SIX DAYS AFTER WE PICK THE JURY AND four days before the trial begins, Deck takes a call at the office from a lawyer in Cleveland who wants to speak with me. I'm immediately suspicious because I don't know a single lawyer in Cleveland, and I chat with the guy just long enough to get his name. Takes about ten seconds, then I gently cut him off in mid-sentence and go through a little routine as if we've somehow been disconnected. It's been happening all the time lately, I tell Deck loud enough to be recorded in the receiver. We take the three office phones off the hook, and I run to the street where the Volvo is parked. Butch has checked my car phone and it appears remarkably free of bugging devices. Using directory assistance, I call the lawyer in Cleveland. It turns out to be an immensely important phone call. His name is Peter Corsa. His speciality is labor law and employment discrimination of all types, and he represents a young lady by the name of Jackie Lemancyzk. She found her way to his office after she was suddenly fired from Great Benefit for no apparent reason, and together they
plan to seek redress for a multitude of grievances. Contrary to what I'd been told, Ms. Lemancyzk has not left Cleveland. She's in a new apartment with an unlisted phone.
I explain to Corsa that we've made dozens of phone calls to the Cleveland area, but haven't found a trace of Jackie Lemancyzk. I was told by one of the corporate boys, Richard Pellrod, that she'd returned to her home somewhere in southern Indiana.
Not true, says Corsa. She never left Cleveland, though she has been hiding.
It evolves into a wonderfully juicy story, and Corsa spares no details.
His client was sexually involved with several of her bosses at Great Benefit. He assures me she's very attractive. Her promotions and pay were given or denied based on her willingness to hop into bed. At one point she was a senior claims examiner, the only female to reach that position, but got herself demoted when she broke off an affair with the VP of Claims, Everett Lufkin, who appears to be nothing more than a weasel but has a fondness for kinky sex.
I concur that he appears to be nothing more than a weasel. I had him in deposition for four hours, and I'll assault him next week on the witness stand.
Their lawsuit will be for sexual harassment and other actionable practices, but she also knows a lot about Great Benefit's dirty laundry in the claims department. She was sleeping with the VP of Claims! Lots of lawsuits are coming, he predicts.
I finally pop the big question. "Will she come testify?"
He doesn't know. Maybe. But she's scared. These are nasty people with lots of money. She's in therapy now, really fragile.
He agrees to allow me to talk to her by phone, and we
make arrangements for a late night call from my apartment. I explain that it's not a good idea to call me at the office.
IT'S IMPOSSIBLE to think about anything but the trial. When Deck's not at the office, I pace around talking to myself, telling the jury how truly awful Great Benefit is, cross-examining their people, delicately questioning Dot and Ron and Dr. Kord, pleading with the jury in a rather spellbinding closing argument. It is still difficult to ask the jury for ten million in punitive and keep a straight face. Perhaps if I were fifty years old and had tried hundreds of cases and knew what the hell I was doing, then maybe I would have the right to ask a jury for ten million. But for a rookie nine months out of school it seems ridiculous.
But I ask them anyway. I ask them at the office, in my car and especially in my apartment, often at two in the morning when I can't sleep. I talk to these people, these twelve faces I can now put with names, these wonderfully fair folks who listen to me and nod and can't wait to get back there and dispense justice.
I'm about to strike gold, to destroy Great Benefit in open court, and I struggle every hour 'to control these thoughts. Damn, it's hard. The facts, the jury, the judge, the frightened lawyers on the other side. It's adding up to a lot of money.
Something has got to go wrong.
I TALK TO JAGKIE LEMANCYZK for an hour. At times she sounds strong and forceful, at times she can barely hold it together. She didn't want to sleep with these men, she keeps saying, but it was the only way to advance. She's divorced with a couple of kids.
She agrees to come to Memphis. I offer to fly her down and cover her expenses, and I'm able to convey this with
the calm assurance that my firm has plenty of money. She makes me promise that if she testifies, it has to be a complete surprise to Great Benefit.
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 plaintiffs 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 law-yerly 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 1.1 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.
