The Rainmaker (49 page)

“There’s talk of a class action, you know,” he says, his eyes glistening and blinking at me suspiciously. He knows I know nothing about any class action.

“Where?”

“Some lawyers in Raleigh. They have a handful of small bad-faith claims against Great Benefit, but they’re waiting. The company has yet to get hit. I suspect they quietly settle the ones that worry them.”

“How many policies are out there?” I’ve actually asked this question in discovery, and am still waiting for a reply.

“Just under a hundred thousand. If you figure a claim rate of ten percent, that’s ten thousand claims a year, about the average for the industry. Let’s say they deny, just for the hell of it, half of the claims. Down to five thousand. The average claim is ten thousand dollars. Five thousand times ten thousand is fifty million bucks. And let’s say they spend ten million, just a figure from the air, to settle the few lawsuits that pop up. They clear forty million with their little plot, then maybe the next year they start paying the legitimate claims again. Skip a year, go back to the denial routine. Cook up another scheme. They make so damned much money they can afford to screw anybody.”

I stare at him for a long time, then ask, “Can you prove this?”

“Nope. Just a hunch. It’s probably impossible to prove because it’s so incriminating. This company does some incredibly stupid things, but I doubt if they’re dumb enough to put something this bad in writing.”

I start to mention the Stupid Letter, but decide against it. He’s on a roll. He’ll win every battle of one-upsmanship.

“Are you active in any trial lawyer groups?” he asks.

“No. I just started practicing a few months ago.”

“I’m pretty active. There’s a loose network of us lawyers who enjoy suing insurance companies for bad faith. We keep in touch, you know. Lots of gossip. I’m hearing Great Benefit this and Great Benefit that. I think they’ve denied too many claims. Everybody’s sorta waiting for the first big trial to expose them. A huge verdict will start the stampede.”

“I’m not sure about the verdict, but I can guarantee there will be a trial.”

He says he might call his buddies, work the network, interface, gather the gossip, see what’s coming down around the country. And he might just be in Memphis in February to watch the trial. One big verdict, he says again, will burst the dam.

I SPEND HALF of the next day backtracking through Jackson’s file, then thank him and leave. He insists that I keep in touch. He has a hunch that a lot of lawyers will be watching our trial.

Why does this scare me?

I drive to Memphis in twelve hours. As I unload the Volvo behind Miss Birdie’s dark house, a light snow begins to fall. Tomorrow is the new year.

Forty

T
HE PRETRIAL CONFERENCE IS HELD IN the middle of January in Judge Kipler’s courtroom. He arranges us around the defense table, and stations his bailiff at the door to keep wandering lawyers out. He sits at one end, without his robe, his secretary on one side, his court reporter on the other. I’m to his right, with my back to the courtroom, and across the table is the entire defense team. It’s the first time I’ve seen Drummond since Kord’s deposition on December 12, and it’s a struggle to be civil. Every time I pick up my office phone I can see this well-dressed, perfectly groomed and highly respected thug listening to my conversation.

Both sides have submitted proposed pretrial orders, and we’ll work out the kinks today. The final order will serve as a blueprint for the trial.

Kipler was only slightly surprised when I showed him the manuals I borrowed from Cooper Jackson. He’s carefully compared them to the manuals submitted to me by Drummond. According to His Honor, I am not required
to notify Drummond that I know now they’ve withheld documents. I’m perfectly within the rules to wait until the trial, then spring this on Great Benefit in front of the jury.

It should be devastating. I’ll yank down their pants before the jury and watch them run for cover.

We get to the witnesses. I’ve listed the names of just about everybody connected with the case.

“Jackie Lemancyzk no longer works for my client,” Drummond says.

“Do you know where she is?” Kipler asks me.

“No.” This is true. I’ve made a hundred phone calls to the Cleveland area and have not found a trace of Jackie Lemancyzk. I even convinced Butch to try and track her by phone, and he had the same luck.

“Do you?” he asks Drummond.

“No.”

“So she’s a maybe.”

“That’s correct.”

