By John Merriam
This is a true story. Names have been changed because of the attorney-client privilege, to protect the privacy of the characters, and so the author doesn't get sued.
Shelby was born under a bad sign. I thought he should have had BAD LUCK tattooed on his forehead so he'd never forget that nothing would come easy in this life. He didn't use all the muscles in his head and made some bad choices, to be sure---there was a dark side to him I never saw---but a lot of what happened to Shelby was just from lousy rolls of the dice. I was his second lawyer after he got hurt working on a fishing boat in Alaska. His first lawyer asked me to take over when Shelby's bad luck caused the case to become time-consuming and complicated.
When I met him Shelby was a 40-year-old bear of a man, six feet tall, 300 pounds and barrel-chested. His head was shaved and his large, heavily muscled arms were completely covered with tattoos from shoulder to wrist. By his own account he was born unwanted in Los Angeles and put up for adoption. At age one a couple from Memphis, Tennessee took him home to grow up near the Mississippi River. While a teenager he smoked cigarettes, did some drugs, and developed an alcohol problem.
After graduating from high school in 1978, Shelby went downriver and spent most of his adult life near Gulfport, Mississippi. He quit drinking---with occasional relapses---and worked construction, and on shrimp boats in the Gulf of Mexico. He married and adopted a daughter of his own, Carmen, born in 1988. He got hurt quite a few times at work, mostly on construction jobs, but always bounced back. Both his adoptive parents were killed in a car accident in 1998. Shelby headed north later that year to escape a marriage gone bad.
In January 1999 Shelby got a job as deckhand aboard a 170-foot processing boat bound for the pollock and cod fishery in Alaska. The Pacific Prowess was a ship of 472 tons built in Olympia, Washington just after World War II and later converted for fishing. She stayed near smaller, catcher boats and processed the fish they brought, or took the catch to canneries on land. Shelby was to work long hours for six dollars per hour, plus overtime after forty hours per week.
Shelby got hurt the month after he joined the Pacific Prowess. He was walking forward on the main deck around midnight, working the spring line as the vessel moored in a lonely northern port. There was a hawsehole on deck near the bow, designed to let a thick anchor chain play out from the forepeak, when needed, until the heavy anchor found its resting place. The opening wasn't covered and floodlights from the wheelhouse were not turned on. Shelby stepped into the hawsehole. He screamed as his left leg plunged in to the hip, wrenching his back. Other deckhands pulled him out.
Shelby tried to keep working but finally could stand the pain no longer. The captain let him go to the hospital in Kodiak. The Alaska doctor told him to quit working and take it easy for a while until the problem in his back could be properly diagnosed. After he spent a few days in a Kodiak motel, the fishing company gave him a ticket to Seattle.
When Shelby got to Seattle he stayed at the Bread of Life Mission for four or five days, trying to get the fishing company to authorize a doctor visit. Their insurance adjuster finally showed up, a woman named Laura.
Laura took Shelby to an orthopedist, Dr. St. John, on Seattle's 'Pill Hill'---south of Capitol Hill and just east of downtown, where hospitals in the area first located. The doctor put him through some tests, told him not to work for at least a month, prescribed a muscle relaxant called Soma, and determined that Shelby had a bulge in his spine at the fourth lumbar disc. Laura had already arranged a motel room for Shelby that night, on Aurora Avenue North. When she heard about the treatment the doctor recommended, Laura bought Shelby a plane ticket to New Orleans, a fifty-mile bus ride away from his home in Mississippi. Shelby later told me that Laura said: "You don't expect the fishing company to pay for your hotel while you go through treatment, do you?"
Laura hustled Shelby off to SeaTac Airport on March 3, 1999. He saw a lawyer the evening before he left, wondering if Laura really had his best interests at heart.
Flying toward the Gulf of Mexico, Shelby dwelled on what Dr. St. John had told him. It started to sink in that he'd never work on boats again---not be able to work any kind of physical labor for that matter. When he got to New Orleans Shelby learned that his divorce was final, his ex-wife had taken his daughter Carmen to parts unknown, and he no longer had a house. At that point, Shelby ate 15 Soma tablets---the prescribed dose was one tablet three times per day---went to Bourbon Street and bought a six-pack of beer.
Shelby woke up in Charity Hospital. Although the New Orleans doctors diagnosed him as a high risk for suicide, Shelby was cut loose with the Soma tablets six days later. This time he did make it to the station to catch a bus to Mississippi.
