The litigators, p.26
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       The Litigators, p.26

           John Grisham


  Dr. Smitzer had completed an illustrious career as a cardiologist and researcher at Mayo Clinic in Rochester, Minnesota, and with an ailing wife headed for the sunshine of south Florida. After a few months, he was bored. By chance he met Jerry Alisandros. One meeting led to another, and for the past five years Dr. Smitzer had supervised the law firm’s medical research, at an annual salary of $1 million. It was a natural fit because he had spent most of his career writing about the evils of Big Pharma.

  In a law firm full of hyperaggressive lawyers, Dr. Smitzer was a revered figure. No one questioned his research or his opinions, and his work was far more valuable than what he was paid.

  “We have a problem with Krayoxx,” he said not long after he’d taken a seat in Jerry’s grand office.

  After a deep, painful breath, Jerry said, “I’m listening.”

  “We’ve spent the past six months analyzing the McFadden research, and I am now of the opinion that it is flawed. There is no credible statistical evidence that the consumers of the drug have a higher risk of stroke and heart attack. Frankly, McFadden fudged his results. He’s an excellent doctor and researcher, but he obviously became convinced the drug was dangerous, then tweaked his findings to fit his conclusions. The people who take this drug have many other problems—obesity, diabetes, hypertension, atherosclerosis, to name a few. Many are in terrible health, and elevated cholesterol can be expected. Typically, they take a handful of pills several times a day, Krayoxx being just one, and so far it has been impossible to determine the effects of the combinations of all these drugs. Statistically, there might, and I emphasize that word, be a slight increased chance for a heart attack or stroke by Krayoxx users, but then again there may not be. McFadden studied three thousand subjects over a two-year period—a small pool in my opinion—and found only a 9 percent higher chance of stroke and heart attack.”

  “I’ve read the report, Julian, many times,” Jerry said, interrupting. “I practically memorized it before we jumped into this litigation.”

  “You jumped in too fast, Jerry. There’s nothing wrong with this drug. I’ve spoken with McFadden at length. You know how heavily he was criticized when the report came out. He’s taken the heat, and now he’s backing off the drug.”


  “Yes. McFadden admitted to me last week that he should have included more subjects. He’s also concerned with the fact that he did not spend the time studying the effects of the combinations of multiple drugs. He is planning to reverse himself and try to salvage his reputation.”

  Jerry was pinching the bridge of his nose as if he might crush it. “No, no, no,” he kept mumbling.

  Smitzer pressed on. “Yes, yes, and his repair work will be forthcoming.”


  “Roughly ninety days. And it gets worse. We’ve studied, thoroughly, the effects of the drug on the aortic valve. As you know, the Palo Alto study seemed to link the leakage in the valve to a deterioration caused by the drug. This now looks doubtful, highly so.”

  “Why are you telling me this now, Julian?”

  “Because the research takes time, and we are just now learning a few things.”

  “What does Dr. Bannister say?”

  “Well, for starters, he says he’s not willing to testify.”

  Jerry rubbed his temples and stood, glaring at his friend. He walked to a window and looked out, at nothing. Since Dr. Smitzer was on the firm’s payroll, he was precluded from testifying in any Zell & Potter litigation, either in discovery or at trial. An important part of his job was maintaining a network of expert witnesses—hired guns willing to take the stand for huge fees. Dr. Bannister was a professional testifier with a thick résumé and a fondness for mixing it up with hotshot lawyers in big trials. The fact that he was now backing down seemed fatal.


  The second blow landed an hour later with Jerry already on the ropes and bleeding. A young partner named Carlton arrived with a thick report and some grim news. “Things are not going well, Jerry,” he began.

  “I know.”

  Carlton was supervising the screening of thousands of potential clients, and his thick report was filled with terrible numbers. “We’re not seeing the damage, Jerry. Ten thousand exams so far, and the results are not impressive. Maybe 10 percent have some loss of aortic pressure, but nothing to get excited about. We’re seeing all sorts of heart disease, hypertension, clogged arteries, and the like, but nothing we can link to the drug.”

