I’m standing near the corner of Twenty-Fifth and Madison on this bright sunny morning staring at the Beaux Arts–style courthouse just down the block, where it all started for me: the Appellate Division, First Department. The place where I was sworn in and admitted to the practice of law in the state of New York.
I never imagined it would also be the place where the practice of law could end for me, too.
As I wait for my
attorney to arrive, so we can deal with certain allegations made against me, I see the street cart vendor who sold me a hot dog fifteen minutes after I took the lawyer’s oath. That was eighteen years ago. He’s stationed in the exact same place, at the curb in front of the courthouse steps. He looks exactly the same, too, just older with salt-and-pepper hair. Me, I’ve put on a few and now I buzz-cut close to my scalp what’s left of my hair, riding the cusp between fashionable and just another bald guy.
I take in the structure of that mighty courthouse, a New York City landmark. The front facade is dominated by an imposing triangular portico supported by six Corinthian columns. The message sent is Don’t mess with the law
. But this particular building is more than just a courthouse that houses appeals, motions, and client complaints against their attorneys. It’s an elegant blending of art and architecture, and I count no fewer than twenty-five sculptured marble figures. They’re all over the place, on the steps, next to the columns, up on the roof—allegorical figures such as Peace, Justice, Wisdom, and figures in legal history such as Confucius, Justinian, and Moses.
But one is missing. There should be a sculpture of a Herculean figure near the arched entry doors with a large marble erection in his masturbating hand because some of the lawyers forced to show up here by client complaint against them are just being jerked off because of a bad case result. A legal outcome that was inevitable the moment the client committed the act requiring him to seek counsel in the first place.
Me, I’m guilty of the charge. Unethical Conduct.
At least I admit it.
My lawyer arrives no time too soon, because you never want to be seen standing in the vicinity of this building on Friday mornings, the day when the Disciplinary Committee conducts hearings stemming from serious unethical conduct alleged by the client. The purpose of the committee is to protect the public by ensuring attorney adherence to the ethical standards codified in the Rules of Professional Conduct, “The Rules.” That’s why I insisted on meeting my attorney near the corner.
We go in and take our place. My case is the first one up so we take our seats at the table in front of the judge’s bench instead of in the audience with the other attorneys who will walk out of here today with either a sense of relief or professional destruction.
The three judges for today’s proceeding take forever to make it from the side door to their seats up on the platform. The Disciplinary Committee disciplines attorneys whom they find have committed professional misconduct toward their clients in violation of The Rules. What I’m talking about is the authority to take away your license to practice law. Permanently.
Now the disciplinary judge sitting between the two other grouches stirs. “Will respondent Wyler stand up?” he commands in a crusty voice. I hate being called by my last name alone. First alone, fine. First and last, that’s okay, too. “Mr. Wyler,” perfectly acceptable. But last alone …
“That’s you,” my lawyer whispers out of the corner of his mouth. “And what are you doing there? Get your hand out of your pocket.”
“Sorry, these guys make my balls itch.”
“How do you respond to the complaint against you?” It’s Judge Howell, the one in the middle, asking the questions.
“You mean the one from my client?” I answer. “The guy convicted of murder now serving a life sentence without parole? The fellow that also raped and killed a different man at Rikers while waiting for his murder trial to commence for the first guy he did in?”
“Yes, that complaint.”
“The one brought against me to this most judicious and fair council, the judges of the Office of Professional Conduct, claiming I handled his slip-and-fall case in a less than professional manner?”
Howell grimaces. “Yes, counselor.”
“The one where my client swears he slipped and fell on a broken sidewalk while passing a construction site here in New York and where defense counsel came forward with videotape evidence that my client was actually perpetrating an armed robbery in a McDonald’s in Oakland, California, on the very same day, thus making the occurrence of his accident impossible? That complainant?”
“Yes, counselor,” Judge Howell responds firmly, “that complainant. Now how do you plead?”
“Judge Howell,” I say, “I thought my lawyer here responded to that complaint, but I’ll tell you anyway. My personal code of conduct compelled me to allow my client’s fraudulent case to be dismissed by the trial court. But, I might add, only after my motion to be relieved as his lawyer was denied by the very same Supreme Court judge. Didn’t my attorney tell you all this in his written response?”
“That’s what his formal response on your behalf says, accompanied by a disclaimer that it was against his legal advice.”
“Well, I haven’t changed my position. I’m guilty as charged.”
“Do you understand this admission violates the ethical standards of the Code of Professional Conduct requiring you to represent your client in a zealous manner?”
“Don’t test me, counselor!” Judge Howell bellows.
“Your Honor, if you’re suggesting zealous
means to aid and abet in the perpetration of insurance fraud, then yes, I violated the oath to represent my client in a zealous manner.”
“I didn’t say zealous
meant that, counselor.”
“Well, Your Honor, the only way I could have defeated the defendant’s motion to dismiss his case would’ve been to put in an affidavit by my client with a statement of fact I knew to be false. You’re aware of the facts of my client’s underlying case, Your Honor?”
“I’m well aware of the particular circumstances of your client’s case, counselor.”
“Great, then do the right thing here. With all due respect, Your Honor, I have two appointments I have to get to, so let’s decide my destiny, shall we?”
