The Ultimate Resolution

by Dave Sullivan

  They discussed life, the future, the law, the practice of law, and more, as people do at such opportunities. By the time they left, each was rested and relaxed. A new love of the area was created in Charles Stanton. Jake's faith in the Apostle Islands was renewed. And between the two men, a close lifelong friendship was confirmed and cemented.

  "I hate to leave, Jake" said Stanton as they packed the station wagon.

  "I always look forward to coming back," Jake said. "This is really home, for me."

  As the professor pulled the big car away from the Kingsley cottage, he stopped and looked out towards the bay and Raspberry Island beyond. "I'll be back," he said.

  CHAPTER SEVEN

  Over the years that followed, Jacob Reynolds Kingsley, attorney at law, grew into a successful Minneapolis trial lawyer. His skills in the courtroom became well known and well respected.

  Shortly after he started practice he had married, but it hadn't lasted.

  Kay was a medical student when they met. Jake was still in law school. After they both graduated, they had a courting to the extent possible for new professionals so involved in their careers. They were married shortly after they graduated. While their romance was intense and their love honest, their marriage was short lived. The two careers, one in medicine, the other in law, were pursued by each of them with an intensity and commitment that never allowed the marriage to blossom. Had either of them been in a less demanding occupation, had more time to support the other, it might have been different. It wasn't. They parted friends and went on in their pursuit of whatever it was that they were after.

  Jake kept contact with Raspberry Bay, but not as much as he wished. He had gotten a bigger boat. It was a thirty foot fiberglass sloop with standing headroom. He had purchased it used in Bayfield. He and Kay had bought it as a sort of wedding present to themselves. They had married shortly after he joined Stratton, McMasters & Hines. The sailboat, while they couldn't afford it, was a bet toward a future and a happiness they were confident they would share.

  But over the years, the boat got less and less use. Jake's practice simply took too much of his time.

  Life at Stratton, et al, hadn't been that bad. After the friendly, no obligation divorce, he'd buried himself in his work. It was really no change. He'd been immersed in this study of the legal system he'd grown to love since almost the beginning of law school.

  At first, the cases were difficult. His youth and newness to the profession made overcoming the problem of dealing with older lawyers and with clients often one of the most difficult parts of the case. Neither the client nor the opposing lawyer, with few exceptions, let him forget he was new, young and inexperienced. Age and experience gradually cured that problem as Jake developed and reworked his own method of preparation and presentation of one side of a dispute.

  He learned that while eighty to ninety per cent of cases are settled before trial, it was a mistake, often a disastrous one, to take a case, start a lawsuit or undertake the defense of one planning on settlement and not preparing for trial. Often times the result was an unfavorable settlement entered into just before trial by a lawyer or client who wasn't prepared. Worse, sometimes no settlement was available and a case would be forced to trial. The result might be one never contemplated by the parties, but purely a function of one party's simple failure to contact witnesses, and compile and organize evidence to be able to respond truthfully when the judge calls the case and asks, "Is the plaintiff ready to proceed?"

  Besides, he thought, how could you properly advise a client on the question of settlement based on the likely results at trial if you weren't prepared for trial? In any event, Jake had long ago decided that his stomach wasn't up to living under the fear of upcoming trial dates. The only answer was preparation so he could be comfortably relaxed before and even during trial.

  Stratton, McMasters & Hines, Ltd., Attorneys at Law, 2733 First National Bank Building, Minneapolis, Minnesota, had been engaged in the general practice of law in downtown Minneapolis for many years, although at different locations and under the different names of former senior partners. A respected and well established firm, it consisted of fifteen lawyers when Jake joined it in the early seventies. By 1989, the firm had grown to twenty-five lawyers and several paralegals; modest growth for that period.

  Jake had started and stayed in the firm's litigation section. The firm's general practice brought a variety of types of litigation to the section. Jake handled commercial claims, will contests, automobile and other negligence personal injury claims, construction claims, product liability claims, and even defended negligence and products claims for the two insurance companies represented by the firm. With increasing multi-party litigation, Stratton also got some of the overflow defense work when an insurance company insured two or more defendants and had already retained its regular firm to defend one of them.

  Jake labored in this environment for years, continually learning, improving his methods and honing his trial skills. It was during this period of actual practice with the law as a system of dispute resolution, that Jake began to have doubts about the system he loved. At first just naggings, his feelings grew and amounted to actual distaste in some instances. For many years, he couldn't put his finger on just what it was. In later years, it became clearer and he began to have a dislike for the system in actual practice.

  His first vocalization of his misgivings was in discussions with colleague, friend and partner Jim Decker. They'd known each other since law school. Jim had graduated the year after Jake and followed him to Stratton, McMasters and Hines.

  At first, Jim Decker had difficulty finding an area of specialty that suited him. Unlike Jake, who went directly to litigation, which was his choice and request, Decker was allowed to move around sampling different types of work before settling down. The breadth of general practice thus afforded him was excellent background. When he finally settled in, and settle in he certainly did, the field was divorce law, or as modern writers and young lawyers insisted on calling it, "domestic relations law" or "family law."

