JUMPING OUT (fiction, inspired by reality)

JUMPING OUT **

By Barry Seidel

(A Mike Sender story)

** Although this story is fictional, it is inspired by some actual events and experiences. Any similarity to actual clients or lawyers is coincidental.

“We think your clients are jump ins.”

I had no idea what Jerry Pivinski was talking about. He’s one of the lawyers for Empire Bus Company. The receptionist said he was calling about my Walenda and Jonas cases. I knew them well. My two clients were Walter Walenda and Richard Jonas. They had been passengers on a bus which was in a nasty intersection collision with a Jeep.

These cases, especially Walenda’s, were the best cases in my office. I had two passengers, so no contributory negligence, with claims against two deep pocket defendants.  Walenda’s case was especially promising. He had a badly broken leg with surgery, a really good injury. After 18 years in practice I’d just started referring to my clients' injuries as “good injuries”. I was finally becoming a real negligence lawyer.

The Jonas case wasn’t as good, soft tissue neck and back injuries, classic whiplash nonsense, a case I would not have ordinarily accepted. But since Jonas was a prior client, and more importantly, had brought Walenda to my office, I took his case too.

This was about three years ago. Now we were getting close to a trial date. We’d already had numerous depositions. I had also deposed both drivers, and sat there while the lawyers for six other injured parties deposed them. There had also been at least 10 motions made in the case, mostly to consolidate the various lawsuits into one. You’d think the lawyers could just agree to one trial in one place, but no, some of the lawyers wanted the case heard in Brooklyn, some wanted the Bronx, so we all argued about it and the case ended up in Brooklyn.

I would have preferred Queens, where my office is, but “convenience of Mike Sender” is not a basis for venue. All my Brooklyn trips would ultimately be worth it though. My one third contingency fee on Walenda’s case was gonna be a nice one. We had already turned down an offer of $75,000, I thought the case would ultimately go for $250,000. Maybe more, if I had the nerve to try it to verdict. I really needed a big fee, just this once.

“What’s a jump in?” I asked Jerry.

“You really don’t know?” he said. “We get these all the time. It’s incredible.”

“You get what all the time?”

“Jump ins. You know, people see a big bus accident, and they jump in.”

Jerry let loose a big belly laugh, which evolved into a coughing fit.

While he coughed, I tried to compose myself.

"Could it be? But what should I say?........ Got to stay cool, stay calm, find out what they have ......... Don’t get dragged into trouble ...... stay cool...... Figure out what to do.

When he stopped coughing I said, “You don’t think that I.....”, but he interrupted me.

“Mike, we know you a long time, and we don’t think you knew, but your two clients are some real pieces of work.”

“Now wait a minute,” I said, “Your telling me Walenda didn’t break his leg in this accident? How did he get there with a broken leg? He was picked up at the scene by an ambulance, wasn’t he?”

“Sure he was, that’s one of the best parts of this. He had broken his leg earlier in the day playing soccer. Your Mr. Jonas took him to Coney Island hospital. They set it, put him in a soft cast, gave him some demerol and told him to come back the next day to see the surgeon. After he and Jonas left Coney Island, they saw this accident and jumped in, but I guess Walenda limped in.”

After more laughing and coughing, Jerry continued, “Lemme tell you the best part, which is how we found out about it.”

“Tell me.”

“Couple of months ago one of the other plaintiffs was here with his attorney for a settlement conference. When he didn’t like our offer, he asked if we’d used up all our money paying the asshole who dragged his friend through the back door of the bus and then laid down next to him. Unbelievable, isn’t it?”

As much as Jerry jokes around, he’s a good attorney who’s been with the bus company a long time. He settles cases fairly, and if the bus company owes, they pay. If the cases have to go to trial, they go, and we live with the results.

I needed more details, and Jerry told me everything. When the jump in question came to light, the bus company hired an investigator who really dug into it.

“Most jump ins have bullshit injuries, like Jonas.” Jerry said.

They thought it was strange that Walenda could actually have a broken leg, based on where he claimed to have been sitting. The investigator confirmed that from the bus accident Walenda was taken to Brookdale Hospital by ambulance, and was x-rayed, admitted to the hospital and had surgery to set the bones properly. After confirming this, Jerry asked the investigator to canvas local hospitals, looking for Walter Walenda with a tib-fib fracture that day or earlier. Sure enough, a little leg work around the ER’s had given them the basics, Walter Walenda, 11 AM, tib-fib fracture, Coney Island Hospital.

