The Arraignment

CHAPTER ELEVEN

Mid June and we are huddled in Adam Tolt’s walnut-paneled conference room.

“Glenda. Adam here. You can show them all in.” Tolt replaces the receiver in its cradle and settles against the high back of the tufted leather chair as he looks at me. We are seated against the glistening surface of the table in the executive conference room that adjoins his office. This is the holy of holies, the place where the firm’s management committee meets quarterly to chart the bottom line, where it doles out bonuses and inducts new partners into the fold, no doubt with secret handshakes.

“I’m gonna let you handle it,” says Tolt. He’s referring to the negotiations about to start.

“I’ll just make the introductions, and then if there’s anything I can do… well.” He makes an aristocratic gesture, a sweep with the back of one hand you might expect from a Venetian doge. His hand passes over the leather folder with its gold corners and the black Mont Blanc pen resting atop it like a sleek torpedo.

Tolt’s eyes study the door behind me as the fingers of one hand, adorned by a gold university ring, tap the tabletop in a drumroll one might expect as a prelude to an execution.

Adam has by instinct taken the place of honor at the head of the table. It is his turf. He does not think much of my chances here today, particularly in light of the intractable positions taken by the two women, Dana and Margaret Rush. Neither is willing to settle for less than two million, the full face amount of the policy on Nick’s life, though I suspect I could cause Dana to buckle if I pushed. I have not shared my arguments with Tolt. I am not sure whether I can trust him. So he will be hearing everything for the first time as I lay it out.

The door across from me opens, and I look up. Tolt’s administrative assistant plays usher, shepherding them in. The first face through the door is ruddy, red with rosacea, a man about six feet tall, well built, I would guess in his late forties, with close-cropped blond hair, combed over and parted on the left like a prairie banker. He wears a well-turned dark suit, power pinstripes for whatever psychological advantage it might provide. He studies me briefly through searing blue eyes offering nothing but the confidence of his grin, the kind you get from politicians feeling their oats and business types who have climbed over other bodies on the way to the top.

According to the playbook and the descriptions I have been given by Tolt, I am guessing that this is Luther Conover, senior adjuster and vice president for claims at Devon Insurance, the principal underwriter on the key-man policy for Nick’s life.

“Luther. Good to see you.” Tolt gets up out of his chair. “It’s been a while.”

“It has. Too long. When was the last time? I think it was up at the northern regionals when our board met. When was that? Two years ago?”

“Sounds right. How’s Julie and the kids?”

“Oh, they’re fine. The twins are headed to college next year.”

“No.” Adam loads his voice with doubt.

“Eighteen,” says Conover.

“I can’t believe that. They were just little things.” Tolt holds his hand at a level even with the tabletop. “It has been a while,” he says.

“Thank God for little favors,” says Conover. “It’s not that I don’t like to see you,” he says, “but I’m not sure my wallet can handle the stress.”

“Nonsense,” says Adam. “We always have a wonderful time. Besides, it’s not your money.”

“Yes, but your hands keep stretching my pockets out of shape.” Conover looks at me and laughs, the signal for me to join in. It’s all very cordial, chuckles all around. I have no idea what they’re talking about other than to gather that Tolt has put his own mark on Devon Insurance in the past.

“I want to introduce you to Paul Madriani.” Just like that Tolt acquaints Conover with the hand aimed at his other pocket.

We shake. He gives me the same solid grin he offered charging through the door, the once-over to assess the latest lawyer trying to shake him down. He quickly turns his attention back to Adam and they talk golf, kibitzing and quizzing each other on current handicaps.

“We’ll have to get you over to Temecula,” says Conover.

“Seems I only get to play these days when I’m on vacation,” says Adam.

“Where’s that?”

“Out at de Anza.”

“You have a membership?”

Tolt nods. “We bought a condo on the fourteenth fairway. We spend some time there.”

“How is Margo?”

“She’s good. Healthy. She keeps me in shape.”

“De Anza. That’s a little rich for my blood.” Conover looks again in my direction. “You play golf, Mr. Madriani?”

“Sorry to say it’s not one of my vices.”

“Good. We’ll have to get you out on the course. I need somebody I can beat. Adam here chops the legs out from under me every time we get near the greens. Whatever he lacks in his drives, he more than makes up for with his putts.”

“Putz is the right word,” says Adam.

We laugh again as the line piles up outside the door to the conference room.

Behind Conover, a slender guy in his thirties is hauling a briefcase in both hands, trying to lift it over Conover’s shoulder as he slides in behind him to get to the table across from me.

