by Brad Parks
“Who else?” I said.
“Well, Clarence Worth is part of a six-lawyer team for LJR. Then you’ve got three from Graham, Fallon and Farley from D.C. I’m assuming they’re there for the FDA stuff. They’ve got McDowell-Waters doing their patent work. That’s another four, I think. And then they’ve got two from Edgerton, Alpert & Sopko to round it out.”
Edgerton, Alpert & Sopko was a local firm in Norfolk. Their role would be to smile a lot and try to wrangle favors out of my staff. They were hired out of legal necessity—someone representing ApotheGen had to be admitted to practice in federal court in Virginia—and on the presumption they might be able to wrest some small piece of home-field advantage from the plaintiff.
It was, all told, fifteen defense attorneys, not including in-house counsel. Given their rates for litigation, we were probably looking at about ten thousand dollars an hour worth of high-powered legal representation. If you were Roland Hemans, with his two associates, it was a lot to have stacked against you.
Just another reason why it made sense that Hemans might go about ensuring the outcome in a different manner.
“Sounds like a full house,” I said. “And what were you and Jean Ann thinking about doing with them?”
“Could we just lock them in the room and tell them not to come out until they settle?”
He was joking, though I had known judges who had done something close to that. Obviously, I couldn’t allow it here.
“Probably not,” I said. “How’s discovery looking?”
“Well, Hemans wants to depose the entire world—seventeen scientists, along with ApotheGen’s division head, the CFO, and the CEO, Barnaby Roberts. He’s also asked for a pile of documents and notes and things like that. I’m sure Worth will try to whittle it down, but ultimately I think we’re going to have to give Hemans most of it.”
“Okay. And what kind of schedule were you and Jean Ann thinking about proposing?”
“We were going to say six months for discovery, knowing Worth would probably ask for more. So we’ll probably give them eight. Then we’d schedule the Markman for another two months.”
Ten months without Emma. It was unthinkable.
Still, I said, “Got it. All right. I think we’re set, then.”
“Are you going to be joining us?”
“Yeah,” I said. “I’ll stop by for a little bit to say hello.”
And then I would turn the entire case on its ear.
THIRTY-TWO
I waited a full hour into the proceeding before tapping lightly on the door to Room 214. I figured by that point they would be deep into it.
I followed the door in as Jean Ann was opening it, allowing me to glimpse the room before anyone inside realized the judge had arrived. There was a long conference table with room for eight chairs on each side. The defense had obviously gotten there first, because it had chosen the side with the windows at their backs, following that bit of pop psychology that said people with a large open space behind them appear more powerful than people who are backed up against the wall.
All eight of the chairs on the defense side were full, with another eight or nine people lurking behind them. I was sure I didn’t want to know about the negotiations that determined who sat and who stood.
On the plaintiff’s side, there was Roland Hemans, his two associates, and Denny Palgraff. I would have said they looked pathetic by comparison, except Hemans was such a physical presence. And he had exaggerated it by spreading himself out, filling three chairs’ worth of space. The New York Times had called this case David vs. Goliath. Maybe that was true, but Hemans still made for one hell of an imposing David.
As I fully entered the room, whatever conversation had been going on immediately stopped. Everyone stood, delighted to be in my presence. This is an inescapable part of being a judge: People suck up to you all the time.
The introductions were a series of too-broad grins and forced laughter. Hemans actually stooped, using the full length of his arm to keep himself at a distance, not wanting to loom over me. He understood what impact his size and skin color had on many people. He didn’t want to intimidate the little white judge.
On the defense side, the man who led the charge was Clarence Worth, the first chair from Leslie, Jennings & Rowley. He was a slim white man, a shade over six feet tall, with a polished, well-bred air about him.
Then came Vernon Willards, ApotheGen’s in-house counsel. The names after him were a blur—other than that none were Paul Dresser. I was aware some of them had no real purpose in a Rule 16B Conference. They had traveled to Norfolk from New York, Washington, or wherever primarily for the three seconds they would have their hand pressed to mine.
