The Litigators

CHAPTER 38


Monday’s brief respite from the fear of annihilation was long forgotten by Tuesday morning. By the time the boutique team walked into the courtroom, the pressure was back in spades. This was the real beginning of the trial, and a heavy tension filled the air. “Just get through it,” David repeated each time his stomach turned flips.

Judge Seawright offered an abrupt good morning, welcomed his jury, then explained, or tried to explain, the absence of Ms. Iris Klopeck, widow and personal representative of Percy Klopeck. When he finished, he said, “At this time, each party will make an opening statement. Nothing you are about to hear is evidence; rather, it’s what the lawyers think they will prove during this trial. I caution you to take it lightly. You may proceed, Mr. Finley, for the plaintiff.”

Oscar stood and walked to the podium with his yellow legal pad. He placed it on the podium, smiled at the jurors, looked at his notes, smiled again at the jurors, then, oddly, stopped smiling. Several awkward seconds passed, as if Oscar had lost his train of thought and could think of nothing to say. He wiped his forehead with the palm of his hand and fell forward. He ricocheted off the podium and landed hard on the carpeted floor, still groaning and grimacing as if in enormous pain. There was a wild scramble as Wally and David sprinted for him, as did two uniformed bailiffs and a couple of the Rogan Rothberg attorneys. Several of the jurors stood as if they wanted to help in some way. Judge Seawright was yelling, “Call 911! Call 911!” Then, “Is there a doctor here?”

No one claimed to be a doctor. One of the bailiffs took charge, and it wasn’t long before it was clear that Oscar had not merely fainted. In the chaos, and as a crowd hovered over Oscar, someone said, “He’s barely breathing.” There was more scurrying about, more calls for help. A paramedic assigned to the courthouse arrived within minutes and knelt over Oscar.

Wally stood and backed away and found himself near the jury box. Without thinking, and in an incredibly stupid effort at humor, he looked at the jurors, pointed to his fallen partner, and said, in a voice that was heard by many, words that would be repeated by other lawyers for years to come, “Oh, the wonders of Krayoxx.”

“Your Honor, please!” Nadine Karros shrieked. Several of the jurors found it funny; others did not.

Judge Seawright said, “Mr. Figg, get away from the jury.”

Wally scampered away. He and David waited across the courtroom.

The jury was removed and sent back to the jury room. “Court’s in recess for an hour,” Seawright said. He walked down from the bench and waited near the podium. Wally eased over and said, “Sorry about that, Judge.”

“Silence.”

A team of paramedics arrived with a stretcher. Oscar was strapped down and wheeled out of the courtroom. He did not appear to be conscious. He had a pulse, but it was dangerously low. As the lawyers and spectators mingled about, uncertain as to what they should be doing, David whispered to Wally, “Any history of heart trouble?”

Wally shook his head. “Nothing. He’s always been lean and healthy. Seems like his father may have died young from something. Oscar never talked about his family, though.”

A bailiff approached and said, “The judge wants to see the lawyers in chambers.”

———

Fearing that he was on the hot seat, Wally decided he had nothing to lose. He went into Judge Seawright’s chambers with an attitude. “Judge, I need to get to the hospital.”

“Just a moment, Mr. Figg.”

Nadine was standing and not happy. She said, in her best courtroom voice, “Your Honor, based solely on the improper comments made by Mr. Figg directly to the jurors, we have no choice but to move for a mistrial.”

“Mr. Figg?” His Honor demanded in a tone that clearly conveyed the message that a mistrial was only minutes, perhaps seconds away.

Wally was standing too and could think of no response. David instinctively said, “How is the jury prejudiced? Mr. Finley did not take the drug. Sure, it was a stupid comment, made in the chaos of the moment, but there is no prejudice.”

“I disagree, Your Honor,” Nadine shot back. “Several of the jurors thought it was funny and were actually on the verge of laughing. Calling it stupid is an understatement. It was clearly an improper and very prejudicial comment.”

A mistrial would mean a delay, something that the plaintiff’s team needed. Hell, they were willing to delay it for a decade.

