The Ultimate Resolution

by Dave Sullivan

  "You guys can't say anything simple, can you?" Bert grinned, shaking his head.

  "Looks good to me," said Charles, putting down his copy. "When do we start?"

  "I'll send this draft to the Stratton office by modem, tomorrow. They'll get letters to the proper sheriff for service. Also, I'm sending a products liability notice directly to Cherokee according to the notice statute."

  "Then," said Charles, "by the end of the week we should have a lawsuit started."

  "Yep," responded Jake, "and we'll see what reaction we draw."

  "That will be interesting...indeed!" exclaimed Charles lifting his coffee cup in a toast. "In the meantime, are you both ready for Stockton?" He gestured toward the kitchen. "I've laid in a store of provisions."

  "I'm ready," Bert's deep voice responded. "The marina can run itself. Sandy won’t be back until Thursday. A couple of days at Presque Isle Bay suits me just fine."

  Jake grinned at his friends' anticipation.

  "Well, Resolution's ready to go," he said. "We'll leave first thing in the morning."

  A few days later in St. Louis, Phillip Marquard sat looking at a letter from Stratton, McMasters & Hines, attorneys from Minneapolis signed by an attorney listed as "of counsel" and showing his address as Bay Harbor, Wisconsin. Enclosed was a document entitled "Notice of Claim" signed by the same lawyer.

  He touched a button on his desk telephone and spoke in its direction. "Get me Dick Ellington, please."

  CHAPTER SIXTEEN

  The breakfast meeting was held at 7:30 a. m. on a Wednesday morning at the St. Louis Club, an old-style men's club steeped in tradition, exclusivity, marble, and paneling of dark oak and mahogany. A somber waiter silently passed behind the diners' chairs pouring coffee. The club member at the head of the table handed the waiter a slip with the breakfast orders he had penciled in above his signature and member number. The waiter glanced at the order, nodded, gathered the menus and left the small private meeting room.

  Dick Ellington stood at the fireplace with his coffee. He rested one elbow on the mantel. In front of him, Phillip Marquard sat at the center of the long table looking to his left at the man at the head of the table who had taken their orders for breakfast. Marquard spoke first.

  "Well, what do we have on this Pallmeyer case?" he asked. "And who is the plaintiff's lawyer? Looks like he is from ‘Hicksville, U.S.A.’"

  J. Arthur Vance, of Hobbs, Vance, Bruckman & Rosen spoke from the head of the table.

  "Ev Whittemore has started to work this case up, Phil." He nodded toward a middle-aged man in a dark three piece, pin-striped suit seated directly across from Marquard. "I'll let him fill you in on what we have so far."

  There were seven men in the room. Five from the Hobbs, Vance law firm, including name partner, J. Arthur Vance, were seated at the two ends of the table and along one side. The other side, apparently reserved for the client had two places set, one for Phillip Marquard, the other for Richard Ellington.

  The attention of everyone turned to the pin-striped suit seated at the center of the attorneys' side of the table.

  "Mr. Marquard," Everett C. Whittemore pushed his glasses up on his nose and began, "we have, as you know, a file on this matter dating back to the time of this unfortunate accident." He separately accentuated the words "unfortunate" and "accident."

  "I am not the jury, Mr. Whittemore," said Marquard. "You do not have to persuade me who is in the right here."

  "Sorry, Mr. Marquard, it is just my manner of speaking, born of long practice."

  "Oh, do not misunderstand me." Marquard raised his coffee cup to his lips and sipped. "I appreciate it and expect you to use that practice experience when you are speaking on Cherokee's behalf ... to someone else." He smiled. It was clear who controlled this situation and Marquard clearly enjoyed it.

  Whittemore, feeling better after Marquard's comment, went on. "As I say, we have a file from 1990 that gives us a great deal of information about the accident and the injuries. Our investigator got signed statements from the witnesses and medical authorizations from the injured man's mother so we could follow his medical progress, which we did."

  Dick Ellington moved from the fireplace to his seat beside Phillip Marquard and reached for the coffee pot. The bright morning sun shone through the leaded glass windows of the upper floor of the St. Louis Club casting thin shadows across the white tablecloth.

