Bartel figured out that the condescending act was part of the scene to try and get the defendant infuriated. An infuriated defendant is a weak opponent to a plaintiff’s lawyer. The deposition lasted the entire day. Towards the very end of the day, Callahan pulled Bartel aside and said, “Ron, they came to me and asked me if you had something on Tabaknie that you could give them? They would be willing to drop the case against you if you had something concrete that would help them against the lawsuit they have against Tabaknie. After all, Littleton sent the payment to Tabaknie. And they feel they have a better shot against Tabaknie.”
“Come on, Jim,” reacted Bartel, “Do you really believe that? This is a guy who wanted me to pay him $440,000 over 30 years like a mortgage payment, remember? He much preferred to sue me rather than work things out. And now he is going to drop all of that? Just who do they think they are trying to hoodwink? I don’t have anything that will help them in going after Tabaknie. I would love nothing more than to stop this nonsense. But, honestly, I have nothing to offer them.”
The deposition of Bartel continued for the rest of the afternoon. It was nothing less than contentious between Bartel and Lane Sneddon, Littleton’s attorney. All the while, Littleton sat there smugly watching Bartel go through a completely unpleasant experience.
As the weeks progressed a trial date was set. As the trial date came close, the Bartels made arrangements for their kids to be taken care of while they were in Norfolk for the trial. They made their flight booking and hotel booking. The trial was now just days away.
Bartel received a call from Jim Callahan a couple days before the trial was to start. “I have some new developments, Ron,” said Callahan. Bartel thought this was going to be about a little more information he had gathered from discovery as the process of getting information from Littleton’s side had been slow and laborious.
“Ron, you can cancel your flight and hotel bookings. There is not going to be a trial. The plaintiff has filed a nonsuit.”
Bartel was unsure if this was good news or bad news and replied, “What the hell does that mean? What is a nonsuit? I have never heard of such a thing.”
“Well, in Virginia we have the option of a nonsuit. Littleton is basically saying he does not feel he has enough to win in a case against you. So he is not filing the suit.”
“Does that mean this is over? Why would he do such a thing? Littleton doesn’t do things for no reason. There is always some reason that benefits him for each of his actions. What are the benefits for him to do this?” Bartel pursued.
“I don’t know his reasoning, Ron. Typically a nonsuit is filed when the plaintiff feels he does not have enough proof to convince a jury that he deserves a favorable verdict. In my many years of practice I have seen it less than a handful of times. It is rare but it does happen. I cannot guarantee that this is over because a plaintiff in Virginia is allowed one nonsuit against a defendant. The plaintiff then has six months to file a new suit against the defendant if he chooses to do so.”
“Jim, this means this is not over. I know John Littleton. He did not file the nonsuit because he felt he couldn’t win. I think this suit was a fishing expedition to see what he can gather by way of information and look at all his options. He wanted to see what was out there in the form of proof against me, against Tabaknie and who knows maybe even against Theo Stevenson or Agiamukis. He was exploring to see where he could collect. Now he has all the information he needs to re-evaluate his options. I am quite sure we will get slapped with a new suit within the six months window he has.”
“Ron, you cannot worry about that. You should rejoice in the fact that he and his attorneys felt they couldn’t win on this suit. I am not sure what other information he can dig up between now and the next six months that would change the case against you. I doubt there is anything new that will be unearthed to tip the balance of the scale in his favor. For now, consider this as over. Should something new come about, you know where to reach me.”
As Bartel ended the phone conversation, he felt a big weight had been lifted off his shoulders. He called out for Marcia who was playing with the kids in the family room. And let her in on the news of the nonsuit.
Chapter 9: The Second Bite
Sure enough, less than three months later, as Bartel had surmised he received notice for a second lawsuit from Littleton’s lawyers. This time the plaintiff was Sherwood Holdings LLC. This lawsuit claimed that Sherwood Holdings and Silver International had entered into a joint venture of profiting from cigarette trading. All profits were shared equally and therefore, all losses should be shared equally. Due to the $440,000 loss encountered by Sherwood Holdings, half of that loss had to be borne by Silver International. Bartel was being sued for $220,000 this time.