“Motion granted,” His Honor announced. “I declare a mistrial. Now what?”

Wally had fallen into a chair and looked pale. David said the first thing that came to his mind. “Well, Judge, we obviously need more time. How about a continuance or something like that?”

“Ms. Karros?”

“Judge, this is certainly a unique situation. I suggest we wait twenty-four hours and monitor Mr. Finley’s condition. I think it’s fair to point out that Mr. Figg filed this lawsuit and was lead counsel until just a few days ago. I’m sure he could try this case as well as his senior partner.”

“Good point,” Judge Seawright agreed. “Mr. Zinc, I think it best if you and Mr. Figg hustle on down to the hospital and check on Mr. Finley. Keep me posted by e-mail, with copies to Ms. Karros.”

“Will do, Judge.”

Oscar suffered acute myocardial infarction. He was stable and expected to survive, but the early scans revealed substantial blockage in three coronary arteries. David and Wally spent a miserable day in the ICU waiting room at the hospital, killing time, talking trial strategy, e-mailing Judge Seawright, eating food from a machine, and walking the halls out of boredom. Wally was certain that neither Paula Finley nor their daughter, Keely, was at the hospital. Oscar had moved out three months earlier and was already seeing someone else, on the sly of course. There were rumors that Paula had also found someone new. At any rate, the marriage was happily over with, though the divorce had a ways to go.

At 4:30, a nurse led them to Oscar’s bed for a brief hello. He was awake, thoroughly covered with tubes and monitors, and breathing on his own. “Great opening statement,” Wally said and got a weak smile in return. They were not about to mention the mistrial. After a few awkward efforts at conversation, they realized Oscar was too fatigued to chat, so they said good-bye and left. On the way out, a nurse informed them that surgery was scheduled for 7:00 the following morning.

At 6:00 the following morning, David, Wally, and Rochelle surrounded Oscar’s bed for a final round of well-wishing before he went to the OR. When a nurse asked them to leave, they went to the cafeteria for a hearty breakfast of watery eggs and cold bacon.

“What happens to the trial?” Rochelle asked.

David gnawed a piece of bacon and eventually replied, “Not sure, but I have a hunch we won’t be getting much of a continuance.”

Wally was stirring his coffee and observing two young nurses. “And it looks like we’re both getting promotions. I’ll have the lead, and you’re getting moved to the second chair.”

“So the show goes on?” Rochelle asked.

“Oh yes,” David said. “We have very little control over what’s happening now. Varrick is calling the shots. The company wants a trial because the company wants vindication. A huge victory. Headlines. Proof that its wonderful drug is not so bad after all. And, most important, the judge is clearly on their side.” Another bite of bacon. “So, they have the facts, the money, the experts, the legal talent, and the judge.”

“What do we have?” she asked.

Both lawyers thought about that for a while, then both began shaking their heads. Nothing. We have nothing.

“I guess we have Iris,” Wally finally said and got a laugh. “Lovely Iris.”

“And she’s gonna testify in front of the jury?”

“No. One of her doctors e-mailed a letter saying she is physically unable to testify in court,” David said.

“Thank God for that,” Wally said.

After an hour of killing time, the three voted unanimously to return to the office and try to pursue something productive. David and Wally had a dozen things to do for the trial. A nurse called at 11:30 with the welcome news that Oscar was out of surgery and doing well. He could not see visitors for twenty-four hours, which was also well received. David e-mailed the latest update to Judge Seawright’s clerk and fifteen minutes later got a reply requiring all lawyers to be in his chambers at 2:00 p.m.

“Please give my regards to Mr. Finley,” His Honor said indifferently as soon as the lawyers were seated, David and Wally on one side and Nadine and four of her henchmen on the other.

“Thanks, Judge,” Wally said, but only because a response was required.

“Our new plan is as follows,” Seawright said without breaking stride. “There are thirty-four jurors left in the pool. I will summon them back Friday morning, October 21, three days from today, and we will select a new jury. Next Monday, October 24, we will start the retrial. Any comments or concerns?”

Oh, lots of them, Wally wanted to say. But where should I begin?

Nothing from the lawyers.

