Without precedent, p.15
Without Precedent, page 15
Sherman and I sat down, and a few minutes later the Nelson Rockler attorneys and NexBeaux executives entered. We fully expected Judge Waxman to come out promptly at ten o’clock, as he always did. But the judge didn’t show. Not then, nor 10:15, nor 10:30, nor 10:45. At eleven, I looked at the defense table. “Do you want me to go see what’s going on?”
Shirley Glade thought about my offer. “Why don’t we both go?” She got up from the table, and we went into the hallway together.
As we walked toward Judge Waxman’s chambers, Glade looked over at me. “So are you going to pay my fees with cash or credit?” She laughed, sending a cackle echoing off the courthouse’s stone walls. “Sorry, given your employment status at the moment, I’ll just assume credit.”
“That’s very perceptive, Ms. Glade. Everybody always told me you were super smart.” When we got to Judge Waxman’s outer door, I pressed the buzzer and heard it ring in the distance, but nobody responded. I tried it a second time with the same result. “Now what do you want to do?”
“I’m actually a little worried,” Shirley said. “This just doesn’t seem like him. He’s quite conscientious.”
“Conscientious?” I pretended like I was considering it. “I guess that’s one way to describe him.” Then my cell phone rang.
“Hey, I just sent you a link,” Sherman said once I picked up.
I checked my email and found Sherman’s message. It linked to a story about Judge Waxman, with a headline that read:
Judge’s Failure to Disclose Romantic Relationship Results in Leave of Absence
The bailiff knocked the gavel three times. “All rise for the Honorable Erica P. Bruin.” We all stood as Judge Bruin entered the courtroom. As she sat down, she gestured for us to sit as well.
“I want to thank all of you for your patience this morning. Obviously you were expecting Judge Waxman, and I was expecting to be on vacation down at Lake of the Ozarks. But sometimes life has other plans.” She took a breath. “The chief judge informed me that Judge Waxman has taken an indefinite leave of absence while the Missouri Commission on Retirement, Removal and Discipline reviews a very serious complaint filed against him.”
Judge Bruin looked at Shirley Glade, then at me. “Judge Waxman has been my colleague for many years, and I think that he will ultimately do the right thing once the board has had an opportunity to review the allegations.” She looked down at her notes. “Your case has been reassigned, and I will be handling it going forward. Luckily, it’s still in the early stages and Judge Waxman has not made any substantive rulings, so the transition should be a smooth one.”
I was thrilled that Sherman and I had not skipped the hearing, because I couldn’t remember a better time in my entire life. With the absence of Judge Waxman, the whole energy of the room had changed. NexBeaux and the attorneys from Nelson Rockler looked deflated. I glanced back at my students in the gallery and at Jackson and my parents. They all looked very confused, so I gave them a discreet thumbs-up. Laura Bauer, however, already knew what was going on. She had a big smile on her face.
“I recognize,” Judge Bruin continued, “that there is a pending motion to dismiss. This morning I read the materials submitted by both parties and reviewed the transcript of the motion hearing. I also spoke with Judge Waxman’s law clerk and Judge Waxman about the motion as well, so I am familiar with the issues.”
She looked at the defense table and offered a warm smile. “Are there objections to me going forward as planned and ruling on the motion to dismiss today? It seemed pretty straightforward. If there are objections, I’d be willing to schedule another hearing where everyone can personally argue their positions in front of me.”
Glade stood, no longer full of confidence, but, because she and her associates hadn’t had enough time to properly research the new judge, she was willing to continue. Glade smiled. “I have no objection to you deciding the motion, Your Honor, with no further argument or supplemental briefing.”
I popped out of my seat before even being asked. “I also have no objection, Your Honor.”
