The Litigators

by John Grisham

  partners would split. It was sad but inevitable. Wally was going places; Oscar was too old to change.

  Jerry Alisandros got off to a bad start when he tried to argue that Judge Seawright had no choice but to transfer the cases to Miami. “These cases were filed in Chicago, not Miami,” the judge reminded Alisandros. “No one made you file them here. I suppose you could’ve filed them anywhere you can find Varrick Labs, which I presume is in any of the fifty states. I’m having trouble understanding why a federal judge in Florida thinks he can order a federal judge in Illinois to transfer his cases down there. Can you help me here, Mr. Alisandros?”

  Mr. Alisandros could not. He tried valiantly to suggest that nowadays in mass tort litigation it is customary to establish multi-district litigation and have only one judge preside over all the cases.

  Customary, but not mandatory. Seawright seemed irritated that someone, anyone would suggest that he was required to move the cases. They were his!

  ———

  David sat behind Wally in a row of chairs in front of the bar. He was enthralled by the drama of the courtroom, the pressure, the high stakes, but he was also worried because it was apparent Judge Seawright was against them on this issue. However, Alisandros had assured their team that winning these initial motions was not crucial. If Varrick Labs wanted to try a single test case in Chicago, and to do so quickly, then so be it. He had never run away from a trial in his career. Bring it on!

  The judge, though, seemed hostile. Why was David worried? There would be no trial, right? All the lawyers on his side of the aisle believed secretly, fervently, that Varrick Labs would settle its Krayoxx mess long before the trials started. And if Barkley on the other side could be believed, the defense lawyers were also thinking settlement. Was it a rigged game? Was this how the mass tort business really worked? A bad drug gets discovered; the plaintiffs’ lawyers go into a frenzy rounding up the cases; lawsuits are filed; the big defense firms respond with an endless supply of expensive legal talent; both sides slug it out until the drugmaker gets tired of writing fat checks to its lawyers; then everything gets settled; the plaintiffs’ lawyers rake in huge fees, and their clients get far less than they expected. When the dust settles, the lawyers on both sides are richer; the company cleans up its balance sheet and develops a replacement drug.

  Was this nothing more than good theater?

  Just as Jerry Alisandros began to repeat himself, he sat down. The lawyers perked up as Nadine Karros stood and walked to the podium. She had a few notes but didn’t use them. Since it was obvious the judge agreed with her, she kept her arguments brief. She spoke in long eloquent sentences, as if they had been written down with plenty of forethought. Her words were clear, her voice carried nicely around the courtroom. Nothing was wasted—no extra verbiage, no useless gestures. The woman was meant for the stage. From several angles, she made the point that there was no case, no rule of procedure, no precedent anywhere that required a federal judge to transfer one of his cases to another federal judge.

  After a few moments, David was wondering if he would actually get to watch Ms. Karros in action before a jury. Did she know, at that very moment, there would be no trial? Was she just going through the motions, at $2,000 an hour?

  A month earlier Varrick Labs reported its quarterly earnings, which were down significantly. The company surprised analysts by writing off $5 billion for the projected costs of ongoing litigation, primarily Krayoxx. David was following this closely in financial publications and blogs. Opinion was split between those who thought Varrick Labs would hurry and clean up its mess through a massive settlement and those who thought the company might try to weather the storm through hardball litigation. The stock price ping-ponged between $35 and $40 per share, so the stockholders seemed reasonably calm.

  He was also studying the history of mass tort litigation and found it surprising the number of times that a defendant corporation’s stock rose impressively when it settled and got rid of a bunch of lawsuits. There was normally a dip in the stock price with the first wave of bad news and hysterics from the plaintiffs’ bar, but as battle lines were formed and the numbers became firm, Wall Street seemed to prefer a good settlement. What Wall Street hated was “squishy liability,” the kind that was often seen when a big case was handed over to a jury and the results were unpredictable. In the past ten years, virtually all of the major mass tort cases involving pharmaceuticals had been settled, and for billions.

  On one hand, David was finding comfort in the research. But on the other, it had turned up little in the way of credible proof that Krayoxx did all the terrible things it was accused of doing.

