The Litigators (46 page)

“What about the office building?”

“Heavily mortgaged. Look, Mr. Stamm, you cannot get a verdict, because your client is a twice-convicted felon who was caught in the act of trying to commit a crime. Extremely lousy jury appeal. But if you got lucky and got a verdict, Mr. Finley would file for bankruptcy the next day. You can’t touch him, you understand?”

“I get the picture.”

“We have nothing and we are hiding nothing. Please have a chat with Mrs. Finley and Mr. Bardall and explain this to them. I would love to close these files as soon as possible.”

“Okay, okay. I’ll see what I can do.”

A
week passed with no word from Sonesta Games. David watched the calendar and the clock. He fought the urge to dream of a quick settlement, and he dreaded the idea of filing a lawsuit in federal court against a large corporation. That treacherous road had just been traveled. At times he felt like the old Wally—lost in dreams of easy money.

The firm slowly returned to a routine that somewhat resembled the old days. Rochelle arrived at 7:30 each morning and enjoyed her quiet time with AC. David was next, then Wally, whose car had been towed during the drinking spree and was not damaged. Oscar rolled in around ten, delivered to the front door by his girlfriend, a charming lady who managed to impress even Rochelle. At some point each morning, Wally faced each of his colleagues and said, “Day 12 of sobriety.” Then Day 13, and so on. He received congratulations and encouragement and was once again proud of himself. He found an AA meeting almost every night somewhere in the city.

The phones were still ringing with calls from disgruntled Krayoxx clients, all of whom Rochelle routed to Wally and David. The ex-clients were generally subdued, even pitiful, as opposed to belligerent. They had been expecting money—what happened? The lawyers were apologetic and tended to blame things on some mysterious “federal jury” that had ruled in favor of the drug. The lawyers were also quick to point out that “it had been proven in court” that Krayoxx was safe.
In other words, your lawsuit is gone but your heart is much healthier than you thought.

Similar conversations were being repeated across the country as dozens of high-flying lawyers backtracked from the drug. A lawyer in Phoenix filed a motion to dismiss four lawsuits involving clients allegedly killed by Krayoxx. His motion met a Rule 11 response straight from the Nadine Karros playbook. Varrick Labs demanded sanctions for the filing of the frivolous cases and provided detailed billing and expense records to prove it had spent over $8 million defending the lawsuits. With the mass tort lawyers in retreat, it soon became apparent that Varrick was in hot pursuit. The wars over Rule 11 sanctions would rage for months.

Ten days after the verdict, the FDA lifted its recall of Krayoxx, and Varrick flooded the market. Reuben Massey would quickly restock his cash reserves, and his first priority was to pound away at the mass tort bar over its mistreatment of his beloved drug.

E
leven days after the verdict, and still no word from Aaron Deentz. The Hung Juror had taken a break from his blog, without an explanation. David had two thoughts about a prosecution for simple assault. First, if Deentz filed charges, he would run the risk of blowing his cover. Like many bloggers, he relished his anonymity and the freedom it allowed to say virtually anything. The fact that David knew who he was, and called him out right before he punched him, had to be unsettling. If Deentz pressed charges, he would be forced to appear in court and admit to being the Hung Juror. If he was really out of work and looking for a job, his blogging might haunt him. In the past two years, he had said terrible things about judges, lawyers, and law firms. On the other hand, he had been on the receiving end of two solid punches. David had not felt bones breaking, but there had to be damage, if only temporary. Since Deentz was a lawyer, he would probably insist on getting his day in court, and his revenge.

David had yet to tell Helen about the assault. He knew she would
react with disfavor and she would worry about an arrest and prosecution. His plan was to tell her only if Deentz filed charges. In other words, he would tell her later, maybe. Then he had another idea. There was only one Aaron Deentz in the phone book, and late one afternoon David dialed his number. “Aaron Deentz, please,” David said.

“Speaking. Who is this?”

“David Zinc, here, Mr. Deentz, and I’m calling to apologize for my actions after the jury’s verdict. I was upset, angry, and I acted rashly.”

A pause, then, “You broke my jaw.”

At first, there was a flash of macho pride in the fact that he could throw a punch with such ferocity, but all bravado vanished when David thought about a civil lawsuit for personal injuries. “Again, I apologize, and I certainly did not intend to break anything or cause bodily harm.”