Before we filed our lawsuit, the law students had compiled a list of judges. They had ranked them from first to last, and Judge Bruin was first. According to her profile, the bumper sticker on her cherry-red Chevy Silverado read: “Triple Threat: Big Hair, Big Boobs, Big Brains.” She grew up in the bootheel of Missouri, and, as a result, she had a deep skepticism of the government, the United Nations, and large corporations. She was also a recovering alcoholic and self-proclaimed “Drug Warrior for Christ.” Now twenty years sober, Judge Bruin was the founder of the city’s first Drug Treatment Court and spent her time traveling the country providing technical assistance to other judges who wanted to help drug addicts stay out of prison. If anybody knew the effect of opioid painkillers, like NexBeaux’s Bentrax, it was Judge Bruin.
“Good.” Judge Bruin nodded. “Then let the record reflect that there has been no objection to me going forward this morning and ruling on the defendant’s motion to dismiss.” She paused, then dropped a bomb on Glade the Blade and Nelson Rockler. “Based upon the memoranda and legal arguments previously submitted, the motion is denied. As Mr. Daley pointed out in his argument opposing the motion, when a judge dismisses a lawsuit as a matter of law, it means that there are absolutely no circumstances or discoverable facts that would allow the plaintiff to prevail. That is a very high burden, and the defendant has not met that standard.”
I looked at Sherman and smiled, then at the stunned faces at the defense table.
New judge, new day.
“My understanding, from reading the transcript,” the judge went on, “is that Judge Waxman was going to award attorneys’ fees to whoever prevailed on this motion. Strange, because I can’t remember ever awarding fees and costs under such circumstances. I do, however, feel obliged to honor the agreement. In fact, there was a specific colloquy between Judge Waxman and you, Ms. Glade, related to this matter. Therefore, I ask that the plaintiff’s counsel prepare an accounting of their costs and fees. Please file it with the court within seven days, and the defense will need to pay these fees within thirty days.”
Glade stood. “Your Honor, I believe that the standard for awarding attorneys’ fees is quite high and, while I respect your decision, I do not believe our motion to dismiss was frivolous or without merit.”
“That may be true, but at the previous hearing, you freely and voluntarily agreed to apply a different standard. The conversation on the record, thanks to the thorough work of Mr. Daley, was quite clear. Therefore, it was more akin to an agreement or contract, and I assume you do not breach your contracts, Ms. Glade, correct?”
“Of course I honor my contracts, Judge Bruin,” Glade stammered. “It’s just that—”
“Good,” Judge Bruin said. “Then you’ll need to pay up. In the meantime, I’ll issue a new scheduling order, then I’ll be out of the office. The Lake of the Ozarks beckons me. Thank you.”
CHAPTER TWENTY-SIX
Three months passed in no time. All summer long, Nelson Rockler behaved exactly as I had expected. They inundated us with paper. It seemed like every day a messenger came to the law school and delivered another box filled with emails, reports, financial statements, memos, and marketing materials. None of it was sorted by topic or chronology. Most of it was irrelevant.
After the first fifteen boxes arrived, we developed a general system. Screw had found a dozen old file cabinets in one of the law school’s storage closets. Nobody asked how she had gained access to the closet, but she assured us that nobody was going to notice that the file cabinets had been “moved.” Each file cabinet related to a broad category of documents. As soon as a new box arrived, we would sort the contents into the proper cabinet, then into specific subcategories. Each cabinet also had a separate folder for “hot documents,” files I considered either direct evidence of wrongdoing by NexBeaux or simply embarrassing.
The process worked for a while, but eventually we ran out of file cabinets and had to leave sticky-note-laden stacks on the floor. Our workroom grew smaller by the day. I wished we had the resources I’d taken for granted at Baxter, Speller & Tuft—a scanner and document-management software at the very least—but we didn’t, and Glade the Blade knew it.
Nelson Rockler also swamped the court with motion after motion. We could hardly keep up, but Sherman and I managed to respond to each one. We didn’t win every time, but we made our deadlines and Judge Bruin managed to minimize the damage.
We survived, barely.
Eventually it was time to begin depositions. Depositions were critical. Cases were won or lost at them, because attorneys had an opportunity to question any witness under oath. No judge was present to keep the depositions fair. Objections were noted, but even if a question was improper, embarrassing, or meant to harass, a witness was expected to answer.
