Dr. Peter La Croix inhaled deeply, intoxicated on the smell of his new car. Stop-and-go traffic was so much more bearable in a fine automobile, and tonight, his new Mercedes was a leather upholstered oasis providing him a front row seat to the afterglow of a breathtakingly beautiful sunset. The rush hour traffic was starting to clear out, though every lane had rows of red brake lights reflecting off of the still damp pavement. La Croix was enjoying a post-rainstorm western sky that was a fantasia of red, pink and orange hues, a rippled cloudscape changing like an interactive Georgia O’Keeffe painting. He could not resist touching the button to open the sun roof, even though the exhaust of a thousand cars in front of him hung heavy on the roadway. La Croix wanted to be part of the sunset, if only for a few minutes. He wanted to feel it. He wanted to soak in the beauty of the last moments of the day. Life was good. The radio had earlier broadcast the closing price of Eagle Health Products, up 4 and a half on news of better-than-expected earnings. La Croix’s personal wealth had just increased by $900,000 dollars. The company he had founded and quietly taken public was succeeding beyond his wildest dreams. There seemed to be no end in sight.
Behind La Croix, the sky was darkening. Night was coming. The headlights of innumerable cars leaving the city illuminated the path that La Croix had already driven. Stop, go, stop again, the dance of the cars had a rhythm, like a line dance at a cowboy nightclub, but every commuter must pay attention or bump into one of the other dancers. Stop, go, stop again.
The sun roof was fully open and La Croix enjoyed the breeze as the traffic began to flow back up to highway speed. He moved the black Mercedes into another lane and zipped happily along, but then the traffic stopped once more and La Croix glided smoothly to a halt behind a large tractor-trailer. "How’s my driving?" asked the sign on the back.
La Croix was reaching for the stereo to turn up Bach’s Capriccio when he heard the howling of the big brakes and screeching of tires. He looked into his rear view mirror and saw the grill of the 18-wheeler. It was the last thing he ever saw.
Kathy Kolenda had made a reputation for herself in the defense bar by writing a column on creative discovery for the Texas Tort & Insurance Defense Association, a small but prestigious group of lawyers who handled high dollar cases for excess carriers. She had clawed her way up in a man’s world and knew she was the equal of any lawyer in a courtroom. She loved being a lawyer, because the rules made the playing field equal. No matter how tall or how gray her opponent was, he had to follow the rules, and Kolenda had mastered them.
When she got the call about the La Croix case, she knew it was going to be a tough one. It is hard to defend a case where an 18 wheeler fails to stop and someone is crushed, but there was a slick pavement from a recent rainshower and that fact alone would give her something to argue. Suit had already been filed by the time Kathy Kolenda got the call from the excess carrier that she had been tapped to handle the defense for the primary and the excess. She asked who the plaintiffs lawyer was. The senior adjuster flipped through the file. "Jay Newman, do you know him?".
On the Saturday before Kolenda started law school, she had attended an orientation. Third-year students had given the tour, a few professors had spoken briefly about the exciting journey that was about to begin, and then a keg was tapped while aluminum foil was peeled off of several pans of barbecue on the table. Potato salad and coleslaw were heaped on little plastic plates, loafs of Sunbeam bread were split down the top, and Kolenda stood alone. The first person and the only person to speak to her that day was Jay Newman.
They started with small talk about where they were from, where they had gone to college, and what they had majored in. They rationalized to each other about why they had chosen to go to law school. They both admitted worry that their school might have a professor like the dictatorial antagonist that John Houseman had portrayed in the movie The Paper Chase. After that, and a few cups of beer, they quickly relaxed into a discussion about their spouses, their hobbies, and their plans. Kolenda and Newman became fast friends. They sat together in first-year classes. They would stop by each others study carrel, have lunch outside on pretty days, and would share a pot of coffee on the nights when both stayed late to study. The relationship was never sexual, never physical, and not even flirtatious. It was just a good solid friendship between equals, the kind that women always seek from men, but few men seem capable of with women.
After law school, Kolenda joined one of the busiest defense firms and Newman went to work for one of the scrappiest plaintiffs firms. Ideologically, it was as if one had joined the priesthood and the other had sold out to Satan. Kolenda was instantly aware that she could not maintain an open friendship with Newman. A warm, personal relationship with a plaintiffs lawyer would have brought questions about her sanity and her commitment to her side of the bar. Newman also understood, without being told, that his friendship could be a liability to Kathy. They never saw each other after graduation, but every Christmas and after the birth of each of her children, Jay Newman sent a warm personal letter and a small gift. He always signed the letter, "From my family to yours", and she had a good warm glow from knowing that her old friend was still a friend.
