Category Archives: Legal

Spoiler Alert

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(Parts of this experience will probably show up fictionalized in one of my new Matt Jacob novels.)

Boston, like much of the country, is in the midst of a heat wave.  Temperatures have topped 100, a new thing for me even though I’ve lived here for more than thirty years.  I’m doing my best to keep cool in a city where cold rules, but this weather brings back memories of the summer month I spent in Oklahoma City researching the Murrah Building bombing for a consortium of lawyers.

First thing I noticed after landing was the oil well digging on airport property. (Had never seen one anywhere before, let alone in such a bizarre location.)  The second was the stifling heat, which soaked my shirt while I waited for the van to the rental car office.  I’d been hot before but never like this.

And the heat never changed throughout my entire stay.  Triple figure digits running like a ticker tape across the television screen night after night, week after week.  Walking out of the hotel meant walking into a pizza oven.  The only saving grace were the pipes outside bars and restaurants spritzing a light mist of water onto their patio customers.  Another thing I’d never before seen.

I wasn’t in Oklahoma City to study the heat, though there was a constant “weather voice” similar to the interior monologue in Peter Gent’s novel North Dallas Forty where his protagonist’s football body aches always danced in his consciousness.  I was there because the lawyers, none of whom conspiracy theorists, had received reports that seemed to indicate some kind of Federal foreknowledge of the bombing.  They wanted me to discover whether there was any substantive evidence that the government either knew beforehand about the bombing or had actually initiated it. (The latter, something I never and still don’t believe.)

I worked with a local lawyer and his private detective, first to make sense out of all the initial conflicting television news reports which we reviewed: The suspect was an Arab looking man, there was more bombs planted inside the building, the truck bomb had done all the damage, the truck bomb couldn’t have done all that damage, there were one?, two?, three? men in the truck—one contradiction after another.

Despite the pigfuck of reporters who converged on the city the day of the bombing, all anyone actually knew was they were watching a tragedy unfold before their eyes. Bodies were handed from one person to another as they were found in the rubble and taken from the building.  Children’s bodies as well as adults since the Murrah housed a daycare center.

When I got there months had passed.  The bodies had been buried, funerals and memorial services were over.  In fact, by the time I arrived, the building had already been demolished and a chain-linked fence surrounded the city square block hole in ground.  Everywhere you looked, the fence was adorned with mementos of those who had died—flowers, dolls, and toys with people still adding to the assemblage.  It was another thing I had never seen—a huge, living, evolving memorial to human tragedy.  A smaller, but no less painful, dress rehearsal for Ground Zero.

The survivors and relatives of those who lost their lives on that April 19, 1995 had created this memorial.  And, during my investigation I interviewed a whole lot of them.  Indeed, it was the grandmother of a dead child who first contacted the lawyers.  She and her boyfriend had written a 200-page pamphlet that contained the most heinous accusations against the government.

I met with them early in my stay to go over each charge.  I had read the entire “book” and tabbed every assertion I felt needed support evidence if there was to be a viable case.  There were a ton of tabs.  As I began to make my request for evidence, tab after tab, the two of them grew increasingly angry until, after an hour or so, they threw me out of their house.  They also contacted the local lawyer and demanded I be run out of town and stop my investigation.  The local lawyer asked me what had happened so I showed him my tabbed copy, recounted my questions and their reactions.  To his credit, all he said was to take notes (which I’d been doing) and keep on keeping on.

And so I did and had the opportunity to talk with many, many more people about what had actually occurred before that morning, that morning, and the days, weeks, months after.  Although there were an incredible amount of contradictions, there was also enough hard information to keep me digging.  For example, the sheriff’s video tape of the entire day, which he began shooting about an hour after the bombing (and which I had the opportunity to study) showed a long break in the rescue effort during which people from the bomb squad removed all sorts of weapons and what looked like blocks of C4, a serious explosive.  Apparently, besides a daycare center, the building also housed an arsenal.   We’ll never know how many people died during that rescue “time out.”

We do know it was against the law to have an arsenal and daycare center in the same building.

But today’s post isn’t about the information I learned during my stay.  I’m writing about scorching heat and a blast of sorrow.  Truth was, it was a heart wrenching experience.  Truth was, whether the government had foreknowledge or not wouldn’t have brought peace to most people with whom I spoke.  These peoples’ lives had changed forever and nothing I found would bring back their old lives or those who they had lost.  Some had kept their children’s’ rooms as they were on the day of the bombing.  Some will never be able to enter a large building without terror.  Some won’t be able to work again.  And some will gut out the rest of their lives trying to put that horrific day behind.

