Farrington could hardly contain himself. “I think your task just became quite achievable,” and he presented each of them with copies of the document and photograph.
“Where in the hell did these come from, if I may ask?” Fineman challenged, glowering at the mediator. “And why didn’t I know about them sooner?” he continued, nearly exploding.
“Calm down,” Farrington instructed. “I just received the original cancelled check and photograph this afternoon.”
“I demand, on behalf of my client, that we be given the originals immediately,” Fineman continued without let up.
“The originals are in the hotel safe and will be on their way to the court clerk and will be kept in her custody. Your client will have full benefit of the check and photograph for her case, believe me,” Farrington assured them both. “For the moment, we need to address your improved position here at this mediation conference.”
“True enough,” Fineman agreed, releasing a huge sigh and flashing a genuine grin that reflected his belated understanding of this incredible breakthrough in the case. “Does Corrigan know about the cancelled check?”
“He didn’t hear about it from me,” Farrington declared. “To my knowledge, the only living persons having knowledge are Barnes, and now Malone, of course, and possibly some members of the Figueroa family, but I have no knowledge of that. It will be very difficult for the estate to seriously resist Ms. Figueroa’s claim now. I expect I’ll be breaking the news to them before the end of the afternoon,” he said, anticipating his next conference with Martorano and Corrigan. “Unless you have something to offer at this point, Mr. Fineman, I’m suggesting that we all plan to reassemble here tomorrow morning at 9:00 a.m.”
“That suits us just fine, Judge,” Fineman agreed. “I’m sorry I lost it a moment ago. My aggressive instincts just kicked in before I could calm them down. Please excuse my poor behavior.”
“No problem,” Farrington nodded his way, “happens all the time. You’ll see when you’re on this end of these lawsuits.”
***
Fineman and Figueroa promptly departed the room, presumably to discuss restaurant plans for their celebration later in the evening. Lupe Figueroa had trouble keeping her balance through the lobby, and Fineman guided her to her room in the hotel. They agreed to meet two hours later in the lobby and decide about dinner plans at that time.
“Are you sure you can make it by yourself at this moment?” Fineman inquired, truly concerned about his client’s well-being.
“If you don’t mind,” she explained, “it’s been an emotional time for me and now that it’s looking so good for my claim and all, I’d like to call my parents, I mean my grandparents, and share this great news. Then I’m going to take a short nap, know what I mean?” she said, gazing at, but not really focusing on Fineman.
“I certainly do,” he confirmed, “and that’s where I’m headed now too. See you in two hours or so. Call me if you’re not feeling up to celebrating tonight.” Fineman spun on his heel and made for the elevator. He felt tired as well but planned to find something refreshing in the hotel lounge before making any plans for the evening.
***
Farrington realized it was quarter to five in the afternoon and given the progress he was making, he decided to call the attorneys, with the exception of Corrigan, and ask them all to return the next morning at 9:30. His last call of the day was to an assistant district attorney whom Farrington already knew was the spokesperson for the office on this case. Once he was on the line, Farrington invited him to attend a session at the hotel the following morning.
“Well, it’s very unusual for our office to become involved in civil mediation hearings, Judge,” was his initial reply. “What do you have on your mind, if I might ask?”
“We’re busy here trying to resolve the Martorano case, and the murder case is completely mixed into this one. Do you understand?”
“Fill me in, if you don’t mind,” the assistant district attorney encouraged.
“Marti Barnes, the defendant in your murder prosecution case, is a claimant in this civil case saying that the decedent promised her some things after he died,” Farrington began to explain.
“Oh, yes, I’m familiar with the details of her claim. In fact, her claim is a significant point in our decision to prosecute the case, I’m certain you understand, Judge.” The assistant district attorney had enjoyed a good relationship with Farrington when he was serving as a judge, so he listened intently now.
“There have been some developments that you may not be aware of, at this point anyway,” Farrington continued. “Judge Crouch appointed a forensic expert to assist the court in the civil proceeding. A deposition of the appointed expert was taken recently, and the transcript is available now. I doubt if anyone in your office has reviewed it,” he speculated.
“You know, I’m not aware one way or the other, since I’m not the prosecuting attorney assigned to the case, but I can find out for you,” he promised. “I am generally aware of this case since the time of filing it. While I’m not at liberty to discuss the evidence, as you know, we have statements from three investigators at the state hospital that do not support the defendant’s assessment of her actions that apparently precipitated the death of a patient at the hospital. She may have settled that case with a five-year license suspension, but this pending criminal case is viewed as a much different and even more serious matter, obviously. If you understand my meaning.”
“Very well,” Farrington offered. “Check it out, if you would, please. I have a copy of the deposition transcript that you could use if you can’t locate it. In fact, I’d like to invite you or someone with authority to discuss the future of the criminal case to come to my temporary office at the Marriott Hotel tomorrow at two in the afternoon.”
