by Dave Gerard
Kruckemeyer turned to another partner who had been observing the discussion. “What do you think, John?” he asked. The room quieted respectfully.
John Remington was a legendary litigator in his late fifties. He was one of those old- school lawyers, a veteran of a hundred trials, which didn’t happen anymore. He was also supposedly brilliant, able to muster the most complex legal arguments and maneuvers while also being relatable to a jury, which was rare. I’d seen him a few times, even shaken hands with him once. He was very quiet and down to earth, for all his reputation. He wasn’t a formal leader at the firm, but the partners all respected his judgment.
“I don’t think it’s a good idea,” said Remington quietly. “There’s a potential conflict. We could end up in litigation about it later.”
“Come on,” said Kruckemeyer. “This is going to be a one-and-done settlement. Guy dies, company pays, insurer indemnifies. That’s it. It has nothing to do with the work we were doing for Rockweiller. They’ve already made an offer.”
But Remington just shook his head. “I’m against it.”
Kruckemeyer turned to me. “Jack,” he said. “Tell them what happened.” He swirled his hand at me, as if trying to coax the story out. I gave the partners an abbreviated version of my trip to the pro bono clinic, my meeting with Ashley, the gold coins, and the TRO hearing against Rockweiller.
“Hang on,” said Remington, interrupting me at that point. “You’re telling me that Rockweiller filed an ex parte temporary restraining order to get back a bunch of coins?”
“Yes,” I said.
“Who were their attorneys?”
“Badden and Bock. From New York.”
Remington sat back and frowned. “That’s unusual. I know who Rockweiller uses for local matters in Houston. It’s not Badden and Bock. The fact that they brought in their heavy hitters from New York on some nickel-and-dime case suggests there’s more here than meets the eye.”
“What do you think it means, John?” asked Kruckemeyer.
“I don’t know,” said Remington. “But I was already suspicious when you told me they offered to settle before we even made a demand.”
“Why?” I interjected. “It’s a death case, right? So they’re going to pay something.”
“Yes,” agreed Remington. “But Rockweiller Industries is known to be litigious. I have seen them litigate slip-and-falls to the hilt to avoid paying a cent. It’s very unusual for them to offer a settlement this early.”
“Well that’s great news,” said Kruckemeyer. “We may be sitting on a winner here. More reason to take the case. What do you say, John?”
But Remington just shook his head again. “No. This means it might be a good case. But it doesn’t mean we should take it. I’m still against it.”
“Fine,” said Kruckemeyer. “We’ve heard the arguments. Let’s vote. Who wants to keep this multimillion-dollar case we got for Ms. Marcum, who needs our help?”
Although Remington had spoken against it, his observations had convinced the partners there was gold in them hills, so to speak. A majority of hands went up. An assistant was called in to prepare a letter of representation to the Estate of David Marcum, and a letter of termination to Rockweiller Industries.
SIX
Several weeks passed after the conflicts meeting. The negotiations with Rockweiller had stalled. They refused to tell us what happened to David Marcum, and we rejected their settlement offer. We exchanged a few emails and phone calls after that but got nowhere.
In the meantime, we signed Ashley up as a paying client. The case had come from the pro bono clinic, so we wouldn’t charge for our work to date. But if we took the case forward, we had to. A suit like this, against a company like Rockweiller, was too costly to take on for free. So we agreed on the standard contingency fee, which was forty percent of any recovery.
Forty percent sounds like a lot. But lawyers take a risk on contingency cases. Some of them pan out, and some don’t. And the client doesn’t pay anything unless they win. Without the lawyer, the client would get nothing. I thought the contingent fee was a pretty good system. It aligned the interests of lawyer and client. The lawyer had a strong motivation to win, and not to run up unnecessary costs. In the past, it used to be that lawyers would take a third of the recovery. But now, with increased litigation costs and time to trial, it was more often forty percent.
