by A. Turk
The four hours of hard work resulted in ten draft-scheduling orders, which set deadlines over the next five and a half years. The trials were scheduled about five months apart with the first case being set sometime in January 1994. The attorneys were in general agreement on the order of the deadlines. The group was able to agree that in the ten cases there were at least eighty-eight specific individuals who had to be deposed, including twenty-three plaintiffs. These witnesses included the injured plaintiffs, their spouses, and the ten Malone children.
The parties agreed that certain depositions, known as common depositions, would be taken only once and then used in all ten cases, which would save both time and money. There were at least forty-eight common depositions; the cost would be shared among Davis’s ten clients.
Apart from the common depositions, Davis would have deposed at least seventeen witnesses whose testimony would pertain only to a single case. Everyone agreed that it was impossible at that point to set specific depositions until the order of the cases was determined. The attorneys brought their calendars and set aside seventy-six days between Thanksgiving 1992 and July 4th, 1993, to take depositions in the Plainview cases. Coordinating seventy-six dates for depositions among at least four lawyers’ calendars was a monumental feat. The lawyers would later determine which depositions would be taken on which dates. The order of depositions would be determined based upon the availability of the witnesses.
It was a delicate balance for the plaintiffs. Davis and Morty wanted to push the cases to trial, yet they had to give themselves sufficient time to prepare each case.
Despite the general agreement among counsel, the previous night’s meeting ended badly. Without any intent, Davis happened to glance over at Stevenson’s open folder and discovered that Stevenson had a generic letter that Davis sent to all ten of his own clients. Like Morty, Davis could read upside down. Davis was outraged that Stevenson had the document. The letter notified Davis’s clients of the upcoming scheduling conference and had no strategic value, but Davis’s concern was that Stevenson had the letter. There was a leak, and eventually that leak would provide critical information to the defense. The leak had to be plugged or used to the plaintiffs’ advantage.
Before leaving Stevenson’s office, Davis took Morty aside and revealed what Stevenson had. Morty pointed out that only their clients, their clients’ families, or someone with access to the ten mailboxes could have taken and provided the letter to adversary counsel. Morty convinced Davis not to confront Stevenson and instead figure out a way to use the theft of their communications to their advantage.
Davis took Morty’s advice but could not control his emotions. His attitude changed during the last part of the meeting when he accused Grayson Stevenson of trying to manipulate the jury and the outcome of the trial. The parties could not agree on trial venues or the order the cases would be tried. Davis argued that his clients could not get a fair and unbiased trial in Plains County. The hospital was the largest employer in the county, and people not working at the hospital were related to or friends with someone employed there.
Stevenson argued that the defendants had a right to try the cases before the citizens of Plains County, not by strangers. Stevenson’s position was generally correct under Tennessee law. Therefore, the burden was on Davis to prove that a fair trial was impossible. Under the law, Davis would have to present at least three affidavits of disinterested citizens that a fair trial was impossible in Plains County. The final decision about where the trials would be held would be within the discretion of Judge Boxer.
After the meeting, Morty suggested that their plan should be to isolate those persons whom they suspected had fed the defendants the letter and feed them harmless false information. If they could reduce the number of suspects to five or six, they could vary the false information to isolate the traitor. If they could discover the identity of the source, the defendants and their counsel would be in trouble.
Morty and Davis had no problem with defense counsel trying to manipulate the verdict by who sat on the jury. An attempt to manipulate the order of the cases was a legitimate goal of defense counsel. That was their job, but using stolen letters crossed the line.
The order in which the cases were tried was critical. Whether the defendants were negligent was an important question. The more important question, however, was whether the first jury found recklessness and awarded punitive damages, and the dollar amount awarded to the first plaintiff was most important. The dollar amount of compensatory damages depended on the specific circumstances of each case and the extent of the plaintiff injuries. Another factor in the amount of the award was just how likable the plaintiff was. Whether punitive damages were awarded was a matter of how upset Davis could get the jury. The jury needed to want to punish the defendants.
