“Do the plaintiffs require an opening statement?” said a frowning Marion County Circuit Court Judge John Niblack. Niblack was an elderly – seventies now – purist, a firm but fair legal scholar, someone who’d served forty years on the bench, who’d reached the top rung of state trial court judgeships. Niblack suffered no fools and he took no prisoners. With wavy silver hair atop a long, carved face, his features cragged but tightly drawn, he looked and acted every bit the wise old eagle. By night, he was a writer, fancying himself a sage of legal and lore; during the day, he dispensed justice and his word was law. A stickler for procedure, with a cutting tone he’d surgically remove the confidence of anyone who trifled. Oh yeah, patience wasn’t a John Niblack virtue. If you were in his court, you’d better be good and you’d better be right.
Today, he was scowling and I couldn’t have been more pleased. This lawsuit had all the earmarks of a good time – for me anyway.
Plaintiff was a three hundred pound black woman, who claimed she’d been poisoned by my client, a downtown five ‘n dime. She’d eaten three coney dogs for breakfast, topped them with Tabasco, mustard, sause and relish, then puked and crapped her way into court.
She claimed our bacteria almost killed her, if you can believe it.
It was my second trial and Peggy Lane’s first. A freckled redhead with a first class brain, Peggy represented the meat provider, a reputable slaughterhouse based in Indy. Because both of us were neophytes and Niblack could be such a holy terror, someone who ate lawyers or their clients for lunch, I had senior partner David Liss with me and Peggy had Jim Donaldson, a trial lawyer of legendary stature, a name partner in the state’s leading law firm.
These guys would keep us out of trouble…
Plaintiff wanted a million dollars; she claimed her life had been ruined, that she couldn’t work, couldn’t service her husband. He’d joined her suit, claiming damages for the lost services and affections of his loving wife.
What was most unusual about this case was that there was no jury. With a judge as irascible as Niblack, juries were commonplace, the absence of one usually grounds for a malpractice claim. And so too with our case. As plaintiff’s counsel was a long-hair bearded hippy, a definite no-no in Niblack’s fiefdom, Peggy and I wanted Niblack’s unfettered wrath. Why Michael Winestein hadn’t asked for a jury, Peggy and I had no clue. But we sure as hell didn’t want one.
David and I watched Winestein make his opening from the left side of counsel table, on the left side of the spacious court room. Peggy and Donaldson, who was a fidgeter, sat across from us. Plaintiff and her husband sat at the table to our right, on opposite sides, him on the left, her on the right. While her husband, a fifty-ish black man of normal size, nervously eyed the floor, plaintiff sat back, confident in all her caloric splendor. Her purple moo-moo looked stretched and tight, much like the look on her husband’s face. Briefly, I wondered if Wanda, his wife, beat him.
Winestein was pacing back and forth across the courtroom in front of the scowling Niblack, occasionally waggling an accusing finger at Peggy and me as he ranted and raved about how we’d tried to kill his honest, hard working client with rat poop in a rancid slurry slathered over those rotten dogs. The consequences had been brutal; plaintiff had been sick, deathly ill for two weeks, she’d lost her job as a janitor at Ayres and still, a year later, was too ill to consider searching for another job. Her husband, forced to care for his wife, had quit his job as a janitor at the bus station and likely would not be free to look for work soon either. Wanda had been so weakened by her ordeal that even now she had to be helped to the bathroom for her frequent purges.
With a smirk on his face, Judge Niblack interrupted Winestein to ask Wanda if she needed a bathroom break now. Puzzlement showing on her face, her chins swung as she looked to her counsel for guidance. Finally, after an awkward moment, she whispered, “I be okay for awhile.”
“She said she’s okay for awhile now, Judge,” said Winestein, who’d run over for a moment’s consult. “She had her last bout of diarrhea just before court.”
“That’s more than I need to know, counsel,” Niblack countered, a disgusted look on his face. He glanced over to his court reporter, a slightly built matronly woman who had been with him for years. “Please try not to upset my court reporter with graphic descriptions. This is Circuit Court after all.”
“Yes sir, your honor,” said Winestein, who was probably now regretting not having asked for a jury. He went back to his pacing and finger waggling, as he heaped abuse on Peggy and me.
