H.T. Patterson watched the choreography, a pained expression on his face. The jurors saw it, every last one of them, their heads swinging away from the witness and toward us. ‘They must have recognized Socolow from television. He was always announcing indictments, crowing over guilty verdicts, whining about acquittals. Nowhere he was, dispensing his blessings to a defendant in a civil case. Even I was impressed with Nicky Florio’s clout.
Two hours later, half the jurors were yawning, so Judge Boulton sent them home with the usual admonitions not to discuss the case with their friends and families. The grateful conscripts responded with the usual pleasant lies.
On Tuesday, Patterson called to the stand one of Tupton’s colleagues from the environmental movement. Harrison Baker was a patrician Bostonian who had brought his trust fund to Florida forty years earlier and hadn’t worn a suit and tie since. He was tall and thin with a white mustache and a John Kennedy accent. He wore khaki pants, a bush jacket, and mud-stained boots. His specialty was the endangered Florida panther, and he testified how he mended the broken bones of the tawny cats run down by cement trucks on Alligator Alley. Patterson’s strategy was clear. Tupton and his friends are the guys in the white hats. The builders and real estate developers are reincarnations of Satan himself. Baker said the expected, praising Tupton’s dedication, his many good works, bemoaning the lost glories that could have been.
An economist took the stand and plastered numbers on a blackboard-lost earnings and net accumulations- reduced to present money value based on Tupton’s life expectancy had he lived. I couldn’t follow the math, and neither could the jurors, but surely the number $2.37 million stuck in their minds.
Wednesday morning, Patterson called Nicky Florio as an adverse witness. After the usual preliminaries, Nicky admitted that he and Tupton were adversaries in the dispute over development in the Everglades. He admitted that champagne was flowing freely at the party. He admitted that he saw Tupton around the pool, and that he seemed tipsy. He denied having any arguments with Tupton at the party and professed not to know what Tupton might have found in his study. “I’m surprised that a man of good character would pry into another man’s private papers,” Florio said, somewhat indignantly.
“And what private papers would those be?” Patterson asked.
“I don’t know what Mr. Tupton saw, or if he was having delusions. As a gentleman, it’s the principle that concerns me.”
I tried swallowing my tongue to keep from laughing, wondering where more lies are told, courtrooms or bedrooms.
After lunch, Patterson rested the plaintiff’s case, and I went to work. I called various guests from the party, both to draw attention to the distinguished crowd in attendance and for the testimony that nothing out of the ordinary was going on. No rip-roaring drunks, no drinking games or other tomfoolery. This was a Gables Estates soiree, not a fraternity party.
I called a pathologist who, for three hundred bucks an hour, testified that Tupton might have died from hypothermia even without the booze in his system, but on cross-examination, he admitted that Tupton wouldn’t have passed out in the wine cellar if he hadn’t been drinking and therefore wouldn’t have been subjected to the cold. I put a psychiatrist on the stand to testify about the conflicting signals party guests send out and a drug counselor who discussed the difficulty of ascertaining a person’s tolerance to alcohol. That sent Patterson scrambling to prepare his psychiatrist for rebuttal. These days trials are battles of highly paid witnesses. You can get a doctor to say anything you want if the price is right. Expert witnesses, we call them in court. There’s an acronym we use on the street:
Witness
Having
Other
Reasonable
Explanation
On Thursday, I called Nicky Florio to testify. He marched to the stand as if he owned it. I let him talk about himself, and he was good at it. In five minutes, we had established he was a prominent figure in the community, a contributor to charities of every denomination, and a hell of a party giver. I had cautioned him to be humble, or at least to put a lid on the arrogance, and he carried it off well. We polished up the speech from his deposition, and it worked.
“I’m truly sorry about Mr. Tupton, a man I admired,” Florio said, looking the jury straight on. “But what could I have done? I had a house and patio full of guests, a hundred people to attend to. The way I see it, and I don’t mean to be disrespectful, a man’s simply got to take responsibility for his own actions.”
Florio wore his sincerity like a vestment, and the jury seemed to buy it. Two of the men nodded, or were they falling asleep?
I asked Nicky how much champagne was served at the party. We totaled up the bottles on a blackboard, figured the number of ounces consumed and divided by the number of guests, allowing some for spillage and half- empty glasses. It worked out to only nine ounces per guest. Jurors like numbers and hard data, and I was trying to reinforce the concept that most guests voluntarily limited their intake, and who’s to blame if Tupton didn’t? That had H.T. Patterson yelling up a storm of objections. “The average consumption of champagne at the party is irrelevant! What matters is how much they served to one guest, the late Peter Tupton.”
“The statistics are relevant to show the basic air of normalcy at the party,” I responded.
Judge Boulton shrugged and denied the objection. I asked how-much champagne had been purchased for the party and established that two-and-a-half cases were left over when the party ended about 8:00 P.M. and the catering crew cleaned up. Hardly a scene of wild, drunken debauchery.
And then it hit me.
The leftover champagne.
The question that gnawed at me, but that I couldn’t ask.
I wondered if Patterson figured it out, too. My questioning had led him to a wide-open door. If he went through it, he could destroy Florio’s credibility and blow us out of the water. He could prove, or at least support by inference, just what he’d been beating his breast about the other day, the reckless, even willful, conduct that caused Peter Tupton’s death. I sneaked a peek at the plaintiff’s table. No sign of recognition. No furious taking of notes.
I sat down, holding my breath, waiting for Patterson to sink us on cross-examination. Patterson stood up, buttoned his white linen suit coat, and approached the witness stand. Then he simply repeated much of what he had elicited from Florio during the plaintiff’s presentation. I started breathing again. I leaned back and watched Nicky Florio. It made me wonder. Does every murderer look so good in a custom-made suit?
I like to try my cases in a reasonable order, liability first, damages last. But with experts, it doesn’t always work that way. My economist had to catch a plane, so I put him on in the middle of my liability case. In contrast to the plaintiff’s expert, mine predicted that, had Tupton lived, not only wouldn’t he have accumulated a couple million bucks, he’d probably be in hock to his bank and the credit card companies.
The trial was spinning along, but I felt as if I were swimming in Jell-O. I asked my questions but didn’t listen to the answers, a cardinal sin for trial lawyers. I still hadn’t decided what to do with Rick Gondolier until he strode into the courtroom after lunch. He wore a black silk suit with padded shoulders, a white-on-white shirt and black silk tie with turquoise flowers. The thick blond hair was combed straight back and flipped up just above his shoulders. The diamond earring faced the jury box, causing Gloria Morales to nudge her neighbor, point at Gondolier, and discreetly tug at her own ear.
All in all, my witness looked like Miami Vice ’s version of a major drug dealer with soap-opera good looks. If I were on the jury, I wouldn’t believe anything after his name and occupation, and maybe not even that much. Or was I projecting my own jealousy? Damn, Charlie, you were right. I can’t be objective. I can’t help my client because I’m thinking of me, not him. I believe Nicky Florio is guilty of far worse than serving too much champagne to a tipsy, wimpy guest. But why do I think that? Because of the evidence or my own tangled emotions?
Gondolier promised to tell the truth, the whole truth, and nothing but the truth, and lightning didn’t strike him dead. He smiled his pearly whites at the jury, and they smiled back. I hitched up my pants and decided to see if this Las Vegas slickster could tote the mail.
I took him through his background, trying to make a casino operator seem like a priest. I let him talk about the hundreds of thousands of dollars won by housewives and retired folks at the bingo hall, then I asked him about
