ONE GREAT ADVANTAGE IN BEING A rookie is that I'm expected to be scared and jittery. The jury knows I'm just a kid with no experience. So expectations are low. I've developed neither the skill nor the talent to deliver great summations.
It would be a mistake to attempt to be something I'm not. Maybe in my later years when my hair is grayer and my voice is oily and I have hundreds of courtroom brawls under my belt, maybe then I can stand before a jury and give a splendid performance. But not today. Today I'm just Rudy Baylor, a nervous kid asking his friends in the jury box to help.
I stand before them, quite tense and frightened, and try to relax. I know what I'll say because I've said it a hundred times. But it's important not to sound rehearsed. I begin by explaining that this is a very important day for my clients because it's their only chance to receive justice from Great Benefit. There's no tomorrow, no second chance in court, no other jury waiting to help them. I ask them to consider Dot and what she's been through. I talk
a little about Donny Ray without being overly dramatic. I ask the jurors to imagine what it would be like to be slowly and painfully dying when you know you should be getting the treatment to which you're entitled. My words are slow and measured, very sincere, and they find their mark. I'm talking in a relaxed tone, and looking directly into the faces of twelve people who are ready to roll.
I cover the basics of the policy without much detail, and briefly discuss bone marrow transplants. I point out that the defense offered no proof contrary to Dr. Kord's testimony. This medical procedure is far from experimental, and quite probably would've saved Donny Ray's life.
My voice picks up a bit as I move to the fun stuff. I cover the hidden documents and the lies that were told by Great Benefit. This played out so dramatically in trial that it would be a mistake to belabor it. The beauty of a four-day trial is that the important testimony is still fresh. I use the testimony from Jackie Lemancyzk and the statistical data from Great Benefit, and put some figures on a chalkboard: the number of policies in 1991, the number of claims and, most important, the number of denials. I keep it quick and neat so a fifth-grader could grasp it and not forget it. The message is plain and irrefutable. The unknown powers in control of Great Benefit decided to implement a scheme to deny legitimate claims for a twelvemonth period. In Jackie's words, it was an experiment to see how much cash could be generated in one year. It was a cold-blooded decision made out of nothing but greed, with absolutely no thought given to people like Donny Ray Black.
Speaking of cash, I take the financial statements and explain to the jury that I've been studying them for four months and still don't understand them. The industry has its own funny accounting practices. But, using the com-
pany's own figures, there's plenty of cash around. On the chalkboard, I add the available cash, reserves and undistributed surpluses, and tally up the figure of four hundred and seventy-five million. The admitted net worth is four hundred and fifty million.
How do you punish a company this wealthy? I ask this question, and I see gleaming eyes staring back at me. They can't wait!
I use an example that's been around for many years. It's a favorite of trial lawyers, and I've read a dozen versions of it. It works because it's so simple. I tell the jury that I'm just a struggling young lawyer, scratching to pay my bills, not too far removed from law school. What if I work hard and am very frugal, save my money, and two years from now I have ten thousand dollars in the bank? I worked very hard for this money and I want to protect it. And what if I do something wrong, say, lose my temper and pop somebody in the nose, breaking it? I, of course, will be required to pay the actual damages incurred by my victim, but I will also need to be punished so I won't do it again. I have only ten thousand dollars. How much will it take to get my attention? One percent will be a hundred dollars, and that may or may not hurt me. I wouldn't want to fork over a hundred bucks, but it wouldn't bother me too much. What about five percent? Would a fine of five hundred dollars be enough to punish me for breaking a man's nose? Would I suffer enough when I wrote the check? Maybe, maybe not. What about ten percent? I'll bet that if I was forced to pay a thousand dollars, then two things would happen. Number one, I'd truly be sorry. Number two, I'd change my ways.
How do you punish Great Benefit? The same way you'd punish me or the guy next door. You look at the bank statement, decide how much money is available, and you
levy a fine that will hurt, but not break. Same for a rich corporation. They're no better than the rest of us.
I tell the jury the decision is best left to them. We've sued for ten million, but they're not bound by that number. They can bring back whatever they want, and it's not my place to suggest an amount.
I close with a smile of thanks, then I tell them that if they don't stop Great Benefit, they could be next. A few nod and a few smile. Some look at the figures on the board.
