He nods, and then offers, “When you get to vice president, the company stops that paperwork.”
“Because?” I ask.
He raises an eyebrow in a manner that conveys careful consideration of the question, “Because no one has time for that stuff anymore. If you're doing well, you'll know it. If not, you're history.” He has a direct and sincere style that I like and, more importantly, that a jury will like.
I nod, and then reply, “And Consolidated will say that's what happened to Kevin Walters. He wasn't doing well, so he's gone.” I wave several of the performance evaluations in the air for effect. “Can you hear the argument? Walters's performance got progressively worse after these stopped.” I wait for his response.
“I'm not too worried about that,” he says with confidence, then falls silent.
“Enlighten me,” I say.
He smiles. “You do this a lot, don't you?”
“At least,” I reply, returning the grin.
His expression becomes more serious, and he speaks with confidence. “I think they will have a hard time refuting that every year, my performance bonus exceeded that of the other two division vice presidents. I also have several awards and congratulatory memos—more “attaboys” at home. There's a second file and some wall-sized certificates and awards that I didn't bring to this meeting.”
Time for my eyebrows to reach for the sky. “Any of them directly from Constantine?
“Most of them,” he says softly.
“Any during the last five years?” I ask.
“A number of them.”
“Guard them with your life until you get them in here. That may well be what gets us past the bullshit that they will likely offer about your history of plummeting performance.”
“Sure,” Walters says. “I'll have them here tomorrow.”
At that moment my assistant, Donna, knocks on the partially open conference room door, and then sticks her head in the door and announces that Mrs. Walters is here. Donna is thirty-five years old, about five feet five, and has short-length blonde hair and a wry grin. Her large brown eyes are warm and quickly make human connections. She has natural warmth that makes clients love her and opposing attorneys try to steal her after visits to my office for depositions. Fortunately for me, she always turns them down. She has been my paralegal for six years, and she is fiercely loyal.
Walters says, “I'd like my wife to meet you, if you have a few more minutes.”
“Sure,” I tell him. I look to Donna. “Ask her to come back to the conference room, okay?”
“Shall do,” Donna says, and disappears down the hallway toward the front of the office. A few moments later, Donna escorts a woman I am guessing is about sixty into the room. She wears her short, graying hair up and has an elegant way about her. The impressive overall effect is Priscilla Presley meets Helen Mirren.
“Hi, sweetheart,” Walters says, standing. “This is Scott Winslow. Scott, this is my wife, Julia.”
“Mr. Winslow,” she says, and we shake hands.
“Call me Scott, please,” I say. “Won't you have a seat?”
I pull back a chair, and Julia Walters sits, puts her purse on the table, and glances around the room, considering her surroundings. The focus of the room is the conference room table, which seats twelve. The room's accessories include a glass cabinet on the far wall, a granite countertop and cupboards on the other side of the room, and an impressionistic Monet painting of the French countryside. Mrs. Walters takes it all in quickly in a way that suggests that the room is speaking to her and says, “I've never been much for lawsuits.” The comment is delivered with a calm, friendly smile. A single comment that takes in the surroundings and my whole world, but in a way that sounds informative, rather than judgmental.
I am assessing whether to be amused by her dismissive review of my livelihood, and I'm still not sure when I say, “That seems like a healthy perspective. No one wants litigation that isn't necessary.”
Walters interjects, “I was just getting ready to sign a retainer agreement with Scott. I want him to represent me in connection with the wrongful termination lawsuit.”
She nods. “Scott,” she says, focusing her attention on me, “let me tell you where I stand on all this. I don't think that my husband should pursue this case. We have nothing to prove. Kevin has done well, and we will be fine financially.” She pauses and takes her husband's hand. She gives him a smile and adds, “Consolidated's dismissal of my husband was their mistake, and does not reflect negatively on a man who has done great things for them for over twenty-seven years. As much as I'd like to kick Michael Constantine in the balls, I think it is in our best interests to let go of all this.”
The way she speaks in elegant tones of kicking someone in the balls makes me grin widely, and I instantly like her, too. I force a more serious expression onto my face. “I understand,” I say. “I agree that whether to pursue a lawsuit is a serious decision, and as I've told Kevin, if his heart is not entirely in it, he should pass. I would encourage you to take some time to discuss whether you want to do this if you'd like.”
She seems momentarily pleased with this advice.
Walters leans forward and takes his wife's hands in his. “I appreciate all you've said, dear,” he says without hesitation, “but I have not changed my mind about this.” He turns his attention my way, and says, “Julia is correct, we can get by without additional money, but I am not doing this for money. I'm doing it because I care about this company and the way it behaves. One person died and others were injured, because it was financially expedient to keep operating an unsafe facility. Worse yet is the continued possibility of additional injury. Consolidated owes its employees much more, and so do I. If there's any way I can help the families of workers, and help Consolidated atone, I'm not going to sit on the sidelines and enjoy forced retirement.”
I look at Julia Walters. “Do you want more time to discuss this with your husband?”
Walters flashes his wife a look that slowly becomes a knowing smile.
