First Do No Harm (Benjamin Davis Book Series, Book 1) (13 page)

In contrast, the defense wanted to try the cases where the patient suffered the least damages first, thereby burning up Davis’s limited resources. The outcome of this scheduling conference and its resulting order were critical to the cases.

At nine o’clock sharp, Judge Boxer entered the courtroom. Everyone stood in deference. Boxer’s clerk recited the traditional opening of court, and Boxer started the proceeding.

“Where are we on an agreed scheduling order? I would prefer that you gentlemen and lady work this out without my intervention.”

Stevenson rose and advised the court that counsel for the parties had worked diligently and cooperatively on the scheduling orders. He admitted to the court that some issues were not yet resolved that required the court’s guidance. Stevenson noted the issues of trial venue and the order of the cases. Stevenson’s presentation was evenhanded. Davis stood and confirmed that Mr. Stevenson correctly identified the remaining issues to be resolved by the court.

Boxer instructed Stevenson to hand the draft scheduling orders to his clerk, who promptly delivered it to Boxer. Boxer spent several minutes scanning the documents. Davis could tell from Boxer’s face that the judge did not expect as much progress from these adversaries.

The judge decided to praise them: “I’m pleased. These draft orders show hard work, cooperation, and reasonableness on everyone’s part. As to the venue of these trials, I agree with Mr. Davis that a change of venue motion is appropriate. Please file that motion by next Friday, with the supporting affidavits. Despite the heavy burden the plaintiffs must carry, I’m inclined to grant that motion. Mr. Davis, in your motion, please identify where the plaintiffs suggest these cases be tried. If changed, all of the remaining motions in these cases will be held at this venue. I would prefer Hawaii, but the statute provides that the cases must be moved to the closest courthouse where the alleged bias would not prevent a fair trial.”

Davis thought he would try a joke to loosen the mood: “What about Bermuda, Your Honor?”

“That’s a foreign territory, Mr. Davis. Just identify the proper venue in your motion.”

Davis was pleased with the court’s remarks and the predetermined granting of his motion. Boxer was inviting Davis to move the lawsuits to Hewes City. At least, it didn’t appear that these cases would be tried in Plains County.

The next issue was the order of the cases. This ruling was even more important than the venue question. Davis waited for the judge to address the issue. It was his courtroom. A moment later, Davis got the answer to his question.

“As to the order these cases will be tried, I’m not going to let Mr. Davis determine the order. I will, however, let him call heads or tails.”

Judge Boxer pulled a quarter from his pants pocket under his robe and placed it on the back of his hand
near his thumb. Both Davis and Steine were astonished by the unique way to resolve a legal issue.

Davis spoke up: “You’re kidding, right?”

When the judge neither smiled nor indicated he was joking, Davis continued, “Judge, the flip of a coin is arbitrary. I object to this method of selection. The plaintiffs should select which case is tried first.”

“Can you cite a Tennessee case or statute, Mr. Davis?”

Davis decided not to give up so easily. “There’s no Tennessee case right on point, Your Honor, but—”

The judge interrupted, “There’s no controlling precedent. It’s my discretion, Mr. Davis. Call it in the air.”

Judge Boxer sent the quarter up in the air, and Davis yelled out, “Heads.”

“Sorry, Mr. Davis, it’s tails. Mr. Stevenson, please confer with your co-counsel and select the first case to be tried.”

Stevenson, McCoy, Barnes, and Pierce huddled and conferred for less than two minutes. Stevenson, as the appointed spokesperson for the defense, walked back to the podium and said, “The defendants select the Jones case.”

Davis groaned inwardly. That choice was a nightmare for him. The surgery was clearly unnecessary, but there were no substantial damages. The twenty-five-year-old patient had a small scar on the side of her head where Dr. English performed an unnecessary temporal artery biopsy. The scar was covered by Mrs. Jones’s hair.

Davis rose and walked to the podium. He felt anger start to surface, but he controlled his emotions. He was not afraid of Judge Boxer, but he needed to show
respect. Morty had warned him, “First impressions are important, and you’ll be appearing before Boxer over the next few years, so remain poised and reasonable. Don’t show anger.”

