The Litigators

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 Labs 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.

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.”

“There’s no way they’ll survive, because they would have to be bogus in the first place.”

“Right, but at least we’re trying, Oscar. At least we’re putting up a fight.”

“How much do these quacks cost?”

Wally looked at David, who said, “I caught up with Dr. Borzov this afternoon, the guy who was here screening our clients. He’s back home in Atlanta now that the screening has come to a sudden halt. He said he would consider testifying in the Klopeck case for a fee of, uh, I think he said $75,000. His accent is pretty thick.”

“Seventy-five thousand?” Oscar repeated. “And you can’t even understand him?”

“He’s Russian and his English is not too refined, which may work to our advantage in a trial because we might want the jury to be thoroughly confused.”

“I’m sorry, you’re losing me.”

“Well, you gotta figure that Nadine Karros will batter the guy on cross-examination. If the jury understands how lame he is, then our case is weakened. But if the jury isn’t sure because they cannot understand him, then maybe, just maybe, the damage is lessened.”

“And they taught you this at Harvard?”

“I really don’t remember what they taught me at Harvard.”

“So how did you become an expert on trial practice?”

“I’m not an expert, but I am reading a lot, and watching Perry Mason reruns. Sweet little Emma is not sleeping well and I’m roaming around at night.”

“I feel better.”

Wally said, “With some luck, we can find a bogus pharmacologist for $25,000 or so. There will be a few more expenses, but Rogan has not put up much of a fight.”

“And now we know why,” Oscar said. “They want a trial, and fast. They want justice. They want a quick, clear verdict that they can take and broadcast around the world. You guys fell for their trap, Wally. Varrick started talking settlement, and the mass tort boys started buying new jets. They strung you along until the first trial was only a month away, then they pulled the rug. Your close friends at Zell & Potter hit the back door, and here we are, with nothing but financial ruin.”

“We’ve had this conversation, Oscar,” Wally said firmly.

A thirty-second time-out was observed as things settled down somewhat. Wally calmly said, “This building is worth $300,000 and debt free. Let’s go to the bank, put up the building for a line of credit, cap it at $200,000, and go search for experts.”

“I was expecting this,” Oscar said. “Why should we throw good money after bad?”

“Come on, Oscar. You know more about litigation than I do, which isn’t much, but—”

“You’re right about that.”

“It’s not enough to simply walk into court, start the trial, pick a jury, then duck for cover when Nadine starts firing cannons at us. We won’t even get to the trial if we don’t find a couple of experts. That in itself is malpractice.”

David tried to help. “You can bet this guy Shaw will be in the courtroom, watching us.”

“Right,” said Wally. “And if we don’t at least try to put on a case, Seawright might consider it frivolous and hit us with sanctions. As crazy as it seems, spending some money might save us a bundle down the road.”

Oscar exhaled and clasped his hands behind his head. “This is insanity. Complete insanity.”

Wally and David agreed.

Wally withdrew his motion to dismiss his cases and sent copies to Bart Shaw for good measure. Nadine Karros withdrew her response and Rule 11 Motion for Sanctions. When Judge Seawright signed both orders, the boutique firm of Finley & Figg breathed easier. For the moment, the three lawyers were not in her gun sights.

After reviewing the firm’s financials, the bank was reluctant to make the loan, even with the office building free and clear. Unknown to Helen, David signed a personal guaranty for the line of credit, as did his two partners. With $200,000 now available, the firm kicked into high gear, which was made complicated by the fact that none of the three was clear on what needed to be done.

Judge Seawright and his clerks reviewed the file daily, and with growing concern. On Monday, October 3, all lawyers were summoned to chambers for an informal update session. His Honor began the meeting by stating, unequivocally, that the trial would begin in two weeks and nothing could change this. Both sides claimed to be ready for trial.

“Have you retained experts?” he asked Wally.

“Yes sir.”

“And when do you think you might share this information with the court and with the other side? You are months past due on this, you know?”

“Yes, Your Honor, but we’ve had a few unexpected events in our timeline,” Wally said beautifully, like a real smart-ass.

“Who’s your cardiologist?” Nadine Karros fired from the other side of the table.

“Dr. Igor Borzov,” Wally shot back confidently, as if Borzov were known as the greatest heart expert in the world. Nadine did not flinch, nor did she smile.

“When can he be here for a deposition?” the judge asked.

“Whenever,” Wally said. No problem. The truth was that Borzov was having a difficult time making a decision about walking into a buzz saw, even for $75,000.

“We won’t be deposing Dr. Borzov,” Ms. Karros said, quite dismissively. In other words, I know he’s a quack, don’t care what he says in a depo, because I will annihilate him in front of the jury. She made this decision on the spot, with no need to confer with her minions or ponder things for twenty-four hours. Her iciness was indeed chilling.

“Do you have a pharmacologist?” she asked.

“We do,” Wally lied. “Dr. Herbert Threadgill.” Wally had actually spoken to this guy, but no agreement had been reached. David got his name from his pal Worley at Zell & Potter, who described Threadgill as “a nut job who’ll say anything for a buck.” But it was proving not to be that easy. Threadgill was asking for $50,000 to compensate for some of the humiliation he would undoubtedly face in open court.

“We don’t need his deposition either,” she said, with a slight flip of the hand that conveyed a thousand words. He’ll be dog meat too.

When the meeting ended, David insisted that Oscar and Wally follow him to a courtroom on the fourteenth floor of the Dirksen building. According to the federal court’s Web site, an important trial was getting started. It was a civil case involving the death of a seventeen-year-old high school senior who’d been killed instantly when a tractor-trailer rig blew through a red light and hit the kid broadside. The rig was owned by an out-of-state company, thus the federal jurisdiction.

Since no one at Finley & Figg had ever tried a case in federal court, David felt strongly that they should at least watch one.