With this info, they subpoenaed the Coney Island records. And there was my client, with ER records showing a broken leg 6 hours before he was supposedly in my bus accident. And more, the investigator called back one of the witnesses to the accident, who he had interviewed right after the accident. The witness had previously told the investigators what he had seen; that the bus had entered the intersection of Kings Highway and 28th with a yellow light, and the Jeep had gone through the red and blasted the bus.

On the call back the investigator asked about people entering the bus after the accident. The witness gave a detailed account of Jonas helping Walenda peel off his soft cast, and dragging him up into the bus as some of the other passengers were leaving. He remembered Jonas yelling that they were off duty EMS workers and they had to help the injured people. When asked why he hadn’t reported this before, the witness replied that nobody had asked.

“Jerry, I need to call you back”

“Sure Mike, I understand”.

Part 2

My office in Queens has a sweeping Manhattan view. I looked at the City skyline and tried to think it through. Jump ins. This is what I’m working for?

I thought about Jonas’ earlier case with me. He was a passenger in a car which was tapped from behind. I sent him to a medical mill, which he went to willingly. There happened to be two easy insurance companies, and I got him a $10,000 settlement in less than a year. He kept telling me what a great lawyer I was.

Yeah right. Opportunistic little leach. When Jonas later brought me Walenda, dealing with Jonas was annoying, but I could live with it. I loved that Walenda case. Not only did Walenda have a great case, I liked him. He worked in his Dad’s shoe store most days, and was taking college courses at night. A nice young guy who would eventually figure himself out.

His injury left him with a slight limp and a scar, but all in all, he had recovered well. He was quiet around me, which I figured was because his mouthpiece Jonas was always talking. But I had talked to Walenda alone, enough to get a read on him. He seemed OK, I thought. But I was sure of one thing: These two schemers had duped me.

I took a breath and let the magnitude of this sleaziness work on me. I wanted to feel it, to know THEM and everyone like them.

What did they talk about when I wasn’t with them?

Did they tell their friends about it?

How did they feel lying at their depositions?

How would they have felt doing it at trial?

Was it any harder for Walenda? Would he have felt guilty if they had pulled it off?

Jump ins!!! Had I represented other jump ins or phonies?

Greed and good injuries, and this is what I get. Holy shit, I’m just trying to make a living out here.

I closed my eyes and meditated. Nothing fancy, just thinking about nothing until my mind I was able to think logically, and without anger.

15 minutes later I called Pivinski and asked him to fax me proof of my clients’ scam: all his reports, photos, statements and documentation, Seventeen pages of evidence inched out of my fax machine. I read each page as it came out. I stacked them and set them aside, making a conscious effort to control myself.

I called Pivinski again. Had he told his co-defendants (the Jeep) what he had told me?

No, but eventually he’d probably have to. I asked if he could hold off a couple of days. He said “You know we have to withdraw our portion of the previous offer. You gonna try to settle with the Jeep? I think I would try, if I were you”, Jerry said. I replied that I didn’t know yet, but could he hold off a few days?

“OK – Two days"

Part 3

The next afternoon I called the lawyers for the Jeep. These are actually the in house lawyers for All Claim Insurance Company. Their clients are nameless, faceless numbers to them, since their client is really All Claim Insurance. Considering how close we were to a trial date, my call was not out of place.

This was Steve Melton’s file. Steve and I have a long history. He was my adversary on my first trial, the Angel Zapata case. Angel’s foot had been run over while standing on a curb. He was a construction worker who would never be able to work again. Money would not have changed that, but it sure was a righteous case and he sure needed the money.

Steve Melton represented the driver (for All Claim) and had half a million in coverage. Angel and I had turned down a $100,000 offer, rolled the dice and tried the case. Somehow, the jury came in with a verdict of $32,000, and it was as bad as losing. If Steve Melton felt like this was a win, he never acted like it. Angel never blamed me, but I blamed myself. Steve and I talked about it many times in the aftermath, and he always said “Its just one of those things with juries, things like that happen sometimes.”

It took a few years, but I came to accept what happened. Steve and I had settled and tried other cases over the years. Angel Zapata was never mentioned.

