He shakes his head. “Send Mr. Ferguson in here for a few minutes.”
“Very well, Your Honor,” I say, heading for the door. Now I know that Carswell is not going to put any real pressure on Ferguson to settle; we may as well pack our briefcases and head out.
Back in the courtroom, I tell Ferguson it's his turn and grab a seat. My worst fears realized, within five minutes Ferguson enters the courtroom. He is grinning widely as he walks over to where I am sitting.
“My turn?” I ask, not acknowledging his contentment.
“Not yet,” he says, now beaming. “Wise old Judge Carswell thinks that I ought to pay forty thousand. He says that if I can get it, he'll apply some pressure on you to take it. I just have to make a call and get that authority.”
“Save your quarter,” I say.
“Oh?” Ferguson says, feigning surprise.
“You asshole,” I say, only somewhat playfully. We both know that you have that authority already, and we both know that we're not going to take forty thousand.” Ferguson silently shrugged, obviously enjoying himself.
“Okay,” I say, “call the office and say hello to your secretary, like you guys always do, then tell Carswell you used all your powers of persuasion to get the authority he recommended. I'll decline, and we can get back to our offices.”
Ferguson shook his head. “Maybe you should listen to the learned judge's valuation and settle this frivolous case.”
“You're a joy, Doug. I think I'll do whatever a jury says, instead; twelve of my client's peers, who have been waiting all of their lives to rectify social abuses.”
Ferguson gives me a thoughtful expression, then a raised eyebrow. I sense a gem coming. “You know, Scott, there are a lot of conservative juries out there these days. You may get a cross section of retirees and human resources managers; not exactly your client's peers.”
I reflect on this philosophical offering and then nod. “I don't know about that. I'll pick a jury from the folks walking around Costco anytime. There are a lot of people, much like Ms. Darnell, who just want the right to work without being harassed.”
He stops smiling. “Let me level with you,” Ferguson says. Now I know there's a barge of bullshit coming my way, so I wait silently.
He gives me a look that says he shouldn't be telling me this. “I think I can get you fifty thousand to settle this, if we do it today, before we spend any more money on trial preparation.”
“I appreciate your sharing something so intimate, but all your sincerity notwithstanding, fifty isn't going to get it done.” I give him a friendly smile. “Now I've saved you two quarters, so you can buy me a cup of coffee on the way out.”
I see from his face that he is not amused. “Well, at least I tried,” he offers, and then turns to go, either feeling or feigning offense at my failure to heed his heartfelt advice.
Carswell brings us back into his chambers, but this time does not offer us a seat. He stares silently for a time, and then looks from me to Ferguson. “This case should settle, and I don't like my calendar cluttered with cases that should have settled.”
I recognize this line from prior visits. Apparently all my cases should settle, whether we can settle them or not.
“I want you to keep working on it,” Carswell says, “and I want a call saying that this case has settled by the end of the week.”
Good luck with that, I'm thinking.
“I have to tell you,” the judge adds in his best Solomon-like voice, “I think that Mr. Ferguson is being reasonable here, and you need to look at your case again, Mr. Winslow. Your client will be awfully disappointed if there's a defense verdict after you told her to leave $40,000 on the table.”
Yeah, me too, I think to myself. “I appreciate your input, Your Honor, and I assure the court that whatever we decide to do, we will thoroughly evaluate and consider all offers that are made.”
His gazed is fixed on me, eyebrows raised, as he recognizes my bullshit offered in response to his own. “All right, gentlemen,” he says, giving up, “Tell the clerk to send in the next case on your way out. And be sure that all of your trial documents are timely filed per the local rules.”
“Yes, Your Honor,” we both mutter as we exit. We tell the clerk the judge is ready for the next case and walk toward the door of the courtroom.
“Let me know if you get serious about trying to settle this case,” Ferguson says, unable to resist a parting shot.
I was going to leave it alone, but this pisses me off. “I will, Doug, and you be sure to call me if you find any money in the area of what the case is worth.”
He turns and walks down the hall without answering, followed a half-step behind by the young adjuster, who seems new enough at the game to be trying to assess who is full of shit, and who really has it right.
I see where Linda Darnell is waiting to find out what happened. She smiles nervously as I approach her.
“We're done for now,” I say, and I can see the disappointment in her face. “Let's walk out together.” As we walk down the almost deserted hallway, I continue. “They told me that they believe they can get fifty thousand to settle the case if they do it now.” We had previously agreed to accept 150 thousand, but in the silence, I can tell she is weighing this offer against her desire to be done with it all. I give her a little time to work it through.
“You don't recommend that then?”
“I think the case is worth more, but like I said, I support whatever you would like to do. These are always hard decisions, and it's always possible that things could go badly at trial and there could be a defense verdict. I don't think it should happen that way, but there are no guarantees.”
“I understand,” she says, reflectively. “Let me think on it.”
I nod. “Sure. Give me a call tomorrow and let me know what you're thinking. If you're inclined to settle it, I will try to talk them up a little higher.”
“I will. I'll talk to you tomorrow.” She turns to go, then stops and looks back. “Thank you for everything, Scott. I never would have been able to stand up to them without you.”