"Can you explain the disease to the jury, Dr. Kord?" I ask.
"Of course. Acute myelocytic leukemia, or AML, is a disease that strikes two age groups, the first being young adults ranging in age from twenty to thirty, and the second being older people, usually above the age of seventy. Whites get AML more than nonwhites, and for some unknown reason, people of Jewish ancestry get the disease -<tnore than others. Men get it more than women. For the most part, the cause of the disease is unknown.
"The body manufactures its blood in the bone marrow, and this is where AML strikes. The white blood cells, which are the ones in charge of fighting infection, become malignant in acute leukemia and the white cell count often rises to one hundred times normal. When this happens, the red blood cells are suppressed, leaving the patient pale, weak and anemic. As the white cells grow uncontrollably, they also choke off the normal production of
platelets, the third type of cell found in bone marrow. This leads to easy bruising, bleeding and headaches. When Donny Ray first came to my office, he complained of dizziness, shortness of breath, fatigue, fever and flu-like symptoms."
When Kord and I were practicing last week, I asked him to refer to him as Donny Ray, not as Mr. Black or patient this or that.
"And what did you do?" I ask. This is easy, I tell myself.
"I ran a routine diagnostic procedure known as a bone marrow aspiration."
"Can you explain this to the jury?"
"Sure. With Donny Ray, the test was done in his hip bone. I placed him on his stomach, deadened a small area of skin, made a tiny opening, then inserted a large needle. The needle actually has two parts, the outer part is a hollow tube, and inside it is a solid tube. After the needle was inserted into the bone marrow, the solid tube was removed and an empty suction tube was attached to the opening of the needle. This acts sort of like a syringe, and I extracted a small amount of liquid bone marrow. After the bone marrow was aspirated, or removed, we ran the usual tests by measuring the white and red blood cells. There was no doubt he had acute leukemia."
"What does this test cost?" I ask.
"Around a thousand dollars." f
"And how did Donny Ray pay for it?"
"When he first came to the office, he filled out the normal forms and said he was covered under a medical policy issued by Great Benefit Life Insurance Company. My staff checked with Great Benefit, and verified that such a policy did in fact exist. I proceeded with the treatment."
I hand him copies of the documents relevant to this, and he identifies them.
"Did you get paid by Great Benefit?"
"No. We were notified by the company that the claim was being denied for several reasons. Six months later the bill was written off. Mrs. Black has been paying fifty dollars a month."
"How did you treat Donny Ray?"
"By what we call induction therapy. He entered the hospital and I placed a catheter into a large vein under his collarbone. The first induction of chemotherapy was with a drug called ara-C, which goes into the body for twenty-four hours a day, seven straight days. A second drug called idarubicin was also given during the first three days. It's called 'red death' because of its red color and its extreme effect of wiping out the cells in the bone marrow. He was given Allopurinol, an anti-gout agent, because gout is common when large numbers of blood cells are killed. He received intensive intravenous fluids to flush the by-prod-" ucts out of his kidneys. He was given antibiotics and anti-fungus treatments because he was susceptible to infection. He was given a drug called amphotericin B, which is a treatment for funguses. This is a very toxic drug, and it ran his temperature to 104. It also caused uncontrolled shaking, and that's why amphotericin B is known as 'shake and bake.' In spite of this, he handled it well, with a very positive attitude for a very sick young man.
"The theory behind intensive induction therapy is to kill every cell in the bone marrow and hopefully create an environment where normal cells can grow back faster than leukemic cells."
"Does this happen?"
"For a short period of time. But we treat every patient with the knowledge that the leukemia will reappear, unless of course the patient undergoes bone marrow transplantation."
"Can you explain to the jury, Dr. Kord, how you perform a bone marrow transplant?"
"Certainly. It's not a terribly complicated procedure. After the patient goes through the chemotherapy I just described, and if he or she is lucky enough to find a donor whose match is close enough genetically, then we extract the marrow from the donor and infuse through an intravenous tube to the recipient. The idea is to transfer from one patient to another an entire population of bone marrow cells."
