Tod bought a vacant lot beside the building for parking and converted the weed-infested lot in back into a garden, complete with wrought iron sitting areas, a waterfall and a fishpond. Behind the reception area on the first floor were file rooms, a copy room, three conference rooms, a kitchen and a war room. The war room was nothing more than a large room with folding tables, old file cabinets, a few chairs, a computer, and a telephone. When a big case got close to trial, the files, depositions and exhibits were moved to the war room so that the lawyers and staff could have everything in one place as they prepared for the courtroom battle to come. Upstairs were the lawyers' offices, paralegal offices and secretarial cubicles. Tod's office was in the back, overlooking the garden and away from the traffic on Washington. When he was stressed about something going wrong in a case, he found some tranquility in staring out the window and watching the water cascade down the falls to the pond below.
Tod drove a metallic gray Chevrolet Suburban that was usually covered with a heavy coat of dirt and mud from weekend outings with the boys. He still had his old Corvette in the garage at home, driving it on weekends only enough to keep the battery charged. The Suburban better served his dual lives.
Before seven a.m. on Wednesday morning, Tod turned into the driveway, parked his car and walked next door to the office, entering through a wrought iron gate that led to the garden and the back entrance of the building. He unlocked the door and noted that the alarm was off.
Grace Hershey had been Tod's secretary for fifteen years. In her early forties, she was an attractive woman, with long brown hair and an eternal smile. More importantly, she was the best damn secretary alive. She lived in the far western part of Harris County with her husband and two boys, close in age to Kirk and Chris. She worked out every morning at five a.m. and was the first one in the office. Tod was pleased to see her smiling face at the top of the stairs, a steaming cup of coffee in her hand as she greeted him. "Well, I see the sharks didn't get you but the sun did."
"Right on both counts, Grace. We saw the sharks up close. I'm pleased to say that they would have nothing to do with Texans, at least not those with the name of Duncan. What's been going on around here?"
Tod rounded the stairs to his office and Grace followed, replying, "Josh and Alicia are in the second week of the Blackburn trial. From what I hear, things are going okay. Bill is in New York on depositions. The rest should be here shortly. I figured that you'd be here early. Jan has been bending my ear about this new malpractice case with ol' Johnny Bob whatshisname on the other side. You know him?"
Tod went around his desk, turned on his computer and, while waiting for it to warm up, answered, "Sure do. Known him for about fifteen years. We run across each other at seminars and bar meetings. He was finishing his three-year term as a director on the State Bar Board when I was starting mine. We overlapped a year. He's a big, burly fella, booming voice, out-going personality. Hides one of the best legal and tactical minds in the country behind an old shit-kicking grin. He'll country boy you to the poor house if you give him half a chance. This lawsuit ought to be a helluva ride."
"The petition's on your desk. I've already logged the case in. Answer's due Monday next week. Who do you want working on it with you?" Grace expected Tod to have at least one associate and one paralegal assisting him. Three of the other lawyers in the firm were partners, but of a lesser stature than Tod. That left four associates to choose from.
"With Jan involved, we won't have quite as much need for a lot of associate time. For good measure, ask Wayne if he has time to work with me on this one. And since the case involves medical malpractice, that's Marilyn's ball game."
Wayne Littlejohn was Tod's brightest associate. Five years out of law school, he had the trial skills of a lawyer who had practiced three times as long. Marilyn Parker was Tod's response to Johnny Bob's Mildred Montgomery. A registered nurse, she had once been a part of Denton Cooley's heart surgery team. When she decided on a mid-life career change, she sought out Tod and convinced him that after scrubbing in on six to ten heart surgeries a day, she could learn how to be a paralegal without breaking a sweat. She was right.
"As usual, I've been reading your mind. Figured you'd want those two. I checked with them yesterday. They're both available. Wayne said that he hoped you wouldn't hog all of the good depositions. He'd like to see how he measured up to J. Robert Tisdale, too."
