Tina's voice arrived in my office from behind her desk, located parallel to my door and thus out of my direct line of sight. I paused, thinking that I enjoyed the very casual communication rules at our shop. Outside of the presence of clients, there were no “Sirs” or “Misters,” for we were on a first-name basis; all equal members of the team.
“Those cases your friend at the Attorney General's office said he was sending over.”
“How many,” I asked, knowing the response.
“Hell, I don't know. A big box.”
I got up, silently thanking Ken Gremillon, the First Assistant Attorney General, and a law school classmate twelve years before, who asked if I'd be interested in taking over some cases he was pulling from another firm for ineptitude and lack of effort.
Beside Tina's desk was a long banker's box filled with approximately 20 files, all of which were road defect claims against my new client, the State of Louisiana. Ken had warned me about one case in particular- the Russ Smith case. Ken said it was a big case with a first setting trial 60 days out, and he believed virtually no work had been done on it. Not from either side.
Quickly I located the Smith file, only two inches in thick, and repaired to my office, closing the door behind me. The file was, indeed, in sad shape. Located therein was the police report, a copy of the plaintiff's and a treating physician's deposition, and a set of interrogatories which had been answered by my predecessor. ‘Well,' I thought, ‘the facts seem clear enough.'
Eighteen months earlier, at 8 a.m., Dr. Russ Smith, a geology professor at USL was traveling East on old Highway 90, a two-lane U.S. highway long before superseded by I-10, located just North of and parallel to the old highway. As Dr. Smith lived just off Highway 90, he drove it twice daily and thus was very familiar with the road in general, and with “Benoit's Curve” in particular.
“Benoit's Curve” was well known to everyone in the area. It's only purpose, located along this otherwise due East and West road, was to avoid dividing Mr. Benoit's (whoever that may have been) land. Approaching from the West Benoit's Curve was “S” shaped and included two long banked turns: the first 90-degrees to the south followed by another 90-degrees to the east before continuing due east.
According to the police report, Dr. Smith was traveling east, and as he exited out of the second turn in the elevated curve, left the road at an apparent high rate of speed and flew over 100 feet down to a rice field. As his Volvo struck the ground upright, Dr. Smith was thrown violently against the steering wheel, severing his spine and rendering him a paraplegic from the waist down. The police report listed no witnesses, and the State's response to the interrogatories denied any reports of defects or maintenance to Benoit's Curve. As there were no skid marks, the police concluded that Dr. Smith was at fault.
It was clear why the file hadn't been worked up by the plaintiff lawyer: he had a dog for a case, and his only chance at recovery was a report from an expert who claimed that the curve “probably” had an inaccurately signed speed limit. Well, if the plaintiff had not done much work on the case, the defense counsel had done even less. He had taken the deposition of Dr. Smith, who remembered nothing, and a treating physician, but had not even hired an expert.
I immediately called Ken, who promised to have Dr. Bob Handly, “the finest” road design expert in the country, call me. Awaiting his call, I again reviewed the police report. ‘Something's wrong here,' I thought. ‘This guy is traveling to work early in the morning. He's awake and alert, and he made it through the entire first turn, and then most of the second turn before suddenly losing it. And, no brakes… what's up with that? ‘
Dr. Handly promised to pick me up that Friday and go out to the site. That was good because the clock was ticking, and by then we'd be down to seven weeks before trial. When he arrived, I immediately liked Dr. Bob. He was bright, inquisitive, funny, and tough as nails. Fully trial tested, he'd be a great witness. Although slight of build and soft-spoken, he had a presence about him- a presence which demanded attention and respect.
At the site, he first confirmed that all signage, sight lines, speed limits, and distances were all as reported and within the appropriate parameters. Walking around in the hot August sun was draining, and I was pleased to return to the air conditioned comfort of his pickup truck, where he attached a “tilt gauge” (basically, a pendulum ball hanging from a pin) and proceeded to drive through the curve multiple times at various speeds. Each time the tilt ball would indicate the degree of lean the curve caused in the truck at that particular speed. Although decidedly low tech, Dr. Bob insisted that the tilt gauge was extremely accurate. When he finished, he pulled off the road on a side drive, and parking in the shade said, “Well, the road is fine. There's nothing wrong with that curve.”
“What about the signs and the speed limits?” I asked.
“They're fine too.”
“Well, then what the hell happened here?”
“Vance, I honestly don't know. Maybe he fell asleep.”
“Driving into the sun at 8 a.m.?” I was incredulous.
“All I know is I've got a fine road here that he left. Maybe speed.”
“Bob, he made it through one 90-degree turn and three-fourths of another, and never hit his breaks. I'm going for a walk.”
“Good, I'll finish my notes. And Vance, all I can testify to is this road is fine.”
I headed out into that South Louisiana steam oven walking slowly from East to West, shedding my coat and then my tie. As I walked, sweat dripped down into my eyes, stinging them and distorting my view. Even so, I noticed the old pickup out of my peripheral vision as it rolled past me at a very slow pace. The equally old farmer driving it stared me in the face, then passing me, drove a short distance before stopping in the road and backing his truck up into a field cut on the North side. There, he sat and waited.
