Preferential Treatment, page 26
Montgomery picked up on the import of the objection made by his lawyer. “First, Mr. Fabian, I cannot say that the surgery caused or contributed to Mr. Gunther’s eventual outcome. I do believe, however, that the loss of five hundred ccs. of blood and the excellent job of our anesthesiologist, Dr. LaCava, keeping the blood pressure at a satisfactory level, would not have caused damage to the patient.”
“How about the second bleed, the one the chart indicated caused a loss of an additional twenty-two hundred ccs. of blood before you were able to gain control once again?”
“Same answer,” Montgomery answered with confidence. “Dr. LaCava and her anesthetist did an excellent job of keeping up the pressure to prevent damage, although it did dip lower than during the first bleed. Also, the second bleed, as you call it, happened over a period of time, not all at once.”
“Now, Doctor, after you got the second bleed stopped, is it true that you had not clipped either of these aneurysms?”
“That is correct.”
“And it wasn’t until after you called for the experienced hand of Dr. Hall that you finally clipped the deepest aneurysm, correct?”
“That is correct.”
“Before I have you continue with your plan to repair the second aneurysm, could you tell me how many aneurysm surgeries you had performed at St. John’s Hospital prior to Mr. Gunther’s surgery?”
“None. This was the first surgery I had performed at St. John’s.”
“So, is it fair to say that you had no experience with any of the operating personnel before Mr. Gunther’s surgery?”
“Yes.”
“And prior to Mr. Gunther’s surgery had you ever even met any of these folks?”
“No, I had never met them.”
“In light of that, is it true that you had no meeting with any of them to discuss the surgery before you began to operate?”
“That is correct.”
“Doctor, your counsel has been kind enough to provide us with a copy of a diary, for lack of a better word, of surgeries you performed or assisted in during you five years of residency training.”
Fabian had the doctor’s diary marked as an exhibit and had it identified by him as being a complete record of his surgeries.
“Doctor, I have reviewed this diary, and it appears to cover surgeries you either performed as the primary surgeon or ones in which you assisted during your residency, is that a fair characterization of this diary?”
“I prefer to call it a log of surgeries, but, yes, that is a fair characterization.”
“And is it complete insofar as a chronicle of the surgeries you participated in during your entire neurosurgical residency?”
“Yes, to the best of my knowledge.”
“Is this log written entirely in your own handwriting, and is it accurate to the best of your knowledge?”
“Yes, as best as I can recall.”
“I have gone over this log very carefully and counted the number of surgeries that involved the clipping of intracranial aneurysms. I have found that during your entire five years of training you participated in thirteen of these surgeries.”
“Yes, I checked on that while preparing for this deposition, and thirteen is correct.”
“Of those thirteen surgeries, I count that you had only been the primary surgeon in six of the thirteen, is that accurate?”
“Yes, I believe that’s true.”
“And of those six in which you were the primary surgeon, only two had been on aneurysms located on the internal carotid artery, correct?”
“Yes.”
“Doctor, how many of these two internal carotid artery aneurysms were of the paraclinoid variety such as you were faced in Mr. Gunther’s surgery?”
“None that I recall.”
“And of the thirteen total aneurysm surgeries you participated in, whether as a primary or assistant surgeon, were there ever multiple aneurysms that needed to be repaired?”
“I believe two involved multiple aneurysms.”
“And of these two surgeries, how many were on the internal carotid artery?”
“None.”
“So, am I correct that you had never participated in any surgery on any patient that had multiple aneurysms on the internal carotid artery until you performed the surgery on Joseph Gunther?”
“Yes, that is correct.”
“Let’s get back to Mr. Gunther’s surgery. You were trying to answer my question about how you planned to gain proximal control of the paraclinoid artery aneurysm in the event of a rupture. I believe you were at the point when you called in Dr. Hall to become your first assistant in the place of Ms. Cabot. Once Dr. Hall arrived, please tell me what your plan was to gain proximal control of the bleeding from the paraclinoid aneurysm if it ruptured.”