“Excuse me,” says Conover. “Like you to meet Larry Melcher, house counsel with Devon. Paul Madriani. Is it Madriani? I am pronouncing it correctly?”

“That’s right.” I’m shaking Melcher’s hand as I talk to Conover. When I turn to look at the lawyer, he gives me the insurance eye, a play for dominance. There is much mutual sniffing here. This is well practiced by every indemnity lawyer I’ve ever met. He would frisk me if he thought he could get away with it. Instead he tests my hand for grip as if any contest between us will be settled by arm wrestling on the conference table.

“Now who exactly is it you’re representing here today?” Melcher hasn’t even taken a seat and he’s plumbing for information, trying to nail down my client. It wouldn’t do to be playing too many sides of the same fence.

“My firm represents Dana Rush. You may have met my partner out in the reception area?”

“I don’t think we had that opportunity.” He says it with a kind of fraternity grin that makes me think that whatever happened out in reception wasn’t that cordial. With Dana and Margaret in the same room, they may have to chip the ice off the walls.

Dana is next through the door, followed by Harry. I had to twist his arm to get him to come. I needed somebody to referee in the event Margaret and Dana decided to do best two-out-of-three falls while they were waiting.

They come around the long way to my side of the table, Dana taking a seat between Harry and me. As I make the introductions, Conover is busy filling his eyes with my client and flashing his pearly whites. He would no doubt like to ask her a few questions, perhaps undress her, but this is not the place or time.

While this is going on, Margaret wanders through the door behind him, ogling the surroundings, the French crystal chandelier over the table and the original oils on the walls, seeing how God might decorate heaven if He had the money. She is followed by her lawyer, Sue Glendenin, a bright, cheerful blond, perky and cute. Her slight build and sometimes timorous voice have deceived more than a few lawyers into playing patty-cake with her in the courtroom only to wake up with their pants on the floor and their pockets empty. As usual Susan is smiling. Margaret is not.

Glendenin moves to the head of the line, introduces herself to Adam, and starts giving out business cards. She repeats this with Conover and his lawyer, then nods to me.

“How are you doing, Paul?”

“Tell you in a while.” I wink at her.

“No need to give you one of these.” She puts the little case with business cards back in her coat pocket. This does not go unnoticed by Conover, the fact that lawyers representing the two adverse parties have been talking out of school and are still smiling at each other.

Moving slowly, like a wounded animal on a predator’s turf, Margaret cannot find enough things to look at. She stares at the paintings behind us, up at the clock, her eyes falling anywhere and everywhere. The only place they don’t land is on Dana. The invisible woman. While there are handshakes and introductions all around, no one possesses sufficient stupidity or enough balls to fall into the social pit of introducing these two women. For their part, they try as best they can to ignore each other.

“I think maybe we should get started,” says Adam. “Would anybody like coffee? Anything to drink?”

“A scotch and soda, but only after we’re finished,” says Conover. He and Adam laugh.

“Why wait?” I say. “Harry would be happy to pour.” More laughs, everybody but Margaret, whose fuse already seems lit.

“Please take a seat.” Adam assumes the duties as master of ceremonies, while his assistant takes orders for coffee and calls them out front on the phone’s com line.

There are adjustments into chairs all around the table. Since these are on wheels, I notice Margaret sliding perceptibly down the table away from us. Her lawyer stays close, right up next to Melcher, crowding him at the table, so if he wants to take notes, he’s going to have to hold the legal pad against his stomach to write anything in confidence.

Adam’s assistant, Glenda, has set up office at the other end of the table, taking notes in case there is any dispute later as to what is said or the ground covered.

“I suspect we all know why we’re here today.” Tolt sits up straight in his chair at the head of table. “Devon Insurance issued a policy of life insurance on one of this firm’s partners, Nicholas Rush. Mr. Rush, as we all know, is now deceased, and there appear to be two separate claims to that policy, each laying claim to the full face amount of the policy, two million dollars. One of these is filed by Mrs. Margaret Rush. One by Mrs. Dana Rush. Please stop me if anything I say is incorrect or if there are any questions.” Adam looks around the table. Nobody says a word.

“There are some details,” he says. “Complications that I’m sure we can all discuss if that becomes necessary.” “Details and complications” is how Adam covers the question of the marital settlement agreement between Margaret and Nick and the fact that the widow’s name is not on the policy as beneficiary, issues over which some Third World nations might go to war given the sums involved here.

Adam clears his throat and takes a drink of water from a glass that Glenda had poured earlier and placed next to his hand.

“The purpose of this meeting is to see if there is any accommodation that we can all arrive at here today, in order to resolve any dispute short of litigation.” Tolt looks at the two women as if to make his point. “That is, without having to go to court and have a judge make a ruling that perhaps none of us would be entirely happy with.”

