Preferential Treatment, page 27
“Thanks, Mr. Woodall,” Cohen said. “I’ll try to do better next time.”
It was a quick and uncomfortable conversation with the CEO of Transport Indemnity. Woodall attempted to place the blame for the monstrous verdict on a runaway jury but to no avail. Despite his assurance that he would personally handle the appeal of the verdict with the promise of a successful result and despite his further promise that his associate would be completely off the case, it fell on deaf ears. As far as the CEO was concerned, the buck stopped at the front door of Darnell-Smyth and its litigation section chairman.
After the CEO patiently listened to Woodall’s groveling plea, he curtly replied, “Thank you for that explanation and the offer, Mr. Woodall. Please send the file to Fred O’Malley at Stabler-Grant. They will be handling things from here on out. And, while you’re at it, box up and send all of the other cases your firm is handling for us to Stabler. And send us a final bill. Your firm’s services will no longer be required. Good day.”
CHAPTER 23
The next few months passed like days. Fabian and Darnell’s strategy was to keep opposing counsel busy crisscrossing the country taking depositions and making them answer motions and lengthy briefs. The strategy worked well, especially since Woodall maintained his hands-off approach to the case and watched in the wings as Amanda Cohen was run ragged.
Each expert who had been hired and whose name was now disclosed to opposing counsel needed to be deposed, and all treating physicians of Joe Gunther were also scheduled for deposition. Neither side was willing to be surprised by any fact at trial.
Along with the huge amount of time spent traveling from city to city went the huge costs to take one of these malpractice cases to conclusion. For the insured defendant doctors, the cost was of no consequence to them personally. Their insurer would pick up the tab as part of their liability insurance contract. For plaintiffs however, the upfront costs were born by their attorneys who would take the risk of losing not only the value of their gigantic time commitment but also significant treasure in the event of an adverse outcome.
As for Fabian and Darnell, the cash register continued to “cha-ching” away, and their projected budget for the case had been blown through many weeks ago with no immediate end in sight. The projected cost of trying the Gunther case to conclusion was looking to head north of $175,000. Darnell looked at the numbers and felt a cold shiver streak up his spine. He reached for the phone and dialed Fabian.
“Jesus Christ, Jack. We’re going through cash like it’s water. We’re risking one hundred seventy-five grand of our hard-earned money to make a few hundred thousand each. I’m beginning to think we’ve bitten off more than we can chew on this one.”
“Relax, Ben. You’re a virgin on this side of the aisle. You’ve always had the litigation expenses and fees paid by the bandit insurance companies you represented. No risk, no lost sleep for you. All you had to worry about was your pride if you lost. I, and the other poor schmucks that operate on the injured victims’ side, gamble the farm on a regular basis. No win, no pay, together with loss of all the money shucked out in the effort.”
“You’re not making me feel any better, Man. My wife is all over me like a bad suit seeing the bank account start to dwindle.”
“We’re going to be okay. Our case is pretty good. We knew that, or neither of us would have gotten involved in the first place. Now did you call me for a reason other than to vent? Otherwise, I’ve got a shit load of work to do.”
“No,” Darnell sighed. “I’ve got a few things to do, too. If you recall we divided up the workload pretty evenly. I’ve got depositions of the defendant’s damage experts over the next few days. I’ll be living out of a suitcase for a while. What’s on your plate?”
“I’m prepping for the defense liability expert Sienna’s depo in St. Louis. Ought to be interesting.” Fabian paused. “By the way, has Woodall shown up at any of your depositions you’ve taken? I’ve seen neither hide nor hair of him since the first couple I took.”
“Me either. I almost feel sorry for Amanda. She’s being run ragged while we’re double teaming her, and she’s gotten no relief from that lazy prick.”
“Strategy’s working, huh? Get ‘em down, step on their necks, and don’t let ‘em up ‘til they squeal.”
“You’re a compassionate bastard.”
“Don’t forget, compassionate schmucks often finish last, and you’re the one who called all worried about the expenses,” chided Fabian. “Tough sport we plaintiff lawyers play. Remember, we’re not in this game to be compassionate. Bastards, yes, and cream and bastards always rise to the top.”
