“Judge, as I’m certain you probably suspect already, we came here prepared to negotiate a fair settlement of this case. We have our offer in mind, but before I outline it for you, I want you to know we’re very serious about this. We have one offer and one offer only. If Malone and his client can’t see the merit of it, we’ll go to trial and take our chances,” Corrigan explained.
“We know there could develop some sympathy for Marti Barnes if the case is tried well. On that score, I’m certain Malone can hold his own in a criminal trial, but he’s a fish out of water on the civil side. Anyway, we’ve spent countless hours on the pondering of the imponderables, as we like to say, and here’s the offer: the estate would recommend payment of $100,000 to Barnes for a full release of all claims, and we’d offer the estate’s concurrence if the district attorney is willing to make a motion to dismiss the criminal charges. We understand that while a criminal case is pending, the estate has no direct say in its ultimate outcome, since it’s a matter in the hands of the DA, who represents the interests of the People of the State of California, and it cannot be bargained away in a civil proceeding. We simply want it known that the estate would not make a fuss if the charges were dismissed by the judge in the interests of justice.
“So far as Malone is concerned, we’ll pay his attorney fees in this civil case, but not to exceed fifty thousand dollars. We’re confident he can present a billing statement that supports an amount of that size, Your Honor,” Corrigan finished, and settled into his chair as though he was just the most comfortably positioned person in the room.
After a moment, Farrington picked up the dialogue. “I’m hearing that you have one offer, take it or leave it, and there’s no interest in dickering, correct?”
“Yes, that’s right, Judge, and please take no affront, because none is intended. We have the highest confidence in your abilities in this setting, but we want to get a basic point across to Malone and his client. These are big stakes involved here. If they like the offer, they’re welcome to take it. Since we can’t eliminate the criminal charge here, that’s the best we can do. It’s hard for me to think that the criminal charges won’t disappear once the civil case resolves, but my guess is no better than any other. And believe me, Judge, I’m not happy to think that I’m tying your hands in any way, but I want you to know our position. Please don’t misunderstand. If we get Dr. Borodin’s deposition, we could very well find our way back here and negotiate with a different objective in mind. But for now, this is who we are and what we’re about.” Corrigan started to busy himself by collecting his things into one neat pile.
Moments passed without conversation from anyone.
Ultimately, it was Farrington who spoke. “All right. I have a duty to pass along the offer. Naturally, I have no idea what the response might be. I’ll excuse you both now and ask that you send Mr. Malone and his client back in here if you happen to spot them before I start making calls to summon them. Thanks for your candor. It’s appreciated.”
Within five minutes, Malone and Barnes were back in conference with Farrington. He related the estate’s offer. When he concluded his remarks, Malone made a raucous noise probably intended as a mighty scoff, but no one could be certain exactly. Barnes burst into tears, and a long moment passed with no conversation.
Farrington was first to break the silence. “Any questions of me about the offer?” he asked.
“Not really,” Malone replied.
“Judge Farrington,” Barnes begged, “what should I do?” desperately trying to make some sense out of this development. “I really don’t understand the meaning or where I am in this case or what I should be doing,” she whispered hoarsely, revealing both desperation and anger mixed together.
“Mr. Malone gives the legal advice in this room,” Farrington emphasized. “If there are any questions that occur to you about the implications of the offer you are welcome to voice them now.”
More silence in the mediation conference room. Malone was the first to speak. “Judge, the offer is insulting, that’s just all there is to it. If my client wins, her payoff is many times greater than what is on the table now,” he complained bitterly.
“Judge Farrington,” Barnes broke in anxiously, “what am I to do?”
“As I say, ma’am, I’m the mediator. Mr. Malone is the one to ask that particular question,” Farrington said as he tried to redirect her focus. “I can help you try to understand what is at stake so that you appreciate what is being offered by the defense,” he added.
