She’s scared to death of them. I think a surprise would be lovely.
WE LIVE AT THE OFFICE over the weekend, napping only a few hours at our respective apartments, then returning like lost sheep to the office to prepare some more.
My rare moments of relaxation can be attributed to Tyrone Kipler. I’ve silently thanked him a thousand times for selecting the jury a week before the trial, and for allowing me to address them with a few off-the-cuff remarks. The jury was once a great part of the unknown, an element I feared immensely. Now I know their names and faces, and I’ve chatted with them without the benefit of written notes. They like me. And they dislike my opponent.
However deep my inexperience runs, I truly believe Judge Kipler will save me from myself.
Deck and I say good night around midnight, Sunday. A light snow is falling as I leave the office. A light snow in Memphis usually means no school for a week and the closing of all government offices. The city has never purchased a snowplow. Part of me wants a blizzard so tomorrow will be delayed. Part of me wants to get it over with.
By the time I drive to my apartment, the snow has stopped. I drink two warm beers and pray for sleep.
“ANY PRELIMINARY MATTERS?” Kipler says to a tense group in his office. I’m sitting next to Drummond, both of us looking across the desk at His Honor. My eyes are red from a fitful night, my head aches and my brain thinks of twenty things at once.
I am surprised at how tired Drummond looks. For a
guy who spends his life in courtrooms, he looks exceptionally haggard. Good. I hope he worked all weekend too.
“I can’t think of anything,” I say. No surprise, I rarely add much to these little meetings.
Drummond shakes his head no.
“Is it possible to stipulate to the cost of a bone marrow transplant?” Kipler asks. “
If
so, then we can eliminate Gaskin as a witness. Looks like the cost is about a hundred and seventy-five thousand.”
“Fine with me,” I say.
Defense lawyers earn more if they stipulate to less, but Drummond has nothing to gain here. “Sounds reasonable,” he says indifferently.
“Is that a yes?” Kipler demands harshly.
“Yes.”
“Thank you. And what about the other costs. Looks like about twenty-five thousand. Can we agree that the amount of the claim for the actual damages sought by the plaintiff is an even two hundred thousand? Can we do this?” He’s really glaring at Drummond.
“Fine with me,” I say, and I’m sure it really irritates Drummond.
“Yes,” Drummond says.
Kipler writes something on his legal pad. “Thank you. Now, anything else before we get started? How about settlement possibilities?”
“Your Honor,” I say firmly. This has been well planned. “On behalf of my client, I’d like to offer to settle this matter for one point two million.”
Defense lawyers are trained to express shock and disbelief with any settlement proposal made by a plaintiff’s lawyer, and my offer is met with the expected shaking of heads and clearing of throats and even a slight chuckle from somewhere behind me, where the minions are clustered.
“You wish,” Drummond says acidly. I truly believe Leo is sliding off the edge. When this case started he was quite the gentleman, a very polished pro both in the courtroom and out. Now he acts like a pouting sophomore.
“No counterproposal, Mr. Drummond?” Kipler asks.
“Our offer stands at two hundred thousand.”
“Very well. Let’s get this thing started. Each side will get fifteen minutes for opening statements, but of course you don’t have to use it all.”
My opening statement has been timed a dozen times at six and a half minutes. The jury is brought in, welcomed by His Honor, given a few instructions, then turned over to me.
If I do this sort of thing very often, then maybe one day I’ll develop some talent for drama. That’ll have to wait. Right now I just want to get through it. I hold a legal pad, glance at it once or twice, and tell the jury about my case. I stand beside the podium, hopefully looking quite lawyerly in my new gray suit. The facts are so strongly in my favor that I don’t want to belabor them. There was a policy, the premiums were paid on time every week, it covered Donny Ray, he got sick, and then he got screwed. He died for obvious reasons. You, the jurors, will get to meet Donny Ray, but only by means of a videotape. He’s dead. The purpose of this case is not only to collect from Great Benefit what it should have paid to begin with, but also to punish it for its wrongdoing. It’s a very rich company, made its money by collecting premiums and not paying the claims. When all the witnesses have finished, then I’ll be back to ask you, the jurors, for a large sum of money to punish Great Benefit.
