Katrina: The Jury Answers

by Don Wittig

  “Let’s go,” O’Reilly responded. “We only have two hours and you have already wasted ten minutes.”

  “OK. Ms. Lewis, you worked for the Corps for twenty-five years and were the assistant officer in charge in New Orleans at the time the little low-pressure system came ashore?”

  “If you mean the cat four hurricane Katrina, yes.”

  “Well actually, Ms. Lewis, NOAA downgraded Katrine to a cat three in their December 2005 restatement of the storm’s strength. Perhaps you were unaware of that?”

  “Thank you for correcting me, Mr. Mack. I know it felt and looked like a cat five, and there never was any network coverage of the downgrade. But now that you mention it, sometime later, December you say, NOAA did officially downgrade the storm.”

  “It’s always interesting what the networks cover and don’t cover. For example, you will agree with me, Ms. Lewis, that the eye of the storm hit seventy miles east of New Orleans. Alabama and Mississippi took much worse punishment than New Orleans?”

  “I agree.”

  “And you would agree that the network coverage gave more airtime to the looting in New Orleans than covering the extreme devastation in Biloxi and Bay St. Louis?”

  “Quite so, but the devastation in New Orleans was also extreme.”

  “So, Ms. Lewis, are you saying that Katrina caused extreme devastation in New Orleans similar to that in Mississippi and Alabama?”

  “Mr. Mack, you are twisting my words. I was speaking of the results in New Orleans, not the cause. Katrina was a near miss to New Orleans. The devastation there was not so much from the storm as the failure of the Corps to properly engineer and supervise construction of the levees. Without the levee failures, the damage to New Orleans would have been minimal.”

  “Perhaps we’ll get into that later. Let’s talk some more about you. You retired from the Corps in October 2005. Why did you leave at such a young age? Did you have some issues with the Corps?”

  “I had planned to retire for over a year. It was sheer coincidence that I left just a few weeks after Katrina.”

  “So you had no issues with the Corps?”

  “Well, I always worked to see that the Corps did the best job possible with the least impact on the environment. So once in a while, I would give some input to better our projects.”

  “And the Corps didn’t always take your advice, did they? In fact, you got into some hot water over a memo you wrote General Walker, did you not?”

  “That was over seven years ago, and no, I was not in hot water. General Walker actually called me and thanked me for my input and indicated that he thought I was right about the Orleans Canal.”

  “Objection. The answer was not responsive to my question and what General Walker may have said is hearsay. Ms. Lewis, let’s stay with your personal knowledge of the facts and not what you may believe someone else told you. In any event, you thought the Orleans Street Canal levee was poorly constructed, yet you also knew full well the Corps did not do the actual construction, did they?”

  “Yes, but....”

  “Please just answer my question. And you did answer my question when you agreed the Corps did not construct that addition to the levee. Were there other issues you had with the Corps?”

  “Do you mean did I write other memos or did I ever disagree with our project plans?”

  “Let’s stick with the memos for now. Did you write other memos like your January tenth, 1999 letter to General Walker?”

  “I searched my records and found three others. One dealt with a dredging project I was in charge of in the Chesapeake Bay. One dealt with adding a floodgate to Lake Pontchartrain. And the last one dealt with the lack of oversight by the Orleans Parish levee board and their use of our funds to construct a marina and highrise condominiums.”

  “I see. Will you have your attorney furnish those writings to me within the next week? He seems to have forgotten to give me those last three memos. An oversight, I am sure. Let’s go back to you, Ms. Lewis. Do you and your husband have any children?”

  “No, we were both too busy with our careers, and we decided to dedicate ourselves to making this a better world to live in. We both traveled a lot, and we thought children should have at least one parent at home most of the time.”

  “I see. So you have a good relationship with Mr. Lewis?” “Yes, of course. The usual husband and wife spats. No big problems. We have been happily married for almost twenty-three years.”

  “What is your relationship with Bob Deerman?”

