Authors: R. J. Blacks
“You’ll keep us informed, I
presume?” he asks.
“Absolutely. You’ll be
getting monthly updates on our progress.”
Both Mr. and Mrs. Stewart sit
there quietly, and I sense an air of melancholy. This has reopened a wound and
I feel bad about it. I try to uplift their spirits.
“This is a great thing you’ve
done,” I say. “When this case is over, Kevin will be in the hearts and minds of
everyone, even those that didn’t know him. He’ll never be forgotten.”
I get up and Mr. Stewart
walks me to the front door. I bid them a goodbye, and then head back home,
overjoyed I managed to get the contract signed. But then, as I’m driving alone
on the interstate, I keep thinking about the situation at the Stewart home. They
spent their best years raising their son, and then, he was gone. How sad.
...
As soon as I arrive back
home, I call Berkeley and let him know I got the agreement signed.
“Okay, I’ll start on the
legal work. How’s the science coming?” he asks.
The truth is: I’m in a
quandary where to go with this. I know practically nothing about putting
together a legal brief, let alone one that will withstand the intense cross
examination of experts in the field. But if I come across as ambivalent or indecisive,
he might back out, so I do what I have to do, give it my best bluff and knock
the ball back into his court.
“Fine,” I say. “I’m working
on it now.”
“Great. Send me a copy as
soon as it’s done. Be prepared though, I might change a few things.”
“Oh, I expected that,” I say,
and then we terminate the call.
I spread all the legal books,
binders, and papers Berkeley sent me over my bed and immerse myself in a crash
course on legal proceedings. The yellow highlighting and the sticky notes next
to the points he wants me to focus on facilitate my understanding and the task
goes quickly.
I learn there are three parts
to a lawsuit: the pleadings, the discovery, and the trial. The pleadings can be
further broken down into the “complaint” and the “answer.” The complaint consists
of three main parts: (1) What the defendant did, or in some cases, failed to
do, (2) What harm it caused, and (3) The legal basis why the defended should be
held liable for that harm. It’s clear from his notes, Berkeley wants me to take
the lead in parts one and two, and he’ll handle part three, the legal
implications.
Part one is pretty easy. The
defendant, GWI, manufactured and marketed a pesticide, Farm-eXia, failed to
test it adequately, and then convinced the public and the EPA it was perfectly
safe.
For part two, I propose the
following: Farm-eXia was released to the environment, contaminated lakes and
wetlands, and caused the death of Kevin Stewart by its toxic actions on aquatic
animals, in this case alligators, who became unusually aggressive and attacked
the victim.
I email my part of the
complaint to Berkeley, and then call him to see if he received it.
“Okay, that’s good,” he says.
“But I think I’m going to send them a demand letter first.”
“A demand letter? That wasn’t
in any of the law books.”
“It’s really more of a
courtesy, not required by law. But the lawyers we’re dealing with are top
notch. They’ve already set you up in case you confront them with a lawsuit.
They’re one step ahead of you and we haven’t even started yet.”
“Set me up?”
“Yes. The minute you file a
lawsuit, they’ll tell a judge they offered to work with you and you refused.”
“The letter... from GWI.”
“Exactly. That will no doubt
anger the judge, because believe it or not, judges prefer disputes be settled
out of court to save time. He would see you as uncooperative which plays right
into their strategy. He may even order you to work with them to alleviate the
issue, and if you don’t, hold you in contempt of court, if he wanted to play
hardball.”
“You think he would do that?”
“Probably not, but you never
know. Never underestimate your opponent. First thing they teach you in law
school.”
“I’m glad you’re on my side.”
“This is just the beginning.
Wait until the mud starts flying.”
“So you’re good with what I
wrote?”
“I also need some scientific
evidence we actually have a case. Otherwise they’ll think we’re bluffing.”
“How about the report I sent
to the EPA? It’s all in there.”
“Perfect. I’ll refer to it in
the letter and include a copy.”
“What are you going to ask
for?” I say.
“Basically damages. Let’s
see, Kevin was enrolled to become a marine biologist. He would probably average
$140,000 a year over a forty year career which gives us... hold on a minute...
$5.6 million. And I’m going to throw in an additional $2.4 million for the
emotional distress of the parents and the loss of joy of seeing their son
succeed in life. Eight million total.”
