Re: The Sex.Com Chronicles, by Charles Carreon
Posted: Fri Jun 13, 2014 2:05 am
THANK GOD, ANOTHER ENEMY!
I was delighted to report to my new lawyer that I had landed a job. For forty percent of my fifteen percent, I had managed to rope an old UCLA pal, Jim DeSimone, into representing me in my lawsuit against Gary. Jim had not been a close friend of mine in law school, but I respected his integrity. He had been one of the few law students to join the protests that forced the Regents of the University of California to eliminate South African investments from its securities portfolio, as part of the international movement to free Nelson Mandela and end apartheid. After law school, Jim went to work for Centro Legal, the legal aid clinic where he’d volunteered during law school. After a few years doing public service, he partnered with Ben Schonbrun to practice civil rights and employment law from Ben’s beachfront office on the Venice boardwalk. Jim and I got to know each other better after he took that job, because I did the same type of work at Mazursky, Schwartz & Angelo. We had run into each other at bar events and the courthouse, and exchanged the occasional war story.
I actually hadn’t even thought of calling Jim until one day when I saw a news article on the Internet about a case that Mike Seplow, a younger lawyer at the firm, had recently settled for a couple million dollars on behalf of a homeless man who was picked up on the streets of LA, misidentified as a New York felon, shipped to New York, and allowed to rot in a mental hospital for two years before the case of mistaken identity was sorted out. I was working on a similar case, that of Roger Benson, who suffered a long stint in a California jail because Oregon misidentified him as a felon. Once I was on the phone talking to Jim’s partner Mike Seplow, I realized he was a very intelligent lawyer, and it occurred to me that Jim’s firm might be interested in taking on my own case.
The case was a tough sell, but Jim is ambitious, and had the employment lawyer’s skill of mastering the scores of essential facts necessary understand the case. To some extent, he was seduced by the sleazy glamour of the story and the intellectual sophistication required to master it. Jim was the number two partner at Schonbrun, DeSimone, Harris, Seplow & Hoffman, and so could put the weight of a California firm, and an agreed-upon expense budget, to work on my case. I took Bob Kuenzel, who had served as an excellent placeholder, off the pleadings, and put Jim’s firm on.
As was apparent to Jim when he signed on, in my haste to file suit against Gary, I had sped right past an important rule of California lawyer law. Before you can sue your client, you have to ask them if they’d like to engage in non-binding arbitration. If they say no, you can sue them. If they say yes, you have to arbitrate. I knew this, but I also knew there was a more general rule that in a lawsuit based on a written contract, you can sue to attach funds in a defendant’s bank account, even if you are supposed to arbitrate the dispute. I had been eager to file a motion for attachment, because I had a written contract, and there was about $45,000 per month that I was entitled to under that agreement. I had written up most of the motion, supported it with all of my evidence, and just needed to have a lawyer finish it up and file it, and Jim did file it. But my strategy produced no benefit. Richard Idell, stepping in quickly to take advantage of my mistake, moved to stay my lawsuit until the matter had been arbitrated by the State Bar. Judge Whyte put the lawsuit on hold and sent us to arbitration. Not surprisingly, he denied the motion for attachment as well. I was beginning to understand the meaning of the old saying that some things can be accomplished quickly only if you don’t try to rush them.
Jim prepared for the arbitration diligently, poring over binders of documents. He read my October 4, 1999 agreement with Gary repeatedly, and understood its provisions thoroughly. As a result, he repeatedly lamented a minor omission that was to have a huge influence on our joint expectations. The agreement failed to comply with a California statute that requires contingent fee agreements to explicitly state that the percentage fee is “negotiated, and not set by law.” Obviously, the October 4th agreement was extensively negotiated, incorporating as it did all manner of clever provisions that Gary and I had discussed in detail, including the novel financing-by-going-public mechanism. Gary himself had proposed the 15% fee, so it was particularly galling that Idell had found this Achilles heel in the agreement. And the consequence of my error was fatal, because any agreement lacking the essential language was unenforceable, illegitimate, and gave me no rights. A minor error in the fee agreement threatened to undo all my plans.