“I could live with it if the court enforces the insurance policy.” Margaret shoots from the lip, unable to control herself any longer.

“Yes, but what if you lose?” says Adam. “There are other issues, as I’m sure your lawyer has explained to you. And none of us here today would want to see you without some recompense.”

Margaret gives a mean stare and holds it on Dana, convinced, I am sure, that Adam does not speak for everybody in the room.

“The same is true with regard to you.” He turns to Dana. “I honestly don’t think that Nick would have wanted either of you to suffer.”

This draws an audible groan from Margaret. “Oh, spare us,” she says.

Tolt ignores this. “The fact is that none of us here today want to see either one of you in a position in which you are harmed. I think that if you consider the risks, and think about it for a while, you will agree with us.” For Margaret to arrive at this conclusion could take a couple of lifetimes.

Glendenin moves a little toward her client, puts one hand on Margaret’s arm, a gesture for her to calm down, to which she receives a contemptuous look from her own client. Then just as quickly Susan is back invading Melcher’s zone of privacy, leaving Margaret to drift in her sea of scorn.

“I hope that includes us?” says Conover. “I mean the part about nobody being harmed.”

“Absolutely.” Adam’s eyes twinkle as he gives this assurance. If nothing else, it provides a little comic relief.

“That’s reassuring,” says Conover smiling. “Of course we understand that we have an obligation to pay out,” he says. “The only problem is who do we pay?”

Margaret is still looking at Dana, contempt welded in her pupils, so I suspect my client would like to slide under the table. It’s not so much the money as the fact that Dana would get some of it that prevents Margaret from negotiating. She slides her chair back over on its wheels toward her lawyer and cups a hand to Susan’s ear, whispering into the funnel. Once having stated her bottom line to me, she is not likely to give ground. Having lost her marriage to Dana, she’s not now going to give up the policy with her name on it. This is written in her eyes as she whispers, so it doesn’t take a soothsayer to read this message: “Not a dime less than two million.” She glances at the door as I watch her. It wouldn’t take much to cause her to bolt. She knows we won’t get a second chance for a meeting with the carrier, short of litigation.

“Perhaps if we could get some movement, some direction,” says Conover. He looks over at Margaret still whispering to her lawyer. “Maybe if we could get one of the ladies to break the ice. Talk to her lawyer with an offer.”

Conover sits there staring directly at Margaret as he says this. She stops whispering in mid-syllable. His tactic is clear; drive a wedge between the women and sit on the two million while it earns interest at seven percent and they grind each other into dust in some courtroom.

He’s about to pop the question of compromise to Margaret, the grenade in the corner. Conover wants to pull the pin and get the hell out of here. I suspect the only reason he has come to this meeting is to humor Adam Tolt. No doubt Adam, in some other life, sits on corporate boards and otherwise rubs shoulders with Conover’s superiors back at the home office. Tolt is a man with an iron in everybody’s fire.

“That is precisely what I was hoping for.” The first words I have spoken in earnest. “Some movement,” I say.

“Is your client prepared to compromise her claim?” It comes from the lawyer, Melcher, who pounces like a panther.

“She is. She’s willing to give up half of it.”

“There we go,” says Conover. “Mrs. Rush,” he gestures toward Dana using the designation he knows will infuriate Margaret Rush, “is willing to give up a million dollars to settle this matter.” He makes it sound as if he’s soliciting applause at a charity bazaar.

“I didn’t say that. I said she’s willing to give up half.”

Over steepled fingers and with his elbows resting on the arms of the chair, Adam has now settled back to watch this cat fight.

“In fact she’s willing to give up two million dollars,” I add.

“You mean she’s willing to step away from everything?” Conover gives me an incredulous look, as if to say, “then what are we doing here?”

“No. Just half,” I tell him.

He shakes his head, looks at his lawyer, who shrugs his shoulders, each trying to figure what they’ve missed.

“Explain,” he says.

“The total claim isn’t two million dollars,” I tell him. “It’s four million.”

“What are you talking about?” says Melcher.

“I’m talking about the double-indemnity clause.”

“What?” Melcher looks at his boss, shaking his head, shrugging his shoulders, turning up the palms of his hands as if to say, “Who let the crazy guy in?” “Where have you been practicing?” says Melcher. “Not insurance law.”

“Mostly criminal,” I tell him.

“Ahh.” A look like “well that explains it.” “Double indemnity is only for accidental death.” He says this in a kind of gentle tone as if a mild education is all that is needed here. “This was a homicide,” he says. “A double homicide maybe, but not double indemnity.” He smiles a little at the pun he has made. “Mr. Rush was murdered, unless there’s something we haven’t been told.”

