UNDER NORMAL CIRCUMSTANCES, I might feel silly wearing a blue and gray cap with a tiger on it, along with my suit, and leaning on a wall in Concourse A of the Memphis airport. But this day has been anything but normal. It's late, and I'm dead tired, but the adrenaline is hopping. A better first day of trial would be impossible.
The flight from Chicago arrives on time, and I'm soon spotted by my cap. A woman behind a large pair of dark sunglasses approaches, looks me up and down, finally says, "Mr. Baylor?"
"That's me." I shake hands with Jackie Lemancyzk, and with her male companion, a man who introduces himself only as Carl. He has a carry-on bag, and they're ready to go. These people are nervous.
We talk on the way to the hotel, a Holiday Inn downtown, six blocks from the courthouse. She sits in the front with me. Carl lurks in the backseat, saying nothing but guarding her like a rottweiler. I replay most of the first day's excitement. No, they do not know she's coming. Her
hands shake. She's brittle and frail, and scared of her shadow. Other than revenge, I can't figure out her motive for being here.
The hotel reservation is in my name, at her request. The three of us sit around a small table in her room on the fifteenth floor, and go over my direct examination. The questions are typed and in order.
If there's beauty here, it's well concealed. The hair is chopped off and badly dyed to some dark red shade. Her lawyer said she was in therapy, and I'm not about to ask questions. Her eyes are bloodshot and sad, not at all enhanced with makeup. She's thirty-one, two small children, one divorce, and from outward appearances and demeanor it's hard to believe she spent her career at Great Benefit in one bed and out of another.
Carl is very protective. He pats her arm, occasionally gives his opinion about a particular answer. She wants to testify as soon as possible in the morning, then get back to the airport and get out of town.
I leave them at midnight.
AT NINE Tuesday morning, Judge Kipler calls us to order but instructs the bailiff to keep the jury in its room for a few moments. He asks Drummond if the claims information has been received. At the rate of five thousand bucks a day, I almost hope it hasn't.
"Came in about an hour ago, Your Honor," he says, obviously relieved. He hands me a neat stack of documents an inch thick, and even smiles a little when he hands Kipler his set.
"Mr. Baylor, you'll need some time," His Honor says.
"Give me thirty minutes," I say.
"Fine. We'll seat the jury at nine-thirty."
Deck and I dash to a small attorney's conference room down the hall, and wade through the information. Not
unexpectedly, it's in Greek and almost impossible to decode. They'll be sorry.
At nine-thirty, the jury is brought into the courtroom and greeted warmly by Judge Kipler. They report in good condition, no sicknesses, no contact last night from anybody regarding the case.
"Your witness, Mr. Baylor," Kipler says, and day two is under way.
"We'd like to continue with Everett Lufkin," I say.
Lufkin is retrieved from the witness room, and takes the stand. After the Section U fiasco yesterday, nobody will believe a word he says. I'm sure Drummond chewed on him until midnight. He looks rather haggard. I hand him the official copy of the claims information, and ask him if he can identify it.
"It's a printout of a computer summary of various claims information."
"Prepared by the computers at Great Benefit?"
"That's correct."
"When?"
"Late yesterday afternoon and last night."
"Under your supervision as Vice President of Claims?"
"You could say that."
"Good. Now, Mr. Lufkin, please tell the jury how many medical policies were in existence in 1991."
He hesitates, then starts to play with the printout. We wait while he searches through the pages. The only sound for a long, awkward gap is the shuffling of paper in Lufkin's lap.
The "dumping" of documents is a favorite tactic of insurance companies and their lawyers. They love to wait until the last minute, preferably the day before the trial, and unload four storage boxes full of paperwork on the plaintiffs lawyer's doorstep. I avoided this because of Tyrone Kipler.
This is just a taste of it. I guess they thought they could trot in here this morning, hand me seventy pages of printout, most of it apparently meaningless, and be done with it.
"It's really hard to tell," he says, barely audible. "If I had some time."