“Yeah, I guess. Let me know how the Sienna depo comes out. I’ll get you a summary of the defense damage experts’ depositions when I get through with them.”
“Will do, and Ben, chill out a little. We’re going to be just fine. I’ve got an expensive airplane I need to feed and care for and a wife that’s a world champion shopper. I can’t afford to lose. Bye.”
CHAPTER 24
On Thursday, March 24, 2006, the eve of the deposition of Dr. Antonio Sienna, Fabian checked into the St. Louis Hyatt Regency at the Arch. He felt that he was well-prepared for the expert’s deposition and was anxious to spar with him. He had learned that with diligent study of the medicine, fluency with the jargon, and the help of his own expert educating him, he could converse with medical experts on their own turf regarding the narrow topics at issue. This was oftentimes very disorienting to the experts, especially ones who were not veteran testifiers and who anticipated being able to baffle the presumably ignorant lawyer with their superior medical knowledge.
Once Fabian got situated in his room, he reviewed his notes and organized the medical literature he intended to waive under the expert’s nose. In the back of his mind, he entertained visions of those two or three Scotches he knew awaited him at the hotel bar. For a moment, he mused about his bizarre but delightful encounter with his opposing counsel in the Columbus hotel a few months back. He could still smell the faint fragrance of the perfume she wore that evening and the excitement he felt as he entered her room. He flushed recalling the both surprising and somewhat humorous revelation that the young woman he boinked the night before turned out to be one of the opposition’s lawyers. The look on her face was priceless, Fabian chuckled to himself.
Deeming his preparation for the next day’s contest sufficient, Fabian checked his watch—9:35 p.m. He headed to the bar for his date with a few neat Balvenies and a bite to eat.
As for Amanda Cohen, Jack Fabian was the farthest thing from her mind on the eve of her main liability expert’s deposition. At the prearranged hour of 6:00 p.m. for her deposition prep with Dr. Sienna, she arrived outside her hotel’s restaurant. After a brief wait, a corpulent man with dark, slicked back black hair appeared, right hand extended. He was adorned in a white lab coat, a pocket protector jammed with pens stuffed in his breast pocket. She recognized him immediately from her initial meeting with him a few weeks ago.
“Dr. Sienna, it’s good to see you. How have you been?”
“Not bad. Busy, but that’s the life of an overworked neurosurgeon. And you?”
“Busy, but that’s the life of an overworked lawyer,” Cohen replied, not exaggerating in the least. “I’ve gotten us a quiet table over there in the corner,” Cohen said pointing. “I hope you haven’t eaten yet. I thought after we dine we could go over some of the issues you’ll probably be asked about tomorrow.”
“No, I haven’t eaten, but it’s still cocktail hour for me. Please feel free to order food. I won’t be offended. I doubt we have too much to talk about, though. This case is pretty straightforward, and to put it bluntly, it’s a crock in my opinion. Let’s sit.”
Cohen led the doctor to the back of the restaurant. She slid into a padded booth, and Sienna sat in a chair across the table from her. Soon, a server appeared out of nowhere.
“Bombay Sapphire martini, shaken, real cold, up, with a twist,” the doctor ordered. “No vermouth. Don’t even whisper the word around the drink. Join me, my Dear?”
Cohen was taken aback by the offer and also the condescending sexist tone of her expert’s question. “No, thank you. I’d love to, but I have work to do.” She paused and perused the menu before her. Nothing looked appetizing at the moment. “Coffee, please, and a glass of ice water.”
Sienna rocked back in his chair sporting a broad smile. “I always order my favorite drink that way. If I ordered straight gin, people might think I have a problem.”
Cohen smiled nervously, fearing the rotund doctor might either break the straining chair or fall over backwards. More worrisome, she feared that her expert’s consumption of alcohol during her preparation of him was a bad omen of things to come. Well-prepared and crafty opposing trial attorneys often handed overly confident and cocky experts their asses. She knew Fabian was both.
