The Ultimate Resolution

by Dave Sullivan

  Several large bankers' boxes of documents had been placed on the conference table. While Ballard sat in the corner, each man tackled a box at a time, pulling individual folders, going through them one page at a time. Occasionally, they would huddle in hushed discussion over something one of them had found. Each was armed with yellow and red Post-it flags to identify pages to be copied. Jake knew that Ballard's instructions were to have two copies made of all the requested documents so the defense attorneys would know what plaintiff's attorneys had taken. It was a standard practice which he would certainly have used in the same situation.

  The document examination took a day and a half. The photocopies they requested would be mailed to Bay Harbor within a week. They also had fairly comprehensive notes of what they had seen, including notes on potential witnesses and other possible sources of documents.

  In the airplane on the way back to Minneapolis, Charles said, "Well, I don't think they gave us everything."

  "How can you know that?" asked Jake.

  "I'm not sure," answered Charles, "but I just don't feel right about the way it was handled. That young lawyer Ballard was watching us like he thought we might take something."

  "I agree," added Bert Hanson. "I don't even know what they were supposed to give us or what they could have that they didn't give us, but I don't trust 'em."

  "Well, I don't doubt that they only gave us what we asked for, and if our request wasn't stated just so, they may have held back something we want but we didn't specifically request. They would say that's our tough luck."

  "Seems like a dumb system to me," muttered Bert, accepting a Coke from the steward. "One set of lawyers tries the hardest they can to ask for everything important to the case and the other set of lawyers tries as hard as they can not to give it to them."

  "The rules do lend themselves to that," Jake smiled, "but they are going to change. It's starting in federal court now. More open and voluntary disclosure is being required. It's a good thing."

  With the document production behind them, Jake and Charles could prepare for the deposition of Cherokee's representative, using some of the documents as deposition exhibits and Bert could extend his investigation to include some of the potential witnesses revealed by the document search.

  But, before that, as Stanton noted, "but first we should be able to get one more day of skiing at Spirit Mountain before the season ends."

  "You guys go ahead," said Bert. "I've got work to do while you two play."

  "Come on, Bert, you know what they say," said Stanton. "All work and no play makes Bert a dull boy."

  CHAPTER TWENTY

  Jake felt the cool air of spring skiing in Minnesota on his cheeks as he carved short turns on his way down the hill. He was on a ski run called Gandy Dancer at Spirit Mountain in Duluth. Half way down he stopped to take in the view of the St. Louis River valley below. To the east he could see the Duluth Harbor, the Aerial Lift Bridge and Lake Superior beyond.

  Jake and Charles Stanton had been skiing under the quad bubble lift on Four Pipe, an easier run, when Charles decided to go in for warmth and hot chocolate.

  "You go ahead, Jake," he had said. Take a couple of runs on Gandy. I'll be fine in the chalet for a while. I'll meet you there when you're done."

  Jake planted a pole, unweighted his skis and started down the lower half of the run. From the bottom of Gandy Dancer, he took the triple chair to the top of Gandy and skied west to the chalet past the entrances to Blue Ruin and Skyhooker. As he skied up in front of the Chalet to the ski corral, Charles came running out on the deck waving his arms.

  "Jake! Jake!" Stanton cried. "Jake! Bert's been injured!"

  "What happened?" Jake was releasing his bindings and stepping out of his skis.

  "Car accident. He's in a hospital in St. Louis. There was a message here. I called the marina office and they told me. They got the call about an hour ago."

  Jake shouldered his skis and started toward the ski corral. "What do you know about how he's doing?"

  "He is in intensive care, but apparently he'll be all right. They were worried about internal injuries and I guess that's not a problem. He's got a broken arm and some pretty bad scrapes and bruises, though . . . and he's mad as hell!"

  "You talk to him?"

  "Yeah. I got through to him on the phone from here. His spirit is fine, but there's something you should know."

  "What?" Jake looked at Stanton.

  It was like a shadow passed over the big professor's face. "The car missed a turn and went over a small ridge. Bert thinks somebody messed with his rental car."

