on 16 July 2017
A jury is to be empanelled in a high-value tort case against a cigarette manufacturer. The claim is brought by the widow of a lifelong smoker who has died of lung cancer. The allegation is, quite simply, that cigarettes caused his death. The early part of this novel is taken up with the machinations behind the scenes among the lawyers who, under court procedure, are able to accept or reject a finite number of potential jurors from a potential pool of well over a hundred. They take advice from experts - known as jury consultants - who help them craft a jury that is as optimal as possible for the case and their client, using information the jury consultants have dug up about each member of the jury pool: including photographs, medical and legal records, surveillance, gossip and rumour.
The story focuses on the defence side of the case. The tobacco company has all the money and have hired one of the top guns in jury consulting: a ruthless, amoral individual who will stop at nothing to win cases for his wealthy backers. This jury consultant, in turn, selects the law firm who will represent the tobacco company and, throughout the case, he drills them like a taskmaster. They don't mind, cases like this go on for years (this one has been running for four when we pick up the story) and the trial will make them - or at least, the firm's partners - millionaires and big time hitters. Nobody believes ordinary men and women jurors will think favourably towards the tobacco industry, so in simple terms, the defence team wants as many jurors as possible who are disfavourably inclined towards the plaintiff, the widow, on the basis that the deceased chose to smoke heavily and brought the unfortunate manner of his demise on himself.
Once a jury is selected, the novel then moves into the court case itself and the ongoing work behind-the-scenes by the jury consultants to dig deeper into the pasts of the selected jurors. The twist in the story happens early on, and Grisham's writing and plotting is fairly formulaic from that point. Nevertheless, it's an enjoyable read, though elements of this novel require perhaps too much suspension of disbelief. The setting of the American justice system helps. Trial consulting is a noteworthy industry in the United States, where the rules can be relatively lax - for instance, witness coaching is permitted in many U.S. states. An equivalent drama set in the English courts system probably couldn't be written - or at least, it would be a challenge. But a conspiracy novel, which this essentially is, needs to be more tightly written. Things happen that would never happen in real-life. You might reply that this is fiction and Grisham is entitled to expect at least some suspension of disbelief. True, but this is legal drama, and heavily procedural, therefore it has to be anchored in reality. Here we are expected to believe (or rather, make believe) that a criminal conspiracy would occur involving threats, intimidation, bribes and manipulation of members of a jury, all with hundreds of millions of dollars at stake, and that not a word of this reaches the proper authorities. In reality, somebody would 'say something' to the right person and the conspiracy would quickly unravel. Jurors under pressure from outside threats and manipulation would, presumably, simply go to the trial judge, but that can't happen here if the story is going to work. We have to put logic and our understanding of reality to one side to enjoy this. That said, one intriguing possibility does occur to me.
The trial judge is an interesting figure in this novel. As a fictional character, he seems passive and incorruptible, and is presented as a man who came to the bench following a very ordinary career as a modest small town general practice lawyer, but he has momentary lapses that make me wonder about his incorruptibility. There are several strange scenes in which a dialogue occurs between the main character, a juror, and the judge. This is interesting. We don't often see the 'human' side of judges, but Grisham fleshes the trial judge out a little and presents him as a complex character. It is unlikely that a judge would meet with a juror without lawyers for each party present (the author makes this very point on page 277), as this is not allowed. Why would the judge commit such an ethical lapse? Is this just thoughtlessness or clumsiness? What would he have to gain by not having the litigators present and where would the expediency be for the court or the interests of justice in such corner-cutting? There is also the odd relationship forged between the judge and the leading juror-character, in which the judge is seen to indulge the jury and acquiesce to their every demand, no matter how petty. This would not happen in the real world where juries have to behave in a much more disciplined fashion. All this brings me to my question: Was the judge in on the conspiracy and part of it? Perhaps there is more to this judge than meets the eye.
