In The Plan - 15. Chapter 15

15

Chance kind of surprised Carleson on this one - and more than once. He and Lee had several pre-trial conferences in the courthouse, but they were routine - all with an assignment judge whose job it was to set up trials, notify attorneys, and move discovery - pre-trial procedures - forward. Details like that. As the trial date neared, Carleson expected to get an adjournment - a temporary delay - because his prep work wasn't quite finished: his expert witness' report was waiting for a few last depositions to come in. Carleson hadn't discussed the adjournment with Lee but wasn't expecting any objection because it was a common courtesy granted by attorneys to each other.

Only when he asked for the delay, the assignment judge had other ideas - and sent the case immediately to a trial judge. Lee seemed as surprised as Carleson, and they both kind of shrugged to each other. Though when the judge's name was announced - Judge Amanda Rojas - Lee broke into a huge, almost uncontrollable grin. Not long after, Carleson heard him whispering to one of his assistants. "We just caught a huge break. Mandy and I go way back - to when we were newbie attorneys in the prosecutor's office."

"Not to panic," Carleson thought. "Preparation was nine-tenths of the work, and the rest was presentation. Besides, the jury wouldn't know that Lee knew the judge.

When they proceeded to her courtroom, Judge Rojas was waiting. Typically, there was a conference before every trial, to try to settle the case out-of-court. But that wasn't happening here because the insurance company refused to make any kind of payment until a jury absolutely certified that Brad Coghlan had been driving the car. This lack of delay also rushed the process along, and soon the judge was asking for appearances.

Carleson formally introduced himself. He'd heard of Judge Rojas, but they'd never worked together. "Ben Carleson for the plaintiff Douglas Hodges, your honor."

The judge nodded then turned to Stu Lee.

"Stuart Lee for the defendant Bradley Coghlan, your honor."

This time, Judge Rojas smiled, coyly. "Nice to see you again, Mr. Lee," she said, seeming oddly amused.

Lee schoolboy-smiled right back, and if Carleson's mind had been twisted in that direction, he would have sworn they'd had something besides a professional relationship some time earlier in their careers. "Still, not to panic," he told himself. They could have broken up badly. Or both could have been married at the time - to people they were still married to. So they wouldn't want their relationship made public. Though so much for a "fair and level playing field."

It made picking a favorable jury even more important, and that usually took time. Carleson hoped it would take just enough time for his expert's report to be finished, but it seemed Judge Rojas was well prepared - she'd read the file and was familiar with the case. Though before she called the first panel of jurors, she paused to discuss logistics with Lee and Carleson.

"How many witnesses do you expect to call?" she asked each of them.

They both had slightly different numbers, but they weren't far off, and the estimates weren't that large.

"And how many days are you expecting for the trial?"

They agreed on two-or-three weeks.

"Sounds reasonable," the judge concluded and moved on. Carleson had to admire her efficiency.

The first panel of potential jurors - a group of about thirty people - was brought into the courtroom. From this pool, Carleson and Lee needed to select six jurors and two alternates. After the whole group was briefed, eight potential jurors at a time were put in the jury box and questioned

"Do you know the parties involved?"

"Do you know anyone on the witness list?"

"Is anyone in your immediate family a lawyer?"

"If so, what kind?"

"Is anyone in your immediate family a police officer?"

"If so, where does he or she work?"

"How long have they been there?"

"What television shows do you watch?"

"Which movies?"

"What news networks do you and your family follow?"

"What magazines do you read?"

"What newspapers - if you still read newspapers?"

"Do you prefer to get your news online?"

"If so, from what source?"

"Have you ever been involved in a car accident?"

"Has a family member?"

"If so, were you seriously injured?"

"Were they?"

"Did you - or they - recover money for these injuries?"

"Did the settlement come directly from the insurance company?"

"Or did the case go to trial instead?"

"Either way, were you satisfied with the outcome?"

Finally, "Can you be a fair and impartial juror?"

