If his father and mother were still alive, David’s progression toward greed would not have surprised them. They knew their son. Others who met him after he’d reached adulthood would only see a bizarre jovial sort of fellow, a skilled artisan of financial combat who lurked in waiting for his prey. Compensation for self-loathing became his obsession. Projecting his loathing onto others, taking their spirit down to a level as low as his own, destroying his victims financially, became a source of immense joy for him. He saw life and its souls as players in a great game, all arrayed as opponents and victims-to-be. He believed in the adage that all was fair in love and war, especially financial war.
He engaged in financial combat outside the boundaries other participants in financial squabbles respect. His objectives were to never seek fair resolutions of disputes. Satisfaction for him was only realized by the destruction of the opponent. The feeling he craved to savor was the same feeling of power he’d felt as a child when tearing the wings off flies. David worked as hard off court as on court in his efforts to ravage an opponent. Wives, children, business associates of the opponent, organizations, charities, and worthy causes supported by his opponent were all fair game in his quest to demean and destroy. Libel, slander, destruction of property, threats against friends and supporters were all in play. He defined the rules in the games he played, not society and its norms, and most laughably not the courts. Those who did engage David in financial combat got to know him well. Not the jovial, helpful friend he pretended to be, nor the understanding and respected businessman his public relations efforts pretended him to be, but a vicious, greed-obsessed, vindictive malcontent who made his destructive presence felt.
It was to be an eventful Friday afternoon and weekend for Bob. He had plans to go to the mountains, but that was not fated to happen that weekend. David called and asked him to come into his office. When he entered, David stood facing him, not at all like the first time they met when David sat in his swivel throne chair with his back turned to his guest. The men were partners now, so there was more conviviality to this fateful meeting.
David was brimming with cheerfulness as he expressively motioned for Bob to sit in the middle guest chair in the semicircular array of audience chairs. He took a seat next to Bob in an audience chair, something Bob had never seen him do before.
“Here’s an agreement I’d like you to sign,” David began. “It’s necessary to give us more flexibility in growing the firm. For a time, I’m going to remove you as an officer and director of the operating companies and have you focus on retail sales. I’m giving you a very lucrative contract. It even gives you the entire underwriting concession for your retail sales. If you work hard like you always do, I believe you’ll make an even greater income than you’re making now, especially since wholesaling is going slowly. You have a chance to make even more money this way, plus you can be home in Plaintown more.”
Bob was shocked. Perhaps Marty felt the same sense of shock when David ambushed her with his lethal grip and ether-soaked rag. But in Bob’s case, David made a tactical mistake. The leopard within him failed to plan a fatal ambush for Bob and instead decided upon a paper one.
“Well, let me read through it,” Bob said. David shoved a pen in Bob’s face.
“It’s just a bunch of legal mumbo jumbo. I assure you that nothing in this changes things between you and me. It’s lawyer stuff, just trust me. Go ahead and sign it.”
“Just let me read for a minute.”
As Bob read the proposed representative’s contract, he noted the release language. It stated that there had never been any prior deals or agreements between them, that this agreement was their full and complete understanding.
“Wait a minute,” he said. “There’s a release in here. This would release you from our deal, the one I’ve relied upon to work all these past years building the fund, the deal I took at your urging and the one we made which took me on a whole different career path. By signing this, I’d be saying the sun never rose and the buffalo were never present on the plains. Remember the codicil you showed me in the bank vault? Have you lost your mind?”
“No, I haven’t lost my mind. The lawyers just want uniformity for the regulators. We still have our deal. Nothing changes that. Just sign this damn thing and let’s get this over with.”
Bob leveled a skeptical gaze at David. “No.”
“What do you mean, no?” David’s jaw dropped. For an instant he thought he’d been caught flat-footed once again like when he was caught stealing cookie money from neighborhood housewives.
Bob detected a hint of apoplexy from his now former mentor and friend. There was before him a petulant child in a man’s body, straining at his furthest boundaries of mental projection, insisting his will upon a subordinate junior, and being told no. It was simply unfathomable to David that his commands would be refused.
“I want to take it home with me and read it before I sign it, and then I’ll get back to you.” With that, Bob took the agreement with him and walked toward the door.
“When?” David demanded.
“When I decide to get back to you,” Bob shot back. “That’s when.”
During the following week, Bob met with Solomon Slyman, an attorney who practiced civil litigation. Thus began a lawsuit that was to become one of the nation’s defining legal cases on the elements of fraud, and in cases involving the use of the Statute of Wills as a defense against claims of fraud in the inducement. It was to be the beginning of a battle royal.
ASSUMPTIONS AND BARGAINS
Any rabbi worth his salt will tell his congregant to “never assume,” properly admonished with an accompanying finger wag in front of the listener’s nose. Never assume means what it says. Never assume you have all your bases covered in a deal. Never believe you know everything there is to know about something or someone, for to assume based upon what your experience tells you or upon what someone has passed along to you can be your undoing. Assuming falsely is born of hubris and overconfidence when those two tricksters are paired with underestimation. Never assume you know the outcome of a venture before you embark upon it. Another way of putting it is to say “never underestimate your adversary.” The military has a succinct way of terming it: “All battle plans become obsolete as soon as the first shot is fired.”
