THE SETTING MIGHT BE COMICAL IF I wasn't so nervous. I'm sure the casual observer would see the humor, but no one in the courtroom is smiling. Especially me.
I'm alone at my counsel table, the piles of motions and briefs stacked neatly before me. My notes and quick references are on two legal pads, at my fingertips, strategically arranged. Deck is seated behind me, not at the table, where he might be of some benefit, but in a chair just inside the bar, at least three arm-lengths away, so it appears as if I'm alone.
I feel very isolated.
Across the narrow aisle, the table for the defense is rather heavily populated. Leo F. Drummond sits in the center, of course, facing the bench, associates surrounding him. Two on each side. Drummond is sixty years old, an alum of Yale Law, with thirty-six years of trial experience. T. Pierce Morehouse is thirty-nine, Yale Law, a Trent & Brent partner, fourteen years' experience in all courts. B. Dewey Clay Hill the Third is thirty-one, Co-
lumbia, not yet a partner, six years' trial experience. M. Alec Plunk Junior is twenty-eight, two years' experience, and is making his initial foray into the case because, I'm sure, he went to Harvard. The Honorable Tyrone Kipler, now presiding, also went to Harvard. Kipler is black. Plunk is too. Harvard-educated black lawyers are not too common in Memphis. Trent & Brent just happened to have one, and so here he is, present no doubt to try and strike a bond with His Honor. And, if things go as expected, we'll one day have a jury sitting over there. Half the registered voters in this county are black, so it's safe to assume the jury will be about fifty-fifty. M. Alec Plunk Junior will be used, it is hoped, to develop some silent harmony and trust with certain jurors.
If the jury happens to have a female Cambodian, there's no doubt in my mind that Trent & Brent will simply reach into the depths of their roster, find themselves another one and bring her to court.
The fifth member of Great Benefit's legal team is Bran-don Fuller Grone, pitifully unnumeraled and inexplicably uninitialed. I can't understand why he doesn't proclaim himself B. Fuller Grone, like a real big-firm lawyer. He's twenty-seven, two years out of Memphis State, where he finished number one in his class and left a wide trail. He was a legend when I started law school, and I crammed for first-year exams by using his old outlines.
Ignoring the two years M. Alec Plunk Junior spent clerking for a federal judge, there are fifty-eight years of experience packed tightly around the defense table.
I received my law license less than a month ago. My staff has flunked the bar exam six times.
I performed all this math late last night while digging through the library at Memphis State, a place I can't seem to shake. The law firm of Rudy Baylor owns a grand total
of seventeen law books, all leftovers from school, and virtually worthless.
Seated behind the lawyers are two guys with hard-nosed corporate looks about them. I suspect they're executives of Great Benefit. One looks familiar. I think he was here when I argued the motion to dismiss. I didn't pay ,nuch attention then, and I'm not too terribly concerned about these guys now. I have enough on my mind.
I'm pretty tense, but if Harvey Hale were sitting up there, I'd be a wreck. In fact, I probably wouldn't be here.
However, the Honorable Tyrone Kipler is presiding. He told me on the phone yesterday, during one of our many recent conversations, that this will be his first day on the bench. He's signed some orders and performed some other routine little jobs, but this is the first argument to referee.
The day after Kipler was sworn in, Drummond filed a motion to remove the case to federal court. He's claiming that Bobby Ott, the agent who sold the policy to the Blacks, has been included as a defendant for all the wrong reasons. Ott, we think, is still a resident of Tennessee. He's a defendant. The Blacks, residents of Tennessee, are the plaintiffs. Complete diversity of citizenship between the parties must exist for federal jurisdiction to apply. Ott defeats diversity because, as we allege, he lives here, and for this reason and this reason alone, the case cannot be a federal one. Drummond filed a massive brief in support of his argument that Ott should not be a defendant.
As long as Harvey Hale was sitting, circuit court was the perfect place to seek justice. But as soon as Kipler assumed the case, then truth and fairness could be found only in federal court. The amazing thing about Drum-mond's motion was the timing. Kipler took it as a personal affront. I agreed with him, for what it was worth.
