As seasoned lawyers, they should have known better than to plan the rest of the trial.
Their first witness Thursday morning was a retired oncologist from Jackson, a Dr. Swaney. For decades he had worked as a practicing physician while teaching at the medical school. His résumé was impeccable, as were his manners, and he spoke with a deep backcountry drawl that carried no pretensions. He was thoroughly credible and believable. Using as few medical terms as possible, Dr. Swaney explained to the jury the type of cancer that was killing Seth Hubbard, with emphasis on the tumors that metastasized to his spinal cord and ribs. He described the intense pain involved with such tumors. He had treated hundreds of patients with a similar condition, and it created some of the worst pain imaginable. Demerol was certainly one of the most effective drugs available. An oral dosage of a hundred milligrams every three to four hours was not uncommon and would alleviate some of the pain. It usually rendered the patient drowsy, sluggish, dizzy, often nauseous, and unable to carry out many routine functions. Driving was certainly out of the question. And, obviously, important decisions should never be made while under the influence of that much Demerol.
As a younger lawyer, Jake had learned the futility of arguing with a true expert. A bogus expert often provided the opportunity for some real carnage before the jury, but not so with witnesses like Dr. Swaney. On cross, Jake made it clear that Seth Hubbard’s own treating physician, Dr. Talbert, was not certain how much Demerol Seth was taking in the days before his death. The witness agreed it was all speculation, but politely reminded Jake that patients rarely buy more of an expensive drug if they’re not using it.
The next expert was another medical doctor, a Dr. Niehoff, from the medical school at UCLA. Small-town juries are easily impressed with experts who travel great distances to spend time with them, and no one knew this better than Wade Lanier. An expert from Tupelo would have their attention, while one from Memphis would be even more believable. But bring in the same guy from California and the jury would hang on every word.
For $10,000 of Wade Lanier’s money, plus expenses, Dr. Niehoff explained to the jury that he had spent the last twenty-five years researching and treating pain in cancer victims. He was well acquainted with the tumors under discussion and did a thorough job of describing their effects on the body. He had seen patients cry and scream for prolonged periods of time, turn deathly pale, vomit uncontrollably, beg for medications, pass out, and even beg for death. Thoughts of suicide were quite common. Actual suicide was not rare. Demerol was one of the more popular and effective treatments. Here, Dr. Niehoff ventured off script when he lapsed into a bit of technical jargon, as happened so often when experts couldn’t resist the temptation to impress their listeners. He referred to the drug as meperidine hydrochloride, said it was a narcotic analgesic, an opiate pain reliever.
Lanier stopped him and brought his vocabulary back in line. Dr. Niehoff told the jury that Demerol was a powerful pain reliever and highly addictive. He had worked with the drug for his entire career and had written numerous articles about it. Doctors prefer to dispense it in the hospital or in their clinics; however, in a case like Seth Hubbard’s, it was not unusual to allow the patient to take it orally at home. The drug was easy to abuse, especially for a person in severe pain like Seth.
Jake rose and said, “Objection, Your Honor. There is not a shred of evidence that Seth Hubbard abused this drug.”
“Sustained. Stick with the facts, Doctor.”
Jake sat down, relieved to have finally received a favorable ruling on something.
Dr. Niehoff was an excellent witness. His descriptions of the tumors, the pain, and the Demerol were detailed, and after forty-five minutes on the stand it was easy to believe Seth was suffering greatly and his pain was relieved only by massive doses of Demerol, a drug that practically knocked him out. In his expert opinion, Seth Hubbard’s judgment was so adversely affected by the daily dosages and cumulative effects of the drug that he could not have been thinking clearly in his final days.
On cross, Jake lost even more ground. When he tried to make the point that Dr. Niehoff had no idea how much of the drug Seth was taking, the expert “guaranteed” Jake that anyone suffering like Seth would be desperate for Demerol.
“If he had access to a prescription, then he was taking the pills, Mr. Brigance.”
After a few more pointless questions, Jake sat down. The two doctors had accomplished precisely what Wade Lanier had intended. At that moment, in the minds of the jurors, and practically everyone else in the courtroom, Seth had been disoriented, dizzy, drowsy, lightheaded, and unable to drive so he asked Lettie to do it.
In summary, he lacked testamentary capacity.
After a ten-minute recess, Lanier continued when he called Lewis McGwyre as a witness. Because the Rush firm had made such an ungraceful exit from the case, and was thus cut out of the fees, McGwyre at first refused to testify. So Wade Lanier did the unthinkable: he subpoenaed another lawyer. In short order, Lanier established that McGwyre had prepared a thick will for Seth in September 1987. That will was admitted into evidence, and McGwyre stepped down. As much as he wanted to hang around and watch the trial, his pride wouldn’t allow it. He and Stillman Rush hurried from the courtroom.