“And what about taking
Farm-eXia off the market?”
“We can’t ask for that. If
they’re smart they would do that anyway. But my guess is it makes too much
money. They would just see the $8 million as a business expense.”
“What about the bad
publicity?”
“Before they fork over $8
million they’re going to demand absolute secrecy. And if anyone spills the
beans later, they could demand the money back.”
“So they have all the good
cards.”
“In a manner, yes. The smart
thing to do would be to just pay the $8 million and be done with it. But my
guess is, there are egos at play. Always are. And when egos get in the way, people
do irrational things. They probably think this will be a cakewalk, and just
ignore us.”
“How will we know?”
“I’ll give them ten days to
respond. We don’t want to drag this out for too long.”
We conclude the call and I go
back to my day job at Semi-Environmental waiting for the ten days to pass. The
rest of the time I help out at the restaurant. Will and Juanita are seeing each
other on a regular basis and I’m waiting for a happy announcement. But I just
keep that to myself. It’s something they need to work out by themselves and
it’s none of my business.
A week passes and then
Berkeley calls.
“They want to meet with us.”
“What does that mean?” I ask.
“It sounds like they want to
settle.”
“So much for egos.”
“Yeah, never would have
believed it,” he says.
“Where and when?”
“Jacksonville, in three days.
They have a local sales office there.”
“In three days?”
“Apparently they want to move
fast. I guess before you can add anything more to the complaint. You need to
contact the Stewarts right away so I can give them an answer today.”
I call Mrs. Stewart and
explain the situation. She agrees to meet us in Jacksonville since it would be
only an hour’s drive for them. I call Berkeley back and let him know.
“Great,” he says. “I want you
to bring everything you have on this case. All your findings, data, pictures,
anything that would bolster your argument in case they grill you while we’re
there. No one hands over $8 million without a fight.”
“Shall I ask Doug?”
“Absolutely. Be at my boat at
7:00 AM.”
I call Doug, but he tells me
he can’t make it this time, has a client coming to visit that day.
Three days go by and I get up
at 4:30 AM to allow time to prepare for the trip. Once again I forgo the Native
American outfit in favor of business casual, and then, drive the sixty mile
trip by myself meeting Berkeley at his boat as planned. He’s dressed in slacks
and a plain blue shirt with a tie and jacket draped over his arm.
“Where’s Doug?” he asks.
“Couldn’t make it this time.”
“Well, we don’t really need
him. And since it’s only the two of us, I’ll drive.”
He leads me to a bright red
Lamborghini Gallardo Spyder. I circle the car admiring the excellence of the
design. It’s beautiful, a work of art, but I’m surprised. Somehow, I had imagined
him driving something more conservative.
“I thought Bostonians liked Rolls-Royce,”
I say.
“Rolls-Royce! You’ve got to
be kidding. They’re for bankers, with no sense of humor.”
Berkeley presses a button on
his keyless remote, and then, opens the passenger door for me. I slide into the
red leather seats raked back at a sharp angle. He closes the door, gets into
the driver’s seat, and pushes another button causing the convertible top to
fold back into the trunk. Then the engine comes to life with a very pleasing
growl and the next thing I know we’re cruising on I-95 at 100 mph, my hair
dashing wildly in the wind. I hold it down as best I can, desperately trying to
keep it from becoming a frizzy mess, but I’m losing the battle.
“Aren’t you concerned about
the police?” I ask.
“Of course I’m concerned. But
what’s the point of having a Lamborghini if you can’t drive it fast?”
We make the hundred mile trip
to Jacksonville in only an hour giving us an average speed of 100 mph. I’m
certain there were times when he had it up to one-fifty, but I kept quiet,
basked in the adrenalin rush, and hoped we wouldn’t be spending the day at the
police station.
Berkeley parks the car, puts
up the top, and then, puts on a tie. I grab my hair brush and hastily try to
comb out the knots in my hair. He looks in his rear-view mirror, straightens his
tie, and then turns to me.
“The meeting’s at nine, but as
a courtesy, they’ll let us use a private office for an hour, to go over our
notes.”
