by Reason of Sanity

by Gene Grossman

  “I really don’t handle that stuff. My wife Patty is a lawyer – she takes care of the forms, but she must have done it correctly because otherwise you guys wouldn’t have paid the claim so quickly. Why don’t you call her office? I’ll give you the number.”

  “No, that’s okay Mister Vogel, we have it in our files. We just want to make sure that everything was done to take care of your claim.”

  Hmmmn. He says that the insurance company paid the claim. The insurance company says that no claim was made. I’m going to have to stop bringing the dog in on these meetings – he’s batting zero for two on this case.

  If I have to choose which one of them is telling the truth, I’ll go with the insurance company. But I don’t think that Vogel was intentionally lying to me. He probably believes that his wife put in a claim and that the insurance company paid to have the car repaired. If that scenario is correct, then the answer must be with his wife, the mysterious Patty Vogel, attorney at law.

  I call Jack Bibberman and learn that he was successful in getting a recent picture of her, so I give him a new assignment.

  The clock is t icking on this case, because a hearing date is approaching. Instead of going to court with this lawsuit, I opted to choose arbitration instead. There’s a non-profit organization called the JAMS Foundation, which is an acronym for Judicial Arbitration and Mediation Services. They’re the premiere nation-wide provider of alternative dispute resolution and they do it with a distinguished panel of retired judges and other judicial-types of people that they call ‘neutrals,’ who hear the cases.

  One of the reasons I want to take this to a JAMS hearing is because I’ll have the opportunity to select from a group of hearing officials who actually may know something about the law involved in this case.

  Sometimes when you take a case to trial, you discover that the judge hasn’t the slightest idea of what you’re talking about. If it’s a subject or concept of law that he or she has never heard of before, then instead of presenting your case in an orderly fashion, you’re forced to waste time and energy trying to educate a judge whose learning ability has decreased a few percentage points for each year served on the bench.

  I’ve spent years teaching law t o students; I don’t think I should have to teach judges too. If they don’t know the law, they shouldn’t be sitting up there on the bench. In arbitration, both sides first agree on the exact area of law that’s involved and are presented with a list of arbitrators who are familiar with that law. It’s then up to both sides to agree on which arbitrator to choose. They don’t have any axe to grind for either side, so you can get a fair hearing by a knowledgeable person.

  Patty Vogel agreed to sidestep the courts and take our case to arbitration. All I had to do was tell her that I didn’t want to embarrass my client by having the fact of his peeing on a tree discussed in open court. Over the years, I’ve found it a useful tool to always give the other side a way to go without their losing any face.

  In this case I have a strong feeling that it’s Mrs. Vogel who has something to hide, so I made it easy for her to agree to arbitrate by letting Vinnie take the rap for being ashamed. Actually, I think Vinnie wouldn’t hesitate to pee in the middle of Hollywood and Vine if he had the immediate urge, but that’s beside the point. We’re going to arbitration, and that’s what counts.

  Over the past few days I’ve had time to do some research, and it looks like both Drago’s case and Vinnie’s action will both hinge on the court’s interpretation of one word: FORESEEABILITY, and I’m sitting right on the fence – arguing for it on one case and against it on the other. The thing that makes both of these cases so much alike is the fact that a crime took place before the plaintiff’s injuries – and an intervening act like that sometimes acts to cut off liability.

  In Drago’s case, his estate’s law yer is contending that since the hospital had security cameras installed all over the place and because Drago’s room was on the same floor as the psychiatric ward, that intentional harm might come to a patient there, so that his getting murdered was a foreseeable event. That makes the bank’s liability extend past the slip-and-fall, all the way to the death in the hospital.

  Naturally I’ll be going to argue against foreseeability there, because I don’t want to see the bank stuck on a wrongful death action.

  In Vinnie’s case, I’m on the opposite side. I’m contending that it was foreseeable that a drunken customer would leave the restaurant and drive, so that when he crashed into that tree Vinnie was watering, the restaurant’s liability extends all the way to Vinnie’s injuries.

  Attorney Patty Vogel argues that the unforeseeable intervening crime of car theft breaks the chain of liability and that the restaurant is not responsible for Vinnie’s injuries. She contends that the restaurant’s liability was cut off by the intervening car theft.

  Personally, I’m torn. In both cases there was an intervening crime and there are only a few special types of cases where the courts have decided that a crime was foreseeable. The most common ones are assaults in unlit parking areas of commercial establishments located in high-crime areas. The courts will usually look to past events. If the plaintiff can show that there were several recent similar incidents in the business’ parking lot – and that the business was aware of these incidents, then the court would be more likely to find that the business had a duty to protect its customers with proper lighting and security.

  On the other hand, when there is no record of past crimes and the one complained of appears to be an anomaly, it’s a different story.

  In Vinnie’s case, I’m arguing that it doesn’t make any difference whether Harry Michaels stole a vehicle or not. He was driving, and that is something that the restaurant should have foreseen. That’s why they have a parking lot… so that their drunken customers can drive home. The very same customers who the restaurant causes to be drunk by taking their money and providing them with liquor.

