The judge took a pair of tortoiseshell half-frames from a drawer in the end table and opened the thick manila folder on her lap. Briskly leafing through the pages, she separated a single sheet from the pile. “I see you are visiting us from out of state, Mr. Seeley.” She handed him the document. It was the printed form used for admission pro hac vice. “You will find us very hospitable here in the Northern District.” She looked at him over the half-frames. “But if you want to be admitted, your motion will have to be in the proper form.”
Seeley looked at the paper and immediately saw the mistake. Where the form asked for the name of the highest court of the state in which he was admitted to practice, whoever filled it out had typed in “New York Supreme Court.” California calls its high court the Supreme Court, but in New York it's the Court of Appeals. Seeley glanced at Palmieri, who had taken a legal pad from his briefcase and was writing rapidly.
“Our requirements are modest, Mr. Seeley, but punctilio, you will agree, is important.”
Fischler was looking at the American flag across the room, jaw clamped to hide her amusement. Next to Seeley, Barnum put a hand to his mouth and cleared his throat, glaring at Palmieri. The coarse bully of two days ago was today disguised in a pinstriped suit and rep tie.
Seeley thought to say something clever, but decided to be safe. “I apologize, Judge. It was obviously an oversight.” Irritation leaked out of his words. “I can assure you, we will have our motion in correct form no later than two this afternoon.”
“The purpose of this meeting, Mr. Seeley, is to resolve all outstanding motions now, so we can get this trial under way.”
The judge was letting him know that she had authority over him, and that it was Seeley's job to accept that. One of President Clinton's last judicial appointments, she had been a class action plaintiff's lawyer, specializing in securities fraud lawsuits. It wasn't Seeley's field, but he knew that courts had adopted several of the innovative theories she'd advanced for her shareholder clients, altering the balance of power in these lawsuits. She was the savior of the little guy while making a lawyer-sized fortune for herself. Seeley also knew that Farnsworth was toying with him; she would grant the motion even if he didn't hand in the papers until just before jury selection began.
Farnsworth turned to the chair across from Seeley. “Ms. Fischler?”
“If Mr. Seeley's proposal is acceptable to the court, Your Honor, we have no problem with it.”
“Fine. You have until two o'clock this afternoon.” Farnsworth was continuing through the papers in the file. “Do we have all the stipulations, or are there some surprises for me here, too?”
“No surprises, Your Honor.”
“None,” Seeley said.
“I see here that your client is stipulating priority of invention, Ms. Fischler.”
“That's right, Your Honor. My client is aware of the court's interest in efficiency, and we thought it would help to move the trial along.”
Fawning like this, Seeley knew, won a lawyer nothing but a judge's disdain. Thorpe would not have said it.
The judge looked over her glasses at the Swiss lawyer. “The court is very grateful, Mr. Dusollier. I'm sure your employer had its reasons.”
The Swiss lawyer adjusted his tie and nodded, but said nothing.
The judge removed several paper-clipped pages from the folder. “I've looked at both of your witness lists-”
Fischler spoke before the judge could finish. “We have no changes, Your Honor.”
Seeley said, “We have one change, Judge.”
Farnsworth's frown told Seeley that he had misstepped. She wasn't interested in his witness lineup. She had been heading in a different direction when Fischler interrupted. Barnum either didn't see or didn't understand, and he leaned into Seeley. His whisper was hoarse. “What change? You didn't ask me.” Seeley smelled the peppermint on his breath.
“The reason I was looking at your lists”-Farnsworth turned to include Fischler-“was that both of you, but particularly your client, Ms. Fischler, are going to have to thin out your witnesses. I've decided that we can try this case in two weeks. That means each of you has twenty-four hours of trial time to spend however you want, on opening, direct, cross, and closing argument. But unless your witnesses talk very fast, you're going to have to do some cutting.”
Palmieri looked at Seeley before speaking. “We understood from our last meeting, Your Honor, that we had three weeks for trial, thirty-six hours for each side.”
“Well, I changed my mind. I have three months of cases backed up on my calendar, all of them ready for trial. No one seems interested in settling their cases.”