“I’m not so sure anyone in this office is ready to discuss disposition of that sensational case, Your Honor. Anyway, as you know, our office makes decisions about filing charges, but the criminal court judges make the decisions about disposition, including dismissal of the charges, if that’s what’s on your agenda,” he said, reminding Farrington of the procedures.
Farrington knew quite well the procedure followed when a DA has decided to move to dismiss a criminal case. Such a motion is filed with the clerk or judge, directed to the sound discretion of the court “in the interests of justice,” and the judge then formally agrees to order the case dismissed if he or she supports the motion on the merits. In rare cases, a judge refuses to dismiss a pending criminal case, even when the district attorney makes such a motion.
“I will tell you this,” he continued, “by tomorrow afternoon someone in our office will have reviewed the transcript, and I’ll call you to let you know how we stand on the homicide case. No promises, of course, but if there is new evidence that has a direct bearing on the likely outcome, we’re interested in seeing it, naturally. I can’t foresee what impact the evidence may have on our viewpoint until the transcript is digested over here, I’m sure you understand, Judge,” he explained.
“Of course,” Farrington agreed and gave the assistant district attorney his cell phone number.
His last call of the afternoon went to Corrigan. “Are you and your client available at the moment?” he asked. “Affirmative,” came the reply. “Then please come to my office, now.”
Shortly the three men were in conference. Farrington delivered copies of the cancelled check and photograph to Corrigan and Martorano, who immediately studied the documents. Long moments passed but not without audible or visible dramatic reactions to their content. Finally, Corrigan broke the silence.
“Judge, if these documents are authentic, and frankly, I doubt there is any grave concern that they’re falsified, then my client and I have some serious conversations ahead of us this evening. There’s not much more we can accomplish this afternoon, with your direct assistance, at least, and I’m asking that we be excused until the morning session picks up. Is that acceptable, Your Honor?
”
“Of course, Mr. Corrigan. We’ll be starting at nine thirty tomorrow morning and I’ve asked everyone to join me in full caucus at that time. In the meantime, you have my cell phone number, so don’t hesitate to call if you think I may be able to offer something or otherwise assist you and your client, who obviously has a lot to think over in the meantime,” Farrington suggested.
***
The mediation session the following morning began with Farrington making general comments to the effect that much progress had been made during the extended process that actually got underway weeks earlier. While making his remarks, Farrington studied the faces of everyone, trying to gauge current attitudes about settlement. Frankly, he felt he had been with these people a very long time and had participated in much of the making of the family’s pivotal modern history. Bill Martorano appeared fully exhausted, yet he was present and attentive.
Still, the mediation process relentlessly spun itself onward. There was a huge learning curve involved for the litigants, which was all the bigger when positions were based only on emotional reactions to events. A great benefit of mediation was the reality check that was afforded the parties. It usually took many hours of discussion and thoughtful reflection before good and common sense were given any chance. Such an opportunity rarely presented itself during the hectic battle of trial being fought to a bitter outcome.
Corrigan was a tremendous help to Bill the night before as they discussed changing roles of the family members now that his father was gone. Slowly Bill came to recognize that new days were dawning, and it was really up to him to make the most of the situation since he would be judged by his actions in this case for many years to come. With Corrigan’s assistance and Farrington’s encouragement over the entire time they had been engaged in mediation, Bill began to see that he was the architect of the future of family relationships and its fortune. He was the leader who was required to search for novel solutions now.
The assistant district attorney did not call Farrington until late that morning, and in the meantime, the mediation meetings and mini conferences were suspended, awaiting word from him. When he did call, he explained that the transcript had been reviewed and critiqued. The capital case committee had met and reviewed this development, and after much discussion and even heated debate, his office was willing to consider making the motion to dismiss, but only if the members of the Martorano family were in agreement with such a final disposition.
He reminded Farrington, again, that even if the family came on board, the final decision to dismiss rested with the criminal court judge assigned to the homicide case. He stressed that no prosecutor could ever become involved in the disposition of a related civil case. Farrington confirmed his understanding that a deputy would make the motion to dismiss in the interests of justice if the Martorano family was in agreement. Farrington promised that he would get back to the assistant district attorney as soon as he could.
It was eleven thirty in the morning, and Farrington reconvened the general session, inviting everyone into his crowded chambers. He resumed his remarks and summarized the developments thus far. No one was caught by surprise, naturally, since word of the movements of each party along the way had long since been telegraphed throughout the camp. When he delivered news of this most recent development and the willingness of the district attorney to make a motion to dismiss, he made it plain enough that everyone had to be in agreement. Then he invited comments from members of the group.
Bill Martorano was the first to offer to speak. Corrigan resisted his client’s efforts ever so modestly and then relented and gave Bill the green light to proceed.