  “Ten million bucks on screenings and we have nothing?” Jerry said, thumbs on temples, eyes closed.

  “At least ten million, and, yes, we have nothing. I hate to say this, Jerry, but this drug looks harmless. I think we’re drilling a dry hole here. I’d say we cut and run.”

  “I didn’t ask for advice.”

  “No, you didn’t.” Carlton left the office and closed the door. Jerry locked it and went to a sofa where he stretched out and stared at the ceiling. He had been there before—caught with a drug that wasn’t quite as bad as he had claimed it to be. There was still a chance Varrick was a step or two behind. Perhaps the company didn’t know what Jerry now knew. With all the settlement buzz, its share price had moved steadily up, closing the Friday before at $34.50. Maybe, just maybe, the company could be bluffed into an even quicker settlement. He had seen it before. A company with plenty of cash and a ton of bad press wants the lawsuits and lawyers to simply go away.

  As the minutes passed, he managed to relax. He couldn’t think of all the Wally Figgs out there—they were big boys who had made their own decisions to file suit. And he couldn’t think of all the clients who were expecting a sizable check, and soon. Nor was he too concerned with saving face—he was obscenely rich, and the money had long since toughened his skin.

  What Jerry was really thinking about was the next drug, the one after Krayoxx.

  The third blow, and the knockout punch, arrived in a scheduled 3:00 p.m. phone conference with another member of the Plaintiffs’ Litigation Committee (PLC). Rodney Berman was a flamboyant New Orleans trial lawyer who had made and lost several fortunes gambling with juries. Thanks to an oil spill in the Gulf, he was currently in the money and had managed to piece together even more Krayoxx clients than Zell & Potter.

  “We’re up shit creek,” he began pleasantly.

  “It’s been a bad day, Rodney, so go ahead and make it worse.”

  “Inside scoop from a very confidential, and very well-paid, I might add, spook who has laid eyes on a preliminary report headed for the New England Journal of Medicine next month. Researchers at Harvard and Cleveland Clinic will declare that our beloved Krayoxx is as healthy as wheat germ and causes no problems whatsoever. No increased risk of heart attack or stroke. No damage to the aortic valve. Nothing. And these boys have résumés that make our guys look like witch doctors. My experts are running for the hills. My lawyers are hiding under their desks. According to one of our lobbyists, the FDA is considering putting the drug back on the market. Varrick is dropping cash all over Washington. What else do you want to hear, Jerry?”

  “I think I’ve heard enough. I’m looking for a bridge.”

  “I can see one from my office,” Rodney said, somehow managing a laugh. “It’s beautiful, spanning the Mississippi and just waiting on me. The Rodney Berman Memorial Bridge. They’d find me in the Gulf one day, covered in crude oil.”

  Four hours later, all six of the PLC members were linked into a conference call Jerry organized from his office. After he summarized the grim news of the day, Berman delivered his version. Each of the six took a turn, and there was not a single piece of good news. The litigation was crumbling on all fronts, on all theories, from coast to coast. There was a lengthy debate over how much Varrick knew at the moment, and the general feeling was that they, the lawyers, were far ahead of the company. But that would change quickly.

  They agreed to stop the screening immediately. Jerry volunteered to contact Nichola
s Walker at Varrick and attempt to speed up settlement talks. Each of the six agreed to begin buying huge chunks of Varrick common stock in an effort to drive up the price. It was a public corporation, after all, and its share price meant everything. If Varrick believed a settlement would soothe Wall Street, it might decide to get rid of its Krayoxx mess, however harmless the drug might be.

  The conference call lasted two hours and ended with a tone that was slightly more optimistic than when it began. They would continue pushing hard for a few more days, maintain their poker faces, play the game, and hope for a miracle, but under no circumstances would they continue spending money on their own Krayoxx mess. It was over; they would cut their losses and move on to the next battle.

  Almost nothing was said about the Klopeck trial six weeks away.