Julia Walters then shakes her head and says, “No, he's ready to go,” in a tone that conveys acceptance, if not agreement. She grins at her husband in reluctant acquiescence, and then turns back to me. “So, if we are going to do this, let's use the legal process to kick these bastards in the balls.”
I explain contingency fees to Walters, who already knows exactly what I'm talking about. He signs retainer forms, and I give him copies and shake hands with my newest client. I think he's a straight shooter, and I like the man. Many times since that day I have relived that meeting, wondering how different the world would have been if we had never signed those papers.
Employment litigation is the business I and my law partner, Bill Simmons, love or hate, depending upon how crazy life is and how many places we have to be, on any given day. Bill and I met in the employment litigation department of Fulbright and Barnes, a monster firm of three hundred lawyers that consumes new lawyers at a frightening rate, sucking the life out of them by having them work twelve to fourteen hours a day, six days a week, and only eight more on the seventh day, it being the day of rest, until they quit or expire.
Bill and I arrived at the firm the same year, and hit it off immediately, with a shared appreciation for our situation. As we saw it, this was a place to learn, and leave behind. The Thirteenth Amendment, while it abolished slavery for most folks, simply didn't seem to apply in large law firms, so we were slaves to be used at will by partners, who had no concern about the fact that we were working a hundred hours a week before receiving their latest assignment. That was the life of the new lawyer at the big firm until used up and burned out. Then the firm simply gets new ones. We spent our time defending the biggest of companies and insurance companies against the claims of employees and former employees who had allegedly been harassed, discriminated against, or in some other fashion thrown under the corporate bus.
The partnership carrot was used to keep associates performing at impossib
le levels for as long as possible, until they had to come to grips with statistics; only one in seven would have a shot at a partnership, and not until after nine or ten years of what we referred to as shoveling shit against the tide.
After five years at the firm, Bill and I both knew that this was not the life that we wanted and that we had done all the shoveling we wanted to do. We also had a secret that would have been very unpopular if revealed—we had a propensity for the other side, a desire to represent David against the corporate Goliath. We would have been drawn, quartered, and then fired, had we dared to mention that we wanted to represent these employees that were the casualties of our corporate clients.
Bill and I saved money, as our expenses weren't high at the time, and the firm never gave us enough time off to spend the money we made. After five years of involuntary servitude, we announced our departure from the firm to supervising partners, who considered us to be disloyal ingrates who had effectively stolen all the training we had received by not staying until the firm decided otherwise or we expired. The master hates to give the slave his freedom. We were amused by the overreaction, but could have cared less. We had given the firm all the energy we were going to, and we were ready to go.
Bill won the coin toss, so we went into business together as Simmons and Winslow, nine years ago. Ever since, we have been working even harder, but with one big difference—now we work for us, and we are not supporting the big firm, with its million-dollar-a-year partners, and its $500,000 a year retirees. Life looked and felt a whole lot better from day one. It didn't matter that we had to pay the bills or that we didn't know what we would make month to month. We were doing what we really wanted to do, and we would never look back.
Chapter 3
January 4, 2016
It's three o'clock in the afternoon, and its over eighty degrees as I run through the parking lot toward Department 15 of the Superior Court, where I will wait for Judge Roy Carswell to conduct a settlement conference, so that he can eliminate the sexual harassment case I am to start next week from his calendar. Not because he cares about my case, but because he has three trials set the same day and wants to eliminate all of them and go fishing. Judge Carswell has been on the bench since my ancestors were small children. He was appointed by a governor who hates lawyers, for the purpose of abusing lawyers, and he has never disappointed. The entire bar has railed against Judge Carswell, in an attempt to cause his ouster, but to no avail. He is politically wired in and will probably outlast us all.
I walk into the courtroom and check in with the clerk, a dark-haired woman in her thirties, who shows me a half-smile and a dimple. She has an unruffled air, as she tells me that the judge will be with us soon. “Soon” is a legal term meaning when Carswell is ready, whether ten minutes or two hours has passed. I see my opposing counsel sitting in the courtroom with a young man that I have never seen before, who looks like he doesn't quite fit the suit he wears. This would be the insurance adjuster I have never seen before. I give Doug Ferguson, my opposing counsel, a nod, which he returns almost imperceptibly, and then I walk out into the hall to look for my client. She is walking toward me. Linda Darnell is a very attractive woman in her early thirties. We met in my office last week to prepare for this conference and discuss our settlement position. Now she is waving vigorously, and has something important to say. Her excitement will have to do with the settlement dollars we discussed. Either she wants more money to sufficiently compensate for the injury inflicted, or she wants to accept less, and be done with it. In this case, I'm betting that it's the latter, because Linda has been stressed out by the litigation process, and does not want any contact with the harasser, who causes her nightmares. It doesn't take long to get confirmation that my guess is correct.
“Scott, how are you?” she asks, extending a hand.
I shake the hand. “I'm good, Linda. How are you feeling?”
“Well,” she says hesitantly, “I've been better.”
“What is it?” I ask, having a pretty good idea what comes next.
“Stressed,” she says, glancing at the floor. She looks back at me. “I really want to get this over with—I mean the case,” she offers, softly. I wait, sensing more is coming, and I don't have to wait long. “If we can settle it today, I'd be willing to take less than we talked about. If it's okay with you.”