It’s crucial to plant this seed early. I want them to know that we’re after big bucks, and that Great Benefit deserves to be punished.
The opening statement goes smoothly. I don’t stutter or
shake or draw objections from Drummond. I predict Leo will keep his butt in his chair for most of the trial. He doesn’t want to be embarrassed by Kipler, not in front of this jury.
I take my seat next to Dot. We’re all alone at our long table.
Drummond strides confidently to the jury box and holds a copy of the policy. He gets off to a dramatic start: “This is the policy purchased by Mr. and Mrs. Black,” he says, holding it up for everyone to see. “And nowhere in this policy does it say that Great Benefit has to pay for transplants.” A long pause as this sinks in. The jurors don’t like him, but this has their attention. “This policy costs eighteen dollars a week, does not cover bone marrow transplants, yet the plaintiffs expected my client to pay two hundred thousand dollars for, you guessed it, a bone marrow transplant. My client refused to do so, not out of any malice toward Donny Ray Black. It wasn’t a matter of life or death to my client, it was a matter of what’s covered in this policy.” He waves the policy dramatically, and quite effectively. “Not only do they want the two hundred thousand dollars they’re not entitled to, they also have sued my client for
ten million dollars
in extra damages. They call them punitive damages. I call them ridiculous. I call it greed.”
This is finding its mark, but it’s risky. The policy specifically excludes transplants for every organ transplantable, but doesn’t mention bone marrow. Its drafters screwed up and left it out. The new policy given to me by Max Leuberg includes language that excludes bone marrow.
The defense strategy becomes clear. Instead of soft-pedaling by admitting a mistake was made by unknown incompetents deep within a huge company, Drummond is conceding nothing. He’ll claim bone marrow transplants
are very unreliable, bad medicine, certainly not an accepted and routine method of treating acute leukemia.
He sounds like a doctor talking about the odds against finding a suitable donor, millions to one in some cases, and the odds against a successful transplant. Over and over he repeats himself by saying, “It’s simply not in the policy.”
He decides to push me. The second time he mentions the word “greed,” I leap to my feet and object. The opening statement is not the place for argument. That’s saved for last. He’s allowed to tell the jury only what he thinks the evidence will prove.
Kipler, the beloved, quickly says, “Sustained.”
First blood is mine.
“I’m sorry, Your Honor,” Drummond says sincerely. He talks about his witnesses, who they are and what they’ll say. He loses steam and should quit after ten minutes. Kipler calls time on him at fifteen, and Drummond thanks the jury.
“Call your first witness, Mr. Baylor,” Kipler says. I don’t have time to be scared.
Dot Black walks nervously to the witness stand, takes her oath and her seat and looks at the jurors. She’s wearing a plain cotton dress, a very old one, but she looks neat.
We have a script, Dot and I. I gave it to her a week ago, and we’ve gone over it ten times. I ask the questions, she answers them. She’s scared to death, rightfully so, and her answers sound awfully wooden and practiced. I told her it’s okay to be nervous. The jurors are nothing if not humans. Names, husband, family, employment, policy, life with Donny Ray before the illness, during the illness, since his death. She wipes her eyes a few times, but keeps her composure. I told Dot tears should be avoided. Everyone can imagine her grief.
She describes the frustration of being a mother and not
being able to provide health care for a dying son. She wrote and called Great Benefit many times. She wrote and called congressmen and senators and mayors, all in a vain effort to find help. She pestered local hospitals to provide free care. She organized friends and neighbors to try and raise the money, but failed miserably. She identifies the policy and the application. She answers my questions about the purchase of it, the weekly visits by Bobby Ott to collect the payments.
Then we get to the good stuff. I hand her the first seven letters of denial, and Dot reads them to the jury. They sound worse than I hoped. Denial outright, for no reason. Denial from claims, subject to review by underwriting. Denial by underwriting, subject to review by claims. Denial from claims based on preexisting condition. Denial from underwriting based on the fact that Donny Ray was not a member of the household since he was an adult. Denial from claims based on the assertion that bone marrow transplants are not covered by the policy. Denial from claims based on the assertion that bone marrow transplants are too experimental and thus not an acceptable method of treatment.