"You've had two months," Kipler says loudly, his microphone working splendidly. The tone and volume of his words are startling. "Now answer the question." They're already squirming at the defense table.
"I want to know three things, Mr. Lufkin," I say. "The number of policies in existence, the number of claims on these policies and the number of these claims which were denied. All for the year 1991. Please."
More pages are flipped. "If I recall correctly, we had something in the neighborhood of ninety-seven thousand policies."
"You can't look at your numbers there and tell us for certain?"
It's obvious he can't. He pretends to be so engrossed in the data he can't answer my question.
"And you're the Vice President of Claims?" I ask, taunting.
"That's right!" he responds.
"Let me ask you this, Mr. Lufkin. To the best of your knowledge, is the information I want contained in that printout?"
"Yes."
"So, it's just a matter of finding it."
"If you'll shut up a second, I'll find it." He snarls this at me like a wounded animal, and in doing so comes across very badly.
"I'm not required to shut up, Mr. Lufkin."
Drummond rises, pleads with his hands. "Your Honor,
in all fairness, the witness is trying to find the information."
"Mr. Drummond, the witness has had two months to gather this information. He's the Vice President of Claims, surely he can read the numbers. Overruled."
"Forget the printout for a second, Mr. Lufkin," I say. "In an average year, what would be the ratio of policies to claims? Just give us a percentage."
"On the average, we get claims filed on between eight and ten percent of our policies."
"And what percentage of the claims would ultimately be denied?"
"Around ten percent of all claims are denied," he says. Though he suddenly has answers, he's not the least bit pleased to share them.
"What's the dollar amount of the average claim, whether it's paid or denied?"
There's a long pause as he thinks about this. I think he's given up. He just wants to get through, get himself off the witness stand and out of Memphis.
"On the average, somewhere around five thousand dollars a claim."
"Some claims are worth just a few hundred dollars, correct?"
"Yes."
"And some claims are worth tens of thousands, correct?"
"Yes."
"So it's hard to say what's average, right?"
"Yes."
"Now, these averages and percentages you've just given me, are they fairly typical throughout the industry, or are they unique to Great Benefit?"
"I can't speak for the industry."
"So you don't know?"
"I didn't say that."
"So you do know? Just answer the question."
His shoulders sag a bit. The man just wants out of this room. "I'd say they're pretty average."
"Thank you." I pause for effect here, study my notes for a second, change gears, wink at Deck, who eases from the courtroom. "Just a couple more, Mr. Lufkin. Did you suggest to Jackie Lemancyzk that she should quit?"
"I did not."
"How would you rate her performance?"
"Average."
"Do you know why she was demoted from the position of senior claims examiner?"
"As I recall, it had something to do with her skills in handling people."
"Did she receive any type of termination pay when she resigned?"
"No. She quit."
"No compensation of any kind?"
"No."
"Thank you. Your Honor, I'm through with this witness."
Drummond has two choices. He can either use Lufkin now, on direct exam with no leading questions, or he can save him for later. It will be impossible to prop up this guy, and I have no doubt Drummond will get him out of here as soon as possible.
"Your Honor, we're going to keep Mr. Lufkin for later," Drummond says. No surprise. The jury will never see him again.
"Very well. Call your next witness, Mr. Baylor."
I say this at full volume. "The plaintiff calls Jackie Lemancyzk."
I turn quickly to see the reaction of Underhall and Aldy. They're in the process of whispering to each other,
and they freeze when they hear her name. Their eyes bulge, mouths open in complete and total surprise.
Poor Lufkin is about halfway to the double doors when lie hears the news. He stops cold, whirls wild-eyed at the defense table, then walks even faster from the courtroom.
As his boys scramble around him, Drummond is on his feet. "Your Honor, may we approach the bench?"
Kipler waves us up where he is to huddle away from the microphone. My opponent is pretending to be incensed. I'm sure he's surprised, but he has no right to cry foul. He's almost hyperventilating. "Your Honor, this is a complete surprise," he hisses. It's important for the jury not to hear his words or see his shock.
