Bob had a can’t-lose case, on a contingency-fee arrangement to boot. He
hung tough at a mediation session. Although the mediation did not result
in a settlement, Bob was able to wring, from one of the two defendants anyway, a
“high-low agreement.” Under the agreement, Bob’s client Rose and defendant
“1” narrowed the range of Rose’s recoverable damages against defendant “1” by
establishing the “high” and “low” limits of any jury award.
Bob and defendant “1” concluded that they could not keep this agreement from
the trial judge. They therefore informed her of their agreement:
(a) At the trial, with respect to defendant “1” only, Rose shall be
entitled to a judgment in a minimum amount of $300,000 (the “Low Award”) and a
maximum amount of $700,000 (the “High Award”). Neither Rose nor defendant
“1” shall seek any post-trial relief or file any appeal with respect to the
jury’s verdict regarding Rose’s claims against defendant “1.”
(b) If the jury denies Rose’s claim against defendant “1” or
awards Rose an amount against defendant “1” that is less than the amount of the
Low Award, judgment then shall be entered in favor of Rose and against defendant
“1” in the amount of the Low Award.
(c) If the jury verdict is in favor of Rose and against defendant
“1” in an amount greater than the amount of the High Award, judgment then shall
be entered in favor of Rose and against defendant “1” in the amount of the High
Award.
(d) If the amount of the jury verdict in favor of Rose and against
defendant “1” is between the amount of the Low Award and the amount of the High
Award, judgment then shall be entered in favor of Rose and against defendant “1”
in the amount of the jury verdict.
(e) This high-low agreement shall not be disclosed to defendant
“2.”
The high-low agreement worked like a charm. The jury verdict was in
favor of Rose. It was against defendant “1” for $200,000 and against
defendant “2” for $800,000. Rose and Bob are now laughing all the way to
the bank; defendant “1” will have to pay the “low” of $300,000 (even
though the jury awarded only $200,000 against this defendant); and, at least by
Bob’s calculation, defendant “2” will have to pay $800,000. Bob turned a
million dollar verdict into a million dollar plus award.
At least until Bob read his morning mail. The first part of defendant
“2”’s post-trial motion included all the usual stuff – the verdict was “against
the weight of the evidence”; defendant “2” was “surprised” by Rose’s expert’s
damage calculations; the trial judge “erred in admitting” some post-accident
photographs. Bob’s confidence grew as he read the motion papers. He
knew that defendant “2” could not prevail on any of these post-trial boilerplate
arguments.
Bob then turned to the next section of the motion papers. There,
defendant “2” argued that the trial court should set aside the verdict – the
entire verdict. Reason: defendant “2” and the jury were not informed of
the high-low agreement and this ethical lapse tainted the trial. Defendant
“2” acknowledged that it could not prove any collusion, at least right now,
between Rose and defendant “1.” But defendant “2” argued that it had been
prejudiced because concealing the high-low agreement took away its right to
cross examine Rose or defendant “1”’s witnesses regarding the high-low agreement
or any resulting bias or prejudice. Defendant “2”’s conclusion:
Plaintiff had an undisclosed interest in minimizing the amount of the
verdict against defendant “1” and in maximizing the amount of the verdict
against defendant “2.” The conclusion is inescapable that plaintiff,
consciously or unconsciously, shaded her trial testimony in favor of defendant
“1” and against defendant “2.” To make matters worse, defendant “2” was
kept in the dark and, therefore, did not have the opportunity to question
plaintiff with respect to her undisclosed bias and prejudice. The deceived
jurors thereby decided a dispute that was other than what it appeared to
be.
And that was only point “1” of the post-trial motion. Point 2 continued
the assault on the “integrity and distortion of the trial process” and “the
ethical lapse in connection with the ex parte discussion with the trial
judge regarding the high-low agreement.” Point 2 concluded that, even if
the Court did not throw out the verdict because of the nondisclosure, the Court
nevertheless should put everything on hold and give defendant “2” the
opportunity to take post-trial discovery to find out whether (a) there was
collusion between plaintiff and defendant “1”; and/or (b) plaintiff consciously
shaded her testimony to take full advantage of the “high-low” agreement.
Absent such discovery, defendant “2” contended, there was no way to determine
whether “the jury decided a sham case.”
Thank goodness I have a column due in two months so that I have the time to
figure out this morass!
