by Dave Gerard
When I looked down, I felt a sense of vertigo. The wall was sheer, and extended farther than the eye could see. It faded into a murky darkness where the rays of the sun ended. I felt cold water emanating from down there, and wondered how deep it went. It gave me a thrill, as if I was standing on the edge of an abyss.
I looked up, and suddenly saw that the figures of Thompson and Ashley were far above me. I hadn’t realized how deep I’d gone. I felt a twinge of panic. But Thompson noticed, and immediately swam down and brought me up gently.
Thompson later told me that the wall went down nearly a thousand feet. He wouldn’t take most divers more than a hundred feet down, if that. To go deeper, you needed special training, and even special gas mixtures to breathe. Diving at that depth came with all sorts of dangers that could injure or even kill an experienced diver. Nitrogen narcosis. The bends. I didn’t know what they were, but they sounded ominous. Thompson had been down as far as two hundred feet once. Word was that Jared Diamond had been deeper, and maybe David Marcum too.
After the second dive, we headed back to Aqua Ray. We took off our heavy scuba tanks and dried off on the beach, soaking up the last rays of the Key West sun. I was exhausted, in a good way. The bar was closing, and almost everyone had left.
We changed back into our clothes. Thompson gave us his cell phone number and told us to call if there was anything else he could do.
“Thank you for your help,” Ashley said sincerely. “And for the dives. They were amazing.” I nodded my agreement, beaming from ear to ear.
“Yeah. No problem, girl. And when you find out what happened to Dave, let us know. We all liked your brother, you know?”
“We will,” Ashley said firmly.
As we left Aqua Ray. As we left Aqua Ray, the setting sun casting a faint reddish hue into the sky, I looked back once. Trevor Thompson was facing away from me, behind the bar. I saw his broad back as he reached up and grabbed a liquor bottle from the top shelf. There was a big tattoo in faded green ink across his shoulders. It said “SeaLubber65.”
Back at the hotel that evening, I looked up the Mel Fisher case that Thompson had mentioned. I was curious to see whether there was any truth to the tale. Surprisingly, there was. Mel Fisher had actually found the wreck of an old Spanish galleon called the Nuestra Señora de Atocha, and the government had tried to take it away from him. The case was a complicated, multi-year saga that made its way through various judgments and appeals. It even landed in the U.S. Supreme Court at one point.
The Supreme Court opinion was typically dry and boring. But the opinion below, by the Fifth Circuit Court of Appeals, was more interesting. It was styled Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978). I printed out a copy at the hotel’s business center. Then I went up to my room and made myself a cup of hot tea. I sat outside on the balcony facing the ocean, and read.
This action evokes all the romance and danger of the buccaneering days in the West Indies. It is rooted in an ancient tragedy of imperial Spain, and embraces a modern tragedy as well. The case also presents the story of a triumph, a story in which the daring and determination of the colonial settlers are mirrored by contemporary treasure seekers.
In late summer of 1622 a fleet of Spanish galleons, heavily laden with bullion exploited from the mines of the New World, set sail for Spain. Spain, at this period in her history, was embroiled in the vicious religious conflicts of the Thirty Years’ War and desperately needed American bullion to finance her costly military adventures. As the fleet entered the Straits of Florida, seeking the strongest current of the Gulf Stream, it was met by a hurricane which drove it into the reef-laced waters off the Florida Keys. A number of vessels went down, including the richest galleon in the fleet, Nuestra Senora de Atocha. Five hundred fifty persons perished . . . . A later hurricane shattered the Atocha and buried her beneath the sands.
For well over three centuries the wreck of the Atocha lay undisturbed beneath the wide shoal west of the Marquesas Keys, islets named after the reef where the Marquis of Cadereita camped while supervising unsuccessful salvage operations. Then, in ١٩٧١, after an arduous search aided by survivors’ accounts of the ١٦٢٢ wrecks, and an expenditure of more than $٢ million, plaintiffs located the Atocha. Plaintiffs have retrieved gold, silver, artifacts, and armament valued at $٦ million. Their costs have included four lives, among them the son and daughter-in-law of Melvin Fisher, plaintiffs’ president and leader of the expedition.
