by A. Turk
Davis, who had been daydreaming about the old man, swerved.
Sammie yelled, “Where are you? I need you to focus. You may have to take the stand and testify. A motion for sanctions is no joking matter. As you have told me at least a hundred times, ‘Don’t underestimate your adversary.’”
Annoyed, Davis thought, There is nothing worse than having yourself quoted to yourself.
“I’m ready. This motion for Rule 11 is bullshit. The motion doesn’t even cite any case law to support the disciplinary action sought against me. My only concern is that I don’t know the judge, and more important, he doesn’t know me. That’s the real problem.”
Sammie acknowledged that Davis was right. Davis had brought a legal malpractice lawsuit against a prominent Nashville attorney who was a partner in a prestigious law firm. Davis alleged that the attorney had not only been negligent but also lied under oath and committed fraud on the client.
Davis even took the attorney’s deposition, prior to filing suit, to afford the attorney an opportunity to explain any possible misunderstanding. Instead, the lawyer outright lied in his deposition and went so far as to misrepresent that he never represented Davis’s client. Davis, during the deposition, confronted the lawyer-witness with five transactions in which the attorney had either represented Davis’s client or a company owned by his client. He didn’t file suit until he was convinced that the attorney was a liar.
The lawsuit alleged that the attorney, Ronald Defoe, had represented all four businessmen in the same transaction. The complaint alleged that the joint representation was an ethical violation and was negligent, that the attorney acted for the benefit of one client to the detriment of another, and that the attorney participated in a scheme to defraud one of his clients.
They were serious charges against a member of the Bar, but Davis was convinced that the allegations were true. The closing statement revealed that the legal fees paid to the attorney’s law firm, Goodman, Defoe, and Smith, were charged to the defrauded client only.
The answer filed by Defoe and his firm alleged that Davis filed a false pleading and that under Rule 11, Davis should be disciplined. Davis, by that time, had practiced law for more than thirty years. It was only the second time he was accused of unethical conduct and a violation of Rule 11. Twice in thirty-one years was not a bad record. The first time he was charged, the court dismissed the motion as frivolous. Now Davis was once again wrongly accused of filing a false pleading. The defendants were trying to turn the tables on Davis and put him on the defensive.
Unfortunately, Goodman, Defoe, and Smith was the third largest law firm in Nashville, with more than ninety lawyers, and its members regularly appeared before all of the judges in Nashville and the surrounding counties. No local court could hear the case. So Davis, by motion, asked the Tennessee Supreme Court to appoint an unrelated and unbiased judge to hear the case. This appropriate and reasonable request was granted. However, the defendant law firm was very powerful in the state and had friends everywhere. Davis was well known for his ability but never bothered to play the political games that were necessary in Tennessee.
The Supreme Court appointed Judge J. B. Locke of Davenport County as special judge. Sammie made some phone calls and determined that Judge Locke had been on the bench for three years, he was a Republican, and he represented small rural banks, mostly doing transactional work and simple litigation. He was said to be bright and diligently read what was filed with the court.
Both Sammie and Davis thought Locke was a good selection since the documents filed with the court clearly showed that Davis, by taking the deposition of Defoe, did a good faith investigation before filing the complaint. If the judge actually read the three-hundred-page deposition and looked at the twelve exhibits, he would exonerate Davis and eventually rule that Defoe and his law firm breached the standard of care by representing multiple parties—an obvious conflict of interest.
Davis pulled the Bentley convertible into a parking space in the courthouse square. Sammie checked in with the court clerk to confirm that no additional pleadings were filed in the last two days. She also confirmed that her case was first on the docket. This was a courtesy because all of the attorneys were from out of town.
The courtroom was on the third floor of the two-hundred-year-old courthouse. When they entered the courtroom, Davis was impressed with the oak furnishings and its historical presence. Behind the bench were both the Stars and Stripes and the Tennessee state flag.
Two motions were scheduled to be heard: the motion for sanctions against Davis and a motion for summary judgment to dismiss the case against Defoe and his firm. Sammie would handle both motions.
