The Ultimate Resolution

by Dave Sullivan

  "Your Honor, Plaintiff rests," announced Jake.

  CHAPTER TWENTY-SEVEN

  That weekend Jake and Charles decided to return to Bay Harbor. Plaintiff's case-in-chief was finished. They both felt some sunshine in the Apostles was good medicine. Friday, after court, they drove north from Minneapolis in Jake's Jeep Cherokee. On Monday morning, Judge Hawthorne was holding Special Term for other cases for motions and other hearings which did not involve testimony. The Pallmeyer case would not start again until 1:30 p.m., so Jake and Charles did not have to leave Raspberry Bay until Monday morning. They met Bert and Sandy for Lake Superior fish boil in Cornucopia late Friday night and planned a relaxing weekend.

  Saturday morning, sitting down below at Resolution's dinette, Bert sat next to his wife and sipped his coffee. He looked up at the hatchway. Bright sunlight shone on the cockpit and glinted off the large stainless steel wheel.

  "Sun's out. Nice day," Bert observed looking up toward the hatch. "Why don't we take this fancy boat of yours for a ride and take our minds off this case for a while."

  "Good idea," Jake said. He rose to stow the coffee pot and mugs.

  Resolution motored slowly out of Hanson's Marina as Bert and Charles raised the sails. Sandy took the mainsheet, standing in the cockpit in front of Jake.

  "That's it! Cleat it!" yelled Jake, as he shut down the diesel.

  Resolution heeled slightly to a ten knot westerly breeze as she sailed northeast out of Raspberry Bay.

  Jake stood at the wheel looking at the channel between Oak and Raspberry Islands.

  Stanton sat beside Jake on the port cockpit seat looking across at the mainland of Raspberry Point. Jake knew he was watching for his house up on the hill to come into view.

  Bert Hanson stood on the foredeck, his hand on the forestay, looking back from the bow at the view of Resolution's slight heel on a broad reach under both jibs, full main and mizzen. Sandy sat on the foredeck in front of the mast, her favorite seat to view the surroundings.

  A steady compass course of just under forty-five degrees would take Resolution past Oak and Otter Islands to the south tip of Rocky Island. No change of course and little adjustment to sail trim was needed.

  The four friends were where they most enjoyed being. Lush green islands in every direction. The sharp high cliffs of Oak Island and the mainland were imposing when viewed from water level.

  At the north end of Otter, Jake changed heading to about due east. Resolution ran down wind between Otter and Rocky for a few minutes and then resumed a northeast heading to reach the anchorage at South Twin Island.

  "Trim!" called Jake, as he turned to the northeast around Rocky's south sand spit.

  Bert Hanson and Charles Stanton pulled in the sheets to trim back to a beam reach to sail off Rocky Island's east shore.

  "Well, Jake," Bert grinned. "Not bad. The whole trip without tacking or jibing. You're getting good . . . or lazy."

  "Why bother with all that work? The whole way on port tack." Jake smiled and adjusted the big wheel.

  Resolution anchored off South Twin Island. The anchorage, protected between South Twin and Rocky, was quiet.

  Stanton surveyed the surroundings from the deck and beamed. "Smooth water, sunshine and eighty degrees! Can't beat this!"

  Sandwiches and cold beer were served up to the cockpit by Sandy Hanson. As the four sat eating, the conversation turned to the Pallmeyer case.

  "I think we are in wonderful shape!" Charles was obviously confident and pleased with the events of Friday. "I know we worked hard to build the liability and damages aspects. Our product research and legal research gives a strong foundation and pretty good evidence for the jury, but that engineer's report is the frosting on the cake!"

  "It certainly gives the liability part of the case some real 'pizzazz,' I'll give you that," acknowledged Jake.

  Charles Stanton looked out over the water, surveying their beautiful surroundings. "You know, lying here at anchor, and even looking over Oak and Raspberry last night from my deck, I almost wish the case were over, so we didn't have to go back. On the other hand, I can hardly wait for the trial to start again on Monday. It seems funny."

