I GET A FEW SMILES FROM THE JURORS AS they file to their seats after lunch. They're not supposed to discuss the case until it's officially handed to them, but everyone knows they whisper about it every time they leave the courtroom. A few years ago, two jurors got in a fistfight while debating the veracity of a certain witness. Problem was, it was the second witness in a trial scheduled for two weeks. The judge declared a mistrial and started over.
They've had two hours to simmer and boil over Jackie's testimony. It's time for me to show them how to rectify some of these wrongs. It's time to talk about money.
"Your Honor, the plaintiff calls Mr. Wilfred Keeley to the stand." Keeley is found nearby, and bounces into the courtroom, just itching to testify. He seems vigorous and friendly, in sharp contrast to Lufkin and in spite of the indelible lies already exposed against his company. He obviously wants to assure the jury that he's in charge, and that he's a soul to be trusted.
I ask a few general questions, establish the fact that he's
die CEO, the number-one boss at Great Benefit. He heartily confesses to this. Then I hand him a copy of the company's latest financial statement. He acts as if he reads it every morning.
"Now, Mr. Keeley, can you tell the jury how much your company is worth?"
"What do you mean by worth?" he shoots back.
"I mean net worth."
"That's not a clear concept."
"Yes it is. Look at your financial statements there, take the assets on one hand, subtract the liabilities on the other, and tell the jury what's left. That's net worth."
"It's not that simple."
I shake my head in disbelief. "Would you agree that your company has a net worth of approximately four hundred and fifty million dollars?"
Aside from the obvious advantages, one additional benefit in catching a corporate thug lying is that its subsequent witnesses need to tell the truth. Keeley needs to be refreshingly honest, and I'm sure Drummond has beaten him over the head with this. I'm sure it's been difficult.
"That's a fair assessment. I'll agree with that."
"Thank you. Now, how much cash does your company have?"
This question was not expected. Drummond stands and objects, Kipler overrules.
"Well, that's difficult to say," he says, and lapses into the Great Benefit angst we've come to expect.
"Come on, Mr. Keeley, you're the CEO. You've been with the company for eighteen years. You came out of finance. How much cash you got lying around up there?"
He's flipping pages like crazy, and I wait patiently. He finally gives me a figure, and this is where I thank Max Leuberg. I take my copy, and ask him to explain a particular Reserve Account. When I sued them for ten million
dollars, they set aside that amount as a reserve to pay the claim. Same with every lawsuit. It's still their money, still being invested and earning well, but now it's classified as a liability. Insurance companies love it when they get sued for umpteen zillion bucks, because they can reserve the money and claim they're basically broke.
And it's all perfectly legal. It's an unregulated industry with its own set of murky accounting practices.
Keeley starts using long financial words that no one understands. He'd rather confuse the jury than admit the truth.
I quiz him about another Reserve, then we move to the Surplus accounts. Restricted Surplus. Unrestricted Surplus. I grill him pretty good, and I sound rather intelligent. Using Leuberg's notes, I tally up the figures and ask Keeley if the company has about four hundred and eighty-five million in cash.
"I wish," he says with a laugh. There's not so much as a grin from anyone else.
"Then how much cash do you have, Mr. Keeley?"
"Oh, I don't know. I'd say probably around a hundred million."
That's enough for now. During my closing argument, I can put my figures on a chalkboard and explain where the money is.
I hand him a copy of the printout on the claims data, and he looks surprised. I made the decision at lunch to ' ambush him while I had him on the stand, and stay away from an encore by Lufkin. He looks at Drummond for help, but there's nothing he can do. Mr. Keeley here is the CEO, and he certainly should be able to aid us in our search for the truth. I'm assuming they're thinking I'll bring back Lufkin to explain this data. As much as I love Lufkin, I'm through with him. I won't give him the chance to refute the statements of Jackie Lemancyzk.
"Do you recognize that printout, Mr. Keeley? It's the one your company gave me this morning."
"Certainly."
"Good. Can you tell the jury how many medical policies your company had in effect in 1991?"
"Well, I don't know. Let me see." He turns pages, holds one up, then puts it down, takes another, then another.
"Does the figure of ninety-eight thousand sound correct, give or take a few?"
"Maybe. Sure, yeah, I think that's right."
"And how many claims on these policies were filed in 1991?"
Same routine. Keeley flounders through the printout, mumbling figures to himself. It's almost embarrassing. Minutes pass, and I finally say, "Does the figure of 11,400 sound correct, give or take a few?"