"When they get here, tell them to plan on lunch with me. We'll go to the Spanish Flowers. I've been in a place that wouldn't know a burrito from a taco for a week and I'm craving Tex-Mex. A Texan shouldn't go this long without a stomach full of enchiladas, beans and rice. Could ruin the digestive tract."
"I'll tell them. I'll also tell them to leave you alone until lunch so you can get through your mail and return phone calls. The phone messages are on your computer. Should I call Jan and see if she can join you for lunch?"
"Good idea. Tell her eleven forty-five."
"One more thing. Dr. Moyo has been calling daily. He's upset and is gonna be a handful. He'd like to meet with you as soon as you can."
Glancing at his computer calendar, Tod told Grace to get the good doctor in at three on Friday afternoon, if it worked with his schedule. Grace returned to her desk. Tod settled into his chair and began reading the Plaintiffs' Original Petition in the Brady case. As he got to the end of the fact section, he propped his feet up on his desk and stared out the window at the waterfall.
Okay, what's going on here? Tod mused. Usually there's nothing more than a general allegation of negligence on the part of the doctor, a claim that his conduct caused damages and not much more. Johnny Bob didn't spend the time to lay out all of these facts in such detail for nothing. He's probably trying to get the attention of the insurance company, hoping to encourage a quick settlement. On the other hand, he could be laying it out for the media. But, he's got a seventeen-year-old client. He wouldn't want to broadcast her troubles to the world. Or would he?
Tod filed the questions away and continued reading. When he got to the section dealing with assault, he read it more carefully. He'd never really seen a medical malpractice case where assault was a serious allegation. After reading the facts as alleged by Mr. Tisdale, he made himself a note to have Wayne research this issue of a seventeen-year old being allowed to have an abortion when she was not yet at the age of consent. He puzzled over that dichotomy and didn't arrive at an answer. There may not be one. Maybe this is a case of first impression. The rest of the petition was standard, closing with a request for actual and punitive damages. He would have to ask Johnny Bob to amend his petition and set forth a maximum amount that he was seeking in damages. He had to know that information to properly advise Dr. Moyo as well as his insurance company.
Setting the petition aside, he turned to his credenza and found the Harris County Medical Society Directory. Thumbing through it, he found Dr. Moyo's picture and brief biography. He saw the countenance of a pleasant black man. Tod was impressed with the limited credentials listed in the directory. They were the credentials of a well-qualified specialist. Why was such a competent physician performing abortions at Population Planning? He would find out shortly.
Tod assumed that what Tisdale had recited in the detailed factual description in the petition was reasonably accurate. He was eager to have the Hermann records for analysis. Well, thought Tod, as he looked at the clock, I might as well see if Johnny Bob is an early riser.
"Law office of Arbuckle and Tisdale," answered a female voice with an East Texas twang.
"Morning. Is Mr. Tisdale in?"
"Can I say who's calling?"
"Yes, ma'am. Tell him that T. Oswalt Duncan is on the line."
The next voice was the deep East Texas drawl of Johnny Bob. "Tod, my friend, good to hear from you. How are things down in the big city?"
"Doing just fine down here, Johnny Bob. How are you and your kids and grand kids making out?"
"Couldn't be better for a tired, old country lawyer. Do wish
you city boys would send a few more defective products and overworked truck drivers up my way. How are you and your boys making out? I know you lost your wife some years back. That's tough on a man and his kids." One thing that Johnny Bob and Tod shared was a love of family.
"We're making it, Johnny Bob. It was hard for the first two or three years. Now, the boys are doing fine. My oldest son graduates from high school this year and his brother is two years behind. Thanks for asking."
Johnny Bob turned the conversation. "So, tell me, Tod, what are you calling this old country lawyer about today. You calling me to give a talk at some seminar, or are we gonna make us some money?"
"Well, Johnny Bob, you just sued one of my clients. First of all, I want to tell you I appreciate the business." Tod remembered the old defense lawyer's adage that "He who sues my client is my friend."