“I’m so desperate to just be rid of all this turmoil and uncertainty in my life. With all that I’ve been through since this awful tragedy occurred, almost anything that promises an end is tempting. On the other hand, this ugly situation has actually made me stronger in many ways, and, who knows, maybe I could endure a trial and maybe even come out a winner. But there is so much at stake …” and she trailed off into a tears and coughing jag not uncommon these last many months.
Malone and Farrington stood helplessly by as Barnes slowly recovered her composure. Then she spoke: “I’m sorry, but I’m not sorry. I didn’t do anything to deserve this mistreatment. I’ve had a lot of time to think about it. I’ve made it this far and haven’t run out of gas. This is not a miracle of faith or anything. Frankly, I am just so distraught I feel like I want to take the case all the way to find out what a jury thinks of all this stupidity. I admit that my thinking may be flawed because I haven’t seen much sunshine for a long time, but there’s nothing wrong with my mind, I can assure you. If there is something called ‘justice,’ I’m ready to experience it. It can’t be any worse than what I’ve already endured,” and she settled stoically into her chair without further tears or outbursts, staring straight ahead without expression in her eyes.
Farrington then opened a new subject for discussion. He began to explore Barnes’s license history as a vocational nurse.
“Would either of you like to tell me about the suspension of Ms. Barnes’s license some years ago; it has been mentioned by representatives of the estate who gave me permission to discuss the point with you folks.”
Malone barked back impulsively: “Not that nonsense, again. They’ve tried to scare us before, but it won’t work, not now or at trial. We’re ready for them!” and he snorted, giving a short demonstration of a Spanish bullfighter controlling el toro in the ring.
“Well,” Farrington interrupted, “you might want to know that the estate people will try to use the death of a patient against your client in the will-contest case!”
“Oh, that’s nothing,” Malone retorted. “It was too bad that someone lost his life, but it was either him or my client. Simple as that. She had to fight for her life. We know all about the hospital incident in Porterville. It’s all over with, and Marti has had her license back for many years.”
“Then you know about her use of an outlawed choke hold that caused the patient’s death,” Farrington ventured.
“What? What?” Malone sputtered repeatedly before catching his breath.
He turned instantly to look at his client whose gaze told him everything he needed to know at this point. Almost begging now, Malone pleaded for further explanation.
Warily now, Barnes turned in her chair to address both men, but focused with all her effort on her protector and advocate. Barely audibly, she began to describe her position in measured phrases.
“I mentioned the license history to you, Mr. Malone, but I never filled in a lot of the details. For two reasons, really. I didn’t want to chance losing you as my attorney, and for a very long time I have suppressed the ugly details of that awful day, and I’ve done everything I can not to dredge up the old feelings. Now I have no choice,” she sniffled.
“You see, I did some law enforcement work when I was much younger, and I received training in the use of choke holds. Over time, law enforcement moved away from using those techniques, but I retained my instincts. The patient involved in the incident at the hospital weighed over 300 pou
nds, compared to my 122 pounds. I spotted him fourteen inches in height and I don’t know how much in reach. I’m not going to relive that terrible incident for anyone, ever, but you must know that I was alone with the patient when he went off. Over what, I’m not certain. He grabbed me. Maybe he mistook me for someone else, because we had always maintained a decent relationship over the time I had known him. I tried to talk some sense into him. He seemed spacey, as if maybe he had gotten into something he shouldn’t have. Anyway, I screamed for help, but no one came or even responded audibly. He grabbed at my throat, and I suddenly realized I had very few options. And whatever they were, I needed to get moving, because he was choking the life out of me. I intentionally used the choke hold on him, because I sincerely believed my life was threatened. It worked for me, but not so well for the patient as you know.
“There was a major investigation with lots of statements and hundreds of pages of written reports. The family sued the hospital and me. We never went to trial because the case settled modestly, but that case was as big an ordeal as what I’m facing now. I’m sorry, Mr. Malone, that I never told you all of this before, but like I said, I didn’t think it mattered, and I was fearful that you might drop my case.” She rotated in her chair so that she was no longer looking in the direction of either Malone or Farrington. Quiet sniffling ensued.
