CHAPTER 23
FIRST WORDS
It all depends on how we look at things, and not how they are in themselves.
—Carl Jung
Every trial comes down to two things: the jury and the opening. That’s the way Mike Kaeske sees it. The jury is Lisa Blue’s specialty. She sees through people as if they’re made of glass. It’s the gift of hardship, the by-product of empathy born of self-doubt and struggle—with her dyslexia and learning disabilities; with being a Jewish girl in Atlanta in the sixties, raised by the first white doctor in her area to treat Black patients; with seeing her synagogue bombed on her sixth birthday; with watching the battle for civil rights play out on her own streets. She knows other people so well because she knows herself. When jury selection comes, she will be Mike’s skeleton key, his best chance of launching the trial phase with an auspicious panel.
But the opening? That’s his to write.
He’s obsessive about it, as he is about everything in his carefully constructed life. He wants it to sing like an aria, to come alive before the bar like a grand monologue on the stage. He believes in the rhetorician’s adage about primacy and recency, the importance of first and last words. The opening is his first opportunity—and that of the plaintiffs—to make an impression on the jury. And the jury is primed to remember it because, at that stage, they are a blank slate. They are energized by the anticipation of drama, of witnessing a big federal trial. The ennui hasn’t set in yet, the glazed eyes and bored stares. Kaeske’s goal is to take the jury’s blank slate and limn the whole world in indelible ink, such that by the time Mark Anderson rises to counter him, there won’t be room left for a different picture. For the defense lawyer to sound coherent, he will have to color between Kaeske’s lines.
That’s the benefit of going first, and Mike Kaeske is a master of it.
Most laypeople mistake the opening for an argument. It is not. It is a story, a marshalling of the facts and evidence before the first witness is sworn, before a single document is admitted to the record. Kaeske has an instinct for narrative structure, an understanding of the way story works in the human heart. He knows how to make the jurors connect with his protagonist, how to hold up his clients like a mirror so the jurors can see a reflection of their own humanity. He’s also keenly aware that every good courtroom story requires a villain, ideally one with a human face. Kaeske has devoted a lot of thought to this one. None of the company men he deposed fits the bill. Neither does Ken Sullivan, Smithfield’s current CEO, or Wan Long, the Chinese billionaire half a world away. The natural villain in his play is the first hog king, Wendell Murphy.
Kaeske knows that once he starts putting on evidence, the trial will bog down. There will be objections and delays, tedium and boredom. Simplicity will give way to complexity, and, as it does, Smithfield’s defense team will convert that complexity into reasons for the jury to doubt. The story he delivers in the opening, therefore, must be tightly woven and hold together seamlessly. It must appeal to the heart while adhering to the law. It must answer the questions that accompany every juror into the jury box that first time: Why have you brought me here? And what wrong do you need me to right?
There is a theory that Mike Kaeske has long employed in writing his first words to the jury. At the core of the theory is a rule, a restatement of the law of the case, which the judge will recite in his jury instructions at the conclusion of the trial. The rule must be plainspoken and uncontroversial. It must be self-evident even to the defendant. Once you have the rule, you have the cornerstone of your story. You have the wrong.
In July of 2017, Kaeske invites two people to join him on his Park City mountaintop to build the hog farm opening. One of them is Daniel Wallace. Over the past two years, Daniel has become Kaeske’s unofficial wingman. Whenever Mike needs help with some dimension of the case, he calls up Mona and she dispatches Daniel. Last autumn, they prepared for the depositions of the company men on the trail in Cedar Mesa. After the New Year, they crammed for the expert depos on the ski slopes. The camaraderie they have developed goes beyond work. Along with being a mentor to Daniel, Kaeske has brought him into his inner circle of friends.
The other person Kaeske involves in shaping the opening is Sophie Flynn. An uber-bright twenty-something and a rising star in global public health, Sophie is only a few years out of Brown University, but already her résumé is half a mile long. Along with editing AIDS research, promoting renewable energy, and helping low-income people get access to community services, she’s now the executive director of GHETS (Global Health through Education, Training, and Service), a nonprofit working to advance women’s health in the developing world. She came to Mike on the recommendation of Dr. David Egilman, who teaches medicine at Brown and chairs the GHETS board.
To the plaintiffs’ bar, Egilman is the equivalent of a Nobel laureate—fearless, relentless, and scary smart. To corporate malefactors in Big Pharma, he is the Boatman on the River Styx. Early on in Kaeske’s association with Mona, he reached out to Egilman to serve as a trial witness. Egilman had other commitments, but he offered his son, Sam, to support the effort. He also introduced Mike to Sophie.