Drummond and T. Pierce Morehouse think this is funny. They exchange frustrated grins. It won’t be so cute if we’re able to find her and get her to testify. This, however, is a long shot.

“What about Bobby Ott?” Kipler asks.

“Another maybe,” I say. Both sides can list the people they reasonably expect to call at trial. Ott looks doubtful, but if he turns up I want the right to call him as a witness. Again, I’ve had Butch asking around for Bobby Ott.

We discuss experts. I have only two, Dr. Walter Kord and Randall Gaskin, the cancer clinic administrator. Drummond has listed one, a Dr. Milton Jiffy from Syracuse. I chose not to depose him for two reasons. First, it would be too expensive to travel up there and do it, and, more important, I know what he’s going to say. He’ll testify that bone marrow transplants are too experimental to be considered proper and reasonable medical treatments.
Walter Kord is incensed over this, and will help me prepare a cross-examination.

Kipler doubts if Jiffy will ever testify.

We haggle over documents for an hour. Drummond assures the judge that they’ve come clean and handed over everything. He would appear convincing to anyone else, but I suspect he’s lying. So does Kipler.

“What about the plaintiff’s request for information about the total number of policies in existence during the past two years, the total number of claims filed for the same period and the total number of claims denied?”

Drummond breathes deeply and just looks downright perplexed. “We’re working on it, Your Honor, I swear we are. The information is scattered in various regional offices around the country. My client has thirty-one state offices, seventeen district offices, five regional offices, it’s just hard to—”

“Does your client have computers?”

Total frustration. “Of course. But it’s not a simple matter of punching a few keys somewhere and, Presto!, here’s the printout.”

“The trial starts in three weeks, Mr. Drummond. I want that information.”

“We’re trying, Your Honor. I remind my client every day.”

“Get it!” Kipler insists, even pointing at the great Leo F. Drummond. Morehouse, Hill, Plunk and Grone collectively sink a few inches, but still keep up their scribbling.

We move on to less sensitive matters. We agree that two weeks should be set aside for the trial, though Kipler has confided in me he plans to push hard for a five-day trial. We finish the conference in two hours.

“Now, gentlemen, what about settlement negotiations?” Of course, I’ve told him their latest offer was a hundred and seventy-five thousand. He also knows Dot
Black cares nothing about settling. She doesn’t want a dime. She wants blood.

“What’s your best offer, Mr. Drummond?”

There are some satisfied looks among the five, as if something dramatic is about to come down. “Well, Your Honor, as of this morning, I’ve been authorized by my client to offer two hundred thousand dollars to settle,” Drummond says with a rather weak effort at drama.

“Mr. Baylor.”

“Sorry. My client has instructed me not to settle.”

“For any amount?”

“That’s correct. She wants a jury in that box over there, and she wants the world to know what happened to her son.”

Shock and bewilderment from the other side of the table. I’ve never seen so much head shaking. The judge himself manages to look puzzled.

I’ve barely talked to Dot since the funeral. The few brief conversations I’ve attempted have not gone well. She’s grieving, and angry, and this is perfectly understandable. She blames Great Benefit, the system, the doctors, the lawyers, sometimes even me for Donny Ray’s death. And I understand this too. She neither needs nor wants their money. She wants justice. As she said on the front porch the last time I stopped by, “I want them sumbitches outta business.”

“That’s outrageous,” Drummond says dramatically.

“There’s gonna be a trial, Leo,” I say. “Get ready for it.”

Kipler points to a file and his secretary gives it to him. He hands a list of some sort to both Drummond and myself. “Now, these are the names and addresses of the potential jurors. Ninety-two, I believe, though I’m sure some have moved or whatever.” I grab the list and immediately start reading the names. There are a million people
in this county. Do I really anticipate knowing any of these people? Nothing but strangers.

“We’ll pick the jury a week before the trial, so be ready to go on February 1. You may investigate their backgrounds, but, of course, any direct contact is a serious offense.”

“Where are the questionnaire cards?” Drummond asks. Each prospective juror fills out a card, giving such basic data as age, race, sex, place of employment, type of job and educational level. Often, this is all the information a lawyer has about a juror when the selection process begins.