After the drinks were served, Cohen tried to focus her expert on the issues about which she was most concerned. On each issue raised, she was met with the flippant retort, “Don’t worry about it. I can handle these ambulance chasers.”
The confident Sienna seemed more interested in impressing the young attorney with his conquests in the operating room and his successes in the courtroom as an expert in the few cases in which he had testified for defendant doctors. He spewed anecdote after anecdote while consuming “martini” after “martini.” After about ninety minutes of what Cohen felt was a total waste of time and watching her expert slowly get to where he was slurring his words, she decided to call it a night.
Trying to prep this guy is a total joke, she thought. I hope he’s as smart and clever as he thinks he is.
Smiling demurely, Cohen picked up her notes that she had intended to use to prepare the doctor and said dismissively, “Well, Doctor. It has been great to see you again, and I’m sure you’ll do well for Dr. Montgomery tomorrow. I think we’ve gone about as far as we can go tonight. The deposition starts at 9:00 a.m. here in Conference Room C. It’s on the mezzanine.”
“Ten-four, Counselor. I’ll be there with bells on, and ready for battle. I’ll pick up the tab.”
As Amanda rose to leave, Sienna summoned the server again. “One more, My Man.” Cohen bowed away from the table, totally deflated and worried about what she had done hiring this guy as her main expert.
Cohen lugged her unused preparation materials to the hotel elevator, entered her room, and dumped it all on the bed. She shed her navy blue business suit and opted for a pair of black cropped pants and a white blouse. She checked her hair and makeup and headed for the Brewhouse Historical Sports Bar that she had seen advertised in the hotel elevator. Now it’s my turn for a drink, but not with that smug jerk I’ve hired.
When she arrived at the bar, Amanda saw a lively crew of sports enthusiasts drinking and engrossed in a basketball game on most of the TV screens scattered about the room. She spied an empty table in the corner removed from most of the action, seated herself, and ordered a glass of chardonnay and a cheeseburger. As she waited for her beverage to arrive, she reflected on her encounter with Fabian at the hotel in Columbus shortly after becoming involved in the Gunther case. She blushed and recalled not only the wonderful night she had spent with this stranger but also her abhorrent shock and embarrassment when she discovered that the man she hooked up with was none other than the lawyer with whom she would soon be locked in combat.
Amanda gulped down her first glass of wine and summoned the server to bring another. The cool liquid tasted better than it should have and soon began to relax her cluttered brain. She knew that tomorrow at Sienna’s deposition Fabian would be hammering away at her expert while she had to sit idly by and watch. She hoped for few damaging blows.
She wolfed down her burger and consumed her second wine. Becoming pleasantly tipsy, she ordered a third. As she absent-mindedly watched the television, she knew she should soon hit the hay. It was now 9:30, and the wakeup call would come all too early.
As Amanda sipped her last glass of wine, she began to feel sorry for herself. She had just come off a terrible thrashing in court for which she was scapegoated as the cause and was now being virtually abandoned by her boss and supposed co-counsel. As the effects of the third drink became more pronounced, her self-pity soon turned into seething anger. If I get thumped on the Gunther case like I did in Dulaney, my employment at Darnell-Smyth will be history. Woodall is sure to blame me again. If that happens, I’d better look for a job in something other than law when the word goes out I was fired for “gross incompetence.”
Ruminating over the prospects of what could be, Amanda felt her neck turn scarlet. A tiny tear formed in the corner of her eye. Suddenly, she was jolted out of her funk when a familiar voice said, “I’d ask to join you, but you look to be in a foul mood.”
Amanda looked up and glared at the person behind the voice. “Get lost. Yes, I’m in a foul mood, and no, you cannot join me, Mr. Fabian. Are you stalking me?”
“Whoa, there. I think the bar is open to plaintiffs’ lawyers, too. I was just trying to be friendly, and no, I am not stalking you. Just thirsty, that’s all.” Fabian feigned a hurt frown. “I’ll just mosey on to the bar, and we’ll see each other in the morning.” Feeling further explanation was needed in light of the stalking allegation, Fabian followed up. “I didn’t know you were staying here. I didn’t know you would be in this bar. And I certainly didn’t plan to run into you, honest. But when I saw you sitting here obviously pissed off at the world, I just thought I’d stop by and say ‘Hi.’”