  "Just a divorce lawyer," Jim was fond of saying. When he would inevitably be reminded that the statutes referred to "marriage dissolution" and hadn't used the word "divorce" for years, he would inevitably respond, "That's right, we just dissolve marriages these days; throw the parties, the kids and all the debts and assets into a laboratory beaker, stir vigorously until everything is in solution, wait a respectable period and divide up what precipitated to the bottom. Nevertheless the crux of the entire mess is that two people are divorced, with a small "d", from each other in that their previous union is severed. Everything else is simply fallout from that first single essential fact and I'm still a divorce lawyer."

  His old-fashionedly simple and somewhat irreverent view of the legal specialty in which he earned his living seemed to be enjoyed by those who were frequently or occasionally in his company. It was a part of his personality which seemed to attract other lawyers, judges and even new clients.

  James R. Decker was hardly old-fashioned or simple in his practice. He was one of the most respected "divorce" lawyers in the Twin Cities metropolitan area and even in the state. At Stratton, he had developed a system for the handling of domestic cases, changing it to meet the rapidly changing statutory framework that controlled marriage dissolution proceedings. His experience in real estate, estate planning and even corporate law brought to the domestic field a feel for analyzing marital estates, valuing assets including businesses and evaluating the future effects of particular settlements that gave his clients very able and competent representation.

  Through the use of secretarial staff and forms he designed, Decker's system allowed him to provide his high quality services to his clients at a very reasonable cost. Jim had taken an area of the law in which the Stratton firm was weak and which no one wanted and created his own section and a lucrative part of the firm's production base. Now, besides himself, his section included two younger lawyers, two paralegals and a secr
etarial staff armed with personal computers that fully implemented the system Jim had designed.

  While he still described himself as simply a "divorce lawyer," the simple cases were now handled by the junior members of the section and Jim was devoted to the representation of clients in divorces involving very substantial assets such as businesses, professions, large estates, and large farmland or other real estate holdings in out-state counties, in other states and sometimes in other countries. These cases were extremely complicated. They involved all of the procedural questions that Jake's cases did and more. Decker was in every sense of the word a "litigator" in his particular field.

  Prematurely gray when in his early thirties, Decker was one of those people whose appearance didn't hint his age. At nearly forty, he had a full head of thick, white hair. Added to his clean shaven face and trim figure of medium height, Decker's appearance matched the respectability that he'd given to divorce law, at least the way he practiced it. His success in developing a method of providing high quality representation to clients of all financial circumstance, including on occasion those who qualified for free legal aid, was matched by his contributions to the firm’s production. Decker was justified in feeling quite comfortable. His section accounted for more than its share of fees earned, billed and received. In addition, he had become somewhat of a "rainmaker" in his own right. Quite substantial clients who came to him because of his reputation in his own field, often stayed to make long term use of the services of other members of the general practice Stratton law firm.

  "I know exactly how you feel, Jake," had been Decker's response when Jake’s questions had first been stated as real concerns rather than just general complaining. "Those were exactly my concerns when I began trying to figure how to be a good lawyer and representative and still make money handling divorces."

  Jake went to Decker's office about 11:00 o'clock one morning in the summer of 1989 when neither had to be in court. "I need to borrow your brain for a couple of hours, want to eat in?" he asked.

  "Ah! Just the excuse I need to avoid abusing my body at the athletic club. But, pray tell me, what steamy, lewd and lascivious conduct has given rise to divorce questions in your high powered litigation matters, my friend?" Decker displayed somewhat overdone mock curiosity.

  As if you give a shit, thought Jake. "Careful. This could be about the threats we've been receiving from some irate and now penniless ex-husband or the malpractice suit that has finally come to rest at our doorstep requiring my section to come to your, and therefore the firm's, aid, in which case your sarcasm is poorly placed."

  "Oh, hell! I thought it was something serious," Decker continued the friendly banter. "Well, what time? About noon? Your office?"

  "Fine," Jake replied, "and thanks."

  They met in Jake's paneled office for about two hours. Over coffee and sandwiches, Jake enumerated his concerns.

  "You know I've always thought of the law as a system for the resolution of disputes that works, and works well," Jake began. "Now after sixteen years I'm beginning to think I've been wrong or changes in the law and the practice of law are destroying the effectiveness of the system."

  "Pleading guilty to the idealism I've heard you instruct young lawyers to avoid or carefully restrain?" Decker leaned back in the client's chair, perched his brown loafers on Jake's desk and stared at him in mock accusation.

  "Perhaps, but the same idealism governs your rather successful handling of divorce cases."

  "Touché." Jim Decker raised his coffee cup to drink. "All right what are your bitches, counselor?"

  "I've boiled them down to five." Jake started again.

  "Only five? Shit, you're a remarkably well adjusted lawyer, contented with your professional situation. No further prescription needed from this doctor. Lie down on that couch over there until the feeling of discontent passes. You have twenty minutes and then get your ass back to work."

  Decker smiled. He knew what he was doing. He knew Jake was serious. He also thought it was better to approach the deep concerns Jake was alluding to from a relaxed and humorous base than from too serious a beginning.

