[2013] Consequential Damages Read online

  “Kevin and I were classmates,” said Jake, realizing why Pat looked familiar.

  “I’ve got a legal question, too. Mind if I run it by you?”

  “Not at all. Fire away.”

  “Great, thanks. I’m having trouble with my back, and I’m trying to find out if I can take time off from my job and still get paid. Do you know anything about workers’ compensation laws?”

  “Just a little, not much. How did you hurt your back, Pat?” asked Jake.

  “It’s been bothering me for several years. I play a lot of tennis. A few years back, I was serving during a match, and I stretched a little too far and felt a twinge in my lower back. I couldn’t finish the match, and it was really stiff for a few days. It’s bothered me off and on since then.”

  “But you still play,” asked Jake, noticing Pat’s tennis bag under his barstool.

  “Yeah, but my back’s always sore and I think my job is making it worse.”

  “What does your doctor say?”

  “He told me to give up tennis for awhile.”

  “What kind of work do you do?”

  “I’m an assistant manager at a pharmacy. I’m on my feet all day long. Sometimes I have to move boxes and other crap. I know it’s aggravating my back.”

  Rick had not said a word during the conversation. He watched Jake intently, with a look of amusement on his face. “How long have you worked there?” asked Jake.

  “About nine months.”

  “Look Pat, I’m really not an expert in this area, but I think the injury has to occur on the job for workers’ comp to apply.”

  Jimmy spoke out from behind the bar. “Still looking for a way to get paid for playing tennis, Pat?” he asked with a grin.

  Pat ignored him and continued pleading his case. “No, this is really bothering me. I need some time off.”

  “I’d suggest you talk with your boss and see if he’s open to some sort of leave of absence. Maybe he’ll let you use sick time or vacation days so you can still get paid. Or maybe he’ll agree to an unpaid leave of absence. It might be worth it if it helps you get better.”

  Pat looked defeated. “I’ve already used up all my sick time and I haven’t worked there long enough to have vacation time. Thanks, anyway. I figured I was probably out of luck, but just thought I’d ask. Can I buy you guys another round?”

  “No thanks, we really need to be shoving off,” replied Jake.

  After leaving a generous tip on the bar, Jake and Rick walked out into the muggy Chicago evening. Rick was in a jovial mood as they walked toward his car. “What a friendly crowd! Not the kind I pictured you hanging out with, but certainly an interesting group. Hell, that place could be a gold mine for a plaintiffs’ lawyer.”

  “What do you mean?”

  “I mean it’s the kind of place that attracts plenty of losers who believe the world has done them wrong, and they’re just dying to sue someone.”

  “The only problem is that they usually don’t have a case.”

  “You need to think more creatively, Jake. Things aren’t always black and white. Even those two yo-yo’s we spoke with tonight could probably cash in if they find a lawyer who’s smart and aggressive. Like my old man always says, in the hands of the right lawyer, any case can be a winner.”

  “But why would any self-respecting lawyer take a case like that?”

  “Because it’s good sport. It’s a challenge. And you could make some real money. Besides that, lots of people weren’t born with the good fortune that we were born with. The world is full of people who aren’t very bright or very motivated and just don’t have a lot going for them. What’s wrong with trying to make their depressing lives just a little better?”

  “Not a thing, if they have a legitimate case – which many of them don’t.”

  “Who are we to judge?” Rick climbed into his BMW. “At any rate, now I know where to go if I ever need to troll for clients! Hey, it’s been fun. See you back at school next week.” He sped off into the night.

  CHAPTER 11

  Amanda and Ellen Marsh sat side-by-side on the old leather couch in Dr. Marsh’s office. It was Amanda’s first day back at work after her leave of absence.

  “I’m glad you’re back, Amanda. How's your grandmother doing?” asked Dr. Marsh.

  “Not very well, I'm afraid. It's been a rough few months.” Amanda looked down as she tried to blink away the tears filling her eyes.

  “I'm sorry to hear that. Has her rehab been difficult?”

  “Extremely. While she was staying in the rehab center, she picked up a dreadful staph infection. She spent nearly a month in the hospital battling the infection, and was so weak she couldn't rehab her hip. We finally brought her home—to my parents’ house—but she’s still really weak.”

  “How are her spirits?”

  “Not good, and that concerns me even more than her physical condition. She’s always been so active and independent. She lives in a third-floor apartment in Chinatown, with no elevator, so she knows she won't be going back there anytime soon. That has her depressed, and she's really struggling to keep going.” A tear rolled down Amanda's cheek, and she paused to keep her voice from breaking. She took a deep breath and composed herself. “I feel like I've done all I can do. I've spent the last several months at her side, being her nurse, and her cheerleader, and her personal trainer. Now it's just up to her. She has to look within herself and find the will to live—or not.” She forced a smile. “Anyway, I'm glad to be back. Thanks for letting me take time off to be with her.”

  “You're a good person, Amanda Chang. You need to get on with your own life. I'm sure that's what your grandmother would want.”

  “I know. I'm ready to do that.”

  “Good. So tell me, how’s your personal life otherwise? Last time I saw you, you were very excited about a new man in your life.”

