The Ultimate Resolution

by Dave Sullivan

  "If this thing goes anywhere I would need and enjoy your help. If we are successful, there would presumably be a fee involved in which you would share." Jake looked at Stanton. "I know you would want to work on the case. Would you refuse the money, if we won?"

  "Well, since you put it that way, my boy..."

  "Thanks, Charles." Jake felt better with this little understanding clarified. "I think we should just make sure she understands that we may look into it but we don't even know if we can act as her attorneys yet."

  "Also that we are not to be involved with the workers' comp or medical insurance matters," Stanton said, "or anything else. She has other lawyers working on those issues. We should just be looking into the possible products claim relating to the tractor."

  "Yes, I think that's important," agreed Jake. "Besides these ground rules, a detailed set of facts as she knows them ought to get us started. I have to assume that if there is a case at all its a negligent design and failure to warn combination."

  "Well, we'll see. Judging from your description, this would be our client coming down the dock now." Stanton was looking toward "B" Dock.

  Jake turned and saw Sarah Pallmeyer walking toward Resolution's slip. She wore the same faded denims and sandals with a white pullover sweater with blue stripes. Her yellow hair was tied back with a blue ribbon and she had large round sunglasses pushed back on the top of her head.

  "Hello," she smiled. "Am I too early?"

  "Time is not critical around here," said Jake and introduced Sarah to Professor Stanton.

  "So pleased to meet you, Mrs. Pallmeyer," the professor was eloquence itself as he extended his hand. "What my friend so clumsily refers to is that here in Raspberry Bay the time of day has less relevance than it might elsewhere and therefore you are right on time."

  Jake felt as if he should kick him but decided against it, whether out of discretion, or because he was barefoot, he wasn't sure. They went below and sat at the table where the interview began.

  "Before we get into the facts of your son's injury, there are a few procedural matters to discuss," Jake said. "Our purpose here is to determine whether you may have a claim for compensatory damages against those responsible for the design and manufacture of the tractor involved in your son's accident and to determine whether we can act as your attorneys."

  Jake fell back into the initial client interview routine with ease. He told her about his relationship with his firm and that they were not sure if he could handle her case even if she had one.

  "There will be no charges for the time and effort the professor and I may put in reviewing the case. The attorney's fees if the case is pursued, will be one-third of the amount recovered plus any costs or expenses we may have. If there is no recovery, there will be no fee, but the money we spend in expenses must nevertheless be reimbursed to us. Do you have any questions about the fee arrangement?"

  "No, I have been told of that fee arrangement before by the other lawyers I talked to. It's the same," she said.

  Jake studied her, looking for any hint of doubt or misunderstanding. Assuring a client's full understanding of the attorney-client relationship and the way in which fees and expenses are to be computed and paid was entirely the responsibility of the lawyer and one of his first jobs.

  "Normally, I would be giving you a contingent fee retainer agreement to sign, but because we need my old firm's approval and don't know if we will decide to act as your lawyers, we'll wait for a retainer agreement until that decision is made."

  Sarah Pallmeyer nodded her understanding and agreement.

  "Well then, tell us what you know about what happened," Jake smiled at Sarah with that kind of pleasant understanding he gave clients about to discuss a tragic occurrence that let them know he sympathized but that his job was not sympathy, instead it was finding an answer or solution. That was what required this rehashing of tragic details.

  Sarah Pallmeyer began as Stanton and Jake made notes on yellow legal pads.

  "I was at work when I first heard about it," she said. "They called me at work." Her voice wavered slightly.

  "It must be difficult,. Take your time," said Jake.

  "Thank you. It's really not difficult anymore. I've lived with it so long and told the story so many times to so many people. I guess you can adapt to almost anything. Maybe it's just getting started again."

  She told them about the accident which was not much more than Bert had told them at Oak Island.

  Stanton and Jake began asking specific questions.

  "Exactly what kind of tractor was it and when was it manufactured?" Stanton poised his pen to write on the legal pad in front of him.

  Sarah pulled an envelope from her purse and extracted a document. She read for a second. "It was a 1965 Cherokee T-350." She held the document out. "This is an accident investigation report that's apparently required for accidents in a national park.

  Jake took the report, examined it and handed it to Stanton.

  Most of what they needed was contained in the report. Robert Pallmeyer was working for Northland Logbuilders, Inc. It was a small Duluth company with a few pieces of equipment and a small shop. With just a few logging and building crews, the company contracted to build log homes and buildings. The company cut and hauled the logs and constructed the buildings. On Otter Island, the construction crew was using an old Cherokee tractor owned by the company.

  Pallmeyer had been on the tractor pulling several logs chained together when, according to the report, the end of one of the logs caught something and the tractor stopped. When he tried to go forward the front end of the tractor went up over him and crushed him against the ground and logs he was pulling.

  The report described the first aid given, the transportation of Pallmeyer to a hospital and listed witnesses.

  "Do you know where the tractor is now?" asked Jake.