I smile and nod acknowledgment. She's a nice lady and appropriately nervous in this environment. “I understand. Let's see what kind of a settlement we can persuade these guys to put on the table. At the end of the day, I'll be with you whatever you choose to do.”
She smiles softly and takes a breath. Like all whose lives are about to be evaluated and judged by strangers, whether judge or jury, she carries a substantial weight on her shoulders.
I check my watch. “We better get back in the courtroom,” I say, and we start moving back down the hallway. We walk into the courtroom and sit down. There are pads and pencils in the jury box, from which I conclude that Judge Carswell is presently in trial, and has given the jury the afternoon off while he harasses others with the misfortune to have been assigned to his courtroom.
There is an annoying buzzing noise, and the clerk picks up her telephone. She mumbles and then nods in our direction. She cradles the phone. “The judge will see counsel in Darnell v. Kingston Brokerage Services now,” she announces, then returns her attention to the documents on her desk.
I stand and walk toward the judge's chambers, where I am joined by Doug Ferguson and the young suit. Being closest to the door, I knock. “Come in, counsel,” the gravel-like voice of Carswell bellows, uninvitingly.
We walk in, and the judge gestures to the two chairs in front of his desk. I take the first and let Doug figure out where to put his insurance adjuster, who happily keeps his distance from Carswell by taking a seat on a black leather couch behind us.
“Afternoon, Your Honor,” I offer, extending a hand. “Scott Winslow for Ms. Darnell.”
“Yes,” he says, quickly shaking my hand and then looking over at my opponent. “You must be Mr. Ferguson.”
“Yes, sir,” Ferguson says, and the judge shakes his hand. “Pleasure to see you, Your Honor,” Ferguson says with a wide smile. It's convincing—almost as if he means it.
Carswell says, “Right,” in a way that suggests he doesn't believe it for a minute. I don't either. No one could be glad to see Carswell. “Who do we have here?” he asks, having collected a business card from the clerk, and already well aware of the answer.
“This is Derrick Olson from Underwriters' Insurance, Your Honor,” Ferguson offers. Olson offers a hand. “Hello, Your Honor,” he says nervously. The judge takes and shakes the hand. “Hello, Mr. Olson,” Carswell says, then leans back in his chair. He pauses, and then says, “I've read the briefs. What else do you want to tell me?”
He looks at me. “I believe that we've laid out the chronology of the conduct in our brief, Your Honor. In summary, the harassment was undertaken by a supervisor, continued for almost two years, and involved both verbal harassment and repeated groping and physical touching.”
Ferguson is wide-eyed, and looks offended. “Your Honor, we dispute almost all of the alleged conduct.”
“Of course you do,” Carswell says, rolling his eyes. “I don't think I've ever seen a harassment case when the defense didn't deny most or all of it.” At this point I'm amused.
Carswell interlocks his hands and says, “All right, Mr. Ferguson, let me speak to Mr. Windsor for a moment.”
This is probably not a good sign. He wants to pound on me first, which likely means that he wants to talk me down from my settlement demand before he works on getting money from the defense. This suits Ferguson fine, and he almost runs from the room followed closely by the young suit. They close the door behind them.
Carswell leans closer and grins. “So, Mr. Winslow, what do you really want?”
“Well, Your Honor,” I say with a practiced thoughtful look, “two more associates and two wee
ks in the Bahamas would be great. Can you help me?” I smile at my humor, but Carswell does not look amused. A not so good sign, but I've been doing this too long to care—except for the fact that he will be my trial judge in this case. There is complete silence, so I attempt to get us back on track. “We have some flexibility in the demand, Your Honor, but I believe that this case is worth every nickel of the two hundred thousand we're asking.”
I lean back and wait a moment. Now he starts to smile. “You know, Mr. Winslow, I've been in the business world a long time. In the real world, sometimes people have to put up with a little playful behavior once in a while. He glances down at the paper on his desk and says, 'There's just not too much that is worthy of big numbers here.' ”
I'm considering my response, so I can leave out the things that will most surely piss him off. “This is not just a verbal harassment case, Your Honor. This guy was grabbing Ms. Darnell's breasts and buttocks, and promising her good reviews if she would put out. I wouldn't want to work with that going on, and I don't think that anyone on the jury would either.”
Carswell waves me off and says, “I'm not suggesting your case isn't worth something. I just think you're way over the top here.” He leans toward me, as if about to share a secret. “You know, if I can get you forty thousand on this case, I really think you ought to take it and run.”
Take it and run; like a thief in the night, I'm trying to find a tactful way of responding, but every possibility eludes me, so I say what I am thinking. “I think that if I took it and ran, I would have to stop at the pay phones outside and call my malpractice carrier.” His eyes open wide. Maybe I could have been more tactful.
Now that I've told him his assessment of my case is malpractice, he's pissed, and it shows on his face. “All right, Mr. Winslow. I try to do what I can to keep cases that should settle off my trial calendar, but if the parties won't be reasonable, there's nothing more I can do.” This confirms his old school approach and his lack of any real mediation skill.
[2017] The Whistleblower Onslaught Page 3