I looked over at Donaldson, a wiry, tense guy who was wrestling with his fingers, really twisting them around. He’d been trying lawsuits most of his long life; how would he manage to keep his mouth out of this one? The fact that he and Niblack were friends, had shared a court room hundreds of times and this being Peggy’s first trial, told me we’d be hearing from Jim. It was just plaintiffs’ opening statement and already Donaldson was roiling.
Winestein finished his rant about an hour later, but only after Niblack had interrupted him twice thundering out, “Are you about done yet?” As he sat down in front of Wanda, who raised a blubbery wing to pat him on the back, a touch so gentle it caused Winestein to fall forward, Niblack turned to us. “Would you like to make an opening statement, counsel. If so, keep it short.”
Peggy stood, as she’d go first because the meat company was the first named defendant. “No, your honor.” I followed similarly and Niblack nodded his approval. Defendants often don’t make opening statements or they defer them to the opening of their case.
“Fine. Then we’ll take a break so plaintiff can attend to her… uh… business, and we’ll reconvene in fifteen minutes. Is that okay with you, counsel?”
All counsel stood, while plaintiff struggled to lift herself out of her chair. “Yes, your honor,” said the chorus. Wanda sat down heavily, and as Niblack walked to the door of his chambers, I noticed him glance at her, saw a frown on his face as she dropped into her chair.
As often happens in a trial such as this, one develops a close relationship with one’s co-counsel. Peggy and I had become friends, we respected each other and had worked well together in preparing this case. But we didn’t get much chance to talk during this break. As soon as Niblack had left the courtroom, Donaldson grabbed Peggy and hurried her over to a corner where he was lecturing her in an animated state.
Poor Peggy. I had a feeling this was going to be a trial she’d never forget. Donaldson kept her in the corner, gesturing wildly and flapping his jaws throughout the break. They only returned to counsel table when Niblack and his entourage of bailiff, court reporter and secretary stormed back in.
Wanda was the first witness. For extra sympathy, I’d guess, but maybe because of her weight, she was helped to the stand by both her counsel and her husband, although his assistance had been prodded by a sharp blow to the shoulder. The chair in which she was placed disappeared under a shroud of purple as I wondered how much weight it could bear. A thin line of sweat ran down her wide face.
Plaintiff’s counsel had her tell her story, but he did so with leading questions, which I jumped to object to. Questions like, “So you don’t usually eat breakfast at the five & dime, do you?” I knew Niblack was a strict constructionist, and would sustain the objections. I wanted to shake up both Wanda and her counsel.
But Winestein wasn’t getting the message: He kept asking leading questions, and I was bouncing up and down like a yo-yo. Finally, Niblack stopped the proceedings and turned to Winestein. “Counsel, surely you learned something in law school. Didn’t they teach you how to ask a question? My courtroom is no law school, son, and I don’t intend to waste the valuable time of this court teaching you what every lawyer is supposed to know.”
“Yes sir, your honor,” Winestein managed, although he seemed to shrink, his shoulders slumped and his hands were shaking. “I’ll try to do better.”
“Well, you’d better, son, you’d just better.”
Winestein asked another leading question, and although Niblack frowned and shook his head, I stayed seated. I didn’t want to appear to beating up on him. But Donaldson just couldn’t control himself. He jabbed Peggy in the back, whispered loudly, “Object! Leading.” His voice could be heard all over the courtroom.
I looked up at Niblack, thought I saw a trace of smile.
Winestein asked another question, again a leading one. Still, I stayed seated as Donaldson muttered, “Goddammit! Object! Leading!” He poked Peggy once more. Peggy turned around and her eyes were moist. “I’m sorry, Mr. Donaldson,” she whispered. “I don’t know what a leading question is?”
“Oh shit!” bellowed Donaldson, so loud there was no doubt everybody in the courtroom, and maybe some people outside heard it. His hands flew to his head as he slumped down, exasperation glowing from his red face.
Winestein turned around at the distraction, and I glanced up at Niblack. Some of his frown lines had straightened out, his face was about as close to a full bore grin as I’d ever seen it. Briefly, I wondered if his plastered scowl would crack, leaving dust on the bench.