  In Drago’s case, I’ve got statistics to show that there’s never been a murder in the hospital, so that this one is a freak incident and one that shouldn’t be labeled as foreseeable.

  I’m glad I’m not a judge. This is what they get paid to decide, and on cases like this, they really work for their money.

  Wait a minute. Something just hit me. When I was in the courtroom talking to Harry Michaels, I happened to see his file on the Public Defender’s table. He was charged with felony drunk driving. What happened to the auto theft charge?

  I call the Public Defender’s office and ask for the Chief Deputy. It so happens that he was part of our of night student study-group back at Betty Crocker college of law on Sepulveda, so he does me the favor of pulling out the file. I only have one question for him and it’s about the Grand Theft Auto charge. To my surprise, he tells me that the GTA was never filed. It had been on the prosecutor’s list, but apparently the alleged victim refused to press charges, so all the defendant made a plea to was the felony drunk driving charge.

  That’s odd. Not only did Patty Vogel lead her husband to believe that the insurance company paid for fixing the car when it really didn’t, she also refused to press charges when it was stolen. Why would she do that? I call Jack Bibberman and tell him to get Patty Vogel’s picture out for some canvassing.

  The mail just came in with a copy of the lawsuit filed by Drago’s attorney and I see that he followed through on his threat - it’s been filed in the Illinois Federal Court. I call Charles Indovine at the insurance defense firm to give him the news.

  For some strange reason, no matter what happens on the Drago case, he’s pleased to hear it and tells me that I’m doing a fine job. As for the Illinois filing, he inquires about my status in the Federal Courts. I tell him that because I’ve been sworn in to the Supreme Court of the United States, that I’m allowed to practice in any federal court in the country. To my surprise, he says that he’d like me to stay with the case and to send him receipts for my travel expenses.

  Is he serious? It would cost o
nly a fraction of that to hire a local Chicago attorney to appear on this case. No specialist is required – it’s only a slip-andfall case and any personal injury defense lawyer should be able to argue against the foreseeability of Blitzstien’s intervening act of murder. I know he doesn’t have any particular fondness for me, so what’s his reason for spending all that money just to keep me on the case? Another unanswered question I’ll have to deal with.

  14

  P

  atty Vogel and I both agree on an arbitration date and also upon one of JAMS’ ‘neutrals,’ to act as the hearing officer. The date for the hearing has been set for next week at their downtown location in the Los Angeles World Trade Center, so I’m now in the process of getting my argument ready… not the argument I’ll give to the arbitrator – the one I’ll be giving to Patty Vogel, to get her to settle the case

  before the hearing begins.

  If Jack Bibberman comes through for me, I should have the information I need to do my usual prehearing rant.

  Patty Vogel introduces herself to me in a polite professional manner, while at the same time maintaining an attitude that lets me know that she means business. I can’t help but feel that she has a subtle smirk on her face – like she knows something that I don’t know. I’ve seen that before and one of my great pleasures in life is being lucky enough on some occasions to remove the smirks from smug lawyers like that.

  At the last minute, Jack Bibberman came through and provided me with some smirk-removal ammunition, so my only decision now is how to go about using it; the soft way, or the hard way. Normally, I prefer doing it as politely as possible, but people who smirk usually make it impossible for me to do it that way – and I have a feeling that Patty Vogel will be doing just that.

  Patty Vogel tells the arbitrator that she’d like a few moments to discuss a settlement with me before the hearing starts. The arbitrator doesn’t care because he gets paid his minimum whether we have a hearing or not. She motions to a small conference room and invites me to join her in there. I tell Vinnie and Stuart that this will only take a few minutes and that they should wait for me in the lobby. Vinnie is surprised, but Stuart knows me well enough to have confidence in me, so he assures Vinnie that everything’s okay.

  I’ve already discussed this case at length with Vinnie and he knows my feelings about it. If he gets anything out of it at all, it’ll be some low nuisance amount, probably less than a thousand dollars – and he agreed.

  As I go into the conference room with Patty, I notice that something is turned around here. Usually it’s me who does the inviting into a conference room to talk about a settlement. Now it’s someone else inviting me into the little room. Does she think she’s going to do me the favor of allowing me to settle before the hearing? Boy, she’s got stones.

  I’ve always had the reputation of being a good sport, so I politely accept her invitation and we both step into the conference room. She motions for me to sit down. This is going to be good. I’ll bet she’s practiced her speech all the way down here today. Now it starts.

  “Mister Sharp, I want to give you a chance to save yourself some time and avoid embarrassment in front of your client. If we settle this matter before the hearing, I’ll lie about it and tell him that you did a great job.”

  She must want me to think she’s a warm, considerate person. Actually, she’s a little out of touch with reality, but I’ll try to correct that in a while. I smile at her with my most sincere look of appreciation for how wonderful she must think she is. She goes on in a quiet tone of voice. If you watch the bad guys in the movies, you may note that the most menacing ones are those who can make a deadly threat in a quiet voice with a slight smile on their face ala Christopher Walken or Clint Eastwood. It doesn’t take any particular talent to shout and swear like Tony Soprano when you’re making a threat, but to keep your cool and be soft-spoken takes a quality that Patty Vogel must think she possesses. She continues, like a gangster in some ‘B’ movie.

