The Litigators

CHAPTER 23


The great Jerry Alisandros finally made his appearance on the Chicago stage of his grand war against Varrick, and his arrival was impressive. First, he landed in the Gulfstream G650 that Wally was still dreaming of. Second, he brought with him an entourage that rivaled the one that surrounded Nadine Karros when she went to court. With Zell & Potter front and center, the playing field seemed level. Third, he had the skill, experience, and national reputation one would never find at Finley & Figg.

Oscar skipped the hearing because he wasn’t needed. Wally couldn’t wait to get there so he could strut in with his stud co-counsel. David tagged along out of curiosity.

Nadine Karros, her team, and her client had selected Iris Klopeck as their guinea pig, though neither her attorneys nor Iris herself had the slightest whiff of the master scheme. Varrick had filed a motion to separate the plaintiffs’ cases, to make eight different lawsuits out of one, and to keep the litigation in Chicago instead of having it lumped with thousands of other cases in the brand-new multi-district litigation in southern Florida. The plaintiffs’ lawyers opposed these motions strenuously. Thick briefs had been swapped. The mood was tense when the squads of lawyers gathered in Judge Seawright’s courtroom.

As they waited, a clerk came forth and announced that the judge was delayed by some urgent matter but should be out in half an hour. David was loitering near the plaintiffs’ table, chatting with a Zell & Potter associate, when a defense lawyer slid over for a contrived hello. David vaguely recognized him from somewhere in the halls of Rogan Rothberg, but he had tried hard to forget those people. “I’m Taylor Barkley,” the guy said on top of a quick handshake. “Harvard, two years ahead of you.”

“A pleasure,” David said, then introduced Barkley to the Zell & Potter lawyer he had just met. For a few minutes they chatted about the Cubs and the weather and finally got around to the issue at hand. Barkley claimed to be working around the clock as Rogan was getting slammed with Krayoxx work. David had lived that life, and survived it, and he had no desire to hear it again.

“Should be a hell of a trial,” David said to fill in a gap.

Barkley snorted as if he had the inside scoop. “What trial?” he said. “These cases will never get near a jury. You know that, don’t you?” he asked, looking at the Zell & Potter associate.

Barkley continued, half under his breath because the place was crawling with wired lawyers. “We’ll defend like hell for a while, pad the file, rack up some obscene fees, then advise our dear client to settle. You’ll figure out this game, Zinc. If you stay in it long enough.”

“I’m catching on,” David said, watching every word. He and the Zell & Potter associate were both on their heels, absorbing but not believing.

“For what it’s worth,” Barkley said, in a whisper, “you’re almost a legend around Rogan these days. A guy with the balls to walk away, go find an easier job, now sitting on a pile of cases that are a gold mine. We’re still slaving away by the hour.”

David just nodded, hoping he would go away.

The courtroom deputy suddenly came to life and ordered everyone to stand. Judge Seawright swept in from behind the bench and ordered everyone to sit. “Good morning,” he said into his mike as he arranged his papers. “We have a lot of ground to cover in the next two hours, and, as always, brevity with words will be appreciated. I am monitoring discovery, and it appears as though things are proceeding on course. Mr. Alisandros, do you have any complaints about discovery?”

Jerry stood proudly because everyone was watching. He had long gray hair swept back over his ears and bunched around his neck. His skin was well tanned, and his custom-tailored suit hung perfectly on his lean frame. “No sir, Your Honor, not at this time. And I am delighted to be in your courtroom.”

“Welcome to Chicago. Ms. Karros, do you have any complaints with discovery?”

She stood, in her light gray silk and linen dress, V-neck, Empire waist, tight down the slender legs, long below the knee, with black platform pumps, and all eyes feasted upon her. David was looking forward to the trial just to watch the fashion show. Wally was drooling.

“Your Honor, we exchanged lists of experts this morning, so everything is in order,” she said, her voice rich, her diction perfect.