“Well, as I was saying, Dr. Hall came in, and we started to try to clip the deepest aneurysm on the internal carotid.”
“You’re not answering my question,” Fabian snapped. “I asked you what your plan was to gain proximal control of the bleeding from the paraclinoid aneurysm if it ruptured. Please listen to my question.”
“Okay, there were a number of things I wanted to do. First, I wanted to get the first aneurysm, the deeper internal carotid artery one, dissected out and clipped. Once that was done, I needed to dissect out the paraclinoid aneurysm, drill down the clinoid process to get better exposure, and get a clip on it.”
“And that was your plan?”
“Yes, basically that was it.”
Fabian was satisfied. He knew that the neurosurgeon’s only plan was, in fact, no plan at all. Montgomery would attempt to clip the aneurysm before it ruptured, and if he didn’t, he would be faced with the disaster he eventually had to confront with no effective and immediate avenue to gain control of the bleed.
Satisfied he had gotten some valuable concessions from the doctor and had locked him in on some crucial facts, Fabian decided to forgo asking any questions about his other theories of negligence. He could establish those theories through other witnesses and cross-examine Montgomery about them at trial.
Instead, Fabian embarked upon the mundane chore of painstakingly having the doctor take him through the surgery step by minute step, explaining exactly what he did and why he did it. He hated this task in a medical negligence deposition involving a botched surgery, but it was necessary to get a complete picture of what was in the surgeon’s mind and his reasoning for undertaking each step of the operation. He had learned from bitter experience that the doctor’s deposition was the time to lock in all of the facts.
After plodding through Montgomery’s recollections of the surgery, Fabian shifted gears.
“Doctor, what neurosurgeons do you look up to as experts in the area of intercranial aneurysm surgery?”
“Bates, McClure, Tan, to name a few. I also think Dr. Antonio Sienna, as a neurosurgeon and expert in aneurysm surgery, is excellent.”
“The guy that trained you in St. Louis?”
“Dr. Sienna, yes.”
“And I’m sure you have heard of Dr. Robert Blakely. Do you view him as an expert in aneurysm surgery?”
“I know of Dr. Blakely. He is known to be a neurosurgeon who has written some book chapters and articles on aneurysm surgery.”
“And do you consider him an authority in the area of aneurysm surgery?”
Montgomery held his ground. “Like I say, he’s a neurosurgeon who has written on the topic.”
Fabian knew that he would not get the concession he was looking for. Cohen had prepared him well for this expected question.
Fabian again shifted gears. “Doctor, had you been able to get the clips on each of Mr. Gunther’s aneurysms successfully without the significant bleeding and brain swelling that has been documented in the chart, do you have an opinion as to the likely outcome that your patient would have had?”
“I have no reason to believe it would not have been good.”
“And by good do you mean he would have been able to walk, talk, work, and lead a normal life?”
“That would have been my expectation.”
“Now, finally, to wrap this thing up, I have one more question that Ms. Cohen so desperately wanted me to ask you at the onset of this deposition. What is your name?”
CHAPTER 22
Early the following Tuesday morning, Amanda Cohen arrived at her office. She felt refreshed having taken the Sunday and Labor Day off after Ancil Montgomery’s ten and one-half hour deposition. Although not totally pleased with her client’s performance, she felt it was adequate. She poured a cup of coffee and retired to her office to begin preparation for her next endeavor.
Facing her was a jury trial involving an inebriated employee of her corporate client, Jameson Logistics, Inc. The company had been sued for the wrongful death of a housewife and her two children, victims of a senseless traffic accident. It was a loser, and Amanda knew it. All she had to argue about was how much the insurance company had to cough up. Glad I get paid by the hour and not based on whether I win or lose, she mused.
