by Reason of Sanity (11 page)

he problem with performing magic is that you never want to repeat the same trick more than once to the same crowd, because if they get wise to
your slight-of-hand, you’ll never get away with
anything again.
Once again I got lucky and won a case
without using any knowledge of the law, which has
always been my weak suit. I explain to Stuart that he
really owes his thanks to the guy driving our car, Jack
Bibberman, for getting all the judges’ clerks to go
along with our plan.
With this case out of the way, I’ll have some
time to concentrate on designing new illusions to use
for my other clients. On Harold Blitzstien’s murder
case, I’d like to be able to create a cloud of smoke
and disappear from the courtroom just before the
guilty verdict comes in.
I’m also definitely going to need some magic
for the other two cases on my plate. Mike Drago’s
ribs were definitely broken by his fall in the bank,
which may increase the insurance company’s
liability. Not only did the claimant die, but he
probably took my insurance defense career with him. Vinnie’s defendant wasn’t a customer at the
restaurant – Harry Michaels ‘self-medicated’ himself
into a state of drunkenness, so I probably won’t be
able to use the Dramshop laws against Patty Vogel’s
restaurant client. Things are definitely not looking
too good for me. If it weren’t for the steady
paychecks from Melvin’s old practice, I’d be in deep doo-doo, because all of my fees from previous cases are tied up in CDs.

Every time I see a magician he seems to have a beautiful long-legged female assistant who wears a Playboy Bunny-type of costume and sensuously parades around the stage handing him things.

My assistant is Jack Bibberman, who isn’t particularly long-legged and if he ever shows up at my boat wearing one of those Bunny suits, he’ll immediately be fired. The one thing he does have going for him is his ability to get the assignments done.

Today his assignment is to find out anything he can about the party that Harry Michael worked. Who hired him, what the party was for and anything else we might be able to use, because once I wrap up Vinnie’s case I intend to spend full time on the Bank matters – both the slip-and-fall and the murdered claimant.

Somewhere in the back of my mind I have the strange feeling that these two cases are tied together. It’s just too coincidental that I happen to be representing the insurance company for the bank where a guy fell and also the guy who is charged with killing him. There must be some fate at work here.

With Jack concentrating his efforts on finding the facts, I think I’ll try to hold up my end of the work by concentrating on the law – and the law is kind of strange when it comes to liability of land owners to people who injure themselves on that land. If this were going to be a California case, we wouldn’t have much of a problem because claims for pain and suffering don’t survive the death of a claimant. But the lawyer representing Drago’s family will be filing this case in the Federal courts of Illinois, and that puts me back at square one.

Under the old laws of England and the United States, the liability of a land owner to people who were injured on his property depended on the classification of the injured person – whether they were a business customer – referred to as ‘invitee,’ social guest, or trespasser. Each category of visitor was owed a greater degree of care.

In a landmark 1968 decision, the California Supreme Court said “…A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose…” With one stroke, they eliminated the distinction between the categories – but in my mind they still exist.

Although it may sound rather pompous for an attorney to disagree with his own state’s Supreme Court, I don’t think I should be blamed for feeling that a burglar who breaks into your house shouldn’t be able to sue you because he tripped over your kid’s toy fire engine and fell down the stairs. Maybe the court would be happier if the burglar didn’t trip and instead made it into the upstairs bedroom, where he might have gotten shot – with no chance of recovery at all in a court of law.

This may not make much of a difference as far as the black letter of the law is concerned, but it sure will count in the minds of the jury. In a case like that they might get an instruction from the judge that the burglar is entitled to an award for damages, but I’d be surprised if the jury gives him much more than the minimum of one dollar.

With respect to the Drago case, we’re still waiting for the bank to come back with some info on whether or not he had an account there, or with any other branch of that same chain of banks. If our search shows that he did have an account, then he was a business invitee while present in the bank and that category of visitor gets the highest treatment, outside of California.

If Drago didn’t have an account at the bank, then he would only be a business invitee if he was there to open an account, apply for a loan or other service offered, or to transact some business with a teller.

His personal p roperty stored in the police evidence locker didn’t contain any check to be cashed, money to be deposited, or any other documentation that would make him a customer of the bank, so the question still remains as to what he was doing in the bank on that day. He is lucky about one other thing though… he was taken out of there before the bank robbers arrived.

If I can get his status lowered below that of a business invitee, it might save the insurance company some money. Even better would be if I could get him lowered to ‘trespasser’ status, but that’s a magic trick I haven’t learned yet. Jack Bibberman is out working on the case, so anything’s possible. I see Jack’s cell phone number on my caller ID display as the phone rings.