Shelby used beer and his Soma for another try at suicide. He first landed in a Gulfport hospital, then was involuntarily committed by the sheriff's department to a psychiatric hospital in Biloxi. When he was about to be discharged a month later---from a hospital in Bay St. Louis, Mississippi by then---Texas detectives showed up and arrested him as a material witness.
It seemed Shelby had worked a couple years before as a carny at an amusement park in Texas. A young girl had been killed when one of the rides went awry because of shoddy safety practices, Texas claimed. Shelby knew enough about the lack of safety, the detectives were convinced, to convict operators of the amusement park for manslaughter. The operators of the park were not thought to be very nice people. Sometime in April, Shelby was taken to Austin, Texas and placed in a witness protection program. It was at this point that Shelby's first lawyer threw his hands up in the air and asked me to take the case.
Shelby was put up at a motel in Austin. His back hurt a lot. He testified later that the Texas cops made it difficult for him to see doctors because they thought it was too dangerous. He made it to doctor offices anyway, but claimed he could never get treatment because Laura the insurance adjuster would never authorize payment of the bills. Shelby swore that he would hand Laura's business card to the billing person at whichever doctor office he was in, to call for an OK on treatment, but the adjusting company in Seattle would tell the doctor's office in Austin that they had never heard of a "Shelby".
Fishermen and other seamen aren't entitled to workers' compensation. Instead they get a judge-made remedy called maintenance and cure. The maintenance and cure remedy is about a thousand years old, starting with the sea codes adopted in the middle ages by seafaring states on the Baltic and Mediterranean. It consists of a barebones living stipend---$20/day is customary for fishermen in this area---and payment of medical bills until the seaman reaches "maximum cure", or as good as he or she is going to get. Laura had given Shelby $20/day for the month of March, after Dr. St. John said he couldn't work for at least that long. She refused my request to pay any more than that, claiming Shelby wasn't getting medical attention to improve his condition.
Also included in the maintenance and cure remedy is a limited wage-loss component called "unearned wages"---wages the seaman would have earned if not getting sick or hurt, but only for a short time. Unearned wages are due for the immediate period of employment the employer and the worker think the job would have lasted if the seaman had been able to keep working. For fishermen that usually means the season for a particular species of fish or crab. Shelby had contracted to work aboard the Pacific Prowess for the pollock and cod seasons, which he thought would end sometime in June 1999. He left the fishing boat with an injury in February but told me he had not received any wages for dates after that. I called the insurance adjuster assigned to his case.
I'd never met Laura in person, though we had spoken on the phone many times for other cases. She said that Shelby had been paid unearned wages---perhaps more than he was entitled to---including a plane ticket from Seattle to New Orleans.
"How much did the plane ticket cost?" I inquired.
"I think it was about $800."
"Why so much?"
"I had to get it on short notice because Shelby decided all of a sudden that he wanted to go home to Mississippi." Laura said she would send me documentation proving that all unearned wages had been paid.
I took over Shelby's case in May 1999. On June 2nd I got a call from the office of one Dr. Smith, an orthopedist in Austin, Texas. The woman on the phone said that Shelby was there for treatment. She wanted to know how the doctor was to be paid. I gave her Laura's name and number. I didn't find out until later that Laura refused to authorize the treatment.
Laura gave me a lot of reasons why she couldn't obtain the promised documentation proving payment of unearned wages to Shelby. By the end of summer I wearied of waiting and filed a lawsuit in federal court. One of the first things I needed to do was take Laura's deposition to see if she was going to deny, under oath, having been contacted by the office of Dr. Smith in Austin. In the lawsuit I asserted that the fishing company, through their insurance adjuster, was interfering with Shelby's recovery by refusing to authorize medical attention. At the outset of the case, I wanted to know whether I was to be Shelby's lawyer or his witness. Under the ethical rules for lawyers I couldn't be both if my credibility was to be challenged at trial. And credibility would be an issue if Laura took the witness stand and said Dr. Smith's office never phoned her for permission to treat Shelby.
Meanwhile, back in Texas, Shelby was getting frustrated and claustrophobic, to say nothing of having a back that hurt like crazy. He ran away from the witness protection program and hid out for a couple months, "living under a bridge" as he put it. Then he hitchhiked to Seattle.
