The Rainmaker

SECONDS AFTER PAYTON REISKY TAKES the witness stand bright and early Thursday morning, I hand him a copy of the Stupid Letter and ask him to read it. Then I ask, "Now, Mr. Reisky, in your expert opinion, is this a fair and reasonable response from Great Benefit?"



He's been forewarned. "Of course not. This is horrible."



"It's shocking, isn't it?"



"It is. And I understand the author of this letter is no longer with the company."



"Who told you this?" I ask, very suspicious.



"Well, I'm not sure. Someone at the company."



"Did this unknown person also tell you the reason why Mr. Krokit is no longer with the company?"



"I'm not sure. Maybe it had something to do with the letter."



"Maybe? Are you sure of yourself, or simply speculating?"



"I'm really not sure."



"Thank you. Did this unknown person tell you that Mr. Krokit left the company two days before he was to give a deposition in this case?"



"I don't believe so."



"You don't know why he left, do you?"



"No."



"Good. I thought you were trying to imply to the jury that he left the company because he wrote this letter. You weren't trying to do that, were you?"



"No."



"Thank you."



It was decided over the wine last night that it would be a mistake to beat Reisky over the head with the manuals. There are several reasons for this line of thinking. First, the evidence is already before the jury. Second, it was first presented in a very dramatic and effective manner, i.e., we caught Lufkin lying through his teeth. Third, Reisky is quick with words and will be hard to pin down. Fourth, he's had time to prepare for the assault and will do a better job of holding his own. Fifth, he'll seize the opportunity to further confuse the jury. And, most important, it will take time. It would be easy to spend all day haggling with Reisky over the manuals and the statistical data. I'd kill a day and get nowhere in the process.



"Who pays your salary, Mr. Reisky?"



"My employer. The National Insurance Alliance."



"Who funds the NIA?"



"The insurance industry."



"Does Great Benefit contribute to the NIA?"



"Yes."



"And how much does it contribute?"



He looks at Drummond, who's already on his feet. "Objection, Your Honor, this is irrelevant."



"Overruled. I think it's quite relevant."



"How much, Mr. Reisky?" I repeat, helpfully.



He obviously doesn't want to say, and looks squeamish. "Ten thousand dollars a year."



"So they pay you more than they paid Donny Ray Black."



"Objection!"



"Sustained."



"Sorry, Your Honor. I'll withdraw that comment."



"Move to have it stricken from the record, Your Honor," Drummond says angrily.



"So ordered."



We take a breath as tempers subside. "Sorry, Mr. Reisky," I say humbly with a truly repentant face.



"Does all of your money come from insurance companies?"



"We have no other funding."



"How many insurance companies contribute to the NIA?"



"Two hundred and twenty."



"And what was the total amount contributed last year?"



"Six million dollars."



"And you use this money to lobby with?"



"We do some lobbying, yes."



"Are you getting paid extra to testify in this trial?"



"No."



"Why are you here?"



"Because I was contacted by Great Benefit. I was asked to come testify."



Very slowly, I turn and point to Dot Black. "And, Mr. Reisky, can you look at Mrs. Black, look her squarely in the eyes, and tell her that her son's claim was handled fairly and properly by Great Benefit?"



It takes him a second or two to focus on Dot's face, but he has no choice. He nods, then finally says crisply, "Yes. It certainly was."



I, of course, had planned this. I wanted it to be a dra-



matic way to quickly end Reisky's testimony, but I certainly didn't expect it to be humorous. Mrs. Beverdee Hardaway, a stocky black woman of fifty-one, who's juror number three and sitting in the middle of the front row, actually laughs at Reisky's absurd response. It's an abrupt burst of laughter, obviously spontaneous because she cuts it off as rapidly as possible. Both hands' fly up to her mouth. She grits her teeth and clenches her jaws and looks around wildly to see how much damage she's done. Her body, though, keeps gyrating slightly.



