The litigators, p.27
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       The Litigators, p.27

           John Grisham
 

  was coming to an end. Oscar handed him the e-mail, which he read as he paced in front of the bookshelves.

  “There’s more,” David said.

  “What do you mean, there’s more?” Wally asked, his voice weak and dry.

  “I was just online, looking at a discovery filing, when I saw the notice that a motion had been filed. Not twenty minutes ago. Jerry Alisandros, on behalf of Zell & Potter, filed a motion to withdraw as counsel in the Klopeck case.”

  Wally’s entire body slumped a good six inches. Oscar grunted as if trying to say something.

  David, himself pale and stunned, continued: “I called my contact at Zell & Potter, guy named Worley, and he tells me off the record that it’s a full retreat. The experts—our experts—have all collapsed on the drug and no one is willing to testify. The McFadden report won’t stand up in court. Varrick has known this for some time and has been stringing out the settlement talks so they could yank the rug out right before the Klopeck trial. Worley says the Zell & Potter partners are at war but Alisandros gets the last word. He isn’t coming to Chicago because he doesn’t want such a notorious loss on his great record. With no experts, the case is hopeless. Worley says there’s a good chance that there was nothing wrong with the drug to begin with.”

  “I knew these cases were a bad idea,” Oscar said.

  “Oh shut up,” Wally hissed.

  David sat in a wooden chair as far from the two partners as possible. Oscar had both elbows on his desk with his head between his forearms, as if in a vice, as if a lethal migraine were forming. Wally’s eyes were closed and his head twitched. Because they seemed unable to speak, David felt compelled to attempt conversation. “Can he withdraw this close to trial?” he asked, fully aware that his two partners knew virtually nothing about the rules of federal court procedure.

  “That’s up to the judge,” Wally said. “What are they going to do with all their cases?” he asked David. “They have thousands, tens of thousands.”

  “Worley thinks that everybody will just sit tight and see what happens here, with Klopeck. If we win, then I guess Varrick will resume settlement talks. If we lose, I guess the Krayoxx cases are worthless.”

  The idea of winning seemed quite remote. Minutes passed with no words. The only sounds were the labored breathing of three bewildered men. The distant sound of an ambulance approached on Beech Street, but none of the three reacted.

  Finally, Wally sat erect, or tried to, and said, “We’ll have to ask the court for a continuance, for additional time, and we’ll probably want to oppose this motion to withdraw.”

  Oscar managed to dislodge his head. He glared at Wally as if he could shoot him too. “What you need to do is call your buddy Jerry and find out what the hell’s going on. He can’t run away with the trial this close. Tell him we’ll file an ethics complaint. Tell him we’ll leak it to the press—the great Jerry Alisandros afraid to come to Chicago. Tell him anything, Wally, but he has to come try this case. God knows we can’t do it.”

  “If there’s nothing wrong with the drug, why even think about going to trial?” David asked.

  “It’s a bad drug,” Wally said. “And we can find an expert who’ll say so.”

  “For some reason I’m having trouble believing you,” Oscar said.

  David stood and headed for the door. “I suggest we go to our rooms, think about the situation, and reconvene here in an hour.”

  Wally said, “Good idea,” and staggered to his feet. He got to his office, to his phone, and began calling Alisandros. Not surprisingly, the great man was unavailable. Wally began sending him e-mails—long, scorching messages filled with threats and invective.

  David scoured the blogs—financial, mass tort, legal watchdogs—and found confirmation that Varrick had called off settlement talks. Its share price was down for the third day in a row.

  By late afternoon, the firm had filed a motion for a continuance and a response to Jerry’s motion to withdraw. Virtually all the work was done by David because Wally had fled the office and Oscar was not functioning well. David had briefed Rochelle on the disaster, and her first concern was Wally’s drinking. He’d been sober for almost a year, but she had witnessed his earlier relapses.

  The following day, in an unusually prompt move, Nadine Karros filed a response in opposition to the request for more time. And, in a move that was easily predictable, she had no problem with Zell & Potter making an exit. A long trial against a pro like Jerry Alisandros would be a tremendous challenge, but Nadine was confident she could make quick work of either Finley or Figg, or both.

