Preferential Treatment, page 33
“Maybe nothing other than what will probably be a little visit from the State Bar disciplinary counsel investigating the inevitable ethics complaint that will be filed against you,” Fabian chuckled. “Remember Rules of Professional Conduct, Rule 1.1, Competence?” Fabian grabbed a copy of the State Rules Book for West Virginia from the judge’s bookshelf and read, “‘A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.’ And how about this one: Rule 1.3 Diligence. ‘A lawyer shall act with reasonable diligence and promptness in representing a client.’ Need I go on, Jeffrey? Face it. You’re fucked. My guess is that after the Supreme Court hears about your violations, the justices will throw the book at you, and you’ll be out a law license in no time. Now, are you going to go out there and tell Pavlik the case has gone south and you need to settle to have APIC avoid not only a bell-ringer of a malpractice verdict but also a huge bad faith suit brought by Dr. Montgomery after we get an excess verdict and go after his assets? Hell, $2.8 Million is likely small potatoes compared to the $10 Million or so Montgomery could tag APIC for. He certainly has hired private counsel to represent him on the excess claim, and the lawyer has threatened APIC with a huge bad faith suit if it doesn’t settle within policy limits. And what’s even better, Ben and I will accept an assignment of the doctor’s claim and make even more money off the bad faith suit. So, do us a favor—don’t settle.”
A withered and battered Woodall sat in a pool of sweat. His head spun. He felt he was in a steel box from which there was no escape.
“This could take a while,” Woodall pleaded, hoping to buy some extra time in order to try to find wiggle room to extricate himself from his predicament.
“We’re either going to get this thing done this morning or we’re going out there in that courtroom in a few minutes, watch you stumble around in front of that jury, and make an ass out of yourself,” Fabian declared. “So, what do you want to do? Your call.”
Woodall tried another tack. “But the judge has given us only a few minutes. It’s almost 8:30, and she insists on starting trial on time. What you want me to do is impossible.”
“I’m sure if we tell the judge we think we have this thing resolved and that she can clear her calendar for the next couple of weeks, she’ll give us some time,” said Darnell. “But I warn you, if you screw this up, we’re pressing ahead. You got it?”
Woodall looked as if he were on the verge of tears. “Okay, okay. See if the judge will give us some time. If she says she will, then I’ll get Pavlik and give her the bad news. She’s going to lose her mind.”
“That’s your problem,” said Fabian. “You’ve got to give her the facts of life. How you approach it is your business. Just get it done. Agreed?”
“Okay,” Woodall whispered.
“Good. I’ll go talk to the judge. She’ll probably want to hear from you about your willingness to settle,” said Darnell. “You two guys just hang loose, and I’ll go get her.”
“I’ll make sure our friend here doesn’t try to jump out of the window while you’re gone,” Fabian quipped.
Darnell left the judge’s chambers and sought out Judge Grant. Five minutes later, the judge and Darnell entered the room. “I understand from Mr. Darnell that there are some serious settlement talks going on. Am I hearing that right, Mr. Woodall?”
“Yes, Judge. In light of some of the circumstances, I believe it would be in everyone’s best interest to get this case resolved,” Woodall whimpered.
“Ordinarily, I wouldn’t put up with any delays in this trial, but since I think it may be beneficial to try to get this over and for the sake of saving time, I’m inclined to give you some leeway and allow you the opportunity to explore settlement. Mr. Woodall, do you have access to anyone with the authority to settle this case on behalf of the defendant and his insurer?”
“I do have the adjuster-in-charge sitting out in the courtroom. She may have to make a phone call to her corporate headquarters to get the final approval, though,” Woodall said.
“Good. Let’s go out in the courtroom and tell the jury that they won’t start this morning. I’m going to let them go and bring them back at 1:30. You’d better have this wrapped up by then, or we’re going to proceed. Is that satisfactory with everyone?”
In unison, all agreed.
“Okay. You can use the jury room to conduct your negotiations. It’s now 8:40 and you have until 1:25 p.m. to get it done. Don’t come out of that room until you have a settlement. Is that clear?”
Again, in unison, all concurred.
The judge apologetically explained to the jury that there was going to be a few hours delay in the trial. Woodall peered over his shoulder at Susan Pavlik. She looked confused about the necessity for any delay. She shrugged her shoulders as if to say, “What’s going on?”
Woodall got the message and mouthed the words to her, “We need to talk.”
Pavlik’s confusion morphed into a look of deep concern. Like Pavlik, Montgomery seemed equally confused about the reason for the delay. “What’s the deal?” whispered the doctor. “Why are we not starting? Is there some problem?”
Woodall flushed and dodged the question. “We’ve got some new developments in the case. I’ll fill you in in a minute.”
The judge dismissed the jury. After the last juror departed the courtroom, Woodall rushed over to Darnell and Fabian and whispered, “Give me some time with Pavlik. I need to break this news to her before we begin our meeting.”
“You’ve got ten minutes,” Fabian snapped.