They exchanged glances, and Malone spoke first.
“Marti, you never have to worry that I would ever leave you alone in this crazy situation,” he affirmed with solemn emphasis. “It’s true that we never discussed your hospital history in this much detail before. Nonetheless, I’ve heard some other tales about life-threatening crises. I have absolute confidence in your innocence and, quite frankly, I don’t see how the prosecutor can get anything out of the hospital incident that a judge would let him tell the jury in this case. If that happened, we’d have an appeal issue for certain,” he announced with confidence.
A further round of quiet pervaded the room for a solid five minutes. No one spoke until the mediator broke the stifling silence.
“Then you wish to reject the offer from the estate, is that correct?” Farrington asked for confirmation.
“Yes, Judge,” Malone said. “I told my client I would be at her side throughout these proceedings until such time as she asked for a settlement short of trial, or trials, as we know in this matter. We’re still side by side on our way to whatever verdicts are in store for her.”
“Okay,” Farrington acknowledged, “if you see the other side out there, send them in, would you please?”
“Certainly, Judge, and thank you for your efforts in this case, goes without saying,” Malone offered over his shoulder while ushering his emotionally battered client into the corridor to meet the bailiff.
Corrigan and Bill Martorano joined Farrington in the conference room. He reported rejection of the estate’s offer. Martorano erupted predictably, and Corrigan reassured his client that this was just a practice round. Many more skirmishes lay ahead before peace might be reached, if that could really ever happen in this case.
Farrington reaffirmed Corrigan’s remarks to the client, repeated frequently over the years as cases like this one moved through the system. “I’m going to excuse you both now, so that I may pick up with the other group,” he declared, with the slightest hint of fatigue. Farrington was certain that this case would not settle anytime soon.
“As I mentioned earlier,” Farrington reminded them, “I’m going to discuss my concern that Dr. Borodin’s deposition be scheduled with resumption of mediation thereafter. Any questions?” he asked.
“Thanks, Judge, no questions,” Corrigan confirmed as he and his client left the room. He greatly appreciated the work Farrington was doing. He understood that Farrington had extensive experience as a litigator, as a highly respected judge, and now as a mediator, so he knew the ropes. The law and the facts were essential ingredients of the formula in any court case, yet the emotional stability and good sense of the parties and their attorneys played a major role in the ultimate outcome of any case.
Farrington tracked Barnes and Malone to the lounge where Malone was engrossed in an NFL show on television. Barnes was trying to distract herself by reading a shopworn magazine, but it wasn’t working. She smiled as she looked up and spotted the mediator making his way toward Malone and her.
“Can you folks spare a minute?” he asked.
“Certainly,” Malone fired back.
“The mediation is now completed for the moment. I will speak with Judge Crouch about setting Dr. Borodin’s deposition. Thereafter, we’ll pick up where we left off.”
18
Deposition
March 2008: Morning Session
An indispensable tool in civil-trial preparation is the oral deposition of a party or witness. Depending on the case and the issues involved, there may be only a few depositions taken; although with more complex issues and attenuated factual circumstances, the number of depositions taken might reach into the dozens—perhaps hundreds in exceptional situations. In this will contest, the central issues were Martorano’s alleged promise to Barnes and the heirship of Guadalupe Figueroa.
A deposition is usually conducted in an attorney’s office in the presence of a court reporter who takes the testimony in shorthand with the use of a machine designed for that purpose. The entire proceeding is then transcribed into a booklet format for later reference. In this will-contest case, after Judge Crouch ordered the appointment of Dr. Borodin as the court’s expert, counsel waited several months for her to investigate and build her file. Once she announced completion of her task and readiness to offer deposition testimony, an unusual silence pervaded the legal battlefield.
