Judge Atlee wasn’t too keen on them either, though he was duty-bound to follow them. At ten o’clock Monday morning, March 20, he shooed away the handful of spectators and told the bailiff to lock the door. This was not a public hearing.
As the lawyers were getting situated, Lester Chilcott, Lanier’s co-counsel, walked over to Jake’s table and laid down some paperwork. “Updated discovery,” he said, as if everything were routine. As Jake flipped through it, Judge Atlee called them to order and began scanning faces to make sure all lawyers were present. “Still missing Mr. Stillman Rush,” he mumbled into his microphone.
Jake’s surprise quickly turned to anger. In a section where all potential witnesses were listed, Lanier had included the names of forty-five people. Their addresses were scattered throughout the Southeast, with four in Mexico. Jake recognized only a handful; a few he had actually deposed during discovery. A “document dump” was a common dirty trick, one perfected by corporations and insurance companies, in which they and their lawyers hid discoverable documents until the last possible moment. They then dumped several thousand pages of documents on the opposing lawyer just before the trial, knowing he and his staff could not possibly dig through them in time. Some judges were angered by document dumps; others let them slide. Wade Lanier had just pulled off a “witness dump,” a close cousin. Withhold the names of many of the potential witnesses until the last moment, then hand them over along with a bunch of surplus names to bewilder the opponent.
The opponent seethed, but suddenly had more pressing matters. Judge Atlee said, “Now, Mr. Brigance, you have two motions pending. One to change venue, the other for a continuance. I’ve read your briefs, and the responses from the contestants, and I’m assuming you have nothing more to add to these motions.”
Jake rose and wisely said, “No sir.”
“Just keep your seats, gentlemen. This is a pretrial conference, not a formal hearing. Now, is it also safe to assume there has been no progress in the search for Ancil Hubbard?”
“Yes sir, that’s safe to assume, though with more time we may make some progress.”
Wade Lanier stood and said, “Your Honor, please, I’d like to respond. The presence or absence of Ancil Hubbard is of no importance here. The issues have been boiled down to what we expected, to those always in play in a will contest; to wit, testamentary capacity and undue influence. Ancil, if he’s alive, did not see his brother Seth for decades prior to Seth’s suicide. Ancil can’t possibly testify to how or what his brother was thinking. So let’s proceed as planned. If the jury finds in favor of the handwritten will, then Mr. Brigance and the estate will have plenty of time to keep searching for Ancil and hopefully give him his 5 percent. But if the jury rejects the handwritten will, then Ancil himself becomes irrelevant because he’s not mentioned in the prior will. Let’s move on, Judge. You set the trial date of April 3 many months ago, and there’s no good reason not to go on as planned.”
Lanier was not flashy, but he was down-to-earth, even homey, and persuasive. Jake had already learned the man could argue effortlessly off-the-cuff and convince anybody of just about anything.
“I agree,” Judge Atlee said gruffly. “We will proceed as planned on April 3. Here, in this courtroom. Please sit down, Mr. Lanier.”
Jake took notes and waited for the next argument. Judge Atlee looked at his notes, adjusted the reading glasses far down his nose, and said, “I count six lawyers sitting over here on the contestants’ side of the courtroom. Mr. Lanier is the chief counsel for the children of Seth Hubbard—Ramona Dafoe and Herschel Hubbard. Mr. Zeitler is the chief counsel for the two children of Herschel Hubbard. Mr. Hunt is the chief counsel for the two children of Ramona Dafoe. The rest of you guys are associates.” He removed his glasses and stuck a stem in his mouth. A lecture was coming. “Now gentlemen, when we get to trial, I have no intention of tolerating a lot of excessive and unnecessary chatter from six lawyers. In fact, no one except lawyers Lanier, Zeitler, and Hunt will be allowed to speak in court on behalf of the contestants. God knows that should be enough. And, I’m not going to subject the jury to three different opening statements, three different closing arguments, and three different examinations of witnesses. If there is an objection, I do not want three or four of you jumping up and waving your arms and yelling, ‘Objection!’ ‘Objection!’ Do you follow me?”
Of course they did. He was speaking slowly, clearly, and with his usual heavy authority. He continued, “I suggest that Mr. Lanier take the lead for the contestants and handle the bulk of the trial. He certainly has more trial experience, not to mention the clients with the greatest interests. Divide the work any way you want—I wouldn’t dare give advice,” he said gravely, advising. “I’m not trying to muzzle anyone. You have the right to advocate for your client or clients. Each of you may call your own witnesses and cross-examine those called by the proponents. But the first time you start repeating what’s already been said, as lawyers have a natural inclination to do, you can expect swift intervention from up here. I will not tolerate it. Are we on the same page?”
They certainly were, for the moment anyway.
He jammed the reading glasses back onto his nose and looked at his notes. “Let’s talk about exhibits,” he said. They spent an hour discussing the documents that would be admitted into evidence and shown to the jury. At Judge Atlee’s heavy-handed insistence, the handwriting was stipulated to be that of Henry Seth Hubbard. Arguing otherwise would be a waste of time. The cause of death was stipulated. Four large color photos were approved. They showed Seth hanging from the tree and eliminated any doubt as to how he died.