  ———

  After a thorough and fair debate, Judge Seawright had heard enough. He thanked the lawyers for their preparation and promised a ruling within ten days. The extra time was not needed—he could have ruled immediately from the bench. There was little doubt he would keep the cases in Chicago, and he seemed to favor the idea of a “show trial.”

  The plaintiffs’ lawyers retired to the Chicago Chop House, where Mr. Alisandros had reserved the back room for a private lunch. Including Wally and David, there were seven lawyers and two paralegals (all men), and they all took their places around an oblong table. Jerry had preordered wine, and it was poured as soon as they sat down. Wally and David declined.

  “A toast,” Jerry announced as he tapped his wineglass. Silence. “I propose a toast to the Right Honorable Harry Seawright and his famous Rocket Docket. The trap has been laid, and the fools at Rogan Rothberg think we’re blind. They want a trial. Old Harry wants one too, so by God let’s give ’em a trial.”

  Everyone took a sip, and within seconds the conversation spiraled down to an analysis of the legs and backside of Nadine Karros. Wally, who had the right-hand seat to the throne of Mr. Alisandros, offered comments that were deemed hilarious. Over salads, the chatter quite naturally made its way to their second favorite subject—settlement. David, who was saying as little as possible, was coaxed into telling the story of his encounter with Taylor Barkley just before the hearing. His narrative was received with great interest—too much, in his opinion.

  It was Jerry’s stage, and he did most of the talking. In equal parts, he was enthusiastic about a big trial with a big verdict, but he was also supremely confident Varrick would buckle and put billions on the table.

  Hours later, David was still confused, but he was also comforted by the presence of Jerry Alisandros. The man had fought the wars, inside the courtroom and out, and he almost never lost. According to Lawyers Weekly, the thirty-five partners at Zell & Potter split $1.3 billion in net profits the previous year. Net, after new jets, a firm golf course, and every other lavish expense allowed by the IRS. According to Florida Business magazine, Jerry’s net worth was somewhere around $350 million.

  Not a bad way to practice law.

  David had not shown these numbers to Wally.

  CHAPTER 24

  For almost thirty years, Kirk Maxwell represented Idaho in the U.S. Senate. He was generally well regarded as a steady hand who shunned publicity and preferred to work off camera to get things done. He was quiet, unassuming, and one of the more popular members of Congress. However, his sudden death was nothing short of spectacular.

  Maxwell had the Senate floor, microphone in hand, arguing fiercely with a colleague from the other side of the aisle, when he suddenly clutched his chest, dropped his mike, opened his mouth in horror, and crashed forward into the back of the desk in front of his. He died instantly of cardiac arrest, and it was all captured on the official Senate camera, released without proper authorization, and seen by the world on YouTube before his wife could get to the hospital.

  Two days after his funeral, his wayward son mentioned to a reporter that the senator had been taking Krayoxx and the family was considering a lawsuit against Varrick Labs. By the time this was digested through the 24/7 news cycle, there was little doubt that the drug had killed the senator. Maxwell was only sixty-two
, in fine health, but with a family history of high cholesterol.

  An angry colleague announced a subcommittee hearing into the hazards of Krayoxx. The Food and Drug Administration was besieged with demands that the drug be pulled. Varrick Labs, hunkered down in the hills outside of Montville, offered no comment. It was another dark day for the company, but Reuben Massey had seen worse.

  Such a lawsuit would be ironic for two reasons. First, in his thirty years in Washington, Senator Maxwell had taken millions from Big Pharma and, as far as the industry was concerned, had a perfect voting record. Second, the senator was an ardent tort reformer who had voted for years to place severe restrictions on the filing of lawsuits. But in the aftermath of a tragedy, irony is often lost on those left behind. His widow hired a noted plaintiffs’ lawyer in Boise, but for “consultation only.”

  With Krayoxx on the front page, Judge Seawright decided a trial might be interesting after all. He ruled against the plaintiffs on all issues. The lawsuit Wally had filed and then amended would be broken up into separate pieces, with the case of the late Percy Klopeck being the first to get slotted into the fury of Local Rule 83:19, the Rocket Docket.

