Bennie felt the familiar whoosh of chilly air rush at her as soon as she opened the door to the courtroom and ushered St. Amien inside. In the federal courthouse in Philadelphia, the government conserves money by air-conditioning only the courtrooms, clerks’ offices, and judges’ chambers, and saving it in the many hallways of the twenty-odd-floor building, so the refrigerated blast of the courtroom welcomed Bennie as surely as coffee smells did at the office and a golden retriever did at her house. It signaled to her that she was on her turf, even that she was home.
St. Amien was looking around. “No one’s here yet, we’re so early,” he said, his tone hushed by the spaciousness and grandeur of the courtroom. Bennie had noted that the room usually had that effect on clients and witnesses; it was why she always brought witnesses in for a look-see. St. Amien wouldn’t have to testify today, but he stopped at the door, uncertain. “Benedetta, may we enter?”
“Of course. It’s a courtroom. It’s public. It belongs to us.”
“It is so different from Paris,” St. Amien whispered, eyeing the place, his mouth taut. “Our courtrooms are much smaller. Darker, and much older.”
Sounds great. She led him up the carpeted center aisle, and his silvery head swiveled left and right, taking in the huge wood-paneled courtroom, which empty seemed even bigger. An immense modern dais dominated the room, flanked by paneled boxes for the witnesses and jury, and it bore the flag of the United States before a rich maroon backdrop meant to absorb sound. Above the dais, a heavy golden medal of the United States Courts hung like a gilded sun in the sky. Okay, maybe Bennie was idealizing the place, but if a lawyer didn’t get a charge in a courtroom, she should get out of the business.
The flag, the dais, the seal, and the jury box-all of these fixtures reassured and thrilled Bennie. They were the stuff of the law, the emblems, accoutrements, and tools used every day to hammer out justice, case by case, verdict after verdict. Bennie wasn’t so naive that she thought justice was always perfect, blind, or evenly administered; she knew from bitter experience that judges and juries made mistakes, were bamboozled, or simply went the wrong way, every day. But she also believed that in the main, judges, juries, and lawyers strove together for justice, and that the courthouse remained a citizen’s best hope for a truly level playing field. Which was why she had come here today.
“Please sit down, Robert,” Bennie said, and gestured him into a seat in the front row of smooth polished wood. He sat down dutifully and placed his cushy leather envelope on his expensive pants. She could have been imagining it, but she sensed a subtle shift in the balance of power between them, as if he were silently ceding her the upper hand. She had become the expert, his Sherpa in the big American courtroom. Now if she could only get him to kick the habit. “Robert, I have to ask you, have you ever tried to quit smoking?”
St. Amien looked up, puzzled behind his spotless glasses. “I won’t smoke here. I know not to smoke in the courtroom. I would never do that.”
“It’s not about that. Why don’t you quit?”
“Quit smoking? Why would I?” He sounded so nonplussed, Bennie almost laughed.
“Because it’s bad for you. Haven’t you heard that in Paris, where the courtrooms are older and smaller?”
“Yes, of course, they say this, but I enjoy smoking.”
Bennie let it go. She had her answer, and it was off the point anyway. “Okay, fine. You stay here and watch. And don’t give this seat up for anything. This is the best seat in the house, and you are about to become the lead plaintiff in this lawsuit. I want the judge to see you, and you first. When Mayer and everybody else arrive, let them step over you.”
St. Amien smiled. “It seems ill-mannered.”
“It is. We call it litigation. Welcome to America. It’s time to bang some heads.” Bennie knew that St. Amien would need an explanation for the idiom, but she didn’t offer one. She turned to plaintiff’s counsel table to take first chair. By the end of the afternoon, St. Amien would understand the term perfectly.
The Honorable Kenneth B. Sherman glared down from the dais, his gray hair slightly frizzy and his dark eyes cranky behind gold-rimmed aviator glasses. He hunched over in his black robe with tiny gathers at the yoke top, and his striped tie was knotted too tight for most liberal Democrats. If he was angry at Bennie because she had requested this conference or because she’d been thrown drunkenly out of a Chinese restaurant or because she had been widely reported as guilty of diamond theft, she didn’t know. It might have been moot.
