by Andy Siegel
When I enter Henry’s office, he’s seated in one of the client chairs flicking playing cards into a specially placed wastebasket.
“Bored, Henry?”
“Did you preserve our fee on Ruiz?” That’s his way of showing concern.
“Fee preservation achieved.”
“Good. And no, not really,” he says. Flick, flick.
“No, not really, what?” I ask.
“I’m not bored.” Flick, flick. “You’re early,” he adds, still concentrating on what he’s doing, which doesn’t involve looking at me.
“I know I’m early. Do you want me to leave and come back?”
“No, stay. This Cookie matter looks to be a big case.” Flick, flick. “Three neck surgeries—you and I know two hundred and fifty thousand’s ridiculous. But you tell me. You’re the pro.” Flick, flick.
“Without seeing her records, my take is that it could either definitely be big—or no case at all. We’ll just have to wait and see. But the fact that she’s doing cartwheels in headgear is strong evidence that she’s on the road to recovery. Anyway, that was an artful cross you did of Major. Now he has no choice but to come here.”
Henry flicks two more cards, then stops. He likes to flick in pairs. He glances up for the first time.
“Let’s stop bullshitting each other. Since we both met her at the same time, I won’t consider her a direct referral. Instead of giving me fifty percent of the fee, I’ll just take twenty-five since you’re going to have to work out a fee arrangement with this Chris Charles, the outgoing attorney. Sound fair?”
“Yup. Sounds fair.” He’s always been fair with me, so no need to point out it was my buddy, Mick, who made the score.
There’s a buzz. “Mr. Benson,” his receptionist says, “Ms. Cookie Krumke and Dr. Major Dodd are here to see you. I’m sending them back per your instruction.”
I almost forgot he’s a doctor. It’s part of the weirdness here.
JUST AGREE
At this cue, Henry gets up and, with the toe of his ridiculously pointy cowboy boot, kicks two cards that fell short under his desk. Next, putting on his jacket and tightening his tie, he moves behind his desk, taking the trash can with him.
“Let me do the talking,” he instructs. “You stand there.” He points to his right. “Just agree. You got that?” I nod. Generally I don’t like to play third wheel, but he’s got the home-field advantage.
Cookie and Major appear at the door. “Come in,” Henry invites them. “Please sit down.” She proceeds gingerly, possibly paying the price for last night’s cartwheels today.
Henry picks up on it. “You seem stiff today, Cookie. Is everything all right?”
“Well, I guess I overdid it. My neck’s killing me, but I should be fine in a couple of days.”
Henry nods in sympathy, then turns his focus to Major, staring at him just long enough to make him uncomfortable. Then he shifts his attention back to Cookie.
“First things first,” Henry begins reasonably enough. “Cookie, two hundred fifty thousand dollars does not, we believe, constitute fair and reasonable compensation for what you’ve been through. Agreed, Tug?” He looks over to me.
“Agreed,” I respond. The first of many to come.
“Without even seeing your medicals or even knowing what the totality of the claim is, I feel justified in deeming two hundred fifty thousand an insult. Agreed, Tug?”
“Agreed.” Damn, Henry, I just told you there might not even be a case.
“I don’t know what the basis for the offer of settlement is, but I do believe that for this Chris Charles to recommend it, he must lack the fundamental skill set it takes to handle a complex medical malpractice case properly. Agreed, Tug?”
“Agreed.”
“Under no circumstances, then, are you to accept that offer of settlement before we have an opportunity to look into things. Agreed, Tug?”
“Agreed.”
Cookie, though, has something to say. It’s as clear as the dimple in her chin.
“But that’s a lot of money, Mr. Benson,” she interjects.
“I understand that it may sound like a lot of money to you, young lady, but it doesn’t mean it’s fair under the circumstances. And it’s these circumstances that I’ve brought you here to discuss today. If that money is on the table, it will always be on the table. Don’t worry about that.”
“Um, I’m not sure that’s exactly true, Mr. Benson,” Major says. He’s biting his lip but appears composed.
“Oh, really?” Henry replies, confident he knows otherwise. “Why’s that?”
“Chris Charles explained that they were willing to pay this money if we accepted it within the next seven days, before they incur any more expense in defending the case. Otherwise, they’re going to take it off the table. It’s their position—McElroy’s lawyers, that is—that the only thing he may have done wrong was put a screw in improperly, which was corrected by the first remedial surgery. It’s also their position that the next procedure came about because Cookie was having difficulties with bone healing. Which was unfortunate—yet we all know, I think, that it can happen in the best of surgical hands. Therefore, they’re offering the two fifty for one otherwise unnecessary surgery, taking the position that the last operation was a result of healing insufficiencies rather than malpractice.”
“You seem to be well informed.”
“I’m just trying to help Cookie make the right decisions.”
“You helped enough already, don’t you think?”
Ouch. Yet Major doesn’t react. He genuinely seems concerned—for Cookie, not himself.
“Besides,” Henry continues, “even if the last procedure was the result of delayed bone union—that’s what you’re saying, right?”
“Yes, sir. Well, actually nonunion of bone at the fusion site.”