Unfortunately for Mrs. Hardaway, and quite blessedly for us, the moment is contagious. Mr. Ranson Pelk who sits directly behind her gets tickled at something. So does Mrs. Ella Faye Salter who sits next to Mrs. Hardaway. Within seconds of the initial eruption, there is widespread laughing throughout the jury box. Some jurors glance at Mrs. Hardaway as if she's still the source of the mischief. Others look directly at Reisky and shake their heads in amused bewilderment.



Reisky assumes the worst, as if he's the reason they're laughing. His head falls and he studies the floor. Drum-mond chooses simply to ignore it, though it must be awfully painful. Not a face can be seen from his group of bright young eagles. They've all got their noses stuck in files and books. Aldy and Underhall examine their socks.



Kipler wants to laugh himself. He tolerates the comedy for a bit, and as it begins to subside he raps his gavel, as if to officially record the fact that the jury actually laughed at the testimony of Payton Reisky.



It happens quickly. The ridiculbus answer, the burst of laughter, the cover-up, the chuckling and giggling and head-shaking skepticism, all last but a few seconds. I detect, though, a certain forced relief on the part of some of the jurors. They want to laugh, to express disbelief, and in doing so they can, if only for a second, tell Reisky and



Great Benefit exactly what they think about what they're hearing.



Brief though it is, it's an absolutely golden moment. I smile at them. They smile at me. They believe everything from my witnesses, nothing from Drummond's.



"Nothing else, Your Honor," I say with disgust, as if I'm tired of this lying scoundrel.



Drummond is obviously surprised. He thought I'd spend the rest of the day hammering Reisky with the manuals and the statistics. He shuffles paper, whispers to T. Price, then stands and says, "Our next witness is Richard Pellrod."



Pellrod was the senior claims examiner over Jackie Lemancyzk. He was a terrible witness during deposition, a real chip on his shoulder, but his appearance now is no surprise. They must do something to cast mud on Jackie. Pellrod was her immediate boss.



He's forty-six, of medium build with a beer gut, little hair, bad features, liver spots and nerdish eyeglasses. There's nothing physically attractive about the poor guy, and he obviously doesn't care. If he says Jackie Lemancyzk was nothing but a whore who tried to snare his body as well, I'll bet the jury starts laughing again.



Pellrod has the irascible personality you'd expect from a person who's worked in claims for twenty years. Just slightly friendlier than the average bill collector, he simply cannot convey any warmth or trust to the jury. He's a low-level corporate rat who's probably been working in the same cubicle for as long as he can remember.



And he's the best they have! They can't bring back Lufkin or Aldy or Keeley because they've already lost all credibility with the jury. Drummond has a half-dozen home office people left on his witness list, but I doubt if he calls all of them. What can they say? The manuals



don't exist? Their company doesn't lie and hide documents?



Drummond and Pellrod Q&A through a well-rehearsed script for half an hour, more breathless inner workings of the claims department, more heroic efforts by Great Benefit to treat its insureds fairly, more yawns from the jury.



Judge Kipler decides to insert himself into the boredom. He interrupts this little tag-team, says, "Counselor, could we move along?"



Drummond appears shocked and wounded. "But, Your Honor, I have the right to conduct a thorough examination of this witness."



"Sure you do. But most of what he's said so far is already before the jury. It's repetitive."



Drummond just can't believe this. He's incredulous, and he pretends, quite unsuccessfully, to act as if the judge is picking on him.



"I don't recall your telling plaintiff's counsel to hurry up."



He shouldn't have said this. He's trying to prolong this flare-up, and he's picking a fight with the wrong judge. "That's because Mr. Baylor kept the jury awake, Mr. Drummond. Now move along."



Mrs. Hardaway's outburst and the snickering it created has obviously loosened up the jurors. They're more animated now, ready to laugh again at the expense of the defense.



