by Ron Liebman
No, not really. You get your day in court. Doesn’t matter if you’re some street hoodlum or some fat-cat corporation. That’s by design: to protect the innocent more than simply to punish the guilty.
The GRE case was not anything like this cut-and-dried criminal case. But it, too, had that mix of needless and necessary. As I sat at counsel table in the federal courthouse earlier that morning before coming over here, waiting for our judge to take the bench, I knew that storm clouds were brewing. My case was still afloat, though the seas were about to shift from merely choppy to rough.
But I felt like I might have found my sea legs.
30.
She was full of her usual piss and vinegar.
“Now, look,” Judge Belinda Brown was saying. “This is getting out of hand. I don’t like the way these two cases are progressing. Too slow. Way too slow. Something isn’t right here. I told you both last time heads were going to roll. What? You didn’t think I meant it?”
Judge Brown glared down at Peter Moss and me through her unfashionable eyeglasses. Tongue-lashing lawyers seemed her default way of doing business.
The courtroom was empty of spectators. Moss’s associate, Harold Kim, was seated beside him, just like last time, with that same smug look on his face. But unlike last time, Jeremy Lichtman was seated out in the gallery beside Gloria Delarosa.
Up here with me was a new lawyer who’d been hired from some other law firm to represent the hedge fund that had been added as a defendant in the Dunn & Sullivan fraud case. Seated beside him were two other lawyers hired from two separate law firms to represent Dunn & Sullivan and me. That’s right, lawyers for lawyers.
But why two, one for Dunn & Sullivan and a separate one for me?
Two answers.
Number one is the clinical/professional answer: There is always the possibility, though theoretical only, of a conflict of interest developing between my interests and that of my law firm.
Number two is the strategic (real) answer: It would be easier to isolate me and feed me to the wolves if the same lawyer didn’t represent me and my law firm.
I knew both answers but thought the “theoretical only”—at that point—was a part of them both. I called Anka about this.
Her response:
“How many times do I have to tell you, Carney? Keep your eye on the fucking ball. Don’t worry about theoretical shit. How fucking hard is this for you to understand? Worry about your own fucking clients.”
Then she hung up.
Anka’s usual way with words.
So why were we all gathered there in federal court that morning?
Discovery was by then well under way, though far from completed. Things were indeed getting out of hand. Thanks to all the lawyering. Some would say overlawyering.
To review the bidding: Peter Moss had filed a motion to throw out my asset-seizure case against GRE. I had filed a Rule 11 sanctions motion against Moss for having brought his separate fraud case against Dunn & Sullivan. Then Moss sued me, too. This is new, but Moss also filed his own Rule 11 sanctions against me for having filed my Rule 11 sanctions against him. (Still with me here?)
And on and on and on. He filed this. We filed that. Everything under the sun was asserted by one side and objected to by the other. Big Law at its best. Or worst. The case was bogging down. Legal fees were hitting the roof.
The judge must have been monitoring this. Forests were being cut down to generate the mass of paperwork hastily written and even more hastily filed. So it was Judge Brown who had summoned us before her that morning. She was going to stop all this and put these two companion cases back on track. A fast track.
She was determined to get to that place where she could see who was doing what to whom without all this unnecessary maneuvering by the lawyers. But first she had her eye on me.
“Mr. Blake,” she said.
I got to my feet.
“Your Honor?”
“Well, Mr. Blake,” she said, “you are now no longer just a lawyer in this dispute.”
“True, Your Honor.”
“Don’t you think it would be prudent for you to step away from the GRE case? Let some other lawyer handle it? How can you trust your judgment as an advocate when you’re being accused of some pretty egregious conduct as a party in the other case?”
I didn’t like the way she was looking at me.
The guy who was my lawyer started to rise. I saw it in his face (so far he’d spent all of five minutes with me) even before he uttered a single word. This milquetoast was about to try to appease the judge. At my expense. I waved him back down.
Remember, fuck me once, shame on me . . .
“No, Your Honor, I don’t think it prudent for another lawyer to take my place. Can I tell you why?”
“I’m all ears, Counsel,” she said, letting me know this better be good.
“Your Honor,” I heard Peter Moss say as he rose to his feet. Ready to slip in an advanced barb or two at my expense.
I watched him button his suit jacket, then quickly glance down at Kim. Watch this. Now back up to the judge, with that toothpaste-commercial smile. Hey, can I help out here, Judge?
“The judge asked me, not you, so sit down,” I told him, in what was a clear break from decorum. Counsel addresses the judge. The judge addresses counsel. Counsel do not address one another. Let alone issue orders to sit the fuck down.
Moss stayed on his feet, shaking his head in sad amusement. Who did I think I was, telling him to sit down? He looked over to the judge for reinforcement.
“You heard him. Sit down,” the judge said.
“You Honor, before I—”
“Down, Counsel. Now.”
Peter Moss retook his seat. I watched his smile fade. Kim stared off into deep space. No percentage in letting the boss know he’d overplayed his hand.
“Mr. Blake?”