In contrast, the defense wanted to try the cases where the patient suffered the least damages first, thereby burning up Davis’s limited resources. The outcome of this scheduling conference and its resulting order were critical to the cases.
At nine o’clock sharp, Judge Boxer entered the courtroom. Everyone stood in deference. Boxer’s clerk recited the traditional opening of court, and Boxer started the proceeding.
“Where are we on an agreed scheduling order? I would prefer that you gentlemen and lady work this out without my intervention.”
Stevenson rose and advised the court that counsel for the parties had worked diligently and cooperatively on the scheduling orders. He admitted to the court that some issues were not yet resolved that required the court’s guidance. Stevenson noted the issues of trial venue and the order of the cases. Stevenson’s presentation was evenhanded. Davis stood and confirmed that Mr. Stevenson correctly identified the remaining issues to be resolved by the court.
Boxer instructed Stevenson to hand the draft scheduling orders to his clerk, who promptly delivered it to Boxer. Boxer spent several minutes scanning the documents. Davis could tell from Boxer’s face that the judge did not expect as much progress from these adversaries.
The judge decided to praise them: “I’m pleased. These draft orders show hard work, cooperation, and reasonableness on everyone’s part. As to the venue of these trials, I agree with Mr. Davis that a change of venue motion is appropriate. Please file that motion by next Friday, with the supporting affidavits. Despite the heavy burden the plaintiffs must carry, I’m inclined to grant that motion. Mr. Davis, in your motion, please identify where the plaintiffs suggest these cases be tried. If changed, all of the remaining motions in these cases will be held at this venue. I would prefer Hawaii, but the statute provides that the cases must be moved to the closest courthouse where the alleged bias would not prevent a fair trial.”
Davis thought he would try a joke to loosen the mood: “What about Bermuda, Your Honor?”
“That’s a foreign territory, Mr. Davis. Just identify the proper venue in your motion.”
Davis was pleased with the court’s remarks and the predetermined granting of his motion. Boxer was inviting Davis to move the lawsuits to Hewes City. At least, it didn’t appear that these cases would be tried in Plains County.
The next issue was the order of the cases. This ruling was even more important than the venue question. Davis waited for the judge to address the issue. It was his courtroom. A moment later, Davis got the answer to his question.
“As to the order these cases will be tried, I’m not going to let Mr. Davis determine the order. I will, however, let him call heads or tails.”
Judge Boxer pulled a quarter from his pants pocket under his robe and placed it on the back of his hand near his thumb. Both Davis and Steine were astonished by the unique way to resolve a legal issue.
Davis spoke up: “You’re kidding, right?”
When the judge neither smiled nor indicated he was joking, Davis continued, “Judge, the flip of a coin is arbitrary. I object to this method of selection. The plaintiffs should select which case is tried first.”
“Can you cite a Ten
nessee case or statute, Mr. Davis?”
Davis decided not to give up so easily. “There’s no Tennessee case right on point, Your Honor, but—”
The judge interrupted, “There’s no controlling precedent. It’s my discretion, Mr. Davis. Call it in the air.”
Judge Boxer sent the quarter up in the air, and Davis yelled out, “Heads.”
“Sorry, Mr. Davis, it’s tails. Mr. Stevenson, please confer with your co-counsel and select the first case to be tried.”
Stevenson, McCoy, Barnes, and Pierce huddled and conferred for less than two minutes. Stevenson, as the appointed spokesperson for the defense, walked back to the podium and said, “The defendants select the Jones case.”
Davis groaned inwardly. That choice was a nightmare for him. The surgery was clearly unnecessary, but there were no substantial damages. The twenty-five-year-old patient had a small scar on the side of her head where Dr. English performed an unnecessary temporal artery biopsy. The scar was covered by Mrs. Jones’s hair.