“You understand your admission requires that I sanction you?” he states in question form.
“Understood. Sanction away. I’d rather get sanctioned than take dirty money to pay for my wife’s tennis lessons, even if her new pro costs double and speaks with a sexy Argentinean accent.”
“You are hereby sanctioned in the sum of twenty-five dollars and the complaint is otherwise dismissed,” Judge Howell declares.
“Thanks, Your Honor. I appreciate that the punishment is fitting to my violation.”
“You know this is the fourth complaint against you in the last two years by one of your clients.”
“With more due respect to this honorable court, may I take the liberty in correcting you, Your Honor?”
“Go on,” Judge Howell says in an unreceptive tone.
“It’s the fourth complaint against me by one of my clients who became my client after I took over the injury practice of Henry Benson, the famous criminal lawyer. You know the venerable Mr. Benson, don’t you, Your Honor?”
“Who doesn’t?” Judge Howell sighs. “I stand corrected, counselor. It’s the fourth complaint against you by one of Mr. Benson’s clients.”
“Your Honor, I’m going to meet him after I leave here to pick up a new case.” I pause. “So there’s a remote possibility you may be seeing me again.”
Judge Howell shakes his head disapprovingly. “I hope not, counselor, and I caution you to be careful when dealing with Mr. Benson’s clients. You know, I was a criminal judge for forty years before they retired me to this place and I’ve presided over a number of Mr. Benson’s criminals … I mean clients.”
“Thanks for your concern,” I reply. “My understanding from Mr. Benson, regarding this new case, is that it involves a little girl, brain damaged as a result of what sounds like the injudicious monitoring of her sickle cell disease, not one of his criminal clients, which is why I say remote.”
I turn to leave.
“One moment, counselor.” It’s Judge Piccone, the one to the left of Judge Howell.
Damn. What’s this guy got to say? He isn’t my assigned judge. The only reason he’s sitting in is so we won’t have to repeat the proceeding in the event the pacemakers of the other two fail before a decision can be made.
I turn back around.
“Counselor, you’d better hope I won’t be the one determining your punishment in the future,” Piccone declares. “Both you and Mr. Benson will then have a problem. He shouldn’t be taking cases that don’t have merit, but if he does it becomes your obligation to represent the client zealously, something you obviously have a problem with …”
I agree. Nonetheless, a retort is invited by the nature of his sentence-ending pause. “So that’s the way it’s going to be, Your Honor? The trial court prevents me from quitting a phony case. A case that rightfully gets dismissed, at the risk of my losing my license, and this is how a member of the committee that rules on ethics thanks me?”
“That’s right,” Judge Piccone replies. “I’m against cases without merit and against those involved.”
“I’m against them, too. Isn’t that the reason why I’m here today?” I turn to my lawyer. “Let’s get out of here before I pop off at this pseudorighteous shit flake.”
“Did you use a profanity toward me, counselor?”
“No, Your Honor, I asked my lawyer if he was going to the White House clambake. He’s very political.” Piccone gives me a skeptical stare.
I break the pause by giving him two finger snaps, Jerry Springer–style, and turn to go. The last I see, his gaze is still fixed on me.
Piccone was known as a defendant-oriented judge when he sat on the bench, the kind of guy who would never know, unless it happened to him, the devastation and detriment that occurs to the injured and their families when insurance companies defend indefensible cases, thus withholding for years the money the plaintiffs deserve in a circumstance where life was permanently altered in an instant of reckless conduct.
My lawyer and I recommence our exit journey. “Don’t be such a wiseass,” he warns.
“How could anyone blame me for putting forth the truth of the matter?”
“You know the truth carries little weight in legal proceedings.”
“I know, but my life philosophy is ‘The truth will set you free.’ We’re walking, aren’t we?”
We head down the stone steps of the Appellate Division. “Just stay out of trouble,” he cautions. “You’ve got an unbelievable practice going. Attorneys from all over the city still send you their injury cases despite
your involvement with Benson.”
“If I keep winning, they’ll keep sending. It’s all about results.” I point to the cart vendor. “You want some street meat? Some people think Papaya King on Eighty-Sixth and Third has the best dog in the city, but they got nothing on this guy. He grills, no dirty water, and they’re kosher.”
He looks to the vendor, who just blew his nose in a paper napkin. “I’ll pass.”
“Suit yourself. I feel compelled to eat a couple every time I leave that building as a tribute to continued licensure.” He grins. “Listen, I got to hop. I have to meet Henry to pick up that case I told Judge Howell about.” I salute my lawyer good-bye saying, “God bless America,” then pick up my commemorative dogs. I turn from the cart with my two grilled beauties, mustard and kraut, to flag a cab.
What I see is too good. Even more tasty than what is in my hand. I can’t believe it. Adam Hellman is stepping out of a limo. I hate that asshole. He’s a showboat plaintiff’s attorney who gives our profession a bad name. I mean, who takes a limo to a disciplinary hearing? He’s a snake, too. He stole not one but two clients of mine by paying them off to switch attorneys. He’s leaning on the open door, gabbing into the limo. I bend down to see he’s talking with a young hottie all diamonded up. I can see the sparkles from here. A new girlfriend, no doubt, his having been divorced four times. I quickstep over. He doesn’t see my approach. I stop a foot behind him, holding my dogs to the side, out of harm’s way. I take a deep breath.
