[2013] Consequential Damages

by Joseph Hayes

There had been ample time on the inside to contemplate his future, yet he had difficulty envisioning where he would be and what he would be doing after his release. One thing was certain: He would never go back to his old way of life, where he was always broke and had no hope of any income except what he could steal or what he could scrounge up selling small quantities of drugs. That was a dismal existence with no future, and it was not for him. He had a way to start down a different path now. He didn't know where it would lead, but it would be a definite improvement over what he had known.

  Shooter would be there to pick him up and take him back to the apartment at the church, where Jerome could live with him until he got on his feet. The athletic program that Shooter had been developing for Reverend Lonnie was thriving, and Shooter had advised Jerome that the Reverend had given him permission to hire Jerome as a part-time assistant. It wouldn't be much money, Shooter had said, but would be gainful and legitimate employment, which could be a stepping stone to something else.

  Another opportunity had been pitched to him as well. Snake said that the road had been paved for Jerome to join the Street Sultans. For a guy with Jerome's ability, he could easily prove himself and become a full-fledged enforcer in no time. That would mean good money, drugs, women, and above all else—respect.

  It was an easy choice.

  CHAPTER 35

  Jake entered Judge Trainor’s courtroom with a sense of trepidation. Rick was there, and it was the first time they had seen each other since the Quinn trial two years earlier.

  “Looks like you drew the short straw on this one, Jake. Even the world-class lawyers at Samuelson & Reid can't do much with facts like these. All you can do is hope for a merciful jury.”

  “They've made some mistakes, Rick. There's no denying that. But these aren't bad guys, and it's not a bad company. I haven't seen the slightest evidence of any intentional wrongdoing.”

  “You will, my friend. Just wait until we really get into discovery. Actually, you may not have to wait that long. I think Judge Trainor’s about to give you a pretty good indication of what you’re dealing with.”

  Before Jake could inquire further, the judge entered the courtroom, followed by his court reporter. Jake had dealt with Judge Trainor numerous times in the past. He was one of the more seasoned federal judges in the city, and was known to be strong-willed and forceful. He took his responsibilities seriously, and expected the attorneys practicing in his courtroom to do the same. Aside from Jake and Rick, there was only one other person in the courtroom. Probably a reporter, Jake surmised.

  “Gentlemen, thank you for being here on such short notice,” said the judge. The stern tone in his voice matched the uncharacteristically grave look on his face. “Information came to my attention this morning that is extremely disturbing, and requires immediate action. Mr. McShane?”

  Jake had no idea where this was heading, but his stomach was quickly in a knot. “Yes, Your Honor?”

  “Can you explain this e-mail to me? It was sent yesterday by USH’s General Counsel.” The judge handed Jake a short e-mail that appeared to have been sent by Paul LaDuke at 4:33 p.m. the previous afternoon. It was addressed to “All Department Heads.” It was succinct and to the point: “As you know, USH maintains a records management policy that establishes a retention period for each category of document created by our company. After a document reaches its life expectancy, it is to be destroyed. This helps to ensure that we can efficiently manage our records and avoid paying storage costs for outdated records that are no longer needed. We have not been very diligent in adhering to this longstanding policy. On the advice of outside counsel, Samuelson & Reid, I am requesting that you immediately examine all documents within your department to confirm compliance with this important policy. Any documents whose established life has been exceeded should be destroyed immediately. Thank you in advance for your prompt compliance with this directive. Paul.”

  Jake's knees weakened as he read the e-mail, and then read it again.

  “Would you care to explain that communication, Mr. McShane?” The judge’s demeanor was intense, and his voice, ominous.

  Jake was at a loss. “I can't explain it, Your Honor. I haven't seen this before and I don't know anything about it. I can assure you, I will investigate immediately.” This was a disaster and Jake knew it. It looked like a thinly disguised attempt to destroy evidence.

