Baine Kerr was interviewed by lawyer-writer Stephen M. Murphy for his book What if Holden Caulfield Went to Law School?
Challenges in the Dramatic Narrative
MURPHY: Harmful Intent is a legal thriller relating to a medical malpractice case involving breast cancer. Did you encounter any difficulties in trying to dramatize a civil case since most legal thrillers involve criminal cases?
KERR: Yes. I think that is a major challenge. A lot of thought. I don't think I came up with a unique approach to meeting that challenge. Legal thrillers in general are challenging to dramatize because most of the action takes place in rooms: conference rooms, court rooms, etc. And a civil case in particular takes some ingenuity to make things happen in an interesting and visual way.
MURPHY: What techniques did you use in the novel to explain complicated medicine to the lay reader and still maintain the drama of the story?
KERR: That was another challenge, another potential obstacle to a dramatic narrative in addition to just the lawsuit which is a long, drawn-out, tedious, and boring affair. With both those issues, one technique is to have a client who is very naive in the ways of the court system who constantly needs to have things explained both medically and in terms of what's going on in the litigation. So the lawyer can explain to the client and educate the reader. And similarly in medicine, medical experts can explain medicine to the lawyer. The other way to do it was to set up the protagonist, attorney Peter Moss, as experienced in these kinds of cases. He approaches them in a certain way; therefore going through his strategic thinking allows for exposition of what medical issues are important and how they can be communicated to a jury.
MURPHY: The case itself, in terms of the failure to diagnose breast cancer, seemed, from my perspective having done some malpractice cases, to be a clear liability case at the outset. Were you concerned in writing the book that you would lose some readers who might think, what's the drama here? What did you do to try to avoid losing those readers?
KERR: It definitely was a clear liability case. The suspense never depended upon it being a whodunit. It was obvious who did it. The suspense I was hoping to generate was through an examination or a mystery about motive. Why would a doctor, who presumably knows what he's doing, have let this much time elapse? Sort of a whydunit, not a whodunit or a what-happened in terms of motivating the suspense. I wanted the case to be one that would, with the litigation, get better except not as good as the early settlement offer indicated. And that's by Colorado standards, which is a highly tort- reformed state. But I wanted motivation always to be the source of suspense. Why are they offering to settle so early and at fairly high levels? What motivated Bondurant?
The protagonist’s wife Sally is sort of the intuitive side that questions his analysis and tells him he has to take his analysis deeper. You've got to understand this man. You've got to understand his family, she even intuits at one point. So motive is really what that was all about. The case did look like a winner at the outset, but as we know, those who prosecute these cases, your own client is as important as the defendant's culpability. And that's where the case starts going south. With the heroine of the book, Terry Winters, who is a difficult client in every sense of the word. And a flaky client in certain senses, except in the context of what she was facing which is the imminent loss of her life and leaving a daughter behind.
MURPHY: She's the ultimate difficult client in that she disappears right before the trial.
KERR: Yeah, and that's not good in the real practice of law.
Describing the Reality of Prosecuting a Case: Altered Records and Phantom Phone Calls
MURPHY: Even though it is a clear liability case, the defense attorneys still fight it as if there’s no liability. I think you do a great job summarizing the defenses: the Judgment Call Defense, a.k.a. Hindsight Is 20/20, a.k.a. Medicine Is An Art Not A Science, the Low Index of Suspicion Defense, the Respectable Minority Defense, the Phantom-Phone-Call Defense. You really made a compelling examination of the realities of prosecuting one of these cases.
KERR: That was definitely a goal. As all of us who practice in this area know, the reality is not something that the lay public understands very well and not something that TV educates them on. You see the Phantom-Phone-Call Defense over and over again: something is completely undocumented and uncharted. A critical conversation that is either frankly suborned perjury by the opposing counsel, or a massaged and reconstructed memory that is far from anything that actually happened. That's basically when the doctor supposedly is talking to the patient and tells the patient to come back or get a second opinion or whatever it is. It’s not documented anywhere but is clearly recalled, five or ten thousand patients later. These are very hard-fought cases. There are tremendous advantages on the physician side in that physicians are quite rightly held in high esteem, although maybe not quite as high as in the past. The defenses, like those that you mentioned, can work even in a case that seems open and shut.
MURPHY: In this case Peter Moss hires a documents examiner who discovers that handwritten notes have been added to the typed chart a few years after the events documented. A similar thing occurred in The Verdict, probably the most famous med mal legal thriller because it became a hit movie. Were you influenced at all by The Verdict in any of the plot ideas in Harmful Intent?
