“Not at all. I’m sorry to make this change at such a late date. It’s nothing against Winston. It’s just… I’m the lead counsel. I can prepare better alone.” In her backyard, where she could address the trees without manipulating, sentimentalizing, influencing… the final argument would be hers.
“Nina, be careful about getting stuck with a decision you might regret. Shouldn’t you think this over?”
“Okay, say what’s on your mind, Genevieve,” Nina said. “Don’t you think I can do it? Is Winston smarter, or a better lawyer? Is that what you’re thinking?” She said it loud so Winston could hear. A few cars over, several people had angled their ears her way.
Genevieve studied her for a moment, then relented, apparently deciding this was one argument she could not win. “I know you won’t fuck up, Nina,” Genevieve said. “I just know you won’t. None of us can afford that.” Unintentionally leaving a sharp air of doubt behind to erode Nina’s confidence, she got into the car and Winston pulled out.
22
In the courtroom hush, Nina could almost pretend she was in her backyard where she had practiced her summation yesterday afternoon, face-to-face with the dark bark of a tree. All those moon faces out there were pinecones. Better to think of things that way than the other way, which was to admit the hundred judges to her performance. The only ones that counted were the faces of her jury, and those she smiled at before addressing.
She began at the beginning. She laid it out the way she saw it, and a couple of the jurors never started listening, but most of them made the valiant effort to follow. She felt intimate with them. She had wanted only one thing in the last weeks, and that was to connect to each one of them. They weren’t friends; they were closer than that now, and she believed some of them felt the same proprietary interest in her. She hoped so.
“And then Mike moved on.” Nina paced once across the front of the jury box, and then back to the other end, with her head lowered. She didn’t have the art to convey the devastation encapsulated in those words, all she could do was offer this silent prayerful moment to honor Lindy’s suffering.
“But Lindy had nothing to worry about, isn’t that so?” she continued, lifting her head to search the jurors, one by one. Mrs. Lim’s head was cocked her way.
“Right here in court, we all heard him, Mike said she had nothing to worry about. He would ’take care’ of Lindy for life.
“He said that. He felt some duty to take care of her, protect her, for the rest of her life. And how did he do that? You heard. He evicted her, fired her, and made sure his name was on every stick of property. Then he flung in her face a thirteen-year-old agreement that she’d signed when the business was worthless on the premise that he would marry her.”
She paused. “The judge will read you a legal instruction, because it may be applicable in this case. It sounds so simple. And it is simple. A promise, in this case, made in writing by Lindy to give it all away-in consideration of marriage-in this case, in return for Mike’s finally marrying her-is invalidated when there is no marriage.
“And that makes the so-called separate property agreement invalid!”
She looked directly at Cliff Wright. He yawned.
“Yes, it was in writing. But that piece of paper she signed without full knowledge of its contents was not notarized. No lawyer discussed or explained it to her at the time. That grotesque and unfair document did not come about through agreement. No reasonable person can think that under those circumstances she made an informed decision. It’s bogus, made in bad faith, and doesn’t meet reasonable requirements to be legally binding. You should disregard it.”
She went on to Lindy’s strong area, the implied contract argument, Lindy’s twenty years of working alongside Mike. She knew her summation so well that, in the pauses between sentences, she found time to reflect: on the faces of the jurors, intent, bored, tired, eager; on the long days of testimony that had brought them to this point; and on Lindy herself.
She was recounting Lindy’s life, trying to make the jury fully appreciate the loving dedication of this thin, wan woman on whom they must pass judgment. She spoke of the children Mike and Lindy never had, and said that the business, like a child, had belonged to both of them, but unlike a child could be split down the middle. And Lindy deserved half.
“It’s in your hands,” she said finally. “Thank you.”
Nina sat down, feeling drained. She had given Lindy her best.
Riesner, smiling and confident, matter-of-fact, kept his summation even more succinct, introducing Mike’s position with the plainest possible language to give the jury the impression that the decision they were faced with was easy.
“This is a simple situation,” he said, as he came to the finish. “Lindy and Mike break up. But Lindy’s now stuck with this agreement they made years ago. She’s got a real incentive to ’forget’ about it, or dispute its contents. There’s money there for the taking, she figures, and by golly, she wants some of it. She’s got to do something, so she hires a team of fancy lawyers to tell you it’s not a legitimate agreement.
“But it’s right here in writing, ladies and gentlemen. They agreed not to commingle assets. They agreed to keep separate accounts. The business, the properties, those stayed in Mike’s name because they belonged entirely to him. That was the expectation, the agreement. Just so that there would be no misunderstanding, they had a document drafted to make sure they agreed, which they both signed.
“That was the deal. The deal,” he repeated. “Plain and simple. Black and white. In writing. Read the exhibits. And don’t let greed win out this time.”
His last words sat there, gathering energy. Nina heard the shuffling and whispering start up behind her. Wanting to do something to soften the bite of these words, she touched Lindy’s wrist, even though she knew it wouldn’t help.