  The following day, in a response that was almost dizzying in its speed, Judge Seawright denied the request for additional time. The trial had been set for October 17, and it would go on. He had cleared his calendar for two weeks, and it would be unfair to other litigants to change the schedule. Mr. Figg had filed the lawsuit (“with as much noise as possible”), and he’d had ample time to prepare for trial. Welcome to the Rocket Docket.

  Judge Seawright had harsh words for Jerry Alisandros but in the end granted his motion to withdraw. Procedurally, such a motion was almost always granted. The judge noted that the client, Iris Klopeck, would still have adequate legal representation after the departure of Mr. Alisandros. The word “adequate” could have been debated, but the judge took the high ground and did not comment on the complete lack of federal trial experience by Mr. Figg, Mr. Finley, and Mr. Zinc.

  The only remaining option was for Wally to file a motion to dismiss the Klopeck case, along with the other seven. His fortune was slipping away, and he was close to a nervous breakdown, but as painful as a dismissal would be, he could not imagine the horror of walking into Seawright’s courtroom, practically alone, with the unbearable weight of thousands of Krayoxx victims on his back, and pursuing a case that even the great trial lawyers were now dodging. No sir. He, along with what appeared to be everyone else who’d stepped into the pit, was scrambling to get out of it. Oscar was adamant that the clients should first be notified. David was of the opinion that Wally should obtain their consent before he killed their cases. Wally halfheartedly agreed with both, but he could not bring himself to inform his clients that he was dismissing their cases only days after he’d sent his jolly letters virtually promising $2 million each.

  He was already working on his lies. He planned to tell Iris, then the rest of them, that Varrick had successfully managed to get the cases kicked out of federal court and that he and the other lawyers were considering refiling them in state court, and this would take time, and so on. Wally needed to burn some clock, let a few months go by, stall, procrastinate, lie, blame the delays on big bad Varrick Laboratories. Let the dust settle. Let the dreams of quick money fade away. After a year or so he would conjure up some more lies, and with the passage of time all would be forgotten.

  He typed the motion himself, and when it was finished, he stared at it for a long time on his desktop. Finally, with his door locked and his shoes off, Wally punched the Send button and said farewell to his fortune.

  He needed a drink. He needed oblivion. Alone, broker than ever, his dreams dashed, his pile of debts higher, Wally finally cracked and started crying.

  CHAPTER 35

  Not so fast, said Ms. Karros. Her prompt and sharply worded response to what Wally thought was a routine motion to dismiss was startling. She began by declaring that her client insisted upon a trial. She went into great detail describing the torrent of bad press Varrick Labs had endured for over a year—much of it created and fanned by the plaintiffs’ bar—and she attached to her motion a binder three inches thick and filled with press clippings from around the country. Every story was driven by some loudmouthed lawyer (including Wally) flaying Varrick over Krayoxx and screaming for millions. It was now grossly unfair to allow these same lawyers to cut and run without a word of apology to the company.

  Her client really didn’t want an apology; it wanted justice. It demanded a fair trial before a jury. Varrick L
abs didn’t start this fight, but it certainly planned to finish it.

  Along with her response she included her own motion, one that had never been seen around the offices of Finley & Figg. Its title—Rule 11 Motion for Sanctions—was frightening; its language was enough to send Wally back to rehab, David back to Rogan Rothberg, and Oscar into an early, unfunded retirement. Ms. Karros argued, quite persuasively, that if the court granted the plaintiff’s motion to dismiss the case, then the filing of the case was purely frivolous in the first place. The fact that the plaintiff now wanted to dismiss was a clear sign the case had no merit and should never have been filed. However, it was filed, some nine months earlier, and the defendant, Varrick, had no alternative but to vigorously defend itself. Therefore, under the sanctions provision of Rule 11 of the Federal Rules of Civil Procedure, the defendant was entitled to be reimbursed for the costs of fighting back.

