The Ultimate Resolution

by Dave Sullivan

  "Good morning," called Charles as he approached.

  "Morning," replied Jake. "Ready for work? There's fresh coffee, below," he nodded toward Resolution.

  "Excellent." Charles smiled as he climbed aboard the ketch. "I'll be right with you."

  The two men spent the morning and, after a short lunch break, most of the afternoon drafting interrogatories, requests for production of documents and requests for admission.

  In their document production request, they asked for all the design files, but they also asked for everything on complaints and other lawsuits which the rules of discovery permitted them to do. Information from other lawsuits would give them what other lawyers had requested that Jake and Stanton might not have thought of.

  "There, I think that about does it," said Jake. "Anything else?"

  "Not that I can think of," replied Charles. "We've asked for all their stuff on T-350 design and the operator's manual. We've asked for identification of all the pertinent employees. We've asked for all other complaints, injuries and lawsuits. He looked at a yellow pad in front of him. "That ought to be a good start, at least."

  Jake picked up a hand held dictating machine he had been using, thumbed the record button and dictated a closing paragraph, date and signature block with directions to the word processor at Stratton, McMasters & Hines who would get the cassette in the mail in a day or two. Jake had pre-posted padded envelopes addressed to Stratton just for that purpose.

  "How will they decide whom to present for the deposition?" asked Charles.

  They had included a notice of taking deposition to be taken after the document production at the St. Louis offices of Cherokee Tractor & Implement Company, Inc. Instead of a name in the notice, they just listed the deponent as "an employee of Defendant Cherokee Tractor & Implement Company, Inc. familiar with Model T-350 design, manufacture and Defendant's documents and records related thereto."

  Jake answered the professor. "Oh, I imagine they already have somebody for the job. Most companies do. It's usually a technical type with some know-how and background. He or she will be involved in all of their lawsuits and serve as company liaison to the defense law firm."

  "So this person will have been deposed on this same subject before?" asked Charles.

  "Probably," Jake responded. "Certainly if the company has had other lawsuits on this same product before. A friend of mine in Duluth calls them ‘whoo-ers’. The ‘who’ is the company spokesperson. The similarity in spelling and pronunciation to ladies of 'the oldest profession' is no accident. My friend believes they will say whatever they are paid to say, and therefore the term is quite appropriate."

  "Whoo-ers, indeed!" Stanton shook his head. "There certainly seem to be some seedier aspects of litigation which I've been able to avoid. Just luck, I guess."

  "Well, anyway, we'll find out in a few weeks," said Jake. "I'll mail these tapes tomorrow. In a day or two, we'll have a copy faxed to Bert's office for review. They should be served by mail in four or five days."

  "What's next?" asked Charles.

  "There's not much more to do for a few weeks," said Jake, "so we may as well enjoy the fall weather and the last of the sailing season."

  "I'm for that," smiled Stanton. "In a few weeks, the leaves will start to turn. Nothing prettier than these islands at the height of the fall colors."

  "Right. So, for a while, we can enjoy doing what we came here to do." Jake put the dictation micro-cassettes in one of the padded envelopes.

  "Some time before we go to St. Louis, we should get together to create a file with the proper organization and duplicate it at the Stratton office."

  "Yes," agreed Charles, "the logistics of handling this case from Raspberry Bay certainly do require some special procedures. But," he glanced at Resolution and the surrounding marina and smiled at Jake, "Well worth it. Well worth it, indeed."

  "Can we find a place at your cottage to keep the file?" Jake asked. "It's liable to grow to some considerable size. There's not much room on Resolution and, of course, she goes up in the cradle in another month."

  "I have just the place," said Charles, "an oak two-drawer file cabinet, legal size."

  True to their words, Jake and Charles spent the next few weeks doing what they enjoyed and what each came to the Apostles for. They spent a lot of time on the water sailing and watching the island foliage start to turn from different shades of green to bright yellows of birch and popple, brilliant red of maple leaves and the softer rust and ocher hues of autumn oak leaves.

