Thursday, April 10, 2003

SPARE THE ROD Those depositions

SPARE THE ROD

Those depositions usually lasted about a week.  I’d show up an hour or so early on the first day to get to know my client and prepare him - overwhelmingly, him - for the ordeal.  I had a pat rap that worked well; the firm assigned newbies to me so they could see how I handled the processs and the defense attorneys, of whom we usually confronted between three and 15.  But more typically it was just me and my client.  Scantily educated men in their latter years, who were already dealing with issues that severely challenged their self-esteem and self-perception, it was daunting for them to see so many attorneys arrayed against them.  But I was good at teaching them to use the ammo that they didn’t know they carried, at establishing myself as a weapon both of defense and offense on their behalf, and of demystifying the process. 

These guys were tradesmen in the construction crafts, painters and pipefitters and riggers and steamfitters and masons and laborers and all other manner of working men, all diagnosed one way or another with asbestos-related injuries, all suing any number of defendants - as many as 250 at a shot - for compensation for their respiratory weaknesses, heart conditions, cancers, and consequent infirmities.  They didn’t often feel good about bringing suit - they were used to relying on themselves and working their way through hard times by dint of brawn and sweat rather than by hiring a mealymouthed desk jockey to complain about things for them.  But by the time of their depos, those considerations were usually past.  They tended to come to me honestly disposed to try to help me help them as much as they could. 

Then, there was Rod.  My cursory review of his social security records led me to believe his case was thin, but he was the client and I went forth stoutheartedly to introduce myself to him. When I met him - late, he’d gotten the time and place both wrong - he was anxious to the verge of incontinence, jabbering and gesticulating.  He was a little guy with lank, greasy hair, shifty eyes, and a big scar from his upper lip to the base of his nose.  He wanted right away to lay out the ground rules for me.  He had it all figured out and was just getting started telling me what was what.

I stood up, shook his hand (strong and rough as any tradesman’s) and wished him well with his deposition - maybe he’d call me to tell me how it went.  That got his attention.  “You do this my way or you do it alone,” I told him.  He agreed sheepishly to my terms.  I was able to embark on my spiel. We went over the elements of his case, the process, the strategy, the players.  He was extremely anxious about his loss of consortium claim.  This was a count of the complaint on behalf of his wife (a woman I was quickly growing to pity) for her inability to have intimate relations with her husband on account of how the asbestos had damaged his vascular and pulmonary systems so badly that he was no longer able to function sexuallly. 

As I raised this subject, so to speak, he started freaking out.  He got up, pacing, sawing the air with his hands, interruping me, spewing an incoherent stream of logarrhea.  I slowed him down, told him we wouldn’t be getting there today, that we’d focus on his workplace exposure and the multifarous details of every job he’d ever had.  This calmed him down a bit.  Once he caught his breath, we entered the conference room for the deposition, now an hour and a half late. 

We were lucky in that I knew the eight or ten defense attorneys there and had a good working relationship with them.  They were a decent cross-section of humanity, just doing their jobs, as workmanlike as carpenters framing out an abattoir, but over time I had earned their respect and a certain latitude with them.  We sat and began.  Things quicly went south.  Rod started laying down rules for them as he had for me, then answering with windy narratives often unrelated to the pending question.  He spoke without reflection, interrupted questions with off-topic but harmful answers, and derailed discussions. 

It was already after noon and we’d gotten nowhere.  Rod’s memory was porus to the point of nonexistence, so he needed a lot of prompting and encouragement.  He was sweating and starting to smell pretty cheesy.  I kept calling breaks to refocus him, during which our relationship deepend into a paternal one, me being dad.  We were scheduled for four days; I could see that we wouldn’t be halfway done by then.  And I wanted out.  I told my firm after the first day that I’d complete the week’s work but they’d have to trade someone in for the next round. 

Three days later I said goodbye to Rod, lying when I told him he’d done well and had a decent case (he’d recalled nothing to identify any defendants at any of his jobsites, and many of them would be dismissed shortly.  He’d also volunteered substantial information on an adverse medical history and a long habit of smoking.) When he was scheduled to return to finish the job, he asked for me to be has attorney again and, despite assurances to me to the contrary, that’s who he got.  Wer dragged through another week of testimony that featured rambling descriptions of irrelevant work and non-asbestos-containing lung irritants. 

This case was a dog and Rod couldn’t open his mouth without making things worse, both legally and interpersonally.  He was confrontational.  He didn’t listen.  He misunderstood.  He whined.  Yet we continued.  After a few years of my life had been sacrified on his behalf (compressed into nine days of halting and frequently incoherent testimony), we got to the damages portion of his testimony.  We discussed the ways his injuries impaired him, the consequent limitations on his day-to-day activities.  He claimed extrordinary reductions in strength and stamina, but hadn’t been even minimally active prior to the onset of his symptoms so we couldn’t gauge how his injuries had changed his life.  But the end of the depo was in sight. 