I walk to my table. Deck is in the corner grinning from ear to ear. On the back row, Cooper Jackson gives me a thumbs-up. I sit next to Dot, and anxiously wait to see if the great Leo F. Drummond can snatch victory from defeat.
He begins with a drippy apology for his performance during jury selection, says he fears he got off on the wrong foot, and now wants to be trusted. The apologies continue as he talks about his client, one of the oldest and most respected insurance companies in America. But it made mistakes with this claim. Serious mistakes. Those dreadful denial letters were horribly insensitive and downright abusive. His client was dead wrong. But his client has over six thousand employees and it's hard to monitor the movements of all these people, hard to check all the correspondence. No excuses, though, no denials. Mistakes were made.
He pursues this theme for a few minutes, and does a fine job of painting his client's actions as merely accidental, certainly not deliberate. He tiptoes around the claim file, the manuals, the hidden documents, the exposed lies. The facts are a minefield for Drummond, and he wants to go in other directions.
He frankly admits that the claim should've been paid, all two hundred thousand dollars of it. This is a grave
admission, and the jurors absorb it. He's trying to soften them up, and it's effective. Now, for the damage control. He's nothing but bewildered at my suggestion that the jury should consider awarding Dot Black a percentage of Great Benefit's net worth. It's shocking! What good would that do? He's admitted his client was wrong. Those responsible for this injustice have been terminated. Great Benefit has cleaned up its act.
So what will a large verdict accomplish? Nothing, absolutely nothing.
Drummond carefully eases into an argument against unjust enrichment. He has to be careful not to offend Dot, because he will also offend the jury. He states some facts about the Blacks; where they live, for how long, the house, the neighborhood, etcetera. In doing so, he portrays them as a very average, middle-class family living simple but happy lives. He's quite generous. Norman Rockwell couldn't paint a better picture. I can almost see the shady streets and the friendly paperboy. His setup is perfect, and the jurors are listening. He's describing either the way they live or the way they want to live.
Why would you, the jurors, want to take money from Great Benefit and give it to the Blacks? It would upset this pleasant picture. It would bring chaos to their lives. It would make them vastly different from their neighbors and friends. In short, it would wreck them. And is anyone entitled to the kind of money that I, Rudy Baylor, am suggesting? Of course not. It's unjust and unfair to take money from a corporation simply because the money's available.
He walks to the chalkboard and writes the figure of $746, and tells the jury this is the monthly income for the Blacks. Next to it he writes the sum of $200,000, and multiplies it by six percent to get the figure of $12,000. He then tells the jury what he really wants, and that's to
double the Blacks' monthly income. Wouldn't we all like that? It's easy. Award the Blacks the $200,000 that the transplant would've cost, and if they'll invest the money in tax-free bonds at six percent, then they'll have $1,000 a month in tax-free income. Great Benefit will even agree to do the investing for Dot and Buddy.
What a deal!
He's done this enough to make it work. The argument is very compelling, and as I study the faces I see the jurors considering it. They study the board. It seems like such a nice compromise.
It is at this point that I hope and pray they remember Dot's vow to give the money to the American Leukemia Society.
Drummond ends with an appeal for sanity and fairness. His voice deepens and his words get slower. He's nothing but sincerity. Please do what is fair, he asks, and takes his seat.
Since I'm the plaintiff, I get the last word. I've saved ten minutes of my alloted half-hour for rebuttal, and as I walk to the jury I'm smiling. I tell them that I hope one day I'll be able to do what Mr. Drummond has just done. I praise him as a skilled courtroom advocate, one of the best in the country. I'm such a nice kid.
I have just a couple of comments. First, Great Benefit now admits it was wrong and in effect offers two hundred thousand dollars as a peace offering. Why? Because right now they're chewing their fingernails as they fervently pray that they get hit with nothing more than two hundred thousand. Second, did Mr. Drummond admit these mistakes and offer the money when he addressed the jury Monday morning? No, he did not. He knew everything then that he knows now, so why didn't he tell you up front that his client was wrong? Why? Because they were hop-
ing then that you wouldn't learn the truth. And now that you know the truth, they've become downright humble.
I close by actually provoking the jury. I say, "If the best you can do is two hundred thousand dollars, then just keep it. We don't want it. It's for an operation that will never take place. If you don't believe that Great Benefit's actions deserve to be punished, then keep the two hundred thousand and we'll all go home." I slowly look into the eyes of each juror as I step along the box. They will not let me down.
