Massachusetts Lawyers Weekly
Copyright 2007 Dolan Media Newswires
NEWTON, Mass. — Disproving the old adage that three’s a crowd, a team of seven lawyers from several Boston plaintiffs’ firms recently secured an $8.4 million settlement in a case involving a deadly office-building fire in Newton.
And while certainly pleased with the end result, the group says the six-year-long effort was not always an easy one. When the wrongful-death case moved to mediation, for example, the team had to quickly disband so that the lawyers could return to representing their individual clients.
“We’ve got individual clients who are competing for the few dollars that the defendants may put into the pot, so we had to revert back to our role as advocates for our clients,” explained one of the plaintiffs’ attorneys, Charles W. Barrett Jr. of the law firm of Esdaile, Barrett & Esdaile. “Under the pressure of a two-day negotiation, that did not go well at all for anybody. “
The fire in 2000 claimed the lives of five occupants trapped in the building and a sixth victim who later died of smoke inhalation. The clients, Barrett said, wondered why some of the deceased were being valued more than others.
“That was a real test of our collegiality - and our ability to trust each other from a legal standpoint going forward,” he noted.
Although the mediation would fail, settlement talks on the eve of trial - prodded by a new judge in the case - proved successful. The subsequent award, according to the plaintiffs’ lawyers, is a good example of the results that can be achieved when multiple firms team up on a single case.
Safety in numbers
Attorneys on both sides estimate that up to 75 depositions were taken over the course of the case. There were also numerous motions and hearings.
“We’d have regular meetings to discuss issues relating to the case, and we earmarked early on who would be responsible for what,” noted Neil Sugarman of the plaintiffs’ firm Sugarman & Sugarman. “Even those not directly responsible for writing a brief or arguing a motion would make suggestions. “
Though Sugarman said the group did not necessarily see eye to eye on everything, “there was never a disagreement that we didn’t ultimately reach an agreement on to maintain a solid front. “
He added: “When we had a disagreement, we’d have a meeting and earmark the differences. We’d agree to go back and do research or think about it, and on every occasion there was unanimity to what we’d do. “
The plaintiffs’ lawyers also enforced time standards on the team.
“If someone was responsible for turning out a brief, and it was due [to the court] May 10, they’d have to be ready by May 2 so they could submit it to everyone else,” said Sugarman.
When it became clear that the judge wanted the matter to settle, Sugarman said each attorney had to get his or her client to sign off on the formula that was ultimately used to settle the case.
While the case was pending, Barrett found himself competing with plaintiffs’ lawyer Lisa G. Arrowood for the business of another client in a different case.
“And it had no impact whatsoever on our collaboration here,” he said. “In this hyper-competitive business, we need this kind of civility more than ever. Every [plaintiffs’ attorney] was satisfied with the resolution; no one felt like they got the short end of the stick. “
Arrowood, a lawyer at Todd & Weld, said a prime benefit of the collaboration was the sheer manpower it offered.
“With [seven] attorneys, we could have someone at every deposition,” she said. “We all kept turns keeping the pressure on. “
That pressure ultimately paid off at the final settlement talks when the plaintiffs succeeded in producing notes taken by the defendants’ investigator, which substantially strengthened the plaintiffs’ case, Arrowood said.
The plaintiffs also benefited because the three firms shared the cost of fronting the expenses incurred in the case, she noted.
“It’s something any plaintiffs’ lawyers should discuss with their clients,” she advised. “Sometimes clients are resistant to that type of collaboration because they might be concerned ‘if my lawyer will be thinking about me. ‘“
Arrowood said clients need to understand “they are going to be footing the bill for experts, depositions, demonstrative evidence. To get two or three others to chip in is very important - not to mention the sharing of the work. It would have been very hard for a busy firm’s lawyers to keep up with all the work being thrown at them by the three very good defense lawyers in this case. “
To each his own
Because the case involved several unusual legal issues, the plaintiffs’ attorneys decided to split up the tasks involved.
Neil and Stephen K. Sugarman and G. Thomas Pauling, all of Sugarman & Sugarman, investigated the building’s construction history and whether any code violations played a role in the blaze or the inability of the plaintiffs’ decedents to escape.
