Katrina: The Jury Answers

by Don Wittig

Mack fired back. “Let me tell you right now, O’Reilly won’t settle anything right now—certainly not for a few million. But I do have an idea. I might talk to him about letting FEMA out of the lawsuit. We all know they didn’t cause the flooding, and when we lay out the tens of thousands of response troops, firemen, National Guard, and Coast Guard, I promise you FEMA will walk. Plus, the judge might well dismiss FEMA early. Then we could focus our energy where it needs to be defending the Corps. How about it?”

  “OK by me. I’ll try to sell the president and Carl that we won’t look as weak by trying to get FEMA out and that it’s part of your trial strategy. But you understand the White House wants this whole case to go away. The greens could tip the balance in a few close races, especially in California and Wyoming.”

  “It’s the wrong thing to do for the wrong reason. But you are the client. And if we can get rid of FEMA, we can eliminate a lot of sobbing witnesses saying they couldn’t get enough MREs or Pampers from the federal government. I’ll call O’Reilly now. I’m sure he’s still at the office. It’s only half past nine.”

  The conversation between the two titan lawyers went as expected. After a few pleasantries, Mack told O’Reilly that, against his advice, the government wanted to see if the case could be settled. As expected, O’Reilly’s opinion about his case instantly went up even higher; he quietly chuckled to himself. The two jockeyed to see who would throw out the first number, which every good lawyer knew was only a sounding board. O’Reilly usually used one of two tactics. Sometimes he drew a line in the sand with a take-itor-leave it demand for settlement. This was the tactic if the defense asked first. He would never go to them first, the way Mack was coming to him. That was a sure sign of weakness or fear.

  O’Reilly knew Mack well enough to know this was not his call. Somebody at least midway up the chain of command was trying to hide something, or there was just too much on the administration’s plate and they didn’t want any more black eyes.

  O’Reilly’s second tactic was to make the defendant bid against himself. He would not set any figure and just sit back to see what the case was worth to the enemy.

  Because Mack was coming to O’Reilly, he instinctively decided on this latter course. He really didn’t want to settle anyway. This was a lawsuit crying to be tried in a courtroom and on national TV. So their conversation danced around the issue until Mack was getting tired, so he blurted out, “You know I wanna kick your ass from one end of Houston to the other—and that’s a long way across I-10. But my client told me to offer you ten million. One condition. You dismiss FEMA.”

  O’Reilly’s howl could be heard all the way to the Gulf of Mexico. He laughed and laughed. Red-faced, Mack held his tongue but was ready to cinch up for a Hamiltonian duel right then and there. He couldn’t believe he was subjecting himself to this arrogance, especially this late in the evening. He calmed himself by thinking of the revenge he would get when he ripped O’Reilly’s junk science witnesses to shreds.

  “I take that as a no, you ass.”

  “Now Bradley, I overreacted a little. Sorry about that. You know the routine. I’ll ask my clients then get back to you. But we both know the answer. My clients want the publicity as much as your clients don’t. Rather simple, isn’t it? We’ll be in the courtroom fighting for truth and justice and our clients will be in the press room smearing each other for the media show. Slightly different agendas, wouldn’t you say?”

  “Goodnight, Richard. Get some sleep. You’re going to need it!”

  10 Motion to Dismiss

  “M R. O’REILLY, WE’VE GOT TROUBLE in the Katrina case. Mack fired a loud salvo across our bow. Apparently he thinks he can get Judge Martin to dismiss our case against FEMA and the Corps of Engineers.” Holly Harrison’s voice quivered a little when she delivered the news. Holly was O’Reilly’s right-hand person on the law. She had been a briefing attorney for both the Fifth Circuit federal appeals court and for the Fourteenth Court of Appeals, which handled state appeals in Houston. Like more than a few appellate types, she was a little shy and introverted in stark contrast to her boss. But when it came to questions of law, everyone in the firm turned to her. At one time Holly dreamed of a closer relationship with O’Reilly, but he was a straight arrow on matters of the heart, at least at the office.

