Fifth Pretrial

Before the fifth pretrial hearing on March 8 Baxter prepared the breakdown of what it would take to "make us whole." This compil-ation included only the actual appraised value of the house and our expenses, including those incurred to date and future expenses resulting from having to move out of the house.

Appraised value of home, March, 1988	$ 417,000
Moving and closing costs	9,500
Legal and expert fees to March 8, 1988	38,000
Total	$ 464,500

In July 1987 we had offered to sell the house back to Cooper for $396,000, a figure that also included all our legal and expert fees. As a result of the defendants' actions (or inactions), that figure was now $70,000 higher. If they delayed further and went to trial, the total would grow by another $20,000 or so. With expert reports and a settlement figure in hand, we were pre-pared to meet in the Judge's office at 3 p.m., March 8th. Larry and I would first go to Baxter's office at 1:45 for a briefing and then walk to the Justice Center. I was to pick up Larry at 1:15 and we would go downtown together.

At 12:30 Larry was paged at the hospital by Baxter. "Larry, I just got a call from the Judge's bailiff. He was called to an emergency session on a three-judge panel, and won't have any time for the pre-trial today. This is very unusual and his bailiff was profusely apologetic. They've rescheduled the pretrial for next Tuesday at 3 p.m. Will that be a problem?"
"No," Larry said. "I'll tell Ruth."
Tom was disappointed also. "I've got to go now, but call me later this afternoon so we can talk."
We were both upset over this latest delay but there was nothing we could do. Larry called Tom later as requested.
"Larry this was most unusual. This judge would bend over backwards to keep an appointment, but he couldn't get out of the panel."
"Tom, we understand. We're more concerned about delays on the other side. Why hasn't Pierce given you dates for our depo-sitions? They're going to use this delay and their own lack of preparation to ask for a delay in the trial. That isn't fair."
"You're probably right," he said. "Unfortunately, that's the way the legal system is. I'll certainly point out to the Judge that they've had ample time to take depositions and prepare the case. But he knows it. I can't do anything if he wants to give them an extension."
"Tom, we can't let them get away with it. They don't have a single expert. [Anderson's deposition testimony had been nullified by precise measurements]. They have no defense. Their only hope is to try to postpone the trial."

Baxter, though sympathetic, was bound by vagaries of the legal system just as we were. Only it wasn't costing him $1000 a week. That night was another low. It seemed inevitable that the defense would take every opportunity to delay trial, and play whatever games lawyers play when they have no case. We were also concerned about something else. Although there seemed little likelihood of a meaningful settlement offer, Tom had prepared a valid figure just in case, an amount that would "make us whole." This figure included nothing for our aggravation and frustration, the inconvenience of looking for another house and moving again, disruption to our lives, etc. In short, none of the intangibles were included in Baxter's settlement figure.

Although we would have gladly accepted an offer equal to Baxter's total, it was unrealistic to expect agreement from the defendants. If they wanted to settle they would look at any number from us as inflated, and automatically come in lower. We had never been party to a lawsuit but this aspect of litigation seemed axiomatic. Larry called Tom the next day.
"Tom, we've been thinking about the settlement figure. No matter what amount we give they'll argue it down, even if it's 100% fair. You should really include something for pain, suffering, aggravation, inconvenience, call it what you will. Give them some opportunity to come in lower."
Baxter agreed. He had been thinking the same thing. A figure for aggravation would be part of any settlement before trial. The defendants could play their games, come in at a lower figure, and still make us whole.

* * *

Although it had long been understood that we would accept a legitimate settlement offer, Tom agreed with this strategy. Of course for any strategy to work there has to be a response from the other side. Strategy doesn't matter when you're tilting at windmills. Sadly, like the first four hearings, the fifth pretrial hearing was a waste of our time and money, and of Tom's effort. The pretrial took place March 15, 1988. Larry attended without me. Instead, I went to a school play in which our 10-year-old daugh-ter was playing Jack-in-the-beanstalks's mother. It was just as well. Before the pretrial Larry met Baxter and his partner on the case, Melissa Oliver, in their office. To the amounts we would demand in any settlement, Tom had added $40,000 for damages. The final set-tlement total now came to $504,500.

Tom briefed Larry on how to behave before the Judge. "Don't be too intense. Don't act like the house is the most important thing in the world. Don't make it look like you're seeking revenge. You just want the money, not blood. Stay calm."
Tom gave good advice but it was for naught. Larry met the Judge in the anteroom of his office, but only because the Judge happened to be standing there when Larry and Tom walked in. They shook hands, but the Judge only wanted to meet with the lawyers. For the next 75 minutes the Judge talked to them in closed-door session, first all at once, then with Baxter and Oliver, then the defense attorneys, then with Baxter and Oliver again. Larry waited in an almost empty courtroom. At one end of the courtroom sat Jake Cooper, Jim Nelson, Don Henderson, and Frank Murdock. Larry observed them from across the room but they didn't catch his eye. It was the first time either of us had seen Cooper since November 1985.

Midway through the conferences Tom called Larry into the hallway to discuss what he had learned. It was not encouraging.
"Cooper doesn't want to buy the house back under any circumstances. Nelson is willing to repair only those parts he feels personally responsible for. And Pierce had nothing to say."
In other words, after $40,000 in legal and expert fees, and almost a year of litigation, our case was nowhere near resolution.
At the Judge's request Tom returned to conference. He came out 30 minutes later but the news was no better. The defense lawyers did agree with Banks's conclusions, but also said they had an estimate of the cost to fix the structural problems: about $10,000. They had presented nothing in writing, of course, and their estimate could not have been from anyone who had ever seen the house, except Murdock and Nelson. As expected, the defense lawyers asked for an extension of the trial date and it was granted; May 16 was the new date. No reason, no excuses. Larry never spoke to the Judge, nor did the other defendants (why were they asked to come?). The fifth pretrial was over.

So the defendants continued to deny, minimize, and delay. Had we not already spent $40,000 the results of this pretrial would have been easier to swallow. But we had spent this amount and were no closer to a resolution than in May 1987. Yes, we had a few more expert reports documenting the defects, but so what? Nothing we said, nothing we proved, nothing we discovered seemed to matter a bit. Cooper was not going to admit responsibility, period. And if Cooper wasn't going to pay, why should the insurance company do anything? For the defense lawyers, going to trial could be a bonanza.
It was another dark, depressing night at home. We were past solace. Even if we won a court decision we figured the case would still not be resolved. First, there would likely be appeals (more delay, more legal fees). Second, and more ominous, Cooper (and Nelson) could declare bankruptcy.
But what choice did we have? None. There was nothing else we could do but wait for our day in court.

-- continued --