"Yes, I knew Jay Newman in law school," Kolenda answered neutrally.
"Well, he’s been pretty hot lately and we’ve got some bad facts. You think you can pour him out or at least hold down the damages?", asked the adjuster.
"Send me the file and let me take a look," Kolenda said evenly.
When the adjuster said that there were some "bad facts", Kolenda had assumed he meant the particularly horrible way that La Croix and his new Mercedes had been crushed between the two trucks, but when she got the file, she found that it was worse. The truck driver had tested positive for ETOH. His blood alcohol level after the wreck was .02. While that was well below the .04 threshold established in 49 CFR, federal regulations also prohibited driving within four hours of consumption of any alcoholic beverage. In a case like this one, the only acceptable blood alcohol level in a truck driver is zero.
Kolenda knew the trucking company well. She had defended Thompson Brothers Trucking a few years before on an intersectional collision when one of their drivers had blown a red light and plowed into a van of senior citizens returning from a gambling trip to Louisiana. With some investigation, she found out that the van driver was a convicted felon who had three speeding tickets in the previous three years. With some give and take, and because of the absence of an independent witness on the color of the light, she managed to spread the damages around and got the carrier for the van company to contribute half the money to settle the claims. In defending that case, she had met and grown to like Tommy Thompson, the remaining brother and the sole owner of the trucking company. After calling Mr. Thompson, she renewed their acquaintance, wished their meeting were under better circumstances and made an appointment to meet him out at the yard.
Tommy Thompson had walked with her to the back of the truck depot and showed her the tractor. He cursed the driver who had been drinking on the job, apologized for cursing and then recapped the fiery conversation when Thompson had fired the driver after the wreck. Thompson was remorseful about the death of Dr. Le Croix and wanted the case settled as soon as possible. He told Kolenda that Thompson Brothers was a family company with family values, and he did not want to go to trial. "Get this one settled quickly, Mrs. Kolenda, please. I don’t want to drag this out. Pay the money and let’s get it over with," Thompson had said.
The money, however, was not Thompsons. It was insurance company money. Thompson Brothers Trucking had one million in primary coverage and 30 million in excess. While $31 million will normally take care of the aftermath of a very bad wreck with plenty of money left over, the particularly gruesome death of a very wealthy man with extraordinary earning capacity had placed the entire amount in peril. Dr. Le Croix left a widow, two minor children and two parents, all of whom were represented by Jay Newman. Tommy Thompson was well aware that the policy limits may not be enough and that his company assets were also in jeopardy. He wanted it settled, within the insurance limits, as soon as possible.
She had a message from the excess carrier when she returned to the office. She called a vice president she had never heard of and was told that the carrier was assigning someone from S.O.U. to meet with her.
"S.O.U.? I don’t know what that is?"
"Special Operations Unit. Mark Robinson will be calling to set up a meet with you, so you can coordinate your activities."
"What activities?", asked Kolenda.
"Your special operation, of course. Work with Mark closely. He will help you save us money," the VP purred, then hung up.
Kathy Kolenda had been handling insurance defense for her firm for 15 years. She made partner 8 years ago and had worked on high quality cases for a number of excess carriers. While she was aware of Special Investigation Units which targeted fraud at the claims stage, she had never heard of a Special Operations Unit. Perhaps this was a new name for an old game.
When Mark Robinson called, he was polite and well-spoken. His voice was free from any regional accent. He sounded like a very smooth radio newsman. Robinson said that he would be flying in from New Orleans that evening and wanted to meet with her as soon as possible. They agreed to have coffee in her office at 9 AM. He asked if she liked Krispy Kremes. They talked about New Orleans, Café DuMonde, chicory coffee and pecan pralines. When she got off of the phone, she was smiling and looking forward to meeting Mr. Robinson. There was just a hint of flirtation in their conversation and since her divorce last year, there had been little to smile about.