  Wally was panic-stricken when he received notice of the ruling, but he began to settle down during a long and soothing conversation with Jerry Alisandros. Jerry explained that the death of Senator Maxwell was a gift from heaven—in more ways than one because a rabid tort reformer had been silenced—and would only increase the pressure on Varrick to begin settlement talks. And besides, as Jerry kept saying, he would welcome the chance to be on center stage versus the lovely Ms. Karros in a packed Chicago courtroom. “The last place they want to see me is in a courtroom,” Jerry said again and again. His “Klopeck trial unit” was hard at work at that very moment. His firm had dealt with many egocentric federal judges with their own special versions of their own little Rocket Dockets.

  “Seawright didn’t create the Rocket Docket?” Wally asked, innocently.

  “Heavens, no, Wally. I heard that term thirty years ago in upstate New York.” Jerry went on to encourage Wally to continue combing the streets for more Krayoxx cases. “I’m about to make you rich, Wally,” he said again and again.

  ———

  Two weeks after Senator Maxwell’s death, the FDA caved and ordered Krayoxx off the market. The mass tort bar was orgasmic, and lawyers in a dozen cities issued statements to the press, most of the same variety: Varrick will have to answer for its gross negligence. A federal investigation should be launched. The FDA should never have approved the drug. Varrick knew it had problems but had rushed the drug to market, where, in six years, it had grossed over $30 billion for the company. Who knows what’s really buried in the Varrick research.

  Oscar was conflicted by the news. On one hand, he, obviously, wanted the drug to generate as much bad press as possible to force the company to come to the table. But on the other hand, he was secretly, fervently hoping the drug would take care of his wife. Pulling it would ratchet up the pressure on Varrick, but it would also remove the drug from her medicine cabinet. Actually, Oscar’s perfect outcome would be breaking news of a pending settlement at about the same time his wife croaked on the drug. He could keep all the money, avoid a messy divorce, then file suit on behalf of his dear departed wife and nail Varrick yet again.

  He dreamed of such things behind his locked door. The phone lines were blinking nonstop, but he refused to pick up. Most of the calls were from Wally’s “non-death cases,” folks Wally had tracked down through his various schemes. Let Rochelle, Wally, and young David worry about the calls and the frantic clients. Oscar planned to stay in his office and avoid the frenzy, if possible.

  Rochelle was ready to quit, and she demanded another firm meeting. “See what you’ve started,” Oscar sneered at David as all four gathered around the table late one afternoon.

  “What’s on the agenda?” Wally asked, though everyone knew.

  Rochelle had twisted David’s arm to the point where he was willing to run interference. He cleared his throat and got right to the point. “We have to get these Krayoxx cases organized. Since the drug was pulled, the phones are ringing like crazy with people who either are already signed up or want to jump on board.”

  “Ain’t it great?” Wally said with a wide, satisfied grin.

  “Maybe, Wally, but this is not a mass tort firm. We’re not equipped to handle four hundred cases at a time. Your big mass tort boys have dozens of associates and even more paralegals, lots of bodies to handle the work.”

  “We have four hundred cases?” Oscar asked, and it wasn’t clear if he was pleased or overwhelmed.

  Wally slurped down some diet soda and said, proudly, “We have the eight death cases, of course, and 407 non-death cases, and counting. And I’m sorry that these minor cases are causing so much trouble, but when it’s time to settle, and when we get to plug these guys into the compensation grid hammered out by Jerry Alisandros, we’ll probably learn that each non-death is worth a paltry hundred thousand bucks or so. Times 407. Anybody here want to do the math?”

  “That’s not the issue, Wally,” David countered. “We get the math. What you’re missing is the fact that these cases may not be cases. Not a single one of these non-death clients has been evaluated by a doctor. We don’t know if they have actually been harmed, do we?”

  “No, not yet, and we have not filed suit for these clients either, have we, now?”

  “No, but these people certainly believe they’re full-fledged clients and they’re about to be compensated. You’ve painted a rosy picture.”

