The Mourning Sexton (17 page)

CHAPTER 28

T
he three of them—Dulcie, Rosenbloom, and Hirsch—were seated around the table in a small conference room in Rosenbloom's offices.

“How did he take it?” Dulcie asked Hirsch.

“Abe doesn't remember seeing or talking with her,” Hirsch said. “I don't know if he even remembers he has a sister named Hannah, or if he understands anything that's going on in the case anymore. He did remember that he had a daughter named Judith this time, but he seems to think she's alive.”

Dulcie winced. “Oh, no.”

Hirsch shook his head. “His mind is getting worse.”

It was a quarter to five. Dulcie had arrived just a few minutes before Hirsch, who'd been out of the office the whole day, having gone directly from probate court to a bankruptcy court meeting and from there to a debtors exam out in Jefferson County and then back to meet with Abe Shifrin.

The old man had seemed almost angelic that afternoon. His anger and irritation had vanished, replaced by an eerie serenity. The house was even messier than before. His shirt and pants were wrinkled and stained. Even so, he was calm and amiable. The television was on in the kitchen when he'd opened the door and looked up at Hirsch, giving him a pleasant smile. Hirsch introduced himself, not wanting to make Shifrin strain his memory. Shifrin beckoned Hirsch to join him in the kitchen, where he was watching a Roadrunner cartoon. Hirsch stood by the sink and watched Shifrin watch the cartoon, watched him laugh with delight as Wiley E. Coyote smashed into the image of a railroad tunnel that the Roadrunner had painted onto the side of the mountain before disappearing into it.

The cartoon ended, a laxative commercial came on, and Shifrin had turned to him. “So how can I help you, young man?”

Dulcie and Rosenbloom listened quietly to Hirsch's account of the meeting with Shifrin. Rosenbloom winced as Hirsch described his attempt to make Shifrin understand that his daughter was actually dead and not down at the supermarket picking up a head of lettuce.

When Hirsch finished, Dulcie asked, “When will the judge appoint a physician to examine him?”

“Already happened,” Rosenbloom said. He turned to Hirsch “We got the order by fax this afternoon. Doctor named Nemes. On the faculty at Wash U. Solid reputation.”

Hirsch nodded. “Good. Abe needs help. The sooner we get it for him, the better.”

“But what happens to the lawsuit?” Dulcie asked.

Hirsch looked at each of them. “We don't need the lawsuit.”

Dulcie frowned. “What?”

“I did some thinking on the drive back from Jefferson County. The lawsuit has served its purpose. We can't count on it anymore as a tool for developing the kind of information I'm looking for. If something's not kosher in the Peterson Tire litigation, I'm never going to find out what it is through a formal document request or a deposition. I'll have to do that investigation outside the rules of procedure.”

“So what do we do with the case?” Dulcie asked.

“Settle it,” Hirsch said.

“Settle it?” she repeated

Hirsch nodded. “And you should be the one to settle it.”

“David's right,” Rosenbloom said. “You've been cast in the role of guardian angel. You should be the one to make the contact with Marvin Guttner. Tell him you'd like to explore the possibility of a settlement.”

“Guttner will be delighted,” Hirsch said. “Just as important, the mere act of making that overture will immunize you.”

“Guttner doesn't trust you now,” Rosenbloom said to Dulcie. “We're the ones who suggested your name to the judge. He'll assume you're tainted. But if you contact him early on to explore settlement, those suspicions are going to disappear.”

“Or at least get diluted,” Hirsch added.

“I don't get it.” She stared at Hirsch. “You really want me to settle this case?”

Hirsch nodded. “This is the right moment. Abe is going to end up in a nursing home, and probably sooner rather than later. It's going to be expensive. Might as well get Peterson Tire to help pay the bills.” He paused. “But the settlement can't be just for money.”

“What do you mean?” she asked.

Hirsch glanced at Rosenbloom. “We owe him that much, Sancho.”

Rosenbloom gave him a weary shrug.

Hirsch turned to Dulcie. “Abe never cared about the cash. He called it blood money.” Hirsch leaned back in his chair. “It took him three years of brooding before he decided to bring a lawsuit. He told me he wanted to make sure that the people responsible for her death would be forced to remember her. He wanted them to accept responsibility.”

He paused and shook his head. “He doesn't remember that anymore, but I do. That's why the settlement has to be for more than money. We need to get him some justice, too.”

