The Litigators

CHAPTER 37

In the matter of Klopeck v. Varrick Labs, the first crisis was the failure of the plaintiff to show up for court. When informed of this in chambers, Judge Seawright was less than pleased. Wally tried to explain that Iris had been rushed to the hospital in the middle of the night, complaining of shortness of breath, hyperventilation, hives, and one or two other afflictions.

Three hours earlier, as the Finley amp; Figg lawyers worked frantically around the table in a predawn session, a call came on Wally’s cell. It was Bart Shaw, the malpractice lawyer who was threatening to sue if the Krayoxx cases were mishandled. Apparently, Iris’s son, Clint, had found a lawyer’s phone number and called to say his mother was in the ambulance and headed for the hospital. She would not be able to attend the trial. Clint had called the wrong lawyer, and Shaw was just passing along the news.

“Gee thanks, asshole,” Wally had said as he punched the disconnect.

“When did you first learn that she was taken to the hospital?” Judge Seawright was now asking.

“A few hours ago, Judge. We were at the office preparing, and her lawyer called.”

“Her lawyer? I thought you were her lawyer.”

David and Oscar wanted to slide under the table. Wally’s brain was already fried and he had taken two sedatives. He looked upward at the ceiling and tried to think of a quick way out of this blunder. “Yes, well, you see, Judge, it’s complicated. But she’s at the hospital. I’ll go see her during the lunch break.”

Across the table, Nadine Karros maintained a look of casual concern. She knew everything about Bart Shaw’s bullying of Finley amp; Figg. In fact, she and her associates had located Shaw and recommended him to Nicholas Walker and Judy Beck.

“You do that, Mr. Figg,” Seawright said sternly. “And I want to see some report from her doctors. I suppose if she’s unable to testify, then we’ll be forced to use her deposition.”

“Yes sir.”

“Jury selection should move right along. I anticipate seating the jury by late this afternoon, so you’re first up in the morning, Mr. Figg. Ideally, the plaintiff begins its case by taking the stand and talking about the dearly departed.”

It was certainly thoughtful of Judge Seawright to tell them how to try their case, Wally thought, but his tone was condescending.

“I’ll talk to her doctors,” Wally said again. “That’s the best I can do.”

“Anything else?”

All the lawyers shook their heads, then left the chambers. They filed into the courtroom, which had filled up nicely in the past fifteen minutes. To the left, behind the plaintiff’s counsel table, a bailiff was herding the sixty jurors into the long, padded benches. To the right, several groups of spectators were milling about, waiting, whispering. Seated near the back, together, were Millie Marino, Adam Grand, and Agnes Schmidt, three of Finley amp; Figg’s other victims, present out of curiosity and perhaps looking for answers since their guaranteed $1 million jackpots had suddenly vanished. They were with Bart Shaw, the vulture, the pariah, the lowest scum to be found in the legal profession. Two rows in front of them sat Goodloe Stamm, the divorce lawyer hired by Paula Finley. Stamm had already heard the gossip and knew the serious trial lawyers had jumped ship. Still, he was curious about the case and even hopeful Finley amp; Figg could pull off a miracle and generate some money for his client.

Judge Seawright called things to order and thanked the jurors for their patriotic duty. He gave a thirty-word summary of the case, then introduced the lawyers and the courtroom personnel who would take part in the trial-the court reporter, the bailiffs, the clerks. He explained the absence of Iris Klopeck and introduced Nicholas Walker, the corporate representative for Varrick Laboratories.

After thirty years on the bench, Harry Seawright knew a thing or two about selecting juries. The most important element, at least in his opinion, was to keep the lawyers as quiet as possible. He had his own list of questions, one tweaked over the years, and allowed the lawyers to submit inquiries to him. But he did the bulk of the talking.

The extensive screening questionnaire streamlined the process. It had already eliminated jurors who were over sixty-five, blind, or suffering from a disability that would affect their service, and those who had served in the past twelve months. It had flagged those who claimed to know something about the case, or the lawyers, or the drug. As the judge went through his questions, an airline pilot stood and asked to be excused because of his schedule. This prompted a surprisingly harsh lecture from Judge Seawright about civic duty. When the pilot sat down, adequately scorched, no one else dared to claim they were too busy to serve. A young mother with a Down’s child was excused.

In the previous two weeks, David had talked to at least a dozen lawyers who had tried cases before Seawright. Every judge has his quirks, especially federal ones because they are appointed for life and their actions are seldom questioned. Every lawyer had told David to just lie low during jury selection. “The old man will do a thorough job for you,” they said, over and over.

When the pool was down to fifty, Judge Seawright picked twelve names at random. They were directed by a bailiff to the jury box, where they filled the comfortable chairs. Every lawyer was scribbling away. The jury consultants were on the edges of their seats, practically gawking at the first twelve.