  Two days later, Jerry Alisandros made a seemingly routine phone call to Nicholas Walker at Varrick Labs. They went through the weather and some football, then Jerry got around to business. “I’m in your neck of the woods next week, Nick, and I’d like to stop by for a meeting, if you’re in and have the time.”

  “Maybe,” Walker said cautiously.

  “Our numbers are coming together nicely and we’ve made progress, at least on the death cases. I’ve spent hours with the PLC and we’re ready to enter into a formal settlement agreement, round one, of course. Let’s get the big cases out of the way and then slog through the small ones.”

  “That’s our plan, Jerry,” Walker said, in full agreement, and Jerry finally managed to breathe. “I’m taking heat from Reuben Massey to get this stuff out of the way. He chewed me for breakfast this morning and I was planning to call you. Massey has instructed me to get down there with our in-house team and our Florida firms and hammer out a settlement along the same lines as what we have already discussed. I suggest we meet in Fort Lauderdale a week from today, sign the agreement, present it to the judge, and move on. The non-death cases will take longer, but let’s get the big ones closed. Agreed?”

  Agreed? You have no idea, Jerry thought. “A great idea, Nick. I’ll set it up down here.”

  “But I insist that all six PLC members be in the room.”

  “I can arrange that, no problem.”

  “And can we get a magistrate or someone from the judge’s office to be present? I’m not leaving there until we have a deal, in writing and approved by the court.”

  “Excellent idea, Nick.” Jerry was grinning like an idiot.

  “Let’s get it done.”

  After the call, Jerry checked the market. Varrick was trading at $36, and the only plausible reason for its uptick was the good spin about the settlement.

  The phone conversation had been recorded by a company specializing in truth and deception. It was a firm Zell & Potter used frequently to secretly record conversations in an effort to determine the level of veracity on the other end. Thirty minutes after Jerry hung up, two experts entered his office with some graphs and charts. They had camped out in a small conference room down the hall with their staff and machines. They had measured the stress of both voices and had easily determined that both men were lying. Jerry’s lies had been planned, of course, in an effort to prompt Walker.

  Walker’s voice-stress analysis showed a high level of deception. When he spoke of Reuben Massey and the company’s desire to get rid of the litigation, he was telling the truth. But when he spoke of the big plans for a settlement summit next week in Fort Lauderdale, he was clearly being deceptive.

  Jerry gave the impression of taking the news in stride. Such evidence was never admissible in court because it was so wildly unreliable. He had often asked himself why he even bothered with voice-stress analysis, but after using it for years, he almost believed it. Anything to give him a slight edge. Such recordings were highly unethical anyway, and even illegal in some states, so it was easy to bury the information.

  For most of the past fifteen years, he had kept Varrick on the run with one lawsuit after another. And in doing so, he had learned much about the company. Its research was always better than that of the plaintiffs. It hired spies and invested heavily in corporate espionage. Reuben Massey loved hardball and usually found a way to win the war, even after losing most of the battles.

  Alone in his office, Jerry typed an entry into his private daily log: “Krayoxx is evaporating before my eyes. Just spoke with N. Walker who plans to be here next week to sign a deal. 80–20 chance he doesn’t show.”

  Iris Klopeck shared Wally’s letter with several friends and family members, and the imminent arrival of $2 million was already causing problems. Clint, her deadbeat son, who routinely went days without offering her as much as a rude grunt or two, was suddenly showing all manner of affection. He was cleaning his room, washing dishes, running errands for his dear mother, and chattering away nonstop, his favorite topic being his desire for a new car. Iris’s brother, fresh from his second stint in prison for stealing motorcycles, was painting her house (with no charge for the labor) and dropping hints about his longtime dream of owning a used motorcycle business. He knew of one on the market for only $100,000. “A steal,” he said, at which her son whispered behind his back, “He should know a steal when he sees one.” Percy’s wretched sister Bertha was letting it be known that she was entitled to a chunk of the money because she was “blood.” Iris loathed the woman, as had Percy, and Iris had already reminded Bertha that she had not attended Percy’s funeral. Bertha was now claiming she had been hospitalized on that day. “Prove it,” Iris said, and so they bickered.