“Adam!” I scream at the top of my lungs. He flies up into the air and almost falls upon landing between the elevation of curb and street. It feels good to startle the crap out of a guy like that. He gathers his balance and turns to me with a confused look on his face. A look that says, Why did you startle the crap out of me like that?
So I accommodate. In my most excited of utterances.
“You missed your hearing before the committee!” I yell out, causing alarm to infiltrate his nervous system. He turns white. He struggles to swallow the lump that just gathered in his throat. “They disbarred you!” I shout. “Summarily! For nonappearance!”
“What! What!” he responds, in disbelief. “What did you just say, Wyler?” Called by my last name again. I hate that.
“You heard me, man,” I state, taking a moment to bend down and flash the dogs at the hottie in the back so as to ask, Want one?
Her brow rises with interest. Cool. She wants to bite my wiener. I stand to finish what I started. “You’ve been disbarred, man! Get in there!” I say, pointing to the courthouse. He takes off like a sprinter up the steps, falling three times and leaving a shoe behind before disappearing into the structure. I give a shrug, then casually slip into the backseat of the limo next to the hottie. I shut the door and lean forward.
“James,” I say, talking to the limo driver, “I’m a friend of Adam’s. Could you run me downtown to the Village, please? I think he’ll be a while.” The driver puts the stretch into gear and pulls away from the curb. I turn to my left and undertake a quick profile. Blonde, light blue eyes, twentysomething, boobs out and about—she must be Eastern European. “Ivonka?” I ask.
“No. My name is not Ivonka,” she responds, with a hard Russian accent. “It’s Ivonna.”
“My bad, Ivonna. Are you Adam’s new girlfriend?”
“Maybe,” she answers, holding her hand out in front of her, looking at the jewels on her flared fingers, then adjusts one of her very expensive rings.
“Listen,” I say, with the rusty reflexes of a married man and the joy of having just stuck one to Adam, “if things don’t turn out too good back in there, I’m around town, honey. I don’t got a full head of hair like your boy, but skin is in, baby girl.” She looks at me like I’m some kind of idiot. I definitely make better opening statements in front of a jury where I’m given a fact pattern to work with.
Five seconds later, after telling her my first name and then making an offering where something was lost in translation, I find myself stepping out of the limo, evicted. Before shutting the door I plead my case, as lawyers do.
“I was talking about a hot dog, that
wiener, and my name
is Tug. I wasn’t asking you to—”
“Shut door! Pig!” The Money, the Whole Money, and Nothing But the Money, So Help Me God
I hop a cab. “Boca Coca Java Mundo Coffee Expressions, please, on Bleecker Street.” The cabbie gives me an inspecting look through his rearview. “Yeah, I know, buddy, I’m not hip enough to be hanging out there, but I got business to do and the guy I’m meeting is completing the second decade of his midlife crisis.” He ignores me, assuming he understood, starts the meter, and slowly pulls away from the curb, which I greatly appreciate, hating herky-jerky takeoffs.
Boca Coca Java Mundo is a supercool downtown coffeehouse. It’s a social networking mecca and subculture to itself. The most beautiful and free-spirited young people in the city gather to peck on their laptops and socialize while sipping five-dollar coffees with eight-word descriptions. It’s the ultimate of trendy daytime environments, and I’m sure the old fellas will stick out more than I’d like. I’ll be arriving early so I’ll grab us a table in the corner.
I enter Boca Coca, which I haven’t been to in fifteen years. I stopped coming to this
Boca when I started going to the other, in Florida, where my in-laws live.
On first glance, everything looks the same. The extralarge purple couches with orange and gold throw pillows are randomly scattered about just as I remember. The rich-looking, purple-stained, floor-to-ceiling wood shelving still runs the perimeter, stocked with hot-chocolate powders and coffee beans from around the world and hundreds of one-pound purple coffee bags containing their traditional blend.
Everything is the same except for one thing—an oversized purple-and-orange lounge chair in the center of the place occupied by none other than Henry Benson.
That chair was never there and it’s placed, or should I say displaced, in a highly visual location. It screams, Look at me,
so I’m not surprised Henry has claimed it as his purple-and-orange throne, drawing the attention due a king.
So much for the corner table.
Henry Benson is a high-profile New York City criminal attorney who was forced to give up his injury practice by his professional insurance carrier because of a civil litigation “misadventure.” He committed malpractice in open court in front of his client. He still defends penal prosecutions, but now Henry refers his injured criminals seeking money damages to me.
He chose me—a complete stranger—to take over his civil practice because his bigwig best friend, Dominic Keller, the self-proclaimed “king of all injury attorneys,” innocently told him he thought I was a phenom in the courtroom. The nonnegotiable deal was that I take all or none of Benson’s twenty-one injured criminals, based solely on his short verbal description of each case. And we split the fees fifty-fifty. Oh yeah, the other reason he chose me to handle his injured criminals was so he could tell his best friend, Dominic, to go fuck off, without actually telling him. It’s the case of Ego v. Ego
Forrest Gump would say a Henry Benson case is like a box of chocolates; you never know what you’re going to get. Each Benson case never really is what Benson’s verbal describes it to be or even what it appears to be after review of the file. Each comes with some built-in wrinkle and unapparent twist that offers the prior warning of a land mine you just stepped on.
