by Mark M Bello
“Were Officer Jones’s actions consistent with departmental protocols?”
“I would have to say they were not.”
“Where do you think he went wrong?”
“Objection! Overbroad. The question calls for a legal conclusion. This man is not a lawyer.” Adler is testy.
“I’ll take the answer,” Blake blusters. “For the record, I am not asking him for his legal opinion. I am asking him for his opinion as an expert in police procedures. This is a man who literally wrote the book on Cedar Ridge’s police policies and procedures. Chief Brooks, will you please answer the question?”
Brooks sighs. It’s going to be a long morning. “The stop seems to have been unwarranted. The driver did nothing wrong to justify a stop. Officer Jones’s belief the driver and passenger resembled the Burger King suspects might be reasonable. But once he approaches the vehicle and sees two adults and two young children, this belief should have been suspended.
“The stop and aftermath seem racially motivated. The officer’s inconsistent commands, failure to await backup assistance, which he knew was on the way, in addition to his unreasonable escalation of tensions during the exchange, were all contributing factors as was the officer’s failure to follow high-risk stop protocol. Apparently, encountering a black man who admitted to legally possessing a weapon was a circumstance that caused Officer Jones to act irrationally.”
“This incident was heavily investigated, was it not?”
“It was.”
“By Internal Affairs?”
“Among others.”
“Were reports generated?”
“Yes.”
“Objection,” Adler cries.
“These reports would be work product.”
“No, they wouldn’t Steve,” Blake argues. “That’s absurd. If you don’t produce them, we’ll let the judge decide. Chief, have you seen these reports?”
“I don’t know if I’ve seen them all. I’ve certainly seen some of them.”
“Do they come to conclusions similar to those you’ve espoused today?”
“Objection, don’t answer that,” orders Adler. We will let the judge decide, Zack.”
“And you and your clients will pay the costs and sanctions for forcing me to go to the judge, Steve.”
The deposition drones on. Blake establishes that pulling a weapon out is categorized as a use-of-force activity, that Hayes’s statement to Jones that he was carrying doesn’t necessarily justify use-of-force activity, and that Jones’s action of pulling out his weapon placed the officer and all of the vehicle’s occupants in harm’s way.
Brooks testifies that officers have a responsibility under appropriate policies and procedures, to render aid to victims and that Jones did not do so in the case. In fact, this responsibility didn’t even occur to Jones. An ambulance wasn’t called for until Officer Mickler arrived at the scene several minutes later. Marcus Hayes was already dead at that point.
Blake scrolls through the ICAP manual of policies and procedures and methodically has Chief Brooks admit to multiple violations of its policies and procedures. And Blake has one final trick up his sleeve.
“Chief Brooks, are you familiar with the Aisha Hayes child abduction case in Detroit?”
“Yes, I’ve heard about it.”
“You are aware the principal suspect is a Cedar Ridge police officer?”
“I understand the Detroit Police are pursuing that possibility, yes.”
“Have you seen the composite drawing of the suspect?”
“I have.”
“Do you recognize the guy or does he resemble any Cedar Ridge cop you know?”
“We are scanning our roster. We should have an answer to that very soon.”
“And if it turns out to be a Cedar Ridge cop?”
“He will be punished to the full extent of the law.”
“Child abduction violates police protocol, doesn’t it?”
“Objection!”
“Withdrawn.”
When the deposition is finally over, Blake is feeling positive about the prospects of a significant resolution without a trial. Adler needs a stiff drink and a deep-tissue massage.
Chapter Thirty-Nine
“Our investigation reveals a pattern of institutional racism in the Cedar Ridge Police Department. The CRPD engaged in a pattern of stopping, searching, and arresting people of color without reasonable suspicion and without probable cause. Marcus Hayes is the worst example of this pattern. Officer Jones didn’t merely pull him over for no reason, he also killed him for no reason.”
