First Do No Harm (Benjamin Davis Book Series, Book 1) (15 page)

“I’m not a witness in this case. I represent Dr. Herman. My actions are protected by the attorney work product doctrine. I don’t have to answer that question.”

“Did you read the affidavit to her before she signed it?”

“That’s none of your business. My work product is protected.”

“You signed a Rule 11 motion and brought disciplinary charges against Mr. Davis. You made it my business, and I’m sure Judge Boxer will agree. I’m sure he’ll rule that there is no attorney work product protection if those actions constituted a fraud on the court. You tried to use this false affidavit to win a motion, and even worse, you made unfounded disciplinary charges against another member of the Bar. You’re toast. I’m sure Judge Boxer will ask you these same questions at the hearing on Monday, and you’d better have answers then.”

Sammie could actually see McCoy’s bow tie get tighter around his neck, and he turned red in the face. He didn’t respond.

Turning, Morty glared at Pierce. “What about you, Ms. Pierce? You created this pack of lies. They’re your words, not Mrs. Easter’s. What do you have to say for yourself? Do you think your action of typing this false affidavit is protected by the attorney work product doctrine?” It was one of those rare “got you” moments.

For the first time, Sammie was amazed that Amy Pierce had nothing to say. Pierce always had a sharp comeback or sarcastic remark. She figured that Pierce concluded that silence was better than saying something stupid on the record.

Morty rubbed it in. “Cat got your tongue, Ms. Pierce?”

Morty, Davis, and Sammie left the room with smiles on their faces. Morty turned a bad situation to their advantage and proved, once again, that he knew how to turn shit into apple butter.

That Monday was an important day for Davis, but Sammie wasn’t worried. All the defense attorneys and their clients were present, except Barnes. He told Morty that he had a prior commitment and would be unavailable. It was a three-ring circus, and Davis was unfortunately standing in the center ring. Davis was on trial, not English, not Herman, and not the hospital.

These charges were brought by the Tennessee Supreme Court through the office of the Chief Disciplinary Counsel, instigated by Pierce and McCoy.

The motions for costs were based on Rule 11 of the Tennessee Rules of Civil Procedure. The rule was rarely used to challenge an attorney’s pleading. But the motion filed by McCoy and Pierce had certainly gotten Davis’s attention.

The four depositions, taken the previous Thursday, had been filed with the court, and it was presumed that Boxer had read them. Davis and Sammie had each filed affidavits about their meeting with the Easters. Davis’s affidavit attached eight letters from him to Mrs. Easter, which established that he kept her abreast of her lawsuit. His affidavit also singled out the letter that Davis knew had been stolen and ended up in Stevenson’s possession.

Stevenson, on behalf of the hospital, had not sought costs and had not participated in the charges brought before the board. Neither had Barnes, even though his co-counsel, McCoy, had. Neither McCoy nor Pierce had filed a pleading in reply to Davis’s response to their motion. They took no position that addressed whether they knew Mrs. Easter couldn’t read or if they read the affidavit to her.

They were in the Hewes County Courthouse. The judge entered the courtroom, and everybody rose. A court officer identified the judge and recited a canned presentation that concluded with “under God and the laws of the State of Tennessee.”

Davis took in the sight, staring at the judge sitting at least ten feet above everybody else. The American flag joined the flag of Tennessee, hanging on the wall behind him, symbols that spoke of justice for all men and women. Along the side walls were photographs of previous judges who sat at the very same bench in the same courtroom.

The county was named for Joseph Hewes of North Carolina, an owner of a shipping business who signed the Declaration of Independence and served in the Continental Congress as secretary of the Naval Affairs Committee. The Hewes County Courthouse was one of the pre-Civil War Tennessee courthouses that survived the war. It had a major renovation around the turn of the twentieth century, then again in the late 1940s, and the last time five years ago. The bench, the witness box, the jury box, and the counsel tables were made of thick polished oak. The room had a very solid look, like something substantial happened here.

Boxer immediately took control of the hearing. “I
take these motions and the allegations brought against Mr. Davis very seriously. The first matter is the defendants’ motion to continue, to postpone this hearing, so they can take Mr. Davis’s deposition and other additional depositions as to the allegations of these motions. Mr. Steine, what is your position?”

