California Fire And Life

89

"You're a good claims investigator, aren't you, Mr. Smith?"

Tom Casey's first question in his cross-examination of Jack.

A question known in the cross-exam business as an "entry question." Which, just like an entry wound, can be small and even painless.

And it's the smart move, Jack thinks, which is just what you'd expect from Casey. It's smart not to attack me right away, because the jury likes me right now, and Casey doesn't want to antagonize them by attacking me too soon. So he'll lay back and set the trap.

"I hope I'm a good claims adjuster," Jack says.

Cross-exam witness rule number one: Try to answer in complete sentences, not just yes or no. Rule number two: Use your own language, not the lawyer's.

Casey taught him this stuff over the years. That the lawyer's real purpose in a cross-exam is for the lawyer to testify, and just get the witness to nod and shake his head like one of those bobble-head dogs in the rear window of a car.

"Cross-exam," Casey has lectured, "is a 'dig me' game. The lawyer wants to strut his stuff in front of the jury. He wants to show how smart he is, how right he is. Dig me."

Now Casey asks, "And part of adjusting claims is investigating the claim, right?"

"Yes," Jack says. "We need to find out what happened, what is damaged or lost, and how much it will cost to repair and replace."

"And the reason you need to find out what happened," Casey says, "is so that you can determine if you are even going to honor the claim in the first place, isn't that right?"

"That's one of the reasons."

"So do you consider yourself a good investigator?"

Knowing that Jack is going to answer more or less yes. If he answers no, he's screwed. If he answers yes, he's another step closer to the ambush.

But there's no choice given the question.

"Yes, I think I do a good job."

"And part of doing a good job is performing a thorough investigation, right?"

They both know the game here. Casey's trying to get Jack to set a standard for himself, a bar that he'll have to jump over down the line. Casey wants to set it as high as possible.

So Jack answers, "We need to find the facts that will let us make a reasonable decision."

"You need to carefully examine all the facts around a loss and make a decision based on your analysis, right?"

"We need to examine all the relevant facts," Jack says.

"So finding and examining all the relevant facts is what makes a good claims investigation?"

"Yes."

"So it stands to reason, doesn't it… I mean, you'd agree with me that if you didn't consider all the relevant facts, you'd have a bad claims investigation, wouldn't you?"

Jack says, "I'd want to consider all the relevant facts."

"And did you do a good job on this investigation, Mr. Smith?"

There's no playing around with that question, Jack thinks. It's an ultimate question, a barn burner. You say anything but yes, the case is over.

"Yes, I did."

"You considered all the relevant facts before you made the decision to deny my client's claim?"

Jack can feel the bullet going in, but there isn't a damn thing he can do about it.

"I believe so," he says.

"Okay," Casey says. "Did you know at the time you made the decision that the Sheriff's fire inspector had taken debris samples from the house?"

"No."

"So you didn't consider that fact, did you?"

"The inspector told me on the first visit to the house that he had already established a cause and origin. He said nothing about taking samples so I presumed that he hadn't done that."

Casey pauses, feigns considering the response, then asks, "Was that a no? 'No, I didn't consider that'?"

"I wasn't aware at that time that he had taken samples."

"So you couldn't have considered it, could you?"

"No."

"Are debris samples relevant?" Casey asks, knowing that Jack has no choice but to say yes, because his side of the case put on an expert witness to testify about them, and Jack has already said that they were "significant."

"Yes."

"Okay," Casey says. He turns to face the jury as he asks, "Then you couldn't have been aware at the time you made the decision to deny my client's claim that the debris samples taken by the Sheriff's fire inspector tested negative for traces of accelerants, isn't that right?"

"I was not shown those results."

"Did you ask for them?"

"No."

"Isn't that something that would have been important for you to know?" Casey asks. "Would that have been 'relevant'?"

Son of a bitch is taking my own word and beating me over the head with it. Why the hell did I say 'relevant'? Then again, what the hell else could I have said?

"I would have preferred that the inspector share them with me, yes," Jack says. "But he didn't. We weren't made aware of them until after the suit was filed."

"So you didn't consider that fact?" Casey asks. "Is that your answer?"

"I didn't consider those tests."

"Or the results."

"Or the results."

Casey takes a marker from his pocket and crosses out the positive debris sample item on the chart.

Looks at the jury, looks back at Jack.

"Now," he says, "we heard you give a lot of testimony on Mr. White's financial woes. Yup, here it is on your chart. The mortgage, the $600,000 balloon payment, the credit card bills… At the time you made your decision, were you aware that Mr. White had paid off the entire $600,000 balloon payment?"

"At the time I made the decision, he hadn't."

"So you didn't consider that, did you?"

"No."

"Would that have been relevant for you to know?"

"It's something I would have considered."

Casey crosses out the $600,000 balloon payment item on the chart.

"Did you know that he's current with his credit card bills?"

"No."

Cross off.

"That he's current with the mortgage on his mother's home?"

"No."

Cross off.

And the jury's getting unhappy. Jack can see them pushing the joysticks down.

In the observation room, Reinhardt looks over at Goddamn Billy and asks, "What the hell kind of claims investigations are you guys doing down here?"