From the outset of Bob’s Faustian bargain with David, David always assumed he could never be held to perform his own part of the deal. The assumptions he relied upon were multifaceted. First of importance among all his assumptions was the fact that the maker of a will or a codicil to a will has the freedom to change it. David’s confidence in this assumption was ironclad, for he had independently of Old Mac consulted with one of Plaintown’s most prestigious law firms. That firm’s senior partner, whose practice was trusts and estates, assured David that a man had every right to change his will or a codicil to his will at any time and for any reason. Otherwise, he comforted David, testators could be cheated by those whom were promised an inheritance conditioned upon a performance not earned. David, as was his nature, never revealed to this lawyer that he had shown the codicil to Bob to cement their deal, or that he had made an even earlier pledge to Marvin to leave the businesses to Israel.
A second assumption was that Bob would never be able to produce a copy of the codicil at trial, should matters ever get that far. In the event the codicil ever ended up as evidence in a courtroom, based upon the Statute of Frauds, the only written evidence of a bargain between the pair would be a standard Registered Representatives contract because Bob did not possess an actual copy of the codicil. In that eventuality, the dispute forthcoming would devolve into a contest of who said what, and the rep contract would be determinate. No judge could instruct a jury otherwise.
The third assumption was that Bob would never be able to afford a protracted legal battle and, even if he could, the battle would leave him so depleted he’d have to settle for pennies on the dollar for his claims. David believed a basic axiom of America’s legal sy
stem was that it was set up to ensure the rights of the defense, that the plaintiff had the burden to carry the case forward, and that burden could be made expensive. David had great faith in the ironclad principle that, in America, the rich could crush the poor.
David’s fourth assumption was perhaps his most sinister. He counted upon the avarice and low morality of Bob’s former secretary, Judith. Should a battle result from his unilaterally breaking his deal with Bob, he believed he could buy Judith’s loyalty. By offering her money and introducing her to some unattached wealthy male friends of his, he believed he could bribe Judith, a woman he always regarded as a bitch who would do anything for money, including turning on her former boss. Thus David could rely on her to fabricate testimony. The possibilities for counterclaims dragging out litigation for years plus a poisonous witness to rebut Bob’s case assured it would be a lengthy wrestle in a mud pit. Bob would break and settle cheap.
David held close within his heart his unshakeable fifth assumption that all men who strived for betterment of their personal circumstances were prone to suspend their morality until after they had seized the fruits of their desire. Judges’ decisions, lawyers’ commitment to their clients, witnesses who would swear upon a Bible to tell the truth, all who waltzed into and out of the courtrooms, and all who met in conferences before and after motions, pleadings, and decisions were mortal men with all their attendant weaknesses and foibles. David looked forward to litigation with confidence.
Bob had three assumptions of his own at the outset of the conflict. His first was that Old Mac would be true to his word, and that Mac was the personification of the soul sought by Diogenes in an otherwise grimy, slime-infested world. As a precaution that David might somehow lose or misplace the codicil, since he’d stated he was terrible at keeping track of paperwork, Bob had already apprised Mac of his situation in the hope Mac would retain a codicil copy in the event of David’s memory lapse. Unbeknownst to Bob at the time, there was no memory lapse precipitating David’s actions; rather they were consistent with the perpetration of a calculated, blatant fraud. Bob could now only trust that Old Mac was true to his character and would keep a copy of the codicil. It was a tenuous assumption yet to be proven true.
The nature of a fraud can go beyond the simple act of one party lying to another. Fraud can easily don the cloak of conspiracy by drawing in multiple actors at different times along the timeline of the fraud. People necessary to corroborate the fraud can often be bought by the fraud actor to bend the truth, testify falsely, create false records, conceal or lose important evidence, and so on. Bob could only hope that Old Mac was an honorable man. Now that reposed hope caused him great anxiety.
Bob recalled a conversation he once had with another lawyer on the topic of legal ethics. The man had explained a lawyer’s ethical dilemma by way of personal example. The lawyer’s client had taken the lawyer to lunch. The bill was five hundred dollars because wines were involved. The client pulled out from his wallet five one-hundred-dollar bills for the tab and placed them on the table; then the client pulled out another hundred for a tip and rested that bill separate on the table. The client left first and the lawyer remained at the table. The lawyer picked up the hundred-dollar bill his client left for the tip and replaced it with a ten-dollar bill, but the lawyer noticed that the hundred was freshly printed and was actually two one-hundred-dollar bills stuck together. The lawyer pondered his ethical dilemma, which was whether or not to tell his partners about the second hundred. Bob shuddered at the thought that Mac might, like so many others, place his ethics in a dark locked closet.