That said, the thing you do know about a box of chocolates is that each piece of candy comes with a chocolate-coated covering. And, the thing you know with Henry’s injured criminals—or HICs, as I’ve affectionately termed them—is that each HIC is a bona fide criminal who has been tried, convicted, and jailed for his felonious conduct.
Before Benson singled me out to take over his HICs, I was making a good clean living. My maxim was, No one case is worth losing your license, your career, your self-respect, and the respect of others.
My own clients had relatively pure and straightforward injury cases with none of the potential for blowing up in my face, and none were convicted felons. I was gaining recognition in the legal community as an up-and-coming plaintiff’s lawyer, and attorneys from all over the city were sending me their medical malpractice and general negligence cases. My practice was moving forward steadily, but unfortunately, my expenses were growing and my efforts weren’t exactly yielding retirement dough.
So, despite hating anything to do with moral turpitude—which includes persons of perpetual criminal disposition with injury claims—I accepted Henry’s deal for the money, the whole money, and nothing but the money, so help me God. On the first case alone, just weeks after receiving all the HIC files, I made a bundle with very little effort.
Since taking over Henry’s injury clients I’ve identified four fake cases. That makes nearly 25 percent of the whole. For those, I moved to be relieved as counsel, basing my application on attorney-client irreconcilable differences, because it’s an ethical violation to come straight-out and tell the judge that your client’s a fraud. You go figure that ethics code out. The Rules, yeah, right.
On two of these four cases, relief was granted by the judge. On the other two, permission was denied, and I had to continue representing two plaintiffs I knew to be attempting fraud. For one, I have an offer of settlement to the tune of seventy-five thousand dollars, which sum my client has rejected against my legal advice. He wants an even hundred. I restated to him in the clearest terms my legal wisdom: hogs get slaughtered. The other case had been dismissed as a result of my intentional malpractice, which had landed me in front of the Disciplinary Committee this morning. That brings us up-to-date …
… well, except for the fact that three HICs have threatened me with bodily harm, and on a fourth occasion, I had to wrestle my letter opener out of the murderous hands of a convicted killer attempting to repeat his offense. In any event, these are the basic costs involved in being an HIC lawyer in the city that never sleeps.
I take in Henry’s stately appearance before I approach. Just under six feet, in his early sixties, Henry Benson is slender and seemingly in good shape. He shaves what remains of his hair with a number 1 clipper giving him the look of military strength. He has a strong jaw, large ears, and a warrior’s Roman nose disproportionate to his smallish head, but altogether he’s a very good-looking man. He’s wearing cowboy boots, as always, with his blue pinstripe suit—which doesn’t work for me since I know he’s from Brooklyn. The one thing you can’t take away from Henry is his presence. It’s strong, masculine, and authoritative, and everyone gets it.
He signals me to come with a firm wave and, as I approach his table, he looks over and around me to anybody and everybody. He wants to see who’s noticing him, which, of course, is status quo for a narcissistic egomaniac. I dismiss the thought of bowing, deciding instead to greet him standing tall.
“Hi, Henry. I just got out of court on one of your cases.”
“How much did we make?”
“We didn’t make. It was a Disciplinary Committee hearing. I lost. It cost me twenty-five on the sanction and four thousand in legal bills.”
“Take half out of this.” He hands me one of the four file folders that are sitting on the floor. It’s different, newer looking than the other three.
I sit down with the folder in the skimpy chair waiting for me. “Am I going to get a verbal now?”
“I’ve trained you well. Before I begin, do you want a Mega Boca Coca Java Mundo decaf skim latte?”
“No, I’m good.”
“Very well then. What’s that on your lapel?”
“Mustard and kraut backlash. I tried to slip some hottie the dog.”
He lifts a confused brow, then begins. “The case I just handed you is Betty and Bert Beecher. It’s a medical malpractice case I just settled for six hundred thousand dollars. Since I can’t practice civil law anymore, I naturally resolved the matter in claim. No formal lawsuit was brought, but I did allow the insurance company to take Betty and Bert’s preaction statements under oath.”
“Henry, I thought—”
Henry, angry, stops me cold. “What did I tell you about interrupting?”
“Never do it.”
“Correct. Now, listen. You’ll have no questions when I’m done. You’re going to earn your fee if you can get Bert Beecher to sign off on the proposed settlement. It was Betty who was injured as a result of some cosmetic surgery she had on her face—chin, nose, brow lift, lips, eyelids. The perimenopausal fab five. At the start of the procedure the surgeon placed hard plastic protective lenses in her eyes for intraoperative shielding. You know, so nothing got in her eyes. These were inserted after Betty was under the effects of anesthesia so she had no idea she had a foreign body covering her baby blues. At the end of the procedures, the surgeon forgot to take out these nonporous cornea shields and she was discharged home with them in, stuck to her eyeballs. She had no clue about the shields because her eyes were swollen shut from the eye job itself, or so she thought. After ten calls to the surgeon over four days, he finally took a minute out of his busy surgical schedule to see her. He immediately identified the problem and had to remove the shields, stat, so he strapped her down to his exam table, then jabbed forceps in her eyes, ripping the shields out. I say ripping, because they became glued to her corneas from the lack of moisture. The malpractice took place about six months ago and she’s got permanently scratched corneas. The problem is, Bert, her good-for-nothing ex-husband, is insisting he get half the client share of the money for his claim for loss of services on behalf of the uninjured spouse.”