Somehow, Winestein managed to get Wanda’s story out, although the gentle sweat that had been running down her brow had turned into a river, staining her purple shroud underneath the armpits, around the neck and on either side of her breastly abyss. She’d been a hard working janitor, she claimed, just walking to her janitorial job at Ayres when the vision of turning hot dogs, gleaming in their fatty suet lured her to the five & dime window. Having skipped breakfast, Wanda went inside and ordered three coney dogs. Despite the mustard and Tabasco, she thought the meat had tasted bitter, but instead of tossing her breakfast away, she had consumed all three and washed them down with a Tab. The first rumblings in her stomach began soon after and by Noon, she was confined to the bathroom, purging herself from both ends. Valiantly struggling against the crippling cramps in her innards, she called her husband at the bus station and ordered him to pick her up. For two weeks, Wanda was unable to get out of bed without assistance, but spent most of her time in the bathroom anyway, alternately suffering from bouts of diarrhea or vomiting. Poor Harold, she said, he’d had to help her into the john and lift her off the toilet as her purge demands changed.
Poor Harold indeed! I could only imagine the odious smells and sights he’d witnessed. Oh the nightmares he must have suffered, probably still did; the guy deserved a medal for sure. No wonder he was so reserved; he was no doubt still in shock.
Strangely though, Wanda didn’t see a doctor until several weeks after the lawsuit was filed, which as it turned out was three days after her meal, while she was still… well… indisposed. She claimed her doctor had confirmed her diagnosis: food poisoning from rat-pooped, rancid coney dogs.
Peggy began the cross after another break, and probed Wanda with leading questions, trying to shake her up, confine her answers to yeses or nos. Wanda wasn’t a cooperative witness, she kept trying to speal, but Niblack would have none of it. Several times he cautioned the witness to just answer the question, each time his tone more severe. As Peggy worked, Donaldson fidgeted, trying to get Peggy’s attention. Finally, he tugged at her arm and bellowed, “Ask her how many times she sh@t!”
All eyes, including Niblack’s, turned to Donaldson, as Peggy paused for a moment, stuttered a few times, then asked some innocuous question. Again, I saw Niblack’s face break as Donaldson beat his fists on the table in frustration and David and I cringed into the back of our chairs. “Goddammit, I said, ‘Ask her how many times she sh@t!’” Donaldson raged. “Didn’t you hear me?” He was no longer trying to mask his frustration or cover his tone. His angry booming voice echoed off the courtroom walls.
Niblack’s lips peeled back and he showed some teeth. “Maybe we’d better take a little break, so Mr. Donaldson can have a little discussion with his associate.” He was gone, rushing out of the courtroom, coving his mouth, before we could stand.
Donaldson grabbed poor Peggy by the shoulders and rushed her to the back of the room. We could see him gesturing and hear parts of his wrathful rant over the white noise of the air conditioning system. Meanwhile, Wanda sat draped over her witness chair, Harold looked at the floor and Winestein paced as David and I shared some giggles.
When court resumed, Donaldson was parked right next to Peggy, almost sharing her chair. Perhaps to obtain some space, she stood. “Er… Mrs. Hawkins, can you describe your bowel movements for the court, please?
Donaldson jumped out of his chair, grabbed Peggy by the arm and swung her around. “Jesus, you idiot! I didn’t tell you to ask her to describe it. What the f#ck do you want her to say? I told you to ask her how many Goddamn times she sh@t!”
While Donaldson was still jabbering, Niblack stood up. “Ms. Lane, I think you should listen to your colleague. I assure you, this court has no desire to hear a full description of what Mrs. Hawkins saw when she looked down into that toilet. Surely, you can get what you want in a different way.”
Peggy looked stricken. I was afraid her knees would give way. She took a deep breath, turned her back on Donaldson and said, “I have no more questions for this witness.” Donaldson muttered, “Damn!” and sat down heavily, then scooted his chair down the table as far away from Peggy as he could get.
First question, “Mrs. Hawkins, how many times that first day did you vomit?” She estimated it was several hundred times, until there was nothing left to throw up but spit. “And how many bowel movements did you have?” She said they’d continued for several days, almost non-stop, just hour after hour of sitting on the pot. She claimed she was there so long her legs fell asleep and Harold had to raise up her thighs to move the blood.
“And despite your discomfort, you did not make any effort to see a doctor, did you?”
“Well, I saw a doctor, sure.”
“Yes, but not until weeks later after you’d filed your lawsuit, right?”
“Well, I called my doctor but he never called back.”
“And you didn’t go to the hospital, did you?”
“I don’t like no hospitals.”
“And is that because you have been to the hospital before?”
“I been to hospitals, yeah.”