“I’ve had some time to mull things over during the past few days we’ve spent together. I’m going to say that I’ve grown a great deal in my thinking since the mediation got under way some time ago. I’d like to express my appreciation to Judge Farrington for opening my eyes to some points that I could not have seen without his help. And of course, thanks to my attorney, Mr. Corrigan, who has hung with me through thick and thin, as I’ve been able to reconcile myself to a resolution that grew out of our efforts to reach peace.
“First, I’ve checked with all the family members, and we are in agreement that we will not object to the district attorney making a motion to dismiss the criminal charges against Marti Barnes. I see now that I was so emotionally involved in the unfolding of events that I lost my perspective. Then before I knew what to think, Marti was charged with murdering my father. Once that happened, my family and I were swept into the cheering section blowing our horns for conviction.
“Marti, wherever you are, oh, I see you now, please try to forgive me. I know this may take some time, but I’m very sincere about my feelings.” Bill’s voice cracked audibly. “And if you’d like a caretaker’s job at the Three Rivers place, you’re hired, with salary commensurate with your responsibilities. We would also request that you continue to cook when we’re all there for vacations and family celebrations, so please figure that into your salary needs. I’m sure we can reach agreement, if that is, you have any desire to stay with us.
“Now, Ms. Figueroa, I think I mean ‘Sis’ at this moment. Welcome to the Martorano family!” and he burst into a broad infectious Martorano smile that he had been suppressing for an awfully long time. Lupe leapt to her feet and raced to her half-brother, falling into his arms in a very warm and overdue embrace.
The room erupted into an unplanned party to celebrate the armistice and official addition of a fifth sibling to the clan. Since it was nearly noon, Farrington decided to call for champagne for the assemblage, so by lunch time, there were no strangers in the room. Before the party got into high gear, however, Farrington remembered to call the assistant district attorney to report the news.
“Are you certain this is what the family wants, Judge?” quizzed the assistant DA.
“That’s a guarantee!” the exuberant reveler confirmed.
Arrangements were made for Malone to meet the assistant DA and the criminal trial judge in his department at 3:00 p.m. The motion to dismiss was entered into the record and was granted after short but appropriate remarks were made by the attorneys. A deliriously happy client and her frazzled attorney left the courthouse in a rather bedraggled state. Marti Barnes was released from custody and immediately telephoned Bernie to share her incredible news. Barnes, Collins, and Malone adjourned to his home, called for a pizza delivery, and celebrated until exhaustion swept over all of them. Unbelievably, no more than two bottles of red wine were consumed over the entire evening.
The case settled, and Farrington believed the attorneys when they promised to get a written settlement agreement prepared and signed within the week. One never knew whether such promises would be carried out, but in this case, Farrington had a gut feeling that the settlement would stick. The room cleared quickly, and he found himself alone with his thoughts about the mediation. There were many good feelings to savor throughout life, yet leading a group of warring litigants and their attorneys to the making of a decent settlement of a case like this one was right up there near the top of the list.
Farrington found his cell phone and placed a call to Judge Crouch. Much to his surprise, she answered her phone immediately. Once she heard the good news that her case had settled, she could not stop praising Farrington for his brilliance and patience in bringing the parties together and marshaling all the crucial elements of the final agreement. Farrington was gracious and mumbled something to the effect that any trained mediator could have managed this result, but he really did not believe that to be true. It did take a special skill to make settlements like this one, and he was grateful he had been blessed with the necessary talent and experience to manage it. He thanked Judge Crouch for her referral of the case, rang off, and made his way to his ranch in the countryside—not a big spread, mind you, but a place a man could find himself fitting nicely into a sublime relationship with the wonders of nature, with enough space to relax and do a little thinking from time
to time. Life was good.
Epilogue
The final version of the settlement agreement was signed by the parties several weeks after the mediation conference concluded at the hotel. Farrington was on the telephone many hours cajoling, coaxing, and using his consummate skills to bring the written contract across the finish line. The financial provisions were very complicated, with details for payments of attorneys’ fees from the Martorano estate included for the benefit of the various claimants. Only the Conservancy Fund refused to submit such a claim, satisfied that the decedent’s promise properly documented before his death would be honored by his estate. A parcel of real estate was deeded to the fund to be used for purposes consistent with its mission, which was to preserve land in its pristine state for the benefit and enjoyment of future generations living in and visiting the San Joaquin Valley of California.
The estate paid Malone’s attorney fees in the sum of two hundred thousand dollars in four annual installments of fifty thousand dollars each. The payment schedule was suggested by Farrington, who convinced Malone that a lump sum payment would cluster income in one year, causing adverse tax consequences. Furthermore, four installments would meter out the payments and give him some protection against the temptation of dissipating the entire sum if received in one big payment. Malone was silently grateful for Farrington’s advice, as he knew he could easily yield to temptation otherwise. The suggestion paid off handsomely in the long run. The money from the first installment allowed Malone to retire a second mortgage on his home and bring his support arrearages current. His children reestablished contact with him.
(2012) The Court's Expert Page 31