The Rainmaker

I AM FASCINATED BY WHAT DRUMMOND will try with his defense. He risks further damage if he trots out others from the home office and tries to explain away their claim denial schemes. He knows that I'll simply pull out the Section U's and ask all sorts of nasty questions. For all I know, there might be more blatant lies and cover-ups buried somewhere. The only way to expose them will be in a wide-open cross-examination.



He has eighteen people listed as possible witnesses. I can't imagine who he'll call first. When I presented our case, I had the luxury of knowing what would happen next, the next witness, the next document. It's very different now. I have to react, and quickly.



I make a late call to Max Leuberg in Wisconsin, and replay with great gusto the events of the'first two days. He offers some advice and a few opinions about what might happen next. He gets terribly excited and says he might catch a flight.



I walk the floors until three in the morning, talking to myself and trying to imagine what Drummond will try.



I AM PLEASANTLY SURPRISED to see Cooper Jackson sitting in the courtroom when I arrive at eight-thirty. He introduces me to two more lawyers, both from Raleigh, North Carolina. They've flown in to watch my trial. How's it going, they ask? I give them a cautious summary of what's happened. One of the lawyers was here on Monday, watched the Section U drama. The three of them have about twenty cases so far, been advertising in newspapers and such, and the cases are popping up everywhere. They plan to file very soon.



Cooper hands me a newspaper and asks if I've seen it. It's The Watt Street Journal, dated yesterday, and there's a front-page story about Great Benefit. I tell them I haven't read a newspaper in a week, don't even know what day it is. They know the feeling.



I read the story quickly. It centers around the growing number of complaints about Great Benefit and its tendency to deny claims. Many states are now investigating. Lots of lawsuits are being filed. The last paragraph says that a certain little trial down in Memphis is being watched because it could produce the first substantial verdict against the company.



I show the story to Kipler in his office, and he's unconcerned. He'll simply ask the jurors if they've seen it. They were warned against reading newspapers. We both seriously doubt if the Journal is widely read by our panel.



THE DEFENSE first calls Andre" Weeks, a Deputy Commissioner of Insurance for the state of Tennessee. He's a high-level bureaucrat in the Department of Insurance, a witness Drummond's used before. His job is to place the government squarely on the side of the defense.



He's a very attractive man of about forty with a nice suit, easy smile, honest face. Plus, at this moment he pos-



sesses a crucial asset: he doesn't work for Great Benefit. Drummond asks him a lot of mundane questions about the regulatory duties of his office, tries to make it sound as though these boys are riding roughshod over the insurance industry, really cracking the whip. Since Great Benefit is still a company in good standing in this state, then it's obvious they're really behaving themselves. Otherwise, Andre here and his pack of watchdogs would be in hot pursuit.



Drummond needs time. He needs a small mountain of testimony dumped on our jurors so maybe they'll forget some of the horrible things they've 'already heard. He goes slow. He moves slow, talks slow, very much like an aging professor. And he's very good. Given another set of facts, he would be deadly.



He hands Weeks the Black policy, and they spend half an hour explaining to the jury how each policy, every policy, has to be approved by the Department of Insurance. Heavy emphasis is placed on the word "approved."



Since I'm not on my feet, I can spend more time looking around. I study the jurors, a few of whom maintain eye contact. They're with me. I notice strangers in the courtroom, young men in suits I've never seen before. Cooper Jackson and his buddies are on the back row, near the door. There are less than fifteen spectators. Why would anyone want to watch a civil trial?



After an hour and a half of truly excruciating testimony about the intricacies of statewide insurance regulation, the jurors drift away. Drummond doesn't care. He desperately wants to stretch the trial into next week. He finally tenders the witness just before eleven, effectively killing the morning. We recess for fifteen minutes, and it's my turn to take a few shots in the dark.



Weeks says that there are now over six hundred insurance companies operating iri the state, that his office has a



staff of forty-one and that of this number only eighteen actually review policies. He reluctantly estimates that each of the six hundred companies has at least ten different types of policies in effect, so there's a minimum of six thousand policies on file with the department. And he admits that the policies are constantly being modified and amended.



We do some more math, and I'm able to convey my message that it's impossible for any bureaucratic unit to monitor the ocean of fine print created by the insurance industry. I hand him the Black policy. He claims to have read it, but admits he did so only in preparation for this trial. I ask him a question about the Weekly Accident Benefit-Non-Hospital Confinement. The policy suddenly seems heavier, and he turns pages quickly, hoping to find the section and fire off an answer. Doesn't happen. He flips and shuffles, squints and frowns, finally says he's got it. His answer is sort of correct, so I let it pass. Then I ask him about the proper method of changing beneficiaries under the policy, and I almost feel sorry for him. He studies the policy for a very long time as everybody waits. The jurors are amused. Kipler is smirking. Drum-mond is burning but can do nothing about it.



