by Don Wittig
“When you go back to the jury room, remember the good the Corps has done. Remember the Corps did not cause one degree of global warming. If your child does what you tell him or her to do, you can’t say your child was negligent for carrying out your instructions. When the Corps built the Mississippi levees that prevented flooding and that withstood even Katrina, we were not negligent in doing what Congress told us to do. Perhaps in hindsight Congress should not have told the Corps to turn over the New Orleans levees that failed to local authorities. However, the Corps did what it was supposed to do and was ordered to do by Congress. Perhaps the state of Louisiana and the local levee boards didn’t realize they signed off on total responsibility for the levees. That does not make the Corps negligent. The Corps tried to prevent the surge flooding into Lake Pontchartrain with new floodgates. You know what happened. The environmentalists killed the project. When the Corps inspected the levees, we told local authorities what needed to be done. If they didn’t do what they were supposed to do, who was actually negligent? It was like delaying the levee repairs caused by the train wreck. That is not the responsibility of the Corps.
“Use your common sense. Place the lack of ordinary care, the negligence, where it belongs. Answer ‘no’ to question one. If you get to question two, which I doubt, I suggest you answer the damage question with one hundred million dollars. That’s a lot of money, and that doesn’t include the billions of dollars Uncle Sam has already given to New Orleans and the state.
“Finally, if you have to answer the last question about percentages, Major Lewis and her cohorts have the burden of proof. That means your first answer is zero. Then look at the proof. Did they prove one percent or two percent? Make them prove every single percentage point. That is what the law requires. There is no question that Louisiana and the local authorities signed off on one hundred percent of the responsibility. There is no contrary evidence. Zero is the absolutely correct answer. Remember the other evidence about responsibility. The evidence shows that the local levee boards, the sewer boards, the water boards, all the parishes, and the environmentalists who prevented the Pontchartrain floodgates all share responsibility.
“If you think you must write in another number above zero, we could live with five or six percent. Remember your solemn oath to try this case and a true verdict rendered based solely on the evidence and the court’s instructions. Follow your oath and you will not wake up the next day wondering, ‘What did I do? What did I do?’
“One last request. If I said or did anything you think was wrong or I offended you in any way, I want you to tell me about it after your verdict. Don’t scorch my client for anything I did or said. That wouldn’t be fair. Tell me. I’ll listen.
“I am confident you’ll do what’s right. You know this lawsuit is not about the environment, safety, or even good levees. This case has always been all about the money. It’s always about money. Listen to what Mr. O’Reilly says and ask yourself the question: isn’t it all about the money?
“Ladies and gentlemen, thank you for your attention throughout the trial. The defense rests.”
41 O’Reilly Turns on the Heat
“M Y GOODNESS. THE ARMY CORPS of Engineers built you all a house and you let the roof rot away. Now somehow you are responsible for the levees breaking. Remarkable. The state of Louisiana is responsible. New Orleans Parish is responsible. The Orleans Levee Board is responsible. The water and sewer boards should have stopped a cat three storm surge. Goodness. And this from a fighter pilot hero who preaches individual responsibility! Let’s look a little closer. Isn’t it more like a builder who doesn’t secure the rafters of the roof to the frame? More like a builder who uses five different types of roofing material. More like a contractor who only uses hurricane clips every ten feet instead of one on every piece of lumber that’s supposed to secure the roof. Yes, the Corps is like a builder. It’s like a builder who goes broke every housing code because it uses slipshod engineering and poor materials. It turns over a third-rate house to you and then claims you have the sole responsibility to make a silk purse out of a sow’s ear. Everyone in this courtroom knows who is responsible for this man-made disaster that created Lake George in the living rooms and bedrooms of southern Louisiana and the Ninth Ward.
“Remember the facts. The Corps knew or should have known that contractors put in ten-feet-deep I levees instead of the required seventeen-feet-deep for some panels. General Walker admitted some of the levee panels were only sunk to ten feet. We all know those panels should have and could have been fifty to seventy-fivefeet deep. Why? Because everyone knows New Orleans is built on a sponge. And the sponge is sinking.
