Cookie's Case (6 page)

Q: And he felt so bad about running over your foot that when he came into the room, he took your hand in his and gave it an apologetic rub as he said sorry to you. Correct?

A:
S
í, that is true.

Q: So you not only saw him, but you heard him and also felt his hand as he held yours. True?

A: Yes, that is true.
S
í
.

Q: No issue for Judge Brown here. You saw, heard, and felt the hand of the truck driver on that day. Correct?

A: Correct.

Q: It is as clear in your mind as I am clearly standing before you at this very instant. Correct?

A: Yes.

Q: As clear today, as it was one year ago, when you gave your testimony, the testimony you claim I told you to lie about. Correct?

A: Yes, very clear.

I look up to Judge Brown. She doesn't know where I'm going with this, but she will soon. “Your Honor, may I approach the bench, please?”

“What for, Counselor?”

“I want to hand the court a copy of the deposition transcript of Josefina for the day she gave her EBT testimony, as I intend to make reference to it.”

“Hand it to the court officer, and the court officer will give it to me.”

I comply. “May I continue with my questioning, Your Honor?”

“You may continue, Mr. Wyler.”

I return my focus to Josefina. As much as I hate her for doing this to me, I know it's her new attorney who's been orchestrating it. I slowly walk over and stand behind the court reporter.

Q: You see this court reporter here today moving her fingers over the keys of her machine, don't you?

A: Yes, I see her.

Q: You know she's taking down everything being said in this courtroom. Correct?

A: Yes, I know that.

Q: And do you remember, just a few minutes ago, during the preliminaries, when Judge Brown instructed us to note our appearances for the record?

A:
Sí, I remember that.

Q: And when everybody said their names, the court reporter moved her fingers over the keys of her machine and pressed them down. You saw that? Correct?

A: Yes, I see that.

Q: Do you know why she did that?

A: To put in that machine everybody's name.

Q: Correct, Josefina. To take down everybody's name. And do you know why she takes down everybody's name?

A: No, I no know.

Q: The reason she takes down everybody's name is so the world will know who was there in the courtroom when a witness gave testimony. That's why. Do you understand this now?

A: Yes, I understand now. So everybody know.

Q: And, not only do court reporters take down who was present in a courtroom, but they also take down who was present at a pretrial deposition, an EBT, like the one you are claiming I told you to lie at. Did you know that?

A: No, I no know that.

Judge Brown at this moment understands. I see her open Josefina's pretrial transcript, which I had handed her, and flip through the first couple of pages. A grin slides onto her face. If she was suspicious that Wilbur was attempting to steal my fee before, she's goddamned certain of it now.

Time for me to ask her to take judicial notice.

Judicial notice is a court rule that allows a fact to be introduced into evidence that is so authoritatively attested that it cannot reasonably be doubted. Facts admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence. The easiest example would be what day of the week a particular date was two years ago. You go to an old calendar, and the judge can take judicial notice that the 17th of May was a Friday.

“At this time, Your Honor, I would like the court to take judicial notice of who was in the deposition room on the date Josefina gave testimony in the underlying matter—the matter where she claims I suborned perjury—as taken down under the heading of ‘Appearances' in Josefina's EBT transcript.”

“Yes, Mr. Wyler, I deem that to be appropriate at this time. Let the record reflect that I have in my hand the pretrial transcript of Josefina Ruiz, taken before a notary public of the state of New York, and the appearances as noted in this transcript are Mr. Tug Wyler for Josefina Ruiz and Ralph Hope, attorney for the defendant.”

“Your Honor, so the record is clear, was there any appearance on that day for the truck driver himself?”

“No, Mr. Wyler. There was no truck driver in that room, not according to the appearance sheet.”

“And, Your Honor, I hate to belabor the point, but my license is on the line here. Could you just read into the record what it says in that transcript relative to his appearance?” She nods.