“Well, good afternoon, everyone,” Judge Sherman said as the courtroom settled down. He nodded briefly around the room, now full to capacity and almost warm with body heat.
“Good afternoon, Your Honor,” Bennie responded, in unfortunate unison with Bull Linette, who shifted unhappily next to her at counsel table. He’d be unaccustomed to second chair at counsel table, which was usually occupied by the second-in-command on a lawsuit. He had barely said a word to her when he stormed in with an equally stony Herman Mayer, and he kept his gaze riveted to the front of the courtroom. She knew she’d pissed him off royally with this move, but she was trying to represent her client, not make friends and influence people.
“Does everyone have a seat on the plaintiff’s side?” Judge Sherman asked, eyeing Quinones and Kerpov, who nodded back as they pulled up chairs next to Linette, then the other minor lawyers who formed part of their cabal. More lawyers filled the left side of the courtroom, spilling onto the pews behind counsel table, sitting with their clients, brought for show.
In contrast, the right side of the courtroom, reserved for the defense, was markedly empty, the pews completely vacant. There was no client presence at all, and only a single defense lawyer, an older man, sat at counsel defense table. Bennie knew that the trade association would have retained fleets of lawyers from one of the big, prestigious law firms in the city, but had intentionally sent only a single lawyer, to preempt the underdog position. He wasn’t fooling anybody, least of all Bennie, who felt like telling him to save it for the jury. But she’d fight that enemy later. Right now she had to fight her alleged friends.
Judge Sherman shifted his oversized glasses higher onto his nose, and his mouth became a hyphen as he returned his glare to the lawyer directly in his field of vision, Bennie Rosato. “Now, Ms. Rosato, since we are all here on your motion, do tell us, what is an emergency hearing in a class action? Class actions usually move along as quickly as evolution itself. I don’t think I’ve ever heard of such a thing in this context.”
It’s okay, Judge, neither have I. Bennie didn’t require prompting to stand up and take the lectern. This whole proceeding was about her taking the lectern. She grasped both sides with sure hands. “May it please the court, my name is-”
“Bennie, for God’s sake, I know who you are. What I don’t know is why you’re here.”
Okay, maybe that wasn’t a good start. Bennie’s hands shook a little, so she gripped the lectern harder.
“And do tell me, while you’re at it, what these papers are. Is this an exercise in creative writing?” Judge Sherman held up a sheaf of white papers at a delicate distance from his nose, as if they smelled really bad. Unfortunately Bennie recognized the motion she’d filed today with the court and had sent to chambers with her letter. Judge Sherman’s knitted brow told her he thought she was ready for rehab. “What on earth is an ‘Emergency Motion to Determine the Method for Appointment of Class Counsel’? I never heard of such a thing. You on an emergency binge or what?”
“Your Honor, I know this is unorthodox-”
“Unorthodox! Unorthodox is Chianti with Dover sole. I know unorthodox, Bennie. I am unorthodox! This isn’t unorthodox, it’s nuts!”
“Your Honor, please-”
“Wait, I haven’t finished! I know it sounded like I was finished, but that’s just the type of zany, unorthodox judge that I am!”
Bennie stood tall. If his wasn’t the most judicial tone or demeanor, it was the plain talk for which Judge Sherman was famous. And behind it was concern for her mental state and addictive personality; she could hear the softness in his tone. Bennie flushed with embarrassment, cursing Alice inwardly. Her scam had tainted the judge’s view of the motion, and her scheming had infected St. Amien’s interests. Bennie gritted her teeth and bore down.
“It’s not only nuts, it’s premature,” Judge Sherman continued. He let her motion papers drop to the dais like trash. “The complaint in this class action landed on my desk last week, and I got your client’s complaint just yesterday. Now we all have to meet? Today?”