Of course, even if the agreement was unenforceable, I was still entitled to the reasonable value of my services. The reasonable value of my services would be calculated based on the skill I showed in getting the result, the amount of benefit I’d brought to my client, and the expected fee that other lawyers would charge for getting that result. That left some room for hope, even if my written agreement proved worthless. The way I calculated it, I’d helped Gary recover the world’s most valuable domain name, worth at least eight-million dollars a year. I’d helped Gary acquire the three-million dollar Rancho Santa Fe mansion. I’d shown considerable skill in saving the case from dismissal at the last moment, and prevented it from ever being dismissed again. I had rehabilitated Gary’s image from wannabe pornographer to white-hat hero. I had been sued for $50 Million and shrugged it off. I had procured the services of State Farm to stave off Cohen’s lawsuits. I helped prove Gary’s case so thoroughly that Judge Ware thought a trial unnecessary.
I had also devised the plan to have Cohen arrested, an achievement that may seem minor until you realize that civil lawyers never arrest the opposing party. Only a prosecutor can request the court to issue an arrest warrant, and in those pre-Patriot Act days, the prosecutor still had to allege that the defendant had committed a crime. Ignoring this obstacle, I devised the answer -- we would bait Cohen into doing the only thing that could get him arrested -- defying a court order to show up in front of Judge Ware. To get a warrant issued for Cohen’s arrest, I told Gary, we merely had to convict Cohen of a small misdemeanor called “failure to appear.” When a judge orders a person to show up in court, and they fail to appear, he issues a bench warrant. It’s automatic -- the easiest warrant to get. Judge Ware had manifested an interest in Cohen’s whereabouts during the November 27th hearing, so it was easy to get him to order Cohen to appear, which had the foreseeable result of Cohen failing to appear and Judge Ware’s issuing a warrant for his arrest. By the time I sat down at the arbitration table on January 22, 2002, Cohen had been a fugitive from justice for nearly a year, cementing Gary’s victory unshakeably.
Cyrano de Bergerac would have understood. Cyrano was an incomparable swordsman who looked for trouble wherever he could honorably find it, and found it everywhere. Like Cyrano, I had become rather bitter about my fate. I felt I’d won the prize, delivered Sex.Com to Gary like we’d always planned, and now I got to watch other lawyers consume my share of the pie in exchange for cutting me out of the deal. Cyrano was bitter because he won the love of his cousin Roxanne only to confer her affections upon his fellow Musketeer, Christian. Like Cyrano, who couldn’t reveal the entire truth of the affair to either Christian or Roxanne, I too was bound by duties of confidentiality to refrain from revealing secrets that might have given me leverage against Gary.
Despite or because of his repulsive physical appearance, Cyrano moved from conflict to conflict, cutting a path with sword and poetry through a world peopled by fools, knaves and lackeys. In the aftermath of my split with Gary, I too had a sufficient supply of enemies, most of whom had at least been nominal allies. Foremost among my former allies was Richard Idell, the San Francisco lawyer who represented the famously cutthroat rock impresario Bill Graham, presumably in the delicate business of cutting the legs off drugged-out entertainers who had overstayed their fifteen minutes of fame. Graham was so famously cruel that even today, twelve years after his death in a 1991 helicopter crash, you get a lot of hits if you Google “Bill Graham” and “asshole.” I am sure he found his ideological mate in Richard Idell, whose frigid soul pops open only long enough to reveal the kryptonite, nitroglycerine, and arsenic that substitute for his heart, lungs and liver.
Idell and I first met in his office on Bush Street at the greasy edge of Chinatown. These days he’s got a better address on California Street, but remains well known in San Francisco for his bulldog litigation style. Physically and temperamentally, Idell reminds me of a wolverine. He’s barrel-waisted, neckless with a short jaw line that operates a pair of lips that have never smiled in my presence, but sneer even better than Cohen’s. A graduate of Golden Gate University School of Law, he had the grit and spit of a self-made man.
