. C. Badley is the name in bold letters. Age forty-seven, white male, plumber, high school education, lives in a southeast Memphis suburb. I flip the card to make sure my memory is perfect. It is. I've done this so much I'm already sick of these people. Their names are tacked to a wall in my office, and I stand there for at least an hour a day studying what I've already memorized. Next card: Lionel Barton, age twenty-four, black male, part-time college student and sales clerk at an auto parts store, lives in an apartment in South Memphis.
My model juror is young and black with at least a high school education. It's ancient wisdom that blacks make better plaintiff's jurors. They feel for the underdog and distrust white corporate America. Who can blame them?
I have mixed feelings about men versus women. Conventional wisdom says that women are stingier with money because they feel the pinch of the family finances. They're less likely to return a large award because none of the money will go to their personal checkbooks. But Max Leuberg tends to favor women in this case because they're mothers. They'll feel the pain of a lost child. They'll identify with Dot, and if I do my job well and get them properly inflamed, they'll try to put Great Benefit out of business. I think he's right.
So, if I had my way, I'd have twelve black women, preferably all with children.
Deck, of course, has another theory. He's afraid of blacks because Memphis is so racially polarized. White plaintiff, white defendant, everybody's white here but the judge. Why should the blacks care?
This is a perfect example of the fallacy of stereotyping jurors by race, class, age, education. The fact is, no one can predict what anybody might do in jury deliberations. I've read every book in the law library about jury selec-
tion, and I'm as uncertain now as I was before I read them.
There is only one type of juror to avoid in this case: the white male corporate executive. These guys are deadly in punitive damage cases. They tend to take charge of the deliberations. They're educated, forceful, organized and don't care much for trial lawyers. Thankfully, they're also usually too busy for jury duty. I've isolated only five on my list, and I'm sure each will have a dozen reasons to be excused. Kipler, under different circumstances, might give them a hard time. But Kipler, I strongly suspect, doesn't want these guys either. I'd wager my formidable net worth that His Honor wants black faces in the jury box.
I'M SURE that if I stay in this business I'll one day think of a dirtier trick, but one's hard to imagine now. I've been thinking about it for weeks, and finally mentioned it to Deck several days ago. He went berserk.
If Drummond and his gang want to listen to my phone, then we've decided to give them an earful. We wait until late in the afternoon. I'm at the office. Deck's around the corner at a pay phone. He calls me. We've rehearsed this several times, even have a script.
"Rudy, Deck here. I finally found Dean Goodlow."
Goodlow is a white male, age thirty-nine, college education, owns a carpet cleaning franchise. He's a zero on our scale, definitely a juror we don't want. Drummond would love to have him.
"Where?" I ask.
"Caught him at the office. He's been out of town for a week. Helluva nice guy. We were dead wrong about him. He's not at all fond of insurance companies, says he argues with his all the time, thinks they need to be severely regulated. I gave him the facts in our case, and, boy, did
he get mad. He'll make a great juror." Deck's delivery is a bit unnatural, but to the uninformed he sounds believable. He's probably reading this.
"What a surprise," I say firmly and crisply into the phone. I want Drummond to grab every syllable.
The thought of lawyers talking to potential jurors before the selection process is incredible, almost unbelievable. Deck and I worried that our ruse might be so absurd that Drummond would know we were faking. But who would've thought one lawyer would eavesdrop on his opponent by means of an illegal wiretap? Also, we decided Drummond would fall for our ploy because I'm just an ignorant rookie and Deck is, well, Deck is nothing but a humble paralawyer. We just don't know any better.
"Was he uneasy about talking?" I ask.
"A little. I told him what I've told the rest of them. I'm just an investigator, not a lawyer. And if they don't tell anybody about our conversation, then nobody'll get in trouble."
"Good. And you think Goodlow is with us?"
"No doubt. We gotta get him."
I ruffle some paper near the phone. "Who's left on your list?" I ask loudly.
"Lemme see." I can hear Deck ruffling papers on his end. We're quite a team. "I've talked to Dermont King, Jan DeCell, Lawrence Perotti, Hilda Hinds and RaTilda Browning."
With the exception of RaTilda Browning, these are white people we don't want on our jury. If we can pollute their names enough, Drummond will try everything to exclude them.