We're all set to argue the pending motions. In addition
to the request to remove the case, Drummond has his morion for security of costs and morion for sanctions. I took heated issue with his motion for sanctions, so I in turn filed a motion for sanctions, claiming his motion for sanctions was frivolous and mean-spirited. The battle over sanctions becomes a separate war in most lawsuits, according to Deck, and it's best not to get it started. I'm <., bit wary of Deck's litigation advice. He knows his limitations. As he's fond of saying, "Anyone can cook a trout. The real art is in hooking the damned thing."
Drummond strides purposefully to the podium. We're going in chronological order, so he addresses his motion for security of costs, a very minor device. He estimates that the cost bill could run as much as a thousand bucks if this thing goes through trial, and, well, darned, he's just worried that neither me nor my clients will be able to handle this in the event we lose and are assessed with costs.
"Let me interrupt you for a second, Mr. Drummond," Judge Kipler says thoughtfully. His words are measured, his voice carries. "I have your motion, and I have your brief in support of your motion." He picks these up and sort of waves them at Drummond. "Now, you've talked for four minutes, and you've said exactly what's right here in black and white. Do you have anything new to add?"
"Well, Your Honor, I'm entitled to-"
"Yes or no, Mr. Drummond? I'm perfectly capable of reading and understanding, and you write very well I might add. But if you have nothing new to add, then why are we here?"
I'm sure this has never happened to the great Leo Drummond before, but he acts as though it's a daily occurrence. "Simply trying to aid the court, Your Honor," he says with a smile.
"Denied," Kipler says flatly. "Move along."
Drummond moves along without missing a step. "Very well, our next motion is for sanctions. We contend-"
"Denied," Kipler says.
"Beg your pardon."
"Denied."
Deck snickers behind me. All four heads at the table across from me lower in unison as this event is duly recorded. I guess they're all writing in bold letters the word DENIED.
"Each side has asked for sanctions, and I'm denying both motions," Kipler says, looking squarely at Drummond. I get my nose thumped a bit in the process.
It's serious business to cut off the debate of a lawyer who talks for three hundred and fifty bucks an hour. Drummond glares at Kipler, who is enjoying this immensely.
But Drummond is a pro with thick skin. He would never let on that a lowly circuit court judge irritates him. "Very well, moving right along, I'd like to address our request to remove this case to federal court."
"Let's do that," Kipler says. "First, why didn't you try to remove this case when Judge Hale had it?"
Drummond is ready for this. "Your Honor, the case was new and we were still investigating the involvement of the defendant Bobby Ott. Now that we've had some time, we're of the opinion that Ott has been included solely to defeat federal jurisdiction."
"So you wanted this case in federal court all along?"
"Yes sir."
"Even when Harvey Hale had it?"
"That's correct, Your Honor," Drummond says earnestly.
Kipler's face tells everyone that he doesn't believe this. Not a single person in the courtroom does either. But it's a minor detail, and Kipler has made his point.
Drummond plows ahead with his argument, completely unfazed. He's seen a hundred judges come and go, and he is remarkably unafraid of any of them. It will be many years, through many trials in many courtrooms, before I will ever feel unintimidated by the guys up there in the black robes.
He talks for about ten minutes, and is in the process of covering the precise points already set forth in his brief when Kipler interrupts. "Mr. Drummond, excuse me, but do you recall just a few minutes ago I asked if you had anything new to present to the court this morning?"
Drummond, hands frozen in place, mouth open, glares at His Honor.
"Do you recall that?" Kipler asks. "Happened less than fifteen minutes ago."
"I thought we were here to argue these motions," Drummond says crisply. The calm voice has a few cracks in it.
"Oh, we certainly are. If you have something new to add, or perhaps a confusing point to clear up, then I'd love to hear it. But you're simply rehashing what I'm holding here in my hand."
I glance to my left and catch a glimpse of some awfully grave faces. Their hero is getting ravaged. It's not pretty.