  Everett Whittemore continued. "First, I would like to address your question about Plaintiff's lawyer. His name is Jacob Kingsley. He lives at Hanson's Marina in Bay Harbor, Wisconsin. That is near the accident site."

  "We know that," said Marquard

  "But," continued Whittemore, "Kingsley is not some small time country lawyer or hick town lawyer. He is associated with the Minneapolis firm of Stratton, McMasters & Hines."

  "We know that, too," said Marquard looking at his copy of the Complaint.

  "What you may not know," said Whittemore with a hint of sarcasm in his voice, "is that Kingsley was a partner at the Stratton firm. He was a trial lawyer in Minneapolis for about twenty years. Pretty successful and well respected too."

  Whittemore looked directly at Marquard, his mouth showing a hint of a smile which was almost, but not quite, a smirk.

  Whittemore motioned to the young lawyer at the foot of the table, the end opposite J. Arthur Vance. "George has a copy of Kingsley's Martindale-Hubbell bio for you."

  Hobbs, Vance associate George Ballard rose from his seat and handed out a sheet of paper to each of the men at the table.

  Marquard and Ellington each studied the biography noting Jake's many accomplishments and credits.

  Marquard looked up and spoke. "So. He lives in 'Nowheresville, U.S.A.,' but he's not from there, originally."

  Ellington coughed. "Looks like," he said. "What happened to him. Did he retire? He's only in his forties."

  J. Arthur Vance spoke. "Phil, I called an old friend in Minneapolis and asked about this Kingsley. He knew him. He told me Kingsley was one of the best in Minneapolis. He worked both sides of the fence, both defense and plaintiff. Apparently, a few years ago, he became unhappy with his practice. Maybe it was a mid-life crisis or something. My friend didn't know. Anyway, he left his firm, sold his house, bought a big sailboat and moved to Lake Superior. Surprised the hell out of the lawyers practicing in downtown Minneapolis."

  Everett Whittemore picked up the conversation from Vance. "Kingsley's situation can give us an advantage," he said. "Whatever his reasons, he has become disenchanted with practicing law. He doesn't do it anymore."

  "He sued us," interrupted Dick Ellington.

  "We think he was talked into doing someone a favor," said Whittemore. "We think he is not really interested and therefore we can apply pressure in terms of work and finances to our advantage."

  "How's that?" asked Ellington.

  "Well," explained Whittemore, "we can out man him, out work him, and out money him. We can make it so it is not financially feasible for him to handle the case. He is no doubt on a contingent fee, so he's not getting paid."

  Ellington continued to be the voice from the client's side of the table. "But what does he care? Apparently, he's retired."

  Whittemore smiled. "And no doubt wants to stay that way. If we work him hard enough, he'll wonder what happened to his retirement. He is like the bumper sticker that says, 'I'd Rather Be Sailing.'"

  "All right," Marquard leaned forward and addressed Whittemore, "I'm satisfied you people know enough about this Kingsley and you'll do whatever that information suggests is most advantageous for us. What do we have on the merits of the case? I know I read a report after the accident, but that was a couple of years ago. Fill me in again. How do we stand on the defense, here?"

  "Cherokee is in good shape here," said Whittemore. "The operator was towing logs without using the drawbar, directly contrary to the Operator's Manual. They didn't even have a manual! So the defense of product misuse is strong in our favor."

  He refer
red to notes on a yellow legal pad on the table in front of him and continued.

  Whittemore's presentation of Cherokee's case was interrupted by the waiter returning with the breakfast cart. He pushed the door open slightly and looked at J. Arthur Vance. Vance said to Whittemore, "Just a minute, Ev," and nodded to the waiter.

  After the waiter served the breakfast orders around the table and left the room, Whittemore continued.

  "Also, this is an old tractor. It is a Cherokee T-350 that was manufactured in 1965. Minnesota has a statutory defense that it has gone beyond its useful life."

  "I thought the accident was in Wisconsin," said Dick Ellington. "What does Minnesota have to do with it?

