Standing at the podium with Hirsch and Bellows were Beth Purcell, one of the attorneys for OLM, Inc., the air bag manufacturer, and Marvin Guttner. The four of them waited for Judge Kalnitz to finish reading through the protective order.
Hirsch had been surprised to see Guttner. He rarely appeared in court, preferring, as he told Hirsch at their private lunch, to have his minions handle the “procedural minutiae” of his cases. This motion to compel would seem to qualify as procedural minutia. It was just one of the scores of motions in various cases set for hearing that morning as part of the motion docket in Division One.
There were close to a hundred lawyers scattered throughout the large courtroom. Some were reading newspapers or reviewing court papers or chatting quietly as they waited for the clerk to call their motions. The low hum of voices had ceased during Bellows's bombastic presentation. Many in the crowd were watching now, mildly interested in the proceeding.
“Counsel,” Judge Kalnitz said to Hirsch, peering over his reading glasses, “this order seems fairly clear to me. It says the contents of that database are strictly confidential and can be disclosed to no one other than the attorneys in that case. It further states that all motions to modify that order must be brought before that court.” He looked at Bellows. “Is that accurate?”
“One hundred and ten percent.” Bellows grinned and ran his fingers through his shock of reddish-gray hair.
Kalnitz looked back at Hirsch. “Well, Counsel?”
“Your Honor,” Hirsch said, “I believe Mr. Bellows stated that his client intends to abide by the orders of the Enlow court.” He turned to Bellows. “Is that accurate?”
Bellows frowned slightly. “Certainly.”
“One hundred and ten percent, right?” Hirsch asked him.
There were a few chuckles from the gallery.
Bellows stiffened. “I informed His Honor that my client was a party to the Enlow case and was bound by orders entered in that case.”
Hirsch turned to the judge. “The protective order that Mr. Bellows provided the Court was entered in that case two years ago. On April third, I believe.”
He waited for the judge to flip to the back page to confirm the date. “Yes. April third.”
“As the Court knows, the database compiled in that lawsuit contains a variety of information on more than two hundred traffic accidents involving sport-utility vehicles on icy roads. This is also an accident case involving a sport-utility vehicle on an icy road. There's no question that the information is relevant. The only issue is whether we can have access to it. What Mr. Bellows has failed to disclose to this court is that courts in at least fifteen other cases around the country involving SUV accidents on icy roads have already faced the issue before the court today. The plaintiffs in the first three of those fifteen cases filed their motions with the Enlow court in Massachusetts asking for access to the database. The Enlow court granted all three of those motions and allowed those plaintiffs access to the database. I've obtained certified copies of those three court orders.”
He handed the originals to the judge and copies to Bellows and the other lawyers.
“This simply proves my point, Judge,” Bellows announced, waving his copies of the orders. “If Mr. Hirsch thinks he's entitled to this database, let him hop on a plane and make his pitch to the judge in Massachusetts who entered the order sealing that evidence.”
Hirsch said, “That is precisely what the fourth plaintiff did, Your Honor.” He turned to Bellows. “Would you care to tell the Court what happened that time?”
Bellows's eyes narrowed. “I'm not an attorney in that case,” he snapped.
“But your client is a party in that case.”
Hirsch turned back to the judge. “The Enlow judge did more than simply grant that fourth motion, Your Honor. He entered an order modifying his protective order—the one that Mr. Bellows handed you earlier. Curiously, Mr. Bellows decided not to provide you with a copy of the second order, or even tell you about it. Fortunately, I have a certified copy of it here. As you will see, it specifically refers to the protective order that Mr. Bellows handed to you.”
He handed the judge the two-page order and passed out copies to the other attorneys.
“In this order,” he continued, “the judge in the Enlow case specifically empowered every other judge in the country to allow parties in accident cases before them to have access to that database so long as those parties are bound by the same confidentiality terms of the protective order in the Enlow case.”
He waited until the judge finished reading and looked up.
