By the time I got downtown, parked in the underground garage and took the elevator up to the 24th floor, I could tell that I was running about ten minutes late. I checked with the receptionist for my phone messages. There were three, including one regarding a settlement proposal on a proprietary trade method infringement case that had been going on entirely too long. I went to my office and let myself in. I opened my briefcase and pulled the Beinshcroth file and the receipts for the filings I had done the previous day out and hurriedly filed them into their appropriate places in the cabinet and cupboard next to and above my credenza. I retrieved the file on the Glidden case, the matter I was scheduled to be in court for in another 45 minutes. I flipped through it to make sure that all was in order. I then pulled the opposition’s two most recent filings, an order to show cause and a memorandum of points and authorities, and quickly read them over, mentally noting the counterpoints I would need make when I got to court. I closed up the folder and dropped it into my briefcase.
Leaving my office door unlocked, I took my briefcase and went out into the hallway, stopping briefly to jawbone with one of the other attorneys. I found one of the firm’s paralegals and told her about the settlement offer on the proprietary methods infringement case. I instructed her to go into my office and find the case file and pull from it the draft settlement document I had prepared months before, to find the computer disk in the same file, to take the disk and install it into her computer and summon from it the settlement manuscript and to incorporate into it the language on the points relayed to me by the receptionist’s note on yesterday’s phone call. I told her to use her judgment as to where the changes needed to be inserted and that I would be back to look everything over after I got back from court, hopefully before lunch.
I took the elevator down to the garage, found my car and drove out of the underground structure and through the streets, packed at that hour, toward the courthouse. I parked in the $5 all day lot and walked the three blocks to the courthouse’s front entrance and then made my way to the elevator. At the third floor I got out and went down to Judge Safford’s courtroom. Less than ten minutes later the judge unceremoniously came into the courtroom from the door leading into his chambers, and stepped up to the bench. The bailiff commanded everyone present to their feet, Safford seated himself and the bailiff announced his presence and commanded us to sit back down.
Safford, who had been a naval officer, ran his courtroom like a ship. A scale model of the destroyer he had commanded was displayed on a table in the far corner of the room next to the court clerk’s work station. On the back wall not too far from the table with the model ship was a framed painting depicting a War of 1812 naval clash between two American and British sail-bearing frigates, their cannons ablaze.
Inside fifteen minutes Safford had disposed of the first four matters on that day’s calendar. Glidden vs. Stockard was the fifth.
As it turned out, the hearing could not have gone better for me. I hardly said a word. Instead of having to launch into the short and concise argument I had intended to counter the petitioned-for order to show cause and accompanying protective order, I needed only to sit back and let Safford question opposing council, an inexperienced fellow out of Santa Monica by the name of Rydell, a green kid who could not have had his bar card for more than six months. It started as a questioning but evolved into a full-fledged dressing down.
“I’ve read all the materials filed to this point,” Safford began. “It is your contention, Mr. Rydell, that the requested documents and materials should be held confidential into either perpetuity or until the plaintiff makes a full showing of cause, as you term it in your filing.”
It was more of a statement than a question. Nevertheless, Rydell responded, “That is correct, your Honor.”
“And so that I am clear, Mr. Rydell, you would have the plaintiff make that demonstration how?”
“In the course of litigating this matter.” Rydell said.
“In the course of litigating this matter,” Safford said, and then repeated, “In the course of litigating this matter.” He brought his hands up off the bench so they were visible and then he folded them together, the fingers interlocking, and settled them down on the bench again. He seemed to glare at Rydell.
“And, Mr. Rydell, how is that to take place?”
“Your Honor?” Rydell was perplexed.
“How are we to litigate this matter?” Safford helped him.
“Upon the facts.”
“And how are we to establish those facts?”
“Through discover?” Rydell answered it like he was not actually sure.
“So how are we to achieve discovery if not through the production of documents and materials related to the matter being litigated?” Safford’s voice betrayed anger.
Rydell was in trouble. I almost wanted to help him. I did not. Instead I listened to him dig himself in even deeper.
“The better question, your Honor, would be why should the plaintiff be granted access to materials and effects of the defendant that are clearly and entirely confidential.”
Telling Safford that there were better questions than the ones he had formulated was an unbelievable faux-pas.
“Let me see if I have this straight,” Safford fairly thundered. “You are asserting a privilege over materials that go right to the heart of this case. You would deny the plaintiff the evidentiary gravamen needed to establish that case and are prepared to argue, are arguing, that since the case to establish the causes of action cannot be made without the materials you are withholding that the case is without merit. Am I accurately summarizing this?”