  Jake silently agreed. He had gone to Decker for this very reason. He knew Decker would understand.

  "Five." Jake repeated.

  "First, economics," said Jake. "The cost of litigation of disputes has gotten so Goddamned high that people simply cannot afford it, so their disputes don't get resolved or at least our 'system' doesn't help any. When I started, a case involving only five hundred dollars was difficult to handle economically, but sometimes it could be done. Now, with lawyers' hourly rates of a hundred dollars and more, increased costs of depositions and other litigation support services, cost of expert witnesses and so forth, a case involving only five or ten thousand dollars can't be economically handled without committing malpractice by not completely working up and preparing the case. Even in contingent fee cases, with no fees payable by the client unless there is a monetary recovery, the expenses that must be paid by the client regardless of result have become so horrendous that they aren't economically feasible unless significant injuries or amounts in controversy are involved. Do you know," Jake looked across his desk at Decker, "that some of the plaintiffs' personal injury firms here in the Cities won't touch a new contingent fee case unless it involves at least $50,000? With medical malpractice and products cases the minimums are much higher."

  "Along that line," Jim interrupted, "I understand that the large commercial and public building construction cases you're involved in with millions in controversy are controlled by expenses because of the fancy engineering experts and ten or fifteen lawyers at depositions all over the country for weeks and weeks."

  "Absolutely," acknowledged Jake, recognizing a specific concern of his in a rapidly developing area of litigation.

  "So what's number two?" Decker settled into the client's chair.

  "Two." Jake repeated. "Two is the control or attempted control by clients that prevent a lawyer from doing what is best for the client or what is required by the ethical duties imposed by the Supreme Court."

  "You can refuse to follow the client's demands and recommend getting other counsel, but that's just passing the buck and usually costs clients money because of the duplication of effort involved in changing lawyers." Jake continued. "Even in the insurance defense cases I handle for Stu McMasters' companies, it's a problem. These days, the claims adjuster runs the show, even directing what pleadings to file in some instances. Adjusters deal directly with plaintiffs' lawyers even after we are representing the defendant. I've had plaintiffs' lawyers call me to get permission to deal directly with the company to assure themselves of being on sound ethical ground when dealing directly with my 'client'. I've done the same in reverse with some of my plaintiffs' cases. All this is brought about by litigation costs even though their insurance contracts require the companies to hire lawyers to defend their insureds and represent those persons, not the company. Tell that to a claims manager very often and you'll see someone else doing that defense work."

  "Of course Stratton, McMasters & Hines couldn't stand that." Jim Decker put in, running his hand back over the mane of white hair. He reached for more coffee.

  "Exactly! And part of the damned problem. We lawyers may be the very heart of the problem," Jake added.

  "Do not presume, my friend, to speak for us all, at least without providing more coffee to wash down the shots you’re directing at our brethren and of course including you and me."

  Jake reached for his desk phone. "Except in reference to the legal profession in general, I am not referring to you, which is only one of the reasons I'm talking to you. You have these problems in divorces, but you seem to have resolved them." Jake dialed the reception desk and requested a pot of coffee.

  "Yes, resolved to a great extent, perhaps, but it may be easier to do in my cases," Decker replied as Jake replaced his phone on its cradle, "I'm not so sure about yours." Decker looked at his watch. "Just after one," he ob
served, "I gather with coffee on its way to accommodate my demands, it is your request that I continue to deprive my clients of my invaluable services in order to listen to you bitch about work some more. Let's hear three."

  A secretary brought a fresh pot of coffee.

  "Third is case load and docket control." Outwardly Jake ignored Decker's jibe, but inwardly welcomed the other lawyer's good natured reception of Jake's comments and the understanding he clearly felt. "How can a lawyer with a hundred or two hundred active litigation files possibly devote the time to any one of them to adequately analyze the issues, conduct the necessary legal research and properly represent his client in case preparation, trial or settlement negotiations? Shit! Just answering that fucking thing and handling its interruptions takes all your time." He pointed a finger at the desk phone which was, in his opinion, without doubt the most reliably useful tool of any kind he'd ever used.

  "Better to be too busy than not have enough to do, I've always heard," Decker leaned forward patting his hip pocket, "at least as far as lawyers' pocketbooks are concerned."

  "Goddamned right! Again we loom our ugly heads and personal costs of living, plus luxuries we think we need, and the system falls down in its purpose." Jake poured more coffee for them both and looked to Decker for a response.

  "You appear to be meeting your rather expensive cost of living Jacob Kingsley, Esquire, and I'll bet you're still saving for that big ketch to sail in your beloved Raspberry Bay. A necessary luxury, I presume." Decker slightly raised one eyebrow and stared back.

  Jake winced visibly. "I plead nolo contendre to the charge," Jake answered, "but I'm not trying to excuse myself from anything here."

  "It is apparent, good friend and partner, that you are trying to shoulder a far greater share of the burden of guilt than that for which you are responsible, especially when you are hardly responsible for any." Decker looked at his watch again. "That, of course, is why we are still here engaged in a totally non-productive endeavor for which our time sheets will suffer and our partners will criticize."