The topic of juries is quite well-worn. Lots of courtroom dramas - both in film and written form - have been based around juries, but Grisham approaches the topic from a novel angle in that he takes us into the microcosm not just of the jurors' deliberations, but their own lives. This is necessary to the plot, for this is a story about juror behaviour and how ordinary people can be corrupted quite easily. The potential for corruption here is great. Tobacco is big business, but really, in this novel two toxic industries are under scrutiny - tobacco and mass tort litigation - and the symbiotic relationship between the two is made plain by Grisham. Each needs the other. Tobacco needs skilled litigators to protect it. Litigators make money from mass claims against tobacco. Within each of these industries, various shady para-trades and professions also prosper, including jury consulting (known as trial consulting in the real world), security and private investigations.
What is striking in Grisham's story is the contrast between the impression created for the public of an honest, impartial and just legal system, and the murky reality beneath, in which different members of the jury are innocently or unwittingly duped into behaving corruptly or improperly. It is typical of a Grisham scenario that these are very ordinary working class and middle-class Americans thrown into a "Gettysburg, Iwo Jima..." [p.365] legal battle, in which the future of the entire tobacco industry is on the line. Some of the jury are completely unknowing and innocent, but they are the ones who allow themselves to be led along by the leading personality on the jury and who, in one or two cases, find themselves in hot water. Is Grisham here attacking the jury system, or is he just telling us an entertaining but salutary story? The mundane reality of jurors is that, like most ordinary people, they are going to be naive and vulnerable in this sort of situation, due to their inexperience, yet they are asked to render verdicts in matters of great weight. The system seems to rely on what we might call the Ideal Juror, the man who honours his mission to hear out both sides and makes his decision about the verdict based on the facts and evidence presented during the case, not allowing his own prejudices and opinions or any extraneous considerations to influence him. Does this Ideal Juror bear any relation to the reality? Is it even possible to have jurors like that? Grisham perhaps thinks not. We see the jurors in this novel falling asleep or struggling to maintain interest in the case.
The characters of Grimes and Savelle represent the Ideal Juror. Grimes is the blind man (or he affects to be blind) who becomes the jury foreman. He sticks to the rules, including not prejudging or discussing the case until it is handed over to the jury. Grimes' fidelity to jury ethics seems to be based on obedience (the fact that he is blind might be a clever metaphor on Grisham's part); Savelle, on the other hand, is a cold rationalist. The surname Savelle derives from the Old French saisne, meaning Saxon village. Strictly speaking, the jury system has its origins in the Vikings and Danes of England, but a similar system was in use among the Saxons. Maybe the name of this character is a nod to this ancient history? The rest of the jurors mostly want to go along with the majority. Grisham captures very well the dynamics of any human group: a leader or two always emerges, the majority follow, with one or two rebels or outliers. Juries are presumably no exception. Indeed, the system involves the jurors selecting a leader, of sorts: the foreman, something that probably creates resentment among some of the other jurors, as happens in this story. The conspirators take advantage of these dynamics and obviously have a very good understanding of human psychology: "He wanted them fatigued and the verge of revolt. A mob needs a leader." [p.384]. So do the lawyers, and to an extent the judge. It strikes me that a great deal of the practice of law is about understanding psychology, specifically mass psychology and how ordinary people (i.e. a jury) react to the presentation of a case. In the story, this leads at times to the lawyers relegating the intellectual aspects of a case in favour of presenting things in a way that will come across well to a jury. This even extends to how the lawyers choose to dress and the facial expressions they make in front of the jury.
Even so, the underlying issues raised by a story like this are given ample treatment. Grisham is clearly in favour of tobacco regulation, if not an outright ban, but unlike in some of his more mediocre novels, here he is not overbearing about it and creditably invites the reader to think. The discussions between the characters about tobacco and the free will versus regulation debate are particularly interesting. At one point, a contrast is drawn between cigarettes and guns. It is pointed out that while guns are lethal - and possibly statistically more so than cigarettes - a gun is not designed to be fired, whereas a cigarette is designed to be lit and puffed and thus are "...deadly if used exactly as intended."[p.156]. The problem with this argument is that it depends on the thesis that nicotine is addictive. Guns are not designed to be aimed and fired at people because the use of a gun does not necessarily entail firing it, whereas a cigarette has to be smoked to be used; but it does not follow that lighting and smoking a cigarette is going to entail serious health risks unless it can be proven that somebody who uses a cigarette is going to increase their usage due to it containing addictive substances. If it’s not addictive, then it becomes purely a matter of free will, and if there are health risks in over-usage, then it's a question of at what level use becomes abusive.