KERR: I don't think so, although I think it's a terrific movie. I've seen it three times. At least one of those times was in the last five years. At the time it came out I was sort of offended by it because no ethical lawyer behaves in the way Frank Galvin does. He got a settlement offer that he never disclosed to the client. I was a young lawyer at that time and saw that as a terrible way for the profession to be portrayed. But I've gotten over that. And I really like the movie. The alteration of records did not come in any conscious way from The Verdict but really from the realities of the practice. I mean it just happens. I probably don't have a year go by without encountering altered records somewhere.
MURPHY: Other than obviously different colored inks, how do you figure that out?
KERR: I had a case that made me adopt the practice of always subpoenaing the original records at the very outset, and not relying on photocopies. A young woman had shortness of breath and chest pain, was evaluated, sent home and later wound up in the hospital with a massive pulmonary embolism tested for, and was comatose. Obviously a huge damages case. The family physician who had first seen her and dismissed her shortness of breath and chest pain as anxiety was in the hospital and saw that she was in ICU. He went back, pulled the chart, added six entries, which were mostly data of tests that he never gave. Then he actually used white-out on the abnormal values in the chart. I just got photocopies in that case and never knew this until seeing the original chart. It was so obvious with thick gobs of white-out all over it. But getting the original chart and looking at it with a high suspicion for the possibility of alteration is now standard in every one of these cases. In that case, the problem for that doctor was he wasn't aware that his clinic had faxed over a page of the chart on a request from the ER. So there was an unaltered page in the hospital record which made proof of alteration very easy. In Harmful Intent the documents examiners lab is where this all comes out. That was a chapter I enjoyed writing very much. And it's pretty close to some of the things you go through in cases where there may be alteration.
The Question of Motive
MURPHY: Getting back to the motive of Bondurant not to treat this cancer, I wonder if you went through a checklist of different types of motives to evaluate which one a reader would find most credible. It seemed it had to be something criminal and I wonder if there's anything else you thought of that you discarded as a motive.
KERR: That's a very interesting question. And it kind of gets back to your opening question about the challenge of writing about a civil lawsuit. I did write about a civil lawsuit that was actually a Trojan horse for criminal conduct. Motive is theoretically irrelevant in most civil lawsuits. A medical malpractice motive is irrelevant; it's just what was the care, what are the standards, did the care meet the standard, not why did the care fail to meet the standard. But clearly the reader of fiction - and actually juries - almost always needs to know more.
The way I started this book was to first arrive at characters - the lawyer Peter Moss and the client Terry Winters. Then the overall structure of medical negligence in that she had a neglected breast cancer that had been let go so long it was likely to be terminal at some point. And then I just started writing the case pretty much along the chronological lines of how a lawsuit proceeds without knowing what the motive or the negligence would be. I probably got through seventy five pages of manuscript with that question always in the back of my mind before it all came together with the motive that in fact is the one in the book. I won't give it away but it seemed just the right one because it brought together all of the themes and characters: the relationship between mother and daughter, when you’re leaving your daughter and losing your life to ensure that she is as strong and protected as she can be. Later, the holes in Moss’s own family life that he was trying to patch up. I can't remember now what motives were discarded. I think I toyed with some sort of HMO - economics of medicine issues - which I think could be perfectly well-written and has been written about to a certain extent. So I picked a motive for these particular characters.
MURPHY: One of the ways that Peter Moss gets clued into Bondurant's motive is because Bondurant's daughter actually comes to him and reveals key information. In reading the book, something occurred to me that you hear about in writing fiction that the protagonist is supposed to be the one who generates whatever the success is. In this case, even though Moss really did an incredible job on the case, the ultimate discovery of the motive was sort of fortuitous. I wondered if that concerned you in resolving the plot and in revealing the motive.
KERR: That's another great question, Steve. I actually gave a lot of thought to that and the initial version of the book, which remains the one I like best, was a hundred pages longer and those hundred pages were all from the point of view of the client Terry Winter. And they expanded greatly on her spiritual quest in Mexico as she knew that her life was ending. That was too much for the editors. It took away too much from the focus of the legal and courtroom drama in their view although I tried to keep a fair amount of that there. But my idea was that there were two protagonists here. And there were two investigations that would both drive the plot and drive the suspense. There was the lawyer’s factual investigation and the client's spiritual investigation. And they would both converge really with the same point of understanding and at the same place and time. That was the return of the client and her daughter to the lawyer just in time for the trial.
The trial would be the synthesis of those two investigations: the mother and the daughter, in their journey to Mexico to confront what happened and why and how to gain strength from it, which is the spiritual quest; they come to an understanding about their foe that is actually coincident with the lawyer piecing that together from the evidence he has. It’s relatively simultaneous but the full breadth was really revealed by the daughter herself when she took the stand. That was the idea anyway. I was also playing off the journey of the hero-quest story. That was more fully worked out in the portion of the book that did not make it to publication. But that is going off to a series of quests and tests and coming to enlightenment and then returning with restored powers.
MURPHY: That would be Terry of course.
