With a sharp coldness in his voice that
made the plaintiff's expert nurse in the witness chair jerk her head around to
look at him, Judge Jack Tenner emphatically instructed her to stop testifying;
then he leaned over his bench with his left hand extended, jabbing it in the
direction of Big Mike. His massive face was framed by a broad forehead topped
with soft, white hair, with a strong Semitic nose and dark spaniel eyes. His
thick cheeks were flushed and there was a noticeable trembling in his hand.
"You know there's no basis in evidence for her to give that opinion and
you put her up to it," he bawled.
Mike, standing at the far
end of the jury box, spread his arms in front of him and turned up the palms of
his hands in a gesture of innocence which was belied by the faint shade of
insolence on his face. He wore a pale, grey suit and a solid silk tie and stood
six feet tall in black alligator cowboy boots. He gave the impression of crude
nonchalance, a vibrating ego, and a keen mind for business.
The stir had begun when I
rose from the counsel table and overrode the nurse's voice—"Oh please,
Your Honor, that's not fair," I had said in an exasperated tone, my face
registering wounded disappointment as I turned a quarter way toward the jury.
Mike had presented the nurse as a rehabilitation expert and in reply to the
question—"How will Eddie do?"—she had launched into a speech about
the deficiencies of care she found in the nursing home where Eddie was housed.
I cut her off as she was telling the jury that if Eddie wasn't moved quickly to
a more expensive facility he would die.
Judge Tenner wagged his
trembling hand, signalling us to come forward to the side bar of the bench. We
trooped in single file to the opposite side of the bench from the witness chair
and the jury box and joined the court reporter, who had risen from her station
at the base of the bench and slipped past the counsel tables and preceded us
down the aisle behind the clerk's roll top desk. As we came together at
the corner of the bench, Judge Tenner swiveled his chair to meet us, and,
throwing Mike a disgusted look through his owlish black-framed glasses, leaned
down and said to me: "Do you want a mistrial?"
I stared at him, saying
nothing. A mistrial? Of the forty-three jury cases I had tried to verdict before that moment, two of them had been declared mistrials—but only because the jury
had been unable to agree on a verdict. Yet, here, in the middle of a four week
trial, Judge Tenner was offering me a mistrial, just because a wicked
curve had been thrown at my head?
I looked away from Judge
Tenner, past Mike, whose face was now in a frown, past the court clerk at his
roll-top desk, and surveyed the courtroom. The defendant David Trombley, my
ostensible client, was asleep in his chair at the counsel table. Seated behind
him, in the gallery, Eddie's parents were watching me intently. In seats close
to the courtroom doors, several anonymous spectators were whispering in a
huddle. I glanced at the red motorcycle propped on its kick stand in the space
between the bench and counsel tables, then to the easel by the witness stand,
holding a drawing depicting the trauma to Eddie's brain, and over to the model
I had had set up along the jury box rail; it recreated in miniature the residential
street Eddie had driven down the day he entered his vegetative state. Finally,
I looked upon the twelve jurors and the four alternatives who were sitting
quietly in their seats, their collective eyes fixed steadily on me.
I felt there was a bond
between us. The threads of it began in voir dire, became entwined in opening
statement, and were strengthened to bands through two weeks of
cross-examinations. It was a bond of trust that I would never lie or dissemble,
only show them the truth. I had driven Mike's experts back from their original
positions with my art, but I knew the truth was that Eddie was the innocent
victim of David's negligence.
My eyes flicked back to
Judge Tenner's face. With his elbow resting on the bench top, his head cocked,
he was holding the hinge of his glasses waiting for my answer. Still I said
nothing, my mind racing to understand. I had been in his courtroom twice before:
once, I had made a fatal error in a leg-off case being tried in another
courtroom. An impromptu settlement conference was arranged in his chambers
where I had stood mute against the bookcase, while plaintiff's counsel and the
insurance adjuster settled for $1 million; then, later, I tried an insurance
bad faith case in his courtroom. The jury gave an eighty-nine year old
plaintiff a verdict of $500,000, minutes after his lawyer had scoffed at the
insurer's offer of $2.5 million.