Shelby appeared at Dr. St. John's office one day in September, without an appointment. The good doctor examined him and wrote a report saying that maintenance and cure should have been paid the whole time since the doctor's last examination in March. Shelby took a copy of the doctor's chartnote and walked to my office a few miles north, in the University District. It was the first time Shelby and I met in person. We got along well. But there was a whole bunch of stuff Shelby wasn't ready to tell me.
Armed with Dr. St. John's report, I demanded more maintenance for Shelby. By this time I was dealing with the insurance company lawyer, rather than the adjuster, because a lawsuit had been started. Brett Wagner was a tall man who had opposed me in many cases over the years. He was from the old school of lawyers, someone who could be trusted, and I took him at his word. Brett agreed to start paying Shelby $20 per day immediately, along with medical bills, but said there was a factual issue about how diligently Shelby was seeking medical attention for whatever reason, between April and September, that would have to await trial for resolution. I knew he was right. Brett would have no problem finding a doctor he could pay to dispute Dr. St. John's opinion, and it was unlikely I would be able to persuade a judge, by way of motion, to choose between medical opinions before trial. That's what trials are for. But trial wasn't scheduled until September in the year 2000. I agreed to let Brett schedule Shelby's deposition real quick, now that he was back in town, to help us both identify which legal issues were in dispute.
Brett worked for a large law firm. Shelby's deposition was taken there, on the 24th floor of an expensive high-rise building in the heart of downtown Seattle. We were seated in a handsomely appointed conference room with a view of the harbor. Shelby was sworn in by the court reporter, and Brett commenced a seemingly endless stream of questions. Insurance company lawyers are paid by the hour and get wealthy by looking for dirt under every rock, examining minute details for any possible way to save their clients money. Shelby's background was a fertile field for Brett to plow. When the questioning came around to why he ended up at Charity Hospital in New Orleans, Shelby broke down and started crying. He got up and ran out of the conference room toward the elevators. Fearing another suicide attempt, I requested a recess and followed my client.
I found Shelby at the bottom of the building, outside on a plaza where smokers gather to inhale and meditate on a view of the King County Jail. He'd just lit a cigarette. I myself had quit smoking almost exactly one year before.
"Hey, Shelby, can I bum a smoke?" I knew I was playing a dangerous game after having beat that habit for such a short time, but I was worried about my client's emotional state. Shelly handed me a cigarette then lit it with a disposable lighter. I coughed and gagged. "What do you roll these things out of, horse manure?"
"No, man, I got store-boughts." He showed me a box of Marlboro.
"I'm not tough enough for this anymore." I was dizzy and almost lost my balance. "Shelby, look, you've got to hang in there until the case gets over with." I snuffed out the cigarette. "If you don't, the fishing company will skate on what they did to you. Get through this or those jerks will get a free ride." He finished his cigarette and pulled himself together. We went to the elevators.
Some insurance lawyers go on the attack whenever they smell vulnerability, regardless of whether it helps their case. My guess is that many of my brethren in the Bar just enjoy being bullies. Back in the conference room with the court reporter, however, Brett cut to the chase and covered the ground he needed. Ever the gentleman, my opponent ended his questioning of Shelby sooner than I'd expected. I asked a few questions, trying to clear up some of my client's answers that seemed unclear, then the deposition was over. Laura was next. Her deposition would take place on a day soon to come, at my office.
I later found out there was good reason for concern about another suicide attempt. My client hadn't confided about the shape he was in when he blew into town that September. Shelby had told me that he went back to the Bread of Life Mission when he returned to Seattle. Four nights were free but five dollars per night was charged after that, he said. What he hadn't told me was that the first night in Seattle was spent at Harborview Hospital, after the police brought him in for psychiatric evaluation. When I got records from Harborview---to follow Shelby’s treatment for a blood disorder that prevented him from getting back surgery---I learned my client had been picked up by Seattle cops before I even knew he was here. On September 16 police encountered Shelby in Interbay. He had self-inflicted wounds and a blood-alcohol content more than twice as high as needed to convict drunk drivers. He told them that he was trying to kill himself and, at the same time, that he came to Seattle to see a doctor for his back pain. Shelby was released from Harborview and strolled over to the office of Dr. St. John as though nothing had happened.