Two hours after mulling through discovery responses provided by the plaintiff’s attorney, her boss and new “mentor” breezed into her office.
“Good morning,” a tanned and happy-looking Woodall chirped. “You’re looking at the new club champion of Riverview Country Club.”
“Congratulations,” Cohen replied. She found it difficult to disguise her sarcasm.
“So, how did the depo of our client go?”
“As well as could be expected,” Cohen frowned.
“What happened?” Woodall asked, afraid of the answer he was about to receive.
“Oh, he did okay. He got off track a few times and rambled a little, but all in all he followed my instructions pretty well. They scored a few points, but I expected that to happen. Fabian knows what he’s doing.”
“And so do you, Young Lady. What’s up next?”
“Well, the first thing on my plate will be defending a drunk driving wrongful death case next month, which, I might add, I’m going to get hammered on. In the Gunther case, we have to disclose Dr. Sienna’s 26(b)(4) information, finish answering plaintiffs’ discovery requests, travel literally all over the country taking a bunch of depositions of plaintiffs’ fact witnesses and experts, get our own experts to counter their damage experts, and sit through plaintiffs’ depositions of our experts—little things like that. Other than that, nothing much.”
“An idle mind is the devil’s workshop. Just think how many billable hours you’ll rack up. All of us partners will be very pleased.”
“And what will the partners think if we get a bad result?” she asked.
“Let’s not think negatively. Just keep up the good work, and you’ll be rewarded. Take it from the voice of experience.”
Cohen hoped her boss didn’t see her cringe at his abject disingenuousness.
Woodall rose and turned to leave. “Well, you’ve obviously got a lot of work to do. Let me know if you have any questions.”
The trial of Dulaney v. Jameson Logistics, Inc., came down worse than anyone expected at Darnell-Smyth and at the headquarters of defendant’s insurance company, Transport Indemnity. The plaintiff’s counsel had made the final demand for settlement on the courthouse steps just prior to the commencement of the trial—$5 Million—the insurance policy limits. He also reminded Cohen that in the event of a verdict in excess of the defendant’s policy limits, he fully intended to collect the excess from the defendant company or its insurance carrier. The offer of settlement, deemed by the insurance adjuster shepherding the case as “patently ridiculous,” was immediately rejected without a counteroffer, and the case proceeded to trial. After seven days of the plaintiff’s attorney’s unmerciful attack on the defendant and its employee, the jury returned a verdict of $10,750,000—$5 Million in compensatory damages and the balance in punitive damages—a record verdict in the history of Nobel County.
The insurance adjuster on the case, in retrospect, had grossly underestimated the case’s potential enormity despite the fact that he had been strongly advised by Cohen to settle for the insurance policy limits. The adjuster hit the speed dial button as soon as the verdict was announced. The number dialed was the direct line to Woodall.
“Bad news, Counselor. We just got crushed, and your firm and talented associate, Ms. Cohen, whom you touted so loudly as a ‘star,’ will be held responsible.”
“How bad?” Woodall stammered.
“Would you believe $10,750,000—over twice the policy limits? I guess your firm now has the distinction of holding the record for the worst loss in the history of Nobel County civil jurisprudence.”
“Jesus,” Woodall whispered softly. “What happened?”
“Ask your star, Ms. Cohen. Then you, as chairman of the crack litigation section of Darnell-Smyth, can explain it to my CEO who has evidently made a terrible error in judgment hiring your outfit in the first place.”
“I’ll take it up with her immediately.”
The telephone went silent. Woodall correctly surmised that the conversation had come to an end. He impatiently awaited his vanquished associate’s return from the courthouse.
Amanda quietly slunk into her office pushing a dolly stacked high with boxes of files that represented the work she had done in her futile effort to defend the Dulaney case. She began to unload the boxes and sullenly awaited the inevitable meeting she knew she was about to encounter with her boss.
Before the third box had been unloaded, her intercom buzzed. Slowly and painfully removing the receiver from the cradle, she preemptively said, “I’ll be right in, Mr. Woodall.”