One of the juror-characters draws a comparison between the harms of tobacco and alcohol respectively:
[quote]"'Cigarettes are the only products that are deadly if used exactly as intended. Alcohol is supposed to be consumed, of course, but in reasonable amounts. And if it's taken in moderation, then it's not a dangerous product. Sure, people get drunk and kill themselves in all sorts of ways, but a strong argument can be made that the product is not being used properly in those instances......And there's something else. Alcohol has a natural warning. You get an immediate feedback when you use the product. Not so with tobacco. It takes years of smoking before you realise the damage to your body. By then, you're hooked and can't quit.'"[unquote] [p. 458].
The character is suggesting that there cannot be a reasonable amount of cigarette usage, due to the supposed addictiveness of nicotine, but this, again, relies on the assumption that nicotine is addictive. If it is, then why should we adopt the assumption that alcohol is not addictive? Aren't people who smoke just as responsible for their usage of cigarettes as people who drink? If so, is there a reasonable amount of alcohol consumption at all? Putting aside the question of addictiveness, there is also the question of whether the long-term consumption of alcohol could be damaging to health, even if the user is not getting drunk, just as consumption of unhealthy foods might be harmful even without any obvious warning signs.
In the novel, the tobacco defendant tacitly concedes the point that nicotine is addictive, resting their argument entirely on the notion that the deceased must have been personally responsible for his use of cigarettes. In fairness, the argument that advertising by the tobacco industry persuaded the deceased to smoke and thereby caused his death is rather strained, nevertheless to not address addiction at all is perhaps a surprising position for the defence lawyers to take. The lawyers present this as a shrewd strategem, in the belief that most jurors will assume that nicotine is addictive anyway and therefore to explore the issue would be of no tactical benefit to the defence, but surely in a real case the lawyers would realise that not to attack the addictiveness argument would inevitably lead to defeat. No jury is going to find for a tobacco industry defendant if it has been convinced (whether in or outside court, doesn't matter which) that nicotine is addictive, since that thesis - even if implicit and not deduced in evidence - is the linchpin of the whole case. The defence lawyers are trying to argue for 'free will' and personal responsibility, but this surely misses the point that even in a free market economy, there has to be regulation, if only to ensure that consumers have adequate information about products. If tobacco really is addictive and this information has been hidden from the general public by tobacco companies, then we need regulation to ensure people are informed, and furthermore, cigarette manufacturers should be penalised harshly in the courts to ensure that they do not mislead and poison their own customers again. This is not really a simplistic conflict between regulation and the market or between the needs of commerce on the one hand and truth, integrity and justice on the other. Regulation is needed to make the market work, the needs of commerce must reflect the needs of the consumers who facilitate it and whose demands are to be met. The greed and avarice of the tobacco executives leads them into the error of a false dichotomy and we need the courts, as the last reserve, to remedy matters.
One of the problems with John Grisham’s published writing has always been a tendency to bring his preachy politics into it. I believe it is no coincidence that his two best novels - The Firm and The King of Torts – are not ‘political’. The Firm was a taut thriller, The King of Torts was a fun story, neither set out to make white men feel guilty about breathing. They were just exaggerated stories intended to provide simple, innocent enjoyment. The Runaway Jury ranks alongside them. It’s not an exciting thriller, it’s more of an involved novel that takes us deeper into the American civil justice system while managing to stay interesting. This is definitely an anti-tobacco novel, Grisham makes his views on the topic plain, but he lets his readers breathe for once, and nowhere in it did I feel I was being lectured to about politics or told that I must have liberal PC thoughts about race issues, or some other issue, otherwise I’m a bad person. Grisham does bring race into this, but in a subtle way: he uses his characters to demonstrate how racial grievances, real and imagined, can be used to manipulate African-Americans (the term used in the novel is 'black', as mine is a 1996 first edition).
This is about the best Grisham can do. That means he is not, and never can be, a great writer, or even especially good, but what we can say is that he is one of the best popular writers. The Runaway Jury shows what John Grisham is capable of when he gives the dreary politically-correct sermonising a rest and just sticks to telling us a story.