"Sounds close, I guess, but I'd need to verify it, you know."
"How would you verify it?"
"Well, I'd need to study this some more."
"So the information is right there?"
"I think so."
"Can you tell the jury how many of these claims were denied by your company?"
"Well, again, I'd have to study all this," he says, lifting the printout with both hands.
"So this information is also contained in what you're now holding?"
"Maybe. Yes, I think so."
"Good. Look on pages eleven, eighteen, thirty-three and forty-one." He's quick to obey, anything to keep from testifying. Pages rattle and shuffle.
"Does the figure of 9,100 sound correct, give or take a few?"
He's just plain shocked at this outrageous suggestion. "Of course not. That's absurd."
"But you don't know?"
"I know it's not that high."
"Thank you." I approach the witness, take the printout and hand him the Great Benefit policy given to me by Max Leuberg. "Do you recognize this?"
"Sure," he says gladly, anything to get away from that wretched printout.
"What is it?"
"It's a medical policy issued by my company."
"Issued when?"
He examines it for a second. "September of 1992. Five months ago."
"Please look at page eleven, Section F, paragraph four, sub-paragraph c, clause number thirteen. Do you see that?"
The print is so small he has to pull the policy almost to his nose. I chuckle at this and glance at the jurors. The humor is not missed.
"Got it," he says finally.
"Good. Now read it, please."
He reads, squinting and frowning as if it's truly tedious. When he's finished, he forces a smile. "Okay."
"What's the purpose of that clause?"
"It excludes certain surgical procedures from the coverage."
"Specifically?"
"Specifically all transplants."
"Is bone marrow listed as an exclusion?"
"Yes. Bone marrow is listed."
I approach the witness and hand him a copy of the Black policy. I ask him to read a certain section. The minuscule print strains his eyes again, but he valiantly plows through it.
"What does this policy exclude in the way of transplants?"
"All major organs; kidney, liver, heart, lungs, eyes, they're all listed here."
"What about bone marrow?"
"It's not listed."
"So it's not specifically excluded?"
"That's correct."
"When was this lawsuit filed, Mr. Keeley? Do you remember?"
He glances at Drummond, who of course cannot be of any assistance at this moment. "During the middle of last summer, as I recall. Could it be June?"
"Yes sir," I say. "It was June. Do you know when the language of the policy was changed to include the exclusion of bone marrow transplants?"
"No. I do not. I'm not involved in the writing of the policies."
"Who writes your policies? Who creates all this fine print?"
"It's done in the legal department."
"I see. Would it be safe to say that the policy was changed sometime after this lawsuit was filed?" ""
He analyzes me for a moment, then says, "No. It might have been changed before the suit was filed."
"Was it changed after the claim was filed, in August of 1991?"
"I don't know."
His answer sounds suspicious. Either he's not paving attention to his company, or he's lying. It really makes no difference to me. I have what I want. I can argue to the jury that this new language is clear evidence that there was no intent to exclude bone marrow from the Blacks' policy. They excluded everything else, and they exclude everything now, so they got nailed by their own language.
I have only one quick matter left for Keeley. "Do you have a copy of the agreement Jackie Lemancyzk signed on the day she was fired?"
"No."
"Have you ever seen this agreement?"
"No."
"Did you authorize the payment often thousand dollars in cash to Jackie Lemancyzk?"
"No. She's lying about that."
"Lying?"
"That's what I said."
"What about Everett Lufkin? Did he lie to the jury about the claims manual?"
Keeley starts to say something, then catches himself. No answer will benefit him at this point. The jurors know full well that Lufkin lied to them, so he can't tell the jurors they really didn't hear what they really heard. And he certainly can't admit that one of his vice presidents lied to the jury.
I didn't plan this question, it just happened. "I asked you a question, Mr. Keeley. Did Everett Lufkin lie to this jury about the claims manual?"
"I don't think I have to answer that question."
"Answer the question," Kipler says sternly.
There's a painful pause as Keeley glares at me. The courtroom is silent. Every single juror is watching him and waiting. The truth is obvious to all, and so I decide to be the nice guy.
"Can't answer it, can you, because you can't admit a vice president of your company lied to this jury?"
"Objection."
"Sustained."
"No further questions."
"No direct at this time, Your Honor," Drummond says. Evidently, he wants the dust to settle before he brings
these guys back during the defense. Right now, Drum-mond wants time and distance between Jackie Lemancyzk and our jury.