“And bring a good explanation.”
Cohen took a deep breath and walked into Woodall’s spacious and opulent office.
“Have a seat, Young Lady.” Amanda complied, folded her hands in her lap, and stared down at them, afraid to look at her agitated boss. Woodall pursed his lips and leaned back in his chair. “I hear you set a record today. Congratulations.” He gave her a cynical sneer.
Cohen angrily gritted her teeth. She knew that the bad result would be blamed on her, regardless of whatever reasonable explanation she could give. She sat silently and rigidly, refusing to look at the seething Woodall.
Woodall leaned forward in his chair, his fists clenched on the desk in silent rage. “So, what’s your explanation?”
Amanda bristled but tried to compose herself. She knew any outburst toward Woodall would be counterproductive. She was, after all, a lowly associate. She took a deep breath and began. “Let me first remind you that I told you before the trial ever started that this case was a loser. I told you that the case needed to be settled within the policy limits and that the five million in insurance coverage would be an amount that the plaintiff’s lawyer would likely take. In fact, it was his demand just prior to trial. It was my opinion that five million for three lives lost at the hands of a drunken truck driver would be small potatoes compared to what a jury could reasonably return as a verdict, and we all know that unlike med mal cases, there’s no damage cap on auto cases and no protection from punitive damages like the doctors now have. I told you that I had conveyed this to the adjuster in charge and that he scoffed at my recommendation to settle for the limits saying that no Nobel County jury would ever return that kind of verdict. I told him and you that we had absolutely no defense. I warned the adjuster that there was a real likelihood that if there were an excess verdict, a bad faith suit against the insurance company would follow, and the excess would be on them and not on the trucking company. They were duly warned. I covered my rear, and all of the admonitions are well documented.”
Cohen felt her face redden. Her head spun with anger as Woodall continued his sarcastic smirk. She arose abruptly, unable to restrain herself any longer, startling Woodall.
“You, Mr. Woodall, threw me under the bus on this one. You knew it was a loser when you assigned me to this case that no partner in the litigation section would touch with a ten-foot pole. I’m not taking the rap on this one. I did my best with what I had, which was absolutely nothing but a drunken asshole that should’ve never been put behind the wheel of a truck and his idiot employer who knew he was a chronic alcoholic. He killed a mother and her two kids. It was a recipe for disaster from the get-go, and I defy you to say that anybody else could have done any better.”
Amanda paused. She knew she had gone over the line. She sank into her seat and awaited a stern rebuke from a red-faced Woodall.
Woodall knew his associate was right but flew into a feigned rage. “I don’t appreciate your impudence, Ms. Cohen!” Woodall screamed. “Remember to whom you are speaking. Who signs your paychecks? Who hired you in the first place? Who has taken you under his wing and helped you along?”
You’ve got to be shitting me, thought an enraged Amanda. I’d say that was Mr. Darnell until you fucked him over the same way you’re trying to fuck me over.
Amanda held her tongue. She had bills to pay and needed her salary to pay them. She knew it was time to show some remorse. Bowing her head slightly as an act of contrition, she whispered, “You, Mr. Woodall. And I spoke out of turn. I’m sorry. It’s just been a difficult time, and I’ve had a lot on my plate with this case and the Gunther trial coming up in a few short months. It all has really stressed me out.”
Woodall, satisfied with her regretful apology, retreated slightly. He was keenly aware that he had the next big case riding on his associate, and he needed her not to be gun-shy because of one bruising loss. He felt he had finessed the situation well while squarely laying all blame upon her. He smiled disingenuously.
Softly, Woodall said, “It’s a tough business we’re in, Amanda. Sometimes we take it on the chin and have to suck it up. I’ll try to iron it out with the insurance company. They’re mad as hell right now, and they have to point the finger at someone other than themselves. When the hammer drops, it’s always the lawyer’s fault. Right now you’ll probably have to perfect an appeal of the verdict, with the approval of the client, of course. I don’t think they’ll be opposed to that. Now, with that being said, I think you have work to do.”