“Yes, Your Honor,” I said, ready for this, I thought. “This case isn’t really about Indian trials and Indian judgments. And it most certainly isn’t about me—”
“I’m not so sure I can agree with that,” she interrupted. “Your entire case, your effort to seize assets, is in full reliance on that very Indian court judgment. And you are the lawyer using that judgment here in this court. Or I should say trying to. Don’t you agree?”
“No, not really, Your Honor.”
“How so?”
“You see—” was as far as I got before Moss sprang back up.
“Your Honor is absolutely—”
“One more word out of you, Mr. Moss, and I will hold you in contempt.” As Judge Brown said this, she patted the air in front of her like Moss was an unruly pup in canine obedience school. “Down,” she ordered again.
Moss said nothing. Retook his seat. Pissed. Kim was now busy studying the great seal up there on the wall high above the judge’s head.
Okay, the judge liked that I had finally figured out how to lawyer. Still I told myself, Don’t push this too far.
So, carefully choosing words, I told her how what really mattered here was what had happened to the plant workers and their families. That case was clear—solid, even—I told her. GRE was negligent, grossly so, and had caused all the damage and injury that was no doubt proved before the Indian judge and would be proved by me before her in the case we’d filed in this court. What might or might not have happened procedurally in the Indian court? Didn’t matter, I said.
For some reason, as I said that, I shifted my gaze over to Moss and Kim. Both were glaring at me. And that told me I was doing something right here for once.
So I went on to tell the judge that this case was so clear I intended to bring in new independent expert witnesses directly to her, who would provide their opinions, untouched by legal hands, on GRE’s outrageously negligent and wanton behavior.
“You make an interest
ing argument, Counsel,” Judge Brown told me after I finished. “I’m not sure I buy it, but time will tell.”
Then she turned to Moss. “Okay, Mr. Moss. Up. Let’s hear it.”
Moss stood. But something had changed. He seemed no longer interested in saying anything.
“As Your Honor said, time will tell.”
Then he sat down.
Still on my feet, I watched him, saw something in his eyes. A flash. I think that was the moment Peter Moss realized I wasn’t just some fumbling kid lawyer.
Then it was back to the lecture from the judge. She severely shortened the time period for us to finish discovery. She made us both agree on the record that we understood and would comply with her wishes.
“No further delay, Counsel. You got that?”
“Yes, Your Honor,” Moss (back on his feet) and I sang in unison.
Then she dismissed us. And this time Moss didn’t come over to me. Didn’t treat me to his usual false bonhomie. He got up and walked out of the courtroom, leaving to young Mr. Kim the job of collecting his papers.
And I was feeling pretty good. Jeremy came over and patted me on the back. Nice job.
That’s when I decided to take the rest of the day off. I treated myself to a couple of slices of thin-crust pizza. And then I walked over to the criminal courts to catch the afternoon session of Diane’s drug-murder trial.
All good.
But Peter Moss was far from through with me.
31.
Peter Moss on the line.
He called first thing the next morning.
“What can I do for you?” I said.
There was a pause, and then.
“Actually,” Moss said. “It’s what I can do for you.”
“Really?”
And then he surprised me.
“I’m prepared to drop you from the case. With prejudice.”
I said nothing. There was clearly more.
“Here’s the deal, Moss said. “You agree to testify for me at trial. Look, we both know whatever took place in India is fucked up. You testify that you didn’t see it at first. Then you did. You resigned from your firm because they insisted on continuing with the case. And now you’re making amends by becoming a witness for our side and confirming that fraud in fact did go on in the Indian case and that Dunn & Sullivan knew it then and knows it now.”
“You’ve got to be kidding.”
“Not in the least. And trust me, you’ll be better off in the long run with a job in some other law firm. Maybe once this is over, I can even help you.”
What Peter Moss was proposing was just not done. This wasn’t some criminal case where the prosecutor cuts deals with some of the defendants to flip over and testify against other defendants in return for leniency. This was civil litigation. A commercial dispute. Not some . . . what? Drug-related murder trial.
“Quit my firm? What are you smoking?”
“I’m going to give you exactly two days to think this over,” he said, pausing. Then adding, “You seem like a nice guy. I really don’t want to hurt you. But listen, this won’t end well for you if you don’t take my deal. I can’t go into detail. But get out now while you still can. You just need to trust me on this.”
Trust him? He was my adversary, and he wanted me to trust him?
“I don’t need two days. Or two minutes. Offer declined.”
“Yeah, well, take the two days I’m giving you and think about it. Get some independent legal advice. Like I said, I don’t want to hurt you. But I will if you get in my way.”
“Your what?”
“Get some counsel,” he repeated, then hung up.
I didn’t run this by Anka. I’d been to that well too many times as it was. And I had no intention of discussing anything with the outside legal counsel Dunn & Sullivan got for me.
Besides, what was there to talk about? I remember thinking.
Moss was asking me to become his litigation bitch. That was all this was. Who in his/her right mind would do something like that?
