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Judge Fernandez entered the courtroom and briskly plowed through the preliminary matters, making sure the parties were ready to proceed and eliminating that might slow the trial once it started. He clearly knew about the shooting at the Pier but made no direct reference to it, simply asking if the parties wanted to proceed at this time.
They did.
Dan was amazed at how briskly jury selection went in this civil suit. Since the stakes were theoretically less extreme, there were fewer peremptory challenges, less leeway in the questioning, and more judicial intrusion. He was astonished to find they had selected a jury in about an hour and a half. The judge gave the panel some preliminary instructions, the called for opening statements.
Another first—since they were the plaintiff in this action, they got to speak before the opposition. Dan was glad Maria was doing it. He was accustomed to drinking what the opponent said and basically offering an extemporaneous rebuttal.
“First of all,” Maria began, “I want to thank you all for your service.” She proceeded with a few more platitudes and niceties. They all seemed like time-waste to him, but he knew studies that had shown jurors liked a little warmup. It helped give them a feeling that the lawyers understood they were real people giving up precious time to hear this case.
It didn’t take Maria long to get to the heart of the matter. “This case is all about words, the power of words, the enormous potential words have to do damage to others. In America, of course, we have the First Amendment. Everyone has the freedom to speak their mind—but that doesn’t mean you can’t be held accountable for what you said after you say it. That’s what this case is all about. The defendant, Conrad Sweeney, made statements in public before a group of more than a hundred people, statements later broadcast on television and on the internet, that damaged my client, Daniel Pike, both emotionally and economically. As a lawyer, Mr. Pike’s career and livelihood are dependent upon his reputation, and Mr. Sweeney was doing his best to destroy that reputation. Let me play you a recording of precisely what was said.”
At the pretrial, both parties and the judge had agreed that a video recording could be used by both parties in their openings. It would later be formally introduced as evidence by a sponsoring witness.
The jurors stared at a video monitor placed behind the witness stand and watched an edited tape of the relevant parts of the conversation at the press conference.
“The arrogant young man speaking is Daniel Pike, a criminal lawyer—and I mean that in every sense of the phrase—who has put dozens of drug dealers and murderers back on the street...The Pike family has been a blight on this city for generations. His father was a dirty cop and a convicted murderer.”
“My father was a hero.”
“Only to the underworld. He was a crook with significant ties to organized crime. And what a surprise that whenever a new story breaks involving this smuggling cartel—Pike is always involved.”
Maria shut off the tape. “We will play longer portions of the conversation during the trial, but I hope you’ve already heard enough to be shocked. Just to be clear, Mr. Sweeney’s statements accuse my client of being a criminal because he represents criminals. In other words, every defense lawyer in the country is a criminal because he does his job. Worse, the defendant has suggested that my client and his family are connected to organized crime. The mob. South American cartels. Because he helped the police stop the cartel. That is simply vile.”
She pivoted slowly and scanned the jury box. “To be sure, my client’s father was convicted of murder—though that sadly does not prove he was guilty. The other accusations, however, are completely without merit. They are lies. They are unsubstantiated lies, and they were lies told in public for the specific purpose of hurting my client. Ask yourself—would you hire a lawyer who was suspected of being connected to the mob? Of course not. So you can readily see how serious these claims are, and how potentially damaging they are.
“We will submit evidence at trial to help you assess the damage. We have been hampered by the fact that the defendant refused to produce certain reports in his possession relating to the case. You will hear more about that later, but ask yourself, Why would someone withhold information? There’s only one possible answer, and it isn’t because the reports support your slanderous lies. That would make someone eager to produce the reports.
“But is there any question that damage to my client’s reputation occurred? We believe the evidence will make clear, if this recording has not already, that unlawful slander was perpetrated by the defendant. Mr. Sweeney believes that his wealth, his connections, and his influence will immunize him, that they raise him above the law. I hope you will take this opportunity to send a strong message to the contrary. No one is above the law. Not even the rich and powerful. No one.”