“How about the second bleed, the one the chart indicated caused a loss of an additional twenty-two hundred ccs. of blood before you were able to gain control once again?”
“Same answer,” Montgomery answered with confidence. “Dr. LaCava and her anesthetist did an excellent job of keeping up the pressure to prevent damage, although it did dip lower than during the first bleed. Also, the second bleed, as you call it, happened over a period of time, not all at once.”
“Now, Doctor, after you got the second bleed stopped, is it true that you had not clipped either of these aneurysms?”
“That is correct.”
“And it wasn’t until after you called for the experienced hand of Dr. Hall that you finally clipped the deepest aneurysm, correct?”
“That is correct.”
“Before I have you continue with your plan to repair the second aneurysm, could you tell me how many aneurysm surgeries you had performed at St. John’s Hospital prior to Mr. Gunther’s surgery?”
“None. This was the first surgery I had performed at St. John’s.”
“So, is it fair to say that you had no experience with any of the operating personnel before Mr. Gunther’s surgery?”
“Yes.”
“And prior to Mr. Gunther’s surgery had you ever even met any of these folks?”
“No, I had never met them.”
“In light of that, is it true that you had no meeting with any of them to discuss the surgery before you began to operate?”
“That is correct.”
“Doctor, your counsel has been kind enough to provide us with a copy of a diary, for lack of a better word, of surgeries you performed or assisted in during you five years of residency training.”
Fabian had the doctor’s diary marked as an exhibit and had it identified by him as being a complete record of his surgeries.
“Doctor, I have reviewed this diary, and it appears to cover surgeries you either performed as the primary surgeon or ones in which you assisted during your residency, is that a fair characterization of this diary?”
“I prefer to call it a log of surgeries, but, yes, that is a fair characterization.”
“And is it complete insofar as a chronicle of the surgeries you participated in during your entire neurosurgical residency?”
“Yes, to the best of my knowledge.”
“Is this log written entirely in your own handwriting, and is it accurate to the best of your knowledge?”
“Yes, as best as I can recall.”
“I have gone over this log very carefully and counted the number of surgeries that involved the clipping of intracranial aneurysms. I have found that during your entire five years of training you participated in thirteen of these surgeries.”
“Yes, I checked on that while preparing for this deposition, and thirteen is correct.”
“Of those thirteen surgeries, I count that you had only been the primary surgeon in six of the thirteen, is that accurate?”
“Yes, I believe that’s true.”
“And of those six in which you were the primary surgeon, only two had been on aneurysms located on the internal carotid artery, correct?”
“Yes.”
“Doctor, how many of these two internal carotid artery aneurysms were of the paraclinoid variety such as you were faced in Mr. Gunther’s surgery?”
“None that I recall.”
“And of the thirteen total aneurysm surgeries you participated in, whether as a primary or assistant surgeon, were there ever multiple aneurysms that needed to be repaired?”
“I believe two involved multiple aneurysms.”
“And of these two surgeries, how many were on the internal carotid artery?”
“None.”
“So, am I correct that you had never participated in any surgery on any patient that had multiple aneurysms on the internal carotid artery until you performed the surgery on Joseph Gunther?”
“Yes, that is correct.”
“Let’s get back to Mr. Gunther’s surgery. You were trying to answer my question about how you planned to gain proximal control of the paraclinoid artery aneurysm in the event of a rupture. I believe you were at the point when you called in Dr. Hall to become your first assistant in the place of Ms. Cabot. Once Dr. Hall arrived, please tell me what your plan was to gain proximal control of the bleeding from the paraclinoid aneurysm if it ruptured.”
“Well, as I was saying, Dr. Hall came in, and we started to try to clip the deepest aneurysm on the internal carotid.”