"Why?" I ask smugly. "She's listed as a potential witness in the pretrial order."
"We have a right to be forewarned. When did you find her?"
"Didn't know she was lost."
"It's a fair question, Mr. Baylor," His Honor says, frowning at me for the first time in history. I give them both an innocent look as if to say, "Hey, I'm just a rookie. Gimme a break."
"She's in the pretrial order," I insist, and, frankly, all three of us know she's going to testify. Perhaps I should've informed the court yesterday that she was in town, but, hey, this is my first trial.
She follows Deck into the courtroom. Underhall and Aldy refuse to look at her. The five stiffs from Trent & Brent watch every step. She cleans up nicely. A loose-fitting blue dress hangs on her thin body and falls just above her knees. Her face looks much different from last night, much prettier. She takes her oath, sits in the witness chair, shoots one hateful look at the boys from Great Benefit and is ready to testify.
I wonder if she's slept with Underhall or Aldy. Last
night she mentioned LufMn and one other, but I know I didn't get a full history.
We cover the basics quickly, then move in for the kill.
"How long did you work for Great Benefit?"
"Six years."
"And when did your employment end?"
"October 3."
"How did it end?"
"I was fired."
"You didn't resign?"
"No. I was fired."
"Who fired you?"
"It was a conspiracy. Everett Lufian, Kermit Aldy, Jack Underhall and several others." She nods at the guilty parties, and all necks twist toward the boys from Great Benefit.
I approach the witness and hand her a copy of her letter of resignation. "Do you recognize this," I ask.
"This is a letter I typed and signed," she says.
"The letter states that you're quitting for personal reasons."
"The letter is a lie. I was fired because of my involvement in the claim of Donny Ray Black, and because I was scheduled to give a deposition on October 5. I was fired so the company could claim I no longer worked there."
"Who made you write this letter?"
"The same ones. It was a conspiracy."
"Can you explain it to us?"
She looks at the jurors for the first time, and they are all looking at her. She swallows hard, and starts talking. "On the Saturday before my deposition was scheduled, I was asked to come to the office. There I met with Jack Underhall, the man sitting over there in the gray suit. He's one of the in-house lawyers. He told me I was leaving immediately, and that I had two choices. I could call it a
firing, and leave with nothing. Or, I could write that letter, call it a resignation and the company would give me ten thousand dollars in cash to keep quiet. And I had to make the decision right there, in his presence."
She was able to talk about this last night without emotion, but things are different in open court. She bites her lip, struggles for a minute, then is able to move on. "I'm a single mother with two children, and there are lots of bills. I had no choice. I was suddenly out of work. I wrote the letter, took the cash and signed an agreement to never discuss any of my claims files with anybody."
"Including the Black file?"
"Specifically the Black file."
"Then if you took the money and signed the agreement, why are you here?"
"After I got over the shock, I talked to a lawyer. A very good lawyer. He assured me the agreement I signed was illegal."
"Do you have a copy of the agreement?"
"No. Mr. Underhall wouldn't let me keep one. But you can ask him. I'm sure he has the original." I slowly turn and stare at Jack Underhall, as does every other person in the courtroom. His shoelaces have suddenly become the center of his life, and he's fiddling with them, seemingly oblivious to her testimony,
I look at Leo Drummond, and for the first time see the look of complete defeat. His client, of course, didn't tell him about the cash bribery or the agreement signed under duress.
"Why did you see a lawyer?"
"Because I needed advice. I was wrongfully terminated. But before that, I was discriminated against because I was a woman, and I was sexually harassed by various executives at Great Benefit."
"Anybody we know?"
"Objection, Your Honor," Drummond says. "This might be fun to talk about, but it's not relevant to the case."
"Let's see where it goes. I'll overrule for now. Please answer the question, Ms. Lemancyzk."
