Impact (24 page)

“I can't get over seeing you after all these years, Keith,” he began.

“Me either.”

“I had it in my mind you were somewhere back East. But you've been up there in …”

“Altoona.”

“Right. Altoona, all the while. Well, we're going to have to make up for lost time.”

“Right.”

Hawthorne glanced to his left. “But not at the moment. Memories are fascinating only to their participants, so we'll take care of that another time.”

Tollison nodded, a trifle annoyed at the easy chivalry.

As Hawthorne recrossed his legs, Tollison glanced at Martha. She seemed focused elsewhere, staring out the corner window at the easy undulation of the bay, massaging the back of her neck, looking so thoughtful and at ease Tollison wondered if she and her boss were lovers.

“Well,” Hawthorne began. “I'm assuming you're here to consult me professionally. Provisionally, at least. I say this to establish the existence of the attorney-client privilege. After a few introductory remarks, I'll meet with each of you separately, ask some questions I have, and attempt to answer any you have yourselves, then let you meet with Mr. Tollison and discuss how you wish to proceed—whether you wish to engage me to represent you in the SurfAir matter. Satisfactory?”

They exchanged glances, then nodded.

“Very well. First, let me tell you generally what I do, how I do it, and what you can expect if you decide to hire me to file suit on your behalf.” Hawthorne leaned back in his chair and clasped his hands behind his neck. “What we are about in this office is torts. Blackstone defines a tort as a violation of duty imposed by law or otherwise upon all persons occupying the relation to each other that is involved in a given transaction. A bit circular to my mind, but then that's lawyers for you.”

The women gave him the smile he sought.

“Because torts is a subject of much debate of late, and because if you decide to file suit against SurfAir you may be in for a struggle of several years' duration, it would help you to know how the system works. I'm sure questions will arise as I proceed with my little lecture. To the extent they bear upon your personal circumstances, I hope you'll save them till we meet privately. Disclosures in the presence of persons not your lawyer is arguably a waiver of the attorney-client privilege. Okay so far?”

Three heads nodded, but only after reflection.

“Torts,” Hawthorne repeated. “Someone or something screws up, and someone else is hurt and sues the tortfeasor for damages. The problem is, since no one can agree on the philosophical basis for the concept, there's moaning and groaning on all sides.

“Some people say the primary purpose of tort law, other than spreading the risk of loss, is to promote desirable behavior, under the theory that if you collect money from someone because he's injured you, he'll make damn sure to put a stop to the conduct that made him pay. But if that's the purpose, why do we allow folks to insure themselves so it's not them but their carrier that has to pay the judgment? And how can we expect behaviorism to work when for most businesses liability costs are only a tiny fraction of sales? The answer may be that it can't. On the other hand, Pinto gas tanks don't blow up anymore and Firestone tires don't shred and DC-10 doors don't fall off, and all those problems have been the subject of extensive litigation. So to some degree, business behavior
is
affected by what happens in the courtroom.”

His students nodded; Hawthorne smiled approvingly.

“There are other problems with behaviorism. In California it's cheaper to kill someone than disable him, because if you're dead your heirs can't recover for the pain and suffering you endured prior to the time you died, and because defendants can't be made to pay punitive damages for wrongfully killing someone, only for wrongfully injuring them. And it's cheaper to kill a child than an adult, because our system is based on monetary loss and the heirs of an adult suffer more significant losses than do the heirs of a child, at least if the adult is a wage earner. So in a sense, the law encourages people to be totally abandoned rather than merely imprudent.

“There are also significant down-side consequences to using lawsuits as a tool of social control—doctors stop entering risky specialties and start practicing defensive medicine, which runs up costs; because they fear punishment, people conceal mistakes rather than report them; improvements aren't made because businesses fear remedial steps will be seen as admissions of fault; tortfeasors fight to the bitter end rather than paying fair settlements; victims exaggerate losses.
Everyone
has gripes with the behavior theory. Even me.” Hawthorne grinned. “Am I boring you to death?”

Like a trio of seals, they shook their heads in tandem.

“The other idea,” Hawthorne went on, “is that tort law exists to compensate victims of a wrong—to make them whole. The problem with that is the system is riddled with arbitrary considerations—recovery depends on your attractiveness as a plaintiff, the part of the country you live in, the kind of injury you suffer, the quality of the lawyer you have, all kinds of variables. In many ways the whole thing's a crap shoot. Also, of course, it's essentially a fiction. A person who loses a loved one or is badly injured is
never
fully compensated for that loss by a sum of money.

“So the compensation concept is a charade—money damages aren't compensatory, they're a solace for suffering, and because juries don't like big numbers, the system overpays the small claimant and underpays the person who has suffered greatly and is in real need of help. But charade or no, so far there's nothing better. All of which is to say the law in large part stinks, and mostly it's stacked against plaintiffs—people like you. But in some ways it's stacked against the defendants, much as I hate to say it.”

“How?” Brenda asked, enthralled.

Hawthorne looked at Laura. “Assume your husband is totally disabled. Also assume he had the foresight to take out a disability insurance policy beforehand and that the policy pays him fifty percent of the amount he was earning at the time of the accident. That's called a collateral source. You might argue, and the insurance companies certainly do, that such a source of funds should mean that if their insured is found liable for the injury, they should have to pay only the other fifty percent, so your husband receives one hundred percent of his former income but no more. Sounds fair, doesn't it?”

Laura hesitated. “Yes.”

“Well, the defendants have to pay it all, no matter
how
much your husband is receiving from other sources. So we don't follow pure compensation theory, either, since some victims get
more
than their economic loss. Which means there's some punishment and revenge mixed in there, too.