The Wagstaffe team had got the memo at last, and were singing a completely different tune at the arbitration than had become their habit during the heady months following the big win. For a while, in a dim prehistory that none of the Wagstaffe team could ever recollect, there had been a wild, crazy moment when they all believed that Charles Carreon really was a fifteen percent owner of Sex.Com. That’s how delusive it got. Sanity had been restored however, and Wagstaffe’s firm had liens for hundreds of thousands of dollars in fees on Gary’s Rancho Santa Fe house. There was work in abundance as Kerr & Wagstaffe pursued every avenue of collection against Cohen, and in general satisfied Gary’s desire to pursue a policy of armed strength against all comers.
Pam Urueta had been enlisted as a sapper to undermine my character. It seemed she had recovered a memory that she had once heard me say I was burned out, and didn’t want to try the case. I snapped at her in the waiting room, and was forced to apologize and make some evidentiary concession, or it would be reported that I had assaulted her with profanity. Poor Jim was humiliated by my out-of-control antics, and gave me a lecture in the bathroom. It was really kind of funny, because he went into this whole passionate Italian advocate routine that was straight out of TV. I wondered how many of those routines I’d developed for my own repertoire of client-control mechanisms.
I was learning once again a painful lesson in litigation. Until you’ve been there, you have no idea what it will be like. I thought my achievements were indisputable. Unfortunately for me, there is no job so well done that it cannot be improved upon in retrospect by a team of lawyers, and Wagstaffe did a fabulous job of dissing me with affectionate recollections, as if I’d been Gary’s handler, a wild guy useful for soaking up Gary’s wilder enthusiasms, given to taking a boatload of unnecessary discovery, and unfortunately, responsible for a couple of acts of serious malpractice.
Malpractice? Yes, malpractice of the high-dollar amount kind. Alas, it turned out, once Gary got to running down all the bankers with subpoenas, that on November 27th,, Cohen had transferred $1.2 Million out of the Wells Fargo Anaheim Hills Branch, in violation of the orders that I faxed to Wells Fargo’s attorney in San Francisco. Wells Fargo of course was denying having received the order “in time” to prevent the transfer. This was probably true, since Cohen later told me he’d gone down to the Anaheim Hills branch of Wells Fargo in person, and transferred the money the morning before the hearing, just to be safe. Now Gary was suing me, and Wells Fargo, for the money. Those were some of Wagstaffe’s glad tidings.
Additionally, he testified, in retrospect I had screwed up by not suing NSI for “negligent damage to personal property.” Unfortunately for me, Katie Diemer’s Second Amended Complaint included a claim for “negligence” against NSI, and now Idell was arguing that I malpracticed when I didn’t carry on with that claim in the Third Amended Complaint, because, he theorized, a negligence claim would have given us an additional leg to stand on with Judge Ware.
Gary’s criticisms of my performance were bogus. With respect to the money that disappeared, I’d done everything possible to fax the order to Wells Fargo at the earliest possible moment, and Cohen had simply gotten the drop on us. That last unpreventable theft merged with all the millions that had already been piped offshore, and were also small in proportion to the large sums Gary was now receiving monthly from Sex.Com. And as far as my failure to allege negligence against NSI, I knew Gary would ultimately win on appeal, making it all a moot point.
I was keen to prove to the arbitrators that I had been the architect of victory. I knew I’d benefited Gary in a unique and thorough way that overarched the accomplishments of all Gary’s other lawyers. If my contractual entitlement went down in flames because I’d left magic words out of the October 4th agreement, I would be asking the arbitrators to award the reasonable value of my services, so it made sense to build my case around a single principle -- I did my job.
I didn’t figure I could call a better witness on this point than Bob Dorband. Jim was incredulous when I suggested that we call Cohen’s lawyer to the witness stand. Wouldn’t his words be discounted as sour grapes? Wouldn’t he seem to be the wrong person to have as an ally? No, I assured Jim, no one would ever look at Bob Dorband and discount his testimony. His word on the subject of my skill and ability would be true, and the truth will be believed when spoken by Bob. I had received Bob’s promise to testify during a lunchbreak at the two-day trial he defended on behalf of an absent Cohen. Bob’s comments on that day made it clear he was now doubly convinced that every accusation of deception he’d directed against Gary had been true all along. He now saw exactly what he would have prophesied coming true in spades. It was telling that I was getting sympathy from a man who represented Cohen. Bob and I could have commiserated about our client-inflicted wounds, but we never have. Bob is a knight I have only met on the battlefield, encased in iron, a foe to whom mercy is alien, and yet accords me respect. His testimony was as good as I could have hoped.
