The sound waves from the bailiff’s, “All rise!” were still reverberating against the wood-paneled courtroom when Judge Gilly’s black robe disappeared behind the door to his chambers. The jury was safely tucked into the jury room where it could deliberately not talk about the case. Both the clerk and court reporter filed back into their offices. Judge Gilly was meticulous and deliberate. You could set your clock by the length of his afternoon recess. We had fifteen minutes: not fourteen and not sixteen.
The plaintiff sits back down with his attorney at their table and they start talking. Clients often give their attorney suggestions during trial. They would be better off just sitting silently while the attorney reviews trial notes.
I am defending this case for the Retail Insurance Co. of America, which sent a risk management supervisor to sit in on the trial. The RICA rep and I strategized over lunch and she wants me to settle this case for $15,000.00. The case is worth more than that and she knows it.
RIA insures Global Grocer, an upscale grocery outlet in a suburb off the interstate. The plaintiff, a forty-two year old surveyor, on an errand for his wife stopped at the store to pick up some salad dressing. Walking by the olive bar he slipped on some oily brine that had been spilled on the floor. Hitting his head on the floor, the plaintiff fractured one of his cervical vertebras and damaged an adjoining disc. He claims to have debilitating pain and restricted mobility. He hasn’t worked since the fall.
I walk over to the plaintiff’s table and wait to be acknowledged by his attorney. Finally recognized I say, “Can we talk?” The attorney gives me a long look as if asking whether there is an anything I have to say that is worth getting up out of the chair to hear. We walk out together.
Once out in the hall I start pressing, “Judge Gilly has already ruled that you can’t introduce evidence that the store upgraded to a safer bar. I don’t see how you can fault the grocery store.”
“That oily mess was on their floor. My client was entitled to a reasonable expectation of safety.”
Not letting up I continue, “The store has a regular inspection and maintenance schedule. What more can they do? You may have persuaded Judge Gilly not to dismiss this case before trial, but he came close to throwing this suit out. I think Gilly is going to dump this thing.”
The attorney, working on a contingency fee and getting nervous about leaving without a paycheck, has invested heavily in this case. “I’m more interested in what the jury is going to say than the judge.”
I was ready to get to the money. “The insurance carrier for Global Grocer would like to finish this case here and now and they are increasing their settlement offer to $12,500.00.”
I could see it wouldn’t be enough. The attorney was almost contemptuous. “This case is worth at least $75,000.00.”
“I can never get you $75,000.00. Gilly is going to tell the jury that Global had to have notice of the spill before there is a duty to clean it up. You have no evidence that Global knew there was a problem before your client fell. After the judge is through instructing the jury, they are going to end up dismissing the case and your client gets nothing.” I didn’t have to add that the client’s attorney would also get nothing. “Give your client something. Take the offer.”
The attorney gives a disappointed head shake and says, “I’ll convey your offer to my client, but I will be advising him not to accept.” We walk back into the courtroom. I sit down next to the RICA rep. She gives me a deadpan look I knew to be a request for a report. I shrug.
I glance at the clock. It’s 3:08 p.m. It dawns on me that I don’t know when the recess started. Plaintiff’s counsel hands me a piece of folded paper. Unfolding the paper I see a single figure: $35,000.00. I slide it over to the rep. She shakes her head, “No.” I take a sheet of scratch paper and write “$25.000.00?”
She crosses out my number and writes “22,500.00.” I take the plaintiff’s note, cross out his number and write in ours. I hand it back and say, “This offer expires as soon as Judge Gilly takes the bench.” The plaintiff and his attorney begin to boil in animated conversation.
The bailiff opens the door to chambers and calls out, “All Rise!” I take to my feet and glance over at plaintiff’s table trying to determine upon which side they will alight.