by Paul Levine
“Once the question’s answered, Your Honor, it’s going to fall right into the excited utterance exception of Section Ninety-point-eight-oh-three, subsection two.” Patterson cocked his head toward me. “You’re familiar with the statute, aren’t you, Jake?”
“I’ve rubbed up against it once or twice,” I said, turning toward the judge. “Anytime a lawyer’s got some hearsay, he thinks he can put an exclamation point on the statement and get it in. Your Honor, the statute’s only used for the truly exceptional statement made under stress—’He’s got a gun!’—that sort of thing.”
“Mr. Lassiter’s right,” Patterson conceded, “but we fit into the rule.”
“Only one way to find out,” the judge told us. “Bailiff, take out the jury.”
When the jurors had filed into their little room, H.T. Patterson asked the question again. With the jury out of earshot, the judge, Marvin the Mayen, and I all listened expectantly. At the defense table, Nicky Florio scowled.
“What did your husband say to you on the phone?”
“Peter was so excited. I could hear it in his voice. He was hyper, talking a mile a minute, saying he was in Mr. Florio’s den, and he didn’t have much time. Everybody else was at the pool. He had come into the house looking for a bathroom. At first, he was just looking around. Mr. Florio had all these alligator hides, mounted bonefish, boar heads, and other pretty disgusting trophies. Then Peter looked on Mr. Florio’s desk. He said he knew he shouldn’t, but couldn’t help himself.” Melinda Tupton cleared her throat and looked at the judge. “There was a document, he didn’t say exactly what, but he’d read it quickly and then called me, more excited than I’d ever known him. ‘ The condos are a cover!’ That’s what he kept saying, shouting really. ‘The condos, the shops, the town, it’s all a cover!’ He said it was a nightmare, worse than anything he had imagined. Those were his last words to me. ‘It’s a nightmare, worse than anything I had imagined.’”
I couldn’t have picked up my jaw from the floor with both hands, so I made up for lack of poise with excessive volume. “Outrageous, Your Honor! It’s still hearsay. I can’t cross-examine Mr. Tupton, so we’re left with this supposed excited utterance allegedly heard over the telephone about an unseen document not in evidence, a document obviously not related to the issue of my client’s alleged negligence in serving alcohol to an intoxicated guest. So the statement is hearsay on hearsay, and further, the statement is not relevant or material. It’s prejudicial and inflammatory. It’s…”
“Overruled. Bring in the jury.”
Story of my life. Little victories followed by a major squashing. So I got to listen to the story again. This time Mrs. Tupton dispensed a tear or two just as she said, “Those were his last words to me.”
“Where’s Gina?” I asked Nicky Florio while I packed my trial bags at the lunch recess. I wasn’t taking them anywhere, but I didn’t want to leave my notes on the defense table. Like newspaper reporters, lawyers can read upside down, and I didn’t need H.T. Patterson scanning my papers.
“Why, you miss her?”
There was an edge to his voice, and I didn’t like it. “I just like a wife to stand by her man. The old Tammy Wynette routine. It looks better for the jury. Besides, Gina makes a good appearance.”
“Oh, you noticed.”
We headed toward the elevators, fighting the crowd of lunchtime lawyers, hungry as a school of bluefish, pushy as…well, as a crowd of lawyers. “Hey, Nicky. What gives? Why you giving me grief?”
“Forget it. You know I hired you because Gina asked me to. Old times’ sake. Some guys wouldn’t have done it. They’d be jealous, threatened, that sort of thing. But a real man, Jake, a real man controls his emotions. You lose control, you make mistakes. You make mistakes, you get hurt. You with me?”
Or against me, my mind was asking.
“I think so,” I said.
The elevator doors opened, and we elbowed our way in. “Good. I’ve gotta keep my mind on business. Gondo and I are trying to get Cypress Estates off the ground, and I’m stuck in court all day listening to that little jackrabbit bad-mouth me.”
In the lobby, Marvin the Mayen and his friends were standing under a mural of the Spanish explorers making nice with the Calusa Indians. It is only one of many lies to be found in the courthouse. “Nu, Jacob, how you doing, boychik?”
“I don’t know, Marvin. I think Patterson scored some points this morning.”
Marvin fingered the part on his toupee and seemed to think about it. “Window dressing. Just window dressing, Jacob. Nobody cares about the boids.”
In the cool, dark confines of Paul Flanigan’s Quarterdeck Lounge across the street from the courthouse, I munched a burger and drank three iced teas. No beer during trial. Florio sipped at his coffee, black. I can never understand guys who skip lunch. By noon, I could eat the animals mounted in Nicky Florio’s den.
“What about her story?” I asked. “What’d Tupton see in your den?”
“The fuck should I know?” Nicky straightened the knot on his flowery silk tie. “It’s the first time I heard about it.”
“What’d he mean about the condos being a cover?”
“Who knows? The guy was three sheets to the wind. Besides, like you said, what’s the relevance?”
“I’m not sure, yet. I just don’t like surprises, so it would help if you’d tell me everything you’ve got planned for Cypress Estates.”
“Look, Jake, I got certain business matters that are private, and I don’t go around broadcasting them until the time is right. In business, timing is everything. Capisce?”
“I’m your lawyer.”
He gave me a look. “Yeah, so what?”
“So I owe you certain duties, confidentiality for one.”
“And loyalty, too. Isn’t that right, Jake?”
“Sure. It’s in the rules. A lawyer can’t engage in conflicts of interest.”
“Rules.” Nicky Florio’s smile was nearly a smirk.
“You don’t believe in them.”
“Only losers play by the rules, and you’re not a loser, Jake.”
“What are you saying?”
“The gods make their own rules. One of the old Romans said that.”
“I’m not following you.”
“Oh, I think you are. I don’t play by anyone else’s rules, Jake, and neither do you. If you did, you wouldn’t have your dick on the chopping block with the Bar Association. And you wouldn’t have conflicts of interest, would you?”
I stayed quiet. I thought I knew where he was going, but I wasn’t going to help him get there.
“The fact is, Jake, you and I are a lot alike. Hope that doesn’t insult you, Counselor, but it’s the truth. You don’t believe me, just ask Gina. A woman like Gina has great instincts. She knows men, Jake. She knows us better than we do.”
Chapter 8
* * *
Swallowing Golf Balls
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 yo
u 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.