  George Ballard responded. "We have looked at the cases relating to conflict of laws, Mr. Ellington. Normally procedural issues are decided according to the law of the forum, in this case Minnesota, and substantive matters are decided according to the law of the state where the injury occurred, in this case Wisconsin. But, in this case we think Minnesota's Useful Life products liability statutory defense could be argued to be procedural. Also, both parties are Minnesota residents and have no contact with Wisconsin other than the injury occurred there and that was on federal property in a national park."

  "Oh." Dick Ellington wondered what the devil these lawyers were talking about.

  "We do think that the useful life defense can be applied," added Whittemore. "More importantly, it was manufactured and sold before ROPS were available in the industry, years before even OSHA's ROPS requirements for employees. We think we can clearly show that this tractor met the state of the art at the time it was designed and built and therefore was not defective. And perhaps most important are the misuse and operator negligence in not following the manual and not using the drawbar."

  The men continued their discussion over breakfast. As they concluded, Phillip Marquard approved the lawyers' report and plan of action and directed them to proceed."

  "Thank you, gentlemen," Marquard said as he and Ellington rose to leave. "Keep us advised . . . and don't go easy on this jerk. We want to win, and win solid."

  ************

  ***

  ************

  Jake was sitting in Resolution's cockpit splicing an anchor line when Charles Stanton came down the dock.

  "Mail call!" Stanton called out. "Some officious looking envelope addressed to you from a Minneapolis law firm. Bert thinks it's the Answer."

  "Let's see," said Jake.

  Stanton stepped on board Resolution and handed Jake the envelope.

  Jake examined the envelope. Addressed to Jacob R. Kingsley, Attorney at Law at his Bay Harbor address, it was from the law firm of Brooking & Parker. He knew the downtown Minneapolis insurance defense firm and had worked with some of its members on a number of cases.

  He opened the envelope.

  The cover letter serving the Answer was formal and concise. It was signed by Edward V. Hamilton whom Jake had known for many years. The letter enclosed and served the Answer and a Motion for Admission Pro Hac Vice to admit an attorney not licensed in Minnesota for purposes of this case only.

  Out of curiosity, he looked at the motion first. It requested admission of a St. Louis attorney named Everett C. Whittemore of the law firm of Hobbs, Vance, Bruckman & Rosen.

  Jake handed the cover letter and motion across the cockpit to Charles Stanton. "Looks like Ed Hamilton will have someone looking over his shoulder . . . or maybe he will be just the local counsel to hold this Whittemore's hand while he's in the Minnesota courtroom."

  Charles looked at the motion. "Well, we've heard the name of this law firm before. If they sent their investigator all the way up here before there was any indication of a lawsuit, I think they'll be heavily involved in the case and not leave it entirely to local counsel."

  "Agreed," Jake nodded, examining the Answer. "Whittemore signed the Answer with Hamilton, so I think your guess is confirmed."

  They reviewed the Answer together. Beginning with the Hennepin County / Fourth Judicial District Court caption that had been used on the Complaint, the Answer followed the usual boiler plate denials and asserted numerous affirmative defenses like lack of jurisdiction, failure to state a claim upon which relief could be granted and the specific products defenses of use beyond the useful life of the product and adherence to the industry state of art at the time of manufacture. It also alleged as defenses that Bobby Pallmeyer caused his injuries by his own negligence and that he assumed the risk of the injuries he received.

  "Damn!" Stanton exclaimed. "They're alleging that we brought this case in bad faith and they're asking for recovery of their attorneys' fees! Jesus Christ! Don't these guys have a copy of Rule 11? Don't they have to have some merit to the defenses they assert?"

  Jake smiled at the professor's reaction to the Answer. Rule 11 of the Minnesota Rules of Civil Procedure required that lawyers representing parties to a lawsuit sign all pleadings and that the signature was a certification that the pleading was well grounded in fact and law based upon a reasonable inquiry. The rule imposed sanctions for its violation.

  "Lots of defense lawyers do this," he said to Stanton. "They plead every defense in the book so they haven't waived any."