Bob’s second assumption was horribly flawed. He believed that David had probably succumbed to syphilis or some such malady. He could not fathom, despite David’s changes in behavior toward him ever since he’d rejected the older man’s homosexual advances, that David had befriended him at the outset of their relationship with the full intention of destroying his career and taking from him the fullest measures of his life’s work and talents. At the outset of battle, it was inconceivable to Bob that his good best friend, his senior mentor, and self-proclaimed father figure had plotted against him all the while, over all the years, and was now figuratively thrusting a knife into his back. He actually felt a modicum of pity for his once best friend that David could fall prey to such inconceivably vile conduct.
That empathetic feeling that the defrauded has for the perpetrator of the fraud is the hallmark of a truly accomplished con artist, one that shows no empathy for his victim or remorse for his deed. In fact, the true fraudster feels he’s entitled to screw others, as if it were his God-given right. Perhaps it was so, for God did create Satan as one of his angels, one God bantered with, tested Job with, and one God somehow must’ve believed was necessary to improve the human condition, through its endless trials and tribulations with evil personified.
Bob’s third assumption was actually more of a presumption. Most secretaries stayed loyal to their bosses if the relationship was amicable, as Bob’s was with Judith. Other themes, however, tended to encroach upon the weak of moral fiber. “Show me the money” seemed to have equal cache with loyalty and honesty in the bosoms of the greedy.
Solomon’s initial complaint included a motion for a restraining order against the disputed companies and against David for the purposes of preserving evidence in discovery. The motion requested that files and records are retained and Bob not be dismissed from the firm. The judge assigned to the case was a bespectacled gray beard with a reputation for harsh maximum punishment when he decided criminal sentencings. A general flavor of disdain for attorneys spiced the judge’s utterances, both from his courtroom bench and in his spartan chambers with its metal audience folding chairs.
White-haired, mean-spirited, and impatient, Judge Sandbone sat at his chamber’s desk before eleven lawyers, named by defense counsel as all those known to the defendant and the firm’s corporate secretary to have performed legal work of any kind for the defendant or the firm during the prior fifteen years. The day before, the judge had issued each of them a summons to appear in person in his chambers at 8:00 a.m. They now all sat before him, mystified and with some trepidation as he took his chair, opened his file, and read from the complaint.
“Any of you gentlemen recall preparing a codicil to a will for a David Sustack, leaving the advisory and underwriting companies of UGGA Universal to a man named Bob something or other?”
A silence ensued as the lawyers looked around the room at each other. At first it appeared there would be no response. Finally, from the middle of the second row of seats, after assuring himself that no one else would first raise their hand, Old Mac raised his.
“I believe I prepared such a document, Your Honor,” Mac stated.
“Do you have it? Did you retain a copy?”
“It’s been a number of years, Your Honor, but yes, I do believe I retained a copy of that codicil in my files.”
“I hereby order you to produce that document to me forthwith. Bring it to me in my chambers here no later than one o’clock today. Let no one else see it or touch it before presentment to this court. Speak of this matter to no one.”
“Yes, Your Honor,” Old Mac replied.
“But, Your Honor, that document, if it’s even authentic, hasn’t been entered into evidence or attached to any affidavit,” responded the attorney for David who was present.
“Never mind formalities. This is my own pre-discovery request from this bench. I want to see what kind of bullshit I’m going to be dealing with. Do you want to note any objection to that?” Sandbone’s staccato voice was accompanied with a glare and a snarl at his irritator.
“No, sir.”
“All right then, gentlemen. The rest of you are dismissed. Let’s have you, you, and you back here at one o’clock,” he said as he pointed to Solomon, Old Mac, and the lawyer for David. Bob’s complaint survived the opposition’s first efforts to kill it.
In one respect a lawsuit is somewhat like a track runner at t
he starting blocks. If the runner stumbles out of the blocks, likely his race will be lost at the outset. But if he has alacrity of mind and foot combined, if he anticipates exactly the instant of the firing of the starting gunshot, then he has the jump on his competitors and great odds to run a good race.
The second chance to kill the complaint came at the one o’clock hearing in chambers. There, Sandbone, after reading the draft of the codicil and noting that it matched identically the language in Bob’s complaint, offered the defense a perfect escape hatch, a chance to make their opponent stumble at the start.
“This looks legitimate to me. I’m going to allow discovery to go forward and grant the motion to restrain during discovery, subject to counsel’s request for bond.”
This seemingly innocuous proposal from the judge was a flubbed opportunity by the defense. Solomon noted the defense counsel was caught flat-footed and had no number in mind, nor had he conferred with his client beforehand should this possibility of discovery and bond proposal arise.
Solomon, ever the fastest afoot, looked at the defense counsel and shrugged as if the request were a mere formality. Then he spoke. “Sure, Your Honor, we’ll give the court a bond. How about fifty bucks?” He looked at the defense. “You got any problem with that?”
When The Butterflies Come Page 36
