The King of Torts

With Ridley in bed beside him, Clay spent the night dreaming of Rebecca. He slept off and on, always waking up with a goofy smile on his face. All smiles vanished, though, when the phone rang just after 5 A.M. He answered it in the bedroom, then switched to a phone in his study.

It was Mel Snelling, a college roommate, now a physician in Baltimore. "We gotta talk, pal," he said. "It's urgent."

"All right," Clay said, his knees buckling.

"Ten A.M., in front of the Lincoln Memorial."

"I can do that."

"And there's a good chance someone will be following me," he said, then his line went dead. Dr. Snelling had reviewed the stolen Dyloft research for Clay, as a favor. Now the Feds had found him.

For the first time, Clay had the wild thought of just simply running. Wire what was left of the money to some banana republic, skip town, grow a beard, disappear. And, of course, take Rebecca with him.

Her mother would find them before the Feds.

He made coffee and took a long shower. He dressed in jeans, and would have said good-bye to Ridley but she hadn't moved.

There was a very good chance Mel would be wired.

Since the FBI had found him, they would try their customary bag of dirty tricks. They would threaten to indict him too if he refused to snitch on his friend. They would harass him with visits, phone calls, surveillance. They would pressure him to put on a wire and lay the trap for Clay.

Zack Battle was out of town, so Clay was on his own. He arrived at the Lincoln Memorial at nine-twenty and mixed with the few tourists who were there. A few minutes later, Mel appeared, which immediately struck Clay as odd. Why would he get there half an hour before their meeting? Was the ambush being organized? Were Agents Spooner and Lohse close by with mikes and cameras and guns? One look at Mel's face and Clay knew that the news was bad.

They shook hands, said their hellos, tried to be cordial. Clay suspected that every word was being recorded. It was early September, the air chilly but not cold; Mel, however, was bundled up as if snow was expected. There could be cameras under all that garb. "Let's go for a walk," Clay said, sort of pointing down The Mall toward the Washington Monument.

"Sure," Mel said, shrugging. He didn't care. Obviously, no trap had been planned near Mr. Lincoln.

"Did they follow you?" Clay asked.

"I don't think so. I flew from Baltimore to Pittsburgh, Pittsburgh to Reagan National, grabbed a cab. I don't think anybody's behind me."

"Is it Spooner and Lohse?"

"Yes, you know them?"

"They've stopped by a few times." They were walking beside the Reflecting Pool, on the sidewalk on the south side. Clay was not going to say anything that he didn't want to hear again. "Mel, I know how the Fibbies operate. They like to pressure witnesses. They like to wire people and collect their evidence with gadgets and high-tech toys. Did they ask you to wear a wire?"

"Yes."

"And?"

"I told them, 'Hell no.'"

"Thank you."

"I have a great lawyer, Clay. I've spent some time with him, told him everything. I did nothing wrong because I didn't trade the stock. I understand you did, which I'm sure you would handle differently now if given the chance. Maybe I had some inside information, but I did nothing with it. I'm clean. But the pinch comes when I'm subpoenaed by the grand jury."

The case had not yet been presented to the grand jury. Mel was indeed listening to a good lawyer. For the first time in four hours, Clay's breathing relaxed a little.

"Go on," he said cautiously. His hands were stuck deep in the pockets of his jeans. Behind his sunglasses, his eyes were watching every person around them. If Mel had told the Feds everything, why would they need wires and mikes?

"The big question is how did they find me? I told no one I was reviewing the stuff. Who did you tell?"

"Absolutely no one, Mel."

"That's hard to believe."

"I swear. Why would I tell anyone?"

They stopped for a moment to let the traffic pass on Seventeenth Street. When they were walking again, they drifted to the right, away from a crowd. Mel said, almost under his breath, "If I lie to the grand jury about the research, they'll have a hard time indicting you. But if I get caught lying, then I go to jail myself. Who else knows I reviewed the research?" he asked again.

And with that, Clay realized there were no wires, no mikes, no one was listening. Mel wasn't after evidence - he just wanted to be reassured. "Your name is nowhere, Mel," Clay said. "I shipped the stuff to you. You copied nothing, right?"

"Right."

"You shipped it back to me. I reviewed it again. There was no sign of you anywhere. We talked by phone a half a dozen times. All of your thoughts and opinions about the research were verbal."

"What about the other lawyers in the case?"

