A Class Action (3 page)

The file is being brought over by messenger, along with a fifteen hundred dollar retainer check. Not bad. Two grand already in this week, with some new cases in the hopper. I haven’t the slightest idea what to do with Shirley the fed’s drunk driving case, but I sure know what to do with this one from Indovine’s office: build up the hours. Indovine pays me one hundred per hour for my time, and I’m pretty sure he bills Uniman Insurance more than two fifty. That means his firm makes plenty of money on each hour I put in, so ‘rush’ is a word that’s not in their vocabulary.

On the other hand, Shirley is in a hurry to get her case over with. If she only knew that the quicker it gets done the quicker she’ll get fired, maybe she’d ask me to stall it along for a while.

While glancing through Indovine’s file on the exploding Suburban, I see that the plaintiff’s lawyer is contending a certain well-known legal principle is involved in this case. It has the fancy Latin name of Res Ipsa Loquitur, but a plain English translation is that it simply means ‘the thing speaks for itself.’

Stuart mentioned he’s studying that principle now in his correspondence law course and it’s giving him some difficulty, so I invite him over for dinner later this week to discuss it, and to let him help me out on this file. It’s about time he gets a feel for what a real lawyer does on a case – and I’m sure that Indovine won’t mind my hiring a paralegal to help out. Usually Suzi gets the job, but she’s so busy learning all about seamanship that she doesn’t have any spare time this month. That’s a good thing, because her hourly rate is thirty-five bucks, and I’m sure Stuart will work for half of that. Of course Suzi is smarter than both of us, but Stuart will do just fine, if he follows my instructions.

Shirley’s arraignment date is this morning, and as I drive to the West Los Angeles Municipal Courthouse, I haven’t the slightest idea of how to save her job.

The courtroom is packed with people. All the drunk drivers on the west side who were arrested last weekend are here for their arraignments today and their lawyers are lined up waiting for a chance to beg the courtroom’s Deputy City Attorney for a reduction to reckless driving. If they’re successful in getting the charge reduced, the fine will probably be the same but it’s sure nice to be able to avoid having a drunk driving conviction on your record, because if you do it again, you’ll be doing some mandatory jail time.

After about twenty minutes of pushing through the crowd, there’s a brief opening at the prosecution’s counsel table, so I walk over and introduce myself. She thinks she knows what I want. I wish she’d tell me, because at this time I don’t know what I want.

“
Hello, my name is Peter Sharp. I’m here on your case number 7875044.” She looks up at me with a faint expression of recognition on her face.

“
You’re the D.A.’s ex, aren’t you?”

“
Please don’t hold that against me… I just want to talk about this case.”

“
No, I mean you’re the one that helped get her elected to the office… and my uncle, Mister Seymour, was put out of work.”

“
I’m sorry your uncle lost his job but he was only the acting District Attorney, and he…”

She’s in no mood to talk to someone who forced her uncle out of work, and if I was under any impression that I’d get some cooperation in this courtroom, she just proved me wrong.

“
Excuse me, but I wonder if you could join me in chambers to discuss this case?”

She quickly goes through her file. “What for? There’s no deal to be made here. She blew a one point four… that’s almost twice the legal limit. She’s going down.”

“
I know she is, but that’s what I’d like to discuss with the judge… we’ve got a special situation here, and I can’t get into it out here in the courtroom. Will you please join me in chambers? We both know that the judge won’t talk to me unless you’re there too, so I promise you right here and now that if you’ll go into chambers with me, I’ll plead her straight up to the drunk driving charge.”

She hesitates for a minute and looks at her wristwatch. “Okay, I’ll give you three minutes.” She then signals the court clerk to buzz the judge and let him know we’re on the way to his chambers.

Judge Parker is a former Deputy Attorney General who prosecuted many Federal crimes before getting appointed to the bench. Because he was a fed himself, I’m hoping he’ll understand Shirley’s special security clearance predicament and give me some way to go.

It was a tough decision offering to plead her guilty to the charge in the arraignment court, but I had to do it in order to get to this judge – a former fed.

When we get into chambers I once again am shown that that this deputy city attorney isn’t giving an inch. “Your Honor, counsel’s client blew a one-four, and he promised to plead her straight up, so I have no idea why we’re in here.”

The judge looks at me. “Counsel, perhaps you can give the City Attorney some reason why you’re in here. She already told you there’s no deal to be made, and you offered to plead your client straight up. So what’s there to talk about?”

“
Your Honor, my client is a federal employee. All I’m at liberty to say is that she’s connected to the United States Attorney General’s Organized Crime Task Force. Being a former fed yourself, you know what happens if a person gets convicted of anything that carries more than a twenty-five dollar fine.”

“
Yes I do counsel. She loses her security clearance and gets fired. But she should have thought of that before she drove drunk that night. She was a danger to herself and to others, and she deserves a conviction, whether she’s a federal employee or not.”

“
I agree Your Honor, and she’ll get one - that’s what I promised the City Attorney. All I’m saying here is that if she loses her job, then maybe justice isn’t served. I’m not on the list of people who get information on what that task force is working on, but whatever it is, the public will no doubt be much better off if they succeed, than if she loses her job. I’m not asking for any special favor like a dismissal or reduction to reckless driving here. All I want is for us to work out something with the fine.”

The City Attorney puts her two cents in. “The fine on cases like this is less than four hundred dollars. The thing that gets it raised up to thirteen hundred is the addition of court costs and a penalty assessment. We can’t do anything about that. If you want those numbers changed, you’ll have to have the State Legislature do if for you. We don’t do things like that here.”

That doesn’t help, but I really wasn’t expecting anything better from her. Suddenly I get a brainstorm. If they go for it, maybe I’ll make history – and at the same time keep my standing with the Feds as a genuine miracle worker.

