“How often did this happen?”
“I really don’t know.”
I step back from the podium, say, “Thanks,” then turn to Drummond, and with a pleasant smile say, “Your witness.”
I sit by Dot, who’s in tears and sobbing quietly. She’s always blamed herself for not finding a lawyer sooner, and to hear this testimony is especially painful. Regardless of the outcome, she will never forgive herself.
Fortunately, several of the jurors see her crying.
Poor Leo walks slowly to a spot as far away from the jury as he can stand and still be allowed to ask questions. I cannot imagine what he might ask, but I’m sure he’s been ambushed before.
He introduces himself, very cordially, tells Jackie that of course they’ve never met. This is an effort to inform the jury that he hasn’t had the benefit of knowing what in the world she might say. She gives him a blistering look. She not only hates Great Benefit but any lawyer sorry enough to represent it.
“Now, is it true, Ms. Lemancyzk, that you have been committed recently to an institution for various problems?” He asks this question very delicately. In a trial you’re not supposed to ask a question unless you know the answer, but I have a hunch Leo has no idea what’s coming.
His source has been a few desperate whispers during the past fifteen minutes.
“No! That’s not true.” She’s bristling.
“I beg your pardon. But you have been receiving treatment?”
“I was not committed. I voluntarily checked into a facility and stayed for two weeks. I was permitted to leave whenever I wanted. The treatment was supposedly covered under my group policy at Great Benefit. I was supposed to be covered for twelve months after my departure. They, of course, are denying the claim.”
Drummond chews on a nail, stares down at his legal pad as if he didn’t hear this. Next question, Leo.
“Is that why you’re here? Because you’re angry with Great Benefit?”
“I hate Great Benefit, and most of the worms who work there. Does that answer your question?”
“Is your testimony here today prompted by your hatred?”
“No. I’m here because I know the truth about how they deliberately screwed thousands of people. This story needs to be told.”
Better give it up, Leo.
“Why did you go to the treatment facility?”
“I’m struggling with alcoholism and depression. Right now, I’m okay. Next week, who knows? For six years I was treated like a piece of meat by your clients. I was passed around the office like a box of candy, everybody taking what they wanted. They preyed on me because I was broke, single with two kids and I had a nice ass. They robbed me of my self-esteem. I’m fighting back, Mr. Drummond. I’m trying to save myself, and if I have to seek treatment, then I won’t hesitate. I just wish your client would pay the damned bills.”
“No further questions, Your Honor.” Drummond
scoots quickly back to his table. I walk Jackie through the railing and almost to the door. I thank her more than once, and promise to call her attorney. Deck leaves to drive her to the airport.
It’s almost eleven-thirty. I want the jury to ponder her testimony over lunch, so I ask Judge Kipler to break early. My official reason is that I need time to study computer printouts before I can call any more witnesses.
The ten thousand dollars in sanctions arrived while we were in the courtroom, and Drummond has submitted it in escrow, along with a twenty-page motion and brief. He plans to appeal the sanctions, so the money will sit, untouchable, in a court account pending the outcome. I have other things to worry about.
Forty-five
I
GET A FEW SMILES FROM THE JURORS AS they file to their seats after lunch. They’re not supposed to discuss the case until it’s officially handed to them, but everyone knows they whisper about it every time they leave the courtroom. A few years ago, two jurors got in a fistfight while debating the veracity of a certain witness. Problem was, it was the second witness in a trial scheduled for two weeks. The judge declared a mistrial and started over.
They’ve had two hours to simmer and boil over Jackie’s testimony. It’s time for me to show them how to rectify some of these wrongs. It’s time to talk about money.
“Your Honor, the plaintiff calls Mr. Wilfred Keeley to the stand.” Keeley is found nearby, and bounces into the courtroom, just itching to testify. He seems vigorous and friendly, in sharp contrast to Lufkin and in spite of the indelible lies already exposed against his company. He obviously wants to assure the jury that he’s in charge, and that he’s a soul to be trusted.
I ask a few general questions, establish the fact that he’s
the CEO, the number-one boss at Great Benefit. He heartily confesses to this. Then I hand him a copy of the company’s latest financial statement. He acts as if he reads it every morning.