  "I know," said Jake, "it's exciting, but I'll be glad when it's over and we return to the life we have chosen. At least at this point, our case is in. Apart from some judicious and cautious cross examination, we are pretty much through. We have given it our best and had more than a little luck, I'd say. Mostly what remains is to see whether our best will be good enough."

  "I hear that," said Charles.

  In Hermantown, Sarah Pallmeyer answered the ring of her doorbell to find a gentleman dressed in gray pants of twilled cotton, white socks and loafers, and a red polo shirt.

  "Good afternoon," he said as she opened the door, "Mrs. Pallmeyer?"

  "Yes."

  "My name is George Horvath. I've come to talk to you about your son's case."

  "Well, I don't know," she said. "My attorney is in Wisconsin."

  "I know," he said, "but this will only take a minute and it could be very important to you. May I come in?"

  "Well, I guess so." Sarah Pallmeyer was hesitant, but did not see how she could refuse without being rude.

  "Thank you," said Horvath, walking into the neat living room. "I have a proposal which I think you will find most attractive."

  "Please," she gestured toward the couch, "sit down."

  "Mrs. Pallmeyer," began Horvath speaking in smooth sympathetic tones, "Cherokee Tractor & Implement Company believes firmly in the quality of its T-350 tractor, as you know, but the company feels bad about what happened to your son and does not want to see you go through more trial, more cross examination of you on the witness stand, more time for your son in court and come away with nothing." He paused to let this sink in.

  "Bobby back in court?" She was genuinely concerned. "I didn't know that. He's gone back to Greysolon."

  "I know," said Horvath with understanding, "but if the trial continues, the defense will probably have to bring him back and put you back on the stand too. They don't want to have to do that."

  Sarah Pallmeyer sat in her chair in silence, apprehension clearly visible in her expression.

  "I am here in the hopes of relieving you of going through that and at the same time to offer you something good for both you and Bobby."

  She looked at him, still saying nothing.

  "Cherokee proposes to offer you $120,000 to settle the case. Your lawyers will get a third so that only leaves you and your son $80,000. On a side deal strictly between you and the company, we'll pay you another $100,000 that you don't have to split with the lawyers. That way the trial will be over and you'll have a lot more money than you'll have after next week when this trial ends and all you have are bills."

  "I don't know . . .," she said softly.

  "I understand fully," Horvath said, "but you're in a tough spot. You have got to take advantage of any opportunity for Bobby. All you have to do is tell your lawyer that you want to settle and accept the $120,000 offer. After that we can make separate arrangements for the other $100,000. I'll even have them get you that money right away, before the formal settlement goes through. Should I tell the company you'll do it? Should I have them start to cut the checks?"

  "Well," Sarah studied her shoes, "it does seem to be the best thing to do for Bobby."

  "There's no doubt about that," said Horvath in agreement. "Say that you'll tell your lawyer to do it and I'll get things rolling, " he persisted.

  "Okay," she sighed with resignation.

  "Fine! Fine!" Horvath smiled broadly, stood and put a hand on Sarah's shoulder. "You'll not regret this. It's best for Bobby."

  After he left, Sarah called Hanson's Marina in Bay Harbor. When she was told that Jake, Charles, Bert and Sandy were all out sailing for the weekend, she left a message for Jake to call her before Monday.

  "We can do better than that, Ma'am," said the clerk in the Ship's Store. "We'll raise Resolution on the marine
radio and Jake can call you through the marine operator."

  "Thank you very much," said Sarah, hanging up the phone.

  In a surprisingly short time, her phone rang. It was Jake using his marine radio on Resolution. Sarah explained Horvath's visit and his proposal. Jake was boiling mad, but he maintained his calm. He explained that the contact, if orchestrated by one of the lawyers was clearly unethical. However, he pointed out, it still represented a considerable amount of money, if she were interested.

  Sarah explained to Jake her response to Horvath.

  "I didn't want to talk to him. I finally said what I said so he would leave. He was so persistent," she said. "I'm afraid I don't do too well with people like that. It's a good thing he wasn't selling something."

  "He was," responded Jake. "Do you want to proceed with the trial and finish it?"