“Under a rare exception in Massachusetts law, if you can prove a fire code violation was a cause or contributed to a death, then you have a breach of warranty,” explained Neil Sugarman.
Meanwhile, Arrowood and Todd & Weld’s Jeffrey N. Catalano handled expert investigations into the cause and origin of the fire. And Barrett and his colleague Jon M. Jacobs took care of any issues involving how the fire spread and how the victims became trapped. They also worked on the real estate attachment needed to secure the lien for potential damages.
The case was made more complex by several other matters that arose. For example, when the defendant insurer faced solvency issues, the policy was placed into an escrow account. A side battle ensued over whether the defendant could access that income.
Because the building’s remains offered limited evidence, the two sides also sparred over how long the victims experienced conscious pain and suffering before their demise.
Further, there was a dispute as to whether renovations to the building had created an open space that could have enhanced the fire, and if the addition of a restaurant on the building’s first floor changed whether the building was grandfathered into older building codes.
In addition to the building’s owner and its management, an alarm company that had been contracted to install a fire alarm was also named as a defendant. The alarm was never installed due to a payment dispute, a fact that the local fire department was not made aware of, according to the plaintiffs.
Collegiality on all sides
The defendant landlord was represented by Thomas F. Healy of Wellesley. He said the defense also benefited from the collaboration of attorneys from multiple firms.
“We did have a certain advantage from four experienced lawyers,” he said. “There was some fine lawyering on both sides. “
With the high number of attorneys on both sides, Healy said communication was a constant challenge.
“You always want to make sure that people are saying and listening to the same thing,” he said. “One way of doing that is reducing everything to writing, but that doesn’t allow for give and take and the flow of information. “
As settlement talks progressed, the defense team also faced the challenge of perceiving different risks to going to trial, based on the facts particular to their clients.
“All the defense lawyers had different views of their clients’ [potential] liability,” Healy said. “That was an issue, but it wasn’t an issue that prevented meaningful cooperation among the defense attorneys. “
He added that for a case that involved “this degree of damage and drama, I talked to lawyers on both sides quite collegially. “
In working with other firms, always have a game plan
Attorneys who have experience working alongside lawyers from other firms agree that one should always have a game plan for settling the inevitable disagreements over strategy that arise during the course of a complex case.
Jon M. Jacobs, one of seven plaintiffs’ attorneys in the recently settled case involving an office fire in Newton, said he jokingly referred to his firm as “Switzerland” because it could stay neutral and resolve issues when the other lawyers in the case were “at loggerheads. “
“It often makes sense to have an intermediary,” he observed.
North Reading lawyer David J. Hoey agrees that pre-determining how differences of opinion will be resolved helps guarantee a smooth collaboration.
“Where the two lawyers disagree on strategy, you need a neutral tie-breaker - a third lawyer or mediator who will help you work out the issue,” he said.
That same plan-ahead philosophy should apply to workload distribution and fee agreements, added Hoey.
“Everything should be reduced to writing: what the fee will be, who will absorb expenses, who will be the main communicator with the client, who will be the main communicator with the court,” Hoey recommended. “It has to be reduced to writing, because if there’s a bad outcome on the case, you might lose a friendship over it. Even if you’re the best of friends, you can’t just assume that the other attorney understands their role and you understand your role. It is also a business relationship. “
Hoey said he pre-screens collaborating attorneys to make sure they share his values and work ethic.
If a case is likely to be tried, Hoey considers how another attorney would complement him in front of a jury. Male-female teams, he noted, can have a positive impact.
Hoey recently collaborated with Needham lawyer Steven H. Schafer on a case that resulted in a $285,000 jury verdict for a nursing-home patient burned by a radiator near her bed.
Schafer, who also specializes in nursing-home cases, agreed that it is important to find out in advance if a potential collaborator shares the same approach.
“You have to be certain that the other lawyer has the same standards as far as the completeness of discovery, taking the necessary depositions, hiring the necessary experts, and putting together the necessary demonstrative evidence at trial,” he said. “It’s especially important when you are working on a contingency basis, as opposed to being paid by the hour, where there’s an incentive to do more, not less. “