“Right. And for what were you treated?”
“I don’t ‘member. Some kinda head problem, I think.”
“Mrs. Hawkins, I have your hospital records right here. They show you were treated at Methodist Hospital, in fact you had surgery there six months before this incident, isn’t that right?”
“Uh, I can’t really ‘member. That may be right.”
“And you say your surgery was for ‘some head problems’”?
“That’s what I ‘member. Course I could be wrong ‘bout dat.”
“Mrs. Hawkins, your medical records show that you had surgery for a peptic ulcer then, do you know what that is?”
“I guess it’s something in da head, is all I knows.” If anything, Wanda’s sweating was becoming more pronounced. I was almost surprised she didn’t slide off her seat.
Judge Niblack’s mouth dropped open and he flashed a look at Wanda, but didn’t say anything.
“Mrs. Hawkins, these medical records will be entered into the record through a hospital employee later, would you like to look them over to refresh your recollection?”
“No, I don’t needs to. What you said sounds right.”
“So, you’re saying your surgery for a peptic ulcer was in your head, is that right?”
“I think that’s what I ‘members.”
“Do you remember being told to lose weight and watch what you eat? It says right here that’s what you were told.” I pointed to a page of the records.
“I been doin’ dat.”
“Can I ask you what you weigh?”
“Bout one-fifty, give or take a little.”
Niblack’s head spun. “What?”
“I said ‘bout one-fifty, give or take.”
“No more questions, your honor.”
Peggy didn’t look up but I felt David’s hand on my shoulder as I sat down. Donaldson was beaming at me.
The next witness was Harold. His testimony didn’t take long, thank goodness. He testified as to what a loving wife Wanda had been, how since “the accident” she had not been the same, had been unable to love him, had needed constant care. It would have been good stuff for a soap opera. I especially enjoyed the way he kept watching Wanda, concern etched in his face, as if one wrong word meant his doom.
Peggy’s cross brought more fireworks from Donaldson, who became increasingly frustrated because Peggy wasn’t going where he wanted. “Ask him how many times they f@cked,” he’d bellow, as Niblack tried to cover his smile and David and I sweated for Peggy. She looked as if she’d break into tears at any moment.
When it came my turn, I asked Harold about the surgery again, got him to admit that Wanda had had stomach surgery six months before she ingested the coney dogs for breakfast. Then I let him off the hook. From the glares he was getting from Wanda and the darkening stains in her moo-moo, I didn’t want to put his life into further jeopardy.
Next up was Dr. Blanchard, a black physician, neatly dressed in a charcoal suit, white shirt and pink tie, who had testified many times before in similar cases. It was years later that he was indicted and convicted for issuing fake prescriptions. He testified that even though he’d taken no stool samples and conducted no tests, he was sure Mrs. Hawkins had been suffering from a strep infection, from bad coney dogs.
I don’t remember Peggy’s cross of the good doctor. I suspect that I was so eager to get to him that I talked her out of doing much. I mean, I was straining at the leash. Medical science is clear that the only way to tell the difference between a strep and staph infection – or e-coli for that matter – is by a culture. And their incubation periods are long, as much as seventy-two hours after ingestion. I confronted this quack with this medical evidence, and even though the judge admitted my scientific treatises, the lying goof-ball stuck to his story. I was having such fun poking holes in this puffed-up liar with my learned medical treatises, which I doubt he’d ever read, I didn’t hear the judge tell me twice that he’d heard quite enough. It wasn’t until David appeared behind me and threatened to put a collar around my neck, that I passed the witness and returned – chastened but defiant – to my chair.
The judge called a break and Donaldson and Peggy came over to pump my arm, while David just laughed, Wanda sweat and Winestein and Harold sulked. Wanda was flashing me daggers, and I had to remind myself that she was bigger – and sweatier – than me. I’d keep away from her in the hallway, and the elevators were out of the question – I had no idea how much tonnage they could withstand anyway. And I hadn’t brought a swimming suit.
When Niblack returned and we were all seated, Winestein rested his case. Instantly, Peggy and I were on our feet, arguing for a directed verdict.
We got it, and I got a story that still lives on as legend in my old law firm. Peggy left the practice soon thereafter, and Donaldson and Niblack both died.
And somewhere out there, I suspect Wanda is still eating coney dogs for breakfast…and poor Harold is still doing thigh duty…