“Would the plaintiffs like to make an opening statement?” said Marion County Circuit Court Judge John Niblack, the scourge of Indiana state court justice for over forty years. Niblack, a scowling, self-absorbed legal purist, who from his numerous writings apparently felt that his longevity had given him insights no other peer could muster, seemed eager to begin this case.
And no wonder. This lawsuit had all the earmarks of a good time. Plaintiff was a three hundred pound black woman who claimed she’d become violently ill from food poisoning after ingesting three coney dogs for breakfast at a downtown five & dime. The tabasco and mustard wasn’t to blame, she claimed, she’d been fed bacteria infested meat. She’d sued both the store – my client – and the meat provider.
It was my second trial, Peggy Lane’s first. She represented the meat provider, a reputable slaughterhouse based in Indy. Because both of us were neophytes and Niblack was a holy terror who ate young lawyers for lunch, I had senior partner David Liss and Peggy had Jim Donaldson, a trial lawyer of legendary stature, a name partner in the state’s leading law firm, to keep us out of trouble.
Circuit Court in Indiana is the top of the line, where the big cases that aren’t federal go. The news media make it a practice to stake out the proceedings, although I doubted there would be much coverage of this one. Plaintiff wanted a million dollars, she claimed her life had been ruined, that she couldn’t work, couldn’t service her husband, who’d joined in her suit for his lost consortium, the lost 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 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 awkard 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. Plaintiff sat back 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 back 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.
Plaintiff’s counsel had her tell her story, but he did so with leading questions, which I jumped up 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 the plaintiff and her counsel.
But Winestein wasn’t getting the message from my objections and the judge’s sustaining them. He kept asking more 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 ever 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 a smile.
Winestein asked another question, again a leading one. Still, I stayed seated and I heard Donaldson mutter, “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. Briefly, I wondered if his plastered scowl would crack, leaving dust on the bench.
Somehow, Winestein managed to get Wanda’s story out. She’d been a hard working janitor, walking to her janitorial job at Ayres, when the vision of turning hot dogs, gleaming in their fatty sweat 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. Valiently 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 diarhea 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. 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.
Oh my…
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!’ Didn’t you hear me?” Donaldson was no longer trying to mask his frustration or cover his voice. His words caroomed off the courtroom’s 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 hidden giggles.
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