“So, it’s time for me to excuse everyone but Ms. Barnes, her attorney, and the bailiff, and we’ll get the show on the road. In conclusion, please remain available to attend a session with me at most any time. I know this feature of what we are doing here restricts your freedom for a while, but I’m also convinced that your investment of time at this point will be handsomely rewarded and especially so if settlement is reached. You are encouraged to leave your cell phone numbers with me, and be assured I will not share this information with anyone. If I need to reach someone, it’s usually because I’m ready to strike while the iron is hot, as you may well imagine. Nothing interferes with progress like my inability to reach someone at a critical moment. Understood?” and he methodically moved his gaze around the room making eye contact with all of the participants to affirm the acquiescence of each one.
“Very well. All are excused, except the Barnes group. As for the three of us, we will get under way in this room fifteen minutes from now, after a short break,” and Farrington took his leave for the moment.
Their meeting resumed, and Farrington asked permission of Malone to speak directly to Ms. Barnes, who was still attired in her government-issue jailhouse jumpsuit. After an exchange of glances, neither client nor attorney had any obvious objections. “If you don’t mind speaking with me for a moment, Ms. Barnes, please give me your impressions of how it was to work for Mr. Martorano,” the mediator coaxed.
“Oh, I have to say that working for him was one of the best jobs I ever had. I was there over six years, I believe. I’m aware from general conversation that he had his problems for some years, but honestly, in my case I had little to complain about,” she replied. “I did many things for the family that went beyond caring for my patient. I cooked, cleaned, wrote personal notes on behalf of my boss, and hired the people who took care of the property generally. I had a lot of responsibility, but I really was grateful for the chance to grow into the position as I did. I just cannot imagine how anyone could think I killed my patient,” she continued, attempting to choke off sobs.
“I hope you don’t mind some personal questions, Ms. Barnes, but they are inevitable, and you may as well prepare yourself in the event this case does go on to trial. Did you and Mr. Martorano ever develop a relationship beyond the obvious employment status you had with him?”
“I’m not sure I understand your question. I mean, we were best of friends but nothing beyond that,” she said, revealing her continued puzzlement.
“Well, Ms. Barnes, cross-examination in this case will likely include questions of that sort. The defense attorneys will try to confuse you, embarrass you, or seek to show any emotional, even romantic connection with your boss. In that way, they would hope to cast you in a light that is unfavorable to your position in this dispute. I’m not suggesting for a moment that there was anything happening with him beyond your employment duties, yet these questions are proper during trial to demonstrate bias, if any, on your part, for any number of reasons. Do you understand?”
“I think so,” she replied. “It’s just that all of this is so very confusing. Mr. Martorano and his family were so wonderful to work for, and at the time of his passing, I was more than a caregiver. I’m not a bad cook, and when the family weekend parties would come along, I’d be right in the middle of things in the kitchen. After the parties ended and everyone went home, I cleaned up, which amounted to a sizeable task. I was certain all the family loved me, and I know I loved all of them. That’s why I was so dumbfounded when they reacted the way they did after I told them about their father’s promise to me a year before he passed away,” Barnes said as her eyes narrowed and clouded noticeably.
“Let’s talk about the promise he made,” Farrington continued. “What was your recollection of what he said to you on that score?”
“Pretty much as I’ve explained before whenever this very question came up. He said he was grateful to have me as his caregiver, and he knew how hard it was to get and keep good help. I thanked him, and he continued by telling me his proposal that if I would stay with him for his remaining years, he would make provisions in his will for me to have the house and an allowance for the rest of my life,” she explained.
“Was he explicit about what the allowance would consist of, I mean how much was involved, if you understand my question?” Farrington continued prodding.
“Oh yes, he mentioned one hundred thousand dollars a year. When he said that, I could hardly believe my ears, and I protested by saying that if I was living in his house, I certainly would not need that amount of allowance. He gave me a couple days to think things over. When I accepted, he told me that he would be talking to his attorney, and they would put something together for me. That was, of course, the last time I ever heard from him about the subject,” and her eyes dropped to focus elsewhere. “I don’t know for certain that he ever did talk to his lawyer, but Mr. Martorano never said another thing about our arrangement, so I just made the assumption things were taken care of, whatever might have been required. I’m not an attorney. I didn’t know what was needed, if anything, beyond his promise. But I stayed on with him.”
“Ms. Barnes,” Farrington continued, “do you know of any evidence of your agreement with Mr. Martorano, for example, notes or even letters the two of you might have exchanged on the matter?”
“No, no, I don’t, Judge, but your use of the word triggered something just now. I wrote a letter declining a position offered to me in Visalia, and in that letter I mentioned my commitment to the Martorano clan as a reason I could not consider the offer. That lady might still have my letter, I don’t know.
“And there are many of my relatives and a friend or two who heard me discussing the offer before I accepted it. Maybe some of them remember the conversations,” she offered.
“Those are definitely points that should be developed if the case does go to trial,” Farrington said, nodding in Malone’s direction. “Mr. Malone, let me ask you a question or two, please. Tell me about the input of the court’s expert. What happened to inspire Judge Crouch to make the order in the first place,” he inquired.