“Let the record reflect that on page three of the transcript, under the heading of ‘Appearances,' it reads: defendant, John Livingston, no appearance.” I look over to Wilbur. He's got sweat on his brow.

I think you should have come and looked at the file, douchebag, before making such an accusation against me in open court in order to steal my hard-earned money and ruin my life.

“May I continue cross-examining the witness, Your Honor?”

“You may,” she says. Meanwhile, she continues flipping methodically through the transcript, one page at a time, like a speed-reader. I look at Josefina. It's clear she doesn't understand what just happened.

Q: Josefina, we have now established that the truck driver was not in the room on that day. Yet you just testified that you saw him, you heard him, and you felt him by the touch of his hand.

A: Yes, I see him.

Q: Well, Josefina, he wasn't there to see. Or to hear or feel, for that matter.

A: [No response]

She looks confused. “Let the record reflect that the witness has a look of confusion on her face.”

“Objection!” Wilbur yells. “I move to strike Mr. Wyler's interpretation of the witness's facial expression.”

“So stricken, Counsel. But let the record reflect that based on my observation, it did appear that she had a confused look on her face.” Judge Brown leans toward the witness box. “Miss Ruiz, are you confused?”

“Yes, I confused.”

The judge nods. “You may continue with your questioning, Mr. Wyler.”

Time to play multiple choice. At this stage, if you do that, you're at least giving the witness a chance. The thing is, I don't want sympathy developing for her as a result of any of my actions.

Q: Josefina, let me give you some options. Choose a letter. (A) The truck driver was not there, and your memory of the events of that day is faulty. (B) Your new lawyer told you to say that the truck driver was present for your deposition. (C) That day, you were experiencing auditory and visual hallucinations, which you had been diagnosed as suffering with, according to your medical records. Or (D) all of the above. Which is it?

A: I'm sorry,
abogado
. I no understand.

Q: Which one explains why you say you saw the truck driver that day, yet he was not there—(A) your faulty memory, (B) your new lawyer told you to lie, (C) hallucinations, or (D) all of the above?

She looks up at the ceiling as if the answer is written on the dirty gray acoustic tile, then brings her head back down as if she found it. Wilbur looks super nervous, for good cause, I'm sure.

“E,” says Josefina.

Bang! Bang! Bang!
goes the gavel. Brown gets our attention but quick. “Ramona,” she says to the female court officer, “help Ms. Ruiz off the stand and sit her in the back.” She looks to us. A judicial order is forthcoming. “All counsel in chambers, now!” As she's leaving the bench, she turns and reaches for the EBT transcript.

I look to Roscoe, lifting an eyebrow. Wilbur looks even more nervous. No surprise.

“After you, Wilburrrrr,” I say.

“My name is not Wilbur, it's Wilberto, and if you call me Wilbur again, I'm gonna punch you in the nose.”

We proceed into Judge Brown's chambers. I've got two tight fists, just in case.

She's out of her robe. There are four chairs in front of her desk, each pair on either side of a small table dividing the good guys from the bad. As we seat ourselves, she gives a stern look to Wilbur.

“Mr. Hernandez, do you know why I brought you back here?”

“Uh, no, Your Honor.”

“I brought you back here because you have made a very serious allegation in open court. You stated, on the record, that Mr. Wyler suborned perjury by having his client testify that the front wheel of the truck ran over his client's foot, and not the rear wheel, as she believed to be the truth. Am I correct on that?”

“Um, yes, Your Honor.”

“Can you tell me on what page and line number it is in her transcript where she testified falsely that the front wheel of the truck ran over her foot?”

“No, I cannot, Your Honor.”

“And why not, Mr. Hernandez?”

“Because I don't possess a copy of her transcript.”

“You mean to tell me you made an allegation of suborning perjury in open court against another attorney without first having in your hands the subject transcript to verify the claim and back up your assertion?”

“Yes, Your Honor. But my client was sure.”

“Well, certainly you must have gone to Mr. Wyler's office and at least reviewed the transcript before making this allegation in open court.”

