The Street Lawyer

The Street Lawyer Page 37

DeOrio's courtroom was on the second floor of the Carl Moultrie Building, and getting there took us close to Judge Kisner's, where my grand larceny case was awaiting the next step in a cumbersome process. The halls were busy with criminal lawyers and low-end ham-and-eggers, the ones who advertise on cable TV and bus stop benches. They huddled with their clients, almost all of whom looked guilty of something, and I refused to believe that my name was on the same docket with those thugs.

The timing of our entry was important to me--silly to Mordecai. We didn't dare flirt with tardiness. DeOrio was a fanatic for punctuality. But I couldn't stomach the thought of arriving ten minutes early and being subjected to the stares and whispers and perhaps even the banal pregame chitchat of Donald Rafter and Arthur and hell only knew who else they would bring. I had no desire to be in the room with Tillman Gantry unless His Honor was present.

I wanted to take my seat in the jury box, listen to it all, and not be bothered by anyone. We entered at two minutes before one.

DeOrio's law clerk was passing out copies of the agenda. She directed us to our seats--me to the jury box, where I sat alone and content, and Mordecai to the plaintiff's table next to the jury box. Wilma Phelan, the trustee, was already there, and already bored because she had no input into anything about to be discussed.

The defense table was a study in strategic positioning. Drake & Sweeney was clustered at one end; Tillman Gantry and his two lawyers at the other. Holding the center, and acting as a buffer, were two corporate types from RiverOaks, and three lawyers. The agenda also listed the names of all present. I counted thirteen for the defense.

I expected Gantry, being an ex-pimp, to be adorned with rings on his fingers and ears and bright, gaudy clothing. Not so. He wore a handsome navy suit and was dressed better than his lawyers. He was reading documents and ignoring everyone.

I saw Arthur and Rafter and Nathan Malamud. And Barry Nuzzo. I was determined that nothing would surprise me, but I had not expected to see Barry. By sending three of my fellow ex-hostages, the firm was delivering a subtle message--every other lawyer terrorized by Mister survived without cracking up--what happened to me? Why was I the weak sister?

The fifth person in their pack was identified as L. James Suber, an attorney for an insurance company. Drake & Sweeney was heavily insured against malpractice, but I doubted if the coverage would apply. The policy excluded intentional acts, such as stealing by an associate or partner, or deliberately violating a standard of conduct. Negligence by a firm lawyer would be covered. Willful wrongdoing would not. Braden Chance had not simply overlooked a statute or code provision or established method of practice. He had made the conscious decision to proceed with the eviction, in spite of being fully informed that the squatters were in fact tenants.

There would be a nasty fight on the side, out of our flew, between Drake & Sweeney and its malpractice carrier. Let 'em fight.

At precisely one, Judge DeOrio appeared from behind the bench and took his seat. "Good afternoon," he said gruffly as he settled into place. He was wearing a robe, and that struck me as odd. It was not a formal court proceeding, but an unofficial settlement conference.

He adjusted his microphone, and said, "Mr. Burdick, please keep the door locked." Mr. Burdick was a uniformed courtroom deputy guarding the door from the inside. The pews were completely empty. It was a very private conference.

A court reporter began recording every word.

"I am informed by my clerk that all parties and lawyers are now present," he said, glancing at me as if I were just another rapist. "The purpose of this meeting is to attempt to settle this case. After numerous conversations yesterday with the principal attorneys, it became apparent to me that a conference such as this, held at this time, might be beneficial. I've never had a settlement conference so soon after the filing of a complaint, but since all parties agreed, it is time well spent The first issue is that of confidentiality. Nothing we say today can be repeated to any, member of the press, under any circumstances. Is that understood?" He looked at Mordecai and then at me. All necks from the defense table twisted for similar scrutiny. I wanted to stand and remind them that they had initiated the practice of leaking. We'd certainly landed the heaviest blows, but they had thrown the first punch.

The clerk then handed each of us a two-paragraph nondisclosure agreement, customized with our names plugged in. I signed it and gave it back to her.

A lawyer under pressure cannot read two paragraphs and make a quick decision. "Is there a problem?" DeOrio asked of the Drake & Sweeney crowd. They were looking for loopholes. It was the way we were trained.

They signed off and the agreements were gathered by the clerk.

"We'll work from the agenda," the Judge said. "Item one is a summary of the facts and theories of liability. Mr. Green, you filed the lawsuit, you may proceed. You have five minutes."