Casey asks, "That he has over $1 million in liquid assets in his various accounts?"

Come on, Jack thinks, fight back.

"Again," he says, "these were all things we learned only after the suit was filed."

"So that's a no, isn't it?"

"These were things-"

"Yes or no?"

"-that we learned-"

Mallon says, "Please just answer yes or no, Mr. Smith."

"No."

Casey crosses the item off.

"How about the tax liens?" Casey asks. "Did you know that he paid those off?"

"No."

"The divorce," Casey says, "which hadn't happened yet. Did you consider the possibility of a reconciliation?"

"No."

"Would it have been relevant to your investigation, if indeed the Whites were trying to reconcile?"

"They weren't trying to reconcile."

"That's not what I asked you, Mr. Smith," Casey snaps. He can get tougher with Jack now because he senses the jury is turning. "I asked you whether that information would have been relevant."

"I would have considered it."

"But you didn't ask, did you?"

"I had information indicating that-"

"You didn't ask, did you?"

"Just answer the question, Mr. Smith," Mallon says.

"No, I did not ask."

Casey crosses off the alimony and divorce items.

The whole MOTIVE column is crossed out.

"Opportunity," Casey says. "You've testified that in your opinion, Mr. White was the only person who had the exclusive opportunity to set this fire. Did you look for anyone else?"

"There was no information to point to anyone else."

"That's a no?"

"Yes, that's a no."

"Did Mrs. White have a boyfriend?"

"I had no information to suggest that she had."

"So you didn't consider that, did you?"

"No."

"Wouldn't it have been important to you to know that?" Casey asks, "Wouldn't that have been a relevant fact, the possibility that someone else was in the house – in the bedroom with Mrs. White the night of the fire, the night of her death?"

"Because Mr. White never mentioned it, I had-"

Casey sighs. "Once again, Mr. Smith, that is not the question I asked you. The question I asked you was whether such information might have been relevant to your thorough, fair investigation."

"I asked Mrs. White's sister whether it was possible that the deceased was having an affair."

"Her sister," Casey says. "And what did she tell you?"

"She said that Mrs. White had no boyfriend."

"Mrs. White's sister," Casey asks. "Wasn't she the next beneficiary on the life insurance policy?"

"Yes."

"If Mr. White were found responsible for his wife's death, her sister stood to gain $250,000, isn't that right?"

"That would be correct."

"Did you ever ask her where she was the night of the fire?"

"Yes, I did."

"And what did she tell you?"

"That she was at home. About forty miles away."

"And did she offer anyone who could corroborate her alibi?"

"No. She was alone."

"But you believed her, right?"

Jack says, "I had no reason to disbelieve her."

"Right," Casey says. "By the way, did you ask her these questions when she spent the night at your condo?"

Audible gasp from the jury.

Audible moan in the observation room.

ProCon numbers plunge into the negatives.

VP Claims looks at Goddamn Billy like he wants to kill him.

Peters jumps to her feet.

"Objection! Lacks-"

"I withdraw that question," Casey says. Then he asks, "Isn't it true that the sister spent the night with you?"

"On my couch, yes."

"On your couch," Casey repeats. "Did you ask anyone else – friends, neighbors – whether Mrs. White was having an affair?"

"No."

"You never asked Mr. White and he didn't volunteer, isn't that correct?"

"Yes."

"So you didn't even consider that possibility, did you, Mr. Smith?"

"Yes, I did. I considered it very improbable."

"Right," Casey says, "because Mr. White had all that motive"

Casey pauses for a second to let it sink in with the jury. Then he says, "Now, you've told us that the security guard at the gate of the complex where Mr. White was living saw him come in at a quarter to five, correct?"

"Yes."

"He told you that."

"Yes."

"But you also saw a sworn affidavit from the guard – Mr. Derochik – affirming that he did not see Mr. White come in at 4:45 or any other time, isn't that right?"

The jurors get busy with the joysticks.

Jack says, "Mr. White presented that statement only after we had denied the claim."

"Oh," Casey says. "But we only have your word as to what the guard told you, isn't that right?"

"That's right."

"And you disregarded Mr. Derochik's sworn statement, didn't you?"

"I didn't consider it truthful."

"I see."

He crosses out the items under OPPORTUNITY.

Then he goes for the exit question. And just like with a bullet, it's the exit wound that sprays the blood and flesh and bits of vital organs all over the wall.

"So," Casey says, "you didn't find out about the clean samples, you didn't find out about the mortgage being paid off, you didn't find out about the credit cards being up-to-date, you didn't find out about the bank balance being in excess of $1 million, you didn't find out about a reconciliation, you didn't find out about the lover, and you never considered the sister as a potential suspect. Having failed to consider any of these highly relevant facts, do you still think that you did a good job on this investigation?"

And just like the entry question, he doesn't care if Jack answers yes or no. It doesn't matter, because either way Jack looks bad.

"Yes, I do," Jack says.

Except he doesn't look so bad.

Casey knows it. He can tell without seeing the monitor with its spikes. He can see it just by looking at the jury.

They don't know what to think. They haven't made up their minds.

Casey knows he's fought to a stalemate.

Which just won't do.

So he has to play a card he really doesn't want to play.