  So far, and Ms. Karros was blunt about the fact that the meter was still running at full throttle, Varrick Labs had spent approximately $18 million defending itself, with at least half of that attributable to the Klopeck case. A huge sum no doubt, but she was quick to point out that the plaintiff had demanded $100 million when the lawsuit was filed. And given the nature of mass tort litigation, with all the elements of a stampede, it was, and still is, imperative that Varrick Labs successfully defend the first trial at all costs. The law does not require a party to select the cheapest law firm or look for a bargain. With so much at stake, Varrick Labs wisely chose a law firm with a long history of success in the courtroom.

  She went on for pages giving details of other frivolous cases in which federal judges had thrown the book at the less than scrupulous lawyers who filed all this junk, including two from the sacred courtroom of the Honorable Harry L. Seawright.

  Rule 11 provides that sanctions, if granted by the court, are to be borne equally by the lawyers and their client.

  “Hey, Iris, guess what? You owe half of $9 million,” David mumbled to himself, hoping to find a bit of humor in another depressing day. He read it first, and by the time he finished, he was sweating around the neck. Nadine Karros and her small army at Rogan Rothberg had cranked it out in less than forty-eight hours, and David could visualize the young grunts pulling all-nighters and sleeping at their desks.

  When Wally read it, he quietly left the office and was not seen for the rest of the day. When Oscar read it, he shuffled to a small sofa in his locked office, eased off his shoes, and stretched out, his eyes covered with an arm. After a few minutes, he not only appeared to be dead; he was actually praying for the end.

  ———

  Bart Shaw was a lawyer who specialized in suing other lawyers for malpractice. This little niche in the crowded market had earned him the reputation, among the bar, as a pariah. He had few friends in the profession, but he had always considered that to be a good thing. He was smart, talented, and aggressive, just the man Varrick needed for a job that appeared to be a bit shady but was actually well within ethical guidelines.

  After a series of phone conversations with Judy Beck, Nick Walker’s cohort in the legal department at Varrick, Shaw agreed to the terms of a confidential representation. His retainer was $25,000 and his hourly rate was $600. Any fees earned from the potential malpractice cases would be kept by Shaw.

  His first call was to Iris Klopeck, who, with a month to go before trial, was drifting in and out of a state that vaguely resembled emotional stability. She wanted no part of a conversation with another lawyer, a stranger, but did admit she wished she had never met that other one. After she abruptly hung up, Shaw waited an hour and tried again. After a cautious “Hello,” Shaw plunged in.

  “Are you aware that your attorney is trying to dismiss your case?” he asked. When she couldn’t respond immediately, he continued. “Ms. Klopeck, my name is Bart Shaw. I’m a lawyer and I represent people who get screwed by their own lawyers. Legal malpractice. It’s all I do, and your lawyer, Wally Figg, is trying to weasel out of your case. I think you may have a lawsuit against him. He has malpractice insurance coverage and you might be entitled to recover some money.”

  “I’ve heard that somewhere before,” she said softly.

  It was Shaw’s game, and he talked nonstop for the next ten minutes. He described the motion to dismiss and Wally’s efforts to unload not just her case but seven others as well. When she finally spoke, she said, “But he promised me a million dollars.”

  “He promised?”

  “Oh yes.”

  “That’s highly unethical, but then I doubt if Mr. Figg worries too much about ethics.”

  “He’s pretty sleazy,” she observed.

  “How, exactly, did he promise you a million dollars?”

  “Right here at the kitchen table, first time I laid eyes on him. Then he put it in writing.”

  “He what? You have it in writing?”

  “Got a letter from Figg a week or so ago. Said they were about to agree on a $2 million settlement, which was a lot more than the $1 million he had promised. Got the letter right here. What happened to the settlement? What’s your name again?”

  Shaw kept her on the phone for an hour, and both were exhausted when the conversation was over. Millie Marino was next, and, unmedicated, she grasped the issues much more quickly than poor Iris. She knew nothing about the collapse of the settlement plan, or the dismissal, nor had she spoken with Wally in several weeks. As with Iris, Shaw convinced her to hold off contacting Wally right away. It was more important for Shaw to do so, at the right moment. Millie was thoroughly bewildered by the conversation and the turn of events and said she needed some time to gather her thoughts.

  Adam Grand needed no such time. He began cursing Wally immediately. How could the little worm try to dismiss the case without telling him? Last he heard they were about to settle for $2 million. Hell yes, Grand was ready to go after Figg. “How much malpractice insurance coverage does he have?” he asked.