  “What on earth are his grounds?” griped O’Reilly. “He must have stayed up every night since I told him we were not interested in his measly ten million. But I doubt it was Mack’s idea to offer any money this early. So he’s just trying to put some pressure on us to end this thing early. How does he think he gets those incompetent FEMA folks out of the mess they helped create? As for the Corps, there’s no way Judge Martin will let them go.”

  “As usual, you nailed it,” Holly responded. “FEMA didn’t create the Katrina mess. FEMA is a responder. They respond to disasters, not make them. Mack is arguing the old law school case of ‘Pfalsgraff,’ you know, domino theory missing a couple of links.” Holly was tall and lissome. Her clear, blue eyes radiated the confidence that comes from having a keen intellect.

  “And you’re right about the Corps. That part of the motion is very weak. We shouldn’t have any difficulty defeating the second part of his motion attempting to get the Corps dismissed. FEMA is our problem child.”

  Holly continued glancing at her ladies’ Rolex. “At the heart of his argument is the fact that FEMA had nothing to do with causing the levees to fail and nothing to do with Katrina. FEMA didn’t design or engineer anything. Yes, they were slow, late, and incompetent, but their incompetence didn’t cause the real long-term damages the people of New Orleans suffered. And Mack also argues forcibly about foreseeability. I don’t have to tell you that in a negligence claim, the damages must be foreseeable. FEMA had to have reasonably anticipated the consequences of their actions and have some idea of what might happen. Obviously, FEMA is not responsible for what might happen if the levees break. What worries me the most is that even if FEMA knew what would happen after the storm without basic necessities of food, water, and medicine, we would have to prove who did know and who didn’t get the help. We would be dealing with thousands of angry, displaced people, and it could muddy our main claims against the Corps.

  “And finally, if you think about it, more than ninety-nine percent of the victims did survive. A jury may not be too sympathetic to somebody who missed a few meals and couldn’t get a tetanus shot.” Holly paused, tongue in cheek, awaiting O’Reilly’s reaction.

  With a smile, O’Reilly rejoined, “Whose side are you on anyway? Don’t I pay you big bucks to beat silly motions like this? OK, you have two more minutes. What else do you have?”

  “One minute. You have got to listen to this one argument. Mack is quoting ancient law.”

  “Holly, why doesn’t that surprise me? Look at our judge; he could be Colonel Sanders’s brother. What did Mack say? Make it brief. Going to trial tomorrow on another mesothelioma case.”

  “Mack quotes from a 1911 Texas case: ‘But when the test is applied to this case, the mind balks in its endeavor to extend the chain of causation from defendant’s act of wrongful imprisonment to the mock trial; for it finds the chain of causation too short. The connecting link is missing. And, like Darwin’s ‘missing link’ in the evolution of man, it can’t be found. The chain has ended, and another and distinct causation, which cannot be connected with the original wrong of the defendant, has commenced, working an injury to the plaintiff, which the defendant could not anticipate as a consequence of its wrong, and for which it is not, and cannot be held, responsible.’ How about that!”

  “You already said it. Arcane, just like Mack and the judge. Get a response ready and let’s figure out a strategy to take a bunch of Mack’s money and consider letting FEMA go. Then we can all concentrate on the real villain: the Army Corps of Engineers.

  “By the way, Holly, you can turn that geriatric case on Mack. FEMA was a new cause, a distinct cause, exactly as his case says. The real problem is, as you n
ote, to prove any significant damage was actually caused in fact by FEMA. The press and the politicians had a field day with FEMA. But they didn’t cause Katrina, or the floods, or the devastation.”

  11 First Court Skirmish

  “A LL RISE. THE UNITED STATES Federal Court for the Eastern District of Louisiana is now in session, the Honorable Jeffrey Martin, presiding. God save the United States of America and this honorable Court!” The Deputy US Marshal scowled, and with his patented game limp, mysteriously secured in the Gulf War, drug himself back to his prized raised corner perch where he could oversee the proceedings. The Marshal loved the cavernous courtroom. The sound of his voice echoed off the marble floors and two-story plaster ceilings. Only the rich walnut paneling and ancient oil portraits of dead judges seemed to mute any of the sonorous tones reverberating through the grandiose chamber.