It turned out Shelby had a blood problem that complicated everything. He took a blood-thinner called Coumadin because he had blood clots. Dr. St. John wouldn't operate on his back because the Coumadin might cause him to bleed to death during surgery. As near as I could understand from the medical records, Shelby had a condition called portal vein thrombosis, which meant he couldn't have back surgery even though his back was killing him. Physical therapy was the only alternative. The doctor prescribed physical therapy sessions but they didn't help Shelby's pain. Dr. St. John ordered an epidural injection that September to see if his patient would get relief from steroids shot into his spine. Shelby had a bad reaction to the steroid injection and ended up in Swedish Hospital, arriving by ambulance on October 1st. He was diagnosed with a liver and heart that were enlarged, and a spleen that was massively enlarged---at risk of hemorrhage. My client's dissipate youth was catching up with him. On October 7th Shelby was admitted to Harborview Hospital, again---this time for chronic abdominal pain. The doctors there thought he was at risk of bleeding to death if he had an injury to his spleen, nevertheless giving him more Coumadin because of a portal vein clot.
Shelby again used up the limit of four free days at the Bread of Life Mission, then took his spleen, liver and bad blood to 'live under a bridge' in Seattle. He tried working casual labor but couldn't put up with the pain in his back from lifting. $20 a day isn't enough for a stranger to live on anywhere near Seattle so Shelby didn't stay in motels, joining the ranks of the homeless instead. But Shelby never had any money. His eyes were always clear---those times he came to my office---but I had a feeling he was drinking again.
Laura’s deposition was scheduled for just before Halloween in the building where I work---close to the University of Washington, a couple blocks off the ‘Ave’. The court reporter got there first to set up. My assistant, Marni, showed her upstairs to the conference room where the deposition would take place. Brett and Laura arrived and I escorted them up.
The court reporter had Laura raise her right hand and swear to tell the truth. I wasn’t sure she would tell the truth so got right to the point: “I need to know if I’m to be Shelby’s lawyer or his witness.”
Laura dodged the question about receiving a call from Dr. Smith's office in Austin, but didn't contradict that I may have. That was all I needed. If my testimony was undisputed, I could remain Shelby's lawyer. She claimed ignorance about how long pollock and cod season lasted, for purposes of unearned wages.
"Did Shelby receive any unearned wages whatsoever?"
"His airfare from Seattle to Mississippi was considered an advance against wages."
"How much was that?"
"The airfare was either $375 or $385."
"Whose idea was it that Shelby go home to Mississippi?"
"Did you ever ask Shelby if he thought it was fair that the fishing company pay for his hotel while he underwent therapy in Seattle?"
"I don't remember."
"I notice that in the medical records Dr. St. John writes, 'it is my understanding that the insurance company will require Shelby to go back to Mississippi for his treatment'. Do you have any idea where the doctor got that notion?"
Later, toward the end of the deposition, I returned to the subject of whether she was ever contacted by doctor offices in the Gulf of Mexico area for permission to provide medical attention to Shelby. Laura conceded that the office of a doctor in Austin had called her on June 2nd of that year. She refused to authorize treatment for Shelby, claiming to be unsure of the link between the February 1999 injury and the need for treatment in June. I finished. Brett had no questions and the deposition ended.
"It's cold here." Shelby sat in my office a few days after Laura's deposition.
"I'm going back to Mississippi." It didn't seem to me that Seattle even had a winter that year, but I wasn’t living on the street.
Shelby hitchhiked south. He phoned in every week or two but I'm not sure he went to Mississippi. He was hospitalized in San Antonio, Texas for some of his numerous problems in late November and early December 1999. In January 2000, 11 or 12 of the amusement park operators were indicted by a Texas grand jury. I'm not clear about Shelby's role in those indictments but he told me on January 31st that he'd fled Texas---calling collect from the pay phone at a truck stop that he wouldn't identify---and said he might have pursuers. Shelby was on the lam.
I had been sending my client the $20/day maintenance payments while he was in the Gulf area but those got cut off when he hit the road and there were no more medical records to prove to the insurance lawyer that Shelby was getting treatment. Even if I had some money for him, I didn't know where to send it.
Shelby showed up at my office, surprising me on March 7, 2000. "They found me."
"Who found you?"
"How do you know?"
"When I was in Texas a guy came around where I was staying, right after they got indicted, and was asking questions about me. That's when I took off."
"How do you know he wasn't an investigator for the criminal defense lawyers trying to keep those carnies out of jail?"
Shelby paused. "I don't, but I wasn't going to stick around to find out. The only way they could have found me in Texas was through Laura."
