The first jury case I ever tried, six weeks out of law school, was against an old lawyer in a black velvet, silver-lined cowboy suit. He was resplendent in polished black boots, a black Stetson banded with silver and turquoise, a black snap-button shirt, a checkered waistcoat, jeweled rings, and a silver string tie. All he lacked was a six-shooter and he could have passed for Gene Autry.
His name was Bob Cheek, Sr., and, unusual as he was, he was a terrific guy. He was well-respected and well-liked in the Knox County Bar Association, and he was accounted by most people to be a very fine lawyer. He was kind and good-natured, and so believable and persuasive that juries often found him irresistible. Opposing lawyers could watch their best cases dissolve before Cheek as he charmed the jury and “smiled you out of court.”
I fondly called him Ramblin’ Bob, and he called me Slim.
In that first jury case, I defended Revco against allegations that its pharmacist had mis-filled a man’s prescription. Those allegations were true, as were allegations that Revco had knowingly employed an incompetent pharmacist. It was as simple as that, and there was no denying it.
The plaintiff was a poor black man who alleged that the medicine had caused him to pass out at the wheel of his car and lose control as he entered his driveway. The plaintiff claimed that when he lost consciousness, his foot hit the accelerator, causing the car to surge forward and strike the corner of his house. The crash, he said, threw him into the windshield and severely injured him.
The medicine Revco had given him—a drug for lowering blood pressure—could, in fact, have caused what the plaintiff claimed.
But when we examined the plaintiff’s car and house we found little serious damage—just a confusing array of dings and dents that looked as though they might have come from several prior collisions. It was clear that something had happened, but it wasn’t clear what.
The plaintiff’s doctor, who practiced in a house down the street from the plaintiff, testified by deposition that he had treated the man for general and varied soft-tissue injuries. He could not say exactly what those injuries were, but he said that the plaintiff’s pain was real.
As I reviewed the doctor’s records, I discovered that he had been prescribing excessive levels of Percocet for the plaintiff for many years. When I asked the doctor if the plaintiff might be an addict, he said, “I suppose you could say that, but I still believe what he says about his injuries and his pain.” He had prescribed Percocet in this instance, he said, and expressed professional outrage that Revco had mishandled his order.
So I had a dilemma: try the case or settle it. There were very few provable injuries from the accident, and the plaintiff was undoubtedly lying, but the fact remained that Revco had given the man the wrong medicine, and I knew no Knox County jury would be happy about that.
In the end, Ramblin’ Bob resolved the dilemma by demanding a flat $500,000 to settle the case. Revco just laughed, so I had no choice but to go to trial.
Regardless of what the plaintiff’s actual injuries were, the elements for a monster verdict were there. Revco’s conduct, and its way of doing business, was frightening. It had hired a pharmacist who had been disciplined three times by prior employers and who was known to have made prior mistakes with Revco. Nevertheless, his superiors had left him alone in the pharmacy, without supervision or assistance, on the day the plaintiff came in.
So what Bob was aiming for was what the law calls “punitive damages.” These are damages assessed to punish a defendant for his actions, and deter him from ever committing them again. Bob would urge the jury to “send Revco a message!” by awarding sufficiently high punitive damages to “get Revco’s attention.” He would warn about how much trust we place in our pharmacists, and how they hold matters of life and death in their hands. He would tell the jury that pharmacies are not just retail stores, but professional healthcare providers who must be held to high standards of professional conduct. He would urge the jury to act resolutely to protect all of Revco’s future customers– even themselves. He would be persuasive.
So this was a risky case for any lawyer to defend– especially a novice like me.
Our defense would be something called “contributory negligence,” a brutal relic of Common Law practice (no longer the law in Tennessee) which held that a plaintiff could not recover in a case where he had “proximately contributed” to his own misfortune. Our defense would be based on evidence that the medication given by Revco to the plaintiff had a different appearance from his usual Percocet, and that the plaintiff should have been alerted to the likelihood of a mistake. He should have looked at the label on the bottle and seen that something was wrong. He should have checked with the pharmacy, or with his friendly doctor down the street. Of course, woven through our defense would be the suggestion that the plaintiff was an addict and was undoubtedly lying.
Yada, yada. That’s all we had, and I didn’t feel very comfortable about blaming the victim after what Revco had done.
In the meantime, Ramblin’ Bob was polishing his silver and getting ready to string ‘em up.
In due course, the case came on for trial in the Third Circuit Court for Knox County before the honorable James M. Haynes and a jury of twelve. The proof went as expected, with Bob eviscerating the Revco representatives and me trying gently to coax the plaintiff into admitting that he should have been more careful. Then, in closing arguments, Ramblin’ Bob did his best to stir righteous indignation in the jury, and I did my best, again as gently as possible, to emphasize the evidence of the plaintiff’s proximate contributory negligence. And, basically, I was counting on the jury’s recognition that the man was a liar.
Throughout my argument, I could sense Bob sitting behind me, perhaps fiddling with this conchos to distract the jury from what I was saying. And I could imagine his patronizing smile at my back, telling the jurors that I was a nice young man but didn’t know what I was talking about– smiling me out of court.
Then the worst happened.
After closing arguments were completed, Judge Haynes instructed the jury about the principles of law they should apply to the case. This procedure is called the judge’s “charge,” and it is usually puts the jury to sleep since it is largely incomprehensible. But one juror—a professor from the University of Tennessee– was listening, and when Haynes reached his charge about contributory negligence he stood up and angrily interrupted the judge by demanding, “You mean they’re trying to blame the plaintiff for what HE did?” pointing across the courtroom at me. Judge Haynes just smiled benignly and said, “That’s right, sir.” Jurors rarely interrupt the trial that way, and this guy had hit the nail on the head.
I wanted to crawl under the counsel table, while Bob sat and smiled at the jury.
The jury was out for three hours, which I tried to view as a good sign, because it might mean that the jurors were not unanimously inflamed by the case. On the other hand, I feared they might be talking about how many millions of dollars in damages would be necessary to get Revco’s attention. I was worried and scared.
During that time, Ramblin’ Bob and I went back into the judge’s chambers to chat and sign some orders, and Haynes said to me with a wink, “What do you suppose they will do?” He was just gigging me, a new lawyer, so I snapped, “Bob hasn’t got a prayer!” and tried to manage a grin. Haynes just kept smiling, and I felt my heart sink. All Haynes said to Ramblin’ Bob was not to scratch the top of his desk with all the rings he wore.
The jury finally came back and, to everyone’s amazement, declared for Revco. I smiled at the jury when the verdict was read, but inside my heart was pounding and my head was reeling. Then I breathed more than one sigh of relief. I had my first win.
Bob, ever the gallant cowboy, shook my hand and tipped his hat as he left the courtroom.
Later, as I was leaving the courthouse, I encountered Judge Haynes in the hall. As we passed, he feigned wiping his brow, and whispered, “Whew!”
I never tried another case with Bob before he passed into history, but we spoke often on the street and around the courthouses of East Tennessee. I loved him like a brother.