CLIENTS BEHAVING BADLY:
A Review of Lawrence Schiller's New "True Litigation" Book, Cape May Court House: A Death in the Night

Lawrence Schiller, Cape May Court House: A Death in the Night (HarperCollins 2002)

Lawrence Schiller, in his own way, is a great reporter. He proved as much in Perfect Murder-Perfect Town, his definitive and eminently readable instant-history of the Jon-Benet Ramsey murder and its inconclusive aftermath.

His new Cape May Court House is a hybrid of a book - both true-crime and true-litigation. (The latter genre emerged triumphantly in the best-selling A Civil Action.) Certainly being a good writer is important to being a good reporter, but Cape May Court House reminds that what makes a great reporter is a nose for great stories, and Schiller has got one.

A Suspicious Car Accident, and the Civil Suit that Followed

Cape May Court House is the story of the death of a young pregnant woman who was found at the scene of a car crash. She was still belted into her Ford Explorer, with the deflated airbag covering the steering wheel. Her husband was unconscious to the touch in the passenger seat; their infant daughter sat comfortably in her car seat in the back.

It is a strange scene: a minor collision between an SUV and a utility pole produces the ultimate injury. Husband and child are sleeping in their beds the next night; wife and mother is dead. The mishap was the product, says the husband, of his wife having swerved to avoid a deer. Yet there were no tracks in the snow.

A cursory police investigation was conducted, the woman's body was cremated, and life insurance proceeds (the telltale double indemnity, even) were collected. Later the husband remarried and returned to life in a small New Jersey township with a made-for-Hollywood name: Cape May Court House.

All this happens, but of course that is not all that happens. The husband, a dentist named Eric Johnson, does not simply return to small town life. This being the United States, he sues Ford Motor Company - not for the money, of course, but to save countless other families the havoc wreaked by Ford's "overly-aggressive" air bag, which he claims snuffed out his wife's life.

There are bucketsful of bromides in the law - and most are passed down for good reason. In talking about appearing before a grand jury, Edward Bennett Williams famously remarked "Only a Mongoloid idiot would do anything other than assert the Fifth Amendment." He was right. Yet hoarier is the admonition that "those who seek justice sometimes find it."

When a lawsuit is filed, the coercive machinery of the state is brought to bear to resolve a previously private dispute. Hypotheses are disproved. Lies are unmasked. Skeletons are pried out of their closets. As I have advised in my own practice, potential plaintiffs owe it to themselves and their families to take a long look in the mirror prior to starting up that machine.

Eric Johnson apparently did not spend enough time looking into that mirror. Like any number of people who have been in the news lately (a lifestyle diva, a Southern governor, a President, the list goes on and on), he simply charged forward.

Schiller suggests that he did so with a seeming certainty that he would be able to tell lies in the courtroom litigation context with the same impunity and felicity as people often do in everyday life.

According to Schiller's book, in deposition and sworn interrogatory responses, Johnson lied about the fact that he was having an affair with his to-be second wife prior to the death of his first wife. Schiller believes Johnson lied when he lowballed what he had reaped in insurance proceeds after his first wife's death. He also suggests Johnson lied when he claimed he had never had back problems before the car wreck.

Well, you can fool some people some of the time, but you can't fool people with subpoena power all that often.

A Compelling Portrait of What Litigators Actually Do

I thought A Civil Action was an awfully good book - not only because it told a compelling story but also because, from my own selfish perspective, it was an extraordinarily useful tool for communicating to my non-lawyer parents what it is I actually do all day. This latest addition to Schiller's oeuvre is an equally accurate portrait (albeit in an extraordinary case) of what litigators do.

The difference between a good and a great litigator is whether she takes that extra step. Does she subpoena the plaintiff's cell phone records? Does she make that extra phone call to track down the second wife's first husband? Does she spend that extra hour understanding the intricate pathology of asphyxiation, so that the Medical Examiner concedes in his deposition that while he thought initially that the airbag was the killer, it might well have been old-fashioned strangulation?

A Page Turner That Ultimately Leaves the Reader to Make His Own Conclusions

As with A Civil Action, I read Cape May Court House in one long and enjoyable sitting. That is quite a testament to a book that marches dutifully through the depositions, the interrogatories, the expert reports, the discovery fights, and all the other lawyering that precedes what we see of the law on television.

And in the end, as with Perfect Murder-Perfect Town, what makes this book compelling is that the reader is left to draw his own conclusions. Eric Johnson's mendacity cost him his right to sue Ford for money - he dropped the case. But the litigation machine is not so easily stopped. He was promptly sued for wrongful death by his first wife's family.

Did Eric Johnson murder his wife and stage a phony accident? We may well never know. Local prosecutorial authorities have declined to reopen the case - in part because, tantalizingly, Johnson convincingly passed two lie detector tests on the question of whether he murdered his wife.

The civil action instituted by Johnson's former in-laws is yet in its opening stages. One thing that can be said for sure, however, is that a dark and deepening shadow has been cast over Eric Johnson. Yet had he never sued, no shadow would have been cast. As Schiller concludes, he has only himself to blame.