Woodall did an about face and said to Montgomery, “Doctor, I’d like you to wait here for a few minutes while I talk to Ms. Pavlik.” Not waiting for a reply, Woodall hurried to the gallery area where a perplexed Pavlik waited.
“Let’s go to the jury room so we can have some privacy,” Woodall said.
Pavlik followed closely on Woodall’s heels. The curiosity about the reason for the delay and this impromptu meeting was beginning to overwhelm her. She had no clue what was about to happen.
After the lawyer and the adjuster entered the jury room, Woodall firmly closed the door behind them. Before he could speak, the anxious Pavlik blurted, “Jeff, what’s this all about? Why the delay until after lunch? What’s the problem?”
Woodall decided to pin the blame on anyone but himself. “The judge wants us to settle. She’s adamant about it and wants me to talk to you to see if we can get it resolved.”
“This is bullshit! I told you we’re going to let a jury decide this case. If we were to pay anything, those jurors will have to make that decision. Did you tell the judge our firm position on that?”
“Well, I did tell her that there had been no offers from us to settle,” Woodall hedged. “She wants us to try. We don’t want to make the judge upset.”
Pavlik was unyielding. “Okay, wait a few minutes, then go tell her we tried and there’s not going to be any money offered.”
A bead of sweat formed on Woodall’s forehead. He was running out of excuses and had no one else to blame. His mind raced.
“Is there something you’re not telling me, Jeff?”
“Not, not exactly,” Woodall lied. “It’s just that Amanda and I were talking last night, and we went over the case in great detail. We talked about the pros and cons of settlement, the strength and weaknesses of our defense, the likelihood of a plaintiffs’ verdict, the cost of going forward, you know, costs of bringing witnesses in from out of town, attorney fees during the trial, and possible appeal—those kinds of things.”
Pavlik gave Woodall a bored stare. He continued his yarn. “We also talked about the possibility of an excess verdict and how Dr. Montgomery could be on the hook for a lot of money over his policy limits—up to around $800,000 if the jury buys into plaintiffs’ damage claim. In the event of an excess verdict, our client would likely sue APIC for bad faith and the company could be on the hook for the excess plus any punitive damages it could find against the company for maliciously refusing to settle. So, after weighing everything, we concluded that now might be a good time to try to settle.”
Pavlik looked puzzled. “Why did you change your tune? The last time we talked, I knew that Amanda thought we should explore settlement and could get the case settled within policy limits. You, on the other hand, thought the case was strong and winnable. You, and correct me if I’m wrong, agreed with my wanting to take this thing to verdict. You are the main guy on our defense team. Throughout the discovery process you sent me status report after status report telling me how good things were going. You are the one I relied on.” Pavlik paused and looked around the jury room. “By the way, where is Amanda? I didn’t see her in the courtroom today.”
Woodall felt trapped. His story was about to unravel. “She…she, she left me a note this morning before I got to the office. It said she fell violently ill while preparing and was going to seek medical attention. She said that she wasn’t going to be at trial today or until she felt better. I haven’t heard from her and have no idea where she is. My secretary tried to call her at home, but there was no answer.”
“I’m not sure—and correct me if I’m wrong—but it seems to me that the only thing that’s changed since our last discussion about settlement is this sudden illness and disappearance of Amanda Cohen. Does that have anything to do with your sudden change of heart?”
Before Woodall could answer, there was a sharp rap on the jury room door. “Jeffrey, time’s up. We’re coming in.” Woodall took one step toward the door as it flew open. Darnell and Fabian strode into the jury room. “Ready to talk?” Darnell snapped. Woodall froze.
“So, folks, do we have a deal?” Fabian asked.
Pavlik gave Fabian a confused look. “What kind of deal are we talking about, Mr. Fabian? Is there some secret I’m not privy to?”
Fabian turned up the heat on an already withered Woodall. “Jeffrey, you mean you’ve been in here with Ms. Pavlik all this time and haven’t told her about our demand?”
Darnell piled on. “Jeff, you’re wasting our time. The judge is chomping at the bit to start this trial, and, frankly, we are too. So, unless you and Ms. Pavlik can meet our demand, then we’ll let the jury decide. What do you think?”
“What’s this demand that I haven’t been made aware of?” Pavlik asked Woodall.
Woodall looked defeated. “They want limits plus eight hundred thousand to settle. They said it was non-negotiable,” he whined.
“Are you nuts?” Pavlik screamed at Fabian. “Eight hundred thousand over the policy limits? Where the hell do you get off with a ridiculous demand like that? Why would APIC ever agree to such a deal? Can you explain this to me as if I were a five-year-old?”
“Oh, Susan, I think you’re a little smarter than a five-year-old,” Darnell said with a roguish grin. “But let me put it in terms that I think a seasoned insurance adjuster can understand. Here’s the deal. Since this case began, your boy here has neglected it completely and has left the entire pretrial discovery, study of the medicine, strategizing, and trial preparation to his young associate. If you had been paying attention to the fact that Ms. Cohen had conducted all of the depositions, it would have been apparent to you that she was the only one carrying the ball. I’m sure you must have known that. Certainly, your CEO would have wanted you to have been keeping close tabs on the progress of the case.”