He gives us an answer, the correctness of which is not important. The point is made. I place the two green manuals on my table as if Weeks and I are about to trudge through them again. Everybody watches. Holding the claims manual, I ask him if he periodically reviews the internal claims handling processes of any of the companies he so zealously regulates. He wants to say yes, but evidently he's heard about Section U. So he says no, and I, of course, am just plain shocked. I pop him with a few sarcastic questions, then let him off the hook. Damage is done and duly recorded.



I ask him if he's aware that the Commissioner of Insur-



ance in Florida is investigating Great Benefit. He does not know this. How about South Carolina? No, again, this is news to him. What about North Carolina? Seems he might've heard something about that one, but hasn't seen anything. Kentucky? Georgia? Nope, and for the record, he's really not concerned with what the other states are doing. I thank him for this.



DRUMMOND'S NEXT WITNESS is another nonem-ployee of Great Benefit, but just barely. His name is Pay-ton Reisky, and his daunting title is Executive Director and President of the National Insurance Alliance. He has the look and manner of a very important person. We quickly learn his outfit is a political organization based in Washington, funded by insurance companies to be their voice on Capitol Hill. Just a bunch of lobbyists, no doubt with a gold-plated budget. They do lots of wonderful things, we're told, all in an effort to promote fair insurance practices.



This little introduction goes on for a very long time. It starts at one-thirty in the afternoon, and by two we're convinced the NIA is on the verge of saving humanity. What fabulous people!



Reisky has spent thirty years in the business, and his resume and pedigree are soon shared with us. Drum-mond wants him to be qualified as an expert in the field of insurance claims practice and procedure. I have no objection. I've studied his testimony from one other trial, and I think I can handle him.- It would take an exceptionally gifted expert to make Section U sound good.



With virtually no prompting, he leads us through a complete checklist of how such a claim should be handled. Drummond gravely nods his head, as' if they're really kicking some ass now. Guess what? Great Benefit stuck to the book on this one. Maybe a couple of minor



mistakes, but hey, it's a big company with lots of claims. No major departure from what's reasonable.



The gist of Reisky's opinions is that Great Benefit had every right to deny this claim because of its magnitude. He explains very seriously to the jury how a policy that costs eighteen dollars a week cannot reasonably be expected to cover a transplant that costs two hundred thousand dollars. The purpose of a debit policy is to provide only the basics, not all the bells and whistles.



Drummond broaches the subject of the manuals and their missing sections. Unfortunate, Reisky believes, but not that important. Manuals come and go, in a state of perpetual modification, usually ignored by seasoned claims handlers because they know what they're doing. But, since it's become such an issue, let's talk about it. He eagerly takes the claims manual and explains various sections to the jury. It's all laid out here in black and white. Everything works wonderfully!



They move from the manuals to the numbers. Drummond asks if he's had the chance to review the information regarding policies, claims and denials. Reisky nods seriously, then takes the printout from Drummond.



Great Benefit certainly had a high rate of denials in 1991, but there could be reasons for this. It's not unheard of in the industry. And you can't always trust the numbers. In fact, if you look at the past ten years, Great Benefit's average denial rate is slightly under twelve percent, which is certainly within the industry average. Numbers follow more numbers, and we're quickly confused, which is precisely what Drummond wants.



Reisky steps down from the witness stand, and begins pointing here and there on a multicolored chart. He talks to the jury like a skilled lecturer, and I wonder how often he does this. The numbers are well within the average.



Kipler mercifully gives us a break at three-thirty. I hud-



die in the hallway with Cooper Jackson and his friends. They're all veteran trial lawyers and quick with advice. We agree that Drummond is stalling and hoping for the weekend.



I do not utter a single word during the afternoon session. Reisky testifies until late, finally finishing with a flurry of opinions about how fairly everything was handled. Judging from the faces of the jurors, they're happy the man's finished. I'm thankful for a few extra hours to prepare for his cross-examination.



DECK AND I enjoy a long meal with Cooper Jackson and three other lawyers at an old Italian restaurant called Grisanti's. Big John Grisanti, the colorful proprietor, puts us in a private dining room called the Press Box. He brings us a wonderful wine we didn't order, and tells us precisely what we should eat.



The wine is soothing, and for the first time in many days I almost relax. Maybe I'll sleep well tonight.



The check totals over four hundred dollars, and is quickly grabbed by Cooper Jackson. Thank goodness. The law firm of Rudy Baylor may be on the verge of serious money, but right now it's still broke.