The great debate had been, what’s the model juror for this case? On the plaintiff’s side, the lawyers preferred heavy people with habits as slovenly as the Klopecks’, preferably folks battling high cholesterol and other lifestyle-inflicted health problems. Across the aisle, the defense lawyers preferred lean, hard, youthful bodies with little patience and sympathy for the obese and afflicted. In the first batch, there was the inevitable mix, though only a couple appeared to spend much time in the gym. Judge Seawright zeroed in on Number 35 because she had admitted reading several articles about the drug. However, it became clear that she was open-minded and could be fair. Number 29’s father was a doctor, and she grew up in a house where “lawsuit” was a dirty word. Number 16 had once filed a lawsuit over a bad roofing job, and this was discussed to the point of forcing yawns. But the judge plowed ahead with his endless questions. When he finished, he invited the plaintiff to quiz the prospective jurors, but only on topics that had not been covered.

Oscar walked to the podium, which had been turned to face the jury box. He offered a warm smile and said good morning to the jurors. “I have just a couple of questions,” he said softly, as if he had done this many times.

Since the eventful day David Zinc had stumbled, literally, into the offices of Finley amp; Figg, Wally had said on numerous occasions that Oscar was not easily intimidated. Perhaps it was his rough childhood, his days as a tough street cop, or his long career representing freaked-out spouses and injured workers, or maybe it was just his pugnacious, Irish composition, but whatever the mix Oscar Finley had a very thick skin. Perhaps, too, it was the Valium, but when Oscar chatted with the twelve potential jurors, he managed to hide the jitters and nerves and outright fear and convey an air of calm and confidence. He asked a few benign questions, solicited a few feeble responses, then sat down.

The firm had taken a first baby step in court without a disaster, and David relaxed a little. He was comforted by the fact that he was third down the line-not that he had much confidence in the two in front of him-but at least they were on the firing line and he was partially hidden back in the trenches. He refused to glance over at the gang from Rogan Rothberg, and they seemed genuinely unconcerned about him. This was game day and they were the players. They knew they would win. David and his partners were going through the motions, stuck with a case that no one wanted, and dreaming of the end.

Nadine Karros addressed the potential jurors and introduced herself. There were five men and seven women in the jury box. The men, ages twenty-three to sixty-three, sized her up and approved. David concentrated on the women’s faces. It was Helen’s theory that the women would have mixed and complicated feelings about Nadine Karros. First, and most important, there would be pride that a woman was not only in charge but, as they would soon realize, also the best lawyer in the courtroom. For some, though, the pride would soon yield to envy. How could one woman be so beautiful, stylish, thin, yet intelligent and successful in a man’s world?

The first impressions were generally good, judging from the faces of the women. The men were all in.

Nadine’s questions were more involved. She talked about lawsuits, the culture of litigation in our society, and the routine news of outrageous verdicts. Did this ever bother any of the jurors? For a few, yes, and so she probed deeper. Number 8’s husband was a union electrician, generally a safe bet for any plaintiff suing a large corporation, and Nadine seemed to take a special interest in her.

The Finley amp; Figg lawyers watched Nadine carefully. Her striking appearance would probably be the only highlight of the trial for them, and even that would get old.

After two hours, Judge Seawright ordered a thirty-minute recess so the lawyers could compare notes, meet with their consultants, and start making selections. Each side could assert that any juror should be excluded for good cause. For example, if a juror claimed to be biased for some reason, or had once been represented by one of the law firms, or claimed to hate Varrick, then the juror would be excused for good cause. Beyond that, each side had three peremptory challenges that could be used to exclude a juror for any reason, or no reason.

After thirty minutes, both sides requested more time, and Judge Seawright adjourned the proceedings until 2:00 p.m. “I assume you will check on your client, Mr. Figg,” he said. Wally assured him that he would.

Outside the courtroom, Oscar and Wally quickly decided that David would be sent to find Iris and determine if she was able, and willing, to testify first thing Tuesday morning. According to Rochelle, who had spent the morning haggling on the phone with hospital receptionists, Iris had been taken to the emergency room at Christ Medical Center. When David arrived there at noon, he learned that she had left an hour earlier. He raced away, in the direction of her home near Midway Airport, and he and Rochelle called her home number every ten minutes. There was no answer.

The same monstrous orange cat was curled up at the front door, one sleepy eye watching David as he cautiously approached along the sidewalk. He remembered the barbecue grill on the front porch. He remembered the aluminum foil covering the windows. He had made this same walk ten months earlier, the day after his escape from Rogan Rothberg, following Wally and wondering if he’d lost his mind. He now asked himself that again, but there was little time for navel-gazing. He banged on the front door and waited for the cat to either move or attack.