She takes a deep breath, says, "I had sex with Everett Lufkin for three years. As long as I was willing to do whatever he wanted, my pay was increased and I was promoted. When I got tired of it and stopped, I was demoted from senior claims examiner to claims handler. My pay was cut by twenty percent. Then, Russell Krokit, who was at that time the senior claims supervisor but was fired when I was, decided he'd like to have an affair. He forced himself on me, told me if I didn't play along then I'd be out of work. But if I'd be his girl for a while, he'd make sure I got another promotion. It was either put out, or get out."
"Both of these men are married?"
"Yes, with families. They were known to prey on the young girls in claims. I could give you a lot of names. And these weren't the only two hotshots who traded promotions for sex."
Again, all eyes turn to Underhall and Aldy.
r pause here to check something on my desk. It's just a little courtroom ploy I've sort of learned to allow juicy testimony to hang in the air before moving on.
I look at Jackie, and she dabs her eyes with a tissue. They're both red right now. The jury is with her, ready to kill for her.
"Let's talk about the Black file," I say. "It was assigned to you."
"That's correct. The initial claim form from Mrs. Black was assigned to me. Pursuant to company policy at that time, I sent her a letter of denial."
"Why?"
"Why? Because all claims were initially denied, at least in 1991."
"All claims?"
"Yes. It was our policy to deny every claim initially, then review the smaller ones that appeared to be legitimate. We eventually paid some of those, but the big claims were never paid unless a lawyer got involved."
"When did this become policy?"
"January 1, 1991. It was an experiment, sort of a scheme." I'm nodding at her. Get on with it. "The company decided to deny every claim over one thousand dollars for a twelve-month period. It didn't matter how legitimate the claim was, it was simply denied. Many of the smaller claims were also ultimately denied if we could find any arguable reason. A very few of the larger claims were paid, and, again, only after the insured hired a lawyer and started threatening."
"How long was this policy in effect?"
"Twelve months. It was a one-year experiment. It had never been done before in the industry, and it was generally viewed by management as a wonderful idea. Deny for a year, add up the money saved, deduct the amount spent on quickie court settlements, and there's a pot of gold left."
"How much gold?"
"The scheme netted an extra forty million or so."
"How do you know this?"
"You stay in bed long enough with these miserable men and you hear all sorts of trash. They'll tell everything. They'll talk about their wives, their jobs. I'm not proud of this, okay? I didn't get one moment of pleasure from it. I was a victim." Her eyes are red again, and her voice shakes a little.
Another long pause as I review my notes. "How was the Black claim treated?"
"Initially, it was denied like all the rest. But it was a big claim, and coded differently. When the words 'acute leukemia' were noticed, everything I did was monitored by Russell Krokit. At some point early on, they realized that the policy did not exclude bone marrow transplants. It became a very serious file for two reasons. First, it was suddenly worth a ton of money, money the company obviously didn't want to pay. And secondly, the insured was terminally ill."
"So the claims department knew Donny Ray Black was going to die?"
"Of course. His medical records were clear. I remember one report from his doctor saying the chemo went well but the leukemia would be back, probably within a year, and that it eventually would be fatal unless his patient received the bone marrow transplant."
"Did you show this to anyone?"
"I showed it to Russell Krokit. He showed it to his boss, Everett Lufkin. Somewhere up there the decision was made to continue the denial."
"But you knew the claim should be paid?"
"Everybody knew it, but the company was playing the odds."
"Could you explain this?"
"The odds that the insured wouldn't consult a lawyer."
"Did you know what the odds were at the time?"
"It was commonly believed that no more than one out of twenty-five would talk to a lawyer. That's the only reason they started this experiment. They knew they could get by with it. They sell these policies to people who are not that educated, and they count on their ignorance to accept the denials."
"What would happen when you received a letter from an attorney?"
"It became a very different situation. If the claim was
under five thousand dollars and legitimate, we paid it immediately with a letter of apology. Just a corporate mix-up, you know, that type of letter. Or maybe our computers were to blame. I've sent a hundred such letters. If the claim was over five thousand dollars, then the file left my hands and went to a supervisor. I think they were almost always paid. If the lawyer had filed suit or was on the verge of filing, the company would negotiate a confidential settlement."
"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 com-
ing. 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, pf 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.