Henry stops talking, and more than a nanosecond later, I inquire, “If I ask you a question now, will I be cutting you off?”
“No,” Henry explains. “I paused in excess of the acceptable break time between sentences, so a question is fair game.”
“Why am I getting the case if it’s already settled for digits like that? That’s a big number for scratched corneas.”
“Bert knows I can’t practice civil law anymore. He knows I can’t institute a formal legal proceeding because of the problem I had and he’s using that as leverage against me. Bert says either I get his ex-wife to give him half her recovery as payment for his claim or make up the difference out of my fee. I don’t take kindly to ultimatums, especially from a Louisiana hick like him.” A hick HIC, I think to myself, that’s too funny. If Henry only knew. He continues.
“I told Betty I was referring the matter to you. I explained to her that you’d start the formal lawsuit by serving a summons and complaint on the surgeon and see it through to conclusion to ensure she gets the client’s share of the money to the exclusion of her extorting ex-husband. If it goes to a jury, Bert won’t get a penny, not with his rap sheet, which happens to include a criminal conviction for attempted murder. So, if you can get him to sign off, you pocket half the fee for doing nothing. A gift. If not, you’ll have to work on the case, knowing it’s a guaranteed payday because I was already offered six hundred thousand in response to my claim letter to the insurance carrier. That’s your verbal. Have fun. And don’t underestimate Bert, he’s smarter than he looks. By the way, if your interruption earlier was to say you thought I couldn’t practice civil law anymore, I’ll have you know that settling a case in claim by writing a simple letter is not considered the formal practice of law according to how I interpret the applicable regulations. You need to file suit for your conduct to be considered the practice of law.”
Henry reaches down and picks up one of the other three folders, which I assume is the sickle cell case. It’s not skinny like Beecher’s file. It’s thick and heavy, like the other two remaining on the floor. As I take it, I note the date of accident penned on the outside of the folder. With that date of loss, way before Henry and I ever met, I should’ve gotten this file when I got the rest of the HIC cases. Our deal was a take-all-or-take-none proposition, meaning I’ll give you my big-dollar cases but you must also take the crappy ones. So obviously, Henry had held this one out, putting a dagger through the heart of our deal. That ain’t right.
But what’s more significant about this date of loss is that it is six years ago. This lawsuit should be over and done with by now. It’s a stale case and there’s always a reason for that, and there’s always a disgruntled client because of the unreasonable wait.
Anyway, I’ll never forget his words when I asked him if he wanted to put our agreement in writing. “A guy like me, with clients like mine, doesn’t need a piece of paper to enforce a deal,” he’d said then. “I trust you. You trust me. That’s the only thing we have to lose here.” Yeah, right. I’m angry but say nothing, not a word. I mean, he’s giving me a gift on the Beecher case that’s worth no less than a hundred grand in my pocket and he’s handing over the one he’d been holding out on me. I guess I’m ahead of the game. It’s just his attitude toward trust that bothers me.
“This is the Suzy Williams file,” Henry says, “the girl who sustained brain damage from her sickle cell disease when she was six.”
“Right, the one you told me about.”
“Yes, the one I told you about.”
“I’m listening. No interruptions, I promise.”
“Yes, the verbal. Well, uh, the verbal on this case is there is no case.”
“I thought you told me they mismanaged her condition in the hospital.”
“Yeah, that’s what I told you.”
“So, what changed?”
“Defense counsel served me with a motion to dismiss the case, so I had to pay for an expert medical review. My expert said no case. There’s a memo in the file from my expert doctor, attached to the defendant’s motion for summary judgment seeking dismissal.”
“What am I missing here? Are you telling me you didn’t have the case reviewed by a qualified medical expert before
you started the lawsuit to avoid this exact scenario?” I pause, giving him time to respond. Nothing. “Henry, you know that rule ensures you don’t sue a doctor or hospital that doesn’t deserve it and, more important, so that you don’t give the injured client false hope of recovery.”
“Don’t bother me with details,” Henry says dismissively. “You know I don’t like details. Just handle things … somehow.”
“By ‘somehow’ are you suggesting I make a cross-motion to the court requesting that you be relieved as counsel?” He kind of looks up toward the gold ceiling with a “that’s not such a bad idea” expression, then brings his head down and deadeyes me with force and authority.
“You’re their lawyer now. And by ‘their’ I mean the injured child, whose name is Suzy, and her mother, June. Since you’re their lawyer and my good name is on the legal documents, just get us relieved as counsel as gracefully as possible.”
“I’m on it, Henry. No worries,” I offer confidently.
“Good, now get out of here. I’m having a get-together with a young Asian girl I met on Match.com. She kept giving me the wink, so I thought I’d give her the opportunity to give me more. Now get going.”