“That may be,” I tell. “Have you read the police report?”

“Somewhere,” says Melcher. He opens his briefcase and starts fishing.

“Let me save you the trouble, and so that you understand what I’m saying. Nick Rush may have been the victim of an intentional act. That we concede. But the question remains-was he the intended victim in that shooting or merely an innocent bystander- shot by accident? ” I emphasize the last three words.

“Oh, come on,” says Melcher. “You can’t be serious?”

Conover’s looking at his lawyer, wondering what the hell’s going on. This is not what he’d planned. A quick meeting and out the door, followed by several man-years of litigation while they turned the screws on the two women.

“I couldn’t be more serious. More to the point, there’s case law on the subject.”

Sheaves of paper, each neatly stapled, come sliding down the table from another direction. Harry is handing them out of a manila folder lying on the table in front of him like he’s dealing faro from a boxed deck. Copies of these slide in front of the lawyers and Conover.

“There is also a copy of the homicide investigation report. This concludes that the deceased Nicholas Rush was not the intended victim in this case, but that his client Gerald Metz was in all likelihood the target of the attack. This is based on the physical evidence at the scene, witness statements, and other evidence in the possession of the authorities, both state and federal. I commend it to your reading,” I tell them.

Harry sends copies of the police report down next so that Conover and his lawyer are still reading the first page of our legal points and authorities when the investigation report comes sliding in on top of it like a runner safe at home plate.

Now the lawyers are all flipping pages. Glendenin and Tolt are sitting back amused, as if they have no dog in this fight, while Conover looks at his lawyer, waiting for Melcher to pull a rabbit out of the fly to his pants.

“This is nothing. This means nothing,” says Melcher. He hasn’t had time to read past the first page but feels compelled by his boss’s presence to get his sword out of its sheath. “Your man was standing next to his client. Sure he was shot.”

“And your argument is?” I ask.

“His client was the intended victim. Says so right here.”

“I agree. That’s precisely what I’m saying.”

“No. No. No. No.” Melcher says it as if each time it adds to the weight of his argument. “You don’t understand,” he says. “The fact that your client was standing next to the intended victim doesn’t mean he was shot accidentally. I mean, he was representing the man. He was his lawyer.”

“What’s that mean?” says Harry. “Are you saying he assumed the risk?”

“Not exactly. Well, in a way,” says Melcher. “I mean this man. And no offense, ladies,” he looks at Dana, then shoots a quick glance down the table toward Margaret. “No offense, but Mr. Rush represented some questionable clients.”

“You’re telling me?” says Margaret.

“What does that have to do with anything?” I ask.

“You figure it out.” Melcher is starting to lose his cool. “You got a dirtbag drug lawyer hanging out with his client in front of a federal courthouse when the two of them get shot. Now if you want sympathy, I’ll give it to you by the truckload,” he says. “But not this. What do you think a jury is going to say when they find out your man’s representing some drug dealer when he gets shot?” He looks at me arching his eyebrows as if he’s just dropped a bomb on our case. He doesn’t wait for me to answer. “I’ll tell you what they’re gonna say. They’re gonna say he got what he had coming. Especially when your claim is… is… is…” his anger takes hold and he starts sputtering. “Is this,” he flips the papers in front of him. “That it’s an accidental death?”

“First of all, that information is never going to get before a jury,” I tell him.

“What?” he says.

“In fact, I can almost guarantee you that a trial judge isn’t even going to allow you to inform the jury that Mr. Rush was a lawyer, much less that he was in any way associated with Mr. Metz. It’s irrelevant, and I would argue it’s highly prejudicial.”

Harry pipes in. “Read the points and authorities,” he says. “Very illuminating.”

“The only real issue here,” I say. Melcher is looking back at me, knowing he is getting double-teamed. “The only issue is whether Mr. Rush was the intended victim of this act or whether he was killed by accident. Let me ask you a question.”

Conover is looking down, holding his head in hands, elbows propped on the table as if he doesn’t need any more questions.

“Assuming Mr. Rush was standing out in front of that courthouse alone, without Mr. Metz, would this shooting have even occurred?”

Melcher looks at me, down at the police report in front of him, back to the points and authorities. He’d rather not answer. He knows it’s a question I can ultimately raise before a jury. The ultimate and unavoidable issue, but for Mr. Metz…

“It’s a simple question. Based on the evidence in front of you, do you think the shooting would have occurred?”

“We don’t know.” Conover demonstrates why he is Melcher’s superior. His head comes up, and he cuts off his lawyer before the man can answer.

