Katrina: The Jury Answers

by Don Wittig

  “Judge, can you comment on our verdict?” “Again, sorry, I can’t. I can tell you that I thought you were very conscientious, listened attentively, and were a pleasure to work with. Most juries do the right thing most of the time, if that is any comfort. I thank you again for your service, and I’ll let you go. Remember, you don’t have to talk with anyone or you can talk with everyone. Thanks again.”

  “Thank you, on behalf of everyone,” Julia responded. Still she worried. Had Carrie thrown them a curve ball that everyone missed? Everyone except Clarence.

  The jury left the safety of the sequestered area behind the courtroom. As they exited into the main hallway, the reporters descended like buzzards onto a feast. “Ms. Gerard, Ms. Julia Gerard. What did you think about Major Lewis and Bob Deerman?”

  Julia blushed, not quite able to detect where the reporter was going with her question. “They were both great witnesses. Thank God for people like Dr. Lewis and Dr. Deerman. Good people. Standing up for the environment and what is right.”

  “Then why did you only award one hundred billion dollars?” “One hundred billion dollars is an enormous sum, particularly if you add in the billions and billions the federal government has already spent. Look around you. The levees are already three times better than they were before Katrina. I think the government learned at least part of its lesson. I just wish FEMA had been a defendant. We would have awarded a lot more money if they had also been here for us to judge.”

  “Thank you, Ms. Gerard,” the reporter remarked dismissively, turning to Tiashi. “Oh, Tiashi, could I have a moment with you?”

  The lights from the CNN news crew almost blinded Tiashi. The reporter stood close enough to smell the light, delicate perfume Tiashi was wearing—standing almost in her space. “What did you think about General Walker?” Tiashi didn’t like the question, but she put on her best face.

  “He seemed like a fine gentleman. He’s just working for the wrong side. He was paid by the government to say what he said. He talked about responsibility. But the Corps sure didn’t stand up to the plate and take responsibility for the disaster they created.” “So I take it you were happy with the verdict?”

  “No way. The Corps was totally responsible, and we should have awarded some real money, not the minimum we did. I don’t know how we got down to only one hundred billion.”

  As Tiashi turned to leave, Clarence happened by. “Give you lift anywhere?”

  Tiashi gave Clarence a soft, inviting glance. “Not now. Call me sometime after the dust settles.”

  “I will. Count on it.”

  And so it went. Jurors said their good-byes. The press corps combed for sound bites. The jurors plugged their versions and headed for the exits. Not surprisingly, the attorneys asked no questions of the departing jurors. They knew the case was over and final. Lewis and her green comrades would receive twenty-five billion dollars cash within thirty days. The terms of the confidential settlement provided there could be no appeal by either side.

  51 Stalemate

  M ACK CROSSED THE COURTROOM TO shake O’Reilly’s hand. They both exuded warm, professional smiles. “Good job, Bradley. You hogtied us and left us for dead.”

  “Come now, Richard. You took more money from the treasury than the farmers, Halliburton, and Medicare all combined! You know I would be appealing this case if we didn’t have a deal. Anyway, good trial. A pleasure to work with a real pro. Just too bad we didn’t get to try this case in Houston. You were lucky.”

  “Better lucky than good. I enjoyed it too. I’m sure we’ll cross paths again.”

  “Shall we call it a draw?”

  “Stalemate.”

  “Draw, it is.” O’Reilly chuckled as he made his way to the waiting press corps.

  52 The Corps Is Pressed

  MEDIA HEADLINES READ:

  US Corps Negligent Billions to Katrina Aid Jury punishes Corps The Verdict: Guilty Katrina Slams Corps Again

  Mr. Go Is Gone O’Reilly smiled as he read through the papers that Avrum brought him. Avrum grinned and noted, “Here’s my favorite: ‘$100,000,000,000.00.’ Great victory, boss. When do I get my bonus?”

  “Not so fast. We need a check from Uncle Sam or to get our judgment entered by the court. I still can’t figure. It’s almost as if the jury knew what our secret high-low deal was.”

  “A secret no more. Someone leaked it to the New York Times. Don’t know if it was leaked by DC or the courthouse. Knowing Judge Martin, more likely it came from Washington. It’s on the op-ed page. Look at this.”

  53 White House Goes Covert on Katrina

  I NSIDE SOURCES AT THE FEDERAL courthouse in New Orleans confirm the Bush Administration made a covert arrangement with the complainants in the now-completed trial of Melinda Lewis versus the US Army Corps of Engineers. Beyond the view of both the public and the jury in the case, lawyers for the administration struck a multibillion-dollar deal with Lewis and her associated environmental groups. According to sources, one of the biggest culprits in the Katrina disaster, FEMA, was dismissed from the case without taking any responsibility or paying any damages.