It was stupid. But as far as they were concerned, it was part of the game. And, besides, ApotheGen was footing the bill. I made it all the way around the table until I reached the last person, a distinguished white-haired gentleman whose face I had seen before.
“A pleasure to meet you, Your Honor. I’m Barnaby Roberts,” ApotheGen’s CEO said in a polished Oxford-and-Cambridge accent, such that the first syllable, “Bar,” came out in a rich, broad “Bah.”
It told me everything I needed to know about the importance of this case to ApotheGen that the chief executive would drop everything and attend what should have been a routine scheduling meeting.
The only person in the room who didn’t try to ingratiate himself was Palgraff. He stuck out his chest and thrust up his nose as he shook my hand, making it as clear as he could that he did not consider me his intellectual equal. After all, had I applied for my first patent when I was thirteen? Did I have a PhD at twenty-one? No. As long as towering genius Denny Palgraff was there, we were all just vying to be the second-smartest guy in the room.
“Take a seat, everyone, take a seat,” I said, and all who actually had a chair assigned to them made use of it. I remained standing and said, “I trust Mr. Freeland has been taking good care of everyone this morning?”
Jeremy beamed. The lawyers smiled.
“Excellent. And how are we coming with a discussion of a settlement? Any progress?” I asked, because it’s what a judge had to say in such a setting.
Hemans, the alpha male, immediately jumped on the question. “Your Honor, I’ve given the defendant every opportunity. They haven’t been interested.”
“Your Honor,” Worth said, already sounding exasperated. “The plaintiff has asked for either a fifty percent share of all Prevalia profits for the life of the patent or a onetime payout of fifty billion dollars. We don’t see how we can talk about a settlement with someone who is being so unreasonable.”
“Unreasonable?” Hemans boomed. “You want to take my client’s patent and—”
“Thank you, Mr. Hemans,” I said, and Hemans quieted. “It sounds like we’re fairly far apart on a settlement. Where are we with discovery?”
I pretended to listen as the two sides bickered back and forth. The gist of it was that Worth thought seventeen scientists was excessive. Ten, in his mind, was sufficient. Also, he was balking at turning over many of the documents and e-mails Hemans requested, saying it would be compromising too much of ApotheGen’s proprietary information. I let it play out, then asked about scheduling, which prompted another round of pointless conversation.
“Okay, okay,” I said, acting like I was losing my patience with their squabbling. Which, in a way, I was. “There doesn’t seem to be a lot of agreement on anything here.”
I surveyed them as if they were a room full of unruly truants. “Ladies and gentleman, I am aware of the importance of this case and of what’s at stake,” I said. “And I could send these disputes to a magistrate judge, but I’m going to save us all a lot of time and expense and tell you how I want this to go.”
There was a lot of leaning forward in chairs around the room as I continued.
“First of all, on the mat
ter of discovery, I agree with Mr. Worth that seventeen depositions seems excessive. I’m going to cut it to ten. Mr. Hemans, you can choose which ten are most important to you.”
Worth allowed himself a brief, smug look of triumph, which I quickly stamped out:
“However, I think Mr. Hemans’ document and e-mail requests are all very reasonable. We’ll keep them good and sealed so ApotheGen doesn’t have to worry about its competitors nosing around in them. I don’t have any concerns about Mr. Hemans’ discretion. And we’ll have Mr. Palgraff sign an aggressively worded nondisclosure agreement as well. Does that sound fair?”
Neither side would have dared disagree. It was, so far, the kind of Solomon-like baby splitting for which judges were notorious. But I wasn’t done.
“Now, as to the scheduling. As I’m sure you’re all aware, I granted a preliminary injunction on Friday. Given Mr. Roberts’ public comments about bringing Prevalia to the marketplace regardless of potential patent impingement, I felt I didn’t have a choice.”
