by Robbie Tolan
As for money, Berg asked for an eight-figure amount for me and six figures for my parents and Anthony. And then we gave them a deadline to respond. They ignored us. According to our lawyers, they didn’t respond because we asked for too much money. That meant we were headed to court. And this is when things began to get worse for us.
Before you start thinking I’m just some greedy schmuck who is looking to make money from being shot, it’s important to put the dollar amounts in perspective. In the Houston area alone, there had been a bunch of settlements from various police departments.
In the city of Webster, an entrepreneur sued four officers alleging false arrest. He settled for $62,500. The parents of a mentally ill patient who was killed by Houston area cops were given a $150,000 settlement.
Settlements reached nationally included the following. The relatives of Freddie Gray, a twenty-five-year-old man who sustained a fatal spinal cord injury, reached a $6.4 million settlement. The family of Kenneth Smith, a twenty-year-old hip-hop artist who was fatally shot in 2012 by an off-duty officer, was awarded $5.5 million. New York reached a $5.9 million settlement with the estate of forty-three-year-old Eric Garner, who died in 2014 after police used an illegal chokehold.
So I wasn’t out of line thinking that if we were going to settle, not having died shouldn’t work against me when it came to the amount of money the City of Bellaire would pay. This was about making the money amount to a punishment for the City of Bellaire for not having the foresight to protect its citizens from racial profiling, because when taxpayers have to pay, they pay attention.
But the City of Bellaire’s thinking was quite different. Instead of firing Jeffrey Cotton, they decided to promote him from sergeant to lieutenant. I mean, for what? Shooting me? Being a ten-year veteran who’d ruined the life of one of its citizens? His promotion spit in my face and the face of my family, and I was more determined than ever to make the City of Bellaire and the Bellaire Police Department understand that they weren’t just going to walk away from this by doing what they’d always done, which was to ignore the problem of racial profiling and ultimately reward their officers.
Our case landed on the desk of U.S. District Court Judge Melinda Harmon, and if you were looking for someone to advocate for the civil rights of citizens over the police, then this was a worst-case scenario, at least according to our lawyers. They told us she had a reputation of throwing out just about every single civil rights case she ever received.
Judge Harmon had spent most of her time working either for corporations as a trial lawyer, such as for Exxon, or as a judge in district court overseeing cases like the Arthur Anderson obstruction of justice case regarding their officials shredding papers concerning the bankrupt and defunct Enron. She’d gained notoriety by setting legal precedent in this case by ruling that jurors could reach a verdict on the company as a whole, even though they failed to agree on the individual responsible for ordering the shredding.
According to an interview she did with BBC News, Judge Harmon noted that she agonized over the ruling because “I’m kind of in a position of a case of first impression, which is terrifying for a district judge,” she said, aware that her ruling could set a precedent and be subject to future legal challenges.
Little did Judge Harmon and our family know that this wouldn’t be the only case that would set a legal precedent in her courtroom.
But still, we were a bit encouraged when Judge Harmon ordered us to engage in a settlement conference with a magistrate judge, which made Geoff happy. He thought that Judge Harmon could have simply thrown out the case.
Unlike how prepared we were when the Harris County district attorneys Greenwood and Morris worked with us for weeks before the trial, my family and I didn’t feel as prepared for the settlement conference. When my parents, Anthony, and I arrived for the initial conference, there were ten people from the City of Bellaire sitting on one side of the table and just us and our lawyers on the other side. I think the city was trying to intimidate us, but I made sure that I walked into the room and eyeballed each one of their representatives.
We sat across from each other until the magistrate judge arrived, and she escorted us into two jury rooms in the back of the courthouse, with the city in one room and us in the other. As the mediator, the judge was to have us go back and forth with our proposals until, at least theoretically, we came to a settlement. Of course, the City of Bellaire and the police department wanted us to go first. So we made our proposal. But then the judge left the room before we could hear the counterproposal from the city.
With the judge gone for what felt like an eternity, I became impatient and increasingly annoyed by being in the same room with people I’d grown to disdain.
“Geoff,” I whispered to Geoff Berg, as we waited, “if they come back and counter with some bullshit proposal, then I’m leaving.”
Geoff’s eyes got big, and he took me to the side. “You can’t do that, Robbie. You can’t leave before the judge is satisfied that we gave a good faith effort to reach a settlement.”
“Well, then,” I said, not wanting to compromise, “they better not come back with something ridiculous, or I’m serious. I’m out of here.”
“You just can’t leave a settlement conference,” Geoff reiterated. “You just can’t do it.”
“Oh for real? We can’t leave? Watch me!” I said, ending the discussion. At that moment, the judge walked back into the room, and we retook our seats.
When the judge came back into the room, we held our breaths as she read back the city’s offer.
“Their counteroffer was two hundred and fifty thousand dollars,” she said.
