In The Plan - 16. Chapter 16

16

Ben Carleson stood in front of the jury and smiled. He was familiar with addressing jurors, though half of his present work was consulting - advising other lawyers. Still, it was good to be back in a courtroom.

"This may be the easiest decision you've ever had to make," he began. "Because it answers the all too common, absolutely logical question: "Would you let a friend drive drunk?"

For a moment, he let the five women and three men think about that.

"Now you know the answer right there," he went on. "You don't have to listen to two weeks of 'he said' and 'she said' and 'I didn't' and 'you did.' You know the answer in your gut. You've been taught what's right since you first learned about alcohol and realized how dangerous it can be. Some of you might even have taught the answer to your kids - or to your younger sisters and brothers. It's instinctive. It's knee-jerk."

He stopped short of saying, "It's in the Bible," though he probably could have built a case that when Moses showed up with The Ten Commandments, and everyone else was partying, they were doing the equivalent of driving drunk. "And we know the result of that," he might have gone on. "Crash. Moses had to get out his chisel again."

But Carleson wanted to be more specific. "You're going to hear a lot of details," he continued. "Mr. Lee..." he pointed toward Stu Lee, "...the defense attorney, and I are both going to give you context for those details. Some people say context is everything. 'I never would have done that if...' 'I never would have said that if...' But in this situation, the context is almost always going to be the same: Mr. Lee and I will present nearly the same people. We'll talk about the same - or very similar - places. We'll analyze the same decisions. Only the views you'll be asked to take will be different - and maybe only barely. But one of these views - one of these proposed contexts - might be a little too theoretical for some people's tastes. A bit too extreme."

He paused again.

"It's common sense who was driving here," he quickly resumed. "It's a straight and simple case. Who would even drive the way it's been reported? Doug Hodges has a long history of being a low-key, well-grounded, almost too precise man, with a reputation of being the most reasonable person in a room. And that's not just an opinion I've formed over the last three years - in the time I've gotten to know him. You'll hear a lot of people tell you that Doug was always this responsible - going all the way back to high school and his navy days - and we could bring in a lot more. The number is only limited by the number of people Doug's met and has worked with in his lifetime. Some of the people you'll hear from have known Doug for over thirty-five years."

He paused to look at Doug, and they smiled to each other.

"In contrast," Carleson picked up, "we have Officer Brad Coghlan."

At that point, Judge Rojas interrupted with a comment. "Since Mr. Coghlan was off duty," she instructed, "and not in uniform on the night of the unfortunate accident, the defendant will only be addressed as 'Mr. Coghlan.'"

Lee readily agreed, trading amiable nods with the judge. Carleson had some reservations: the usual protocol was to call people by their highest titles achieved - out of courtesy. For example, "President Clinton," though he'd long been out of office. But Carleson knew his case wasn't built around Brad Coghlan's being a negligent cop. It had nothing to do with either his being on the police force or his competence at that job. So he could let the objection go. Besides, if Carleson needed to slip in "Officer Coghlan" occasionally - for emphasis or simply by mistake - it wouldn't hurt to be reminded by the judge. It might even make the jury think she was being too picky.

After Lee returned to his seat, Carleson again faced the jury. "In contrast," he resumed, "we have Brad Coghlan" - and in no way did he try to make the name sound sarcastic. "Mr. Coghlan is younger than Mr. Hodges, and that alone makes some difference. For example, Mr. Coghlan hasn't been married for twenty-seven years." Carleson chose to exclude the fact that Doug had been divorced after those twenty-seven years and had only recently remarried. He smiled as he watched Lee make a note of that but knew the detail would seem too personal for Lee to use.

"Brad Coghlan," he went on, "also hasn't helped raise two successful sons. He hasn't held the same job for over thirty years - in a field where technology is constantly changing, so people are frequently replaced. In order to build his career, Doug Hodges has steadily remained flexible as he's been retrained, has met with, and has cooperated with an ever-changing group of new colleagues. Then he's had to pass what he learned on to his often changing staff. That's certainly not to say that Mr. Coghlan isn't a cooperative man..."

Carleson directed his attention to Brad Coghlan simply by glancing that way, and he watched the jury reflexively follow his lead. Coghlan had been sitting there nearly scowling. Maybe he was trying to look serious, or maybe he was uncomfortable being talked about. In either case, it had the same result. Further, when everyone looked at him, he defensively jerked his stare down at the table. It wasn't the best look to give a jury, and Carleson and Lee knew that. But Carleson didn't have to do anything about that.

Ironically, Brad Coghlan was also sitting there with a small gold police pin on his suit lapel - which undercut the judge's concern that she didn't want his profession emphasized or even indicated. Still, maybe Carleson would recognize the pin more readily than members of the jury.

"Brad Coghlan may well be a very cooperative man," Carleson virtually repeated, "but he hasn't been doing that as an adult for over thirty years. In fact, by the broadest definition of 'adult' - maybe starting at eighteen-years-old - Mr. Coghlan hasn't even been an adult for twenty years."

Carleson sipped from the glass of water he'd readied on his table. He felt fine but didn't want his voice to suddenly weaken when he needed it.

"Still, it's not Mr. Coghlan's fault," Carleson emphasized, "that he doesn't have Mr. Hodges' experience. Maybe he will in another fifteen years." Carleson watched Lee scratch out another note he'd written. "And a person can often make as responsible decisions at eighteen as at fifty-two."