  “I'm sure I don't need to explain to you that this is a very serious matter, Mr. McShane. Spoliation of evidence will not be tolerated. Within forty-eight hours, I expect a complete accounting of any documents that have been destroyed. Then I will decide what to do about this. If I learn that any documents are destroyed by USH from this moment forward, I will direct a finding of liability on all counts. I may do that anyway. In that case, the only question for the jury will be to determine how much to award in punitive damages. And, if I learn that any attorney encouraged or participated in the destruction of evidence, there will be severe sanctions. Do I make myself clear, Mr. McShane?”

  “Yes, Your Honor.”

  “I will see both parties back here in forty-eight hours.”

  Jake left the courtroom feeling chastened and panicked. What had Paul been thinking? This looked like the act of a guilty company trying to cover its tracks. And why would Paul have stated that Samuelson & Reid had given such instructions? That was absurd. Unthinkable. Nothing upset a judge or jury more than a deliberate attempt by a highly placed corporate official to order a cover-up or destruction of evidence. If that happened, the best case would be that the judge would allow the jury to draw the inferences most favorable to the plaintiffs’ case. The worst case—which seemed more likely—would be the result threatened by Judge Trainor, known in the profession as a “death sentence.” That would mean that USH loses, without a trial. Even if it were spared that fate, Judge Trainor would almost certainly be skeptical, if not downright hostile, to USH from here on.

  “What the hell is this?” Demetrius exploded as he read Paul's e-mail. Then, glaring at Jake, he continued, “Our firm is mentioned in this e-mail. What did you say to them about document destruction?”

  “I had just one brief conversation with Paul right after the lawsuit was filed. He assured me that there would be no document destruction, and that their records policy had been dormant for some time, so there was nothing to worry about.”

  “Obviously, there is something to worry about! Maybe Paul didn’t interpret that conversation the same way you did. When the stakes are this high, you can’t just assume the client understands your instructions. You need to make goddamned sure that they do!”

  They tracked down Paul LaDuke on his cell phone. He was still in New York. Demetrius dispensed with any pleasantries and got right to the point. “Paul, we’ve got a crisis on our hands. It relates to the e-mail you sent out yesterday.”

  “What e-mail?” Paul sounded confused.

  “The e-mail that urges all of your department heads to start destroying documents.”

  “What? Destroying documents? What are you talking about?”

  “Read it to him,” Demetrius ordered, looking at Jake.

  Jake obliged, reading the e-mail slowly, and enunciating carefully, so that Paul could hear every word.

  “And my name is on that?” Paul sounded incredulous.

  “Yes, Paul,” Jake replied. “It went out under your name at 4:33 p.m. yesterday.”

  “Son of a bitch! I can’t believe this! Listen, guys, I assure you, I sent no such e-mail. I’ve been in meetings in New York all week and haven’t sent an e-mail in three days. Besides, do you think I’m crazy enough or stupid enough to order a massive document destruction right after a major lawsuit is filed?”

  Jake and Demetrius exchanged worried glances. “Listen, Paul,” said Demetrius, his voice steady yet urgent. “Judge Trainor is beside himself. He is close to issuing a death sentence here. Whatever you’ve got going on in New York will have to wait. You need to get the word out immediately th
at there must be no document destruction – none. Anyone who received that e-mail must be instructed to disregard it. It is absolutely imperative that you stop this in its tracks right now. And I do mean imperative. And Paul?”

  “Yes?”

  “I suggest you get your ass home, pronto. This ship is listing badly. It may be starting to sink. We need all hands on deck.”

  “I’m on my way.”

  “And Paul, one more thing.”

  “What’s that?”

  “Find out who the hell is sending out e-mails under your name.”

  After hanging up with Paul, Demetrius gave Jake a harsh look. “I’m not sure what’s going on over there at USH, but you make damn sure our firm is not drawn into anything improper. I don’t want to see our name surfacing in connection with anything like this, ever again,” he shouted waving the e-mail. Then he put his palms on his desk and leaned across toward Jake, and said in a low, threatening voice, “I’m holding you personally accountable.”