Then Judge Atlee said, “Now, let’s review the witnesses. I see that Mr. Lanier has added quite a few.”
Jake had been waiting impatiently for over an hour. He tried to keep his cool, but it was difficult. He said, “Your Honor, I’m going to object to a lot of these witnesses being allowed to testify at trial. If you’ll look on page six, beginning there and running for a while, you see the names of forty-five potential witnesses. Looking at their addresses, I’m assuming these people worked in Mr. Hubbard’s various factories and plants. I don’t know because I’ve never seen these names before. I’ve checked the latest updated responses to interrogatories, and of the forty-five, only fifteen or sixteen have ever been mentioned by the contestants before today. Under the rules, I was entitled to have these names months ago. It’s called a witness dump, Your Honor. Dump a pile of witnesses on the table two weeks before the trial, and there’s no way I can possibly talk to them all and find out what their testimony might be. Forget depositions—it would take another six months. This is a clear violation of the rules, and it’s underhanded.”
Judge Atlee scowled at the other table and said, “Mr. Lanier?”
Lanier stood and said, “May I stretch my legs, Your Honor? I have a bad knee.”
“Whatever.”
Lanier began pacing in front of his table, limping slightly. Probably a courtroom trick of some variety, Jake thought.
“Your Honor, this is not underhanded and I resent the accusation. Discovery is always a work in progress. New names are always popping up. Reluctant witnesses sometimes come forward at the last minute. One witness remembers another one, or another one, or he remembers something else that happened. We’ve had investigators digging and digging for five months now, nonstop, and, frankly, we’ve outworked the other side. We’ve found more witnesses, and we’re still looking for more. Mr. Brigance has two weeks to call or go see any witness on my list. Two weeks. No, it’s not a lot of time, but is there ever enough time? We know there is not. This is the way high-powered litigation goes, Your Honor. Both sides scramble until the very last moment.” Pacing, limping, arguing quite effectively, Lanier inspired grudging admiration, though at the same time Jake wanted to throw a hatchet at him. Lanier did not play by the rules but he was quite adept at legitimizing his cheating.
For Wade Lanier, it was a crucial moment. Buried in the list of forty-five was the name Julina Kidd, the only black woman Randall Clapp had found so far who was willing to testify and admit she’d slept with Seth. For $5,000 plus expenses, she had agreed to travel to Clanton and testify. She had also agreed to ignore phone calls or any contact from any other lawyer, namely one Jake Brigance, who might show up desperately sniffing around for clues.
Not buried in the list was Fritz Pickering; his name had not been mentioned, nor would it be until a critical moment in the trial.
Judge Atlee asked Jake, “How many depositions have you taken?”
Jake replied, “Together, we’ve taken thirty depositions.”
“Sounds like a lot to me. And they’re not cheap. Mr. Lanier, surely you don’t plan to call forty-five witnesses.”
“Of course not, Your Honor, but the rules require us to list all potential witnesses. I may not know until we’re in the middle of the trial who I need next on the stand. This is the flexibility the rules contemplate.”
“I understand that. Mr. Brigance, how many witnesses do you plan to call?”
“Approximately fifteen, Your Honor.”
“Well, I can tell you fellas right now I’m not going to subject the jury, or myself, to the testimony of sixty witnesses. At the same time, I’m not inclined to restrict who you may or may not call at trial. Just make sure all witnesses are disclosed to the other side. Mr. Brigance, you have all the names and you have two weeks to dig.”
Jake shook his head in frustration. The old Chancellor couldn’t help but revert to his old ways. Jake asked, “Then would it be possible to require the attorneys to submit a brief overview of what each witness might say on the stand? This seems only fair, Your Honor.”
“Mr. Lanier?”
“I’m not sure how fair it is, Your Honor. Just because we’ve hustled our butts off and found a bunch of witnesses Mr. Brigance has never heard of doesn’t mean we should be required to tell him what they might say. Let him do the work.” The tone was condescending, almost insulting, and for a split second Jake felt like a slacker.
“I agree,” Judge Atlee said. Lanier shot Jake a look of contemptuous victory as he walked by him and sat down again.
The PTC dragged on as they discussed the expert witnesses and what they might say. Jake was irritated at Judge Atlee and did not try to hide his feelings. The highlight of the meeting was the distribution of the jury list, and the judge saved it for last. It was almost noon when a clerk distributed it. “There are ninety-seven names,” Atlee said, “and they’ve been screened for everything but age. As you know, some folks over the age of sixty-five do not want to be exempted from service, so I’ll let you gentlemen handle that during selection.”
The lawyers scanned the names, looking for friendly ones, sympathetic ones, smart folks who would instantly side with them and bring back the right verdict. Atlee went on, “Now, and listen to me, I will not tolerate contact with these people. As I understand the nature of big lawsuits these days, it’s not unusual for the attorneys to investigate the jury pool as thoroughly as possible. Go right ahead. But do not contact them, or follow them, or frighten them, or in any way harass them. I will deal harshly with anyone who does. Keep these lists close. I do not want the entire county knowing who’s in the pool.”