When the jury was gone, Judge McDowell excused the lawyers and their clients. Jack led his team and June out into the hallway and around the rotunda where they could talk quietly.
As soon as they were alone, June asked, “Did I just lose our case for us, Mr. Bryant?”
Jack patted her on the back. “No such thing. I have that covered. Is Willie Junior picking you up?”
“Yes, sir.”
“Then J.D. will walk with you down to the street and help you find Willie, Jr. We’ll see you in the morning. You did just fine.”
Once Jack, Colby and J.D. were in the truck, Jack had a little different tune. “That hurt us. Buchanan warned me that he could have taken the other side of this case.”
“Dad, when are we going to start talking about the other policies? Won’t that turn the case in our favor?”
“We’ve got to bide our time and wait for the right moment. It’ll come. It’s like a running back, hesitating until you’ve given him an opening with a block on the linebacker. Once it happens, I’ll know it and we’ll be running to daylight. Trust me on that.”
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Hampton’s story the next morning made it to the front page, below the centerfold, but still where it would catch the eye of anyone who even glanced at the paper. He described Bryant’s objection to Leyton’s original jury strikes and quoted an unnamed trial lawyer’s opinion that Leyton being ordered to start over with his strikes was almost unheard of. Next, he discussed the judge’s ruling about the use of the term, dead peasant policies. That was followed by June Davis’s testimony that she never got one penny from the life insurance on her husband. In the last paragraph he described the similarities between the signatures which obviously were going to be a major point in the case. Jack read the article and mulled over his trial presentation. He had originally intended to call Dwayne Allison as part of his case. Now, he re-thought his order of proof. With June’s testimony, all he needed was his insurance expert and he had what lawyers called a prima facie case. It almost surely would withstand a motion for directed verdict in favor of the defense, particularly since he figured that Hampton’s story would draw more of the media this morning. He would save Buchanan for rebuttal. It was a gamble, but the more he thought about it, the more he liked putting on a short, simple case and cross-examining Leyton’s witnesses. Still, he had to watch for his opening to cram the information J.D. found on the policies down Allison’s throat. Jack told J.D. and Colby his plan on the way to the courthouse.
“Dad, you’re the trial lawyer, but are you really sure that’s a good idea? I mean, couldn’t it backfire and leave us out on the street?”
“You’re right. That’s the nature of any trial. It’s like a chess game. You make a move and anticipate what the other side will do. I’ve got a pretty good feel for Leyton at this point. He’s not going to do anything fancy. He thinks he’s got the upper hand and is just going to play it out. I like him thinking that way. I’m just a little more of a gambler, that’s all.”
Colby heard all of the discussion and merely gazed out the window, praying that Jack was right. Her life might depend on it.
When they got to the courtroom, everything had changed. The audience was half full of reporters, print and other media. Hampton was holding court since this had originally been his story. Jack and J.D. were unpacking briefcases when Deputy Waddill raised his voice.
“Ladies and gentlemen.” The talk among the reporters continued. Louder he said, “Ladies and gentlemen.” Hampton motioned them to be quiet. “Judge McDowell is pleased that you are in his court. However, there are a couple of rules. First, no cameras or recording devices are permitted. If you have them, turn them off. If I find you have violated this rule, I’ll confiscate your equipment and you can pick it up at the conclusion of the trial.” Several reporters moaned their protests. “Those are the rules; so, just follow them. Also, no talking while court is in session, not even whispering. If I hear your voice, I’ll escort you out at the next break. Any questions?”
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“Your Honor, plaintiff calls David Gamboa.”
McDowell nodded toward the bailiff who went to the hallway and escorted Gamboa to the clerk where he was sworn in. As he took his seat, the jury saw a rather small Hispanic male, about five feet, seven inches, wearing an expensive, well-tailored brown suit and tan, striped tie. His mustache and black hair were speckled with gray. There was an air of quiet confidence about him as he laid his file on the rail, poured a cup of water, and turned his attention to Jack.