  CHAPTER 36

  “Jake, it's been way too long. Johnny here. I'll be at Riley's Pub tonight. I was hoping we could get together for a beer. Got a surprise for you. Hope to see you there—any time after eight o'clock.”

  Jake erased the recorded message. It was Wednesday, for Chrissakes. Didn't Johnny realize he had a life, and a very busy one at that? He couldn't just go out drinking beer in the middle of the week like they used to. He was in the midst of a huge case—the biggest of his career. It had been four months since the case was filed, and he had been completely immersed in it. And it was going badly.

  On the other hand, there was no denying that it was good to hear Johnny's voice. They had seen very little of each other over the past couple of years. Perhaps a little midweek break would do him good. He always seemed to have a better perspective on things after spending time with Johnny. Amanda wouldn’t mind. Even though quality time with her and Anna had been scarce over the past few months, she would understand his need for a break and had always encouraged him to keep in touch with his old friends. Besides, Johnny seemed eager to tell him something. Just one quick beer, he told himself.

  Jake walked into Riley's promptly at eight o'clock. He hadn’t been there in quite awhile, but it looked exactly the same. It was more crowded than Jake had expected for a Wednesday evening. He had become so entrenched in his own routine—awakening early, working a long day at a demanding job, and then spending time with his family in the evening—that he had forgotten how many people still spent their evenings at watering holes like this one.

  Johnny had arrived just minutes before, and Jake found him at the bar ordering a beer. He ordered one for Jake as well, and then ushered him to a booth near the back. They saw several old friends and acquaintances as they walked through the bar, but Johnny hurried past them with only the briefest of greetings. That struck Jake as unusual for his normally gregarious cousin. Clearly, something was on his mind.

  They sat down in the booth and Johnny asked about Amanda and Anna. He then asked about life at the firm, but shortly into his response, Jake could see that Johnny seemed to be distracted, and was barely listening. Jake stopped himself in midsentence. “OK, pal. We can get back to my boring life later. You look like a kid on Christmas Eve. What’s this big surprise you mentioned in your voicemail?”

  Johnny grinned. “Guess I don't have much of a poker face, do I? Well, here it is: Congratulate me!” He hoisted his beer mug. “I'm engaged.”

  Jake stared at Johnny in open-mouthed disbelief. Johnny had always seemed completely content with his freewheeling, single lifestyle. Being self-employed, he was never burdened by bosses or restrictive working hours, and while Johnny had always had plenty of girlfriends, he'd never dated anyone seriously since high school, as far as Jake knew. He hadn't even realized Johnny was seeing someone now and had difficulty grasping the concept of Johnny settling down and getting married.

  “Who's the lucky girl?” Jake stammered when he was finally able to speak.

  “Corey Miller,” Johnny replied, grinning even more broadly as he shared the news.

  “Corey? Are you serious? What about Danny Flynn?”

  “She left him almost a year ago.”

  “Are you sure about this, Johnny?” Jake realized that his question sounded judgmental and disapproving. He caught himself before Johnny could respond. “I'm sorry, Johnny ... I'm just ... stunned. I had no idea you were even seeing her.” He grabbed Johnny's hand and shook it vigorously. “That's great! Fantastic! Congratulations!” Jake did his best to seem enthused, while trying to hide his misgivings.

  “Thanks, pal,” Johnny replied. “I wanted you to hear it directly from me. No one else knows except our parents. And Jake, to answer your question—I've never been more sure of anything in my life. She's the only girl I've ever loved. You remember how inseparable we were when we were teenagers. We talked about getting married right out of high school, but I just wasn't ready. That's why we split up. Unfortunately, she couldn't wait, and married shithead a year later.” He nodded toward a table across the bar, where Jake could see Danny Flynn, drinking by himself. “I've never stopped loving her, Jake.”

  “This may sound like a stupid question, but are they divorced yet?” Jake asked.