Fischler said, “All of our witnesses are prepared and ready to go, Your Honor. Each one's testimony is connected to the others'.”
“I'm sure your witnesses have been well-prepared and orchestrated, Ms. Fischler, and I'm also sure that they have been well paid by your client. But life is short and each of you can cut out three or four witnesses without inflicting a mortal wound on due process of law.”
Dusollier whispered something to Fischler, and she shook her head vigorously. “I was thinking about the record on appeal, Your Honor.”
“I appreciate your concern, Ms. Fischler, but if there's an appeal, this case goes to the federal circuit and the record will be just fine there. They haven't reversed me yet. I'll want to see your new witness lists Friday morning.”
Seeley had no problem with a two-week trial. But he should have told Barnum about his decision to drop Steinhardt as their lead witness, and it could take some time to bring the general counsel to where he would agree to Steinhardt's testifying lower in the order. “We have no problem with twenty-four hours, Judge.” He'd find an opening later to delay submission of the new witness list until Monday.
Farnsworth returned the folder to the end table and opened a leather-bound calendar to a page marked by a blue ribbon. “We start picking our jury at eight on Friday morning.” She glanced at Seeley. “I hope the hour doesn't come as a surprise to you.”
Seeley said, “We have no problem with that, Judge.” Palmieri had already told him about Farnsworth's early hours.
“You understand that here in the Northern District, each side gets three peremptory challenges and unlimited challenges for cause, but the judge conducts voir dire. If you think I've missed any important questions, you'll have the opportunity to let me know.” She had been looking at Seeley, but now took everyone in. “I'm sure Mr. Thorpe knows all this. You can take as much time making challenges as you want, but I've never recessed for lunch before a jury got picked, so you will want to reflect on whether your objections are sufficiently important to keep the jurors from their lunch.”
Farnsworth snapped the calendar shut. “We will start with opening statements on Monday. I hear motions every day at seven thirty and trial starts at eight. A week from next Monday, we'll recess at one thirty so that I can attend a monthly district conference. A week from Tuesday, I want to see your draft jury instructions. I'll give you my draft instructions on Wednesday, and you submit your comments on Thursday. I'll instruct the jury the following Monday.”
Click, click, click. Seeley was learning something new about women. They were better than any of the men he knew at bending their lives to a single object: Ellen Farnsworth, to efficiency; Lily Warren, to her research; and Judy Pearsall, to proving that her husband had not killed himself.
“Are there any questions?”
Seeley said, “We have no problem with a two-week trial, or with you picking the jury. But the two are connected. It's going to be hard to winnow out witnesses, not knowing what the jury looks like, and if we have no control over that-”
“An interesting point, Counselor. What are you suggesting?”
“That we give you our final witness list Monday morning at seven thirty.”
“Do you have any problem with that, Ms. Fischler?”
“I don't know, Your Honor.” The question flustered her. “I h
adn't discussed this possibility with Mr. Thorpe.”
“Why do you need Mr. Thorpe? Your client is sitting right next to you.”
Dusollier shot her a puzzled look.
“It will be fine, Your Honor,” Fischler said. “What Mr. Seeley proposes will be fine.”
Farnsworth rose and gave them an amused but remarkably warm smile. “I will see you all Friday morning.”
When they were in the brightly lit hallway outside the maze of corridors, Barnum gripped Seeley's arm, furious. Seeley pulled away as they went into the elevator. Palmieri came in behind them and said, “That was nice footwork in there.”
Seeley said, “I don't like being put in tight corners.”
“I'm sorry about the papers. I'll take care of it.”
The elevator doors opened to the lobby. “Have them on the clerk's desk no later than one.”
Barnum fumed silently until they were past the security station and out on the plaza. “Get clear on this,” Barnum said. “I make the important litigation decisions-and the order of witnesses is an important decision.”
“I've decided to lead off with Cordier, the South African. I'm putting Steinhardt on fourth, after Chaikovsky and Kaplan.”
“Bob Pearsall was thinking that, too, but he had the good sense to come to me first. I don't care how good your track record is, I get to make that call.”