"A few of them have seen the research. They know I had it before we filed suit. They know a doctor reviewed it for me, but they don't have a clue who he is."

"Can the FBI pressure them to testify that you had the research before you filed suit?"

"No way. They can try, but these guys are lawyers, big lawyers, Mel. They don't scare easily. They've done nothing wrong - they didn't trade in the stock - and they'll give the Feds nothing. I'm protected there."

"Are you certain?" Mel asked, anything but certain.

"I'm positive."

"So what do I do?"

"Keep listening to your lawyer. There's a good chance this thing won't get to a grand jury," Clay said, more of a prayer than a fact. "If you hold firm, it'll probably go away."

They walked a hundred yards without a word. The Washington Monument was getting closer. "If I get a subpoena," Mel said, slowly, "we'd better talk again."

"Of course."

"I'm not going to jail over this, Clay."

"Neither am I."

They stopped in a crowd on a sidewalk near the monument. Mel said, "I'm going to disappear. Good-bye. From me, no news is good news." And with that, he darted through a group of high school students and vanished.

The Coconino County Courthouse in Flagstaff was relatively quiet the day before the trial. Business was routine; no hint of the historic and far-reaching conflict soon to be raging there. It was the second week in September, the temperature already pushing 105. Clay and Oscar walked around the downtown area, then quickly entered the courthouse in search of air-conditioning.

Inside the courtroom, though, pretrial motions were being argued and things were tense. No jury sat in the box; that selection process would begin promptly at nine the following morning. Dale Mooneyham and his team covered one side of the arena. The Goffman horde, led by a fancy litigator from L.A. named Roger Redding, occupied the other half. Roger the Rocket, because he struck fast and hard. Roger the Dodger, because he went all over the country, fighting the biggest trial lawyers he could find, dodging big verdicts.

Clay and Oscar took seats with the other spectators, of which there was an impressive number just for motion arguments. Wall Street would watch the trial very closely. It would be a continuing story in the financial press. And, of course, the vultures like Clay were quite curious. In the front two rows were a dozen or so corporate clones, no doubt the very nervous folks from Goffman.

Mooneyham lumbered around the courtroom like a barroom bully, bellowing at the Judge, then at Roger. His voice was rich and deep and his words were always contentious. He was an old warrior, with a limp that appeared to come and go. Occasionally, he picked up a cane to move around with, then at times seemed to forget it.

Roger was Hollywood cool - meticulously tailored, a head full of salt-and-pepper hair, strong chin, perfect profile. Probably wanted to be an actor at some point. He spoke in eloquent prose, beautiful sentences that rolled out with no hesitation. Never an "Uh" or an "Ah" or a "Well..." No false starts. When he began arguing a point, he used a splendid vocabulary that anyone could understand, and he had the talent of keeping three or four arguments alive at one time before tying them all beautifully together into one superbly logical point. He had no fear of Dale Mooneyham, no fear of the Judge, no fear of the facts of the case.

When Redding argued even the smallest of issues, Clay found himself mesmerized. A frightening thought hit: If Clay was forced to trial in D.C., Goffman would not hesitate to send Roger the Rocket into battle there.

While he was being entertained by the two great lawyers on the stage before him, Clay was recognized. One of the lawyers at a table behind Redding glanced around the courtroom and thought he saw a familiar face. He nudged another one, and together they made the positive ID. Notes were scribbled and handed to the suits in the front rows.

The Judge called a fifteen-minute recess so he could visit the toilet. Clay left the courtroom and went to find a soda. He was followed by two men who finally cornered him at the end of the hallway. "Mr. Carter," the first said pleasantly. "I'm Bob Mitchell, vice president and in-house counsel for Goffman." He shoved a hand forward and squeezed Clay's tightly.

"A pleasure," Clay said.

"And this is Sterling Gibb, one of our attorneys from New York." Clay was obliged to shake hands with Gibb as well.

"Just wanted to say hello," Mitchell said. "No surprise to see you here."

"I have a slight interest in this trial," Clay said.

"That's an understatement. How many cases do you have now?"

"Oh, I don't know. Quite a few." Gibb was content to just smirk and stare.

"We watch your Web site every day," Mitchell was saying. "Twenty-six thousand at last count." Gibb changed his smirks; it was obvious he detested the mass tort game.

"Something like that," Clay said.

"Looks like you've pulled the advertising. Finally got enough cases, I guess."

"Oh, you never have enough, Mr. Mitchell."