“Your Honor, Mr. McCoy and Ms. Pierce had set out on an expedition to defame and impugn Mr. Davis’s character. We insist that the court go forward today so that this matter and these serious allegations can be put to rest and the malpractice cases can proceed. They have Mr. Davis’s affidavit, which is sworn to as an officer of this court. I encourage the court to question Mr. Davis at this hearing about what that document says, or his paralegal, Ms. Davis, who was present when Mr. Davis read the complaint to Mrs. Easter. I also encourage the court to question Mr. McCoy and Ms. Pierce about how the Easter affidavit was created and their lack of knowledge of her illiteracy when they filed their motions and the charges against Mr. Davis. If you order Mr. Davis’s deposition, I insist that you also order the depositions of Mr. McCoy and Ms. Pierce.”

The judge denied the defendants’ motion for a continuance. Sammie was certain that he didn’t want any of the lawyers deposed; that would have gotten messy. Someone was lying. She could tell by the constipated expression on Judge Boxer’s face that he was uncomfortable with the issues raised at this hearing. These were supposed to be medical malpractice cases, not about the lawyers.

Judge Boxer asked Morty to address the allegations of the motions.

He rose and slowly walked to the podium. “I’ve
known Ben Davis about twenty years. He was my law clerk beginning in 1975, and then he worked with me as a lawyer. Eventually, I thought enough of him to ask him to be my first and only law partner. The things that are important to Ben Davis are the things that are important to the people who matter in this world, such as family and one’s reputation. This court can inquire among the Tennessee Bar, and especially the Nashville legal community, and will find that Ben Davis’s reputation is unsullied. There’s not a blemish on his good name. Even his adversaries respect him and would attest to his honesty. These two desperate lawyers, who represent two desperate doctors, are seeking to divert attention from their own misconduct and focus your attention instead on this exceptional attorney. They have alleged that Mr. Davis has acted ‘illegally, immorally, and dishonestly.’”

Morty insisted that if the court believed Mrs. Easter, he should find Davis guilty of violating Rule 11 and throw the book at him. “But this court knows that Mrs. Easter is a liar. You read her deposition. That affidavit was false when given, and these lawyers knew it was false when they got it. If anyone has violated Rule 11, it’s Mr. McCoy and Ms. Pierce by filing these motions. I note for the record that neither Mr. Barnes nor Mr. Stevenson has joined in this fiasco. I’ve known both of them for almost fifty years, and both of them are too reputable to be involved in this tragedy. We know the court will deny the motion, contact the board, and exonerate Mr. Davis. Thank you for your attention.”

Boxer looked directly at Davis. “Edith Easter is a liar and/or she’s stupid. Her absence today supports those opinions. She couldn’t face Mr. Davis with her accusations.
These motions are denied, and I will be contacting the Board of Professional Responsibility and urging it to dismiss Mr. McCoy and Ms. Pierce’s complaint.”

Sammie was relieved even though she was confident of the outcome before the hearing began.

“Ms. Pierce, did you know Mrs. Easter couldn’t read?”

“No, sir, but we did review the affidavit with her. The accusations against Mr. Davis were hers and those of her children. I simply typed up what she said.”

“Did you know she couldn’t read, Mr. McCoy?”

McCoy’s face was as green as his bow tie. “No, sir, she made the claims, and we felt compelled to bring such serious allegations to your attention.”

The judge was critical of Pierce and McCoy for not recognizing that the old woman could not read and not conducting an investigation before filing their motion and charges. He didn’t go as far as to hold Pierce and McCoy guilty of violating Rule 11 but gave them a stern reprimand: “I want these games to stop, and I want them to stop right now.”

Sammie assumed that the judge didn’t go further because the Plainview cases could be around for years and he needed to tone down the hostility.

“This was an unfortunate matter, and I question the motives of Mr. McCoy and Ms. Pierce. I hope we can move forward. There are nine other cases that must be prepared. This will require counsel to work together. I don’t care if you like each other, but you’d better play by the rules. And it would be nice if you respected each other. I don’t want to hear a similar matter in these cases again. Understand?”