Sometimes, Lee asked the questions. Sometimes, Carleson. Sometimes, one or the other would slightly rephrase a question that had just been asked to get a more specific answer. All of the potential jurors were polite. All were friendly. They often seemed to volunteer information designed to disqualify them immediately from the juror pool - or eliminate them completely from jury duty. Sometimes, that worked, but - often - their explanations only made them more desirable, and Carleson could see the disappointment in their faces when they weren't quickly asked to "step down."

"What if I said I was a mass murderer?" he heard a woman behind him crack. She hadn't yet been called, and after a moment, he turned casually to the courtroom clock on the wall behind him just to get a glance at her. From experience, he knew better than to expect a stereotype - no Madame Defarge here - and, indeed, she looked like she could have been any one of his ordinary neighbors. She smiled at him, as if she knew what he was doing, and he automatically smiled back. Then his attention returned to the judge.

The process went on until Carleson and Lee had agreed on eight jurors. It took about two hours. They each had six challenges for cause - meaning they had particular reasons they wanted a potential juror disqualified - and three peremptory challenges they could use for any reason. Sometimes, these were based on personal reactions - "That guy looks like a boss I always hated." More often, they were based on practiced instinct. In all, they settled on five women and three men, and they wouldn't know who the two alternates were until the end of the trial. All were relatively young and mainly white, but there were a couple of Hispanic and Black jurors mixed in.

The jury was seated just before lunch and then was told to take an hour-and-a half break. When the group returned, there was a quiet, whispered conversation among the judge, lawyers, and several other court officials which the jury couldn't hear. But they were told not to talk among themselves and had already been warned not to talk about the case. That meant they could mainly use their cell phones for distraction.

After maybe a half-hour, the judge made her opening remarks. She looked directly at the members of the jury and varied her gaze from one to another. And though she'd been on the bench for a half-dozen years and her remarks seemed informal, some of them were also read - at least, she often paused to check notes in front of her

"Primarily," she instructed the jury members, "your job is to listen to the evidence and then apply it to the law. I'll explain exactly how that works when we get to the end of the trial." She paused to smile. "That's likely to be two weeks from now - maybe a bit longer - and you'll have more than enough to remember and consider before then. So I won't confuse you now with further instructions."

She paused again and looked at every member of the jury to make sure each had been following along. Carleson was watching the jury more than he'd been watching the judge. Her words were important, but he'd heard similar instructions before, and - just then - it was more important for him to study the reactions of the jurors. If they seemed bored this early, it was going to be a tough couple of weeks.

The judge continued by telling the jury that "Whatever Mr. Lee and Mr. Carleson say in their opening and closing statements is not evidence. She made sure to hit the word distinctly, and then repeated it. "It's not evidence - it's their own, separate, private opinions - so it should not be considered as part of what they - or I - or what any of the witnesses say as part of our deliberations."

Now Carleson, Lee, and practically every other lawyer who'd ever been in court knew this warning was useless from a practical point of view. Simply following human nature, a jury can't - and won't - forget things it's heard, either in a courtroom or outside. That's why jurors are warned not to discuss cases, or read about, or listen to anything about them. Media coverage was unlikely for a trial this small, but jurors could still dig up archived, online articles from the accident or even from the first trial. That coverage had also been virtually non-existent, despite the fact it was a criminal trial involving a police officer. It was just too unimportant a case.

Carleson also knew that when a judge sustained an objection or instructed a jury to disregard testimony it had just heard, the directions were borderline nonsense. Jurors heard everything and retained everything, just as they came into the courtroom with their own life experiences, prejudices, and biases, no matter how carefully they'd been screened. It was part of the legal system, Carleson knew, and he always hoped it balanced in the greater name of democracy.

Doug Hodges hadn't been in the courtroom at the beginning of the jury selection. It had all happened too quickly, and Carleson didn't have an assistant with him or a chance to call. But almost immediately, he texted Doug, and his client got there as quickly as possible. It was important for the jurors to see Doug.

