Saturday, February 28, 2009

My Bulletproof Days Are Over, I Guess

By the time 2008 ended, my practice was moving along the tracks under a full head of steam. 2009 glimmered before me, promising to evolve into the best financial year of my professional life. As I reviewed the firm's Business Plan, I was able to anticipate growth that would eclipse the bitter, lean years just past, when we struggled so hard to stay underway, to just maintain the hope of forward momentum.

Business was very good, revenue receipts were unprecedented, we were opening more quality files than ever and some of the 7-digit cases I had ardently pursued for 2 or 3 years were starting to resolve, which changed the financial statement considerably. Amidst a flush of optimism and success, all in my professional life seemed to be coming together and running like a Tag Hauer.

Then, as if the Universe needed to balance its books, I received a malignant cancer diagnosis.

And life sort of stuttered and paused.

The journey from normal to "diagnosed" began with a simple presence on my right shoulder blade during the summer of 2008 -- a dark mole which started to catch my eye as I stripped after a workout or toweled off after a shower. At first, the observation of the dark spot didn't really register in any conscious way. After all, it was only the size of a dull pencil point when it first floated into view. Slowly, though, I started to hear myself say: "Hmmm....what the hell IS that thing? I don't remember that mole."

Then, I would shrug, dress and go on with life. There were battles to fight and dragons to slay.

The presence on my shoulder did the same thing. It marched forward too, with its own agenda. It grew.

By December of last year it was the size of a small pencil eraser -- still floating into view every now and then and still buffeting me with an awareness that prompted the unspoken query: "What IS that thing?" Up until that point, my contemplation of the presence amounted only to idle, fleeting curiosity. Nothing more.

My friend, Lee, who is in Med School, saw it over the holidays and was the first person to stop me, catch my attention and state unequivocally that the presence on my shoulder was new, apparently growing and potentially deadly. "You are going to have that looked at," he said to me. " Not in a month, Jim. Now."

And so, to mollify Lee, I made an appointment with a skin mechanic. In due course, therefore, I found myself standing in my dermatologist's office during early January checking out the charts on the walls showing what can happen to unaddressed skin cancers. Trust me. It ain't pretty. What happened to the nice, soothing art doctors used to have on their walls, anyway?

As soon as I peeled my t-shirt off and Dr. Mary Dobson saw the mole, she moaned.

I was pretty sure that was probably not a good thing.

"Oooo...." she said. "I do NOT like the looks of THAT thing, Jim."

She removed it in 90 seconds and sent it off to the pathologists, who reported their findings back promptly: It was a malignant melanoma, Dr. Dobson explained when she called me at work 4 days later to discuss the results. "OK," I said. "Well, so? That's only a skin cancer, right? You scraped it off, right? We're done, right? I'll drop by every couple of years and you can make sure we don't have anymore of those popping up......right?"

Not exactly.

As opposed to the simple, neat resolution cultivated in my head, I was instead trundled off to the surgeon, who explained what would occur: First, they would do a nuclear bone scan -- just to make sure there was no "activity" in the bones. That's what they call it -- "activity." What they mean by "activity" is metastasized cancer. If they find THAT type of "activity" in the bones, you will then have to "weigh your treatment options." That's how they explain it, but what they mean is you are a fucked duck -- mainly because there are no real radiation or chemotherapy options for melanoma. There are immunotherapy options but nothing real promising. Anyway, after the bone scan, they'll do CT scans of the abdomen and chest w/ contrast, Dr. Benton Dupont relates casually, which is how they search for irregular masses or tumors, he explains further. If they find any of those, you get to "weigh your treatment options" again, although--in truth--you are a screwed pooch. Dr. Dupont's explanation is a bit more professional, of course. Once all that's done, they then intend to inject the melanoma site with radioactive isotopes. In that way, they can "light up" the lymph nodes through which that portion of the rear right shoulder drains inside my bod.

At that point in the narrative, blinking stupidly, I ask: "Why do you want to light up my lymph nodes?"

"So we'll know which ones to remove."

"Remove my lymph nodes? Don't I need those? I mean....after all....this 1955 model CAME with those as standard equipment. Won't I pull to the right or something if we yank 'em out?"

"Nah. We'll only take a few....like 2 or 3. After we excise tissue from beneath the melanoma site, we need to take the nodes too. Gotta check both."