  “What do you mean by that question?” Melinda strained not to show but her heart rate skyrocketed. She hoped she was not blushing. Where is Mack going with this? she worried.

  “I mean, are you two close professional friends, strictly professional, or what?” Mack was fishing, but he sensed he may have stumbled onto something. He whispered to an associate to investigate and delve more deeply into a possible triangle. Mack didn’t like character assassinations unless absolutely necessary.

  Lewis tried to appear nonplused, but by answering Mack’s question with her own question, she inadvertently indicated sensitivity to this area of her personal life. Mack continued as though he were sauntering through a Sunday-afternoon stroll. He inwardly grinned to himself.

  “So, I take it you are something of an environmentalist yourself. Do you belong to the Sahara Club, Earthcore, Greenpreserve, or any of the other green groups?”

  “No, I am not a joiner. I attended a couple of meetings, more since we started this lawsuit.”

  “Even though you are not a member, you believe in saving the wetlands, no drilling for oil, global warming, melting ice caps, and the whole environmental gospel?”

  “Yes, to a great extent, but I am an engineer, and I don’t subscribe to all of their ideas. I am particularly disturbed when they employ violence to try to get their way or draw attention to themselves.”

  “We have at least one point of agreement there. Lawlessness, even for a good cause, is still lawlessness. Or should I say criminal. What about animal rights? Do you believe dogs and cats should have the right of way when they cross the street?”

  “Really, Mr. Mack, we love our dogs, but that’s as far as it goes.”

  “What kind of work does your husband do? Is he an engineer also?”

  “No. John is a financial consultant with A. G. Jones. He works with institutional investors. As I said, he travels pretty much all over the country and to some of the islands for his work.”

  “Did you meet Mr. Lewis at MIT? That’s where you graduated, is it not?”

  “Yes, I graduated with honors from MIT in civil engineering. And no, Mr. Lewis and I met when I was stationed in DC. He was getting his MBA at Georgetown, and we met at a party there.”

  “Finally, Ms. Lewis, I don’t mean to pry, but why did the two of you move to Lafayette?”

  “We wanted to retire in New Orleans. But frankly, it was such a mess I don’t know why anyone would continue to live below sea level between two huge bodies of water. I knew about many of the problems New Orleans had before Katrina. I used to believe that the authorities would get their acts together. Katrina didn’t help matters. Also, too many bad memories. Anyway, Lafayette is between New Orleans and Houston so we can easily visit friends and family in both places. I must add that New Orleans seems to be doing much better with the passage of time. Plus, the Corps has stepped up to its responsibilities.”

  “Quite so, Ms. Lewis. Still, New Orleans is an accident waiting to happen. No further questions.”

  Mack abruptly ended the deposition without asking any of the hard questions. Why did the Jackson and London Avenue levees fail? What caused the other levees to breach or fail? What did the Corps do wrong and how could the flooding have been averted? Lewis was relieved but anxious to ask O’Reilly how she did and why Mack avoided the obvious questions.

  O’Reilly sensed her state of mind and suggested a cup of coffee. They went down the tunnel to Starbucks and talked for a few minutes.
Lewis was perplexed, if not a bit shaken.

  “Melinda, Mack is using an old tactic. He doesn’t want you to know what to expect at trial. So he didn’t give you or me a free look. He just wanted to get a feel for you as a witness and figure out how to strategically question you at trial. You did fine, but he pretty much treated you with kid gloves, except for that ‘girly’ remark. And you handled that like a pro. I only have one question. Is there anything between you and Deerman? Because I guarantee you Mack is digging into the situation as we speak. He already knows you two are aligned in this lawsuit. Now he’ll try to figure out if there is more to the relationship than what meets the eye. I sure don’t like to get personal, but I need to know.”

  “We are just friends. I helped him out on the Chesapeake dredging project, and we’ve had a few drinks together. That’s it. You don’t think Mack will suggest something else at the trial, do you? John would die. How can he ask all those personal questions?” Lewis was an honest person; she rarely lied, and she was not good at it. Her face gave her away as she avoided O’Reilly’s eyes.