We get out of the car and
Berkeley locks the doors. He puts on the jacket, and then, we make our way to
the lobby. Inside, Mr. and Mrs. Stewart are waiting by the door. The four of us
squeeze into an elevator and ride it to the twelfth floor. Berkeley strolls up
to the receptionist and introduces himself. She leads us to an empty office,
switches on the light, and invites us to enter. As we take a seat, she exits, closing
the door behind her.
“Feel free to speak freely,”
Berkeley says. “I don’t think it’s bugged. That would be quite unprofessional.”
Mrs. Stewart turns to face Berkeley.
“What do we need to do?” she
asks.
“Actually, nothing. You’ve
hired us to represent you. We do all the work. The only reason GWI wanted you
here today is to see how resolute you are. See if there’s any wiggle room. My
advice would be to keep silent and deflect all questions to me.”
I spend the time reviewing my
notes, and then, fifteen minutes later, there’s a tap at the door. Berkeley
tells whoever it is to enter. A lady walks in pushing a serving tray with some
pastries and a coffee urn on it. She places everything on the table and then
leaves the room pushing only the empty tray. Mr. and Mrs. Stewart spend the
time sipping on coffee and sampling the pastries.
At 8:55 AM, there’s another
tap at the door and the receptionist peeks in. She tells us our hosts are ready
to begin so we follow her down the hall to the main conference room. It’s huge,
with floor to ceiling windows facing the Atlantic, a giant flat-screen TV at
one end, a bar at the other end, Greek statues in the corners, and in the middle,
a table large enough to double as a roller-skating rink. Six people are sitting
around the table, two of which I recognize immediately. They’re the two men
that got me kicked out of school, the two people I despise more than anyone in
the world, Eldridge Broadhampton, the founder of GWI, and his special council,
Ellis Grimes.
The older man stands up. His casual
attire—a leather sports jacket over a pink pastel shirt, unbuttoned at the
neckline—contrasts sharply with the stodgy, bland, business suits of the other
participants. His presence, and air of confidence, mesmerizes everyone in the
room. He directs his attention to our side of the table maintaining eye contact
with the Stewarts.
“Welcome my friends. I am Eldridge
Broadhampton, founder and CEO of Global World Industries. And, presumably, you
are George and Victoria Stewart?”
They nod in agreement.
“It was with great sadness I
learned about your son Kevin, and all of us here share your sorrow. But I would
like you to know, I started this company forty years ago with the proposition:
our mission and goal would be to produce only products that would enhance the
quality of life of all mankind. I had, and still have, the profound belief if
we were kind to our customers, they would be kind to us. The suggestion that
this company is somehow responsible for your son’s accident is contrary to
everything I’ve promoted to our employees. Every scientist and engineer that
works here will tell you how important safety is to this organization. The
accusation that this company placed profits above the welfare of our clients
strikes deep at my heart. And although we believe this to be a freak and
bizarre accident, we are not without compassion, and would like to help
alleviate your pain. My chief legal counsel, Ellis Grimes here, will explain
the details to you.”
Ellis stands up and nods to
the participants around the table, acknowledging their presence.
“Now if you will excuse me, I
have another meeting. Ellis, the floor is yours.”
Broadhampton exits the room
and Ellis strolls to the front, under the wide-screen TV.
“You’ve heard Mr.
Broadhampton’s declaration that his first and foremost intention is to assist
you in getting over your grief, however, I’ve reviewed your ‘demand’ letter and
I find a number of inconsistencies I’d like to discuss. May I?”
Everyone looks at Berkeley
and he nods okay.
“First, I found your
supposition that a marine biologist would make $140,000 a year somewhat beyond
belief. My own research tells me the starting salary for a marine biologist is
$29,000, going up to $124,000 for senior staff. But of course, there’s no
guarantee Kevin would have ever achieved senior status. He might have changed
careers, chosen a lesser position, or failed to make the grade. I believe a
more realistic estimate would be a maximum salary of $89,000 per year giving us
an average of $59,000 assuming a linear progression of earnings, which of
course is highly speculative, however, for the benefit of the doubt; I’ll give
that to you. Thus, over a twenty year career, which, by the way, I believe is a
more realistic life expectancy factor, we have a total wage loss of $1.2
million. Keep in mind Kevin could have become a victim of drug or alcohol
abuse; wasn’t marijuana and booze found in the car? He could have also succumbed
to a debilitating illness, or even died. Forty years is too ambitious in my
opinion.”
