By Barry Seidel
(A Mike Sender story)
“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, and he’d first said he was calling about my Walenda and Jonas cases. I knew them well. My two clients were Walter Walenda and Richard Jonas, passengers on a bus which had been in a nasty intersection collision with a Jeep. It was easily the best case in my office. Walenda’s case was especially good. A passenger, so no negligence on his part, and a badly broken leg with surgery, a really good injury. After 18 years in practice I’d just started referring to “good” injuries. Guess I was finally becoming a real negligence lawyer. The Jonas case wasn’t so 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 me Walenda, 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, with interminable questions about the accident and the injuries. I had also deposed both drivers, and sat there while the lawyers for six other injured parties deposed them. There had also been 12 motions made in this case. One of them was on Jonas’ case, a motion to dismiss based on the marginal nature of his injuries. I fought the motion hard, and barely beat it. Then there were the motions to consolidate, since there were eleven separate lawsuits. You’d think the lawyers could just agree to one trial, 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. My one third contingency fee on Walenda’s case was gonna be a nice one. We had already turned down an offer of $45,000, I thought the case would ultimately go for $150,000. 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.
“You really don’t know?” Jerry 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.” And he let loose a big belly laugh, which continued until evolving into a coughing fit.
While he coughed, I tried to compose myself. Could it be? But what should I say, stay cool, stay calm, find out what they have, don’t get dragged into trouble, stay cool, figure out what to do.
“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 and put him in a soft cast, gave him some demerol and told him to come back the next day for the surgeon to evaluate him. After he and Jonas left Coney Island, they saw this accident and jumped in, but I guess Walenda limped in.” More laughing and coughing, then Jerry continued, “Lemme tell you the best part, which is how we found out about it.”
“Couple of months ago one of the other plaintiffs was in here with his attorney for a settlement conference, and when he didn’t like our offer, he asked if we’d used up all our money paying the knucklehead who dragged his friend through the back door of the bus. 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 still needed more details, and Jerry told me everything. When the jump in question came to light, the company hired an outside investigator and really dug into it. They thought it was strange that Walenda could actually have a freshly broken leg. “Most jump ins have bullshit injuries, like Jonas.” Jerry said. 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. Jerry had 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 got a court order and 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 one of the witnesses to the accident, who had been listed on the police report. He had previously told these same 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. When 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”.
My office in Queens has a sweeping view of Manhattan. I looked at the City skyline and tried to think it through. Jump ins. This is what I’m working for? I thought about the first case Jonas had, the one before this one. He was a passenger in a car which was tapped from behind. There happened to be two easy insurance companies, and he willingly went to the medical mill I sent him to. I got him a $7500 settlement in six months and he kept telling me what a great lawyer I was. Yeah right. Opportunistic little leach. When Jonas had later brought me Walenda, dealing with Jonas was offensive, but acceptable. Not only did Walenda have a great case, I liked him. He worked off the books in his Dad’s store at night and had taken a few college courses. A young guy who would eventually figure himself out. His injury had left him with a slight limp and a scar, but all in all, he had recovered well. He was quiet around me because his mouthpiece Jonas was always talking. But I had talked to Walenda alone, enough to get a read on him, and he was OK, I thought. Now I was only sure of one thing. These two schemers had duped ME.
I took a deep breath and let the full magnitude of this sleaziness work on me. I wanted to feel it, wanted 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 they have felt guilty if they had pulled it off? Not Jonas, no. Walenda? Maybe. Or maybe I just don’t know anything. Had I represented other jump ins or phonies? I had put myself in this position. Greed and good injuries, and this is what I get. Damn, 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 was clear and I was able to think without anger.
I called Pivinski and asked him to fax me all his reports and documentation, the proof of my clients’ scam. 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. Barely succeeding.
I called Pivinski again. Had he told his co-defendants (the Jeep) what he had told me? No, but eventually he was going to 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? He gave me two days.
Next, 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 one of my first trials, 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 this was a righteous case. Steve Melton represented the driver (for All Claim) and had half a million in coverage. Angel and I had turned down a $75,000 offer, rolled the dice and tried the case. Somehow, the jury came in with a verdict of $24,000, 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 had 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 eventually accepted it. We had settled and tried other cases in the meantime, and Angel Zapata was never mentioned, but he was always there.
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 $1 million in coverage, which I already knew. There had previously been a package offered to my clients of $45,000, with $37,500 offered by All Claim and $7500 offered by Empire Bus. Of the $45,000, $40,000 was for Walenda and $5000 for Jonas. I asked whether there was any further offer, if we could close it out today? Steve said, “What do you have in mind?” I said, “Look, here’s what I’ve got. Walenda has a shot to get a job with the bus company, but he’s afraid if the case goes forward, they’ll hold it against him. Could you put another $7500 on Walenda, bring us to a total of $45,000, and I’ll discontinue against Empire Bus. $45,000 is a good deal for you guys on an injury like this” He asked, “Will that close it?” I said “Yeah, it would.” He said, “Lets do it.”
Then, 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. Both in their late 20's, Jonas about 5'7", Walenda about 6'2". Jonas with gray slacks and a tight black shirt, 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.” 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 we have to talk about them.”
“What kind of things?” Walter surprised me.
“Why don’t you tell me?”, I said.
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?”
So I 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 said, “Walter, I want to know about the soccer game and Coney Island Hospital.”
“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.”
“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.”
“Were you going to tell me about it afterwards?”
“Does your mother know how you really got hurt?”
“Walter, what exactly did Jonas say to you when you 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 still had an offer of $45,000
from All Claim. It was good for two days, after which the bus company was going to All Claim,
and then the offer would be zero.
“So lets do it.” said 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 $22,500, I’m keeping $2500 to cover my expenses. The other $20,000 I’m giving to Angel Zapata.”
“Who’s that?” Said Walter.
“Someone who really needs the money, a client of mine who’s 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 $22,500 to work with. I’d like to see you get rid of Jonas for $2500, and I am advising you to do that. As far as the other $20,000, tell me what you think is right. I won’t question it. The money will all come in to my account, and I will pay your share wherever and to whomever you say. If you say ‘give it to me’, you’ll get it, no questions asked. If tonight Jonas convinces you that you should be 50/50 partners, I’ll do it that way too. 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 police”.
Then I handed them the letter:
Richard Jonas hereby states that he did not sustain any injuries in a bus accident on Kings Highway and 28th Street. Rather than risk litigation expenses I am electing to discontinue my portion of the lawsuit. Walter Walenda hereby agrees to settle his case arising out of a bus accident on Kings Highway and 28th Street for the sum of $45,000. Out of this settlement I agree that $15,000 shall go to my lawyer Mike Sender. From my share of $30,000 I direct Mike Sender to pay the sum of $7500 to Angel Zapata to satisfy a previous debt and $__________ to Richard Jonas to satisfy my personal debt to him. I direct that the remainder of my share be paid as follows:_____________________________________________________________
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. I looked out at Manhattan. A crystal clear day. I had decided on my future as a negligence lawyer. I’d be jumping out.