“Very well,” Seawright said. “That leads to the biggest issue of the day—that of where these cases will be tried. The plaintiffs have filed a motion to move all the cases, to join the multi-district litigation in federal court in Miami. The defendant objects, and not only prefers to keep the cases here in Chicago, but also to separate them, try them one at a time, beginning with the estate of one Percy Klopeck, now deceased. These issues have been thoroughly and exhaustively briefed. I’ve read every word. At this point, I’ll allow remarks by both sides, beginning with the attorneys for the plaintiffs.”

Jerry Alisandros walked with his notes to a small podium in the center of the courtroom, directly in front of and several feet below Judge Seawright. He carefully arranged his papers, cleared his throat, and began with the typical “If it pleases the court.”

For Wally, it was the most exciting moment in his career. To think he, a hustler from the Southwest Side, was sitting in federal court watching great lawyers do battle over cases he had found and filed, cases he was responsible for, cases he had created—it was almost too much to behold. As he suppressed a grin, he felt even better when he touched his midsection and slid a finger under his belt. Down fifteen pounds. Sober for 195 days. The lost weight and clear head were no doubt linked to the indescribable fun he and DeeAnna were having in bed. He was eating Viagra, driving a new convertible Jaguar (new to him but slightly used and financed over sixty months), and feeling twenty years younger. As he buzzed around Chicago with the top down, he dreamed endlessly of his Krayoxx money and the glorious life ahead. He and DeeAnna would travel and lie on beaches, and he would work only when necessary. He had already decided that he would specialize in mass torts, forget the humdrum of the street, the cheap divorces and drunk drivers, and go for the big money. He was certain he and Oscar would split. Frankly, after twenty years, it was time. Though he loved him like a brother, Oscar had no ambition, no vision, no real desire to step up his game. He and Oscar had already had a conversation about how to hide their Krayoxx money so his wife would see little of it. Oscar would go through a bad divorce, and Wally would be there to support him, but when it was over, the partners would split. It was sad but inevitable. Wally was going places; Oscar was too old to change.

Jerry Alisandros got off to a bad start when he tried to argue that Judge Seawright had no choice but to transfer the cases to Miami. “These cases were filed in Chicago, not Miami,” the judge reminded Alisandros. “No one made you file them here. I suppose you could’ve filed them anywhere you can find Varrick Labs, which I presume is in any of the fifty states. I’m having trouble understanding why a federal judge in Florida thinks he can order a federal judge in Illinois to transfer his cases down there. Can you help me here, Mr. Alisandros?”

Mr. Alisandros could not. He tried valiantly to suggest that nowadays in mass tort litigation it is customary to establish multi-district litigation and have only one judge preside over all the cases.

Customary, but not mandatory. Seawright seemed irritated that someone, anyone would suggest that he was required to move the cases. They were his!

———

David sat behind Wally in a row of chairs in front of the bar. He was enthralled by the drama of the courtroom, the pressure, the high stakes, but he was also worried because it was apparent Judge Seawright was against them on this issue. However, Alisandros had assured their team that winning these initial motions was not crucial. If Varrick Labs wanted to try a single test case in Chicago, and to do so quickly, then so be it. He had never run away from a trial in his career. Bring it on!

The judge, though, seemed hostile. Why was David worried? There would be no trial, right? All the lawyers on his side of the aisle believed secretly, fervently, that Varrick Labs would settle its Krayoxx mess long before the trials started. And if Barkley on the other side could be believed, the defense lawyers were also thinking settlement. Was it a rigged game? Was this how the mass tort business really worked? A bad drug gets discovered; the plaintiffs’ lawyers go into a frenzy rounding up the cases; lawsuits are filed; the big defense firms respond with an endless supply of expensive legal talent; both sides slug it out until the drugmaker gets tired of writing fat checks to its lawyers; then everything gets settled; the plaintiffs’ lawyers rake in huge fees, and their clients get far less than they expected. When the dust settles, the lawyers on both sides are richer; the company cleans up its balance sheet and develops a replacement drug.

Was this nothing more than good theater?