“On my way, Henry.” He immediately starts looking over and around me to anybody and everybody the way he did on my approach. Two steps into my escape, I hear Henry.
“And one more thing.” I pivot one-eighty on my wing tips.
“Listening, sir,” I reply, playing into his ego.
“I saw the way you looked at the Williams file when I handed it to you,” Henry continues, “the date of loss, that is. It was
a holdout. I was handling the case the day you received delivery of the rest of my files and I held this one out.” Henry pauses and waits for a response. I don’t accommodate him. When he realizes this, he fills in the gap. “This little girl was a child prodigy who became a spastic quadriplegic with severe brain damage as a result of what happened in that hospital. She’s badly brain damaged, permanent feeding tube and all. So I thought they’d be throwing the money at me. You and I both know the money follows the injury in an emotional case like this. I didn’t know you could end up like her from sickle cell, without somebody doing something wrong. I appreciate your not calling it to my attention, the holdout status of the case, that is. And yes, on this one I was practicing law. Thanks for saying nothing about that, too.”
Surprised to hear Henry say the word I
before the word appreciate,
I flash him the Beecher file and a smile. “And I appreciate you giving me half the fee on this settled case.”
As my cab cruises through the six-block stretch that constitutes Fourth Avenue, the forgotten way, before it turns into Park Avenue, the famous way, I think to myself maybe one day Henry will find it in himself to say “I’m sorry,” and how I’m glad I didn’t make an issue about the Williams holdout since it’s a turndown anyway. The hardest thing for a lawyer to learn is to know when not to talk. The second thing I and my fellow attorneys are most guilty of is talking too much but saying too little.
The trouble is that it’s a serious no-no in the state of New York to commence a medical malpractice case without first obtaining an affidavit of merit from a duly licensed physician. In my mind such a failure is just as bad as bringing a fraudulent claim altogether, and so now it’s time to begin dealing with the dilemma Henry has thrust me into.
An attorney in New York must obtain court approval to withdraw as counsel once litigation has commenced. Getting court approval to withdraw from a noninfant case is a fifty-fifty proposition, the court’s logic being that if there wasn’t a legit case to begin with you shouldn’t have brought suit. That means: live with your error and associated expenses until the jury throws you out. Infants, on the other hand, are technically wards of the court. Getting court approval to drop an infant’s case, where the judge has an obligation to protect the child, is even more difficult. Once you proceed to factor in the tender age of Suzy Williams at the time of her injury and her brain damage, withdrawing as counsel gets harder still. Then add to the equation the fact that the attorney was supposed to obtain an affidavit of merit vouching that malpractice had been committed prior to starting the suit in the first place and you have a case that is nearly impossible to withdraw from as counsel. Thanks, Henry, and I’m not done yet. The problem continues.
In my application to be relieved as counsel, I’ll be required to give the court an affidavit from a medical expert stating that the case lacks merit. This will raise the question of who the doctor was who opined the case had merit before the lawsuit was commenced and therein lies the conundrum; there was no affidavit of merit in this case in the first place.
The worst part is that you have to serve your papers requesting the court’s permission to withdraw on the client. So when you go to court to plead your cause, you have to argue right in front of your client why you don’t want to be his or her attorney any longer. If and when the judge denies your motion, you then have to continue being the client’s attorney in a situation where the client no longer has any faith in you. Great.
Benson’s put me in a fucked-up situation, being the attorney of record for Suzy Williams as I now am. I’ll have to find a really creative legal or medical argument to get out of this one.
On the flip side, Suzy Williams is a brain-damaged child and obviously not an HIC. I won’t have to worry about being threatened, stabbed, or otherwise assaulted and battered, at least by Suzy, although I’m sure I’ll find out at some point along the way who the criminal is who’s connected to the Williams family and therefore landed Little Suzy in the legal hands of my distinguished colleague, Henry Benson.
The cabbie interrupts my train of thought. “Where did you say you were going?”
“I didn’t. I just said uptown,” I reply, then pause.
“Would you like to give me an address?” the driver responds.
“Lenox Hill Hospital,” I tell him. I have other problems, too. Only, I know how the next one will end. You Look Good in That Suit
I enter Lenox Hill Hospital on East Seventy-Seventh and casually walk past the two guards toward the elevator bank. Over the years I’ve become an expert in legal matters, in medicine, and especially on liars and their lying habits. I’ve also become an expert on entering hospitals without being stopped by security or having to wait in line to get a visitor’s pass. It’s part of the craft of being a successful personal injury attorney.
I go up to the surgical ICU and wash my hands before entering, just like the sign instructs. “Where’s my mommy?” I ask the nurse who’s keeping a beady eye on my every move.
Her look is skeptical, a clear rebuff to my innocent attempt at humor. “Come this way,” she orders. As we walk down the hall, she starts issuing the usual laundry list of the dos and don’ts, such as don’t get too close to the hospital bed, don’t disturb the patient, keep away from the medical equipment, etc. Maximum care means maximum regs. I cut the lecture short.
“I’ve been through the drill, nurse. Many times. I promise I know the rules.”
She stops walking. Turning to me, she puts her hands on her hips and attacks. “I don’t care what you think you know. You listen to me. It’s my job, understand?”