Again, he glanced at Doug Hodges - who once more smiled as the jury turned his way. He couldn't have seemed more opposite from Coghlan.

"So the questions," Carleson asked, "are 'Who made the more responsible decision on the night of this accident?' 'Who chose to drive when he knew full well he shouldn't?' And 'Who was forced to come along on that ride because he'd promised a roomful of people - a roomful of his good friends - that he'd make sure that 'Nothing bad happened to Brad.'"

There was a certain rhyme to "Nothing bad happened to Brad," and Carleson knew he shouldn't have been that informal in addressing the defendant. In any case - technically - he'd supposedly been quoting Doug.

Again, either way, Carleson waited to let the phrase be absorbed. He liked silences and didn't feel the need to fill the world with talk. Plus, he knew juries needed time to think.

"When you do start listening to the witnesses," he soon continued, "- both Mr. Lee's and mine - I'd like you to think about their credibility. I'd like you to think, 'What makes a person credible?' And 'Who has the motivation to lie?' Also, "Who has the best reason not to remember?' Because I know that 'not remembering' isn't the same as 'lying,' and that often - especially after a terrible accident like this - there are reasons why people can't remember. They not only can't remember details - they can't remember anything." He silently addressed attention again to the downward staring Brad Coghlan but didn't stop. "Still, I'd like you to ask yourselves, 'Is that what's happening here?'"

He paused to look at a three-by-five index card in his hand. He'd held it there from the beginning though doubted he'd need its prompt. He didn't need it then, but it gave him a way to start a new subject.

When he looked back at the jury, he said - maybe even more solemnly - "My client, Doug Hodges, was seriously injured in this accident. He spent almost a year away from work - in the hospital, in rehab, or in outpatient rehab that he still occasionally continues today. And he was injured as the result of negligence. Doug was acting as a Good Samaritan that night, and he had a terrible choice to make. He was forced to make that decision due to another man's selfishness - another man's carelessness. Doug had to choose whether to get into a car and escort his friend home and then walk the half-mile back to where he would have rather safely stayed. Or to let someone who was obviously, visibly drunk get behind the wheel. This was one of those life choices that no one - not any one of us - should ever have to make."

"Brad Coghlan was also injured in the accident," Carleson admitted. "There's no denying that, and no point questioning 'Who was more seriously injured?' or 'Who was in more pain?' or 'Who will suffer from these injuries the longest?' But there is reason to ask 'Whose negligence made this accident unnecessary? - completely unnecessary?' And it's not even a matter of drinking. Doug Hodges was admittedly drinking, too. People will tell you, 'Oh, yeah, I saw Doug with a drink.' But it was one, watered down, ounce of Scotch - on the rocks - and he slowly sipped it over the course of an hour. By contrast, Brad Coghlan split a pitcher of beer with his partner and had at least two, high-powered, highly alcoholic shots in the hour-and-a-half before Doug first saw him roughhousing with their friend, Cole."

"You're going to hear this from a lot of people who were with Doug and Brad that evening. You'll also hear from other witnesses - Joseph Muraro, Randall Uzoma, Issac Yoguez, Jyoti and Ahmed Patel, and Kiri Shahid - who either saw Brad Coghlan's speeding car just before the accident, actually watched it crash, or saw it immediately afterwards. In addition, you'll hear from Dominic Guerra, the officer who made the Official Police Report, and from Jonathan Feder, an expert who's spent much of his long professional career reconstructing complicated automobile accidents in which the driver and passengers somehow survived. Finally, you'll hear from Doug Hodges himself - and he'll tell you exactly what it was like - how helpless and terrified he felt - as he rode along that night as a passenger in Brad Coghlan's speeding car."

He looked at Doug for a moment.

"I know you'll listened attentively to all this," Carleson went on. "And I know it's a lot to absorb. But I also know that - at the end of the trial - you'll use common sense and logic to decide who was driving."

Carleson knew he'd lifted the "common sense" theme from Stu Lee's closing in the criminal trial - he'd read the transcripts. But he wanted to diffuse the strength of those words and make them his own in case Lee chose to use them again. Besides, Carleson completely believed that jurors should use their common sense in determining who'd been driving the Mercedes that night.

Almost finished, Carleson once again looked carefully at each juror's face. Then he simply said, "Thank you."

As he sat down, Carleson thought about the things he'd decided not to say. He could have gone through the chronology of what had happened leading up to the accident, but he'd let Doug's more personalized testimony do that. He could have described Doug's injuries in detail and talked specifically about his month-long hospitalization and year-long rehabilitation. He could have spoken about the residual effects Doug's injuries continued to have and what limits his doctors had predicted for his future. But other witnesses Carleson planned to call would better explain those details when the appropriate times came.

Carleson further didn't explain that in a trial like this, the lawyers didn't need to request a specific amount of compensation from the insurance company. That had already been determined in his "All-or-Nothing" phone call. This was a special kind of trial - known as a Bifurcated Trial - and the only issue was to determine who was driving. The jury needed to determine liability or who was at fault. That's all the insurance company really cared about. Once they heard the verdict that Brad Coghlan had unquestionably been at the steering wheel, the insurance company would fully honor Doug Hodges' demand of the full policy limits. And Carleson was confident that would happen.