  The secret administration deal was sealed and will not be made public until after the judgment is entered. The backroom, off-the-record deal writes the final chapter on the administration’s clandestine operations on multiple fronts. Whether it’s the dank, dark cellars of Guantanamo or the CIA’s destruction of evidence, the administration has tried to hide the ball in every game they played.

  As the lights go out on the current administration, its policy of leaving more unsaid than said comes to a close. Perhaps the new administration will seek to be open and keep its promise of transparency.

  “How do they do it, boss?” Avrum queried. The administration was not at all liked by O’Reilly and his trial lawyer friends. Still, he spoke respectfully. “A lot of people don’t like the Bushes, Republicans, or Texans. Three strikes and you’re out. And you know you it’s hard to keep a secret at the courthouse. How can you keep one in Washington, DC? Anyway, no harm, no foul. It was coming out soon enough. Let’s bask in the hundred billiondollar verdict while we still have it. I’m afraid a lot of people will be disappointed when they find out we settled for twenty-five billion.

  “I feel sorry for our jury. They didn’t know about the high-low deal. And they obviously didn’t know that their damage verdict would be reduced to twenty-five percent. That’s one of the problems with the courts. Sometimes there’s ‘more unsaid than said.’ I just have to wonder if whoever leaked our deal to the Times, might have also leaked it to the jury. It seems a little too coincidental that the verdict is exactly what the high was on our settlement: twenty-five billion. Go figure. What do you think, Avrum? Coincidence or fate?”

  “Damn good lawyering, boss. You now have the largest verdict ever with no chance it can be reversed. That was probably the best part of the deal. No appeal. I guess that also means no mistrial, even if someone leaked to the jury that there was a high-low settlement. I know Melinda Lewis is ecstatic. Deerman wouldn’t be happy unless you got a trillion dollars and then waived your fee. We all know what the Fifth Circuit Court of Appeals would have done to a trillion-dollar judgment or even half that: reversed and rendered. It would have been gone in the stroke of a pen. There’s no way it would not have been reversed.”

  “You forgot one more thing, Avrum. If we had gotten a couple hundred billion verdict, Judge Martin would have granted a new trial quicker than Santa can wink his eye. I’m satisfied we played as good a hand as we could have. Not often do you get to try a great case and be guaranteed a billion-dollar minimum. It’s like having an insurance policy on the verdict. I want to thank you for all your help. You know it’s a team game, and I am fortunate to have the best team.”

  “Thanks, boss.”

  54 The Checks

  “T HANK YOU ALL FOR COMING to my office here in Houston. I tried to honor your requests to wire transfer your funds. Unfortunately, my bank will not wire more than ten mi
llion dollars at once. So here we go. Dr. Lewis, here is your cashier’s check for two billion, six hundred and ninety-nine million, three hundred thirty-five thousand dollars. Bob, here is your check made out to the Sahara Club for the same amount. Bill, here’s your check for Natureone. Sarah, here’s your check for Greenpreserve. And finally, Earthcore’s check for two billion, six hundred ninety-nine million, three hundred thirtyfive thousand dollars. Congratulations to you all. Best of all, there is no appeal, so the government can’t drag this out for another ten or twenty years.

  “Yes, Bob. What is your question? You don’t seem to be as happy as your cohorts. What’s up?”

  “I know your fee was twenty-five percent. What happened to the other five million?”

  “Bob, look at the settlement breakdown. We had additional expenses of five million four hundred and ninety-five thousand dollars. I already reimbursed you for your upfront two million dollars that your organizations put up for expenses and costs. The five million was for all our hotel expenses, expert fees, deposition costs, and other expenses. They are all itemized on the breakdown. As a percentage of the recovery, that’s about as low as I have ever seen expenses run. Typically, expenses on this size of a case will run at least three or four percent—sometimes as high as in the twenties. Any other questions about the breakdown or our expenses?”

  Deerman tried to hide his disappointment. “No. That’s great. This is far and away the biggest recovery we have ever made. This will go a long way to help with environmental issues in Louisiana. Thanks, O’Reilly. You walk on water as far as I am concerned. May we call on you again for our next lawsuit?”

  “Glad to take a look. We stay very busy. But call me, and we’ll talk. If you don’t have any other questions, I’ll have to leave you. Holly will help you with any other details. I’ve got to get ready for another trial in six days. Thanks again for all your help and cooperation. So long.”

  O’Reilly left Holly with Deerman, knowing he listened much better to an attractive, young female advocate. The rest of the group congratulated each other and thanked Melinda for letting them join and share in the lawsuit. Melinda left right away and joined her husband John, who was waiting in the lobby. They went to the bank and then home to pack for their around-the-world cruise. “John, we need to set up that foundation we discussed. I feel guilty taking any money personally from all the suffering our friends and neighbors suffered in New Orleans.”

