Chapter 43: Participation Trophies?

April 17, 1994, Chicago, Illinois

“You missed an interesting Rap Session today!” I said to Samantha as we sat in my study just before dinner.

“They’ve been pretty boring. That’s why I’ve been flying on Sunday afternoons.”

“I know. I talked about it with Jess, Kara, and Elyse at lunch. May 8th, which is when the next one is, will be in the sauna. Naked.”

Samantha laughed, “I KNEW you’d get back to that somehow!”

“It came about because of the attitude we’re seeing from the Freshmen and Sophomores, and a conversation I had with Elizabeth right before the session. We’re betting that most of the Freshmen and Sophomores don’t show up.”

“Hmm. I think you might be right. The attitudes towards sex I hear at school are NOTHING like what I heard from the girls I knew.”

“That wasn’t exactly a healthy environment, either.”

“True, but remember, despite what the government claimed in their stupid press release, it was completely consensual. The only reason they can claim it wasn’t is because they passed a law saying a sixteen-year-old can’t consent. And we both know that’s BS.”

“Anyway, I also decided to have an ‘End of the Semester’ party and invitations to the college crowd are contingent on being at the sauna Rap Session.”

“Hmm,” Samantha smirked. “Ellie would LOVE to join in, I bet! So would the others, but they won’t be home by then.”

“Ellie is welcome, but this is NOT about sex. Remember that.”

Samantha nodded, “I know. And I’m not sure she’d go for being naked in front of twenty people. But you never know!”

“And you?” I asked.

“I would, but Brian wouldn’t approve. I’ll pass. I hope you’ll let ME come to the party, though.”

“Yes, of course. You’re part of the family. What’s Brian’s issue?”

“Just uncomfortable with the whole thing. I need to have him over and get him used to the idea.”

“Just put up the ‘Privacy Please’ sign and ease him into it.”

“That’s what I like best ... easing it in...”

“Yeah; yeah! How’s work?”

“Just the usual stuff. Stephanie is working out wonderfully. I think I’m going to regret making the deal that requires me to give her up in three years!”

“That’s up to her, but I don’t think you’ll have much luck convincing her.”

“No, I won’t. How are things with you?”

“Crazy busy, like always. It’s pretty much non-stop. A few people have been pushing me to spend some time by myself. You know, ‘me time’, but I like being busy.”

“You’ll have a month in Japan with no distractions.”

“That’s the theory. We’ll see how it goes.”

We finished our chat then joined everyone else for the family dinner. Later than night, my wives and I were cuddling in bed after making love.

“So, what are you going to do?” Kara asked, running her hand over my chest.

“Behave, of course. To use their word, I’ve ‘retired’ from that kind of thing.”

“I don’t know, Kara,” Jessica teased. “Three twenty-one-year-old girls might kill him!”

“The two of us are WAY better than ANY three little girls you can point to!” Kara huffed.

“Are you sure about that,” I asked.

“Are YOU sure you want to ask that question, Snuggle Bear?” she threatened.

“Hmm,” I chuckled. “How about a competition? You know, with judges?”

“Bring it on!” Kara laughed. “I’m not worried! Are you, Jess?”

“Nope! You and I are JUST what the doctor ordered. And THIS doctor prescribes another good fucking before we fall asleep.”

“Never let it be said I didn’t take my prescriptions seriously!” I chuckled, pulling her on top of me.

“Doctor’s orders!” she sighed as she slowly impaled herself.

April 19, 1994, Pittsburgh, Pennsylvania

“Thanks for the invitation!” I said to John as we walked into the Igloo for the Penguins game against the Washington Capitals.

“They better win tonight after losing on Sunday,” he replied. “Why didn’t you come into the office today?”

“This is a private trip. I’m leaving first thing in the AM. I really don’t have time to be away right now, but I’m not going to miss a chance at coming to a playoff game!”

“Will you come back for the next round?”