"Tissue? Your carving out tissue? Like....a hunk of meat?"

"Well, yes. Both the tissue and the nodes need to be removed and biopsied, Jim. That's the bad news. The good news is--if those come back clear--then you're all good. No problem. You just have to see your dermatologist every 6 months and make sure that we have no reoccurrence of the melanoma -- on the right shoulder or anywhere else."

After laying all this out matter-of-factly, Dr. Dupont hands me off to his nurse, who sets up all the testing, which I dutifully attend over the next 2 weeks.

All the tests come back normal -- no "activity." No masses or tumors. Nothing that makes the sawbones raise his eyebrows. All of this is lauded as good news by Dr. Dupont, who--being a surgeon--reminds me that SURGERY is NEXT.

Very quickly, surgery is scheduled, which I also dutifully attend, going under general anesthesia on Wednesday, February 25, 2009 so that Dr. Dupont can hack off some meat from my right shoulder and scoop out 3 lymph nodes under my right arm, which are (I blindly trust) the "lit up" nodes identified as "draining" the area of my melanoma site. After an early morning 90 minute surgery, I spend the day in the hospital, absolutely gassed on Lortab. My sobriety date is April 19, 1993 so I haven't been drunk in a long time, for which I am thankful. However, on this day, I am as shitfaced as a waltzin' pissant. I am wholly cognizant of my drug-induced debilitation --even through the ache of the surgery sites-- and hate it. I used to drink alcohol in order to feel this way, I reflect to myself, even while stumbling around in my disordered mind. What a moron I was. I'd rather slam my dick in the car door than feel the heavy loopiness which has me alternately slurring or nodding off.

OK, well....maybe that's an exaggeration.

Perhaps just a good country ass-whippin'.

In any event, during the late afternoon I am released in a wheelchair because actually trying to walk would be a joke. Tooled out into the light of a waning day by a chatty orderly, I am dumped from the wheelchair into my car to be driven home by my Dad and a friend, while everyone speaks about you as if you are not present. You think you'd like to say a few words and I may have even tried, however I believe I merely drooled.

Finally delivered home, I worked in a quick puke from the anesthesia, crashed and slept for 12 hours.

When I got up, still a little the worse for wear, I bathed, stretched a little like an old dog and hit the door for the office. I'm bouncing back from the surgery, although I can neither run nor hit the gym for a couple of weeks, which is drivin' me batshit. However, at night, I tussle with the dawning thought that I've just endured the first real "health alarm" of my life. I will get the results of my tests next week and we'll find out whether I'm "clear" or whether it's time to "weigh my treatment options."

We'll see.

Up til now I've pretty much assumed I was bulletproof. Apparently, I'm not.

The words of Billy Crystal's character (Mitch Robbins) from the 1991 movie "City Slickers" echos in my mind, a speech he gives to his son's elementary school class:

Value this time in your life kids, because this is the time in your life when you still have your choices, and it goes by so quickly. When you're a teenager you think you can do anything, and you do. Your twenties are a blur. Your thirties, you raise your family, you make a little money and you think to yourself, "What happened to my twenties?" Your forties, you grow a little pot belly you grow another chin. The music starts to get too loud and one of your old girlfriends from high school becomes a grandmother. Your fifties you have a minor surgery. You'll call it a procedure, but it's a surgery. Your sixties you have a major surgery, the music is still loud but it doesn't matter because you can't hear it anyway. Seventies, you and the wife retire to Fort Lauderdale, you start eating dinner at two, lunch around ten, breakfast the night before. And you spend most of your time wandering around malls looking for the ultimate in soft yogurt and muttering "how come the kids don't call?" By your eighties, you've had a major stroke, and you end up babbling to some Jamaican nurse who your wife can't stand but who you call mama. Any questions?

So, J.R. .... any questions?

Tuesday, February 17, 2009

VIGILANCE

The courthouse in Greensberg, Louisiana is an art deco, monolithic concrete structure plopped atop the high ground in the center of this St. Helena Parish seat. I would say it is situated in the center of town but, over the decades since this structure was erected during The Great Depression's darkest days, the town sort of picked up most of its belongings and quietly wandered away. Thus, I'm not sure we could say it still has a "center." Walking up the long set of concrete steps toward the main entrance to this temple of justice, a single, sans serif word chiseled deeply in the concrete above the front door strikes your gaze: "VIGILANCE."