  “The standard policy is $5 million, but there are many variations,” Shaw explained. “We’ll know soon enough.”

  The fifth firm meeting took place after dark on a Thursday night, and Rochelle skipped it. She could not handle more bad news, and there was nothing she could do to help the miserable situation.

  The letter from Bart Shaw had arrived that afternoon and was now lying in the center of the table. After explaining that he was “in consultation with six of your clients who were involved in the Krayoxx litigation, including Ms. Iris Klopeck,” he went on to clearly state that he had not been retained by any of the six. Not yet. They were waiting to see what happened next with their cases. However, he, Shaw, was gravely concerned with Finley & Figg’s efforts to unload the cases, and without notifying the clients. Such behavior breached all manner of professional conduct. In stiff but lucid language, he lectured the firm on a variety of topics: (1) its ethical duty to diligently protect its clients’ interests; (2) its duty to keep the clients informed of all developments; (3) the unethical payment of referral fees to clients; (4) the outright guarantee of a favorable outcome in order to induce a client to sign up; and on and on. He sternly warned them that further lapses in their conduct would lead to unpleasant litigation.

  Oscar and Wally, who had survived numerous charges of unethical behavior, were not as bothered by the allegations as they were terrified of the letter’s overall message; to wit, the firm would be immediately sued for malpractice if the cases were dismissed. David was upset over every word in Shaw’s letter.

  They sat around the table, all three subdued and thoroughly defeated. There was no cursing or shouting. David knew the fighting had already taken place when he was away from the office.

  There was no way out. If the Klopeck lawsuit was dismissed, Ms. Karros would castrate them with her demand for sanctions, and old Seawright would go right along with it. The firm could face millions in fines. On top of that, this shark Shaw would pile on with a malpractice claim and drag them through the mud for the next two years.
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  If they withdrew their motion to dismiss, they would be staring at a trial date that was now only twenty-five days away.

  While Wally doodled on a legal pad as if he were heavily medicated, Oscar did most of the talking. “So, either we get rid of these cases and face financial ruin, or we march into federal court three weeks from Monday with a case that no lawyer in his right mind would try before a jury, a case with no liability, no experts, no decent facts, a client who’s crazy half the time and stoned the other half, a client whose dead husband weighed 320 pounds and basically ate himself to death, a veritable platoon of highly paid and very skilled lawyers on the other side with an unlimited budget and experts from the finest hospitals in the country, a judge who strongly favors the other side, a judge who doesn’t like us at all because he thinks we’re inexperienced and incompetent, and, well, what else? What am I leaving out here, David?”

  “We have no cash for litigation expenses,” David said, but only to complete the checklist.

  “Right. Helluva job, Wally. As you used to say all the time, these mass tort cases are a gold mine.”

  “Come on, Oscar,” Wally pleaded softly. “Give me a break. I take full responsibility. It’s all my fault. Flog me with a bullwhip, whatever. But allow me to suggest we limit our discussions to something that might be productive, okay, Oscar?”

  “Sure. What’s your plan? Dazzle us some more, Wally.”

  “We have no choice but to go fight,” Wally said, his voice still hoarse, his delivery slow. “We try to piece together some proof. We go to court and fight like hell, and when we lose we can tell our clients, and this scumbag Shaw, that we fought the good fight. In every lawsuit, somebody wins, somebody loses. Sure, we’ll get our butts kicked, but at this point I’d rather walk out of the courtroom with my head up than deal with sanctions and malpractice claims.”

  “Have you ever faced a jury in federal court, Wally?” Oscar asked.

  “No. Have you?”

  “No,” Oscar said and looked at David. “Have you, David?”

  “No.”

  “That’s what I thought. The three stooges bumbling into the courtroom with the lovely Iris Klopeck and no clue about what to do next. You mentioned piecing together some proof. Care to enlighten us, Wally?”

  Wally glared at him for a moment, then said, “We try to find a couple of experts, a cardiologist and maybe a pharmacologist. There are a lot of experts out there who’ll say anything for a fee. We pay them, put them on the witness stand, hope like hell they survive.”

 

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