by A. Turk
FRIDAY, JANUARY 29, 1993
Throughout the holidays, the Davis team worked their asses off and accomplished a lot. Despite this progress, Davis was angry not only at Littleton but also at himself. He reached the conclusion that Littleton was a useless piece of shit. Morty warned him, but Davis never thought Littleton would be such dead weight.
Amazingly, Littleton was worse than useless. He’d failed to show up at the scheduled deposition of Thomas Nelson, the paramedic in the Rosie Malone case. It was one of his few assigned tasks and the only deposition Davis actually asked him to attend, and he blew it. The deposition couldn’t proceed without him present, and the defense counsel wrote a nasty letter threatening to file a motion for the cost of the deposition.
Littleton delayed moving the cases forward. He refused to reimburse Davis his fair share of the advanced expenses, and he would not raise a finger to prepare the Plainview cases for trial. Ethically, according to the Code of Professional Responsibility, Littleton could not be paid one-third of the fee if he did not do one-third of the work. Davis, in correspondence, documented Littleton’s lack of participation and failure to pay his portion of the expenses.
In late December, Davis wrote Littleton a lengthy letter that identified seventy-six tasks that needed to be completed. Davis suggested that they divide the work in the Jones case and the other Plainview cases. Davis’s letter also identified more than two dozen motions and legal issues that needed to be researched. After each task, Davis placed either BAD or Littleton’s initials, BL, assigning the task. The letter was his effort to divide the labor between the two lawyers.
Davis also needed to raise the issue of expenses. He could not continue to advance Littleton’s share. Davis needed to be reimbursed, in full, $35,000. Davis would also demand that Littleton deposit another $10,000 in Davis’s escrow account for future expenses. Davis was more than willing to provide Littleton with a monthly accounting.
Davis dialed Littleton, who had been ducking his calls all week.
“Brad, it’s Ben. Just checking in on Plainview. How are you doing with the list I sent you?”
“What list?”
“In my letter from December 27th, I created a punch list in Jones and the other Plainview cases.”
“I don’t remember any list.”
“Brad, I’m looking at the fax confirmation sheet. Bella stapled it to the letter. It was received in your office on December 27th at nine fifteen. I’ll resend it to you now and call you right back.”
Davis slammed the receiver in the telephone base. He hit the intercom and asked Bella to come in: “Please fax this December 27th letter to the same idiot it was sent to on that date.”
Waiting fifteen minutes, trying his best to calm down, he picked up the phone again. “Brad, did you get the letter?”
“I’m looking at it right now. This seems like a lot of work, Ben.”
“No shit. That’s how you win lawsuits. You prepare them, and then you settle them or bring them to trial. What did you think we were going to do? Did you think they were going to simply write us a check? Brad, we’ve got to get to work.”
Littleton didn’t answer.
Davis crumpled the letter and threw it across the room. “Are you really this stupid and lazy?”
“I’ve got to go. I’ve got a meeting. I’ll look at your list and tell you which items I can get done.”
“We’ve wasted a month. We need to address this problem now!”
“I’ll get back in touch with you after I’ve reviewed the list and have had time to think about it.”
“What’s there to think about? These things need to get done, and you’re co-counsel on these cases. You’ll either do them or not.”
“Who died and made you king?”
“Listen, you prick, I’m lead counsel, and I’ve advanced every fucking penny in these cases. I need you to write me a check for $35,000 to cover your share of expenses that have already been incurred. Then, I want you to write me a second check for $10,000 to be deposited in my escrow account for your share of future expenses. I’ll provide a monthly accounting to you.”
“Got to go. We’ll talk soon.”
Littleton hung up before Davis could respond. Davis wanted to hit something or, better yet, someone.
My home life and practice would be much more pleasant if I had never heard of these cases from Littleton and then trusted him. Liza is making sure that I don’t forget how hard our savings have been hit, and some of my oldest clients are becoming testy about my lack of availability. I’m pretty tired of Plainview and especially Littleton.
