The Whistleblower Onslaught

Chapter 2

Chapter 2At 5:00 p.m., Lisa and I sit in Bernie and Kathy Jacobs' backyard watching the orange-infused clouds reach across the western sky. The four of us sit in a circle talking while Joe and Katy watch the movie A Christmas Story for the twentieth time. They know this movie so well that they periodically recite dialogue before it is spoken. Katy and Joey are both fascinated by Ralphie's obsession with a Red Ryder BB g*n and are amused by his father's obsession with a bizarre lamp in the shape of a woman's leg that he won.

“It's getting cold,” Kathy urges. “Let's go in.”

“You and Lisa go ahead,” Bernie says. “Scott and I will be in as soon as I pull the steaks off the barbecue. As a matter of fact, they may be done now.”

I walk with Bernie to the barbecue as Lisa and Kathy move into the house. He grabs a plate and reaches for the meat with tongs. I frown. “If you aren't going to cook it, at least give it a tan before you pull it.”

Bernie shakes his head. “Not everyone wants beef jerky for dinner. Don't worry, though, I put yours on right after we spoke this morning.”

We laugh as he pulls three steaks off and turned the fourth. “So, how did it go with Kevin Walters?” he asks.

“Good. I like the guy.”

Bernie nods. “Do you think you can help him?”

“I think I'm going to try, although I haven't committed yet.” Bernie continues watching the grill. “How do you know him?” I ask.

“Consolidated Energy acquired Lincoln Energy out of Nebraska last year. One of about ten competitors they gobbled up. I brokered the deal, and Kevin and his team negotiated the acquisition from inside. The deal went on for a few months, and I had a number of meetings with Kevin. Smart guy and a good negotiator. When it was all done, I considered him a friend.”

I nod. “How did you learn that they had fired him?”

“I ran into him at a ball game a couple of days ago and he told me he wasn't with Consolidated anymore. I pried what had happened out of him—couldn't believe it. Then I told him to call Robin Hood of the legal profession.”

“That's me?” I ask.

“Sure. You take money from asshole rich guys and redistribute it to the people they f**k over, right?

“Certainly an eloquent way of putting it,” I say. “But doesn't it sound a little more like Karl Marx? Each according to his need—that kind of socialist philosophy?”

“Maybe, but isn't Robin Hood a socialist for that reason?”

“I don't know, but I have to admit that I like the Robin Hood image.”

“Yeah,” Bernie says. “Me, too. Put it on your business card or something.”

“Right. Maybe with a picture of me in tights?” I add.

“Awesome. I'll pass them out at the next Chamber mixer for you.” Then he adds, “I hope you can do him some good. I really like the guy.”

“He makes a good first impression.”

“Second and third are even better,” Bernie says as he pulled the last steak off the fire. “Well, let's eat while you analyze before all this gets cold.”

Joey and Katy eat hotdogs hurriedly, so they can get back to the Christmas Story movie. Katy's dog was just a bun and a dog. No condiments in sight. Joey's dog was overflowing with ketchup, which could be followed across the plate and onto the table.

“Hey you guys, this is not a race. Take your time and digest a little bit,” I say.

“Dad, we need to get back to the movie,” Katy says, as if this were obvious. I suppress a smile.

“We have the movie recorded. It will wait for you.”

“Yeah, Dad,” Joey says through a mouthful of hotdog. “But it's at a really good part. A kid is about to get his tongue stuck on a pole.”

Lisa smiles. “That is a good part.” Then she adds, “Careful, Joe,” and mops the table in front of him with a napkin to gather the escaping ketchup.

He grunts an okay and takes another bite.

Bernie looks at Lisa and then at me. “I hope you guys are still planning on joining us to celebrate our anniversary next Friday.”

“We are,” Lisa said. “We wouldn't miss it.”

Bernie looks over at Kathy. “I am a lucky man,” he says.

“Even after twelve years?” Kathy asks.