“After we smoke the Capitals? You bet! I really appreciate the invitation.”

The game was a penalty-fest, with seven penalties in the first period alone. Mario Lemieux scored at 6:19 for Pittsburgh on the first one, a double-minor for High Sticking awarded to Capitals winger Dmitri Khristich. The Penguins added a second goal about three minutes later when Rick Tocchet got the puck past Byron Dafoe.

“2-0 looks good to me!” John said.

“Assuming they can hold it! Two-goal leads are the worst!”

Washington scored on one of their three powerplays during the second period, but neither team scored despite six penalties in the third period. There was also a seventh penalty, a game misconduct, awarded to Craig Berube of the Capitals for something done after the final horn sounded. Happy with a 2-1 win, John and I made our way out of the stadium.

“Want to come back if they play here again in this series?” he asked.

“Want to? Yes. But I really don’t have the time. Besides, I’m confident they’ll take down the Caps! I’ll see you in a week or so when they take on the Rangers or Islanders.”

“It’s got to be the Rangers,” John said. “I’m thinking sweep.”

“Then I’ll see you for a Penguins-Rangers game in a week or so!”

We shook hands and he headed home while I headed for the hotel, where I knew I’d find Tara waiting for me. We had a drink, then cuddled in bed and slept snuggled close to each other. In the morning, we had breakfast, I kissed her goodbye, and headed for the airport.

April 21, 1994, Chicago, Illinois

“You’re sure this is going to work?” I asked Jamie as we walked into the courthouse.

“I talked with Thad Baker, Ben Jackson, Ben van Hoek, and lawyers at twelve other firms. At a minimum, it’ll block the discovery motion until there’s a hearing.”

“And then?”

“We execute part two of our strategy. He’s not going to expect any of this.”

We entered the building, went through a brief security check, then took the elevator to the fourth floor. We found the courtroom empty except for the clerk and bailiff so we simply took our places at the ‘defense’ table to wait until everyone assembled. About ten minutes later, Brandon Littleton arrived. He stopped and surveyed the courtroom, unsure what to make of it, then walked to the plaintiff’s table and sat down. He was joined by his partner, and another man I didn’t recognize. I looked over my shoulder and nodded to two attorneys who were sitting in the ‘spectator’ section of the courtroom.

“All rise!” the bailiff called and we stood while the judge came to the bench and was announced.

“Be seated,” Judge Kimball said. “Mr. Littleton?”

“Your honor, I have a motion to compel discovery based on a clear pattern of over-billing on the part of NIKA Consulting. We have uncovered, even in the limited discovery allowed by Your Honor, four more cases of over-billing, including one to a law firm.”

He handed up his documents to the judge who looked through them.

“Mr. Ferguson?”

“Your honor, I have affidavits from the four firms in question stating that the bills were issued in error, and that NIKA corrected them as soon as they were made aware.”

He handed them up and as we expected, Littleton spoke right away.

“Your Honor, if I may. These clients discovered the over-billing and contested it. NIKA claimed error and corrected the bills. What we don’t know is how many times such ‘errors’,” I could hear the quotes in his voice, “went undiscovered and the clients paid. The only way to get to the bottom of this is to gain access to their customer list, and all timesheets and contracts, and then contact the clients to audit them.”

“Your honor,” Jamie said. “I have here a motion to intervene and a proposed protective order from Ford, Jackson, and Finch of Los Angeles. Mr. Ben Jackson, is here representing his firm. In addition, I have twelve other motions to intervene and proposed protective orders from NIKA’s customers.”

“That’s highly irregular, Mr. Ferguson.”

“As Your Honor indicated last time, this affects the records of other law firms. We request a hearing on these motions and proposed orders before you grant discovery.”

“Mr. Littleton?”

“This is an ambush, Your Honor! I was unaware of any of these motions or orders.”