"I don't know about that." Shelby sounded paranoid but he had good reason to be. If he was right I could have blood on my hands. "I won't tell the insurance company lawyer you're back in town. But if you don't get medical attention I can't get you any benefits."
"They'd track me through the medical records. I used to work with a guy in Stockton, California who said I could stay down there with him and his wife, because if I stay here they'll find me through your computer."
"I doubt it but I'm not very computer-savvy. I'll ask my assistant, Marni to take as many precautions as possible in handling your case, without sacrificing efficiency."
Shelby didn't hitchhike to Stockton. He stayed, 'sleeping under bridges' in Seattle, and applied for public assistance from the state of Washington. He used my office address for correspondence with the Department of Social and Health Services.
At the end of March Shelby came in to tell me that a Harborview surgeon told him his spleen was close to rupturing and had to be removed if he were to live, but that Shelby could bleed to death from the surgery. My client gave new meaning to the term Hobson's choice.
"What are you going to do?"
"The doctor says I got to have the surgery. I'll probably die, but without surgery he says I'll die for sure. I don't want to die in Seattle, John. It's too cold up here. I want to go to Mississippi and see my daughter once more. I'll get it done down there. I've got some time before I have to decide, but he didn't say how much."
"OK, but I want you to make out a will before you leave."
"Can you get me some money from this case to take with me, John?"
"Probably not. Insurance companies prefer paying lawyers to fishermen. They won't pay anything to you until they have to, 'on the courthouse steps', and trial's not for six months."
"I can't wait that long. I need money to see Carmen before I have surgery."
"Why? Is back child support a problem?"
"No. My ex- ,Wendy, smokes crack. All she cares about is getting money for more crack. She's on welfare and turns tricks to support her habit. She won't tell me where Carmen is unless I give her money."
"How much money?"
"I don't know; a thousand dollars...? John, if I got five grand out of this business I could fly home, see Carmen, and have the operation."
Shelby would be awarded ten, twenty or even fifty times more than that at trial---it was hard to estimate so early in the case. But getting money out of the insurance company before trial was imminent would be as easy as pulling teeth. Subtracting expenses and my one-third contingent fee, I figured the case needed to settle for $10,000 to put $5,000 in Shelby's pocket. "I'll see what I can do."
After Shelby left to prowl the streets I put in a message to Brett Wagner, then talked to a lawyer in my building who did wills as part of his practice. "Hey, Bob, what do you charge to draft a simple will---minimal assets, in fact nothing except the injury case I represent the client on."
"My guy is homeless and doesn't have a lengthy life-expectancy."
"Deal. I'm working for a contingent fee but I'll personally guarantee payment of your bill." I arranged a meeting between Shelby and Bob for the next day.
The insurance company lawyer returned my call. I picked up the phone. "Christmas for your client came in April this year, Brett. Give me $10,000 for Shelby, within a week, and the case is over."
Seamen like Shelby are entitled to a trial, by judge or jury, to determine how much they should be compensated for on-the-job injuries, in addition to maintenance, cure and unearned wages. To receive more than those basic, no-fault entitlements a seaman has to prove that the injury resulted from an unsafe condition aboard ship, or from the negligence of the employer or a fellow employee. Trials over injury to seamen are like car accident cases: Who is at fault? If the seaman is not completely at fault for the injury, he or she is entitled to compensation for pain and suffering, and for lost earnings---beyond the period for which unearned wages are payable.
"We have witnesses who will say that the deck was lighted and that the hole for the anchor chain was never covered, and wasn't supposed to be. The underwriter takes the position that this injury was your client's own fault."
My opponent was doing the dance he was paid to perform. Better than 95% of cases like Shelby's settle, usually just before trial. Brett was paid to bluff---many of his colleagues were willing to lie as well---to convince me he would go to trial and expect to win. He and I both knew that his chances of winning at trial were not good. Even if he did win, the insurance company would probably pay more than $10,000 in expenses for the trial, mostly on lawyer fees.
I love my job. It's like playing 35 games of chess, simultaneously, for money. But getting ready for trial is an effort both time-consuming and expensive. I have to write a trial brief and motions, line up witnesses, and pay big bucks to doctors to arrange their schedules for testimony. So do my opponents. The settlement dance involves a staring contest over who will spend more time and money getting ready for a trial that won't occur.