Bennie was about to respond when Linette leapt suddenly to his feet and muscled the two steps to the lectern. “Your Honor,” he said loudly, “if I may say so, I quite agree, and it is vital for the court-”
“Mr. Linette, sit down!” Judge Sherman thundered, and Bennie bit her cheek. Linette eased into his seat. “This is Ms. Rosato’s motion, and right now I’m engaged in a colloquy with her. This case has major circus potential, and I will not let that happen in my courtroom, so I’m nipping it in the bud. From here on out, when I need your two cents, I’ll ask for it, Mr. Linette. Now please remain in your seat.”
“Yes, Your Honor,” Linette answered. His ruddy face went ruddier, and Bennie felt a rush of satisfaction. She was willing to take the beating she was about to get, but she would keep the floor. If she had to act out to get attention, so be it. It was a lesson every Bad Girl had learned. Mavericks ‘R’ Us.
“Now, Ms. Rosato, please continue,” Judge Sherman said, squaring his puffy black shoulders. “I’d really like to hear you defend this motion. I could have simply denied your request, but I admit, you intrigued me.” His gaze softened for a minute, and Bennie realized he had been worrying about her. He couldn’t contact her ex parte, that would have been unethical, but maybe he’d granted her request for a motion simply to see her in person. He could have denied it without a hearing. As if to confirm her thoughts, the judge flashed a smile that was almost encouraging. “Make it worth the price of admission, Counsel.”
“Okay, Your Honor,” Bennie began, steeling herself. “As you can see, the lawyers representing the various class members in this lawsuit are all prominent members of the Philadelphia class-action bar, including Mr. Linette. As you are aware, I do not normally do class-action work, but in this suit I represent Mr. Robert St. Amien, the president and CEO of St. Amien amp; Fils.”
Bennie gestured briefly behind her to St. Amien, who was sitting according to her seating chart. “St. Amien amp; Fils is a French company that manufactures lenses for medical equipment, and it recently expanded to the U.S., opening a subsidiary in the King of Prussia area. Mr. St. Amien should be the lead plaintiff in this lawsuit because his is the biggest company in the plaintiff class, at one hundred and fifty employees, and his damages, at sixty million dollars, far exceed any of the other plaintiffs’, including Mr. Linette’s client, Herman Mayer. But my client’s position as lead plaintiff is currently being jeopardized by the process of private ordering among class counsel.”
Bennie ignored the low growling emitted by Linette and the ripple of hostility that reverberated around the plaintiff’s side of the courtroom. Defense counsel kept taking notes, and the stenographer tapped silently away on her mysterious black keys. Bennie doubted that she was recording any of these atmospheric changes. That was the problem with a trial transcript; it recorded only the words, not the tone. Like Cliff’s Notes to Portnoy’s Complaint.
“I am therefore moving the court, at this admittedly early juncture, to appoint class counsel by using the auction-bidding method, as opposed to private ordering. This method is particularly appropriate to the case at bar, in which a newcomer to the class-action practice represents the plaintiff with the greatest damages. In addition, because my law firm is so small, I can provide the least expensive legal services to the class as a whole.”
Judge Sherman frowned. “Let’s be clear. You’re not asking me to appoint you class counsel today, or even ultimately. That would not only be unorthodox, it would be insane. Rather, you’re asking that I determine that auction bidding be the method whereby I appoint class counsel. Your motion goes to the procedure, not the substance.”
“Yes, Your Honor.”
“Your co-counsel have not had an opportunity to brief this matter, Ms. Rosato.”
“I welcome their briefs, Your Honor. My only intent was to get things rolling.” Bennie didn’t add that what she had wanted was momentum, the initiative.
But by now Judge Sherman’s frown had taken up residence on has forehead. “Normally, a matter like this wouldn’t be brought up on motion, Counsel.”
“You mean, that’s not how it’s done, Your Honor.”
“Precisely.”
“I understand that, but there is no reason why it couldn’t be, or shouldn’t be, is there?”
“Perhaps not.”
