We discuss my little scheme. Deck leaves and drives downtown to the courthouse. Thirty minutes later, he calls me with an update of several fictitious clients. Just checking in, he says, do I need anything from downtown?
We chat for a few minutes about this and that, then I say, “Guess who wants to settle now?”
“Who?”
“Dot Black.”
“Dot Black?” he asks, incredulous and phony. Deck has few acting skills.
“Yeah, I stopped by this morning to check on her, took her a fruitcake. She said she just doesn’t have the will power to suffer through the trial, wants to settle right now.”
“How much?”
“Said she’d take a hundred and sixty. She’s been thinking about it, and since their top offer is one-fifty, she figures she’ll win a small victory if they pay more than they want. She thinks she’s a real negotiator. I tried to explain things to her, but you know how hardheaded she is.”
“Don’t do it, Rudy. This case is worth a fortune.”
“I know. Kipler thinks we’ll get a huge punitive award, but, you know, ethically I’m required to approach Drummond and try to settle. It’s what the client wants.”
“Don’t do it. One-sixty is chicken feed.” Deck is reasonably convincing with this, though I catch myself grinning. The calculator is rattling away as he figures his cut from one hundred and sixty thousand dollars. “Do you think they’ll pay one-sixty?” he asks.
“Don’t know. I got the impression one-fifty was max. But I never countered it.” If Great Benefit will pay one-fifty to settle this case, they’ll throw one-sixty at us.
“Let’s talk about it when I get there,” he says.
“Sure.” We hang up, and thirty minutes later Deck is sitting across my desk.
At five minutes before nine the next morning, the phone rings. Deck grabs it in his office, then runs into mine. “It’s Drummond,” he says.
Our little firm splurged and purchased a forty-dollar recorder from Radio Shack. It’s wired to my phone. We’re hoping like hell it doesn’t affect the bugging device. Butch said he thought there’d be no problem.
“Hello,” I say, trying to conceal my nerves and anxiety.
“Rudy, Leo Drummond here,” he says warmly. “How are you?”
Ethically, I should tell him at this point that the recorder is on, and give him the chance to react. For obvious reasons, Deck and I have decided against this. Just wouldn’t work. What’re ethics between partners?
“Fine, Mr. Drummond. And you?”
“Doing well. Listen, we need to get together on a date for Dr. Kord’s deposition. I’ve talked to his secretary. How does December 12 sound? At his office, of course — 10 a.m.”
Kord’s deposition will be the last, I think, unless Drummond can think of anyone else remotely interested in the case. Odd, though, that he would bother to call me beforehand and inquire as to what might be convenient.
“That’s fine with me,” I say. Deck hovers above my desk, nothing but tension.
“Good. It shouldn’t take long. I hope not, at five hundred dollars an hour. Obscene, isn’t it?”
Aren’t we buddies now? Just us lawyers against the doctors.
“Truly obscene.”
“Yeah, well, anyway, say, Rudy, you know what my client really wants?”
“What?”
“Well, they don’t want to spend a week in Memphis suffering through this trial. These guys are executives, you know, big-money people with big egos and careers to protect. They want to settle, Rudy, and this is what I’ve been told to pass along. This is just settlement talk, no admission of liability, you understand.”
“Yep.” I wink at Deck.
“Your expert says the cost of the bone marrow job would’ve been between a hundred and fifty and two hundred thousand, and we don’t argue with these figures. Assuming, and this is just for the sake of assumption, that my client was in fact responsible for the transplant. Let’s say it was covered, just assuming, okay. Then my client should’ve paid out somewhere around a hundred and seventy-five thousand.”
“If you say so.”
“Then we’ll offer that much to settle right now. One hundred and seventy-five thousand! No more depositions. I’ll have a check to you within seven days.”
“I don’t think so.”
“Look, Rudy. A zillion bucks can’t bring that boy back. You need to talk some sense into your client. I think she wants to settle. There comes a time when the lawyer has to act like a lawyer and take charge. This poor old gal has no idea what’s gonna happen at trial.”
“I’ll talk to her.”
“Call her right now. I’ll wait here another hour before I have to leave. Call her.” Sleazy bastard’s probably got the mike wired to his phone. He’d love for me to call her so he could eavesdrop.
“I’ll get back with you, Mr. Drummond. Good day.”
I hang up the phone, rewind the tape in the recorder and play it aloud.
Deck eases backward into a chair, his mouth wide open, his four shiny teeth glistening. “They bugged our phones,” he says in sheer disbelief when the tape stops. We stare at the recorder, as if it alone can explain this. I’m literally numb and paralyzed by shock for several minutes. Nothing moves. Nothing works. The phone suddenly rings, but neither of us reaches for it. We’re terrified of it, for the moment.
“I guess we should tell Kipler,” I finally say, my words heavy and slow.
“I don’t think so,” Deck says, removing his thick glasses and wiping his eyes.
“Why not?”
“Let’s think about it. We know, or at least we think we know that Drummond and/or his client have bugged our phones. Drummond certainly knows about the bugs because we’ve just caught him. But there’s no way to prove it for sure, no way to catch him red-handed.”
“He’ll deny it until he’s dead.”
“Right. So what’s Kipler gonna do? Accuse him without solid proof? Chew his ass some more?”
“He’s used to it by now.”
“And it won’t have any effect on the trial. The jury can’t be told that Mr. Drummond and his client played dirty during discovery.”
We stare at the recorder some more, both of us digesting this and trying to feel our way through the fog. In an ethics class just last year we read about a lawyer who got himself severely reprimanded because he secretly taped a phone call with another lawyer. I’m guilty, but my little sin pales in comparison with Drummond’s despicable act. Trouble is, I can be nailed if I produce this tape. Drummond will never be convicted because it’ll never be pinned on him. At what level is he involved? Was it his idea to tap our lines? Or is he simply using stolen information passed along by his client?
Again, we’ll never know. And for some reason it makes no difference. He knows.
“We can use it to our advantage,” I say.
“That’s exactly what I was thinking.”
“But we have to be careful, or they’ll get suspicious.”
“Yeah, let’s save it for trial. Let’s wait for the perfect moment when we need to send those clowns on a goose chase.”
Both of us slowly start grinning.
I wait two days, and call Drummond with the sad news that my client does not want his filthy money. She’s acting a bit strange, I confide in him. One day she’s afraid of going to trial, the next day she wants her day in court. Right now she wants to fight.
He’s not the least bit suspicious. He retreats into his typical hardball routine, threatening me with the likelihood that the money will be taken off the table forever, that it’ll be a nasty trial to the bitter end. I’m sure this sounds good to the eavesdroppers up in Cleveland. Wonder how long it takes for them to hear these conversations.