Dead Ringer

Bennie ignored the low growling emitted by Linette and the ripple of hostility that reverberated around the plaintiff’s side of the courtroom. Defense counsel kept taking notes, and the stenographer tapped silently away on her mysterious black keys. Bennie doubted that she was recording any of these atmospheric changes. That was the problem with a trial transcript; it recorded only the words, not the tone. Like Cliff’s Notes to Portnoy’s Complaint.

“I am therefore moving the court, at this admittedly early juncture, to appoint class counsel by using the auction-bidding method, as opposed to private ordering. This method is particularly appropriate to the case at bar, in which a newcomer to the class-action practice represents the plaintiff with the greatest damages. In addition, because my law firm is so small, I can provide the least expensive legal services to the class as a whole.”

Judge Sherman frowned. “Let’s be clear. You’re not asking me to appoint you class counsel today, or even ultimately. That would not only be unorthodox, it would be insane. Rather, you’re asking that I determine that auction bidding be the method whereby I appoint class counsel. Your motion goes to the procedure, not the substance.”

“Yes, Your Honor.”

“Your co-counsel have not had an opportunity to brief this matter, Ms. Rosato.”

“I welcome their briefs, Your Honor. My only intent was to get things rolling.” Bennie didn’t add that what she had wanted was momentum, the initiative.

But by now Judge Sherman’s frown had taken up residence on has forehead. “Normally, a matter like this wouldn’t be brought up on motion, Counsel.”

“You mean, that’s not how it’s done, Your Honor.”

“Precisely.”

“I understand that, but there is no reason why it couldn’t be, or shouldn’t be, is there?”

“Perhaps not.”

“It’s in my client’s interests to be open and aboveboard about this process, Your Honor. My predicament as his counsel is that I know precisely how it is done. Secrecy and closed proceedings do not serve my client, nor does delay. I recognize that this motion and hearing are somewhat unconventional, but my only other choice is to risk my client’s rightful position as lead plaintiff to the vagaries of backroom bargaining by powerful members of a very exclusive club-to which I do not belong.”

Bennie stopped, almost involuntarily, right there. Her words rang out in the silent courtroom and had a hang time all their own. She had said the unsayable-in open court-and she swallowed hard. She was going public with their behind-the-scenes fistfight, and she knew the implications: Bennie had just declared war on Bull Linette.

Back at second chair, Linette held his breath, red-faced, seething. His bleached teeth were set in a grimace. Quinones and Kerpov looked frozen and pale, as if they’d been cast in plaster death masks. The court stenographer paused in her typing, her fingers poised in midair. The silence deafened until the judge broke it:

“My, my, my. This is unusual.” Judge Sherman shifted in his seat and replaced his glasses, then took a minute to let his gaze shift down the line to Linette and the other class-action lawyers. It returned to Bennie, and it didn’t look as if he thought she was drunk anymore. In truth, he didn’t even look angry. But his tongue clucked with concern, and after a minute, he spoke. “Ms. Rosato, I cannot begin to consider the merits of your motion from the bench, but I am cognizant-”

“What! This is an outrage!” boomed a sudden voice from the back, with a thick accent, and Bennie turned around in surprise. Herman Mayer had jumped to his wing tips in the front row. Next to him, St. Amien looked surprised and drew backward. Mayer’s gaunt cheeks were mottled with anger. “Your Honor, my losses are greater than St. Amien’s, and I came sooner to the U.S., to Fort Washington! He only followed me here, and through illegal competition and interference, he stole my contract with Hospcare-”

Linette was standing up, waving Mayer into his seat. “Herman, sit down. Be quiet. Let me handle this.”

“This is my business, Lawyer!” Mayer shouted back. His dark eyes flared with indignation. The veins in his stringy neck bulged like an angry rooster’s. He waved a hand with a heavy gold wedding ring. “I know my business! I will not sit here silent while that woman lies about my business! My business!”