“You’re David Gamboa?”
“I am, Mr. Bryant.”
“Please tell the jury a little about yourself and your professional career.”
Gamboa looked at the jury. “I was born and raised in Fort Worth, not far from where Mr. Bryant has his pro bono clinic.”
Leyton didn’t like the mention of Jack’s free legal services, but said nothing.
“After I graduated from North Side High School, I commuted to Arlington State. I was there about the same time as Mr. Bryant, but it was a commuter college, and I didn’t know him. Most of us just went to classes and then went to afternoon jobs. Mine was at the old Leonard’s department store where I sold appliances.”
Several of the older jurors nodded at the mention of Leonard’s, Fort Worth’s predecessor to WalMart.
“I graduated with a BBA with emphasis on insurance. Next, I spent four years in the Air Force where I learned to fly fighters. I never saw combat, but I stayed in the reserves and am now a Colonel.”
“Do you still get to fly?” Jack asked.
“Unfortunately, mine is now primarily a desk job, but I manage to sneak one of our fighters out once a month or so and fly with the young guns.”
Jack looked over at the jury and saw they liked his witness.
“Anyway, I left the Air Force and started my own life insurance and financial planning business. Between growing up on the North Side and attending Arlington, I knew quite a few people. So I just started knocking on doors and my business grew slowly at first and then developed quite nicely.”
“Do you have any advanced degrees or certifications, Mr. Gamboa?”
Gamboa nodded. “Once I started my business, I went to TCU nights and weekends and completed an MBA. I’m a Chartered Life Underwriter and Chartered Financial Consultant. I also just completed my term as president of our state association.”
Jack rose at his table. “Your Honor, we tender Mr. Gamboa as an expert witness in the area of life insurance.”
“No objection,” Leyton said with a wave of his hand as if to say, ‘get on with it.’
“Mr. Gamboa, I’ve asked you to study certain issues in this case and offer your opinions, have I not?”
“Yes, sir.”
“And, I’m paying you three hundred dollars an hour for your time away from the office.”
“Correct, sir.”
“Approach, Your Honor?”
McDowell grunted.
Jack walked to the witness and handed him application for insurance on William Davis, the Euro Life insurance policy, the employment agreement and a copy of the check for the proceeds made payable to Allison Southwest. “Mr. Gamboa, for purposes of my questioning, I want you to assume that Mr. Davis went to work for Allison Cadillac in the seventies as a porter. He never made more than $20,000 in one year and retired about fifteen years ago, not knowing that Allison Southwest had taken out life insurance on him and paid premiums on the policy until his death. Assuming those facts, do you have an opinion as to whether such a practice is acceptable and ethical in Texas?”
“Objection. This witness cannot offer opinions as to legality.”
“Your Honor, I carefully avoided asking about legality, at least at this point.”
“Overruled,” McDowell said.
“This is what is known as a dead peasant policy…”
Before he could get any farther, Leyton leaped to his feet. “Objection. The court’s already ruled on that te
rm as being prejudicial.”
Before Jack could say anything, Gamboa turned to the judge. “Your Honor, there’s nothing wrong with that term. That’s what every life insurance agent in the country calls these policies.”
McDowell looked over his bench at the witness. “That will be enough, Mr. Gamboa. Bailiff, please escort the jury out of the courtroom.”
Once the jury was out of the room, the judge said, “Mr. Gamboa, you are to answer only questions from counsel and not volunteer any information. Do you understand?”
“Yes, sir. I apologize.”
“Your Honor, Defendant moves for a mistrial. That’s twice this term has come up, once from Mr. Bryant and once from his witness who he should have instructed not to mention it.”
“Mr. Bryant, your response?”
“Judge as part of my response, I request permission to ask this witness some follow-up questions.”
McDowell nodded. “Make it fast.”