  Judge Martin motioned for all to be seated. “We are in special session to hear the Motion to Dismiss by the United States Government, the Army Corps of Engineers, and FEMA. I have read your motions and responses and will deny the defense’s motions as to the government and the Corps of Engineers. I do find Mr. Bradley’s motion to dismiss FEMA intriguing, so I only need to hear from Mr. O’Reilly on his response to the FEMA part of the motion.”

  “Judge Martin, it is a privilege to appear before you. My name is Richard O’Reilly, and I represent Melinda Lewis, the Sahara Club, and the other complainants. My assistants inform me that your honor rode out Katrina in your New Orleans home so I will not waste your time describing the grave consequences of the storm and the tragic ineptitude of FEMA. Instead of streams of music in the streets of New Orleans, FEMA treated her inhabitants to rivers of contamination and filth. Instead of expediting emergency aid and rescue efforts, the head of FEMA raced to a bunker in Biloxi. FEMA stood by while thousands tried to find a dry place in the Superdome and watched helplessly as their friends and family were murdered, raped, and denied medical care.”

  Judge Martin interjected, “Mr. O’Reilly, I hate to interrupt your fine jury speech, but we have a narrow question of law I need you to address. Can you offer any proof that FEMA caused a single death? Have you any proof that one poor soul lost a limb or suffered any permanent injury because of the actions or inactions of FEMA? And surely you are not contending that Ms. Melinda Lewis or the Sahara Club suffered any legally cognizable injury at the hands of FEMA, are you? Ms. Lewis certainly appears healthy enough, and the Sahara Club was just in my courtroom last week seeking an injunction in another case. In short, what is your evidence that FEMA in fact caused foreseeable, legally cognizable damages? Even assuming FEMA was dilatory, procrastination personified, or even totally incompetent, what permanent legal damages did they in fact cause?”

  O’Reilly smiled patiently at the judge. “Your honor has a keen and penetrating eye. We believe that we have established in our brief and responses a sufficient causal relationship between devastation caused by the Corps and the complicity of FEMA in its failure to exercise its Congressional mandate to respond and help stop the bleeding caused by the failures of the Corps of Engineers. However, we all know that nothing I say is evidence that the court may consider therefore we will rest on our briefs and responses.”

  “Very well, Mr. O’Reilly. Have you and Mr. Mack explored settlement in this case? I should prefer that this case be mediated within the next sixty days. This type of case is ripe for mediation, and I will not force a bunch of citizens to listen to you two gladiators quarrel for six weeks until you have spent at least one or two full days negotiating, in good faith, to try to resolve this mess. You two agree on a mediator this afternoon or I’ll appoint one for you. I understand there are a number of good mediators here in Houston, and you know them better than I.”

  “Mr. Mack has already approached me on the subject, and I am sure we can agree on a mediator,” O’Reilly responded.

  Mack fired back, “Judge, my client instructed me to make an overly generous offer to Mr. O’Reilly, which he summarily rejected. I doubt he even reported….”

  “That’s enough, Mr. Mack!” snapped the judge. “Mr. O’Reilly answered my question. I don’t want to hear your posturing and what your client may or may not have told you to do. How soon will you people be ready for trial? I want to get this one behind us by the fall.”

  O’Reilly jumped in. “We are ready now or anytime the court pleases.”

  “Suits me,” Mack bluffed, knowing full well neither the court nor O’Reilly could be ready for trial in less than six months. His first appearance before Judge Martin had not been as smooth as he would have liked. Still, he got in his digs that the government wanted the case to go away and tried to make O’Reilly look unreasonable at the same time.

  “Very well. We’ll have our pretrial conference September first and start selecting a jury the day after Labor Day. Exchange all exhibits and have your pretrial orders to me by August first. I’ll give you my ruling on the motion to dismiss FEMA after your mediation is completed and before we pick a jury. Anything else?”

  Both lawyers responded no, and Judge Martin vanished from the courtroom as suddenly as he had entered. Melinda Lewis appeared dismayed as she looked toward O’Reilly. “How did we do?” she queried.