“Therefore,” he said, “I don't need to hop on a plane to Massachusetts, and I don't need to present this motion to the Enlow court. Instead, I can present that motion to this Court, just as each of the other eleven plaintiffs in similar SUV accident cases have presented their motions to compel to their courts. I have copies of all of those orders granting those motions to compel if this Court would like to see them. As the Enlow court stated in its order modifying the protective order, and I quote, ‘There is no reason to prevent victims of similar accidents from having access to this database so long as they agree to abide by the confidentiality restrictions.' Your Honor, I can assure the Court that we agree to abide by those restrictions. Surely, Mr. Bellows has no problem with that. As he told this Court in no uncertain terms, his client intends to abide by the orders of the Enlow court.” He turned to Bellows. “I assume that is still one hundred-and-ten-percent accurate?”
A few more chuckles from the gallery. Bellows glared back at him.
“I've heard quite enough, gentlemen,” Judge Kalnitz said. He peered over his reading glasses at Bellows for a long moment and then shook his head.
“Motion granted. Mr. Hirsch, prepare an order for me to sign.” He turned to his clerk. “Call the next case.”
The reason for Guttner's presence became clear when the four of them stepped into the hallway outside Division One. Normally, they would have dispersed, the defendants' counsel talking among themselves as the lone plaintiff's counsel headed for the bank of elevators. Instead, Guttner turned to him with a smile as the other two lingered in the background, watching.
“David,” Guttner said, “I thought perhaps that the four of us could talk for a moment.”
“About what?”
“There is an empty jury room across the hall,” Guttner said. “Why don't we step in there and I can explain?”
The jury room seemed even older than the rest of the 1930s-era Civil Courts Building. The ceiling tiles were splotched with brown water stains, the long wood table was gouged and scarred and spotted black with cigarette burns, and the high-backed wooden chairs were rickety and uncomfortable. The wind rattled the tall window, which had a transom operated by a brass crank handle.
Guttner took the seat at the head of the table, his bulk making the chair creak ominously. He gestured to Hirsch to take the seat next to him. Beth Purcell, a prim woman in her thirties who dressed as if she were in her fifties, sat on the other side of the table two chairs from the head, apparently in deference to Jack Bellows. Bellows, though, stood by the far window and glared down at the park across the street.
“David,” Guttner began, “I am reminded of that wonderful aphorism attributed to Yogi Berra, who purportedly said that when you come to a fork in the road, you should take it. Well, sir, we have come to that fork. Two paths diverge before us, and each leads to a very different form of closure—one in a final judgment, the other in a settlement. Your motion today signals the start of discovery. If we take that fork, we will soon be generating substantial legal fees, and you, David, will soon be devoting large portions of your days and nights and resources to a case for which you may never be compensated. That is the discovery path. It will lead inexorably, and expensively, to final judgment. The other path leads to settlement. It is a much shorter journey, and a far different form of closure. That's the fork we've come to, David, and Mr. Berra advises that we take it.”
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Bellows had turned to watch Guttner. The expression on his face suggested that he was unimpressed with his co-counsel's presentation.
“As you will recall, David,” Guttner continued, “just a little over a month ago we spoke in general terms of the possibility of an amicable resolution of your lawsuit. As I told you then, I believe that an attorney owes a duty to his client to explore settlement issues in earnest at an early point in the lawsuit. I hope by now that you have had an opportunity to raise the issue with your client. I have with mine, and I know that Ms. Purcell and Mr. Bellows have with theirs.”
Guttner paused.
Hirsch said nothing.
Guttner said, “My client is willing to consider a settlement upon reasonable terms. Ms. Purcell and Mr. Bellows advise that their respective clients are also open to discussion of an equitable resolution of the matter.” Guttner raised his eyebrows and smiled at Hirsch. “How does Mr. Shifrin view the possibility of settlement?”
“Guardedly,” Hirsch said.
“Why is that?” Guttner asked.