  "I do," she said.

  "Are you sure you don't want to take their offer of settlement?" he asked.

  "I am," she said as firmly as this shy, pleasant woman ever said anything.

  "Then, said Jake "don't worry about it. I'll take care of it on Monday. You get some rest and we'll see you Monday afternoon."

  "Okay, Thank you, Jake, I feel better now. Good bye."

  On board Resolution, Jake returned the microphone to the marine radio and turned to his companions who had all been listening to the radio conversation.

  "Jesus Christ, Jake," said Bert, "these are some dirty sons of bitches you're dealing with. I'd like to have been there when this Horvath bastard showed up."

  "And I'd have helped you take care of him," said Sandy. "That's a terrible thing to do to Sarah."

  "What should we do?" asked Charles.

  "I'm not sure yet," Jake was thinking, "but I think it might be best to do nothing. Ignore them."

  "What?" Bert looked incredulous.

  "If they think there is a settlement, however dirty, let's see what they do," said Jake, leaning on the chart table. "Remember, our objective is to win this case. Let's not let anything get in the way of that."

  CHAPTER TWENTY-EIGHT

  They met Sarah at the courtroom at 1:00 o' clock. At 1:30, Judge Hawthorne's entrance was announced by the bailiff.

  "Please be seated," he said to the people in the courtroom as he took his seat. "Is Defendant ready to proceed?"

  "Your Honor," said Everett Whittemore, "I believe counsel have something to discuss with the court in chambers that might shorten matters."

  The judge looked at Jake who simply shrugged his shoulders in response.

  "Well, anything that will shorten matters. Counsel, come back," said the judge as he turned and retreated toward his chambers. "Tell the jury we will be a minute," he told the bailiff.

  In chambers, Judge Hawthorne remained standing beside his desk still wearing his robe. "Well what is it?" he addressed Everett Whittemore.

  "I believe a settlement is in the works, your Honor." He looked at Jake.

  "Jake?" inquired Judge Hawthorne.

  "Not that I know of, Judge," said Jake. "If there's an offer, it hasn't been made to me."

  "What?!" exclaimed Whittemore in surprise. "You know perfectly well . . .," he stopped in mid-sentence, as if reconsidering his statement. He looked at his associate, George Ballard.

  "Well, I'm not sure what is going on here," said the judge, "but if there aren't any settlement discussions to have, then we have a jury waiting."

  "As they left the judge's chambers, Whittemore approached Jake. His voice seething with contempt, he hissed, "Maybe you should talk to your client!"

  Jake whispered his response. "The next time you have somebody talk to my client, I'll have you disbarred. Now let's get back to work . . . and bring that little shit with you." He gestured at Whittemore's associate, George Ballard.

  Back on the bench, Judge Hawthorne ordered the jury brought in and addressed counsel. "Now, is the defense ready to proceed?"

  "We are, your Honor," said Whittemore. "We would like to begin with our opening statement."

  "Bailiff," called the judge, "bring the podium, please. Mr. Whittemore, you may proceed when you are ready."

  "Thank you, your Honor," said Whittemore moving toward the podium to address the jury.

  He kept his opening statement brief. Again he stressed the defense of product misuse, stating simply that the instructions were clear, they were not followed, and had they been followed, this terrible tragedy would not have occurred. His response to the Robert England Report was carefully prepared.

  "You have seen this so-called 'report' purportedly authored by an engineer in the employ of my client," he said, "but you have also heard Mr. Richard Ellington, the head of Research & Development, now and at that time, testify that he has never seen that report until here in this courtroom. And you will hear from Phillip Marquard, President of Cherokee Tractor & Implement Company, that he has never seen that report before. Was that report ever sent to anyone? Was it supported by any real scientific evidence? Was it ever even really written by an employee of my client? Even if it had been, would Cherokee's Research & Development section have accepted it? The testimony will show you that they still do not. These are the questions you will have to consider and to which the defense evidence will be directed. That evidence will show you that there is no evidence establishing that this report was actually received by my client or ever was a part of its records. There is no evidence that the report has any merit, then or now."

