by Reason of Sanity (9 page)

’ve received the bank’s security tapes and just like the hospital cassettes, they were digitized into a computer somewhere. I now have a single tape that contains all the action in the bank concerning Drago’s fall. Because there’s constant traffic in the bank, there aren’t any dead spots with no motion, so all I’m concentrating on is the thirty minutes before and after the fall.

This one-hour cassette is not a compilation of footage – it’s the actual real-time account of what happened in the bank the hour of the accident. I see a kid spilling his coke on the floor near the counter where the deposit and withdrawal slips are. I see Drago come in and walk over to the counter. Boom! He goes down on his ass. Once down, he just lays there with a grimace on his face. People come over to help him up but he waves them off, obviously in pain and afraid to be moved by anyone but professionals. The old security guard must have finally noticed the accident because he walks over to where Drago is lying. In less than ten minutes, the paramedics arrive, get him onto a gurney, and remove him from the bank.

I watch the part where Drago falls, over and over again. It looks strange that a fall like that would injure his ribs. This doesn’t compute, so I ask the office to prepare a subpoena for his hospital records and X-rays. I want to get an independent medical opinion on this because if his ribs were damaged before the fall, then our client may only be responsible for aggravating a pre-existing injury. I also want to know if he hurt anything else when he landed on his ass.

This is where working for an insurance defense firm really comes in handy. Getting medical records out of hospitals and finding doctors to testify is their bread and butter, so everything gets done at warp speed.

I also want to know if there’s any connection between Blitzstien and Drago, so I instruct the authorized investigation service to run credit reports and extensive civil background checks on both of them to see if there’s any way they might have known each other before the murder. No wonder it’s so tough to beat an insurance company. I now appreciate the benefits of having unlimited assets to avail myself of the services of the big investigative firms, but nothing beats the personal service of a guy like Jack B. and his dedication to the case, and not the fee.

Harold’s shrink exam results probably won’t be back for at least another month, and the special investigations I requested won’t be completed for at least a week or two, so now’s a good time to concentrate on Stuart’s defense to those barratry and champerty counter-claims.

At this point I’m a little confused. According to the common law definitions of Champerty and Maintenance, anyone who finances another person’s lawsuit and then shares in the proceeds is guilty of the offense, but that’s what lawyers do every day. It’s the main basis of an attorney’s Contingency Agreement. The client pays nothing unless the lawyer wins the case. In the typical contingency case, a lawyer advances all costs of litigation and if there’s a victory, the lawyer gets reimbursed for his expenses and also takes a percentage of the recovery.

Several years ago the legislature saw fit to prohibit private investigators from also working on a contingency basis, because they’re usually called to testify. It was felt that no witness’ credibility should be tempted by monetary reward. That’s the reason why people who’ve already sold their story to a magazine are looked upon as less than credible witnesses. If they change their testimony in court in any way that differs with the exaggerations contained in their previously sold story, they run the risk of being asked to return their fee from the magazine.

I guess that because most of the legislature is composed of attorneys, they rationalized exempting contingency lawyers’ fees because the lawyer can’t be called to testify in a case he’s working on. Also, contingency fees give people access to legal representation that they’d probably never be able to afford.

But this reasoning doesn’t help Stuart. He can’t claim he was working on a contingency, because he’s not a lawyer. And if he were a lawyer, he wouldn’t be allowed to bring all those actions, because they don’t allow lawyers to represent people in Small Claims Court.

It’s true that S tuart advertises for clients who have received un-solicited faxes but he doesn’t create unfounded claims. Unlike a recent situation where some Beverly Hills law firm filed actions against hundreds of small businesses claiming that the risk of consumer fraud might exist, Stuart has actual fax receivers who have valid claims. All that Stuart does is organize them and process their claims. He’s one step above those typing services that help people fill out divorce and bankruptcy forms, because he goes the extra mile and appears as their assignee in the courtroom.

It’s quite obvious what’s going on. The business of sending out huge numbers of un-solicited faxes is big business and those fax broadcasters are all probably organized into an association of telemarketers with some political clout. If they allow someone like Stuart to get away with what he’s doing, it might get publicized and set a precedent, so that they’d be facing someone like Stuart in every jurisdiction in the country. They can’t afford to have that happen, so they’ve ganged up on Stuart with this outrageous counter-claim, to stem a possible tide of costly litigation. They’re fighting for their lives here and I’ve got to come up with some good defense to stop them in their tracks. I really can’t blame them for trying to defend themselves, but a lawyer can only be on one side at a time, and in this battle, Stuart is my client.

If I try to fight the law, I don’t have much to work with, so I’ll have to completely destroy the witness in this case. That’s why I’m glad Jack Bibberman did that secret, naughty task for me at the Santa Monica courthouse. I’ve now got the answers to their Interrogs, so I’m going to push for a trial on this case as soon as possible. It’s only a municipal court action, so we should be able to get a trial date pretty soon. They’re not as backed up as the higher courts are.

