First Do No Harm (Benjamin Davis Book Series, Book 1) (41 page)

Morty filed a federal lawsuit on behalf of Davis and the Plainview clients alleging that they were entitled to the Plainview settlement proceeds. It claimed that the court, in its discretion, should determine the portion to which Mr. Littleton was entitled under the contract and the Code of Professional Responsibility and that the IRS should be paid that amount and the balance released. The lawsuit named both Littleton and the IRS as defendants. Judge Wise expedited the hearing so the matter could be heard in weeks rather than a year. The judge understood that people were waiting on this money.

Every Plainview client was seated in the audience, as were other interested friends and family. Pierce, McCoy, Stevenson, and their clients, Pinsly and Davenport, made an appearance. They were there for the show.

It was a large courtroom, but with all the players it was crowded. Bella was seated in the first row, saving Sammie a seat. Sammie was circulating among the clients, trying to calm them down. Davis assured them that after this hearing, their funds should be released.

Davis was glaring at Pierce when Dr. English and Dr. Herman entered the courtroom. English waved hello to Davis and Morty. Davis turned to Morty and
indicated that he would like to give English the finger but decorum stopped him.
It might be worth it, though
, he thought.

Judge Wise walked into the room, and his clerk announced, “Benjamin Davis et al. vs. the Internal Revenue Service and Bradley Littleton.”

Judge Wise sat as everyone else stood. He smiled at Morty. “Mr. Steine, are you ready to proceed?”

“Yes, sir.”

“Are the defendants ready to proceed?”

Both Yates and Lee of the IRS responded affirmatively.

Morty walked over to the podium and began, “It was my distinct honor to act as second chair to Mr. Davis in the Plainview lawsuits. Prior to the settlement of eight cases in late August, the parties settled one case and tried another to judgment.

“Mr. Littleton played a very minor role in the Plainview cases. He did not take any of the 146 depositions. Mr. Littleton breached his contract and failed to advance any portion of the $284,000 of expenses. At the two-week-long Malone trial, Mr. Littleton presented one witness, the paramedic.”

Morty asked if he could hand the court Littleton’s direct examination. Wise took five minutes to read the examination. At one point, Davis thought that Wise was smiling.

Wise asked Morty to continue.

“In fairness to Mr. Littleton, he did attend the meeting where Mr. Davis initially signed up the clients. After that, he was more of a problem than a solution. I would like to mark Mr. Littleton’s direct examination of the paramedic at the Malone trial as Exhibit 1. I would
also like to mark the contracts with the Plainview clients as collective Exhibit 2.”

Each contract was only two pages.

The judge broke in, “Mr. Steine, are all the contracts with the clients identical?”

“Yes, sir, the attorneys are required to advance expenses. Littleton failed to advance his share of more than $70,000. I submit as collective Exhibit 3 four letters from Mr. Davis demanding payment of Littleton’s share of expenses.”

The judge took several minutes to review the documents. “Does your firm have any time records?”

“Yes, Mr. Davis had 2,420 hours from July 1992 to date. I have spent 1,879 hours. Sammie Davis, our paralegal, spent 1,823, and Bella Rosario, our legal secretary, spent 567 hours. A total of about 6,700 hours over a 31-month period.”

Morty handed Wise a document with the supporting hours of each member of the Davis team listed on a monthly basis. There was a monthly total, an annual total, and a total number of hours from July 1992 till November 14th, 1994.

Judge Wise was looking at the document and asked, “What do you base these summary numbers on, Mr. Steine?”

Morty pulled a box from underneath the table. “These are the daily time tickets maintained by the firm over the last 31 months. Each time ticket reflects who did the work, what was done, and how long that task took. They total 6,689 hours.”

The judge made the summary sheets collective Exhibit 4, but told Morty to put the box back under the table. He took his word on the details.

“Mr. Davis took all of the risk in these contingency cases. Despite Mr. Littleton’s obligation to advance more than $70,000, he failed to do so. Mr. Davis advanced the full $284,000. Despite his ethical obligation to perform one-third of the work, Mr. Littleton did almost nothing. Littleton did less than one percent. Mr. Davis gave him every opportunity to perform, but I submit that Littleton was incompetent and lazy. Even after his obligation was reduced from one-third to twenty-five percent, he continued to fail to perform.

