The Rainmaker (57 page)

KERMIT ALDY, the Vice President for Underwriting, is my next to last witness. At this point, I really don’t need his testimony, but I need to fill some time. It’s two-thirty on the second day of the trial, and I’ll easily finish this afternoon. I want the jury to go home thinking about two people, Jackie Lemancyzk and Donny Ray Black.

Aldy is scared and short with his words, afraid to say much more than is absolutely necessary. I don’t know if he slept with Jackie, but right now everybody from Great Benefit is a suspect. I sense the jury feels this way too.

We zip through enough background to suffice. Underwriting is so horribly boring I’m determined to provide only the barest of details for the jury. Aldy is also boring and thus up to the task. I don’t want to lose the jury, so I go fast.

Then, it’s time for the fun stuff. I hand him the underwriting manual that was given to me during discovery. It’s in a green binder, and looks very much like the claims manual. Neither Aldy nor Drummond nor anyone else knows if I also have in my possession another copy of the underwriting manual, this one fully equipped with a Section U.

He looks at it as if he’s never seen it before, but identifies it when I ask him to. Everybody knows the next question.

“Is this a complete manual?”

He flips through it slowly, takes his time. He obviously has had the benefit of Lufkin’s experience yesterday. If he says it’s complete, and if I whip out the copy I borrowed from Cooper Jackson, then he’s dead. If he admits some
thing’s missing, then he’ll pay a price. I’m betting that Drummond has opted for the latter.

“Well, let’s see. It looks complete, but, no, wait a minute. There’s a section missing in the back.”

“Might that be Section U?” I ask, incredulous.

“I think so, yes.”

I pretend to be amazed. “Why in the world would anyone want to remove Section U from this manual?”

“I don’t know.”

“Do you know who removed it?”

“No.”

“Of course not. Who selected this particular copy to be delivered to me?”

“I really don’t remember.”

“But it’s obvious Section U was removed before it was given to me?”

“It’s not here, if that’s what you’re after.”

“I’m after the truth, Mr. Aldy. Please help me. Was Section U removed before this manual was given to me?”

“Apparently so.”

“Does that mean yes?”

“Yes. The section was removed.”

“Would you agree that the underwriting manual is very important to the operations of your department?”

“Of course.”

“So you’re obviously very familiar with it?”

“Yes.”

“So it would be easy for you to summarize the basics of Section U for the jury, wouldn’t it?”

“Oh, I don’t know. It’s been a while since I looked at it.”

He still doesn’t know if I have a copy of Section U from the underwriting manual. “Why don’t you try? Just give the jury a brief rundown on what’s in Section U.”

He thinks for a moment, then explains that the section
deals with a system of checks and balances between claims and underwriting. Both departments are supposed to monitor certain claims. It requires a good deal of paperwork to ensure a claim is handled properly. He rambles, picks up a little confidence, and since I have yet to produce a copy of Section U, I think he starts to believe I don’t have one.

“So the purpose of Section U is to guarantee that each claim is handled in a proper manner.”

“Yes.”

I reach under the table, pull out the manual and walk to the witness stand. “Then let’s explain it to the jury,” I say, handing him the complete manual. He sinks a bit. Drummond tries to maintain a confident bearing, but it’s impossible.

The Section U in underwriting is just as dirty as the Section U in claims, and after an hour of embarrassing Aldy it’s time to stop. The scheme has been laid bare for the jury to fume over.

Drummond has no questions. Kipler recesses us for fifteen minutes so Deck and I can set up the monitors.

Our final witness is Donny Ray Black. The bailiff dims the courtroom lights, and the jurors ease forward, anxious to see his face on the twenty-inch screen in front of them. We’ve edited his deposition down to thirty-one minutes, and every scratchy and weak word is absorbed by the jurors.

Instead of watching it for the hundredth time, I sit close to Dot and study the faces in the jury box. I see lots of sympathy. Dot wipes her cheeks with the backs of her hands. Toward the end, I have a lump in my throat.

The courtroom is very quiet for a full minute as the screens go blank and the bailiff goes for the lights. In the dimness, the soft but unmistakable sound of a crying mother emanates from our table.

We have inflicted all the damage I can think of. I have the case won. The challenge now is not to lose it.

The lights come on, and I announce solemnly, “Your Honor, the plaintiff rests.”

LONG AFTER the jury leaves, Dot and I sit in an empty courtroom and talk about the remarkable testimony we’ve heard over the past two days. It’s been clearly proven that she is right, they were wrong, but there’s little satisfaction in this. She will go to her grave tormented because she didn’t fight harder when it counted.

She tells me she doesn’t care what happens next. She’s had her day in court. She’d like to go home now, and never come back. I explain this is not possible. We’re only halfway through. Just a few more days.

Forty-six

I
AM FASCINATED BY WHAT DRUMMOND will try with his defense. He risks further damage if he trots out others from the home office and tries to explain away their claim denial schemes. He knows that I’ll simply pull out the Section U’s and ask all sorts of nasty questions. For all I know, there might be more blatant lies and cover-ups buried somewhere. The only way to expose them will be in a wide-open cross-examination.

He has eighteen people listed as possible witnesses. I can’t imagine who he’ll call first. When I presented our case, I had the luxury of knowing what would happen next, the next witness, the next document. It’s very different now. I have to react, and quickly.

I make a late call to Max Leuberg in Wisconsin, and replay with great gusto the events of the first two days. He offers some advice and a few opinions about what might happen next. He gets terribly excited and says he might catch a flight.

I walk the floors until three in the morning, talking to myself and trying to imagine what Drummond will try.