Seeley wondered what Pearsall's reasons had been for moving Steinhardt. It was the scientist's arrogance that initially concerned Seeley, but since the lunch with Lily, he was also worried that there might be gaps that Steinhardt's well-buffed lab notebooks could not explain. He thought of the words in Pearsall's sketchbook: What else is A. S. hiding? What else. What had Pearsall already discovered when he wrote that, and what had he not yet discovered?
“Look, Ed, let's go over the list tomorrow and decide on which witnesses we can cut.”
“Steinhardt comes back from Paris Sunday afternoon. If he hears you moved him, he'll go straight to Joel.”
From what Seeley could see, Barnum was not a very good lawyer, but behind the bullying was a middle-aged man with few career prospects who was afraid of his boss. He was doing the best he could to keep his job, and all that he could see was Michael Seeley blocking his way.
“Joel Warshaw's not a problem. He'd fire Steinhardt if he thought that's what it would take to win the case.”
This failed to console Barnum.
Seeley said, “Call me tomorrow and we'll talk.”
“I got a call from Herb Phan this morning.” The busy San Mateo police lieutenant had found the time to call the former county prosecutor. Barnum drew close and Seeley again smelled the peppermint. “Herb likes to focus on his investigations, and he doesn't like lawyers looking over his shoulder. You could take a lesson in concentration from him. Forget the widow. Let's win this case.”
Barnum left, giving Seeley his first unhurried moment of the day. With jury selection on Friday, Steinhardt descending from Paris, Thorpe from Akron, and Cordier from New York-he again reminded himself to return Cordier's call-the quiet would be his last for the next two weeks.
Seeley surveyed the patchwork that surrounded the courthouse: parking lots, luncheonettes, a tire store, low-rise apartment and office buildings. Unlike the high-rise canyons of the business district two miles away and the grand, implausible architecture of the Civic Center next door, the jumble reminded him of nothing so much as the desolate heart of Buffalo's once-thriving downtown. The thought of his hometown pulled at Seeley as it did whenever he was away from it, perhaps because, as dark as the memories were, it was the one place where he felt entirely safe. He did not feel safe in San Francisco.
TEN
Click, click, click.
Jury selection moved forward like tumblers falling in a lock, Judge Farnsworth leaving no question about her complete control of the courtroom. On the benches in the first two rows of the gallery, the thirty or so prospective jurors talked quietly among themselves, waiting while the judge ruled on motions in other cases and on a last-minute evidentiary motion from Fischler. Thorpe was still absent, and the judge didn't ask why.
After she disposed of Fischler's motion, Farnsworth turned to Seeley. “Aren't you forgetting something, Counselor?”
The corrected pro hac papers had been filed, but the judge hadn't yet acted on them, and Seeley didn't enjoy being a supplicant. With a teasing smile, Farnsworth said, “Your motion for admission is granted.”
At eight, the judge's clerk, a radiant black woman wearing gold hoop earrings, looked out to the gallery and read a name, Floyd Ramsey, from the paper in her hand, directing the prospective juror to the seat in the jury box closest to the judge. As he took his place in the front row, Farnsworth greeted him. “Good morning, Mr. Ramsey.” She and the clerk continued on this way until they had filled all fourteen seats in the two rows of the jury box.
In a federal civil trial, a jury of as few as six can render a verdict, but the verdict must be unanimous. Palmieri had told Seeley that Farnsworth was going to impanel eight jurors, with the expectation that illness or an unexpected obligation over the course of the two-week trial might drop the number to seven or even six. This meant that, with each side entitled to three peremptory challenges, the judge was going to be strict in ruling on challenges to disqualify a juror for cause.
Surveying the courtroom as he waited for the first panel of jurors to take their seats, Seeley found himself thinking of m words: magisterial, medieval, murky. There were no windows in the courtroom, and the shadowy corners and dull reflections off the dark wood paneling made it easy to imagine a royal court or ecclesiastical hall from another century. The two heavy oak counsel tables were large enough for a banquet, and the witness box and desks for the clerk and the court reporter, a sharp stick of a woman with carrot-orange hair, clung like dependencies from the judge's bench. Only the polished granite behind the judge was amply lit, casting a halo around her robes.