Hirsch allowed his gaze to shift to Purcell and then to Bellows, who stood by the window with his arms crossed over his chest.
Turning back to Guttner, Hirsch said, “My client dislikes lawyers, and he dislikes lawsuits. It took him almost three years to file this lawsuit. He filed it because he is haunted by his daughter's death. He filed it because he wants justice and believes he can find it in a courtroom. You may think him naive to seek justice there. You may think he's old enough to know better.” Hirsch shrugged. “But you're not him, and you're not haunted by the death of your daughter, and you're not the one determined to seek justice.”
They were silent. The only sound was the syncopated clang of the steam radiator.
Hirsch waited. He wasn't going to make it easy for them.
“But what about settlement, David?” Guttner finally said. “What does your client want?”
“He wants justice. He's afraid he won't get it in a settlement.”
Bellows snorted. “Cut the crap, David. Your guy may try to delude himself into believing he's filed an action for justice, but have him read his court papers. All he's filed is a civil lawsuit for money. I think it's a bullshit claim, and so does my client. I think you're going to lose, but I didn't call this meeting. Peterson Tire wants to talk settlement, so let's cut the crap here. How much money does he want?”
“I just told you, Jack. He wants justice.”
“Good for him. And I want a blow job from Julia Roberts, but how 'bout we talk some reality here?”
Beth Purcell flinched.
“Please, Jack,” Guttner said, holding up his hand and shaking his head in reproach.
He turned to Hirsch. “David, we are not engines of justice here. We are merely corporate defendants. All we can offer your client by way of settlement is money.”
“You can also give him an admission of liability,” Hirsch said.
Bellows burst into laughter. “Are you out of your fucking mind?”
Hirsch waited until Bellows was quiet.
“I didn't call this meeting, Jack,” he said. “I'm simply answering your questions.” He turned to Guttner. “Do you have any more?”
“David, I can assure you that we understand your client's desire for some measure of justice in this case, for an acknowledgment that someone is responsible for his daughter's tragic death. I truly believe that this will not be an insurmountable hurdle here. We are all creative lawyers. Among the four of us we must be able to devise a way to satisfy your client's desire without prejudicing our clients' interests. So let us assume, at least for now, that we can accomplish that task. That still leaves us with the monetary issue. Rather than review the facts pertinent to liability and damages, facts I daresay we are all conversant with by now, I suggest that we cut to the chase. Even assuming what none of the defendants will concede, namely, that you could actually establish liability, this is not a big money case. You have virtually no hard damages, and very little in the way of persuasive soft damages. I should think you would be lucky to get fifty thousand dollars out of a jury. Be that as it may, in the interest of getting this case behind us and thereby avoiding significant legal expense, we are prepared to offer you seventy-five thousand dollars to settle the case.”
Hirsch shook his head. “Not even close.”
“What?” Bellows said. “Are you crazy?”
And that's when it clicked. He tried to remember which Japanese martial art it was. The one that had you use your opponent's strength to disarm himself. The name didn't matter. The concept did.
Hirsch gazed at Bellows, pretending to consider his question. “I'll discuss the offer with my client, but I won't recommend it. Not at this stage of the litigation.”
“I don't understand,” Beth Purcell said to him. “Why does it matter what stage we're in?”
“It's too early. At least one area of damages is still uncertain.”
“What area is that?” she asked.
“Pain and suffering.”
“Jesus Christ,” Bellows said, “what the hell are you talking about? I saw the medical examiner's report. We all did. She died instantly.”
“Not necessarily.” Hirsch kept his tone matter-of-fact.
“What's that mean?” Bellow asked.
“The report mentioned asphyxia as part of the cause of death. If she was conscious after the impact, that would have been a horrible way to die. The pain and suffering would be substantial, and so would be your exposure.”
“Oh, come on,” Bellows snapped. “How are you ever going to prove pain and suffering here? There wasn't even an autopsy.”
“But there were X-rays,” Hirsch said, “and morgue shots. I understand a good forensic pathologist can do wonders with that stuff.”
