The Whistleblower Onslaught

Chapter 3

Chapter 3January 4, 2016

It's three o'clock in the afternoon, and it's over eighty degrees as I run through the parking lot toward Department 15 of the Superior Court, where I will wait for Judge Roy Carswell to conduct a settlement conference, so that he can eliminate the s****l harassment case I am to start next week from his calendar. Not because he cares about my case, but because he has three trials set the same day and wants to eliminate all of them and go fishing. Judge Carswell has been on the bench since my ancestors were small children. He was appointed by a governor who hates lawyers, for the purpose of abusing lawyers, and he has never disappointed. The entire bar has railed against Judge Carswell, in an attempt to cause his ouster, but to no avail. He is politically wired in and will probably outlast us all.

I walk into the courtroom and check in with the clerk, a dark-haired woman in her thirties, who shows me a half-smile and a dimple. She has an unruffled air, as she tells me that the judge will be with us soon. “Soon” is a legal term meaning when Carswell is ready, whether ten minutes or two hours has passed. I see my opposing counsel sitting in the courtroom with a young man that I have never seen before, who looks like he doesn't quite fit the suit he wears. This would be the insurance adjuster I have never seen before. I give Doug Ferguson, my opposing counsel, a nod, which he returns almost imperceptibly, and then I walk out into the hall to look for my client. She is walking toward me. Linda Darnell is a very attractive woman in her early thirties. We met in my office last week to prepare for this conference and discuss our settlement position. Now she is waving vigorously, and has something important to say. Her excitement will have to do with the settlement dollars we discussed. Either she wants more money to sufficiently compensate for the injury inflicted, or she wants to accept less, and be done with it. In this case, I'm betting that it's the latter, because Linda has been stressed out by the litigation process, and does not want any contact with the harasser, who causes her nightmares. It doesn't take long to get confirmation that my guess is correct.

“Scott, how are you?” she asks, extending a hand.

I shake the hand. “I'm good, Linda. How are you feeling?”

“Well,” she says hesitantly, “I've been better.”

“What is it?” I ask, having a pretty good idea what comes next.

“Stressed,” she says, glancing at the floor. She looks back at me. “I really want to get this over with—I mean the case,” she offers, softly. I wait, sensing more is coming, and I don't have to wait long. “If we can settle it today, I'd be willing to take less than we talked about. If it's okay with you.”

I smile and nod acknowledgment. She's a nice lady and appropriately nervous in this environment. “I understand. Let's see what kind of a settlement we can persuade these guys to put on the table. At the end of the day, I'll be with you whatever you choose to do.”

She smiles softly and takes a breath. Like all whose lives are about to be evaluated and judged by strangers, whether judge or jury, she carries a substantial weight on her shoulders.

I check my watch. “We better get back in the courtroom,” I say, and we start moving back down the hallway. We walk into the courtroom and sit down. There are pads and pencils in the jury box, from which I conclude that Judge Carswell is presently in trial, and has given the jury the afternoon off while he harasses others with the misfortune to have been assigned to his courtroom.

There is an annoying buzzing noise, and the clerk picks up her telephone. She mumbles and then nods in our direction. She cradles the phone. “The judge will see counsel in Darnell v. Kingston Brokerage Services now,” she announces, then returns her attention to the documents on her desk.

I stand and walk toward the judge's chambers, where I am joined by Doug Ferguson and the young suit. Being closest to the door, I knock. “Come in, counsel,” the gravel-like voice of Carswell bellows, uninvitingly.

We walk in, and the judge gestures to the two chairs in front of his desk. I take the first and let Doug figure out where to put his insurance adjuster, who happily keeps his distance from Carswell by taking a seat on a black leather couch behind us.

“Afternoon, Your Honor,” I offer, extending a hand. “Scott Winslow for Ms. Darnell.”

“Yes,” he says, quickly shaking my hand and then looking over at my opponent. “You must be Mr. Ferguson.”

“Yes, sir,” Ferguson says, and the judge shakes his hand. “Pleasure to see you, Your Honor,” Ferguson says with a wide smile. It's convincing—almost as if he means it.

Carswell says, “Right,” in a way that suggests he doesn't believe it for a minute. I don't either. No one could be glad to see Carswell. “Who do we have here?” he asks, having collected a business card from the clerk, and already well aware of the answer.

“This is Derrick Olson from Underwriters' Insurance, Your Honor,” Ferguson offers. Olson offers a hand. “Hello, Your Honor,” he says nervously. The judge takes and shakes the hand. “Hello, Mr. Olson,” Carswell says, then leans back in his chair. He pauses, and then says, “I've read the briefs. What else do you want to tell me?”

He looks at me. “I believe that we've laid out the chronology of the conduct in our brief, Your Honor. In summary, the harassment was undertaken by a supervisor, continued for almost two years, and involved both verbal harassment and repeated groping and physical touching.”