Mordecai stood without notes, hands stuck deep in pockets, completely at ease. In two minutes, he stated our case clearly, then sat down. DeOrio appreciated brevity.

Arthur spoke for the defendants. He conceded the factual basis for the case, but took issue on the question of liability. He laid much of the blame on the "freak" snowstorm that covered the city and made life difficult for everyone. He also questioned the actions of Lontae Burton. "There were places for her to go," Arthur said. "There were emergency shelters open. The night before she had stayed in the basement of a church, along with many other people. Why did she leave? I don't know, but no one forced her, at least no one we've been able to find so far. Her grandmother has an apartment in Northeast. Shouldn't some of the responsibility rest with the mother? Shouldn't she have done more to protect her little family?"

It would be Arthur's only chance to cast blame upon a dead mother. In a year or so, my jury box would be filled with people who looked different from me, and neither Arthur nor any lawyer in his right mind would imply that Lontae Burton was even partially to blame for killing her own children.

"Why was she in the street to begin with?" DeOrio asked sharply, and I almost smiled.

Arthur was unfazed. "For purposes of this meeting, Your Honor, we are willing to concede that the eviction was wrongful."

"Thank you."

"You're welcome. Our point is that some of the responsibility should rest with the mother."

"How much?"

"At least fifty percent."

"That's too high."

"We think not, Your Honor. We may have put her in the street, but she was there for more than a week before the tragedy."

"Mr. Green?"

Mordecai stood, shaking his head as if Arthur were a first-year law student grappling with elementary theories. "These are not people with immediate access to housing, Mr. Jacobs. That's why they're called homeless. You admit you put them in the street, and that's where they died. I would love to discuss it with a jury."

Arthur's shoulders slumped. Rafter, Malamud, and Barry listened to every word, their faces stricken with the notion of Mordecai Green loose in a courtroom with a jury of his peers.

"Liability is clear, Mr. Jacobs," DeOrio said. "You can argue the mother's negligence to the jury if you want, though I wouldn't advise it." Mordecai and Arthur sat down.

If at trial we proved the defendants liable, the jury would then consider the issue of damages. It was next on the agenda. Rafter went through the motions of submitting the same report on current trends in jury awards. He talked about how much dead children were worth under our tort system. But he quickly became tedious when discussing Lontae's employment history and the estimated loss of her future earnings. tie arrived at the same amount, $770,000, that they had offered the day before, and presented that for the record.

"That's not your final offer, is it, Mr. Rafter?" DeOrio asked. His tone was challenging; he certainly hoped that was not their final offer.

"No sir," Rafter said.

"Mr. Green."

Mordecai stood again. "We reject their offer, Your Honor. The trends mean nothing to me. The only trend I care about is how much I can convince a jury to award, and, with all due respect to Mr. Rafter, it'll be a helluva lot more than what they're offering." No one in the courtroom doubted him.

He disputed their view that a dead child was worth only fifty thousand dollars. He implied rather strongly that such a low estimation was the result of a prejudice against homeless street children who happened to be black. Gantry was the only one at the defense table not squirming. "You have a son at St. Alban's, Mr. Rafter. Would you take fifty thousand for him?"

Rafter's nose was three inches away from his legal pad.

"I can convince a jury in this courtroom that these little children were worth at least a million dollars each, same as any child in the prep schools of Virginia and Maryland."

It was a nasty shot, one they took in the groin. There was no doubt where their kids went to school.

Rafter's summary made no provision for the pain and suffering of the victims. The rationale was unspoken, but nonetheless obvious. They had died peacefully, breathing odorless gas until they floated away. There were no burns, breaks, blood.

Rafter paid dearly for his omission. Mordecai launched into a detailed account of the last hours of Lontae and her children; the search for food and warmth, the snow and bitter cold, the fear of freezing to death, the desperate efforts to stay together, the horror of being stuck in a snowstorm, in a rattletrap car, motor running, watching the fuel gauge.

It was a spellbinding performance, given off the cuff with the skill of a gifted storyteller. As the lone juror, I would have handed him a blank check.

"Don't tell me about pain and suffering," he snarled at Drake & Sweeney. "You don't know the meaning of it."

He talked about Lontae as if he'd known her for years. A kid born without a chance, who made all the predictable mistakes. But, more important, a mother who loved her children and was trying desperately to climb out of poverty. She had confronted her past and her addictions, and was fighting for sobriety when the defendants kicked her back into the streets.