“Well, Judge, I guess Judge Crouch knows the answer to that question better than I do. What she said when the subject came up leads me to believe that she had concerns about the essential unfairness of two experts for the defense having ‘their way’ with us since no forensic was presenting the other side of the picture if you understand my meaning. And I really have to do some guesswork here on this. I’m also convinced because of comments of the judge that she felt my client should be given every opportunity to have neutral expertise made available for her benefit, if there turned out to be factors omitted by the defense forensic experts. Other than that, I’m doing nothing but guessing about the judge’s real concerns, if we don’t know already. The defense experts had nothing to say about cause of death that I’m aware of,” Malone suggested then paused.
“Okay, what does the court’s expert offer to the overall picture?” Farrington probed further.
“I don’t know,” Malone admitted, unblushingly.
“You don’t know!” Farrington rejoined incredulously, his latent trial-horse instincts bursting to the surface. “What about the defense, do they know anything about her opinion on the cause of death?” he dug deeper, further exposing his astonishment that such a vital piece of the puzzle seemed not to have been already locked in place by any of the key players.
“I’m sorry, Judge, I just don’t know the answer to that one,” Malone admitted. “If I’m allowed to speculate about the defense strategy, I think Corrigan is satisfied with the two experts already on record. He hasn’t discussed the subject with me. We rarely, if ever, seem to get on the same wavelength. He can get uppity with me sometimes. Anyway, my guess is that he doesn’t want to take any chances that his superiority, at this point at least, in the expert category might be lessened by Dr. Borodin’s opinions, should they contrast with his experts’ opinions. He may think his hand, as dealt, is suff
icient to hold, so to speak.”
“What about you and your client?” Farrington asked, probing more deeply into Malone’s case and his anticipated posture at trial.
“Please don’t misunderstand me, Judge. We’re curious as hell, but we just don’t have the resources to afford to take the deposition of the court’s expert. I know this just isn’t the right way to go about trial preparation, but quite frankly, our litigation budget is tapped out and most of it has gone into preparation for the homicide trial. I guess you might think we had to choose between Ms. Barnes’s life on the one hand and her chance at a fortune on the other. That’s not to say that this is a position I feel comfortable with, no sir! I’m sorry to have to explain that our budget problems control our preparation strategy,” he offered with some animation.
“Okay,” Farrington responded thoughtfully, “I do get a better feeling for this case and your client’s position especially. I found it difficult to understand how either side could approach trial in the near future without the knowledge or even so-called comfort of the deposition of the court’s expert. Now I understand what’s going on and why, but I think I have a suggestion that might untangle this feature of the case. Just to be sure, I take it you and your client would not object to attending the expert’s deposition if it were ordered by the court, right?” Farrington continued.
“Absolutely, no problem!” Malone shot back without hesitation.
“Very well. Thank you, Ms. Barnes. I’m going to excuse you and Mr. Malone now. If you’d be so kind, would you see if Mr. Martorano and his attorney, Mr. Corrigan, are outside in the hallway? If not, I have a cell phone number to call.”
Corrigan was easy to find, but it took about twenty minutes before Bill Martorano was able to join the meeting with Farrington. Once on board, the mediator queried Bill about his recollection of the family relationship with Barnes. After a few preliminary questions, Farrington got Bill to admit that his opinion of Barnes was very favorable until the very moment of her disclosure of his father’s alleged promise to take care of her after his death.
“Let me ask you this, Mr. Martorano. As I understand the situation, Marti Barnes was not only a caregiver, but she was also general manager of the Three Rivers estate?” Farrington asked pointedly.
“Well, yes, she was a huge help to the family. Maybe that’s why she’s making this outrageous claim,” Bill had to admit grudgingly and defensively.
“How much did the family pay her for her services?” Farrington wanted to know.
“We paid a little more than the going rate for an LVN; she had a room, and we provided meals at no charge to her as well. We certainly were not complaining about the arrangement, although I can see now how she might have misunderstood our intentions.”
“What would it cost,” Farrington continued, “to hire the services that Ms. Barnes provided nowadays, knowing that your father is out of the picture?”
“That’s a good question, because we’re trying to figure out the answer at this very moment. I don’t have hard figures yet, but it’s a bundle that’s for certain,” Bill replied.
“Well, if your father were still alive today, you would be getting all those services from Marti Barnes, and you wouldn’t have to deal with hiring a replacement, correct?”
“Wait a minute! Are you suggesting that the family was taking advantage of her, or that we make an offer to her, at this point?” Bill said, well on his way to a rage that lurked just beneath the surface.
“I’m saying that it’s appropriate to get your pencil out and find out how much it costs to replace her now that your father is gone,” Farrington said, fixing his gaze on Bill’s troubled brow. “You see, regardless that you now believe she was incompetent or a crook, you’re going to have to replace her since there is no one to care of the home and grounds, a service she was providing for no extra charge while caring for your father. And it does not strike me that she was overpaid for the health care services she provided.”
