The Court's Expert

Contents

Prologue

1    Litigator

2    Finni’s Ristorante

3    Fresno State Campus

4    Tule Fog

5    Semester’s End

6    Diagnosis

7    Recovery

8    Treatment Begins

9    Tragic News

10    Home in Three Rivers

11    Barnes the Caregiver

12    Client Interview

13    Guilty Client?

14    Summary Judgment

15    Court’s Expert

16    Status Conference

17    Mediation Conference

18    Deposition

19    Deposition Resumed

20    Further Mediation

Epilogue

Prologue

Shocked and incredulous, Marti Barnes struggled for meaning following her summary dismissal by the executor of the Lawrence Martorano estate. She sorely missed her routine serving as live-in caretaker to the old man at his foothills estate in the southern Sierra Nevada range. Barnes, a licensed vocational nurse, had provided critical care to her recently deceased patient. She was also housekeeper, chef, and grounds supervisor of his sizeable property near Three Rivers in central California. Barnes had supervised the infusion therapy that her boss, Lawrence Martorano, had needed every twenty-one days over the past six years. Experienced in giving this care, she set a needle in her patient’s vein and supervised his three-hour treatments. Martorano was eighty-six years old when he died in his sleep, no mean feat for someone with health challenges who for most of his dotage maintained a running blood-alcohol level never under 0.03 percent. The circumstances of his passing troubled the family, and when they learned of Barnes’s claim, they ran to law enforcement officials.

Martorano had left a large estate estimated at one-tenth of a billion dollars. His heirs had harbored no ill will toward Barnes until she revealed her boss’s alleged promise to give her the mountain property and an annual paycheck of one hundred thousand dollars for the remainder of her life on the condition she care for him for the rest of his, however long that might be. There was no documentation binding the estate to the deal if it existed. The law required such contracts be in writing, but the way Barnes saw it, she had performed her side of the bargain, and now the heirs must do likewise, consistent with their father’s promise.

The local sheriff, a friend over the years, assigned his top investigators to handle the case by the book. Because of the suspicion of foul play for personal gain, the case became a capital homicide investigation with death-penalty implications. Capital punishment was still legal in California, so Barnes was in for a very long ride. Following protocol for such cases, investigators using surveillance methods soon found that Barnes was living in a residence rented in the name of an ex-con whose criminal record included three felony convictions for grand larceny. The case was thoroughly investigated, witnesses were contacted, statements were taken, transcribed, and signed under penalty of perjury, and a comprehensive report was submitted to the district attorney. He had his own staff of investigators, and a second thorough investigation was undertaken. The tenant who signed the lease was a three-striker, and more resources were poured into the case over fear that Barnes was or could become a flight risk.

Investigators never learned that she was living there for convenience while searching for her own place or that the three-striker was her nephew. The arrangement was working well enough although Marti did not warm up to most of the visitors. She occupied a bedroom without charge and did most of the cooking while trying to get back on her feet. Her skills were in high demand, and she was confident she could find another position shortly. She busied herself arranging interviews.

Marti was unaware of law enforcement’s focus on her nephew, whom a snitch claimed was planning a major criminal heist involving at least three other conspirators, two of which had extensive criminal records. A prompt arrest by law enforcement to preserve evidence of criminal activity was planned. Investigators believed they had to move quickly, applying overwhelming and redundant resources in excess of conventional force procedures. Once the suspects were under arrest and in custody, the DA could take all the time he wanted to review the case. A task force was assembled. A surprise strike was scheduled for the following morning.

At 6:00 a.m., deputies swept into position surrounding the house, which was located in a quiet rural neighborhood on a three-acre parcel; they were on high alert to prevent escape of any persons of interest in the capital homicide investigation. The entry force, dressed like ninjas in black jumpsuits and helmets to minimize silhouetting, were heavily armored and carried large-caliber firearms. In military style, the burly deputies in pairs planned to move into the house and detonate explosive distraction devices calculated to shock the occupants senseless.