Roberts flushed. I went on: “That said, I am deeply concerned about delaying the rollout of a drug that could potentially prevent millions of premature deaths. The law calls on me to weigh the greater good in decisions such as these, and in this case the public interest is very clear. I refuse to let this court stand in the way of such an important drug any longer than it absolutely has to. Therefore, you have two weeks from tomorrow to complete discovery. And we’ll have the Markman hearing the Friday after that.”
Into the orderly world of civil procedure, I had just thrown a concussion bomb. One of the lawyers from Graham, Fallon and Farley actually had his jaw hanging down. Another one—from McDowell-Waters, I think—made a sound like he had been punched.
It was Worth, the seasoned trial lawyer, who recovered first, albeit haltingly.
“But . . . but . . . Your Honor . . . with all due respect, you’re talking about completing a year’s worth of work in . . . in . . . less than three weeks?”
“Yes, I am, Mr. Worth,” I said evenly. “So I suggest you get busy.”
“But I don’t know how—”
“Oh, stop sniveling,” Barnaby Roberts declared, standing and pointing his finger at me. “This is outrageous. Not even three weeks to prepare for a case this intricate? It’s ludicrous. You can’t do that!”
Worth began the delicate task of trying to soothe his employer with: “Mr. Roberts, we’ll be fine. If you could—”
“No, we will not be fine. This is . . . this is absolutely unacceptable! There have to be rules against this. We’re filing an appeal. Now.”
“Mr. Roberts, you can’t appeal this,” Worth said through clenched teeth.
“This is ridiculous,” Roberts said, pointing at me some more. “Who do you think you are? What kind of kangaroo court is this?”
“Barnaby, shut up!” Worth yelled, then turned to me: “I’m terribly sorry for my client’s outburst, Your Honor. Of course the court is right. And of course we’ll comply with your schedule, providing Mr. Hemans can cooperate.”
“Mr. Hemans will be just fine,” the big lawyer said, not bothering to suppress a smug grin.
“Very good,” I said. “I think we’re done here.”
The kidnappers wanted speed? They now had it. And then some.
The room was silent as I walked to the door. As soon as it clicked behind me, the shouting began.
THIRTY-THREE
In what remained of the workday, I buried myself in paperwork, which the federal judiciary excels at creating and which made for an excellent excuse not to have to talk to anyone.
That night, I returned to the emotional minefield that was my home. I had a brief conversation with Alison, making inquiries about her and Sam’s day. To Alison, this would have seemed like a mental health evaluation—how was she? how was Sam? what did they do? But as soon as she wasn’t around, I checked all the details with Sam. At least on their day, their stories corroborated.
After a quiet and strained meal—alongside an empty spot at the dinner table it hurt too much to look at—I fell asleep in front of the television. I was too exhausted from several nights’ worth of interrupted and nonexistent sleep to even make it to Sam’s bedtime.
At some point, I woke and shifted to the guest bedroom, a fact Alison and I did not discuss the next morning before my departure.
As I commuted in, I was looking forward to a genuinely uneventful day at work, a hope that was dashed as soon as the limestone edifice of the Walter E. Hoffman United States Courthouse came into view.
A line of news vans had formed on the street outside the main entrance. I saw the logos for the local affiliates of ABC, CBS, NBC, and Fox. On the sidewalk, a coterie of camera crews was setting up shop. This clearly wasn’t a business-as-usual morning.
I turned into the judges’ parking lot, around the corner from the commotion. Then I hurried out of my car, already apprehensive even though I wasn’t sure I had a reason to be.
“What’s going on out there?” I asked Ben Gardner as I passed through security.
“Press conference,” Gardner said.
“Who called it?”
“Our esteemed congressman, Mr. Jacobs.”
My body reflexively stiffened. Gardner was grumbling about how they weren’t given any warning and weren’t properly staffed for it.
“Does anyone know what it’s about?” I asked, trying to seem nonchalant.