Drummond glares at Kipler as if hell discuss this later and straighten things out. Back to Pellrod, who sits like a toad, eyes half-open, head tilted to one side. Mistakes were made, Pellrod admits with a weak effort at remorse, but nothing major. And, believe it or not, most of the mistakes can be attributed to Jackie Lemancyzk, a troubled young woman.



Back to the Black claim for a while as Pellrod discusses



some of the less-damning documents. He never gets around to the denial letters, but instead spends a lot of time with paperwork that is irrelevant and unimportant.



"Mr. Drummond," Kipler interrupts sternly, "I've asked you to move along. These documents are in evidence for the jury to examine. This testimony has already been covered with other witnesses. Now, move it."



Drumrnond's feelings are hurt by this. He's being harangued and picked on by an unfair judge. He takes time to collect himself. His acting is not up to par.



They decide to fashion a new strategy with the claims manual. Pellrod says it's just a book, nothing more or less. Personally, he hasn't looked at the damned thing in years. They keep changing it so much that most of the veteran claims handlers just ignore it. Drummond shows him Section U, and, son of a gun, he's never seen it before. Means nothing to him. Means nothing to the many handlers under his supervision. Personally, he doesn't know a single claims handler who bothers with the manual.



So how are claims really handled? Pellrod tells us. Under Drumrnond's prompting, he takes a hypothetical claim, walks it through the normal channels. Step by step, form by form, memo by memo. Pellrod's voice remains in the same octave, and he bores the hell out of the jury. Lester Days, juror number eight, on the back row, nods off to sleep. There are yawns and heavy eyelids as they try vainly to stay awake.



It does not go unnoticed.



If Pellrod is crushed by his failure to dazzle die jury, he doesn't show it. His voice doesn't change, his manner remains the same. He finishes with some alarming revelations about Jackie Lemancyzk. She was known to have a drinking problem, and often came to work smelling of liquor. She missed more work than the other claims han-



dlers. She grew increasingly irresponsible, and her termination was inevitable. What about her sexual escapades?



Pellrod and Great Benefit have to be careful here because this topic will be discussed again on another day in another courtroom. Whatever is said here will be recorded and preserved for future use. So, instead of making her a whore who readily slept with anybody, Drum-mond wisely takes the higher ground.



"I really don't know anything about that," Pellrod says, and scores a minor point with the jury.



They kill some more clock, and make it almost until noon before Pellrod is handed to me. Kipler wants to break for lunch, but I assure him I won't take long. He reluctantly agrees.



I start by handing Pellrod a copy of a denial letter he signed and sent to Dot Black. It was the fourth denial, and was based on the grounds that Donny Ray's leukemia was a preexisting condition. I make him read it to the jury, and admit it's his. I allow him to try and explain why he sent it, but, of course, there's no way txrexplain. The letter was a private matter between Pellrod and Dot Black, never intended to be seen by anybody else, certainly not in this courtroom.



He talks about a form that was mistakenly filled in by Jackie, and about a misunderstanding with Mr. Krokit, and, well, hell, the whole thing was just a mistake. And he's very sorry about it.



"It's a little too late to be sorry, isn't it?" I ask.



"I guess."



"When you sent that letter, you didn't know that there would be four more letters of denial, did you?"



"No."



"So, this letter was intended to be the final letter of denial to Mrs. Black, correct?"



The letter contains the words "final denial."



"I guess so."



"What caused the death of Donny Ray Black?"



He shrugs. "Leukemia."



"And what medical condition prompted the filing of his claim?"



"Leukemia."



"In your letter there, what preexisting condition do you mention?"



"The flu."



"And when did he have the flu?"



"I'm not sure."



"I can gjst the file if you want to go through it with me."



"No, that's okay." Anything to keep me out of the file. "I think he was fifteen or sixteen," he says.



"So he had the flu when he was fifteen or sixteen, before the policy was issued, and this was not mentioned on the application."



"That's correct."



"Now, Mr. Pellrod, in your vast experience in claims, have you ever seen a case in which a bout with the flu was somehow related to the onset of acute leukemia five years later?"