Davis rose and walked to the podium. He felt anger start to surface, but he controlled his emotions. He was not afraid of Judge Boxer, but he needed to show respect. Morty had warned him, “First impressions are important, and you’ll be appearing before Boxer over the next few years, so remain poised and reasonable. Don’t show anger.”
Davis chose his words carefully: “With all due respect, the court is committing reversible error. The flip of a coin is arbitrary and cannot be a fair and impartial way to select the order of these cases.”
The judge was getting angry with Davis and asked, “What’s unfair about gravity, Mr. Davis? The plaintiffs had a fifty percent chance, and they lost. Fifty-fifty seems pretty fair to me.”
“Your Honor, because this was a scheduling conference, I did not have a court reporter present to record what was said and the court’s ruling. In the court’s order, I would ask that the court include the method the court relied upon, a flip of a coin, and the plaintiff’s objection to method.”
“I’ll include it in the order, Mr. Davis. Please select the second case to be tried.”
“I’d rather not, Your Honor. Why do we need to select the second case at this time?”
“Because I say so, Mr. Davis, and I’m the judge.”
Davis felt sick to his stomach. His argument was going badly, close to disastrous. Davis looked at Morty and shook his head in disgust. Davis looked back up at Judge Boxer. “If I have to, sir, the Malone case.”
“Mr. Davis, you’ve lost this argument. You can appeal my decision to the Court of Appeals two years from now, after we try the Jones case.”
Davis decided he better stop arguing with the judge. He was sure that Morty would scold him later.
Judge Boxer knew who was in charge. Without a motion from either side, he pronounced, “I’m also imposing a gag order. Neither side will encourage further publicity of these cases. We’ve had three articles in the Nashville papers, and over the last two months more than an hour of airtime on the Nashville stations. I assume the hospital is the party that kept these suits out of the local paper, the Plains County Gazette. No interviews. All I want to hear is ‘no comment.’”
Boxer informed all concerned that if his gag order was violated, the guilty party would be held in contempt. The punishment, depending on the act, would involve both fine and imprisonment.
“Do we understand each other, Mr. Davis?”
“Absolutely, Your Honor.” Davis didn’t like being singled out.
Davis and Stevenson alternately selected the order of all ten cases. When it was over, almost like kids in a schoolyard choosing teams, Boxer announced that court was adjourned and left the courtroom.
Davis was not happy with the outcome of the hearing or with Judge Boxer. Although Morty taught him never to show emotion in front of his adversary counsel, Davis lost his cool and slammed his fist on the table. After he did it, he knew that he made a serious tactical mistake. Morty would certainly chastise him.
CHAPTER FIFTEEN
THE LEAK HAD TO BE PLUGGED
TUESDAY, DECEMBER 22, 1992
Over the last few months Davis came to respect his niece. She not only had potential, but she jumped right in and made it happen. Her greatest fan was the old man, whom she admired and respected without question. She’d also impressed her uncle and Bella, who’d been around for more than thirty years.
After the scheduling conference, Sammie questioned Morty and her uncle about the legality of the coin flip. After much debate and further research, they decided not to appeal Judge Boxer’s ruling. It was a matter of his discretion, and Boxer had spoken. The Court of Appeals would not intervene.
In August Sammie gave up the ninth-floor loft and moved into Davis’s guest room when Morty decided to take up residence in the loft to be closer to the office. He could come and go as he pleased, and he had access to the office at night when he couldn’t sleep. Since Goldie’s death, Morty hadn’t been sleeping very well.
Sammie was glad that the old man was happy to be back downtown and at work. She was saving money by staying in her uncle’s guest room, but she missed the complete independence she had downtown. Her new living space cost only an occasional babysitting gig, and she had to admit that she enjoyed getting to know her young cousins, Caroline and Jake.
