A True Courtroom Drama of Tragedy at Sea

By Jay W. Jacobs | Quid Pro Books | $32.99 | 278 pages | 2014

“You probably had a few lectures about ‘full and fair discovery’ in law school. That’s a nice topic for professors and legal theorists in the faculty lounge, but not for a lawyer in trial. You keep in mind that when it comes to a trial you are a gladiator, and your client’s interests come first, last, and always. It’s a sacred trust. You and your client’s case converge, becoming inseparable.”

Jay W. Jacobs, the author of The Widow Wave, is a trial lawyer who salts his book with eye-brow-raising nuggets like the above quoted advice imparted to him by his Dad. This true trial story by the man who tried the case minces no words in describing the agony, exhilaration, stress, and utter exhaustion of trial work. If you try lawsuits, you will run into yourself on virtually every page of this book. Jacobs’ narrative propels the reader along the time line of a single trial that originates in a catastrophic storm northeast of Hawaii out of which ocean swells pulsate 1,400 miles toward San Francisco, arriving just in time to meet the 34-foot private fishing boat, Aloha, as it is entering the Pacific Ocean through the Bonita Channel on a Salmon fishing trip. The vessel disappeared to the bottom of the sea without a trace, and all five aboard went with it. The Widow Wave wraps up 263 pages later as the courtroom door closes behind the last verdict-rendering juror.

Mr. Jacobs’s prose nicely narrates the developing events. It does not intrude on the mind of the reader and never once interferes with a solid telling of the story. His writing style fits the book very comfortably. I still read books the old-fashioned way, and I did not want to put this one down. Never did I sense a lull in the action. Turning each page was a compelling search for what would happen next.

All the elements of a great trial story are here, too. The solo practitioner must face off with one of the most renowned and successful advocates at the California bar. The opposition’s impeccably detailed preparation, perfect knowledge of the rules of evidence and disdain toward the author sets the battleground for the gladiators in the courtroom. Both sides must face the ultimate fact of the case that no one knows what happened to the Aloha; no one knows why it sank or, for that matter, where it sank. With no eyewitnesses to what actually occurred, the only reality for the jury in determining whether the deceased, highly experienced captain negligently drove his vessel into an angry sea that morning must come from the opposing theories of the parties told through circumstantial evidence and expert testimony. The courtroom in essence has to become an alternate reality.

The author has a keen knack for subtly drawing out the personalities of the key players: the occasionally irascible trial judge; the expert witness who decides on the day of trial to wear a shiny green polyester suit; the lawyer whose witness has just reassessed the facts and given testimony from the stand never before discussed with trial counsel; the lay witnesses who go to great lengths to avoid service of a trial subpoena and resent having to be at the courthouse; the always conservatively attired client who appears on the first day of trial overly jeweled and sharply dressed. Mr. Jacobs also expertly draws the reader into the minds of the experts, the facts on which they rely, and the theories they develop. In a fascinating way, he brings us along with him as he learns from his experts about how waves are formed, grow, crest and disappear and how they are affected by tides and the encounter with sand bars that get in their way.

But at its heart, this is a story about the anatomy of a trial: it is about handling juries, stopping legal grandstanding, reversing course when a bad answer rings out from the witness stand; turning exhibits that hurt the case into winners at closing argument; amplifying your opponent’s mistakes and turning them into solid gains; losing evidentiary battles; trying to manage the presentation of evidence to keep the attention of the jurors; and applying the basic rules of evidence to a gamut of circumstances from how to convince the judge to admit documentary hearsay to how to keep the court from striking your expert witness in the face of a competency objection. The amazing feat accomplished by Mr. Jacobs is that this book never turns pedantic when delving into these trial maneuvers; they are tightly packed into the wonderfully woven tapestry of an exciting trial involving real people engaged in a living dramatic struggle.

The author’s skillful presentation of mundane trial issues as part of a dramatic and compelling story caused me, more than once, to sit back and admire the development of his narrative. For example, arguments over jury instructions can hardly be considered the stuff of great literary significance. Yet, a major and recurring theme throughout The Widow Wave builds on Mr. Jacob’s trial strategy to subvert his opponent’s quest to convince the court to give a potentially game changing jury instruction. Putting aside whether he succeeds or fails in achieving the goal as the story moves to its climax, the wonder of it all is that he pulled me along with an unrelenting desire to know whether the instruction would be given.

From my perspective, this was a book that ended way too soon. I wanted some more things to happen in the trial. It was fun second-guessing the trial strategies. I wondered why some objections were sustained or overruled, and I was amazed at why some objections were never made. Just as importantly, this story reconfirms for me the great principle I have been taught to stand by: that our adversary jury system is the best in the world for resolving disputes.

In short, this book is a great excursion into a real trial wrapped into all the trappings of real trial lawyers who, even though they are at the height of their professional acumen, still agonize over decisions they must make during trial and the impact they will have on the sacred trust to protect the client’s interests. No work of fiction can ever beat that.
 

DAVID WADE is a director and shareholder with Martin Tate Morrow &?Marston PC in Memphis.