Unclean Hands, page 6
Rick turned. "Should we keep going?"
"Absolutely."
"The video again showed Jerry moving towards his car, but the clerk slowed him down enough that Askew had almost caught him."
On the screen, her husband now closed in on their car and pulled his keys from the pocket of his jacket. The trunk of the car popped open, but before Jerry got to his vehicle, Askew leaped and tackled him from behind.
Before he first watched the video, Rick presumed Jerry died as a result of a head wound suffered because Askew slammed his head into the ground, but realized his assumption was incorrect when he saw both men landing on the ground. At this point, Jerry rolled on top of Askew and slammed his fist into his face, causing Emily to smirk a bit.
The video continued with Jerry grappling with Askew when an older man rushed into the scene and pulled Jerry onto the ground. Another woman came and jumped on Jerry. Askew rolled over to assist, joined by the cart boy. The four sat on top of Jerry, now in control.
"It's hard to tell what's happening here as the video is grainy. I think the camera is rather far from where this is occurring. It's doesn't appear like much from this distance and four of them sit on top of Jerry waiting. It's almost fifteen minutes later when the police car pulls into the lot. They order everyone off of Jerry and the officer radios for help. Three minutes later, an ambulance arrives and the paramedics run over to assist. They got him in the ambulance while still attempting to resuscitate him."
Rick stopped, realizing he was giving a soliloquy. He turned back to Emily and saw her with her face buried in her hands. He walked over and put his arms around her allowing her to bury her head on his shoulder.
Chapter Eighteen
The office was in its typical state—quiet–which was the way Rick liked it. More clients would likely add buzz, but would prevent him from doing some of his favorite things like imagining skiing down a mountain in a place he likely would never go to or fantasizing about women he likely would never talk to. He recognized his dreams should be more grounded in reality, but whenever he tried to think through issues tangentially affecting his life, like the behavioral issues of his daughter, this led to a maelstrom of self-reflection which alternated between painful and embarrassing. He had trained himself, when he had the time, to let his mind drift in a direction far away from his reality, or any reasonable, conceivable extension of his life allowing him to ignore his own problems, at least for a few minutes.
The fake chimes of the cheap doorbell disrupted Rick's mental ride down a steep, powdery western trail. He pulled his feet off his desk and yelled, "I'll be there in a second." A second wave from the bell interrupted his request for patience. He had no appointments for the afternoon, so whoever, or whatever, greeted him would be a surprise.
Emily Hawkins pushed her way through the door once Rick opened it a creak. Her hair was messy from the wind and fell unevenly over her eyes.
"Ms. Hawkins," Rick said, happy for the intrusion, "I haven't seen you since yesterday. I'm glad you're here."
Emily considered for a moment whether she was disturbing him and then the words spewed out as she pulled at the sleeves of her cream sweatshirt. "I should have called. I thought about texting, but decided to drive over. So, here I am."
Rick smiled. He barely knew Emily, but the seeds of respect for her were growing.. She had suffered a horrible tragedy, yet her resolve to find out what happened to her husband was evident. As a lawyer, he analyzed fact scenarios with an eye towards determining if anyone was at fault. Not everyone understood this concept and thought because a loved one got hurt, someone should pay. In his world, the first question he asked always was whether he could find someone legally responsible for an accident. He hadn't pushed Emily down the path towards litigation. Now, he assumed, he was about to find out if she wanted to invest the emotional energy necessary to proceed.
"Come in," he said, making a sweeping gesture towards the inside of his office.
She stepped in, her sweatshirt hugged her hips as she stepped from the sunlight outside to the relative darkness in the office. They walked to Rick's office, but she grabbed his arm, making him stop in the small hallway.
"I couldn't sleep all night after watching the video. It left me with more questions than before. Why would they sit on Jerry without ever checking on him? Why would two strangers get involved? Did Jerry do something wrong? I have so many questions, but you aren't able to answer them. I need to find out what happened."
She tilted her head up at Rick, who said, "I understand. Not knowing must be so agonizing for you." Rick glanced into Emily's piercing blue eyes, but she dropped her gaze.
"I never sued anyone. We would never have thought about litigation before this. I think I owe Jerry to find out. This won't be fun, but I want B & D to answer these questions. Will you do this for us?" She placed her hand on Rick's arm and raised her head so their eyes met.
"Of course, I will. I want to remind you that being a part of a lawsuit is serious work. It will drain you of all your energy. They will search your past to dredge up anything they can use against you." Rick paused and grinned. "Anything illicit I should worry about?'
Emily giggled. "Me? No way. We're too ordinary. We should be fine."
"Perfect. I will draft a complaint outlining your claims and send it to you for your review."
Emily smiled and extended her hand. "Awesome, I can't wait to read what my lawyer comes up with."
After Emily left, Rick pulled his chair up to the computer to research any potential legal challenge. His daydreams would have to wait for a few hours.
Chapter Nineteen
Most of the time, drafting a complaint for one of his clients didn't cause Rick much trouble. Identify the parties, set forth the facts and conclude with why the defendant owed his client money. Other aspects of practicing law were more glamorous, but compiling the necessary facts and supporting law was necessary to begin litigation. He walked a delicate tightrope trying to find the right balance between facts to include and those to exclude, only needing enough to put the defendant on notice of his client's claims.