The only snag so far is that Jack B. has failed to come up with anything derogatory about the fax spammers. They report their income, pay their taxes and have no criminal records. They’re also young, attractive guys who work very hard and will probably make excellent witnesses on their own behalf. That would ordinarily be tough to combat, but I’ve got an ace up my sleeve. I’m having our office fax a very small set of supplemental Interrogs to the other side’s lawyer. It’s about time their side received an unsolicited fax.

The Mike Drago medical reports and evaluation have come in. Other than the damage to his ribs, the only other injury the x-rays showed was a bruised coccyx, or tailbone. That’s understandable, because the bank’s security video shows him falling on his ass. Protection of the coccyx is why people wear padding on their rear ends when they go skating. Other than wrist and head injuries, the coccyx is a target part of the body for anyone who falls over backwards like Mike Drago did.

Unfortunately, the medical experts all agree that his broken ribs were not pre-existing injuries. Knowing how anxious insurance doctors are to find pre-existing conditions, when
they
say something wasn’t there before, you can take it to the bank. The only other possible conclusion is that the slip-and-fall in our insured’s bank caused his broken ribs and bruised coccyx.

But the doctors are as confused as I am as to how landing on his back like that could damage his ribs. This is just another in a series of unanswered questions I’m faced with on this case. I send a statement to Indovine’s office and to my surprise, he sends a note to me, expressing his satisfaction with the work I’m doing.

What the hell is he satisfied with? All I’ve done so far is show that the claimant’s injuries actually were the cause of his fall at the bank. That’s not good for us. What’s good for Indovine is the fact that I’m putting in plenty of time on this case – all billable hours that he and his firm will make money on. Someday someone will make a scale of justice that shows the balance between the lawyer’s bank account and the client’s welfare. I wonder which side will outweigh the other. And I’m part of it now because shortly after sending in each of my weekly hourly statements, a check from Indovine’s firm comes in the mail – and neither me nor the teller at my bank refuse to accept each one.

Harry Michael’s court date is today and I intend to be there, with a twenty-dollar bill in hand for his jail inmate account. If the Public Defender is true to his word I should have about fifteen seconds to talk to Michaels before he’s taken away to start serving his sentence.

The courtroom looks like something out of a movie, completely packed with attorneys and relatives of the defendants, who are brought out from the holding cells in groups of twelve and seated in the jury box. After each dozen cases concludes, the court takes a short recess and another group of prisoners is brought out from lock-up and seated.

The bailiff points out the Public Defender I’m looking for. He looks harried, with a bunch of files under his arm and another batch on the counsel table in front of him. I introduce myself and hand him the twenty-dollar bill. He holds it up in the air so that his client can see it. I look over at the jury box and see one of the defendants nodding in recognition. The P.D. tells me that because I’m an attorney, it will probably be okay for me to go over to the jury box and talk to the defendant. Other lawyers are over there talking to their clients, so I won’t look out of place.

I go over and introduce myself. “Hello, Mister Michaels, my name is Peter Sharp, and I represent….’

Harry cuts me off mid-sentence. “I don’t care who you represent. All I care about is that you’re the guy who’s putting some money in my account at the jail. Whattaya wanna know?”

There’s nothing like cutting out the small talk. “Mister Michaels, I wonder if you’d please tell me what you were doing in the restaurant that night you had the accident. Were you a customer there, or an employee?”

“I wasn’t none of those.”
“Well you were there for six hours that night, and you had quite a bit to drink, so if you weren’t a customer or employee, what were you doing there?”
“I was working a private party upstairs in the banquet room.”
“Doing what?”
“I was the bartender.”
“Whose party was it?”
“It was for some rich old guy who lives in the neighborhood, but didn’t want to dirty up his penthouse, so he had the party in his restaurant. They paid me fifty bucks and I worked until the party broke up.”
So that’s it. That’s the reason why his name didn’t show up as an employee, and he couldn’t be picked out as a customer. He was upstairs working a private party and getting drunk. This is nice to know, but presents another set of problems with respect to the dram shop laws, because one of the requirements is that the liquor-providing establishment must have had notice of the drunk’s intoxication or that his outward appearance should have given someone notice that he deserved to be cut off, or ‘eighty-sixed’ for the evening. But if he’s the one who’s doing the serving, who is supposed to cut him off from drinking? I can tell that it’s back to the law library for this one. No wonder Patty Vogel was so quick to deny the claim. She must have known all of this from the beginning.
The only good thing about all this is that she doesn’t know that I know. It’s not a big advantage, but any time you have even a little bit of knowledge the other side doesn’t know you have, you’re ahead of the game.
This is another case that’s going to turn on the law itself. No tricks on this one.