I LIKE TO GET TO THE COURTROOM EARLY, soak in the atmosphere, and watch as the gallery fills with spectators, potential jurors wander in, and court clerks busily prepare their workspace. A good friend once gave me a great coffee table book containing pictures and the history of various old court rooms. It’s in a bookshelf now, but I spent many hours enjoying both the pictures and the narratives.
Judge Moorman’s courtroom was less interesting. The furniture was sparse and had been made by Prison Industries, which is a large inmate-training program operated by the Bureau of Prisons. The furniture is study and practical, but I haven’t seen any pieces featured in coffee table books. Sadly, the room boasted no spittoons or ceiling fans.
It wasn’t long before Jordyn’s army of lawyers and paralegals swooped in and began unpacking their briefcases and setting up their laptops. Potential jurors and lawyers for the computer companies filled the gallery. Duke hadn’t yet arrived when the clerk summoned Jordyn, Stanford, and me to chambers to meet with the judge.
The judge’s chambers contained a large desk behind which the judge sat, as well as a smaller one for his clerk. The walls held a few family pictures, but there were no bookshelves. Jordyn, Stanford, and I sat in chairs across from him.
He frowned and got straight to his point. “I hope all of you have read my standing order. I will conduct voir dire. Do either of you have any questions you’d like me to ask?”
Jordyn handed the Judge three pages of questions. He sighed and turned to me.
“I have no questions to submit, Your Honor. I’m quite sure you’ll do an excellent job without my help.”
Jordyn was flustered. I knew she was ready to object to any questions I might normally ask, but now I had stolen her first clap of thunder.
She asked, “What do you mean you don’t have any questions to suggest? You must have worked with a jury consultant!”
The judge looked as though he were ready to eat me alive.
“No. I haven’t even spoken with a jury consultant. I don’t even have a list of the potential jurors. Do you?” I asked Jordyn. “The judge’s clerk told Brian it wasn’t available.”
I turned back to Moorman before she could answer. “Your Honor, I decided that I wouldn’t spend the little time I have worrying about jurors. Your order is clear. You and you alone conduct voir dire, and we are not to have any contact with the jury pool either directly or through a consultant. Your order directs us to send or give to you, in writing, any questions we’d like to have addressed. Well, I simply don’t have any suggestions for you. Voir dire is your provenance, not mine.”
I knew Jordyn must have used a jury consultant who probably knew all there was to know about every potential juror. I had seen the thick notebook Jordyn’s team brought into the courtroom labeled “Jury.”
Jordyn wasn’t satisfied, “Your Honor, I fear Mr. Patterson is playing tricks with your standing rule regarding voir dire.”
I was, but not in the way Jordyn feared. I responded, “Your Honor, why does Ms. Duarte keep accusing me of tricks? I am simply doing my level best to follow the rules you set forth.”
The judge answered her. “Mr. Patterson must act in the manner he thinks most beneficial to his client. I can’t make him give suggestions. If there’s nothing further, let’s get this show on the road.”
“One more thing, Your Honor?” It was time for me to throw my first bomb.
“Go ahead,” he sighed.
“I assume that at the beginning of the trial you plan to introduce both counsels to the jury. Is that correct?”
“That’s correct,” he replied, straightening his tie. “And…?”
“Well, may I enquire how you plan to introduce Mr. Stanford? If you tell the jury that Mr. Stanford is a deputy assistant attorney general with the Department of Justice, the jury may get the impression that the U.S. government has taken sides in this case.”
Of course, that was exactly the impression Jordyn wanted to create, but I wasn’t going to let her get away with it, at least not if I could help it.
“Mr. Stanford, do you have anything to say regarding this issue?” he asked. “I hadn’t thought of it before now, but I understand Mr. Patterson’s point.”
Stanford hesitated, but finally responded. “I believe the court is aware of the pending criminal matter involving the same software and the same defendant. I suppose that in a strange way I’m in the same position as Mr. Madigan. The government has an interest in who owns this software.”
“Do you plan to offer any evidence or question any witness?” the judge asked.
“No, Your Honor,” he answered.
The judge seemed satisfied, “How about this—I won’t introduce Mr. Stanford to the jury as an official with the government. As far as the jury will know, he is a lawyer helping Ms. Duarte. I will treat Mr. Madigan much the same way. Does that satisfy you, Mr. Patterson?”
“Yes, it does. Thank you, Your Honor.” I answered.