Duff McClennan took the stand, took the oath, and proceeded to explain to the jury that he was a tax lawyer with a three-hundred-man firm in Atlanta. For the past thirty years he had specialized in estate planning. He drafted wills, thick ones, for wealthy people who wanted to avoid as much of the death taxes as possible. He had reviewed the inventory of assets filed by Quince Lundy, and he had reviewed the handwritten will signed by Seth Hubbard. Lanier then flashed onto a large screen a series of calculations, and McClennan launched into a windy explanation of how federal and state death taxes gobbled up the unprotected estate. He apologized for the intricacies, the contradictions, the mind-numbing banalities of “our dear tax code,” and apologized for its complexities. Twice he said, “I didn’t write this. Congress did.” Lanier knew perfectly well that the jury would be bored if not repulsed by this testimony, so he labored diligently to skip along, hitting the high points and leaving much of the code in the dust.
Jake was not about to object and prolong this agony. The jurors were already antsy.
When McClennan mercifully got to the bottom line, he said, “In my opinion, the total tax bill, state and federal, will be 51 percent.” On the screen, in bold letters, Lanier wrote, “$12,240,000 in taxes.”
But the fun was just starting. McClennan had analyzed the will prepared by Lewis McGwyre. It was primarily a collection of related and complicated trusts that gave $1 million outright to Herschel and Ramona each, then tied up the remainder for many years while doling it out to the family. He and Lanier had no choice but to discuss it in detail. Jake watched the jurors as they began to nod off. Even McClennan’s light version of what the will was intended to do was dense and, at times, comically impenetrable. Lanier, though, was on a mission. He plowed ahead and began running the numbers on the big screen. The bottom line was that the tax bill under the 1987 will would be, in McClennan’s expert opinion, only “$9,100,000, state and federal, give or take a few bucks.”
The difference of $3,140,000 was printed in bold numbers on the screen.
The point was well made. Seth’s hastily written holographic will cost his estate a lot of money; more proof he was not thinking clearly.
Jake had learned to avoid the IRS code in law school, and for the past ten years had readily stiff-armed any potential client looking for tax advice. He had none to offer because he knew so little about that area of the law. When Lanier tendered the witness, Jake passed. He knew the jurors were bored and ready for lunch.
“We’ll be in recess until one thirty,” Judge Atlee said. “Mr. Brigance.” Jake planned to grab Wade Lanier and ask if he had five minutes to chat, but his plans were suddenly changed. He met Judge Atlee in his office down the hall. After His Honor removed his robe and lit his pipe, he sat down, stared at Jake, and calmly said, “You’re not pleased with my rulings.”
Jake snorted and said, “No, I am not. You’ve allowed Wade Lanier to hijack this trial with a couple of dirty tricks, a couple of surprise witnesses that I had no chance to prepare for.”
“But your client lied.”
“She’s not my client. The estate is my client. But, yes, Lettie was not truthful. She was caught off guard, Judge, ambushed. In her deposition she clearly stated she could not remember all the white families she’d worked for. The Pickering episode was so unpleasant I’m sure she tried to forget it. And the most important aspect of that little story is that Lettie never knew about the handwritten will. I could have prepared her, Judge. That’s my point. I could have softened the impact. You, though, allowed an ambush, and the trial flipped in a matter of seconds.”
Jake glared at the old man as he spoke, though he was well aware that Reuben V. Atlee was not one to be reprimanded. But this time the judge was wrong, and Jake was angry at the injustice. He had nothing to lose at this point, so why not lay it all on the table?
The judge puffed and seemed to eat the smoke, then it drifted out. “I disagree. Regardless, though, I expect you to maintain your dignity. Lawyers do not curse in my chambers.”
“My apologies. I sometimes curse in the heat of the battle, doubt if I’m the only one.”
“I’m not sure the jury has flipped, as you say.”
Jake hesitated. He almost reminded the judge that he knew almost nothing about juries. He so rarely saw them, which was part of the problem. In Chancery Court, he ruled supreme as judge and jury and had the luxury of admitting all evidence. He could sift through it, separate the good from the bad, and issue a ruling he deemed fair.
Jake was not about to argue. Instead, he said, “Judge, I have a lot of work to do.”
Judge Atlee waved at the door, and Jake left. Harry Rex caught him as he was leaving the courthouse and said, “Ozzie called the office, said they’re still at the jail in Memphis and trying to get him out. Right now they can’t get a bond set.”
Jake frowned and said, “A bond, for what?”
“He’s charged with public drunkenness and resisting arrest. It’s Memphis. They throw in the resisting charge every time they haul someone in.”
“I thought Ozzie had contacts there.”
“I guess he’s lookin’ for them. I told you it was a mistake to send that drunk to Alaska.”
“Is this really helpful right now?”
“No. What are you doin’ for lunch?”
“I’m not hungry.”
“Let’s get a beer.”
“No, Harry Rex. Some juries get offended when the lawyer reeks of alcohol.”
“You’re not still worried about this jury, are you?”
“Knock it off, would you?”
“I gotta go to court in Smithfield this afternoon. Good luck. I’ll check in later.”
“Thanks.” As Jake crossed the street to his office, he realized that Harry Rex had not missed a word in the courtroom since Monday morning.
