by Joseph Hayes
“I'm getting really nervous, Rick. That lawyer—McShane—he keeps coming to see me, and he's asking a lot of questions.”
“That’s perfectly normal. Your deposition is tomorrow, and he wants to be prepared. He wants to know what you know. Just stick to your story. What kinds of questions is he asking?”
“At first, it seemed like pretty routine stuff. Where records are kept, the history of our billing systems, how to interpret billing codes, that kind of thing. Lately, he's really been pressing about who has access to those records, whether any of those people might be disgruntled, and whether I think any of our people might be sharing information with outsiders. He suspects something, I’m sure of it, and I'm getting really nervous about this deposition.”
“Well, don't be. Just stick to your story, like we discussed. I'll be the one asking the questions, so just relax. Everything is proceeding exactly as planned; in fact, even better than I could have hoped for.”
“Really?” Randy looked doubtful.
“Really,” Rick assured him. “Look, those three invoices you sent to me were a big help—huge. It’ll really make a difference in the litigation. As for you, you're positioned just like we discussed, and after tomorrow afternoon, it will be even better. There's nothing they can do to you, Randy, so just stick to your story and relax.”
Randy Kraft was to be the last witness deposed. His deposition had been scheduled previously, but Rick had asked to postpone it several times, claiming he had scheduling conflicts.
Jake had met with Randy numerous times since the litigation began. Randy seemed nervous and uptight, not the kind of employee who would make a good witness, but his testimony would be critical on several key points. Randy knew the company's billing systems and their history better than anyone. He could explain the root causes of the problems. He would testify about the inevitable challenges that arose when an acquisition-oriented company tried to merge hundreds of different billing systems and the kinds of things that could go wrong despite the best efforts of numerous well-meaning employees. Randy would also be able to testify about meetings that had been convened on multiple occasions to address these problems and plans that were developed to do so. Unfortunately, those plans had not been implemented prior to the filing of the lawsuit, but Jake hoped that Randy would help convince a jury that there was nothing nefarious at work involving USH’s billing practices, and to the contrary, the company had been taking measures to proactively address whatever problems had been inadvertently created.
Since Randy had been subpoenaed by the plaintiffs, Rick would be the one questioning him. Jake was not surprised that Randy appeared nervous and agitated, since he had always appeared that way during Jake's meetings with him.
After some preliminary questions about Randy's personal and employment history, Rick inquired about Randy's role in the efforts to integrate the various billing systems. He had Randy identify the types of problems that came to his attention and homed in on when Randy learned of those problems as well as the measures taken to address them. Randy answered as Jake expected. He indicated that he had been diligent about bringing issues to his superiors’ attention, and that a number of meetings had been convened to formulate a strategy for dealing with those issues. Jake knew that Rick would then try to elicit information indicating that USH had been remiss in not following up on those problems in a timely manner.
“Mr. Kraft, when did you first bring your concerns about USH’s billing problems to your superiors' attention?” Rick asked.
“Nearly four years ago.”
“Were your concerns addressed at that time?”
“I was asked to meet with our Controller and our Internal Audit Department.”
“Then what happened?”
“We met a week or so later —me, Tom Lusky, who was our Controller, and the guy from Internal Audit. I explained to them the kinds of problems I was seeing. They asked me to pull together some examples, which I did, within a few days. I forwarded the information to them, and they said they would follow up. I believe they assigned a couple of internal auditors to do some samplings of billings from different locations.”
“Then what?”
“Then nothing. I didn’t hear anything more from anybody. About a year later, I raised the issue again by sending an e-mail to the guys involved in that first meeting. I copied Andrew Klein, our CFO, on that e-mail. Another meeting was called. It was attended by the same people who attended the first meeting, except that the CFO was there this time. He instructed us to work together to develop an action plan for addressing these issues. He said I should take the lead, since I was most familiar with our systems. He said it was important that we develop a thorough step-by-step plan to rectify any errors that had occurred in the past and to fix the systems problems to prevent future mistakes. He said that the first order of business should be fixing the systems so that we weren't compounding the problems, and that all of the resources of our IT department were at my disposal.”
None of that testimony was news to Jake. He heard that before from Randy and others.
“Were there any other meetings addressing these issues?” Rick asked.
Randy hesitated and glanced at Jake, then quickly looked away. “Shortly after that meeting—the same day, I think—I met privately with the CFO, Mr. Klein.”
Jake sat up straight in his chair. He had not heard this before.
“What happened during that meeting?” Rick asked.
“Mr. Klein told me that fixing our systems to prevent any additional errors should be my focus. He said don't worry about rectifying any past errors. He said he wanted a plan in place to address past issues in case anybody asked about it, but that he had no intention of ever implementing that plan. He said that old bills got stale quickly, and as time passed, people weren't likely to raise a stink. He said he couldn't justify giving away that much cash when no one was even asking for it.”