"Laura is playing games with how much money Shelby has coming for the last four months of the season. Dr. St. John says he's owed maintenance for at least five-and-a-half months. And I notice that you haven't paid Swedish for handling an allergic reaction Shelby had to the epidural injection. The hospital wants nearly $2000 for treatment pretty clearly related to his back injury, even though it hasn't put a lien on this case yet. All that probably comes to well over $10,000. If the underwriter wants to do this the hard way, I'll make a motion for an order of partial summary judgment for maintenance and cure entitlements, get Shelby at least $10,000 ahead of time, then ask for more at trial. Plus, I'll throw in a request that the insurance company pay an attorney fee to me for filing the motion because their refusal to pay maintenance and cure is unreasonable. I was going to file that motion pretty soon anyway, but it would take a month or more to get a decision from the judge and Shelby wants to go to Mississippi right now. If he can get instant gratification he'll settle cheap." I briefly explained my client's dilemma, neglecting to mention that he might not be alive on the trial date. Under the court rules Brett was entitled to see Shelby's medical records and sooner or later would find out even if I didn't tell him.
"I'll relay your demand to underwriters." Brett knew I was offering to settle Shelby's case at a fire sale price, but I wasn't sure he'd be able to convince his clients, the fishing and insurance companies, to recognize a good deal---both had to agree. The fishing company would likely accept immediately, but the insurance underwriter(s)---I wasn't sure if there was more than one, nor whether it or they were foreign or domestic---might prove a problem. My limited understanding of marine insurance is that most of the big money comes from England and elsewhere in Europe. I have seen European insurance types exhibit active hatred toward the American system of contingent fees, unknown in Europe, that allows a low-life like Shelby to obtain a lawyer to represent him on an injury claim. Those underwriters are willing to pay any amount of money to their lawyers, rather than give even pennies to plaintiff-scum assaulting their citadel of wealth---until they absolutely have to. Brett's challenge was to convince the insurance big-boys that I was serious about making a motion for partial summary judgment and they would likely have to pay $10,000 or more to Shelby before the trial even started. Even if he could convince them not to look a gift horse in the mouth, extraordinary steps would be needed to get the money fast. Getting settlement funds from underwriters for clients in the past often required more than a month.
"OK. I doubt you'll get authority to settle, so I'll start outlining my motion." The conversation ended. In addition to making preparation to draft a maintenance and cure motion, I also started working on discovery issues to turn up the heat. If the insurance company wanted to pay their lawyer rather than my client, I wanted to make sure they paid Brett a lot of money.
Shelby came in to sign his will a few days later. He left everything to his daughter, Carmen, even though he didn't know where she was. He named me as personal representative, to carry out the wishes expressed in his will, because I was the only person he knew that he thought reliable. Since proceeds from the lawsuit were Shelby's only asset, I was the logical choice. I didn't protest despite vague misgivings about what I should do if there was money to give Carmen---how to find her and how to legally keep it out of her mother's hands?
Brett called me six days after our previous conversation. "We'll pay $10,000 tomorrow to settle this case, provided you guarantee in writing that the signature on the release is Shelby's."
"It's a deal. Send me the release papers."
I started working on a closing statement, showing how the settlement money would be distributed. The expenses were more than I'd expected---better than $2000 even though the case was nowhere near trial. Most of what I'd spent was for so many medical records that Shelby's case took up an entire file drawer. Shelby was getting a raw deal. I reduced my fee from a third to a quarter of the $10,000 settlement to make sure he'd have enough to do what he needed to do.
Brett sent the release papers to my office by special messenger. Shelby came in to sign.
Brett guaranteed me I'd have the settlement money the next day. I gave Shelby $200 to get a motel, shower and a thick steak---hoping he wouldn't get drunk as well. The ethical rules for lawyers forbid advancing money to clients, and the two hundred bucks to Shelby put me in technical violation. I don't agree with the rules when it comes to helping hurt seamen get by on $20/day or less, and purposely violated it for Shelby. It is my intention, one of these days, to request that mucky-mucks in the Washington State Bar Association change that rule because it gives unfair advantage to insurance companies trying to starve injured seamen into settling their cases for cheap.
The settlement check arrived the next day. So did Shelby. He walked with me to the Bank of America branch on the 'Ave'---recently called Seafirst---to deposit the check into my trust account. The bank didn't put a hold on it so I was able to disburse my client's share of the settlement immediately. Shelby wanted greenbacks.