KERMIT ALDY, the Vice President for Underwriting, is my next to last witness. At this point, I really don't need his testimony, but I need to fill some time. It's two-thirty on the second day of the trial, and I'll easily finish this afternoon. I want the jury to go home thinking about two people, Jackie Lemancyzk and Donny Ray Black.
Aldy is scared and short with his words, afraid to say much more than is absolutely necessary. I don't know if he slept with Jackie, but right now everybody from Great Benefit is a suspect. I sense the jury feels this way too.
We zip through enough background to suffice. Underwriting is so horribly boring I'm determined to provide only the barest of details for the jury. Aldy is also, boring and thus up to the task. I don't want to lose the jury, so I go fast.
Then, it's time for the fun stuff. I hand him the underwriting manual that was given to me during discovery. It's in a green binder, and looks very much like the claims manual. Neither Aldy nor Drummond nor anyone else knows if I also have in my possession another copy of the underwriting manual, this one fully equipped with a Section U.
He looks at it as if he's never seen it before, but identifies it when I ask him to. Everybody knows the next question.
"Is this a complete manual?"
He flips through it slowly, takes his time. He obviously has had the benefit of Lufkin's experience yesterday. If he says it's complete, and if I whip out the copy I borrowed from Cooper Jackson, then he's dead. If he admits some-
thing's missing, then he'll pay a price. I'm betting that Drummond has opted for the latter.
"Well, let's see. It looks complete, but, no, wait a minute. There's a section missing in the back."
"Might that be Section U?" I ask, incredulous.
"I think so, yes."
I pretend to be amazed. "Why in the world would anyone want to remove Section U from this manual?"
"I don't know."
"Do you know who removed it?"
"No."
"Of course not. Who selected this particular copy to be delivered to me?"
"I really don't remember."
"But it's obvious Section U was removed before it was given to me?"
"It's not here, if that's what you're after."
"I'm after the truth, Mr. Aldy. Please help me. Was Section U removed before this manual was given to me?"
"Apparently so."
"Does that mean yes?"
"Yes. The section was removed."
"Would you agree that the underwriting manual is very important to the operations of your department?"
"Of course."
"So you're obviously very familiar with it?"
"Yes."
"So it would be easy for you to summarize the basics of Section U for the jury, wouldn't it?"
"Oh, I don't know. It's been a while since I looked at it."
He still doesn't know if I have a copy of Section U from the underwriting manual. "Why don't you try? Just give the jury a brief rundown on what's in Section U."
He thinks for a moment, then explains that the section
deals with a system of checks and balances between claims and underwriting. Both departments are supposed to monitor certain claims. It requires a good deal of paperwork to ensure a claim is handled properly. He rambles, picks up a little confidence, and since I have yet to produce a copy of Section U, I think he starts to believe I don't have one.
"So the purpose of Section U is to guarantee that each claim is handled in a proper manner."
"Yes."
I reach under the table, pull out the manual and walk to the witness stand. "Then let's explain it to the jury," I say, handing him the complete manual. He sinks a bit. Drummond tries to maintain a confident bearing, but it's impossible.
The Section U in underwriting is just as dirty as the Section U in claims, and after an hour of embarrassing Aldy it's time to stop. The scheme has been laid bare for the jury to fume over.
Druinmond has no questions. Kipler recesses us for fifteen minutes so Deck and I can set up the monitors.
Our final witness is Donny Ray Black. The bailiff dims the courtroom lights, and the jurors ease forward, anxious to see his face on the twenty-inch screen in front of them. We've edited his deposition down to thirty-one minutes, and every scratchy and weak word is absorbed by the jurors.
Instead of watching it for the hundredth time, I sit close to Dot and study the faces in the jury box. I see lots of sympathy. Dot wipes her cheeks with the backs of her hands. Toward the end, I have a lump in my throat.
The courtroom is very quiet for a full minute as the screens go blank and the bailiff goes for the lights. In the dimness, the soft but unmistakable sound of a crying mother emanates from our table.
We have inflicted all the damage I can think of. I have the case won. The challenge now is not to lose it.
The lights come on, and I announce solemnly, "Your Honor, the plaintiff rests."
LONG AFTER the jury leaves, Dot and I sit in an empty courtroom and talk about the remarkable testimony we've heard over the past two days. It's been clearly proven that she is right, they were wrong, but there's little satisfaction in this. She will go to her grave tormented because she didn't fight harder when it counted.
She tells me she doesn't care what happens next. She's had her day in court. She'd like to go home now, and never come back. I explain this is not possible. We're only halfway through. Just a few more days.