The wooden gate separating the well of the courtroom from the gallery squeaked softly when someone passed through it, and Seeley and Palmieri turned when Thorpe came in. Everyone in the courtroom, even the judge, watched as the old lawyer shuffled to counsel's table, but Thorpe gave no sign that he was aware of the attention. Seeley figured his adversary to be in his late seventies, but the way his narrow shoulders locked into a shrug when he put his briefcase down and waited for a nod from Farnsworth to introduce himself had less to do with age, or even fatigue, Seeley thought, than with melancholy. His suit was well pressed, the white shirt starched; a silk tie was neatly knotted beneath a bloodhound's jowls. But sadness clung to him like a garment.
“Emil Thorpe for defendant, Laboratories St. Gall, Your Honor.” The voice was of a piece with the man's appearance: gravelly, tired, sorrowful; the voice of a man who had been up too late, smoking too many cigarettes, pushing large boulders uphill. “I apologize for my tardiness.”
“Your time is your own, Mr. Thorpe, and it is of no concern to the court”-she nodded in the direction of the jury box-“so long as you do not waste the time of these good people.”
Fischler had left for Thorpe the same seat at the head of the table as Palmieri left for Seeley. In addition to Fischler and Dusollier, two men and a woman were at Thorpe's table. Seeley didn't know the men, but recognized the woman as a well-traveled jury consultant. From the jurors' personal and educational backgrounds, and from their body language as the trial progressed, the expert would-or so she promised the lawyers who hired her-tell counsel which questions, arguments, and exhibits would work and which wouldn't. For a case of this size, she would probably also assemble a paid phantom jury to mirror the actual jurors' traits, giving Thorpe the chance to try out his tactics. Seeley thought that these consultants were about as useful as astrologers, and was pleased that Pearsall had rejected Barnum's suggestion to hire one.
Farnsworth thanked the prospective jurors, both those in the jury box and those still in the gallery, for coming to court
. Leaning over the bench, her hands clasped in front of her, she told them that the trial involved plaintiff, Vaxtek's, claim that defendant, St. Gall, had infringed Vaxtek's patent on AV/AS, a treatment for HIV/AIDS, and St. Gall's defense that the Vaxtek patent was invalid and, even if it were valid, St. Gall had not infringed on it.
“You will find this to be a fascinating case,” she said, taking care to make eye contact first with those in the jury box and then with those still in the gallery. “It is an important case, too, in terms of its impact on the lives of people around the world. There's going to be some science for you to understand, but these are fine lawyers”-she nodded toward the two tables-“and, together with their witnesses, they are going to be your teachers. You may also hear some things about American patent law, but you needn't be concerned with these until the end of the trial, when I will instruct you on the law you should apply to the facts. This is, I promise, going to be a lot more enjoyable than your high-school biology class, and you'll be glad to know that there won't be an exam at the end”-two or three in the jury box laughed tentatively-“but you will, at the end of the trial, need to come to a verdict, a unanimous verdict.”
Seeley had assigned an associate on the trial team to gather background on all of Farnsworth's cases from the time she was appointed, so he knew that she not only had fewer reversals than any other judge in the Northern District, but also that in her eight years on the bench, none of her juries had ever failed to reach a verdict. This was no accident. Judge Farnsworth lavished on the jurors in her courtroom a degree of attention and care that so exceeded their expectations, the jurors reciprocated with a loyalty of their own. If the judge wanted a unanimous verdict, they would find a way to give her one.
On an easel across from the jury box, questions printed on a poster-sized sheet of cardboard solicited the prospective jurors' name, residence, educational background, occupation, spouse or partner's occupation, hobbies, and whether any of them had previously been a juror or party in a lawsuit. As each of the fourteen in the jury box answered the questions, Seeley wrote the information on a lined white pad and Palmieri typed it into his laptop. Fischler and the jury expert did the same, but Thorpe, slumped in his chair, was absolutely still, giving no sign that his thoughts were here and not still in Akron.
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