Nelson Rockler had already scheduled the depositions of my family as well as Allison’s doctors, therapist, and treatment providers. Then one evening I heard a knock on the door.
“Are you Matthew Daley?” He was a little guy in khaki shorts and a baseball cap.
“I am.”
He pressed a packet to my chest. Instinctively I grabbed it before it fell as he turned and walked away. I opened the thick envelope and read the cover page. Nelson Rockler didn’t just want to depose my family. They wanted to depose me.
That night I went to a movie with Laura at the Tivoli on the Delmar Loop. It was originally a vaudeville theater that had fallen on bad times until it was restored and brought back to life. The eclectic mix of movies distinguished it from the suburban megaplex, and the strong cocktails served along with Junior Mints and popcorn at the concession booth didn’t hurt.
“What did you think?” I asked Laura as we walked out of the lobby.
“It was pretty good,” she said. “I like Stanley Tucci. He’s a great actor. Even if the plot drags, he can make it interesting.”
“Do you remember him in Big Night?” I asked. “It was about brothers trying to serve authentic Italian food in the 1950s.”
Laura’s memory sparked. “Oh yeah,” she said. “I remember that. Great music, and the food was gorgeous.”
“I never understood why that wasn’t more popular,” I said. “Probably my favorite movie with Stanley Tucci.”
“I loved him in Julie & Julia,” Laura said. “He played Julia Child’s husband, and he somehow managed to hold his own with Meryl Streep in that one.”
“That was good.” I pointed at a new taqueria across the street. “Do you want to get a bite?”
Laura looked at her watch. “Sure,” she said, “but then I need to go home. I’ve got a deposition tomorrow.”
“Oh no,” I said, “don’t say that word.” I filled Laura in on the latest strategy from Glade the Blade. “The worst part is the money. For every deposition, I have to order a transcript. It isn’t required, but there’s no way I can prepare for trial or develop my direct and cross-examination without one.”
“What about the attorneys’ fees that Judge Bruin awarded you when she denied the motion to dismiss?”
“That money will keep us afloat for a little while, but just one of these deposition transcripts costs a thousand dollars a day. Glade the Blade usually spends a day and a half per witness. She told Sherman that my brother’s deposition will last four or five days. It’s crazy.”
“And now she wants to depose you?”
“I think she wants to make me a witness in the case,” I said. “I’m sure they’ll take the deposition, then the Nelson Rockler attorneys will file a motion to preclude me from being the lawyer in this case because I’m now purportedly an essential witness—”
“And you can’t be both a witness and the attorney in this case because you’re not the actual party.”
“Exactly. My parents, as representatives of my sister’s estate, are the plaintiffs, not me,” I said. “If I was suing on behalf of myself, I’d be fine.”
Laura shook her head. “That’s low.” She took my arm and held my hand when the light turned and the signal changed to make it safe to walk across the busy street. I don’t even know if Laura realized what she was doing or meant anything by it, but my heart skipped a beat. It was the first time we’d held hands in eight years.
When we got to the restaurant, I reluctantly let go of Laura’s hand and opened the door for her.
“Thank you,” she said. “You really have to let Judge Bruin know they’re doing this. It’s wrong. She’s not going to be happy.”
It was good advice.
The next day, we informed Judge Bruin that the defendants were abusing their right to depose potential witnesses in the case and that they recently served me with a notice of deposition. Laura was right. Judge Bruin wasn’t happy. She ordered Nelson Rockler to temporarily stop all scheduled depositions. Then she ordered all parties to appear before her for a settlement conference the following week. Her order required someone with “settlement authority” for each party to attend. For us, that meant my mother and father.
For NexBeaux, it meant the company’s CEO, Chandler Hawkes. The drunk slimeball I last saw at Yankee Stadium would have to come to Saint Louis.
CHAPTER TWENTY-SEVEN
After some awkward introductions, Judge Bruin’s law clerk set coffee and pastries on a table near the window. I don’t know if Judge Bruin arranged for coffee and pastries for all her settlement conferences, but I was thankful. Sherman and I had been debating our strategy late into the night, and I desperately needed the caffeine.