I spent a half hour reading through the whole opinion, fascinated. I looked the up the judge who wrote it. His name was Walter Pettus Gewin. He was appointed to the Fifth Circuit Court of Appeals in 1961 by John F. Kennedy. He could have been a novelist, I thought.
As it happened, the Fifth Circuit was the federal appeals with jurisdiction over Texas too. There were thirteen federal appeals courts in the country. The Fifth Circuit used to cover Florida as well, until Florida split off into the Eleventh Circuit in 1981. Judge Gewin had died that same year.
I sorted through the convoluted legal history of the case. In 1971, Fisher made a deal with the State of Florida. He agreed to give Florida one-quarter of the proceeds from the Atocha in exchange for salvage rights. This was based on the understanding that the Atocha was in Florida waters. But in 1975, the U.S. Supreme Court ruled that Florida didn’t have rights to those waters. So Fisher didn’t pay them. They fought about this in court for several years. Fisher won.
But after Florida got knocked out, the federal government jumped in. The government claimed it had rights to the Atocha under the Antiquities Act, which makes all historic objects and sites “monuments of the United States.” The court rejected this argument, finding that the Antiquities Act didn’t apply outside the territorial waters of the United States, where the Atocha was found.
After losing that one, the government tried to argue that it owned the treasure as the “successor to the prerogative rights of the King of England.” That didn’t make any sense, since the ship was Spanish, not British. But the government came up with the harebrained scheme that, because in ancient England, abandoned property belonged to the Crown, and because the successor to the Crown in America was the federal government, ergo the abandoned property of the Atocha belonged to the federal government.
Needless to say, Judge Gewin called the government out on this tortured logic (in a more measured way than I would have) and ruled for Fisher. Later, U.S. Supreme Court declared Fisher the final winner in 1982. I tried to imagine what Fisher had gone through. The years of searching, the millions of dollars spent, the loss of his son, all capped off by years of litigation against the government. I didn’t think I would have had the wherewithal to stand it.
Judge Gewin described the Atocha as holding “a treasure worthy of Midas: 160 gold bullion pieces, 900 silver ingots, over 250,000 silver coins, 600 copper planks, 350 chests of indigo, and 25 tons of tobacco.”
Buried somewhere in a footnote, the court fixed the modern-day value of the treasure: 450 million dollars. I blinked when I read it, thinking it must be a typo. But it wasn’t. I looked it up online, and came up with the same figure. Thompson and Diamond had been right. In fact, they had understated it.
I put down the opinion and went inside. I felt relaxed. I left the balcony doors open wide and fell face first into bed. I listened to the sound of the palm trees swaying in the wind, and the warm ocean breeze blowing through the window. I fell asleep dreaming of lost seas and Spanish gold.
FIVE
The next week at the office, I put aside the mysteries of the Marcum case to focus on more mundane matters. Kruckemeyer was complaining that I was spending too much time on vacation in Florida and not enough time billing hours. So I took care of a few things in the class action suit, and then pulled up the file on the employment discrimination case I had been neglecting.
The plaintiff in this case claim
ed that he was fired from a Mongolian barbeque restaurant because he was Mongolian. The trouble with his claim was that the owner of the restaurant, as well as most of the staff, were Mongolian as well. The real reason the guy had been fired (within weeks of being hired) was that he had shown up late, drunk, and/or high on several occasions, received five customer complaints in the space of a single day, and then, in the final straw, had been caught pissing in the mung-bean soup.
The guy wasn’t going to win the case. Any jury would laugh him out of court. But it could easily take several years, and tens of thousands of dollars, to get the case all the way to a trial. An employment discrimination case usually presents a “fact issue”— legal jargon for “he said, she said”—which requires a jury to resolve. A judge won’t usually toss it out early on a motion. The owner of the Genghis’s Golden Grill didn’t understand how he could be sued over this, and why he had to pay us all of this money to defend it. But that’s America for you.