“No, Your Honor.”

Quickly, things become hostile. She shakes her head in disapproval.

“
Tsk
,
tsk
,
tsk
, Counselor. Well, I just read every word of this transcript, and nowhere here does she testify that it was the front wheel of the truck that ran over her foot, the proposed statement of suborned perjury. In fact, it states the exact opposite. She testified that the rear wheel of the truck ran over her foot, which is what she testified to be the truth of the matter here in court yesterday. So, by definition, there can be no perjury or the suborning thereof, because she testified both at her EBT and again here in court to what she believed to be the truth of the matter. Would you like to read this deposition to confirm what I am saying?” She extends the transcript to him across the desk.

“No, Your Honor. I'll take your word for it. Her memory, it seems, may be faulty.”

“Mr. Hernandez, when we go back on the record, I am going to dismiss the allegations against Mr. Wyler in their entirety and issue an order entitling him to ninety-five percent of the attorney fee. You will, however, have to earn your five percent by taking this matter to trial—since your client won't consent to a settlement—and end up with the same amount after a verdict, assuming you win. And I say ‘assuming you win' because you do not have an ideal witness in Ms. Ruiz. Do I make myself clear, Mr. Hernandez?”

“Yes, Your Honor.”

“Good. But I'm not done with you.” She pauses, then begins again, her tone grave.

“Mr. Hernandez, my obligation is to report your reckless conduct to the Disciplinary Committee, where you could easily have your license suspended for this egregious behavior. But I will leave that decision up to Mr. Wyler.” She turns to me. In my head, I hear his threat to punch me in the nose again.

“Well, Mr. Wyler, what do you want me to do?” I hesitate. Telling her that I'd like him to lick my ass in Macy's window will not reflect well upon me.

“Your Honor, I don't believe it will be necessary for you to make a report to the Disciplinary Committee. I think your ruling on this matter achieves justice, and as long as counsel stipulates not to appeal your decision, that would be enough.” She looks to Wilbur.

“Well, sir?”

“Yes, Your Honor, I'll so stipulate, on the record.”

“And one other thing, Your Honor.”

“I'm listening, Mr. Wyler.”

“I think that Wilbur should apologize to me for what he attempted to do here.”

“Yes, Mr. Wyler, I do think an apology is in order.” Judge Brown turns to him. He nods.

“I'm sorry,” he says, in a low voice. Judge Brown intervenes. Again.

“Mr. Hernandez, that really didn't sound very sincere. If an apology is not sincere, then it's not an apology at all. Do you agree with me on that, Mr. Wyler?”

I love her sense of justice. “You know, I was just thinking the same thing, Your Honor.”

She gives me a smirk, and we turn back to Wilbur. This guy is on the ropes.

“I'm sorry,” he repeats, sounding a little more genuine. But not that much.

“For what, Mr. Hernandez? For what are you sorry? Look Mr. Wyler in the eye and tell him.”

He understands what he needs to do but is struggling. “I'm sorry for falsely claiming in open court that you suborned perjury.”

“And …” this very forthright judge prompts.

“And for attempting to steal your fee.”

Justice comes in all forms, I think to myself. Sometimes even a simple apology does the trick. Everyone deserves a second chance. That's what makes this country great.

A little later, after we go through the formality of placing the resolution on the record, Roscoe walks out of the building with me. We stop at the bottom of the courthouse steps. I sigh. But it's a happy one. The thing is, even though I've just saved my ass, I can't even stop to congratulate myself. Roscoe gives me the nod.

“So, where you off to?”

I point across the street.

“Benson?”

His guess is on the money.

“Good luck,” he says. “But just remember what I've told you time and again: some day one of his referrals is going to be the end of you. It easily could've happened this morning with this … What do you call Henry's referrals again?”

“HICs.”

“Right, this HIC.”

“Got ya,” I reply. And sigh again. This time, a heavy one.

But this is what I do. And this is who I am.