“More than ever.”

“It's getting pretty romantic,” Katy says, looking up from her hotdog.

The room bursts into laughter. “Yes it is, sweetie,” Bernie says. “We'll try to keep that under control.

“Thank you,” Katy says, turning back to her show.

After a moment, Kathy turns to Lisa. “I don't think we ever heard how you guys met.”

Lisa looks over at me and shakes her head. “Scott is such an asshole,” Lisa says, mouthing the expletive silently because of the smaller ears in the area.

Kathy wore a look that was half amusement and half surprise. “What?”

Lisa says, “All right, let me tell you about our first meeting, and you'll see why we almost never happened. Scott and I both went to a party with friends. We saw each other across a large room and smiled at each other. I asked who he was, and I was told his name. I'm also told he is a great guy.”

“Sounds good, so far,” Bernie says.

“Yeah, but then he walked over to me and said, “Hi, how are you?”

I said, “I'm fine. And then he said, get this, 'Do we belong together, or is it just wishful thinking on your part?' ”

Kathy and Bernie laugh hard. “Damn,” Bernie says. He looks at me and says, “You really are an asshole. I'm surprised the two of you ever got off the ground.”

“We almost didn't.” Lisa says. “I groaned and said, 'What a creep.' I was turning to walk away when Scott started to laugh hysterically. I stared at him, a little confused, and then it hit me that this was a bizarre joke. I just looked at him. “I'm sorry, he said. “I just wanted to make an impression. I told him that it was obvious that he didn't care if it was a good one.”

“Don't you love it,” I say. “That's when I knew that I had to get to know this woman.”

“And in spite of that start, she let you?” Kathy asks.

I nod. “Remarkable, isn't it? I had to work hard to overcome that first impression, but within a year she liked me.”

“And most of the time I still do,” Lisa adds.

“See,” I say, “she also takes care of herself pretty damned well.”

Bernie pours more wine, and we talk until we realize it is almost ten o'clock. We pick up our little girl, who had fallen asleep during the second running of the movie, and tell Joe it is time to go home. We hug our friends, and they walk us to the front yard. We thank them, and, as we walk toward home, I find myself contemplating Kevin Walters. I am intrigued and thinking about his case. Oddly, as I think about Kevin's case I have an inexplicable feeling of foreboding.

* * *

Two days later, at 10:00 a.m., I meet with Kevin Walters to discuss my final decision on whether I will take his case. When I take a case, I study what my new client did for a living before being terminated, demoted, harassed, or discriminated against. That way I can sound like I know what I'm talking about when I argue with a defense lawyer about whether my client graced the planet with brilliance never before witnessed in his industry. They, in turn, respond that he or she was a complete i***t, who lasted as long as he or she did only out of unparalleled levels of corporate benevolence. The truth, of course, is usually somewhere between the polar extremities I and my adversaries seek out, but we cannot accept that reality. There is simply no percentage in arguing mediocrity to a jury.

This process of identifying a client's virtues is what I engage in this afternoon, and I'm feeling pretty good about what I see. Kevin Walters sits across the conference room table in my office, waiting patiently while I review a neatly organized file documenting his history with Consolidated Energy that he brought along. He has documents revealing raises, promotions, performance evaluations commendations, policies, and other documents that chronicle over twenty-seven years of employment history, most of it spent climbing to great heights before the fall. I am considering how I will use these documents to prove my client is the good guy in this fight. After about fifteen minutes of silent review, I tear my eyes from the files long enough to look up at Walters and say, “I notice that the evaluations stopped about ten years ago.”

He nods, and then offers, “When you get to vice president, the company stops that paperwork.”

“Because?” I ask.

He raises an eyebrow in a manner that conveys careful consideration of the question, “Because no one has time for that stuff anymore. If you're doing well, you'll know it. If not, you're history.” He has a direct and sincere style that I like and, more importantly, that a jury will like.