"Was Ron Black a suitable donor for Donny Ray?"
"Absolutely. He's an identical twin, and they're the easiest. We ran tests on both men, and the transplant would've been easy. It would've worked."
Drummond jumps to his feet. "Objection. Speculation. The doctor can't testify as to whether or not the transplant would've worked."
"Overruled. Save it for cross-examination."
I ask a few more questions about the procedure, and while Kord answers I pay attention to the jurors. They're listening and following closely, but it's time to wrap this up.
"Do you recall approximately when you were ready to perform the transplant?"
He looks at his notes, but he knows the answers. "August of '91. About eighteen months ago."
"Would such a transplant increase the likelihood of surviving acute leukemia?"
"Certainly."
"By how much?"
"Eighty to ninety percent."
"And the chances of surviving without a transplant?"
"Zero."
"I tender the witness."
It's after twelve, and time for lunch. Kipler adjourns us
until one-thirty. Deck volunteers to fetch deli sandwiches, and Kord and I prep for the next round. He's savoring the idea of sparring with Drummond.
I'LL NEVER KNOW how many medical consultants Drummond employed to prepare for trial. He's not obligated to disclose this. He has only one expert listed as a potential witness. Dr. Kord has repeatedly assured me that bone marrow transplantation is now so widely accepted as the preferred means of treatment that no one but a quack would claim otherwise. He's given me dozens of articles and papers, even books, to support our position that this is simply the best way to treat acute leukemia.
Evidently, Drummond discovered pretty much the same thing. He's not a doctor, and he's asserting a weak position, so he doesn't quarrel too much with Kord. The skirmish is brief. His main point is that very few acute leukemia patients receive bone marrow transplants compared with those who don't. Less than five percent, Kord says, but only because it's hard to find a donor. Nationwide, about seven thousand transplants occur each year.
Those lucky enough to find a donor have a much greater chance of living. Donny Ray was a lucky one. He had a donor.
Kord looks almost disappointed when Drummond surrenders after a few quick questions. I have no redirect, and Kord is excused.
The next moment is very tense because I'm about to announce which corporate executive I want to testify. Drummond asked me this morning, and I said I hadn't made up my mind. He complained to Kipler, who said I didn't have to reveal it until I was ready. They're sequestered in a witness room down the hall, just waiting, and fuming.
"Mr. Everett Lufkin," I announce. As the bailiff disap-
pears to fetch him, there's a burst of activity at the defense table, most of it, as far as I can tell, worth nothing. Just papers being pushed around, notes being passed, files being located.
Lufkin enters the courtroom, looks around wildly as if he's just been roused from hibernation, straightens his tie and follows the bailiff down the aisle. He glances nervously at his support group to his left, and makes his way to the witness stand.
Drummond is known to train his witnesses by subjecting them to brutal cross-examinations, sometimes using four or five of his lawyers to pepper the witness with questions, all of it recorded on video. He'll then spend hours with the witness watching the tape and working on technique, propping for this moment.
I know these corporate people will be immaculately prepared.
Lufkin looks at me, looks at the jury and tries to appear calm, but he knows he can't answer all the questions that are coming. He's about fifty-five, gray hair that starts not far above his eyebrows, nice features, quiet voice. He could be trusted with the local Boy Scout troop. Jackie Lemancyzk told me he wanted to tie her up.
They have no idea she'll testify tomorrow.
We talk about the claims department and its role in the scheme of things at Great Benefit. He's been there eight years, VP of Claims for the past six, has the department firmly in control, a real hands-on type of manager. He wants to sound important for the jury, and within minutes we've established that it's his job to oversee every aspect of claims. He doesn't oversee every single claim, but he has the responsibility of running the division. I'm able to lull him into a boring discussion about nothing but corporate bureaucracy, when suddenly I ask him, "Who is Jackie Lemancyzk?"
His shoulders actually jerk a bit. "A former claims handler."
"Did she work in your department?"
"Yes."
"When did she stop working for Great Benefit?"
He shrugs, just can't remember the date.
"How about October 3 of last year?"
"Sounds close."