It hits me that the guys across the aisle are taking this matter a bit more seriously than normal. I was around a lot of lawyers last summer when I clerked for a defense litigation firm, and each case was pretty much like the next. You work hard, bill hard, but take the outcome in stride. There are always a dozen new cases waiting for you.
I sense an air of panic over there, and I'm sure it's not created by my presence. It's standard procedure in insurance litigation for the defense firms to assign two lawyers to a case. They always come in pairs. Regardless of the
case, the facts, the issues, the work to be done, you get two of them.
But five? Seems like overkill to me. There's something going on over there. These guys are scared.
"Your request to remove to federal 'court is denied, Mr. Drummond. The case stays here," Kipler says firmly, already signing his name. This is not well received across the aisle, though they try not to show it.
"Anything else?" Kipler asks.
"No, Your Honor." Drummond gathers his papers, and leaves the podium. I watch out of the corner of my eye. As he steps to the defense table, he gazes for a quick second at the two executives, and I see the unmistakable look of fear in his eyes. Goose bumps cover my forearms and legs.
Kipler switches gears. "Now, the plaintiff has two remaining motions. The first is to fast-track this case, the second to expedite the deposition of Donny Ray Black. The two are sort of related, so, Mr. Baylor, why don't we handle them together?"
I'm on my feet. "Sure, Your Honor." As if I'm going to suggest otherwise.
"Can you wrap it up in ten minutes?"
In light of the carnage I've just witnessed, I immediately indulge another strategy. "Well, Your Honor, my briefs speak for themselves. I really have nothing new to add."
Kipler gives me a warm smile, such a bright young lawyer, then he immediately attacks the defense. "Mr. Drummond, you have objected to the fast-tracking of this case. What's the problem?"
There's a flurry of activity around the defense table, and finally T. Pierce Morehouse rises slowly and adjusts his tie.
"Your Honor, if I may address this, we feel that this
case will take some time to prepare for trial. Fast-tracking it will unduly burden both sides, in our opinion." More-house is speaking slowly and choosing his words with caution.
"Nonsense," Kipler says, glaring.
"Sir?"
"I said nonsense. Let me ask you something, Mr. More-house. As a defense lawyer, have you ever agreed to the fast-tracking of a lawsuit?"
Morehouse flinches and shifts his weight. "Well, uh, sure, Your Honor."
"Fine. Give rne the case name and the court it was in."
T. Pierce looks desperately at B. Dewey Clay Hill the Third, who in turn looks longingly at M. Alec Plunk Junior. Mr. Drummond refuses to look up, preferring instead to keep his eyes buried in some awfully important file.
"Well, Your Honor, I'll have to get back with you on that one."
"Call me this afternoon, by three, and if I haven't heard from you by three, then I'll call you. I'm really anxious to hear about this case you agreed to fast-track."
T. Pierce slumps at the waist and exhales as if he's been kicked in the gut. I can almost hear the Trent & Brent computers roaring at midnight as they search vainly for such a case. "Yes, Your Honor," he says weakly.
"Fast-tracking is completely within my discretion, as you know. The plaintiffs motion is hereby granted. The defendant's answer is due in seven days. Discovery will commence then and end one hundred and twenty days from today."
This gets them hopping over at the defense table. Papers are being slid and shoved from one lawyer to the next. Drummond and company whisper and frown at each
other. The corporate boys huddle and hunker behind the bar. This is almost fun.
T. Pierce Morehouse squats with his rear hovering just centimeters above the leather seat, arms and elbows braced for the next motion.
"The last motion is to expedite the deposition of Donny Ray Black," His Honor says, looking directly at the defense table. "Surely, you cannot be opposed to this," he says. "Which one of you gentlemen would like to respond?"
Along with this motion, I included a two-page affidavit signed by Dr. Walter Kord, in which he -states in plain terms that Donny Ray will not live much longer. Drum-mond's response was a baffling collection of mishmash, the upshot of which seemed to be that he was simply too busy to be bothered.
T. Pierce slowly unfolds, opens his hands, spreads his arms, starts to say something, when Kipler wades in. "Don't tell me you know more about his medical condition than his own doctor."