“What do you have in mind?” Dulcie asked.

Hirsch sighed. “I'm not sure anymore. Even if they agreed to put some kind of an admission in the settlement agreement, and they'd never agree to, how do we know if they're guilty of anything? How does a false admission honor her memory? Still, we need to get something out of them. We need to be realistic. We need to admit to ourselves that we may never find anything on McCormick. This could be our only chance to do something for Judith.” He shrugged. “Maybe we ask them for an expression of regret.” He glanced over at Rosenbloom. “Not much, but it's something.”

Dulcie nodded. “I'll see what I can get.”

“And while you're at it,” Rosenbloom said, “be sure you squeeze Jabba's nuts for some more cash. Seventy-five grand isn't enough. Make Blimpie squirm a little.”

She smiled. “It'll be my pleasure.”

Hirsch checked his watch. Ten minutes after five.

“Did Jumbo come by today?” he asked.

Rosenbloom said, “For a few hours this morning. While we were in court. He was heading out just as I got back. He told me to tell you he's still trying to find her e-mails but he was able to locate most of the documents she created on her computer.”

“Really?” Hirsch said. “Can he get us access to them?”

Rosenbloom chuckled. “Oh, yeah. I don't understand the connection he hooked up, but he told me he made sure that no one could ever trace it back to this office. He's got the print command routed through a computer in the admissions office at the University of Nebraska. The guy is goddamn amazing. Anyway, he told me it might take awhile for our printer to kick in, and he was right. But it's been printing like a bastard for the last hour.”

“Printing what?”

“Go in your office and check it out. You got a big stack of shit, and it's growing by the minute. That little gal could write.”

CHAPTER 29

T
he sheer quantity was astounding. And daunting.

Thousands of documents. Thousands and thousands of pages. The written detritus of more than two years of a district court clerkship. A half dozen different documents a day, each ranging in length from one to twenty pages, most in the three- to five-page range. There were research memos and letters and draft orders and interoffice communications and draft opinions and internal memos and notes and outlines of legal issues and status reports and so on and so on and so on.

Each document included a document-profile cover page, with the date and time of its creation and the date and time of each edit. Jumbo had arranged for the documents to print in chronological order, beginning with what appeared to be a sample file memo created on her first day on the job as part of a computer training class at the courthouse.

He started in on the pile at 5:30 that night. He moved through them slowly and deliberately, not sure what he was looking for, not wanting to miss something subtle buried on page three of an otherwise irrelevant memorandum.

For the period covering her first months on the job, he read every word of every document. He needed to understand the clerkship of Judith Shifrin, and, as he gradually realized, the world of Judith Shifrin. He'd seen photographs of her—the childhood snapshots, the posed graduation photos, the final morgue shots. And he'd heard the words of others about her—the words of her father, of Dulcie, of Missy Shields, of even Marvin Guttner. But finally, here in this pile of documents, he had access to her words.

And at last, he began to hear her voice. It was a younger voice than he'd imagined. Almost naive. A voice lacking self-confidence. But an earnest voice. And an intelligent one, too.

For every day during her first few months on the job, Judith created at least two multipage documents, one entitled Court Notes and the other entitled Chambers Notes. Each was a distillation of the copious notes she took during court proceedings and conferences in her judge's chambers. According to the date and time notations on the document profile pages, she apparently returned to her office at the end of the day and typed up her notes, sometimes working as late as ten or eleven at night, especially during the early days, back when she was unsure of the significance of what had occurred.

In those early Court Notes and Chambers Notes, she seemed to write down everything—objections, arguments of counsel, evidentiary rulings, oral motions, scheduling matters, testimony summaries, the judge's comments on anything and everything. She was especially careful to record whatever McCormick said, surrounding his banalities and hackneyed expressions with quotation marks, as if recording gems of wisdom for the ages. Thus her first Court Notes recorded McCormick's observation that “Close only counts in horseshoes, Counselor.” The following Monday, her Conference Notes quoted McCormick advising the defendant's counsel, “That dog won't hunt, Deirdre.” At the end of that same week, McCormick denied the defendants' motion for summary judgment, explaining, “I understand Oliver Wendell Holmes said that the law is a seamless web. Maybe so, Mr. Abrams, but your motion is a defective mess.” Afterward, she had written, in parenthesis: “(Touché!)”