As Davis was thinking about these issues, Bella buzzed in.
“What?” Davis asked much too loudly. He immediately apologized: “Sorry, that bastard Littleton hung up on me. I have no right to take it out on you. What’s up?”
“Ben, we just got a certified letter from McCoy and another from Pierce. I signed for them. Do you want me to open them or bring them back?”
Hoping that they were settlement offers in the Plainview cases, Davis asked her to bring them back. Davis could not have been more surprised by the contents of McCoy’s letter. The envelope contained three documents. The first was a letter from McCoy to the Board of Professional Responsibility of the Tennessee Supreme Court charging Davis with filing the Easter complaint against his client without the permission of Mrs. Easter and misleading her about the lawsuit. Attached to the complaining letter was an affidavit of Edith Easter. The second document was a letter to Judge Robert E. Lee Boxer making identical charges that the Easter case had been wrongfully filed in Plains County Circuit Court, and the Easter affidavit was also attached to the letter to the judge. The third document was a motion for costs against Davis personally for the costs incurred by Dr. Herman in the Easter case; once again the Easter affidavit was attached. Pierce’s envelope held identical letters to the board and Boxer and an almost identical motion by English for his costs incurred in the Easter case.
Davis buzzed Morty, who was resting in the loft. He also asked Sammie and Bella to come into his office. In more than fifteen years of practicing law, no one had ever made a complaint about Davis to the Board of Professional Responsibility.
Davis had each of them read one of the complaining letters and one of the motions. Morty served eight years as the president of the Board of Professional Responsibility; he knew how the system worked. The board moved slowly for good reason: an attorney’s license and reputation were at stake. Morty insisted that the best course of action was to file a response to the motions and get in front of Boxer as soon as possible. Boxer knew the cases and would act more quickly than the board to quash these frivolous charges.
Morty suggested that, prior to the motions being heard, they take the depositions of the Easters and possibly Dr. Herman. Davis thought that was a great idea. Davis was convinced that the Easter affidavit was prepared by either McCoy or Pierce and was an attempt to derail the progress that had been made in the Plainview cases.
Davis handed Morty a dollar and said, “I guess I need a lawyer for these board charges. Will this cover it?”
Morty looked at Davis seriously and responded, “Don’t expect change.”
Davis drove home, obviously not in a good mood. He wanted to see his kids and just forget about Plainview for a while. He’d have a home-cooked meal and then maybe smoke a cigar in his office. The old man had taught him to appreciate a good cigar, and they both smoked them out of nervous habit and to relax.
As soon as he walked in the door, though, Liza was all over him. “Hi, honey, did you see Littleton today?”
Davis didn’t want to get into this discussion until after his meal and cigar. “Can we talk about this later?”
“It’s a simple question. Did he pay you what he owes you?”
“It’s not that simple, and I’ve got bigger concerns.”
Davis was about to explain the Easter board complaint when Liza turned red with anger and burst out, “What could be more
important than your family? You need to get that bull-shitter to pay up. We need those reimbursed expenses to pay bills.”
She was right. But the Easter charges, although without merit, threatened to suspend his law license and his ability to provide for his family. Davis held his temper and decided not to be drawn further into a fight. He cowardly waited till the next day to tell Liza about the Easter charges.
CHAPTER SEVENTEEN
PROVING A FALSE AFFIDAVIT
THURSDAY, MARCH 11, 1993
Davis hired the best man possible when he retained Morty. Morty scheduled four depositions for today, the three Easters and Dr. Herman, to get to the bottom of the Easter affidavit. The transcription of the testimony would be a rush job because the hearing before Judge Boxer on the Rule 11 motion was set for Monday. Rule 11 of the Tennessee Rules of Civil Procedure provided that an attorney promised the court that the pleadings signed were accurate and correct.
After much discussion, they agreed he would start with questioning Edith Easter and get to the heart of the problem: her false affidavit. That document constituted the basis for the Rule 11 motion and disciplinary charges filed by McCoy and Pierce against Davis.