Kolenda opened the Le Croix file folder again. Jay had drafted a smooth, easy to read negligence Petition. He had not alleged punitive damages nor had he alluded to the alcohol. Jay Newman was keeping everything nice and easy. No punitive allegation meant no taxes on the settlement. She had filed an Answer to the Petition, but had not yet called Jay. Two days after filing the answer she had received a nice handwritten personal note from Jay thanking her for sending over an Answer and telling her that he looked forward to working with her on this case. She would call Jay soon and visit with him, maybe after she met with the S.O.U. guy.
Mark Robinson walked in with a box of doughnuts under his arm, but he looked like he had never actually eaten one. He was tall, lean and rangy. With dark hair and thick dark eyebrows, Mark Robinson looked like he might have played a little college basketball.
The two got along fabulously picking up from where they left their phone conversation. Kathy told him of a few new restaurants nearby and Mark confessed a craving for Turkish coffee that he gets at a Lebanese restaurant when he visits Houston. He was not wearing a wedding ring, Kathy noticed, but the conversation stayed light and non-personal.
"If you come to Houston so much on business, why have I not met you before?", Kathy asked.
"I guess you haven’t had a case that needed my special skills," Mark replied.
"What are your skills?"
"Special Operations."
"I don’t know what that means," Kathy smiled.
"Oh you know, digging a little deeper than public records allow," Mark winked, "placement of surveillance assets, and giving our lawyers special tools for monitoring the other side."
Kolenda continued to smile but she was not sure that she meant it anymore. Mark Robinson had not flown in to videotape the widow shopping at the mall or giving lemonade to the lawn boy. Robinson was from a Special Operations Unit that was here to "monitor the other side".
"What do you mean, ‘monitor the other side’?", Kolenda asked.
"You know, help you know what the other lawyer is doing before he does it. Give you a sense of how their settlement discussions are going. Kind of give you an early warning system. I’ll tell you what: Meet me after work, say 6, at La Casita Blanca and I’ll fill you in on what we have planned. We can have some dinner, drinks, watch the sun go down. What do you say?"
"I can’t. I have two kids and I need to get home," Kolenda said smoothly.
"Your mother can take care of them a little longer. Come on, live a little."
Kolenda felt a stab from her heart missing a beat, but then the red-hot anger hit. She had not told Robinson that her mother picked up the kids and looked after them at her house until Kathy got there after work. Robinson could not have known that, unless he had investigated her. She began to improvise.
"I’ve got a better idea. My office has a great view of the sunset. Come back at 5 and I’ll have Turkish coffee brought in for us. We can sit and visit about this file on my desk and you can tell me all about your special operation. After our work is done, we can decide where to go."
"You’re on," Robinson enthusiastically agreed, "I’ll see you at 5."
Kolenda was angry at being investigated by an insurance company goon, but she assumed it was done without authority and for his own personal, prurient interest. She still knew how to handle lascivious men and could put Mr. Robinson in his place. However, the talk of a special operation in which the other attorney was being monitored struck her as part of something bigger than she wanted to be involved in. The way to protect herself was to get it on tape. Her speakerphone was capable of making just such a tape. Kolenda had invited Mr. Turkish Coffee back for a little recording session. She would get everything on tape in her office, register her objection to participating in this, tell lover boy she had a headache, then put the tape away for safekeeping. If the insurance company then went on with some covert operation, at least she would protect herself with a taped refusal to participate.
Mark Robinson was prompt. He came bearing beignets. Kathy had made sure that some people in nearby offices were staying late, and they were aware that she did not want to be left alone. She had checked and double checked the tape recorder on her phone. As long as she stayed near the speakerphone, her phone recorder would tape the conversation, undetected.
Kolenda laughed, cajoled, flirted and generally charmed Mark Robinson while they sipped the hot, strong Turkish coffee and ate beignets. She finally got him steered to discussing the case and what he was here to do. He spoke in the same generalities that he had before, about an early warning system and how he would be providing information to her that she would find useful. She pressed for specifics on how he was going to do this and he again spoke in general terms of advanced technology and superior training. Kolenda flattered and flirted with him some more, teased him about sifting through trash bags looking for information and finally Mark Robinson began to tell his secrets.
"Cleaning crew"
"So, you DO sift through the trash!", laughed Kolenda.
"Well, it’s more than that. If he is in his own building, like Newman, we approach the attorney with a new housekeeping contract that beats what he’s paying now. He thinks he’s reducing his overhead with cheaper cleaning people, but what he’s really done is invite us in to clean out his hard drive. Our cleaning crew really does clean, but the supervisor of the crew, uh that’s me, pops a floppy into the computer and knocks off a copy of the file on this case. We can then read correspondence to his client, to his experts, to his girlfriend," Robinson laughed. Kolenda continued to smile, but the muscles in her face began to ache.