“You’re not answering my question,” Fabian snapped. “I asked you what your plan was to gain proximal control of the bleeding from the paraclinoid aneurysm if it ruptured. Please listen to my question.”
“Okay, there were a number of things I wanted to do. First, I wanted to get the first aneurysm, the deeper internal carotid artery one, dissected out and clipped. Once that was done, I needed to dissect out the paraclinoid aneurysm, drill down the clinoid process to get better exposure, and get a clip on it.”
“And that was your plan?”
“Yes, basically that was it.”
Fabian was satisfied. He knew that the neurosurgeon’s only plan was, in fact, no plan at all. Montgomery would attempt to clip the aneurysm before it ruptured, and if he didn’t, he would be faced with the disaster he eventually had to confront with no effective and immediate avenue to gain control of the bleed.
Satisfied he had gotten some valuable concessions from the doctor and had locked him in on some crucial facts, Fabian decided to forgo asking any questions about his other theories of negligence. He could establish those theories through other witnesses and cross-examine Montgomery about them at trial.
Instead, Fabian embarked upon the mundane chore of painstakingly having the doctor take him through the surgery step by minute step, explaining exactly what he did and why he did it. He hated this task in a medical negligence deposition involving a botched surgery, but it was necessary to get a complete picture of what was in the surgeon’s mind and his reasoning for undertaking each step of the operation. He had learned from bitter experience that the doctor’s deposition was the time to lock in all of the facts.
After plodding through Montgomery’s recollections of the surgery, Fabian shifted gears.
“Doctor, what neurosurgeons do you look up to as experts in the area of intercranial aneurysm surgery?”
“Bates, McClure, Tan, to name a few. I also think Dr. Antonio Sienna, as a neurosurgeon and expert in aneurysm surgery, is excellent.”
“The guy that trained you in St. Louis?”
“Dr. Sienna, yes.”
“And I’m sure you have heard of Dr. Robert Blakely. Do you view him as an expert in aneurysm surgery?”
“I know of Dr. Blakely. He is known to be a neurosurgeon who has written some book chapters and articles on aneurysm surgery.”
“And do you consider him an authority in the area of aneurysm surgery?”
Montgomery held his ground. “Like I say, he’s a neurosurgeon who has written on the topic.”
Fabian knew that he would not get the concession he was looking for. Cohen had prepared him well for this expected question.
Fabian again shifted gears. “Doctor, had you been able to get the clips on each of Mr. Gunther’s aneurysms successfully without the significant bleeding and brain swelling that has been documented in the chart, do you have an opinion as to the likely outcome that your patient would have had?”
“I have no reason to believe it would not have been good.”
“And by good do you mean he would have been able to walk, talk, work, and lead a normal life?”
“That would have been my expectation.”
“Now, finally, to wrap this thing up, I have one more question that Ms. Cohen so desperately wanted me to ask you at the onset of this deposition. What is your name?”
CHAPTER 22
Early the following Tuesday morning, Amanda Cohen arrived at her office. She felt refreshed having taken the Sunday and Labor Day off after Ancil Montgomery’s ten and one-half hour deposition. Although not totally pleased with her client’s performance, she felt it was adequate. She poured a cup of coffee and retired to her office to begin preparation for her next endeavor.
Facing her was a jury trial involving an inebriated employee of her corporate client, Jameson Logistics, Inc. The company had been sued for the wrongful death of a housewife and her two children, victims of a senseless traffic accident. It was a loser, and Amanda knew it. All she had to argue about was how much the insurance company had to cough up. Glad I get paid by the hour and not based on whether I win or lose, she mused.
Two hours after mulling through discovery responses provided by the plaintiff’s attorney, her boss and new “mentor” breezed into her office.
“Good morning,” a tanned and happy-looking Woodall chirped. “You’re looking at the new club champion of Riverview Country Club.”
