Forty-nine
One great advantage in being a rookie is that I’m expected to be scared and jittery. The jury knows I’m just a kid with no experience. So expectations are low. I’ve developed neither the skill nor the talent to deliver great summations.
It would be a mistake to attempt to be something I’m not. Maybe in my later years when my hair is grayer and my voice is oily and I have hundreds of courtroom brawls under my belt, maybe then I can stand before a jury and give a splendid performance. But not today. Today I’m just Rudy Baylor, a nervous kid asking his friends in the jury box to help.
I stand before them, quite tense and frightened, and try to relax. I know what I’ll say because I’ve said it a hundred times. But it’s important not to sound rehearsed. I begin by explaining that this is a very important day for my clients because it’s their only chance to receive justice from Great Benefit. There’s no tomorrow, no second chance in court, no other jury waiting to help them. I ask them to consider Dot and what she’s been through. I talk a little about Donny Ray without being overly dramatic. I ask the jurors to imagine what it would be like to be slowly and painfully dying when you know you should be getting the treatment to which you’re entitled. My words are slow and measured, very sincere, and they find their mark. I’m talking in a relaxed tone, and looking directly into the faces of twelve people who are ready to roll.
I cover the basics of the policy without much detail, and briefly discuss bone marrow transplants. I point out that the defense offered no proof contrary to Dr. Kord’s testimony. This medical procedure is far from experimental, and quite probably would’ve saved Donny Ray’s life.
My voice picks up a bit as I move to the fun stuff. I cover the hidden documents and the lies that were told by Great Benefit. This played out so dramatically in trial that it would be a mistake to belabor it. The beauty of a four-day trial is that the important testimony is still fresh. I use the testimony from Jackie Lemancyzk and the statistical data from Great Benefit, and put some figures on a chalkboard: the number of policies in 1991, the number of claims and, most important, the number of denials. I keep it quick and neat so a fifth-grader could grasp it and not forget it. The message is plain and irrefutable. The unknown powers in control of Great Benefit decided to implement a scheme to deny legitimate claims for a twelvemonth period. In Jackie’s words, it was an experiment to see how much cash could be generated in one year. It was a cold-blooded decision made out of nothing but greed, with absolutely no thought given to people like Donny Ray Black.
Speaking of cash, I take the financial statements and explain to the jury that I’ve been studying them for four months and still don’t understand them. The industry has its own funny accounting practices. But, using the company’s own figures, there’s plenty of cash around. On the chalkboard, I add the available cash, reserves and undistributed surpluses, and tally up the figure of four hundred and seventy-five million. The admitted net worth is four hundred and fifty million.
How do you punish a company this wealthy? I ask this question, and I see gleaming eyes staring back at me. They can’t wait!
I use an example that’s been around for many years. It’s a favorite of trial lawyers, and I’ve read a dozen versions of it. It works because it’s so simple. I tell the jury that I’m just a struggling young lawyer, scratching to pay my bills, not too far removed from law school. What if I work hard and am very frugal, save my money, and two years from now I have ten thousand dollars in the bank? I worked very hard for this money and I want to protect it. And what if I do something wrong, say, lose my temper and pop somebody in the nose, breaking it? I, of course, will be required to pay the actual damages incurred by my victim, but I will also need to be punished so I won’t do it again. I have only ten thousand dollars. How much will it take to get my attention? One percent will be a hundred dollars, and that may or may not hurt me. I wouldn’t want to fork over a hundred bucks, but it wouldn’t bother me too much. What about five percent? Would a fine of five hundred dollars be enough to punish me for breaking a man’s nose? Would I suffer enough when I wrote the check? Maybe, maybe not. What about ten percent? I’ll bet that if I was forced to pay a thousand dollars, then two things would happen. Number one, I’d truly be sorry. Number two, I’d change my ways.
How do you punish Great Benefit? The same way you’d punish me or the guy next door. You look at the bank statement, decide how much money is available, and you levy a fine that will hurt, but not break. Same for a rich corporation. They’re no better than the rest of us.
I tell the jury the decision is best left to them. We’ve sued for ten million, but they’re not bound by that number. They can bring back whatever they want, and it’s not my place to suggest an amount.
I close with a smile of thanks, then I tell them that if they don’t stop Great Benefit, they could be next. A few nod and a few smile. Some look at the figures on the board.
I walk to my table. Deck is in the corner grinning from ear to ear. On the back row, Cooper Jackson gives me a thumbs-up. I sit next to Dot, and anxiously wait to see if the great Leo F. Drummond can snatch victory from defeat.
He begins with a drippy apology for his performance during jury selection, says he fears he got off on the wrong foot, and now wants to be trusted. The apologies continue as he talks about his client, one of the oldest and most respected insurance companies in America. But it made mistakes with this claim. Serious mistakes. Those dreadful denial letters were horribly insensitive and downright abusive. His client was dead wrong. But his client has over six thousand employees and it’s hard to monitor the movements of all these people, hard to check all the correspondence. No excuses, though, no denials. Mistakes were made.
He pursues this theme for a few minutes, and does a fine job of painting his client’s actions as merely accidental, certainly not deliberate. He tiptoes around the claim file, the manuals, the hidden documents, the exposed lies. The facts are a minefield for Drummond, and he wants to go in other directions.
He frankly admits that the claim should’ve been paid, all two hundred thousand dollars of it. This is a grave admission, and the jurors absorb it. He’s trying to soften them up, and it’s effective. Now, for the damage control. He’s nothing but bewildered at my suggestion that the jury should consider awarding Dot Black a percentage of Great Benefit’s net worth. It’s shocking! What good would that do? He’s admitted his client was wrong. Those responsible for this injustice have been terminated. Great Benefit has cleaned up its act.
So what will a large verdict accomplish? Nothing, absolutely nothing.
Drummond carefully eases into an argument against unjust enrichment. He has to be careful not to offend Dot, because he will also offend the jury. He states some facts about the Blacks; where they live, for how long, the house, the neighborhood, etcetera. In doing so, he portrays them as a very average, middle-class family living simple but happy lives. He’s quite generous. Norman Rockwell couldn’t paint a better picture. I can almost see the shady streets and the friendly paperboy. His setup is perfect, and the jurors are listening. He’s describing either the way they live or the way they want to live.
Why would you, the jurors, want to take money from Great Benefit and give it to the Blacks? It would upset this pleasant picture. It would bring chaos to their lives. It would make them vastly different from their neighbors and friends. In short, it would wreck them. And is anyone entitled to the kind of money that I, Rudy Baylor, am suggesting? Of course not. It’s unjust and unfair to take money from a corporation simply because the money’s available.