A steel battering ram reminiscent of hewn oaks favored by medieval knights was used to smash the door to smithereens. Entry procedures were rehearsed endlessly in hopes of conserving precious moments of real time. Two rookies assigned to the ram were ordered to break the door by smashing the door frame, beam, and lock. A poorly aimed ram would only render a hole in a hollow panel of the door, wasting all of the five seconds committed to the entire enter-and-secure operation. The object of the procedure was to capture every room in the structure before the occupants could mount any defense under best conditions. Heavily armed deputies, moving quickly in pairs through each room in the structure, overran the dwelling to the astonishment and dismay of the occupants, including Barnes.

Mission accomplished.

1

Litigator

October 2006

Charlie Malone’s neck muscles twitched as his throat released a deep choking belch. He awoke suddenly but could barely lift his head from the surface of the bar. No wonder, gummy drool resisted the movement of his cheek that was glued to the polished finish. With some effort, he broke the temporary seal and liberated his face from its trap. Cautiously he felt the tender flesh. Nothing wet—no blood. Squinting at his blurred surroundings, he realized the contents of his spilled vodka rocks had drained onto his trousers and leached through to his shorts, chilling his privates. Consciousness dawned slowly on Charlie but then struck him like a thunderbolt: he was beginning to unravel in, of all places, the cocktail lounge of the Vintage Press in Visalia, one of the finest restaurants in the San Joaquin Valley of California.

His brain half-numb, he fumbled for all the loose change on the bar, including all the tips for the evening, dropping most of it into his pocket. Dante, the bartender, studied him without protest about the tips and misjudged his level of sobriety as acceptable. Charlie struggled to regain his bearings.

Charlie determined he had not been rolled, this time anyway. What a goddamned way to make a living, much less live at all. Charlie was a lawyer and an active member of the California bar. That is, if there were funds in his office account and his assistant had remembered to send a check to cover his delinquent dues.

Malone had handled and won some big cases over the years and had made a pretty good name in the legal community. But he had slipped, and he knew it. He just needed another big case to get back on track. One or two wins now, and he might even get an offer from a good firm. He was on the verge of understanding that the pressure of his work was overwhelming, but he was a long way from recognizing that alcohol, a lethal enemy, was an ever-lurking assassin and would take his sanity, destroying his very being, if Charlie continued to languish in this lifestyle.

Images of bottles emerged from blurred forms that had floated before his eyes only moments before, and Charlie thought he made out the form of some nondescript derelict leaning against the bar for support, unaware that he was looking at himself in the mirror. Glancing at his wristwatch, he saw the second hand moving and concluded the instrument was still functional.

Nearly midnight, but what day of the week? he puzzled.

The bar was empty. Dante inquired if Charlie thought he could manage on his own. He thought so. Charlie was grateful when he realized Dante had stayed open and remained long enough for him to recover sufficiently and then to verify that Charlie could care for himself. Dante confirmed the time, and the two said their usual good-byes.

Once in the fresh night air, his mind began to function without the glare and buzz. Although he was still not fully clearheaded, he did remember that he had parked in one of the last available spots on Center Street, just a block from the railroad tracks. Not a dangerous part of town, although he hesitated nonetheless, as one never knew these days.

Another reason to get smart about his vices. He’d be better prepared for an emergency if he weren’t so pie-eyed. He made his way to the spot where he had parked; it was near the intersection of the poorly illuminated street and an even darker alley. The glow from a traffic signal a block away flickered on the shiny pavement as it progressed through its colors of green, yellow, and red. He grubbed for the car keys in his pockets and finally made contact in the last possible location. Of course, the last place you look is always where you find the treasure you’re seeking, he mused, regaining his orientation somewhat. With great difficulty, he located the keyhole for the driver’s door, yet the key resisted entry into the slot. Charlie, in utter frustration, grunted and shoved with all his might. Somehow the door unlocked, and he yanked it open.