  "Resolution, Resolution, Resolution, this is Hanson's Marina, KLR 7491 on sixteen, over." The voice came over the marine radio in Resolution's main salon. Charles Stanton took the wheel from Jake as he went below.

  "This is Resolution, WYP 3624, responding on sixteen. What channel, Bert?" asked Jake.

  "This is Hanson's. Channel 68, Jake."

  "Six-eight," responded Jake, turning the dial.

  "Hanson's on six-eight," the radio speaker said.

  "Resolution, here," said Jake. "What's up Bert? Over."

  "Where are you, Jake?" asked Bert Hanson, "You're breaking up a little. Over."

  "Coming down the West Channel past Red Cliff going into Bayfield for the Apple Festival," answered Jake. "Too much land mass between us. I don't have the transmission power you do. I can hear you fine. Over."

  "There's a thick envelope here for you from St. Louis. Thought you might want to see it. Over."

  "If we find space at the dock, we're staying overnight. If you want to bring it over, you can join us for dinner."

  "I'm closing up here about 4:00 o'clock, today. Why don't I drive over and find you about 5:00? Over."

  "That's fine," said Jake. "Resolution should be at the public dock. Over."

  "See you then," said Bert. "This is Hanson's Marina, KLR 7491 going back to sixteen. Over and out."

  Jake pressed the microphone button. "This is Resolution, WYP 3624, going back to sixteen. Over and out."

  A green Ford pickup truck with yellow lettering on the door announcing, "Hanson's Marina, Raspberry Bay, Bay Harbor, Wisconsin," drove slowly into Bayfield from the north on Highway 13. The streets and sidewalks were jammed with tourists in town for the annual Apple Festival. Bert Hanson found Resolution docked on the north side of the public dock. He parked behind a gift shop belonging to close friends and walked down Rittenhouse Avenue to its end at the harbor and the wide concrete public dock. Any other time he would have driven right onto the dock and parked by the boat, but the street and dock were filled with tourists.

  "Ahoy, Resolution," he called as he came even with Resolution's cockpit.

  "Ahoy, yourself," came the booming voice of Charles Stanton, as he appeared in the open hatch. "We're waiting to go to dinner. We'll probably be forever at the bar waiting for a table at Maggie's."

  "I'm sure you'll mind that," grinned Bert Hanson. "I'm ready, let's go."

  Charles and Jake closed up the boat and joined Bert on the dock. They made their way through the crowd to the end of the dock and cut across the grassy hillside along the shoreline toward the Apostle Islands Marina. The normally quiet park area was filled with stands selling everything from gifts to leather goods to hair care products and perfumes. The food and apples were farther up the hill.

  The three turned on Manypenny and worked their way through the crowd past children's rides, mini-donuts and more gifts. At Maggie’s, they found stools at the bar as Charles had predicted, ordered beer and waited for a booth. The waitress watched for their favorite rear booth to open.

  When they were seated, Jake said, "Let's see the envelope. Let's find out how hard they're going to make us work."

  Bert handed the thick manila envelope to Jake. Jake removed the contents and began reading. As he finished each part, he handed it to Charles who in turn gave it to Bert when he was done.

  The envelope contained lengthy detailed Interrogatories, Requests for Production of Documents and Requests for Admissions served on behalf of th
e defendant. Jake noted that standard form interrogatories were used asking for every possible bit of information about the accident and about the clients, however remote it might seem. There were also special interrogatories tailored to this case. The interrogatories were written questions to be answered under oath by the plaintiff. The document production request required that plaintiff and plaintiff’s counsel furnish copies of any documents they had from medical records and income tax returns to statements of witnesses. In a sense the Requests for Admissions were the most aggravating, and certainly the most dangerous. These were statements of fact about the case which plaintiff was required to admit or deny. If not denied within thirty days, they were deemed admitted by the Rules for purposes of this case. These requests included all the ultimate facts of the case stated favorably to the defense. If not denied, the case would be over.