It’s a brilliant match, and fateful in many ways. Sophie is everything that Mike Kaeske could ask for in a trial collaborator. She’s cheerful, eager, and endlessly energetic, and, like him, she has an eidetic memory. She’s able to retrieve the most obscure details from documents and testimony as if they are floating on the surface of her mind. Beyond that, she’s profoundly committed to the cause. She and Daniel Wallace forge their own bond, as moons in orbit around Kaeske’s planet.
Together, they write the opening.
They tinker with it for days on end, sitting on the terrace outside Mike’s dining room, as the sun shines down from the spotless blue sky and the leaves of the aspens quake in the high-altitude breeze. Their exchanges are dialectical, evolutionary. They work through the first words line by line, searching for a rule that will draw the jury into the moral equation, that will present the wrong not merely as a violation of the plaintiffs’ rights but also as a breach of the social order. If the jury takes the case personally, if they believe the outcome matters to them and to the people they love, they will be more inclined to deliver justice to the plaintiffs.
But how does one personalize the odor from an industrial hog operation for city people from Raleigh? Many will have little knowledge of hog country. Most will have no desire to find out for themselves. To them, the plaintiffs’ communities could just as easily be in Iowa. Mike, Daniel, and Sophie study the jury instructions for the law of nuisance. The rule arises as if conjured. It isn’t as mellifluous as some that Kaeske has devised, but it does the trick.
A company must never substantially and unreasonably interfere with its neighbors’ use and enjoyment of their property. If a company does substantially and unreasonably interfere with its neighbors’ use and enjoyment of their property, the company is responsible and must pay for the harm.
From there, the three of them begin to assemble the pieces of a story. The outline is rough at first, but the body of text that emerges from their collaboration is solid enough to give Kaeske something to revise. And revise it he does, over the next six months. In a typical case, he devotes 120 hours to the opening. For the hog farm cases, he whittles and chops, elaborates and condenses, until he’s poured 1,600 hours into the document. Then he commits it to memory, all two plus hours of it, until the words have taken up permanent residence in his brain.
He practices the opening on his friends, and debuts it for another focus group in Raleigh. Everyone on Mona’s team, indeed, everyone who is anyone in his life, hears him deliver it from beginning to end, often multiple times. His friends will tell stories about the experience later on, laughing at the memory of their buddy Mike holding forth about hog odor in his living room to everyone who would listen. Mike’s goal is perfection, and any person possessed of a thinking mind can give him feedback. He has never written anything like this before. He wants to nail Boss Hog to the wall. He wants to seal the verdict before the trial begins.
The reviews trickle in as the aspens turn golden and the first snowflakes fall. People search for superlatives, deliver their highest praise. At this point, the opening is just words on the lips of an itinerant lawyer strutting about his house in jeans and a T-shirt. Before the jury, it will be a full-scale audiovisual production.
Mike Kaeske will make it unforgettable.
In early November, Judge Britt issues an omnibus order denying Smithfield’s motions for partial summary judgment on nearly every point. A month later, the old judge hears arguments on the hog giant’s motion for severance—to try each household separately.
It’s a classic defense move: narrow the lens and increase the zoom until the jury can see only individual trees, never the whole forest. In this case, severance would also turn the litigation into a trial by ordeal. It would split the five discovery pool cases into fifty-one individual trials. Smithfield’s lawyers argue that every household is unique, and that trying the cases by neighborhood, or in groups of eight to twelve plaintiffs, as Mona and Mike prefer, would encourage juries to deliver broad-brush verdicts. Underlying Smithfield’s position is a curious assumption—that only a few household-specific verdicts will be enough to compel the hog giant to come to the bargaining table and broker a global resolution.
The judge, however, isn’t convinced. After Smithfield’s lawyer leaves the podium, he asks Mike Kaeske: “Do we know that there is going to be any global resolution?”
“We do not,” Kaeske replies.
“Doesn’t the court have to assume that we’re going to have to try these cases?”
“I think so,” says Kaeske.
As the hearing progresses, Britt works his way toward a compromise. He will allow the defendant one chance to try a single-household case—any household of Smithfield’s choosing—but the remainder of the discovery pool cases will be tried in neighbor groups of eight to twelve. The inaugural trial group will be the plaintiffs’ choice; Smithfield will select the second group; and so on until all the plaintiffs in the discovery pool are accounted for. The first trial will commence on April 2, 2018. The second trial will begin two weeks after the first concludes. And subsequent trials (perhaps as many as a dozen) will be scheduled at a rate of one per month until all the bellwether cases have been tried to verdict—or the parties negotiate an armistice. It is an exhausting proposition for the eighty-five-year-old judge, but he embraces it with aplomb. Judge Britt loves the bench. Everyone who watches him knows it.