"Am I going to get to show you a little East Texas hospitality? I've filed three or four new cases up in this neck of the woods lately. I'd be pleased to have you on the other side."
"No, Johnny Bob. Looks like I'm the one that's going to have to be hospitable. I'm going to represent Dr. Moyo in Lucy Brady's case."
"So, you've got Dr. Moyo. Congratulations. You strap on your chaps and spurs 'cause this one's gonna be one fine rodeo."
Tod pondered the enthusiasm in Tisdale's voice and continued. "I've only read your petition and the clinic records. By the way, I was highly impressed with your petition. Not often that I see one with the facts so detailed. I was calling just to say I'd be on the other side and to ask two things. First, would you amend your petition to put a cap on the amount of damages? Second, can I get you to send me a copy of the Hermann records, at my expense, of course?"
"Tod, you know that the answer is yes to both. I'll get my nurse to copy the records and you should have them in a couple of days. It'll take a little while since they are about a foot and a half tall. As to damages, I'll amend shortly. I can tell you that I am suing for five million actual damages and a hundred million in punitives."
Tod let out a low whistle under his breath. "All I can say is you must be mighty proud of your case. Pretty tough to get punitive damages these days. Our Houston juries are pretty damn conservative."
"Well, Tod, once you understand the facts, I think you'll understand that I'm being very reasonable, considering what happened to this poor child. You know who'll be representing the clinic?"
"Sure do. Name's Janice Akers. She's an ex-nurse and a real pistol. I'll be taking the lead, but she'll be one fine second chair. Anything I can do for you?" Tod had asked for a favor and wanted to show courtesy in return.
Johnny Bob replied, "Can you tell me whose court we're in? It's been awhile since I've tried a case in the big city. Maybe you can give me some idea of when we can expect to go to trial in that court."
Tod glanced at the petition and noted the court number. Pulling out his court directory, he answered, "We're in Ruby O'Reilly's court. Good judge. Been on the bench for twenty-plus years. Smart, no nonsense jurist. I'll give you a little advice, though, Johnny Bob. She doesn't tolerate bullshit. Be prepared and you'll get along fine with her. As to a trial date, it's usually about eighteen months in her court. If she takes an interest in the case, she could set one in less than a year. As long as we play by the rules, she'll stay out of our way."
"Appreciate the info, Tod. Let's see if we can aim for about fifteen months for a trial setting. Sound okay with you?"
"Sure thing, Johnny Bob. I'll be getting an answer on file next week."
"Sounds good to me, partner. Look forward to working with you."
While some might be surprised at such a conversation from two modern day gladiators, if the lawyers respected one another, such conversations took place every day. Both sides understood the rules. At some point in the development of the case, or in trial, tempers could flare. At the start of the process, there was no reason to hassle over minor matters. And there was one other aspect to such a relationship. Good lawyers knew when to draw swords and when to extend the olive branch. It was a strange relationship among attorneys. The good ones could separate their courtroom battles from their professional relationships. It was not unusual for them to argue to the point of fisticuffs in the courtroom and then adjourn for lunch together where they discussed politics and baseball in modulated and friendly tones. Like gladiators of old, it was nothing personal.
***
Johnny Bob hung up the phone and wandered over to the window. He pondered the fact that Tod Duncan was going to be on the other side. It ought to be a fair fight. He only had two reservations. In looking at the courthouse across the street, he wished that it were on his home field and not Tod's. There was nothing he could do about that. He had to file suit in Harris County. The second that popped into his mind was about Reverend Thomas Jeremiah Luther, a.k.a. The Chosen. He was the joker in the deck. How big a joker, Johnny Bob could not have possibly imagined.
***
As Tod hung up, he pondered the fact that Johnny Bob was seriously going to ask for one hundred million in punitive damages. While he couldn't yet put his finger on it, another idea simmered in the back of his mind. Maybe there's something more afoot than a routine malpractice case. Certainly, Johnny Bob had a reason for everything that he did. Time would tell.
