The Boys from Biloxi: A Legal Thriller (17 page)

“Well, Your Honor, we haven’t finished. He’s only taken two depositions.”

“I’ll handle my case, Mr. Webb. You handle yours. I don’t need any more depositions.”

The judge cleared his throat and said, “I must say, Mr. Webb, you have been rather slow at pursuing discovery. It appears to me that your client, ARU, is in no hurry at all to go to trial.”

“I disagree, Your Honor. These are complicated cases.”

“But Mr. Rudy filed them, didn’t he? If he’s ready, why aren’t you?”

“There’s a lot to be done, Your Honor.”

“Well get it done, and now. I’m setting this case for trial on Monday, March the second, right here. We’ll pick a jury and let it decide the case.”

Webb feigned disbelief and leaned down to huddle with another dark suit. He looked up and said, “We respectfully object to such short notice, Your Honor.”

“And you are respectfully overruled. What’s the next case, Mr. Rudy?”

“Lansky versus ARU.”

“Mr. Webb?”

“Well, again, Your Honor, we’re simply not ready for trial.”

“Then get ready. You’ve had plenty of time, and God knows you’ve got plenty of talented legal help on your side.”

“We object, Your Honor.”

“Overruled. Here’s the plan, Mr. Webb, and the rest of defense counsel. I’m setting aside the first two weeks in March to try as many of these cases as possible. I don’t see these as long trials. Based on the discovery, there are not that many witnesses. These plaintiffs have the right to be heard and we’re going to hear them.”

At least five of the defense lawyers jumped to their feet and started talking.

“Please, please, gentlemen,” His Honor said. “Sit down. You are free to file written objections. Go ahead and do so and I’ll overrule them later.”

The others sat down and Webb tried to control his frustration. “Your Honor, this is rather heavy-handed, and it is a clear example of why my client is worried about getting a fair trial in Harrison County.”

With perfect timing, Jesse blurted a statement he had prepared and saved for this moment. “Well, Mr. Webb, if your client would pay the claims we wouldn’t be there, would we?”

Webb turned and pointed a finger at Jesse. “My client has legitimate grounds to deny these claims, Mr. Rudy.”

“Bullshit! Your client is sitting on its money and acting in bad faith.”

Judge Oliphant said, “Mr. Rudy, I admonish you for your foul language. Please refrain from such.”

Jesse nodded and said, “Sorry, Your Honor. I couldn’t help it.”

If for no other reason, the hearing would be remembered as the first time a lawyer had yelled the word “bullshit” in open court in Harrison County.

Webb took a deep breath and said, “Your Honor, we are requesting a change of venue.”

Calmly, the judge said, “I don’t blame you, Mr. Webb, but the people of this county have suffered greatly. They continue to suffer, and they have the right to decide these cases. Motion denied. No further delays.”

Through the pre-trial wrangling that followed, Jesse soon realized that Judge Oliphant was squarely on the side of the policy holders. Almost every request made on behalf of the plaintiffs was granted. Almost every move by the insurance companies was blocked.

Oliphant and Jesse were worried that they might be unable to find enough impartial jurors to decide the cases. Every resident of the county had been impacted by the storm, and the bad behavior of the insurance companies was now common chatter at church and in the cafés that were reopening. Folks were out for blood, which obviously was to Jesse’s advantage, but it seriously compromised the notion of a disinterested jury pool. Selecting jurors was further complicated by the fact that so many people were displaced.

The two met privately, which under normal circumstances would be forbidden, but the Jackson lawyers were far away in their tall buildings and would never know. The insurance companies had chosen them; another mistake. Jesse had eleven cases against ARU that were ready for trial. They were virtually identical: same insurer, homes damaged by wind, not storm surge, and the same reputable contractor willing to testify as to damages. Judge Oliphant decided to take the first three—Luna, Lansky, and Nikovich—and consolidate them for the first trial. Simmons Webb and his gang squawked and objected, and even threatened to run to the Mississippi Supreme Court for protection. Through back channels, Judge Oliphant knew the Supremes had about as much sympathy for the insurance companies as Jesse Rudy.

On Monday, March 2, the courtroom was again packed, with spectators lining the walls and bailiffs directing traffic. The crowd spilled into the hallway where angry men and women waited for a seat inside. In chambers, Judge Oliphant laid down the rules and impressed upon the lawyers that the trial would be expedited at every turn, and he would not tolerate even the slightest attempt to delay matters.

With effort, forty-seven summonses had been served upon the prospective jurors, and every one of them reported for duty. Using a questionnaire designed by His Honor and Mr. Rudy, thirteen were excused because they had property damage claims pending against insurance companies. Four were excused for health reasons. Two were excused because they were related to people killed in the storm. Three were excused because they knew the families of other victims.