“Congratulations,” Cohen replied. She found it difficult to disguise her sarcasm.
“So, how did the depo of our client go?”
“As well as could be expected,” Cohen frowned.
“What happened?” Woodall asked, afraid of the answer he was about to receive.
“Oh, he did okay. He got off track a few times and rambled a little, but all in all he followed my instructions pretty well. They scored a few points, but I expected that to happen. Fabian knows what he’s doing.”
“And so do you, Young Lady. What’s up next?”
“Well, the first thing on my plate will be defending a drunk driving wrongful death case next month, which, I might add, I’m going to get hammered on. In the Gunther case, we have to disclose Dr. Sienna’s 26(b)(4) information, finish answering plaintiffs’ discovery requests, travel literally all over the country taking a bunch of depositions of plaintiffs’ fact witnesses and experts, get our own experts to counter their damage experts, and sit through plaintiffs’ depositions of our experts—little things like that. Other than that, nothing much.”
“An idle mind is the devil’s workshop. Just think how many billable hours you’ll rack up. All of us partners will be very pleased.”
“And what will the partners think if we get a bad result?” she asked.
“Let’s not think negatively. Just keep up the good work, and you’ll be rewarded. Take it from the voice of experience.”
Cohen hoped her boss didn’t see her cringe at his abject disingenuousness.
Woodall rose and turned to leave. “Well, you’ve obviously got a lot of work to do. Let me know if you have any questions.”
The trial of Dulaney v. Jameson Logistics, Inc., came down worse than anyone expected at Darnell-Smyth and at the headquarters of defendant’s insurance company, Transport Indemnity. The plaintiff’s counsel had made the final demand for settlement on the courthouse steps just prior to the commencement of the trial—$5 Million—the insurance policy limits. He also reminded Cohen that in the event of a verdict in excess of the defendant’s policy limits, he fully intended to collect the excess from the defendant company or its insurance carrier. The offer of settlement, deemed by the insurance adjuster shepherding the case as “patently ridiculous,” was immediately rejected without a counteroffer, and the case proceeded to trial. After seven days of the plaintiff’s attorney’s unmerciful attack on the defendant and its employee, the jury returned a verdict of $10,750,000—$5 Million in compensatory damages and the balance in punitive damages—a record verdict in the history of Nobel County.
The insurance adjuster on the case, in retrospect, had grossly underestimated the case’s potential enormity despite the fact that he had been strongly advised by Cohen to settle for the insurance policy limits. The adjuster hit the speed dial button as soon as the verdict was announced. The number dialed was the direct line to Woodall.
“Bad news, Counselor. We just got crushed, and your firm and talented associate, Ms. Cohen, whom you touted so loudly as a ‘star,’ will be held responsible.”
“How bad?” Woodall stammered.
“Would you believe $10,750,000—over twice the policy limits? I guess your firm now has the distinction of holding the record for the worst loss in the history of Nobel County civil jurisprudence.”
“Jesus,” Woodall whispered softly. “What happened?”
“Ask your star, Ms. Cohen. Then you, as chairman of the crack litigation section of Darnell-Smyth, can explain it to my CEO who has evidently made a terrible error in judgment hiring your outfit in the first place.”
“I’ll take it up with her immediately.”
The telephone went silent. Woodall correctly surmised that the conversation had come to an end. He impatiently awaited his vanquished associate’s return from the courthouse.
Amanda quietly slunk into her office pushing a dolly stacked high with boxes of files that represented the work she had done in her futile effort to defend the Dulaney case. She began to unload the boxes and sullenly awaited the inevitable meeting she knew she was about to encounter with her boss.
Before the third box had been unloaded, her intercom buzzed. Slowly and painfully removing the receiver from the cradle, she preemptively said, “I’ll be right in, Mr. Woodall.”
“And bring a good explanation.”
Cohen took a deep breath and walked into Woodall’s spacious and opulent office.