“We don’t know. We haven’t had time to read through all of this.” Better that than an open admission in front of witnesses, even if these are arguably settlement negotiations. Conover’s had enough surprises for one day.

“If our clients have to get you in court, I suppose you can argue with the cops,” I tell them.

“What cops?” Melcher can’t resist.

“The ones who will testify as to the intended victim and the accidental nature of Mr. Rush’s death.”

These are witnesses to die for in a civil case, and both of them know it: cops testifying that a defense lawyer was shot by accident. What possible reason could they have to lie? And how can they change their testimony given the contents of the police report?

“Now I’m sure you’ll be able to get them to tell the jury all about Mr. Metz and whatever sordid dealings he was involved in.”

“And if we don’t, you will,” says Melcher.

I concede the point with a smile. “The only thing they’re not going to be able to talk about is the fact that Mr. Metz was Mr. Rush’s client or that Mr. Rush was a lawyer.”

“Any whiff of that,” says Harry, tapping the points and authorities, “and you’ll have a mistrial.”

“So what you have here,” I tell them, “is a man walking down the street, minding his own business, who happens to be caught up in a drive-by aimed at somebody else.”

There is a moment of reckoning as the reality of the argument settles in. This lasts for several seconds, until the silence is broken by Adam Tolt leaning back in his chair, its springs squeaking. He’s trying to maintain a sober expression, but it’s a losing battle. He finally breaks out in a full-bodied laugh.

“Come on, Luther, you have to admit I never put you in a pickle like this before.” Still laughing, he says: “I have to say, it sounds like an accident to me.”

“You’re not exactly an objective audience, Adam.” Conover’s humor is being stretched to the limit.

“Come on,” says Tolt. “You can take me to Temecula and get it back in the sand traps.” Tolt can’t help himself laughing, trying not to ridicule his friend Luther. “Listen, I’ll put in a word. They’ll understand.” He’s talking about the home office.

“It’s still an open investigation,” says Melcher. “Who knows what the cops will come up with?”

“If you think you can get them to change direction once they’ve got their noses to the ground, you’re a better man than I,” I say.

“We’ve tried,” says Harry. “We know. Of course in the past they were usually after our client.” Harry can’t help but smile a little at this. The irony is lost on Conover and Melcher. They are starting to see a four followed by a lot of zeros on a company check.

There are reasons why the cops would not want to open too many lines of inquiry going in multiple directions, at least on paper. They would have to disclose each of these to defense attorneys once they settled on a suspect and made an arrest. Every lead pointing in another direction carves a notch of reasonable doubt into the legs of their case. If they withhold this information from defense attorneys, it is grounds on appeal to reverse a conviction. Cops are not likely to point like weather vanes with each changing current of information. At least not as long as the courts continue to tell them that a straight line is the shortest distance to a conviction.

“Of course you’re free to pee on a few bushes if you think you can get them to chase some other scent,” says Harry. “In the meantime, we’ll expect you to tender the full amount of the policy. Not two million,” he says, “but four, under the double-indemnity clause. And so that we don’t forget…” Harry hands out the last document from his folder, a formal letter of demand to the carrier. Conover knows the significance of this as soon as he sees it.

Though he didn’t want to come, Harry is enjoying the moment. Seldom do you get an insurance company in this position: bent over, holding its ankles.

“Since you’ve already acknowledged that you have an obligation to pay,” says Harry, “if you fail to meet the demand…”

“You’ll claim bad faith.” Conover comes to the point quickly. He has seen the form letter Harry has just handed him before. It is the boilerplate setup for bad faith.

In this case the upper limit of any judgment could take a healthy slice out of the national debt. We would be able to examine their books to determine what amount is necessary to adequately punish the company for withholding prompt payment from two women, one of whom is bereft having her husband murdered and the other left adrift by an ugly divorce. These are not happy circumstances for an insurance company to circle its wagons and start shooting Indians.

Conover looks at Margaret, whose expression is leaden, even now on the verge of victory.

Still holding Harry’s letter, he studies Dana, who offers nothing but a wan smile. If he glanced a little farther to his left, he would see Susan hiding behind his own lawyer. She is gazing down at the table like the mouse who just got the last crumb. It was Glendenin who managed to get Vesuvius to the meeting and keep her from erupting, so that we can now discuss in private a division of spoils between the two Mrs. Rushes.

Conover lifts his eyes toward me. From the look, it is clear. He is trying to figure how he will pull the split rail from this particular fence out of his ass before he has to call the home office and explain what has happened. I doubt if he’ll be asking me to play golf anytime soon.