The choice of the first case is reflexive for Mike Kaeske. He wrote the opening for the McKiver group in Bladen County and the massive 15,000-head hog operation run by Billy Kinlaw. He works with Mona’s team to assemble the slate of plaintiffs. They land on ten out of the total of twenty, including the matriarch, Joyce McKiver.
Unsurprisingly, Smithfield’s defense team selects Joey Carter, the former Beulaville chief of police, to be the company’s standard-bearer. Of the McGowan group, they pick the two-member household of Elvis and Vonnie Williams. With the Williams family, distance and history are on Smithfield’s side. Not only is their property one of the farthest from the hog farm, but Elvis moved to the neighborhood in 1989, after Carter built the first two barns on his south operation, and Vonnie followed suit in the early nineties after she and Elvis tied the knot. The timeline will allow Mark Anderson to argue that they came to the nuisance, that they bought their home knowing the farm was there.
Mona and Mike place Artis in the third spot, and create a lead group out of neighbors who live mere yards away from Dean Hilton’s hog operations—such as the gardener, Jimmy Jacobs—and neighbors whose homes are a mile away—such as the siblings, Joyce and Willie Messick. As they conceive of it, the stories told by the closer folks will reinforce the tales told by the more distant neighbors in the eyes of the jury.
For trial four, Smithfield flags Gillis and lumps together eight plaintiffs who live the farthest away from the company-owned Sholar farm—no one who can attest to what it’s like to live a few hundred feet from five hog barns and two gigantic cesspools.
For the fifth trial, Mona and Mike return to Joey Carter’s neighborhood, but choose a more diverse group of plaintiffs, including Linnill and Georgia Farland.
With the trial methodology established and the calendar taking shape, the lawyers take their leave of the field for an all-too-brief holiday ceasefire. Before the team at Wallace & Graham parts ways for the break, Mona and Bill Graham gather everyone together for the firm’s annual Christmas party. They hold it at Santos Chef, an Italian place in downtown Salisbury.
It has been a grueling two years since Mike and Lisa came onboard and discovery began in earnest. All of them are bloodshot and bone-tired. They have crawled around the hog country mud, spent days breathing the fetid air in the growers’ barns, and scraped hog feces off of the neighbors’ houses, all while enduring near-constant surveillance from the industry. They have culled through hundreds of thousands of pages of Smithfield documents for those few “case crackers” that could sway the jury. They have papered the walls of the federal court with motions and memoranda to keep pace with the McGuireWoods printing press. And, thanks to Jimmy Dixon and his cabal from down east, they have lived out of tents in the statehouse and barely survived a political assassination attempt. If the Fates were kind, the New Year would usher in a reprieve. But looking ahead, there is no end in sight.
When the ball drops on 2018, they will face a gauntlet even more daunting than the one they have endured. Each trial will last three to five weeks. Many of them will spend those weeks living out of apartments away from their spouses and children. As John Hughes will later reflect, there is something monstrous about a federal trial against a corporate Goliath with bet-the-firm stakes. Now multiply that by three or four or five such trials in a span of months, and, suddenly, the monster doesn’t just look frightening. It looks mythic.
Seeing the thousand-yard stares in the eyes of his crew, Bill Graham rises to deliver his year-end speech. He surveys the faces around the restaurant: Mona, with her sand-dollar eyes and champagne-sparkle smile. Linda Wike, as faithful a paralegal as there ever was. John Hughes, the professor’s son, with his endearing shaggy-dog look and fathomless mind. Mark Doby, the client whisperer who bleeds Tar Heel blue. Whitney and Daniel, the Wallace duo that Mona is grooming to succeed her. They have the talent, loyalty, fraternity, and decency to carry the firm into the future. One day, they will give this speech.
As he reaches for the words to rally the troops, Bill Graham is every bit the governor he might have been. This year, unlike previous years, he’s been with the team on the front lines. He’s fought beside them in the trenches. He’s seen the hog kingdom breathe its fire. But he’s been in the game longer than any of them, except Mona. He knows that their exhaustion will pass like everything else in life. Yet the importance of their work will endure.
“This is not just a case,” he says. “This is a cause. We are fighting one of the most powerful companies in the world. Smithfield created an entire grassroots organization to speak out against our lawsuits. We need to remember that we are professionals. We are fighting for people who don’t have the power or the platform to tell their stories. Your training, your knowledge, your experience can level the playing field with a multibillion-dollar corporation. Whatever they say in the press, this case is going to be decided by a jury in Raleigh.”
He meets the eyes of his colleagues and friends, sees the dignity in them, the flames of passion and courage. He believes they can do it. He believes they can win. All they need is perseverance and strength.
“This is why you went to law school,” he says, in valediction. “This is why you do what you do. Keep fighting the good fight.”