the verge of laughing. Calling it stupid is an understatement. It was clearly an improper and very prejudicial comment.”
A mistrial would mean a delay, something that the plaintiff’s team needed. Hell, they were willing to delay it for a decade.
“Motion granted,” His Honor announced. “I declare a mistrial. Now what?”
Wally had fallen into a chair and looked pale. David said the first thing that came to his mind. “Well, Judge, we obviously need more time. How about a continuance or something like that?”
“Ms. Karros?”
“Judge, this is certainly a unique situation. I suggest we wait twenty-four hours and monitor Mr. Finley’s condition. I think it’s fair to point out that Mr. Figg filed this lawsuit and was lead counsel until just a few days ago. I’m sure he could try this case as well as his senior partner.”
“Good point,” Judge Seawright agreed. “Mr. Zinc, I think it best if you and Mr. Figg hustle on down to the hospital and check on Mr. Finley. Keep me posted by e-mail, with copies to Ms. Karros.”
“Will do, Judge.”
O scar suffered acute myocardial infarction. He was stable and expected to survive, but the early scans revealed substantial blockage in three coronary arteries. David and Wally spent a miserable day in the ICU waiting room at the hospital, killing time, talking trial strategy, e-mailing Judge Seawright, eating food from a machine, and walking the halls out of boredom. Wally was certain that neither Paula Finley nor their daughter, Keely, was at the hospital. Oscar had moved out three months earlier and was already seeing someone else, on the sly of course. There were rumors that Paula had also found someone new. At any rate, the marriage was happily over with, though the divorce had a ways to go.
At 4:30, a nurse led them to Oscar’s bed for a brief hello. He was awake, thoroughly covered with tubes and monitors, and breathing on his own. “Great opening statement,” Wally said and got a weak smile in return. They were not about to mention the mistrial. After a few awkward efforts at conversation, they realized Oscar was too fatigued to chat, so they said good-bye and left. On the way out, a nurse informed them that surgery was scheduled for 7:00 the following morning.
At 6:00 the following morning, David, Wally, and Rochelle surrounded Oscar’s bed for a final round of well-wishing before he went to the OR. When a nurse asked them to leave, they went to the cafeteria for a hearty breakfast of watery eggs and cold bacon.
“What happens to the trial?” Rochelle asked.
David gnawed a piece of bacon and eventually replied, “Not sure, but I have a hunch we won’t be getting much of a continuance.”
Wally was stirring his coffee and observing two young nurses. “And it looks like we’re both getting promotions. I’ll have the lead, and you’re getting moved to the second chair.”
“So the show goes on?” Rochelle asked.
“Oh yes,” David said. “We have very little control over what’s happening now. Varrick is calling the shots. The company wants a trial because the company wants vindication. A huge victory. Headlines. Proof that its wonderful drug is not so bad after all. And, most important, the judge is clearly on their side.” Another bite of bacon. “So, they have the facts, the money, the experts, the legal talent, and the judge.”
“What do we have?” she asked.
Both lawyers thought about that for a while, then both began shaking their heads. Nothing. We have nothing.
“I guess we have Iris,” Wally finally said and got a laugh. “Lovely Iris.”
“And she’s gonna testify in front of the jury?”
“No. One of her doctors e-mailed a letter saying she is physically unable to testify in court,” David said.
“Thank God for that,” Wally said.
After an hour of killing time, the three voted unanimously to return to the office and try to pursue something productive. David and Wally had a dozen things to do for the trial. A nurse called at 11:30 with the welcome news that Oscar was out of surgery and doing well. He could not see visitors for twenty-four hours, which was also well received. David e-mailed the latest update to Judge Seawright’s clerk and fifteen minutes later got a reply requiring all lawyers to be in his chambers at 2:00 p.m.
“P lease give my regards to Mr. Finley,” His Honor said indifferently as soon as the lawyers were seated, David and Wally on one side and Nadine and four of her henchmen on the other.
“Thanks, Judge,” Wally said, but only because a response was required.
“Our new plan is as follows,” Seawright said without breaking stride. “There are thirty-four jurors left in the pool. I will summon them back Friday morning, October 21, three days from today, and we will select a new jury. Next Monday, October 24, we will start the retrial. Any comments or concerns?”
Oh, lots of them, Wally wanted to say. But where should I begin?
Nothing from the lawyers.
The judge continued: “I realize this does not give the plaintiff’s lawyers much time to regroup, but I’m convinced that Mr. Figg will do as well as Mr. Finley. Frankly, neither has any experience in federal court. Substituting one for the other will not damage the plaintiff’s case in any way.”
“We are ready for trial,” Wally said loudly, but only to retaliate and defend himself.
“Good. Now, Mr. Figg, I will not tolerate any more of your ridiculous comments in court, regardless of whether the jury is present.”
“I apologize, Your Honor,” Wally said with a phoniness that was obvious.
“And your apology is accepted. However, I am levying a fine of $5,000 against you and your firm for such reckless and unprofessional behavior in my courtroom, and I’ll do it again if you step out of line.”
“That’s a bit steep,” Wally blurted.
So the hemorrhaging continues, David thought to himself. Seventy-five thousand to Dr. Borzov; $50,000 to Dr. Herbert Threadgill, their expert pharmacologist; $15,000 to Dr. Kanya Meade, their expert economist; $25,000 to Consuelo, their jury consultant. Throw in another $15,000 to get all the experts to Chicago, feed them, put them up in nice hotels, and Iris Klopeck and her dead husband were costing Finley amp; Figg at least $180,000. Now, thanks to Wally’s big mouth, they had just lost another $5,000.
Bear in mind, David kept telling himself, this was supposedly cheap money being thrown up as a defense. Otherwise, they would be sued for malpractice and face some rather terrifying sanctions for filing such a frivolous case. In effect, they were burning serious cash to make their frivolous case appear less frivolous.
Such maneuverings had never been mentioned during law school at Harvard, nor had he ever heard of such insanity during his five years at Rogan Rothberg.
On the subject of sanctions, Ms. Karros took charge and said, “Your Honor, this is a Rule 11 motion we are filing at this time.” Copies were slid across the table as she continued, “We are requesting sanctions on the grounds that Mr. Figg’s reckless actions in court yesterday caused a mistrial, resulting in unnecessary expense to our client. Why should Varrick Labs pay for the plaintiff’s unprofessional behavior?”
Wally shot back, “Because Varrick has a book value of $48 billion. My net worth is substantially less.” Humorous, but no laughs.
Judge Seawright read the motion carefully, and when David and Wally realized this, they began reading too. After ten minutes of silence, the judge said, “Your response, Mr. Figg?”
Wally tossed his copy of the motion onto the table as if it were filthy. “You know, Judge, I can’t help the fact that these guys charge a zillion dollars an hour. They are obscenely expensive, but that should not be my problem. If Varrick wants to burn its cash, then it certainly has plenty to burn. But don’t get me in the middle of it.”
“You miss the point, Mr. Figg,” Nadine replied. “We wouldn’t be doing the extra work if not for you and the mistrial you created.”
“But $35,000? Come on. Do you people really think you’re that valuable?”
“Depends on the outcome of the trial, Mr. Figg. When you filed this lawsuit you asked for, what, a hundred million or so? Don’t criticize my client for putting up a vigorous defense with good legal talent.”
“So, let me get this straight. During this trial, if you and your client do something to sort of string things along, you know, drag out the trial, God forbid make a mistake, anything like that, then I can file a quick motion for sanctions and collect some money? Am I right about this, Judge?”
“No. That would be a frivolous motion, subject to Rule 11.”