I back off. “Yes, yes. Sorry.” She shakes her head, then continues leading me to the room where my mother lies recovering from her incredibly serious cancer operation.
Before I enter, my sidekick reiterates an order in a firm tone. “Don’t disturb her. She’s in and out of consciousness at this point. She needs her rest.”
“Okay,” I say meekly. But the nurse, instead of dismissing herself, just stands there giving me an unfriendly look, which I really don’t think I deserve. We have nothing left to say, and so I break the silence. “Anything else?”
“No, nothing. Just don’t bother her.”
“Thank you, nurse, I assure you I won’t.” She looks me over, hesitant about leaving me alone with my own mother.
Mom is lying propped up with tubes and monitors everywhere. Her eyes are closed and she looks peaceful. The oxygen mask covering her face reminds me of the scene from Blue Velvet
where Dennis Hopper does the asphyxiation thing just before he’s about to have sex. Jesus, even with my own mother clinging to life before my very eyes, I inexplicably make this association. I repulse myself sometimes.
At least I admit it.
I’ve played my role in this hospital scene many times during my mother’s twenty-year battle. It started with breast cancer and now metastatic ovarian has been added to the cell-destroying mix. The thing is, she’s never looked this lifeless. I quietly approach and inspect the mechanicals. There’s an IV drip line connected to a Flowmaster fluid monitor and a bundle of plastic-coated cardiac monitor lead wires emerging from beneath her sheets. The wires run into a single plastic housing that is connected to some cable. For whatever reason, this connection has some separation and I feel compelled to push the two pieces together to close the quarter-inch gap. I reach over, grabbing it, and just as I do, my new best friend enters the room.
“What are you doing back there? Trying to kill her?” Nurse Hostile screams. “Call security! Someone call security!”
“Relax, relax,” I say. “I thought the monitor cable looked a little loose. Everything’s under control. I was just—”
“Out of the room! Now!”
Ten minutes later, after my mother’s been evaluated by a doctor, for no good reason, her watchdog comes out.
“You can go back in now, but it’s against my better judgment,” she scolds. “Keep quiet. I mean it! She’s one day post-op and needs her rest. And don’t touch anything again. Got it?”
“Got it, nurse. Sorry about before.” I go in and sit on the far side of the room nowhere near Mom. There are two visitor chairs, for some reason, and I’m sitting in the one directly across from the foot of her bed. Mom’s still resting peacefully in a state of unconsciousness. Or so I hope.
After fifteen minutes of sitting, watching, and waiting for her to open her eyes, I decide to check out one of the Suzy Williams files, simply from curiosity. I pull out the defendant’s motion to dismiss, with Henry’s expert review memo clipped to it, just like he said. I take the memo off and put it under the motion, which I intend to read first.
The attorneys defending both the Brooklyn Catholic Hospital and Dr. Richard Wise are my old friends Goldman & Goldberg. I used to have a lot of cases with them as defense counsel, but we haven’t had any contact now for a while. I call them my friends because after I beat both of them—Goldman and
Goldberg, in different cases, each by jury verdict—they started sending me the plaintiffs’ cases they couldn’t handle because of interest conflicts with the medical insurance carriers paying their bills. In the field of medical malpractice litigation you can’t wear both hats. You either sue doctors or defend them, period. Reason being, the carriers don’t want to pay attorneys to defend their insureds if they’re just going to turn around and sue one of them.
I chose to represent the victims of medical malpractice because my mother never should’ve ended up this way. There was a two-year delay in diagnosing her breast cancer, taking her from completely curable to years of otherwise unnecessary pain, suffering, and insidious yet life-prolonging medical treatments and operations. A wretched battle that didn’t need to be fought and that will soon be lost.
In any event, the papers indicate that the firm’s name is now Goldman, Goldberg & McGillicuddy. Where have I heard that name before? I check out the attorney’s affirmation in support of the motion to dismiss and see it’s been written by one Winnie McGillicuddy. I don’t know her, but wonder if she’s as cute as her name sounds. My mind wanders and I recall McGillicuddy is the maiden name of Lucy Ricardo from the I Love Lucy
I see the motion is returnable next Friday, one week from today. Thanks again, Henry, for waiting until the last possible moment to put me in a bind. It’s crunch time, considering I’m currently in the middle of a trial. I also note the judge assigned to the Williams case is Leslie Schneider, who’s way too stingy about giving adjournments. Be ready or be dismissed. The worst part about appearing before Judge Schneider is her voice. I think I even settled a case a few bucks short just so I wouldn’t have to spend a week in her courtroom listening to that nerve-pinching whine.
I skip reading what Winnie McGillicuddy has to say, pass over the voluminous medicals, and go right to the medical expert affidavit in support of the motion to dismiss. I figure it’s attached as exhibit A—and I’m right. I don’t recognize this expert’s name, but the fact that defense counsel included the expert’s name in the first place gives the motion credibility. That’s because in New York lawyers are permitted to withhold the identity of an expert in a medical malpractice case.