When the pool was whittled down to twenty-four, Judge Oliphant allowed the lawyers half an hour each to quiz the panel. Jesse managed to control his aggression but left no doubt that he was the champion for the good guys and they were fighting evil. Through his growing network of clients, he had learned more about the twenty-four than the defense could ever know. Simmons Webb came across as a folksy old boy, with deep roots in south Mississippi, and he was there just searching for the truth. At times, though, he was nervous and seemed to know that the mob wanted his skin.

It took two hours to seat twelve jurors, all of whom swore to hear the facts, weigh the evidence, and decide the case impartially. Without a break, Judge Oliphant gave the lawyers fifteen minutes for their opening remarks and nodded at Jesse, who was already on his feet and walking to the jury box to deliver the shortest first-round statement of his career. Gage Pettigrew timed it at one minute and forty seconds.

“Ladies and gentlemen of the jury, we shouldn’t be here. You shouldn’t be sitting where you are and you certainly have better
things to do. I shouldn’t be standing here addressing you. My client, Mr. Thomas Luna, seated over there in the blue shirt, should not be living in a house with no roof and only a plastic tarp as protection against rain, wind, storms, cold, heat, and insects. He should not be living in a house with black mold growing on the walls. He should not be living in a house with almost no furniture. Same for Mr. Oscar Lansky, that gentleman in the white shirt. He lives two doors down from Mr. Luna, on Butler Street, a half mile north of here. As for my third client, Mr. Paul Nikovich, he shouldn’t be living in a barn owned by his uncle up in Stone County. All three of these families should be living in their homes, where they’re still paying mortgages I might add, with all the comforts and amenities they enjoyed before Camille, homes damaged over six months ago, homes properly insured with policies written by ARU, homes still sitting forlornly under blue tarps and patched up with sheets of plywood.”

Jesse took a deep breath and a step back. He raised his voice and continued, “And they would be living normal lives in their homes but for the despicable actions of Action Risk Underwriters.” He pointed to Fred McDaniel, a senior adjuster for the company, seated snugly next to Simmons Webb. McDaniel flinched but did not take his eyes off a file lying on the table in front of him.

“We shouldn’t be here but we are. So, since we’re forced to gather in this courtroom let’s make the most of our time. In a few hours you’ll get the opportunity to tell Mr. McDaniel and his big company from up in Chicago that folks here in Harrison County believe a contract is a contract, an insurance policy is an insurance policy, and there comes a time when greedy corporations have to pay up.”

Simmons Webb was caught off guard by Jesse’s brevity and shuffled papers for a moment. Judge Oliphant said, “Mr. Webb.”

“Sure, Judge, I’ve just found the policy.” He got to his feet and walked to the jury box with a phony grin from ear to ear. “Ladies and gentlemen of the jury, this is the homeowner’s policy
issued by my client to the Luna family. It’s basically the same as the ones issued to the Lanskys and the Nikoviches.” He held the policy up and made a show of flipping pages. “Now, here on page five the policy clearly states, and I quote: ‘Excluded from all coverages stated herein are damages to the principal residential structure as well as appendages such as porches, carports, garages, patios, decks, and outbuildings such as utility sheds, tool sheds, et cetera, caused by floods, rising waters, rising tides, or surges as a result of hurricanes and/or tropical storms.’ ”

He tossed the policy onto his table and stood before the jury. “Now, this case is not as cut-and-dried as it seems. Storm damage is often complicated because in almost all big storms there are homes that get hit by wind and flooded with water.” Webb began rambling about the difficulty of ascertaining what exactly caused damage to a certain structure, and told the jury that he would present expert witnesses, men trained in the field, who would show the jurors what happens in a major storm. He feigned great sympathy for all of the “fine folks down here” who were hit by Camille and claimed that he and his client were there to help. This drew some skeptical looks from the jurors. He got lost a few times and it became apparent, at least to Jesse, that Webb was attempting the old strategy of “If you don’t have the facts, then try to confuse them.”

“One minute,” Judge Oliphant finally said.

When Webb sat down, Jesse was almost giddy. His opponent represented the largest insurance companies doing business in the state and was known as a tough negotiator. However, it was obvious that he settled cases but didn’t try them. His opening statement was not impressive.

The first witness was Thomas Luna. Jesse led him through the preliminaries and asked him to describe for the jury the horror of riding out a hurricane with winds estimated at 200 miles an hour. Luna was well prepared by his lawyer and a gifted storyteller. He and his twenty-year-old son stayed behind and several times during
the night were in a closet, clutching each other as the house shook violently, certain that it was about to be blown away. The house across the street was lifted from its foundation and scattered for blocks. The storm surge came to within fifty yards of their home. Mr. Luna described the passing of Camille, sunlight, calm winds, and the unbelievable damage on his street.