Only two things remained: to instruct the jury, and to set them loose.
The American jury system suffered from one indefensible flaw-the jury had to sit through the whole trial without knowing the legal framework on which the facts were supposed to hang. How they could, in the end, set aside whatever impromptu conceptual framework they had been using to adopt a new one, no one knew. Worse, the legal instructions were tedious, contradictory, and sometimes even mysterious.
To Nina, the instructions sounded laughably simplistic. Thousands of subtle distinctions, derived from thousands of cases over hundreds of years, flowed from each statement Milne made now, and the jury would hear only the one-syllable version.
The jury looked at Judge Milne, who adjusted his reading glasses. They seemed like a whole different group from the tentative individuals who had been sworn in at the beginning; a new collective had been born. They even dressed more homogeneously. Mrs. Lim’s stiff jackets had disappeared sometime during the trial, along with Kevin Dowd’s knit golf shirts and Maribel Grzegorek’s hair spray.
Today they had dressed up. They seemed self-conscious, dignified, impressive. Nina wondered if her impression was the result of the exaggerated part they played in her life right now. But no, she had seen it in other trials in which she had sat in the audience, this reassuring aura of decency that came upon the people about to render a verdict. They represented the American public, and they knew it.
In the jury room, would they remain as impassive, as decent? She sat straight-backed with Lindy, Winston, and Genevieve at her table, and she tried to project that same decent aura.
Milne took a sip of water and wet his lips. In a measured tone, he said, “It is now my duty to instruct you on the law that applies to this case. It is your duty to follow the law.”
He cleared his throat before resuming. “As jurors it is your duty to determine the effect and value of the evidence and to decide all questions of fact. You must not be influenced by sympathy, prejudice, or passion.”
He went on, explaining that the burden of proof was upon Lindy as the party bringing the action. He advised the jury that they must find that
a preponderance of the evidence supported one side or the other.
During all this, he read from form jury instructions as modified in his conferences with the lawyers. Not one unplanned word could be spoken, or the verdict might be overturned on appeal. The instructions were written in the plainest English possible, but many of the words and concepts were still new to the jurors and looks of incomprehension flitted across their faces as Milne went on in a voice that never varied and never emphasized one instruction over another.
“In an implied-in-law contract, or quasi-contract as it is sometimes called, a duty or obligation is created by law for reasons of fairness or justice. Such duty or obligation is not based upon the express or apparent intention of the parties.
“A contract may be oral. An oral contract is as valid and enforceable as a written contract.”
And now Milne came to a couple of special instructions. Riesner had fought for the first one, a civil statute which could be interpreted to mean that Lindy couldn’t recover anything just because Mike had promised to marry her and broken that promise:
“No cause of action arises for breach of promise of marriage,” Milne went on with his evenhanded delivery.
Would the jurors think Lindy’s whole case revolved around that? They might. Nina shuddered and glanced at them, reading nothing from their expressions.
Then it was Lindy’s turn. Milne moved along to the hoary old statute Nina had dug up and worked hard to get into the instructions, section 1590 of the Civil Code. It had been enacted in courtlier times, to assure the return of marital dowries after broken engagements. Milne had seen that it could apply and overruled Riesner’s outraged objections.
“Where either party to a contemplated marriage in this state makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift.”
Now Riesner was wincing. Again, the jury would have to believe Lindy, not Mike or the written language of the separate property agreement. But if they felt Mike had dangled the carrot of marriage to get her to sign the agreement, then she had the right to take back her “dowry,” namely the company and any other asset they shared.
Was the jury utterly mystified by all this talk of donees and donors? Were these people smart enough to reason their way through this?
Milne droned on about contracts at prodigious length before moving to the concluding instructions. “Each of you must decide the case for yourself, but should do so only after considering the views of each juror. You should not hesitate to change an opinion if you are convinced it is wrong. However, you should not be influenced to decide any question in a particular way simply because a majority of the jurors, or any of them, favor such a decision.
“… Remember that you are not partisans or advocates in this matter…”
Milne took a healthy swig of water this time. His vocabulary for ten days had consisted mainly of “overruled” and “sustained,” so this lengthy speech was putting a strain on his vocal cords. Luckily, he was close to the end.
“When you retire, you shall select one of your number to act as foreperson. As soon as any nine or more jurors have agreed upon a verdict, have the verdict and answers signed and dated by your foreperson and return with them to this room.”
Milne paused. The courtroom shook itself from its swoon. He put down the last paper, and said in a benign voice at odds with the robotic delivery of the previous two hours, “It being late in the day, you will return to court tomorrow at nine a.m. to begin your deliberations.”
With nary a rustle, the twelve people chosen to shape the future of a number of other people in the courtroom filed out the door behind them, followed by the two alternates.
Nina put her arm around Lindy. “This is it,” Genevieve said, her face pale.
The wait had begun.
BOOK FOUR. VERDICTS
The first perversion of the truth effected by one
of the individuals of the gathering is the starting
point of the contagious suggestion.