As he forced his reluctant body inside the vehicle, he heard a swishing noise, and then an explosive crash, and a good portion of the windshield shattered, drowning him in tiny jewellike particles. A violent, stabbing pain hammered into his left hand, but he had yet to realize it had been slammed against the doorjamb as he was pulling the door closed with his other one. Then, a large rock the size of a Texas grapefruit fell with an emphatic thud onto the seat beside him.

As a result of the intense pain in his hand, Charlie lost consciousness momentarily. Regaining his senses, he sobered some. He sat dazed in the driver’s seat, hoping the pain would ease and then realized his left hand was still trapped in the very small space between the door and the vehicle chassis. Struggling to free his hand, he tried to open the door to release it, but first he needed to twist his body to reach the door handle with his right hand. As he gyrated and wiggled in the seat, a piercing sound of bone snapping in his trapped left hand hit like a bomb blast in his ears. The pain was indescribable. With further effort, he managed to free his hand once he opened the door. His consciousness flagged and then failed entirely. Moments passed, and Charlie recovered his senses, knowing he needed medical attention and certain he didn’t have time or the luxury to call an ambulance. The emergency room at the Kaweah Delta Hospital was only blocks away. He thought he could drive himself there. He had no idea who, if anyone, was still outside his car, and he was in no mood to chance yet another brutal attack.

With extraordinary effort, Charlie used his good right hand to get the key into the ignition slot near the steering column, never thinking how lucky he was to have full use of his dominant extremity. Verging on delirium now, he still managed to turn the key; he heard the sound of the battery click, then ignition, and finally the pounding noise of cylinders exploding to life when the engine started. With less difficulty than anticipated, he guided the car into a traffic lane and headed downtown to the hospital.

Minutes later, exhausted, he jerked the car into a space at the emergency-center parking lot. By now the pain was unbearable, and he questioned his ability to walk by himself inside the building. Preparing to leave the car, his eye caught sight of the rock on the right front seat and a piece of paper attached to it. He yanked it off and read the message: Here’s an invoice for a refund of the fifty-thousand-dollar retainer on the Wiggins case—you LOSER!

What the hell … what was the Wiggins case? Then it came to him. Oh yeah, he remembered: the guy was looking at twenty-five years to life on a second-degree murder charge if he forced the case to go all the way to jury trial and lost. A plea bargain in the case was sensible, and Charlie had caught the deputy district attorney at a weak moment just after she had lost a difficult case. She obtained authority from her supervisor to take a manslaughter plea, so Wiggins went up for a minimum of seven years, although chances were good he’d never serve even half the specified sentence. Considering the risks of going to trial, the plea bargain was a good trade to avoid looking at the down card, a euphemism the defense bar used for possible ugly results at trial. On balance, it was a great result, even if Charlie had spent little time on the file.

Note to self: encourage the bar association to forget the Abe Lincoln mantra that focuses too heavily on a lawyer’s time and put more emphasis on the results produced for clients.

True, Charlie had Wiggins’s fifty grand, and Wiggins was in prison, but in the long run he could expect to get out in three or four years. Now it came to him. Wiggins was the guy who was absolutely certain he would be acquitted because of his confidence in his self-defense plea. Charlie had trusted his instincts on this one and managed to convince his client to make the deal at the time. Besides, there was a strong inference that the case had drug-culture features to it, and there was always the risk that if he pushed the DA too hard, investigators would do more work on the file and make much more of it.

Clients usually have overly optimistic expectations for their cases, but no one, including judges, prosecutors, defense attorneys, and jurors, could ever know much less guarantee the outcome of a jury trial. Wiggins had had great confidence in his defense, yet he had to acknowledge that he was the one who brought the murder weapon to the encounter and it figured materially in the death of the victim. Wiggins resisted making the deal, although he later approved it after the judge completed the extended litany required to take a change of plea. Charlie knew enough to realize most of his clients were associated with people who told each other what should happen rather than what could happen in such cases. These guys needed to rationalize their actions, even if they agreed with the judge when the deal was made. Typically, the defense lawyer takes a hit as the excuses flow once the defendant gets back to his element and reports to cellmates and others. No doubt word would now spread through the prison system that Charlie was an attorney who wouldn’t go the full distance for his clients.

