The Litigators (47 page)

“It should be obvious, David, that we would like to avoid a trial and jury.”

“I understand, but my point is that this case has tremendous jury appeal. After the jurors spend three days looking at Thuya Khaing strapped into his high chair, they might bring back a verdict larger than any of these. That potential should be factored into our negotiations.”

“Got it. What is your demand?” Carl asked.

“Well, a settlement should include several areas of compensation, some relatively easy to tally, others not so easy. Let’s start with the
financial burden on the family to care for the child. As of now, they’re spending about $600 a month on food, medications, and diapers. Not much money, but a lot more than the family can afford. The boy needs a part-time nurse and a full-time rehab specialist to at least attempt to retrain muscles and reprogram the brain.”

“What’s his life expectancy?” asked Wyatt Vitelli.

“No one knows. It’s a moving target. I didn’t put it in my report, because one doctor says a year or two, off the record, and another one says he could live to be an adult. I’ve talked to all the doctors, and no one thinks it’s smart to predict how long he might live. I’ve spent some time with him during the past six months, and I’ve noticed a slight improvement in some functions, very slight. I think we should negotiate as if he has twenty years left.”

All three men nodded, quick to agree.

“It’s obvious that his parents do not earn a lot of money. They live in a small, cheap apartment with two older daughters. The family needs a home, with plenty of space and a bedroom outfitted for Thuya’s special needs. Nothing elaborate—these are simple people, but they have dreams.” At this point, David slid across three copies of Exhibit 2, which were quickly snatched off the table.

David took a deep breath and plowed forward. “This is our settlement proposal. First, you see the specific damages. Number 1 covers the expenses I mentioned, plus a part-time nurse at $30,000 a year, plus the mother’s lost salary of $25,000 a year because she would like to quit work and stay home with the boy. I’ve also added the cost of a new car so they can take him to and from rehab on a daily basis. I’ve rounded it off to $100,000 a year, for twenty years, for a total of $2 million. You can buy an annuity at today’s rates for $1.4 million. Rehab is a gray area because I’m not sure how long it would continue. As of today, it runs about $50,000 a year. Assuming twenty years, the annuity will cost you $700,000. Next is the issue of a new home, in a nice neighborhood, with good schools—$500,000. The next item deals with the Lakeshore Children’s Hospital. Their care saved his life
and was free, at least to the family, but I think the expenses should be paid back. The hospital was reluctant to give me an estimate, but there it is—$600,000.”

David was at $3.2 million, and none of the three executives had removed a pen from a pocket. There were no frowns, no head shaking; nothing to indicate they thought he’d lost his mind.

“Moving on to the nonspecifics, I’ve listed the kid’s loss of enjoyment of life and the emotional distress of the family. I know these are vague areas, but they are compensable damages under Illinois law. I suggest the sum of $1.8 million.”

David folded his hands together and waited on a response. No one seemed surprised.

“A tidy sum of $5 million,” Carl LaPorte said.

“What about attorneys’ fees?” Dylan Kott asked.

“Gee, almost forgot about those,” David said and everyone smiled. “My fee is not taken from what the family gets. It’s extra. Thirty percent on top of what you’re looking at there, or $1.5 million.”

“That’s a nice payday,” Dylan said.

David almost mentioned the millions each of the three had earned the previous year in salary and stock options, but let it pass. “I would like to think I could keep it all, but that will not be the case.”

“Six and a half million dollars,” Carl said as he laid down his copy of the report and stretched his arms.

“You guys seem intent on doing what’s right,” David said. “Plus, you don’t want bad publicity, just like you don’t want to roll the dice with an unsympathetic jury.”

“Our image is very important,” Carl said. “We don’t pollute rivers or make cheap handguns or deny insurance claims or bilk the government on bad contracts. We make toys for kids. It’s just that simple. If we get the reputation for harming children, we’re dead.”

“Can I ask where you found these products?” Dylan asked.

David told the story of Soe Khaing purchasing the first set of Nasty Teeth a year earlier, and of his search high and low in Greater Chicago for similar packages. Carl described the company’s efforts to track them
down too and admitted that Sonesta Games had settled two other similar cases within the past eighteen months. They were cautiously hopeful that all lead-painted samples had been removed from the market and destroyed, but not certain. They were at war with several factories in China and had moved most of their production to other countries. The purchase of Gunderson Toys had been a costly blunder. Other stories followed, as if both sides needed a break to think about the settlement proposal on the table.