He reworked every paragraph over and over, typing a sentence before backspacing over it because it failed to articulate what he wanted with sufficient precision. It was common not to have a complete picture of all events before filing a complaint–that's why discovery existed–to find out what witnesses knew and to fill in gaps. Drafting Emily Hawkins' complaint against B & D, however, forced Rick to reach deep to find the appropriate description of the harm caused to her life.
The day before, Emily had left Rick's office sobbing. They didn't say much after watching Jerry die–she just got up and left. Later in the evening, he called her at her home to check on her. Her spirits and resolve sounded better. Rick tried to focus on her mental well-being, but Emily put off his overtures of concern and insisted she was fine. She kept repeating she didn't want to relive his death over and over. He told her to take whatever time she needed. Emily expressed her gratitude and blurted out that if she sued, she didn't want anyone else to represent her. He hoped to hear from her in a few weeks and so her swift return to the office surprised him.
Rick spent much of the afternoon researching potential causes of action against the company. He recognized her claims centered on a wrongful detention claim leading to Jerry's death. What concerned Rick was the assertion Jerry stole product from the store. If so, did the store employee retain any privilege to detain Jerry?
From watching the video, Rick couldn't ascertain whether Jerry shoplifted. The video raised so many extraneous questions. To calm himself, he kept mumbling, "No shoplifter should die because of stealing something."
As he typed new allegations into the complaint, he avoided pleading any facts which later might prove to be inaccurate. Jerry was dead, so Rick would never have the opportunity to question him about what happened in the parking lot. This was not the place to guess, so he described what happened to Jerry with no embellishment.
His head ached as he tried to categorize Emily's claims. He divided her causes of action into two buckets: The first for what are known as survivor claims–those asserted by a survivor on behalf of a person who died. These claims are for what happened to Jerry before he died. For these, Rick included battery, false imprisonment, and assault.
The second bucket included claims for wrongful death. These were claims for Jerry's death, but more for what he would have offered if still alive–his earnings and the services he provided to the family. In the right case, these could be massive if a jury chooses to award a lifetime of earnings all at once. Emily also had a significant claim of her own–for loss of consortium–the injury she suffered for losing Jerry's companionship as a result of his death.
Finally, Rick pondered the concept of punitive damages, the type a jury awards to punish a wrongdoer. Only recoverable in a case where a defendant has exhibited conduct worthy of being punished and designed not only to make the defendant change its ways, but also as a deterrent to others to warn them against acting egregiously in the future. Rick still didn't have a complete grasp on what happened to Jerry, but made a few suppositions which, if true, might lead a jury to award punitive damages. He understood little at this point about how B & D operated or how it treated its employees, but wondered what policies, if any, the company might have to deal with shoplifters.
Most stores faced an onslaught of shoplifting and developed policies to confront it. Some companies deployed substantial resources to train its employees how to detain a person suspected of stealing, while other cut corners. Rick didn't comprehend where B & D fell on this continuum.
He pictured Jerry lying lifeless on the pavement. Only a complete failure to train would lead to this. He alleged, in lawyer talk, "Based upon information and belief, B & D failed to implement a training program to teach its employees how to approach suspected shoplifters. Its failure was willful and led to, and caused, the unnecessary death of the decedent."
His last decision was to decide which individuals he should name as defendants. The primary defendant would be B & D. As a corporation, any negligent acts of its employees would be imputed to the company. If its workers were responsible, B & D would have to pay the judgment.
Blaze Rondowsky's letter had identified Morgan Askew as the manager in charge when Jerry died. Rick pondered whether he should also name him as a defendant. For purposes of paying a judgment, the company would foot the bill and had sufficient reserves, or insurance, to satisfy a judgment, even an excessive one.
After significant deliberation, Rick elected to name Askew as a defendant because it sent a message. Plus, Askew might be so upset about being a named defendant in a wrongful death lawsuit he would pressure the company to settle. Doubtful, because the company would be controlling the litigation, but he could dream of an easy resolution.
Rick also had to decide whether to name the other two customers who joined in the fray and sat on Jerry until he died. After further contemplation, he decided to forego naming them because he hoped to stay in their good graces and obtain testimony from them beneficial to his side.
Rick pushed his chair back and stretched his arms over his head, finally satisfied after seven solid hours hunched over a keyboard.
He had read and reread Emily’s complaint at least seven times until comfortable it was a polished product. He didn't want to wait any longer, so he emailed Emily, attaching it for her final review.
He glanced up to the ceiling, hoping she would sign the necessary verification without requesting significant changes. Once she did, he would file the complaint and deliver it to the Sheriff to serve the defendants. Then the cat and mouse game would begin.
Two hours later, Rick received an email from Emily which said, "No changes. I'm ready to start the lawsuit. Get the bastards."