His voice ebbed and flowed, rising with indignation, falling with shame and guilt. Not a syllable was missed, no wasted words. He was giving them an extraordinary dose of what the jury would hear.

Arthur had control of the checkbook, and it must've been burning a hole in his pocket.

Mordecai saved his best for last. He lectured on the purpose of punitive damages--to punish wrongdoers, to make examples out of them so they would sin no more. He hammered at the evils committed by the defendants, rich people with no regard for those less fortunate. "They're just a bunch of squatters," his voice boomed. "Let's throw them out!"

Greed had made them ignore the law. A proper eviction would have taken at least thirty more days. It would have killed the deal with the Postal Service. Thirty days and the heavy snows would've been gone; the streets would've been a little safer.

It was the perfect case for the levying of punitive damages, and there was little doubt in his mind a jury would agree with him. I certainly did, and at that moment neither Arthur nor Rafter nor any other lawyer sitting over there wanted any part of Mordecai Green.

"We'll settle for five million," he said as he came to an end. "Not a penny less."

There was a pause when he finished. DeOrio made some notes, then returned to the agenda. The matter of the file was next. "Do you have it?" he asked me.

"Yes sir."

"Are you willing to hand it over?"

"Yes."

Mordecai opened his battered briefcase and removed the file. He handed it to the clerk, who passed it up to His Honor. We watched for ten long minutes as DeOrio flipped through every page.

I caught a few stares from Rafter, but who cared. He and the rest were anxious to get their hands on it.

When the Judge was finished, he said; "The file has been returned, Mr. Jacobs. There is a criminal matter pending down the hall. I've spoken to Judge Kisner about it. What do you wish to do?"

"Your Honor, if we can settle all other issues, we will not push for an indictment."

"I assume this is agreeable with you, Mr. Brock?" DeOrio said. Damned right it was agreeable with me. "Yes sir."

"Moving right along. The next item is the matter of the ethics complaint filed by Drake & Sweeney against Michael Brock. Mr. Jacobs, would you care to address this?"

"Certainly, Your Honor." Arthur sprang to his feet, and delivered a condemnation of my ethical shortcomings. He was not unduly harsh, or long-winded. He seemed to get no pleasure from it. Arthur was a lawyer's lawyer, an old-timer who preached ethics and certainly practiced them. He and the firm would never forgive me for my screwup, but I had been, after all, one of them. Just as Braden Chance's actions had been a reflection on the entire firm, so had my failure to maintain certain standards.

He ended by asserting that I must not escape punishment for taking the file. It was an egregious breach of duty owed to the client, RiverOaks. I was not a criminal, and they had no difficulty in forgetting the grand larceny charge. But I was a lawyer, and a damned good one, he admitted, and as such I should be held responsible.

They would not, under any circumstances, withdraw the ethics complaint.

His arguments were well reasoned, well pled, and he convinced me. The folks from RiverOaks seemed especially hard-nosed.

"Mr. Brock," DeOrio said. "Do you have any response?"

I had not prepared any remarks, but I wasn't afraid to stand and say what I felt. I looked Arthur squarely in the eyes, and said, "Mr. Jacobs, I have always had great respect for you, and I still do. I have nothing to say in my defense. I was wrong in taking the file, and I've wished a thousand times I had not done it. I was looking for information which I knew was being concealed, but that is no excuse. I apologize to you, the rest of the firm, and to your client, RiverOaks."

I sat down and couldn't look at them. Mordecai told me later that my humility thawed the room by ten degrees.

DeOrio then did a very wise thing. He proceeded to the next item, which was the litigation yet to be commenced. We planned to file suit on behalf of Marquis Deese and Kelvin Lam, and eventually for every other evictee we could find. DeVon Hardy and Lontae were gone, so there were fifteen potential plaintiffs out there. This had been promised by Mordecai, and he had informed the Judge.

"If you're conceding liability, Mr. Jacobs," His Honor said, "then you have to talk about damages. How much will you offer to settle these other fifteen cases?"

Arthur whispered to Rafter and Malamud, then said, "Well, Your Honor, we figure these people have been without their homes for about a month now. If we gave them five thousand each, they could find a new place, probably something much better."

"That's low," DeOrio said. "Mr. Green."

"Much too low," Mordecai agreed. "Again, I evaluate cases based on what juries might do. Same defendants, same wrongful conduct, same jury pool. I can get fifty thousand per case easy."