"And wasn't that two days before she was scheduled to give a deposition in this case?"
"I really don't remember."
I refresh his memory by showing him two documents; the first is her letter of resignation, dated October 3, the second is my notice to take her deposition on October 5. Now he remembers. He reluctantly admits that she left Great Benefit two days before she was scheduled to give testimony in this trial.
"And she was the person responsible for handling this claim for your company?"
"That's correct."
"And you fired her?"
"Of course not."
"How'd you get rid of her?"
"She resigned. It's right here in her letter."
"Why'd she resign?"
He pulls the letter close like a real smartass, and reads for the jury: "I hereby resign for personal reasons."
"So it was her idea to leave her job?"
"That's what it says."
"How long did she work under you?"
"I have lots of people under me. I can't remember all these details."
"So you don't know?"
"I'm not sure. Several years."
"Did you know her well?"
"Not really. She was just a claims handler, one of many."
Tomorrow, she'll testify that their dirty little affair lasted for three years.
"And you're married, Mr. Lufkin?"
'Yes, happily."
"With children?"
"Yes. Two adult children."
I let him hang here for a minute as I walk to my table and retrieve a stack of documents. It's the Blacks' claim file, and I hand it to Lufkin. He takes his time, looks through it, then says it appears to be complete. I make sure he promises that this is the entire claim file, nothing is missing.
For the benefit of the jury, I take him through a series of dry questions with equally dry answers, all designed to provide a basic explanation of how a claim is supposed to be handled. Of course, in our hypothetical, Great Benefit does everything properly.
Then we get to the dirt. I make him read, into the microphone and into the record, each of the first seven denial letters. I ask him to explain each letter: Who wrote it? Why was it written? Did it follow the guidelines set forth in the claims manual? What section of the claims manual? Did he personally see the letter?
I make him read to the jury each of Dot's letters. They cry out for help. Her son is dying. Is anybody up there listening? And I grill him on each letter: Who received this one? What was done with it? What does the manual require? Did he personally see it?
The jury seems anxious to get to the Stupid Letter, but of course Lufldn has been prepped. He reads it to the jury, then explains, in a rather dry monotone and without the slightest flair for compassion, that the letter was written by a man who later left the company. The man was
wrong, the company was wrong, and now, at this moment, in open court, the company apologizes for the letter.
I allow him to prattle on. Give him enough rope, he'll hang himself.
"Don't you think it's a bit late for an apology?" I finally ask, cutting him off.
"Maybe."
"The boy's dead, isn't he?"
"Yes."
"And for the record, Mr. Lufkin, there's been no written apology for the letter, correct?"
"Not to my knowledge."
"No apology whatsoever until now, correct?"
"That's correct."
"To your limited knowledge, has Great Benefit ever apologized for anything?"
"Objection," Drummond says.
"Sustained. Move along, Mr. Baylor."
Lufkin has been on the stand for almost two hours. Maybe the jury's tired of him. I certainly am. It's time to be cruel.
I've purposefully made a big deal out of the claims manual, referring to it as if it's the inviolable pronouncement of corporate policy. I hand Lufkin my copy of the manual that I received in discovery. I ask him a series of questions, all of which he answers perfectly and establishes that, yes, this is the holy word on claims procedures. It's been tested, tried and true. Periodically reviewed, modified, updated, amended with the changing times, all in an effort to provide the best service for their customers.
After reaching the point of near tedium about the damned manual, I ask: "Now, Mr. Lufkin, is this the entire claims manual?"
He flips through it quickly as if he knows every section, every word. "Yes."
480 JOHNGRISHAM
"Are you certain?"
"Yes."
"And you were required to give me this copy during discovery?"
"That's correct."
"I requested a copy from your attorneys, and this is what they gave me?"
"Yes."
"Did you personally select this particular copy of the manual to be sent to me?"
"I did."