The depositions were scheduled at McCoy’s office because his client, Dr. Herman, was one of the deponents. The Easters weren’t represented by counsel. They couldn’t afford one, nor did they understand they needed one, and none of the defense counsel warned them. Sammie was surprised that both Barnes and Stevenson sent letters indicating that they would not attend. She figured that neither of them wanted any part of this debacle, since neither signed the motion or brought the charges against Davis.
Morty, Davis, and Sammie were escorted into a conference room and were soon joined by McCoy, wearing a bright yellow bow tie, and his client, Dr. Herman. Pierce arrived separately, and Sammie admired her beautifully tailored midnight blue suit. Pierce had taste, but no class as far as Sammie was concerned. A few moments later, the Easters joined them.
Morty was all business. “We’ll start with Edith Easter. Dr. Herman can remain in the room because he’s a party to the lawsuit, but the Easter children must wait in your reception area. They can’t stay and hear their mother’s testimony.”
“I’m not leaving,” Allie Easter said defiantly.
“You’ll leave, and you’ll leave right now, young lady,” Morty quickly retorted.
McCoy explained to Allie and Howard that under the Tennessee Rules of Civil Procedure, they were not entitled to remain because they were witnesses, and their testimonies could be affected if they heard their mother’s testimony. After they left, Edith Easter was sworn in, and Morty handed her a copy of her affidavit.
“Is that your signature, Mrs. Easter?”
“Yes, sir.”
“Did you sign this document on February 6th, 1993, as is shown on the document?”
“I guess so. I don’t remember the date. It was around then.”
Sammie watched the master in action. Morty got Mrs. Easter to admit that Howard, Allie, McCoy, and Pierce were there when she signed the document, and he established that Pierce typed the affidavit. She denied that Dr. Herman was present when she signed it. He introduced them to his lawyers and left.
“Would you read into the record your affidavit, please?”
McCoy objected, “The document speaks for itself. This is a waste of time.”
Morty looked over at McCoy. “Your objection is noted, Mr. McCoy. I’ll remind you later that you made it and tried to prevent her from reading the document. Mrs. Easter, read your affidavit to us, please.” It was not a question; it was a command.
Three minutes went by, and the woman remained quiet. Sammie knew why she didn’t start reading, and so did Morty.
McCoy broke the silence. “Just read it to us, Mrs. Easter, so we can get this over with.”
Edith Easter started to cry. The court reporter continued to preserve what was said and indicated that the witness started to cry in response to Mr. McCoy’s urging to read the affidavit.
Morty was about to lower the boom. Sammie was watching McCoy and Pierce, not the witness. Neither McCoy nor Pierce knew exactly what was about to happen. They looked concerned but were apparently in the dark about Mrs. Easter’s illiteracy.
“Can you read?”
“Not real good, and I broke my glasses a few months ago and never replaced them.”
Mrs. Easter couldn’t identify the name of her eye doctor.
“Can you read any part of that document?”
“My name.”
“Anything else?” Morty asked.
“I can make out a few little words like ‘is’ and ‘the,’ but that’s about it.”
“You don’t know what this document says, do you?”
“No, sir.”
“It says that Mr. Davis filed a lawsuit without your permission; that you never intended to sue Dr. Herman; that he never kept you advised of the progress of your lawsuit; and that he promised you at least $1 million. Did you realize you made those claims against Mr. Davis?”
“He dropped me because he says I was stupid.”
“That’s not what I asked you. Before you signed the document, did anybody read it to you?”
What Mrs. Easter said next was critical to the outcome of the Rule 11 motion and the disciplinary charges against Davis. It would also put McCoy and Pierce in hot water.
“I don’t remember. We talked about Mr. Davis and the lawsuit, and then that lady came back with that piece of paper and I signed it.”
“The lady you’re referring to is Ms. Amy Pierce, who is seated at this table?”
“Yes, sir.”