“What about the tops of the levees? T-shaped panels could have been acceptable, better protection. Protect the levees from washout when there is overtopping or a breach somewhere else. They could have used riprap to protect the tops of the levee walls. Where was Mr. Mack’s roof to protect the tops of the levees?
“Engineering. Katrina was a cat five in the Gulf. What was she when she hit? A cat three. What did the Corps say they engineered the flood protection of New Orleans to be? Cat three. Did they or did they not? Where did the cat three Katrina hit? Seventy miles east of New Orleans, not New Orleans. So much for engineering and building a great house and turning it over to the folks in Louisiana.
“Global warming. Most scientists agree the Earth is warming. But I don’t care whether you believe Al Gore or not. We know, and the Corps knows, that New Orleans gets clobbered by monster hurricanes. Are they getting worse? All the more reason the Corps has to shore up its protection for all citizens. Are hurricanes getting weaker? Then why did the Corps itself attempt to build levees strong enough to withstand a cat three storm? You tell me. Even Mr. Mack doesn’t talk about global cooling.
“Mr. Go. Another environmental disaster. Blame that ditch on the people in St. Bernard and Picayunes Parishes. But the parish people didn’t cut and dredge up the natural wetlands protection of the state. Tens of thousands of brackish marches and hundreds of acres of giant cypress trees destroyed. Rip out our natural barriers. Destroy nature and create funnel effects with your ICW and Industrial Canals. Make sure to maximize any surge. Next time maybe the Corps can totally flood all three parishes.
“The Corps’ own General Walker admitted over seventy neighborhoods were flooded. Seventy-three. How many were completely underwater? Thirty-four. A few months before Katrina, the Corps did its annual inspection of the levee system. How did we do? The Corps said the system was adequate. Adequate for what? Adequate to make sure we had the worst man-made disaster ever wrought on any people of the United States of America!
“Blame Greenpreserve and Natureone. Way back in 1965, the Corps claims it wanted to put floodgates on Lake Pontchartrain and a couple of small environmental groups stopped them. Those groups couldn’t stop Mr. Go. Are we to believe that if the Corps really thought they could have prevented the Pontchartrain from flooding New Orleans that they would not have persisted? What about the Corps’ responsibility to pursue policies they believe will save lives and homes? Where is the leadership? Where is the mission and purpose of the United States Army Corps of Engineers? Where is the professional engineering? Is it ordinary care and prudent responsibility to claim to know what is right and then abandon the idea to what is wrong? No. That is what Judge Martin defines as negligence.
“Remember, the environmentalists tried to stop Mr. Go. They have fought to protect our wetlands to help save the coast lands. The Sahara Club specifically has stopped the Corps from destroying our natural barriers to sea surges again and again. They are on your side. They are on the side of responsible land and water management. Can we say that about the Corps of Engineers?
“How many Corps of Engineer levees have to break before they accept responsibility? Ten or twenty? How about fifty. There were fifty major breaches after Katrina. Yet Mr. Mack wants you to put five percent responsibility on the Corps. What is their evidence that the parishes or levee boards cau
sed even one breach? The answer to the all-important question three should be one hundred percent. But I’ll be reasonable and knock off maybe ten or twenty percent for the railroad bridge and some small mess ups by a few of the local folks. Just don’t be fooled into going below eighty percent when you answer question three about the Corps’ percentage of responsibility for the damages.
“To put this case to bed, let me let you know one last time what
the evidence requires you to do. You must follow your oath to ‘a true verdict render.’ Question one: yes, the Corps was negligent. Question two: the damages were one trillion dollars. Question three: the Corps is eighty to ninety percent responsible for the damages. Follow your conscience. Follow the evidence. You won’t have any problem reaching the right verdict.
“Thank you for your close attention. Thank you for accepting your civic responsibility. Thank you for telling the Corps to take responsibility for this horrendous, man-made disaster.”