There's only one answer, but he just can't give it. "I don't think so."



"Does that mean no?"



"Yes it means no."



"So the flu had nothing to do with the leukemia, did it?"



"No."



"So you lied in your letter, didn't you?"



Of course he lied in his letter, and he'll lie now if he says he didn't lie then. The jury will see it. He's trapped, but Drummond's had time to work with him.



"The letter was a mistake," Pellrod says.



"A lie or a mistake?"



"A mistake."



"A mistake that helped kill Donny Ray Black?"



"Objection!" Drummond roars from his seat.



Kipler thinks about this for a second. I expected an objection, and I expect it to be sustained. His Honor, however, feels otherwise. "Overruled. Answer the question."



"I'd like to enter a continuing objection to this line of questioning," Drummond says angrily.



"Noted. Please answer the question, Mr. Pellrod."



"It was a mistake, that's all I can say."



"Not a lie?"



"No."



"How about your testimony before this jury? Is it filled with lies or mistakes?"



"Neither."



I turn and point to Dot Black, then look at the witness. "Mr. Pellrod, as the senior claims examiner, can you look Mrs. Black squarely in the eyes and tell her that her son's claim was handled fairly by your office? Can you do this?"



He squints and twitches and frowns, and glances at Drummond for instructions. He clears his throat, tries to act offended, says, "I don't believe I can be forced to do that."



"Thank you. No further questions."



I finish in less than five minutes, and the defense is scrambling. They figured we'd spend the day with Reisky, then consume tomorrow with Pellrod. But I'm not wasting time with these clowns. I want to get to the jury.



Kipler declares a two-hour lunch break. I pull Leo to one side, and hand him a list of six additional witnesses.



"What the hell is this?" he says.



"Six doctors, all local, all oncologists, all ready to come testify live if you put your quack on." Walter Kord is incensed over Drummond's strategy to portray bone mar-



row transplants as experimental. He's twisted the arms of his partners and friends, and they're ready to come testify.



"He's not a quack."



"You know he's a quack. He's a nut from New York or some foreign place. I've got six local boys here. Put him on. This could be fun."



"These witnesses are not in the pretrial order. This is an unfair surprise."



"They're rebuttal witnesses. Go cry to the judge, okay." I leave him standing by the bench, staring at my list.



AFTER LUNCH, but before Kipler calls us to order, I chat near my table with Dr. Walter Kord and two of his partners. Seated alone in the front row behind the defense table is Dr. Milton Jiffy, Drummond's quack. As the lawyers prepare for the afternoon session, I call Drum-mond over and introduce him to Kord's partners. It's an awkward moment. Drummond is visibly unnerved by their presence here. The three of them take their places on the front row behind me. The five boys from Trent & Brent can't help but stare.



The jury is brought in, and Drummond calls Jack Un-derhall to the stand. He's sworn in, takes his seat, grins idiotically at the jury. They've been staring at him for three days now, and I don't understand how or why Drummond thinks this guy will be believed.



His purpose becomes plainly obvious. It's all about Jackie Lemancyzk. She lied about the ten thousand dollars in cash. She lied about signing the agreement because there is no agreement. She lied about the claim denial scheme. She lied about having sex with her bosses. She even lied about the company denying her medical claims. UnderhalPs tone starts as mildly sympathetic but becomes harsh and vindictive. It's impossible to say these horrible



things with a smile, but he seems particularly eager to trash her.



It's a bold and risky maneuver. The fact that this corporate thug would accuse anybody of lying is glaringly ironic. They have decided that this trial is far more important than any subsequent action by Jackie. Drummond is apparently willing to risk total alienation of the jury on the prayer of causing enough doubt to muddy the waters. He's probably thinking he has little to lose by this rather nasty attack on a young woman who's not present and cannot defend herself.