KERR: That would be Terry. That's the Joseph Campbell myth basically. And she returns with the strength to slay the foe and to fortify her daughter and as it turns out, her lawyer through the process.
Structuring the Book
MURPHY: I have a question on the structure of the book. You divide it into four parts: the case, the client, the trial and the judgment. It's obvious why the trial and judgment would be at the end. I just wondered if you considered putting other parts in that I've seen in other books, for example the plaintiff's attorney, the defense attorney, the defendant , and maybe changing the order. What led you to decide to structure it in this way?
KERR: This structure grew out of what I was just describing: the two different levels that were proceeding on a factual plane and a spiritual plane at the same time. That's the case and the client. That's where that came from. As published, the client part was a little different than as initially envisioned. The case was really about Moss's putting together the winning case, which culminated in the revelation of the diagram that had been obscured by the alteration of the document by the doctor years later. That was the final nail in the structure of the case that the lawyer was building against the doctor. The client is where things go south and everything that Moss has built is threatened - even to the point of document alteration as you mentioned being turned against him. And then the trial and the judgment as you say are pretty self evident.
The case and the client I chose, rather than the plaintiff's attorney and the defense attorney and so on, because I really wanted to write about these twin protagonists. I wanted the reality of a lawsuit like this to be seen through the eyes of the lawyer and also through the eyes of the client because they are really utterly different experiences, I believe. And I think you would probably agree from your cases. They're two different realities in fact.
MURPHY: Not only does the client Terry literally go south to Mexico, but the plaintiff's expert goes south in his deposition.
KERR: Yeah. That's almost a direct description of an expert who went south on me.
MURPHY: I noticed that you have the expert living in Manchester, New Hampshire which struck a chord with me because I lived there for a year.
KERR: Well, I guess I can say without further identification, that the real deposition of that expert happened in New Hampshire. So I'll never forget it. Writing that chapter was a way to try to exorcize that from my memory.
MURPHY: In the book you describe a lot of the strategies of the plaintiff's lawyer Peter Moss in prosecuting the case. In your own practice, do you ever hear from defense lawyers that they've read your book to try to figure out how your strategy is in that particular case?
KERR: I have heard that. They don't tell me what they glean from doing that, but several of them have said that they've read the book. A couple have said that the reason for doing so is to get inside how the plaintiff’s case is put together by me.
MURPHY: In your second novel, Wrongful Death, you go in a different direction by bringing the Bosnian conflict into a medical malpractice case. I know you've had some experience in Bosnia. Did you get to use that in writing the book?
KERR: Oh, yeah. I had the wonderful experience of a sabbatical year in Europe in 1997-1998 and I spent part of that year in Bosnia and the rest of it in The Hague. I was a member of the Press Corps of the International Tribunal for the former Yugoslavia. The work in Bosnia was elections work. And that was just a hyper-stimulating experience, provocative, a really transforming experience that I knew I wanted to write about it. That was the motivator for the book. To set a book in the States - because I didn't think I could probably sell the book otherwise - that tried to convey the meaning of what I learned that year. That was the whole idea of the book.
A Writer Before Becoming a Lawyer
MURPHY: You've also written short stories, one of which was included in Best American Short Stories. I'm sure you encountered some different problems or issues in writing the long-form novel than with the short story. What kind of problems did you have and how did you overcame them?
KERR: I wrote really nothing but short fiction for about twenty years or more. And I have a collection of stories that was published a long time ago by University of Missouri Press. I thought of myself as a short story writer. But my stories were always a little voluble and digressive and they were always spilling over; they were anything but the Raymond Carver minimalist style of story. What I now see with the novel is a much more natural form for me. The stories were kind of novels that were being constrained into a short story form, although many of them really wouldn't have had the breadth of concept to sustain a novel. But that was still the impulse each time. So going on at greater length in the novel form is really a much more natural form for me, I realize now. I probably should have been focusing on it much earlier, although short stories are much easier to do when you are practicing law at the same time.
MURPHY: Were you a writer before you became a lawyer?
KERR: Yes, I was. I've actually been through writing programs at Stanford as an undergraduate and the University of Denver. Then I was a freelance writer, a newspaper and magazine journalist, and a magazine editor with an aspiration to be a literary fiction writer of short fiction. And that's where the short fiction came from. As anyone knows who wants to make a life of writing literary short fiction you know you can't do it and make a living. So law school was not an afterthought, but the economic need was what got me there rather than wanting to be a lawyer above all else.
MURPHY: One final question. I did an internet search of your name and I came up with some references to Baine Kerr and President George H.W. Bush. I assume there's only one Baine Kerr in the world, unless it's your father.
KERR: It's my father, in fact.
MURPHY: Was he an advisor to former President Bush?
KERR: He's a lawyer and was both his business and personal lawyer for many years and is a close confidante of his.
Reprinted with the permission of Stephen M. Murphy.