The letter from Bart Shaw had arrived that afternoon and was now lying in the center of the table. After explaining that he was “in consultation with six of your clients who were involved in the Krayoxx litigation, including Ms. Iris Klopeck,” he went on to clearly state that he had not been retained by any of the six. Not yet. They were waiting to see what happened next with their cases. However, he, Shaw, was gravely concerned with Finley & Figg’s efforts to unload the cases, and without notifying the clients. Such behavior breached all manner of professional conduct. In stiff but lucid language, he lectured the firm on a variety of topics: (1) its ethical duty to diligently protect its clients’ interests; (2) its duty to keep the clients informed of all developments; (3) the unethical payment of referral fees to clients; (4) the outright guarantee of a favorable outcome in order to induce a client to sign up; and on and on. He sternly warned them that further lapses in their conduct would lead to unpleasant litigation.
Oscar and Wally, who had survived numerous charges of unethical behavior, were not as bothered by the allegations as they were terrified of the letter’s overall message; to wit, the firm would be immediately sued for malpractice if the cases were dismissed. David was upset over every word in Shaw’s letter.
They sat around the table, all three subdued and thoroughly defeated. There was no cursing or shouting. David knew the fighting had already taken place when he was away from the office.
There was no way out. If the Klopeck lawsuit was dismissed, Ms. Karros would castrate them with her demand for sanctions, and old Seawright would go right along with it. The firm could face millions in fines. On top of that, this shark Shaw would pile on with a malpractice claim and drag them through the mud for the next two years.
If they withdrew their motion to dismiss, they would be staring at a trial date that was now only twenty-five days away.
While Wally doodled on a legal pad as if he were heavily medicated, Oscar did most of the talking. “So, either we get rid of these cases and face financial ruin, or we march into federal court three weeks from Monday with a case that no lawyer in his right mind would try before a jury, a case with no liability, no experts, no decent facts, a client who’s crazy half the time and stoned the other half, a client whose dead husband weighed 320 pounds and basically ate himself to death, a veritable platoon of highly paid and very skilled lawyers on the other side with an unlimited budget and experts from the finest hospitals in the country, a judge who strongly favors the other side, a judge who doesn’t like us at all because he thinks we’re inexperienced and incompetent, and, well, what else? What am I leaving out here, David?”
“We have no cash for litigation expenses,” David said, but only to complete the checklist.
“Right. Helluva job, Wally. As you used to say all the time, these mass tort cases are a gold mine.”
“Come on, Oscar,” Wally pleaded softly. “Give me a break. I take full responsibility. It’s all my fault. Flog me with a bullwhip, whatever. But allow me to suggest we limit our discussions to something that might be productive, okay, Oscar?”
“Sure. What’s your plan? Dazzle us some more, Wally.”
“We have no choice but to go fight,” Wally said, his voice still hoarse, his delivery slow. “We try to piece together some proof. We go to court and fight like hell, and when we lose we can tell our clients, and this scumbag Shaw, that we fought the good fight. In every lawsuit, somebody wins, somebody loses. Sure, we’ll get our butts kicked, but at this point I’d rather walk out of the courtroom with my head up than deal with sanctions and malpractice claims.”
“Have you ever faced a jury in federal court, Wally?” Oscar asked.
“No. Have you?”
“No,” Oscar said and looked at David. “Have you, David?”
“No.”
“That’s what I thought. The three stooges bumbling into the courtroom with the lovely Iris Klopeck and no clue about what to do next. You mentioned piecing together some proof. Care to enlighten us, Wally?”
Wally glared at him for a moment, then said, “We try to find a couple of experts, a cardiologist and maybe a pharmacologist. There are a lot of experts out there who’ll say anything for a fee. We pay them, put them on the witness stand, hope like hell they survive.”
“There’s no way they’ll survive, because they would have to be bogus in the first place.”
“Right, but at least we’re trying, Oscar. At least we’re putting up a fight.”
“How much do these quacks cost?”
Wally looked at David, who said, “I caught up with Dr. Borzov this afternoon, the guy who was here screening our clients. He’s back home in Atlanta now that the screening has come to a sudden halt. He said he would consider testifying in the Klopeck case for a fee of, uh, I think he said $75,000. His accent is pretty thick.”
“Seventy-five thousand?” Oscar repeated. “And you can’t even understand him?”
“He’s Russian and his English is not too refined, which may work to our advantage in a trial because we might want the jury to be thoroughly confused.”
“I’m sorry, you’re losing me.”
“Well, you gotta figure that Nadine Karros will batter the guy on cross-examination. If the jury understands how lame he is, then our case is weakened. But if the jury isn’t sure because they cannot understand him, then maybe, just maybe, the damage is lessened.”
“And they taught you this at Harvard?”
“I really don’t remember what they taught me at Harvard.”
“So how did you become an expert on trial practice?”
“I’m not an expert, but I am reading a lot, and watching Perry Mason reruns. Sweet little Emma is not sleeping well and I’m roaming around at night.”
“I feel better.”
Wally said, “With some luck, we can find a bogus pharmacologist for $25,000 or so. There will be a few more expenses, but Rogan has not put up much of a fight.”
“And now we know why,” Oscar said. “They want a trial, and fast. They want justice. They want a quick, clear verdict that they can take and broadcast around the world. You guys fell for their trap, Wally. Varrick started talking settlement, and the mass tort boys started buying new jets. They strung you along until the first trial was only a month away, then they pulled the rug. Your close friends at Zell & Potter hit the back door, and here we are, with nothing but financial ruin.”
“We’ve had this conversation, Oscar,” Wally said firmly.
A thirty-second time-out was observed as things settled down somewhat. Wally calmly said, “This building is worth $300,000 and debt free. Let’s go to the bank, put up the building for a line of credit, cap it at $200,000, and go search for experts.”
“I was expecting this,” Oscar said. “Why should we throw good money after bad?”
“Come on, Oscar. You know more about litigation than I do, which isn’t much, but—”
“You’re right about that.”
“It’s not enough to simply walk into court, start the trial, pick a jury, then duck for cover when Nadine starts firing cannons at us. We won’t even get to the trial if we don’t find a couple of experts. That in itself is malpractice.”
David tried to help. “You can bet this guy Shaw will be in the courtroom, watching us.”