Working on the Plainview cases invigorated Morty. Davis confided in Sammie that Morty would more than earn his one-dollar retainer. Sammie was amazed at the old man’s penchant for detail. Each morning, he met with her, and while chewing on a cigar, he’d give her a list of things to do. At the end of the day, hopefully with a different cigar in Morty’s mouth, they reviewed her work product. He was patient and explained why he assigned certain tasks. It was the education of a lifetime for her, and he was an exceptional teacher.
Morty helped Davis frame the legal issues of the Plainview cases, and he then worked with Sammie, preparing discovery in each case, propounding questions and requests for documents. Morty taught Sammie the ropes, and Sammie brought to the table her computer research skills. Morty had written more than a thousand briefs in his career, but he still relied on the traditional method of research—books. The closest he came to a computer was three feet.
Sammie walked into the office library, a twenty-by-twenty-foot room lined with ten-foot-high walnut bookcases. It cost thousands each year to maintain the library with new volumes and updates. On the other hand, the computer relied on a single database, Westlaw, which automatically updated weekly.
Davis and Morty were seated next to each other at the walnut conference table. They were smoking cigars. No one would complain, though. Morty owned the building. Sammie walked into the smoky, hazy library, coughed, and sat down next to Morty. She and Morty worked all morning on a list of legal issues. She handed both men a copy of the list, which was several pages long. Davis scanned the document.
Just as the team was about to jump into the outstanding issues, Bella buzzed on the intercom, and Davis picked up.
Bella began: “I’ve got Allie Easter on the line. She seems real upset. Can you take her call?”
“Sure. There’s no point in delaying the inevitable.”
“Ms. Easter, Ben Davis. I guess you got my letter?”
“We don’t understand. Are you dropping my mother’s lawsuit?”
“No, but I am insisting that you be appointed her conservator and replace her as my client. Look, Allie, your mom can’t read. There’s no point in my sending letters to her house. I suspect that your brother, Howard, is stealing my letters and giving them to one of the defendants, probably Herman. Your brother still does odd jobs for Herman, doesn’t he? That gives him access and motive.”
“Yes, but Howard wouldn’t steal Momma’s mail. What evidence do you have to accuse my brother of such a terrible thing? He wouldn’t hurt Momma.”
Sammie learned from her contacts in Plainview, and reported to her uncle, that Howard had done odd jobs for Dr. Herman at his farm. None of the Easters
volunteered this information. That made the Davis team suspicious, and by the process of elimination, they unanimously agreed that Howard was the leak and that he was stealing his mother’s mail.
“I have no solid proof, but I’m not comfortable sending mail to your mother. If you become my client, I’ll send all my correspondence to you, and you can represent your mother’s interests and explain to her how her case is going. Edith won’t be excluded from the process, but you’d be the actual client and help me make decisions. Your mother is not capable of prosecuting her lawsuit. Your substitution for your mother is a reasonable request in light of my suspicions about your brother and because of your mother’s illiteracy.”
“Mr. Davis, you’re no better than us. Momma’s not a child who needs someone to hold her hand. She’s a grown woman who’s raised two children. We resent what you put in your letter, and even though she can’t read, she’s got just as much right to go to court as anybody else.”
“Look, Allie, I’ve got to protect my other clients. I strongly suspect that your brother is feeding information to the other side. He’s stealing it, or your mother is giving it to him. Either way, I can’t represent your mother anymore. Either you become her conservator and my client, or I must withdraw from her case. I’ve got no choice. What will it be?”
“Go to hell.”
“I’ll send you and your mother a copy of my motion to with-draw. Howard can get his copy out of your mother’s mailbox.”
“Go to hell.” Allie hung up.
Morty shook his head. “You really handled that well.”
Davis turned to Morty and said, “I know. I screwed up. She’s pissed.”
Morty smiled slightly and said, “You’d better file a motion to withdraw in Easter, ASAP.”
CHAPTER SIXTEEN
ATTEMPTED DIVISION OF LABOR