I opened a letter that I had received from the opposing attorney. It was accompanied by a thick set of discovery requests.
Dear Mr. Carver:
Please find attached my client Mr. Altantsetseg Batu-Bayarmaa’s first discovery requests. As you know, we are entitled to responses within thirty days pursuant to the rules of civil procedure.
Do not even think about objecting to these discovery requests. Mr. Batu-Bayarmaa’s entire life was overturned by your client’s salacious actions in terminating him solely because of his race. Accordingly, we will accept nothing less than full and fulsome responses to each and every document request, interrogatory, and request for admission. If you do not provide this, we will not hesitate to seek a court order, and also seek attorney’s fees, costs, sanctions, and any other available options at our disposal…
This went on at some length, and then went on to list the settlement demand: 500 thousand dollars. When I read this, I nearly choked. The letter was signed with a flourish by attorney H. Hubert Thung.
A lot of times, you’ll find that the character of an attorney matches that of his client. This case was true to form. I looked up Thung online. He was a young guy, probably not more than twenty-six years old, who had no idea what he was doing. He fancied himself a crusader for justice, and since, as far as I could tell, he didn’t have any other cases, he was going ham on this one.
I took the letter over to Kruckemeyer’s office and sat down in a huff. He spent a few minutes reading the letter while I stewed.
“Salacious,” Kruckemeyer said with a frown. “Is that even the right word?”
“No,” I said. He finished reading the letter and gave it back to me.
“How can he ask for that much money?” I burst out. “The guy worked there for three weeks and made fifteen hundred dollars. Now he wants half a million. It’s outrageous!”
Kruckemeyer chuckled. “Now, now. Settle down. This is the usual game. A bit on the high side, but it’s the oldest trick in the book.”
“How do you mean?”
Kruckemeyer waved his hand. “Plaintiff’s attorney starts out with a big number. A ridiculous number. You know it, I know it, everybody knows it. But now, you’ve got five hundred thousand dollars stewing around in your head. The client’s got that stewing around in his head. So later on, when we talk real settlement, maybe ten thousand dollars, it doesn’t sound so bad. See? You ask for the store, maybe you get a piece of it. The psychologists call it ‘anchoring.’”
“Huh,” I said, surprised to hear Kruckemeyer quote psychology. He was a wily old fox.
“Screw that,” I decided. “We should give him nothing.”
“Heh. I hate to tell you, but we will probably have to give him something. And worse, we’ll only be able to give it to him after we spend some coin fighting this Thung guy. Now. What are they asking for?”
I handed him the discovery requests that came with the letter. They sought every document under the sun. There were also interrogatories, which were written questions that we had to answer under oath. Finally, there were some requests for admission. That’s where the attorney makes a statement and asks if it’s true or not. There were about sixty of them, and I could already see they were chickenshit:
Admit that you wrongfully terminated Altantsetseg Batu-Bayarmaa.
Admit that you do not not have a policy of employment discrimination.
Admit that no witnesses saw Altantsetseg Batu-Bayarmaa urinate in the mung-bean soup.”
Kruckemeyer chuckled at these. “Okay, Jack. You know the drill. Object and respond. Then figure out what documents we actually need to give them.”
“Should we try to give them something reasonable? Or take a hard line and say no?”
“Eh. Sounds like this Thung guy is real Viet Cong. He’s going to drag us to court no matter what we do. So may as well say screw ‘em. Go hard. But not too hard, I don’t want the judge to sanction us. Gotta walk the line. Okay?”
I sighed. “Okay.”
“Good. Now, how’s the class action case coming? I think we’re going to need to tee up a seventh motion to compel. Let me fill you in on the details…”
Toward the end of the week, as I was finishing up on the discovery requests, I walked by the conference room. I stopped when I saw what was going on inside. The partners were all in there, yelling at each other.