  “Not bad,” O’Reilly responded with his confident smile. “Mack almost stepped into a big pile, but the judge cut him off. I have to tell you though, the judge will probably rule against us on the motion to dismiss FEMA. So my plan is to get some seed money from Mack in the mediation and then let FEMA go. Then we can focus on the real causes of this disaster. Mack is actually helping us simplify the case. And did you notice he said his client ‘instructed’ him to offer money? The government is running scared. Think about this. Does the administration want all that Katrina dirty laundry rehashed right before the elections? And whose candidates will benefit from all the exposure the greens will get?”

  Lewis wore a concerned look on her usually unflappable countenance. “Mr. O’Reilly, I must tell you that I am a little concerned about injecting these environmental issues into my case. The Corps messed up. But it wasn’t because some iceberg may or may not have melted.” Lewis still harbored some reservations about inviting Bob Deerman and his cohorts to her party. Still, she knew she had no choice. She needed them both for standing to sue and to bankroll the heavy expenses.

  “Remember, Ms. Lewis, we discussed that we must have standing to sue the government. In my opinion, I don’t think you have standing as a lone complainant. However, we know that because of the laws passed in the 1970s the environmentalists do have standing. And if they were not with us, believe me, Mack would argue that the Corps could not have foreseen the strengthening of storms, warmer seawaters, and new weather patterns. He would use global warming against us. This way he is forced to either agree with the environmentalists or fight them. It’s a Hobson’s choice. If he agrees with the greens, the levees should have been stronger. If he disagrees with them, he’ll be fighting a tide of public opinion and twenty plus years of media preaching the doom of planet Earth. No, it’s good they are on our side. We need them. Let’s go back to work!”

  O’Reilly packed up his giant leather briefcase and walked back to the office. Lewis went out for a drink with Bob Deerman.

  12 The Deposition of Major Lewis

  A LTHOUGH SHE WAS IN HER own attorney’s office, Melinda Lewis was visibly nervous as she took the witness chair for her deposition. O’Reilly had warned her about some of the many interrogation techniques Mack might use. He even warned her about the “Reid technique” developed by the Chicago police department. This method was often implicitly used by many questioners to establish rapport with easy, early, background questions to establish a baseline of the emotional response by the witness. As the questions progressed to the more difficult and perhaps even incriminating, any change of demeanor or agitation could be gaged and measured for revealing comparison.

  “Ms. Lewis, please raise your right hand and be sworn. You do solemn
ly swear or affirm that the testimony you are about to give in this case is the truth, the whole truth, and nothing but the truth?”

  “I so swear.”

  “Ms. Lewis, my name is Bradley Mack and I represent the United States of America and the Army Corps of Engineers. And you have sued my clients for a trillion dollars. So I am on the other side of your lawsuit. Do you understand that?”

  “Yes, of course.” Why didn’t Mack mention FEMA? She wondered. Does he know something we don’t?

  “Please tell us your full name, address, and marital status.”

  “My name is Melinda Mae Lewis. I reside with my husband John Lewis in Lafayette, Louisiana, and I am one of the complainants in this case.”

  “Ms. Lewis, you understand that even though this is a deposition, you are under oath and the same penalties of perjury apply, just as if you were in Judge Martin’s courtroom?”

  “Yes, Mr. Mack, I appreciate that.”

  “So I would like to have this agreement with you because your testimony is a serious undertaking. May I assume that if you answer my question that you understand the question? And if you don’t understand, you will ask me what I mean or consult with Mr. O’Reilly seated next to you? Is that a fair deal?”

  O’Reilly interrupted, “Objection. Mr. Mack, I don’t allow my clients to make agreements like that with the enemy. Your questions speak for themselves and so do her answers. In any event, an agreement with the devil is not enforceable!” He grinned as he tested the humor and limits of his adversary.

  “Mr. O’Reilly, are you going to answer all of my questions for Ms. Lewis, or is she a big enough girl to handle herself?” Mack grinned back, looking for a reaction from Lewis, intentionally testing her sensitivity to his chauvinistic language and at the same time trying to shame O’Reilly into trusting his client.

  At fifty-five, Lewis was used to working in “a man’s world” and feigned indifference to Mack’s attempts to get her started. O’Reilly had warned that some aggressive attorneys would like nothing better than to upset a witness and cause them to blurt out something, anything, that could be used to distract a jury away from the gravamen or question the veracity of the witness’s story.