The bailiff came in and announced in open court: “Oyez, oyez, the Circuit Court of Davenport County is open to conduct business. Stand ready to plead your case. The Honorable J. B. Locke presiding. Please rise and you will be heard.”
Everyone in the courtroom rose, and Judge Locke entered the room from behind the bench. He was younger than Davis expected, probably in his early forties. The bailiff called the first case, and Sammie and Davis moved to counsel’s table while John Peters, another Nashville attorney who was representing the defendants, moved to the other.
Defoe took his seat next to Peters. Several attorneys from the defendant law firm were in the audience. After the attorneys got settled in at their respective tables, Judge Locke took control of his courtroom.
“Ms. Davis and gentlemen, before we begin this hearing, I have an important disclosure I must make. I don’t think it will require my recusal, but I feel compelled to make this disclosure. Mr. Davis may not recall, but he and I have worked closely together before.”
Davis was perplexed. I have no recollection of working either as co-counsel with or as adversary counsel against Judge Locke when he was a member of the Bar.
Sammie whispered to Davis, “What’s he talking about? I hope you treated him well. We don’t need him taking revenge on you today.”
Davis was dumbfounded. He didn’t remember the judge, even as a lawyer. But Davis knew if they had dealings, he tried to do the right thing.
The judge could read confusion on their faces, so he said, “I’m hurt you do not remember me. I certainly remember both of you.”
Now both Sammie and Davis were nervous. Neither of them could place prior dealings with the judge. Davis looked over at Peters, who was relishing the fact that both Davises were uncomfortable.
The judge waited for a response, and when neither Davis spoke, he continued, “Almost twenty years ago, as a young lawyer, I sat on a jury in which Mr. Davis was one of the attorneys.”
The judge smiled, and Davis and Sammie relaxed.
Davis rose and addressed the court: “Your Honor, in my more than thirty years practicing law, I have only allowed one attorney to sit on my juries, and that was the Plainview malpractice cases. Your first name is Jason, isn’t it?”
The judge smiled again. “I had taken the Bar exam but not gotten the results. If I remember correctly, that trial lasted about two weeks. I learned more watching you in that trial than I did in my three years of law school. Sitting on that jury and being part of those deliberations were some of the more educational experiences of my legal career. Even today, as a judge, I don’t get the same insight of how a jury operates as I did as foreman of that jury.”
Davis also remembered the Plainview cases but not as fondly as Judge Locke did. He would never forget the beating, the threats, the fights with Liza, and his near bankruptcy. His shoulder, depending on the weather, still gave him fits sometimes.
He readily admitted that he met some snakes and some wonderful people during that period of his life. The Medical Licensing Board’s punishment of Dr. Herman had been a fine and a one-year suspension, with his license reinstated after a US residency. Once qualified to practice, he managed to find a position in a tiny town in northwest Tennessee with an older doctor nearing retirement. The older doctor served as his proctor according to the terms
of his suspension. If he did well under the doctor’s watchful eye, it would be possible for Herman to eventually buy the doctor’s practice.
But Herman couldn’t change his ways and stay out of trouble. In 2001, his license was again suspended for a year for gross misconduct. The Medical Licensing Board, after Herman met certain conditions, returned his license. He was currently serving a three-year suspension for overprescribing narcotics to drug-seeking patients. Davis wondered whether the Medical Licensing Board at Herman’s next hearing would wake up and refuse to let him loose on the unsuspecting public. He doubted it.
Davis knew that Herman was no longer a threat. He felt the same way about the other defendants, but T-rex was still out there. Davis figured he was a hired gun and probably didn’t have a vendetta, but he never stopped looking over his shoulder.
As for English, he had faded from sight, most likely moving from state to state, practicing where he could find a gullible hospital administration, and staying one step ahead of each state’s board.
Then there was Dr. Patel, the woman who blew the whistle. Given his level of ineptitude, it was no surprise that Brad Littleton lost her case and the cases of the nurses formerly of Plainview Hospital. Laura, Maggie, and their daughters moved to Nashville shortly afterward. Laura often mailed photos of the girls to Bella and occasionally called her to say hello.