"Newman’s already agreed to change to our cleaning crew at the end of the month. It’s so easy. They always go for it. I also have a little surprise for him called "Really Blind Copy". It’s a little routine that I load in his e-mail program and it automatically sends a blind copy to an e-mail address that I have set up. His computer never shows that it’s sending me a copy of every e-mail sent. I sift through the junk and forward the good stuff to you."
"Oh, you’re good, really good," purred Kolenda, fighting hard to keep on smiling.
"If you like that, you’ll like this. I’ve got a cell phone transponder that we place in the attorney’s car. He makes a call, it’s rebroadcast on a transponder to a recorder, then we can pick out the good calls and forward you a transcript. Believe me, I will get you some good stuff from the cell phone."
"You devil! How do you get it into his car?", Kolenda asked, now wondering if any of this surveillance is being used on her.
"Piece of cake. We have a guy go around to their office and tell them he will wash cars on site for a good price, but the first wash is free just to show how good a job he’ll do. The attorneys always bite on it, and we install the transponder inside the car where no one will notice it. Expensive little toy, but worth it on a case where $31 million is up for grabs," bragged Robinson.
As Robinson told her of other surveillance techniques he would use and then started telling stories about other cases he had worked on, the sun slipped out of sight. A line of clouds along the western horizon began to turn red and pink and orange, and the sky outside of Kathy Kolenda’s eleventh floor office near the beltway began to darken from the east. Kolenda would normally have enjoyed her front row view of the sunset, but she was ready to be rid of Mark Robinson. She feigned a headache, shushed him out of her office, put him on an elevator, then returned to her office and locked the door. The tape she had recorded was good, very good. Every despicable thing that Mark Robinson planned to do to Jay Newman was recorded.
Now what? Kolenda had not known what to expect from Robinson, but she had expected something and had thought all day about how to protect herself. There was also Jay Newman to consider. While Kolenda was highly competitive and wanted to win this case, or at least hold down the damages, she could not abide the intrusive and illegal acts that were about to occur.
It was worse than she thought. Robinson and his bosses at the excess carrier would do anything to avoid having to pay all their money. She had no idea how often this occurred, but she had never seen anything like it. Kathy Kolenda was not going to let this happen. However, if she protested, the carrier could simply pull her off of the file and replace her with someone else But if she did not object, she could be prosecuted as a co-conspirator to industrial espionage.
She thought about the facts of the case again. A speeding, inattentive truck driver impaired by alcohol plows a Peterbilt 362E box cab tractor over a new Mercedes and kills the chairman of the board of a publicly traded company who was the loving father of two kids, and is grieved by a widow and two parents. Jay Newman was going to get a big verdict on this case. Before trial though, he would send a Stowers letter demanding the policy limits, and because of the huge earning potential of Dr. Le Croix, he should probably get it.
There was a way to make things right. Kathy Kolenda did not know if what she was about to do was ethical or not, but it had to be better than what Mark Robinson had planned. She took a piece of stationery and began a handwritten note to her old friend.
"Dear Jay, I have an ethical question and you seem to be the only person I can ask. I must phrase my question in the form of a hypothetical, but I insist on paying you a fee for your service. Could we meet privately? Please don’t call me. I will come by your office early one morning before the end of the month and ask your receptionist for an appointment, but hopefully I will catch you in and we can have a quiet talk."
Kathy signed the note and put it into an envelope. She had decided to warn Jay of what was about to happen, but she would phrase their conversation as a hypothetical and both would keep up the fiction that they were not talking about Le Croix v. Thompson Brothers Trucking. Jay would change his mind about hiring the new cleaning crew, decline all free car washes, avoid valet parking, put a password on his computer, start shredding his trash, and raise his security level until Mark Robinson gave up and went back to New Orleans. At least, that is what Kathy hoped would happen.
She looked out the window again. It was dark. Night had fallen.
The ribbon of headlights seemed to stretch forever on the beltway
as people hurried home to their families, but there was always
room for one more car. She grabbed the tape, took a bite from
the last beignet and headed out the door.
Copyright 2000---Albert Hollan
This story is fiction. All persons and events portrayed are fiction. This short story was an entry in the Fourth Annual Houston Bar Association Fiction Contest.