“
Okay, I’ll tell you what. If I plead her guilty and the court gets its thirteen hundred, that’s all you guys really care about right? I mean, will that make the City Attorney’s office and the court happy?”

The judge is a smart cookie. It looks like he may know where I’m going with this. Now that I’ve got their attention, I might as well try to close the deal.

“
Here’s my suggestion. Why don’t we make the fine twenty-five dollars and the court costs and penalty assessment total twelve hundred seventy-five? That way the City Attorney gets its conviction, the court gets the same total amount of money, but the money description gets shoved around a little, so my client can keep her job. And that will be a saving of more public money because she won’t have to be on the people’s dime for unemployment or welfare benefits.”

The City Attorney looks at me with contempt on her face. She probably now realizes why her inept uncle is out of work – because he just didn’t have the brainpower to compete with his opponent’s campaign manager. She gives the standard civil service answer. “No, we can’t do that. It’s against the rules.” I can’t let that remark go unanswered so I tell her what my next suggestion is.

“
I’ve got another great idea. This man sitting here is the judge. He makes the rules in this courtroom. What he says goes. So instead of you telling him what he can or can’t do, why don’t we let him be in charge of this disposition? I’m willing to go along with whatever he says. Are you?”

She doesn’t answer that question. It looks like there’s been some conflict between these two in the past. Prosecutors sometimes have a feeling that because they represent the People, that they are the law. Some judges stand for it and others don’t. I’m hoping that this judge, who was a former federal prosecutor, will stand his ground and not get pushed around by this dame.

There’s silence in the room. The City Attorney is contemplating her navel. I’m staring right at the judge, letting him know that he’s got to face me here and now with a decision. He steps up to the plate.

“
Okay, counsel. I’ll accept her plea. Twenty-five dollars for a fine and the rest as court costs and penalty assessment.”

We both thank the judge and leave. I get to the cashier’s desk and make arrangements for monthly payments on the total amount. The Federal Government owes me big time, but I know I’ll never collect on this marker. You can ask any American Indian about how good the feds are at keeping promises.

Stuart shows up on time for dinner and we all look forward to the gourmet dinner that’s being brought over to the boat.

After he gets the kid to help him fill out the forms for his used car dealer’s license bond, we sit down to enjoy the Chinese feast that was delivered and is now being served up by the Asian boys. During dinner, Stuart starts to expound on Res Ipsa Loquitur by telling me that it’s a meaningless concept because everything speaks for itself. Now the lively debate starts. “Peter, when you see one car with its rear end smashed in and another right behind it with its front end smashed in, doesn’t that sort of speak for itself? I mean, that’s a rear-ender and there’s no getting out of it.”

“
Maybe Stu. I’ll admit that the fact of the two of them colliding speaks for itself, but it doesn’t necessarily say which one of them was negligent. What if the car in front caused the damages by backing up into the car behind it?” That’s not good enough for him. He keeps arguing his point.

“
So what? The fact still remains that they collided and both got smashed up. That speaks for itself, doesn’t it?”

“
Yes, but it’s not just a factual statement that you want to speak for itself. You want to use the doctrine to replace two of the elements of a negligence case.”

“
Oh yeah I know. The four elements are Duty, Breach, Causation, and Damages.”

“
Very good, Stu. In that rear-ender you described, the breach of one person’s duty to drive their car carefully certainly caused damages to the other driver, but we really don’t know which breached the duty. Did the guy in back rear-end the car in front or did the guy in front front-end the car in back?”

“
Okay, professor, if you’re so smart, why don’t you give me a perfect example of that Latin mumbo-jumbo and let me know how it has anything to do with that case you got assigned from the defense firm.”

“
All right Stuart, here goes. A person has an operation at the hospital. Next day the patient feels some discomfort in her side. They X-ray her and discover that there’s a surgical tool someone forgot to take out of her body during the recent surgery.”

Everyone in the room winces at the thought of this terrible possibility. “I know it sounds horrible, but if it did happen that way, the patient’s lawyer can use the doctrine of Res Ipsa to avoid the necessity of proving up the duty and breach portions of the negligence case, because the fact that there is a surgical instrument inside the client’s body shortly after surgery speaks for itself. The only thing the lawyer might have to do is show a picture of the client’s X-ray prior to the surgery, to establish that she didn’t have that surgical instrument in there to begin with, because in that case, the doctors might only be sued for missing it in the first X-ray.” Stuart is now rubbing his chin.

“
Hmmm. Okay Peter, maybe that left-over scalpel does prove negligence, but it doesn’t nail down who did it.”

“
It doesn’t have to. All it does is speak for itself as to the fact that there has been some negligence. That’s all the doctrine is supposed to do. After that, it’s always the lawyer’s job to place the blame that’s already been established onto the responsible party.”

“
All right. I think I get it now. But please tell me exactly what the Suburban plaintiff’s lawyer means by it.”

“
Simple Stuart – he’s contending that the mere fact of the explosion so soon after the Suburban being serviced by experts on that type of vehicle speaks for itself too. There’s no way the explosion could have been caused without the negligence of someone working at that dealership. Just like in the scalpel case, it doesn’t nail down who was negligent… all he’s contending is that for darn sure, someone was negligent.”

All the while we’re talking the television set is on, but with the volume muted, so as not to disturb our dinner conversation. We usually leave it on because the dog enjoys watching the pet food commercials. Suddenly Suzi picks up the TV remote and raises the volume so we can hear the local newsreader. “Well, folks, looks like we’ve got a strange situation here in West Los Angeles. Another Suburban serviced by that same dealership has exploded this evening. Fortunately it wasn’t fatal, but the hood did blow off the vehicle, scaring the heck out of the driver. She’s right over there. The paramedics have just finished up with her and I’m going over to interview her now…”