Page 68 of The Street Lawyer

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A court reporter began recording every word.

"I am informed by my clerk that all parties and lawyers are now present," he said, glancing at me as if I were just another rapist. "The purpose of this meeting is to attempt to settle this case. After numerous conversations yesterday with the principal attorneys, it became apparent to me that a conference such as this, held at this time, might be beneficial. I've never had a settlement conference so soon after the filing of a complaint, but since all parties agreed, it is time well spent The first issue is that of confidentiality. Nothing we say today can be repeated to any, member of the press, under any circumstances. Is that understood?" He looked at Mordecai and then at me. All necks from the defense table twisted for similar scrutiny. I wanted to stand and remind them that they had initiated the practice of leaking. We'd certainly landed the heaviest blows, but they had thrown the first punch.

The clerk then handed each of us a two-paragraph nondisclosure agreement, customized with our names plugged in. I signed it and gave it back to her.

A lawyer under pressure cannot read two paragraphs and make a quick decision. "Is there a problem?" DeOrio asked of the Drake & Sweeney crowd. They were looking for loopholes. It was the way we were trained.

They signed off and the agreements were gathered by the clerk.

"We'll work from the agenda," the Judge said. "Item one is a summary of the facts and theories of liability. Mr. Green, you filed the lawsuit, you may proceed. You have five minutes."

Mordecai stood without notes, hands stuck deep in pockets, completely at ease. In two minutes, he stated our case clearly, then sat down. DeOrio appreciated brevity.

Arthur spoke for the defendants. He conceded the factual basis for the case, but took issue on the question of liability. He laid much of the blame on the "freak" snowstorm that covered the city and made life difficult for everyone. He also questioned the actions of Lontae Burton. "There were places for her to go," Arthur said. "There were emergency shelters open. The night before she had stayed in the basement of a church, along with many other people. Why did she leave? I don't know, but no one forced her, at least no one we've been able to find so far. Her grandmother has an apartment in Northeast. Shouldn't some of the responsibility rest with the mother? Shouldn't she have done more to protect her little family?"

It would be Arthur's only chance to cast blame upon a dead mother. In a year or so, my jury box would be filled with people who looked different from me, and neither Arthur nor any lawyer in his right mind would imply that Lontae Burton was even partially to blame for killing her own children.

"Why was she in the street to begin with?" DeOrio asked sharply, and I almost smiled.

Arthur was unfazed. "For purposes of this meeting, Your Honor, we are willing to concede that the eviction was wrongful."

"Thank you."

"You're welcome. Our point is that some of the responsibility should rest with the mother."

"How much?"

"At least fifty percent."

"That's too high."

"We think not, Your Honor. We may have put her in the street, but she was there for more than a week before the tragedy."

"Mr. Green?"

Mordecai stood, shaking his head as if Arthur were a first-year law student grappling with elementary theories. "These are not people with immediate access to housing, Mr. Jacobs. That's why they're called homeless. You admit you put them in the street, and that's where they died. I would love to discuss it with a jury."

Arthur's shoulders slumped. Rafter, Malamud, and Barry listened to every word, their faces stricken with the notion of Mordecai Green loose in a courtroom with a jury of his peers.

"Liability is clear, Mr. Jacobs," DeOrio said. "You can argue the mother's negligence to the jury if you want, though I wouldn't advise it." Mordecai and Arthur sat down.

If at trial we proved the defendants liable, the jury would then consider the issue of damages. It was next on the agenda. Rafter went through the motions of submitting the same report on current trends in jury awards. He talked about how much dead children were worth under our tort system. But he quickly became tedious when discussing Lontae's employment history and the estimated loss of her future earnings. tie arrived at the same amount, $770,000, that they had offered the day before, and presented that for the record.

"That's not your final offer, is it, Mr. Rafter?" DeOrio asked. His tone was challenging; he certainly hoped that was not their final offer.

"No sir," Rafter said.

"Mr. Green."

Mordecai stood again. "We reject their offer, Your Honor. The trends mean nothing to me. The only trend I care about is how much I can convince a jury to award, and, with all due respect to Mr. Rafter, it'll be a helluva lot more than what they're offering." No one in the courtroom doubted him.

He disputed their view that a dead child was worth only fifty thousand dollars. He implied rather strongly that such a low estimation was the result of a prejudice against homeless street children who happened to be black. Gantry was the only one at the defense table not squirming. "You have a son at St. Alban's, Mr. Rafter. Would you take fifty thousand for him?"

Rafter's nose was three inches away from his legal pad.

"I can convince a jury in this courtroom that these little children were worth at least a million dollars each, same as any child in the prep schools of Virginia and Maryland."

It was a nasty shot, one they took in the groin. There was no doubt where their kids went to school.

Rafter's summary made no provision for the pain and suffering of the victims. The rationale was unspoken, but nonetheless obvious. They had died peacefully, breathing odorless gas until they floated away. There were no burns, breaks, blood.

Rafter paid dearly for his omission. Mordecai launched into a detailed account of the last hours of Lontae and her children; the search for food and warmth, the snow and bitter cold, the fear of freezing to death, the desperate efforts to stay together, the horror of being stuck in a snowstorm, in a rattletrap car, motor running, watching the fuel gauge.

It was a spellbinding performance, given off the cuff with the skill of a gifted storyteller. As the lone juror, I would have handed him a blank check.

"Don't tell me about pain and suffering," he snarled at Drake & Sweeney. "You don't know the meaning of it."

He talked about Lontae as if he'd known her for years. A kid born without a chance, who made all the predictable mistakes. But, more important, a mother who loved her children and was trying desperately to climb out of poverty. She had confronted her past and her addictions, and was fighting for sobriety when the defendants kicked her back into the streets.

His voice ebbed and flowed, rising with indignation, falling with shame and guilt. Not a syllable was missed, no wasted words. He was giving them an extraordinary dose of what the jury would hear.

Arthur had control of the checkbook, and it must've been burning a hole in his pocket.

Mordecai saved his best for last. He lectured on the purpose of punitive damages--to punish wrongdoers, to make examples out of them so they would sin no more. He hammered at the evils committed by the defendants, rich people with no regard for those less fortunate. "They're just a bunch of squatters," his voice boomed. "Let's throw them out!"

Greed had made them ignore the law. A proper eviction would have taken at least thirty more days. It would have killed the deal with the Postal Service. Thirty days and the heavy snows would've been gone; the streets would've been a little safer.

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