St. Helena Parish has the distinction of having more elected Sheriffs serving time in the penitentiary than any other Louisiana Parish, incidentally. Currently, the last 2 sheriffs --one of whom was simply known by his nickname, "Gun"-- are serving long sentences for an impressive array of throwback, "old school" crimes which makes it easy to understand why this rural corner of the state, tucked under where the laces to the boot would be, is often referred to as "The Wild West." It looks wild, too. You drive north for 90 minutes out of Baton Rouge and the last 45 minutes of that trip meanders over rolling hills and through dark, thick woods or vacant "cut-over" property stretching for acres and acres. Then, bang, suddenly there's a REDUCE SPEED sign, sleepy Greensberg pops up along 2-lane LA Hwy. 10 and you're there.

Vigilantly, I park, grab my briefcase and stroll beneath an umbrella through the rainy February chill, past the Confederate Memorial, and angle toward the courthouse. This is my sixth trip to Greensberg in 4 months, an unexpected series of journeys that began in my Baton Rouge office the summer before when Mattie Johnson arrived in my waiting room with a couple of daughters and her grandson, Rodney, in tow. She had called the day before to schedule the appointment because, as she explained to my secretary, "those people" were "doing my grandson wrong and I need to see Mr. James."

"Mr. James" is me.

To me, Mattie Johnson --a client I've represented for over 20 years-- is"Miss Mattie."

They arrive early and FILL up the waiting room because these African-American ladies may be of very modest means but they are redoubtable in the extreme. Rodney, on the other hand, is a thin, dark, bashful whippet, withdrawn and quiet for a 17-year-old. Given this, the gold "grill" blazing into view when he smiles is a bit of a surprise. As I usher this entourage into my conference room --my office is too small for this troupe-- I size Rodney up and notice that his "grill" is FUBAR. Two teeth are missing, for one thing. It's a bit askew in general, for another. Apparently these issues are gauged as minor deficiencies because the "grill" remains proudly in place.

Miss Mattie and her family live up the road a piece from Greensberg, in the even smaller town of Independence. Struggling African-American families predominate in these areas but the political system, as well as the police departments, are run in the main by white folks. All of the judges are white. The elected D.A., the A.D.A. involved in Rodney's matter and the entire courtroom staff are all white. Given that it has been signaled that someone is "doing my grandson wrong," I expect to hear a tale of unfairness involving, I assume, Rodney and a brush with the law.

I don't, though. Not exactly anyway.

We situate ourselves and Miss Mattie does the talking.

On a recent July evening, Rodney and Brandy, a female friend, stop at a Greensberg convenience store so that they can pop in for a moment and visit with one of Rodney's female cousins who works there. They park Rodney's Jeep Laredo (which Miss Mattie helped him buy) and zip into the store. After visiting briefly with the cousin, Rodney and Brandy depart. In the parking lot are 4 other young African-American men: The Doughty brothers, Josh and James; along with James Griffin and Desmond Franklin. For no reason Rodney can understand, they accost him as he walks to his car. Before Rodney can even really process what it is they want, words suddenly evolve into punches and the buzzsaw of blows from all 4 men knock out 2 teeth, blacken an eye and jam Rodney into the front quarter-panel of his Jeep, causing a dent that would take $827.36 to repair, which is hard to do when your State Farm deductible for property damage is $1,000. They leave Rodney stunned on the ground alongside his Jeep while they pile into Josh's old Impala and speed away. The police are summoned. Rodney knows the men casually and gives their names, but cannot explain why they attacked him. Brandy supports Rodney's story. The cops, perhaps feeling they are not getting "the full story," say they will "look into it." After making his report to the police, Rodney leaves for a $1,600 Emergency Room visit, assuming dejectedly that he will likely hear no more about the matter and no doubt wondering about the future of his "grill.".

For Miss Mattie, that sort of uncertainty is scarcely sufficient. She is in my office, she reports, because she wants justice. She has been raising sand down at City Hall and, finally, the lads perpetrating this attack on Rodney were arrested. Their arraignment dates are coming up and she wants a lawyer to help her secure restitution for the $827.36 property damage, the $1,600 Emergency Room bill and the $3,150 dental bill received for Rodney's restorative dental work. After she recites all of this to me, ticking off on her fingers each of the costs imposed upon her grandson, she finishes and sits back, chin up, staring at me through her large eyeglasses.