As Bartel was speaking to Jim Callahan again, Jim joked to lighten up the mood a little and said, “At least he is asking only half the money this time, Ron. I really don’t know what say to this but I am sorry that you got involved with a man like this. He is miserable and the only thing he knows is to make others miserable.”
“We knew this was coming, Jim. I didn’t expect this new approach though. He might have a shot at winning this one. I am not happy, Jim. It cost me almost $20,000 in defending myself last time around with you. This thing will cost me a bunch more. Business is not great, Jim. This is not what I need.”
“I know, I know. I am sorry about this but you have no choice but to defend yourself. We lawyers joke and say – God bless the person who sues my client. It is an inside joke, Ron. We live in America where a lawsuit is the fabric of our lives. Most business owners get sued at least once in their lifetime. It is as American as Chevy, apple pie and baseball.”
The entire process started once again. This time discovery was faster and the motions seemed to move quicker. This time both Ron and Marcia Bartel had to go through deposition in Norfolk. But things were moving along and discovery didn’t take anywhere near the kind of time it took in the previous trial. Only problem for Callahan was that Lane Sneddon delivered over 40 boxes of papers in discovery to Callahan’s office. Callahan was a one man operation and he had no way of going through everything
in these boxes and even if he did go through the papers he couldn’t make head or tail of it. Callahan set aside the boxes and informed Bartel that he would need Bartel to come a couple days before the trial and go through each of the boxes and see what was in the discovery.
Callahan also need an expert witness. It had to be someone who was familiar with the business of cigarette trading and who could speak with authority on the stand. Bartel could only think of Theo Stevenson. Callahan spoke to Theo Stevenson and decided that he would do just fine as an expert witness. Theo agreed to testify as an expert.
The trial date approached and the Bartels went to Norfolk a couple days prior to the trial date. Ron and Marcia Bartel walked into Bartel’s small office and were taken to the storage room. The storage room was stacked with boxes all the way to the ceiling. Marcia counted 41 boxes marked as discovery for their case. She looked at Ron and shrugged her shoulders and sat down and opened the first box and started going through all the files. Ron started at the other end of the stack of boxes and he also started going through the files of papers in the boxes.
Morning turning into afternoon and soon it was sunset. Most of the boxes had papers and copies of emails and faxes between many of the parties involved in the case. Most were copies of communications between Bartel and Littleton. There was nothing here that jumped out at either Marcia or Ron. Both Marcia and Ron poured through the boxes upon boxes of files that spanned four years of almost daily communications between Bartel and Littleton. They were down to the last few boxes at the time when Marcia got up and walked over to Ron on the other side of the room and showed him a file. Ron read what Marcia had found and his eyes opened wide and a smile crept on his serious face. She said, “Can you believe this? That stinking son of a gun!”
“Well, it doesn’t surprise me. Why don’t
we show it to Jim and see what he wants to do with it,” Ron said as he stood up to go over to Jim’s office. Jim was working on his opening statement as well as jury voir dire questions. Marcia showed the file to Jim and Ron explained the notes on several pages of that file. Jim looked up and said, “Good job! We needed something like this. I knew I would never be able to go through the huge amount of discovery they dropped on us. Even if I had the time, it would never make sense to me. Only you two could have found something like this in that pile of papers Lane Sneddon and his firm dropped at my door step.”
That night Theo Stevenson arrived in Norfolk and the following morning he met with Marcia and Ron Bartel at Callahan’s office. Callahan went over some of the topics that Theo would testify to. It provided additional insight into the business of cigarette trading to Callahan and he started to feel a little bit more comfortable with the case he had to defend.
Jim went over a few major points of the case with Marcia and Bartel that afternoon and went to bed insisting that Marcia and Ron make it an early night to bed.