Bob had flown in from Portland to give his testimony, and when he was done, we adjourned for the day. I will always remember the feeling of sympathy for the adversary I felt when Bob was worn down by the hail of lead, and Cohen left him with no case to defend. Those days were behind him, though he acknowledged without explaining too much, that they had taken their toll on his personal life. After Gary won the trial, he had sued Bob, who then left the Duboff firm to work for Safeco managing an insurance defense shop in Portland. I wished him well and bid him goodbye. My closest enemy had done me all the good he could.
Peter Carini, my closest friend, also flew into town to testify at the arbitration. Since Gary had impugned both my willingness and ability to try the case, the Chief Arbitrator allowed Peter to testify about his knowledge and opinion concerning my trial abilities. Like Bob had, Peter first testified about my willingness to try the case, that had been cast into question by Pam’s recovered memories:
Peter also gave his opinion about how well I tried cases, based on our work together:
But it’s one’s performance as any adversary that is the most convincing test, and Peter found a succinct way to describe my abilities:
That’s high praise from a man as insensible to fear as Peter. I was proud to have two Oregon lawyers come down to the Bay Area to vouch for me. I had hoped to have a third Oregon lawyer show up, but Sue Whatley was hiding out in Oregon, supposedly on the lam from Gary but probably avoiding me by absenting herself from the Bay Area during the hazardous time period of the arbitration. She had promised repeatedly to come San Francisco and testify for the hearing, once after I personally delivered her a subpoena, but when the day came, she didn’t make the trip.
My ecstasy-head friend also failed to show. Ben, who had direct evidence of Gary’s admission to axing me with malice aforethought, and had sworn eternal loyalty to my cause for one blazing moment in Vancouver, had also been subpoenaed, and also absented himself. After first calling Jim DeSimone to ask for plane fare, Ben then had a New York lawyer contact us to make threatening excuses for his non-appearance. I sensed Fernando’s big, fat hand squashing my plans, while Gary looked on with delight. It was all too gross.
Cyrano knew how little a man can expect from his friends:
I was delighted to report to my new lawyer that I had landed a job. For forty percent of my fifteen percent, I had managed to rope an old UCLA pal, Jim DeSimone, into representing me in my lawsuit against Gary. Jim had not been a close friend of mine in law school, but I respected his integrity. He had been one of the few law students to join the protests that forced the Regents of the University of California to eliminate South African investments from its securities portfolio, as part of the international movement to free Nelson Mandela and end apartheid. After law school, Jim went to work for Centro Legal, the legal aid clinic where he’d volunteered during law school. After a few years doing public service, he partnered with Ben Schonbrun to practice civil rights and employment law from Ben’s beachfront office on the Venice boardwalk. Jim and I got to know each other better after he took that job, because I did the same type of work at Mazursky, Schwartz & Angelo. We had run into each other at bar events and the courthouse, and exchanged the occasional war story.
I actually hadn’t even thought of calling Jim until one day when I saw a news article on the Internet about a case that Mike Seplow, a younger lawyer at the firm, had recently settled for a couple million dollars on behalf of a homeless man who was picked up on the streets of LA, misidentified as a New York felon, shipped to New York, and allowed to rot in a mental hospital for two years before the case of mistaken identity was sorted out. I was working on a similar case, that of Roger Benson, who suffered a long stint in a California jail because Oregon misidentified him as a felon. Once I was on the phone talking to Jim’s partner Mike Seplow, I realized he was a very intelligent lawyer, and it occurred to me that Jim’s firm might be interested in taking on my own case.
The case was a tough sell, but Jim is ambitious, and had the employment lawyer’s skill of mastering the scores of essential facts necessary understand the case. To some extent, he was seduced by the sleazy glamour of the story and the intellectual sophistication required to master it. Jim was the number two partner at Schonbrun, DeSimone, Harris, Seplow & Hoffman, and so could put the weight of a California firm, and an agreed-upon expense budget, to work on my case. I took Bob Kuenzel, who had served as an excellent placeholder, off the pleadings, and put Jim’s firm on.