I AM PLEASANTLY SURPRISED to see Cooper Jackson sitting in the courtroom when I arrive at eight-thirty. He introduces me to two more lawyers, both from Raleigh, North Carolina. They’ve flown in to watch my trial. How’s it going, they ask? I give
them
a cautious summary of what’s happened. One of the lawyers was here on Monday, watched the Section U drama. The three of them have about twenty cases so far, been advertising in newspapers and such, and the cases are popping up everywhere. They plan to file very soon.

Cooper hands me a newspaper and asks if I’ve seen it. It’s
The Wall Street Journal
, dated yesterday, and there’s a front-page story about Great Benefit. I tell them I haven’t read a newspaper in a week, don’t even know what day it is. They know the feeling.

I read the story quickly. It centers around the growing number of complaints about Great Benefit and its tendency to deny claims. Many states are now investigating. Lots of lawsuits are being filed. The last paragraph says that a certain little trial down in Memphis is being watched because it could produce the first substantial verdict against the company.

I show the story to Kipler in his office, and he’s unconcerned. He’ll simply ask the jurors if they’ve seen it. They were warned against reading newspapers. We both seriously doubt if the
Journal
is widely read by our panel.

THE DEFENSE first calls Andre Weeks, a Deputy Commissioner of Insurance for the state of Tennessee. He’s a high-level bureaucrat in the Department of Insurance, a witness Drummond’s used before. His job is to place the government squarely on the side of the defense.

He’s a very attractive man of about forty with a nice suit, easy smile, honest face. Plus, at this moment he possesses
a crucial asset: he doesn’t work for Great Benefit. Drummond asks him a lot of mundane questions about the regulatory duties of his office, tries to make it sound as though these boys are riding roughshod over the insurance industry, really cracking the whip. Since Great Benefit is still a company in good standing in this state, then it’s obvious they’re really behaving themselves. Otherwise, Andre here and his pack of watchdogs would be in hot pursuit.

Drummond needs time. He needs a small mountain of testimony dumped on our jurors so maybe they’ll forget some of the horrible things they’ve already heard. He goes slow. He moves slow, talks slow, very much like an aging professor. And he’s very good. Given another set of facts, he would be deadly.

He hands Weeks the Black policy, and they spend half an hour explaining to the jury how each policy,
every policy
, has to be approved by the Department of Insurance. Heavy emphasis is placed on the word “approved.”

Since I’m not on my feet, I can spend more time looking around. I study the jurors, a few of whom maintain eye contact. They’re with me. I notice strangers in the courtroom, young men in suits I’ve never seen before. Cooper Jackson and his buddies are on the back row, near the door. There are less than fifteen spectators. Why would anyone want to watch a civil trial?

After an hour and a half of truly excruciating testimony about the intricacies of statewide insurance regulation, the jurors drift away. Drummond doesn’t care. He desperately wants to stretch the trial into next week. He finally tenders the witness just before eleven, effectively killing the morning. We recess for fifteen minutes, and it’s my turn to take a few shots in the dark.

Weeks says that there are now over six hundred insurance companies operating in the state, that his office has a
staff of forty-one and that of this number only eighteen actually review policies. He reluctantly estimates that each of the six hundred companies has at least ten different types of policies in effect, so there’s a minimum of six thousand policies on file with the department. And he admits that the policies are constantly being modified and amended.

We do some more math, and I’m able to convey my message that it’s impossible for any bureaucratic unit to monitor the ocean of fine print created by the insurance industry. I hand him the Black policy. He claims to have read it, but admits he did so only in preparation for this trial. I ask him a question about the Weekly Accident Benefit—Non-Hospital Confinement. The policy suddenly seems heavier, and he turns pages quickly, hoping to find the section and fire off an answer. Doesn’t happen. He flips and shuffles, squints and frowns, finally says he’s got it. His answer is sort of correct, so I let it pass. Then I ask him about the proper method of changing beneficiaries under the policy, and I almost feel sorry for him. He studies the policy for a very long time as everybody waits. The jurors are amused. Kipler is smirking. Drummond is burning but can do nothing about it.

He gives us an answer, the correctness of which is not important. The point is made. I place the two green manuals on my table as if Weeks and I are about to trudge through them again. Everybody watches. Holding the claims manual, I ask him if he periodically reviews the internal claims handling processes of any of the companies he so zealously regulates. He wants to say yes, but evidently he’s heard about Section U. So he says no, and I, of course, am just plain shocked. I pop him with a few sarcastic questions, then let him off the hook. Damage is done and duly recorded.

I ask him if he’s aware that the Commissioner of Insurance
in Florida is investigating Great Benefit. He does not know this. How about South Carolina? No, again, this is news to him. What about North Carolina? Seems he might’ve heard something about that one, but hasn’t seen anything. Kentucky? Georgia? Nope, and for the record, he’s really not concerned with what the other states are doing. I thank him for this.

DRUMMOND’S NEXT WITNESS is another nonemployee of Great Benefit, but just barely. His name is Payton Reisky, and his daunting tide is Executive Director and President of the National Insurance Alliance. He has the look and manner of a very important person. We quickly learn his outfit is a political organization based in Washington, funded by insurance companies to be their voice on Capitol Hill. Just a bunch of lobbyists, no doubt with a gold-plated budget. They do lots of wonderful things, we’re told, all in an effort to promote fair insurance practices.

This little introduction goes on for a very long time. It starts at one-thirty in the afternoon, and by two we’re convinced the NIA is on the verge of saving humanity. What fabulous people!

Reisky has spent thirty years in the business, and his resume and pedigree are soon shared with us. Drummond wants him to be qualified as an expert in the field of insurance claims practice and procedure. I have no objection. I’ve studied his testimony from one other trial, and I think I can handle him. It would take an exceptionally gifted expert to make Section U sound good.