“Have a seat, Young Lady.” Amanda complied, folded her hands in her lap, and stared down at them, afraid to look at her agitated boss. Woodall pursed his lips and leaned back in his chair. “I hear you set a record today. Congratulations.” He gave her a cynical sneer.
Cohen angrily gritted her teeth. She knew that the bad result would be blamed on her, regardless of whatever reasonable explanation she could give. She sat silently and rigidly, refusing to look at the seething Woodall.
Woodall leaned forward in his chair, his fists clenched on the desk in silent rage. “So, what’s your explanation?”
Amanda bristled but tried to compose herself. She knew any outburst toward Woodall would be counterproductive. She was, after all, a lowly associate. She took a deep breath and began. “Let me first remind you that I told you before the trial ever started that this case was a loser. I told you that the case needed to be settled within the policy limits and that the five million in insurance coverage would be an amount that the plaintiff’s lawyer would likely take. In fact, it was his demand just prior to trial. It was my opinion that five million for three lives lost at the hands of a drunken truck driver would be small potatoes compared to what a jury could reasonably return as a verdict, and we all know that unlike med mal cases, there’s no damage cap on auto cases and no protection from punitive damages like the doctors now have. I told you that I had conveyed this to the adjuster in charge and that he scoffed at my recommendation to settle for the limits saying that no Nobel County jury would ever return that kind of verdict. I told him and you that we had absolutely no defense. I warned the adjuster that there was a real likelihood that if there were an excess verdict, a bad faith suit against the insurance company would follow, and the excess would be on them and not on the trucking company. They were duly warned. I covered my rear, and all of the admonitions are well documented.”
Cohen felt her face redden. Her head spun with anger as Woodall continued his sarcastic smirk. She arose abruptly, unable to restrain herself any longer, startling Woodall.
“You, Mr. Woodall, threw me under the bus on this one. You knew it was a loser when you assigned me to this case that no partner in the litigation section would touch with a ten-foot pole. I’m not taking the rap on this one. I did my best with what I had, which was absolutely nothing but a drunken asshole that should’ve never been put behind the wheel of a truck and his idiot employer who knew he was a chronic alcoholic. He killed a mother and her two kids. It was a recipe for disaster from the get-go, and I defy you to say that anybody else could have done any better.”
Amanda paused. She knew she had gone over the line. She sank into her seat and awaited a stern rebuke from a red-faced Woodall.
Woodall knew his associate was right but flew into a feigned rage. “I don’t appreciate your impudence, Ms. Cohen!” Woodall screamed. “Remember to whom you are speaking. Who signs your paychecks? Who hired you in the first place? Who has taken you under his wing and helped you along?”
You’ve got to be shitting me, thought an enraged Amanda. I’d say that was Mr. Darnell until you fucked him over the same way you’re trying to fuck me over.
Amanda held her tongue. She had bills to pay and needed her salary to pay them. She knew it was time to show some remorse. Bowing her head slightly as an act of contrition, she whispered, “You, Mr. Woodall. And I spoke out of turn. I’m sorry. It’s just been a difficult time, and I’ve had a lot on my plate with this case and the Gunther trial coming up in a few short months. It all has really stressed me out.”
Woodall, satisfied with her regretful apology, retreated slightly. He was keenly aware that he had the next big case riding on his associate, and he needed her not to be gun-shy because of one bruising loss. He felt he had finessed the situation well while squarely laying all blame upon her. He smiled disingenuously.
Softly, Woodall said, “It’s a tough business we’re in, Amanda. Sometimes we take it on the chin and have to suck it up. I’ll try to iron it out with the insurance company. They’re mad as hell right now, and they have to point the finger at someone other than themselves. When the hammer drops, it’s always the lawyer’s fault. Right now you’ll probably have to perfect an appeal of the verdict, with the approval of the client, of course. I don’t think they’ll be opposed to that. Now, with that being said, I think you have work to do.”
