I had learned to wiggle my ears during constitutional law in my second year at a second-tier law school at a football state university, one that Newsweek once labeled “the biggest party school.” While my con law professor was speaking about the penumbras hidden in the Bill of Rights, I kept myself from plopping asleep on my desk by tensing my jaw muscles in a certain way, causing my ears to wiggle.
In the overall scheme of things, this skill proved as useful to me as learning about constitutional penumbras.
So here I was, the morning after my courtroom victory and mugging, wiggling my ears to stay awake as my new client, a desperate orthopedic surgeon who, through a series of events probably not his fault, had nonetheless permanently screwed up his patient’s left knee, explained in excruciating detail how he performs a knee replacement operation. Dr. Trusdale was saying, repeatedly, as if I’d never heard this before, that it wasn’t his fault the guy on the table got a staph infection, which ate away bone and tissue and required subsequent surgeries until the poor patient had ended up worse off than when he’d begun his odyssey into the world of modern medicine.
Okay, okay, I get it. Not your fault. Not like you went to the bathroom before surgery and didn’t wash your hands.
Staph happens.
I’m going to make a line of bumper stickers and T-shirts marketed to medical malpractice attorneys with that in bold orange: staph happens!
“Are you all right?” he asked, interrupting my fantasy of a new business producing witty T-shirts for lawyers, filled with in-house jokes. New client or not, I was already bored with him.
“Sure. Why?”
“You were, ah, twitching your face.”
Oh, yeah. Memorandum to file: Stop wiggling your ears when the client is looking at you.
“Fine, sorry. I got mugged last night. Right out back. Believe that? Neck’s a bit sore.” I rubbed it. It did hurt.
Proving that doctors can be just as self-absorbed as lawyers, Dr. Trusdale said, “Oh, all right, so long as you’re listening to me.” Then he went back to explaining technical stuff while I bit my tongue to keep from yawning. I willed my ears still, but my legs and fingers started tapping and wiggling. I had a smoldering headache that I could blame on my mugger if anybody cared, but which probably had as much to do with the vodka and Häagen-Dazs Swiss Almond that Ashton and I and his girlfriend, who had beamed in from someplace long after the actual mugging, had consoled ourselves with once the police left. I ate the whole carton. Ashton said the almonds get caught in his teeth, and Jennifer, the girlfriend who’s as skinny as a snake but has Barbie-doll breasts, doesn’t “do dairy,” but they definitely helped with the vodka, so I can’t say how much I drank. Jennifer cooed and smothered and tried to act like my best friend, though our previous social exchanges had been to argue over whose turn it was on the Stairmaster at the Y and to trade exercise comments at firm functions (“I can do forty-five minutes on the Stairmaster,” she claimed. “How long can you go?”)
“Give her a chance,” Ashton had begged me. “She’s really smart.”
Sure thing, and those breasts are real.
But all that was the night before, and now I wanted this doctor to shut up. He was probably a decent enough guy. But his “it’s not my fault” mantra was getting old.
Drone. Drone. Drone.
“Un-huh,” I threw out now and then, while I was thinking, Yeah, I know, I’d have to learn this stuff if I’m actually going to try this case before a jury, but there’ll be months, maybe years, of discovery and dilatory pretrial crap before the judge gets pissed off and makes us actually try the damn thing. If we don’t settle. If we don’t delay until the plaintiff, the guy with the bum knee, gives up, wears out, runs out of money, or dies (which happens a lot in Sarasota, where the average citizen is a blue-haired Michigander who is 106 years old, drives a big-ass Lincoln Continental, gets her driver’s license automatically renewed by mail, and can’t see a Honda at five feet). “Justice delayed is justice denied” being a favorite cliché among personal injury and malpractice defense attorneys like us, prospering here in a city grown rich catering to the only technically still alive.
But by catering to professionals and businesses that got sued, often only because they are the deep pocket, not the guilty, my law firm had grown wealthy and taken on an air of uptown. A tony facade. Our sign, a four-foot-high chunk of carved marble that bears an unpleasant resemblance to a gravestone, proclaimed the name of the law firm: Smith, O’Leary, and Stanley, P.A. We obviously never abbreviate the name, though our receptionist is adept at saying the whole firm name as if it is one word. While we are mostly a defense firm, we indulge in a modest real estate practice since all real estate in Sarasota is for sale and has an appreciation rate that blows my mind. We don’t handle criminal defense, unless an existing client gets into some kind of discreet trouble, like DWI, but concentrate on medical malpractice and personal injury defense, and we have a host of doctors, hospitals, auto insurance companies, and nursing homes as revolving clients.
These revolving clients crash through our dark oak double doors, angry at us because they’ve been sued, and we lock them out at night with a ridiculously decorated but quite serious deadbolt lock. The front door is a monster, with door handles designed to look like gargoyles foisted on us by an interior decorator that Ashton Stanley, in the years before he’d taken up with Jennifer the Stair-master wizard, had been wooing until he found out this interior decorator had begun life as a boy. Ashton’s early crush on the decorator also explained why he had a clear plastic table for a desk and a purple rug and black walls. Good thing the decorator stopped playing hard to get before the whole inside of the law firm was mauve and black and plastic.
Thinking I’d rather have a black and plastic office than continue to pretend to listen to my dreary new client pontificate further on the difficulties of his profession and the unfairness of a legal system that actually allowed an injured patient to sue his doctor, I stared at my client and waited for a break. So, when my good orthopod paused to inhale, I gave him an earnest but pain-laden smile (I’ve learned something from watching Newly’s well-rehearsed clients over the years), and I said, “My head and neck really hurt. Really. Bad. I’m afraid we’ll need to reschedule this so I can give you the attention, the whole attention, you deserve.” I paused, studied his face, and saw the emerging sympathy.
“Mugged, you said?”
Got him.
I grimaced, rubbed my neck. Exaggerated the mugging experience, with special emphasis on the choke hold and the neck twisting.
“You’re a surgeon, so could you, please, maybe, write me a prescription for a pain medicine? That Advil just isn’t helping me.”
Memo to file: Never ask for a narcotic by name— that tips them off.
By the time he left, I had a prescription for Percocet, a personal narcotic favorite of Elvis Presley’s and Dean Martin’s.
If I’d known somebody was going to kill Dr. Trusdale later that night by spiking his marijuana with toxic oleander, I’d have listened closer and been nicer.