I looked at Geoff and then back at the judge. I was incredulous. “Well, your honor,” I started, “with all due respect, but we came down half of what we originally asked for. I have well over two hundred thousand dollars in medical bills, not to even talk about my attorney fees. I’m close to four hundred thousand in debt, and that would come off the top of any settlement I’d receive, and they know this. To be shot by them, and then be repeatedly denied a simple apology, and then you come back and offer only two hundred thousand dollars for my troubles? That’s a slap in the face. And your honor, I refuse to go back and forth playing their game all day, so my family and I are going to leave.”
“Okay,” the judge said. And with that, we walked out, to the astonishment of our lawyers. I think, at that moment, our lawyers began to think we were a lost cause as clients.
For weeks after our walkout, the lawyers kept encouraging us to settle the case, or I might not receive anything. I was okay with that. If we were going to settle, I told them, we were going to settle on my terms, and no one else’s. It was frustrating, though, because we were feeling pressure both from our lawyers, who were trying to sway us to take pennies on the dollar just so we’d stay in debt, and from wanting to beat the city. But in all honesty, I think the seeds of the split between my family and the lawyers had started during the criminal trial.
Geoff had attended several days of the criminal trial, but the communication between us started to wane. What was once a biweekly check-in was reduced to a quarterly email, if that.
I think my lawyers, who saw me in the hospital, didn’t get the essential reason for my fervor. They couldn’t wrap their heads around the idea that my case wasn’t about the money, but about my life. This incident, which was beyond my control, put a pause on my life that I could never get back, no matter how much I rehabbed, worked out, or mentally overcame it. I didn’t want to settle for what would have been a throwaway amount. If I did that, my voice would have been gone.
After we walked out, there were no more talks about settling with the city. Now we were playing a waiting game over who would blink first. But before we could deal with the city, we had to have a heart-to-heart with our attorneys.
My parents set up a conference call with David and Geoff, my main attorneys, and again, they gave us their best sales pitch to try to get us to settle.
After listening for about thirty minutes, I’d had enough.
“I’m really freaking disappointed,” I said, pissed off.
“Why?” David asked, truly surprised and confused as to why I wasn’t happy. That pissed me off even more.
“When you guys first came to visit me in the hospital, my mother asked if you were ready to fight for us. And you know what you said? You told her yes. Then, visit after visit, you continued to come into my room, with my family, and go on and on about how good a case we had, and that Cotton and the City of Bellaire were going down! You were all gung-ho. But now, now that it gets a bit tough, and you all want us to just take any kind of bullshit that they throw at us? This is my life, guys. I’ve been fighting my whole life, and I refuse to fight against people who claim to be on my side.”
“Look Robbie, you’ve got to understand.…”
At that point, I wasn’t interested in hearing what they had to say. This had gone on for months, and it was clear that they didn’t care about what we wanted. So I spoke directly to my parents.
“I’m done,” I said, shouting at the phone. “Mom. Dad. You all can call me back later on if you want to, but I’m done. I’m getting off the phone now.”
After that conference call, the emails stopped, and any contact we had with the lawyers’ office was done through their assistants. The wedge grew wider, but the civil case was moving forward regardless. That meant more depositions for my parents and Anthony, held at the law offices of Berg & Androphy, while I came in later because I was out of town.
The City of Bellaire had hired Bill Helfand and Norman Giles with the legal firm of Chamberlain Hrdlicka, and Helfand conducted my parents’ deposition. George Gibson, the one attorney with whom we’d had the least amount of face time, monitored him. I wasn’t there, but my mom said that the deposition got heated, to the point where Helfand, who apparently is very skilled at rattling people’s nerves, asked my mom several condescending questions such as, “Did you even graduate from high school?” But through it, she stood firm and strong.
Then came my time in front of the lawyers. My dad and mom and Anthony accompanied me to the deposition, and although they didn’t tell me who was going to be there from the law firm, I figured that since I was the star witness Geoff Berg would be overseeing everything—you know, just to make sure I didn’t fall into any legal word traps Helfand was trying to spring on me. But when I got to the law office, in walked a short bald guy who I’d never seen before.
“Hello,” he said, as I reluctantly shook his hand. “Geoff couldn’t make it unfortunately,” he explained, “but I’ve read up on the case, so I’m pretty familiar with it.”
Wait, what? I thought to myself. You guys want to settle this damn thing to the point of sending some guy we haven’t met in two years? Not a single person from our so-called super team of attorneys showed up for my deposition or Anthony’s. I was pretty disgusted and irate, but there wasn’t much I could do about it. As always, my goal was not to be frazzled by the City of Bellaire, Cotton, or the police department. Like the British say, I needed to “Keep Calm and Carry On.” I accepted the circumstances and tried my best to compose myself.
The deposition itself was relatively easy. All I had to do was tell the truth, the same thing I’d been doing throughout this ordeal, so it was extremely easy to keep my story straight. The questions asked of me were no different from what the Harris County DA’s office had asked, what was asked at the trial, or what was asked during the dozens of interviews I’d given. But my attorney proved to be very little or no help.