“Your Honor,” Jamie said smoothly. “These are neither NIKA’s motions nor their proposed orders. I’m submitting them on behalf of the out-of-state clients who are not licensed to practice here. I was approached this morning by Mr. Jackson. If Your Honor will allow him to step forward, he can take over at this point.”

“Gentlemen,” the judge said, “this is rapidly spinning out of control. I understood it to be a simple matter of a contract dispute, but it’s quickly turned into something completely different. Mr. Littleton, if you wish to proceed on your specific contract and billing dispute, I’ll order the necessary discovery for that. If, on the other hand, you wish to expand this case and involve at least twelve other firms, I will have to schedule a hearing where all parties may state their cases.”

That was what we had hoped for, and now Jamie was going to drop the hammer.

“Your Honor,” Jamie said before Brandon Littleton could speak, “It’s our position that any claims of fraud against other firms are for them to address, and any claims of federal mail and wire fraud are for the US Attorney to investigate. I submit that the court should hand these documents to the US Attorney for further investigation, alleviating the burden on this court, and allowing the simple case before us to proceed.”

“Let me get this straight, Counselor, you are asking me to refer your client to the US Attorney’s office for investigation?”

“Yes, Your Honor. For the sake of judicial economy, we believe that is what this court should do. We’re prepared to immediately move to depositions for the contract and billing dispute. We believe that case will take no more than a few hours of this court’s time to resolve in a speedy bench trial. In addition, Your Honor, for the sake of eliminating even those hours of the Court’s time, and to reduce the cost to both sides, we’re offering a settlement of $5000 in liquidated damages and attorney’s fees with no admission of guilt and a non-disclosure agreement from Lomax & Milton.”

A bench trial would take away Littleton’s main tactic - grandstanding in front of a jury. Jamie wasn’t sure we’d get it, as Littleton would do everything in his power to ensure a jury trial, but the other part of the tactic was playing to the judge’s desire for ‘judicial economy’ in handling his heavy case load.

“What’s the amount of the billing dispute?” the judge asked, flipping through the paperwork before him.

“$412.50,” Jamie replied helpfully.

“Mr. Littleton?”

“Your honor, if we can prove fraud, and we believe we can, we’re entitled to significant damages.”

“Yes, if you were to prevail, that would be true. I’m going to allow Mr. Jackson to come forward. I have a few questions for him. Mr. Jackson?”

Ben got up and walked forward, followed closely by Thad Baker and Ben van Hoek.

“Your Honor, Ben Jackson; Ford, Jackson, and Finch in Los Angeles. I’m admitted to the California Bar and the 9th Circuit. With me are Thad Baker, of Allen & Baker here in Chicago, and Ben van Hoek, of Volstead and Braun in Cincinnati. Mr. Baker is admitted in Illinois and the 7th Circuit and Mr. van Hoek in Ohio and the 6th Circuit.”

“Mr. Jackson, tell me about these motions.”

“Your Honor, a bit of background is necessary. I am President of the NIKA Consulting Users Group and our firm has been a customer for eight years. Mr. Adams brought this suit to my attention, and I spoke with several other firms, all of whom agreed to intervene immediately. I also expect another forty motions to intervene and proposed orders of protection if you grant a hearing in this matter, which we request.

“Mr. Littleton is fishing without bait in an empty pond. We argue that there has been no fraud committed against us, or any of our firms, and any minor billing errors, which happen in every company, are immediately corrected, as the affidavits which Mr. Ferguson submitted clearly state. Given this, we feel it necessary to propose protective orders that do not allow Mr. Littleton access to any records about our firm, of any kind.”

“Your honor,” Brandon Littleton interrupted. “These are not privileged nor are they work product. They’re also held by a third party, making them no longer private. In a case brought by the government, a simple subpoena would be all that was necessary to obtain them.”

Jamie smiled, “Your Honor, Mr. Littleton is exactly right. And the US Attorney, if he finds cause, COULD obtain them by subpoena, and the court would likely allow it even over objections from our clients. But he is not the government.”