She stepped to the side so the jury had a clear view of Sweeney, who sat impassively at his table. Not quite grinning. But almost.
“This man believes he can get away with anything.” She turned back to the jury, giving heavy emphasis to each word. “Prove—him—wrong.”
* * *
Dan was not enormously surprised that Drake stood to deliver the opening. Caldwell might be the better attorney, but her robotic Spock demeanor wouldn’t resonate with jurors or incur much empathy. She would have trouble driving home the drama. As it happened, Drake was all about the drama.
“Just to be clear, I agree with exactly one thing my worthy opponent just said, and one thing only. We do have the First Amendment in this country. We have freedom of speech. Supposedly. But what does that freedom mean if people can haul you into court for saying things that are well known and mostly a matter of public record? We live in a time of vile words. It’s everywhere. People tweet lies every day, but Congress says they are immune from liability. Troll farms pump out fake news and they are not stopped. But one man, perhaps the most prominent citizen of the city, tries to alert people to a possible danger, a family that has repeatedly aligned itself with crime and criminals, and what does he get for his service? Well, a lawsuit, of course. No matter how frivolous your claim, there’s some lawyer somewhere willing to bring it to court.”
“Objection,” Maria said. As Dan well knew, objections during openings were rare, but this crossed the line. “Among other problems, this is argumentative.”
“I have to agree,” Judge Fernandez said. “Please stick to previewing your evidence and case for the jury. The court does not appreciate attacks on the justice system. Please remember that you are an officer of the court.”
“Understood,” Drake said, then turned back to the jury as if he hadn’t heard a word. “Here are the facts. The evidence will show that the plaintiff’s father, Ethan Pike, was a police officer convicted of murdering a fellow police officer. He was given a life sentence and died in prison. Fact. The evidence will show that his son, the plaintiff, Daniel Pike, is a criminal lawyer who has represented many drug dealers and other felons. Fact. He also represented the man who, after Pike got him released, started the Trademark massacre. Fact. Pike has represented gang members on many occasions, and even more recently has handled two cases that involved organized crime, specifically, South American cartels. Fact. And that’s important. Because, thank God, in America, we still have the right to speak facts, even if someone else finds those truths unpleasant. You see, statements can only be slanderous if they are false. Truth is a defense.”
Drake leaned against the rail separating him from the jury. “That’s the key here. We will show that every statement our client, Dr. Conrad Sweeney, made is true and has strong support in documented fact. We will also show that the plaintiff made statements that have no basis whatsoever in fact. That’s the basis for our counterclaim. In this case, it’s not just the plaintiff asking for damages. The defendant is also seeking damages, and believe me, Dr. Sweeney’s reputation is worth a great deal more than this criminal lawyer’s. If anyone has suffered damage, it is Dr. Sweeney, the man who has done more for this city than any other living person.”
Drake hesitated, as if ready to conclude, then spoke again. “Let me say a word about those reports my esteemed colleague mentioned. Those reports were generated by us, Dr. Sweeney’s lawyers, not Dr. Sweeney. As the judge will explain in his final instructions, they are privileged work product. The court has ruled that they do not have to be produced to the other side in advance at trial. But they will be produced during this trial, so these suggestions that we’re hiding something are nonsense. As with most investigations, the lion’s share of what we learned is not that interesting. But we did dig up a few nuggets that are directly relevant, that shine a whole new light on Mr. Pike and his...associations. And prove, once and for all, that Dr. Sweeney has not committed slander. He has merely shined a light on the truth. He should be praised and thanked. And the plaintiff—”
In an almost direct mimicry of Maria’s final move, Drake took a step back, inviting the jury to look at Dan. “This man, this son of a convicted murderer, this defender of murderers, this man who always seems to be in the middle of whatever crime gang, crime lord, cartel or...” He paused. “...crossfire is taking place, has very little reputation to worry about. Even if his claims were true, he couldn’t suffer damages, because his reputation has no value. But I will ask you to hold him accountable for his own actions, something that has been far too long in coming.”