The jurors knew the story well and Jesse did not belabor it. He submitted repair estimates from a contractor that totaled $8,900. His other exhibit was a list of furniture, furnishings, and clothing that had been destroyed. The total claim was $11,300.

After a thirty-minute lunch break, Mr. Luna was back on the stand and was cross-examined by Simmons Webb, who painstakingly went through the repair estimates as if looking for fraud. Mr. Luna knew far more about carpentry than the lawyer and they bickered back and forth. Twice Jesse objected with “Your Honor, he’s just wasting time. The jury has seen the repair estimates.”

“Let’s move along, Mr. Webb.”

But Webb was methodical, even tedious. When he finished, Jesse put on Oscar Lansky and then Paul Nikovich with their similar stories. By 4:30 Monday afternoon, the jurors and spectators had heard enough of the horrors of Camille and the damage it caused. Judge Oliphant recessed for fifteen minutes to allow them to stretch their legs and load up on coffee.

The next witness was the contractor who had examined the three homes and estimated the damage. He stood by his work and his figures, and would not allow Webb to nitpick here and there. He knew from years of experience that rising waters almost always leave a flood line, or a high-water mark, and it is usually easy to determine how much water a building took on. In those three homes, there was no flood line. The damage was by wind, not water.

It was almost 7:30 when Judge Oliphant finally relented and adjourned for the evening. He thanked the jury and asked them to return at 8:00
a.m.
ready for more work.

Jesse’s first witness Tuesday morning was a professor of civil engineering from Mississippi State. Using enlarged diagrams and maps, he tracked Camille as it came ashore, with its eye between Pass Christian and Bay St. Louis. Using data retrieved from the storm, along with documented eyewitness reports, he walked the jury through the path of the storm surge. He estimated it at twenty-five to thirty feet high at the Biloxi lighthouse, the most famous landmark, and showed large photos of the total devastation between the beach and the railroad track half a mile inland. Beyond the rail line, which was ten feet above sea level, the surge lost its intensity as the waters dispersed over a larger area. One mile inland, it was still five feet in height and was being propelled by horrendous winds. In the area of Biloxi where the plaintiffs lived, the surge was no more than two or three feet, depending on the uneven terrain. He had examined thousands of photographs and videos taken in the aftermath, and was of the opinion that the three homes in question were just beyond the last reach of the surge. Of course, there was extensive flooding in the low areas, but not on Butler Street.

Simmons Webb quarreled with the engineer over his findings and attempted to argue that no one really knew where the storm surge ended. Camille hit in the middle of the night. Filming it at its height and fury was impossible. Witnesses did not exist because no one in their right mind was outdoors.

There was a famous video of a TV weatherman standing in the middle of Highway 90 at 7:30 that evening. The winds were “only 130 miles per hour” and gaining strength. The rain was pelting him in sheets. A gust pummeled him, and for about three seconds his cameraman filmed him tumbling across the median like a rag doll. Then the cameraman went upside down. There was no other known footage of any fool waiting to greet Camille that late in the day.

By mid-afternoon, Jesse was finished with his case. He and everyone else suffered through the monotonous and impenetrable give-and-take between Simmons Webb and his star witness, an expert in hurricane damage who worked for the American Insurance League in Washington. Dr. Pennington had spent a career poking through debris, photographing, measuring, and otherwise researching damage to homes and other buildings caused by severe storms. After a baffling lecture on the virtual impossibility of knowing for certain whether a piece of building material was damaged by wind or water, he then proceeded to give confounding opinions on the cases at hand.

If Webb’s goal with Dr. Pennington was to sow doubt and confuse the jury, then he succeeded brilliantly.

Two months earlier, Jesse had deposed the expert for two hours and thought he would make a terrible impression on any breathing person in Harrison County. He was stuffy, pompous, well educated and proud of it. Though he had left Cleveland decades earlier, he had managed to hang on to his nasal, clipped, Upper Midwest accent that was like nails on a chalkboard to anyone south of Memphis.

When the water was as muddy as any storm could make it, Webb tendered his witness and Jesse came out throwing knives. He quickly established that Dr. Pennington had worked for the AIL for over twenty years; that the AIL was a trade organization funded by the insurance industry to research everything from arson to auto safety to suicide rates; that one arm of AIL was also involved in lobbying Congress for more protection; that AIL frequently battled with consumer protection groups over legislation; and so on. After haranguing the expert for half an hour his employer seemed downright evil.

Jesse suspected the jurors were getting antsy and he decided to go for the quick kill. He asked Dr. Pennington how many times he had testified in storm cases where the issue was wind-versus-water. He gave a self-satisfied shrug as if he had no idea, too numerous to
recall. Jesse asked him how often he had told a jury that the damage was caused by wind and not water.