In these experiences I came
to know Judge Tenner's nature; he was against the rich and powerful and for the
underdog. Coming to Los Angeles, as a Jewish refugee from the Ukraine, in the
1930s, he harbored a deep-seeded anger against racial prejudice which drove him
to challenge the social status quo of the 1940s. Ignoring the clamor of
prejudice, he publicly aligned himself with African-Americans and fought with
them to obtain their equal access to White middle class housing and supported
their entry into the legal profession. In the late 1940s, when he first started
out in law practice, he represented murderers and communists in court; by the
1960s, he was a name partner in an established firm of plaintiffs' lawyers,
representing railroad workers and injured victims generally, continuing in that
practice until he came upon the superior court bench in 1980.
Knowing his heart was
against the insurance companies and that he was so long aligned with the
plaintiffs' bar—it was well known he chummed with the big dogs and had no
qualms about being entertained by them—I was amazed that, because of one foul
in this high-stakes case, he would kick Mike out of his courtroom.
"She hurt you
bad," I heard Judge Tenner say. I nodded and looked away from him again,
my gaze drawn to Eddie's parents sitting in their chairs. Four years ago their
son had ridden a motorcycle into the side of a Datsun David was turning in a quiet
residential street. Now he was a paraplegic, wheeled
into the courtroom and displayed to the jury as an exhibit—his father tickling
his ear and pointing to the reflexive grin that came upon Eddie's face, as a
sign of recognition. But I knew my neurologist coming to the witness stand
would not support this, that the jury would realize the truth: The hematoma
that had swelled inside Eddie's skull, had utterly destroyed his brain's
cognition. He had no more awareness now of the world around him and his place
in it, than did a flower.
The file had come to me
years after suit was filed; the adjusters at the Sentry Insurance Companies had
dumped it in my lap after discovery was closed and trial was scheduled to
begin. They had issued a $15,000 liability policy to David covering the
operation of the Datsun and when Mike presented Eddie's claim, in response to
his $15,000 demand, they had offered $13,500. Now, there was no policy limit
and they made it plain I had to win—there was a school guard who had
seen Eddie riding the motorcycle without a helmet and speeding down the street,
and there was a passenger in the back seat of the Datsun who was certain he
heard the clicking noise of the Datsun's turn signal, they said. David had
merely been turning slowly with his blinker on across the center line into a
driveway, when out of the blue—coming from behind—Eddie's motorcycle had
slammed into the left front side of David's car, and Eddie had sailed into the
sky to embrace his new life as a flower.
Shortly before trial, I was
standing in the main conference room at Sentry's home office in Wisconsin.
There were sixteen chairs spaced around the long thick table that spanned the
room from one end to the other. The chairs were occupied by Sentry people—the
claims vice-president, the national claims manager, and two assistants—by
representatives of the long tier of companies that were connected to Sentry by
reinsurance treaties, and by representatives of the company that insured Sentry
for bad faith liability arising out of its claim handling practices. Behind me
there was a blackboard and, as I explained their losing case to them, I wrote
in large capital letters: "FLIPPED A U-TURN" and drew an arrow in an
arc. Above this, I wrote my assessment of the probable verdict—"$5 to $8
From his seat in a deep
leather chair at the top of the table, the vice president held up an
admonishing hand. He was a man of middle height, partially bald with a pale
face and narrow eyes and he spoke in a bristling tone of voice. "But the
school guard was right there at the curb. He says the motorcycle was going 50
"Yes," I said,
taking a step toward him, "but the plaintiff's lawyer has a statement
written in the school guard's hand, obtained a few days after the accident, the
contents of which he refuses to disclose. The statement will probably impeach
the school guard's testimony of what he saw and, in any event, the physical
evidence does not corroborate his statement of speed."