From my point of view, it would have been better if Moorman had thrown Stanford out of the court entirely, but beggars can’t be choosers, and I had thought of a possible way to use him to our benefit. Besides, no matter how much I might object, the jury would know Stanford was on Jordyn’s side. Since he always stood right next to her, even the dullest juror couldn’t miss the implication.
When we walked back into court, I was pleased to see my client sitting at our table in a coat and tie. Duke was there as well, wearing a leather jacket but regular tie and slacks. I wondered if Moorman would notice the pattern on his tie—little cowboys on horseback attempting to lasso little bulls. His cowboy boots must have cost him a fortune. Maggie had already passed David our cards, and he was busily at work scribbling answers.
As soon as I sat down, he asked, “How is Rita? Why isn’t she here?”
“She’s okay. She asked me to give you this. I pulled her letter out of my coat pocket. I had suggested she write him a note assuring him she was safe with us, telling him what she was working on, and explaining why she wasn’t in the courtroom.
David read through it while we waited on the judge.
He whispered, “Tell her I love her, will you?” I nodded and gave his arm a squeeze just before the judge strode into the courtroom and we all rose once again.
Moorman was not in the mood to dawdle. “Madame Clerk, call the first fourteen jurors.”
The names were drawn, and the first twelve were seated in the jury box along with two alternates. The judge asked a laundry list of basic questions about whether the jurors knew the lawyers, David, or the computer companies. Nobody knew me, David, Duke, or Jordyn. A few had heard of the plaintiffs, but nobody knew anyone who worked for the companies. I am always surprised when jurors fail to recognize the parties or lawyers in a case. We think we know a lot of people, but we really don’t. Nor do they know us.
I was also surprised when the judge said, “Ladies and gentlemen, I doubt this case will last more than a couple of days. Do any of you have a reason why you can’t serve for that length of time?” No one raised their hand.
A judge would usually have asked both of us before the trial how long we thought the case could last, but Moorman hadn’t. He had probably asked Jordyn during one of their ex parte meetings they both so vigorously denied. It would be interesting to see how Jordyn intended to prove her case in such a short time. I wasn’t about to slow the train down.
Next came the judge’s explanation about challenges. Either party could challenge a juror for cause, meaning there needed to be a reason valid to the judge for excusing the juror. Each side was also given three preemptory challenges, meaning no reason was needed to throw someone off the jury panel. This is how jury consultants make their money and when lawyers do a little dance with their opponents, each trying to outmaneuver the other. In essence, if you can get your opponent to strike someone you don’t want, you get an extra challenge. In a normal situation, with a normal judge, both parties get as many as six to eight preemptory challenges, but Moorman clearly thought jury selection was a waste of time.
He asked, “Do either of you want to challenge anyone for cause?”
Jordyn said, “No, your honor.”
“Mr. Patterson?” he asked.
“No challenges, your honor.” I said with a broad smile. “This jury looks good to me.”
He frowned but continued. “I usually conduct all questioning of the prospective panel. Furthermore, after I’ve finished my questioning, I always ask the lawyers for both sides to give me any questions they think are important. Ms. Duarte gave me a few suggestions this morning, and Mr. Patterson had no questions and no objections. Given the agreement, I see no harm in letting Ms. Duarte ask her own questions.
I had seconds to decide whether to object. The judge and Jordyn had obviously devised this arrangement beforehand, so I said nothing. Jordyn didn’t bother to look surprised as she walked to the lectern. She did give me a sugary smile that implied “Poor Jack, you are out of your league.”
Duke, on the other hand, spoke right up, his questions directed at me, but for all to hear.
“You going to let them get away with this? She’s about to try her entire case during voir dire without you getting a similar opportunity. The judge said he would be the only one asking questions.”
I shrugged, but Moorman almost came out of his robes.
“Mr. Madigan. Another outburst and you will find yourself in contempt and thrown out of this courtroom for the remainder of the trial. I allowed you to sit at counsel’s table and to consult with Mr. Patterson, but you are to remain quiet, do you understand?”
Duke mumbled something and sat down.
Duke had accomplished two things I couldn’t: he’d let the jury know something wasn’t right, and he’d gotten under Jordyn and the judge’s skin. I hated to admit we might work well together.