"What are you going to do with all those cases if we win this trial?" Gibb asked, finally speaking.

"What are you going to do if you lose this trial?" Clay fired back.

Mitchell took a step closer. "If we win here, Mr. Carter, you'll have a helluva time finding some poor lawyer who wants your twenty-six thousand cases. They won't be worth much."

"And if you lose?" Clay asked.

Gibb took a step closer. "If we lose here, we're coming straight to D.C. to defend your bogus class action. That is, if you're not in jail."

"Oh, I'll be ready," Clay said, laboring under the assault.

"Can you find the courthouse?" Gibb asked.

"I've already played golf with the Judge," Clay said. "And I'm dating the court reporter." Lies! But they stalled them for a second.

Mitchell caught himself, thrust out his right hand again, and said, "Oh well, just wanted to say hello."

Clay shook it and said, "So nice to hear from Goffman. You've hardly acknowledged my lawsuit." Gibb turned his back and walked away.

"Let's finish this one," Mitchell said. "Then we'll talk."

Clay was about to reenter the courtroom when a pushy reporter stepped in front of him. He was Derek somebody with Financial Weekly and wanted a quick word or two. His newspaper was a right-wing, trial lawyer-hating, tort-bashing, corporate mouthpiece, and Clay knew better than to give him even a "No comment" or a "Kiss off." Derek's name was vaguely familiar. Was he the reporter who'd written so many unkind things about Clay?

"Can I ask what you're doing here?" Derek said.

"I guess you can."

"What are you doing here?"

"Same thing you're doing here."

"And that is?"

"Enjoying the heat."

"Is it true that you have twenty-five thousand Maxatil cases?" "No." "How many?"

"Twenty-six thousand."

"How much are they worth?"

"Somewhere between zero and a couple of billion."

Unknown to Clay, the Judge had gagged the lawyers for both sides from then until the end of the trial. Since he was willing to talk, he attracted a crowd. He was surprised to see himself surrounded by reporters. He answered a few more questions without saying much at all.

The Arizona Ledger quoted him as claiming his cases could be worth $2 billion. It ran a photo of Clay outside the courtroom, microphones in his face, with the caption "King of Torts in Town." A brief summary of Clay's visit followed, along with a few paragraphs about the big trial itself. The reporter did not directly call him a greedy, opportunistic trial lawyer, but the implication was that he was a vulture, circling, hungry, waiting to attack Goffman's carcass.

The courtroom was packed with potential jurors and spectators. Nine A.M. came and went with no sign of the lawyers or the Judge. They were in chambers, no doubt still arguing pretrial issues. Bailiffs and clerks busied themselves around the bench. A young man in a suit emerged from the back, passed through the bar, and headed down the center aisle. He abruptly stopped, looked directly at Clay, then leaned down and whispered, "Are you Mr. Carter?"

Taken aback, Clay nodded.

"The Judge would like to see you."

The newspaper was in the middle of the Judge's desk. Dale Mooneyham was in one corner of the large office. Roger Redding was leaning on a table by the window. The Judge was rocking in his swivel chair. None of the three were happy. Very awkward introductions were made. Mooneyham refused to step forward and shake Clay's hand, preferring instead to offer a slight nod and a look that conveyed hatred.

"Are you aware of the gag order I've put in place, Mr. Carter?" asked the Judge.

"No sir."

"Well, there is one."

"I'm not one of the attorneys in this case," Clay said.

"We work hard at having fair trials in Arizona, Mr. Carter. Both sides want a jury as uninformed and as impartial as possible. Now, thanks to you, the potential jurors know that there are at least twenty-six thousand similar cases out there."

Clay was not about to appear weak or apologetic, not with Roger Redding watching every move.

"Maybe it was unavoidable," Clay said. He would never try a case in front of this judge. No sense being intimidated.

"Why don't you just leave the state of Arizona?" Mooneyham boomed from the corner.

"I really don't have to," Clay shot back.

"You want me to lose?"

And with that, Clay had heard enough. He wasn't sure how his presence might harm Mooneyham's case, but why run the risk? "Very well, Your Honor, I guess I'll be seeing you." "An excellent idea," the Judge said. Clay looked at Roger Redding and said, "See you in D.C." Roger smiled politely, but slowly shook his head no. Oscar agreed to remain in Flagstaff and monitor the trial. Clay hopped on the Gulfstream for a very somber ride home. Banished from Arizona.