by Andy Siegel
“According to the police report, Mr. Wyler, your new client ran in front of the van, so there was nothing my driver could do to avoid hitting him.”
“Yes, I saw that, but the officer was documenting your client’s version of the accident. That sentence begins: Driver of vehicle one states … there is no version of how the accident occurred from my client in that report.”
“That may be true,” Cohen acknowledges, “but look at the officer’s detailed diagram. It’s proof-positive your client was attempting to cross a major Brooklyn thoroughfare midblock between parked cars nowhere near the safe haven of a pedestrian crosswalk.”
Who says thoroughfare? I think this guy’s an ass.
“Cohen,” Ethel blurts out, “I told you that dang diagram is wrong. That policeman didn’t come to the scene until later when everything was all mixed up ’cause of all the commotion.”
I quickly hit the mute button so Cohen can’t hear me. “Ethel, please. We haven’t had a chance to discuss Robert’s case in detail yet, so I urge you to please try to keep quiet. This is just a preliminary call to see if we can get him to give us the policy.” She nods again. I’m not convinced.
I take Cohen off of mute. “Mr. Cohen, even if we assumed for purposes of this conversation that Robert was fifty percent at fault for causing the accident, his injury still merits the hundred even with a comparative negligence reduction.”
“Forty-seven five. That’s it.”
“Okay, Rich. I get ya. Listen, I should’ve asked this first, but is there any excess policy of insurance covering the van as it was traveling on this thoroughfare? I noted it was a commercial vehicle.”
I hear Ethel mumble under her breath, “Excess … didn’t know about that one.”
“There sure is.”
“Why didn’t you say so before?” Ethel screams out. “You ain’t no bona fide lawyer, just like I said.”
“Ethel, please,” I say.
“The excess policy was not disclosed because there was never a demand for its disclosure.”
“Is that how you practice law, Mr. Cohen? It’s pretty clear the State Insurance Department rules require you to disclose all policies as a matter of course.”
“Then we also have different views on the law.”
Now I’m certain of it. This guy is an ass.
“So now I’m asking, Mr. Cohen. What is the excess policy coverage over and above the one hundred primary?”
“It’s a million, but it makes no difference because Robert darted out in front of the van.”
“Did not!” Ethel shouts.
“Please, Ethel. Sit quietly.”
“Sorry,” she says to me. She then mutters loudly one more time for good measure, “Ain’t no bona fide lawyer.”
I shake my head at her. She shrugs, seemingly satisfied with having expressed her opinion.
“I think we’re about done for now, Mr. Cohen. But I imagine you’ll be hearing from me soon. Good-bye, then.”
I hang up.
“What’s this comparative negligence I heard you mention?”
“Okay, I’ll explain. In the state of New York, when evaluating who was at fault—what lawyers call the issue of liability—you compare the conduct of the driver to the conduct of the pedestrian. So, if they can prove that Robert darted out in front of the van and/or crossed the street at an unsafe location outside a crosswalk and/or from between parked cars, which can obstruct an approaching driver’s vision, he could be found fifty percent at fault by a jury. Therefore, if that same jury gave him ten dollars, for ease of example, Robert would only collect five, it being reduced by half to account for his comparative conduct.”
“I get ya. But Robert didn’t do nothing wrong. I taught that boy correctly how to walk on the sidewalks and cross the street, for that matter. This accident was because that van driver wasn’t looking where he was going. Plain and simple. That’s why all vehicle accidents happen.” Pronounced ve-hic-ul.
“Unfortunately, it doesn’t say that in the police report.”
“You saying you don’t believe us, Wyler?”
“I’ve never believed a client more.” She nods, appeased. “And you never know what the driver is going to say until he says it at the deposition.” If I can get one at this point, I say to myself. “At accident scenes, drivers tend to lie to the police about what happened for a variety of obvious reasons.”
She nods at this, too. “I got another question.”