Deentz’s next response was most revealing. He asked, “How did you learn my identity?”

So, he was afraid of being exposed. David fudged a little by saying, “I have a cousin who’s a geek. Took him twenty-four hours. You shouldn’t post at the same time each day. Sorry about the jaw. I’m willing to cover your medical expenses.” He made this offer because he was compelled to, but he flinched at the thought of another outlay of cash.

“Are you trying to offer a deal, Zinc?”

“Sure. I’ll cover your medicals, and you agree not to press charges or pursue damages.”

“You’re worried about an assault charge?”

“Not really. If I have to defend myself for the assault, I’ll make sure the judge sees some of your comments, and I doubt he’ll be impressed. Judges despise blogs like yours. Judge Seawright followed it daily and was furious, thought it might affect the case if any of the jurors stumbled across it. His clerks were trying to learn the identity of the Hung Juror.” David was spinning this wild fiction on the fly, but it had a legitimate ring to it.

“Have you told anyone?” Deentz asked. David couldn’t tell if he was timid, scared, or just dealing with a broken jaw.

“Not a soul.”

“I lost my insurance when I lost my job. The medicals are $4,600 as of now. The wires are in for a month, after that I don’t know.”

“I made my offer,” David said. “Do we have a deal?”

A long pause, then, “Yes, I guess.”

“There’s one other thing, Mr. Deentz.”

“Okay, what is it?”

“You called my wife a bimbo.”

“Yes, I, uh, shouldn’t have done that. Your wife is very attractive.”

“She is, and she’s a very smart lady.”

“My apologies.”

“And mine.”

W
ally’s first post-trial victory was the successful completion of Oscar’s divorce settlement. With little in the way of assets and both parties desperately wanting out, the agreement was actually quite simple, if any legal document could ever be considered simple. When Oscar and Wally signed their names just below Paula Finley and Goodloe Stamm, Oscar stared at the signatures for a long time and did not attempt to suppress a smile. Wally filed the agreement in circuit court, and an appearance date was set for mid-January.

Oscar insisted on a celebratory bottle of champagne, nonalcoholic of course, and the firm met at the table for an unofficial meeting late in the day. Since all four knew the score—Day 15 of sobriety—Wally was toasted along with the newest bachelor on the block, Oscar Finley. It was Thursday, November 10, and though the little boutique firm was facing a mountain of debt with few clients, they seemed determined to enjoy the moment. Wounded and humiliated, they were still standing and showing signs of life.

Just as he drained his glass, David’s cell phone vibrated. He excused himself and went upstairs.

———

D
ylan Kott introduced himself as the senior VP and chief counsel for Sonesta Games, a position he had held for many years. He was calling from the company’s headquarters in San Jacinto, California. He thanked David for his letter, its tone and reasonableness, and assured him the package had been studied by the company’s top brass, and, frankly, there was “deep concern” up there. He, too, was concerned and said, “We’d like to get together, Mr. Zinc, face-to-face.”

“And the purpose of the meeting would be to …?” David asked.

“Discuss ways to avoid litigation.”

“And to avoid negative publicity?”

“Certainly. We are a toy company, Mr. Zinc. Our image is very important to us.”

“When and where?”

“We have a distribution center and office in Des Plaines, your neck of the woods. Could you meet us there Monday morning?”

“Yes, but only if you’re serious about a settlement. If you plan to walk in with some lowball scheme, then forget it. I’ll take my chances with a jury.”

“Please, Mr. Zinc, it’s too early to start with the threats. I assure you we recognize the gravity of this situation. Sadly, we’ve been here before. I can explain it all on Monday.”

“Fair enough.”

“Has a legal representative been appointed by the court for this child?”

“Yes. His father.”

“Would it be possible to have both parents on hand Monday morning?”

“I’m sure they can be there. Why?”

“Carl LaPorte, our CEO, would like to meet them and, on behalf of our company, offer an apology.”