Court-ordered mediation of Hayes v Cedar Ridge, et al., has begun. Judge Berg appoints veteran trial lawyer Barry Frazier as the neutral mediator, charged with leaning on both sides to negotiate a fair settlement, resolve the case, and avoid a contentious and expensive trial. Both sides provide summaries that contain their versions of the facts and interpretations of the laws that apply to the case.
Exhibits include all video and audio recordings made contemporaneously to the shooting, various post-incident reports and findings, as well as deposition transcripts of key witnesses both to liability and damages. Blake also presents Frazier with a video featuring the life and times of Marcus Hayes and his family, produced and directed by Micah Love. Producing and editing trial-worthy day-in-the-life films are two of Love’s many talents.
As a veteran attorney who has tried numerous personal injury and wrongful death cases, Frazier is not prone to react to an emotional appeal built around institutional racism. His role does not require him to choose one side or the other. He has no skin in the game. The emotional video and other mounting evidence of wrongdoing aren’t presented for Frazier’s benefit. Blake isn’t arguing this pattern of racist behavior in the Cedar Ridge Police Department for Frazier. He’s offering all of this evidence as a prelude to trial. The presentation is made exclusively for Steven Adler and his clients.
Blake senses the city is deeply afraid to try this case. City officials seem convinced a jury will hammer them, not only in the dollar size of their verdict but in the court of public opinion as well.
Blake hopes to capitalize on the city’s fear of trial and strategizes that fear will motivate a substantial increase in offers made at mediation. Blake wishes to spare Sarah and her daughters the media circus of a high profile trial in Hayes v. Cedar Ridge, et al., but he also wants full jury-trial type damages for their grievous loss.
While Blake’s arguments have little effect on Frazier, they are scaring the hell out of Mayor Mendoza. This is, of course, the whole point of the strategy. Mendoza’s attendance is compelled by court order, as is the appearance of Sarah Hayes. Parties with settlement authority are required to attend mediation, so meaningful settlement negotiations can take place.
Mendoza has no ultimate settlement authority. He will only recommend settlement and settlement amounts to the Cedar Ridge City Council. But he does have a vote and, as city mayor and the man who attends mediation sessions, his vote and recommendation will carry significant weight. On the plaintiff side, obviously, with Blake’s advice and counsel, Sarah is the ultimate decision-maker.
Private mediation is a far less than formal process than a trial. The questioning is not mandatory; no oath is required. Both sides’ attorneys know Frazier well, believe him to be fair and impartial, and recognize his tremendous record of settling cases at mediation. His success rate is greater than ninety percent. Therefore, both parties stipulate to give him broad powers to conduct the mediation proceedings. Frazier has wide latitude in questioning parties and witnesses without placing them under oath.
Frazier is astutely offering the defendants a glimpse of the serious effect of Sarah’s testimony under oath and how bad that testimony will be for the City of Cedar Ridge. Blake has mediated several cases with Frazier and is familiar with this strategy. There is nothing to lose and everything to gain.
Mayor Mendoza and Steven Adler can hardly object. How can you settle a wrongful death and s
urvivor case without hearing from the widow or other loved ones? Sarah’s deposition has not yet been taken, so this is the defense’s first opportunity to hear from her, albeit, informally. Frazier asks her to tell the truth, the whole truth and nothing but the truth. She agrees.
Frazier skillfully takes her through her courtship with her beloved Marcus. They met at Wayne State University at the student union. According to Sarah, Marcus was hooked from the moment he saw her. He wasn’t shy. He walked right up to her and introduced himself. For him, it was love at first sight. She was no pushover, but he was nice-looking, funny, and very chivalrous, which she liked. He was a force to be reckoned with. In time, he won her over and they fell in love. They dated through college and married shortly after graduation.
Sarah was a history major. She graduated and got a job at the Henry Ford Museum and Greenfield Village in Dearborn. She loved the work, the people, and the acting she got to do as a Greenfield Village tour guide. She was one of only a handful of black tour guides. Marcus was extremely proud of her.