“Shoot.”
“What’s this notice of appearance he asked you for?”
“Proper procedure requires an incoming lawyer to file a document with the clerk of the court that lets them know who the new lawyer is on the case. That way they know where to send court notifications.”
“Was I supposed to do that?” Ethel asks, concerned.
“Yes, you were.”
“Dang it. I missed that one and the excess insurance. Better off leavin’ lawyering to the lawyers. Too much stuff to learn at my age.”
All of the sudden, I hear a faint clicking coming from Robert’s direction. I look up, and his hand shoots down. He turns away as if minding his own business.
“Robert,” I ask him, “did you just take a picture of me with that pen in your hand? Is that a spy-pen camera?”
He starts chortling.
“Yes, he did,” answers Ethel. “He’s technically a debt collector, but his hobby is spying and investigating. He’s also a process server who can start lawsuits, and the collection agency gave him full authority to use his investigating skills to collect debts. Right, boy?”
“Yes, Granny,” he responds proudly.
We finish our business and agree to discuss things in detail after I’ve had a chance to read the entire file. That way, I can speak more intelligently. Ethel had gotten ruffled when Rich Cohen claimed Robert caused the accident, so it’s clear she’s a little excitable. I can tell, though, that our mutual dedication to justice, and to Robert, will enable us to work well together.
Ethel also volunteered that Robert had not sustained any brain injury in the accident. Rather, he’d been born “slow” because his mother was a crackhead during her pregnancy. Ethel actually stated that in front of Robert—in a very matter-of-fact way: “Robert’s a little bit retarded because he was a crack baby.” He then echoed the words crack baby under his breath as she said it, evidencing his familiarity with the description.
However, the truth of the matter is that Ethel is dead wrong. But it’s not my place to say.
Back in the day, during the crack epidemic, when a pregnant woman exposed her fetus, it was thought that the baby would be born emotionally, mentally, and physically disabled. Upon further study, the scientific community has determined that no specific disorders or conditions have been found to result for people whose mothers used cocaine while pregnant.
What Robert does have, though, as confirmed by his medical records, is fetal alcohol syndrome, or FAS. It’s scientific fact that alcohol crosses the placental barrier and creates the distinctive facial features that Robert has, also damaging the brain structures and resulting in both psychological and behavioral problems.
I walk the Killroys out of the building and put Ethel in a cab. I had to fight to pay for the ride, assuring her it wasn’t some ploy to influence Robert away from collecting the alleged Wang debt. Robert, after fastening his helmet, rode off on his bicycle, weaving expertly in and out of city traffic. Pretty impressive given his injury.
I’m now more than determined to help this woman’s grandson attain financial independence. Feisty, but caring, Ethel Killroy isn’t going to be around forever, given her age and diagnosis. Still, I’m not paying that dry cleaning hack, Mr. Wang, any money, no matter how nice a guy he may be. I tried his service that one time because his window sign reads: EXPERT STAIN REMOVERS.
Then he
told me the large patch of discoloration that replaced the tiny rib sauce stain wasn’t his fault because he sent it out for cleaning.
Chapter Eight
For the past week Robert Killroy has called regularly, three times daily like clockwork. Each time, I tell him I’m not paying Mr. Wang, but it doesn’t seem to be sinking in. I appreciate that this may not be his fault, and I will say he’s getting better at his job. Now, he lets me know he’s calling to collect a debt and is recording the conversation, and that what I say can be used against me in court. He told me the collection agency was going to provide the machine but agreed to give him the money instead because he wanted to order the one through Spy magazine that syncs with his computer.
So far, I’m the only debt he hasn’t collected. He told me the others caved, attributing it to his persistence—although he didn’t use the words caved or persistence. I think Robert may have found a way to make a living, and I’m happy for him.
I look at my watch—I’ve got time. So while I’m on the topic, I might as well have it out with Rich Cohen now. I dial him up on his direct line.