Chapter Five

A
s I walk across the street through Foley Square to Henry Benson's office, I'm thinking about our relationship.

The reason Henry, a celebrated criminal defense attorney, no longer handles injury matters is because he managed to commit legal malpractice on the last civil case he presented to a jury. Now he can no longer obtain professional insurance that will cover injury matters. Thus, I became the lucky recipient of Henry's injured criminals—or HICs—as my paralegal, Lily, and I have nicknamed them.

Henry, by his own admission, chose me—a complete stranger—mostly so he could say fuck you to his ‘best friend,' Dominic Keller, the self-proclaimed king of all injury cases. Though, to be fair to myself, I know he'd been impressed by what he'd heard about my expertise in courtroom medicine. Dominic, in fact, had been the guy who'd once mentioned my skills to Henry, making the fuck you extra sweet.

So far, every HIC case has been accompanied by some form of wrinkle. One way or another, they don't ever fit the description “straightforward.” It's also fallen to me to figure out which HIC cases are legitimate injury claims and which might be trying to bilk the legal system. Since getting involved with Henry, I've learned—after the fact—that, occasionally, I guess wrong.

At least I admit it.

But what you need to know is that my first commitment is to my client. It's an ethical violation to tell the opposing attorney that a case may be tenuous at best or even lack merit should it become evident after being retained.

So this is how I went from having a quiet but steadily growing practice, at which I made a decent living, to being a guy up close and personal with not just the unexpected but the truly scary. I've been beaten up, drugged, kidnapped, run off the highway, and knocked into a coma. I've also committed forgery in the interests of justice, found myself in alliance with murderers and their co-conspirators, and faced the Disciplinary Committee an embarrassing number of times. I imagine you get the picture.

Plus, I look like Mike Tyson bit a piece of my ear off. But that's the good news. It's the permanent reminder of a gunshot to the head, which I survived while pursuing justice in the case of one very special brain-damaged girl, little Suzy Williams. Which is a whole other story.

Still, as Henry promised, my bank account has definitely benefited. At the same time, believe me, I'm just a guy who wants to do the right thing.

As far as Cookie is concerned, she's technically not an HIC. But Henry's involved himself, and so there's just no telling. Case in point: my morning events. Josefina Ruiz, although referred by Henry, was not an HIC—because she had no criminal past. The part Henry left out was her drug addiction, an unfortunate omission since addicts will say or do anything to support their habits.

When I enter Henry's office, he's seated in one of the client chairs flicking playing cards into a specially placed wastebasket.

“Bored, Henry?”

“Did you preserve our fee on Ruiz?” That's his way of showing concern.

“Fee preservation achieved.”

“Good. And no, not really,” he says.
Flick, flick.

“No, not really, what?” I ask.

“I'm not bored.”
Flick, flick.
“You're early,” he adds, still concentrating on what he's doing, which doesn't involve looking at me.

“I know I'm early. Do you want me to leave and come back?”

“No, stay. This Cookie matter looks to be a big case.”
Flick, flick.
“Three neck surgeries—you and I know two hundred and fifty thousand's ridiculous. But you tell me. You're the pro.”
Flick, flick.

“Without seeing her records, my take is that it could either definitely be big—or no case at all. We'll just have to wait and see. But the fact that she's doing cartwheels in headgear is strong evidence that she's on the road to recovery. Anyway, that was an artful cross you did of Major. Now he has no choice but to come here.”

Henry flicks two more cards, then stops. He likes to flick in pairs. He glances up for the first time.

“Let's stop bullshitting each other. Since we both met her at the same time, I won't consider her a direct referral. Instead of giving me fifty percent of the fee, I'll just take twenty-five since you're going to have to work out a fee arrangement with this Chris Charles, the outgoing attorney. Sound fair?”

“Yup. Sounds fair.” He's always been fair with me, so no need to point out it was my buddy, Mick, who made the score.