“Who knows? Maybe he just wanted some attention. You know those politicians. All I heard is it starts at nine. I hope it’s over by 9:02.”
I tried to smile, even if it probably came out more as a grimace, then quickly made my way upstairs. We had a small television mounted on the wall of our kitchenette. I flicked through channels until I found CBS, which had a morning news program.
It was only quarter of nine. A bottle redhead was talking about a high-pressure system. I took out my phone and did a Google news search for “Judge Scott Sampson Congressman Michael Jacobs.” Nothing pertinent returned.
At the top of the hour, the screen switched to a feed outside the federal courthouse. Soon the bald, bullet-shaped head of Michael Jacobs appeared. He was scowling from behind a temporary podium covered in logoed microphone boxes. His short-sleeve polo shirt revealed forearms with a set of Marine Corps tattoos. He probably had consultants, mindful of all those military voters in his district, telling him to keep them exposed whenever possible.
“Good morning and thank you for coming,” he said in a gruff, drill sergeant’s voice. “Last Thursday, in this courthouse, a travesty of justice was committed. A lifelong drug dealer named Rayshaun Skavron, who had pleaded guilty and should have spent no less than fifteen years in prison for his crimes, was set free. This was no ordinary drug dealer. This was a menace to the community, a man whose disregard for our laws resulted in the death of a very fine young man named Dylan Byrd.”
The screen immediately flashed to a picture of Dylan. My stomach twisted as I remembered his father’s words. I miss my son so much. It hurts all the time. Can you imagine what that feels like, Your Honor?
But I also felt no small measure of disgust at Jacobs and his bloodlusting communications staff. They had obviously provided that picture ahead of time to all the local television stations, who had agreed to embargo it until the press conference. This was a choreographed political event, one designed to show a public servant battling for his constituent—and the side of righteousness—against an out-of-control, out-of-touch federal judge. It had been planned and executed to maximize its dramatic potential in front of an electorate who, a mere seven weeks from now, would get to choose whether Congressman Jacobs kept his job.
I recognized all the tricks being pulled, because I had seen them from the other side so many times.
“The judge who rendered this ruling is a man named Scott Sampson,” Jacobs continued, and now
my official portrait had replaced Dylan’s face. “He is hired by the taxpayers to send men like Rayshaun Skavron to prison. Instead, Judge Sampson has released this man back into our neighborhoods and into our schools, where he can continue to harm our children and our most vulnerable citizens.”
The screen returned to the front-of-the-courthouse tableau, albeit from a slightly wider angle than before. I could now see Thomas Byrd, the aggrieved father, had been strategically stationed just behind Jacobs’ right shoulder.
Jacobs gestured broadly. “I can’t begin to tell you why Judge Sampson did this. You’ll have to ask him that yourself. It is certainly worth questioning when a high-ranking member of a notorious drug cartel has been allowed to walk away scot-free. I think we all know how justice works in Mexico. What I cannot accept is Mexican justice here in the United States of America.”
I balled my fists. Jacobs had managed to plant the suggestion I was corrupt while keeping his comments general enough to sidestep outright slander. He had also turned Rayshaun Skavron, a low-life nothing, into the next coming of El Chapo.
Jacobs wrapped up his harangue against me by introducing Thomas Byrd. The victim’s father gave a more polished version of the statement he delivered in my courtroom, one that seemed—at least to my ears—to go lighter on his son’s culpability and heavier on his outrage and injury about my decision. But if that made him less sympathetic, it was only by a matter of one or two degrees. His agony was still plainly genuine.
Midway through, I received a call from Alison, who must have been alerted to what was happening. I silenced the ringer and let it go through to voice mail.
Byrd broke down toward the end of his words, though not before he managed to deliver at least five perfect, emotion-drenched sound bites that would undoubtedly run on multiple newscasts throughout the day. Jacobs deftly handed him a handkerchief—a masterful piece of theater the cameras ate up—then gave Byrd a back-pounding hug.