“Who is it?” came a male voice.

“David Zinc. Your lawyer. Is that you, Clint?”

It was. Clint opened the door and said, “What are you doing here?”

“I’m here because your mother is not in court. We’re in the process of picking a jury, and there is a federal judge who’s somewhat upset because Iris skipped court this morning.”

Clint waved him in. Iris was laid up on the sofa, under a stained and tattered quilt, eyes closed, a beached whale. The coffee table next to her was covered in gossip magazines, an empty pizza box, empty bottles of diet soda, and three jars of prescription drugs. “How is she?” David whispered, though he had a general idea.

Clint shook his head gravely. “Not good,” he said, as if she would die any minute.

David backed into a dirty chair covered in orange cat fur. He had no time to waste and despised being there anyway. “Iris, can you hear me?” he said at full volume.

“Yes,” she answered without opening her eyes.

“Listen, the trial is under way, and the judge really needs to know if you plan to show up tomorrow. We need you to testify and tell the jury about Percy. It’s sort of your job as the representative of his estate and spokesman for the family, you know?”

She grunted and exhaled, a painful racket that came from deep in her lungs. “Didn’t want this lawsuit,” she said, her words slurred. “That creep Figg came here and talked me into it. Promised me a million dollars.” She managed to open her right eye and attempted to look at David. “You came with him, now I remember. I was just sitting here minding my own business, and Figg promised me all that money.”

Her right eye closed. David pressed on: “You saw a doctor this morning at the hospital. What did he say? What’s your condition?”

“You name it. Mainly nerves. I can’t go to court. Might kill me.”

The obvious finally occurred to David. Their case, if it could still be called that, would be damaged even more if Iris made an appearance before the jury. The rules of procedure allowed that in the event a witness cannot testify for some reason-death, sickness, imprisonment-the deposition could be edited and presented to the jury. As weak as her depo was, nothing could be as bad as Iris live and in person.

“What’s your doctor’s name?” David asked.

“Which one?”

“I don’t know, pick one. The one you saw this morning at the hospital.”

“I didn’t see one this morning. Got tired of waiting at the emergency room, and so Clint brought me home.”

“That’s about five times in the past month,” Clint said, with an edge.

“Not so,” she fired back.

“She does it all the time,” Clint explained to David. “She’ll walk to the kitchen, claim she’s tired and short of breath, next thing you know she’s on the phone calling 911. I’m pretty sick of it, myself. It’s always me who has to drive to the damn hospital and haul her back here.”

“Well, well,” Iris said, both eyes open, glazed but angry. “He was a lot nicer when all that money was on the way. Couldn’t have been sweeter. Now look at him, beating up his poor sick momma.”

“Just stop calling 911,” Clint said.

“Are you going to testify tomorrow?” David asked firmly.

“No, I can’t. I can’t leave this house, otherwise my nerves will melt down.”

“It won’t do any good, will it?” Clint asked. “The lawsuit is a loser. That other lawyer, Shaw, says you guys have messed up the case so bad can’t nobody win it.”

David was about to return fire when he realized that Clint was right. The lawsuit was a loser. Thanks to Finley amp; Figg, the Klopecks were now in federal court with a case that was hopeless, and he along with his partners was simply going through the motions and looking forward to the end.

David said good-bye and left as quickly as possible. Clint followed him outside, and as they walked to the street, he said, “Look, if you need me, I’ll come to court and speak for the family.”

If an appearance by Iris was the last thing their case needed, a cameo by Clint was certainly next to last. “Let me think about it,” David said, but only to be nice. The jury would get more than enough of the Klopecks through Iris’s video deposition.

“Any chance we’re gonna get some money?” Clint asked.

“We’re fighting, Clint. There’s always a chance, but no guarantees.”

“Sure would be nice.”

A t 4:30, the jury was selected, seated, sworn, and sent home with instructions to return at 8:45 the following morning. Of the twelve, there were seven women, five men, eight whites, three blacks, and one Hispanic, though the jury consultants felt as if race would not be a factor. One woman was moderately obese. The rest were in reasonably good shape. Their ages ranged from twenty-five to sixty-one, all had finished high school, and three had college degrees.

The Finley amp; Figg lawyers piled into David’s SUV and headed back to the office. They were exhausted, but oddly satisfied. They had gone toe-to-toe with the power of corporate America and, so far, had not crumbled under the pressure. Of course, the trial hadn’t really started. No witness had been sworn. No evidence had been offered. The worst was yet to come, but for the moment they were still in the game.

David gave a detailed account of his visit to see Iris, and all three agreed she should be kept away from the courtroom. Their first task of the evening was to somehow obtain a letter from a doctor that would satisfy Seawright.

There was much to be done that evening. They bought a pizza and took it to the office.