Pavlik flew into a rage. She peered at the now cowering Woodall. “Jeffrey, if you knew so little about the case, how were you able to author such eloquent and upbeat status reports you sent me on a weekly basis?”
Darnell didn’t give his old partner a chance to reply. “Just look at the billing records, Susan,” he chuckled. “Bet you a dime to a donut that Amanda did the work, and your lawyer here took credit, billing APIC at his partner’s hourly rate rather than Amanda’s much lower associate’s rate. Probably added a little paragraph at the end of each report telling you how great the case was progressing just so he could keep it alive and those big fees coming in.” Darnell turned to Woodall and smiled wryly. “What do you think, Jeff? Fair analysis?”
Totally defeated, Woodall could only stare blankly at his sweaty hands folded in his lap. His silence answered for him.
Once Darnell felt that he had given Pavlik a chance to let realities settle in, he said, “So, now, Folks, your defense case is a rudderless ship without a captain, and we have a judge that will soon be demanding to hear defendant’s opening statement. I have to say, it’ll be fun to watch.”
Pavlik’s brain spun. She realized the Darnell was right. She also knew that without anyone available to conduct a viable defense of her insured, the jury could very well return a huge verdict. The $2.8 Million figure was a realistic probability. She also knew that all along she had assured her boss that the case was under control and entirely defensible based largely on Woodall’s inflated bogus summaries. If she came to him with this demand now, out of the blue, she would have some serious explaining to do.
“I hear what you’re saying, Mr. Darnell, and I have to say this has broadsided me, but I have no authority from my company to offer any money right now. It may take some time to get any.”
“Well, you’ve got until 1:25,” Fabian interjected. “That’s when we get to go into that courtroom and at 1:30 listen to your attorney’s erudite and eloquent opening statement.” All eyes were directed on Woodall. He was stricken with fear. Fabian pressed on. “And we’re not talking in terms of getting ‘any’ money to offer. We want a lot of money. We want the two point eight. Not one penny less.”
Pavlik seethed with anger. She didn’t know whether her rage was directed more toward Fabian or Woodall. “I hear you, but I doubt there is any possible way APIC is going to agree to pay anything over the policy limits, if that. It would be unprecedented.”
“We love to plow up compacted earth,” Fabian scoffed. “I’ve never seen a precedent that couldn’t be reversed.”
“If I can get you the policy limits, are you saying you won’t take it?”
“Look,” said Fabian, “weeks ago we offered to settle this thing for limits. You scoffed at our very reasonable offer. We gave you a ‘drop dead’ date to accept our demand. We told you that if the demand wasn’t met, all offers to settle would be withdrawn, and we would try the case. After that, complete silence from you. As a result, we spent a bunch of extra time and a shit load of extra money getting ready to go. Now your case is in the crapper. We’ve got you in a box, and you know it. You’ve been around a long time. You know you’re screwed. Pay up, or you know you’ll be facing an excess verdict and a very substantial bad faith suit from an understandably pissed-off insured doctor who has his assets on the line. He’ll offer us an assignment of his claim; we’ll accept it. He’ll testify against your company, and we can’t wait to cross-examine Woodall, Cohen, and you at trial. You’re gonna’ look real foolish explaining why you failed to live up to your obligation of good faith and fair dealing to Dr. Montgomery. In the bad faith case, you can probably count on a verdict well in excess of the two-eight we’re going to get in the malpractice trial. You get my point, don’t you?”
Pavlik looked defeated. She knew Fabian probably had the situation analyzed correctly.
“How much time do I have?” Pavlik whispered.
“It had better be no later than noon,” Fabian demanded. “We’ll need to get something in writing that sets out the framework of our agreement. Then we’ll have to notify the judge and put the whole thing on the record. If we don’t have that agreement documented and put on the record by 1:30, the judge is going to put your clueless lawyer there on his feet in front of that jury.”
“It’s 10:00. I need to get our CEO on the phone. I’d better get going and try to explain the situation to him.” Pavlik scowled at Woodall. “You come with me. I’m going to need you to have a true confession, heart-to-heart conversation with my boss. I’m not taking the whole rap for this fiasco.”
“I’d love to be a fly on the wall,” Fabian laughed.
Fabian and Darnell waited impatiently in the jury room. “What do you think they’ll do, Ben,” asked Fabian. “You ought to have some idea. You know how they operate. You probably made a good part of your living representing those bandits.”
“Based on my experience, they’re crazy but not entirely stupid. When they know they’re up against the wall, they’ll cough up. They’ll scream and yell and stomp their feet, threaten and cajole, pout, and hold their breath ‘til they turn blue, but when they really know they’re in trouble, they’re business people first and foremost. They know discretion’s often the better part of valor. Probably, they’ll come back and offer limits or somewhere thereabouts. We’ll tell them to pound salt, and they’ll try the old back-and-forth. If we hold firm, we have a shot at the whole enchilada.”
