Solomon and Lord Drop Anchor

D E C E M B E R 1 9 8 8
1

When the witness hesitated, I drummed my pen impatiently against my legal pad. Made a show of it. Not that I was in a hurry. I had all day, all week. The Doctors’ Medical Insurance Trust pays by the hour and not minimum wage. Take your sweet time. The drum roll was only for effect, to remind the jury that the witness didn’t seem too sure of himself. And to make him squirm a bit, to rattle him.

First the pen clop-clop-clopping against the legal pad. Then the slow, purposeful walk toward the witness stand, let him feel me there as he fans through his papers looking for a lost report. Then the stare, the high-voltage Jake Lassiter laser beam stare. Melt him down.

I unbuttoned my dark suitcoat and hooked a thumb into my belt. Then I stood there, 220 pounds of ex-football player, ex-public defender, ex-a-lot-of-things, leaning against the faded walnut rail of the witness stand, home to a million sweaty palms.

Only forty seconds since the question was asked, but I wanted it to seem like hours. Make the jury soak up the silence. The only sounds were the whine of the air conditioning and the paper shuffling of the witness. Young lawyers sometimes make the mistake of filling that black hole, of clarifying the question or rephrasing it, inadvertently breathing life into the dead air that hangs like a shroud over a hostile witness. What folly. The witness is zipped up because he’s worried. He’s thinking, not about his answer, but of the reason for the question, trying to outthink you, trying to anticipate the next question. Let him stew in his own juice.

Another twenty seconds of silence. One juror yawned. Another sighed.

Judge Raymond Leonard looked up from the Daily Racing Form, a startled expression as if he just discovered he was lost. I nodded silently, assuring him there was no objection awaiting the wisdom that got him through night classes at Stetson Law School. The judge was a large man in his fifties, bald and moon-faced and partial to maroon robes instead of traditional black. History would never link him with Justices Marshall or Cardozo, but he was honest and let lawyers try their cases with little interference from the bench.

Earlier, at a sidebar conference, the judge suggested we recess at two-thirty each day. He could study the written motions in the afternoon, he said with a straight face, practically dusting off his binoculars for the last three races at Hialeah. A note on the bench said, “Hot Enough, Rivera up, 5-1, ninth race.” In truth, the judge was better at handicapping the horses than recognizing hearsay.

Another thirty seconds. Then a cleared throat, the sound of a train rumbling through a tunnel, and the white-haired witness spoke. “That depends,” Dr. Harvey Watkins said with a gravity usually reserved for State of the Union messages.

The jurors turned toward me, expectant looks. I widened my eyes, all but shouting, “Bullshit.” Then I worked up a small spider-to-the-fly smile and tried to figure out what the hell to ask next. What I wanted to say was, Three hundred bucks an hour, and the best you can do is “that depends.” One man is dead, my client is charged with malpractice, and you’re giving us the old softshoe, “that depends. ”

What I said was, “Let’s try it this way.” An exasperated tone, like a teacher trying to explain algebra to a chimpanzee. “When a surgeon is performing a laminectomy on the L3-L4 vertebrae, can he see what he’s doing with the rongeur, or does he go by feel?”

“As I said before, that depends,” Dr. Watkins said with excessive dignity. Like most hired guns, he could make a belch sound like a sonnet. White hair swept back, late sixties, retired chief of orthopedics at Orlando Presbyterian, he had been a good bone carpenter in his own right until he lost his nerves to an ice-filled river of Stolichnaya. Lately he talked for pay on the traveling malpractice circuit. Consultants, they call themselves. Whores, other doctors peg them. When I defended criminal cases, I thought my clients could win any lying contest at the county fair. Now I figure doctors run a dead heat with forgers and confidence men.

No use fighting it. Just suck it up and ask, “Depends on what?” Waiting for the worst now, asking an open-ended question on cross-examination.

“Depends on what point you’re talking about. Before you enter the disc space, you can see quite clearly. Then, once you lower the rongeur into it to remove the nucleus pulposus, the view changes. The disc space is very small, so of course, the rongeur is blocking your view.”

“Of course,” I said impatiently, as if I’d been waiting for that answer since Ponce de Leon landed on the coast. “So at that point you’re working blind?”

I wanted a yes. He knew that I wanted a yes. He’d rather face a hip replacement with a case of the shakes than give me a yes.

“I don’t know if I’d characterize it exactly that way…”

“But the surgeon can’t see what he’s doing at that point, can he?” Booming now, trying to force a good old-fashioned one-word answer. Come on, Dr. Harvey Wallbanger, the sooner you get off the stand, the sooner you’ll be in the air-conditioned shadows of Sally Russell’s Lounge across the street, cool clear liquid sliding down the throat to cleanse your godforsaken soul.

“You’re talking about a space maybe half a centimeter,” the doctor responded, letting his basso profundo fill the courtroom, not backing down a bit. “Of course you don’t have a clear view, but you keep your eye on the rongeur, to be aware of how far you insert it into the space. You feel for resistance at the back of the space and, of course, go no farther.”

“My point exactly, doctor. You’re watching the rongeur, you’re feeling inside the disc space for resistance. You’re operating blind, aren’t you? You and Dr. Salisbury and every orthopedic surgeon who’s ever removed a disc…”

“Objection! Argumentative and repetitious.” Dan Cefalo, the plaintiff’s lawyer, was on his feet now, hitching up his pants even as his shirttail flopped out. He fastened his third suitcoat button into the second hole. “Judge, Mr. Lassiter is making speeches again.”