  "It was damaged. At first, they brought it from Otter Island to Hanson's boatyard. Then Mr. Johnson who owns Northland Logbuilders had it moved to his shop in Duluth where it could be kept inside. He told my lawyer it could stay there until there was no further need for it. He was very cooperative. He's been to see Bobby several times. I think he feels badly about having no workers compensation insurance."

  "I think it's required on contracts with the federal government," said Stanton.

  "That's been mentioned," Sarah looked at him. "apparently someone goofed up and didn't request the right paperwork."

  "Do you think Mr. Johnson would be willing to talk to us?" Jake asked.

  "I'm sure he would. As I say, he feels bad and I think he'd like to help in any way he can. Also, his crew chief Mr. Slattery would be helpful. He was there. He really liked Bobby. Comes to see him a lot."

  Jake looked at Stanton. "Anything else?"

  "No, I think that's enough to get started. Will you be around here awhile longer, Mrs. Pallmeyer?"

  "Yes, for almost three more weeks and, please, call me Sarah."

  "Thank you, Sarah." Stanton put down his ballpoint and eased his bulk out of the three-sided dinette.

  As Sarah began to move to go, Jake said, "We'll review these facts and the report, talk to some of the witnesses and also to my law firm. Perhaps we can tell you something in about ten days. We may have some questions, can we call you or stop and see you?"

  She gave them her phone number in Bay Harbor, thanked them both and left.

  After she had gone, Jake looked at Stanton for comment.

  The professor responded to Jake's look. "If you adopt the wild eyed plaintiffs' lawyers' view that accidents don't just happen, they are always the result of the actionable fault of someone besides the plaintiff, then there's something wrong with that tractor. Nothing she's given us today suggests anything different than a negligent design/failure-to-warn products case complicated by the time of manufacture, the age of the machine and the probable contributory negligence of young Pallmeyer or his boss."

  "We knew it wasn't an easy case."

  "
And we were right."

  Stanton pulled two beers from the cooler, handing one to Jake and opening the other from which he took a long slow drink. He looked at Jake. "A game plan, counselor?"

  Jake sipped the cold beer. "We should list the immediate investigative steps right away and get to work on them. Bert got us into this, maybe he'll help."

  "The man was a veritable bird dog at Chicago P. D., or so he would have us believe." Stanton always liked to poke a little fun at his friend Bert Hanson, who never bragged about anything, especially his performance as a police detective, for which, as Jake and Charles both knew, he had been several times decorated for outstanding performance and bravery.

  "He could be very helpful," Jake agreed, "and the marina practically runs itself."

  "Oh, he's got the time. I think he's looking for something to do."

  "He'd probably feel left out if we didn't ask him."

  "Bring him around to my house this evening and we'll map the thing out."

  Stanton finished his beer and left. "See you tonight."

  Jake drank from the can of beer. Both men, he thought, were lawyers who had chosen to leave or never really get into the private practice of law and for essentially the same reasons. Now here they were, becoming involved in a potentially complicated products liability case with very questionable liability and, it was obvious, both of them rising to the task with eagerness and anticipation, certainly not reluctance.

  Who can figure it, he thought. But he knew. This was a case that was free from most of the problems that had driven him from private practice. This was their only case and it had come looking for them, that is, Sarah Pallmeyer was asking for their help. They weren't looking for work. Therefore, the problems of caseload and docket control, lawyers' reputation and relationship with the client simply did not exist. She wanted their help and wanted them to do whatever they felt was best. Modern anti-lawyer legislation hadn't reached the contingent fee yet, so economics was not a problem. The potential recovery was great and they could spend as much time as they desired developing the case without burdening Sarah Pallmeyer with an ever increasing bill. Because of the contingent fee, she could afford to take on Cherokee Manufacturing Company, if it came to that. The contingent fee was, as they say, her "key to the courthouse," the entrance to which she could not otherwise afford.

  Expenses were the only practical problem. They would have to be carefully watched. If an arrangement were reached with Stratton, McMasters & Hines, he would expect the firm to advance costs just as they would if he were still there.

  Jake stood in the cockpit of the ketch Resolution and looked toward the beach. The afternoon sun lit the long stretch of sand. A run and a swim, he thought, a good opportunity to think. Think? Probably too late for that, Jacob. He went below to change, wondering how all this would ultimately work out.

  CHAPTER THIRTEEN

  At their evening meeting at Professor Stanton's house, Bert Hanson had agreed to help. He had seemed enthusiastic about being involved.

  Jake had called a first organizational meeting for the following Tuesday morning. He mildly enjoyed the fact that it didn't have to follow any standard business person's schedule, but would begin when they all felt like it. He simply picked a time that was comfortable for them all and would give each time to think about his task and purpose. They agreed that individual mental preparation in advance was important.

  The meeting place was again Stanton's home.

  The professor had arranged the work area. On the dining table were coffee mugs filled with pens, pencils, and those big smelly markers that will clear one's sinuses better than most over-the-counter medication. In the center of the table were a stack of empty file folders for organization and a stack of the inevitable yellow legal pads, without which no lawyer seems able to do anything from trying a complicated lawsuit to making a simple phone call.