"No sir," T. Pierce says.
"And don't tell me you guys are seriously opposed to this motion."
It's quite obvious how His Honor is about to rule, and so T. Pierce deftly moves to middle ground. "Just a matter of scheduling, Your Honor. We haven't even filed our answer yet."
"I know exactly what your answer's gonna be, okay? No surprises there. And you've certainly had time to file everything else. Now, give me a date." He suddenly looks at me. "Mr. Baylor?"
"Any day, Your Honor. Any time." I say this with a smile. Ah, the advantages of having nothing else to do.
All five of the lawyers at the defense table are scrambling for their little black books as if it just might be
possible to locate a date on which they can all be available.
"My trial calendar is full, Your Honor," Drummond says without standing. The life of a very important lawyer revolves around only one thing: the trial calendar. Drummond is arrogantly telling Kipler and me that he simply will be too busy in the near future to bother with a deposition.
His four lackeys all frown, nod and rub their chins in unison because they too have trial calendars which, remarkably, are packed and unrelenting.
"Do you have a copy of Dr. Kord's affidavit?" Kipler asks.
"I do," Drummond replies.
"Have you read it?"
"I have."
"Do you question its validity?"
"Well, I, uh-"
"A simple yes or no, Mr. Drummond. Do you question the validity of it?"
"No."
"Then this young man is about to die. Do you agree that we need to record his testimony so that the jury may one day see and hear what he has to say?"
"Of course, Your Honor. It's just that, well, right now, my trial calendar is-"
"How about next Thursday?" Kipler interrupts, and there's dead silence across the aisle.
"Looks fine to me, Your Honor," I say loudly. They ignore me.
"One week from today," Kipler says, watching them with great suspicion. Drummond finds what he's looking for in a file, and studies a document.
"I have a trial starting Monday in federal court, Your
Honor. This is the pretrial order, if you'd like to see it. Estimated length is two weeks."
"Where?"
"Here. Memphis."
"Chances of settlement?"
"Slim."
Kipler studies his schedule for a moment. "What about next Saturday?"
"Sounds fine to me," I add again. Everyone ignores me.
"Saturday?"
"Yes, the twenty-ninth."
Drummond looks at T. Pierce, and it's obvious that the next excuse belongs to him. He rises slowly, holds his black appointment book as if it's gold, says, "I'm sorry, Your Honor, I'm scheduled to be out of town that weekend."
"What for?"
"A wedding."
"Your wedding?"
"No. My sister's."
Strategically, it's to their advantage to postpone the deposition until Donny Ray dies, thus preventing the jury from seeing his withered face and hearing his tortured voice. And there's little doubt that, between the five of them, these guys can orchestrate enough excuses to stall until I die of old age.
Judge Kipler knows this. "The deposition is set for Saturday, the twenty-ninth," he says. "Sorry if it inconveniences the defense, but God knows there are enough of you guys to handle it. One or two won't be missed." He closes a book, leans forward on his elbows, grins down at Great Benefit's lawyers and says, "Now, what else?"
It's almost cruel the way he sneers at them, but he's not mean-spirited. He's just ruled against them on five of six morions, but his reasonings are sound. I think he's per-
feet. And I know there will be other days in this courtroom, other pretrial motions and hearings, and I'm sure I'll get my share of drubbings.
Drummond is on his feet, shrugging while examining the spread of paperwork before him on the table. I'm sure he wants to say something like, "Thanks for nothing, Judge." Or, "Why don't you just go ahead and hand the plaintiff a million bucks?" But, as usual, he's the consummate barrister. "No, Your Honor, that will be all for now," he says, as if Kipler has in fact helped him immensely.
"Mr. Baylor?" His Honor asks me.
"No sir," I say with a smile. Enough for one day. I've slaughtered the big boys in my first legal skirmish, and I'm not pressing my luck. Me and old Tyrone up there have kicked some ass.
"Very well," he says, rapping his gavel quietly. "Court's adjourned. And, Mr. Morehouse, don't forget to call me with the name of that case you agreed to fast-track."
T. Pierce grunts in pain.