“Well, even so, that doesn’t relieve Dr. McElroy of responsibility under the law. Those surgeries are items of damage imputed to him. The legal doctrine is called ‘the eggshell plaintiff.’ Meaning, if Cookie sustained a greater injury than someone else would have who didn’t have a healing insufficiency, McElroy is nonetheless responsible because you take the plaintiff as you find her. Agreed, Tug?”
“Agreed.” I’m keeping to my side of the bargain. But we need to connect the nonunion to McElroy’s malpractice to collect for it.
“Thus, this case is worth more than two fifty based on the two subsequent surgeries alone. Agreed, Tug?”
“Agreed.” Like I said.
“As far as their taking the money off the table, that’s just a negotiation ploy. It never happens. Once the money is there, it’s always there. Agreed, Tug?”
“Agreed,” I say. The truth is, though, I’m way less confident with this one. I’ve been in situations, rare as they may be, where it happened. Now you see it, now you don’t.
“What we must do at this juncture is discuss the circumstances that brought you two here,” Henry says, turning purposefully to Major. “It was quite a fortuitous chance we met, I believe. Since then, you’ve had time to reflect on what we talked about—and I’d like to pick it up from there. I made reference to an important aspect of this being ‘madness.’ Do you recall? And do you understand what my meaning was, why I used that word?”
“Well, it obviously has something to do with the relationships between Chris Charles, Dr. McElroy, and me—which is to say, our various connections,” Major replies with surprising forthrightness.
“You hit the nail on the head. Now I’d like to hear the specifics.”
“That part I’m really not too sure about.”
Henry gives him a look. There’s a long pause before he says, “What the devil is the matter with you? I’m talking about the inherent conflicts of interest among the defendant, the surgeon; his friend, the lawyer; you, the boyfriend; and Cookie, t
he injured malpractice victim. Don’t you see it, man?”
“Well, not exactly.”
“Then I’ll make it clear. Cookie deserves legal representation that’s not influenced or compromised by personal relationships. She needs an attorney who’ll represent her zealously, not some novice working out of his basement suing his friend, whom he may not want to hurt financially or professionally.” He stops to let this sink in, although any of it should have been obvious in this situation from the word go.
“Is this lawyer,” he continues, “going to go after his doctor pal’s credibility and expose all the wrongful things he’s done? I think not, because that would end their friendship. Now, Cookie’s damages are certainly worth more than two hundred fifty thousand, but the question here is, what if they’re worth more than the doctor’s insurance coverage? Is this lawyer going to go after his buddy personally in an effort to get Cookie fairly compensated? Or will he be more concerned with the financial harm it might bring to his friend?”
Henry slams his hands down on his desk. Okay, it’s overdramatic, but he knows what he’s doing. “And that’s only the beginning! Truly, it couldn’t be more fundamental!” Henry and Major lock eyes. Henry’s the alpha dog, so he keeps on going. Cookie is watching anxiously, protectively. She’s concerned for her man, yet a door has been opened.
“Many of the conflicts with which this situation is plagued should give you pause, Major,” Henry continues. “What if you and Cookie split up for some reason? It’s obvious you two share a close bond, but for discussion’s sake, let’s say a bad breakup occurs. She’ll be on the outside of your cozy threesome. What then?” He can see he’s broken through to Major finally, and so can I. It was the possibility of breaking up, however hypothetical, that did it.
“So I’d suggest the current situation is not entirely in Cookie’s best interests, yet her best interests are what you want for her, correct?” With this last thrust, Henry’s got Major wearing the look he should be wearing.
“Yes, yes, of course I want what’s in Cookie’s best interests. I just never realized the potential here for conflict. I’d felt terrible about referring her to Dr. McElroy, who did what he did. Even felt responsible for what happened to her. I was trying to make things better by getting her to a lawyer. But I understand what you’re talking about now. The circle is too small.” Major looks at Cookie. “I’m sorry, my dear. I just didn’t realize. But I should have.”
“I know you were doing what you believed was best.”
As they share this loving moment, I have to question how these two ever became a couple in the first place.
Henry points to me. Cookie and I lock eyes, and she smiles at me. She’s really something. I smile back, not a flirty smile, but one that acknowledges her in a respectful way.
“Now, I’ve had a long-standing relationship with Mr. Wyler here,” Henry says, “and I know he’s the right man for the job. Still, I intend to personally oversee your case, and that way you get double expertise, experience, and insight. How does that sound to you, Cookie?”
“Can I really do that? I mean, can I really change attorneys?”
“Of course you can. People do it every day for one reason or another. You just sign a piece of paper and poof, you have a new lawyer, just like that.”
“But what about Chris?” she says with concern. “I mean, I don’t want to hurt his feelings or get him mad at me. I called him early this morning to let him know I was coming here. I didn’t want to do it behind his back. And it seemed he was pretty upset. This is the biggest case he ever had. I feel really uncomfortable firing him. I mean, I never fired anyone before. It just doesn’t feel right, especially since he got me so much money.”
I want to ask Henry if he’d mind if I said something. But I know he’s just about to close the deal so I don’t. One of the most difficult things for a lawyer ever to do is to keep his mouth shut. I’m no exception.