I take a deep breath and walk a few steps to my table. Under it is a small cardboard box filled with files and papers. I fumble through it for a second, then abruptly stand up straight, empty-handed, and say to the witness, "Could you take the manual and flip over to Section U, please?" As this last word comes out, I look directly at Jack Underhall, the in-house counsel seated behind Drummond. His eyes close. His head falls forward, then he leans on his elbows, staring at the floor. Beside him, Kermit Aldy appears to be gasping for breath.
Drummond is clueless.
"I beg your pardon?" Lufkin says, his voice an octave higher. With everybody watching me, I remove Cooper Jackson's copy of the claims manual and place it on my table. Everybody in the courtroom stares at it. I glance at Kipler, and he's thoroughly enjoying this.
"Section U, Mr. Lufkin. Flip over there and find it. I'd like to talk about it."
He actually takes the manual and flips through it again. At this crucial moment, I'm sure he'd sell his children if a miracle somehow could happen and a nice, neat Section U materialized.
Doesn't happen.
"I don't have a Section U," he says, sadly and almost incoherent.
"I beg your pardon," I say loudly. "I didn't hear you."
"Uh, well, this one doesn't have a Section U." He's absolutely stunned, not by the fact that the section is missing, but by the fact that he's been caught. He keeps looking wildly at Drummond and Underhall as if they should do something, like call Time Out!
Leo F. Drummond has no idea what his client has done - to him. They doctored the manual, and didn't tell their lawyer. He's whispering to Morehouse. What the hell's going on?
I make a big production of approaching the witness with the other manual. It looks just like the one he's holding. A tide page in the front gives the same date for the revised edition: January 1, 1991. They're identical, except that one has a final section called U, and one doesn't.
"Do you recognize this, Mr. Lufkin?" I ask, handing him Jackson's copy and retrieving mine.
"Yes."
"Well, what is it?"
"A copy of the claims manual."
"And does this copy contain a Section U?"
He turns pages, then nods his head.
"What was that, Mr. Lufkin? The court reporter can't record the movements of your head."
"It has a Section U."
"Thank you. Now, did you personally remove the Section U from my copy, or did you instruct someone else to do it?"
He gently places the manual on the railing around the witness stand, and very deliberately folds his arms across his chest. He stares at the floor between us, and waits. I think he's drifting away. Seconds pass, as everyone waits for a response.
"Answer the question," Kipler barks from above.
"I don't know who did it."
"But it was done, wasn't it?" I ask.
"Evidently."
"So you admit that Great Benefit withheld documents."
"I admit nothing. I'm sure it was an oversight."
"An oversight? Please be serious, Mr. Lufkin. Isn't it true that someone at Great Benefit intentionally removed the Section U from my copy of the manual?"
"I don't know. I, uh, well, it just happened, I guess. You know."
I walk back to my table in search of nothing in particular. I want him to hang here for a few seconds so the jury can hate him sufficiently. He stares blankly at the floor, whipped, defeated, wishing he was anywhere but here.
I confidently walk to the defense table and hand Drum-mond a copy of Section U. I give him a toothy, nasty smile, and give Morehouse one as well. Then I hand a copy to Kipler. I take my time so the jury can watch and wait with great anticipation.
"Well, Mr. Lufkin, let's talk about the mysterious Section U. Let's explain it to the jury. Would you look at it, please?"
He takes the manual, turns the pages.
"It went into effect January 1, 1991, correct?"
"Yes."
"Did you draft it?"
"No." Of course not.
"Okay, then who did?"
Another suspicious pause as he gropes for a suitable lie.
"I'm not sure," he says.
"You're not sure? But I thought you just testified that this fell squarely under your responsiblity at Great Benefit?"
He's staring at the floor again, hoping I'll go away.
"Fine," I say. "Let's skip paragraphs one and two, and read paragraph three."
Paragraph three directs the claims handler to immediately deny every claim within three days of receiving it. No exceptions. Every claim. Paragraph four allows for the subsequent review of some claims, and prescribes the paperwork necessary to indicate that a claim might be inexpensive, very valid and therefore payable. Paragraph five tells the handler to send all claims with a potential value in excess of five thousand dollars to underwriting, with a letter of denial to the insured, subject to review by underwriting, of course.