Oh well, he thought, Wiggins will just have to get over it. He could just as easily have gone up for a long time had he tempted fate, since trial is always a gamble—whoever the parties are.

The stabbing pain brought Charlie back to the present. He needed medical attention immediately. He stumbled, but made his way to the entrance of the emergency department. Lucky for him, there weren’t many patients in the waiting room, so he received attention promptly. To the intake nurse he offered a perfunctory history of being attacked outside the Vintage Press but provided little detail. He earned suspicious glances from her, yet she maintained a professional demeanor in dealing with this obviously distressed new patient.

Will you be filing a police report? she asked.

Not likely, I didn’t see anyone during the attack, replied Charlie, not anxious to disclose other details like the message he recovered from inside his car.

Very well. I have a call into Dr. Prosser, our orthopedist on duty tonight. This could be a nasty fracture, but we’ll know better after you make a trip down the hall to radiology. Do you feel up to walking over there, or would you prefer a wheelchair? she offered.

Grateful that the nurse did not appear too inquisitive, Charlie replied that he felt able to walk under his own power. He was even more pleased that she showed no curiosity about his sobriety, whatever it was. No discussion of a blood-alcohol test ensued, and nothing was mentioned about the subject during the remainder of his stay at the emergency center.

Charlie went to radiology where films were taken of his left hand and wrist.

Dr. Prosser had answered his telephone summons, and shortly after his arrival, he was studying the films. Serious business, he noted immediately and ordered Vicodin for Charlie.

Right after taking his first painkiller, Charlie was ushered into a waiting station with a flimsy curtain pulled around him. The nurse inquired if he had anyone she should call.

No, not really, Charlie responded in a quiet voice as it hit him. There wasn’t anyone out there, except the accounts-receivable clerk at the state bar, who gave a rip about his condition, and she’d be over it just as soon as his late bar-dues payment hit her desk in San Francisco.

You mean there really is no one who would like to know where you are? I see very few people who are actually alone, she lamented. What’s your story; what do you do for a living?

Objection: compound question, he murmured, not really speaking to anyone. He quickly added, Sorry, that’s just the trial dog in me misbehaving, trying to salvage any gains he had made previously. As soon as he offered the comment, he knew it was out of line, yet when he looked up, he suddenly took notice of the nurse’s green eyes and gorgeous auburn hair.

It’s been a long and disagreeable day—and now this. I’m a criminal defense lawyer. I represent people accused of crimes. It takes all of my being. I was married, but my entire family eagerly divorced me, and we have little contact anymore. They say I’m too busy and distracted. I’m quite certain neither my ex-wife nor any of my kids would be interested in knowing where I am or why. Unless of course, if it might speed up delivery of their support checks. But, enough about me.

The nurse studied Charlie’s countenance and facial expressions.

Charlie looked back and appreciated the compassionate yet understated smile she featured. Charlie tardily asked, while thinking she really did have inviting eyes, What’s your name?

Bernadette Collins. Around here, I’m ‘Bernie.’ That’s really a shame there’s no one for you, she offered, sympathetically delivering condolences.

Well, being on my own has some advantages, but I’d trade the loneliness in a minute—it can be crushing. Charlie suddenly found himself almost stuttering as a fresh wave of pain stabbed into his hand.

I’m sorry, I’m really sorry. I thought I might get your mind onto other things and you might feel better, but I can see I was out of place, she apologized.

Oh, no, no, forget it. I may seem a bit crusty. It’s just my nature and not a pleasant trait I must say. Go ahead, and let’s talk. The conversation is a good distraction, unless you have other patients who need you now.

Well, at the moment it’s quiet, so I’m so glad we have this opportunity. If you don’t mind, I have a personal legal problem that’s been heavy on my heart. Since you are a lawyer, would you mind if I asked you your opinion? It involves my sister-in-law.