  “You are going to settle this case here and now, in this room, because if you don’t, you will receive nothing.

  “I’ve had it up to here with cheap personal injury ambulance chasers and I know what you want. All you care about is stealing a few dollars from the insurance company, so I’m going to give you a little, just enough to make bottom-feeders like you and your peeing client go away.”

  Hmmmn. Not exactly as eloquent as I’d expected, but she does manage to convey her feelings. As I’ve said before, one of the first rule of holes that a person learns is, when you’re in one, stop digging. Evidently, Patty doesn’t know that rule, so she continues burrowing down further and is now about to ask for an even bigger shovel.

  “Sharp, you’ve got no case here. First of all, the defendant was not an employee of the restaurant. Second, he wasn’t even a customer… he was a bartender for a private party that had nothing to do with my client’s restaurant.

  “Third, nobody in the restaurant knew whether he walked to his bartending job or drove and no one paid any attention to whether or not he drank. They had no duty to and no responsibility to.

  “When he left work, he was on his own. Liability for his decision to take that vehicle from the restaurant parking lot can in no way be traced back and neither can any event that took place subsequent to the taking.

  “To sum it up, you have no case. Your client is the scum of the earth, a pornographer, who was relieving himself in public. If anything, it should be your client who should be arrested for lewd conduct.

  “Do yourself a favor and settle now. I’ve been authorized to offer you a five hundred dollar nuisance amount and because I feel that both you and your client are nuisances, if you have a brain, you’ll take the five hundred and advise your client to accept it. If it was up to me it would only be fifty cents, so why not do yourself a favor, take your money and get the hell out of here with your tail between your legs?”

  This is what I get for trying to give her some respect. My decision now is how to let her know that we aren’t going to settle for the five hundred, and instead would like five thousand. I think it best to remain calm and be as polite as possible. To be any other way would mean that I’m no better than she is, and that’s no good. I start out by asking her a question. “Are you through now?”

  She still can’t let it go. Her answer shows it. “Yes Mister Sharp, I’m through now and so are you, and I hope you finally realize it.”

  It’s really hard to be nice to someone who is so obnoxious, but I’m going to try. “Please sit down, Patty my dear, I’ve got a few things to tell you. They may have nothing at all to do with the law, but I’m sure you’ll be interested in hearing them, because it might help you to re-adjust your attitude about this case.”

  She looks up at me astonished. Her eyes are bulging out at me and the expression on her face is rapidly turning to one of anger. As she starts to turn red, I continue.

  “First of all, we are not accepting your offer of five hundred dollars, and if for any reason there actually is a hearing today and we are not successful, we intend to file a municipal court action against you and your husband.”

  She gasps for breath in disbelief. That’s a good sign. If I really do my job, maybe she’ll start to hyperventilate. I go on. “Secondly, the reason that the restaurant’s liability is not cut off by Harry’s intervening act of taking the car is because there was no grand theft. In fact, there was no theft at all because not only did you refuse to make a charge of theft, you never filed a police report, never made a claim to your insurance company, lied to your husband about the claim and who paid for the damages and also because Harry Michaels had permission to use that vehicle as he had in the past, because you were having an affair with him.”

  It worked. She’s starting to hyper-ventilate. I must be on a roll. Usually, all they do in situations like this is glare at me angrily. I only hope she stays conscious long enough for me to finish up, because I’m not through with her yet. If she only had the cont
rol and professionalism to show me some respect and apologize for the fact that all her client authorized was five hundred, I would have probably tried to talk her up to seven-fifty and the matter would be a done deal. But nooo, she had to try and stick it to me in the rudest way I’ve ever seen, so whatever she gets now she really deserves. I have an emergency paper bag in my briefcase, so if she starts to black out, I’ll come to the rescue.

  “Mizz Vogel, here is the affidavit signed by my private investigator, in which he states that your picture was identified by several of Harry Michaels’ neighbors, who fingered you as being a constant visitor to his apartment. We also have discovered by subpoena that you were instrumental in getting him bailed out on two occasions after he was arrested for drunk driving. You had your employer act as his sponsor on those bail bonds and Mister Robert Palmer, owner of the restaurant, was also the person who hired him as bartender at the party. That means that both you and Palmer were aware of Harry’s drinking problem – but you still hired him to tend bar and dole out booze all evening, much of which he proceeded to ingest, as both of you should be charged with knowing.

  “When he finally stumbled out of the restaurant, your husband had just pulled up and walked inside. Harry didn’t know your husband was going to be there, because you arranged for him to come and pick you up after you were sure that Harry would already have finished for the evening and gone home. Harry never saw your husband before and didn’t recognize him if he did. All Harry saw was the car that you had let him use on numerous occasions, so he probably figured you wouldn’t mind him using it one more time to drive himself home.

  “I don’t know what story you told your husband, but I do know that you lied to the police when you told them that your husband had stopped in just for a moment to pick up some vegetarian burritos

  – and making a false statement to the police is a violation that can get your license to practice law pulled for a while.