“It’s in my client’s interests to be open and aboveboard about this process, Your Honor. My predicament as his counsel is that I know precisely how it is done. Secrecy and closed proceedings do not serve my client, nor does delay. I recognize that this motion and hearing are somewhat unconventional, but my only other choice is to risk my client’s rightful position as lead plaintiff to the vagaries of backroom bargaining by powerful members of a very exclusive club-to which I do not belong.”
Bennie stopped, almost involuntarily, right there. Her words rang out in the silent courtroom and had a hang time all their own. She had said the unsayable-in open court-and she swallowed hard. She was going public with their behind-the-scenes fistfight, and she knew the implications: Bennie had just declared war on Bull Linette.
Back at second chair, Linette held his breath, red-faced, seething. His bleached teeth were set in a grimace. Quinones and Kerpov looked frozen and pale, as if they’d been cast in plaster death masks. The court stenographer paused in her typing, her fingers poised in midair. The silence deafened until the judge broke it:
“My, my, my. This is unusual.” Judge Sherman shifted in his seat and replaced his glasses, then took a minute to let his gaze shift down the line to Linette and the other class-action lawyers. It returned to Bennie, and it didn’t look as if he thought she was drunk anymore. In truth, he didn’t even look angry. But his tongue clucked with concern, and after a minute, he spoke. “Ms. Rosato, I cannot begin to consider the merits of your motion from the bench, but I am cognizant-”
“What! This is an outrage!” boomed a sudden voice from the back, with a thick accent, and Bennie turned around in surprise. Herman Mayer had jumped to his wing tips in the front row. Next to him, St. Amien looked surprised and drew backward. Mayer’s gaunt cheeks were mottled with anger. “Your Honor, my losses are greater than St. Amien’s, and I came sooner to the U.S., to Fort Washington! He only followed me here, and through illegal competition and interference, he stole my contract with Hospcare-”
Linette was standing up, waving Mayer into his seat. “Herman, sit down. Be quiet. Let me handle this.”
“This is my business, Lawyer!” Mayer shouted back. His dark eyes flared with indignation. The veins in his stringy neck bulged like an angry rooster’s. He waved a hand with a heavy gold wedding ring. “I know my business! I will not sit here silent while that woman lies about my business! My business!”
St. Amien had risen to his feet, too, his lips parted in affront. “How dare you accuse me, Herman!” he said, his voice only slightly raised. “I did not steal your contract with Hospcare, you fool! You had no contract with Hospcare! They came to me-”
Holy shit. World War II is breaking out. “Robert!” Bennie said firmly. “Please, you don’t have to answer him, I will-”
“Fool! Liar!” Suddenly Mayer turned and, red-faced, gave St. Amien a strong shove that almost toppled him.
“Argh!” St. Amien said, struggling to stay on his feet, righting his glasses with dignity.
“Robert!” Bennie shouted in alarm, moving to help him.
Crak! Crak! Crak! “Order! Order!” Judge Sherman shouted, banging his gavel on the dais, as Bennie eased St. Amien into his seat and waited for the judge to restore order. “Mr. Linette, get your client in control! Order! Or I’ll throw him out!”
“Herman!” Linette said, pivoting on his slippery Italian loafer. Next to him, Quinones’s eyes widened and Kerpov looked embarrassed. Brenstein turned away, and Linette tried to contain his client. “Sit down! Right now!”
“Don’t you tell me to sit down!” Mayer shouted back, pointing at Linette with a long index finger. Bennie stayed with St. Amien, who had composed himself, and watched amazed as Mayer turned his anger on his lawyer. “You sit down, Linette! You aren’t doing anything to help me! How dare you let her malign me and my business!”
“Herman, sit down!” Linette thundered, instantly red-faced. He took a threatening step forward, which surprised even Bennie. Scenes like this didn’t happen in civil lawsuits. That’s why they called them civil.
Crak! The judge howled, “Mr. Mayer, you will sit down this minute or I’ll have you hauled off!” Mayer obeyed reluctantly then, sinking into the seat beside a grim-faced St. Amien and still shaking visibly from his outburst. But he seemed cowed enough for Bennie to leave St. Amien safely and return to counsel table. Judge Sherman set down the gavel after one final bang, and his glare this time focused on Linette, his eyes searing into him like twin lasers. “Mr. Linette, I hold you responsible for this! This is exactly what I meant by circus potential. I won’t have it!”