  “Unfortunately, that didn’t pan out. When we met, I really thought there was potential, but …” her voice trailed off.

  “I’m sorry.”

  “Me too, but I'm ready to dive back into work. I think that will help me get my act together again.”

  “I'm sure it will. By the way, I've been in touch with my contacts in Chicago. They would love to meet you. Why don't you plan on visiting there sometime this fall? I’m sure you’d be impressed. Something fresh and exciting may do you a world of good.”

  “I’d like that,” said Amanda, smiling again. “I may wait a month or two, so I can settle in here again, but I’ll definitely make the trip sometime this fall.”

  CHAPTER 12

  As the second-year students returned to school in late August, there were three principal topics of discussion: what they had done over the summer; what they knew about their new classes and professors; and the upcoming interview season. Commencing in early October, law firms, corporations and government agencies from across the nation would descend upon campus for several weeks of interviews. Second Years would be interviewing for coveted summer clerkship positions, and Third Years would be interviewing for permanent positions that would start following graduation.

  “Do you guys understand how this works?” Tony asked, as he, Jake and Rick sat in the shady courtyard adjacent to the law school.

  “I've been talking to some of the Third Years,” Rick replied. “Here's the scoop: There will be hundreds of potential employers coming through here this fall, mostly big law firms. Each one generally spends a day here interviewing whatever students have signed up to meet with them. The interview lasts about half an hour. If they like you, you’ll get a callback within a week or two, which means they invite you to visit the firm at their office for an entire day's worth of interviews. If you pass that test, they'll make you an offer. You can interview with as many firms as you like.”

  “What if a firm is from out of town?” asked Tony. “I plan on going back to New York after law school.”

  “I'm sure all the major New York law firms will be here,” Rick replied. “If t
hey like you, they’ll fly you back to New York for more interviews. They'll put you up in a nice hotel and take you to some expensive restaurants, all on their dime. They call that a flyback.”

  “Will any Chicago firms be recruiting here?” asked Jake.

  “Yep,” said Rick. “I saw last year's list. There must've been at least twenty Chicago firms on it. All the top-tier firms will definitely be here.”

  “Excellent! So I may be able to get a couple of free trips home this fall?”

  “Absolutely. If you're smart, you might even be able to make a few bucks.” Rick grinned slyly, as if he already had a plan.

  Tony looked suspicious. “Make money? What are you talking about?”

  “It's easy. You plan your flybacks so that you visit several firms on the same trip. Then you bill each of them for all your expenses—airfare, hotel, taxis, the works.”

  Tony and Jake exchanged glances. “Bullshit!” Tony blurted out. “You can't do that!”

  “You're not serious, are you?” Jake asked.

  “Of course I'm serious,” said Rick. “Look, each one of these firms would be willing to pick up the entire tab if I were visiting only them. It's part of the process. It's a cost they're willing to bear.”

  “Yeah, but their intention is to reimburse you for your expenses, so you don't take a financial hit by going to see them,” Jake replied, still unsure whether Rick was simply having fun at their expense. “You're not out of pocket anything once one firm reimburses you. How can you bill another firm for those same expenses? They're not paying you for your time. Clearly, you should be dividing the costs among whatever firms you’re seeing on that trip.”

  “I disagree,” said Rick. “They’re in recruiting mode. They want me to take the time to travel to Chicago, and they're willing to pay for it. There's no reason any particular firm should receive a windfall just because I choose to interview with another firm while I'm there.”

  Tony shook his head. “That's just not right.”

  “Again, I disagree,” said Rick. “I would avoid making any representation to any one firm that I will be spreading the expenses around. Unless they explicitly limit the terms of their reimbursement—which they don’t normally think to do—there’s a clear understanding on their part that they will be picking up the entire tab. So what’s the harm?”

  “It’s just not right,” Tony said again. “Besides, what if one of those firms were to find out that you were treating the interview process as a profit-making opportunity? It might hurt your chances of getting hired.”

  Rick’s face darkened at that thought. “Well, you may have a valid point there. Maybe it’s not worth running that risk. But I’ll tell you this— it isn’t as black and white as you seem to think.” Rick looked from one to the other. “You guys are spending way too much time in the ivory tower. You need an education in how the real world works. We’re joining a profession where the most successful practitioners are the ones who are the most aggressive and creative, the guys who aren't afraid to push the envelope.”

  “Within limits,” Jake corrected him. “There are ethical rules governing our profession, and we need to play within those rules.”

  “Granted, but those rules are flexible. There are very few situations that are truly black and white. Mostly, we deal with shades of gray, and we deal with arguments. Sometimes an argument can be made that a certain course of conduct is against the ethical rules, but there’s almost always a legitimate counterargument that it’s not. Our overriding obligation as attorneys will be to zealously represent our clients. Our system is built on that foundation, and I don't plan on letting my clients down. I play to win—whether it's basketball or law or anything else.”

  Jake was warming up to the debate. “You raise a good example: basketball. Sure, professional basketball players play to win, but there’s a rulebook. If they violate the rules, they get called for a foul or they get ejected. Those are the rules of the game.”