Back in the courtroom with Judge Locke, Peters realized that the judge was not going to award sanctions against Davis, whom he held in high esteem. The motion for sanctions was strategically dismissed by Peters, rather than let the judge deny it. Sammie and Peters argued the motion for summary judgment.
In his memorandum opinion issued two days after the hearing, the judge in a footnote compared the attorney’s deposition testimony to that of the affidavit testimony of Davis’s client and concluded that the testimonies were so diametrically opposite that someone had to be lying.
The next day, Davis settled the lawsuit for an even $1 million. The money was nice but secondary. Davis learned from Morty that success was measured not by dollars but by a sense of accomplishment. It was more important to stay true to Morty’s motto, “Always try to do the right thing.”
Davis was proud that he always tried.
ABOUT THE AUTHOR
A. Turk was born in 1954, in Brooklyn, New York, and he grew up on Long Island. He earned a BA from George Washington University, an MBA from the Vanderbilt Owen Graduate School of Business, and a JD from Vanderbilt School of Law. He was licensed to practice law in Tennessee in 1980. In 1983 he also was licensed, but never practiced, in New York because of a promise he made to his mother.
A. Turk for more than thirty years was a prominent Nashville attorney and a veteran of fighting courtroom battles. He garnered national media attention in 1994 when he won a unanimous US Supreme Court decision, which held that 2 Live Crew’s parody of Roy Orbison’s song “Pretty Woman” did not require a copyright license. With the support of NBC, HBO, Time Warner, Mad Magazine, and others, A. Turk won this landmark case preserving the right of commercial parody under the Fair Use Doctrine.
A. Turk recently retired to begin his second career as an author of courtroom dramas based upon his personal experiences. First Do No Harm is A. Turk’s debut novel, where he introduces his fictitious alter ego, Benjamin Davis. The Benjamin Davis Book Series will explore and address the same legal issues and moral dilemmas that A. Turk faced during his legal career.
A. Turk has been married to his wife, Lisa, for thirty-three years, and they have two adult children, Jessica and Ben, as well as three pugs. A. Turk currently splits his time between Nashville, Aspen, and Highland Beach.
ACKNOWLEDGEMENTS
As a first-time author, I found the writing of First Do No Harm a rewarding and exciting experience, which I planned for almost twenty years. I approached the writing of the first draft of this manuscript with the same dedication and tenacity as I did preparing a case for trial. The process began the day after my retirement when I sat down to review the sixteen banker boxes that inspired First Do No Harm. I completed the first draft in three months, and it was very rough, to say the least. I knew that I needed help and the perspective of others. Fortunately, I found friends and strangers who came to my aid.
Over the next year, I held three separate focus groups of individuals who read the manuscript and then met with me at my home and discussed the strengths and weaknesses of my work, providing valuable feedback and insight. With each rewrite the manuscript improved. I would like to thank these focus group participants: Denise Alper, Amy Anderson, Robert Anderson, Gayle Brinkley, Brandon Bubis, Martin Bubis, Anita Dowdle, Doug Dowdle, Sharon Duncan, Amy Flynn, Charles Patrick Flynn, BJ Givens, Karen Goldsmith, Steve Goldsmith, Elliot Greenberg, David Kipp, Sharon Kipp, Jay Lefkovitz, Steve Lefkovitz, DeeAnn Melton, Paula Milam, Tom Milam, Scott Newman, Amy O’Hoyt, Wes Perry, Kristin Rosario, David Tiner, and Janina Tiner.
As a practicing attorney I appreciated the need to rely on experts to help me try my cases and convey my clients’ stories. It was only reasonable that I’d do the same as an author. I would like to thank Mary Buckner, Barry Goldsmith, and especially Dimples Kellogg for their editorial review and assistance.
The writing of First Do No Harm was not a solo project. My daughter, Jessica Turk, was my collaborator throughout the process. I love her and thank her for her contribution.
First Do No Harm is only the beginning of the Benjamin Davis Series. I intend to share other fictionalized accounts of my thirty years of experiences as a practicing attorney.
A. Turk