Jake dropped his pencil. “Let's go off the record, counsel,” he said. “I need a moment with my client.”
“Sure thing,” said Rick.
Jake escorted Randy to a private conference room down the hall. “Randy, what the hell are you talking about? Are you saying that Andrew Klein told you to deliberately avoid rectifying past errors? You never mentioned a word of that before!”
Randy looked panicked. “You never asked me about that,” he replied weakly.
“Bullshit! We've spoken at least a dozen times about the meetings relating to your action plan, and I’ve repeatedly asked you to tell me everything relevant about that effort. How could you leave something like this out? What's going on here, Randy?”
“I guess I just thought it might hurt our case, so I kept it to myself.”
“Goddammit Randy, you can't do that! This could be devastating. What else haven’t you told me?”
“Nothing else,” Randy stammered. “I’ve told you everything.”
“Tell me everything about your meeting with Klein. Right now!”
Randy repeated exactly what he had just stated in the deposition. “That's all there is. I've told you everything.”
The court reporter knocked on the door. “Are you guys ready? We’re approaching the end of the allotted time.”
They returned to the deposition room. Randy was sweating. He loosened his tie. “I'm sorry, gentlemen,” he said in a shaky voice. “I’m not used to this. I think I'm having an anxiety attack. I don't know if I can continue.”
“I'm just about finished, Mr. Kraft. Only a few more questions, okay?” Rick sounded gentle and reassuring.
Randy nodded.
“I haven't seen Mr. Klein's name on any recent company materials. Do you know where he is now?” Rick asked.
“He's deceased. He took medical leave from the company and then died about a year ago. Leukemia, I think.”
“I see. Just one more question. I want to be sure I’ve got this straight. You've testified here today that USH knew about rampant billing problems almost fou
r years ago, that it convened several meetings to discuss those issues, but that it made no actual effort to rectify any errors on bills sent to its patients until after this lawsuit was filed. You’ve also testified that the company's CFO specifically informed you that the plan was to fix the systems issues to avoid future mistakes but to avoid addressing any prior mistakes at all. Is that accurate?”
“Yes, sir.”
“I have no further questions.”
Jake asked Randy to accompany him back to his office. There was a tense silence between them as they walked the six blocks across downtown Chicago. Once there, Jake ushered Randy into a large conference room and instructed him to take a seat. Jake sat directly opposite him, and did his best to maintain his composure.
“Randy, that didn’t go well, and that's an understatement!”
“I know, I know ... I'm so sorry, Mr. McShane. I screwed up ... I’m sorry.”
Randy stared down, elbows on the table, hands behind his head. Jake could see that he was near tears. It would do no good to berate him or make him feel worse. He needed this guy's cooperation. He needed to know everything Randy knew. He also needed to know why he had never mentioned the meeting with Klein before.
“Listen to me, Randy. Listen very carefully. Your testimony will be a key element of this case. It is a matter of the utmost importance that you tell me everything you know about the company's efforts to deal with its billing issues. I mean everything. I will decide whether it's helpful or harmful, and what to do with that information, but I need to know everything you know. Is that clear?”
“Yes.”
“Was I not clear on that before?”
“You were, but like I said, I thought that information might hurt us, and I was afraid I might get into trouble. I was just following orders, but I still thought that if this came out, I'd be in big trouble. Then, this morning, one of the last things you said to me before the deposition was to tell the truth, so when Mr. Black asked me that question, I felt like I had to answer it.”
“Randy—”
“But I should've told you first, I know. I’m sorry, I’m really sorry.” Randy's voice quavered and his hands were shaking.
Jake realized that a vigorous interrogation while Randy was in this state would not be productive. “Okay, Randy, I need you to shake this off. Put it behind you for now, but go home and think very hard about anything that might be relevant to this case that you may have neglected to tell me. We’ll get together tomorrow morning to talk further. Just one more question …” He waited for Randy to look up at him. “Have you had any direct contact with anyone from the plaintiffs’ side—lawyers, investigators or anyone else?”
Randy froze momentarily. “Just today, in that deposition,” he stammered. “Nothing other than that. “Why? Does someone think that I'm talking to the other side?”
“Just asking. It's a question I have to ask everyone. I'd be remiss if I didn't.”
CHAPTER 39
Rick Black looked out at Lake Michigan from his posh office on the sixty-third floor. After nearly two years, the USH trial was about to begin, and he was finding it difficult to contain his excitement. This was the case that would catapult him into the upper echelon of trial lawyers. It would solidify his standing with Sullivan & Leach and make him one of the most sought after lawyers in the nation. He would attain celebrity status. He would be feared and respected.
It was his case. He had seen the opportunity and capitalized on it. Between his own talent and initiative and the firm's vast resources, he had developed this into a case with mind-boggling potential. It was not a question of whether he would win. That was a given. USH could not deny billing errors, and it would be ordered to make restitution. That alone would likely cost the company twenty-five or thirty million dollars. The only uncertainty was whether Rick could convince a jury that USH's conduct was sufficiently egregious that punitive damages should be awarded. That could make the case worth $100 million, maybe more. But he had to show the jury that the company engaged in some intentional wrongdoing. That's where Randy Kraft's testimony was essential. And that's why Rick was worried.