Immediately following Farrington’s contact with Judge Crouch, a razor-sharp directive came from the courthouse admonishing trial counsel to schedule and complete transcription of the expert’s deposition testimony within thirty days. Dr. Borodin’s testimony was expected to cover the area of forensic pathology having to do with the cause of death of Martorano. No one would know of her professional conclusions until her deposition was completed or she offered testimony at trial, since she was not ordered to prepare a formal report of her findings and conclusions. There was no guarantee that she would have anything to offer that contradicted the declarations already filed by the two experts in support of the MSJ. Judge Crouch’s decision on the MSJ was held in abeyance until this critical deposition was completed and transcribed.
Corrigan’s legal assistant good-naturedly assumed the task of making arrangements to schedule the deposition. Several points of interest were involved. Place of the deposition? Visalia, where the lawsuit was pending and where several lawyers maintained their offices, or Corrigan’s Palo Alto office, since he was the spokesperson for the estate and most keenly interested in the outcome of this particular issue. Fineman, whose office was in West Los Angeles, had no intention of attending the deposition since this expert had nothing to offer on the heirship issue. Only one lawyer in Visalia, Malone, had any immediate interest in this deposition. Malone was on high alert.
Through the application of her considerable skill and charm, Vivian managed to obtain Malone’s approval for the deposition to be scheduled at Corrigan’s office. A significant benefit thereby was conferred since the witness’s costs would be minimized, although Malone cared less since his client’s minimal financial reserves were gone.
“So, send me a bill,” would be Malone’s indifferent response to running up further expenses. Chalk up one advantage of being insolvent at trial. Besides, Malone grabbed any chance to get out of town and travel to the Bay Area.
Normally the attorney requesting a deposition begins the questioning of the witness. Here, Judge Crouch ordered the deposition and stated that Corrigan would initiate the questioning of the witness. Malone, on the other hand, had not given the subject that much attention and was satisfied to be second at bat. No other lawyers attended, although they all requested copies of the trans
cript, a financial windfall to the court reporter. She administered the oath to give truthful testimony, and Corrigan opened with his best get-acquainted circling and questioning.
“Good morning, Doctor Borodin. Am I pronouncing that correctly, Doctor?”
“Yes, thank you, and good morning to you,” she responded attentively.
“Very well. Doctor Borodin, you are aware are you not, that you were appointed by Judge Crouch in this case as an expert witness?”
“Yes, that’s my understanding,” she replied.
“May I inquire, have you offered deposition testimony in the past?”
“Well, I have testified before various inquiry panels before, but I believe this is my first deposition in what I understand is a contested will or probate case,” she responded.
“Very well. I’m going to take a moment to explain some procedural features. Regardless of my comments, if you have questions along the way of either lawyer in the room today, you are most welcome to speak up. Do you understand?”
“Oh, yes, thank you,” she agreed.
“As you can see there is a reporter here taking down all of our words. She will transcribe the questions and responses into a booklet for further reference. It is very important for all of us to speak clearly and not too fast in order to help make the transcript clear and accurate. Understood?” he continued with the opening litany of instructions for the witness.
“Certainly,” she confirmed once again.
“Lawyers do the best they can, yet we don’t always ask questions that witnesses readily understand. If this happens will you promise to ask for clarification before giving your answer?”
“Yes, of course.”
“Of any question that is asked of you, there is always a possibility that an attorney in the room will make an objection for the record before you give an answer. Please don’t be alarmed, since this is routine in these proceedings. There is no judge present during the deposition and disputed legal issues are resolved at a later date, if necessary, when a motion is made and the judge gives us a ruling. Once the attorneys’ comments are uttered and the record is made, as we like to say, please continue with your response to the question. I will say that in some cases, the comments of the lawyers are distracting, so if you are unclear about the pending question you may ask the reporter to read it for you before making your response.
(2012) The Court's Expert Page 27