“What it comes down to is perspective. Defendants say, Look at what the plaintiffs should collect; plaintiffs say, Look at what the defendants should have to pay. The victim hasn't done anything wrong, after all. One way or another there's a windfall, so why shouldn't it go to the party that's completely innocent?”

“But …” Laura's brow folded in concentration.

“It seems wrong, I agree. But the so-called reforms are even worse. Eliminating awards for pain and suffering except in the case of permanent disability is licensed cruelty. Requiring proof beyond a reasonable doubt to establish punitive damages will encourage corporate recklessness. The idea that the airlines will offer flight insurance to passengers, with recovery after a crash limited to those policies, well, you can see how ridiculous some of the suggestions can—”

“So there are all these problems,” Brenda interrupted, her face flushed with irritation. “How much is it going to cost us to hire you to solve them?”

“Good question.” Hawthorne smiled easily. “Probably the most frequently lamented aspect of the tort system is its costs. A study of the asbestos litigation showed that an award of two hundred million to asbestosis victims cost seven hundred million in litigation expenses. And when people think of expense, all they think of is the fees charged by the plaintiffs' attorneys.” Hawthorne's smile stayed straight. “That is to say, by people like me. This is despite the fact that of that seven hundred million spent in litigating the asbestos cases, more than six hundred million was
defense
costs; was, in other words, the expense incurred by the asbestos manufacturers to avoid paying compensation to the victims of a disease to which they
knowingly and deliberately
exposed thousands of innocent workers over a period of forty years.”

For the first time, Hawthorne's grin contained malevolence. “But you don't read about that, do you? You only read about gunslingers like me, how much money we make, how we feed on injured people, taking money that should rightfully be theirs and putting it in our silk-lined pockets. Well, let me tell you another thing about those asbestos cases. When they were settled before trial, the average amount paid to the asbestosis sufferer was sixty thousand dollars. When they were settled during trial but before judgment, the average amount was ninety thousand dollars. And when they went to a jury verdict—when guys like me did what we were hired to do and an impartial jury was given a chance to decide what was fair and right—the average amount awarded the sick or deceased worker was almost
four
hundred thousand dollars
. I don't know what that says to you, but what it says to me is that we gunslingers earn our money.”

Hawthorne waited for a response, but got none but startled silence. “You're wondering what I charge in a case like this,” he continued. “The first thing to say is that my fee is structured the way it is because even if I win the case for you—even if every claim we make is proved to be true and correct—the jury can't give you one thin dime for attorney's fees. Now if it was your
business
that was injured, under the antitrust laws you could get attorney's fees in addition to three times the actual damages you suffered. And if your civil rights were violated, in some cases you could get attorney's fees as well. But if you or your loved one are killed or maimed, the court can't award you one penny to pay your lawyer with. So I have to be paid out of what I recover for you in damages. Understand?”

Brenda nodded. “That's crazy.”

“Yep,” Hawthorne agreed. “But that's the system. It's also why the windfall I mentioned earlier isn't really that—the so-called collateral source is really an attorney's fee, not a gift to the victim.

“But back to the point. With a major accident with multiple victims, I charge a contingent fee of twenty percent of any recovery received from inception to trial, twenty-five percent if it goes to trial, and thirty percent if it's appealed, expenses off the top. A contingent fee means, of course, that if you don't win you don't pay.

“Now, I can hear you say, ‘But Mr. Hawthorne, you have twelve clients in the case. If each of them gets a million-dollar judgment, you're going to get a three-million-dollar fee.' And what I'm going to say is, that's absolutely right. And I will damn well deserve it. You know why? Because in the last major case I tried, the final judgment was
one hundred and fifty times
the offer my client received from the insurance company the day after the crash, before I got in the picture.”

“Wow.” Brenda's eyes were the size of baseballs.

“Not many of my cases go to trial anymore,” Hawthorne added. “The insurance companies tend to be willing to pay my clients what they deserve without the expense and embarrassment of litigation. But they don't do it until they know I've gotten the goods to nail them. They won't give a fair amount to you, acting on your own, and with all due respect, they most likely won't give a fair amount to Mr. Tollison here either, intelligent and capable though I know him to be, because he's not experienced in this type of law. The insurance companies reach fair settlements with me because I've been trying cases against them for twenty-five years. I know what the airlines do well and I know how they screw up and I know how their lawyers try to hide it when they do. So they tend not to fuck with me anymore, excuse my French, because they know if they do, I'll nail them to the wall.”

Hawthorne folded his arms and closed his eyes. “One final thing. If you sign on with me, you're going to end up telling the defendants, by which I mean primarily the insurance lawyers, everything about your life they want to know. That's the way I work—my clients tell the whole truth and nothing but the truth so I can tell the judge that since my clients came clean, the defendants should have to do the same. Most of the time the airlines have a lot more to hide than my clients do, but if you've got any skeletons in your closet, I can't promise they won't come out. I can't promise you'll get a million-dollar judgment, either. I can only promise to do what I've done for everyone I've ever represented—fight as hard as I can, do whatever it takes within the boundaries of the law to get the best possible award for you, given the circumstances.”

Hawthorne paused. A quick streak of pain seemed to cross his face. For the first time since entering his office, Tollison remembered his heart attack.

“Any questions before I see you individually?” Hawthorne concluded softly.

One woman shook her head; the other met his eye. “Why did the plane crash?” Brenda asked heavily.

Hawthorne opened his eyes and nodded. “Usually, by this time I'd have an answer, but in SurfAir I don't. It may have to do with the design. The Hastings is a new airplane. Some veteran private pilots won't fly in a commercial airliner until it's been operational for at least two years—they figure it takes that long to get the bugs out.”

“Nobody tells the
public
that, do they?” Brenda was irate. “Nobody warns
us
not to get in the damn things.”