After an hour, they asked David to step outside so they could huddle in private.

D
avid drank a cup of coffee with his clients, and after fifteen minutes the same assistant asked him to return to the conference room. She closed the door behind him, and David was ready to cut the deal or walk away.

When they were situated and poised, Carl LaPorte said, “We were prepared to write a check for $5 million and put this matter to rest, David, but you’re asking for a lot more than that.”

“We will not accept $5 million, because the case is worth twice that much. Our number is $6.5 million, take it or leave it. I’ll file the lawsuit tomorrow.”

“A lawsuit will take years. Can your clients afford to wait?” Dylan asked.

“Some of our federal judges use this Local Rule 83:19, nicknamed the Rocket Docket, and believe me, it works. I can have this case before a jury in a year. The last case was far more complicated, and it went to trial ten months after it was filed. Yes, my clients can survive until the jury brings back the verdict.”

“You didn’t win that case, did you?” Carl asked with his eyebrows arched, as if he knew everything about the Klopeck trial.

“No, I did not, but I learned a lot. I had a lousy set of facts. This time, I own the facts. By the time the jury hears everything, $6.5 million will seem like a bargain.”

“We’ll offer $5 million.”

David swallowed hard, glared at Carl LaPorte, and said, “You’re not hearing me, Carl. It’s $6.5 million now, or a lot more a year from now.”

“You’re turning down $5 million for these poor Burmese immigrants?”

“I just turned it down, and I’m not negotiating. Your company is well insured. The $6.5 million is not coming off your bottom line.”

“Maybe, but the insurance premiums are not cheap.”

“I’m not haggling, Carl. Deal or no deal?”

Carl took a deep breath and exchanged looks with Dylan Kott and Wyatt Vitelli. Then he shrugged, smiled, surrendered, and offered a hand. “A deal.” David grabbed his hand and shook it firmly.

“On the condition that this is extremely confidential,” Carl said.

“Of course.”

Dylan said, “I’ll get our guys in Legal to prepare an agreement.”

“Not necessary,” David said as he reached into his briefcase. He pulled out a file, removed four copies of a document, and passed them around. “This is a settlement agreement that covers everything. It’s pretty straightforward and includes all manner of language about confidentiality. I work for a tiny law firm, but it has some complicated problems. It’s in my best interests to keep this quiet.”

“You had a settlement agreement prepared at $6.5 million?” Carl asked.

“You got it. Not a penny less. That’s what this case is worth.”

Dylan said, “This settlement has to be approved by the court, right?”

“Yes. I’ve already established a guardianship for the kid; his father is his legal representative. The court must approve the settlement, and over the years it will supervise the money. I’m required to prepare an annual accounting and meet with the judge once a year, but the file can be sealed to ensure secrecy.”

They reviewed the agreement, then Carl LaPorte signed it on behalf of his company. David signed it, then Soe and Lwin were brought into
the room. David explained the terms of the settlement to them, and they signed under his name. Carl apologized again and wished them well. They were shell-shocked, overcome with emotion, and unable to speak.

As they were leaving the building, Dylan Kott asked David if he could have a moment to discuss a matter. The Khaings moved on and waited by David’s SUV. Dylan deftly slid a white unmarked envelope into David’s hand as he said, “You didn’t get this from me, okay?”

David placed it inside his coat pocket. “What is it?”

“A list of other products, mainly toys, with histories of lead poisoning. Most were made in China, but there are some from Mexico, Vietnam, and Pakistan. Made somewhere else, but imported here by U.S. companies.”

“I see. And might these companies be your competitors?”

“You got it.”

“Thanks.”

“Good luck.”

F
inley & Figg’s last firm meeting took place late that afternoon. At David’s insistence, they waited until Rochelle was gone. Oscar was exhausted and cranky, a good sign. His girlfriend and driver had been sent away at 3:00 p.m., and David promised to drive his senior partner home after the meeting.

“This must be important,” Wally said as David locked the front door.

“Indeed it is,” he said, taking a seat at the table. “You guys remember that lead-poisoning case I mentioned back a few months ago?” There were vague recollections, but so much had happened since then. “Well,” David said smugly, “there has been an interesting development.”