“Now, Mr. Keeley, can you tell the jury how much your company is worth?”
“What do you mean by worth?” he shoots back.
“I mean net worth.”
“That’s not a clear concept.”
“Yes it is. Look at your financial statements there, take the assets on one hand, subtract the liabilities on the other, and tell the jury what’s left. That’s net worth.”
“It’s not that simple.”
I shake my head in disbelief. “Would you agree that your company has a net worth of approximately four hundred and fifty million dollars?”
Aside from the obvious advantages, one additional benefit in catching a corporate thug lying is that its subsequent witnesses need to tell the truth. Keeley needs to be refreshingly honest, and I’m sure Drummond has beaten him over the head with this. I’m sure it’s been difficult.
“That’s a fair assessment. I’ll agree with that.”
“Thank you. Now, how much cash does your company have?”
This question was not expected. Drummond stands and objects, Kipler overrules.
“Well, that’s difficult to say,” he says, and lapses into the Great Benefit angst we’ve come to expect.
“Come on, Mr. Keeley, you’re the CEO. You’ve been with the company for eighteen years. You came out of finance. How much cash you got lying around up there?”
He’s flipping pages like crazy, and I wait patiently. He finally gives me a figure, and this is where I thank Max Leuberg. I take my copy, and ask him to explain a particular Reserve Account. When I sued them for ten million
dollars, they set aside that amount as a reserve to pay the claim. Same with every lawsuit. It’s still their money, still being invested and earning well, but now it’s classified as a
liability
. Insurance companies love it when they get sued for umpteen zillion bucks, because they can reserve the money and claim they’re basically broke.
And it’s all perfectly legal. It’s an unregulated industry with its own set of murky accounting practices.
Keeley starts using long financial words that no one understands. He’d rather confuse the jury than admit the truth.
I quiz him about another Reserve, then we move to the Surplus accounts. Restricted Surplus. Unrestricted Surplus. I grill him pretty good, and I sound rather intelligent. Using Leuberg’s notes, I tally up the figures and ask Keeley if the company has about four hundred and eighty-five million in cash.
“I wish,” he says with a laugh. There’s not so much as a grin from anyone else.
“Then how much cash do you have, Mr. Keeley?”
“Oh, I don’t know. I’d say probably around a hundred million.”
That’s enough for now. During my closing argument, I can put my figures on a chalkboard and explain where the money is.
I hand him a copy of the printout on the claims data, and he looks surprised. I made the decision at lunch to ambush him while I had him on the stand, and stay away from an encore by Lufkin. He looks at Drummond for help, but there’s nothing he can do. Mr. Keeley here is the CEO, and he certainly should be able to aid us in our search for the truth. I’m assuming they’re thinking I’ll bring back Lufkin to explain this data. As much as I love Lufkin, I’m through with him. I won’t give him the chance to refute the statements of Jackie Lemancyzk.
“Do you recognize that printout, Mr. Keeley? It’s the one your company gave me this morning.”
“Certainly.”
“Good. Can you tell the jury how many medical policies your company had in effect in 1991?”
“Well, I don’t know. Let me see.” He turns pages, holds one up, then puts it down, takes another, then another.
“Does the figure of ninety-eight thousand sound correct, give or take a few?”
“Maybe. Sure, yeah, I think that’s right.”
“And how many claims on these policies were filed in 1991?”
Same routine. Keeley flounders through the printout, mumbling figures to himself. It’s almost embarrassing. Minutes pass, and I finally say, “Does the figure of 11,400 sound correct, give or take a few?”
“Sounds close, I guess, but I’d need to verify it, you know.”
“How would you verify it?”
“Well, I’d need to study this some more.”
“So the information is right there?”
“I think so.”
“Can you tell the jury how many of these claims were denied by your company?”
“Well, again, I’d have to study all this,” he says, lifting the printout with both hands.
“So this information is also contained in what you’re now holding?”
“Maybe. Yes, I think so.”
“Good. Look on pages eleven, eighteen, thirty-three and forty-one.” He’s quick to obey, anything to keep from testifying. Pages rattle and shuffle.