With that warning, Boxer left the bench and exited.

Over the last several days, Sammie and Morty worked Plainview day and night as Davis requested. Since Davis’s letter of December 27th, the Davis team, despite the distraction of the disciplinary charges, completed sixty-one of the seventy-six tasks listed in the letter. Littleton made no contribution; he didn’t complete even one task. Then one day, he called to announce that he was taking on a new criminal case, so he wouldn’t have much time for the Plainview cases. Unfortunately, the remaining uncompleted dozen tasks had, because of new developments, grown to thirty-four. A lawsuit was a moving target, and new problems arose based on the changing circumstances.

More important, Littleton had not reimbursed Davis one penny for expenses advanced. Davis was spending too much time on the Plainview cases, almost to the exclusion of his other clients. In the course of one week, three clients quit because of his failure to complete legal work on time. That had never happened to Davis before. His clients had always been satisfied with the timeliness of his work and almost always satisfied with the results. Several other clients voiced their concerns about the status of their legal work, but they liked Davis and gave him leeway to get the
job done. But their patience was running thin, and work was piling up.

The humidity could be brutal in Tennessee, even in early June. It was only ten o’clock in the morning, but it was already ninety degrees and almost at ninety percent humidity. Morty made Davis stop twenty-five miles outside Plainview and put the convertible top up because the sun was beating down on them so hard that he could feel the sun burning his bald head. The stop wasn’t a problem; they had plenty of time. The deposition of the custodian of records of Plainview Community Hospital didn’t begin until eleven.

Under the Tennessee Rules of Civil Procedure, a defendant’s deposition must be taken in the county in which the lawsuit was filed or where the defendant resides. Often, for convenience, Nashville lawyers would agree to take depositions in downtown Nashville rather than where the rules required. It was practical. Why have three or four lawyers travel seventy miles round trip when they were all in walking distance of each other’s offices? Nevertheless, Stevenson insisted that, because all hospital employees were agents of the hospital, they were technically considered defendants and had to be deposed in Plains County. Accordingly, the deposition of the custodian of records of the hospital, Ms. Lee Johnston, had to be taken in Plains County.

Davis would have preferred to take the deposition anywhere but the hospital. However, he didn’t have access to any other place in Plains County that could accommodate all of the lawyers, the witnesses, and the court reporter. When he took depositions of other employees at the hospital, Davis was relegated to the
hospital cafeteria. Conveniently, the hospital conference room was always unavailable.

The PA system in the cafeteria was very disruptive to the proceedings, with announcements every five minutes or so. It was so distracting that Davis filed a motion with the court, objecting to take any further depositions in the cafeteria.

Judge Boxer ruled that if the hospital’s conference room were not available, Davis didn’t have to take the depositions in the cafeteria. The hospital had to provide a suitable alternative location.

Mr. Stevenson offered the quiet room as a possible alternative. It was the hospital’s designated zone where grieving families met with clergy or physicians. It was where patients’ families were told bad news. The room was used much too often at Plainview Community Hospital. Davis agreed to use it if the conference room were not available.

Grayson Stevenson, the hospital’s counsel, met them in the lobby and led them to the quiet room. Morty and Stevenson were contemporaries; both attended Vanderbilt but were as different as two people could be. Morty thought of Stevenson as a pretentious asshole. During the car ride, Morty warned Sammie that Stevenson was arrogant and not to be trusted.

When Morty and Davis stepped over the threshold of the quiet room, they were shocked. The space was no bigger than a large walk-in closet. With the addition of Stevenson, Davis, Sammie, and Steine, ten people were in the room. Davis thought,
Stevenson’s suggestion to Judge Boxer to use the quiet room was just another attempt to screw with me. Stevenson misled me and the court into believing that it was an appropriate place for the depositions
.

Being designed to hold no more than six people at a time, the room was crowded and uncomfortable. Adding to the discomfort, there was no window, and the cooling system was inadequate. Davis planned to file another motion with the court as soon as he returned to his office. This would be the last deposition taken in the quiet room.