What’s going on? Charlie encouraged her to continue. He found himself wanting to hear her speak so he could reap the therapeutic effect that her voice was having on him. He tried placing her accent but couldn’t make the connection so far. No rush, he loved the sound of her voice and sooner or later would ask her if she hailed from Minnesota or Michigan.

Okay, but you’ll tell me if I’m bothering you, I hope. Charlie made no audible reply but nodded his approval that he was ready to hear her story. Her name is Marti Barnes, and she’s a licensed vocational nurse. She’s worked all her life and enjoys an excellent reputation. About six years ago, she heard of a position as a live-in caregiver for an old man, a Mr. Martorano. He was a well-to-do rancher from the San Joaquin Valley, who had retired in Three Rivers, up the South Fork Road.

Yeah, I know Three Rivers, Charlie interrupted, outside Sequoia National Park. Lifestylers and artsy crowd, right?

"I think so. Anyway, it seems the old man’s family was caring and supportive enough but just couldn’t manage the time needed for all his problems. He had the usual collection of aging troubles, an illness, and an immune system deficiency. Besides, he was a real handful. The family decided that a live-in was the ticket, but no one lasted on the job very long.

"That all changed when Marti signed up. Mr. Martorano was in his late seventies when she started working for him. His attitude improved once Marti settled in, and they became friends. His immune system was healthy enough as long as he kept up with his monthly treatments. The family relied on Marti for other chores, too, and pretty soon she was in charge of the maintenance of his luxury home in the foothills. Everyone fell in love with Marti. Professionally, she had finally come into her own. She was very happy feeling needed and knowing that she was making a real difference in the old man’s life.

She’d been on the job, living in his home in Three Rivers for many years when Mr. Martorano suddenly became seriously ill. Despite all the efforts of his doctors and Marti, he did not improve. He was admitted to the hospital, diagnosed with pneumonia, and never left. He died five days later.

Charlie twitched involuntarily and found himself concentrating now. He began to log names of the players as Bernie continued with her story.

His estate went into probate. It turns out he was worth over one hundred million dollars. Charlie snapped together all the attention he could muster at the moment.

"As you might guess, people claiming a share of his treasure came out of nowhere, including my sister-in-law it seems. But that’s just Marti’s way. She said that the old man had promised her an inheritance, something about an oral agreement to make a will, which they say can be enforced in this state because she promised to take care of him for the rest of his years. It seems Martorano had run off so many caregivers, he was afraid of losing this good one.

"Marti said she had kept her side of the bargain, and now it was time for the estate to honor its obligation. There was nothing in writing, mind you, but she said she was to stay in the mountain home with an annual allowance for the rest of her life. She’s fifty-nine years old now, so there’s a lot at stake. Anyway, the lawyer for the estate was very unpleasant to her, so she felt she had no choice but tell him she was going to talk to her own lawyer.

As it turned out, the Martorano family is very powerful and influential. Someone convinced the sheriff to open an investigation, and later the district attorney brought murder charges against Marti. There was no autopsy, or so I’m told.

What charges specifically? Charlie asked, now generating even more interest in the conversation, his legal instincts surging in spite of his painful ordeal.

Murder? First degree? Capital case? and Bernie slipped into muffled sniffling.

My God! Charlie almost exploded, ignoring Bernie’s angst. How he loved the practice of law. In his growing enthusiasm for what he was hearing, he unthinkingly jammed his left hand against the table and quickly jolted himself back to reality.

Bernie sighed, regained a bit of her composure, and continued: She was arrested eight weeks ago and has been in jail ever since, staring at a million-dollar bail she’ll never make. Marti has a public defender, but she doesn’t think the attorney is sufficiently experienced to defend this case. Her defender has never handled a major homicide case before, and she wants an experienced attorney if that’s even possible. Do you know what it would cost to hire one, by any chance?

Excellent question, Charlie replied, complimenting her. The response is, ‘it depends.’ The real answer relates to how much the accused person, Marti in this case, values her life. As you can imagine, that figure changes depending upon the financial circumstances of the particular defendant. Most people in such trouble spend all the money they can find and then some, if they think there is a chance for an acquittal. It tends to be a sizeable amount, regardless.