“Do you believe this guy?” Bellows asked the others, amused. “He's going to tell his client to reject seventy-five grand because a forensic pathologist might—not will, mind you, just might—opine that this gal was conscious for a few seconds after the accident.” He turned to Hirsch. “I got some news for you, pal. Believe it or not, this isn't Ford's first wrongful death case, and this certainly isn't the first time some shyster has tried to inflate his case with this bullshit tactic. Ford has access to the best pathologists in the nation, and you can be sure I'll get one assigned to this case pronto.”
Hirsch shrugged. “Fine.”
Bellow chuckled. “You've got to understand something, Hirsch. Peterson Tire is the only defendant with any reason to try to suck up to Brendan McCormick here. But even they have their limits. We're sure as hell not holding back much longer. If I were you, I'd jump at Guttner's seventy-five grand like it was a lifesaver, 'cause once it's off the table, pal, you're going down. And you're going down hard.”
CHAPTER 19
Hirsch was on the sagging couch in Abe Shifrin's living room, his overcoat still on, his briefcase on the floor between his feet. The smell of rotting garbage filled the house.
Abe Shifrin stopped pacing, clutched his hands in front of his chest, and sighed. “Oh, my God.”
He gave Hirsch a woeful look and started pacing again, head down, hands now clasped behind his back. The old man hadn't shaved in days. His clothes were wrinkled and stained.
He stopped and turned toward Hirsch, his face a mix of pain and anger.
“Seventy-five thousand? That's what they call an offer? And then what? I'm supposed to forget? Pretend like it never happened? And also I'm supposed to forgive her? Forgive and forget? After what she's done to me? To me?”
He stared at Hirsch. A tear rolled down his cheek. “Never. Tell her forget it.”
He started pacing again, head down, mumbling to himself.
Hirsch tried to parse what he'd just heard.
“I don't understand.”
Shifrin glanced at him as he paced. “You don't understand? That's because you're not me. You haven't lived with this torment.”
Shifrin gestured toward
the framed photographs of his wife and daughter on the wall. “Why would she do that to me?”
“Do what?”
“Leave me. And for a schvartza, yet. It's a shanda, I tell you. It wasn't enough she should leave me. Oh, no. She had to disgrace me as well.”
“Are you talking about Judith?”
He held up his hands. “Never say that name around me.
“After what she did”—he made a dismissive gesture—“she's dead to me. I was good to her, sir. A good provider. A nice home. Money for clothes and for jewelry and for whatever else a woman might want. And was she grateful? Did she show respect? Ha! She walked out on me. Left me for another man. For a schvartza. And now her lawyers want to buy me off for seventy-five grand?” He shook his fist. “Tell them to shove it. I won't take their bribe money.”
Hirsch stood up. “I think you might be confused, Mr. Shifrin.”
The old man looked up at him, eyes blinking. “What? What are you saying?”
Hirsch walked over to the framed photos on the wall.
“This is Judith,” he said, pointing. “She was your daughter. This is your wife. Her name was Harriet.”
“Harriet? What are you talking Harriet? I think I know who I was married to, sir.”
Hirsch shook his head. “No, Mr. Shifrin. Judith was your daughter.”
Shifrin looked back and forth between the pictures, a puzzled frown on his face.
Hirsch continued in a gentle voice. “Your wife Harriet died of cancer, Mr. Shifrin. Many years ago. You loved her very much. After she died, your daughter took over many of her chores. She cooked your meals and washed your clothes and cleaned the house. Her name was Judith.” He pointed to her photograph on the wall. “That's Judith. She was a good girl, Mr. Shifrin. Judith was killed in an automobile accident three and a half years ago. That's why I am here tonight. I am your lawyer. We filed a lawsuit against the makers of the car and the tires and the air bags. I am here tonight because the defendants have made an offer to settle that lawsuit. They have offered you seventy-five thousand dollars. I have come here to discuss it with you.”
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