  "What the Hell?!" Jake exclaimed. "Who would do a thing like..."

  "I can't figure it," Stanton interrupted Jake, "but Bert thinks it has to do with his investigation."

  "Shit!" Jake slammed a ski pole into the wooden deck. "What have we got ourselves into?"

  "Do you think it has to do with the case?"

  "Well, I've often wondered when it would happen...or if it has happened. Sometimes these cases involve enough money, when you consider other claims that might be made once the hazards are recognized and publicized, that may be enough to lead to real trouble...'extra-judicial pressure.'" Jake handed his skis to the attendant who gave him a plastic card with the number of the rack where his skis would be. They hurried into the chalet to remove ski boots and get ready to leave. Jake continued. "Remember the asbestos cases. Major bankruptcies because of the flood of personal injury claims."

  "I remember, but do you think a manufacturer would resort to violence over a products liability case?"

  Jake thought about it. "If the potential exposure were great enough, perhaps...or if there is something else we don't know about. I wonder."

  "Yes, me too. I wonder, too." Stanton looked worried. This was going beyond his environment of libraries and classrooms and he didn't like it one bit.

  They found a phone in the chalet office where they could talk privately.

  "I'll be fine," Bert told Jake when they called his hospital room in St. Louis, "but I'm pissed."

  "Charles said you think it wasn't an accident."

  "Think? I know," Bert's anger came through clearly, "I was right. A local cop did me a favor as a professional courtesy. Name's Jack Green. He spotted me as law enforcement right off."

  "What did he do?"

  "Green checked the car for me. Steering was tampered...fixed so it would fail after a while, just long enough to get to the highway and up to speed. They knew what they were doing."

  "Where were you going?" asked Jake.

  "I was checking some of the names that came out of that document production. You know, there were names of people involved at Cherokee back at the time of some of that correspondence in the late fifties and early sixties I thought might still be around."

  "Well?"

  "Well, I went to the public library and used the old city directories for the time and found most them and verified them as the Cherokee employees named in the company files we looked at.. Then I compared with the current phone book and actually found a few still in the St. Louis area."

  "Did you talk to any of them?"

  "No." Bert's anger began to come through again. "I was on my way south of the city to see one of 'em when my steering left me. High banks and ditches there. They really knew what they were doing!"

  "They knew where you were going?"

  "Looks like," said Bert.

  Jake was silent a moment in thought, then, "Why would anyone do that to you? Any idea?"

  "Haven't a clue, except I have no other connection to this town or this part of the country, so it must be this case."

  "I can't imagine why," said Jake.

  "Me either. Maybe you stirred up a bigger hornet's nest than you expected."

  "It's certainly more than I expected. I still don't see how it's connected, if it is," Jake was troubled. "When will you be able to travel?"

  "I'll probably be out of here tomorrow if they don't find something else wr
ong. I'll have one wing in a sling for a while, but I'll be all right."

  "Well, this puts a new light on the case. We need to meet and decide where to go from here, if anywhere."

  "I'll be out of here tomorrow or Thursday. I'll see you then," said Bert.

  "All right, see you then." Jake hung up the phone. He didn't like this. This was a civil case. Physical violence or danger wasn't part of the deal. He would have to make some decisions.

  Thursday morning Jake and Charles drove to Duluth in Jake's Jeep Cherokee to meet Bert and Sandy at the Duluth Airport. On the trip back, driving along U.S. 2 and 53 to the Highway 13 turn off, the three men's faces were grim. Sandy sat in the back seat with her husband.

  "Intentional violence is no part of the bargain in handling a civil lawsuit." Jake broke the silence. "Certainly you two don't have to stay involved if there's a risk."

  "You chickening out?" growled Bert, his left arm held against his body by a navy blue sling of hospital issue.

  "No, but there are all kinds of tactics to deal with in civil litigation and this kind of thing isn't one of them," said Jake. "If you're right about your 'accident' then maybe we are into something we can't handle."