She might have five thousand dollars available from her meager savings, Bernie paused in distracted thought and then finished her sentence, and with family and friends included, the total could possibly reach twenty-five. Her voice trailed off.

Without warning, the curtain separated, and Dr. Prosser advanced into the patient bay as though he was entering a shower stall. Without personal comment or introduction, he declared, If ‘internal fixation’ computes for you, I’m advising we start the procedure as soon as possible.

Always one to admire a fellow word merchant, Charlie silently complimented the doctor for his pithy presentation. He could learn something from this genius. I think I understand, but could you give me some details? he replied.

Certainly. One of the three sites we’ve found so far in your left hand is badly comminuted, several pieces at one site, and hardware must be installed to stabilize the fractures. You have damage in bone joints as well. Not good either. I understand that you are right-side dominant, so if you had to get such a serious injury, at least you picked your nondominant upper extremity. I must advise you that there is a high risk of permanent damage due to predictable complications following this type of trauma and surgery. Your injuries could definitely become disabling if we do not act appropriately and swiftly. Even if we get an excellent result in surgery, I cannot guarantee the future for you. With that, he departed from view as instantly as he had appeared. Over his shoulder, he added, I’ll call the OR right now, unless you have a better idea, Mr. Malone, and the sound of his footsteps faded away down the hallway.

Bernie and Charlie gazed at one another for several moments before Bernie broke the silence. I’m really sorry for laying this trip on you, Mr. Malone. I guess I just needed to unload on someone who understands. But you have plenty of your own troubles, so please forgive me, will you?

Don’t be silly. To the contrary, I’ve really enjoyed our short visit, and I truly hope I can help Ms. Barnes somehow. Talking about cases is exactly what I do habitually, whether I’m hurting or not. Tell you what, after I’m finished here, I’ll get in touch with your sister-in-law, if that’s okay with her, and we can talk things over. That won’t cost her a thing. Of course, if I take her case, we’ll need to work out a fee arrangement before I get completely involved.

Bernie expressed her gratefulness for bending Charlie’s ear, admitting to him that her primary focus should have been restricted to easing his plight and securing appropriate treatment for him. Charlie assured her that her conduct was both professional and caring, that he had no misgivings about trying to help her sister-in-law.

Bernie excused herself but not without a little self-consciousness about her failure to disclose all the details of Barnes’s problem. Oh well, she thought to herself, there will always be time for Malone to get all the details before he commits to representing Marti.

With a professional air, she bade Charlie farewell, stressing that she would be back to check on him during the rest of her shift. Charlie felt a wave of confidence in his care from Bernie and from what his doctor had shared with him. Stone sober now, he settled in for a brief nap before surgery preparations began.

Malone’s next significant recollection occurred midmorning in the recovery room. Realizing he had been unconscious for some time, he tried to regain his bearings; he failed to recognize anyone in the immediate vicinity. Memories flooded back into mind, and he searched for Bernie’s friendly smile before realizing she was gone. Once the recovery nurse noticed he was moving, she came to the gurney and inquired about his comfort. Charlie confirmed that he felt well enough, although as the memories of the previous evening swarmed into his mind, he became light-headed. The nurse told Charlie that he was welcome to spend the coming night in the hospital if he wished to do so, or he could be released later in the afternoon to rest at home. His orthopedist approved either approach. Regardless, he was to see Dr. Prosser the following morning at 11:00 a.m. in his office.

Oh, and by the way, Nurse Collins left her phone number with the request that you call her as soon as possible—something about a legal case or something, she continued. What would you like to do this evening?

I can be a nuisance either place but get into less trouble at home, so thanks for the invitation, but I think I’ll decline this time. Visions of health insurance co-payments swarmed his consciousness. And thanks for the telephone number. I’ll give Bernie a call today, he added, hoping to convey an air of professionalism.

"Good, I know she will appreciate that. She said she was so very grateful for