Judge Leonard looked up again, unhappy to have his handicapping interrupted. Three to one he didn’t hear the objection, but a virtual lock that it would be sustained. The last objection was overruled, and Judge Leonard believed in the basic fairness of splitting the baby down the middle. It was easier to keep track if you just alternated your rulings, like a kid guessing on a true-false exam.

“Sustained,” the judge said, nodding toward me and cocking his head with curiosity when he looked at Cefalo, now thoroughly misbuttoned and hunched over the plaintiff’s table, a Quasimodo in plaid polyester. Then the judge handed a note to the court clerk, a young woman who sat poker-faced through tales of multiple homicides, scandalous divorces, and train wrecks. The clerk slipped the note to the bailiff, who left through the rear door that led to the judge’s chambers. There, enveloped in the musty smell of old law books never read much less understood, he would give the note to the judge’s secretary, who would call Blinky Blitstein and lay fifty across the board on Hot Enough.

“Your Honor, I’ll rephrase the question,” I said, as if I had a choice. “Doctor, I think you would agree that the rongeur blocks your view of the disc space, correct?”

“Substantially.”

A twenty-five-cent word. What does it take to get a yes out of this guy? Dr. Watkins let his tongue dart over his lips. Getting a little dry, are we? Eyes just a bit cloudy and bloodshot. Cefalo put you up at the Sonesta Beach, I bet. Room service probably brought up a bottle of Russia’s best. Maybe one of Finland’s too. A Winter War in a tenth-floor suite overlooking the Atlantic.

I walked to the rear of the courtroom so that the jury was between the witness stand and me. I wanted all eyes on Dr. Watkins as I broke him like a rotten mast in a gale.

“Doctor, isn’t it true that, because of the narrow disc space, any time a surgeon performs this kind of surgery, a known risk is that the rongeur will go too far, will pierce the aorta?”

“A risk? Of course, it’s a risk, but…”

“And that’s what happened here, the occurrence of that risk, that statistically will occur-”

“Objection! Your Honor, Mr. Lassiter refuses to permit the doctor to finish his answer. He’s interrupting.” This time Cefalo banged his knee on the plaintiff’s table as he stood up and his tie flopped out of his misbuttoned coat like the tongue of a thirsty dog. Most days Cefalo dressed as well as the next guy, but in trial he figured he gained sympathy by looking like a vagrant. He’d drop his drawers if it would win one juror’s vote. This day his suit was old and wrinkled and smelled like an overheated horse. But Dan Cefalo knew his stuff. Best to remember that or get blindsided when he transformed from Buddy Hackett to Gregory Peck in closing argument.

“Overruled,” the judge said without looking up.

Thank you, Nathan Detroit.

I took a few giant steps toward the witness stand, feeling my oats. I wanted to finish with a flourish. Dr. Watkins had nailed us hard on direct examination. Now just trying to get even, or close to it. I walked to the clerk’s table and picked up the stainless steel instrument that resembled a small, delicate pair of pliers. The clerk never looked up, leaving me staring into the top of her Afro. She was reading a paperback with a castle and a dark-eyed woman on the cover.

“Now, this rongeur, Plaintiff’s Exhibit Five, is the perfect instrument for removing the herniated disc material, isn’t it?”

“I don’t know if it’s perfect, but that’s what’s used.”

They’ll be examining his liver under a microscope before he’ll give a defense lawyer a yes. I walked to the rear of the courtroom, the doctor’s eyes tracking me, suspicion wrinkling his brow. He wouldn’t trust me with the petty cash.

“But perfect as it is for one job, it poses a real and known danger to the aorta, doesn’t it?”

Dr. Watkins smiled. The eyes seemed to clear. His chin thrust out and he shot a look at the jury, just to make sure they were paying attention.

“The rongeur poses no danger,” he said in deep, senatorial tones. “The surgeon who is too hasty or too rough or loses track of where he is, that’s the danger. A rongeur does not do the damage except in a most elementary way, the same way a gun kills, but it is the man pulling the trigger who is brought to justice. A surgeon who is negligent, that is the danger. It is professional negligence, or as you lawyers like to call it, malpractice, to damage the aorta while doing a laminectomy-”

“Your Honor!” I am much too loud, a wounded boar. “The witness is not being responsive. He is the one who is speech making for the benefit of the party that pays him royally.” Anything to distract the jury from my blood spilling across the floor. One question too many, the classic bozo move on cross.

Judge Leonard swiveled in his cushioned chair. “Is that an objection?”

I toted up the judge’s prior rulings like a blackjack player counting face cards. “Yes, Your Honor, I ask that the jury be instructed to disregard the witness’s self-serving soliloquy.”

“Sustained. The jury will disregard the last statement of the witness.”

Fat chance, the jurors figuring that anything they’re supposed to forget must be worth remembering. How to rescue the moment? I caught sight of Cefalo. If his smile were any wider, his uppers would fall out.

“No further questions are necessary, Your Honor,” I said with more than a touch of bravado. Then I swaggered to my seat, as if I had just vanquished the witness. I doubted the jury bought even a slice of it. Lassiter, why didn’t you shut up when you had the chance?

Ramrod straight, white hair in place, Dr. Watkins strode from the witness stand, pausing to nod graciously at the jury, a general admiring his troops. Then he walked by the plaintiff’s table, bowed toward Dan Cefalo and tenderly patted Mrs. Melanie Corrigan, the young widow, on the arm. As he passed me, he shook his head, ever so slightly, a compassionate look, as if this poor wretch of a mouthpiece couldn’t help it if he was on the wrong side and an incompetent boob to boot. What a pro. The jurors never took their eyes off him.

My eyes closed and behind them were visions of green hills and cool streams, where the courthouses were only for marriage licenses and real estate deeds. Then I wondered if it was too late to coach powder-puff football at a prep school in Vermont.