The trial began the following day. First order of business was the selection of the jury. The judge called in a set of prospective jurors and asked some basic questions. He then opened the gate for the two lawyers to ask the prospective jurors questions. Jim wanted a broker on the juror. He felt any broker, a stock broker or a real estate broker or any other kind of broker would be able to educate others on the jury about Bartel’s position in the deal in question. He was also looking for anyone who was well-educated and was a small business owner. From the looks of the jurors that Lane Sneddon was accepting on to the jury, it seemed like he wanted nurses, teachers and government employees on the jury.
After a couple of hours, the jury was picked and the opening statements began. Lane Sneddon started first. He laid out the case that Littleton and Bartel had a handshake joint-venture deal that they would split all profits and losses straight down the middle, fifty-fifty. His case was that everything was hunky-dory while the deals made money. The problem arose when the deal lost money and at such time Bartel refused to pay his fifty percent of the loss. He did a good job of his opening statement.
Jim Callahan followed Sneddon and made his case about the relationship between Littleton and Bartel was that of a buyer and a broker. Bartel was a broker who brokered deals for a commission. Bartel’s commission with respective to the Marlboro shipments with Littleton was fifty-percent of the margin. Bartel’s commission would vary deal by deal and by product by product. Rarely did any two products have the same commissions. Every commission that Bartel was able to negotiate depended on the market conditions, the customer and the terms of the trade. He went on to make the argument that for the deal in question, Bartel didn’t want any part of it. But he was ordered by his client, Littleton, to make the deal happen. Once Littlelton’s own decisions brought about losses, Littleton wanted someone to pay. Callahan went on to state that the jury would hear many exotic places like Rotterdam, Limassol, Cyprus, etc. and complicated international trading terms like pre-loading inspection, bill of lading, escrow account, bonded warehouse, etc. All this may be confusing but the case was really very simple. It boiled down to the kind of relationship Littleton and Bartel had. It was that of a broker and his client and it was not a joint-venture.
Lane Sneddon called John Littleton as his first witness. Using Littleton he introduced all the paperwork including the proforma made on Silver International letterhead that was signed by Bartel. Littleton went over the Limassol deal as he remembered it. Obviously, he did not remember Bartel saying not to do the deal and that he should wait for Patrice van der Meer to be available for inspection.
The laws of Virginia did not allow Callahan to mention anything about the prior lawsuit that ended being a nonsuit. According to the law, it was as if that prior lawsuit never happened.
Callahan just had a couple of arrows in his quiver which he had to be careful in his use. After going over the deal in detail on cross examination of Littleton, he showed Littleton a short email and said, “Do you recognize this email?”
Littleton read the email, nodded and said, “Yes.”
“Could you please tell us who wrote it and to whom it is addressed?” asked Jim.
“It is from Ron Bartel and addressed to me.”
“What is the date on the email?”
“July 25th, 2000.”
“That was before you sent the payment for the Limassol cigarettes to Tabaknie’s escrow account?” asked Callahan.
“Yes, it was.”
“Go ahead, Mr. Littleton, please read that email for the jury.”
“Dear John, as per our telephone discussion, I recommend we await Patrice van der Meer’s return from vacation so that he can inspect the 960 cases of Marlboro cigarettes in Limassol. It is not prudent to purchase any cigarettes without authenticating the merchandise. I have spoken to Patrice and he can do the inspection in Limassol in about two weeks. Please hold-off on any commitments until the inspection is complete. With best regards, Ron Bartel.”
“Did you follow my client’s recommendation?”
“No.”
“Why didn’t you follow Mr. Bartel’s recommendation?”
“I talked Ron on the phone later that day and he agreed to move forward with the deal.”
“Really? Do you have any emails or notes stating that Mr. Bartel agreed to move forward with the deal?
“No,” Littleton was not offering much.