Hirsch was amused and touched by her innocence. Had he ever been that young and impressionable?

Gradually, the Peterson Tire litigation consumed more and more of her working hours. Although she continued to split the judge's criminal docket with his other law clerk—identified in a few of her Chambers Notes as “Julian”—by the end of her first six months on the job the Peterson Tire case had become her sole civil matter. Indeed, the
In re Turbo XL Tire Litigation
grew so large so quickly that the presiding judge of the Eastern District of Missouri entered an order removing Brendan McCormick's name from the assignment wheel for new civil cases. From that point on, Julian was the law clerk on the rest of the judge's gradually dwindling civil docket while Judith had principal responsibility for the myriad matters comprising
In re Turbo XL Tire Litigation.

And myriad they were. It was hard to imagine one law clerk having enough time to handle just the administrative burden of tracking more than a thousand claims, each moving toward resolution at its own pace and in its own way and with its own set of attorneys and its own set of witnesses and issues. But the administrative tasks were only part of her job. Procedural and substantive legal issues kept popping up—some involving just one claim, others affecting entire groups of claims—and the initial responsibility for dealing with those issues fell on her shoulders as well. And hers alone. Her fellow clerk, the guy named Julian, was completely isolated from the case. Eventually, according to one of her memos, he was moved to an office on another floor in order to make way for more storage space in the massive case.

Judith seemed to relish the challenges and didn't mind the long hours. What came through in her papers that first year was the belief that she was part of some magnificent experiment in justice, that what she and her judge were doing with
In re Turbo XL Tire Litigation
might have a profound impact on the way courts in the future would handle mass tort litigation.

And in her defense, she was not alone in that conviction, or in casting McCormick in the role of judicial visionary. Peterson Tire Corporation's legal predicament had been at the heart of the transformation of Brendan McCormick's judicial stature. The reputation he'd earned as a state judge—pro-government in criminal cases, pro-defendant in civil cases, lackluster in all cases—remained constant during his early years on the federal bench. But six years ago, the federal multidistrict panel consolidated 114 separate lawsuits and class actions from around the country arising out of the Peterson Turbo XL tire scandal and assigned the colossus to Brendan McCormick. His critics predicted disaster, but he surprised them by seizing control of the massive case and its bickering hordes of attorneys. Within a year, and just a few months before Judith's clerkship commenced, he'd hammered out a comprehensive dispute resolution procedure governing more than a thousand wrongful death and personal injury claims arising out of accidents allegedly caused by tire-tread separations. Under the procedure, Peterson Tire Corporation admitted liability, the plaintiffs waived all claims for punitive damages, and all parties submitted to a procedure whereby each claim for compensatory damages would be resolved in a one-day, nonjury mini-trial before the judge. During the last four years, McCormick had heard and resolved more than six hundred claims under his innovative procedure. His handling of the case had garnered praise from the
Wall Street Journal
(in a three-part series entitled “Taming the Ravenous Plaintiffs Beast”) to the
New York Times
(in a Sunday magazine story entitled “The Judge Who Balances Tires”) to
Business Week
(in a cover story entitled “Running a Courtroom Like a Business”).

By the end of her first year, Judith's commitment to the case had become almost religious in its fervor. In more than one of her research memos on issues before the court, she would base her recommendation on what was, in her words, “more in harmony with the McCormick vision.” In her Hearing Notes and Chambers Notes, admiring adjectives and adverbs began appearing in her descriptions of McCormick's actions. He was “forceful” and “skillful” and “cogent” and, Hirsch couldn't help but smile, “eloquent.” In one of her Chambers Notes, she recounted the judge's attempt to resolve a dispute over certain expert witness testimony. Hirsch would have labeled the judge's ruling “confusing” and “shortsighted.” She called it “Solomon-like.” In one of her Court Notes, she used the words
decisive
and
innovative
to describe a pair of evidentiary rulings that Hirsch would have characterized as, respectively, “ludicrous” and “clear reversible error.”

Hirsch had no trouble imagining how Brendan McCormick would have relished having this adoring young acolyte in his chambers. He could visualize McCormick performing for her on the bench, preening around her in his chambers. He also had no trouble imaging how tempted McCormick would have been to take advantage of her. Back in their days together at the U.S. Attorney's Office, McCormick used to brag about the postgame parties at Mizzou featuring freshman girls eager to provide sexual favors for the varsity football players. McCormick's conquests during his prosecutor days included several female interns from the local law schools.