  Stanton had plenty of hot coffee ready. The chairs were arranged so the men would sit at three sides of the table and use a large pad mounted on an easel at one end. As a teacher, the large pad and markers or a blackboard and chalk were a necessity to effective thought and communication to Stanton. He knew they would be equally important to Jake the trial lawyer.

  It was a good war room. It was well suited to the job of analyzing the legal issues they faced and planning their development of the proofs needed. The view out Stanton's glassed overlook of Raspberry and Oak Islands might be a little distracting. For Jake, Stanton and Bert Hanson, however, it would more probably remind them of their own life's attitude and the different perspective they each brought to this project.

  "You've been busy!" Jake remarked as he accepted his first steaming cup of coffee from the professor and surveyed the prepared work area. "Looks like we have everything we need...except maybe a good case."

  "Jake...Jake, that will come." Stanton looked at him, smiling. "We have a sympathetic client, a catastrophic injury, large damages, and a large corporate defendant or insurance company. With that, although I haven't always agreed with them, some pretty good plaintiffs' lawyers would say it's a good case and you don't need any law."

  "I wouldn't call her a client yet. A lot of work is needed before we can decide to really take the case. A products liability case like this could be an awful expense and a terrible experience for our 'client' if it doesn't have a reasonable possibility of success."

  Stanton, undaunted, grinned at Jake. "Well you're right to be cautious, but , of course, someone has to remain positive. That'll be me. Here comes Bert now. He'll be sour enough to keep us both on an even track." Of course, this was said in a raised voice to make sure Bert Hanson heard as he entered the door.

  "What are you complaining about now?" bellowed Hanson. "I thought you guys would have this all figured out and just tell me where to start looking." He looked at the neatly arranged table. "I can see you haven't even started."

  Bert and Stanton grinned at each other as coffee was offered to Bert. It wouldn't interfere, but no doubt the friendly banter would always be present.

  "You'll need plenty of that coffee, my friend, because we are going back to the basics and for you, it's a trip you've never taken." Stanton grinned. "Step into the classroom, my uneducated colleague, and learn about the legal theories of products liability."

  "Even more basic than that." Jake moved to the easel and picked up a marker. "We'll begin at the beginning, just as you taught me more years ago than I care to remember."

  "Absolutely right. Stanton pulled out a chair and sat down. "Let's not assume anything. Sit down and get comfortable, Bert. Let us begin."

  Jake began to write on the large pad with a heavy black marker. "We need to take it step by step." In large letters, he printed the categories to discuss in a Roman numeral outline, leaving room for notes under each category.

  As he wrote, he talked. "First, we need to develop a full detailed statement of the facts, all the facts," he began. "Next come the theories of law. With that, we can define the elements of proof we need to make our case." He stopped to sip his coffee. "Then," he continued, black marker in hand, "we will need to test our theories."

  "How do you do that without going to court and seeing if your theories work?" asked Bert Hanson.

  "Bert, Bert," cautioned the professor, "Wait and see. A finer student I never had. Jake will show how to raise and consider all the issues in advance, the way it’s supposed to be done."

  "Pay no attention to him, Bert." Jake grinned as he added, "Charles just wants to stay on my good side so he can keep sailing on Resolution."

  "Some truth to that," acknowledged Stanton.

  Jake continued, writing on the tablet he added number four, after facts, theories of law and elements of proof. "We will look at affirmative defenses the opposition might raise. We will check statutes of limitation and notice requirements."

  "I see what you mean," said Bert to Charles. "Thorough bastard, isn’t he?"

  "Positively anal," responded Charles with a broad enou
gh grin it showed beneath his gargantuan mustache.

  "All right, all right," said Jake. "That’s enough from the peanut gallery. There are a couple of other things for the list that have to do with practicality . . . for us. We need to deal with management of the case." He wrote "VI. Case Management" on the pad. "We need to insure control of how the case moves and of how much it costs."

  "That sounds important," said Bert, "but can you control that?"

  "It can be difficult," Jake acknowledged, "but it’s important, especially for us. It’s not like we have a cash reserve for a big budget here."

  "And it makes a difference what lawyers are on the other side and how aggressive they want to be in pressing us and our client financially." Charles spoke as he rose to get the coffee pot.

  "What do you mean?" asked Bert.

  "In products cases," answered Jake, "some manufacturers and some defense lawyers will use financial pressure to control the case and force a low settlement or even a dismissal by causing the plaintiff to simply give up."

  "They can do that?"

  "They can and they often do or try, frequently succeeding," said Charles pouring coffee.

  Jake turned back to the pad on the easel and wrote one more item at the bottom of the list. "With all these things carefully taken into account," he added, "we need to develop a plan of action."

  Charles surveyed the list nodding his approval.

  Bert said, "Looks good to me. You guys are the experts."

  "I'm sure we will add to the list," said Jake. What we know and learn as we go along will keep changing the information under each category." Jake looked back at the list. "But we need to begin and we can keep revising." He looked again at his audience. "Any changes or additions so far? From the peanut gallery?" he added.

  Stanton pointed at the list with his pencil, "I don't see anything about damages up there. I know you think most plaintiffs' lawyers worry too much about damages and not enough about liability, but it will certainly have an effect on your number VI about case management and costs."