  "You are chickening out." Bert glared from under his bushy eyebrows.

  "I don't think so, Bert." Charles Stanton turned to look back at Hanson. "It's not like Jake to run from a fight. I think he's feeling responsible for us and our client."

  Bert nodded agreement and stared out at the white countryside.

  "Well, I do feel responsible," said Jake. "Look at Bert. What good is a deck hand with one arm?" He winked across the front seat at Stanton and caught Sandy's attention in the rear view mirror.

  "By the time Resolution's ready to go in the water, my arm will be just fine," said Bert looking at Jake. "Besides," he grinned broadly, "We own the marina," he nudged Sandy with his good arm. "We say when she goes in the water. Better be nice to me."

  Jake was happy to see Bert's usual good humor was not far away. He could see that Sandy was pleased too. If her husband's usual gruff humor was not present, she would be worried about him.

  "Seriously," he slowed the car for the exit as Highway 13 left Highways 2 and 53 a few miles east of Superior to turn north toward the big lake, "if there is a danger, we may not be able to fight it. We certainly can't use violence or criminal action like someone is apparently willing to use against us."

  He brought the Jeep back up to highway speed for that two-lane road and continued. "Also, what does fighting these tactics do for our client? She needs compensation for her son, not any great civil justice for society or retribution for Bert's situation."

  "Hold on, the two are not inconsistent," Stanton responded. "If somebody went after Bert because he was onto something that would help Sarah's case, then winning Sarah's case is a way back at them."

  "I'm sure if we found out who is screwing around and nailed them good, it wouldn't hurt Sarah's case either," Bert added.

  "Well, if we stick it out, we are going to have to be careful and keep a weather eye," said Jake staring ahead at the road.

  The sun shone brightly on the snow covered fields and woods along the Brule River as they traveled north, everyone in the car silently considering these new developments.

  "Nobody pushes me around like that," Bert suddenly announced to the world and his three companions. "I won't let them intimidate me."

  "Easy, Bert!" said Sandy, putting her arm around his shoulders. "Really!"

  "Bert," Stanton looked at him, "you don't know who they are, but whoever they are, if you're right, they weren't trying to intimidate you. They tried to kill you."

  "And it's time to get even." Bert patted his sling. "What about it, Jake?"

  "I'm with you," said Jake. "This lady has a right to bring this lawsuit. So let's do it, let's be careful, and let's nail the bastards."

  "Amazing what a nice morning drive through the country can do for your fortitude, Jake," said Stanton.

  Bert reached over the back of the front seat and rested his good hand on Jake's shoulder. "Right, Charles, he does have guts. 'Let's get 'em' is right, Jake"

  Jake guided the Jeep along the narrow highway as it followed Lake Superior's South shore through Port Wing, Herbster, Cornucopia and eventually to Bay Harbor. As they drove, the three men discussed assignments. Bert was to go back to St. Louis in a few weeks to follow up the lists of names of Cherokee employees compiled from the document production. Sandy remained undecided as to whether she would let him go alone. He also planned to talk more with Detective Jack Green about his car accident. He also planned to be a lot more careful this time. His skills and instincts developed over twenty-five years as a Chicago police detective would be working full time. Bert remained undecided as to whether he would let Sandy go with him. Jake and Charles silently and independently decided to stay out of that decision process.

  Jake had received Defendant's Motion for Summary Judgment which would keep Jake and Charles busy for a while.

  Sarah smiled her appreciation as Charles Stanton handed her a cup of steaming coffee. She sat at Stanton's dining table that had often been used as a conference table or work desk since the beginning of the Pallmeyer case. Jake sat across from her. He was explaining to her their theme of the case as it had developed with their legal research and their product research. Also he was showing her how they would present the case on behalf of her and her son at trial.

  "We use a trial notebook method of trial preparation," he said. He held up a three ring binder which contained a lot of different colored pages separated by printed tabs. He opened to the table of contents which contained an outline.