St. Amien had risen to his feet, too, his lips parted in affront. “How dare you accuse me, Herman!” he said, his voice only slightly raised. “I did not steal your contract with Hospcare, you fool! You had no contract with Hospcare! They came to me-”

Holy shit. World War II is breaking out. “Robert!” Bennie said firmly. “Please, you don’t have to answer him, I will-”

“Fool! Liar!” Suddenly Mayer turned and, red-faced, gave St. Amien a strong shove that almost toppled him.

“Argh!” St. Amien said, struggling to stay on his feet, righting his glasses with dignity.

“Robert!” Bennie shouted in alarm, moving to help him.

Crak! Crak! Crak! “Order! Order!” Judge Sherman shouted, banging his gavel on the dais, as Bennie eased St. Amien into his seat and waited for the judge to restore order. “Mr. Linette, get your client in control! Order! Or I’ll throw him out!”

“Herman!” Linette said, pivoting on his slippery Italian loafer. Next to him, Quinones’s eyes widened and Kerpov looked embarrassed. Brenstein turned away, and Linette tried to contain his client. “Sit down! Right now!”

“Don’t you tell me to sit down!” Mayer shouted back, pointing at Linette with a long index finger. Bennie stayed with St. Amien, who had composed himself, and watched amazed as Mayer turned his anger on his lawyer. “You sit down, Linette! You aren’t doing anything to help me! How dare you let her malign me and my business!”

“Herman, sit down!” Linette thundered, instantly red-faced. He took a threatening step forward, which surprised even Bennie. Scenes like this didn’t happen in civil lawsuits. That’s why they called them civil.

Crak! The judge howled, “Mr. Mayer, you will sit down this minute or I’ll have you hauled off!” Mayer obeyed reluctantly then, sinking into the seat beside a grim-faced St. Amien and still shaking visibly from his outburst. But he seemed cowed enough for Bennie to leave St. Amien safely and return to counsel table. Judge Sherman set down the gavel after one final bang, and his glare this time focused on Linette, his eyes searing into him like twin lasers. “Mr. Linette, I hold you responsible for this! This is exactly what I meant by circus potential. I won’t have it!”

“Understood, Your Honor,” Linette said, his expression stoic and his stance stiff as a toy soldier’s. “Your Honor, I apologize for my client, but Mr. Mayer is simply reacting to Ms. Rosato’s misstatements of fact regarding her client’s damages. Mr. Mayer knows his were far greater.” He spat out the words, each one precise as a stiletto. If he couldn’t take the lectern, he’d turn counsel table into one. “And I strongly object to Ms. Rosato’s having filed this motion without consultation with me, running off to tell the teacher-”

“Objection, Your Honor!” Bennie said, because she couldn’t resist. She didn’t know if you could object to a statement by co-counsel, but she was loving being unorthodox. And unorthodox was a better adjective than mavericky. “And I resent my motion being trivialized as running to the teacher. Every plaintiff is a tattletale. Justice is obtained only by running to the teacher. That’s why they call it court.”

Linette ignored her. “Your Honor, I would seek the opportunity to brief the method by which the court appoints class counsel. The process of auction bidding has been disapproved by this circuit in the Cedent case, and Your Honor is well aware of the task force-”

“Enough, Mr. Linette,” Judge Sherman said, waving dismissively. “You needn’t argue the point now, and I know all about the task force. You and all parties of record will have the opportunity to respond to Ms. Rosato’s brief, with all briefs to be filed within twenty days.” Judge Sherman glanced over at defense table to the lawyer sitting alone, like a blind date stood up. “And you, too, Counsel. We haven’t forgotten about the defendant trade association, and I couldn’t deny defendant the opportunity to be heard, even though it is not necessarily a matter of your direct concern.”

The defense lawyer nodded his balding head. “Thank you, Your Honor. We will brief the issue. If the issue concerns this lawsuit, it concerns my client,” he said with dignity, and Bennie knew that he was milking the melee in the plaintiff’s ranks for all it was worth.

Judge Sherman looked sternly at Bennie and Linette. “Now, obviously there has been infighting-even fisticuffs- between you lawyers, and you clients, and you clients and lawyers. And even you clients and clients.” He rolled his