time, and we’ll probably want to oppose this motion to withdraw.”
Oscar managed to dislodge his head. He glared at Wally as if he could shoot him too. “What you need to do is call your buddy Jerry and find out what the hell’s going on. He can’t run away with the trial this close. Tell him we’ll file an ethics complaint. Tell him we’ll leak it to the press-the great Jerry Alisandros afraid to come to Chicago. Tell him anything, Wally, but he has to come try this case. God knows we can’t do it.”
“If there’s nothing wrong with the drug, why even think about going to trial?” David asked.
“It’s a bad drug,” Wally said. “And we can find an expert who’ll say so.”
“For some reason I’m having trouble believing you,” Oscar said.
David stood and headed for the door. “I suggest we go to our rooms, think about the situation, and reconvene here in an hour.”
Wally said, “Good idea,” and staggered to his feet. He got to his office, to his phone, and began calling Alisandros. Not surprisingly, the great man was unavailable. Wally began sending him e-mails-long, scorching messages filled with threats and invective.
David scoured the blogs-financial, mass tort, legal watchdogs-and found confirmation that Varrick had called off settlement talks. Its share price was down for the third day in a row.
B y late afternoon, the firm had filed a motion for a continuance and a response to Jerry’s motion to withdraw. Virtually all the work was done by David because Wally had fled the office and Oscar was not functioning well. David had briefed Rochelle on the disaster, and her first concern was Wally’s drinking. He’d been sober for almost a year, but she had witnessed his earlier relapses.
The following day, in an unusually prompt move, Nadine Karros filed a response in opposition to the request for more time. And, in a move that was easily predictable, she had no problem with Zell amp; Potter making an exit. A long trial against a pro like Jerry Alisandros would be a tremendous challenge, but Nadine was confident she could make quick work of either Finley or Figg, or both.
The following day, in a response that was almost dizzying in its speed, Judge Seawright denied the request for additional time. The trial had been set for October 17, and it would go on. He had cleared his calendar for two weeks, and it would be unfair to other litigants to change the schedule. Mr. Figg had filed the lawsuit (“with as much noise as possible”), and he’d had ample time to prepare for trial. Welcome to the Rocket Docket.
Judge Seawright had harsh words for Jerry Alisandros but in the end granted his motion to withdraw. Procedurally, such a motion was almost always granted. The judge noted that the client, Iris Klopeck, would still have adequate legal representation after the departure of Mr. Alisandros. The word “adequate” could have been debated, but the judge took the high ground and did not comment on the complete lack of federal trial experience by Mr. Figg, Mr. Finley, and Mr. Zinc.
The only remaining option was for Wally to file a motion to dismiss the Klopeck case, along with the other seven. His fortune was slipping away, and he was close to a nervous breakdown, but as painful as a dismissal would be, he could not imagine the horror of walking into Seawright’s courtroom, practically alone, with the unbearable weight of thousands of Krayoxx victims on his back, and pursuing a case that even the great trial lawyers were now dodging. No sir. He, along with what appeared to be everyone else who’d stepped into the pit, was scrambling to get out of it. Oscar was adamant that the clients should first be notified. David was of the opinion that Wally should obtain their consent before he killed their cases. Wally halfheartedly agreed with both, but he could not bring himself to inform his clients that he was dismissing their cases only days after he’d sent his jolly letters virtually promising $2 million each.
He was already working on his lies. He planned to tell Iris, then the rest of them, that Varrick had successfully managed to get the cases kicked out of federal court and that he and the other lawyers were considering refiling them in state court, and this would take time, and so on. Wally needed to burn some clock, let a few months go by, stall, procrastinate, lie, blame the delays on big bad Varrick Laboratories. Let the dust settle. Let the dreams of quick money fade away. After a year or so he would conjure up some more lies, and with the passage of time all would be forgotten.
He typed the motion himself, and when it was finished, he stared at it for a long time on his desktop. Finally, with his door locked and his shoes off, Wally punched the Send button and said farewell to his fortune.
He needed a drink. He needed oblivion. Alone, broker than ever, his dreams dashed, his pile of debts higher, Wally finally cracked and started crying.
CHAPTER 35
Not so fast, said Ms. Karros. Her prompt and sharply worded response to what Wally thought was a routine motion to dismiss was startling. She began by declaring that her client insisted upon a trial. She went into great detail describing the torrent of bad press Varrick Labs had endured for over a year-much of it created and fanned by the plaintiffs’ bar-and she attached to her motion a binder three inches thick and filled with press clippings from around the country. Every story was driven by some loudmouthed lawyer (including Wally) flaying Varrick over Krayoxx and screaming for millions. It was now grossly unfair to allow these same lawyers to cut and run without a word of apology to the company.
Her client really didn’t want an apology; it wanted justice. It demanded a fair trial before a jury. Varrick Labs didn’t start this fight, but it certainly planned to finish it.
Along with her response she included her own motion, one that had never been seen around the offices of Finley amp; Figg. Its title-Rule 11 Motion for Sanctions-was frightening; its language was enough to send Wally back to rehab, David back to Rogan Rothberg, and Oscar into an early, unfunded retirement. Ms. Karros argued, quite persuasively, that if the court granted the plaintiff’s motion to dismiss the case, then the filing of the case was purely frivolous in the first place. The fact that the plaintiff now wanted to dismiss was a clear sign the case had no merit and should never have been filed. However, it was filed, some nine months earlier, and the defendant, Varrick, had no alternative but to vigorously defend itself. Therefore, under the sanctions provision of Rule 11 of the Federal Rules of Civil Procedure, the defendant was entitled to be reimbursed for the costs of fighting back.
So far, and Ms. Karros was blunt about the fact that the meter was still running at full throttle, Varrick Labs had spent approximately $18 million defending itself, with at least half of that attributable to the Klopeck case. A huge sum no doubt, but she was quick to point out that the plaintiff had demanded $100 million when the lawsuit was filed. And given the nature of mass tort litigation, with all the elements of a stampede, it was, and still is, imperative that Varrick Labs successfully defend the first trial at all costs. The law does not require a party to select the cheapest law firm or look for a bargain. With so much at stake, Varrick Labs wisely chose a law firm with a long history of success in the courtroom.
She went on for pages giving details of other frivolous cases in which federal judges had thrown the book at the less than scrupulous lawyers who filed all this junk, including two from the sacred courtroom of the Honorable Harry L. Seawright.
Rule 11 provides that sanctions, if granted by the court, are to be borne equally by the lawyers and their client.
“Hey, Iris, guess what? You owe half of $9 million,” David mumbled to himself, hoping to find a bit of humor in another depressing day. He read it first, and by the time he finished, he was sweating around the neck. Nadine Karros and her small army at Rogan Rothberg had cranked it out in less than forty-eight hours, and David could visualize the young grunts pulling all-nighters and sleeping at their desks.
When Wally read it, he quietly left the office and was not seen for the rest of the day. When Oscar read it, he shuffled to a small sofa in his locked office, eased off his shoes, and stretched out, his eyes covered with an arm. After a few minutes, he not only appeared to be dead; he was actually praying for the end. – B art Shaw was a lawyer who specialized in suing other lawyers for malpractice. This little niche in the crowded market had earned him the reputation, among the bar, as a pariah. He had few friends in the profession, but he had always considered that to be a good thing. He was smart, talented, and aggressive, just the man Varrick needed for a job that appeared to be a bit shady but was actually well within ethical guidelines.
After a series of phone conversations with Judy Beck, Nick Walker’s cohort in the legal department at Varrick, Shaw agreed to the terms of a confidential representation. His retainer was $25,000 and his hourly rate