Which may never happen.  Probably won’t.  Even though I wasn’t in Oklahoma City on bombing day, even though I wasn’t a victim and did not lose any relatives or children, when the temperature in Boston hits 90, I think of that summer and, in my own silent way, mourn their loss.

“Facing it, always facing it, that’s the way to get through. Face it.” Joseph Conrad

Case Closed

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The negotiations went on all day Friday and late into the night.  Then picked back up early Saturday morning:

“We can’t give you anything close to that much money.”

“And we can’t take anything near what you’re offering.”

“You got to be kidding—that’s more money than that family would see in a lifetime.”

“What’s important is what they will no longer see in their lifetimes–her husband, their father.”

“My bosses will kill me if I take them that number.”

“Your client actually killed my client’s husband.”

“This is it—take it or leave it.”

“My clients will fire me if I bring them that offer.  I guess we’re going to trial on Monday unless you come up with another decent chunk.”

A day and a half, sometimes with hours between the conversations, they finally hit our number.  We settled—but don’t think of it as “settled,” as in conceded.  It was almost half of the highest award ever given by a jury in that particular county.  And three times what the plaintiffs had hoped for.

Let me say right off the bat that money, no matter how much, is a piss poor substitute for a human life.  But there was no way of bringing back our client’s husband.  And now his widow at least has a chance to create a decent world for herself and her kids.  There is a sense of real accomplishment in that.

The bummer: the confidentiality agreement signed upon settlement means that the doctor’s gross negligence, the guy who caused her husband’s death, won’t have a red mark next to his name.  It’s the price of buying a woman on disability with two special needs kids a better life, but nonetheless a tough pill to swallow. I only hope his near miss will teach him something about being thorough whenever someone else’s life is in his hands.  But that’s only a hope

So I’m home sitting at my desk, tired as hell.  Yeah, I know, I thought I’d be gone for a good two weeks and ended up back here after just a few days.  Man, did I overpack.  Yet, from the moment the team met on Wednesday through the two days and nights that followed, we continued prepare for trial despite the negotiations.   Which, as usual, meant long hours and little sleep.  I’m getting a little old for this.

Of course I’m glad to be home.  And happy we got a settlement for the family that we may not have gotten with a trial.  Over the years, I’ve learned that trials are very mercurial.  They don’t just hinge upon “the facts,” certainly not justice, or even the law.  Like plays or Olympic meets or the NBA playoffs, talented participants can have a bad day, or the ensemble of players on the team may not work in sync as they usually do.  And just like in sports, the judge may make decisions along the way that hamper your game plan or take away too many of your points.  And the nature of the population of a particular place, city, or county cannot be underestimated in these anti-plaintiff times.

Nevertheless, there’s a legal malady I sometimes feel: trial interruptus.   Months of research, strategy, legal motions, legal briefs, depositions, and focus groups–all geared toward this particular court room, toward this particular judge, toward the particular type of people who would serve on the jury–everything on the cutting room floor.  All that time and energy, that forward motion, stopped at the last minute.  Well, that’s happened to me before, and undoubtedly will happen again.  But we were able to give a family who had run out of chances another shot.  That satisfaction remains.

There’s an upcoming trial in September in that same Midwestern county and I’ll be back at it.  And once again I’ll try to send home posts from the front.  Who knows, there might even be more than two.  Or not.

Meanwhile, I’m unpacking my bags, shredding files, catching up with bills, and will pick up the saxophone for the first time in weeks.  Sure hope I remember how to get it to sing.

There are two things a person should never be angry at – what they can help, and what they cannot.
Plato

Trial And Tribulation Part II

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Yesterday was travel day.  Boston to a big Midwestern airport where I met two of our team–Don, one of the lead lawyers, and Mark who is Don’s right hand man.  And my partner when I work with the group.  I know they worked on their plane ride, but I slept during mine.  Lately every time I get on a plane I fall asleep before take-off.  Works well except when the pilot decides to announce our altitude and weather over the loudspeaker. I’d rather he just flew the damn thing.

The three of us then drove (my job) to another state to meet the second lead lawyer (Jim) at his house where right from the jump we sat around and created a new ‘to do’ list.  Wasn’t the first and won’t be the last.  In fact, it wasn’t even the last one of the day.  Two ‘to do’ lists after an entire day of travel was enough.  Dinner, motel, bourbon, and sleep.