Shaking his head, the vice
president leaned forward as the room buzzed with the sound of disgruntled
voices. "Where do you get the Datsun flipping a U-turn?" He asked
with an incredulous look on his face. "The insured says he was driving slowly
down the street with his turn signal ticking, and turned left into a driveway
to turn around and he's backed up by the passengers."
"Not quite all the
passengers," I replied. "The police report lists only two passengers,
who prove to be the insured's friends. Now we know there was a third passenger
and he is not the insured's friend. He did not identify himself to the police
at the scene because he was there to buy marijuana. He says the Datsun was
parked at the curb and from that position the insured flipped a U-turn."
With this, I looked up and
down the table and saw only pale, glum faces. From the other end of the table,
one of the reinsurers spoke up. "What about the contributory negligence of
not wearing a helmet?"
I turned away from the vice
president and moved toward the speaker with my hands outspread. "The
physical evidence shows plainly that the velocity of the motorcycle at impact
was 15 to 20 mph and the experts will agree that the crush material of a standard
helmet, when the victim hits the pavement head first at that speed, will not
prevent the head injury that occurred in this case."
A pencil hit the conference
table with a clatter. Turning in the direction of the noise, I saw a pudgy,
red-faced fellow in a blue three piece suit fold his arms across his chest.
There was an angry expression on his face. "Christ! This is a nightmare,"
he said, in a clipped Boston brogue.
I thought of telling him the
truth—an old man going home for lunch had driven his big Buick station wagon
down the residential street and pulled to the curb to park. David, parked in
his Datsun at the curb in front of him, had looked in his side mirror, saw the
Buick slow to park and steered into the travel lanes to turn around while
Eddie, screened from David by the Buick, suddenly found himself flying through
the air. Combing through the file in preparation for trial, I had seen the
Buick in police photos taken of the scene and had read a neighbor's statement
placing the Buick in front of Eddie on the street. I went to the accident scene
and canvassed the block until I found the old man. He lived across the street
from where he customarily parked.
But there was no point to
it. It would do the insurance companies no good if I brought the old man to
court. The simple truth was that David, a teenager, had failed to wait to see
the road was clear behind the Buick before starting his U-Turn from the curb;
and Eddie, also a teenager, hadn't any fair warning that David would suddenly
turn. It was just an accident and responsibility for it fell squarely on David
sleeping in his chair.
Standing by Judge Tenner's
bench, I looked hard at Mike. He was more keen, I thought, in the business of
getting the cases than in trying them. He wasn't beating me, the facts were
beating me. There was no way to hide them, no way to submerge them in the
rubble of myriad circumstances, flummox the jury with rapid-fire questions,
distract them from the truth with a flamenco. No, if I tried to trick them into
thinking it was Eddie's fault, they would turn against me and reject my
position that there was no basis for awarding Eddie damages for a life time of
pain and suffering. The verdict would be twenty million instead of five.
Charles Bragg: The Advocate Sells His Case
I put my hands in the
pockets of my coat and looked up at Judge Tenner with a sigh. I knew what was
in his mind. There is no place like an American trial court in all the world; it
has a righteous tension all its own. Justice is what the jury says it is and
the game of justice is played hard. But in Judge Tenner's courtroom it had to
be played fair: the nurse had intentionally been used to infect the jury's
reason with sympathy; and it didn't matter to Judge Tenner which side had
gained the unfair advantage. He would not allow it. But I saw the foul would
help me, so I said to him, "Your Honor, let me try the case to a
Judge Tenner leaned back in
his chair and put his hand against his chin. A long moment passed. Then he
signed to the court reporter to resume her seat and he waved us lawyers away.
As Mike turned to follow me down the narrow aisle to the counsel tables, I
thought I heard Judge Tenner say to him: "Don't come in here again."