“So she didn’t read it to you?”
“I guess not.”
“So you had no idea what it said at the time you signed it, did you?”
Mrs. Easter looked blankly at Morty. He read the affidavit out loud and got her to admit that Mr. Davis, unlike Ms. Pierce with the affidavit, did read the complaint to her, word for word. Sammie was prepared to testify to that fact at the hearing, if necessary. When he read the allegation that Mr. Davis promised her $1 million, she claimed it was the other fat man, Mr. Littleton, who made that promise.
“But this document claims Mr. Davis made that promise.”
“I guess I was confused.”
“Did your son, Howard, steal your mail?”
“I let him read it. He’s my son. He didn’t steal nothing.”
“Did he give your mail to Dr. Herman?”
“I don’t know. You’ll have to ask him.”
By the end of the deposition, Sammie felt sorry for Edith Easter. The deposition of Dr. Herman was a waste of time. He claimed all he did was make the introduction and then played no part in securing the affidavit. He admitted that Howard did odd jobs for him at his farm but denied receiving mail from him.
Both Allie and Howard Easter lied. They testified that Ms. Pierce did read the affidavit to their mother. They also claimed that Mr. Davis didn’t read the complaint to them and did promise $1 million.
Sammie knew that they were lying. She was there, and she would file her own affidavit with the court. If necessary, Morty would put her on the stand at the hearing. She was a much more credible witness than either Howard or Allie, whose testimonies had already been contradicted by their mother’s.
Sammie was surprised when Morty turned to the court reporter. “I’d like to ask on the record, Mr. McCoy, did you know before today that Edith Easter couldn’t read this affidavit?”
“I’m not a witness in this case. I represent Dr. Herman. My actions are protected by the attorney work product doctrine. I don’t have to answer that question.”
“Did you read the affidavit to her before she signed it?”
“That’s none of your business. My work product is protected.”
“You signed a Rule 11 motion and brought disciplinary charges against Mr. Davis. You made it my business, and I’m sure Judge Boxer will agree. I’m sure he’ll rule tha
t there is no attorney work product protection if those actions constituted a fraud on the court. You tried to use this false affidavit to win a motion, and even worse, you made unfounded disciplinary charges against another member of the Bar. You’re toast. I’m sure Judge Boxer will ask you these same questions at the hearing on Monday, and you’d better have answers then.”
Sammie could actually see McCoy’s bow tie get tighter around his neck, and he turned red in the face. He didn’t respond.
Turning, Morty glared at Pierce. “What about you, Ms. Pierce? You created this pack of lies. They’re your words, not Mrs. Easter’s. What do you have to say for yourself? Do you think your action of typing this false affidavit is protected by the attorney work product doctrine?” It was one of those rare “got you” moments.
For the first time, Sammie was amazed that Amy Pierce had nothing to say. Pierce always had a sharp comeback or sarcastic remark. She figured that Pierce concluded that silence was better than saying something stupid on the record.
Morty rubbed it in. “Cat got your tongue, Ms. Pierce?”
Morty, Davis, and Sammie left the room with smiles on their faces. Morty turned a bad situation to their advantage and proved, once again, that he knew how to turn shit into apple butter.
CHAPTER EIGHTEEN
THE DISCIPLINARY HEARING
MONDAY, MARCH 15, 1993
That Monday was an important day for Davis, but Sammie wasn’t worried. All the defense attorneys and their clients were present, except Barnes. He told Morty that he had a prior commitment and would be unavailable. It was a three-ring circus, and Davis was unfortunately standing in the center ring. Davis was on trial, not English, not Herman, and not the hospital.
These charges were brought by the Tennessee Supreme Court through the office of the Chief Disciplinary Counsel, instigated by Pierce and McCoy.
The motions for costs were based on Rule 11 of the Tennessee Rules of Civil Procedure. The rule was rarely used to challenge an attorney’s pleading. But the motion filed by McCoy and Pierce had certainly gotten Davis’s attention.