Corrigan quickly joined the conversation. “Judge, you’re not suggesting my client’s family was shorting Ms. Barnes in any way are you?”
“Not in the slightest, but I am making an observation that many of the jurors may discuss this topic openly in the jury room. Your side of the case should factor this point into your thinking now. There was much more to the arrangement than casually meets the eye. And, I make this suggestion advisedly, I want both of you to consider a possible arrangement in the future with her becoming a permanent resident at the Three Rivers home as long as she can reasonably perform all the duties of a caretaker of the premises,” Farrington suggested.
“And I suppose you want the family to pay for her living expenses, also,” Bill fired back impetuously.
Corrigan stepped up as any venerable trial lawyer would and hushed his client quickly. “The judge is only making suggestions, Bill. And I’m not sure he isn’t so far off the mark. I gather now that Marti is away you have not yet found someone with proven ability to manage your property, and for a fair wage, besides. I’m saying that you and I should consider the mediator’s suggestion and kick this idea around before rejecting it, if that’s what we decide to do later.”
“Okay, Harry,” Bill said plaintively. “I know I’m emotionally blinded at the moment. It’s such a roller coaster ride for me. Here’s a woman who is on trial for murdering my father, and I’m supposed to roll over and give her a pension? That still sounds crazy to me, no matter how you package it.”
“We’ll talk, Bill, believe me this isn’t easy for anyone,” Corrigan reassured his client. “But you need to remember that a jury of twelve people you’ve never met, who probably have different voting records than you, will be deciding this case. We face some risk in going to trial, and that’s not just an abstraction. We don’t know what the court’s expert will say at trial.”
Bingo! Farrington jumped in immediately. “I only found out moments ago from Mr. Malone that the deposition of the court’s expert has not been taken. I must say, I am very surprised by this revelation. I’ve tried a few cases over the fifty years I’ve been in this business, and I can’t remember one time when we didn’t know before trial just exactly what any key and pivotal expert witness was prepared to say at trial. If we needed to take a deposition, so be it. We went to trial prepared.”
“I’m not especially thrilled with this approach myself, Judge. And if things were any different, Dr. Borodin’s deposition would have been scheduled just as soon as she indicated her readiness to testify.” Corrigan then rounded out his reply by explaining the strategy involved.
“We talked about this very subject at length over these many months of preparation for trial. It boiled down to determining that our prospects of reaching a more favorable settlement would be enhanced if our side did not take the calculated risk of finding out what Borodin was thinking and thereby possibly losing the edge we now enjoy with our two experts’ opinions. I’m certain that you as an experienced trial attorney and judge, Your Honor, know what I’m talking about. We’re trading one virtue for another, you know, absolute preparation versus bargaining advantage before trial ever takes place. If we settle favorably without Borodin’s deposition, all the better,” and he exhaled a heavy sigh while recapturing his thoughts and former rhythm.
“I certainly understand the pressures on all sides of this case,” Farrington began, “and I’m not going to test your credulity by saying that I’ve never faced tough tactical decisions like this. I will offer the following, however. Now that I find myself serving as an extension of the bench, my instincts have been readjusted. I can fully understand your trial strategy, yet the complete picture also involves conservation of the resources of the judiciary and the public. I don’t want to sound superior, mind you, but my job deals with the interests of justice in a very real sense and while I fully respect the interests and needs of the litigants, I must say I find it impossible to discharge my obligations as a mediator and proceed with this process until everyone know
s what Dr. Borodin thinks.”
“Well, Judge, I think it’s fair to add something here. A bigger issue that we have not even considered is whether the jury could give Barnes the entire Three Rivers estate as opposed to only the life estate which her attorney is focusing on now,” Corrigan said warily.
“That’s absolutely right,” Farrington chimed in, “the quoted promise was not specific as to the tenure of this interest. In other words, if the case takes a bad turn you could find that the estate loses a major asset forever as opposed to having Barnes live there for the rest of her life or some other time period the parties agree upon.
“Anyway, I’ve accomplished all I can for the moment,” Farrington stated, “and by focusing your attention on these problems, my suggestion is to think seriously about the future of the Martorano family and the estate and if it costs some money now to guarantee the long-term consequences in your favor, you must be very careful. My guess is that Bill Martorano’s siblings are looking to him for leadership. It’s a heavy burden, no question, but he doesn’t want to miss an important point because his emotions got the better of him.
“As for the next step in this mediation, if your side is prepared to make a settlement proposal without benefit of the knowledge of Dr. Borodin’s expert opinion, it should be presented now. If your proposal is not accepted, then I will obtain authority from Judge Crouch to order the deposition of Dr. Borodin be taken immediately, after which we will resume the mediation process with full knowledge of this crucial information.” Farrington took a moment and waited for his pressure tactic to settle into the joint consciousness of Corrigan and his client.
Farrington was jolted by the next utterance from Corrigan. “I guess now is as good a time as any, okay, Bill?”
Bill Martorano: “It’s playing out pretty much as you said it would. It’s okay with me, please let the judge know our position on settlement.”
(2012) The Court's Expert Page 26
