Longform

Hidden Damage

Page 9 of 12

"We may lose," he says, "but there's no way I'm dismissing this case and giving in to State Farm."

McClelland agrees. They walk back into the courtroom. Gold tells Anderson that if he can't have the proceedings delayed, he wants to make a record for appeal about a witness being disclosed on the day of trial. This time Anderson gives him the continuance.

Gold's willingness to go to trial apparently strikes the defense as sheer folly. A few days later, Rodman calls to let him know he's making a big mistake.

"He says, 'This case should be dismissed,'" Gold recalls. "He says, 'When this is over, I'm not coming after your firm or your client. I'm coming after you personally for pursuing this frivolous case.' Believe me, that conversation ended abruptly."

Gold takes advantage of the continuance to find out all he can about the injury McClelland suffered when she was unloading an ambulance during her volunteer EMT days. The hospital report, dated November 2, 1996, says she fell "head first" but landed on her knees and hurt her back, not her head. Witnesses who saw the fall concur. The "strange behavior" McClelland displayed after the fall seems to consist of staring off into space -- daydreaming, perhaps. It's also possible that Elaine Stores is confused about her dates. As Gold sees it, the surprise witness isn't a problem at all.

The delay also gives Gold time to reach a surprising and self-effacing decision. He asks Tom Metier, a 46-year-old Fort Collins attorney with considerable experience in brain-injury cases, to join him in trying the case. In effect, Gold is giving up total control in exchange for the financial and legal resources of a seasoned litigator.

A folksy, soft-spoken Iowa native, Metier started his legal career doing defense work for insurance companies but soon decided he didn't have the stomach for it. "It was a place to start, a good place to learn some trial skills," he says. "But it didn't take me long to figure out that this is an unfairly matched game. We weren't taking responsibility for the injuries to the plaintiff. It was just a matter of advocacy, and the insurance-company attorneys had all the trial experience.

"We would make recommendations to settle a case on a fair basis, and the companies would refuse to do that and tell us, 'Just go try the case.' We were beating the plaintiffs out of money justifiably owed to them. Unless you're involved in the system, you don't really see what happens."

Metier likes the case. He meets McClelland and likes her, too. He agrees to step in as lead counsel. He and Gold begin working on trial strategy.

Months pass. Late in March of this year, two weeks before the trial is slated to begin, the defense finally puts a settlement offer on the table: $2,000.

By this point, Gold and Metier's costs on the case have topped $60,000. Under Colorado law, if the plaintiff doesn't win a verdict above the defense's settlement offer, then he's liable for the costs of the defense. "They offer a meaningless settlement," Gold explains, "so that in case the jury offers us a thousand bucks or something, we still have to pay all their costs."


The Trial

Days before the trial, Greg Gold's wife, Muriel, gives birth to twins, a boy and a girl. Gold sees his babies for a few moments in the middle of the night, on his way to bed after grueling prep sessions at the office.

Judge Anderson, a former president of the Colorado Trial Lawyers Association who writes columns about the ancient Greeks in the Colorado Lawyer, promises both sides an "old-fashioned trial." None of this hurry-up stuff when it comes to jury selection and closing arguments; each side will be able to put on its case.

That suits the Metier-Gold team just fine. Metier serves on the faculty of the Trial Lawyers College, which holds seminars on the Wyoming ranch of legendary buckskinned attorney Gerry Spence, and his low-key approach to trying a case resembles Spence's beguiling sorcery. Meticulously prepared, he manages to seem entirely spontaneous, refusing to be lashed to his notes at the podium, working to project openness and sincerity, to connect with the jury.

"A trial is an event," Metier says. "My style is not to fear that, but to move into that. I truly trust the jury, and I want them to trust me. I'm not going to spoon-feed what I think they ought to hear. How can they trust me if I won't tell them all the facts?"

The defense strategy, as Metier sees it, is "to make Sunserea look like a bad person," a liar and a cheat. His mission is to show the jury who she really is, to tell the whole story.

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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