Marcus was a computer science major and got a job at Comp USA marketing computers and computer technology. When Comp USA went out of business in Detroit, Marcus got a job as a manager at Best Buy and worked his way up the ladder to district manager, responsible for four stores in a geographical area. He was earning $75,000 at the time of his death.
Frazier and the two attorneys agree that calculations for present value of future earnings, including expected salary increases, will have to be made, assuming the parties can agree on liability. The parties stipulate to the mortality tables as an appropriate means to determine Marcus’s life expectancy had he not been killed. When his wages, future wages, and promotions are combined with the mortality tables and a life expectancy calculation, a present value number for lost wage and earning capacity starts to take shape.
The funeral home, cemetery service, and burial expenses are stipulated to, and the bills are provided to Frazier. These types of damages, the easy-to-calculate ones, are the relatively easy part of settlement negotiations. More difficult calculations are necessary for survivorship loss and loss of society and companionship for Sarah and her daughters. These are the intangibles that increase the value of wrongful death cases, much like a calculation for pain and suffering increases the value of personal injury cases. These so-called “soft” damages are not easy to measure. Love, comfort, guidance, and loss of companionship are difficult to quantify in monetary terms.
Defense attorneys often try to take advantage of marital or childrearing issues in wrongful death cases. In this case, however, there are no marital problems and no domestic issues of any kind. Marcus was a terrific husband and father. Sarah and her kids loved their husband and father. The evidence is clear, and a large number will have to be proffered if the city truly wishes to settle the case.
The next consideration is whether Marcus lived for a sufficient length of time to experience conscious pain and suffering. If so, Sarah and the kids are entitled to compensation. According to Sarah, a brutally honest woman, Marcus died almost instantaneously. In fact, one of the most painful aspects of the case, and a factor that adds value is that Sarah and her daughters actually witnessed and experienced the terrible shock of the shooting and death of their husband and father.
They had no opportunity to say goodbye to their loved one. In this case, Marcus’s relatively young age and the length of time that his family must live without him is a significant driver of monetary damages in the case.
Sarah tells Frazier their household was a true division of labor. They cooked and cleaned together and interchangeably. Marcus cut the lawn and did minor repairs and maintenance around the house. There is no attempt to exaggerate or manufacture household service damages, which both Frazier and Adler appreciate. It is tough to dislike either Sarah or Marcus Hayes. This is a difficult pill to swallow for Steven Adler and Mayor Mendoza.
Finally, the parties return to issues of liability. Adler argues this is an isolated incident, that Cedar Ridge has an excellent record of community service and involvement. There have been very few incidents of citizens suing cops. Furthermore, those incidents were very minor and involved no issues of racial bias.
Blake argues Jones was predisposed to pull over and harass people of color. Chief Brooks and Officer Mickler have testified to at least one notable previous incident involving Jones and a black citizen or visitor.
Cedar Ridge had numerous opportunities to re-train or counsel Jones, but officials looked the other way. Blake makes the persuasive case that Jones’s behavior in the Hayes shooting was so egregious, it amounts to gross negligence. A jury could easily award punitive damages as punishment in addition to a compensatory damages award.
“Trust me, Barry,” Blake confides during a private session with Frazier. “These guys want no part of a jury and, if they suggest otherwise, please warn them I will kick ass at trial. A jury will punish them. You know it’s true.”
The parties begin to discuss money. Blake formally demands a mid-eight-figure award. He’s willing to discuss a structured settlement with a lower present value number but insists the aggregate funds must result in mid-eight-figures.
Adler again argues the case was an anomaly for the Cedar Ridge Police and that Blake’s numbers are way too high. The city’s offer is $1.5 million. This is a substantial number. However, as Blake points out, the offer doesn’t even cover the wage loss and household services portions of the settlement.
