Hidden Damage

Page 8 of 12

Gold sends Rodman an offer to settle the case for an amount just under the personal-injury limits of Goodwin's policy, $100,000.

No response.

He finally calls the defense attorney. According to Gold, the conversation goes like this:

"John, it's Greg Gold. Are you guys going to settle this case?"

"No," Rodman tells him.

"Why not?" Gold asks.

"I think you know the answer to that," Rodman replies, and hangs up.

Surprise, Surprise

The trial is scheduled for Jefferson County District Court in April 2001, four years after the accident. For several weeks that spring, Gold works on nothing else. He spends long hours studying depositions and medical reports, reading books about epilepsy and head injuries. He files motion after motion in a futile effort to exclude testimony about child abuse, cocaine and other prejudicial matters.

On the Sunday night before jury selection is to begin, he drags nine boxes of documents from his office to his car to haul them to the Jefferson County courthouse. A blast of wind knocks over one box and sweeps papers across the parking lot. Gold collects what he can and goes home to practice his opening statement on his wife.

On Monday morning he argues half a dozen motions and loses them all. Then he notices a new name on the defense's witness list: Elaine Stores, McClelland's former supervisor at the auto-glass shop. No address is listed.

After some wrangling and a lunch break, Rodman explains that Stores now lives out of state. She is prepared to testify that McClelland hit her head falling out of an ambulance and began to exhibit strange behavior after the fall: The alleged mishap occurred six months before the car accident, raising questions about the true cause of her brain injury.

Gold is frantic. They're about to bring in the jury, and he's just finding out about a key witness who could sink his whole case. He needs to depose this woman. Most of all, he needs to talk to his client, who is nowhere to be found. Complaining of a headache, McClelland left before lunch. Gold calls her mother, her sister, anyone who might have a lead on her whereabouts. No luck.

Rodman tells him he ought to dismiss the case. Gold turns to District Judge Leland Anderson and asks that jury selection be delayed so that he can find his client and take Stores's deposition over the phone. Anderson agrees.

Gold locates McClelland, who's gone home and fallen asleep. She denies any head injury prior to the car accident. In the deposition with Stores that evening, which can be introduced into the record at trial, Gold spends most of his time gathering basic information rather than trying to impeach the witness.

The next morning he asks for a continuance: He needs more time to investigate this new evidence. Judge Anderson turns down the request and suggests a brief recess so that Gold and his colleague John Trueax and their client can figure out whether they want to proceed to trial.

The three of them sit in a patch of sunlight in the third-floor hallway of the Jefferson County courthouse. They look at the floor. For a long time, no one says anything.

McClelland tells Gold she wants him to make the decision. She knows she's right, she says, but she doesn't want her young attorney to lose everything. She wants it to be up to him.

Gold has the distinct impression that the judge wants him to dismiss the case, maybe to spare him the coming slaughter. Dismissal would mean the end of any potential settlement for his client. It would mean that he and his partners are stuck for the $37,000 in costs they've ponied up to date, not to mention Gold's own endless hours on the case. In the normal course of affairs, it would also mean the defense can come after them for its costs, too, but Rodman has offered to waive those if they will simply walk away. If they go to trial and lose, they won't be so fortunate.

Finally, Gold makes up his mind. He would like to think he is responding out of a love for truth and justice, but at the moment, what he feels is an intense dislike of his opponent, a horror of being sliced and diced, squished and dissed by a company he despises. You can't give in to them, he tells himself. If you do it once, they have you; they know you'll always give in.

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Alan Prendergast has been writing for Westword for over thirty years. He teaches journalism at Colorado College; his stories about the justice system, historic crimes, high-security prisons and death by misadventure have won numerous awards and appeared in a wide range of magazines and anthologies.
Contact: Alan Prendergast