I nod, and then reply, “And Consolidated will say that's what happened to Kevin Walters. He wasn't doing well, so he's gone.” I wave several of the performance evaluations in the air for effect. “Can you hear the argument? Walters's performance got progressively worse after these stopped.” I wait for his response.

“I'm not too worried about that,” he says with confidence, then falls silent.

“Enlighten me,” I say.

He smiles. “You do this a lot, don't you?”

“At least,” I reply, returning the grin.

His expression becomes more serious, and he speaks with confidence. “I think they will have a hard time refuting that every year, my performance bonus exceeded that of the other two division vice presidents. I also have several awards and congratulatory memos—more “attaboys” at home. There's a second file and some wall-sized certificates and awards that I didn't bring to this meeting.”

Time for my eyebrows to reach for the sky. “Any of them directly from Constantine?

“Most of them,” he says softly.

“Any during the last five years?” I ask.

“A number of them.”

“Guard them with your life until you get them in here. That may well be what gets us past the bullshit that they will likely offer about your history of plummeting performance.”

“Sure,” Walters says. “I'll have them here tomorrow.”

At that moment my assistant, Donna, knocks on the partially open conference room door, and then sticks her head in the door and announces that Mrs. Walters is here. Donna is thirty-five years old, about five feet five, and has short-length blonde hair and a wry grin. Her large brown eyes are warm and quickly make human connections. She has natural warmth that makes clients love her and opposing attorneys try to steal her after visits to my office for depositions. Fortunately for me, she always turns them down. She has been my paralegal for six years, and she is fiercely loyal.

Walters says, “I'd like my wife to meet you, if you have a few more minutes.”

“Sure,” I tell him. I look to Donna. “Ask her to come back to the conference room, okay?”

“Shall do,” Donna says, and disappears down the hallway toward the front of the office. A few moments later, Donna escorts a woman I am guessing is about sixty into the room. She wears her short, graying hair up and has an elegant way about her. The impressive overall effect is Priscilla Presley meets Helen Mirren.

“Hi, sweetheart,” Walters says, standing. “This is Scott Winslow. Scott, this is my wife, Julia.”

“Mr. Winslow,” she says, and we shake hands.

“Call me Scott, please,” I say. “Won't you have a seat?”

I pull back a chair, and Julia Walters sits, puts her purse on the table, and glances around the room, considering her surroundings. The focus of the room is the conference room table, which seats twelve. The room's accessories include a glass cabinet on the far wall, a granite countertop and cupboards on the other side of the room, and an impressionistic Monet painting of the French countryside. Mrs. Walters takes it all in quickly in a way that suggests that the room is speaking to her and says, “I've never been much for lawsuits.” The comment is delivered with a calm, friendly smile. A single comment that takes in the surroundings and my whole world, but in a way that sounds informative, rather than judgmental.

I am assessing whether to be amused by her dismissive review of my livelihood, and I'm still not sure when I say, “That seems like a healthy perspective. No one wants litigation that isn't necessary.”

Walters interjects, “I was just getting ready to sign a retainer agreement with Scott. I want him to represent me in connection with the wrongful termination lawsuit.”

She nods. “Scott,” she says, focusing her attention on me, “let me tell you where I stand on all this. I don't think that my husband should pursue this case. We have nothing to prove. Kevin has done well, and we will be fine financially.” She pauses and takes her husband's hand. She gives him a smile and adds, “Consolidated's dismissal of my husband was their mistake, and does not reflect negatively on a man who has done great things for them for over twenty-seven years. As much as I'd like to kick Michael Constantine in the balls, I think it is in our best interests to let go of all this.”

The way she speaks in elegant tones of kicking someone in the balls makes me grin widely, and I instantly like her, too. I force a more serious expression onto my face. “I understand,” I say. “I agree that whether to pursue a lawsuit is a serious decision, and as I've told Kevin, if his heart is not entirely in it, he should pass. I would encourage you to take some time to discuss whether you want to do this if you'd like.”