I make a show of writing down all the figures very carefully. Inside, I'm calculating what it will cost me to make a trip to Greensberg to seek restitution because that trip will shoot a full day all to hell. I find myself also remembering that--10 days before--I was locked in a tall building with 9 defense lawyers and a mediator 'til nearly midnight negotiating what evolved into a multi-million dollar personal injury settlement with 2 of the 3 primary defendants. And now, from those dizzying heights, I'm in my conference room with Miss Mattie, who is waiting for me to reveal the plan through which justice will rain down upon her grandson like manna from heaven.

"Well, Miss Mattie," I say, "For me to drive all the way to Greensberg and take a day to make the restitution demand will be too expensive for y'all. Maybe we can just call the District Attorney and tell him what we need. Or, we can let the Judge know of the expenses Rodney has incurred. She'll make restitution a part of the sentence. The law requires it. I can write a letter and that should take care of it. I won't even have to charge you for that, see?"

"Hmph." Mattie responds, shaking her head and looking at me with the kind indulgence one shows toward imbeciles. "Mr. James, you can make all the calls or write all the letters you please, but when we get to Court (pronounced "coat") they won't remember nothin' you said. Now I'm just gonna tell you that. You gots to BE there and they needs to KNOW you there. Then, you can make those folks do right. What would you charge me to go?"

Our eyes meet and I figure--for old time's sake--I can make one trek to Greensberg. I cut my fee in half in my head and then cut it again. I like Miss Mattie and I do want to help.

"Well, I'll need a thousand dollars, Mattie. That's a lot of money," I say...but not nearly what I'll be out-of-pocket on this errand for a day, I think....but don't say.

"Pay Mr. James." Mattie instructs one of her daughters, who dutifully reaches into a purse that could easily hold a small child and pulls out 10 $100 bills. As my fee is peeled from the stash, I see I cut my rate a bit too much. However, a deal's a deal.

And, so I am hired and, being retained, I go.

On my first visit to what I assumed would be the only hearing, Miss Mattie, her daughters, Rodney and Brandy are sitting in the courtroom, waiting for me. I exchange pleasantries with them and then excuse myself to approach the courtroom staff and obtain justice, as Miss Mattie has directed. To my surprise I learn the 4 defendants were all arrested at different times. Thus, they are assigned to different divisions. This means each defendant has a different judge. Each judge holds court on different days. In order to make certain the restitution request is addressed in each case, I will have to make multiple appearances. Today, only one of the defendants is scheduled to appear.

I meet with the Assistant D.A. before the arraignment of the first defendant up at bat, an ADA to whom I had previously mailed, scanned and emailed and faxed a letter outlining in detail what occurred and with which I transmitted all of Rodney's bills, the dentist report, the dental bills, the hospital record, all statements and invoices, Rodney's car insurance dec-page showing the $1,000 deductible and a photograph of the dented quarter panel, along with a sworn statement I had gotten from Brandy, the witness. He has none of it. It is not in any file. He doesn't remember seeing it. I have additional copies and provide those to him. He leafs through them and tells me: "You know, Jim, a lot of these medical bills are paid by Medicare. You can't make defendants pay anything that's paid by Medicare."

I meet his eyes and wonder if I should give any voice whatsoever to the buzz I hear in my head. I wonder if I should mention that I'm representing a victim here and why would the attorney for The People be first concerned with limiting the victim's restitution rights? And, no, the fact that Medicare has paid some of the benefits does NOT limit the victim's right to recover, just like it doesn't lessen the defendant's duty to pay, although Medicare may need to be reimbursed. Why aren't you giving me a hand in consolidating the victim's evidence, I think to myself, so that what is presented at one hearing can suffice as a presentation for the hearings assigned for the other 3 defendants, thereby saving the victim and their attorney the costs and expense of multiple appearances? Why aren't we all concerned with making damn certain the victim gets a full measure of justice?

But, I don't say any of that. Instead, I say: "Right. If you'll look at the statements provided we are only seeking reimbursement for those sums Medicare did not pay and for which the medical creditors are still dunning Mr. Davis."

