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January 01, 2016

Sidebar: War Stories

What went wrong--and right--with three cases offers lessons and entertainment to litigators.

Kenneth P. Nolan

The Liquid Lunch. After his plane skidded off the LaGuardia runway, a plump, 20-something guy calmly removed his shoes and slid down the evacuation slide only to hit the tarmac awkwardly. Calcutta is less crowded and chaotic than a New York City emergency room, so he ignored the pleas of the first responders and hopped a cab back to his favorite Manhattan saloon where he regaled his buddies with a tale of danger and heroics.

A week later, he appeared in my office to quiet his pals who demanded he sue: “You can get money for this. What are you an idiot?” With tie loosened and a smile, he readily admitted he was fine, but “Occasionally, I get a pain in my right foot. Where I hit the ground.”

“Get it checked out,” I sagely advised. Which he did, eventually.

“The doctor says I have a hairline fracture. They want me to wear a boot or something. What should I do?”

“Wear the boot,” I reasoned as the retainer was signed. “No, it won’t cost you a cent even if we lose. Don’t worry about it, Jimmy. Can’t guarantee anything,” I said, “but we’ll be fine. And you know, no softball.” His medical records confirmed the minimal fracture. I mailed the demand letter.

Clients change when they realize a lawsuit could generate cash. Simple, frugal citizens who turn off the light whenever they leave a room now demand Warren Buffet riches for even minor inconveniences. “I want more” is what I often hear.

“How much?”


Greed, one of the seven deadly sins, can lead to burning in hell for like a hundred billion trillion years. That hasn’t prevented many clients from becoming like those wicked Ponzi scheme guys who keep our jailers busy. Or from sounding like Gordon Gekko from the movie Wall Street: “Greed, for lack of a better word, is good.”

“I stopped wearing the boot. It’s a pain and makes my foot sweat,” he added with adjectives a bit more salty. “You think they’ll follow me and film me not wearing the boot?” “Nah,” I assured him, “wearing the boot will help you medically but wouldn’t make a difference as to the value of your case,” which I thought relatively small.

“Oh yeah, almost forgot,” he noted. “I’m playing softball, but catcher, so I don’t have to run much.” Then he whispered: “Look, Ken, I’m not one of these a**holes who sue all the time, but I would like to go on vacation, maybe Florida. You think you could get me $25,000? That way, my share will be enough to cover my trip. I need a break. I really do.”

“We’ll see,” I said, all the while wishing I could join him and his cohorts for the after-softball libations, since his rumpled look, carefree attitude, and good humor cried “life of the party.” Fun started, I concluded, the moment Jimmy left work.

The insurance adjuster said he was meeting with his attorney and client on Friday and wanted to settle the case if possible. I planned to discuss our strategy Thursday evening. Jimmy didn’t even call. “I forgot. But I’m available all day Friday, except for lunch. Did I tell you I’m now playing first base? My foot’s fine.”

The adjuster called just after 1 p.m. “We’ll offer $50,000, but only if we settle today.” I remained cool but was inwardly ecstatic. I called Jimmy, but he was still at lunch. In those dark ages, you phoned an office, left a message with the receptionist, and awaited a return call. No email, iPhones, not even a fax. This was when people actually talked to each other.

I almost accepted the offer without consulting my client, but the gray hairs insisted I needed Jimmy’s approval. So I waited and continually called only to be told: still at lunch. At 2:30, I reluctantly informed the adjuster that I hadn’t reached my client. Surprisingly, he increased the offer to $75,000. Now I was off the wall. I kept calling until the receptionist snapped: “If you call one more time, I won’t tell him. Stop bothering me.”

At 3:30, the adjuster demanded an answer. I explained my dilemma and was called a name that at the time was shocking but today is all over TV. “OK, you win, I’ll go to $100,000. Stop playing games and settle.” Still no Jimmy. At 4:30, I again spoke with an extremely irate adjuster who listened to my tale of woe, then slammed the phone down. I blew it, I thought. A few minutes later, the phone rang. “I’ll remember this, Nolan,” the adjuster fumed. “I have $150,000, but only if you accept by 5:00 p.m. Otherwise all offers are withdrawn.”

