act, you often tear up the script.
You need strategy, and that is different from preparation. Building your case is one thing. Changing it as you go is another. Imagine you are building a house. You dig the foundation and carefully follow the plans. You lay every block in line, drive every nail straight, and align every wall true.
That is the way most people live and work. But with generals, coaches, and lawyers, it is different. Just when you get that two-by-four in plumb, some joker with a sledgehammer whacks it out of place. Lay in the wiring, and the same joker shreds it. As soon as the windows are in place, you hear the sound of tinkling glass.
The lawyer, like the general, must have a plan, but must also foresee the opponent’s next move. And when the move is a surprise, you’d better have plans A, B, and C ready. If war is endless boredom interrupted by moments of sheer terror, trial work is deadening preparation followed by panicky ad-libbing.
I didn’t expect the excited utterance from Melinda Tupton, and I was unsure how it would play, Tupton’s fears about a document so sinister as to evoke his worst nightmares. For once I didn’t agree with Marvin the Mayen. I doubted that the intent was to provoke sympathy for the Everglades animals. No wood storks died in the Florio wine cellar. I thought Patterson was simply trying to create animosity toward Nicky Florio. It even helped Patterson’s case that the document was unseen by the jury. What is more horrifying than the unknown?
Maybe Patterson’s strategy went like this:
First, convince the jury that Peter Tupton was a good man.
Second, suggest that something planned by Nicky Florio repulsed and terrified Tupton.
Ergo, as Charlie Riggs would say, Nicky Florio is a bad man.
At the essence of every case is the attempt to get the jury to like your client and hate the opposition. When liability is foggy, it makes the hard evidence less important than raw emotion.
It was just after lunch when I finally figured out what Patterson was doing. It became clear as I was thumbing through the plaintiff’s proposed jury instructions.
The instructions are the last words the jurors hear before retiring to their little room. Each side prepares an independent set. The introductory ones are innocuous. Jurors are told to test the believability of witnesses based on their experiences. They are instructed not to base their verdict on sympathy, an important one for the defense in a death case. They are told that negligence is the failure to use due care and that they should also evaluate the comparative negligence of the plaintiff, which can reduce a verdict.
I was standing at the clerk’s table, skimming through Patterson’s requested instructions.
Ho hum.
The standard stuff. Believability of Witnesses, Prejudice and Sympathy, Definition of Negligence, Punitive Damages. Whoops. What was that again?
Buried in the stapled stack of the plaintiff’s instructions was one simply entitled Punitive Damages.
If you find for plaintiff Melinda Tupton, as Personal Representative of the Estate of Peter Tupton, and against defendant Nicholas Florio, you may consider whether in the circumstances of this case it is appropriate to award punitive damages, in addition to compensatory damages, as punishment and as a deterrent to others. Punitive damages may be awarded in your discretion if the conduct of defendant Florio was so gross and flagrant as to show a reckless disregard of human life or safety.
The jury-charge conference would come at the end of the case, but I couldn’t wait. I buttonholed H.T. Patterson at the plaintiff’s table. “What the hell’s this?”
He shrugged. “The standard punie charge, right out of the book. You may recall we amended the complaint to include the claim.”
“I recall, but that’s a throwaway. There’s no evidence to support-”
“No evidence! Jake my boy, were you listening this morning? It’s quite obvious. Peter Tupton had discovered something so heinous that your client dispatched him.”
“Are you out of your mind! You can’t prove that.”
“I’m not claiming it was a premeditated murder, and you’re half-right. There’s no way I could prove it, at least not in criminal court. But, Jake, we’re downtown with the buzzards, who, strangely enough, only circle the civil courthouse. I’ve always wondered why they stayed away from the criminal-justice building, but-”
“What’s your point?”
“Simple. I only need to prove my case by a preponderance of the evidence, and the way I figure it, the jury will conclude that Florio discovered Tupton in the den. They argued over the document. Nicky Florio’s not the kind of guy to pull out a gun. He tries to smooth-talk Tupton, maybe even offers him a bribe again.”
“What do you mean again? My objection was sustained. Your client never got to answer-”
“But there was the question, wasn’t there, Jake? Come now. You knowhow jurors pick up the slant on things. You were sweating bullets to keep out the answer, and you did it, but the jurors saw it. They think your guy’s dirty, and frankly, so do I.” Patterson gave me his cat-to-the-canary smile. “You want to hear more?”
“I’m all ears.”
“Whatever Florio tries, threat or bribe, it doesn’t work. Tupton’s too honest. Florio isn’t used to this. He’s been buying off zoning boards and county commissioners for so long, he doesn’t know what to do. He needs time to think. Tupton’s already had too much to drink. Florio wants him to drink some more. At first, I thought they probably went back out to the pool. But no, at this point, Tupton’s getting loud and excited. You heard his wife’s testimony. He was hyper, and there are politicians and journalists outside. Florio can’t afford a scene. And if you recall, none of the guests can place Tupton outside again after he went inside to piss.”
“Or to spy.”
“Have it your way. But there’s a wet bar in the den, did you know that?”
I didn’t know, and I didn’t answer.
“It’s really quite a nice bar.” Patterson smiled malevolently. “When we had the inspection of the house in discovery, we took photos. Polished teak, I believe. So perhaps Florio offered Tupton something a little stiffer than a mimosa. Just a couple of men in a dark, paneled den. A little scotch, perhaps. Tupton would be staggering by now. From the den, it’s just a short walk down the hall to the wine cellar. No one would see them. There are two chairs in there, bleached wood to match the shelving. White pads for comfort. Maybe open a bottle of wine, or more champagne, the good stuff, showing his guest respect.”
“I still haven’t heard anything about murder.”
“And you won’t, not in this courtroom. Florio just wanted to keep Tupton on ice…sorry about that, keep him away from the crowd, buy some time. I figure he left him there with all the bottles and goes to get his partner, what’s his name?”
“Rick Gondolier.”
“…who’s making nice with the ladies out by the pool. Florio and Gondolier come back, and there’s Tupton sprawled out on the floor, passed out, with some expensive champagne running down his chin. They just leave him there. It gives them time to figure out what to do when he wakes up. Except…”
Except he wakes up dead, I thought.
“…he doesn’t wake up. Are you following me, Jake? Florio doesn’t figure Tupton’s going to die, but he doesn’t really give a shit. That’s the essence of punitive damages, isn’t it? Complete disregard for the well-being of another.”
H.T. didn’t have to say the rest. The damages are assessed in an amount sufficient to punish the defendant. The richer the defendant, the bigger the award. Biggest bummer of all, punitive damages are the equivalent of a criminal fine, and insurance won’t cover them.
“So, Jake, I’m wondering if the blackboard is big enough to hold all the zeros I’m going to put up there in closing argument. How does ten million sound to you?”
Like a funeral dirge, I thought.
“Why tell me all this?” I asked. “Why lay out your case?”
“To give you a chance to save us all a lot of work. The trial, appeals, years of delays.”
“How much?”
“Five million,” he said with a shrug. “Think about it.”
I thought about it. H.T. Patterson had succeeded in making a simple negligence case into a civil version of a murder trial. I hadn’t been ready for it, and now I was beating myself over the head. I had deposed Melinda Tupton. What should I have asked? Did your husband call you and make an excited utterance? No, of course not. But a