  Whittemore reviewed the anticipated testimony of Ellington and an independent engineer regarding the state of the art in 1965 and the controversy over the necessity of ROPS.

  When he was done, he thanked the jury and advised the Court that the Defendant was ready to call its first witness.

  Defendant calls Mr. Richard Ellington, your Honor," announced Whittemore.

  "Very well," began the judge, "Mr. Ellington you may come forward. Remember, you are still under oath."

  Even though Ellington had just been on the stand, Whittemore treated him like a brand new witness, taking him through his personal background, describing his family and detailing his experience and longevity with the Cherokee company.

  Jake knew it was important for Whittemore to make Ellington his own witness in spite of the earlier cross-examination. And he's doing a good job, thought Jake.

  With Ellington, Whittemore followed the pattern of his opening statement, reinforcing what he had there and lending credibility to him and his client. The direct examination lasted until after 4:00 o'clock.

  "Cross examination, Mr. Kingsley?" the judge raised his eyebrows.

  Jake found nothing further to cross examine Ellington about. He certainly did not want to disturb the results of last week's cross with the England Report and the following Winthrop testimony. "No questions, your Honor."

  Defendant's next witness was its "independent expert." Nothing surprising there. He disagreed with Plaintiff's experts, but did not provide some clear cut answer to the meaning of life or the problem at hand. Nevertheless the testimony promised to be tedious and lengthy. At 4:30, Judge Hawthorne adjourned court for the day.

  That evening, Jake and Charles enjoyed a pleasant meal of spare ribs at the Market Barbecue in downtown Minneapolis. They felt good about the case. The best preparation now was relaxation and a good night's sleep to be ready for Defendant's witnesses.

  The next morning, the expert testimony continued.

  Bert Hanson saw Jack Green coming out of the Green Concourse carrying an overnight bag. The Minneapolis International Airport was doing its usual brisk business on a Tuesday morning.

  "You're up early, Jack," he said, shaking Green's outstretched hand. "What time did your flight leave St. Louis?"

  "About 7:00 o'clock," said Green, "It wasn't too bad."

  "What's up?" asked Bert. "I got your message just as I was leaving for the courthouse."

  "Maybe something good for both of us," said Green. "Join me on a short hop to Sioux Falls this morning and I'll tell you
."

  "What, now!?"

  "Yep."

  "I don't have a ticket."

  "Already taken care of. I've got yours right here." He pointed to his inside suit coat pocket. "Just find me the far end of the Gold Concourse."

  "The far end?"

  "That's right."

  "Of the Gold Concourse?"

  "Yeah, that's what they told me at the last gate," said Green.

  "Well, that's about a mile from here," said Bert a slight smile forming on his lips.

  "What!?"

  "Yeah, but you can stand on a people mover almost the whole way," Bert grinned widely now. "Come on!"

  Jake's opportunity to ask questions of the expert witness came after lunch. His cross examination was very brief. Jake did not want to give the witness more opportunity to attack Plaintiff's witnesses than absolutely necessary.

  Finally, Whittemore called Phillip Marquard. The distinguished looking President of Cherokee Tractor & Implement Company walked confidently to the witness stand.

  "State your full name, please, sir," said Everett Whittemore.

  "Phillip S. Marquard," said the witness in a loud clear voice, turning to smile at the jury.

  During Marquard's direct examination, two muscular looking middle-aged men in business suits entered the rear of the courtroom. Turning at the sound of the door, Jake recognized Bert Hanson talking to another man, then turning to walk forward toward the counsel tables.

  On the witness stand, Phillip Marquard was telling the jury about the history of Cherokee Tractor & Implement Company and its development of its pride and joy, the Cherokee T-350 farm tractor.

  Bert Hanson leaned over the shoulders of Jake and Sarah and whispered, mainly to Jake, but also to Sarah and Charles. "We need to talk," he said, struggling to keep his deep voice in a whisper.

  Several jurors were watching. Judge Hawthorne looked over the bench. "A problem, Mr. Kingsley?" The judge did not appreciate one side causing distraction during the other side's presentation.