  “When will they see a doctor?” Oscar asked.

  “Soon,” Wally shot in his direction. “Jerry is in the process of hiring an expert doctor here. He will examine each patient and give a report.”

  “And you’re assuming that everyone has a legitimate claim?” David asked.

  “I’m not assuming anything.”

  “How much will each exam cost?” Oscar asked.

  “We don’t know until we find the doctor.”

  “Who’s paying for the exams?” Oscar asked.

  “The Krayoxx Litigation Group. KLG for short.”

  “Are we on the hook?”

  “No.”

  “Are you sure?”

  “What is this?” Wally growled angrily. “Why is everybody hammering me? The first firm meeting was all about my girlfriend. This one is all about my cases. I’m starting to dislike firm meetings. What’s wrong with you guys?”

  “I’m fed up with these people on the phone,” Rochelle said. “It’s nonstop. Everybody’s got a story. Some are crying because you’ve scared them to death, Wally. Some even stop by and want me to hold their hands. They all think they got bad hearts because of you and the FDA.”

  “What if they do have bad hearts, and their bad hearts are caused by Krayoxx, and we’re able to get them some cash? Isn’t that what lawyers are supposed to do?”

  “What if we hire a paralegal for a few months?” David suggested, rather abruptly, then braced for the reactions. When the other three didn’t speak quickly enough, he plowed on. “We can stick him or her in the junk room upstairs and send all the Krayoxx cases up there. I’ll help him or her set up the litigation software and filing systems so that he or she is on top of every case. I’ll supervise the project if you want. All phone calls dealing with Krayoxx can be routed to the new office. We take the pressure off Rochelle, and Wally can keep doing what he does best—hustle cases.”

  “We’re not in a position to hire anyone,” Oscar said, predictably. “Our cash flow is far below normal, thanks to Krayoxx. And, since you’re not paying the bills yet, and not even close to doing so, I might add, I don’t think you’re in a position to suggest spending more money.”

  “I understand,” David said. “I was just suggesting a way for the firm to get itself organized.”

  Actually, you’re quite lucky we decided to hire you, Oscar thought to himself and almost said aloud.

&
nbsp; Wally liked the idea but, at the moment, didn’t have the spine to take on his senior partner. Rochelle admired David for his boldness, but she wasn’t about to comment on an issue dealing with the overhead.

  “I have a better idea,” Oscar said to David. “Why don’t you become the Krayoxx paralegal? You’re already upstairs. You know something about litigation software. You’re always squawking about getting organized around here. You’ve been wanting a new filing system. Judging by your monthly grosses, it looks as though you have some spare time. It’ll save us some dough. Whatta you say?”

  It was all true, and David wasn’t about to back down. “Okay, what’s my cut of the settlement?”

  Oscar and Wally looked at each other, all four eyes narrowing as this rattled around their brains. They had not yet decided how they themselves would split the money. There had been some loose chatter about a bonus for Rochelle and one for David, but as for the real division of the spoils, not a word.

  “We’ll have to talk about that,” Wally said.

  “Yes, this is a matter for the partners,” Oscar added, as if being a partner in their firm were akin to belonging to an exclusive and powerful club.

  “Well, hurry up and decide something,” Rochelle said. “I can’t answer all these calls and do all the filing.”

  There was a knock on the door. DeeAnna was back.

  CHAPTER 25

  Reuben Massey’s master plan to deal with his company’s latest drug mess had been upended by the death of Senator Kirk Maxwell, who was now derisively known in the Varrick hallways as Jerk Maxwell. His widow had not filed suit, but her windbag of a lawyer was thoroughly savoring his fifteen minutes in the spotlight. He was readily available for interviews, even got himself on a few of the cable yak fests. He colored his hair, bought some new suits, and was living the dream of so many lawyers.

  Varrick’s common stock had dipped to $29.50, its lowest price in six years. Two Wall Street analysts, two men loathed by Massey, had issued sell recommendations. One wrote: “After only six years on the market, Krayoxx accounts for one-quarter of Varrick’s