  O’Reilly was sympathetic. His two marriages could not withstand the caldron that was always boiling for the successful trial lawyer. Fortunately, there were no children. “Some of those Dallas lawyers like to push the envelope. I don’t think he’ll go there unless he has good evidence. Judge Martin won’t tolerate any nonsense. But if anything else comes to your mind, be sure to tell me. I don’t delve into my clients’ other lives unless it could affect the case, but a lot of lawyers ask many more personal questions than Mack did. What are your likes and dislikes? Who do you run with? Ever have any trouble with the law? List every job you ever had and why you left. List every place you ever lived. He asked about Deerman because he can’t quite figure out the coalition between an army engineer and a leading environmentalist.

  “Now listen, Melinda, if you and Deerman have a thing or had a thing, he could use it against us, and I need to know. Gotta go. You did fine. Call if you need me.”

  13 Bad News for Mack

  “B RADLEY, I HAVE SOME GOOD news and some bad news. Pick your poison.” Mack had two partners and five associates working to prepare the case for trial. Sherry Radisson was his favorite associate because she kept up with all the news and was his “best lawman west of the Sabine River.” She went to law school after her children flew the coop. What she lacked in legal experience she made up for with a brilliant mind and worldly smarts. Sherry was the strong, silent type. She learned to be tight lipped because of her marriage to an outspoken political activist. They made the perfect couple. Her husband was the boisterous master of sarcasm. She was the master of quiet wit.

  “Let’s have the bad news. I already suspect O’Reilly is calling to settle out his bogus FEMA claim.”

  Sherry kept her serious look, peering over her spectacles, acquired by too many hours on the computer reading the latest cases on Westlaw. “You’re wrong about the good news. The bad news is that Judge Martin and several of the judges have moved their courtrooms back to New Orleans. So much for a more conservative Harris County jury. I’ve already started researching to see who left New Orleans, who came back, and what kind of folks we can expect in our jury pool. If you remember how narrowly the New Orleans mayor was reelected, it may not be too bad. I think his opponent got forty-eight percent of the vote or more. And look at the governor’s race. You will just have to smoke out the bleeding hearts.”

  “I’m not worried about the people of New Orleans who can make a federal panel. They know more about the corruption and politics there than the people in Houston or the rest of the country. The smart ones know that the Corps is only a small part of the problem. We’ll be fine. And the good news is….”

  “Nature Science magazine reports that the North Pole used to be an average seventy-four degrees Fahrenheit. They took core samples and found alligator fossils, palm trees, and ferns. So once again the real science shows the cyclical warming and cooling of the planet, by nature, even without our CO2 emissions. Only problem: that was fifty-five million years ago. Could be an evidence challenge about relevance and materiality.”

  “It’s not relevant, but you don’t think for a minute that those greens with Admiral O’Reilly at the helm will stick to what’s pertinent and real science, do you?”

  “Hardly. They are very selective about their studies and what they tell us about them. Remember they used the same core sample technique to argue that CO2 levels were much lower in past ages. But they forgot to mention the high temperatures at the pole and even the fact there could be gigantic oil reserves in the Arctic Ocean. We had to have had higher temperatures and lower CO2 in the past. How could that be? You can almost bet with all the trees and foliage at the pole that were compressed for millions of years, there could be more oil at the North Pole than Texas or Saudi. Anyway, back to work. Thought you would like to know. I’ll be in my office.”

  “Thanks, Sherry. You know I am depending on you. Good work.”

  2 Back in O’Reilly’s Houston office, Avrum, his feistiest young associate, burst into the room. “Mr. O’Reilly, great news.” Avrum almost couldn’t contain his passion and excitement. “We are moving back to New Orleans for the trial! The federal courthouse there was following some Court Continuity of Operations plan that the chief justice of the Fifth Circuit ordered. Several of the courts are back up and running. Amazing. I think we should get a much better jury than we would in Houston. Those people actually witnessed the complete screw up by the Corps of Engineers. Even better, the Corps has come out with a six thousand page white paper taking a lot of the blame. What a great day for Katrina victims! The Corps admitted to poor engineering and systemwide failures. We already knew that, but now it has been admitted. Mack must be squirming.”