And so it goes. I make Lufkin read from his manual, then I grill him with questions he can't answer. I use the word "scheme" repeatedly, especially after Drummond objects and Kipler overrules him. Paragraph eleven sets forth a veritable glossary of secret code signals the handlers are supposed to use in the file to indicate a strong reaction from the insured. It's obvious the scheme is designed to play the odds. If an insured threatens with lawyers and lawsuits, the file is immediately reviewed by a supervisor. If the insured is a pushover, then the denial sticks.
Paragraph eighteen b. requires the handler to cut a check for the amount of the claim, send the check and the file to underwriting with instructions not to mail the check until further word from claims. Word, of course, never comes. "So what happens to the check?" I ask Lufkin. He doesn't know.
The other half of the scheme is in Section U of the underwriting manual, and so I get to do this again tomorrow with another VP.
It's really not necessary. If we could stop right now, the jury would give whatever I ask, and they haven't even seen Donny Ray yet.
We break for a quick recess at four-thirty. I've had Lufkin on the stand for two and a half hours, and it's time to finish him off. As I step into the hall on my way to the rest room, I see Drummond pointing angrily to a room he wants Lufkin and Underhall to enter. I'd love to hear this mauling.
Twenty minutes later, Lufkin is back,on the stand. I'm through with the manuals for now. The jury can read the fine print when it deliberates.
"Just a few more quick questions," I say, smiling and refreshed. "In 1991, how many health insurance policies did Great Benefit have issued and in effect?"
Again, the weasel looks helplessly at his lawyer. This information was due me three weeks ago.
"I'm not sure," he says.
"And how many claims were filed in 1991?"
"I'm not sure."
"You're the Vice President of Claims, and you don't know?"
"It's a big company."
"How many claims were denied in 1991?"
"I don't know."
At this point, perfectly on cue, Judge Kipler says, "The witness may be excused for today. We're going to recess for a few minutes so the jury can go home."
He says good-bye to the jury, thanks them again, and gives them their instructions. I get a few smiles as they file past our table. We wait for them to leave, and when the last juror disappears through the double doors^ Kipler says, "Back on the record. Mr. Drummond, both you and your client are in contempt of court. I insisted that this information be forwarded to the plaintiff several weeks ago. It hasn't been done. It's very relevant and pertinent, and you have refused to provide it. Are you and your
client prepared to be incarcerated until this information is received?"
Leo is on his feet, very tired, aging quickly. "Your Honor, I've tried to get this information. I've honestly done my best." Poor Leo. He's still trying to comprehend Section U. And, at this moment, he is perfectly believable. His client has just proven to the world that it will hide documents from him.
"Is Mr. Keeley nearby?" His Honor asks.
"In the witness room," Drummond says.
"Go get him." Within seconds, the bailiff leads the CEO into the courtroom.
Dot has had enough. She needs to pee and must have a smoke.
Kipler points to the witness stand. He swears Keeley himself, then asks him if there's any good reason why his company has refused to provide the information I've asked for.
He stutters, stammers, tries to blame it on the regional offices and the district offices.
"Do you understand the concept of contempt of court?" Kipler asks.
"Maybe, well, not really."
"It's very simple. Your company is in contempt of court, Mr. Keeley. I can either fine your company, or place you, as the CEO, in jail. Which shall it be?"
I'm sure some of his pals have pulled time at the federal country clubs, but Keeley knows that jail here means one downtown with lots of street types. "I really don't want to go to jail, Your Honor."
"Didn't think so. I hereby fine Great Benefit the sum of ten thousand dollars, due and payable to the plaintiff by 5 P.M. tomorrow. Call the home office and get a check FedExed, okay?"
Keeley can do nothing but nod.
"Furthermore, if this information is not faxed in here by nine in the morning, then you'll be taken to the Memphis City Jail, where you'll remain until you comply. Plus, while you're there, your company will be fined five thousand dollars a day."
Kipler turns and points downward at Drummond. "I have repeatedly warned you about these documents, Mr. Drummond. This behavior is grossly unacceptable."
He raps his gavel angrily, and leaves the bench.