  “They've been separated for nearly a year, and Corey’s filed for divorce. It’ll become final any time now. And I’m not the reason they split. I was working at a house on her block about a year ago, painting the outside and remodeling the kitchen. I was there for a few weeks, and sometimes Corey would walk by with her kids and we'd chat. One day she walked past by herself, and I could see that she’d been crying. She told me that she'd separated from Danny, and then really unloaded. She talked about how abusive Danny was to her and the kids, not physically, but definitely verbally and emotionally. She said he was out drinking every night, which I knew, and that he was a mean and nasty drunk. Hell, he was just as bad when he was sober. It just broke my heart to listen to that. It tore me up inside, but I didn't feel it was my place to get involved. I felt helpless. All I could do was suggest that maybe some counseling might help. She told me that it was way beyond that and she felt that what she needed was a divorce lawyer. I didn't see her again for a couple of weeks after that, so I decided to call her just to see how she was doing. She’d been so distraught that I was really concerned. She sounded a lot better when I called her. She told me that she had filed for divorce and made up her mind to start over again and felt good about the decision. I ran into her a short time later at a party and we spent several hours reminiscing about old times and laughing a lot. Then I asked her out, and one thing led to another, and here we are. We’ll probably wait awhile – so the kids can get to know me better and get used to the idea of being separated from their father. Once we think they’re ready, we’ll tie the knot. I've never been this happy in my life, Jake.”

  They talked about the wedding plans, and about Corey's kids and the challenges of becoming a stepfather. Johnny asked about Jake's job and his high-profile USH case. Jake kept his responses brief. This was Johnny's night, and the focus belonged on Johnny and his future.

  “What about your job situation, Johnny? Are you planning any changes?”

  “I’m hoping I won’t have to, but I don't know. I love the flexibility I have. It gives me the freedom to do the things that are really important to me, like my camps and retreats for the disabled kids. I don't know what else I would do, professionally speaking. I'm good at what I do now, and I enjoy it, but I doubt I could support a family of four on what I make.” Johnny seemed pensive, as if he had given this issue a great deal of thought, but had yet to figure it out.

  “Johnny, I've always said that you are the most naturally gifted person I know. You can do anything you put your mind to.”

  “Well, it's a little late for some things, Jake. We're over thirty now. I can't very well start over and go back to school.”

  Jake was silent for a few moments. “Do you ever wish you had stayed in
school, and taken a different path?”

  Jake intended it as an innocent question, as he was genuinely curious, but he didn't like the way it sounded.

  “I don't regret anything about the path I’ve chosen,” Johnny answered, sounding miffed. “And I suspect my definition of accomplishment differs from yours, and from that of a lot of other people. Let me ask you a question, Jake. What have you accomplished in your life that you're most proud of? And don't be modest—be honest.

  Jake pondered the question. “Okay, here are a few that come to mind, in no particular order: getting straight A's in college and graduating first in my class; scoring in the 99th percentile on the law school admissions test; getting into Stanford Law School; graduating from Stanford Law School; getting hired by Samuelson & Reid ... let's see, what else? ... teaching myself to play guitar; being voted best all-around athlete in high school ... I guess those things would be on my list. And, I feel like I’m on the fast track toward becoming a partner at Samuelson & Reid. That would be a major accomplishment. I plan to do whatever it takes to make that happen.”

  Johnny laughed. “I'd forgotten what a high achiever you are.” Then he turned serious. “Don't take this the wrong way, Jake. I don't mean to diminish your accomplishments. How could I? They’re pretty damn impressive, by any measure. Here's my point,” he said leaning across the table. “If someone had asked me what I just asked you, my response would be entirely different. I wouldn't think about what I’d done for myself. I would think about what I've done to make things better for others. That's what's important to me. I can't change the world, and I’m not out to. But when I’m with those disabled kids, I see the joy I can bring them just by spending time with them, telling jokes, really talking to them and treating them like they matter. That's what it’s all about for me. If I were to go in a different direction professionally, I’d have to find something that allows me to continue doing that in some way.”