"Thank you," I say, and take my seat next to my client. As Judge Kipler gives them their final instructions, an intoxicating feeling of relief comes over me. I relax as never before. There are no more witnesses or documents or motions or briefs, no more hearings or deadlines, no more worries about this juror or that. I breathe deeply and sink into my chair. I could sleep for days.
This calm lasts for about five minutes, until the jurors leave to begin their deliberations. It's almost ten-thirty.
The waiting now begins.
DECK AND I walk to the second floor of the courthouse and file the Hiker divorce, then we go straight to Kipler's office. The judge congratulates me on a fine performance, and I thank him for the hundredth time. I do, however, have something else on my mind, and I show him a copy of the divorce. I quickly tell him about Kelly Riker and the beatings and her crazy husband, and ask him if he'll agree to emergency injunctive relief to prohibit Mr. Riker from getting near Mrs. Riker. Kipler hates divorces, but I have him captive. This is fairly routine in domestic abuse cases. He trusts me, and signs the order. No word on the jury. They've been out for fifteen minutes.
Butch meets us in the hallway and takes a copy of the divorce, the order just signed by Kipler and the summons.
He has agreed to serve Cliff Riker at work. I ask him again to try and do it without embarrassing the boy.
We wait in the courtroom for an hour, Drummond and his gang huddled on one side. Me, Deck, Cooper Jackson, Hurley and Grunfeld all grouped together on the other. I'm amused to observe the suits from Great Benefit keeping their distance from their lawyers, or maybe it's the other way around. Underhall, Aldy and Lufkin sit on the back row, their faces glum. They're waiting for a firing squad.
At noon, lunch is sent into the jury room, and Kipler sends us away until one-thirty. I couldn't possibly keep food in my stomach, the way it's flipping and whirling. I call Kelly on the car phone as I race across town to Robin's apartment. Kelly is alone. She's dressed in a pair of baggy sweats and borrowed sneakers. She has neither clothing nor toiletries with her. She walks gingerly, in great pain. I help her to my car, open the door, ease her inside, lift her legs and swing them around. She grits her teeth and doesn't complain. The bruises on her face and neck are much darker in the sunlight.
As we leave the apartment complex, I catch her glancing around, as if she expects Cliff to jump from the shrubs. "We just filed this," I say, handing her a copy of the divorce. She holds it to her face and reads it as we move through traffic.
"When does he get it?" she asks.
"Right about now."
"He'll go crazy."
"He's already crazy."
"He'll come after you."
"I hope he does. But he won't, because he's a coward. Men who beat their wives are the lowest species of cowards. Don't worry. I have a gun/' a a a a
THE HOUSE IS OLD, unmarked and does not stand out from the others on the street. The front lawn is deep and wide and heavily shaded. The neighbors would have to strain to see any movement. I stop at the end of the drive and park behind two other cars. I leave Kelly in the car and knock on a side door. A voice over an intercom asks me to identify myself. Security is a priority here. The windows are all completely shaded. The backyard is lined with a wooden fence at least eight feet high.
The door opens halfway, and a hefty young woman looks at me. I'm in no mood for confrontation. I've been in trial for five days now, and I'm ready to snap. "Looking for Betty Norvelle," I say.
"That's me. Where's Kelly?"
I nod to the car.
"Bring her in."
I could easily carry her, but the backs of her legs are so tender it's easier for her to walk. We inch along the sidewalk, and onto the porch. I feel as though I'm escorting a ninety-year-old grandmother. Betty smiles at her and shows us into a small room. It's an office of some sort. We sit next to each other at a table with Betty on the other side. I talked to her early this morning, and she wants copies of the divorce papers. She reviews these quickly. Kelly and I hold hands.
"So you're her lawyer," Betty says, noticing the hand-holding.
"Yes. And a friend too."
"When are you supposed to see the doctor again?"
"In a week," Kelly says.
"So you have no ongoing medical needs?"
"No." • "Medication?"
"Just some pain pills."
The paperwork looks fine. I write a check for two hundred dollars-a deposit, plus the first day's fee.
"We are not a licensed facility," Betty explains. "This is a shelter for battered women whose lives are in danger. It's owned by a private individual, an abused woman herself, and it's one of several in this area. Nobody knows we're here. Nobody knows what we do. We'd like to keep it that way. Do both of you agree to keep this confidential?"
"Sure." We both nod, and Betty slides a form over for us to sign.
