The Case

Joseph leaned forward in his rolling chair, peering intently at his computer screen.  He had developed a squint-nearsightedness from his computer habits.  His complexion was also suffering, his skin milky and pale.  Even his forearms, which had always been robust enough to sustain a faint tan in the winter months, were nearly translucent.  He had also become significantly doughier.  Although his dimensions were roughly the same, his composition was changing drastically-it would only be another year or two before the paunch became readily apparent.

Winters materialized behind him-busting him in the middle of reading his legal tabloid.  “Got time for a project, Huck?”  The trim, angular attorney smiled, baring his prominent incisors, daring Joseph to say no.  Winters’ cast a sharp glance at the computer screen, prodding Joseph to acquiesce.

“Sure thing, boss.”

“Good, this is a big one.  Insurance defense.”

Winters dropped an expandable file on the cluttered desk-the file was the width of two phonebooks.

“Come by my office tomorrow, when you’ve read the file.  We’ll chat.”

***

Defendant-insuree drove a black Lamborghini south down Main Street at 2:15 A.M., travelling at approximately 45 miles per hour, 20 miles per hour over the stated speed limit.  Plaintiff was stopped at the Maple Street red light facing south on Main behind a semi-truck, driven by Evans.  Defendant-insuree collided with Plaintiff’s BMW from the rear, pushing the BMW under the semi, collapsing the front end.  Plaintiff was pinned at the waist between the steering column and the driver’s seat.  Evans, unharmed, attempted to remove Plaintiff from the crushed vehicle.  Plaintiff bled to death at the scene.  Plaintiff’s estate now sues Defendant-insuree.  Defendant-insuree is insured Defendant-insurer, covering personal injuries to third parties up to $1 million.  Defendant-insuree is current on all premiums.

***

Joseph, after two cups of black, stepped up to Winters’ door-slightly ajar-and knocked as he timidly pushed it open.  “Busy?”

“Of course I’m busy, douche-bag.  It’s 8:30, I’ve been busy for hours.”

“…”

“Don’t just stand there like a huckleberry, sit down.  Stop wasting my time.”

“…”

“Well?”

“The IBA case, I read it.  It’s interesting.”

“What’s so interesting about it?”

“…”

“Look, Huck, this is a big case.  We are not going to pay this.  At least, we are not going to pay most of it.”

“Who’s going to pay it?”

“That’s for you to figure out, champ.  How about the driver?”

“We could probably allege comparative fault as an affirmative defense.  That way the driver would have to pay his share.”

“Now you’re thinking.  Make it so.”

***

Joseph, ablaze with knowledge, began drafting the answer to the plaintiff’s complaint, placing in all of the boilerplate legalese.  The doughy lawyer relished typing the allegation of comparative fault.  Soon he would be able to begin the memorandum supporting the allegation, to be used when the claim was disputed.  He spent the morning polishing the answer, checking and re-checking for typographical errors-intending to begin research on the memorandum after lunch.

At 11:55, Winters appeared behind him.  “No tabloids this time?”

“No, sir.  Just finishing up this answer.”

“Feeling pretty good about it?”

“Looks good from here.  I think we’ve got a good chance here.”

“Why?”

“Well.  If the truck driver hadn’t tried to remove the plaintiff from the car, he probably wouldn’t have bled to death.  The steering column was preventing him from losing too much blood.  If he had been left there until the EMS had arrived, he may have survived.”

“That’s great, Huck.  But you’re fucked.”

“I don’t think-”

“Don’t think, Huck.  Trust me.  You’re fucked.”

“…”

“…”

“Why?”

“Because the truck driver can’t pay shit; he filed Chapter 11 yesterday.”

“What?”

“He’s bankrupt, Huck.  Broke.  Penniless.  Doesn’t have a pot to piss in.  That son-of-a-bitch is in discharge; his assets are protected.”

“Shit.”

“Shit is right.  You better figure something out.  It’s your ass, not mine.”