“The fact, your Honor, that the privileged materials are crucial to plaintiff’s case is incidental.”
“In other words, Mr. Rydell, any evidence that is inconvenient to or inconsistent with your client’s contentions in this matter can be deemed confidential and under that categorization be withheld from the court?”
“If by their nature they are confidential, yes.” Rydell asserted.
“Mr. Rydell, where did you go to law school?”
“Southwestern, your Honor.”
“While you were at that esteemed institution, did you have occasion to take a class in the rules of evidence?”
“Well,’’ Safford began, but in mid-sentence seemed to rethink what he was about to say. “It’s not my place to be conducting refresher courses in the law. What I will say is this: This court is in the business of trying facts, facts as are in the public domain, facts as are presented in discovery, facts as are as stipulated to. You insult this court, Mr. Rydell, you insult the legal process, you’ve come damnably close to insulting my intelligence, when you on one hand tell me you are prepared to litigate this matter and on the other tell me you want the court’s sanction in withholding from me and opposing counsel the very facts upon which this matter is based. The case is already existent. It is clearly apparent. The case is manifest. The case is the case. Ipso facto. The defendant will provide all sought after materials, without exception. Forthwith. Is that clear?”
“Yes, your Honor.”
Then, turning his head toward the court clerk, Safford said, “The motion is denied.”
At that point, Safford looked in my direction, and for the first time acknowledged my presence.
“Yes, your Honor,” I said.
“The defendant’s provision of the requested materials notwithstanding, it is the court’s intention that all means of settling this matter be exhausted before we move on to trial. Assuming all the material you have requested comes into your possession within the next two weeks, what would be the earliest date by which you will be prepared to begin settlement discussions with opposing counsel?”
“I would need to fully digest the materials, but if there are no surprises or bombshells or major discoveries, I don’t anticipate more than reading time, a week or so, before I would be ready to present our requirements for satisfaction. Actually, your Honor, I would be prepared today to specify terms of settlement, if that should please the court. I have not done so to date because I did not believe the defendant is at all inclined to enter into those discussions.”
“Well, I am not going to prematurely shoehorn either you or Mr. Rydell into a shotgun wedding,” Safford said. He turned to look at a calendar on the wall. “How about the twenty-third of next month? If that is amenable to both parties, that is the date the court will set for a mandatory settlement conference on this matter.”
“Let me check, your Honor,” I said. I fumbled into my briefcase to find my appointment minder. I quickly leafed through the small black binder and found the 23rd. There was nothing etched in for that date. “I’m entirely open on the 23rd,” I said.
“And you, Mr. Rydell?” Safford asked.
“That’s fine,” said Rydell.
“Okay,” Safford said, turning again toward the court clerk, “November 23rd at 9:30 p.m., mandatory settlement conference on Glidden vs. Stockard.” He returned his attention to Rydell. “And Mr. Rydell, I expect you to come forward at that time prepared to negotiate in good faith.”
“Yes, your Honor.”
Safford then called the title of the next case. I latched up my briefcase, slid my chair back on the carpeting and stood up. I turned and walked out of the litigant’s perimeter, up the gallery aisle and out of the courtroom.
Despite my exhaustion, there was a jaunt to my step as I walked down the third floor hallway. I heard some steps racing up behind my own and then heard Rydell’s voice, “Forsyth! Forsyth!” I stopped and turned. He looked agitated. Coming up behind him was Alvin Stockard, his client. I had not seen Stockard in the gallery when I was in court.
“Hey don’t let Old Man Safford get to you,” I started to say, and was about to follow it up with “He treats everyone with a baby bar number that way,” but I did not get the chance to say that part. I am not sure that Rydell even heard what I did say. Up close I could see that he was more than agitated. Apoplectic would better describe it.
“Forsyth, Goddammit! Don’t think that I don’t know exactly what was going on in there,” he sputtered.
“Yeah, you got your motion denied,” I said.
“Yeah, I sure did,” Rydell said. “And I know why, too.” There was foam at the left side of his mouth and miniscule drops of saliva flew out of the right side as his voice rose.
“You do,” I said. By that point Stockard was standing next to us.
“I sure do,” Rydell said.
“Right,” I said. “The motion didn’t meet the legal test.”
“It sure in the hell did,” Rydell said.
“Then why didn’t his Honor grant it?
“You damn well know why.”
“And what do I know?”
“Safford’s on the Exeter, Delbert, Sampson and Shuey payroll!”
I stood there dumbfounded for a couple of seconds, eyeball to eyeball with Rydell. Then I broke into a laugh, a genuine one, as the absurdity of the statement engulfed me.