After the day was over, Carleson filled Doug in. Some attorneys rarely spoke to their clients, especially after their trials began, but Carleson prided himself on keeping his clients informed. He also allowed them easy contact. They'd never have to call his office, be told by an anonymous receptionist - or worse, a machine - to leave a message, then never have their calls returned. His cell phone number and e-mail address were right on his business card, and his clients could call, write, or text him 24/7. In return, they seemed to respect his privacy and only called when it seemed really necessary.

"Wow," Doug said, as they walked to the parking lot. "I didn't think it would go that fast - I mean, after all these delays."

It had been almost three years since the accident.

"Yeah, things went a little quickly for me, too," Carleson admitted. "I thought we had another few weeks."

"Then I'll see you in the morning," Doug replied. "But I don't think Jenny will be there."

"It's short notice."

"Though she may be able to get off."

"Maybe she should wait a bit," Carleson counseled. "After all, you're just going to sit there for a week-or-so, listening. I won't put you on the stand till the end of my list."

"That's what happened the last time - I sat a lot."

"It's not a quick process."

"As long as it's fair this time."

"It will be."

Doug seemed to think about that, and Carleson wanted to say, "It was probably fair the last time, too. It just didn't go in our favor." He mainly trusted the jury system, but even at its best, he knew it could be manipulated - sometimes benignly. The weirdest things could change a person's mind - and then a jury's. But that's why there were appeals and retrials.

"Quiet day?" his husband, Edward, asked when Carleson got home - they were on Long Island that night.

"Anything but," he allowed. "Things didn't exactly go my way."

Edward was concerned. "What happened?"

Carleson quickly explained, and Edward sort of shook his head. "That is a surprise." Then he laughed, clearly remembering something Carleson had said. "You're sure about Lee and the judge - their previous relationship?"

Carleson grinned. "No. That's entirely supposition, your honor. But it sure would be funny."

And that's perhaps the last thing Carleson took lightly about the case for the next several weeks. From then on, Edward knew his husband would be in trial mode. Edward had been through it hundreds of times over the twenty-five years of Ben's career and their marriage.

Carleson was normally very calm and level-headed, both personally and professionally, and that didn't change during a trial. But he followed a different routine. He woke very early and got on the treadmill, not his Peloton bike. He ran exactly three miles while concentrating on what was ahead for the day: Who he was calling as witnesses. What he needed to get from each of them. If it was a defense witness, what he needed in the cross-examination. If the day was an opening or closing, he'd rehearse his remarks in his mind, sometimes with outline notes propped in front of him, to remind him exactly what he needed to include. He walked his three miles in thirty minutes - a ten-minute mile. Respectable, but more important, the time he needed to prepare. Next, he'd shower, shave, and put on the suit, shirt, tie, socks, and shoes Edward had prepared the night before. It was a habit they'd followed since they started to live together, years before they were allowed to be married. Carleson felt it was not only good luck, but he knew his husband had a instinct for what was right for each jury. Carleson would described the jurors when they were chosen, and Edward would begin to pick ten outfits out from memory. He'd add more if a trial went longer.

Carleson didn't always eat breakfast, but during trials, Edward would insist on making him something small and nutritious. In addition to Edward's other strengths, he could add health coach/nutritionist. He knew what people should eat and when and knew Ben went 100 miles-an-hour during a trial, working eighteen-hour days. He needed to feed his engine to maximize his results. So an egg white omelette with whole grain toast was the go-to meal to start the day. Carleson didn't like coffee and claimed he'd never drank a cup in his life, and Edward didn't keep orange juice in the house because it had too much sugar. So it was cherry-flavored club soda, Vita Water Zero or Diet Snapple.

Carleson would come into the kitchen dressed in the appointed clothes, do an abbreviated Catwalk, then down breakfast in two minutes - no time to spare. It's trial mode until it's not. Then he'd kiss Edward goodbye and drive the twenty minutes to the Mineola courthouse. Finally, it was Game Face on.