“My pleasure,” I respond, as she turns to go, and now I'm smiling. That is the best part of the whole damn job.
* * *
On my way out of the courthouse, I stop in the clerk's office and file the Kevin Walters lawsuit. I check the case documents assigned by the court. The end of the perfect day. The judge assigned to this case will be Roy Carswell—my best buddy.
I return to the office, page through and begin returning a stack of messages from clients and opposing attorneys, and then I work on trial preparation for Darnell until I've had enough. It's ten o'clock when I leave the office, for the second time this week, and it's only Wednesday. This sucks.
When I get home, the full weight of the day catches up with me, and I am exhausted. The house is quiet and dark. I make my way upstairs, stopping at the second door to look in on Katy, who is hanging over the edge of the bed, challenging gravity. She clings tightly to Mr. Zanzibear, a stuffed bear she named for “Zanzibar,” which is tattooed across his right foot. I scoot Katy back into bed, tuck her under the covers and give her a smooch on the cheek. Without opening her eyes, a grin washes across her angelic face, and she says, “Hi, Daddy. I'm glad you're home now.”
My turn to smile. I kiss her forehead and mumble, “Me too, sweetheart,” but she is already asleep. It's amazing how kids can do that. If I wake up in the middle of the night, I could be up for an hour, or for the duration of the night. I grin and walk out, slowly pulling the door almost, but not quite, closed, just the way Katy likes it.
A few steps farther down the hall, I open the door marked “Keep Out,” and go inside to check on Joey. He is on his back, mouth wide open, snoring loudly. I turn him on his side, and the snoring stops. “Hi, Buddy,” I say, looking at the unconscious face. There is no reply. I am not surprised, because Joey sleeps through anything. I could take his bed away and he'd never know it. I give him a kiss, and then I jus
t stand and watch him for a minute. It's amazing how quiet he can be when he's asleep. I turn and walk to the door and leave my little man to his dreams of kings, castles, and pitcher's mounds.
Chapter 4
January 12, 2016
Linda Darnell is still not sure whether she wants to accept the $50,000 settlement, especially with me recommending against it, so we hold out and prepare for trial. Five days before our scheduled trial date, the attorneys for both sides are required to appear for the Trial Readiness Conference. This is the date that the parties announce whether they are ready to proceed or are urging some good cause for a continuance of the trial date. It is also an opportunity for the judge to tell counsel that the matter will be continued because of the court's congested calendar, priority given to some older and dustier case, or just to further harass counsel.
This particular conference, as I will soon learn, is strictly for the purpose of harassing counsel, and Judge Carswell is in rare form. He leans back in his chair and purses his lips, signaling his readiness to impart some judicial wisdom. Doug Ferguson and I occupy the two visitor chairs on the other side of his wide walnut desk and wait for Carswell to complete his contemplation and then break the silence. When he speaks, we have no idea whether it would be about the file on his desk, our case, or the Lakers' latest standings. Carswell leans forward and nods, having come to terms with himself.
“Mr. Winslow and Mr. Ferguson, I don't believe that you have taken my instructions seriously enough.” He sits back and waits for us to consider this, as if he has spoken a complete thought.
“Excuse me, Your Honor?” I reply.
“I asked the two of you to do the work it would take to settle this case. I don't know if the problem is someone's ego, or if you're not working hard enough, but I am not satisfied. So here is what we will do about it.” He paused, apparently to allow us to contemplate our mutual shortcomings. “Starting now you will both be here for trial, with your respective clients, every day, all day long, until one of two things happen: either we can start trial, or you can settle this case. I suggest you spend each moment productively. Good-bye, gentlemen. I have a jury waiting. Talk to you later in the morning.”
I spend the next two days, between 8:30 a.m. and 5:00 p.m., sitting in conference rooms with Doug Ferguson, exchanging occasional offers and periodic barbs, while evenings are spent focusing on all the work I couldn't do during the day. When I get home late at night, Lisa and the kids are asleep. After two full days, the insurance carrier raises its offer to $70,000, and we reduce our settlement demand to $150,000. Neither side is moving any further.
On Friday morning, Judge Carswell calls us into chambers, waves us into chairs, and glowers at us silently. After a time calculated to build the tension, Carswell shakes his head and says, “I gave you gentlemen every opportunity to get this case resolved, and you didn't do it. Is that right?” His tone makes clear his level of disappointment in us as human beings.
“We are not able to settle the case, Your Honor,” I offer.
He shrugs. “We have a jury panel on the way up. I want the jury sworn today, opening statements Monday morning.” With that he waved us off dismissively and stared at the pretrial documents on his desk. It was our fault he was going to have to try our case, and Carswell was pissed. We spent the afternoon selecting the jury. The process was complete and the jury sworn by 6:30 p.m.
I spent the weekend in the office, trying to catch up with an in-box that consumed two chairs, and attempting to return a handful of messages to attorneys who were not smart enough to be at home with their families for the weekend. When this trial was over, I would have some serious apologizing to do. Lisa was always understanding when I disappeared into trial mode, missing meals and freeway off-ramps while I repeatedly spoke and adjusted my opening statement in empty rooms and cars, but I knew it took a toll on her; and on us.