Now we were talking about Walenda and Jonas. Steve told me what his file write-up showed, that there were two eyewitnesses stating his Jeep had run the light. They assessed the liability to be mostly against their client. They had $2 million in coverage and 13 claims, which I already knew.

There had previously been a package offered to my clients of $85,000, with $70,000 offered by All Claim and $15,000 offered by Empire Bus. Of the $85,000, $75,000 was for Walenda and $10,000 for Jonas. I asked whether there was any further offer?

Steve said, “What do you have in mind?”

I said, “Here’s what I’ve got. My clients were sitting on the side of the bus where your Jeep hit. They had the best view of what happened and are adamant that the accident was 100% the Jeep’s fault. My clients also have this idea that if they go to trial and get a verdict against the bus company they would never be to get a job with the bus company or with the City.”

“That’s pretty stupid. Did you tell them it was stupid?” 

“Of course I did, but they don’t want me to pursue the claim with the bus company, they want me to resolve the case with YOU.”

Steve said “What do you think is going on?”

I said “I think they are desperate for dough, and they don’t want to wait for trial, or maybe they don’t want ME to try the case.”

“C’mon Mike, don’t even go there. Listen, if these dopes want to settle the case at a discount, I have no problem with that. Do you have something in mind?”

I thought for a moment and then said, “Yes. I am proposing $160,000, with $150,000 for Walenda and $10,000 for Jonas. This is all from you, nothing from the bus company. This is a pretty big discount on Walenda’s case, but the clients want to resolve the case and so do I.”

Steve said “Would that do it? $160K the way you said?”

“Yes”

“I have to make a call, but it should be fine. I’ll call you tomorrow”

I spent the night wondering whether Steve was going to call Jerry, and wondering what Jerry would say if he did.

He probably didn’t though, because Steve called the next morning and said “Settled for 160, split 150 and 10. Send me the releases and discontinuances”

Part 4

Right after we hung up I called Jonas. “Can you and Walter come in so we can talk in person?”

“What’s up Mr. Mike?”

“I’ll tell you when you’re here. Can you come in today? 2 o’clock, my office?”

“We’ll be there.”

When they arrived I was smiling. As usual, Jonas was animated, Walenda was sullen. They were both in their late 20's. Jonas about 5'7", Walenda about 6'2". Jonas with gray slacks and a tight black shirt and new shoes. Walenda in jeans, sneakers and a Knicks sweatshirt.

I told Jonas he was looking well, and asked what he’d been up to lately. “Still doing my little projects, making deals, busy busy, ya know.”

“How ‘bout you, Walter?”

“Not much.” He was looking down at the floor.

Jonas interrupted, “So, good news, Mr. Mike?”

“Well, we had a conference on the case, and the lawyer for the bus company told me some disturbing things, and now we have to talk about them.”

“What kind of things?” said Walter, surprising me.

I said “Why don’t you tell ME?”

Jonas stood up, “Listen man, what kind of shit is this? You’re our lawyer, don’t be playing games with us.” Walter was looking down.

“Walter, do you want to tell me?”

“No Mr. Mike.”

I then dropped 2 extra copies of Pivinski’s papers on the desk. Jonas picked them up and started reading. Walter was still looking down. Jonas finished reading and looked at me.

I looked at Walenda and said, “Walter, I want to know about the soccer game and Coney Island Hospital.”

He stared at the floor, so I continued.

“I never even knew you played soccer, I bet you were a good player.”

“I want to know how it felt taking off the soft cast.”

“I’ve been wondering, were you going to pay Jonas a commission for coming up with this plan?”

“Shut up, man.” from Jonas.

“Did Jonas visit you in the hospital after surgery?”

“Tell me about being an EMS worker.”

“Does your mother know how you really got hurt?”

“Walter, what exactly did Jonas say to you when you guys saw the bus crash? What were his exact words. I want to know what he said!!!”

Jonas stood up and said “We don’t have to listen to this”, and then Walter looked up and said, “Shut up Jonas.”

He looked right at me, and then back at Jonas. Jonas looked down. Then Walter said, “Jonas, I want the lawyer to advise me what to do.”

So I laid it out for him. That the bus company had them nailed bad, and it could turn into a criminal matter. The bus company had pulled their offer, but I was able get an offer of $160,000 from All Claim. It was good for two days, after which the bus company was going to call All Claim, and then the offer would be zero.

“Man, you must have pulled some shit on the Jeep. Lets do it.” said Jonas.