Chapter Twenty
This time when the phone rang, Rick was trying to put the finishing touches on answers to interrogatories in a dog bite case he had been putting off for days. The alarming jangle of the incoming call caused him to jerk back in his chair and almost fall over. He didn't want to answer, but Audrey was not in the office to deflect unnecessary intrusions. Better deal with this now, he thought, as he grabbed the landline and avoided having to get the message later from voicemail.
"Waterston," he said as he tried to multitask and review his draft response to the last interrogatory.
"Hey, Rick, It's your old friend, Virgil Spencer."
At first, Rick couldn't place the name, nor the irksome tone, but tried to fake his way with a grunt which did little to further the conversation.
The voice on the other end cracked a bit. "Virgil Spencer, from Wilson, O'Malley. You remember us, don't you?"
Now Rick understood the cold chill which had traveled from the base of his spine up to his neck when he answered the call.
"Ah, Spencer. What can I do for you?" You ball of head lice. We haven't talked since you and your buddy Crotec giggled as the security guard led me out of the building.
"How's life in private practice, buddy?"
Rick flinched at the word 'buddy,' not believing in any residual kinship from their days working together.
"It's awesome. Not as glamorous as life at the big firm, but we keep ourselves busy."
Rick gazed around at his office, noting the four files sitting on his three-shelf bookcase. The incongruity between his words and his reality made him chuckle to himself.
"I'm happy you're doing well, but I wanted to talk about a new file we’re working up."
Without further prompting, Rick understood which file he was referring to because there weren't many options from his end. "You mean the one where some psycho store manager killed my client's husband."
"Funny," Spencer said. "I was referring to the one where the store tried to stop a shoplifter who went crazy in the parking lot."
"At least now you've informed me of how you intend to defend this. What can I do for you?" Rick said, attempting to hide his suspicion all Spencer wanted was to shake him down for some pre-discovery information.
Spencer cleared his throat before speaking. "I thought it would be helpful to touch base before we answered the complaint. I hoped for a short extension, but also wanted to talk about where this case is going."
Without hesitation, Rick agreed to provide Spencer an extension to answer the complaint not caring if they delayed another thirty days before slamming each other with discovery requests. He waited for Spencer to identify the true purpose of the call.
"My client thinks the manager was justified in what he did?" Rick didn't respond, so Spencer kept talking. "Your client's husband, Jerry, that's his name, right? My people tell me he's not the smartest tool in the shed and got busted running from the store. The law's clear–reasonable detention for shoplifters–that's what happened here."
Rick still didn't respond, confident to let the silence force Spencer to continue the conversation.
Spencer blinked first.
"Our firm–you know how we work. There's going to be lots of discovery. I mean lots. You're a small shop. I doubt you can handle what we will be sending your way."
Spencer's insult compelled Rick to respond, "Don't worry about my little practice. We can handle it. What are you proposing?"
"Here the deal."
The words caused Rick to flashback to his termination meeting with Spencer sitting across the table from him while deploying the same phrase, "Here's the deal," before telling him he would be leaving the firm without severance, notice, or references.
"My clients," Spencer continued, "want to explore settlement if your client is willing to mediate this case and possibly get to a quick resolution. What do you think?"
Rick wanted to tell him to take his suggestion and shove it up his ass, but only because it was Spencer's idea. At the same time, early mediation might be beneficial if they reached a reasonable settlement without incurring a lot of effort or expense. This was a plaintiff's lawyer's dream–get a hefty fee early before doing most of the hard work and the risk of losing the case became more apparent. He didn't trust Spencer or his motives, but for now, had little to lose other than some time and the mediator's fee.
He didn’t jump at the offer.
"I'm not sure," Rick said. "Mediation before we've done any discovery doesn't seem like a recipe for success."
"It's mandatory in Federal Court. I've settled a bunch of cases early there. Not always, but it can be helpful to narrow down issues."
Rick didn't spend much time in Federal court, which wasn't relevant at the moment.
"I will talk to my client and get back to you."
"You can be convincing when you want to be. Call me with some dates after she agrees. I got another call. I'll talk with you soon."
Rick turned the phone to his face realizing nobody was talking anymore. He dropped it in his pocket and sensed the inner jitteriness marking the return of a level of anxiety he hadn't experienced since his last day working at WOMS.
He realized he didn't miss it.
Chapter Twenty-One
"Damn it." Rick leaned back in his chair and locked his hands behind his head. "This doesn't help our case." The three-page report flew out of his hand and landed on his desk. He wanted someone else's input to gauge if his reaction was appropriate–if what he read in the police report wounded his case against B & D.
Not having anyone to bounce ideas off of was one of the many downsides of being a sole practitioner. He handled the lunches by himself and did the grunt work on every file, but sometimes it wouldn't hurt to be able to talk to someone with some insight into how to handle a case or provide a different point of view on how to respond in a difficult situation.
An hour earlier Rick received an email from an old friend who worked at the same station as Peter Mitinger, the investigating officer of Jerry Hawkins' death. Ordinarily, Rick waited weeks after sending a subpoena to receive a copy of the police report. This time, he called in a favor from a cop he helped defend two years earlier on a charge of police brutality. He owes me, Rick thought when he placed the call. Without much cajoling, his cop buddy agreed to provide him a copy of the report without delay.