“Mr. Gamboa, is the use of the term ‘dead peasant’ intended to be derogatory to anyone?”
“Absolutely not, Mr. Bryant. It’s just jargon used by people in my industry. I even sold dead peasant policies back when they were legal in Texas, but not in the past twenty years. And, by the way, I can testify as to their legality. I’m fully familiar with that issue. You’re called a plaintiff lawyer, Mr. Bryant. Some people would connote that with being an ambulance chaser. Maybe they do, but you don’t ask people to call you something different. Mr. Allison here is a car salesman, maybe he was a used car salesman. Some people would react negatively to those terms. That doesn’t mean we don’t use them.”
Allison tried to keep a poker face but he knew Gamboa was right.
“Mortgage lenders, Wall Street bankers, even Congressmen may conjure up negative feelings in a lot of people. We can’t all be politically correct all of the time. Again, dead peasant is what we call these policies. That’s a lot simpler than saying, ‘It’s a life insurance policy taken out by an employer on the life of an employee without his knowledge and the premiums are continued after he leaves his employment and the beneficiary is the employer’.”
The judge rubbed his cheeks and then scratched his belly as he thought. He gazed out at the reporters. “Okay. I withdraw my previous ruling. The fact of the matter is that the jury is going to understand all that Mr. Gamboa said before we’re through with this trial, anyway.”
“Judge, can I have a running objection?” Leyton asked.
“You may, Mr. Leyton. You can even refer to Mr. Bryant as a plaintiff lawyer if you choose. Let’s take our morning break.”
After the judge had retired to his chambers, Jack walked over to his table where Colby joined them. “Well, the wind just shifted a little in our direction. Not sure how long it will last.”
“Personally, I thought it was a whole lot of uproar about nothing,” Colby said.
“I couldn’t agree more, but Leyton raised the issue, and now it’s put to bed.”
When the jury was back in the box, Jack asked, “Please explain to the jury what you meant by a dead peasant policy?”
Leyton remained at his seat, strangely subdued.
“These are life insurance products. A lot of companies wrote them on employees, even low level ones thirty years ago. I even wrote some for business clients early in my career. They usually flew under the radar because the employers never told the employee and just quietly collected the proceeds of the policies when the employee or, often, the former employee died.”
Jack looked at the jury and saw he had their attention, but he needed to move along. “Are these policies legal in Texas on former employees?”
“Not any more. The Texas Department of Insurance determined that once an employee left, there was no more insurable interest by the employer. To comply with the insurance code, the employer had to cancel such a policy when an employee terminates. There are a few states where employers can still buy such policies, and they still fly under the radar. I hear that some employers even go off shore. If an insurance company will sell the policies, the employer and his family will never know.”
Jack got up and approached the witness where he picked up the policy. “Then, if Allison Southwest had no insurable interest, who should have gotten the proceeds?”
Gamboa flipped through the policy to a paragraph near the last. “This paragraph says that if the primary beneficiary cannot collect the proceeds, they go to the nearest relative. In this case, that would be Mrs. June Davis.”
“Pass the witness, Your Honor.”
“Mr. Gamboa, you’re familiar with the agreement that Mr. Davis signed, are you not?” Leyton asked.
“I’m familiar with the agreement that has a signature that purports to be that of Mr. Davis. I understand there is a dispute as to whether he signed it or not.”
Allison shook his head at Gamboa, clearly trying to convey to the jury that there was no real dispute, merely one manufactured by Bryant.
“If that is his signature, you would not dispute that he approved and, in fact, agreed to Allison Southwest taking out coverage on his life that may continue beyond his employment, correct, Mr. Gamboa?”
Gamboa thought carefully about his answer. The silence was long enough that the judge said, “Mr. Gamboa, answer the question, please.”
“I suppose that’s correct, Mr. Leyton. I have a problem with Mr. Davis knowingly authorizing a dead peasant policy to continue after his employment, but I suppose that two adults can enter into such a contract. I’ve just never seen it. It’s conceivably putting a target on the back of the former employee.”