Jack checked criminal court records over the past two years and we’ve had subpoenas issued to the bail bondsman who bailed Harry Michaels out each time he was arrested for drunk driving. Big surprise – the sponsor on his bail bond each time was a Mister Robert Palmer, who I crossed swords with once before on a sexual harassment suit. He owns two restaurants on Washington Boulevard in the Marina, a seafood place next door to our favorite Chinese restaurant, and the Mexican place across the street, where Harry Michaels did his bartending the night of Vinnie’s tree injury.

I tell Jack to concentrate on the party Michaels tended bar for, and to find out the names of some guests who attended. We certainly could use some witness statements on this case if we’re to have any hope of hanging liability on the restaurant under the state’s Dramshop laws.

Until Jack comes up with anything interesting, all I have to work with are the videotapes. There are only two five-minute portions crucial to the cases. On the bank tape, it’s the one where Drago slips and falls, and on the hospital tape, it’s when Harry Blitzstien ‘visits’ Drago and smothers him with the pillow.

There are several UHF and cable channels that keep re-running the old
Matlock
and
Diagnosis Murder
shows. Andy Griffith and Dick Van Dyke both share the uncanny ability to look at the same photos or videos that the police and everyone else have seen, and miraculously spot some previously missed clue that completely destroys someone’s alibi and reveals who the killer is. Van Dyke will usually create an ingenious plot to trap the bad guy. Andy Griffith’s Matlock character does it by crossexamination, getting the killer to break down on the witness stand and confess. I’ll never be that good. No lawyer will. Things just don’t happen like that in real life.

I’ve looked at these videos and the still photos of some frames over and over again. Nothing. I’m getting the feeling that there’s nothing that I’m missing… there’s just nothing to find. I’ve shown this stuff to Stuart, Jack Bibberman, the dog, and I’m sure that the kid has seen it all too. No comments from anyone. I can’t believe that both Myra and Drago’s estate lawyer are going to be able to walk all over me. It’s not fair.

The only thing I can see that might help out a little is that in the bank, the kid who spilled his coke on the floor did it completely un-noticed by anyone. For the next ten minutes or so there was a steady stream of people over to the deposit-slip island in the middle of the bank lobby and with that morning’s heavy bank traffic, it’s no wonder that nobody saw the small spill to report it. That part of the bank isn’t too well lit and the coke was almost the same color as the dark marble floor.

Maybe I’ll be able to argue that it wasn’t negligence on the part of the bank to not have discovered the spill and that because the tape shows numerous customers walking around it, that it wasn’t hard to see, thereby making Drago partly to blame for not watching where he was walking.

I receive a brief email from the court clerk that lets me know the psychological examination results have come in on Harold Blitzstien. She was nice enough to give me an advanced tip that he was found fit to stand trial.

Last time we were in court on his case, I made a deal to abide with whatever the court-appointed shrinks decide, so now it’s time for me to pay my dues. I’ll appear with Harold at his arraignment and offer a plea of not guilty on his behalf, because he probably won’t want to say that many words. He’s the strong silent type.

The court is paying me to represent him to the best of my ability but with all the evidence that they have against him there’s not much I can do, so I figure he’s at least entitled to a visit from me. Traffic between the Marina and downtown isn’t too bad this time of the late morning, so I head down to the county’s central jail.

After the usual identification procedure, I go through the sallyport and into the attorney interview room. I finally get some respect. Harold comes down to see me.

As usual, there isn’t much of a conversation between us. I tell him that the shrinks have declared him fit to stand trial and that his arraignment will be in a couple of days, at which time I’ll be entering a plea of not guilty on his behalf. He finally says a word to me. “Why?”

I’m not surp rised until the question sinks in. He wants to know why he should plead not guilty. “Harold, what’s your question? Do you want to know why that’s the plea we’ll offer, or do you want to know why you’re pleading not guilty at all?”

He answers me. “Why should I plead not guilty? I did it. Let’s get it over with. There’s no need for you to try and get me off.”

“That’s not the way it works, Harold. In our judicial system, it’s the prosecution’s job to prove your guilt beyond a reasonable doubt. What happens if they make a mistake and you’re found not guilty? Would you turn that down and stay here anyway? I think not.

“Listen Harold, I know that things don’t look too good for you with that videotape evidence, but let’s do it by the book. I’ll make sure that if they want to convict you that they do it fair and square.”As usual, there’s no response from him. He just sits there and glares at me. He finally breaks the silence. “You’re my lawyer, right.”

“Right. I’m your lawyer.”
“Then could you do me a favor?”
“I’ll try, Harold. What is it?”
“Could you deposit a few bucks into my