The King of Torts

"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?"