Most of the defendants and their attorneys were gone by now - we were in a small conference room with four other lawyers and the court reporter.  It was late but none of us wanted to have to come back even one more time.  We were down to the final issue.  The lead questioner and I had worked together many times and I respected his professionalism.  I knew where he had to go next and, knowing Rod, I knew it wouldn’t be pretty.

“Sir, your complaint includes a claim on your wife’s behalf for loss of consortium.  Do you know what that means?"

“Objection, expert opinion, privilege, foundation.  You can answer."

“No.  No I don’t know what that means.” But already I could see his breath was coming in short hard rasps.  His face was growing flushed.  He knew what was happening.

“It means you’re suing my client because of some disruption in your intimate relations with your wife.  Can you tell us what kind of disruption you mean?"

Rod’s eyes grew beadier and more belligerant.  He turned on me.  “You stop this right now, Dan.  I’ve been through enough.  I’m not here to be humiliated.” I looked around at the attorneys and the court reporter.  The air in the wroom was thick with tension.  Rod was ready to embark on a tirade that promised to be more agitated than any we’d yet seen - his face was red and his mouth and throat were working to articulate utterances so anxiety-ridden he was having trouble gettting a handle on them. 

“Let’s go off,” I interjected.  Counsel sighed - these breaks could take a long time with Rod and it was already after seven.  The reporter grimaced and stretched her fingers.  Rod and I left the room.  In conference he found his voice - angry and piercing, a three-year-old in a man’s stunted body.  The complaint was winding up like the first tentative groan of an air raid siren.  I shut him off quick by slamming my palms fast and hard into the table in front of him. 

The sound carried like a rifle shot in the small room.  I’d exhausted all my cajoling skills, my logic, my calm persuasion, my avuncular camaraderie.  We were all too tired to play more games.  Now, for the first time, he was going to see me get angry.  Angry at him.  “You want to call this off?  Your wife’s case is over.  Think she’ll like hearing that?  What are you gonna tell her?  Have you even thought about it?  Or are jou just going to run out crying like a little girl?  Screw it.  I’m done with you.  You’ve ignored me, trashed every piece of advice I’ve given you.  You’ve made me look like a fool.  You want to lose this case.  This has all been for nothing.  Just don’t blame me for your failure.  And don’t blame those other lawyers.  Or your bosses, or your dad or anybody.  You’re a failure because you fail.  You do it to yourself.  You’ve wasted two weeks of my life.  I guess that means nothing to you but I could have been helping someone who was willing to work with me to win his case.  Not like you.  You walk out of this depo, you’re a loser.  None of us care - we’ll be just as happy to see the end of this.  But you’re gonna have a lot of time to think it over.  Think it over on the drive home, and while you’re explaining it to your wife, and when you’re lying in bed next to her in the dark doing nothing for the rest of your loser life.  Get up and walk out.  I’m sick of this."

Rod was looking at his atrophied lap.  When I paused he raised his eyes to me.  They were full of tears.  “You know what they did to me.  My surgery.  I can’t talk about it."

“These people are professionals.  They already have your medical records.  They know what’s been done - and they do not care.  They need to hear it from you; they need your story.  We need your testimony.  It’s like talking to a doctor, a mechanic.  But if they know you can’t speak for yourself they won’t settle and we’ll just dismiss your wife’s claim.  You’ve wasted enough of our time.  Stand up for yourself or run.  Now.  Your choice."

Rod was bawling.  “Let’s finish, Dan,” he choked out.  “I don’t want you to hate me.  I don’t want to be a loser.” We returned to the meeting room, which was somber and lurid with florescent lighting. 

Lead counsel quietly announced, “We’re back on.  There’s a question pending.  Woudl the reporter read it back?” Her fingers churned the keys for a few more moments and then she read the last bit of the record from before the break off the long ribbon of gibberish she extruded from her steno machine. 

Rod steeled himself and answered, “I can’t get it up.  Is that what you wanted to hear?  They put a prong in me so I could pretend I had a boner.  They cut my dick open and stuck a stick in it so I could do it.  But I’m too upset even to try any more.  I used to pleasure my wife every week.  It’s been three years now.  I’ve had a fake boner for almost a year.  It’s horrible.  Every time I see it or touch it I know it’s fake.  It makes me miserable.  Are you happy now?  Are you happy?” This last question was directed to me.  Tears ran down his face and his testimony was subsumed in sobs.  “Are we finished now?  Is that enough?"

Lead counsel checked around the table - no one wanted more.  “Yes, I think we’re done."

“Then this deposition is concluded,” I responded.  The reporter stopped typing, started gathering her materials and machines.  Defense counsel looked down, concentrating on the papers they were shuffling and stuffing into briefcases.  Rod wept openly.  I told him, “We’re done.” He bolted.  Usually I debriefed, congratulated, bid farewell to my clients after these things were over.  I had nothing to say to Rod and he didn’t want to hear anything from me.  I never heard about his case again and eventually left the firm, then the business.  One of those was more than enough for me.