I wandered over to Vijay’s office, which had a partial view. The conference room was paneled in glass, so you could see what was happening inside. I could make out muted shouting, although I couldn’t hear what was being said. Harder was in Vijay’s office pretending to discuss a case. He mimed showing a stack of documents as Vijay nodded in mock concentration. But they were really just watching the show.
“What are they yelling about?” I asked.
“Dunno,” said Harder. “Some type of conflict.”
He meant a conflict of interest. A conflict is when representing one client could hurt another client. For example, you can’t represent someone in a lawsuit and then turn around and sue them in the same lawsuit. The ethical rules prohibit it, and lawyers can get disqualified for doing it. That example is obvious, but most conflicts are more subtle.
The argument continued for a while, and then Kruckemeyer pointed a finger straight through the glass at us. He pressed the intercom and an assistant appeared. Kruckemeyer said something to her, and a moment later she walked out and approached us.
“Shit,” whispered Harder. Then, more loudly, he said “I think we need to cross-check the responsive documents so we can validate our assumptions…” But he quieted down as the assistant ignored him and walked up to me.
“Mr. Kruckemeyer would like to see you in the conference room,” she told me in a hushed voice.
“Ooooh,” said Harder and Vijay together, like schoolgirls.
“Shut up,” I said, and went.
Kruckemeyer beckoned me in and bade me take a seat. I did so, feeling uncomfortable. I knew most of the partners, at least in passing. But this meeting was above my pay grade.
I quickly picked up on what was going on. It was the Marcum case. We had run a conflicts check on Rockweiller Industries and discovered that a partner at the firm, Carl Wurlheiser, had done some work for them a few years back. So now the partners had to decide whether we could take the case. Wurlheiser and Kruckemeyer seemed to be the primary antagonists, judging by the direction and volatility of their hand gestures.
“She needs our help, Carl,” Kruckemeyer was saying. “We already said we’d take the case. We can’t back out now and leave her to the wolves.”
“Don’t play the sympathy card with me,” retorted Wurlheiser. “You should have run a conflicts check earlier,” he said. “You knew about Rockweiller’s involvement from day one.” Wurlheiser was a skinny man in his mid-forties with a pinched face and horn-rimmed glasses. He did contracts and drafting work. I didn’t like him.
“I don’t make the ethical rules,” said Wurlheiser.
I chimed in at this point. “I didn’t realize the case was going to be adverse to Rockweiller,” I said. “She came in to ask for help probating a will. After I found out, I ran it through conflicts as soon as I could.”
Kruckemeyer seized on this. “You see? We didn’t know, Carl. What’s the problem here?”
“The problem is that they are one of my clients,” Wurlheiser shot back.
Kruckemeyer slammed his fist down on the table. “Dammit, Carl, you haven’t done any work for them in a year. And they weren’t even sending you much back then. It was a couple hundred thousand dollars, that’s it. And it has nothing to do with a wrongful death case. There’s no conflict here.”
“Just because I haven’t got work from them in a while doesn’t mean I won’t get it in the future,” argued Wurlheiser. “If you sue them, we never will.”
“In the future? Come on. I heard you lost that account after you got drunk and hit on their new assistant general counsel at a bar association mixer. Stephanie Rivera, was it?”
Wurlheiser turned red. “That’s completely untrue! There was a transition. She wanted to work with her own people.”
“Right. A transition.”
“I’m not going to sit here and listen to this!”
“Fine, fine. But look, we can’t just leave this Ashley Marcum character to herself now. We’ve agreed to take on this pro bono case. We’ve got a duty—”
“Bullshit! You just want a payday.”
“Well so do you! And look at the economics of this. It’s a death case. There’s already a settlement offer on the table. Anything we get is shared among the firm.”
The partners nodded at this. The bottom line. Wurlheiser shook his head, seeing that he was losing.