Ferguson is wide-eyed, and looks offended. “Your Honor, we dispute almost all of the alleged conduct.”

“Of course you do,” Carswell says, rolling his eyes. “I don't think I've ever seen a harassment case when the defense didn't deny most or all of it.” At this point I'm amused.

Carswell interlocks his hands and says, “All right, Mr. Ferguson, let me speak to Mr. Windsor for a moment.”

This is probably not a good sign. He wants to pound on me first, which likely means that he wants to talk me down from my settlement demand before he works on getting money from the defense. This suits Ferguson fine, and he almost runs from the room followed closely by the young suit. They close the door behind them.

Carswell leans closer and grins. “So, Mr. Winslow, what do you really want?”

“Well, Your Honor,” I say with a practiced thoughtful look, “two more associates and two weeks in the Bahamas would be great. Can you help me?” I smile at my humor, but Carswell does not look amused. A not so good sign, but I've been doing this too long to care—except for the fact that he will be my trial judge in this case. There is complete silence, so I attempt to get us back on track. “We have some flexibility in the demand, Your Honor, but I believe that this case is worth every nickel of the two hundred thousand we're asking.”

I lean back and wait a moment. Now he starts to smile. “You know, Mr. Winslow, I've been in the business world a long time. In the real world, sometimes people have to put up with a little playful behavior once in a while. He glances down at the paper on his desk and says, 'There's just not too much that is worthy of big numbers here.' ”

I'm considering my response, so I can leave out the things that will most surely piss him off. “This is not just a verbal harassment case, Your Honor. This guy was grabbing Ms. Darnell's breasts and buttocks, and promising her good reviews if she would put out. I wouldn't want to work with that going on, and I don't think that anyone on the jury would either.”

Carswell waves me off and says, “I'm not suggesting your case isn't worth something. I just think you're way over the top here.” He leans toward me, as if about to share a secret. “You know, if I can get you forty thousand on this case, I really think you ought to take it and run.”

Take it and run; like a thief in the night, I'm trying to find a tactful way of responding, but every possibility eludes me, so I say what I am thinking. “I think that if I took it and ran, I would have to stop at the pay phones outside and call my malpractice carrier.” His eyes open wide. Maybe I could have been more tactful.

Now that I've told him his assessment of my case is malpractice, he's pissed, and it shows on his face. “All right, Mr. Winslow. I try to do what I can to keep cases that should settle off my trial calendar, but if the parties won't be reasonable, there's nothing more I can do.” This confirms his old school approach and his lack of any real mediation skill.

He shakes his head. “Send Mr. Ferguson in here for a few minutes.”

“Very well, Your Honor,” I say, heading for the door. Now I know that Carswell is not going to put any real pressure on Ferguson to settle; we may as well pack our briefcases and head out.

Back in the courtroom, I tell Ferguson it's his turn and grab a seat. My worst fears realized, within five minutes Ferguson enters the courtroom. He is grinning widely as he walks over to where I am sitting.

“My turn?” I ask, not acknowledging his contentment.

“Not yet,” he says, now beaming. “Wise old Judge Carswell thinks that I ought to pay forty thousand. He says that if I can get it, he'll apply some pressure on you to take it. I just have to make a call and get that authority.”

“Save your quarter,” I say.

“Oh?” Ferguson says, feigning surprise.

“You asshole,” I say, only somewhat playfully. We both know that you have that authority already, and we both know that we're not going to take forty thousand.” Ferguson silently shrugged, obviously enjoying himself.

“Okay,” I say, “call the office and say hello to your secretary, like you guys always do, then tell Carswell you used all your powers of persuasion to get the authority he recommended. I'll decline, and we can get back to our offices.”

Ferguson shook his head. “Maybe you should listen to the learned judge's valuation and settle this frivolous case.”

“You're a joy, Doug. I think I'll do whatever a jury says, instead; twelve of my client's peers, who have been waiting all of their lives to rectify social abuses.”

Ferguson gives me a thoughtful expression, then a raised eyebrow. I sense a gem coming. “You know, Scott, there are a lot of conservative juries out there these days. You may get a cross section of retirees and human resources managers; not exactly your client's peers.”

I reflect on this philosophical offering and then nod. “I don't know about that. I'll pick a jury from the folks walking around Costco anytime. There are a lot of people, much like Ms. Darnell, who just want the right to work without being harassed.”

He stops smiling. “Let me level with you,” Ferguson says. Now I know there's a barge of bullshit coming my way, so I wait silently.

He gives me a look that says he shouldn't be telling me this. “I think I can get you fifty thousand to settle this, if we do it today, before we spend any more money on trial preparation.”

“I appreciate your sharing something so intimate, but all your sincerity notwithstanding, fifty isn't going to get it done.” I give him a friendly smile. “Now I've saved you two quarters, so you can buy me a cup of coffee on the way out.”