Eventually, Kruckemeyer decided to up the ante. We threatened to file suit against Rockweiller if they wouldn’t make a deal. In response, Badden & Bock sent a letter. They sent it by regular mail, certified mail, email, and hand-delivery, in case we hadn’t gotten the other three. This is what it said:
Re: Settlement Communication – Confidential Pursuant To Texas Rule of Evidence 408
Dear Mr. Kruckemeyer:
We are in receipt of your communication indicating that you plan to file a lawsuit on behalf of David Marcum’s Estate.
Be advised that if you reject our settlement offer and file suit, the company will respond with the maximum available resources at its disposal. The discovery phase of the case will take years. Rockweiller Industries will interview and depose every available witness, including Ashley Marcum and any of David Marcum’s friends, family, or acquaintances with any involvement in the matter whatsoever. Rockweiller will assert counterclaims and seek recoupment of its attorney’s fees, which will be substantial. Rockweiller would fully intend to take the case to trial, and, even in the unlikely event of an adverse verdict, would vigorously appeal the result.
The letter then launched into a ten-page diatribe about the dire legal, financial, and moral consequences of any lawsuit against Rockweiller Industries. Bock cited case law, jury verdicts, and median time-to-trial statistics in various jurisdictions. It was an imposing document. It closed with the following:
In an effort to avoid further dispute, we are willing to offer your client $300,000 to settle all potential claims against the company. As I have said in our previous correspondence, Rockweiller cannot and will not disclose further information about Mr. Marcum’s death due to the sensitivity of ongoing commercial matters.
This offer is non-negotiable and will remain open for forty-eight hours. Rockweiller Industries will not make it again.
Sincerely,
Zachary Bock
The letter worried me, and it scared the hell out of Ashley. Kruckemeyer just said “hmm,” but I could tell he was concerned as well.
The next day, as we were thinking about what to do, my phone rang. It was my assistant. She said that John Remington wanted to see me.
I grabbed a legal pad and headed up the stairs. This was a rare occasion. Remington was a lone wolf. He usually only worked with junior partners or above, and none of the associates knew him very well. I didn’t know why he wanted to see me, but I guessed it was about the Marcum case.
Remington’s office was in a corner on the floor above mine. It was quiet, with none of the raucous back-and-forth of associates, paralegals, and secretaries like on my floor. Remington was on the phone, but he motioned me inside. I sat down and looked around.
The office was big, with a good view. There were two shelves crammed with books, with everything from legal treatises to history to fiction to random topics I had never heard of. There were signed sports memorabilia here and there, some family photos, and various trinkets and ornaments scattered around. Trophies from cases won, I guessed. There was also an antique hunting rifle hanging above Remington, behind the desk. Legend had it that he kept it primed and loaded at all times.
Remington wore a suit and tie, like he did every day. He didn’t believe in business casual. The only distinguishing feature of his wardrobe was a pair of black cowboy boots, well-worn and chased with silver. These were kicked up on his desk. The boots would look outlandish on almost anyone else. But somehow, he pulled it off.
After a few min
utes, Remington hung up the phone and turned to me. “So,” he said. “I hear you’re having trouble with Rockweiller Industries.”
I nodded.
“What’s the issue?” he asked.
I handed him the letter from Bock and explained the negotiations. Remington quickly scanned through the letter. After page two, he crumpled it up and casually threw it into the trash.
“The usual nonsense,” he said. “They’re bluffing.”
“How do you know?” I asked.
Remington gave a wry smile. “Because I’ve been through this rodeo a time or two. The letter looks threatening. But in reality, the longer the letter, the more scared they are. See how they only raised their settlement offer by fifty thousand, to make it look like they’re at their maximum. The truth is, they’re nowhere near it.”
“But how do we get them to tell us what happened to David Marcum? Kruckemeyer doesn’t want to file a lawsuit. He thinks Rockweiller will go scorched-earth if we do.”