Barry Frazier does not discuss numbers with the attorneys in the same room. His policy for these mediation sessions is to place each party in a separate room and conduct back and forth negotiations. This way, when his opinion is sought, he can readily offer it, without giving anyone’s negotiating strategy away.
If Frazier has opinions about which numbers are more or less fair, neither party is made aware of it. Frazier points out case strengths or weaknesses for both sides. He tries to explain why plaintiffs should think about reduced expectations, and defendants should think about raising more capital to avoid potential embarrassment at trial.
Frazier does, in fact, have strong opinions about this case, but he refuses to share them. If a number is reached that satisfies both parties, his feelings and opinions are irrelevant. His job here is to facilitate a settlement, not substitute his judgment for the judgment of the parties and their attorneys.
Back and forth they go, with respective numbers inching closer and closer to each other. They’re at the end of the second day of two full-day sessions. A structured settlement provider is contacted, and discussions intensify.
Since structures involve tomorrow’s dollars, the numbers appear higher to Sarah, even though they are somewhat closer to numbers that Cedar Ridge might consider. A structured settlement also offers security against a plaintiff’s carelessness. Paying Sarah large lump sums at strategic times in the future, as her kids reach college age, for instance, is helpful to her and her daughters and saves substantial settlement dollars for the defendants. Structuring a settlement is, indeed, a win-win strategy for the parties.
The second mediation session goes into the evening hours. The City of Cedar Ridge graciously pays for dinner as the parties negotiate into the night. At eight o’clock, Barry asks the parties if they might prefer to continue the mediation the following day. The numbers are closer, he reports, but there is no resolution in sight.
“Jesus Christ, Barry. What is it going to take?” Adler demands.
“More,” Frazier advises.
“How much more?”
“According to my reading of the situation, a lot more.”
“Would you please ask Zack what his absolute bottom-line number is so we can get him some structured settlement numbers consistent with his wishes?”
“Are you suggesting if he provides this acceptable bottom-line number, your client is willing to pay the number?”
“In so many words, yes. Unless the figure is bat shit crazy. If it’s fair, we’ll settl
e. And it must be a structure.”
“Does Mayor Mendoza approve?”
“The mayor ordered me to make the overture.”
“Has he spoken to City Council?”
“Yes.”
“And Council is on board to approve a settlement?”
“That is my understanding.”
“To confirm, if on Zack’s honor, he provides this bottom-line number, I can provide him and his client assurance this number will settle the case?”
“Yes, Barry, yes,” Adler concedes. He knows he can’t try this case. A jury will hammer his clients. He’s a beaten man, grateful his clients understand the ass-kicking Zack Blake will administer in front of a jury and in the court of public opinion.
Frazier returns to Blake to share this news.
“Let me get this straight, Barry. I have a serious, come to Jesus conversation with Sarah. We determine the least amount of money that would fully and fairly settle the case and the defense pays it? No questions asked? On my honor?” Incredible!
“So long as the money is paid as a structured settlement annuity and the demand is not bat shit crazy. Those were Adler’s exact words, Zack. You should be very flattered that your integrity is held in such high esteem by the defense.”
“I am, Barry. I really am, especially coming from Steve Adler. But this puts a lot of pressure on me. I didn’t see this coming.”
“Accept the challenge and meet it responsibly and ethically.”
Blake leans forward, elbows on the conference table, hands on his chin and deep in thought.
“Okay, Barry,” he finally concedes. “I’ll talk to Sarah. I’d like to mull this over, meet with her afterward, and return tomorrow. Good?”
“That’s fine with me Zack. I’m sure it will be fine with Adler. We’re all exhausted. I’ll confirm.”
Frazier leaves the room and returns shortly, flashing two thumbs up. All parties reunite in a larger conference room, shake hands and bid each other goodnight.
Blake walks out into the night with Sarah.
“I can’t believe what is happening Zack. In my whole life, I never expected to see money like this. My husband is gone. No money will bring him back, but I can no longer argue city officials are not taking this case seriously.”
