And They Built A Crooked House, by Ruth S. Martin

CHAPTER 14.

Pretrials


Lawsuit, n. A machine which you go into as a pig and come
out as a sausage.
Ambrose Bierce, The Devil's Dictionary, 1906.
Before the actual trial there are one or more pretrial hearings between attorneys and the judge, informal, off-the-record discussions held in the judge's office. Their purpose is to assure that both sides are working satisfactorily on the case. They are also suppose to foster pretrial settlement, if that is in the cards. The first `pretrial' in our case was held September 28, 1987, about two months after the lawsuit was filed. There Baxter met the other attorneys for the first time. As expected, nothing was resolved. Baxter did not have much to say about Cooper's attorney, except that he was young and quiet.

The pretrial must have spurred some action because in early October the defendants and their attorneys held a meeting. Baxter was not there. As a result of the meeting a letter was sent from Pierce to Baxter with a proposal, the first and only written offer we ever received. Pierce's letter arrived just before the second pretrial hearing, held October 28. Pierce's letter surprised us in several respects. "I am told," he wrote, "that the offer of Nelson was never accepted as being suf-ficient in scope and that Frank T. [Murdock] was banned from the premises as of about March 9, 1987." Tom, of course, had never received any offer from architect Nelson or his attorney, Mike Collins. Pierce continued:

As you know, both sides have a duty to mitigate under the circumstances here. There may well be problems existing at the premises upon which no agreement can be reached. There are certain problems, however, that fall in the undisputed category which have been acknowledged from day one but have yet to be cured because of the impasse that exists over the disputed problems.


On behalf of all the defendants, Pierce proposed that the insurance company fix the "nondisputed" items (pocket doors, slo-ping laundry room floor, missing tile in bathrooms, etc.). Most of these repairs were clearly in Murdock's domain and indisputable. They would hire Mr. Anderson (the insurer's expert who had never filed a report) "at no cost to the Martins" to make these repairs.

After completion of the nondisputed repairs, the disputed repairs, if any, and any other disputed items will be submitted to the court for resolution if settlement on same cannot be reached.


No detail was presented as to how the repairs would be made (for example, the sloping laundry room floor). No acknowledgment was made about expenses we had incurred to obtain even this meager proposal (at least $10,000 to that point). And nothing was said about restoring our home's value, fixing the house in accord with local building codes, or guaranteeing its structural integrity. To repair some defects and proceed with litigation over the "disputed" defects was obviously absurd. Worse, since Pierce had not seen the house and no formal report had been filed by any defense expert, the proposal was clearly based only on what Nelson and Murdock admitted was wrong in another words the wolves were going to take care of the lambs!

FOOTNOTE. Even so, had the repairs outlined in Pierce's letter been adequately accomplished in early 1987 we would have never called in a litigator. We would have probably remained blissfully ignorant of the structural defects and there would have been no lawsuit. It was the defendants' absolute refusal to properly investigate the house or make any honest attempt to fix even the cosmetic problems and sloping mudroom floor that made it necessary for us to hire independent experts. Once we had the experts' reports and learned the house was defective throughout we had no choice but to seek proper repair of the entire structure; a half-way repair job would have put us in jeopardy for a lawsuit if we ever sold the house, a fact later affirmed by the Judge.


We also suspected at the time that Anderson could not do the job properly even if we agreed to these half-way repairs. At no point had he shown any understanding of even the admitted structural problems, or how he would fix them. Anderson's deposition a few months later proved our suspicion was well founded.


* * *

On October 28 we went to the Justice Center for the second pre-trial hearing, to meet with the Judge. At least that was Baxter's understanding. Larry and I sat waiting in the lobby outside the courtroom over an hour, while the attorneys waited for the Judge in his chambers (plaintiffs are not allowed in chambers unless a judge is there). What a depressing hour! No word from our attorney, no idea what was happening. I thought: `We left work to come sit here like criminals, waiting, waiting. It is just one more thing we have to endure to pursue our case. This isn't what's supposed to happen when you build a new house! Why are they doing this to us?'

Finally Baxter came out. The Judge was tied up in another trial, and barely had time to meet with the attorneys. The second pretrial was over.
"What happened?"
"The Judge is concerned and wants us to keep trying to settle. He told Pierce that their proposal didn't make sense, that you deserve a complete solution, not a piecemeal approach. Now they want to come to the house November 13 to make a videotape."
"What for?" Larry asked. "So they can lie some more? What's a videotape going to show? You can't appreciate the sloping on videotape."
"I don't know, but we have to let them." Baxter didn't seem concerned.
"Tom, can we be there?"
"No, you cannot. I'll be out of town but someone from my firm will be there."


* * *

Baxter mulled over Pierce's proposal for two weeks, then decided to answer it. On November 12, 1987 he wrote Pierce a detailed letter, stating:

First, there has never been any type of an offer from Nelson...to cure the problems. Second, [Murdock] was banned because of his refusal and/or inability to repair the construction problems in a first-class workmanlike manner. Third, prior to the filing of this action, numerous measures were undertaken in an effort to repair the dwelling and minimize the damages... We find that the proposal to settle some of the claims...to be unacceptable.


Baxter then detailed the defects not covered in Pierce's letter, and stated:

[Your] makeshift and piecemeal suggestion to settle only some of our claims for structural and construction problems would result in the Martins being subjected to two repair undertakings [which would be] an unnecessary and unwarranted burden. Hopefully, Messrs. Cooper, Murdock and Nelson will rethink their proposal after they again inspect the premises on November 13, 1987.


In this early period we felt that Baxter misread the intentions of the people we were suing. Only toward the end of our ordeal well into 1988 did he grasp what Larry and I knew from the beginning: nothing said or proved, except in court, would move these defendants or their lawyers. In fact, only by being jerked around himself, just as we had been from day one, did our lawyer come to appreciate the futility of trying to settle with these people. In retrospect, a lawsuit should have been filed immediately. The four and a half months between March 1987 (when Baxter was called in) and late July (when the lawsuit was filed) only added to our frus-tration and delayed any resolution.

Tom's continuing faith that he was dealing with honorable/sincere/settlement-minded people probably caused other delays. He let the defendants and their attorneys come to the house on November 13 without anyone present from our side who knew the house. Baxter could not be there but instead sent a junior associate, someone unfamiliar with the house. The junior associate came only to observe, not to participate. This unchecked visitation allowed the defendants to ignore the disputed areas (e.g., sloping foyer and family room floors), and to continue to minimize the defects for several more months. Unfortunately Baxter's miscalculations did not end in 1987.
* * *

I do not mean to be critical of our lawyer. Tom Baxter worked very hard on our behalf and was scrupulously fair with his fees. He did his best to try to settle our case without going to trial, and to protect us from what he sensed could be a very unhappy result. It would be unfair to blame him for the outcome and I do not. By the same token, Tom should not be offended if I point out areas where things could have gone smoother on the path to trial. In litigation there is an awful feeling of helplessness when your only conduit to justice is your attorney, and through him you experience delay after delay, disappointment after disappointment. Certainly most of this will be caused by the other side. But any misstep by your lawyer, no matter how small or inconsequential in retrospect, will only add to your pain.

-- continued --