She seems momentarily pleased with this advice.

Walters leans forward and takes his wife's hands in his. “I appreciate all you've said, dear,” he says without hesitation, “but I have not changed my mind about this.” He turns his attention my way, and says, “Julia is correct, we can get by without additional money, but I am not doing this for money. I'm doing it because I care about this company and the way it behaves. One person died and others were injured, because it was financially expedient to keep operating an unsafe facility. Worse yet is the continued possibility of additional injury. Consolidated owes its employees much more, and so do I. If there's any way I can help the families of workers, and help Consolidated atone, I'm not going to sit on the sidelines and enjoy forced retirement.”

I look at Julia Walters. “Do you want more time to discuss this with your husband?”

Walters flashes his wife a look that slowly becomes a knowing smile.

Julia Walters then shakes her head and says, “No, he's ready to go,” in a tone that conveys acceptance, if not agreement. She grins at her husband in reluctant acquiescence, and then turns back to me. “So, if we are going to do this, let's use the legal process to kick these bastards in the balls.”

I explain contingency fees to Walters, who already knows exactly what I'm talking about. He signs retainer forms, and I give him copies and shake hands with my newest client. I think he's a straight shooter, and I like the man. Many times since that day I have relived that meeting, wondering how different the world would have been if we had never signed those papers.

Employment litigation is the business I and my law partner, Bill Simmons, love or hate, depending upon how crazy life is and how many places we have to be, on any given day. Bill and I met in the employment litigation department of Fulbright and Barnes, a monster firm of three hundred lawyers that consumes new lawyers at a frightening rate, sucking the life out of them by having them work twelve to fourteen hours a day, six days a week, and only eight more on the seventh day, it being the day of rest, until they quit or expire.

Bill and I arrived at the firm the same year, and hit it off immediately, with a shared appreciation for our situation. As we saw it, this was a place to learn, and leave behind. The Thirteenth Amendment, while it abolished s*****y for most folks, simply didn't seem to apply in large law firms, so we were slaves to be used at will by partners, who had no concern about the fact that we were working a hundred hours a week before receiving their latest assignment. That was the life of the new lawyer at the big firm until used up and burned out. Then the firm simply gets new ones. We spent our time defending the biggest of companies and insurance companies against the claims of employees and former employees who had allegedly been harassed, discriminated against, or in some other fashion thrown under the corporate bus.

The partnership carrot was used to keep associates performing at impossible levels for as long as possible, until they had to come to grips with statistics; only one in seven would have a shot at a partnership, and not until after nine or ten years of what we referred to as shoveling s**t against the tide.

After five years at the firm, Bill and I both knew that this was not the life that we wanted and that we had done all the shoveling we wanted to do. We also had a secret that would have been very unpopular if revealed—we had a propensity for the other side, a desire to represent David against the corporate Goliath. We would have been drawn, quartered, and then fired, had we dared to mention that we wanted to represent these employees that were the casualties of our corporate clients.

Bill and I saved money, as our expenses weren't high at the time, and the firm never gave us enough time off to spend the money we made. After five years of involuntary servitude, we announced our departure from the firm to supervising partners, who considered us to be disloyal ingrates who had effectively stolen all the training we had received by not staying until the firm decided otherwise or we expired. The master hates to give the slave his freedom. We were amused by the overreaction, but could have cared less. We had given the firm all the energy we were going to, and we were ready to go.

Bill won the coin toss, so we went into business together as Simmons and Winslow, nine years ago. Ever since, we have been working even harder, but with one big difference—now we work for us, and we are not supporting the big firm, with its million-dollar-a-year partners, and its $500,000 a year retirees. Life looked and felt a whole lot better from day one. It didn't matter that we had to pay the bills or that we didn't know what we would make month to month. We were doing what we really wanted to do, and we would never look back.