As was apparent to Jim when he signed on, in my haste to file suit against Gary, I had sped right past an important rule of California lawyer law. Before you can sue your client, you have to ask them if they’d like to engage in non-binding arbitration. If they say no, you can sue them. If they say yes, you have to arbitrate. I knew this, but I also knew there was a more general rule that in a lawsuit based on a written contract, you can sue to attach funds in a defendant’s bank account, even if you are supposed to arbitrate the dispute. I had been eager to file a motion for attachment, because I had a written contract, and there was about $45,000 per month that I was entitled to under that agreement. I had written up most of the motion, supported it with all of my evidence, and just needed to have a lawyer finish it up and file it, and Jim did file it. But my strategy produced no benefit. Richard Idell, stepping in quickly to take advantage of my mistake, moved to stay my lawsuit until the matter had been arbitrated by the State Bar. Judge Whyte put the lawsuit on hold and sent us to arbitration. Not surprisingly, he denied the motion for attachment as well. I was beginning to understand the meaning of the old saying that some things can be accomplished quickly only if you don’t try to rush them.
Jim prepared for the arbitration diligently, poring over binders of documents. He read my October 4, 1999 agreement with Gary repeatedly, and understood its provisions thoroughly. As a result, he repeatedly lamented a minor omission that was to have a huge influence on our joint expectations. The agreement failed to comply with a California statute that requires contingent fee agreements to explicitly state that the percentage fee is “negotiated, and not set by law.” Obviously, the October 4th agreement was extensively negotiated, incorporating as it did all manner of clever provisions that Gary and I had discussed in detail, including the novel financing-by-going-public mechanism. Gary himself had proposed the 15% fee, so it was particularly galling that Idell had found this Achilles heel in the agreement. And the consequence of my error was fatal, because any agreement lacking the essential language was unenforceable, illegitimate, and gave me no rights. A minor error in the fee agreement threatened to undo all my plans.
Of course, even if the agreement was unenforceable, I was still entitled to the reasonable value of my services. The reasonable value of my services would be calculated based on the skill I showed in getting the result, the amount of benefit I’d brought to my client, and the expected fee that other lawyers would charge for getting that result. That left some room for hope, even if my written agreement proved worthless. The way I calculated it, I’d helped Gary recover the world’s most valuable domain name, worth at least eight-million dollars a year. I’d helped Gary acquire the three-million dollar Rancho Santa Fe mansion. I’d shown considerable skill in saving the case from dismissal at the last moment, and prevented it from ever being dismissed again. I had rehabilitated Gary’s image from wannabe pornographer to white-hat hero. I had been sued for $50 Million and shrugged it off. I had procured the services of State Farm to stave off Cohen’s lawsuits. I helped prove Gary’s case so thoroughly that Judge Ware thought a trial unnecessary.
I had also devised the plan to have Cohen arrested, an achievement that may seem minor until you realize that civil lawyers never arrest the opposing party. Only a prosecutor can request the court to issue an arrest warrant, and in those pre-Patriot Act days, the prosecutor still had to allege that the defendant had committed a crime. Ignoring this obstacle, I devised the answer -- we would bait Cohen into doing the only thing that could get him arrested -- defying a court order to show up in front of Judge Ware. To get a warrant issued for Cohen’s arrest, I told Gary, we merely had to convict Cohen of a small misdemeanor called “failure to appear.” When a judge orders a person to show up in court, and they fail to appear, he issues a bench warrant. It’s automatic -- the easiest warrant to get. Judge Ware had manifested an interest in Cohen’s whereabouts during the November 27th hearing, so it was easy to get him to order Cohen to appear, which had the foreseeable result of Cohen failing to appear and Judge Ware’s issuing a warrant for his arrest. By the time I sat down at the arbitration table on January 22, 2002, Cohen had been a fugitive from justice for nearly a year, cementing Gary’s victory unshakeably.