He turned to preparing an answer to the petition, pleading a general denial and raising defenses of various kinds that would probably amount to nothing at the time of trial. The only one he reserved for later analysis was the issue of consent to the procedure. That would require research.
At 11:30, Wayne appeared in his office door. Wayne was tall with sandy blond hair, a natural born trial lawyer who was destined to take Tod's place as head of the firm some day. He was dressed in slacks and a long-sleeved sports shirt, the standard office attire for the firm of Duncan and Associates. "Hey, Tod, welcome back. You ready to head out for lunch? Marilyn's going to meet us."
"You bet. Good to see your smiling face." Tod shook his outstretched hand like he had been gone for a month. As Tod started down the stairs, Wayne stopped him. "Come on, man. You haven't been down the pole in a week."
Turning, Tod followed him toward the front of the building, pausing at a large brass bell mounted on the wall and rang it three times. The sound echoed through the building.
Wayne responded to the three rings, saying, "You mean this new case is only a three alarm. Shit, I was hoping it would be at least a four bell or maybe five." The bell was added to the building a couple of years after the firm moved in. Tod had found it at a garage sale and established another firm tradition. When a lawyer was hired on a new case, he announced it with the ringing of the bell. One ring was equivalent to a one-alarm fire. When the occasional case came in that justified five clangs of the bell, it brought lawyers and staff from all directions to listen to a short-hand rendition of a five alarmer.
"This one has J. Robert Tisdale on the other side. Other than that it looks to be a pretty routine medical malpractice case. Three alarms ought to be plenty."
CHAPTER 39
To get to the Spanish Flowers they drove two miles north of downtown. It was almost like going to another country. After turning off the North Freeway, drivers found themselves in the middle of the Hispanic barrio where Houstonians could find some of the best Mexican restaurants in the state. Tod's favorite, the Spanish Flowers, was five or six blocks off the freeway. Housed in a large brick building built sometime in the twenties, it was family owned. In fact, the family still lived on the second floor. By the time they arrived, the parking lot overflowed with the Cadillacs and Infinitis of downtown executives parked next to the pickups of construction workers. As they entered the restaurant, the pungent aroma of spices, cheese, garlic, and a variety of cooked meats greeted Tod and Wayne. Tod took a deep breath, inhaling all of the aromas, saying, "I've been starving for this for a week."
Of course, in Texas he was not alone. Mexican food was as much a staple as barbecue. Tod looked around the
room and saw Jan and Marilyn, waving at them from a corner table. They worked their way through the packed dining room. Tod gave Marilyn a pat on the shoulder and leaned down to kiss Jan on the cheek.
"Hi, boss. Welcome home. Glad you're back in the world of the real man-eating sharks," Marilyn said.
As she spoke, the waiter brought two Margaritas and placed them in front of the ladies. "Now, Tod," Jan jumped in. "Don't blame Marilyn for these drinks. I forced her into it, telling her that I refused to drink alone. I just had to have one of these. You guys want to join us?"
Tod was definitely not a teetotaler. Rarely, though, did he have anything to drink at lunch. Wayne followed his boss's lead as they each asked for iced tea.
"You read the petition yet?" Jan continued.
"Read it this morning and already prepared my answer. Even picked up the phone and called Johnny Bob."
"Well, tell me, how's the pulse of the most famous plaintiff lawyer in East Texas? Why the hell is he coming into our territory with an abortion case of all things? He's made enough money. Damn sure doesn't need to take on a case like this."
Tod took a sip of his iced tea and dipped a corn chip into the chili con queso. "Ah, that's good," he said with a crunch. "Can't wait for an enchilada. I haven't got this one figured out yet, Jan. Some serious damages, probably with medical bills of hundreds of thousands of dollars. The girl seems to have made a pretty good recovery. Johnny Bob's pretty damn proud of his case. I asked him to plead his damages and he said he's asking for five million in actuals and a hundred million punitive. He seems to like this assault theory. You ever run across that in representing Population Planning?"
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