“I propose to this court that the court enter an order that does the following:

“Release to the Plainview clients their portion of the proceeds in accordance with the settlement sheets filed with the court;

Reimburse Benjamin Davis the $284,000 he advanced in the Plainview cases;

Judicially amend the contract between Davis and Littleton and divide the legal fees earned in the Plainview cases ninety-five percent to Mr. Davis and five percent to Mr. Littleton. Such a division would be consistent with the rules of our Code of Professional Responsibility;

Order that Mr. Littleton’s reduced portion of the legal fees in the Plainview cases be paid to the IRS and that the IRS lien on the Plainview settlement proceeds be dissolved.”

Morty sat down, and Mr. Lee of the IRS took the podium.

Before Lee could begin, Judge Wise asked, “Mr. Lee, how did the IRS learn about the Plainview settlements,
and how did the IRS happen to be waiting for Mr. Littleton at the high school to serve him?”

“Your Honor, Mr. McCoy and Ms. Pierce contacted my office and made me aware that a settlement conference was taking place at Plainview High School. I had been monitoring the Plainview cases and was aware of the Malone verdict because I knew that Mr. Littleton, who owed the government $250,000, would eventually earn a fee. I dispatched Marshal Rothschild to serve Mr. Littleton and Mr. Davis.”

Lee explained that he contacted McCoy and Pierce and requested their help in collecting Littleton’s fee for the government. “They seemed very patriotic, wanting to help their government.”

Davis muttered to Morty: “I bet they were.”

“Ms. Pierce faxed me the style of each case and the date, time, and location of the settlement conference. With that information, the IRS could be waiting for Mr. Littleton at the high school after the settlement was consummated. I spoke twice, once with Mr. McCoy and Ms. Pierce, during the settlement conference, getting progress reports as to the status of the settlement. At some point, Mr. McCoy called me and told me it was a done deal. They were working on the paperwork, and Mr. Littleton would be leaving the high school within the hour.”

Judge Wise asked McCoy and Pierce to approach the bench. McCoy turned the same shade of red as his bow tie, and Pierce looked weak in the knees.

“Mr. McCoy and Ms. Pierce, has Mr. Lee correctly described your dealings with the IRS as they relate to the notice of lien and the Plainview settlements?”

Neither of them responded.

“I’ll ask you one more time. Is what has been described on the record accurate?”

McCoy said weakly, “For the most part.”

“What parts are not accurate, or do you want to add something else that you consider relevant?”

“We thought we were helping our government collect tax dollars owed.”

“Excuse me? Do I need to put you under oath? You and Ms. Pierce did this to get revenge and to tie up the Plainview settlements. You’re both officers of this court and the Plains County court. You misled Mr. Davis, Mr. Steine, and Mr. Littleton into believing that you were negotiating in good faith. Under Rule 408 of both the Tennessee Rules of Evidence and the Federal Rules and the settlement agreement, you were obligated to keep your negotiations confidential. You kept the IRS abreast of your negotiations. In fact, immediately after your clients signed the settlement agreements with the Plainview plaintiffs, you turned around and disclosed those settlements to the IRS. Did Mr. Stevenson or Mr. Barnes have anything to do with your dealings with the IRS?”

Stevenson jumped up and almost ran to the podium to protest, “I had no knowledge of any of this. I am ignorant of these communications with the IRS.”

“Lucky for you, Grayson. Mr. McCoy, was Mr. Barnes involved?”

“No, sir.”

“Mr. McCoy and Ms. Pierce, please be advised that I am bringing both of you up on disciplinary charges before the Board of Professional Responsibility for your mishandling of the Plainview settlement and your communications with the IRS. I will copy all counsel of
record and Judge Boxer of my letter of complaint to the board.

“Mr. Yates, does your client have any time records evidencing his time expended in the Plainview cases?”

“No, sir.”

“Does he dispute that there were 146 depositions and that he didn’t take any of the depositions?”

Yates consulted with Littleton and responded: “That sounds about right.”

“How many of those depositions did your client attend?”

Yates consulted again. “About twenty.”

Morty stood up and advised the court that the correct number based upon the record was seven. Littleton squirmed in his seat at being confronted with his exaggeration.