There's a buzz. “Mr. Benson,” his receptionist says, “Ms. Cookie Krumke and Dr. Major Dodd are here to see you. I'm sending them back per your instruction.”

I almost forgot he's a doctor. It's part of the weirdness here.

JUST AGREE

At this cue, Henry gets up and, with the toe of his ridiculously pointy cowboy boot, kicks two cards that fell short under his desk. Next, putting on his jacket and tightening his tie, he moves behind his desk, taking the trash can with him.

“Let me do the talking,” he instructs. “You stand there.” He points to his right. “Just agree. You got that?” I nod. Generally I don't like to play third wheel, but he's got the home-field advantage.

Cookie and Major appear at the door. “Come in,” Henry invites them. “Please sit down.” She proceeds gingerly, possibly paying the price for last night's cartwheels today.

Henry picks up on it. “You seem stiff today, Cookie. Is everything all right?”

“Well, I guess I overdid it. My neck's killing me, but I should be fine in a couple of days.”

Henry nods in sympathy, then turns his focus to Major, staring at him just long enough to make him uncomfortable. Then he shifts his attention back to Cookie.

“First things first,” Henry begins reasonably enough. “Cookie, two hundred fifty thousand dollars does not, we believe, constitute fair and reasonable compensation for what you've been through. Agreed, Tug?” He looks over to me.

“Agreed,” I respond. The first of many to come.

“Without even seeing your medicals or even knowing what the totality of the claim is, I feel justified in deeming two hundred fifty thousand an insult. Agreed, Tug?”

“Agreed.” Damn, Henry, I just told you there might not even be a case.

“I don't know what the basis for the offer of settlement is, but I do believe that for this Chris Charles to recommend it, he must lack the fundamental skill set it takes to handle a complex medical malpractice case properly. Agreed, Tug?”

“Agreed.”

“Under no circumstances, then, are you to accept that offer of settlement before we have an opportunity to look into things. Agreed, Tug?”

“Agreed.”

Cookie, though, has something to say. It's as clear as the dimple in her chin.

“But that's a lot of money, Mr. Benson,” she interjects.

“I understand that it may sound like a lot of money to you, young lady, but it doesn't mean it's fair under the circumstances. And it's these circumstances that I've brought you here to discuss today. If that money is on the table, it will always be on the table. Don't worry about that.”

“Um, I'm not sure that's exactly true, Mr. Benson,” Major says. He's biting his lip but appears composed.

“Oh, really?” Henry replies, confident he knows otherwise. “Why's that?”

“Chris Charles explained that they were willing to pay this money if we accepted it within the next seven days, before they incur any more expense in defending the case. Otherwise, they're going to take it off the table. It's their position—McElroy's lawyers, that is—that the only thing he may have done wrong was put a screw in improperly, which was corrected by the first remedial surgery. It's also their position that the next procedure came about because Cookie was having difficulties with bone healing. Which was unfortunate—yet we all know, I think, that it can happen in the best of surgical hands. Therefore, they're offering the two fifty for one otherwise unnecessary surgery, taking the position that the last operation was a result of healing insufficiencies rather than malpractice.”

“You seem to be well informed.”

“I'm just trying to help Cookie make the right decisions.”

“You helped enough already, don't you think?”

Ouch. Yet Major doesn't react. He genuinely seems concerned—for Cookie, not himself.

“Besides,” Henry continues, “even if the last procedure was the result of delayed bone union—that's what you're saying, right?”

“Yes, sir. Well, actually nonunion of bone at the fusion site.”

“Well, even so, that doesn't relieve Dr. McElroy of responsibility under the law. Those surgeries are items of damage imputed to him. The legal doctrine is called ‘the eggshell plaintiff.' Meaning, if Cookie sustained a greater injury than someone else would have who didn't have a healing insufficiency, McElroy is nonetheless responsible because you take the plaintiff as you find her. Agreed, Tug?”

“Agreed.” I'm keeping to my side of the bargain. But we need to connect the nonunion to McElroy's malpractice to collect for it.

