Aggravating Failure and a Brilliant Life

Last week I participated in an expansive, Zoom (which was anything but…) mediation that would have hopefully resolved a festering, complex case involving too many lawyers and adjusters and a set of facts that felt as though our collective hair was on fire.

For the uninitiated, a mediation is when by court order or agreement, all the parties to a controversy or dispute, bring their problem to a board certified neutral-usually a lawyer or retired judge-to see if by pushing and pulling and probing and prodding, whatever the Gordian Knot is can be unraveled and the differences settled in compromise and good faith. These matters in tort law are almost always about money and the wining formula for success is basically, “You get a little less, I pay a little more, we all grumble a bit but not too loudly and everyone goes home and the matter is concluded.”

It is a good process, efficient with time and expense, unburdens the courts and as a nice aside, is a fine accelerator of civility among lawyers.

Twenty years ago, its use was minimal. It has now burgeoned and with the Court’s appreciation of its usefulness and subsequently, the application of the Court’s mandates and orders to mediate, it is roundly used as a primary tool to expedite conflict resolutions. It usually works out just fine.

But…Not so fast my fine friend. In the matter to be discussed herein, the proverbial wet blanket smothered the process early and often and we all went home cranky and grumpy. We a’born’d a failure.

First the atmospherics. It was a cold, windy rainy day. No sunshine to be had from any nook or cranny. ‘Dismal' would be Pollyanna’s best description of what light from yon window breaks.

And then there is our omnipresent companion COVID. In these days of the pandemic, all the participants represent remotely and that takes a lot of the human element out, minimizes the ability and opportunity to discuss and reason up close and personally. There is that ‘distance’. Additionally, COVID has sucked all sense of urgency out of the pursuit of settlement. There has not been a jury trial in Charleston County in over nine months and we all expect it will be more than a year before such proceedings resume.

And then and thus the backlog of cases is enormous and growing. Why push to get a matter resolved if there is no imminent threat of live fire before a judge and jury…the impetus for such is languishing at best. And this plays best for the insurance companies as their money is not threatened.

Now, add to this frustrating background, these following facts, broadly stated:

A truck rear ended another truck in North Carolina. The driver of the offending truck lives in Charleston, S.C. The driver-victim lives in Rhode Island and was driving for a Massachusetts based company and as this was an on the job injury matter, Massachusetts workmen’s compensation law applied. As this was a third-party claim-the injury of course occurred while our client was on the job but was caused by someone not part of his employment status. The Massachusetts work comp paid out almost a quarter of a million dollars in benefits to our injured driver, the great majority of it in lost wages over almost two years so there was a huge lien that needed to be wrestled with. The medical bills were only about twenty-five thousand and the defense claimed our guy really wasn’t hurt that bad and called him a malingerer. Oh, our client, nice fellow that he is, speaks at best broken south of the border english. Looks messy doesn’t it?

Now, who were the others participating?

Our mediator from here in Charleston. A well-respected, very skilled guy. A very calm, low-key, great sense of humor guy. He was our shepherd, our guide dog.

Me, stuck in an office on a screen over in West Ashley.

My lead lawyer, sick with COVID out in his house in Hollywood.

Our referring counsel, very smart on workmen’s comp matters, cooped up in his office in Raleigh.

A nice lady representing the quarter of a million dollar lien holder, floating about somewhere in Ohio.

An insurance adjuster, hard nosed guy, bolted to his desk and his mind in Pittsburg.

And the lead defense lawyer from Charleston, office down near the aquarium in a larger form, a younger fellow with an attitude and one of those ‘I’m gonna earn my spurs’ guys. Might note, too, it appeared this fellow had not bothered to shave for the past few days and was distractedly cranky.

Uh-Oh…

We started at 9:30 AM. Our mediator, always reasoned and enthusiastic had a furrowed brow from the beginning. I wished I had brought a good book to read and more newspapers. The money was dribbled out in small increments, miserly at best.

People pretty much stopped talking by 1 p.m. A game of 5,000 here and 10,000 there, moves ensued.And then it became obvious that we were just not going to get there. (I am always hopeful at the proceedings but in retrospect, I could have told them all that by 10 a.m…such are the instincts of an old lion…)

Our mediator called an impasse at 2:30, called the proceedings to a halt. There are no plans to resume. Maybe there will be somewhere down the road but I am not sanguine about that. I’m hoping we get a trial setting within the next nine months. This, by the way, is one of but two cases I have left.

I am disappointed but too, know this is one of those times in this career I have been in now for over forty-five years. This was not a success. And I did have to laugh, albeit somewhat ruefully when I said to everyone and no one in particular, “Looks like I’m ready to be rid of the law but she still got me and holding on tight.” As my beloved law professor told us repeatedly (and we listened not) so long ago,

“The Law is a jealous mistress and she will not let go.”

And it was during this mediation that the news came across the wire that the great Hank Aaron had died. I felt an instant sucker punch to my gut. Hank Aaron dead? Impossible! He was supposed to be immortal. He was my greatest hero in sports and stood with Sir Winston Churchill at the top of a very high mountain.

Here is what I wrote to one of my best friends the next day.

I began following him when I was five.

Had scrapbooks and scrapbooks on him all the way through his career. Sadly, they were lost to Hurricane Hugo :(

When I married my first wife, Rachel, back in ’73, we wedding tripped in San Francisco and saw him and the Braves play the SF Giants in the cold of soggy, wind-blown, trash-blown Candlestick Park.

That night the Braves won 12-8. The Hammer had 2 doubles and a triple. Bobby Bonds, Barry’s Daddy, had a homer a double and a triple.

I saw him play in Atlanta 4-5 times-was always a thrill.

Saw him play his last game as a Brave in Atlanta on October 2, 1974. Cut two days of law school classes (I was not a very good law student anyway…) to make the pilgrimage. He homered in his last at bat-a screamer line drive down the left field line-a rifle shot against the Reds. There were maybe 7-8 thousand in attendance, it was cold, there was trash blowing about on the field. But the hammer made it happen.

It was often said that trying to sneak a fast ball past Henry Aaron was like trying to sneak the rising sun past the rooster,

When he hit 715 against the Dodgers and broke the Babe’s record, I was at home watching it on television. Of course, I went happily nuts!

Al Downing on the mound, Steve Yeager behind the plate, 2-1 count, Milo Hamilton on the call. Tom House, a Braves’ relief pitcher caught the dinger in the bullpen in left center field.

A week later Sports Illustrated came out with a huge color poster of the moment, the swing and the ball in flight.

I sent it to Mr. Aaron up in Milwaukee and he kindly autographed it and sent it back. I had it framed and it now, all these years later, hangs prominently in my son Doug’s home.

Years later he came to Charleston and was the keynote speaker at the Charleston Hot Stove League annual luncheon at the Galliard Auditorium.

My friend and the mother of my children, Andrea, and I pulled all the kids out of school took them to see him, to hear him speak. The place was packed to the gills.

He was great!

And once he was finished speaking, adults and kids (my crowd included) formed a very long line for autographs and handshakes and yes, even some hugs, and he stayed until everyone had had their opportunity. After we went through the line, we stayed and watched. We were in awe.

He was as genuinely nice as anyone I have ever seen.

And if he wasn’t the all-time best at the game, I’ll be damned if I know who is. His numbers do not lie.

When the news reached us, Andrea and my daughter, CC, texted me they were in tears. I know I was.

He was the personification of Greatness, both as an athlete and as a person.

Drop The Mic. Game Over.