“Understood, Your Honor,” Linette said, his expression stoic and his stance stiff as a toy soldier’s. “Your Honor, I apologize for my client, but Mr. Mayer is simply reacting to Ms. Rosato’s misstatements of fact regarding her client’s damages. Mr. Mayer knows his were far greater.” He spat out the words, each one precise as a stiletto. If he couldn’t take the lectern, he’d turn counsel table into one. “And I strongly object to Ms. Rosato’s having filed this motion without consultation with me, running off to tell the teacher-”
“Objection, Your Honor!” Bennie said, because she couldn’t resist. She didn’t know if you could object to a statement by co-counsel, but she was loving being unorthodox. And unorthodox was a better adjective than mavericky. “And I resent my motion being trivialized as running to the teacher. Every plaintiff is a tattletale. Justice is obtained only by running to the teacher. That’s why they call it court.”
Linette ignored her. “Your Honor, I would seek the opportunity to brief the method by which the court appoints class counsel. The process of auction bidding has been disapproved by this circuit in the Cedent case, and Your Honor is well aware of the task force-”
“Enough, Mr. Linette,” Judge Sherman said, waving dismissively. “You needn’t argue the point now, and I know all about the task force. You and all parties of record will have the opportunity to respond to Ms. Rosato’s brief, with all briefs to be filed within twenty days.” Judge Sherman glanced over at defense table to the lawyer sitting alone, like a blind date stood up. “And you, too, Counsel. We haven’t forgotten about the defendant trade association, and I couldn’t deny defendant the opportunity to be heard, even though it is not necessarily a matter of your direct concern.”
The defense lawyer nodded his balding head. “Thank you, Your Honor. We will brief the issue. If the issue concerns this lawsuit, it concerns my client,” he said with dignity, and Bennie knew that he was milking the melee in the plaintiff’s ranks for all it was worth.
Judge Sherman looked sternly at Bennie and Linette. “Now, obviously there has been infighting-even fisticuffs-between you lawyers, and you clients, and you clients and lawyers. And even you clients and clients.” He rolled his eyes. “This is absurd, unprofessional, and not in anyone’s interests. So I have some free legal advice for all of you, and it didn’t originate with me. A lawyer who was smarter than all of us once said, ‘A house divided against itself cannot stand.’ Mr. Linette, Ms. Rosato-and Mr. Mayer and Mr. St. Amien-you all would do well to heed those words.”
“Yes, Your Honor,” Bennie answered, again at the same time that Linette did, only he said it louder. Anything you can do I can do better. She was hardly optimistic that Linette would be taking any advice from Judge Sherman, much less Abraham Lincoln.
“Good.” Judge Sherman banged the gavel, then set it down and rose, arranging his robes around his tall frame. “I’ll take the motion under advisement and await briefing by all the parties, to be filed within twenty days. Adjourned, people. Go home and play nice,” he ordered, with a grim set to his mouth, then he left the dais.
Bennie couldn’t help but smile, and when she turned back to St. Amien, he was grinning from ear to Gallic ear. But next to him, Mayer didn’t look so happy. And neither did Linette, who swooped to the front row of the gallery, grabbed his client by the arm, and stalked off without another word. Quinones, Kerpov, and Brenstein departed in a small horde of lawyers, collectively shunning Bennie, but she had expected as much. In fact, she didn’t even blame them. She took her time packing her briefcase to let them all go ahead, to avoid them avoiding her in the elevators. Today she’d made herself a player, leveled the playing field, and gotten the ball.
St. Amien caught up with her at counsel table and slipped a congratulatory arm around her shoulder and gave it a squeeze. “Fantastique, Bennie! We won, did we not?”
Bennie clicked her briefcase shut with a grin. “They want to kill us, don’t they?”
“Yes.”
“Then we won,” Bennie said, and hardly minded at all when she was rewarded with another peck on the cheek.