I sent Shelby to the airport with more than fifty $100 bills in his pocket. I went back to my office. In the foyer I noticed that Shelby had forgotten the paperback he'd been reading. I picked it up to put with his other papers, perusing the book on the way. It was a detective novel written in 1986 by a Doug Hornig, and titled “The Dark Side”.
The court clerk was informed of the settlement and the case dismissed on April 17, 2000. I got ready for depositions to be taken in Norfolk, Virginia for another case, flying to the Chesapeake Bay the day after Shelby left.
"A district attorney in Austin, Texas called about Shelby while you were back east." Marni was helping me quell anomie upon my return from Virginia. "He said he ran the witness protection program Shelby was in."
"What did he want?"
"He asked if we knew where Shelby was."
"What did you tell him?" I silently wondered why the Texas Rangers couldn't control their own witness.
"I said I didn't know. You don't want me giving out information about clients, so I didn't say I thought he might be with his ex-wife in Mississippi. I don't know for sure where he is so, technically, I told the truth."
"There's more to this, John. The district attorney told me Shelby called him from somewhere, crying hysterically, and said, 'I killed her. I didn't mean to do it!', then hung up."
"Oh, brother, he killed his ex-wife." I didn't share with Marni all I knew of Shelby's motives. "I wonder if he's on his way back here."
I was pretty sure Shelby killed his ex-wife because she wouldn't tell him where Carmen was. Maybe she wanted more money than Shelby had. Maybe she took the money he gave her then wouldn't tell him unless he gave her more money...? I didn't know how it happened. But I was also pretty sure I would get a call from the Mississippi police as soon as Shelby was picked up. They would want to know about Shelby's money---where he got it and how much he had---and I was not sure what I was allowed to tell them. I tried calling a professor who taught legal ethics at Seattle University School of Law. We traded phone messages but never made contact. I concluded on my own that I should tell the police only what was in the court file---that the case had settled for an unspecified amount of money. That much was public record and would not implicate the attorney-client privilege.
The Mississippi police never called. "No news is good news," I thought. It was the middle of May. "Shelby must have blown his settlement by now. I wonder what he's living on? What is he doing about his spleen?"
Meanwhile, notices from DSHS had been piling up in Marni's office about Shelby's public assistance. In early June one came stating his medical benefits would soon be cut off because of lack of contact. At that point I decided I had to do something and got the phone number of the Austin DA from Marni.
"Did you ever figure out where Shelby was?" I introduced myself over the phone to a calm, helpful-sounding man named Maxwell Johnson, district attorney in Austin.
"He's in jail in New Orleans, charged with murder."
"Why Louisiana instead of Mississippi?"
"He killed a woman in a New Orleans massage parlor. He never made it to Mississippi."
"How do you know?"
"When Shelby got off the plane from Seattle he went on a three-day binge with cocaine and alcohol. By the third day he was on his third prostitute. She laughed at him because he couldn't get it up. He killed her."
I was too stunned to respond. Questions started racing through my head: Did Louisiana have the death penalty? Would Shelby's blood problem kill him before Louisiana did? What about his testimony at the trial of the carnies in Texas? What if there was some of the settlement left after three days of booze, drugs and whores? How would I find Carmen? Was Shelby's ex-wife the biological or adoptive mother of Carmen? How would the state of Mississippi define their relationship if she were neither? How could I give money to an eleven- or twelve-year-old girl and exclude her mother? What if Shelby had money left to give Carmen but it wasn't enough to cover the expense of me going to Mississippi to find her? Why didn't I take the class on Wills and Trusts in law school?
"Are you there?"
"Is there a way to contact Shelby?" I was almost stuttering.
"I've been in touch with a detective in the New Orleans Police Department named Allen Jones. He's good people." Maxwell rattled off a phone number.
"Thanks." There were a lot more questions I should have asked but I was in shock and wanted to get off the phone to gather my thoughts. I mouthed the customary conclusionary courtesies and hung up.
It's been three weeks now since I learned Shelby is in jail and I still haven't called the detective in New Orleans, but I know I must. He will ask me questions that I'm not allowed to answer; and I will ask him questions for which I don't want an answer.
I doubt I'll ever see my client again. The type of lawyer he needs now won't specialize in maritime law.
John Merriam is a sole practitioner in Seattle representing seamen on wage and injury claims.