  Except for ordering their dinner and another round of beers, the three read in silence.

  When Bert was done, he spoke first. "Looks like gobbledygook to me. I'd rather fill out a tax return, several times. Where will you get all this information . . . and how long will it take?"

  "Actually, it's not too bad," said Jake. "They are trying to make us work as hard as they possibly can, but Charles and I came prepared." He smiled at Charles.

  "That's right, Bert.' Charles joined in. "When we started, Jake warned about this kind of oppression from the defense. He figured what they would ask and we prepared our answers. We're ready to go."

  Bert looked at Jake. "You mean you did the same thing to yourselves that these guys are now doing? Impressive."

  "Well we tried," said Jake. "We'll see how good we did. It certainly will make answering these a lot easier . . . and a lot quicker."

  "What about these Requests for Admission," asked Charles. "Didn't they read our Complaint? Don't they know we deny these?"

  Jake responded. "Some defense firms do this. I don't like it, but I've seen it before. They ask you to admit every fact in their favor. The real purpose of the rule on Requests for Admission is to ask the other side to formally admit to facts not really in dispute to narrow the issues and save the costs of litigating and proving obvious facts. Rule 37 provides sanctions and costs for having to prove something that should have been admitted. These firms ask admission of everything and , if they win, they come after you under Rule 37 for their costs of the entire trial, including attorneys' fees."

  "What?" exclaimed Charles. "That's certainly not the intent of the rule!"

  "I don't like it either, but the rule can be read that way," said Jake. "It's just more pressure the defense wants to put on the plaintiffs to discourage them from the suit or to make them settle cheaply."

  "Sounds like bullshit to me," muttered Bert.

  "I'm inclined to agree with you, my friend," said Charles lifting his beer glass. "Ah, here comes dinner."

  The waitress brought platters of broiled Lake Superior Whitefish served with new potatoes and green beans. A basket of sliced bread was placed in the center of the table.

  The men ate and discussed the case and how they would answer defendant's discovery requests quickly.

  Back at Charles' cottage the next day, Jake and Charles started on a filing system for the case. Bert and Sandy Hanson arrived for lunch bearing sandwiches, potato salad and baked beans. As they sat at Charles' dining table overlooking the islands in full autumn color, Jake explained the file organization.

  "We'll use those large brown file folders with subfiles in them," he said, pointing to a large box of file folders and other supplies he had taken from his old firm for this case.

  "What kind of a filing system will you use?" asked Sandy Hanson. "I can help with that."

  Jake brought out a yellow pad and began writing as he spoke. "These are some of the file sections we'll need. Some will use separate file folders, some those smaller manila file folders, and some, like the Communications and Court File sections will be punched at the top with a two hole punch and fastened to cardboard hardbacks with Acco fasteners."

  As he wrote on the pad, he announced the file sections:

  1. Communications

  2. Court File

  3. Investigation

  4. Legal Research

  5. Product Research

  6. Medical Expenses

  7. Wage Loss

  8. Medical Records & Reports

  9. Depositions

  10. Document Production - Plaintiff

  11. Document Production - Defendant

  12. Trial Preparation

  13. Trial Notebook

  14. Exhibit Folder

  "Quite a list, Jake," said Bert Hanson. "You need all that?"

  "Bert, hush! Don't be so skeptical!" Sandy glared. "It sounds very well organized to me." She turned to Jake. "Give me that list and a felt tip pen and I'll help label folders and file sections."

  "Thanks, Sandy." Jake smiled and answered Bert. "These are just places to put things as they accumulate. We may not need them all, but my bet is that we'll need more sections than these, eventually."

  "Well, let's get started," said Charles rising from his chair and reaching for empty plates. "Bert, you and I can clean up this table while Sandy and Jake get started."

  Bert nodded and got up to help.