  “That’s good news, Avrum. Unfortunately, great trial lawyers don’t squirm. They are like Hannibal. If one mountain is too high, they find another pass. Before the trial is over, he’ll be selling the jury that it’s their own damn fault the city flooded. This might be a good time to see if we can’t trade some of our newfound capital for some of the government’s money.”

  “Are you talking about Mack’s offer to settle the FEMA case?” “Exactly. He wanted to settle the entire case, including the Corps. Unfortunately, the judge as much as told us he was going to grant their motion to dismiss FEMA. We are better off taking on only one Goliath at a time. And if you think about it, we have problems not only with proving real damages from FEMA, but also I doubt we would ultimately win the standing issue, even with the greens on our side. How can we argue that some people didn’t get their temporary trailers on time so the United States government should pay millions or billions more? The FEMA case makes for good ink, but it’s not supported by good law. You know Sherry over at Mack’s office? Went to Harvard with her, didn’t you? Call her and toss out a trial balloon. Tell her you think you can get me to let FEMA go if they will cough up a couple billion. Mack will be against it. I suspect the White House will go along to avoid another flood of bad press. I don’t want to get personally involved myself in any negotiations if I can avoid it. I know you can handle it. Thanks, Avrum.”

  Avrum got even more excited. Imagine, bringing the greatest government in the world to its knees. “Two billion sounds about right. Think I’ll try for two and a half. That’ll get me some wiggle room.” He galloped on his long skinny legs back to his office and picked up the phone.

  “Hello, Sherry. Avrum here. You heard the good news about going to New Orleans for trial? Well, I also have some really good news for you and Mack. Maybe we can let your incompetent client FEMA off the hook. Here’s the deal....”

  14 Letting FEMA Go

  “G ENERAL MEDINA, BRADLEY MACK HERE. We have those bloodthirsty ambulance chasers on the run. They want to settle and let FEMA go. I can’t recommend any settlement because they will still have the target defendant in the Army Corps. But you told me to see what I could do. They are asking for two and a half billion.
What do you think?”

  “Well Bradley, the president really wants this shut down. So will they settle the whole thing for say five billion? Anymore bad news this year and I think the president will just leave the White House and move to the ranch.”

  “No way, general. But I do have a thought. O’Reilly knows he can’t keep FEMA in the case. Truth is, neither of us wants them in. They will just muddy up the soup, no pun intended. Anyway, we don’t really get anything for paying money for a part of the case we can’t lose. I thought we could offer a high-low deal. We get them to voluntarily dismiss FEMA. We then guarantee them a low of say two-hundred million, and at the same time set a high limit on any verdict of say two billion. That way they are guaranteed some recovery and we are hedged against a runaway jury. That would fit into the president’s thinking about putting a lid on any loss. The government would not be risking a big hit on the markets or on the coming elections. I don’t want to pay the blood suckers a red cent, but you’re the client and it’s your money. Correction. It’s the taxpayers’ money. How many billions have we already paid New Orleans?”

  “Go for it, Bradley. I’ll keep the president informed. By the way, when are you going to trial?”

  “About a month. Judge Martin wants to get rid of us before he takes senior status. You know we’re trying the case in New Orleans?”

  “Yeah. The New York Scoop and the Washington Inquisitor said we would get our comeuppance way down South in the land of cotton. See if you can’t sell that high-low deal to O’Reilly.”

  Mack frowned. He had mixed feelings. Any kind of further settlement offer would indicate weakness, which in turn emboldened O’Reilly. But there was great strategic value in getting rid of FEMA. The FEMA news continued to get worse. There was no way to expect a New Orleans jury to be anything but boiling mad at the agency. Ah well, the White House has spoken.