“Thus, this case is worth more than two fifty based on the two subsequent surgeries alone. Agreed, Tug?”

“Agreed.” Like I said.

“As far as their taking the money off the table, that's just a negotiation ploy. It never happens. Once the money is there, it's always there. Agreed, Tug?”

“Agreed,” I say. The truth is, though, I'm way less confident with this one. I've been in situations, rare as they may be, where it happened. Now you see it, now you don't.

“What we must do at this juncture is discuss the circumstances that brought you two here,” Henry says, turning purposefully to Major. “It was quite a fortuitous chance we met, I believe. Since then, you've had time to reflect on what we talked about—and I'd like to pick it up from there. I made reference to an important aspect of this being ‘madness.' Do you recall? And do you understand what my meaning was, why I used that word?”

“Well, it obviously has something to do with the relationships between Chris Charles, Dr. McElroy, and me—which is to say, our various connections,” Major replies with surprising forthrightness.

“You hit the nail on the head. Now I'd like to hear the specifics.”

“That part I'm really not too sure about.”

Henry gives him a look. There's a long pause before he says, “What the devil is the matter with you? I'm talking about the inherent conflicts of interest among the defendant, the surgeon; his friend, the lawyer; you, the boyfriend; and Cookie, the injured malpractice victim. Don't you see it, man?”

“Well, not exactly.”

“Then I'll make it clear. Cookie deserves legal representation that's not influenced or compromised by personal relationships. She needs an attorney who'll represent her zealously, not some novice working out of his basement suing his friend, whom he may not want to hurt financially or professionally.” He stops to let this sink in, although any of it should have been obvious in this situation from the word
go
.

“Is this lawyer,” he continues, “going to go after his doctor pal's credibility and expose all the wrongful things he's done? I think not, because that would end their friendship. Now, Cookie's damages are certainly worth more than two hundred fifty thousand, but the question here is, what if they're worth more than the doctor's insurance coverage? Is this lawyer going to go after his buddy personally in an effort to get Cookie fairly compensated? Or will he be more concerned with the financial harm it might bring to his friend?”

Henry slams his hands down on his desk. Okay, it's overdramatic, but he knows what he's doing. “And that's only the beginning! Truly, it couldn't be more fundamental!” Henry and Major lock eyes. Henry's the alpha dog, so he keeps on going. Cookie is watching anxiously, protectively. She's concerned for her man, yet a door has been opened.

“Many of the conflicts with which this situation is plagued should give you pause, Major,” Henry continues. “What if you and Cookie split up for some reason? It's obvious you two share a close bond, but for discussion's sake, let's say a bad breakup occurs. She'll be on the outside of your cozy threesome. What then?” He can see he's broken through to Major finally, and so can I. It was the possibility of breaking up, however hypothetical, that did it.

“So I'd suggest the current situation is not entirely in Cookie's best interests, yet her best interests are what you want for her, correct?” With this last thrust, Henry's got Major wearing the look he should be wearing.

“Yes, yes, of course I want what's in Cookie's best interests. I just never realized the potential here for conflict. I'd felt terrible about referring her to Dr. McElroy, who did what he did. Even felt responsible for what happened to her. I was trying to make things better by getting her to a lawyer. But I understand what you're talking about now. The circle is too small.” Major looks at Cookie. “I'm sorry, my dear. I just didn't realize. But I should have.”

“I know you were doing what you believed was best.”

As they share this loving moment, I have to question how these two ever became a couple in the first place.

Henry points to me. Cookie and I lock eyes, and she smiles at me. She's really something. I smile back, not a flirty smile, but one that acknowledges her in a respectful way.

“Now, I've had a long-standing relationship with Mr. Wyler here,” Henry says, “and I know he's the right man for the job. Still, I intend to personally oversee your case, and that way you get double expertise, experience, and insight. How does that sound to you, Cookie?”

“Can I really do that? I mean, can I really change attorneys?”