  John just smiled. He knew Melinda would have her way but not before a well-deserved get-away cruise.

  The remaining directors from Natureone, Greenpreserve, and Sahara Club began discussing how to fight the Corps of Engineers on the way they planned to fill in the Mr. Go ship canal.

  Deerman sounded off. “This is the worst excuse for a supposedly environmentally friendly plan I’ve ever seen coming from the Corps in a long time. But it sure shouldn’t surprise any of us. We need to hire a good lawyer who won’t settle.” Holly blushed. Then Deerman turn to her and smiled. “Holly, why don’t you come work for us? We’ve got your first case all lined up!”

  Epilogue

  THE HIGH-LOW SETTLEMENT AGREEMENT IS a stratagem used in a number of complex and “bet the company” cases. It allows defendants to hedge against a catastrophic loss that could spell political or financial doom for their entities. It also provides the complainant or plaintiff a minimal guarantee, hedging against both a total loss and eliminating the possibility of subsequent appeal and reversal by an appellate court in the event of a runaway verdict such as occurred in the Exxon Valdez and McDonald’s coffee cases.

  The law student Carrie totally misled the jury. In most jurisdictions, a defendant is only liable for its percentage of responsibility or negligence. Thus, Carrie’s argument that the Army Corps of Engineers should only pay for twenty-five percent was technically correct. However, Judge Martin requested the jury to find all the damages caused by the occurrence. All damages caused by the occurrence would include the damages caused by the levee boards, water and sewer districts, other state and local agencies, and everyone who contributed to or caused the Katrina disaster. After the judge received the verdict of one hundred billion, then in most jurisdictions the judge would apply the percentage of responsibility to the damages found. The final judgment in this fictional case would have been twenty-five billion dollars. The jury, through their many compromises and by erroneously using Carrie’s calculus, coincidently ended up with the same figure that the parties

  DON WITTIG KATRINA: THE JURY ANSWERS had agreed to be the high end of their high-low agreement. It is not uncommon for juries to end up in an expected range for the verdict. Because there was no appeal allowed by the deal between the parties, the jury’s mistaken adoption of Carrie’s argument did not come to light. Even if Tiashi or someone else on the jury told O’Reilly or the court about their mistake, it did not matter in light of the settlement deal negotiated by the parties. This mistake or error would be construed as “harmless error” because twenty-five billion was the greatest recovery possible under the agreement. The harmless error rule is generously applied by the law to obviate errors and mistakes that do not affect the ultimate outcome of a case.

  The arguments about global warming have a long way to go before the human race can a true verdict render. There are thousands of variables that cause or contribute to climate change. Our knowledge about the sun, for example, has grown exponentially in just the last decade. Likewise, the study of the influence of ocean currents is just in its infancy. We have only explored a few miles below the surface of our own planet. The Earth’s molten core remains for science to explore.

  One of the great logical flaws that taints our conventional wisdom of so-called science today is the failure to distinguish between correlation and causal relation. Because historically carbon dioxide may be found in greater quantities during warmer climate times, there is said to be a correlation between the two. One of our closer cooler planetary neighbors, Mars, has an atmosphere that has millions of times more carbon dioxide than Earth. Were there any cooling trends on Mars, a correlation could be claimed between a colder climate and carbon dioxide. Its polar ice caps are made of frozen carbon dioxide. The temperatures on Mars range from ten or fifteen degrees below zero Fahrenheit to lower than one hundred-fifty degrees below zero. Is the carbon dioxide there making the planet warmer or cooler? Mars’s orbit around the sun is one and a half times that of Earth. There exists an obvious, a priori correlation between the distance of the sun and the temperatures on any given planet. Is there also a causal relationship? True science would say yes. Is the higher concentration of carbon dioxide found during warmer climes on Earth a cause or an effect?

  Another common logical error of today’s conventional wisdom is the wholesale, thoughtless adoption of the ancient maxim: post hoc ergo propter hoc, after the fact therefore because of the fact. This error is illustrated by the example of picking up the morning newspaper. When the paper is picked up, the sun can been seen rising. The old philosophical query told of the rooster crowing: the rooster crows, and the sun rises. Did the rooster cause the sun to rise?

  In the end, our knowledge, or science, will only increase in an atmosphere of dynamic and open debate. The travel of Albert Einstein from Berlin to Princeton in 1933 symbolizes the closing of one country’s mind and the greater awakening of another. We are challenged not to close our minds as in a cult. Truth is sufficient unto itself to withstand heretical views and strong scientific inquiry. To claim a monopoly on truth is the first cry of the tyrant. Thoughtful skepticism is the sunlight of science.

  “Science, like life, feeds on its own decay. New facts burst old rules; then newly divined conceptions bind old and new together into a reconciling law.”

  —William James, The Will to Believe, 1897

 

 

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