  They made up several file folders and file sections. Sandy marked them with a fine hand and a heavy black felt tip marker. Correspondence and court pleadings were punched with the two hole punch and placed in chronological order in sections 1 and 2 with the oldest document on the bottom.

  When they were done, Bert looked at the collection of brown and manila file folders and subsections standing upright on the table between two bookends. Labels and file folder tabs were titled in Sandy's stylish printing.

  "Well," he said, "it's pretty, but will it fly?"

  "Bert!" Sandy punched him on the shoulder.

  "No," smiled Jake, "but it will make life easier for us as we go along."

  "Impressive, I think," said Charles, handing Sandy a cold bottle of beer and placing bottles for himself and the others on the table. "Good work, crew."

  CHAPTER EIGHTEEN

  Sarah Pallmeyer sat at her kitchen table in Hermantown, Minnesota, reading the papers Jake and Charles Stanton had brought for her signature. Stanton and Jake watched patiently as she read through the discovery responses they had prepared.

  Sarah looked up at Jake. "I'm sure I don't understand all this," she said.

  "That's about normal," smiled Jake. "The legalese is a little difficult. Mostly, though, where we have made statements of fact in our answers, we want to make sure they are accurate and we are not misstating anything you have given us."

  After a time, she turned the last page and said, "It all looks fine to me. Where shall I sign?"

  Charles arranged the documents open to the signature pages while Jake got his notary stamp ready. As they went through the signing process, Jake explained how the suit was going.

  "We are still in the discovery stage," he said. "It is a slow process, but eventually we will get to the trial."

  "You don't think it will settle before that?" Sarah asked, hopefully.

  "That's always a possibility," answered Jake, "but as I told you before, products liability cases are different from most. Defendants are offended by the attack on their products. They often fight the cases hard and are very reluctant to settle. Also it is our view that it is best not to plan on a settlement. Planning on a trial means better preparation, for settlement as well as trial."

  "I understand," she said softly. "You said something about depositions. When will that happen?"

  "Soon," Charles answered. "We are noting their representative's deposition now. I think we can expect them to do the same very shortly."

  "Do you have any idea when it will all be over?" Sarah turned to Jake, her eyebrows raised, nearly touching her yellow bangs.

  "It won't be too long," said Jake. "There are new rules of case management. Now these rules try to requir
e cases to be completed within a year of filing. That is an enormous change in the practice in Minnesota state courts. Judge Hawthorne just set a scheduling conference for January. I expect he'll try to set this case for trial before the end of next summer."

  Sarah Pallmeyer looked satisfied with the response. It was clear to Jake and Charles that she was anxious to see an end to this part of the tragedy in her family.

  Back in Bay Harbor, Charles and Jake discussed their own discovery plan. A letter from opposing counsel had informed them that the deponent for their first deposition following the document production would be Richard Ellington, Vice-President, Research & Development, Cherokee Tractor & Implement Company.

  "How do you propose to handle him?" asked Charles.

  "Well," replied Jake, "that depends a little on what we find in their documents, but mostly we want to establish the basic facts identifying the tractor, confirming they manufactured it and when, and identifying the documents we decide are important enough to be possible exhibits at trial."

  "What about our great industry trade journal stuff?"

  "This isn't the trial. We don't want to give them a free ride on our work product if we don't have to," replied Jake.

  "Not to change the subject, but Bert told me he has made arrangements for us to visit Bobby Pallmeyer."

  "Good," nodded Jake, "I talked with Sarah about that when we were in Hermantown. We need to evaluate the usefulness of a 'Day in the Life' video for trial."

  Jake turned the Jeep onto Lake Avenue in Duluth and headed south from Superior Street toward the Aerial Lift Bridge. They were stopped for the bridge which was raised to permit a Great Lakes ore carrier to pass under the bridge into the harbor. Eventually, after the ship passed through the ship canal and entered the harbor, the bridge was lowered, a bell rang and the wooden arm blocking the street raised permitting traffic to proceed.