The judge continued: “I realize this does not give the plaintiff’s lawyers much time to regroup, but I’m convinced that Mr. Figg will do as well as Mr. Finley. Frankly, neither has any experience in federal court. Substituting one for the other will not damage the plaintiff’s case in any way.”

“We are ready for trial,” Wally said loudly, but only to retaliate and defend himself.

“Good. Now, Mr. Figg, I will not tolerate any more of your ridiculous comments in court, regardless of whether the jury is present.”

“I apologize, Your Honor,” Wally said with a phoniness that was obvious.

“And your apology is accepted. However, I am levying a fine of $5,000 against you and your firm for such reckless and unprofessional behavior in my courtroom, and I’ll do it again if you step out of line.”

“That’s a bit steep,” Wally blurted.

So the hemorrhaging continues, David thought to himself. Seventy-five thousand to Dr. Borzov; $50,000 to Dr. Herbert Threadgill, their expert pharmacologist; $15,000 to Dr. Kanya Meade, their expert economist; $25,000 to Consuelo, their jury consultant. Throw in another $15,000 to get all the experts to Chicago, feed them, put them up in nice hotels, and Iris Klopeck and her dead husband were costing Finley & Figg at least $180,000. Now, thanks to Wally’s big mouth, they had just lost another $5,000.

Bear in mind, David kept telling himself, this was supposedly cheap money being thrown up as a defense. Otherwise, they would be sued for malpractice and face some rather terrifying sanctions for filing such a frivolous case. In effect, they were burning serious cash to make their frivolous case appear less frivolous.

Such maneuverings had never been mentioned during law school at Harvard, nor had he ever heard of such insanity during his five years at Rogan Rothberg.

On the subject of sanctions, Ms. Karros took charge and said, “Your Honor, this is a Rule 11 motion we are filing at this time.” Copies were slid across the table as she continued, “We are requesting sanctions on the grounds that Mr. Figg’s reckless actions in court yesterday caused a mistrial, resulting in unnecessary expense to our client. Why should Varrick Labs pay for the plaintiff’s unprofessional behavior?”

Wally shot back, “Because Varrick has a book value of $48 billion. My net worth is substantially less.” Humorous, but no laughs.

Judge Seawright read the motion carefully, and when David and Wally realized this, they began reading too. After ten minutes of silence, the judge said, “Your response, Mr. Figg?”

Wally tossed his copy of the motion onto the table as if it were filthy. “You know, Judge, I can’t help the fact that these guys charge a zillion dollars an hour. They are obscenely expensive, but that should not be my problem. If Varrick wants to burn its cash, then it certainly has plenty to burn. But don’t get me in the middle of it.”

“You miss the point, Mr. Figg,” Nadine replied. “We wouldn’t be doing the extra work if not for you and the mistrial you created.”

“But $35,000? Come on. Do you people really think you’re that valuable?”

“Depends on the outcome of the trial, Mr. Figg. When you filed this lawsuit you asked for, what, a hundred million or so? Don’t criticize my client for putting up a vigorous defense with good legal talent.”

“So, let me get this straight. During this trial, if you and your client do something to sort of string things along, you know, drag out the trial, God forbid make a mistake, anything like that, then I can file a quick motion for sanctions and collect some money? Am I right about this, Judge?”

“No. That would be a frivolous motion, subject to Rule 11.”

“Of course it would!” Wally said with a belly laugh. “You guys make a great tag team.”

“Watch it, Mr. Figg,” Judge Seawright growled.

“Knock it off,” David whispered. A few seconds of silence followed as Wally settled down. Finally, the judge said, “I agree that the mistrial could have been avoided, and that it has caused additional expense. However, I think $35,000 is somewhat on the excessive end. Sanctions are in order, but not to that extent. Ten thousand dollars is a more reasonable sum. It is so ordered.”

Wally exhaled—another shot to the gut. David’s next thought was to try to speed things along so the meeting could come to a merciful end. Finley & Figg couldn’t afford much more. He offered a lame “Judge, we need to get back to the hospital.”

“Adjourned, until Friday morning.”