Davis chose his words carefully: “With all due respect, the court is committing reversible error. The flip of a coin is arbitrary and cannot be a fair and impartial way to select the order of these cases.”

The judge was getting angry with Davis and asked, “What’s unfair about gravity, Mr. Davis? The plaintiffs had a fifty percent chance, and they lost. Fifty-fifty seems pretty fair to me.”

“Your Honor, because this was a scheduling conference, I did not have a court reporter present to record what was said and the court’s ruling. In the court’s order, I would ask that the court include the method the court relied upon, a flip of a coin, and the plaintiff’s objection to method.”

“I’ll include it in the order, Mr. Davis. Please select the second case to be tried.”

“I’d rather not, Your Honor. Why do we need to select the second case at this time?”

“Because I say so, Mr. Davis, and I’m the judge.”

Davis felt sick to his stomach. His argument was going badly, close to disastrous. Davis looked at Morty and shook his head in disgust. Davis looked back up at Judge Boxer. “If I have to, sir, the Malone case.”

“Mr. Davis, you’ve lost this argument. You can appeal my decision to the Court of Appeals two years from now, after we try the Jones case.”

Davis decided he better stop arguing with the judge. He was sure that Morty would scold him later.

Judge Boxer knew who was in charge. Without a
motion from either side, he pronounced, “I’m also imposing a gag order. Neither side will encourage further publicity of these cases. We’ve had three articles in the Nashville papers, and over the last two months more than an hour of airtime on the Nashville stations. I assume the hospital is the party that kept these suits out of the local paper, the
Plains County Gazette
. No interviews. All I want to hear is ‘no comment.’”

Boxer informed all concerned that if his gag order was violated, the guilty party would be held in contempt. The punishment, depending on the act, would involve both fine and imprisonment.

“Do we understand each other, Mr. Davis?”

“Absolutely, Your Honor.” Davis didn’t like being singled out.

Davis and Stevenson alternately selected the order of all ten cases. When it was over, almost like kids in a schoolyard choosing teams, Boxer announced that court was adjourned and left the courtroom.

Davis was not happy with the outcome of the hearing or with Judge Boxer. Although Morty taught him never to show emotion in front of his adversary counsel, Davis lost his cool and slammed his fist on the table. After he did it, he knew that he made a serious tactical mistake. Morty would certainly chastise him.

Over the last few months Davis came to respect his niece. She not only had potential, but she jumped right in and made it happen. Her greatest fan was the old man, whom she admired and respected without question. She’d also impressed her uncle and Bella, who’d been around for more than thirty years.

After the scheduling conference, Sammie questioned Morty and her uncle about the legality of the coin flip. After much debate and further research, they decided not to appeal Judge Boxer’s ruling. It was a matter of his discretion, and Boxer had spoken. The Court of Appeals would not intervene.

In August Sammie gave up the ninth-floor loft and moved into Davis’s guest room when Morty decided to take up residence in the loft to be closer to the office. He could come and go as he pleased, and he had access to the office at night when he couldn’t sleep. Since Goldie’s death, Morty hadn’t been sleeping very well.

Sammie was glad that the old man was happy to be back downtown and at work. She was saving money by staying in her uncle’s guest room, but she missed the complete independence she had downtown. Her new living space cost only an occasional babysitting gig, and
she had to admit that she enjoyed getting to know her young cousins, Caroline and Jake.

Working on the Plainview cases invigorated Morty. Davis confided in Sammie that Morty would more than earn his one-dollar retainer. Sammie was amazed at the old man’s penchant for detail. Each morning, he met with her, and while chewing on a cigar, he’d give her a list of things to do. At the end of the day, hopefully with a different cigar in Morty’s mouth, they reviewed her work product. He was patient and explained why he assigned certain tasks. It was the education of a lifetime for her, and he was an exceptional teacher.

Morty helped Davis frame the legal issues of the Plainview cases, and he then worked with Sammie, preparing discovery in each case, propounding questions and requests for documents. Morty taught Sammie the ropes, and Sammie brought to the table her computer research skills. Morty had written more than a thousand briefs in his career, but he still relied on the traditional method of research—books. The closest he came to a computer was three feet.