Remington nodded. “Yes. They probably will. And there are some political considerations at play too.”
“How do you mean?”
Remington crossed his boots on the desk and then explained. “From our side, there won’t be any conflicts issue if we settle. Even though Kruckemeyer won the vote, some of the partners are uneasy. If there’s no lawsuit, there’s no problem. And of course, we won’t have to do any work if we settle.
“From Rockweiller’s side, there are good reasons to settle before a suit too. Once a lawsuit is filed, everything is out in the open. Rockweiller is a public company, which means it will be news. A lawsuit also triggers certain insurance and reporting requirements that they don’t want to deal with.”
“Oh,” I said. “I didn’t know all that.”
“I wouldn’t expect you to.”
“Right. So what now?”
Remington sat back and looked out the window for a while, thinking through the situation. Then he turned back to me. “How do you file a lawsuit without filing a lawsuit?” he asked.
I frowned as I contemplated this riddle.
“Here’s what you’re going to do.”
“A pre-suit deposition?” Harder asked me. “What’s that?”
He was sitting in my office and quizzing me on my meeting with Remington.
“It’s where you take a deposition before you even file a lawsuit,” I said.
A deposition is like a formal witness interview. It’s taken under oath. But only the lawyers are there, not the judge or jury. Depositions are a primary fact-finding tool in civil cases. They are used to find out what a witness will say before trial. Usually, they happen around the midpoint of a case.
“Holy shit,” said Harder. “I didn’t even know you could do that. How?”
“Rule 202, Texas Rules of Civil Procedure,” I said nonchalantly, as if I did it all the time. “Technically, it’s supposed to be used to investigate a potential claim or suit. But we’re going to use it to file a lawsuit without actually filing a lawsuit.”
“Awesome,” said Harder.
“Yeah. Plus it’s a surprise tactic,” I added. “You depose their witness before they get a chance to get their story straight. Usually, depositions happen months or even years into the case. By that time, everyone has reviewed the documents, figured out their legal positions, and prepped their witnesses to the nines. So you get whatever story they want you to get. But in a pre-suit deposition, you jump the gun and get the witness even before day one.” I explained all of this as if it had been my idea, and Remington hadn’t relayed it to me word-for-word.
“Dude,” said Harder, awed.
“Dude!” echoed Vijay from down the hall.
“That’s amazing,” said Harder. “None of this was your idea though, right?”
“Don’t you have work to do, or something?” I asked.
“Alright, alright. Whatever, bigshot,” Harder said.
“Later,” I said, grinning at him.
A week later, I was at the courthouse for my next dust-up with Badden & Bock. I had my pre-suit deposition request in hand. It listed the topics I wanted to ask about. The death of David Marcum; David Marcum’s employment with the company; and the gold coins that David Marcum had sent to Ashley. I also had requests for Marcum’s personnel file, as well as any written investigations into his death.
Badden & Bock filed a considerable opposition to my pre-suit deposition request. It was the usual perfectly formatted document with hordes of legal authorities. They argued the court had no jurisdiction, no venue, and that there was no good reason to order a pre-suit deposition at all. After reading through all of it, I was worried they might be right. I had sent Remington their brief, but he hadn’t responded.
Unlike last time, the courtroom contained an assortment of lawyers, milling around and waiting their turn. The bailiff was dozing off at his station, and the clerk was typing away at her computer. I walked over to the docket sheet where the case list was posted. It was the usual smorgasbord of discovery motions, pleas, and other legal issues. I saw my case, In Re: David Marcum, near the middle. Good. I sat down in the back benches to wait my turn, and observed the proceedings.
Judge Gleeson was sitting up on the bench, looking bored. Two attorneys stood in front of him at the podium. They were too dignified to jostle, but it was clear that they both wanted the podium. They looked like two airline passengers passively-aggressively fighting over an armrest. Gleeson looked at them. “Does one of you want to go first?” he asked dubiously.