At least I admit it.
“Well, I’ll talk to Chris and explain to him how his lack of experience made him unable to identify the conflict.” Henry’s irony is lost on everyone but me. “Technically, he should be disqualified by a judge and this matter brought to the attention of the Office of Professional Conduct. But we don’t want to see him in any trouble now, do we?” He looks at Cookie.
“Oh, gosh, no,” she says, in a tone that makes clear the fact she’s never brought harm to anybody or anything.
“So don’t worry then; he won’t be. I’ll effectuate the change of attorney and have your file in my hands in less than a week. Sound good to you?”
She looks to Major. He gives her the nod. The same nod of approval he gave her at Jingles. Her best interests are clearly what matters to him.
“Gee, thanks, Mr. Benson.”
“Now, you just call me Henry, young lady.” He gives her a benevolent smile, then turns back to Major. The smile vanishes. “Are we all on the same page here?”
“Yes, we are. I really appreciate your firmness and candor. Cookie and I have little experience with lawsuits and lawyers. I think I speak for the both of us when I say we feel more comfortable already.”
Henry, hearing this, picks up the Consent to Change Attorney form he just happens to have on his desk and places it in front of Cookie. Reaching into his leather desk tray, he takes out a black and gold Mont Blanc and twists the top. He gets up, leans forward, and hands it to Cookie.
“This first document is the Consent to Change Attorney, substituting us in as your new counsel, with Charles out. This other document is a letter we drafted on your behalf directing him not to contact you regarding this matter. Now, this is serious business, so he should not be getting in touch with you, and you should not be contacting him. Do you think you can comply with this rule despite any gratitude you may feel?”
“Yes, Mr. Benson.”
“Call me Henry. Good. Now, should Charles contact you in violation of this directive, it then becomes your obligation to tell either Tug or me so we can deal with that in the appropriate manner. Will you do this?”
“Yes,” she answers. But she’s not extremely happy with the idea, I can see.
“Good,” he says again. “Now, sign here,” he directs, pointing to the appropriate places.
At first, she begins to try to scan the official-looking documents, filled with their legal mumbo jumbo. Then she hesitates, as if she has a question.
“Um, are you sure they can’t take the money off the table, Mr. Benson? I mean, Henry. Two hundred and fifty thousand dollars is a lot of money. And I’ve been out of work so much since this all happened that I don’t want to risk losing that kind of money. It’s a lot of lap dances.” She giggles. “And, like I said, I want to pay everybody back who’s helped me through this, everyone who insisted I take money even when I told them I wanted to do it on my own.”
“Cookie,” Henry says in a stern tone, “once the insurance carrier gets notice that Tug is involved, that number is only going to go up. That two fifty won’t be taken off the table, I assure you. Agreed?” he says, looking over at me.
I have no choice.
“Yes, Henry, agreed.” I really wish he wouldn’t do this. It’s improper, from an ethical point of view, to make assurances about money offers. Ones that can, at any time, be withdrawn.
Cookie attempts a shrug, but it’s not easy with her halo. She hesitates, thinking hard, then looks up. Major has remained silent. “Okay then, I trust you guys,” she says. And she signs on the dotted line.
Claudette Krumke.
Chapter Six
As I head out of Henry’s building, I realize my contribution amounted to eight agreeds and a reciprocating smile to Cookie. I wish all my retentions were that easy. I also wish all my referrals from Henry were like Cookie, kind, and thoughtful, appreciative, felony-free hottie nuggets.
So I’m feeling good about my new case. But I�
��m also aware that what’s in the file will determine just how big a payday lies ahead. It’s three years old with two fifty on the table after all, and that means the malpractice carrier views it in just the way Major stated, as an otherwise unnecessary surgery case. Still, they’re offering top dollar for one of those, so they’re obviously factoring in all the surgeries, despite their stated position.
One thing to consider is the uncertainty regarding the permanency of her condition. It’s clear to me that Chris Charles is jumping the gun by recommending acceptance of an offer while she’s still in the recovery phase.
In my view, the case is worth seven hundred fifty thousand at a minimum, based on the three surgeries alone.
Two things continue to bother me, however. One is how could an intelligent, medically trained guy like Major be so ignorant about the obvious conflicts? And two is his unlikely relationship with Cookie. Opposites attract, sure, and women look for father figures. But I don’t know … It’s still just pretty weird. Also, I really wish Henry hadn’t said the current offer would never be pulled off the table.
Oops, as Cookie would say, that makes three.
Once I turn on my phone, which I’d switched off for the meeting, there’s a blast of messages. Bzzzz. It’s my favorite “Private Caller.” I’m enjoying this new unseen pal, plus I’d like to find out about the van that caused his painful ooh-dats. I hit the answer button.
“Hello, Robert.”
“My name is Robert Killroy, but I didn’t kill no Roy, and I didn’t kill nobody.”
“How have you been? Long time, no speak.”
“I’m sorry,” he says, sounding confused. “I musta dialed the wrong number.”
“No, wait, Robert, you’ve got the right number. Why are you saying that?”
“’Cause the person I be looking for spoke to me this morning. Nice man but owes