“You’re not fooling anybody,” Rydell nearly yelled.
“Write out a declaration to that effect and file it with the court,” I said. “You can score even more points with Safford.”
“Really funny, Forsyth.”
“You’ve got a preemptory challenge,” I said. “Use it. Bring in another judge. Get a change of venue if you feel that way,” I said, starting to feel a little angry myself. “Judge shop. I’ll litigate this case in front of any judge in this state.”
“No,” Rydell said. “No. Were not going to judge shop. We’re not going to play your law firm’s game. We’re going to the Commission on Judicial Performance on Safford and to the state Bar on you.”
At this point Rydell’s voice had risen to a high enough pitch and level that a few of the people in the hallway nearby were watching and listening to us. I could not figure out whether Rydell was serious or if he was going through these histrionics just to impress Stockard. I did not like the idea of having anyone that happened to be within earshot while we were standing in the courthouse hearing that I was about to be summoned before the state Bar, though. I resisted the prompting to give Rydell, who probably was not older than 25, an avuncular lecture on how lawyers should comport themselves, the need for attorneys to refrain from taking personally every setback that they encounter in court and how he was actually doing a disservice to his client by dwelling on spurious issues that had no conceivable merit and were diverting his attention from the actual lawyering that needed to be done to defend the case.
Instead, I simply said, “Why don’t you go ahead and do that,” turned, and continued down to the elevator, which opened to let several people out as I arrived in front of it. I got in. A man and a woman, who both appeared to be lawyers but whom I did not recognize were already inside. We went up to the fourth floor, where they departed. I then went down to the first floor and from there headed out of the courthouse.
By the time I got back to the office, it was 10:30. I exchanged greetings with the receptionist and when she indicated there were no messages left for me in my absence, I went down to my office. I flipped through my Rolodex to the Bs, got the Beinschroths’ phone number and then punched it in on the phone. After three or four rings Mrs. Beinschroth came on the line. Mr. Beinschroth was not there, she told me. I then gave her a brief overview of what had occurred in court on the previous day. Exactly how Judge Parker was going to rule was not certain, I told her, but I explained that I had preserved her and her husband’s right to appeal if a ruling came down mandating them to sell the property. If there was such a mandate, I said, I would recommend that if they did not appeal the ruling that they be extremely hard-nosed in bargaining over the selling price. I assured her, though, that under California law and the technical requirements of the application of adverse possession, they held the upper hand. If Judge Parker was to rule against them, I said, he was going to have to tweak the law. She told me she would relay what I had told her to her husband. We said goodbye and I hung up.
Next I phoned Herb Glidden’s office to let him know what had occurred before Judge Safford earlier that morning. It took a while for his secretary to locate him. I gave him the news that Stockard’s request for the protective order did not fly and that the judge wanted us to explore a settlement solution prior to going to trial. I did not mention my encounter with Rydell following the court appearance.
“Alvin’s not going to go for that,” Glidden said in regard to the prospect of achieving an amicable settlement, and then used a couple of indelicate terms to characterize Stockard further. “He forced me into suing him. Believe me, he is going to make this whole thing as difficult as he can. Money is no object with the guy. And winning in the end won’t be important to him either. He’ll lose half a million to cost me a hundred thousand.”
I responded that the best strategy, then, was for us to keep our cool and let Rydell and Stockard work themselves up to a frenzy while we just ushered the matter through the court step by step. Glidden agreed and told me to stay the course and let him know if anything important came up. We hung up. For a half minute or so I dwelled on what he had said about Alvin Stockard being willing to lose money on the case if that merely succeeded in exasperating Glidden. If money was not a consideration for Stockard, I wondered why he had retained an unsophisticated, wet-behind-the-ears, third-rate shyster out of Santa Monica to represent him. Surely he could have afforded a lawyer from a respected firm downtown, or on Century City Boulevard or The Avenue of the Stars. I considered then that maybe he had tried to interest a competent attorney or two –or maybe a dozen – in defending the case we had brought and they had shot straight with him. Rydell was probably the first counsel he could find who was willing to tell him what he wanted to hear.
I went out into the hall and took the railed staircase that ran up to the firm’s offices on the 25th floor. I went over to the set of cubicles that served as the typing stations for the paralegals and secretaries. I found Kelly, the paralegal to whom I had entrusted the settlement draft for the proprietary methods infringement case, seated before her computer monitor. I could see that she was working on the settlement agreement draft. She looked to the side and acknowledged my presence. “I’m just polishing the language,” she said. I found a chair and pulled it over to seat myself so I was not crowding her but could still see the monitor. She had done a decent job, at least on the page that was visible. I caught one item: I instructed her to change the phrase “in perpetuity” to “for the duration of any applicable patent(s), or until such time as the subject technology is deemed by due and competent authority to have moved into the public domain.” She made the change.