I stared at Jonas.

“That’s not all, is it?” said Walter.

“No.” I said. “You guys pulled a fraud on ME, but I still salvaged things, so one third as my fee doesn’t do it. I want half.”

“You son of a bitch.” said Jonas.

“Any more you advising us?” from Walter.

“Thank you, yes. From my half, which will be $80,000, I’m keeping $2500 to cover my expenses. The other $77,500 I’m giving to Angel Zapata.”

“Who’s that?” Said Walter.

“Someone who really needs the money, a client of mine whose foot got run over and he can’t work any more. I didn’t get him as much money as he deserved, and now he’s getting a gift.”

“What about the rest?” said Walter.

“I don’t know yet, Walter. You’re going to tell me. You’ll have $80,000 to work with. I’d like to see you get rid of Jonas for whatever you guys agree to. I suggest you give him $5000 for his troubles, and I will write it up that way, but if you change that I won’t question it. The money will all come in to my account, and I will pay the shares however you say."

I waited a moment, and continued, "I don’t want to spend a second more on this matter than I have to. Tomorrow you can come up at 2 o’clock and see the receptionist. A letter will be there for you to fill in the blanks and sign. I am coming back at 3 o’clock tomorrow. If the letter is filled out and signed, it’s a done deal and you’ll have money in 3 weeks. If either of you are here, or if the letter is not filled out and signed, I’m going to the DA”.

I handed them the letter, which read as follows:

I, Richard Jonas, hereby state that I was not injured in a bus accident on Kings Highway and 28th Street. I admit that I entered the bus after the accident. I hereby agree that rather than risk exposure of these facts, and rather than risk jeopardizing the claim of Walter Walenda, I am requesting that Mike Sender receive settlement proceeds on my behalf, and then make payments in accordance with instructions from Walter Walenda.

I, Walter Walenda, hereby state that rather than risk litigation expenses and the risks of trial, I am electing to settle my claims against the Jeep insured by All Claim Insurance Company and also discontinue my claims against Empire Bus Company. 

I, Walter Walenda, hereby agree to settle my case arising out of a bus accident on Kings Highway and 28th Street for the sum of $160,000, which has been offered to my lawyer Mike Sender. Out of this settlement I agree that $50,000 shall go to my lawyer Mike Sender. From my share of $110,000 I direct Mike Sender to pay the sum of $5000 to Richard Jonas, for payment in assisting me with personal needs during my recovery. I further direct Mike Sender to pay the sum of 30,000 to Angel Zapata to satisfy a previous personal debt I had to him. The net amount I will receive from the settlement proceeds will be $75,000.

_________________            ____________________ Richard Jonas Walter Walenda

They both read the letter. Then they both looked at me. I looked at Jonas, then at Walter.

Not another word was spoken. They ambled out of my office and closed the door.

When I came back to the office the next day a 3 PM, they had both signed.

Part 5 (Conclusion)

A month later I received the money ($160,000). As with any settlement it went into my escrow account. I worked hard to get the numbers right, and then wrote I wrote the following checks:

$ 2,500     - Mike Sender $ 5,000     - Richard Jonas $ 30,000 - Angel Zapata $ 47,500 - Angel Zapata $ 75,000 - Walter Walenda $160,000 - (Total)

I called Angel Zapata and told him I had something to discuss with him, preferably in person. We set up a lunch meeting at the Flagship Diner the next day. Before we ordered I told him that I always felt bad about what happened in his case, and I know how hard it was for him now. He said “You did your best, the jury was stupid”.

I said “Listen, for the last 10 years I’ve been thinking about how some day I would help you out in some way. And now, I settled the biggest case I ever had and out of the money I received I want to do something for you. I have two checks here for you, for a total of $77,500. I want you to have them and I only have one condition: Don’t ask me about the case I settled.”

Angel stared at me, then sniffled a little and said, “Mr. Mike, I am going to be moving to Columbia, where at least my disability check will let me live. I can also help out my sister with her kids. This money will really help me.”

I looked at him, waiting for him to say more. 

He said “I think I’ll get a burger and some fries”.

I said “Sounds good, I’ll get the same, where’s the waiter?”

We then brought each other up to date on our families, ate our lunch and had coffee. I handed him the checks and we said good-bye. 

I went back to my office and looked out at Manhattan. I had decided on my future as a negligence lawyer. I’d be jumping out.