“Settled,” I quickly replied.

“It was my friend’s last day at work,” Jimmy explained. “We had burgers and a few pops. Lost track of time. Sorry. When can I get my money?”

The Forehead Reader. If I had photographed my clients, I would recall the many personalities, the varied facts, the good and not-so-good results. Snippets of cases come to mind, but only the heroic or devious, sometimes the strange.

Such a memory is actually the first case I settled for a big, fat $4,000. Can’t remember the incident, only that my client, an Asian gentleman in suit and tie, professed to be skilled at reading foreheads. No, I never heard of that either. Palm readers I knew, because some kid was always grabbing your hand and telling you that this line meant love and that one tragedy—ridiculous superstitions we were taught to dismiss.

When I bought my first car, a neighbor fastened a medallion of St. Christopher to my sun visor, and I never removed it. Even though I banged up that 1967 VW Bug a few times, my only injury was a few stitches. So I’m proof that St. Christopher, then patron saint of travelers, did his job and well. And I don’t care if the Catholic Church has questioned his very existence, eliminated celebrating his feast day, and essentially booted him from the sainthood union. I still have that medallion in my car. And let’s be honest—have you ever prayed to St. Anthony and not found what you were looking for?

But even with this faith in St. Anthony to drop everything and help me find my keys, I was skeptical of someone who can predict the future by reading foreheads, especially mine. The family lore is that when my father was drafted in 1942, they couldn’t find a helmet big enough for his size 77/8 head. Hence his nickname: Headdo. I, too, have a fat Irish head (7¾) and a high forehead, so I was a bit sensitive when my client asked to read my forehead.

My job, I supposed, was to please clients so they’d tell others of my wondrous skills who would then clamor for my services, bringing wealth and fame. Yes, I actually believed that. So I agreed and waited nervously as he stared at my way-too-large forehead. This’ll take a while, I kidded.

“You won’t make a lot of money. You’ll never be wealthy,” he stated emphatically. There may have been other predictions, but this is all I remember. I was relieved. I expected dire forecasts—pestilence, mayhem, even the Jets never winning a second Super Bowl. But not being Rockefeller rich, that’s easy. Having grown up in a house without a shower, where I slept in an unheated room, I never expected to be pampered in a huge white mansion with a lush green lawn and a clear blue swimming pool.

I could wax philosophical and mention that my wonderful family has provided me more riches than any Forbes 400 billionaire ever had. Yet, I’ve never missed a meal, and I’ve paid four exorbitant college and two law school tuitions, so essentially he was wrong. And I never heard from him after he cashed his check. Not even a single referral.

The Judge Butts In. Not all war stories end with success or a laugh. Sometimes the outcome pains. I was trying a case in a Midwestern city before a judge, nice enough but a trifle full of himself. The trial was a slugfest because my adversary was experienced and talented. The offer to settle, however, crept higher as the days of testimony proceeded. Closings were tomorrow.

My clients, a wonderful couple, were determined to have a jury decide but, after hearing the defendant’s experts minimize injuries and future expenses, began to waver. As always, I patiently explained that working-class jurors, who value every buck, could easily award much less than the offer. They understood and would discuss that evening and decide in the morning in our conference room in the courthouse.

Before court, their questions led me to believe they would accept the offer and end the trial. That moment, our judge strolls in and interrupts: “What’s their offer up to?” When told, his response was short and firm: “Oh, the jury will give you much more than that.”

Emboldened, my clients agreed to let the jury decide. Which they did. The verdict was a mere 60 percent of the final offer. I’m certain my closing could have been more persuasive, but I wish the judge had kept his big trap shut.

Kenneth P. Nolan

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA Publishing), is counsel to Speiser, Krause, Nolan & Granito, Rye Brook, New York.