The nature of the dispute soon became clear. The first lawyer was trying to get some documents. The second lawyer said he hadn’t got proper notice because the request was emailed to him, not mailed to him. The first lawyer pointed out that he had got the request anyway, so what did it matter. The second lawyer didn’t deny this, but kept going on about due process, and how his client hadn’t got any, and how this was America and he was entitled to justice. Judge Gleeson heard about twenty minutes of this and then ordered him to turn over the documents.
These discovery fights seem past the point of absurdity. But it’s easy to say that as the observer, or as the judge. When you’re the lawyer, it’s different. Lawyers are good at making the other guy look like the asshole. And sometimes, if you put up enough bullshit, and write big enough briefs, and act indignant in court, it’s hard to tell who’s right and who’s wrong. Everybody gets tarred, even when there’s only one person doing the tarring. And it’s difficult for a state-employed judge to figure it out in his nine-to-five. So sometimes the judge gets it wrong. And assholes keep filing motions.
Shortly before the end of the hour, the courtroom door opened, and Bock & Co. walked in. They caused a stir. I heard “Badden & Bock” and “New York lawyers” whispered around the courtroom. It was obvious that they were not the usual ham-and-eggers, as Grisham calls them, that take up space in the southern state courts. A few minutes later, Judge Gleeson called our case, and I walked to the front.
Bock spoke first. “Zachary Bock, Your Honor, for pre-suit defendant Rockweiller Industries. It is a pleasure to see you again. I’m sure you remember my colleagues, L. Lucius Quinto and Kathleen Loudamire.” They waved, and Judge Gleeson nodded, probably not remembering them at all.
“I trust that the Court has reviewed our response to the Plaintiff’s motion for pre-suit deposition and cross-motion for protection that was filed last night,” Bock said.
“I did,” said Judge Gleeson dryly. “All fifty pages of it.”
“We have several extra copies, should the court desire it.” He motioned to Quinto, who sprung forward with a thick binder in hand.
The Judge waved it away. “I’ve got a copy here. Thank you.”
“In that case, Your Honor, I’d like to start with jurisdiction, if the Court will indulge—”
“Excuse me, Your Honor,” I said
. It came out as a squeak. I cleared my throat. Dammit. “I believe that as the movant—”
Bock glared at me. “Excuse me. I’d like to finish my statement.”
But the Judge interrupted him. “Counselor,” said Judge Gleeson, “this young man is the movant, so at least here in Texas—” he said this with a light emphasis—“that means he goes first.” This drew a couple of laughs from the gallery. He had an audience this time.
“Of course,” Bock said smoothly. He turned to me.
I gathered my papers and began my practiced statement. “As Your Honor knows, we are requesting a pre-suit deposition regarding the circumstances of David Marcum’s death while in the employ of Rockweiller Industries. If we determine that there is cause to sue, we will do so. If not, we will withdraw the petition. This method will put the least burden on the parties and the Court while providing us with the opportunity to learn what we need to know.” I explained the circumstances and legal issues in a little more depth, and then thanked the Judge for his time. It was a little rote, but I wasn’t expecting this to be a big deal.
Zachary Bock listened to this as if he could barely contain himself. As soon as I’d finished, he jumped up. “May I respond, Your Honor?”
“Please.”
Bock motioned to Loudamire, who instantly activated a PowerPoint on the screen that had been set up for him. I had a sinking feeling of de ja vu.
Bock walked through twenty slides of the PowerPoint with aplomb. He explained that there was absolutely no cause for a pre-suit deposition, and that it would pose an undue and intolerable burden for his client. He argued that the Court had no jurisdiction, because Rockweiller Industries was not headquartered in Texas and none of the events had occurred in Texas. He also argued that the venue was improper, and that there was no possible cause for a lawsuit to go forward anyway. He probably talked for about thirty minutes, passionately and intensely.
After Bock had completed his argument, the Judge turned to me. “What do you have to say to that, young man?”