42 Deliberations Begin
J UDGE MARTIN EXCUSED THE JURORS into their deliberation rooms. The judge had arranged a suite of three rooms so that the jurors could spread out. The larger space was also needed to house the hundreds of exhibits admitted during the trial. The three rooms consisted of one large conference room with a table, an adjoining anteroom, and another adjoining room that had a refrigerator, microwave, and snacks. The jury ate their meals, taking turns in the makeshift kitchen. When the jurors arrived, they instinctively went to the large conference room and sat down. They were ready for business, perhaps even a little anxious.
Tiashi immediately spoke up and made it plain she thought Julia should be the presiding juror. The others nodded and deliberations began immediately.
Back at O’Reilly’s suite at the hotel, the major players hunkered down for the arduous and unnerving wait. Deerman was first to speak. “Mr. O’Reilly, it’s been a pleasure to watch the master work. I couldn’t be happier! You nailed that SOB Mack to the cross. Our witnesses were one hundred percent better. Mack didn’t lay a glove on any of them. And you ripped his witnesses. There was blood on the floor. And it wasn’t ours. I think they’ll find one trillion dollars in damages caused one hundred percent by the Corps. Well done! You’re the best.”
Deerman continued, “You know there are believers and deniers. I say it’s a great day for the believers.” “Now, Bob. Let’s not go overboard. Juries see things differently than we do. I’m not sure but did you notice that Clarence Holmes seemed to be hiding a scowl toward the end of my argument? I thought he was on our side until the very end. We’d better hope we get someone like Julia as our presiding juror. She can lead the jury the right way. If Holmes is elected presiding juror, we could be in trouble. Dr. Lewis, what do you think?”
“First, you did a great job. Congratulations, win, lose, or draw. However, I think that Bradley Mack scored a lot of points along the way. You could tell he was handpicked by the White House. He won for the president in Florida and he could win in Louisiana too. He was just so tenacious. I definitely think you got the better of him. But as you say, who knows what a jury will do. I’m glad you made the deal with Mack so that we have our guarantee. There is no way we can lose.”
Dr. Lewis continued, “I am a little curious about that young juror Carrie. What’s her last name, Guidry or Gaudet?”
“Guidry. She’s OK. Some kind of graduate student. Been very quiet though.”
“Still waters run deep,” Lewis responded.
“Listen, Dr. Lewis. You know that high-low guarantee agreement you just mentioned is a double-edged sword. Sure, we got the one billion dollar guaranteed upfront money that more than paid for the lawsuit. But if Deerman gets his wish for a trillion-dollar verdict, we’ll be limited to twenty-five billion. Like I told you before, I know the Fifth Circuit Court of Appeals will not let us keep a trillion-dollar verdict on appeal anyway. In fact, I seriously doubt Judge Martin would let us keep it either. Pigs and hogs. Well, it’s in their hands now anyway. Can’t say I would have done anything differently.” O’Reilly smiled, concealing his slight guilt for his white lie. Truth is, if Deerman hadn’t been so over the top, we probably would have done even better.
2 Meanwhile in the back of the courtroom, Mack’s coterie relaxed. Sherry spoke first. “Bradley, you punched some real holes in O’Reilly’s ship. Walker was superb, although Waters could have been a little less technical. Boudreaux helped us with the women. Major Lewis was their star. My biggest fear is that Tiashi and Julia bought her story hook, line, and sinker. If one of them is elected presiding juror, we could be in trouble. But what can you do, trying to defend the US government in this disaster? Now every time there is a fire in California, a volcano in Washington, or a hurricane in Florida, people will always look back to what happened in New Orleans. What’s so unfair is that people lump the Corps with FEMA and gloss over all the good work by any government agency, especially the Corps. People today just like to blame the government for everything.”
Sherry paused thoughtfully then resumed. “Worse than that. Too many folks today think the government is responsible for everything. I’ve seen that change in my lifetime. My grandparents were farmers. Some years they made it. Some they didn’t. But they never ran to the government for any of the hundreds of billions in subsidy handouts like today. Seems like almost every group wants their take of the tax pie. No wonder taxes keep going up—not to mention trillion-dollar deficits.”