“Rich Cohen speaking.”
“Hi, Rich. Tug Wyler on the Robert Killroy matter.”
“Yes, Mr. Wyler. It’s been a whole week. What can I do for you?”
“Rich, I’ll be direct. Prior counsel on this file screwed things up. And although Ethel did her best, she’s no lawyer. So the purpose of this call is to correct these problems like gentlemen. Are you open to that?”
“I’m listening.”
“First, according to e-Law, the case was marked off the courts calendar for nonappearance at a compliance conference just three days shy of a year ago. Were you aware of that?”
“I sure was.”
“Then you know I have three days to make a motion to restore it or else it will be deemed abandoned and the claim forever lost.”
“I sure do.”
“I thought so.” As mad as I am at his tactics, the guy is only doing his job. “Okay then, so will you stipulate the case back onto the court’s active calendar? We both know a judge will grant my motion should you make me go through the formal exercise. Ethel could not have known she missed a conference because she never filed a notice of appearance. I’d suggest, since she’s a nonlawyer, that would constitute a reasonable excuse.”
“So stipulated, Mr. Wyler. Case restored. Next.”
“I need to take the oral deposition of your van operator.”
“Prior counsel waived that, Mr. Wyler.”
“This I know. But I need his deposition. Do I have to make a motion for it?”
“Isn’t his statement in the police report enough for you? It’s even in quotes.”
“No. Am I making a motion to compel his testimony, or are you going to produce him voluntarily?”
“I’ll ask the carrier what they want to do. Next.”
“That’s it.
“Okay, then. Good-bye.”
That went pretty well. We didn’t have it out after all. Maybe he’s just half an ass. Time will tell.
IT’S A VISUAL THAT’LL CATCH THEIR ATTENTION
Lily buzzes. “Cookie and Major are here to see you. Shall I show them in?”
“Yes, thank you.”
“Yes, thank you,” I hear her echo in a mocking tone as the phone makes its way down. Nice. Moments later I can hear them approaching my office.
“Right in here,” Lily says. They take their places in the guest chairs. Cookie sits at the edge of hers, with her back and neck held perpendicular to the floor by the halo. She looks unnatural, uncomfortable—and sexy as hell. I try not to stare at the pin insertion sites but, as before, the gruesome visual makes it hard to look away.
“I asked you both here to discuss your case and some of the things I’ve found and—well, not found—while going through your file and medical records.” I sense that Cookie wants to nod, but her halo prevents this. She blinks instead, and the wince that crosses her face worries me.
“Are you all right?” I ask. “Is there something I can get for you?”
“Well, my halo’s uncomfortable, but I’m okay, I guess. I do have a question, though.” Major watches her but says nothing.
“Go ahead.”
“They didn’t take the money off the table, did they? I mean two hundred fifty thousand dollars is a lot. There’re so many people who’ve helped me out over the last three years, and I know that money will cover it.”
“I understand. No, Cookie, they haven’t taken it off the table.”
“Because it’s been seven days and …” She stops midsentence. Major now gets up, kneels down, and takes a hard evaluative look up at her. You don’t need to be a doctor to know that her grimace means bad news. It’s becoming more pronounced by the second. Major stands and turns to me.
“It’s time for tap.”
“Time for what?”
“Time for tap,” he repeats.
I just look at them, baffled.
They both go into motion, propelled by an obvious sense of urgency. First, Cookie pulls the chair she was in away from my desk. She purposefully repositions herself backward on it, then gingerly steps off saying, “This will do.” Me, I’m trying to figure out what’s going on.
“I’m sorry about this,” Major says apologetically, “but she needs an emergency spinal tap before things get bad.”
It’s perfectly clear to me that this probably isn’t the best time to bring it up. However, it’s happening right here in front of me, and I can’t resist. I mean, it’s the only thing in her file I can’t figure out.