When she had run all the way through the manuscript and was satisfied with it, I told her I would review and proofread it. We changed places so I could sit directly in front of the monitor and keyboard. The manuscript as she drafted it ran to just over four pages. I made only one further change, a minor one, breaking up one of the paragraphs to set stipulations relating to future licensing revenues apart from past residuals. After I read it through once and incorporated that change, I reread it.
“Not bad,” I said. “Okay, save it and print four copies. Keep one for your file and bring the other three up to my office.”
“Will do, Mr. Forsyth,” Kelly said.
“Steve,” I corrected her. “Mr. Forsyth was my father.”
“And bring my disk back up with you.”
“Yes, Mr. For… Steve.”
I stood up and went out from the cubicles to the stairs and then down to the 24th floor and to my office.
I opened my briefcase and pulled the folder with the Glidden v. Stockard materials in it out and set it into its place in the file cabinet next to my desk. I picked out from my briefcase the little black leather bound appointment minder and found that week. I looked to see what was on tap for me the next day, Thursday. No scheduled court appearances. That came as a sudden relief. I looked at Friday. There were two hearings, one downtown at 9:30 and one out in Santa Monica at 1:30. I closed the book and put it into its place in the briefcase. For a couple of hours that day and most of the next I would have time to take care of the problem hanging over me. It was just that at that moment, I did not know exactly what I was going to do. My first, impromptu, flying-by-the-seat-of-my-pants plan had fallen apart when the Forty-niner interrupted me early on Tuesday morning. It remained an extremely delicate situation, and with all of my focus I could not yet come up with a game plan. I realized, still the same, that it would be better to take no immediate action rather than do something risky, or to put it more accurately, too risky. The present situation was already risky. I needed to act, with dispatch and efficiency and above all with stealth. Such stealth as would not in any way arouse suspicion. But I had not the mental acuity at that moment to envision exactly what. I felt suddenly exhausted. I had slept what? Six or seven hours in the last two-and-a-half days. All of that morning really I had been flying on autopilot. Without realizing it, that free associative reverie that for me proceeds dreams and sleep was on me. I was nodding off right there in my office. I am not sure exactly how long I was sitting there dozing when Kelly came in.
“Here you go,” she said, jostling me out of my incipient slumber. She set the three copies down on the desk. Then she handed me the computer disk.
“Excellent,” I said, trying to make it seem like I was fully alert. She went back out.
I grabbed a felt marker out of my desk drawer and, after affixing a label to the disk, labeled it as the Tillotson/Stewart settlement draft. I put it in the bin containing my collection of disks. I picked up the topmost printed copy of the draft settlement and read over it one more time. I then went through my Rolodex, found the phone number for Tillotson Industries, and made the call. When the company’s PBX operator answered I asked for Robert Tillotson. She patched me through to his executive secretary. I asked for Mr. Tillotson. She asked who I was. I told her. She said he was about to catch a flight out to Denver and was pressed for time. I told her what my call was about and she said she’d see if he could take the call. About fifteen seconds later, Bob came on the line. I told him about Stewart’s willingness to settle. He gruffly remarked that it was about time. I told him I had the settlement draft ready to go, that I would be forwarding him a copy to go over and that if he found it acceptable, he could sign the version I mailed and get it back to me. He said he would be looking forward to it and we hung up. I then called the office of Michael Brandon, the attorney representing Bruce Stewart, who had made multi-millions in the last ten years by essentially stealing a technique Tillotson had developed twenty-five years earlier for inserting self backing and securing rivets into inaccessible double-thick sheet metal enclosures. Brandon was not in, but I told his secretary I had the settlement document drafted and I would be forwarding them copies by facsimile and post.
After I hung up, I fired up my computer and quickly typed short cover letters to Brandon and Tillotson to accompany the settlement documents. I took them down to the copy room and faxed them to their intended recipients and then put them into manila envelopes, addressed them and set them into the outgoing mail basket.
I went back to my office and pulled out from my file cabinet the files on the two cases I was scheduled to appear on on Friday. I checked everything over to make sure all was in order. It appeared so. I read the most recent opposition pleadings in each matter and, somewhat languidly given my recent sleep deprivation, mentally rehearsed the verbal responses I might be called upon in court to give when the time came. I put the file folders into my briefcase and latched it up. I took it with me, locked up my office and headed out toward the elevator. Before I took the elevator down to the basement, I told the receptionist I was leaving for the day.