The jurors hang on every word. The stench is descending.
And then, the Stupid Letter. As Dot reads it to the jury, I watch their faces intently. Several are visibly stunned. Several blink in disbelief. Several glare at the defense table, where, oddly enough, all members of the defense team are staring down in deep meditation.
When she finishes, the courtroom is silent.
“Please read it again,” I say.
“Objection,” Drummond says, quickly on his feet.
“Overruled,” Kipler snaps.
Dot reads it again, this time with more deliberation and feeling. This is exactly where I want to leave Dot, so I
tender the witness. Drummond takes the podium. It would be a mistake for him to get rough with her, and I’ll be surprised if he does.
He starts with some vague questions about former policies she carried, and why she happened to purchase this particular policy. What did she have in mind when she bought it? Dot just wanted coverage for her family, that’s all. And that’s what the agent promised. Did the agent promise her the policy would cover transplants?
“I wasn’t thinking of transplants,” she says. “I never had need of one.” This causes some smiles in the jury box, but no one laughs.
Drummond tries to press her on whether she intended to purchase a policy that would cover bone marrow transplants. She’d never heard of them, she keeps telling him.
“So you didn’t specifically request a policy that would cover them?” he asks.
“I wasn’t thinking of these things when I bought the policy. I just wanted full coverage.”
Drummond scores a weak point on this, but I think and hope it will soon be forgotten by the jury.
“Why’d you sue Great Benefit for ten million dollars?” he asks. This question can produce disastrous results early in a trial because it makes the plaintiff appear greedy. The damages sought in lawsuits are often just figures pulled out of the air by the lawyer with no input from the clients. I certainly didn’t ask Dot how much she wanted to sue for.
But I knew the question was coming because I’ve studied the transcripts from Drummond’s old trials. Dot is ready.
“Ten million?” she asks.
“That’s right, Mrs. Black. You’ve sued my client for ten million dollars.”
“Is that all?” she asks.
“I beg your pardon.”
“I thought it was more than that.”
“Is that so?”
“Yeah. Your client’s got a billion dollars, and your client killed my son. Hell, I wanted to sue for a lot more.”
Drummond’s knees buckle slightly and he shifts his weight. He keeps smiling though, a remarkable talent. Instead of retreating behind a harmless question or even taking his seat, he makes one last mistake with Dot Black. It’s another of his stock questions. “What’re you going to do with the money if the jury gives you ten million dollars?”
Imagine trying to answer this on the spur of the moment in open court. Dot, however, is very ready. “Give it to the American Leukemia Society. Every penny. I don’t want a dime of your stinkin’ money.”
“Thank you,” Drummond says, and quickly gets to his table.
Two of the jurors are actually snickering as Dot leaves the witness stand and takes her seat next to me. Drummond looks pale.
“How’d I do?” she whispers.
“You kicked ass, Dot,” I whisper back.
“I gotta have a smoke.”
“We’ll break in a minute.”
I call Ron Black to the stand. He too has a script, and his testimony lasts for less than thirty minutes. All we need from Ron is the fact that the tests were run on him, he was a perfect match for his twin brother and that at all times he was ready to be the donor. Drummond has no cross-exam. It’s almost eleven, and Kipler orders a ten-minute recess.
Dot runs to the rest room to hide in a stall and smoke. I warned her against smoking in front of the jurors. Deck and I huddle at our table and compare notes. He sits
behind me, and he’s been watching the jurors. The denial letters got their attention. The Stupid Letter infuriated them.
Keep them mad, he says. Keep em riled. Punitive damages come down only when a jury is angry.
Dr. Walter Kord presents a striking figure as he takes the stand. He wears a plaid sport coat, dark slacks, red tie, very much the successful young doctor. He’s a Memphis boy, local prep school, then off to college at Vanderbilt and med school at Duke. Impeccable credentials. I go through his resume and have no trouble qualifying him as an expert in oncology. I hand him Donny Ray’s medical records, and he gives the jury a nice summary of his treatment. Kord uses layman’s terms whenever possible, and he’s quick to explain the medical vernacular. He’s a doctor, trained to hate courtrooms, but he’s very at ease with himself and the jury.