Ellis gazes around the room
taking in the reaction, and then continues.
“Then there’s the ‘loss of
joy’ award. How much joy are you going to get from an eighteen year old? He’s
past the formative years, almost a man, and believe me, someone that age isn’t
going to listen to his parents. The teenagers I come across are no joy, in
fact, they’re more like a nuisance, but just to be generous, I threw in
$100,000, down from the $2.4 million you requested. My offer then is 1.3
million.”
Berkeley seems frozen for a
moment, and then he speaks.
“Thank you Mr. Grimes. We’d
like to take that under advisement. Can we break for fifteen minutes?”
“Of course, take as long as
you like.”
Berkeley gets up and signals
us to follow him. We file out the door and back to the private office. Everyone
takes a seat.
“Well, there’s 1.3 million on
the table. Shall we take it?” he says, directing the question to the Stewarts.
They seem stunned and don’t
answer so Berkeley adds:
“If you accept, I’ll reduce
my fee to just expenses, which at this point is less than $50,000. You walk
away with a clean one-and-a-quarter million. It’s your call.”
The room goes silent and I
feel the compulsion to say something.
“Boy, do you believe that
Ellis? He handled that with the delicacy of a gorilla doing brain surgery.”
Mrs. Stewart fidgets in her
chair and then speaks up.
“Did you hear what he said
about Kevin? Practically called him a drug addict.”
“I think he was speaking
hypothetically,” Berkeley says.
“And to suggest Kevin won’t
bring us any joy, or that he’s a slacker, or any of those nasty things he
said.”
“Think carefully. Both of
you. You could walk out of here with more than one million dollars. It’s a sure
thing. I can’t guarantee you would ever get the eight million, or even anything
close,” Berkeley says.
“I don’t care. I don’t like
that man. I know what he’s thinking. Thinks were just after the money. Well, he
can stick his money you know where.”
“Why don’t you and Mr.
Stewart take a few minutes in private and discuss it.”
Berkeley and I leave the room
and stand out in the hallway. A few moments later, Mrs. Stewart pops her head
out and tells us to come back inside.
“No, we’ve made up our mind.
We’re going to pass.”
“Pass it is,” Berkeley says,
and we all follow him back to the main conference room. We take our seats, but
Berkeley remains standing.
“Mr. Grimes, we appreciate
the offer, but the Stewarts have told me they wish to pass.”
“You’re going to walk away
from a million dollars?”
“I work for Mrs. Stewart, and
she’s pretty strong willed.”
Ellis wanders over to the
window and stares at the ocean for a couple of minutes. He moves over to a man
with an open laptop and sits next to him. The two of them whisper to each other
for a few moments and then the man types on the keyboard. He points to
something on the screen and then the two of them whisper something again. Ellis
stands up and turns to face us.
“Okay, you want to play
tough. Mr. Broadhampton is very motivated to settle this case, and of course,
to ease the pain of the Stewarts. Tell you what I’ll do. I’ll double the offer
to 2.6 million.”
There’s a gasp from everyone
in the room. Berkeley looks at Mrs. Stewart and I see her head signal a
determined NO.
“There’s your answer,”
Berkeley says.
“I see,” Ellis says. “You
think you have a strong case. Well, before you go, I want you to hear some
testimony, from one of our experts. And after you hear him, I’ll give you one
last chance to accept the offer, out of courtesy of course.”
“Fine, bring him in,”
Berkeley says.
Ellis dials a phone and
requests a certain person to join us. Five minutes later, there’s a tap at the
door and a man in a white lab coat enters. He sits near the other GWI
employees.
“Please announce your name,”
Ellis says.
“I’m Dr. Tom Benson, Chief
Scientist and Director of Product Development at Global World Industries.”
“Dr. Benson, what did I give
you several weeks ago?”
“You gave me a report by Ms.
Indigo Wells to the EPA.”
“And what was in that
report?”
“She basically tried to prove
that Farm-eXia had psychotropic effects on aquatic animals.”
“What did you think of the
report?”
“Well, naturally we were
concerned. After all, we market Farm-eXia as being perfectly safe for external
application.”
“And what did you do?”
“We acquired some aquatic
laboratory animals, frogs, snakes, and small alligators. Then we fed them
larger than normal quantities of Farm-eXia to see if we could duplicate the
results in the report.”