"This is not illegal, is it?" Kelly asks. It's a fair question given the ominous surroundings.
"Not really. The worst they could do would be to shut us down. We'd simply move somewhere else. We've been here for four years, and nobody's said a word. You realize that seven days is the maximum stay?"
We understand this.
"You need to start making plans for your next stop."
I'd love for it to be my apartment, but we haven't discussed this yet.
"How many women are here?" I ask,
"Today, five. Kelly, you'll have your own room with a bath. Food's okay, three meals a day. You can eat in your room or with the rest. We don't offer medical or legal advice. We don't counsel or have sessions. All we offer is love and protection. You're very safe here. No one will find you. And we have a guard with a gun around here someplace."
"Can he come visit?" Kelly asks, nodding at me.
"We allow one visitor at a time, and each visit has to be approved. Call ahead for clearance, and make sure you're not followed. Sorry, though, we can't allow you to spend the night."
"That's fine," I say.
"Any more questions? If not, I need to show Kelly around. You're welcome to visit tonight."
I can take a hint. I say good-bye to Kelly, and promise to see her later tonight. She asks me to bring a pizza. It is, after all, Friday night.
As I drive away, I feel as though I've introduced her to the underground.
A REPORTER from a newspaper in Cleveland catches me in the hallway outside the courtroom, and wants to talk about Great Benefit. Did I know that the Ohio Attorney General is rumored to be investigating the company? I say nothing. He follows me into the courtroom. Deck is alone at the counsel table. The defense lawyers are telling jokes across the room. No sign of Kipler. Everyone's waiting.
Butch served papers on Cliff Riker as he was leaving for a quick lunch. Riker offered some lip. Butch didn't back down, declared himself ready to rumble and Riker left in a hurry. My name is on the summons, so from this point on I'll be watching my back.
Others drift in as the time approaches two o'clock. Booker shows up and sits with us. Cooper Jackson, Hurley and Grunfeld return from a long lunch. They've had several drinks. The reporter sits on the back row. No one will talk to him.
There are lots of theories about jury deliberations. A quick verdict is supposed to favor the plaintiff in a case like this. The passing of time means the jury's deadlocked. I listen to these unfounded speculations and I cannot sit still. I walk outside for a drink of water, then to the rest room, then to the snack bar. Walking is better than sitting in the courtroom. My stomach churns violently and my heart pounds like a piston.
Booker knows me better than anyone, and he joins
these walks. He's nervous too. We poke along the marble hallways going nowhere, just killing time. And waiting. In times of great turmoil, it's important to be with friends. I thank him for coming. He said he wouldn't miss it for the world.
By three-thirty, I'm convinced I've lost. It should've been a slam-dunk decision, a simple matter of picking a percentage and calculating the result. Maybe I've been too confident. I recall one awful story after another about pathetically low verdicts in this county. I'm about to become a statistic, another example of why a lawyer in Memphis should take any decent offer to settle. Time passes with excruciating delay.
From somewhere far away, I hear my name being called. It's Deck, outside the courtroom doors, waving desperately for me. "Oh my God," I say.
"Just be cool," Booker says, then both of us practically race to the courtroom. I take a deep breath, say a quick prayer and step inside. Drummond and the other four are in their seats. Dot sits alone at our table. Everyone else is in place. The jury is filing into the box as I walk through the gate in the railing and sit next to my client. The faces of the jurors reveal nothing. When they're seated, His Honor asks, "Has the jury reached a verdict?"
Ben Charnes, the young black college graduate, and foreman of the jury, says, "We have, Your Honor."
"Is it written on paper according to my instructions?"
"Yes sir."
"Please stand and read it."
Charnes rises slowly. He's holding a sheet of paper that's visibly shaking. It is not shaking as violently as my hands. My breathing is quite labored. I'm so dizzy I feel faint. Dot, however, is remarkably calm. She's already won her battle with Great Benefit. They admitted in open court that they were wrong. Nothing else matters to her.
I'm determined to keep a straight face and display no emotion, regardless of the verdict. I do this the way I've been trained. I scribble on a legal pad. A quick glance to my left reveals the same strategy being employed by all five defense lawyers.
Charnes clears his throat, and reads, "We, the jury, find for the plaintiff and award actual damages in the amount of two hundred thousand dollars." There is a pause. All eyes are on the sheet of paper. So far, no surprises. He clears his throat again, says, "And, we, the jury, find for the plaintiff, and award punitive damages in the amount of fifty million dollars."