“We’re working on them. They’ll be mailed tomorrow. Anything else?”

“No sir,” I say.

Drummond shakes his head.

“I want that policy and claims information soon, Mr. Drummond.”

“We’re trying, Your Honor.”

I EAT LUNCH ALONE at the food co-op near our office. Black beans and risotto, herbal tea. I feel healthier every time I come in here. I eat slowly, stirring my beans and staring at the ninety-two names on the jury list. Drummond, with his limitless resources, will use a team of investigators who’ll seek out these people and explore their lives. They’ll do things like secretly photograph their homes and automobiles, find out if they’ve been involved in any litigation, obtain their credit reports and employment histories, dig for dirt on possible divorces or bankruptcies or criminal charges. They’ll scour public records and learn how much these people paid for their homes. The only prohibition is personal contact, either directly or through an intermediary.

By the time we’re all gathered in the courtroom to select
the chosen twelve, Drummond et al. will have a nice file on each of these people. The files will be evaluated not only by him and his buddies, but they’ll also be thoroughly analyzed by a team of professional jury consultants. In the history of American jurisprudence, jury consultants are a relatively new animal. They’re usually lawyers with some degree of skill and expertise in the study of human nature. Many are also psychiatrists or psychologists. They roam the country selling their horribly expensive skills to those lawyers who can afford them.

In law school, I heard a story about a jury consultant hired by Jonathan Lake for a fee of eighty thousand dollars. The jury brought back a verdict of several million, so the fee was peanuts.

Drummond’s jury consultants will actually be in the courtroom as we select the jury. They’ll be inconspicuous as they watch these unsuspecting people. They’ll study faces and body language and dress and manners and God knows what else.

I, on the other hand, have Deck, who’s a study in human nature in his own right. We’ll get a list to Butch and to Booker, and to anybody else who might recognize a name or two. We’ll make some phone calls, maybe check a few addresses, but our job is much harder. For the most part, we’ll be stuck with the task of trying to select people based on their appearance in court.

Forty-one

I
GO TO THE MALL AT LEAST THREE TIMES A week now, usually in time for dinner. In fact, I have my own table on the promenade, next to the railing overlooking the ice rink, where I eat chicken chow mein from Wong’s and watch the small children skate below. The table also gives me a safe view of the pedestrian traffic, so I won’t get caught. She’s walked by only once, alone and going nowhere in particular, it seemed. I wanted so desperately to ease beside her, take her hand and lead her off into a chic little boutique where we could hide between the racks and talk about something.

This is the largest mall for many miles, and at times it’s quite crowded. I watch the people bustle about and wonder if any of them might be on my jury. How do I find ninety-two people out of a million?

Impossible. I do the best with what’s available. Deck and I quickly made flash cards out of the juror questionnaires, and I keep a collection with me at all times.

I sit here tonight, on the promenade, glancing at the people walking the mall, then flashing another card from
my stack: R. C. Badley is the name in bold letters. Age forty-seven, white male, plumber, high school education, lives in a southeast Memphis suburb. I flip the card to make sure my memory is perfect. It is. I’ve done this so much I’m already sick of these people. Their names are tacked to a wall in my office, and I stand there for at least an hour a day studying what I’ve already memorized. Next card: Lionel Barton, age twenty-four, black male, part-time college student and sales clerk at an auto parts store, lives in an apartment in South Memphis.

My model juror is young and black with at least a high school education. It’s ancient wisdom that blacks make better plaintiff’s jurors. They feel for the underdog and distrust white corporate America. Who can blame them?

I have mixed feelings about men versus women. Conventional wisdom says that women are stingier with money because they feel the pinch of the family finances. They’re less likely to return a large award because none of the money will go to their personal checkbooks. But Max Leuberg tends to favor women in this case because they’re mothers. They’ll feel the pain of a lost child. They’ll identify with Dot, and if I do my job well and get them properly inflamed, they’ll try to put Great Benefit out of business. I think he’s right.