“You say, larger than normal
quantities. How high?”
“The quantities ranged from
ten to twenty times the allowed limit.”
“For how long did you feed
them these quantities?”
“Several weeks.”
“Briefly, what were your
findings?”
“We hired several
herpetologists to determine if the animals that were fed the Farm-eXia
exhibited behavioral patterns that deviated from the control group. No
differences were noted.”
“So what is your conclusion?”
“My conclusion is clear.
Farm-eXia has no effect on aquatic animals.”
“Still want to sue?” Ellis
says, with a sneer.
“Excuse us,” Berkeley says,
and leads the four of us out to the hallway. He looks worried, troubled, and
then turns to me.
“What do you think about all
this?”
“I know what I saw in the
wild. But until I see the details of his report, I have to assume he missed
something important.”
Berkeley turns to the
Stewarts.
“You might want to reconsider
that 2.6 million. You could end up with nothing.”
Mrs. Stewart answers.
“My husband agrees with me.
If we take the money, Kevin’s death was in vain. No, I’m with Indigo, we have
to find the true cause and get this stuff off the market.”
“Okay, as you wish. I work
for you.”
We re-enter the room, take a seat,
and Berkeley remains standing.
“My clients decline the
offer.”
“Decline $2.6 million? Are
they... Okay, I understand. They’re still in shock. Today’s Wednesday. I’ll
give you until next Wednesday, seven days, to decide. I must be crazy for doing
this, but I guess it’s the softie in me.”
Berkeley thanks Ellis and
then we gather our things to leave.
“One more thing,” Ellis says.
“Don’t forget the Rule 11 sanctions. We’ll spare no expense, and guess who
we’ll come after? And we know you have deep pockets.”
“Yes, thanks for reminding
me,” Berkeley answers, and then leads us out the door.
In the lobby, he gathers us
together for a brief meeting and tells the Stewarts to call him immediately if
they change their minds. They assure him they will, and then, we go our
separate ways.
It’s almost noon, and
Berkeley drives to an exquisite French restaurant on the waterfront and treats
me to lunch. I feast on the best Bouillabaisse I have ever had and wash it down
with a drink called “The Conquistador,” laden with more alcohol than I care to
admit. But he seems disinterested in his meal, taking small bites, and then
gazing off into the distance, as if he’s deep in thought. I’m tempted to
inquire what’s bothering him, but he saves me the effort.
“On the one hand, Ellis
appears to be unusually anxious for us to take the 2.6 million and avoid a
trial. But then he acts like he can’t lose. I don’t get it.”
“He’s afraid of bad publicity,”
I say.
“I don’t think so. A
judgement against us would be a PR bonus. It would vindicate the company and
scare off other litigants. The stock price would go through the roof.”
“Maybe it’s the cost of
litigation.”
“He’s already threatening
Rule 11 sanctions.”
“What are they?”
“Federal Rules of Civil
Procedure, Rule 11. It’s what every lawyer fears. Basically, it allows the
defendant to recover all legal expenses from the plaintive and his lawyer if
the lawsuit can be shown to be frivolous. Lawyers are expected to filter
lawsuits that have no merit. That’s why we need an airtight case, Indigo.”
“I didn’t realize you could
lose money on this.”
“Well, I do have malpractice
insurance if things go badly. But it’s a blot on my record.”
I’m feeling
pretty mellow from the Conquistador and the warm afternoon air is lulling me
into a state of tranquility so I feel the necessity to lighten the moment and
offer an uplifting analysis of the situation.
“I think it’s a bluff. He
wants to settle because he’s not convinced he can win. He would offer more, but
he can’t. I bet he’s been bragging to the Board of Directors he can’t lose and
they took him at his word and then capped the settlement at $2.6 million.”
“Okay, let’s say he’s
bluffing; why would he do that?”
“Because he’s an asshole?” I
say, in a moment of silliness.
“Now-now. Let’s keep this
professional.”
“Sorry.”
Berkeley gazes into the
distance for a few moments, deep in thought, and then abruptly turns to me.
“Could he be hiding
something?”
“You’re the second person
that’s suggested that.”
“Second person?”
“Yeah. There was this woman,
Judy Swass, a lawyer, covertly working for GWI. She reported to Ellis Grimes.”