“Sherry, I like your analysis. Lewis has always been the key. I actually like her. She’s honest and smart. I thought her red hair would get her into more trouble than it did. She handled my questions very well. You have to wonder about her taste in men. If she likes Deerman….” Mack paused and smiled, ready to take his medicine.
“Stop that, boss. You saw the trouble you got in with that line of thinking. Quit while you’re ahead. She probably just got a little tipsy and lost her way back to her room. That’s one place I wish you hadn’t ventured. Americans like their privacy.”
“You’re right as usual. Well, guess I better call General Medina and give the White House an update. I feel pretty good about the trial. I think we minimized the damage. If we don’t get too much home cooking from the indigenous jury, we’ll be all right. You folks can wander around all you like. Be available by cell. Sherry, you’ll stay here at the courthouse with me?”
“Yes, of course.”
43 In the Jury Room
J ULIA GOT RIGHT TO BUSINESS. “It might be good to just go around the table one time and let everyone give their first impressions. Then we can get down to some serious negotiations. Tiashi, do you want to go first?”
“Sure. Thanks. I liked Dr. Lewis, Dr. Brossard, and Dr. Deerman. O’Reilly can come to dinner at my place anytime. That Mack guy is like a bull in a china closet. He probably dropped napalm bombs on children and babies in Viet Nam. He disgusts me. And I didn’t like any of his witnesses except General Walker. He wasn’t too bad. So, I don’t see why we can’t get out of here by tonight. Yes, the Corps was negligent. The Corps was one hundred percent responsible, and we should give the plaintiffs either nine hundred billion or a trillion dollars. Too bad we can’t give them any more.”
Ms. Hebert took her turn next. “Both sides made some good points. I don’t like to get into personalities, but I thought all of the witnesses for both sides were good. And we were treated to some very good lawyering. I agree the Corps was negligent, but I don’t see how we can find them more than twenty or twenty-five percent responsible. What about the railroad bridge? They had the money and didn’t fix the floodgate. The levee boards were responsible for maintenance. Some not only didn’t do maintenance but weakened the levees. There’s an awful lot of responsibility to go around. I wonder why O’Reilly didn’t sue the state and local people for their share of the damages they caused.”
Pete Poirier spoke next. “I agree with Ms. Hebert. Sounds to me like everybody was negligent, from the governor, the mayor, to the water and sewer boards
. Still, I believe we need to give Dr. Lewis and Greenpreserve some serious money to make amends for all the government screw-ups. Too bad Dupuis, that engineer, didn’t make it onto the jury. He could have explained some of the technical stuff to us.”
Frank took his turn. “Well, Mr. Mack said we should award about a hundred million. I think I agree with that. That’s a lotta money. And what is Greenpreserve and ‘Naturuno’ or whatever and all those greens gonna do with our taxpayer money anyway? They’ll probably just use it to make some silly movies and pay some lawyers to sue even more people. Right now they’re trying to stop a new freeway by my uncle’s place. The global warmers are the reason for oil prices skyrocketing. Won’t let us drill in our own country. We’re sitting on billions of barrels of oil. We have more natural gas than the Saudis have oil. But no. They know what’s best for the rest of us.”
“Wait just a minute,” Marianne Trotsky interrupted. She spoke out of turn, but by the look on her face, she was both incensed and insistent. Marianne was a Russian-born émigré whose family had long been involved in environmental issues in the old country. “I happen to know we could be in a lotta more trouble if it wasn’t for some of the people to speak up for the nature and the animals. What if your Corps of Engineers had listened to the nature people about that Mr. Go Canal? What I heard, at least half the hurt could be stopped. Thank goodness some people should speak up for the nature things. That Mr. Mack works for the government. I know we should be suspicious of the government. The government says one thing then does nothing or makes it worse. It is what we call in the old country ‘propaganda.’ We need to protect our earth. Never listen to the lies of the government!”