I got up and poured myself a cup, along with another two for my mom and dad. I brought the drinks over to the table, then I filled a plate with doughnuts. Judge Bruin arrived five minutes later in a pair of black dress pants, shiny black cowboy boots, a white blouse, and large silver-and-turquoise earrings.
“I like those earrings,” my mom said. She began to talk about why she thought they were beautiful, before stopping. It was as if my mother suddenly realized that perhaps she shouldn’t compliment a judge.
Judge Bruin, however, took it in stride. “Why thank you, ma’am.” The judge smiled, then she settled in at the head of the table. “Picked these earrings up in Branson a few years back. They are some of my favorites.”
My mom nodded, and Judge Bruin got down to business. “I’m concerned.” Judge Bruin gave Shirley Glade a hard stare. “We are quickly approaching the point of no return here, folks. Everybody is dug into their positions. Everybody hates everybody, and so much time, money, and effort has been sunk into the case that the parties wouldn’t know a good settlement if it came up and bit them in the badonkadonk.” She looked at me, then turned her attention back to Shirley Glade. “Have you made any settlement offers?”
Glade shifted uncomfortably in her seat. She looked at her client, Chandler Hawkes, then back at the judge. “No, Your Honor. We were waiting for an offer from the plaintiff.”
“Mr. Daley.” Judge Bruin looked and acted genuinely surprised. “Is that true? You haven’t made a formal offer of settlement to NexBeaux?”
My face flushed. I felt embarrassed, which was exactly what Judge Bruin wanted. She wanted to force me to think about the end. I’d talked a lot about holding people accountable, but I’d done a poor job of defining exactly what that meant. Was it money? Was it a letter of apology? Was it the resignation of the CEO? I didn’t know.
“I have not yet, Your Honor.”
My parents may not have known much about lawsuits and litigation, but they knew that I hadn’t done something that I should’ve done. They looked at me as if I was back in elementary school and the principal had called them into the office for some misdeed that I’d committed on the playground.
I tried to explain. “Your Honor,” I said, “this case has never been entirely about money, and I figured that NexBeaux would not be willing to admit any wrongdoing in this case for fear that it would result in additional lawsuits or a class action. So I’ve always assumed we would go to trial.”
“OK”—Judge Bruin nodded—“that’s honest, but misguided. Lawsuits are blunt instruments. My guess is that if NexBeaux made a significant settlement offer, you would consider it.”
I looked at my parents, then back at Judge Bruin. “Of course,” I said. “We would consider it.”
“Good,” she said. “That’s smart, because these upcoming depositions won’t be fun. They will be highly personal, and you’d have to answer some very probing questions by the defense. And ultimately, after going through all that, you could go to trial and still you may walk away with nothing. There’s no guarantees with a trial.”
Judge Bruin turned to NexBeaux’s CEO, Chandler Hawkes. “And you, sir, I don’t mean to interfere with your attorney-client relationship with Ms. Glade and other attorneys at Nelson Rockler, but have they given you any estimates as to how much all these depositions and the trial is going to cost? Have you seen the bills that have already been submitted by this law firm? And I’m assuming best case scenario for you is that you win. How much is that win going to cost? And what’s your exposure if you lose? Ask your attorney these questions in private, and I hope she gives you an honest answer, because I think it’s going to cost you a lot.”
Judge Bruin stood up. “I’d like to meet with each of the parties separately to discuss settlement, assuming there are no objections.” When the room remained silent, Judge Bruin nodded. “Mr. Daley, why don’t you and your cocounsel, along with your parents, come with me.”
Two cushioned chairs sat in front of Judge Bruin’s desk. Her law clerk rolled in two more so that everybody would have a place to sit.
“Listen,” Judge Bruin said. “I get that this is personal. If my daughter died, I would be absolutely crushed—heartbroken—but the courts are not a good place to heal. A civil lawsuit, win or lose, will never fill that hole that’s been left in your lives.”