Just as Jerry Alisandros began to repeat himself, he sat down. The lawyers perked up as Nadine Karros stood and walked to the podium. She had a few notes but didn’t use them. Since it was obvious the judge agreed with her, she kept her arguments brief. She spoke in long eloquent sentences, as if they had been written down with plenty of forethought. Her words were clear, her voice carried nicely around the courtroom. Nothing was wasted—no extra verbiage, no useless gestures. The woman was meant for the stage. From several angles, she made the point that there was no case, no rule of procedure, no precedent anywhere that required a federal judge to transfer one of his cases to another federal judge.

After a few moments, David was wondering if he would actually get to watch Ms. Karros in action before a jury. Did she know, at that very moment, there would be no trial? Was she just going through the motions, at $2,000 an hour?

A month earlier Varrick Labs reported its quarterly earnings, which were down significantly. The company surprised analysts by writing off $5 billion for the projected costs of ongoing litigation, primarily Krayoxx. David was following this closely in financial publications and blogs. Opinion was split between those who thought Varrick Labs would hurry and clean up its mess through a massive settlement and those who thought the company might try to weather the storm through hardball litigation. The stock price ping-ponged between $35 and $40 per share, so the stockholders seemed reasonably calm.

He was also studying the history of mass tort litigation and found it surprising the number of times that a defendant corporation’s stock rose impressively when it settled and got rid of a bunch of lawsuits. There was normally a dip in the stock price with the first wave of bad news and hysterics from the plaintiffs’ bar, but as battle lines were formed and the numbers became firm, Wall Street seemed to prefer a good settlement. What Wall Street hated was “squishy liability,” the kind that was often seen when a big case was handed over to a jury and the results were unpredictable. In the past ten years, virtually all of the major mass tort cases involving pharmaceuticals had been settled, and for billions.

On one hand, David was finding comfort in the research. But on the other, it had turned up little in the way of credible proof that Krayoxx did all the terrible things it was accused of doing.

———

After a thorough and fair debate, Judge Seawright had heard enough. He thanked the lawyers for their preparation and promised a ruling within ten days. The extra time was not needed—he could have ruled immediately from the bench. There was little doubt he would keep the cases in Chicago, and he seemed to favor the idea of a “show trial.”

The plaintiffs’ lawyers retired to the Chicago Chop House, where Mr. Alisandros had reserved the back room for a private lunch. Including Wally and David, there were seven lawyers and two paralegals (all men), and they all took their places around an oblong table. Jerry had preordered wine, and it was poured as soon as they sat down. Wally and David declined.

“A toast,” Jerry announced as he tapped his wineglass. Silence. “I propose a toast to the Right Honorable Harry Seawright and his famous Rocket Docket. The trap has been laid, and the fools at Rogan Rothberg think we’re blind. They want a trial. Old Harry wants one too, so by God let’s give ’em a trial.”

Everyone took a sip, and within seconds the conversation spiraled down to an analysis of the legs and backside of Nadine Karros. Wally, who had the right-hand seat to the throne of Mr. Alisandros, offered comments that were deemed hilarious. Over salads, the chatter quite naturally made its way to their second favorite subject—settlement. David, who was saying as little as possible, was coaxed into telling the story of his encounter with Taylor Barkley just before the hearing. His narrative was received with great interest—too much, in his opinion.

It was Jerry’s stage, and he did most of the talking. In equal parts, he was enthusiastic about a big trial with a big verdict, but he was also supremely confident Varrick would buckle and put billions on the table.

Hours later, David was still confused, but he was also comforted by the presence of Jerry Alisandros. The man had fought the wars, inside the courtroom and out, and he almost never lost. According to Lawyers Weekly, the thirty-five partners at Zell & Potter split $1.3 billion in net profits the previous year. Net, after new jets, a firm golf course, and every other lavish expense allowed by the IRS. According to Florida Business magazine, Jerry’s net worth was somewhere around $350 million.

Not a bad way to practice law.

David had not shown these numbers to Wally.