Sammie walked into the office library, a twenty-by-twenty-foot room lined with ten-foot-high walnut bookcases. It cost thousands each year to maintain the library with new volumes and updates. On the other hand, the computer relied on a single database, Westlaw, which automatically updated weekly.

Davis and Morty were seated next to each other at the walnut conference table. They were smoking cigars. No one would complain, though. Morty owned the building. Sammie walked into the smoky, hazy library, coughed, and sat down next to Morty. She and Morty worked all morning on a list of legal issues. She handed
both men a copy of the list, which was several pages long. Davis scanned the document.

Just as the team was about to jump into the outstanding issues, Bella buzzed on the intercom, and Davis picked up.

Bella began: “I’ve got Allie Easter on the line. She seems real upset. Can you take her call?”

“Sure. There’s no point in delaying the inevitable.”

“Ms. Easter, Ben Davis. I guess you got my letter?”

“We don’t understand. Are you dropping my mother’s lawsuit?”

“No, but I am insisting that you be appointed her conservator and replace her as my client. Look, Allie, your mom can’t read. There’s no point in my sending letters to her house. I suspect that your brother, Howard, is stealing my letters and giving them to one of the defendants, probably Herman. Your brother still does odd jobs for Herman, doesn’t he? That gives him access and motive.”

“Yes, but Howard wouldn’t steal Momma’s mail. What evidence do you have to accuse my brother of such a terrible thing? He wouldn’t hurt Momma.”

Sammie learned from her contacts in Plainview, and reported to her uncle, that Howard had done odd jobs for Dr. Herman at his farm. None of the Easters volunteered this information. That made the Davis team suspicious, and by the process of elimination, they unanimously agreed that Howard was the leak and that he was stealing his mother’s mail.

“I have no solid proof, but I’m not comfortable sending mail to your mother. If you become my client, I’ll send all my correspondence to you, and you can represent your mother’s interests and explain to her how her case is going. Edith won’t be excluded from the
process, but you’d be the actual client and help me make decisions. Your mother is not capable of prosecuting her lawsuit. Your substitution for your mother is a reasonable request in light of my suspicions about your brother and because of your mother’s illiteracy.”

“Mr. Davis, you’re no better than us. Momma’s not a child who needs someone to hold her hand. She’s a grown woman who’s raised two children. We resent what you put in your letter, and even though she can’t read, she’s got just as much right to go to court as anybody else.”

“Look, Allie, I’ve got to protect my other clients. I strongly suspect that your brother is feeding information to the other side. He’s stealing it, or your mother is giving it to him. Either way, I can’t represent your mother anymore. Either you become her conservator and my client, or I must withdraw from her case. I’ve got no choice. What will it be?”

“Go to hell.”

“I’ll send you and your mother a copy of my motion to with-draw. Howard can get his copy out of your mother’s mailbox.”

“Go to hell.” Allie hung up.

Morty shook his head. “You really handled that well.”

Davis turned to Morty and said, “I know. I screwed up. She’s pissed.”

Morty smiled slightly and said, “You’d better file a motion to withdraw in Easter, ASAP.”

Throughout the holidays, the Davis team worked their asses off and accomplished a lot. Despite this progress, Davis was angry not only at Littleton but also at himself. He reached the conclusion that Littleton was a useless piece of shit. Morty warned him, but Davis never thought Littleton would be such dead weight.

Amazingly, Littleton was worse than useless. He’d failed to show up at the scheduled deposition of Thomas Nelson, the paramedic in the Rosie Malone case. It was one of his few assigned tasks and the only deposition Davis actually asked him to attend, and he blew it. The deposition couldn’t proceed without him present, and the defense counsel wrote a nasty letter threatening to file a motion for the cost of the deposition.

Littleton delayed moving the cases forward. He refused to reimburse Davis his fair share of the advanced expenses, and he would not raise a finger to prepare the Plainview cases for trial. Ethically, according to the Code of Professional Responsibility, Littleton could not be paid one-third of the fee if he did not do one-third of the work. Davis, in correspondence, documented Littleton’s lack of participation and failure to pay his portion of the expenses.