It comes from here, Ephraim had said. What does? Then in her mind she heard another voice saying, “How do you feel, Erin?”
It was a question she had asked many, many times of others—jurors, clients, witnesses—“how do you feel about…?” Now someone was asking her, in a man’s voice that was not Ephraim’s. “How do you feel, Erin?” A flash of memory… years ago… sitting across a restaurant table, her answer coming to her lips even before that man who had been her lover finished his question. “It doesn’t matter.” He had walked out of her life two days later.
She looked up from the podium and tried to start again. Calendri was watching her with an amused, slightly quizzical expression. The vidcams in the back of the courtroom rolled on; she was making a fool of herself in front of millions of viewers. Letting Ephraim down.
It comes from here… and yes, she could feel something building with tremendous pressure in her chest, pushing up at her throat. There must be a deep well inside her, she realized. She had thought it had gone dry long ago, and then she had backfilled it in with rock and debris. But the cavity was still there, under the surface, and it had grown so full that it was about to burst. It was pressing on her all around from the inside, and now it had to go somewhere…
“The truth is, I’m standing up here scared to death.”
Who said that? Was that her voice? What was she doing?—this was no way to start a final argument.
“I’m so scared, Mr. Calendri, because I’m not the kind of lawyer Ephraim Polk needs. The kind he deserves. Because there are only a handful of lawyers in the whole country who might be good enough to stand up to NeuroTek and all its lawyers and experts and other resources. And I’m not one of them. But I’m all he has.”
The words seemed nonsense, drivel. Yet somehow, in speaking, she found the strength to stand upright and step back from the podium.
“And I’m scared of the law—that you might think that the law requires that you let a corporation escape liability for the injury it caused. That Mr. Clark might convince you that the law says it’s impossible for Ephraim Polk to win against NeuroTek, Incorporated. But the truth is, the law says it’s up to you to decide if NeuroTek’s implant is defective.”
As she spoke she walked slowly around the podium to the center of the courtroom, into the arena itself, where she had nowhere to hide and carried no arms but her speech and gestures. She stopped two meters from the jury box and looked Calendri in the eye.
She wanted to tell the juror how she had at first been angry about this case, because it seemed impossible, and at Ephraim. Tell him how she had grown up without parents, surviving on the streets in an urban kid-pack; how fear had been so much a part of daily existence that she learned to survive by converting fear into anger. So that anger became the substitute, the crutch, for every other strong emotion. Until she had met a certain man, a client. But if she said those things, Clark might well object that her own experience and feelings about her client were not relevant, and the traditional leeway given to lawyers in final argument might not be enough to prevent the judge from sanctioning her again.
So she could only draw upon her old experience and new knowledge of her feelings to talk about Ephraim. Through his testimony, Ephraim had done that himself, far better than she could do. So she told how Ephraim’s art had affected others, how he had, through his images and his own unfailing courage and honesty, brought out the true emotions that lay inside every human and which we could all share. She talked about the tragic, unfulfilled promise of Children's Crusade, how that work above all could have cut directly to the heart of each human being’s past.
And so she tried to make the juror see how the loss of a person’s past, the story of who that man really was, affected not only him, but the people who knew him. And in so doing, she made him not merely Ephraim Polk, famous artist, but Everyman.
Time passed without her noticing. The words came to her mouth as if they had sorted themselves; she had no sense of selecting them or arranging them into sentences. They only came—and they seemed to be the right words, and true. And when she again looked at Calendri, he was following these words. She had his full attention. Perhaps he even looked spellbound.
But her allotted time was almost up, and this was not enough. She could not ask for his verdict out of sympathy. Sympathy was the final appeal of the truly desperate. Ephraim deserved better, and this juror would need a rationale for finding the implant defective. He was, after all, an engineer. His emotions might move him toward a decision, but he would only make that decision if he felt good about it intellectually, as well as emotionally. He would want to feel good about it himself, and in the deliberation room he would also think about whether he could explain his verdict to friends and colleagues. So she would have to offer a rationale—even if it was not as solid as the NeuroTek rationale, with all those experts and the law standing behind it.
She realized all this instinctively, without consciously working it out, within the space of a pause that lasted no more than a second. She also sensed that whatever instinct or… feeling had led Ephraim to choose this man, Calendri might have at least one thing they needed to win this case: strength, perhaps even courage, of his own.
“Mr. Clark has made a big point out of NeuroTek’s product warnings, how Mr. Polk signed the disclosure. Ephraim did sign up for a NeuroTek implant, but does that mean he signed up for memory loss? That he agreed to trade the core of himself away, for a few years of doing his art more efficiently?
“NeuroTek’s counsel also suggested—improperly, as the judge said—that I use an implant. Well, let’s be honest: I do, and it’s NeuroTek’s, all right.” She was taking a risk here, but gambled that Clark wouldn’t have the nerve to object, after having opened the door on the subject himself. “I obtained an implant because I thought it would help me try cases better—and I, a lawyer, signed one of those disclosures too. Unless you sign, they won’t give you one of these magic implants they advertise, that will make your whole life better. And you think, those injuries are rare, bizarre accidents. It won’t happen to you.”
Let the juror draw his own conclusions why Clark had not signed up for an implant himself.
“So what NeuroTek has done, you see, instead of making a safer product, they’ve tried to insulate themselves with a scrap of paper. It wouldn’t have cost much to eliminate the risk of memory loss to users. But it costs them almost nothing to circulate a disclosure.”
There—this was the right track to take with this juror. Now, if she could find a finish that blended the emotion and the reason. And the words came:
“NeuroTek’s experts claim that it would take a ‘significant’ amount of money to produce an implant that didn’t cause these memory injuries. But the key testimony came from Dr. Singh, when Mr. Clark asked him, and he said, yes, but that depends on how you define ‘significant.’ The judge will give you legal definitions of ‘significant.’ It’s come to the point where we rely on a judicial program to tell us our law. But the law only defines the word in abstract terms. It’s up to you to decide whether the amount of money NeuroTek talks about is significant in comparison to the cost of the story of a human life.”