  "Well I think it's wrong." Stanton pointed to the second page of the Answer. "Of course we have subject matter jurisdiction! My first year students would have known that after their first month of law school. Same with personal jurisdiction! Jesus Christ! This is bad!"

  "Relax," smiled Jake, "we don't need to worry about those defenses. No point in spending money and time to make motions to strike. The lawsuit really won't be any different than if they had not asserted the defenses you don't like. Maybe they're just trying to get us mad."

  "What?!" Stanton looked at Jake incredulously.

  'Maybe," said Jake. "One of the tactics is to put us on the defensive."

  "Oh," Stanton had a look of sudden realization. "Sneaky bastards," he muttered.

  "That's one of my complaints about the practice of law," said Jake, "one of the reasons I'm here," he gestured towards Resolutions deck and beyond to the marina's docks and rows of masts, "but let's not have it affect our handling of the case. Let's just ignore it and do something only when it's important for our client."

  "Makes sense to me," agreed Charles. "It's just irritating. That's all."

  CHAPTER SEVENTEEN

  "Carefully drawn, our discovery requests can put the defense behind the eight-ball," Stanton said, "and even control the course of the lawsuit."

  "There is no doubt that they will try to put us on the defensive. They'll try to outwork us with burdensome discovery requests, motions and everything they can do with lots of young lawyers and paralegals at their disposal. Of course they will also try to outspend us with expenses and lawyer time," said Jake.

  "A large law firm with a rich institutional client," commented Stanton. "Don't you think they might succeed? I mean it does sound a little like a David and Goliath scenario, and despite the outcome of the original, Davids don't always win those contests."

  "Oh, it's definitely a very real problem," Jake rose from his chair in the Professor's living room overlooking the lake where they were having after dinner coffee, "but there are ways to handle it. In particular you have to plan your defense to those tactics. As you just said, maybe we can control the course of the lawsuit."

  "The best defense to those tactics is a strong offense?" Stanton stood looking out through the sliding glass doors at evening coming over Lake Superior.

  "You bet," Jake answered, "but think about it, we have some advantages here."

  "Oh, really, and what are those, pray tell?" Stanton put his back to the lake and faced Jake. "This inquiring mind wants to know."

  He walked to the end table, picked up his coffee and took a sip. He continued, "Look at us. Two retired lawyers up here in the Apostles with no office, no equipment, not even a law library except my measly shelves there," he nodded toward a wall full of law b
ooks.

  He was warming up to the subject. Jake watched him and smiled inwardly.

  Stanton finished, "Why, right now they probably have two or three of their young recent supergrads burning the midnight oil searching out cases and procedural hurdles with which to attack us. And they're good. I know. I created more than a few of them."

  "We do have advantages," Jake responded, "The usual approach is to figure the plaintiff's lawyer is on a contingent fee. Overworking him is effective economic pressure because he has to pay the rent and salaries which don't wait for the end of the case. What's our overhead?"

  "Well, we don't really have any except the expenses of this case."

  "Exactly. The technique is also effective because it interferes with other work the plaintiff's lawyer has. Burdensome discovery requests and lots of motions hurt a plaintiff's lawyer because he can't do a good job on them and do his other work too."

  "Dirty defense tactics, if it's done for that purpose," said Stanton.

  "It certainly isn't always done for that purpose, but sometimes," replied Jake, "But how many other cases do we have? Any reason we can't get to their tactics promptly and with whatever preparation is needed?"

  "Ah, there are some advantages, indeed," the Professor stroked his huge mustache thoughtfully, "and we should make sure we use them. When shall we begin our discovery requests?

  Jake put his coffee cup down and said, "Tomorrow. My boat. I'll see you there."

  "Good. I'll be there." Stanton accompanied Jake to the door.

  Jake steered his Jeep down Stanton's gravel drive. Working with the Professor was a real pleasure. This was going to be fun, although there was considerable responsibility and there would be some difficult moments.

  The next morning found Jake sitting in the bright August sun, coffee cup perched on the arm of the wooden dock bench at Resolution's slip. Charles Stanton walked down the dock. Jake was making notes on a yellow legal pad.