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.