I’m no lawyer, but it appeared that when I needed my lawyer to speak up, he was getting steamrolled by Helfand. Every time he voiced an objection, he stumbled and fumbled when asked to state the legal objection. It was like it was the first time he’d thought about the question, and it was embarrassing. Even though I handled the questions just fine, I think the city felt that it had the momentum because they appeared to be more unified and competent than my team.
Now, I was already irate, but something that happened during one of our several breaks really pissed me off. During the breaks, each side would go to a break room for privacy and confer with their attorneys. Our break room was on the second floor, and near the end of one our breaks, we heard a knock on the door.
“Hey guys, how’s it going?”
It was Geoff Berg. Not only was Geoff in the building during our deposition, but he had the gumption to walk in on our meeting like nothing was wrong, like he hadn’t made time to be there himself. My blood began to boil, and my parents could see it. I expected him to defend me, not to pop in to see “how it’s going.”
I walked by Geoff as though he didn’t exist, while my dad tried to make small talk in order to lower the tension. As I stood by the stairs, my mom came over and I guess my face did a bad job of disguising my disgust.
“I know,” she said without me saying a word.
My dad joined us, and as we walked up the stairs toward the conference room where the deposition was being conducted, standing outside the conference room door was Helfand, who represented the city, and Joel Androphy, the partner in Berg & Androphy, the law firm that was representing me, yucking it up as though they were best friends.
Sure, Androphy wasn’t representing us technically or legally, but his legal partners were, and I thought this was a huge conflict of interest—not legally maybe, but perception-wise for your clients, the Tolans. And no, I can’t hold it against the two men if they have a prior relationship and a good rapport, let me say that it wasn’t a good look.
So when I saw this, a thousand thoughts ran through my mind. I even started to wonder if the two sides had an under-the-table deal that we didn’t know about. I started thinking that that would explain why our attorneys were so adamant about trying to settle for such a small amount of money. Every time we had told the lawyers we weren’t interested in settling, they’d had a clear look of disgust on their faces. At the end of the day, I realized that their desire to settle had other motivations, including their recognition that we, and they too, could ultimately end up with nothing.
What they didn’t know is that I didn’t care about the case being thrown out. They were predicting that scenario, but then again, they predicted that we’d never get an indictment from the Harris County DA’s Office, and how did that work out? But more importantly, I didn’t give a damn about being left with nothing if the case was thrown out. Making the City of Bellaire pay a fair amount and having Cotton and Edwards apologize was about me having my voice heard. Being broke with a lot of bills? Not my main worry; I’d been broke before, I would be broke again, and I was broke now. But the one thing this private introvert has never been is quiet. It may take some effort to pull it out of me, but when I do speak, I own that voice. Having Bellaire pay was that voice speaking loudly. In any event, my conclusion was that Berg & Androphy had lost confidence in the case and they wanted out.
I don’t blame the lawyers for wanting to take care of themselves. My main problem with the lawyers is that they made us think they were better than that when they walked into my hospital room and convinced my family members, who were at their most vulnerable, that they were genuinely concerned about fighting for justice.
After the depositions, we endured more months of waiting, and by then, my family wanted to be rid of the firm, and based on the firm’s lack of contact with us, I’m sure the feeling was mutual. I needed people who would fight, who would show up at a deposition and represent their client and not send one of their coworkers.
One day, I looked at my phone and saw that I’d missed a call from Geoff, which I knew was important because we hadn’t heard from him in months. He left a message on my voicemail, but it was pretty vague. But only a few minutes later, my mom called in a panic.
“Hey, did you talk to Geoff?”
“No, I just got the call. What’s up?”
“The judge threw out our civil case and has ordered us to pay the officers’
court costs,” she said.
“What?” I was incredulous. Yeah, I knew it was possible the case would be thrown out, but to also have to pay the court costs? That was the literal definition of adding insult to injury. So when I got off the phone with my mom, I immediately called Geoff to see what was happening and why it happened.
“Judge Harmon determined that Cotton and Edwards were protected by qualified immunity, so she dismissed the case,” Geoff said, genuinely sounding distraught from the news.
Judge Harmon wrote the following in her ruling: “Under the doctrine of qualified immunity, public officials, such as police officers, acting within the scope of their authority are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional law.”
Judge Harmon ruled that she believed that Cotton feared for his life and did what any reasonable officer would have done in the same situation. Call me a bit skeptical, but what is reasonable to one officer may be bad training to another. And in the case of my shooting, you almost have to assume that the reasonability bar had been set as low as possible.
According to Jody Armour, a professor at the University of Southern California Law School, “all these [police shooting] cases turn on how reasonable the perception was that a black young man posed an imminent threat of harm. That’s always the question.”
“We’re not appellate attorneys,” Geoff said. “But I can have my assistant compile a list of appellate attorneys who could possibly handle any appeal that you’d like to file.”
A few days later, I got another call from Geoff. His voice was sober, almost humbled.
“What’s up?” I asked him.
“Just wanted to call you myself and tell you that I left Berg & Androphy,” Geoff said.
Whoa, I thought. I had issues with the firm and its lawyers, but I never thought Geoff would leave his firm.