“Objection, Your Honor, to the last comment and move to strike.”
“Sustained. The jury is instructed to disregard.”
Leyton conferred with Allison and rose. “Nothing further, Judge.
Jack stared at his table for a moment, then got to his feet. “Your Honor, Plaintiff rests.”
Leyton was caught by surprise. He turned to look at Jack as if he clearly didn’t know what he was doing. The judge ordered a lunch break, and the reporters left the courtroom like a covey of quail, followed by Leyton and Allison who went to the floor above to find a quiet place to talk.
Leyton set Allison down on an empty bench on the third floor and discussed the points they had already been over a half dozen times before. In the middle of the conversation, Allison’s cell vibrated. He took it out of his pocket, glanced at the caller i.d and said, “I’ll call you back.”
When they were finished, Leyton said he was going to stretch his legs and maybe grab a barbecue sandwich at the joint a block down the street. Allison declined to join him. When Leyton was gone, Allison went into the men’s room and, after checking each stall to determine that he was alone, walked to the window for better reception and returned the call.
“Beau, why the hell are you calling me? You know I’m in this goddamn trial.”
“Just checking to see how it’s going,” Quillen said in a modulated tone. “You know we both have a lot riding on the outcome of this case. If you lose, you may have a precedent on your hands that will make all of those other dead peasant policies worthless. That would be a serious blow to both our companies.”
“Look, Quillen. I’ve got my hands full. Stay out of my hair until this son of a bitch is over. Then we’ll talk.” Allison clicked off the phone and jammed it back in his pocket. When he washed his hands and rubbed water on his face, he realized he was beet red. Dammit, he thought. I can’t let my temper show on the witness stand. Calm down. Calm down.
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“Defense calls Dwayne Allison, Judge.”
Allison rose from the table and smiled at the jury as he walked to the witness stand. This time it was Judge McDowell who swore him in. Jack noted the subtle difference in how McDowell handled Allison and figured it was not lost on some of the jurors.
Leyton chose to lead Allison through segments of his life. He started by taking him from a college drop out to car salesman to his purc
hase of this first dealership with money borrowed from what later became Quillen Bank and Trust. He followed with the purchases of dealerships of all shapes and and sizes, in big cities and small towns, until he got to one hundred and twenty five. Leyton knew he couldn’t and shouldn’t hide the fact that Allison Southwest had struggled in the past few years.
“Yes, Mr. Leyton, these last several years have been tough. I’m down to half of my dealerships. Worse than that is that I’ve had to lay off thousands of employees. Just last month I knew I had to close three more. It’s almost like deciding which ones of your children are going to live or die.” Allison choked up. “I apologize, ladies and gentlemen. I hope that I’ve closed the last of my dealerships.”
“How’s your company doing now?”
Allison smiled. “Things are picking up as the economy improves. I now have sufficient net income to pay employees, vendors and loans with Quillen Bank and Trust. I still owe my bankers quite a bit of money, but we’re stronger financially than we’ve been in years. Sometimes you have to prune a tree, Mr. Leyton, to make it grow.”
Two of the jurors were small businessmen themselves and understood the struggle just to keep the doors open. Jack remembered the conversation with his Beaumont banker when the banker said Allison Southwest was on the brink of bankruptcy and made a mental note to explore the issue further.
“Do you have a family, Mr. Allison?”
“I certainly do. Both my boys, well they’re adults now, are in the family business. They’re running stores of their own.” He turned to the jury. “That’s what we call dealerships in the family. I’m sorry to say that I lost my wife to cancer a few years back. That left a void in my life that will never be filled.”
Leyton had Allison describe all of the various civic services he had performed in Fort Worth, including being the current president of the livestock show and rodeo. Satisfied that he had shown Allison in the best possible light, he turned to the matter at hand.
Dead Peasants Page 25