On the third day, I got a package from Moss’s office. Inside were new pleadings. The hedge fund had been dropped from the case as a defendant. With prejudice. And then had reentered the case as co-plaintiffs with Moss against Dunn & Sullivan and me. Their claim?
We had lied to them, as much by omission as commission. Had they known the truth about what had happened in India, they said, they wouldn’t have put one red cent into the case, let alone the millions they’d invested for our legal fees on the strength of our assurances that what we had was a good, clean case.
In the package was also a copy of a letter Peter Moss had sent to the New York bar.
He had filed what was called a grievance against me. His intent, the letter said:
My disbarment.
32.
Shit. Fuck.
Those were the first two words of my notes from back then.
I just reread my notes from around that time. It triggered the same fist-to-the-stomach feeling, just as it did when I first wrote them. I thought again about Diane telling me this was just a job. That I needed to keep things in perspective. And of course that is exactly what I did not do. Bye-bye, sea legs.
I was entrenched in my first case as lead counsel. My firm’s chairman was at best keeping me at arm’s length and at worst playing me. I’d been sued, and now I was also facing a bar grievance proceeding where my license was in jeopardy. (And I hadn’t even considered that I might also be indicted for criminal behavior, let alone put on trial.)
It was very clear from my notes. My take back then? This was all about me. And of course it wasn’t all about me. In so many ways this wasn’t about me at all. I was a small player in a much bigger game. But I was frightened and I was angry. A bad combination for a lawyer.
It was that kind of behavior that put my relationship with my girlfriend in the penalty box. (Tell you about that in a minute.) It also affected how I reacted to unfolding events. And, man, were there unfolding events. Some case-related, others simply the shit that happens.
Where to start?
The sequence doesn’t really matter. So I’ll begin with Carl Smith.
33.
New York was experiencing a premature temperature uptick.
It was early in the season, but we were in a mini heat wave. It wouldn’t last more than a few days. Global warming, most everyone said. So Carl had broken out his spring suits.
He was feeling pretty good as he walked into his office that day all Brioni-ed up.
The Dunn & Sullivan IPO was at the starting gate. For Carl it was now a matter of when and no longer if. Sure, there were still a few wrinkles that needed ironing out. One in particular was going to cost him some serious money. So what? he thought. There was going to be a ton of money coming his way, and this latest snag was simply one of those costs of doing business. Nothing more.
So Carl was feeling pretty good. (The GRE case? No longer his problem. By the time it exploded, or imploded—if it did—Carl and his IPO would be a distant memory.)
Carl sat at his desk. His secretary had come and gone with his coffee and morning mail. He sipped at his coffee, leaving the mail unattended, catching up instead on e-mail. When finished, he next ran his eyes over the day’s schedule. “Lunch at bank.” Then he turned to his snail mail, flipping through it to see what might be important and what could wait.
The envelope had been marked “personal and confidential,” and there was a layer of Scotch tape over the flap. No sender’s name on it, just Carl’s name and address, handwritten. His mind really elsewhere, Carl tore open the flap and then angled the envelope so that its contents could slide out.
The photos were eight-by-ten glossies. A series of them. Instinctively, Carl’s brain slammed into lockdown, wouldn’t admit into his consciousness what he was seeing. Two seconds later,
the power back on and the gates back up, his hands started shaking. One of the photos slipped out of his grip and slowly sailed downward. Carl’s heart was hammering a mile a minute. Oh my God oh my God oh my God.
Carl was on his knees trying to fish the escaped photo from under his desk where it had landed, lodging itself in a far corner. A clump of his hair rubbed itself out of place on the underside of the desk’s center drawer. His phone was ringing, though it barely registered on him. It was the ringtone that signaled his secretary calling, no doubt with some routine reminder for him. The ring shut off, and a moment later came a knock on his door.
“Mr. Smith. Carl?” his secretary said as she carefully opened the door.
Carl was back on his feet, the renegade photo firmly in his grip but face out, its image directly within his secretary’s line of vision. She looked down at it, then up at him and his wild hair, then down again, then up at him again. What the . . . ? her eyes screamed. Frozen, barely letting out breath, staring at the close-up of her boss with his boy toy in full Florida fellatio. Then at him, then down, then up. Not a word from either of them. Finally she managed to reverse gear and slowly back her way out of his office, closing the door so softly that Carl couldn’t even hear the latch click.
Carl retook his seat. Stunned. “Shit. Fuck,” he whispered to himself. (My very words.)
It wasn’t often that Carl Smith lost it. Until that moment? Maybe never. He furiously tore the photos to pieces. Ripped them to shreds. Then what? Where to put them? He was having trouble breathing. Was he hyperventilating? He dropped the lacerated pieces on his desk. He retrieved the envelope, thinking he’d stuff them in there. That was when he noticed the note. He stuck his hand in and extracted it.
It was handwritten. Penned by Polly’s divorce lawyer (you remember Iván the Impaler). It never did make its way into evidence, destroyed as it was by Carl along with the photos, but Iván Escobar later testified he remembered it word for short word: