TBJ's 3rd Annual Fiction Contest Winner: The Mistrial - Articles

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Posted by: Melissa Brodhag on May 22, 2019

Journal Issue Date: Jun 2019

Journal Name: Vol 55 No 6

“We’ll dynamite ‘em!” he said as he pounded his fist on his desk. His green banker’s lamp shook, and the Tennessee Code shelved neatly behind him seemed to shudder. He placed his right index finger into his pattern jury instruction book to save the charge he wanted and quickly rose from his mahogany swivel chair.

As he opened his chamber door, the Plaintiff’s attorney and I filed out. The judge winked at me with that mischievous gleam in his eye just like he used to when I clerked for him six years ago. His blood was up! I believe he loved jury trials even more than his University of Tennessee Volunteers.

His name was Robert James Lowery, and he was probably one of the most respected trial judges in Tennessee. He was famous for his knowledge of the rules of evidence, his award-winning storytelling, and his fairness to lawyers.  He was an old soul who loved the art of practicing law and would sooner “jump off the Chimney Tops in the Smokies than conduct legal research on a dad-blamed old computer.” 

“Celeste,” he used to say to me in my law clerk days, “I wish you could have been around in the good ole days of the wild, wild west when your entire case file fit in a small manila folder, and you had no idea what the other side was going to do at trial. You had to be quick on your feet, and you were always in court. The art of lawyering, the art of storytelling has been all but lost. All lawyers do now is shuffle paper and go to mediation.”

I felt fortunate to have had him as a mentor for my first year out of law school. I had been encouraged to apply for a clerkship with him by my husband’s uncle Charles “Charlie” Robbins, who was a lawyer in Judge Lowery’s county. He said I would learn more from Judge Lowery in one year than I could learn in five years of legal practice. I believe he was right. Now Charlie and I practice law together. We handle general civil litigation matters, but we mostly work for a few insurance companies, handling their business in Hutchens County in East Tennessee.

And it was on an insurance company case that I found myself when Judge Lowery decided he was going to “dynamite” the jury. It was a typical car accident case. My elderly client had rear-ended the Plaintiff who complained of neck and back pain that lacked an objective medical diagnosis. The insurance company and the Plaintiff simply could not come to terms. As we had no defense to liability, I did the best I could to focus the jury’s attention on the lack of objective proof of the Plaintiff’s injuries.

For some reason, the jury was taking an inordinately long time to make a decision. When Judge Lowery said he was going to “dynamite” the jury, he meant that he was going to call upon the jurors’ sense of duty and citizenship to wrangle a decision out of them. In a “dynamite” charge, the judge explains that if no decision is reached, he will have to declare a mistrial. Then another jury will have to be empaneled, and the parties will have to start all over again. He emphasizes the waste of time and money that a new trial will involve.

After four hours the day before and three hours on that day, it seemed that we were headed for a mistrial unless the “dynamite” charge worked. After listening to Judge Lowery’s plea to the jury, we were told to come back in two hours. My client and I went our separate ways. I walked over to the Long Hunter Cafe for a bite to eat. Charlie was there with a couple of his retired friends. They were listening to one of his favorite stories.

It was the one about Buell Shedd. Buell had had a hard-knock life and seemed to always be in trouble with the law. One morning he awoke to find himself newly incarcerated in the Hutchens County Jail. He shook off his drunken stupor and stumbled to the barred window for some fresh air. When he looked down from the third story, he saw his friend Carl Putnam walking along the courthouse square. “Carl! Carl! Carl!” Buell yelled. Carl Putnam, who thought the Good Lord was calling him home, dropped to his knees and clasped his hands together to say a hurried prayer. “Carl, get up. Look up here, it’s me, Buell.” Carl got up cussing and slapping his hat against his now dirtied trousers.

“Carl, please go find that lawyer Charlie Robbins and tell him to come get me outta here,” Buell said. Carl begrudgingly walked over to Charlie’s office and delivered the message. Carl then returned to the jail and yelled to Buell, “Mr. Charlie said it would be three hundred dollars to start your case.” Buell yelled back from his window, “I done started my case — I need him to finish it.”

I mouthed the words to the punchline as Charlie and his friends howled with laughter. How many times had they heard that one?

Charlie saw me. “Celeste, what’s the verdict?”

“Judge Lowery told them to keep trying, but he told us that he would declare a mistrial if there was not a decision within the next couple of hours.”

“Well,” he said, “you had better call the insurance adjuster and give him an update. Isn’t this your rear-ender with whiplash?”

 “Yes,” I said, “and medical bills of about twenty thousand. I can’t imagine what the problem is. Liability is pretty clear — they must be hung up on damages.”

“That means you have given them something to think about,” he said, trying to pick my spirits up.

I sat to order lunch when the Plaintiff’s attorney walked through the door. His name was Joe Batch, a solo practitioner, an older lawyer like Judge Lowery who liked to be in court. He could never seem to find time for his office work and had the irritating habit of speaking in country colloquialisms:

“Joe, when are you going to send me those discovery responses?”

“Well, you know, Celeste, you can’t make good tomatoes grow any faster.”

It had taken me two years to get this little case to a jury. He walked up to me in the cafe.

“Hello, Celeste. What do you think is hanging ‘em up?”

“I don’t know Joe — could be any number of things,” I said.

“I sure don’t want to try this case again. Do you think the insurance company might move at all? You know you can’t catch a fish on an empty hook.” I told him I planned to call after I ate lunch.

In six years of practicing law, this was only my fourth trial, and I had a knot in my stomach the size of a watermelon. I decided to forego the blue plate special — pot roast with mashed potatoes, pinto beans and fried okra — for a small salad and a “super sweet tea.” Charlie called it “super sweet tea”; he would quiver with excitement when he described how Ms. Birdie added the sugar while the tea was still hot so that she could supersaturate it.

The door to our office now had a sign on it that read “Robbins & Robbins.” I had been quite proud two years ago when Charlie re-named the firm to add my name. He and my husband had thrown a big party to celebrate.

As I walked into the office after lunch, Olivia heard the door and came into the front foyer to see who was there. When she saw that it was me, she returned to the kitchen to eat her lunch. She did not say hello; she did not ask about the trial. Olivia Montgomery was Charlie’s secretary and the bane of my existence. Olivia had taken an instant dislike to me when I joined Charlie’s practice. She had made it quite clear that she worked for Charlie, not me. In my opinion, she did not do much for him either. At least, she had now started giving me my telephone messages.

Charlie always asked me to be patient as Olivia had had a sad life. At the age of 17, she had married her high school sweetheart. At 18, she had a son. At 19, she became a single mom when her husband left town, never to be seen again. Olivia became a legal secretary to support herself and her son. Twenty years ago, Charlie hired her after her previous employer retired. Her bad luck continued. Charlie described her son as “about the most useless boy in Hutchens County.” He continued to live with her after quitting high school and rewarded her efforts at being a single mom about three years ago by learning to cook meth and selling it out of the basement of her house. He was arrested soon after and is now incarcerated in a federal penitentiary. I had worked tirelessly on his behalf without compensation and got not so much as a thank you.

After six years, we had settled into a callused stalemate like the German and Allied forces entrenched on either side of “No Man’s Land” during the first world war.
If possible, Olivia disliked Judge Lowery even more than she did me. Years ago, Olivia’s brother and an adjoining property owner became embroiled in a bitter boundary line dispute. Judge Lowery heard the case but did not make a ruling for many months. In the interim, the dispute between the men came to blows, and Olivia’s brother suffered a rather severe beating, including one or two broken bones in his face. Olivia blamed Judge Lowery.

I had noticed over the years that it seemed to take Judge Lowery a long time to make a ruling in non-jury cases. Charlie just said, “Judge loves trying cases, but he does not like deciding ’em.” If you had a non-jury case in Hutchens County, you waited — and then waited some more —for a decision.

Although I had no control over the jury, I was a little concerned that the insurance company might be frustrated. The legal costs for this case had already exceeded our anticipated budget because Joe Batch would not move the case along. Luckily, this particular adjuster and I had formed a good relationship over the years, and he was pretty understanding of the situation. However, he was not interested in increasing the settlement offer.

I walked back to the courthouse and conveyed the news to Joe.

“Well they’ll be sorrier than a pig wandering into a slaughterhouse,” he said. At 2:30, Judge Lowery had the jury brought back into the courtroom and unceremoniously released them. I could see the look of disappointment on the judge’s face. He was idealistic and truly believed that the jury system was the best way to resolve disputes and administer justice. And on this day on his watch, the system had broken down. He quickly exited the courtroom. We were all asking the same question: what on earth could have been the problem with such a simple case? After I shook Joe Batch’s hand, I turned to leave and heard him tell his client, “Well you can lead a horse to water, but you can’t make him drink.”

A month or so went by, and I found myself walking down the breakfast foods aisle in the local supermarket. Out of the corner of my eye, I noticed that the man walking down the aisle toward me was looking rather intently at me. It was Ken Foster, the jury foreman from the mistrial. He had sat in the front row, second to the left, in the jury box. He was an awkward, middle-aged pharmacist who talked so incessantly to his customers that the locals called his pharmacy the Bermuda triangle. If you went inside, you might not come back out. He wore thick, black-rimmed, coke-bottle glasses that reminded me of my father who, when I was a teenager, wore a similar pair of Navy-issue glasses to embarrass me in front of my friends. My father called them his “BCs”; “BC” was for birth control. As far as I knew, they had had that effect for Mr. Foster.

Judge Lowery did not forbid lawyers from speaking to jurors after a case, but you had to wait at least 30 days. I was counting the days in my mind as I fumbled with a bag of Starbucks. Providence had placed the jury foreman right in front of me. Surely, I was in the clear. I really wanted to know what happened in that jury room.

Then I heard, “Hello, Mrs. Robbins. I don’t know if you remember me. I am Ken Foster. I was on the jury for the case you tried last month with Joe Batch.” I gave him my best smile and shook his hand. Words swirled in my mind as I tried to find the most diplomatic way to broach the subject.

“I just wanted you to know how much I enjoyed participating in the legal process,” he continued. “I have always been curious about the law. It was very interesting, and we all thought you did a great job representing your client.”

“Thank you”, I said, “Say, do you mind — ”

He cut me off: “You are not from around here, are you?”

There were not very many people in Hutchens County who were not from Hutchens County.

“No, sir, I’m from Chattanooga, but I was just curious . . .”

“I love Chattanooga. I took my nephew David to the aquarium last summer. They have a snapping turtle in one of those tanks. It is the size of a kitchen table. And their downtown! I don’t know if I have ever seen — ”

“Mr. Foster, if you don’t mind,” I managed to cut him off.

“Say, that Starbucks coffee sure is expensive. You know I read that one of these other brands tastes just like it for half the price. Now let’s see . . . what was it?

By this time I was wringing my hands. “So Mr. Foster, about the trial, why was the jury unable to reach a decision?” I had not meant to blurt it out, but I thought I would never get a word in edgewise.
“Oh,” he said, “that was a curious thing. After the judge gave us the jury instructions, is that what you call them, instructions? Anyway, we went to the jury room, and they elected me foreman. I thought it would be a good idea to let everyone discuss his or her point of view. I know I wanted to discuss the case. No offense, Mrs. Robbins, but most of us thought your client was at fault. Anyway, after everyone shared his or her point of view, I thought we should vote. The problem was there were only 11 votes, and the judge was pretty specific that all 12 of us had to vote the same way.”

“Do you mean one person voted for my client?”

“No, ma’am, I mean one person refused to vote.”

“I beg your pardon, Mr. Foster; I am not following you.”

“Well, do you remember Jimmy Butterfield, the carpenter? He just sat there in his chair with his arms crossed, saying “I’ll decide this case when that judge decides my divorce.”


•   •   •


MELISSA BRODHAG is the author of the winning entry for this year’s Tennessee Bar Journal Fiction Contest. Her first effort at fiction, the story’s inspiration came from tales she heard while practicing in a small Alabama city “with two older gentlemen who taught her how to practice law and told great stories. The vast majority of ‘The Mistrial’ comes from that experience,” she says.


“When I saw the writing competition announcement, I thought of this amusing story from my days in Alabama. I have no idea if it is true – it was just a story I was told. I filled in the rest of the story to complement the main story.”


Because she was once a young, female lawyer in a small town, she says she decided to use a similar character as the vehicle for the story.

“There were a lot of revisions, and I really appreciate my family’s patience as I worked through the story. It was a lot of fun for me!”

She reads mostly non-fiction but says she has “always enjoyed the short story,” especially admiring Eudora Welty and Willa Cather. Brodhag, 51, is originally from a small town in Louisiana. She graduated from the University of Alabama School of Law, and after practicing in Alabama for a while, moved to Chattanooga in 2000, working for an insurance defense firm.

“I enjoyed living in Chattanooga,” she says. “It was like living in a picture postcard.” She then moved to Nashville in 2007 to work in the Tennessee Attorney General’s Office where she works today, representing the state in complex litigation matters. 


In 2009, she married and they have an 8-year-old daughter.


Brodhag dedicates the story to the memory of Robert Lowery Gonce.