  “Wrong again, pal,” Rick countered. “It's not so simple. Yes, there is a rulebook, but there are unwritten rules, too. Just watch any professional basketball game and look at what goes on underneath the basket. There’s pushing, shoving, holding—all the time—even though it’s technically against the rules. It's accepted. More than that, it's expected. And the most successful players are the ones who are best at it. The same principle applies to the legal profession. If you want to be successful, you need to understand the unwritten rules, and you need to understand that even the written rules are elastic. You can’t fight your battles with one hand tied behind your back. Your mission is to win. You do what it takes.”

  “You do what it takes to win, eh?” Tony scoffed. “The end justifies the means? I’m not buying that crap. The only way that theory works is if the end result somehow serves the greater good. What if your client is wrong and undeserving? Your whole theory falls apart.”

  Rick looked annoyed. “You’re missing my point entirely,” he replied. “The end game is winning—that’s all that matters. It’s not up to us to weigh the moral or social value of the cases we handle. We’re hired to win. That’s the goal, and we need to do what it takes to accomplish that goal.”

  “You’re missing my point!” Tony shot back. “We spend ninety-nine percent of our time living in the realm of the means. It’s the journey we travel during most of our waking lives, while our arrival at the destination—the end—is just a fleeting moment. The way we conduct ourselves on that journey defines who we are, and that’s far more important than the outcome of any particular case.”

  “I agree with Tony,” said Jake. “Holding ourselves to the right standard of ethics is an end in itself, and that should be what guides us throughout our careers.”

  Rick looked amused. “I disagree. In this country, we keep score, and the only thing that counts is the end result. That’s how our world will judge us. Like I said, you guys need a good dose of the real world. I got plenty of that this summer, working for my old man's firm. The lawyers there understand that the rules are elastic, and they know how the game is really played.”

  “Sounds like bullshit to me,” Tony replied. “So, how do lawyers in the real world apply this elasticity? Give me an example.”

  “Sure, that's easy. Take the whole universe of personal injury law. Do you really think that every client who walks into a lawyer's office is hurt as badly as he says he is? Of course not. But how does an attorney make that assessment? He can't, and it's not his place to do so. So he sends the client to someone better qualified to make that evaluation—a medical expert he happens to know—a doctor to whom he sends a lot of business. The lawyer, if he's got half a brain, would never instruct the doctor as to what his findings should be, but guess what? Time after time, the doctor will issue an expert opinion confirming the patient's complaint.”

  “That’s because the doctor is a sleazebag with no conscience,” Tony replied. “He knows that if he doesn’t provide the diagnosis the lawyer wants, then the lawyer will stop sending business his way.”

  “Precisely. But the end result is that the lawyer gets what he needs—support for his client’s claim—without doing anything outside the rules.”

  Jake was disturbed, both by the reality of what Rick was describing, as well as the fact that Rick seemed to be defending it, even embracing it. “You're painting a pretty grim picture of our profession.”

  “Hey, if you look beneath the surface of any well-oiled machine, you’ll find some grimy parts, but those parts are essential to the machine’s operation.”

  “I don't know about that,” Tony said. “If there's too much sludge in an engine, it just stops working.”

  “Well, get your heads out of the clouds, boys. Your summer clerkships will give you a firsthand glimpse of the legal profession in action. Watch and learn. A couple of smart and ambitious guys like you will figure it out in no time. Before long, you’ll be bending the rules with the best of them.”

  CHAPTER 13


  Although Jake had seen Kelly several times during the first week of classes, he’d had very little conversation with her. He greeted her cheerfully and enthusiastically when he encountered her, but she seemed distant. Their conversations had been short, and she didn’t seem to be in the mood for chatting whenever he spoke with her. Jake assumed something must be troubling her, but didn’t feel it was his place to pry.

  Toward the end of the second week, Jake saw Kelly sitting in an outdoor café by herself, sipping tea and reading a newspaper. He decided to try to cheer her up. He sneaked up behind her, put his hand on her shoulder, and leaning close to her ear, said in his most suave voice, “Hey good-looking, come here often?”

  She turned around with a start. “You’re real smooth, McShane,” she said without smiling.

  “Mind if I join you?”

  “If you like,” she said, looking back at her newspaper.

  Jake ignored the snub. “We miss you at the dorm, Kelly. It's not the same without you. How's apartment living?”

  “It's okay.”

  “How was your summer?”

  “Fine.”

  “I hear you worked at Watkins & George in the City. How was that?”

  “About like any other big law firm, I imagine.” Her eyes remained fixed on the paper.

  “Kelly?” She looked up. “It feels pretty frosty around here. Are you upset with me about something? What's going on?”

  She glared at him. “If you don't know, then you're not as smart as I thought you were.”

  “I have no idea what you're talking about. Please, clue me in,” Jake pleaded.

  She leaned back in her chair, folded her arms, and gave him a harsh look. “I hate it when guys act like inconsiderate bastards, and have no regard for how their actions may really hurt someone. I didn't think you were that type, but obviously I was wrong.”