There's a gasp from behind me, and general stiffening around the defense table, but all else is quiet for a few seconds. The bomb lands, explodes and after a delay everyone does a quick search for mortal wounds. Finding none, it's possible to breathe again.
I actually write these sums on my legal pad, though the chicken scratch is illegible. I refuse to smile, though I'm forced to bite a hole in my bottom lip to achieve this effect. There are lots of things I want to do. I'd love to bound onto the table and gyrate like an idiot football player in the end zone. I'd love to dash to the jury box and start kissing feet. I'd love to strut around the defense table with some obnoxious in-your-face taunting. I'd love to leap onto the bench and hug Tyrone Kipler.
But I maintain my composure, and simply whisper, "Congratulations," to my client. She says nothing. I look at the bench and His Honor is inspecting the written verdict which the clerk has handed him. I look at the jury, and most of them are looking at me. It's impossible at this point not to smile. I nod and silently say thanks.
I make a cross on my legal pad and under it write the name-Donny Ray Black. I close my eyes and recall my favorite image of him; I see him sitting in the folding chair
at the softball game, eating popcorn and smiling just because he was there. My throat thickens and my eyes water. He didn't have to die.
"The verdict appears to be in order," Kipler says. Very much in order, I'd say. He addresses the jury, thanks them for their civic service, tells them their meager checks will be mailed out next week, asks them not to talk about the case with anyone and says they are free to leave. Under the direction of the bailiff, they file from the courtroom for the last time. I'll never see them again. Right now, I'd like to give them each a cool million.
Kipler too is struggling to keep a straight face. "We'll argue post-trial motions in a week or so. My secretary will send you a notice. Anything further?"
I just shake my head. What more could I ask for?
Without standing, Leo says softly, "Nothing, Your Honor." His team is suddenly busy stuffing papers in briefcases and files in boxes. They can't wait to get out of here. It is, by far, the largest verdict in the history of Tennessee, and they'll be forever tagged as the guys who got clobbered with it. If I wasn't so tired and so stunned, I might walk over and offer to shake their hands. This would be the classy thing to do, but I just don't feel like it. It's much easier to sit here close to Dot and stare at Donny Ray's name on my legal pad.
I'm not exactly rich. The appeal will take a year, maybe two. And the verdict is so enormous that it will face a vicious attack. So, I have my work cut out for me.
Right now, though, I'm sick of work. I want to get on a plane and find a beach.
Kipler raps his gavel, and this trial is officially over. I look at Dot and see the tears. I ask her how she feels. Deck is quickly upon us with congratulations. He's pale but grinning, his four perfect front teeth shining. My attention is on Dot. She's a hard woman who cries with
great reluctance, but she's slowly losing it. I pat her arm, and hand her a tissue.
Booker squeezes the back of my neck, and says he'll call me next week. Cooper Jackson, Hurley and Grunfeld stop by the table, beaming and full of praise. They need to catch a plane. We'll talk Monday. The reporter approaches, but I wave him off. I half-ignore these people because I'm worried about my client. She's collapsing now, the sobbing is getting louder.
I also ignore Drummond and his boys as they load themselves like pack mules and make a speedy exit. Not a word is spoken between us. I'd love to be a fly on the wall at Trent & Brent right now.
The court reporter and bailiff and clerk tidy up their mess and leave. The courtroom is empty except for me, Dot and Deck. I need to go speak to Kipler, to thank him for holding my hand and making it possible. I'll do it later. Right now I'm holding Dot's hand as she's unloading a torrent. Deck sits beside us, saying nothing. I say nothing. My eyes are moist, my heart is aching. She cares nothing for the money. She just wants her boy back.
Someone, probably the bailiff, hits a switch in the narrow hallway near the jury room, and the lights go off. The courtroom is semidark. None of us moves. The crying subsides. She wipes her cheeks with the tissue and sometimes with her fingers.
"I'm sorry," she says hoarsely. She wants to go now, so we decide to leave. I pat her arm as Deck gathers our junk and packs it in three briefcases.
We exit the unlit courtroom, and step into the marble hallway. It's almost five, Friday afternoon, and there's not much activity. There are no cameras, no reporters, no mob waiting for me to capture a few words and images from the lawyer of the moment.
In fact, no one notices us.