* * *
January 18, 2016
On Monday morning, I rise to address the newly impaneled jury.
“May it please the court, counsel, ladies and gentlemen of the jury. You know from the jury selection process that this case involves sexual harassment issues. The undisputed evidence will show you that Linda Darnell was an employee of the defendant for seven years, and her performance throughout was excellent, as recognized by the defendant's evaluations of her work, bonuses, merit raises, and countless accolades she received. This case is not about her performance. This case is about the rights of a good employee to be free from intrusion into her personal life, to be free from sexual and demeaning comments and to be free of unwelcome and offensive touching by her boss. It is about the right to be free from statements that your career is conditioned on “putting out.” And it is about the company's obligation to promptly investigate and take all steps to make sure sexual harassment is immediately stopped.
“The evidence will show you that Linda Darnell was subjected to ongoing verbal and physical harassment by her supervisor, that the company had the opportunity to stop that conduct but didn't make it stop. While Ms. Darnell attempted to do her job, the harassment continued for almost two years, even though Ms. Darnell complained on three separate occasions. The evidence will show you that no one listened, and, as a result, the conduct continued and worsened.
“You will hear Ms. Darnell's supervisor, Carl Chambers, deny that he inappropriately touched Ms. Darnell, that he ever made sexual remarks to her and that he never conditioned her future or career upon sex. An important part of your job is to weigh the credibility of the testimony you hear, so keep that in mind when you hear the denials by Mr. Chambers. Assess his credibility when you hear the testimony of other employees who will tell you of specific incidents that they witnessed, which are inconsistent with Mr. Chambers's across-the-board denials. These coemployees have the courage to come forward in the face of the fear of how their own careers might be affected, and with nothing at stake for them but the truth. These employees will tell you that they witnessed specific inappropriate touching and sexual statements: the same ones Mr. Chambers will tell you never happened. And some will tell you that they heard Ms. Darnell ask him to stop these behaviors. All Ms. Darnell wanted was the right to do her job at the same professional level she always had, without being groped and without hearing about what he wanted to do to her and how good it would feel. Chambers wouldn't stop, and the company didn't care enough to stop him or even to properly investigate.”
The jury is attentive as I describe what the evidence will show: the sexual statements regularly tossed out by Chambers about her body and her sex life and how he could make it so much better, his periodic touching and rubbing of her legs and buttocks, Linda Darnell's complaints to management, and, finally, the toll taken on Linda Darnell coming to work in this environment for two full years.
Doug Ferguson then describes what sounded like a different case: long-suffering supervisor faced with false charges and bravely moving forward to do his job. He urged the jury to consider that two of the coemployee witnesses they would hear no longer work at the company and had axes to grind, which he asserted was the real motivation for such testimony. This one I like, because I knew he can't prove it. I scribble furiously to record his statements in my notes, and I will order the transcript of his opening statement. When he doesn't provide proof of the “axe to grind,” I will quote him to the jury in my closing argument, reminding them of what the defense promised to show, and what never was shown. Ferguson tells the jury that Linda Darnell was a willing participant in sexual conversations around the office, and now sought to turn these conversations to her advantage. He assures them that she had no real injury. He then thanks the jury and sits down. I watch their faces as he spoke his concluding words and like what I see: skepticism.
On the ensuing break, the insurance company's offer was raised to eighty-five thousand dollars, which we rejected. When we returned from break, Linda Darnell took the stand and answered questions about Chambers's daily behaviors, her complaints, the compan
y's repeated statements that they would investigate, and their failure to ever get back to her. She was even better than she had been in our pretrial dry runs. Chambers was up next and offered his well-rehearsed denials, which weren't bad either. I then proceed to call four witnesses who had all seen or heard actions and words by Chambers that are inconsistent with his denials. After the fourth witness, the court admonishes the jury not to speak of the case until we return at 9:00 a.m., and recesses for the day.
Ferguson walks over to me and suggests we speak for a few minutes. I know it is good news because he looks like he is about to choke on his words. Fifteen minutes later, we settle the case for $200,000.
The settlement is put on the record before the jury is called in, and Judge Carswell is now in an uncharacteristically good mood. “I want to thank both counsels for the hard work in achieving a resolution of this case. In my opinion, this is a settlement that was fair to both sides.” I am amused because this was the same insightful purveyor of justice who thought I should take forty thousand and run, just a couple of weeks ago.
Judge Carswell then has the bailiff return the jury to the box. “Ladies and gentlemen, I have some good news. The parties have now reached a settlement agreement in this matter, and it was your preparedness to serve as jurors that made this possible. You are dismissed, and the court and the parties thank you for your service.”
As we walk from the courthouse, Linda Darnell expresses her relief that it is over and thanks me profusely and gives me a hug. She is grateful, happy, and relieved in equal proportions. She wears a big smile, and I am reminded why I like this job so much. There is nothing like a happy client, smiling ear to ear, with a sense that they actually found justice, turned loose in the world to sing the praises of their favorite lawyer. The legal community needs more of those.
[2017] The Whistleblower Onslaught Page 4