“Mr. Jackson, when would you expect these additional motions to intervene?”

“Within a week, Your Honor. And forty is a conservative number.”

The judge frowned. We’d just dumped a huge pile of manure on his bench, and the only way to clear it was to convince Brandon Littleton to yield. If he didn’t, there would be a face-off with most of my client base, which included some of the biggest law firms in the country. Rather than tying me up in court, Littleton was going to be tied up fighting against other law firms and with them asserting no fraud, he was going to lose. At this point, his best bet was the settlement offer, but I doubted he’d take it.

“And each of these firms will assert there was no billing fraud?”

“Yes, Your Honor.”

“Mr. Littleton, I don’t think I have any choice but to schedule a hearing on these motions by the other firms. I also don’t believe there is any cause for the Court to refer this to the US Attorney at this point, though, of course, you are free to take your complaint to him if you so desire. Given the complexity of this case, I’m going to need to set a long date. Are there any issues with June 27th?”

“Your Honor, my client will be in Japan and unable to be contacted from June 15th to July 20th,” Jamie said. “This trip has been planned for several years to allow him to study with an aging karate master. Postponing or shortening the trip would do irreparable harm to my client. We prefer a date after July 20th.”

“Your Honor, they’re delaying!” Brandon Littleton objected.

“Mr. Ferguson, if you can provide the court with copies of tickets purchased before this suit began, that will be sufficient to set the date for July 26th. If not, I’ll need some kind of proof that this isn’t a delaying tactic.”

“The tickets were purchased in January, Your Honor. I brought copies for just this contingency. I can also obtain an affidavit from the karate instructor who suggested and arranged the trip.”

He handed the copies of the tickets up and the judge reviewed them.

“July 26th,” the judge said. “See if you can work this out amongst yourselves gentlemen. I mean that.”

“Yes, Your Honor,” all of the attorneys said.

He banged his gavel, the bailiff called for everyone to rise, and the judge left the bench. As we’d agreed, I walked over to the plaintiff’s table.

“Mr. Zimmer, you’ve always been reasonable,” I said. “You can’t win. Advise your client to take the $5000 and call it a day. And, sir, please just leave us alone.”

“All I can do is talk with the client,” he said.

I smiled, “I know. Thank you.”

We shook hands and I turned away from a fuming Brandon Littleton to walk back to where my gaggle of attorneys was standing, while Littleton, Zimmer, and the other attorney filed out.

“Thanks, Ben,” I said to Ben Jackson, shaking his hand. “And Ben,” I said to Ben van Hoek, shaking his hand. “And Mr. Baker,” I said, shaking his hand.

“You can call me Thad at this point, I think. Well executed, Jamie. Ben, Ben, thanks for coming.”

“Are the letters set?” Ben Jackson asked.

“Yes,” I said. “They’re scheduled to be delivered by the courier service in about an hour. It was easier to set that up with me calling to cancel delivery if things didn’t go as we planned. Do you think they’ll accept?”

“You said Lomax was reasonable, and so is Zimmer,” Ben said. “That works in our favor. I’ll place a call to Zimmer just before the end of the day and talk with him. We need to get him to convince Littleton that he needs to find another hobby. I think I can do that. Shall we have a few drinks and then get that dinner you promised us? I can make the call from my cell phone.”

We headed to Ruth’s Chris for drinks and dinner, and about 4:30pm, Ben Jackson stepped away to make his phone calls.

“How is Becky doing?” I asked.

“Great! Both kids are healthy, and they just bought a bigger house in Springdale.”

“I’m glad to hear that. How are things at home?”

“Quiet. Just the way I like it! How are things at home? And how is your health?”

“Things at home are good. It’s never quiet, and that’s just the way I like it! No problems with my health. The syncope and mood swings are under control, and there are no lasting effects from the concussion and skull fracture. I can’t spar, but that doesn’t interfere with karate because I never was into competition.”