  "This is a system I developed a long time ago," he said. "It's simply an outline of the trial. Except for Section I. 'Trial Brief,' each section is a part of the trial appearing in the book in chronological order. He showed her the outline:

  I. TRIAL BRIEF

  A. Chronology of Facts

  B. Pleadings

  C. Issues

  D. Point Briefs

  E. Theme of the Case

  II. PRE-TRIAL CONFERENCE

  III. VOIR DIRE

  IV. PLAINTIFF'S OPENING STATEMENT

  V. DEFENDANT'S OPENING STATEMENT

  VI. PLAINTIFF'S CASE-IN-CHIEF

  VII. MOTIONS

  VIII. DEFENDANT'S CASE-IN-CHIEF

  IX. PLAINTIFF'S REBUTTAL

  X. SURREBUTTAL

  XI. MOTIONS

  XII. PLAINTIFF'S REQUESTED JURY INSTRUCTIONS AND VERDICT FORM

  XIII. DEFENDANT'S SUMMATION

  XIV. PLAINTIFF'S SUMMATION

  XV. JURY INSTRUCTIONS

  XVI. VERDICT

  XVII. MOTIONS

  XVIII. NOTICE OF APPEAL

  "Are you already planning on an appeal?" Sarah asked as she finished scanning the list.

  "No," laughed Jake, "that's just there as a reminder to take action if needed. Actually we would make a motion for new trial before we used a notice of appeal anyway and then only if we were dissatisfied with the result and thought the judge or jury made a mistake that we could get overturned on appeal.. This is just a notebook with designated places to put information as we prepare for trial as we are really doing even now. Then that information is refined and better organized just before trial so the notebook becomes the reference and outline for trial. We like the system. It has always served me well."

  Charles nodded. "I've watched him use this notebook system, Sarah. It is very effective when he uses it."

  Jake showed her the section on Plaintiff's case-in-chief. "As plaintiff, we go first with the evidence, calling the first witnesses. You see here," he pointed, "there is a numbered tab for each of the witnesses in the order we expect to call them. Behind each tab are the notes for the testimony of that witness. Before trial, the notes will become chronological outlines of their testimony."

  "It all sounds very thorough," she acknowledged.

  "All the teachers and all the experts say t
he three keys to good trial work," said Charles rising from the table, "are 'preparation, preparation and preparation.' But enough of that. I understood lunch at Maggie's was on the agenda. Will you be joining us, my dear?"

  "I already tried, Charles," said Jake.

  "Yes, thank you," said Sarah. "I promised to be at the Greysolon Health Care Facility by 3:00 o'clock." She glanced at her wristwatch. "I barely have time to stop at home and get down there by that time if I leave now."

  "We'll miss you," said Charles. "Be real careful driving back."

  At their favorite back booth at Maggie's, Jake and Charles enjoyed cold draught beer and the "chef's special burgers" with unusually large-cut French fries. Jake noted with pleasure the number of people with blue or black faces, their eyes white like the tan of a skier who wore goggles. It was similar for good reason. These were people who were readying their boats for the spring launch which would begin in a few weeks. They wore goggles and masks as they worked under boats in cradles, sanding anti-fouling bottom paint, which was usually blue or black. An occasional boater would arrive with brown, copper, or the unusual red face. They all seemed ecstatic at being back, working on their boats and anticipating the sailing season. Many owned boats in Bayfield, but had not been back since the boats went into the cradles the previous fall.

  "Time we started on Resolution," said Stanton, noting his friend's interest in the patrons and their conversations.

  "You volunteering?" Jake smiled.

  "You bet!" said Charles, reaching for a French fry, "I wouldn't miss it, as long as you'll put up with me. You love that boat so much it's just fun to be around you when you're working on it."

  "Maybe I need to get a life," Jake responded to Charles' comment.

  "Most people would kill to have the life you've got," laughed Charles. "Speaking of working, when do we start working on the response to their summary judgment motion?"

  "Let's split the afternoon between the boat and the motion," said Jake, looking at Charles. "How's that? That'll teach you to open your big mouth," he grinned.