Randy was clearly feeling the pressure. That was evident during their meeting at the Art Institute and it was even more evident at Randy's deposition. Rick had done his best to calm the nervous little man, but he was one very fragile witness. And after Randy's surprise testimony, Jake McShane would be bearing down on him hard. According to Randy, he already was.
There was too much at stake to leave things to chance. This case could be a once-in-a-lifetime opportunity, and Rick was not about to put blind faith into a skittish witness like Randy Kraft. He had to take control. He had to eliminate or minimize the chances of anything going wrong with Randy. That meant finding a way to alleviate the pressure on him. That was why Fowler had just arrived at his office.
“We're gearing up for trial in the USH case, Fowler. I've got one major problem, and I need your help with it. It’s extremely delicate.”
Fowler's face was expressionless. “That's my specialty. What's the problem?”
“The problem is USH's lawyer, Mr. McShane. He's very close to mucking up my case. I need him distracted, or better yet, I need him off the case. If the defense has to assign another lawyer to this case, it’ll be all they can do to get up to speed on the big picture. They won't have time to sniff out the little details that McShane is getting close to. So I want McShane out of the picture. Capiche?”
“No problem. Anything else?”
“I don't have to tell you how sensitive this is, Fowler.”
“No, you don't.”
“And I don't need to know your methods. I just need results and I need them fast.”
“Consider it done.”
CHAPTER 40
Trial was less than a week away. Jake was in heavy-duty preparation mode, and had been for several weeks. That meant he was at the office by 7:00 a.m. most mornings and seldom got home before midnight. He barely saw his family. Amanda was understanding—she knew that was the life of a trial lawyer. Anna was less understanding. Her seven-year-old mind couldn’t fathom why her Daddy missed their bedtime reading ritual night after night, and rarely called her on the phone after school like he used to. Jake felt guilty and neglectful, but powerless to do anything about it. He promised himself he would make it up to them once the trial was over.
On Tuesday evening, Jake returned to his office at eight o'clock after an all-day preparation session with the trial team. He quickly glanced through a stack of phone messages. One in particular caught his eye. “Darnell Tucker called at 4:15 – urgent,” the message read. Jake thought about Shooter. It had been a long time. The guy must be in trouble with the law again. Like everyone else, Shooter would have to wait. He couldn't focus on anything other than the trial right now.
Shortly after 10:00 p.m., the phone rang. Thinking it must be Amanda, Jake answered it on the first ring.
“Hello?”
“Is that you, Stanford?”
Jake recognized the caller immediately. Only one person had ever referred to him by that nickname. He was instantly annoyed. He didn’t have time to deal with this guy.
“Hi Shooter. I’m in the middle of something right now. Can I get back to you?”
“No, man. This can't wait. We need to talk.”
“Are you in trouble again?”
“No—you are.” There was an urgency in Shooter's voice.
“What are you talking about?”
“Some dude came around here today, asking about you. I know trouble when I see it, and this guy is trouble.”
“Who was he?”
“I don't know, man, but he was spooky. He was a big dude, with white hair, like an old man, but he wasn't very old, and his face was really red. He had an accent—like he was from the South somewhere. There ain’t too many guys that can scare me, but this guy gave me the creeps.”
“Doesn’t sound familiar to me. What did he want?”
“He said
you were being considered for some honor from the State Bar and that he was doing a background check. Said he learned that I was a former client of yours, and he had to go through the drill, you know, talk to your clients to see if they were satisfied with your representation. He asked me about my case, what I knew about you, if we kept in touch, that kind of stuff.”
“What did you tell him?”
“I didn’t tell him shit. I told him you helped me out of a jam once, a long time ago, and that I had nothing else to say. I knew he didn’t work for no State Bar. Anyway, I thought you should know. Like I said, this guy ain’t right. He was scary.”
Jake’s curiosity turned into concern. “Thanks for calling, Shooter. I don’t know what to make of this, but I appreciate the heads-up.”
“You watch your back, Stanford.”
“I will.” Jake was about to hang up, but caught himself. “Hey, Shooter?”
“Yeah?”
“How are things with you?”
There was a pause. “Good, man, real good. Got a great job. I’ve met some good people. Things worked out well for me. I’ll tell you about it sometime.”
“I’d like that. Thanks again for calling.”
“No problem. Like I said, you be careful.” He hung up.
Jake thought for a moment, then picked up the phone and called home.
“Hello?” His wife’s voice sounded sleepy.
“Hi, sweetheart. I woke you, didn’t I?”
“I must’ve drifted off here on the couch. What time is it?”
“It’s about 10:30. I’m on my way home. I love you.”