I see from his face that he is not amused. “Well, at least I tried,” he offers, and then turns to go, either feeling or feigning offense at my failure to heed his heartfelt advice.

Carswell brings us back into his chambers, but this time does not offer us a seat. He stares silently for a time, and then looks from me to Ferguson. “This case should settle, and I don't like my calendar cluttered with cases that should have settled.”

I recognize this line from prior visits. Apparently all my cases should settle, whether we can settle them or not.

“I want you to keep working on it,” Carswell says, “and I want a call saying that this case has settled by the end of the week.”

Good luck with that, I'm thinking.

“I have to tell you,” the judge adds in his best Solomon-like voice, “I think that Mr. Ferguson is being reasonable here, and you need to look at your case again, Mr. Winslow. Your client will be awfully disappointed if there's a defense verdict after you told her to leave $40,000 on the table.”

Yeah, me too, I think to myself. “I appreciate your input, Your Honor, and I assure the court that whatever we decide to do, we will thoroughly evaluate and consider all offers that are made.”

His gazed is fixed on me, eyebrows raised, as he recognizes my bullshit offered in response to his own. “All right, gentlemen,” he says, giving up, “Tell the clerk to send in the next case on your way out. And be sure that all of your trial documents are timely filed per the local rules.”

“Yes, Your Honor,” we both mutter as we exit. We tell the clerk the judge is ready for the next case and walk toward the door of the courtroom.

“Let me know if you get serious about trying to settle this case,” Ferguson says, unable to resist a parting shot.

I was going to leave it alone, but this pisses me off. “I will, Doug, and you be sure to call me if you find any money in the area of what the case is worth.”

He turns and walks down the hall without answering, followed a half-step behind by the young adjuster, who seems new enough at the game to be trying to assess who is full of s**t, and who really has it right.

I see where Linda Darnell is waiting to find out what happened. She smiles nervously as I approach her.

“We're done for now,” I say, and I can see the disappointment in her face. “Let's walk out together.” As we walk down the almost deserted hallway, I continue. “They told me that they believe they can get fifty thousand to settle the case if they do it now.” We had previously agreed to accept 150 thousand, but in the silence, I can tell she is weighing this offer against her desire to be done with it all. I give her a little time to work it through.

“You don't recommend that then?”

“I think the case is worth more, but like I said, I support whatever you would like to do. These are always hard decisions, and it's always possible that things could go badly at trial and there could be a defense verdict. I don't think it should happen that way, but there are no guarantees.”

“I understand,” she says, reflectively. “Let me think on it.”

I nod. “Sure. Give me a call tomorrow and let me know what you're thinking. If you're inclined to settle it, I will try to talk them up a little higher.”

“I will. I'll talk to you tomorrow.” She turns to go, then stops and looks back. “Thank you for everything, Scott. I never would have been able to stand up to them without you.”

“My pleasure,” I respond, as she turns to go, and now I'm smiling. That is the best part of the whole damn job.

* * *

On my way out of the courthouse, I stop in the clerk's office and file the Kevin Walters lawsuit. I check the case documents assigned by the court. The end of the perfect day. The judge assigned to this case will be Roy Carswell—my best buddy.

I return to the office, page through and begin returning a stack of messages from clients and opposing attorneys, and then I work on trial preparation for Darnell until I've had enough. It's ten o'clock when I leave the office, for the second time this week, and it's only Wednesday. This sucks.

When I get home, the full weight of the day catches up with me, and I am exhausted. The house is quiet and dark. I make my way upstairs, stopping at the second door to look in on Katy, who is hanging over the edge of the bed, challenging gravity. She clings tightly to Mr. Zanzibear, a stuffed bear she named for “Zanzibar,” which is tattooed across his right foot. I scoot Katy back into bed, tuck her under the covers and give her a smooch on the cheek. Without opening her eyes, a grin washes across her angelic face, and she says, “Hi, Daddy. I'm glad you're home now.”

My turn to smile. I kiss her forehead and mumble, “Me too, sweetheart,” but she is already asleep. It's amazing how kids can do that. If I wake up in the middle of the night, I could be up for an hour, or for the duration of the night. I grin and walk out, slowly pulling the door almost, but not quite, closed, just the way Katy likes it.

A few steps farther down the hall, I open the door marked “Keep Out,” and go inside to check on Joey. He is on his back, mouth wide open, snoring loudly. I turn him on his side, and the snoring stops. “Hi, Buddy,” I say, looking at the unconscious face. There is no reply. I am not surprised, because Joey sleeps through anything. I could take his bed away and he'd never know it. I give him a kiss, and then I just stand and watch him for a minute. It's amazing how quiet he can be when he's asleep. I turn and walk to the door and leave my little man to his dreams of kings, castles, and pitcher's mounds.