“Aren’t you given to taking notes on all your phone conversation?” Jim Callahan knew from the Bartels that Littleton was a serious note taker of all phone conversations.
“Yes, I do take notes of my phone conversations. But I couldn’t find notes of this particular conversation with Ron Bartel.”
Then Jim Callahan pulled his second arrow from the quiver and handed Littleton another piece of paper and asked him, “Mr. Littleton, do you recognize this paper?”
Littleton looked at the paper and suddenly started to turn red in the face and said, “Yes, I recognize this.”
“Whose hand writing is that at the bottom of the paper, Mr. Littleton?”
“It is mine.”
“Could you please tell the jury what you have written down there, Mr. Littleton?”
“Sold 960 cases Marlboro in Miami at $510, but tell Ron that I sold for $480.”
“So you are telling us, Mr. Littleton, that you were claiming to have sold some shipment of 960 cases of Marlboro to your client for $480 when you actually sold it for $510??
“Yes.”
“So this was not really a joint venture was it? You were not splitting the profits equally as you claim. In this case, what was the buying price?”
“I don’t remember.”
“This was in late 1999. I understand during that period in time Marlboro prices were around $450 per case in the international market. In fact, you sent the amount to Tabaknie’s escrow account that reflects the buying price of $450. Would that refresh your memory, Mr. Littleon?”
“Yes, that seems about right.”
“So you total actual profit was $60 per case but you represented to my client that the profit was $30 per case. In this case you gave my client $15 a case as his margin but you got $45 per case. You made three times as much as he did. I wouldn’t call that a fifty-fifty split, would you, Mr. Littleton?”
There was no answer. Littleton just glared at Jim Callahan.
Marcia had remembered the claim Littleton had made during their first meeting four years ago in Miami. Littleton had shown a file with notes of his telephone conversation with Bartel. Now that habit of note-taking had come back a full circle and had come to help the Bartels. These were the hand written notes that Marcia had uncovered in the pile of boxes in Callahan’s office just a couple of day prior.
Then it was the Bartels’ turn to put their case up. Marcia Bartel got on the stand first. She was followed by Ron Bartel. Not much additional new information was added for the jury’s c
onsideration except for one exchange between Lane Sneddon and Ron Bartel. It concerned the contention that the Littleton and Bartel arrangement was a joint venture.
Sneddon had asked Ron Bartel, “So this Limassol shipment was all John Littleton’s fault? You had no say in it and so you had no fault?”
“That is correct.”
“Come on, Mr. Bartel. You don’t expect the jury to believe that do you?”
“Actually, I do expect the jury to believe it because it is true.”
“Just how many shipments of Marlboro did you do with Mr. Littleton and his company Sherwood Holdings over the past years?”
“I don’t have the exact count but I would guess about 20 shipments.”
“You made money on those 20 shipments, Mr. Bartel?”
“Yes.”
“This shipment from Limassol was the only loss making deal between the two of you?”
“Yes.”
“You split the profits with Mr. Littleton on the 20 prior shipments that made profits?”
“That was I thought until I saw John’s hand-written notes just a couple of days ago in my lawyer’s office.”
“But the point is you made money?”
“Yes.”
“If you split the profits, don’t you feel you should split the losses too, Mr. Bartel?”
“All the 20 prior shipments were inspected before any payment was made by an expert cigarette inspector. This one was not inspected by this expert. I specifically asked John not to do the shipment without the inspection by the expert. He wouldn’t hear any of it.”
“So all of it is Mr. Littleton’s fault and you have no fault at all?”
“Yes.”
Theo Stevenson followed Bartel on the stand to basically educate the jury on the way a typical cigarette shipment worked. This was no easy task. The business was complicated and the deal was confusing. But Theo managed to simplify the complex. This is where Theo came to the aid the Bartels. Closing arguments followed and after an anxious couple of hours, the jury came back with the verdict.
God Bless The Person Who Sues My Client - A True Story of Greed and Vengeance Page 6
