The Litigators

CHAPTER 34


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 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.