"What about Dermont King?" I ask
"Solid. Once had to throw an insurance adjuster out of his house. I'd give him a nine."
"What about Perotti?"
"Great guy. Couldn't believe an insurance company could actually kill a person. He's with us."
"Jan DeCell?"
More paper ruffling. "Let's see. A very nice lady who wouldn't talk much. I think she was afraid it wasn't right or something like that. We talked about insurance companies and such, told her Great Benefit's worth four hundred million. I think she'll be with us. Give her a five."
It's difficult to keep a straight face. I press the phone deeper into my flesh.
"RaTilda Browning?"
"Radical black gal, no use for white people. She asked me to leave her office, works at a black bank. She won't give us a dime."
A long pause as Deck rattles papers. "What about you?" he asks.
"I caught Esther Samuelson at home about an hour ago. Very pleasant lady, in her early sixties. We talked a lot about Dot and how awful it would be to lose a child. She's with us."
Esther Samuelson's late husband was an officer with the Chamber of Commerce for many years. Marvin Shan-kle told me this. I cannot imagine the type of case I'd want to try with her on the jury. She'll do anything Drum-mond wants.
"Then I found Nathan Butts in his office. He was a little surprised to learn that I was one of the lawyers involved in the case, but he chilled out. Hates insurance companies."
If Drummond's heart is still beating at this point, there's only a faint pulse. The thought of me, the lawyer, and not my investigator out beating the bushes and discussing the facts of the case with potential jurors is enough to blow an artery. By now, however, he's realized that there is absolutely nothing he can do about it. Any
response on his part will reveal the fact that he can listen to my phone calls. This would get him disbarred immediately. Probably indicted as well.
His only recourse is to stay quiet, and try to avoid these people whose names we're tossing around.
"I've got a few more," I say. "Let's chase 'em until ten or so, then meet here."
"Okay," Deck says, tired, his acting much better now.
We hang up, and fifteen minutes later the phone rings. A vaguely familiar voice says, "Rudy Baylor, please."
"This is Rudy Baylor."
"This is Billy Porter. You stopped by the shop today."
Billy Porter is a white male, wears a tie to work and manages a Western Auto. He's a weak one on our scale to ten. We don't want him.
"Yes, Mr. Porter, thanks for calling."
It's actually Butch. He agreed to help us with a brief cameo. He's with Deck, both probably huddled over the pay phone trying to stay warm. Butch, ever the consummate professional, went to the Western Auto and talked to Porter about a set of tires. He's trying his best to imitate his voice. They'll never see each other again.
"What do you want?" Billy/Butch demands. We told him to appear gruff, then come around quickly.
"Yes, well, it's about the trial, you know, the one you got a summons for. I'm one of the lawyers."
"Is this legal?"
"Of course it's legal, just don't tell anybody. Look, I represent this little old lady whose son was killed by a company called Great Benefit Life Insurance."
"Killed?"
"Yep. Kid needed an operation, but the company wrongfully denied the treatment. He died about three months ago of leukemia. That's why we've sued. We really need your help, Mr. Porter."
"That sounds awful."
"Worse case I've ever seen, and I've handled lots of them. And they're guilty as hell, Mr. Porter, pardon my language. They already offered two hundred thousand bucks to settle, but we're asking for a lot more. We're asking for punitive damages, and we need your help."
"Will I get picked? I really can't miss work."
"We'll pick twelve out of about seventy, that's all I can tell you. Please try to help us."
"All right. I'll do what I can. But I don't want to serve, you understand."
"Yes sir. Thanks."
DECK COMES TO THE OFFICE, where we eat a sandwich. He leaves twice more during the evening and calls me back. We kick around more names, folks we allegedly talk to, all of whom are now most anxious to punish Great Benefit for its misdeeds. We give the impression that both of us are out there on the streets, knocking on doors, pitching our appeals, violating enough ethical canons to get me disbarred for life. And all this horribly sleazy stuff is taking place the night before the jurors gather to be examined!
Of the sixty-odd people who'll make the next round of cuts and be available for questioning, we've managed to cast heavy doubts on a third of them. And we carefully selected the ones we are most fearful of.
I'll bet Leo Drummond does not sleep a wink tonight.