It took several minutes of walking to reach him, while he sat there staring and saying nothing. Now I knew these men; these good, tough farmers who saw everything and spoke little, so I walked up directly to the truck and stood there, saying nothing for a full minute. Then, I spit on the ground and said, “Gonna rain?”
“Soon,” he replied. I stopped at that. He clearly wanted to tell me something. I just needed patience.
“You a lawyer?”
“I just want the truth. I represent the State. You know anything?”
“Not me, but my boy knows. He saw it.”
“Then I need to talk to him.”
“I figured such, but he's in Mississippi. Doing carpenter work what with the oil field gone bad.”
“When'll he be back?”
“Well, if you'd ask him to call me, I just might be able to do some good.”
With that, I gave the old man a business card. He hadn't offered his name and I knew better than to ask. It was going to be a long two weeks.
One day, however, I got the call, and the boy agreed to meet me at Benoit's Curve.
“So you saw it?” I asked.
“Sure did. Me and the wife.”
“Tell me what happened.”
“Well, me and the wife were raking leaves. She was over dere,” he pointed to the right side of their little house located at the apex of the second turn, “and I was over dere. We heard him come out of de first turn. He was going a little fast, and I knew he was going to hit it.”
“De damn pothole, dat's what,” he replied with his soft Cajun patois.
“Tell me about this pothole and come show it to me.”
“Well, you know US-90 is de major road for de rice trucks, and every summer, dey come roaring around dat curve. Dey make de first one but run off de second one, and every damn year, dey make dat damn pothole.”
And damn, there it was, right at the exit of the second turn. Only it wasn't a pothole, it was a patch. Fresh, black, and firm, it ran eighteen inches wide and at least six feet long parallel to and including the white line, which had been repainted.
“Did you complain last summer before the accident?”
“Mais, if. I called dem every week for months.”
“What did they do?”
“Dey sent out an ole' boy who said de Parish was out of budget for hot mix, and all he could do was throw some cold patch in da hole.”
“That helped?” I was getting desperate; a heavy weight crushed my chest.
“Mais, with this rain and those trucks, what you think? Maybe for a day or two.”
“How bad was it when the Doctor ran into it?”
“Ten inches deep, eighteen inches wide, and six feet long. He hit dat thing at dat speed and he never had a chance.”
“Then what happened?”
“De highway department, not three days later, dey came out and hot patched it and repainted de line.”
‘Those bastards.' My clients, of course, had made no record of any of that, which explained why they answered the interrogatory question about “reports” of previous or subsequent repairs as “none.” What the hell was I to do? Tell Dr. Bob? My opponent? No, before that, I would re-review the interrogatories to see if I could supplement the answer. That proved fruitless, as my opponent was not only lazy and discouraged, but apparently inarticulate. He had not asked the question correctly, requesting only “reports” of damage and “reports” of repair.
Desperate, I called a law professor, the one who had taught me ethics, and spilled the beans.
“Vance, you're screwed,” he stated. “You have a duty zealously to represent your client. Further, you have no independent duty to inform the court that your opponent was too lazy or too incompetent to discover the facts you found.”
“But what about justice?” I pleaded.
“Justice is a funny thing,” he replied. “Our adversarial system is based upon simulated combat between champions selected by the parties. Your concern is not with justice, but rather with the battle. And do not tell your expert a damn thing.”
I spent most of a day worrying about the problem, and decided upon a course of action. I called Ken and requested a meeting with Billy Guste, the Attorney General. Now General Guste was an interesting combination of contradictions: tall, white-haired, imperious, and serious- he was the essence of a New Orleans silk stocking lawyer. But, he also was polite, fair-minded, and after all, he had traded in “William” for “Billy.”
We met at the Baton Rouge City Club for lunch, where I, too nervous to eat, fidgeted with my food until the General opened the conversation:
“Young man, Ken tells me you have a problem.”
“Actually General, we have a problem,” I replied, and proceeded to fill him in.
“Well, son, what do you want from me?” he said when I concluded.
“Sir, I want your permission to tell the other side because I want to live in a state where justice is real.”
“Son, let me tell you a story,” he replied. “When I was 18, World War II broke out. I was a freshman at Tulane, and with our connections, the war wouldn't have touched us. But four of my brothers and I volunteered. Only three of us survived that war. I left the Army with two pledges to my dead brothers. First, I would dedicate my life to public service, and second, I would never, ever, allow our country to abandon its freedom. And the basis of that freedom is justice.”
Then he paused and said, “So, fine, you have my permission. Anything else?”
“Yes sir. I want settlement authority of one million dollars.”
“That'll be enough?” He seemed surprised.
“Yes sir,” I replied, for I had a plan.
That afternoon, I called my opponent and told him everything. I then offered him a choice: he could either accept a continuance of the trial or one million dollars to settle. He protested that one million was too small, and I replied:
“Now you listen to me because I'm only going to say this once. That pothole didn't just appear. Dozens if not hundreds of people ran over it to create it, and not one of them wound up in that field a paraplegic. Either you take the money, or try the case.”
Two weeks later, he called to accept the offer. I sent him the check without having ever met Dr. Smith.