-Gustave le Bon
23
›Click‹
Jury, Day One, Morning:
The seven men and seven women find seats, with the two alternates sitting away from the table. For about twenty minutes, they dither over a foreperson. Mrs. Lim gets strong backing from half. Clifford Wright emerges as the other possible leader. By the second vote, someone switches to Wright.
Cliff: You all know why we’re here. We’ve listened to testimony for nearly ten days now, and we’ve had more than enough time to think, right?
A titter of agreement.
Cliff: And during our breaks, without doing anything the judge didn’t want us to do, I know a few of us have felt each other out, just to get an idea of where we stand. This hasn’t been easy, and I know a couple of times tempers have flared.
Man: I’ll say.
Cliff: But we’re in the home stretch, folks. Let’s be smooth and focused. I think it’s a good idea to take a straw vote right off the bat, see if by some miracle we’re already in agreement.
Some murmurs of assent.
Man: The judge said we should talk about this first.
Woman: Yes, what if we get a verdict on the first vote? I don’t think that’s the way to do the job right.
Man: Why waste time if we don’t have to? I knew how I would vote the minute those lawyers finished their opening statements.
Cliff: Even if we do have a majority this is not a vote that will count. We each get to have our say first, like the judge said.
They vote on slips of paper, anonymously. Clifford Wright reads off the answers one by one. Eight think Lindy Markov should win. Four oppose her claim.
Wright: Well, now, we’ve almost got a majority. You all remember, we only need nine on this civil case.
Man: So the gals went with hearts, not brains.
Woman: And most of the men were too stupid to use either one.
Wright: Let’s not bicker, folks.
Man: It’s more fun to think of this as the war between men and women. It kind of encapsulates all the issues. Romantic fancies and the greed of a woman…
Woman: Betrayal, power, and the ego of a man. Only this time, the women are winning for a change!
Wright: Let’s organize ourselves. Our next step seems to be to go around the room, give people a chance to say a little about who they are and why they’re thinking a certain way. We’ll go clockwise for discussions. That puts you first, Mr. Binkley. Is everyone okay with first names? I’m terrible with names.
Most agree to first names.
Bob Binkley: I’m a history teacher over at the college. Thirty-two years old and feel every minute of it. Not married and nobody in the picture at the moment. Don’t get too worked up if you notice I have trouble breathing sometimes. That’s just a touch of asthma.
Anyway, I’ve had about all I can take of this case. These two, they’re greedheads, and the money they are fighting over is obscene. A life spent accumulating wealth for its own sake is wasted.
Man: I never got the idea money was their goal. It just came with their success.
Bob: Nobody on earth should have that kind of money and not spread it around.
Woman: Lindy Markov was involved in charity work. I’ve seen her name in the papers pushing various causes.
Bob: Good for her. But, considering there’s still two hundred odd million being put back into manufacturing yet another device that pays homage to our cultural obsession with staying thin, I’m not impressed. These two fat cats could have settled this out of court so easily without wasting all our time.
Cliff: Can you tell us how you voted and why?
Bob: Oh, I don’t think the woman should get anything. They weren’t married. I picked Mike because the law’s on his side, but I’ve got an even better idea. I think we ought to take the
ir money and divide it between ourselves. Now that would be fair. Bet we’d make better use of it, too.
Several others get off on his idea and fantasize on the topic until Cliff Wright intervenes.
Cliff: Ignacio?
Ignacio Ybarra: I’m twenty-three and I work for the telephone company as a lineman. My wife died two years ago. I have a son who is three, and for my recreation, I do community theater.
When we talked at lunch the other day, I already said what I think. I think she should get something.
Cliff: So you think she’s got a legitimate claim? Remember this is a legal case.
Ignacio: That’s not so simple to say. I agree the law should guide us to do the right thing but if it doesn’t give you a clear direction, you must look into your heart for what is right. I voted for Lindy.
Cliff: Care to say why?
Ignacio: I’m ready to hear the other people first.
Cliff: Okay. How about you, Maribel?
Maribel Grzegorek: I’ve lived up here twenty-two years. Came here to ski, and never left. I’m over forty and under seventy, not that that’s anybody’s beeswax. Used to work as a dealer in the casino. Now I cashier at the Mikasa outlet store.
My biggest problem with this case is that I just can’t stomach Riesner.
He reminds me of this old cat I had, the meanest animal you ever met. You know Mike Markov loses points in my book just for picking a lawyer like that. And that day Reilly tripped? I’d swear that lawyer put his foot in her way on purpose!
Man: Well, if he did she was asking for it.
Others interested in this line of discussion chime in. Speculations continue for a long time, then…
Cliff: You know, Maribel, I didn’t like that lawyer either. And it’s so easy to be influenced by those feelings, isn’t it? But I know when it comes time to decide, I’ve got to put that feeling aside, and really use my head. Now, I can tell you’re a smart woman who can tell the difference between what you feel and real evidence…
Breach Of Promise Page 26