As expected, Jordyn used individual voir dire to tell the jury all about her case and what a villain David must be with questions such as:
“Ladies and gentlemen, my clients were forced to bring this lawsuit when the defendant attempted to claim our intellectual property was his by filing for patent and copyright protection for the software he stole. Have any of you been victims of theft?” Next—
“The defendant’s grandfather is the head of a Louisiana crime family. Would that information alone prevent you from rendering a fair and impartial verdict for my clients?” and finally—
“Do any of you have friends or relatives currently in the DC jail who may have run across the defendant, David Ruple?”
That one brought me to my feet, but before I could object the Judge interrupted.
“Ms. Duarte, you came too close to the line with that one. Ladies and gentlemen of the jury, please disregard that question.”
Fat lot of good that did. All his little scold had accomplished was to make the jury wonder why David was in jail and emphasize that he was.
Jordyn wasn’t through.
“My apologies, Your Honor.” She turned to the jury and continued.
Ladies and Gentlemen, Mr. William Stanford is sitting at my table. He is with the Department of Justice which has a keen interest in this case. Do any of you know him or anyone else who works at Justice?”
Back on my feet, I raised my voice, “May we approach, Your Honor.”
At the bench I whispered, “Your Honor, in chambers you agreed not to identify Mr. Stanford in your voir dire. Now Jordyn has done just that.”
“Ms. Duarte?” he asked.
“Mr. Patterson objected to your identifying Mr. Stanford. I submitted this question in my list of suggestions, and Mr. Patterson didn’t object. I felt it was fair ground. Besides I didn’t tell the jury whose side William is on.”
“If there’s any doubt whose side he’s on, it’s on your right.” I responded angrily, looking directly at Stanford, who was indeed standing by her right side. “Your Honor, I must call for a mistrial.”
The judge banged his gavel, this time striking his desk rather than the sounding block. “Mistrial denied. I will instruct the jury to disregard the question if that’s what you want.”
“Thanks, Your Honor, but no thank you.” Such an instruction would only emphasize the involvement of the Justice Department.
“Ms. Duarte, are you almost finished? I want to keep this case moving.”
Jordyn promised to speed up her questions, but she continued in the same measured tone, asking questions that implied that my client had stolen her clients’ software, that my client was in jail and a member of a notorious crime family; and that the U.S. government wanted her to win. Well, not in so many words, but she came close.
Duke let slip one more outburst, loud enough for all to hear, this time directed at me.
“Are you actually trying to lose this case?”
Jordyn’s brows went sky high as she looked to the judge, who said nothing. No one else did either, so she resumed her questioning.
When she had finished, the judge said, “Ladies and gentlemen, we have come to that stage in a trial where the lawyers give me what are called preemptory challenges to the jury panel. We’ll take a short break. The marshal will escort you to the jury room. Court will resume in fifteen minutes.”
After the jury filed out of the courtroom, the judge asked for our challenges. Jordan handed her challenges to the judge. I looked at the judge and said I had no challenges. This mild response seemed to enrage her.
“Your honor, Mr. Patterson is making a mockery of this trial. He has no suggestions for voir dire, now he has no challenges. He refuses to participate but has asked you to grant a mistrial.”
The judge sighed and responded, “He will not get a mistrial. Each of you has fifteen minutes for opening argument. I will cut you off if you go longer.”
Duarte feigned objection.
“Judge, I can’t possibly limit my opening argument to fifteen minutes. This is a complex case.”
It was time for me to irritate her a little more.
“It’s not that complicated, Your Honor. She can have most of my time. I won’t need but a minute.”
My generous offer finally got to him.
“I oversee the procedures in this trial, not either of you. Ms. Duarte, you will have fifteen minutes. Mr. Patterson, either participate or get out of the way.
“Thank you, Your Honor. I will. I notice that all three members of the jury Ms. Duarte struck by way of her preemptory challenges are African Americans. I object to the clearly discriminatory use of her challenges.”
It’s not unusual for attorneys representing corporate clients to go to great lengths to eliminate minorities from a jury panel. They’re usually a little more subtle than Jordyn, but with only three challenges she had little choice but to be obvious. I knew my objection would be fruitless, but from the look she gave me I knew it had served its purpose.
“Objection denied. Marshal, please bring in the jury panel.”
When the panel returned, the judge struck the three jurors Duarte wanted off the panel. It was hard not to laugh when the new jurors walked in—one was African American, and one appeared to be from India or Pakistan. He asked all three a few basic questions, and then swore in the jury to hear our case. I didn’t dare to even glance in Jordyn’s direction.
“Ms. Duarte, you may begin.”