Amanda’s overreaction made her feel childish and trite. “Sorry, Jack. I’m just having a bad night. I don’t think you want or need to hear my tale of woe.”
“Try me. I’m a good listener.”
“Okay, Pull up a seat. But no funny business, got it?”
“Deal, but if you change your mind …”
Amanda abruptly cut Fabian off. “Stop it, goddamnit. Sit down and shut up. I’ll do the talking. You sit there and drink your Scotch when you get it, and I’ll tell you my deepest, darkest secrets. First, promise that this conversation will be just between us and will be forgotten by you before you go to bed tonight.”
Fabian pulled out the chair opposite Amanda and sat. “That second part is hard to do, but I’ll try my best. And, of course, whatever you tell me will be held in the strictest of confidence.” Fabian paused and stroked his chin. “But why unload on me? Why not one of your friends or fellow associates?”
“First of all, I don’t have time to make friends. Friendships take time to develop, and there are only so many hours in a day. Second, there are no associates I would trust with what I’m about to tell you. Those back-stabbers would be running to Woodall or one of the other partners in a heartbeat to try to impugn my status with the firm that I’ve tried so hard to develop. And, please, for Christ’s sake, don’t mention a word of this to Mr. Darnell. I still have a lot of respect and admiration for him. If he were still my mentor …” Cohen’s voice trailed off to an imperceptible whisper.
“I’m a man of my word,” Fabian promised. “I guess this has something to do with work, huh? No love life problems, please. I’m not very good at that kind of counseling.”
“I wish that’s all it were,” Cohen mused. “Unfortunately, I have no love life or any other life other than the life of an overworked, underpaid associate.”
Fabian tried to lighten things up. “The law’s a jealous mistress, as one of my old law school profs once said.”
The quip fell flat. Amanda frowned and gulped another mouthful of wine. “Actually, I love practicing law, and I certainly don’t mind working hard.”
“Then what’s the problem, Amanda?”
“To put it bluntly, my current boss is a fourteen-carat gold asshole.”
“That’s hardly news,” Fabian chuckled. “Not only has Ben told me about Woodall’s antics, which virtually forced him to resign from your firm, but also my own observations at the few depositions he’s attended confirms that fact. He strikes me as the kind of guy who could say ‘Good morning’ to you and it would piss you off.”
Amanda cracked a hint of a smile. “Couldn’t have described him better myself.”
Fabian continued. “So, other than the obvious, why the down-in-the-dumps mood? Bosses have a tendency to piss off their people—some more than others. It’s just a good lesson to remember when you become a boss, which I’m confident you soon will.”
“Thanks for the vote of confidence, Jack. I would like to think you’re right; however, that’s the point. I don’t know whether you’re aware of it, but I recently got my tail end handed to me in a wrongful death trial. Record plaintiff’s verdict. I tried to settle it for policy limits, but the carrier wouldn’t hear of it. Long story short, the CEO of the insurance company called Woodall on the carpet after the verdict. My dear boss pushed the blame off on me, and as far as the people in the partnership were concerned, since I was the quarterback, it was all my fault.”
“Yeah, I heard about it as soon as it happened. In injury litigation-land word travels fast, and word of a bell-ringer verdict like that travels at the speed of light. But from what I heard, the facts were terrible. The case screamed for a policy limits settlement. No one that I talked to thought it was your fault. You had to play with the cards you were dealt.”
“Tell that to Woodall and the powers-that-be at Darnell-Smyth,” Amanda growled. “Anyway, we lost the account and all the cases we were handling for the insurance company. Since I got the blame by Woodall, I immediately began skating on thin ice. I figure one more disaster, regardless of the fact that it isn’t my fault, will have me out on the street corner selling apples. I’ll be finished in the defense circles, at least in West Virginia, and the stigma will probably follow me wherever I land. Now Woodall has saddled me with the Gunther case and he is giving me no help or guidance whatsoever while he diddles himself at his country club.”