Hirsch read through her memos carefully, trying to read between the lines, trying to detect whether her relationship with the judge went beyond professional, whether McCormick had added her to his list of conquests.

He couldn't tell.

But her devotion to her judge was obvious. Tracking the create dates on the document profile sheets, he learned that during her first year on the job she spent several weekends ghostwriting speeches and articles for McCormick, all on the glory and genius of
In re Turbo XL Tire Litigation
. As pointless as it seemed all these years later, he found himself angered at the thought of Judith devoting, for example, an entire weekend in June ghostwriting an essay on alternative dispute resolution procedures for the
Journal of the American Bar Association
while the putative author of that article was no doubt spending that same weekend on the golf course with his buddies or down in Bermuda with his latest girlfriend.

And then he found it.

A Chambers Notes dated November 12. Approximately thirteen months before her death.

He thought at first that it was just another one of the dozens and dozens of Chambers Notes he'd already read. The first two pages summarized an afternoon meeting in the judge's office with a lawyer for Peterson Tire and two lawyers on the plaintiffs' steering committee. The purpose of the meeting was to schedule a pair of hearings on the admissibility of a new area of expert testimony. Later that same afternoon, the judge's secretary summoned her to his office again. When she arrived, he was studying what appeared to be a financial statement. He was upset about something on the statement. Her memo continued:

The Judge told me that he needed some information about the Sanderson claim. He said he needed to know the dollar amount of what Sanderson's lawyers had presented as their damages claim at the hearing and the amount that he had actually awarded. He told me he needed it ASAP.

I hurried back to my office to review my files. The Dorothy Sanderson matter had been heard on October 7. I was able to confirm that the damage award had been $1 million even. I recalled that Mrs. Sanderson's attorneys had asked for more than that, but I couldn't remember how much more. As I was reviewing my notes of the hearing, I received a telephone call from Ada Hershey, one of the paralegals at Emerson, Burke. Imagine my surprise when she asked me the very same question that the Judge had asked! She told me that her records indicated that the Judge's award to Mrs. Sanderson had been $1 million but that she needed to know what the plaintiff's final demand had been. Of course, I didn't dare tell her about the coincidence, but I did ask why she needed to know. She told me that Mr. Guttner was upset and demanding to know the answer. I told her I was taking care of something else at the moment but would check my notes and get back to her later.

Very weird, I thought as I hung up.

Anyway, I was relieved to find in my notes that Mrs. Sanderson's lawyers had put on evidence to support a claim for $1.4 million. I hurried back to the judge's office and told him what I found. He started laughing. He told me I was the most wonderful law clerk he'd ever had. He said I was literally worth my weight in gold.

I was floating on Cloud 9 on the way back to my office, but my good mood was shattered when Ada Hershey called to tell me that I didn't need to bother looking because she'd found the answer. Acting innocent, I asked her what she'd found. She said that Mrs. Sanderson's lawyers had demanded $1.3 million. I told her I thought it was $1.4 million, but she said that she'd checked with one of the paralegals for the plaintiffs who'd explained that the original demand had been $1.4 million but that due to the exclusion of one item of damages at the hearing, the final demand was $1.3 million. I asked her if she was sure and she said she was positive.

I felt totally terrible. I rushed back into the Judge's office to confess my mistake. He was standing by the window on the phone, his back to me, holding that financial statement in his hand. I realized that he was talking to Mr. Guttner about the Sanderson claim. I was so upset, but I didn't want to disturb him, so I stood there hoping that he would turn around. Maybe it was because my emotions were so intense or maybe it was just because of what he was saying, but I wrote it all down from memory when I got back to my office. He said:

“Don't try that bullshit, Marvin. My law clerk confirmed the number. They asked for one point four. I gave them a mil. Do the math. Fifteen percent is thirty-nine. I've got the statement in my hand and guess what? The number I'm looking at starts with a two. Huh? No way, pal. My girl said one point four, and my girl's never wrong. Hey, Marvin, these aren't the Brookfield warehouses. These numbers are final. What's done is done, pal. Oh, yeah? Well, listen carefully. You ever try to fuck me again and I'll fuck you and your client into bankruptcy. Guaranteed. You understand?”