Five-thirty finally rolled around, and with it, Friday Bar-an open bar set up on the eighteenth floor.  Joseph locked his computer and scurried down.  At the bar, he quietly ordered a Maker’s Mark on the rocks and looked around for non-hostiles.  In the corner he saw two of the new first-years, looking wide-eyed, whispering behind their drinks.  Murphy, a mousy brunette, briefly met his eyes and looked away immediately.  It was enough.

Joseph shuffled over.  The women stopped talking and looked at him.  The mousy one offered first, “Hi, Jess Murphy.”

Her voice was disconcerting, too high pitched and windy.  Joseph reached to shake her extended hand, “Joseph Jacobson, we’ve met.  Several times, actually.”

“Oh my God!  I’m so sorry!”

“Don’t be sorry, Jess.  He’s just a second-year in litigation.  He doesn’t mean anything to you.”

Jennifer Morrison, a powerful blonde-headed woman with a linebacker’s jaw and a ferret’s eyes, stared at him, arms crossed, seething aggressiveness.

“He doesn’t mean anything period.  Harry Winters,” Winters shook each of their hands briefly, “Ladies, let me do you a favor and get him out of here.”

Winters steered Joseph like a ventriloquist’s dummy, hand on the base of his neck-only squeezing lightly, but still squeezing.  Joseph allowed himself to be guided to a waspy old partner, J. Riley Salisbury.

“Jacobson, tell me about this case.  Winters tells me he put his crackerjack mentee on it, was gonna solve all our problems.”

Joseph looked solemnly at Winters, who was baring his smile.  “Well, what have you got?”

Joseph glanced at his cordovans before starting, “Well Mr. Salisbury, I think we’ve got a good chance of not having to pay.  I think we can allege comparative fault against the truck-driver.”

“The good Samaritan?” Salisbury’s sarcasm was potent and precise, “Winters already told me about him.  He’s broke.  What else have you got?”

“I know he’s broke, Mr. Salisbury.  But I don’t think that necessarily means that we can’t point the finger at him.”

Winters interjected, “There’s no money to collect.  There is no way that the judge will let the plaintiff recover from him: the bankruptcy statutes clearly protect him.”

“I think you’re wrong,” Joseph paused, noting that Winters’ tongue was flicking wildly around the point of his incisor.  He recanted a bit, “Not wrong about the bankruptcy statute, but … it’s just that I think we can still point the finger at him,” he paused looking to see if Winters was at all mollified-he was not.

“Go on, Jacobson,” Salisbury leaned forward hungrily.

“Well, the bankruptcy statute protects him from judgment,” emphasizing the last word, “not from fault.”

Winters with menace, “Where does the plaintiff get the money from?”

“He doesn’t get the money.  When the court adopted comparative fault, it inherently put the risk of insolvency on the plaintiff.”

Winters paused, “and you’ve got a case that says this?”

“No, not exactly.  But it’s pretty clear from the dicta in several cases.”

“Pretty clear?” Winters was laughing.  Short.  Distinct.  Monosyllabic.  “You are going to fall flat on your face, Huck.”

“Now, hold it there, Winters.  I think Jacobson might be on to something.  Run down this rabbit-trail, Jacobson.  Write up a brief in support of the defense.  Give it directly to me, Monday morning.”

Winters stiffly walked away, heading toward Morrison.  Jacobson moved on to more important people.  Joseph put down his half-finished drink, by now too watered down anyhow, and headed back up to his office to work on the brief.

***

“Jacobson, my boy!” Salisbury strode in to Joseph’s office to clap him on the shoulder, “brilliant work!”

“How’s that, sir?”

“Comparative fault, it’s a winner.  The judge heard the motion today.  He ruled in our favor.  The plaintiff was so scared that a jury would put the blame on the Samaritan, they settled for one hundred thousand dollars.  All your work, my boy.  I simply copied and pasted.  What are you doing tonight?  I’ll tell you what you’re doing tonight.  My house.  Dinner.  I’ll call my wife.  Bring a lady.  See you at seven.  You’re going places my boy, you’ll see.  You just earned your bonus this year.”