In sum and substance, defendant’s expert says that Suzy was admitted suffering from the onset of a sickle cell crisis and acutely took a turn for the worse, suffering a cardiopulmonary arrest with a concurrent sickle cell stroke, both being known complications of her disease. The conclusion is that the management of her condition was appropriate, that sickle cell strokes cannot be foreseen, are unpreventable, and cannot be associated with medical malpractice. Suzy’s stroke is responsible for her brain-damaged condition and the concurrent cardiopulmonary arrest also contributed thereto. The end. Very clear and logical. If this is accurate, then Henry was a real ass for bringing suit—and I’m going to look like a bigger one trying to get us out of it.
I find our expert’s typewritten memo. It says, basically, the same thing. I read the handwritten notes accompanying it, looking for some morsel of merit, but it just confirms the memo. Nonetheless, before I seek to get out of a case with a multimillion-dollar injury, I feel it’s in my best interest, and the best interests of my clients, whom I don’t even know, to pay a visit to this expert I’ve inherited. That would be one Dr. Laura Smith, and I never heard of her before, either.
I look up from the papers and see Mom’s still out. Her vitals are stable, according to the monitoring devices, so why not just make the call now? I dial Dr. Smith’s number and a man picks up on the first ring. “Smith Sickle Cell Pediatric Care Center, Steven Smith, director, speaking. How may I help you?”
“Hello. This is the attorney for the plaintiff on the Suzy Williams matter. I’d like to set up an appointment to see Dr. Smith, please.”
“My wife, I mean Dr. Smith, has a very busy schedule,” Steven Smith replies. “Could we do it next month?”
“How’s Monday look for you?”
He snorts. “Is it really that important?”
“Yes, it is.”
“Then come Monday anytime you want,” he says, “because no time is good. But I must advise you I’ll have to charge a flat fee of five hundred dollars for the expedited appointment. Then there’s the standard fee of seven hundred fifty dollars per hour of time. Plus, I’ll also have to charge you for time lost from Dr. Smith’s normal patient schedule, so that’s another five hundred. Therefore, if you choose to show up on Monday, you won’t be seeing Dr. Smith unless you hand me a check for one thousand seven hundred and fifty dollars for the first hour of her time. And if I’m not mistaken, didn’t she already review and reject that case?”
“That is correct,” I reply. “See you Monday.” Click.
“Greedy fuck,” I say aloud just as my mother opens her eyes. Oops. She looks at me and, for certain, knows who I am. She slowly raises her right arm, giving me the international beckoning signal. I get up from my chair and approach with extreme caution. I move to the head of her bed and she points to her oxygen mask.
“Do you want to say something, Mom?” She nods and points to the mask again. “Do you want me to take that off?” She slowly nods again, so I gently lift it away from her face. She beckons again and so I move in closer, but not too close out of fear for my nursing nemesis.
“You look good in that suit,” she says softly.
“Thanks, Mom, I appreciate that.” She squints at my lapel.
“Is that a mustard stain?”
“Yeah, Mom, it is.”
send your clothing to the dry cleaner?”
“Mom, if by ‘she’ you mean my wife, then yes, Tyler does.” Mom cringes and it’s not because of pain. She gathers strength. Here we go.
“Tug, my son, every time you say her name I have less and less respect for that woman. How does a girl named Tyler allow herself to marry a man named Wyler? It’s ridiculous, Tyler Wyler. And together you two sound even more cartoonish, Tug and Tyler Wyler. Such stupidity. She knew you were going to be a success and that’s why she married you to live with such a name.” She motions for her mask to be put back on. Two deep breaths. I ignore her comments and attempt to change the subject from my wife and marriage.
“So, Mom, how do you feel?” Mask off.
“Like I got hit by a wrecking ball from a crane gone wild, died, donated my organs, only to wake up from the dead to see my son’s wife isn’t taking care of him properly. A lawyer’s suit is part of his stock-in-trade. It shouldn’t have a stain on it, mustard, no less.”
Mask on. She takes three big inhales and wants it off again, so I comply. She continues. “But we both know my organs are not acceptable for donation and that wife of yours is too busy with her tennis and spending your hard-earned money to slip your clothing into a dry-cleaning bag and place it outside under the portico of that beautiful home you built for her so your cleaner can pick it up. Other than that, I feel fine
.” Mask on again. That last rant took the steam out of her, but I can’t leave it alone.
“Mom, I love Tyler. All marriages have stuff.” Mask off.
“Never close the door to other women. You must always talk to other women—you promised, a son’s promise to his mother.” Mask on.
“I do, don’t worry, I talk to them. But I’m good with Tyler.” Mask off.
She points to the guest chair motioning for me to sit down. She’s exhausted from her part of our exchange. She takes three large inhales, then her lids close shut.
I spend the next hour sitting there. She opens and closes her eyes every so often as our pal the nurse periodically checks on us. Then, with her signaling again to remove the oxygen mask, I stand up and comply, positioning my ear so I can hear within a whisper’s reach. At that moment the nurse appears at the doorway and stomps in. “What are you doing?” she barks. “Why is her mask off? Why are you so close to her?”
“My mom wants to tell me something,” I plead.
“Make it quick. I’m watching you.”
I turn back to the bed. “What, Mom? What is it?”
My mother, even with great effort, can manage nothing more than a whisper.
“Did you dump her yet?”