“Do tell,” Wally said, already anticipating something pleasant.

David went through a lengthy narrative of his activities on behalf of the Khaings. He placed a set of Nasty Teeth on the table as he slowly spun his story toward its delightful climax. “This morning, I met with the CEO and other top executives from the company, and we reached a settlement.”

By this time, Wally and Oscar were hanging on every word and exchanging nervous glances. When David said, “The attorneys’ fees are $1.5 million,” both closed their eyes and lowered their heads, as if in prayer. David paused as he retrieved copies of a document for each of them.

“This is a proposed partnership agreement for the new law firm of
Finley, Figg & Zinc.” Oscar and Wally held the document, but neither looked at its language. They simply gawked at David, both mouths open, both men too stunned to speak.

David continued, “An equal partnership, a three-way split of the bottom line with a monthly draw based on net revenue for each month. You guys keep the building in your names. You may want to look at the third paragraph on the second page.” Neither flipped a page.

“Just tell us,” Oscar said.

“Okay, there’s some pretty clear language about certain activities the new firm will not engage in. It will not pay bribes or referral fees to policemen, tow truck drivers, rescue personnel, or anyone else for case referrals. It will not advertise on bus stop benches, bingo cards, or any other cheap publication. In fact, all advertising must be approved by the Marketing Committee, which, at least for the first year, will consist solely of me. In other words, fellas, the firm will no longer chase ambulances.”

“What’s the fun of that?” Wally asked.

David smiled politely but kept going. “I’ve heard talk about advertising on billboards and television; that, too, is prohibited. Before the firm signs up a new client, the three of us must agree to take the case. In summary, the firm will adhere to the highest standards of professional conduct. Any fees in cash will go straight to the books, which will now be kept by a competent CPA. In effect, gentlemen, the new firm will operate like a real law firm. This agreement is good for one year, and if either of you fails to comply with it, then the partnership will dissolve and I’ll find work elsewhere.”

“Back to the attorneys’ fees,” Wally said. “I’m not sure you finished that part of the discussion.”

“If we can agree on the rules of the new partnership, then I suggest we use the fees from the Khaing settlement to pay off the bank and clean up the Krayoxx mess, including the $15,000 in sanctions levied during the trial. That’s about $200,000. Rochelle gets a bonus of $100,000. That leaves $1.2 million for the lawyers, which I think we should divide equally.”

Wally closed his eyes. Oscar grunted, then slowly got to his feet and walked to the front door, where he looked through the window. Finally, he said, “You don’t have to do this, David.”

“I agree,” Wally said, though without much conviction. “This is your case. We’ve done nothing.”

“I understand,” David said. “But I look at it like this: I would never have found this case had I not been here. It’s that simple. A year ago, I was working at a job I hated. By chance I stumbled into this place, met you guys, and then I got lucky and found this case.”

“Excellent point,” Wally said, and Oscar was quick to agree. Oscar walked back to the table and slowly settled into his chair. He looked at Wally and said, “What about my divorce?”

“No problem. We have a signed settlement agreement. Your wife is not entitled to any fees earned after she signed it. The divorce will be final in January.”

“That’s the way I see it,” Oscar said.

“Me too,” added David.

Things were silent for a long time, then AC rose from his pillow and began a low growl. The distant whine of an ambulance siren came into range and grew louder. Wally glanced longingly at the window beside Rochelle’s desk.

“Don’t even think about it,” David said.

“Sorry. Force of habit,” Wally replied. Oscar began chuckling, and soon all three were laughing.

B
art Shaw closed his files and dropped his malpractice threats against Finley & Figg. He collected almost $80,000 from Varrick for his successful efforts to torment the firm and force it to trial in the Klopeck matter. Adam Grand filed an ethics complaint with the state bar association, but it eventually fizzled. Five other clients, of the “non-death” variety, did the same, with the same results. Nadine Karros made good on her promise not to seek sanctions for the filing of frivolous lawsuits, but Varrick mounted an aggressive, and sometimes successful, campaign in other courts to collect money from plaintiffs’ firms. Jerry Alisandros was hit with a huge fine in southern Florida when it became obvious he had no plans to pursue his Krayoxx litigation.