T
he facility was one in a long row of modern warehouses that covered acres and seemed to stretch endlessly west from Des Plaines and the Chicago suburbs. Thanks to his GPS, David found it with no trouble, and at 10:00 Monday morning he escorted Soe and Lwin Khaing through the front door of a redbrick office complex stuck to the side of a massive warehouse. They were immediately led through a hallway and into a conference room where coffee, pastries, and juice were offered. They declined. David’s stomach was flipping, and his nerves were on edge. The Khaings were thoroughly overwhelmed.

Three well-dressed corporate types entered the room: Dylan Kott, chief counsel; Carl LaPorte, CEO; and Wyatt Vitelli, chief financial officer. Rapid introductions were made, and then Carl LaPorte asked everyone to have a seat and did his best to reduce the tension. More offers were made of coffee, juice, and pastries. No thanks. When it soon became apparent that the Khaings were too intimidated to converse, LaPorte grew somber and said to the parents, “Well, first things first. I know you have a very sick boy and he is not likely to improve much. I have a four-year-old grandson, my only grandchild, and I cannot imagine what you are going through. On behalf of my company, Sonesta Games, I take full responsibility for what has happened to your son. We did not make the product, this Nasty Teeth toy, but we own the smaller company that did import it from China. Since it’s our company, it is our responsibility. Any questions?”

Lwin and Soe shook their heads slowly.

David watched in amazement. In a trial, these comments by Carl LaPorte would be fair game. An apology by the company would be admissible into evidence and carry great weight with the jury. The fact that he was accepting responsibility, and doing it without hesitation, was important for two reasons: first, the company was sincere; and, second, the case was not going to trial. The presence of the CEO, CFO, and top lawyer was a clear sign that they had brought their checkbook.

LaPorte continued: “Nothing I can say will bring back your little boy. All I can do is say I’m sorry and promise you that our company will do all that we can to help you.”

“Thank you,” Soe said as Lwin wiped her eyes. After a long pause, during which LaPorte watched their faces with great sympathy, he said, “Mr. Zinc, I suggest the parents wait in another room down the hall while we discuss matters.”

“Agreed,” David said. An assistant suddenly materialized and led the Khaings away. When the door was closed again, LaPorte said, “A couple of suggestions. Let’s take off our coats and try to relax. We could be here for some time. Any objection to using first names, Mr. Zinc?”

“Not at all.”

“Good. We’re a California company, and our culture leans to the informal.” All coats were removed and ties loosened. Carl continued, “How would you like to proceed, David?”

“You called the meeting.”

“Right, so a little background might be helpful. First, as I’m sure you know, we’re the third-largest toy company in America, sales last year of just over $3 billion.”

“Behind Mattel and Hasbro,” David said politely. “I’ve read all your annual reports and a ton of other stuff. I know your products, history, financials, key personnel, divisions, and long-term corporate strategy. I know who insures your company, but of course the limits of liability are not disclosed. I’m happy to sit here and chat as long as you guys would like to. I have nothing else planned for the day, and my
clients have taken off from work. But to move things along, I suggest we get down to business.”

Carl smiled and looked at Dylan Kott and Wyatt Vitelli.

“Sure, we’re all busy,” Carl said. “You’ve done your homework, David, so tell us what you have in mind.”

David slid across Exhibit 1 and began, “This is a summary of brain damage verdicts over the past ten years, kids only. Number 1 is a $12 million verdict in New Jersey last year for a six-year-old who ingested lead by chewing on a plastic action figure. The case is on appeal. Look at Number 4—a $9 million verdict in Minnesota that was upheld on appeal last year. My father sits on the Minnesota Supreme Court and is fairly conservative when it comes to upholding large verdicts. He voted to affirm that one, as did the rest of the court. Unanimous. It was another lead-poisoning case—a kid and his toy. Number 7 involves a nine-year-old girl who nearly drowned when her foot got caught in the drain of a brand-new swimming pool at a country club in Springfield, Illinois. Jury deliberated less than an hour and awarded the family $9 million. On page 2, look at Number 13. A ten-year-old boy was hit with a piece of metal flung from a commercial Bush Hog with no chain guards. Severe brain damage. The case was tried in federal court in Chicago, and the jury awarded $5 million in actual damages and $20 million in punitive damages. The punitive award was cut to $5 million on appeal. I don’t need to go through every case, and I’m sure you guys are familiar with this territory.”