We met at Jim’s office today to start working on the ‘to do’ list.  Mark and I were responsible for going through the jury pool questionnaires which this particular court allows the attorneys from both sides to have about six or seven days before the trial.  You can’t believe what a gift that is for a jury consultant and/or the attorneys.  Beats getting them twenty minutes before picking ’em.  We were also responsible for meeting our client to set up a prep schedule for the tough cross examination we expect–despite the reality that the case has nothing to do with her, but the behavior of the doctor who ignored her husband’s symptoms which led to his death.

That’s how it works.  If you don’t have a case, make the plaintiff look like shit and hope it sticks with the jury. Sad to say, it succeeds more than I’d like to imagine.

But first the jury pool.  Mark and I spent the entire morning sorting each individual into three piles–like, maybe, don’t like.  Although the information on the questionnaire was minimal, we cross-referenced the little we had with a juror profile that we wanted.  That profile had been developed over the past couple of weeks based upon who we thought might be willing to be objective and not automatically assume the doctor did right.  Like I mentioned in my last post, this is a very conservative county and most of the people here dislike lawsuits, especially against doctors.

But it should be pretty obvious that jury selection ain’t a science–no matter what the book writing jury consultants say.  It’s about half a foot better than sticking a pin in The Racing Form to see who’ll win the third.  It jumps up another six inches after voir dire and six more after the lawyers meet with individual jurors at a sidebar with the judge. Problem is, jury consultants are rarely, if ever, allowed to join in those conferences.

But it is what it is and Mark and I were at least able to give the lawyers ideas and information with which they could work.

While we poured over the jury pool, our lead lawyers were in another room.  Don was totally engrossed in writing his examination of the doctor and Jim was bouncing between the voir dire questions and dealing with settlement offers from the defense.  Although nothing has been decided both sides are within spitting difference.  All in all, a busy, tiring, productive day that included Mark and my meeting with the plaintiff to set up that prep schedule for the next three days.

Right now my attitude toward the defense is Toches ahfen tish! – Put up or shut up!! (Literally, asses on the table!)

More to come.

Trial And Tribulation

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Yes, I know I usually just post on Mondays, but sometimes things change.  I’ve written before about the years I’ve spent working the psychological and strategic edges of legal trials.  I thought it might be interesting to give intermittent updates about the one that’s just about to begin.  This experiment, however, might be nipped in the bud.  Even though I have already changed specific names, places and other identifying features, it might not be possible for me to write about this due to rules and regulations.  I will check as soon as I meet up with the rest of the team.

I’m hoping to send these posts though my website, www.zacharykleinonline.com, and Facebook.  Even if allowed, I can’t promise a specific number of reports.  Trials like this one quickly become all-consuming with eighteen-hour workdays (do the math to get an idea of the time we end up with for sleep and showers).  And if this is a no go, I’ll continue with my regular Monday appearances, though they will probably published late Sunday nights while I’m away.

Today I fly to a small Midwestern town for a wrongful death case that was initiated in 2010.  The county in which it’s being tried is quite conservative with a definite bias against lawsuits.  And plaintiffs.  Especially a case against a doctor that works in the county’s major medical center.

Truth be told, our legal team usually isn’t comfortable suing a doctor either.  In this case, however, the diagnosing doctor egregiously ignored signs and symptoms that very well could have saved his patient’s life if he bothered to follow his and his nurse’s notes.  The result was that a family man, barely in his 40s, was discharged from the hospital and died the next morning.

It’s always difficult going into battle as a long-shot. First, it takes an enormous amount of preparation (we’re meeting in the town five days early just to finalize our game plan).  We’ve already spent two full weekends running focus groups in another Midwestern town.  Those meetings gave us some very useful information but confirmed our role as the underdog.

And don’t forget, in plaintiff law, a loss means that every penny spent on expenses and every bit of time that has been devoted to the case (months and months of it for this one) is lost unless we overcome the odds.

So why pick up the slingshot and aim at the giant?  Throughout all the time I’ve worked with this team, we’ve looked at every case with the client as our first priority. And once we accept a case, we stick to our commitment–sometimes against our own best interests. This quixotic commitment has kept me packing my bags (and I don’t even like to fly) to be with the group again.

(Hopefully more to come.)

Where The Hell You Been?

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One of the questions people who comment here keep asking me is what I’ve been doing since I stopped writing about eighteen years ago.

To be honest, the first year after I pulled my fourth Matt Jacob manuscript from Random House was mostly spent on the couch, depressed, watching television (depressed enough to watch daytime tv as well).  I knew I didn’t want to return to my former work as a therapist, but had no inkling of what direction to take.  Not a real happy dance through the park.

Henry Miller once wrote (and I’m paraphrasing) that when you’re down to your last dime, you walk to the mailbox and, bingo, there’s a check.  (Were that to be true for most people.)