“Um …” I say, as he rolls up his sleeves. “So these spinal taps …”
“Listen to me,” Major instructs, annoyed. “Dr. McElroy injured, that is to say perforated, certain structures during the surgery he performed on Cookie. The result is brain fluid building up inside her skull that, at intervals, must be evacuated, which is exactly what I’m doing here.”
His tone, coupled with the evolving visual, leaves me no option. Mental bullet points:
Even though I saw that claim in the legal documents—interval taps to prevent fatal brain compression from cerebral spinal fluid backup into the skull—I didn’t find it as a working diagnosis in her voluminous medical records;
There’s not one entry recorded by her medical providers that documents Cookie’s ever even having received a spinal tap;
Tapping is mentioned in Cookie’s medical history. But that history’s only in forms she herself has filled in or penned by her treating doctors based on what she has told them.
In fact, there’s a recent letter to Charles from defense counsel requesting he withdraw the claim that Major’s just made since it’s unsupported by medical documentation. Their next move will be a formal motion seeking the court to strike it from the case, which, based on the medical records I have here, will be impossible for me to oppose.
But I can’t challenge Major on any of this right now. He’s too busy laying out what looks like a travel-sized spinal-tap kit on the edge of my desk.
“Moreover,” he says, as if reading my mind, “I’m the one who made the diagnosis, and I’m the one doing the tapping. I have records, so don’t worry. For each and every tap.”
I’d like to share my gut response to this—which is incredulity—but there’s something else going on that captures my undivided attention.
Cookie.
She’s been undoing the buttons and now off comes her shirt. She’s in my office, in front of my desk, standing topless except for the halo vest. Her breasts are just as perfect as they were a week ago. I’m trying, though not very hard, not to stare.
At least I admit it.
She catches me peeking, and a little smile briefly intersects with her painful grimace. I smile back, then quickly put on my serious face. Now, she addre
sses the chair again, placing first one knee, then the other on the seat cushion. Grabbing the back with both hands, she secures her reverse posture and arches her back. Once she assumes this position—one she’s obviously taken many times before—her jeans ride down to expose a red G-string. I practically have to pinch myself.
“I’ll leave the room while you do this,” I tell Major.
“Not necessary,” he reassures me. “It’ll just take a sec.” He begins to prep the area. “When did you begin doing these taps?” I ask.
“Six months after McElroy’s surgery.”
“Wait a second,” I say, seized by a sudden idea. “We have no formal documented medical proof from an independent, or should I say disinterested, medical provider that Cookie’s been receiving spinal taps one to two times a week over the last two and a half years. We only have you two to say so, and since you’re both interested witnesses—meaning a jury could infer you have an interest in the outcome of the lawsuit and weigh that against your credibility because of the inherent bias—we should video record the procedure. You know, for the purposes of proving damages.”
There. Now I feel better. And congratulate myself on this very good idea. “Would you mind, Cookie?”
“No,” she answers. “I’m not shy.” She glances in Major’s direction. He nods.
“Good. What I’d like to do is send it to the malpractice insurance company. It’ll catch their attention, that’s for sure. But it’ll also facilitate their taking a hard look at coming up with a better number than two fifty. That’s because, I gotta tell you, right now they’ve got nothing else to go by, as far as this tapping is concerned, beyond what your lawyer claimed. Which doesn’t count for much. I’m going to state in the cover letter that we intend to perform such a spinal tap in front of the jury as a piece of demonstrative evidence. That should give them cause for concern.”
The truth is, despite my self-congratulations, I’m still not quite believing this.
“I always wanted to be in the movies,” Cookie adds, half-laughing, half-wincing. “Although this isn’t what I had in mind.”
I opt for my ever-ready video camera over using my phone, to ensure better quality. “Major,” I say, “tell us what you’re doing as you go along. A judge may mute it at trial, but the adjusters at the insurance carrier will hear you.” Then I begin watching through the viewer as I hold the camera steady.