He looks. Closely. I am correct.

Then he scans the property damage estimate and, after a moment of reflection, says: "We won't make the defendants pay property damage, Jim. The defendants aren't charged with damage to property, they're charged with battery. So, medical bills maybe.....but what's your guy trying to pull with this property damage claim?"

My head buzzes again and I think of several things to reply, all of which start with: "Are you fuckin' kiddin' me?"

Instead, I point to the witness' sworn statement wherein it is confirmed that the 4 defendants rammed Rodney's head into the driver-side front quarter panel of the Laredo, slicing his eyebrow so that 6 stitches were required and making the dent which is the subject of the photo and the estimate. "The law mandates restitution for all damage related to the crime," I say. "I think we can agree this damage was related to the crime, huh?"

He looks at the photograph for a moment and just shrugs. "I dunno...." he says. "Maybe."

We thereafter go into Court. They call up our guy's case first and we both go forward. I introduce myself and my client, explaining I am there to advance a restitution claim on behalf of Rodney Davis. The Judge is Beth Wolfe, a fine trial judge, and I've appeared in front of her many times before. She knows me and is polite. The defendant is called forward and, after a reading of the charge, the guy pleads not guilty. I seek permission to introduce our restitution evidence but the D.A.'s office points out that such a request is technically premature. First, the defendant's guilt must be established. THEN, a requirement of restitution can be imposed by the Court, after a proper showing it is warranted. THEN, Mr. Davis can submit his evidence, giving the defendant an opportunity to accept or reject the restitution evidence. If the defendant objects, THEN a restitution hearing is ordered. Once that process is completed, THEN a specific restitution amount and plan can be imposed upon the defendants.

Given the D.A's position, the Judge reluctantly agrees and apologizes, setting a trial date.

A bit nonplussed at the difficulty in fishing for justice in these waters, I secure an agreement from the D.A. to advance our restitution request in EVERY OTHER prosecution of the remaining defendants and I confirm his agreement in a later letter. Maybe I can get away with making one final trip to wrap things up. However, at the next arraignment of defendant #2, an arraignment I miss based upon my confirmed agreement with the State, a guilty plea is entered and the issue of restitution is totally overlooked, even though Rodney and Miss Mattie are present in Court, quietly watching from the back row as justice snoozes and the defendant is sentenced with NO restitution ordered. They call me from a cell phone once the are back to their car and report the occurrence. "I hates to say it Mr. James, but you gotta watch these people over here in the country."

I vow never to miss another appearance for any defendant and I do not. I never ask for another dime from the client either. I decide to stick it out to the bitter end come hell or high water.

All defendants end up admitting their guilt and none have any excuse or explanation for why they attacked Rodney so viciously on that warm July evening. They merely stare blankly when asked why they did it.

By Friday the 13th in February, I am on Greensberg Visit No. 6, like I was sayin' at the beginning, and am on a first name basis with all the Court personnel, who never fail to cheerily ask me on EVERY appearance: "So, what brings you to God's Country, Mr. Clary?"

Every appearance I re-explain anew my search for restitution and resubmit all of the documentation supporting Rodney's request to be made whole. Each time it is received as something wonderful and totally new. You don't have to be Nostradamus to deduce what would've happened to Miss Mattie and Rodney without counsel.

At the conclusion of this appearance, as we walk out of the Courthouse under umbrellas into the misty rain, I mention casually that I had no idea I would be making this many trips to Greensberg when I agreed to undertake Rodney's representation -- a comment I make almost to myself. Miss Mattie hears it, though. She walks up to me and pats my arm. "Lord God, child, but it's a good thing you did." she reports as if confirming what every infant of tender years should know. "Now, here's a little gas money and you know we thank you kindly."

She slips a $20 bill into my suit coat breast pocket, gives me a satisfied look, pats me on the arm again and departs, leading her platoon to their next destination under brightly colored umbrellas. I watch them leave and return the wave I get from Rodney, who turns back to give me a bashful smile. As I start to shuffle off through the damp to my car, my eye again travels up to the stark admonition above Courthouse door, which stops me:

VIGILANCE

"Man, you ain't shittin'," I whisper to myself, as the rain lightly taps against my umbrella.