Well, I got lucky.  My friend Ron Simon, (and my blood brother) the lawyer who wrangled me ouf the the Random House contract, was the present in the mailbox.  He called and asked if I’d like to help with a trial he was doing for a man who died from liver failure due to workplace toxins at a uranium enrichment plant.  Even though I had no idea how I might be useful, I jumped on the offer and a plane and hightailed it to Piketon, Ohio, where the plant and trial were located.

It quickly became clear I had a fair amount to offer.  I helped write and rehearse the opening, taught  lay witnesses how to speak to jurors, even prepped some of our experts about the pitfalls of using “fancyspeak.”  But most importantly, I was allowed to sit in on jury selection, which was my first step toward becoming a competent profiler and jury consultant.

Although we lost the trial, we won the war.  Ron was able to work out a deal with the defendants that provided the widow with a substantial amount of money. (I have no idea how he pulled that off).  I still keep his widow’s thank-you letter tacked to my office wall.

Apparently I provided enough help for Ron to ask me to join his team as a “litigation consultant.”  I’m not sure whether the term even existed before, but it did now and I had enjoyed all the work and time in Piketon.

Thus began a great adventure that had me commuting from Boston to D.C. where Ron had his office.  At the same time I put in enormous time studying profiling and jury selection, areas i was most interested in and for which i could my lean on my background as a therapist.  I was excited by this new turn in life.

For my first few years as a “litigation consultant,” we worked on a number of local D.C. cases.  We won a wrongful death suit against the city–the deceased, an FBI agent shot by a man who wasn’t “wanded,” searched, or asked to walk through the metal detectors that were situated at the government building doorways where the female agent worked.  We also forced the Washington D.C. Metropolitan Area Transit Authority to repair a large number of poor people’s houses they had severely damaged while constructing three new subway stations in a low income neighborhood.  This situation had as much to do with community organizing (another part of my background from when I lived in Chicago) as it did with legal pressure and negotiations.

But the most poignant circumstance during those early years came when one of Ron’s closest friends’ son died in the passenger seat of a recklessly speeding car driven by his girlfriend who survived.  Initially the parents were intent on a wrongful death lawsuit, but Ron understood they were really looking for emotional closure rather than money.  We asked if they’d be willing to sit down with the other family and try to talk things out.  Eventually they agreed, but the presiding judge initially refused to let me handle the mediation since I had no standing with the court. Ron fought (furiously, as he usually does) pointing out my background as a therapist and someone who had mediated a fair number of divorces.  Finally the judge relented since, by then, both families wanted me to facilitate.

Which turned out to be a very long, sad, painful eight hours.  Hours where the anguish of losing a child, guilt about responsibility, rage, rationality, all had a turn at the podium.  I’m grateful to be able to say that when the day was finished, closure had begun to finally take place, and the lawsuit was dropped.  It was gratifying to watch family members holding hands on their way back to their cars.  To top it off, the judge apologized to me for his original stubbornness and said he wished he knew about me a few months earlier when his niece had died in a similar situation.  His family members were still going at it, long past the point mediation could even be suggested.

Somewhere around that time I realized I could put all my prior professional skills to work.  I’d had extensive training leading different type groups so I studied and began running focus groups for particular cases.  I also recognized that jurors anticipated participating in trials that were like what they saw on television.  Clear, everybody testifying in sequential order, the judge acting as a kindly father figure to whom they could turn for answers–most of which does not happen at a real civil trial.  But more importantly, jurors expected stories—and the classic story arc they have seen in movies and on television.

Well, I was a pretty good storyteller and began working not only with Ron’s firm, but other lawyers whose ethics I respected.  I began to teach how to structure cases in ways that not only told a story, but told it in a manner that allowed for normal trial disruptions and recesses.  Hell, I even had lawyers read books on how to write screenplays.

Frankly, it was a gas to fuse my previous careers and use them to further that which I believed in.  But even as I enjoyed the work, the good we were sometimes able to do, the relationships with both lawyers and clients, the unusual experiences (I spent six weeks investigating the Oklahoma City bombing one summer), I still missed the arts.  Which was why I began to learn to play the saxophone.  And now, at this juncture of my life, it’s close to time to move on again.

And this time the change is coming without the couch and the depression that came with it.

In today’s world I have the opportunity to control my books from the ground up and I intend to try.  I won’t completely leave my law work behind—I’ll always love running focus groups and helping prep people who are fighting the good fight–but my focus is turning toward writing.

But this time I’ll take my professional past along with me.  You can bet your ass that the coined concept, “litigation consultation” appears as a new expression, and that my work with Ron will somehow be woven into my new novels.