"What will you take?" the Judge asked.

"Twenty-five thousand."

"I think you should pay it," DeOrio said to Arthur. "It's not unreasonable."

"Twenty-five thousand to each of the fifteen?" Arthur asked, his unflappable demeanor cracking under the assault from two sides of the courtroom.

"That's right."

A fierce huddle ensued in which each of the four Drake & Sweeney lawyers had his say. It was telling that they did not consult the attorneys for the other two defendants. It was obvious the firm would foot the bill for the settlement. Gantry seemed completely indifferent; his money was not at stake. RiverOaks had probably threatened a suit of its own against the lawyers if the case wasn't settled.

"We will pay twenty-five," Arthur announced quietly, and $375,000 left the coffers of Drake & Sweeney.

The wisdom was in the breaking of the ice. DeOrio knew he could force them to settle the smaller claims. Once the money started flowing, it wouldn't stop until we were finished.

For the prior year, after paying my salary and benefits, and setting aside one third of my billings for the overhead, approximately four hundred thousand dollars went into the pot of gold the partners divided. And I was just one of eight hundred.

"Gentlemen, we are down to two issues. The first is money--how much will it take to settle this lawsuit? The second is the matter of Mr. Brock's disciplinary problems. It appears as though one hinges on the other. It's at this point in these meetings that I like to talk privately with each side. I'll start with the plaintiff. Mr. Green and Mr. Brock, would you step into my chambers?"

The clerk escorted us into the hallway behind the bench, then down to a splendid oak-paneled office where His Honor was disrobing and ordering tea from a secretary. He offered some to us, but we declined. The clerk closed the door, leaving us alone with DeOrio.

"We're making progress," he said. "I've got to tell you, Mr. Brock, the ethics complaint is a problem. Do you realize how serious it is?" "I think so."

He cracked his knuckles and began pacing around the room. "We had a lawyer here in the District, must have been seven, eight years ago, who pulled a similar stunt. Walked out of a firm with a bunch of discovery materials that mysteriously ended up in a different firm, which just so happened to offer the guy a nice job. Can't remember the name."

"Makovek. Brad Makovek," I said.

"Right. What happened to him?"

"Suspended for two years."

"Which is what they want from you."

"No way, Judge," Mordecai said. "No way in hell we're agreeing to a two-year suspension."

"How much will you agree to?"

"Six months max. And it's not negotiable. Look, Judge, these guys are scared to death, you know that. They're scared and we're not. Why should we settle anything? I'd rather have a jury."

"There's not going to be a jury." The Judge stepped close to me and studied my eyes. "You'll agree to a sixmonth suspension?" he asked.

"Yes," I said. "But they have to pay the money."

"How much money?" he asked Mordecai.

"Five million. I could get more from a jury."

DeOrio walked to his window, deep in thought, scratching his chin. "I can see five million from a jury," he said without turning around.

"I can see twenty," Mordecai said.

"Who'll get the money?" the Judge asked.

"It'll be a nightmare," Mordecai admitted.

"How much in attorneys' fees?"

"Twenty percent. Half of which goes to a trust in New York."

The Judge snapped around and began pacing again, hands clenched behind his head. "Six months is light," he said.

"That's all we're giving," Mordecai retorted.

"All right. Let me talk to the other side."

Our private session with DeOrio lasted less than fifteen minutes. For the bad guys, it took an hour. Of course, they were the ones forking over the money.

We drank colas on a bench in the bustling lobby of the building, saying nothing as we watched a million lawyers scurry about, chasing clients and justice.

We walked the halls and looked at the scared people about to be hauled before the bench for a variety of offenses. Mordecai spoke to a couple of lawyers he knew. I recognized no one. Big-firm lawyers did not spend time in Superior Court.

The clerk found us and led us back to the courtroom, where all players were in place. Things were tense. DeOrio was agitated. Arthur and company looked exhausted. We took our seats and waited for the Judge.

"Mr. Green," he began, "I have met with the lawyers for the defendants. Here's their best offer: the sum of three million dollars, and a one-year suspension for Mr. Brock."

Mordecai had barely settled into his seat, when he bounced forward. "Then we're wasting our time," he said and grabbed his briefcase. I jumped up to follow him.

"Please excuse us, Your Honor," he said. "But we have better things to do." We started for the aisle between the pews.

"You're excused," the Judge said, very frustrated.

We left the courtroom in a rush.