In my peripheral vision I saw one of the Masons stand up to be heard. I kept going.
“Your Honor, nowhere in those twelve terabytes is a single document written by Naomi Kitchens,” I said. “Any document in discovery that was sent to stakeholders had her name redacted. They tried to hide her from us, Judge, because they were aware she knew where the bodies were buried on Project Clair. To cure that violation, plaintiffs should be allowed to have Professor Kitchens testify to her work at Tidalwaiv. Thank you, Your Honor.”
The judge was silent for a few moments while she digested everything I had just revealed. I glanced to my left and saw that it was Marcus Mason who had stood up to respond.
“That is a very serious allegation, Mr. Haller,” she finally said. “Mr. Mason, how do you respond?”
I stepped back to give Mason the lectern, but I stayed close so he would feel me standing right behind him.
“Your Honor, as usual, Mr. Haller exaggerates and provides the court only the information partial to his cause,” he said. “But the reality is that the court’s order was to turn over in discovery all documents relating to the research, production, and promotion of the Clair app.”
Mason helpfully ticked off these three things on his fingers for the judge’s understanding.
“We have fully met that order, Your Honor,” he continued.
“Ms. Kitchens had nothing to do with those processes. She was merely an observer, and therefore we were under no obligation to provide what few documents and emails she authored. Thus the redactions that Mr. Haller hopes to cast as sinister.”
“Your Honor?” I said, raising my hand like a schoolboy.
“Yes, Mr. Haller,” Ruhlin said.
Mason stepped back from the lectern and took a position behind me, attempting to do to me what I had done to him.
“I find it interesting that Mr. Mason mentions emails authored by Naomi Kitchens,” I said. “I had not mentioned emails, Your Honor, and that tells me that the defense was familiar with the role she played in Project Clair and the numerous warnings she wrote in documents and emails. They then took steps to minimize the threat she presented to their case by scrubbing her entirely from the discovery materials. And I hope the court will keep in mind that this effort to scrub her from the project was undertaken before — long before — the first meeting I ever had with Professor Kitchens.”
Mason came up next to me, reached over the lectern, and bent the microphone’s arm toward himself.
“Your Honor, that is not the case,” he said. “There are not numerous documents and emails from Kitchens. Very few, in fact, and they are inconsequential to the case at hand.”
I spread my arms wide in protest.
“Your Honor, I think I still have the lectern,” I said.
“You do, Mr. Haller,” Ruhlin said. “Mr. Mason, step back. Now.”
Mason did so while I bent the mic’s arm back toward me.
“Your Honor, Mr. Mason is wrong,” I said. “Dr. Kitchens’s testimony is elemental to the plaintiffs’ case. She warned Tidalwaiv that Project Clair was not safe or appropriate for teenagers. Tidalwaiv fired her and ignored her warnings, which ratchets up their negligence to recklessness. I will give Mr. Mason the benefit of the doubt that he knows only what Tidalwaiv wants him to know. But there are numerous documents and emails from Dr. Kitchens. Fearing retaliation from the company when she offered warning after warning about Project Clair, she kept copies of every document and email she ever wrote about the project and she has turned them over to the plaintiffs’ legal team. She should be allowed to testify to authenticate for the jury these materials intentionally left out of discovery.”
“Your Honor?” Mason said.
Ruhlin hit him with a baleful look.
“It better be good, Mr. Mason,” she said.
I stepped back to give him the lectern.
“Judge, there are discovery issues on both sides here,” he said. “If Mr. Haller has this great trove of documents from this witness, why were they not provided to the defense? It seems like the pot calling the kettle black.”
I raised my hand.
“Not necessary, Mr. Haller,” Ruhlin said. “I am prepared to rule. Naomi Kitchens will be allowed to testify. As far as the documents she has provided the plaintiffs, these are documents Tidalwaiv either has or has destroyed. I find no violation of discovery on the part of the plaintiffs, and Mr. Mason, I advise you to have a sit-down with your clients to remind them of their obligations under this cause of action. I consider what happened with materials authored by Ms. Kitchens to be a serious violation of discovery. Now, any other objections to witnesses, or are we ready to bring in our potential jurors?”
I knew better than to push my luck. The ruling on Kitchens was a potential case-breaker. I quit while I was ahead and told the judge I was ready to proceed with voir dire.
But the Masons weren’t. They spent the next forty minutes pecking away at my witness list, the judge relenting in the name of time and whittling down the number of project managers, coders, and other Tidalwaiv employees I could call. They even challenged my inclusion of Victor Wendt, founder of Tidalwaiv. I protested all the way but it was purely for show. As I whispered to the two women who sat with me at the plaintiffs’ table, Kitchens was going to be our knockout punch. No matter how many names the judge lopped off my list, we were going to come out way ahead at the end of the session.
Or so I thought.
22
Some lawyers believe a trial is won or lost in jury selection. That may be true, but I also believe that a trial is won or lost in the selection of the attorney who takes the cause of action to court. I do know one thing for sure about juries. The one unalterable rule is that you must tailor the jury to your case. The juror questions I had written out earlier in the week brought back a wide variety of answers for me to look through before we got to the actual live selection process. Judge Ruhlin had called for a panel of fifty potential jurors, from which twelve would be selected. There would be no alternates chosen, because in civil court only six jurors were needed to deliver a verdict. We would start with twelve in the box, and as long as six made it to the finish line, we would get a verdict.
There were no names — I knew them only by the numbers assigned to them, one through fifty. But I had my favorites, had ranked them on a legal pad, and was ready to go with voir dire as soon as the hearing on witnesses ended. My number one juror happened to be number fifty in the stack and I thanked the stars above that she had gotten in under the wire. She was a retired schoolteacher who had raised two girls by herself in Reseda. She owned no digital devices besides her cell phone. She drove an American-made car and did not watch Netflix or Amazon Prime. She had never asked Siri or Alexa a question, because she didn’t know how. Her preferred method of consuming news was to watch the Fox cable network. She was perfect. The challenge was to get her into the final twelve seated in the box.
The judge had not allowed questions about religious or political affiliation, but she did permit questions about how the potential jurors consumed news and on what devices they did so. Their answers tended to reveal their political views, and from those views, I could make assumptions about religion. I wanted viewers of the conservative Fox channel on my jury because I believed they were likely Republican voters and Christians and therefore probably voted for Donald Trump in the last presidential election. I cast no aspersions on their vote, but it told me they were not happy — at least back in November, they weren’t — with the direction of things in the country and its future. AI was the future, but it scared people who knew it would change their world in ways they didn’t understand. That was who I wanted on the jury, people who felt uneasy and alienated from society. I readily admit it was a cynical way to pick a jury, but it could make all the difference in the trial.