“I will be issuing a written opinion in the next day or so. But I am following Mr. Steine’s recommendations. The funds will be released to the Plainview plaintiffs. Mr. Davis will be reimbursed his advanced expenses. Mr. Littleton’s fee is reduced from the amended twenty-five percent to five percent and is awarded to the IRS, and the IRS lien is removed. This order will be effective upon signing, and if appealed by the IRS, an injunction will be denied and the funds will be released.”

The noise level in the courtroom rose dramatically as the spectators reacted. Judge Wise banged his gavel so hard that it broke and the top portion flew into the middle of the courtroom.

“One last matter. I received in the mail the affidavit of Ms. Johnston, the custodian of records of the Plainview Community Hospital, recanting her deposition and trial testimony in the Malone case. She
now claims that between her two testimonies, the slides were destroyed by the hospital. I’ve turned this matter over to the US attorney’s office for federal prosecution. Let the chips fall where they may.”

With that said, Wise left the bench.

Davis turned to Morty: “I didn’t see that one coming, did you?”

“Remember our motto, ‘Always try to do the right thing.’”

“Well, we share that philosophy with a country lawyer from Hewes City, who has the same sense of right and wrong.”

Jack Barnes was standing in the back of the courtroom, not at the defense table. He had secured Ms. Johnston’s affidavit admitting her perjury and revealed the conspiracy to destroy evidence to Judge Wise. Justice would eventually be served.

Davis enjoyed riding with the top down. He had owned many convertibles over the years, but his 2006 black Bentley was by far his favorite. Although it was four years old, the engine purred, and the car was in pristine condition. Davis’s longish gray hair blew in the wind as he drove. It was overcast so he did not have to wear a baseball cap to avoid burning the top of his head where his hair was more than beginning to thin.

Davis slowed the car and took the next exit because Sammie needed a restroom. After she left the car, Davis went to the drive-through at Starbucks and got each of them a double espresso for the seventy-five-minute drive to the Davenport County Courthouse.

This would be Sammie’s hearing. Davis promised her, and she insisted, that he would keep his big mouth shut. In a strange way, Davis felt calm and confident. Sammie, no question, was a dynamic trial attorney. She was bright and hardworking with a commanding presence in the courtroom.

When she arrived in Nashville as a twenty-four-year-old, she was beautiful, but now she had matured and grown into her looks. She had no problem keeping a jury’s attention.

Davis did for Sammie what Morty had done for him.
It was Morty, though, who put her through Vanderbilt Law School after Plainview. She worked summers at the firm and worked her way up to Davis’s partner.

At eighty-nine, Morty lived on his farm with a thirty-year-younger female companion. Davis tried to visit every other Sunday, and in good weather, the old friends went fishing.

Davis, who had been daydreaming about the old man, swerved.

Sammie yelled, “Where are you? I need you to focus. You may have to take the stand and testify. A motion for sanctions is no joking matter. As you have told me at least a hundred times, ‘Don’t underestimate your adversary.’”

Annoyed, Davis thought,
There is nothing worse than having yourself quoted to yourself
.

“I’m ready. This motion for Rule 11 is bullshit. The motion doesn’t even cite any case law to support the disciplinary action sought against me. My only concern is that I don’t know the judge, and more important, he doesn’t know me. That’s the real problem.”

Sammie acknowledged that Davis was right. Davis had brought a legal malpractice lawsuit against a prominent Nashville attorney who was a partner in a prestigious law firm. Davis alleged that the attorney had not only been negligent but also lied under oath and committed fraud on the client.

Davis even took the attorney’s deposition, prior to filing suit, to afford the attorney an opportunity to explain any possible misunderstanding. Instead, the lawyer outright lied in his deposition and went so far as to misrepresent that he never represented Davis’s client. Davis, during the deposition, confronted the lawyer-witness
with five transactions in which the attorney had either represented Davis’s client or a company owned by his client. He didn’t file suit until he was convinced that the attorney was a liar.

The lawsuit alleged that the attorney, Ronald Defoe, had represented all four businessmen in the same transaction. The complaint alleged that the joint representation was an ethical violation and was negligent, that the attorney acted for the benefit of one client to the detriment of another, and that the attorney participated in a scheme to defraud one of his clients.