  On the day Adam Grand received his letter from Wally, he was hustling around the all-you-can-eat pizza house when his boss barked at him for no apparent reason. Adam, the assistant manager, returned the favor, and a nasty row ensued. When the shouting and cursing ended, Adam either quit or was fired, and for several minutes both men argued over the exact nature of Adam’s departure. Not that it mattered—he was gone. And that didn’t matter to Adam either, because he was about to be rich.

  Millie Marino had the good sense to show her letter to no one. She read it several times before the words began to sink in, and she felt a twinge of guilt for doubting Wally’s ability. He still failed to inspire confidence, and she was still angry over her late husband Chester’s will and estate, but those issues were now of fading importance. Chester’s son, Lyle, would be entitled to his portion, and for that reason he had been monitoring the litigation. If he knew how close they were to pay dirt, he might become a nuisance. So Millie put the letter under lock and key and told no one.

  On September 9, five weeks after being shot in both legs, Justin Bardall filed a lawsuit against Oscar individually and Finley & Figg as a partnership. He alleged Oscar used “excessive force” in the shooting and, in particular, deliberately fired the third shot into the left leg after Bardall was seriously wounded and no longer posed a threat. The lawsuit demanded $5 million in actual damages and $10 million in punitive damages for Oscar’s malicious conduct.

  The lawyer who filed the case, Goodloe Stamm, was the same lawyer hired by Paula Finley to handle her divorce. Evidently, at some point Stamm tracked down Bardall and convinced him to sue, in spite of his criminal activities and the fact that he was about to spend time in prison for attempted arson.

  The divorce was proving to be more contentious than Wally or Oscar had expected, especially in light of the fact that Oscar was basically walking away with nothing but his car and clothes. Stamm kept chirping about the big Krayoxx money and smelled a conspiracy to hide it.

  Oscar was furious over the $15 million lawsuit and blamed everything on David. Had it not been for the wage case filed against Cicero Pipe, he and Bardall would have never met. Wally managed to broker a truce, and the yelling stopped. He contacted their insurance company and insisted it provide a defense and coverage.

  With the big settlement so close, it was much easier to make peace, to smile, even to joke about the image of that little thug Bardall limping into court and tryin
g to convince a jury he, an incompetent arsonist, should be made rich because he failed to burn down a law office.


  The e-mail was prefaced with the standard warnings of confidentiality and protected with encryption codes. It was written by Jerry Alisandros and sent to about eighty lawyers, one of whom was Wally Figg. It read:

  I regret to inform you that tomorrow’s settlement conference has been canceled by Varrick Labs. This morning I had a lengthy phone conversation with Nicholas Walker, chief in-house counsel for Varrick, during which I was advised that the company has decided to temporarily postpone settlement negotiations. Their strategy has changed somewhat, especially in light of the fact that the Klopeck trial is scheduled to begin in Chicago in four weeks. Varrick now thinks it’s wise to sort of test the waters with an initial trial, see how the facts play out, determine liability, and roll the dice with a real jury. While this is not unusual, I had some very harsh words for Mr. Walker and his company’s rather abrupt change of plans. I suggested they had negotiated in bad faith, and so on, but there is little to be gained by arguing at this point. Since we did not quite reach the point of agreeing on the specifics of a settlement, there is nothing to enforce. It looks as though all eyes will be on the courtroom in Chicago. I’ll keep you posted. JA

  Wally printed the e-mail—it weighed a ton—walked it into Oscar’s office, and placed it on his desk. Then he fell into a leather chair and almost began weeping.

  Oscar read it slowly, the wrinkles across his forehead growing thicker with each sentence. He was breathing through his mouth, heavily. Rochelle buzzed in with a call for Oscar, but he did not respond. They heard her heavy footsteps as she walked to his office door, tapped it, and when neither lawyer responded, she peeked inside and said, “Mr. Finley, it’s Judge Wilson.”

  Oscar shook his head and said, “I can’t talk now. I’ll call him back.”

  She closed the door. Minutes passed, then David knocked on the door, came inside, looked at the two partners, and knew the world
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