Jackie's job performance was lousy, Underhall tells us. She was drinking and having trouble getting along with her co-workers. Something had to be done. They offered a chance to resign so it wouldn't screw up her record. Had nothing to do with the fact that she was about to give a deposition, nothing whatsoever to do with the Black claim.



His testimony is remarkably brief. They hope to get him on and off the stand without significant damage. There's not much I can do but hope the jury despises him as much as I do. He's a lawyer, not someone I want to spar with.



"Mr. Underhall, does your company keep personnel files on its employees?" I ask, very politely.



"We do."



"Did you keep one on Jackie Lemancyzk?"



"We did."



"Do you have it with you?"



"No sir."



"Where is it?"



"At the office, I presume."



"In Cleveland?"



"Yes. At the office."



"So we can't look at it?"



"I don't have it, okay. And I wasn't told to bring it."



"Does it include performance evaluations and stuff like that?"



"It does."



"If an employee received a reprimand or a demotion or a transfer, would these be in the personnel file?"



"Yes."



"Does Jackie's have any of these?"



"I believe so."



"Does her file have a copy of her letter of resignation?"



"Yes."



"But we'll have to take your word about what's in the file, correct?"



"I wasn't told to bring it here, Mr. Baylor."



I check my notes and clear my throat. "Mr. Underhall, do you have a copy of the agreement Jackie signed when you gave her the cash and she promised never to talk?"



"You must not hear very well."



"I beg your pardon."



"I just testified that there was no such agreement."



"You mean it doesn't exist?"



He shakes his head emphatically. "Never did. She's lying."



I act surprised, then slowly walk to my table, where papers are scattered everywhere. I find the one I want, scan it thoughtfully as everybody watches, then return to the podium with it. UnderhalPs back stiffens and he looks wildly at Drummond, who at the moment is staring at the paper I'm holding. They're thinking about the Section U's! Baylor's done it again! He's found the buried documents and caught us lying.



"But Jackie Lemancyzk was quite specific when she told the jury what she was forced to sign. Do you remember her testimony?" I dangle the paper off the front of the podium.



"Yes, I heard her testimony," he says, his voice a bit higher, his words tighter.



"She said you handed her ten thousand dollars in cash and made her sign an agreement. Do you remember that?" I glance at the paper as if I'm reading from it. Jackie told me the dollar amount was actually listed in the first paragraph of the document.



"I heard her," he says, looking at Drummond. Un-derhall knows I don't have a copy of the agreement because he buried the original somewhere. But he can't be certain." Strange things happen. How in the world did I find the Section U's?



He can't admit there's an agreement. And he can't deny it either. If he denies, and if I suddenly produce a copy, then the damage cannot be estimated until the jury returns with its verdict. He fidgets, twists, wipes sweat from his forehead.



"And you don't have a copy of the agreement to show to the jury?" I ask, waving the paper in my hand.



"I do not. There is none."



"Are you certain?" I ask, rubbing my finger around the edges-of the paper, fondling it.



"I'm certain."



I stare at him for a few seconds, thoroughly enjoying the sight of him suffering. The jurors haven't thought about sleeping. They're waiting for the ax to fall, for me to whip out the agreement and watch him croak.



But I can't. I wad the meaningless piece of paper and dramatically toss it on the table. "No further questions," I say. Underhall exhales mightily. A heart attack has been avoided. He leaps from the witness stand and leaves the courtroom.



Drummond asks for a five-minute recess. Kipler decides the jury needs more, and dismisses us for fifteen. n   n   n   o



THE DEFENSE STRATEGY of dragging out testimony and hopefully confusing the jury is plainly not working. The jurors laughed at Reisky and slept through Pellrod. Underhall was a near fatal disaster because Drummond was terrified I had a copy of a document his client assured him did not exist.



Drummond's had enough. He'll take his chances with a strong closing argument, something he can control. He announces after recess that the defense rests.



The trial is almost over. Kipler schedules closing arguments for nine o'clock Friday morning. He promises the jurors they'll have the case by eleven.