“Does the figure of 9,100 sound correct, give or take a few?”
He’s just plain shocked at this outrageous suggestion. “Of course not. That’s absurd.”
“But you don’t know?”
“I know it’s not that high.”
“Thank you.” I approach the witness, take the printout and hand him the Great Benefit policy given to me by Max Leuberg. “Do you recognize this?”
“Sure,” he says gladly, anything to get away from that wretched printout.
“What is it?”
“It’s a medical policy issued by my company.”
“Issued when?”
He examines it for a second. “September of 1992. Five months ago.”
“Please look at page eleven, Section F, paragraph four, sub-paragraph c, clause number thirteen. Do you see that?”
The print is so small he has to pull the policy almost to his nose. I chuckle at this and glance at the jurors. The humor is not missed.
“Got it,” he says finally.
“Good. Now read it, please.”
He reads, squinting and frowning as if it’s truly tedious. When he’s finished, he forces a smile. “Okay.”
“What’s the purpose of that clause?”
“It excludes certain surgical procedures from the coverage.”
“Specifically?”
“Specifically all transplants.”
“Is bone marrow listed as an exclusion?”
“Yes. Bone marrow is listed.”
I approach the witness and hand him a copy of the Black policy. I ask him to read a certain section. The minuscule print strains his eyes again, but he valiantly plows through it.
“What does this policy exclude in the way of transplants?”
“All major organs; kidney, liver, heart, lungs, eyes, they’re all listed here.”
“What about bone marrow?”
“It’s not listed.”
“So it’s not specifically excluded?”
“That’s correct.”
“When was this lawsuit filed, Mr. Keeley? Do you remember?”
He glances at Drummond, who of course cannot be of any assistance at this moment. “During the middle of last summer, as I recall. Could it be June?”
“Yes sir,” I say. “It was June. Do you know when the language of the policy was changed to include the exclusion of bone marrow transplants?”
“No. I do not. I’m not involved in the writing of the policies.”
“Who writes your policies? Who creates all this fine print?”
“It’s done in the legal department.”
“I see. Would it be safe to say that the policy was changed sometime after this lawsuit was filed?”
He analyzes me for a moment, then says, “No. It might have been changed before the suit was filed.”
“Was it changed after the claim was filed, in August of 1991?”
“I don’t know.”
His answer sounds suspicious. Either he’s not paying attention to his company, or he’s lying. It really makes no difference to me. I have what I want. I can argue to the jury that this new language is clear evidence that there was no intent to exclude bone marrow from the Blacks’ policy. They excluded everything else, and they exclude everything now, so they got nailed by their own language.
I have only one quick matter left for Keeley. “Do you have a copy of the agreement Jackie Lemancyzk signed on the day she was fired?”
“No.”
“Have you ever seen this agreement?”
“No.”
“Did you authorize the payment of ten thousand dollars in cash to Jackie Lemancyzk?”
“No. She’s lying about that.”
“Lying?”
“That’s what I said.”
“What about Everett Lufkin? Did he lie to the jury about the claims manual?”
Keeley starts to say something, then catches himself. No answer will benefit him at this point. The jurors know full well that Lufkin lied to them, so he can’t tell the jurors they really didn’t hear what they really heard. And he certainly can’t admit that one of his vice presidents lied to the jury.
I didn’t plan this question, it just happened. “I asked you a question, Mr. Keeley. Did Everett Lufkin lie to this jury about the claims manual?”
“I don’t think I have to answer that question.”
“Answer the question,” Kipler says sternly.
There’s a painful pause as Keeley glares at me. The courtroom is silent. Every single juror is watching him and waiting. The truth is obvious to all, and so I decide to be the nice guy.
“Can’t answer it, can you, because you can’t admit a vice president of your company lied to this jury?”
“Objection.”
“Sustained.”
“No further questions.”
“No direct at this time, Your Honor,” Drummond says. Evidently, he wants the dust to settle before he brings
these guys back during the defense. Right now, Drummond wants time and distance between Jackie Lemancyzk and our jury.