Cyrano de Bergerac would have understood. Cyrano was an incomparable swordsman who looked for trouble wherever he could honorably find it, and found it everywhere. Like Cyrano, I had become rather bitter about my fate. I felt I’d won the prize, delivered Sex.Com to Gary like we’d always planned, and now I got to watch other lawyers consume my share of the pie in exchange for cutting me out of the deal. Cyrano was bitter because he won the love of his cousin Roxanne only to confer her affections upon his fellow Musketeer, Christian. Like Cyrano, who couldn’t reveal the entire truth of the affair to either Christian or Roxanne, I too was bound by duties of confidentiality to refrain from revealing secrets that might have given me leverage against Gary.
Despite or because of his repulsive physical appearance, Cyrano moved from conflict to conflict, cutting a path with sword and poetry through a world peopled by fools, knaves and lackeys. In the aftermath of my split with Gary, I too had a sufficient supply of enemies, most of whom had at least been nominal allies. Foremost among my former allies was Richard Idell, the San Francisco lawyer who represented the famously cutthroat rock impresario Bill Graham, presumably in the delicate business of cutting the legs off drugged-out entertainers who had overstayed their fifteen minutes of fame. Graham was so famously cruel that even today, twelve years after his death in a 1991 helicopter crash, you get a lot of hits if you Google “Bill Graham” and “asshole.” I am sure he found his ideological mate in Richard Idell, whose frigid soul pops open only long enough to reveal the kryptonite, nitroglycerine, and arsenic that substitute for his heart, lungs and liver.
Idell and I first met in his office on Bush Street at the greasy edge of Chinatown. These days he’s got a better address on California Street, but remains well known in San Francisco for his bulldog litigation style. Physically and temperamentally, Idell reminds me of a wolverine. He’s barrel-waisted, neckless with a short jaw line that operates a pair of lips that have never smiled in my presence, but sneer even better than Cohen’s. A graduate of Golden Gate University School of Law, he had the grit and spit of a self-made man.
The Wagstaffe team had got the memo at last, and were singing a completely different tune at the arbitration than had become their habit during the heady months following the big win. For a while, in a dim prehistory that none of the Wagstaffe team could ever recollect, there had been a wild, crazy moment when they all believed that Charles Carreon really was a fifteen percent owner of Sex.Com. That’s how delusive it got. Sanity had been restored however, and Wagstaffe’s firm had liens for hundreds of thousands of dollars in fees on Gary’s Rancho Santa Fe house. There was work in abundance as Kerr & Wagstaffe pursued every avenue of collection against Cohen, and in general satisfied Gary’s desire to pursue a policy of armed strength against all comers.
Pam Urueta had been enlisted as a sapper to undermine my character. It seemed she had recovered a memory that she had once heard me say I was burned out, and didn’t want to try the case. I snapped at her in the waiting room, and was forced to apologize and make some evidentiary concession, or it would be reported that I had assaulted her with profanity. Poor Jim was humiliated by my out-of-control antics, and gave me a lecture in the bathroom. It was really kind of funny, because he went into this whole passionate Italian advocate routine that was straight out of TV. I wondered how many of those routines I’d developed for my own repertoire of client-control mechanisms.
I was learning once again a painful lesson in litigation. Until you’ve been there, you have no idea what it will be like. I thought my achievements were indisputable. Unfortunately for me, there is no job so well done that it cannot be improved upon in retrospect by a team of lawyers, and Wagstaffe did a fabulous job of dissing me with affectionate recollections, as if I’d been Gary’s handler, a wild guy useful for soaking up Gary’s wilder enthusiasms, given to taking a boatload of unnecessary discovery, and unfortunately, responsible for a couple of acts of serious malpractice.
Malpractice? Yes, malpractice of the high-dollar amount kind. Alas, it turned out, once Gary got to running down all the bankers with subpoenas, that on November 27th,, Cohen had transferred $1.2 Million out of the Wells Fargo Anaheim Hills Branch, in violation of the orders that I faxed to Wells Fargo’s attorney in San Francisco. Wells Fargo of course was denying having received the order “in time” to prevent the transfer. This was probably true, since Cohen later told me he’d gone down to the Anaheim Hills branch of Wells Fargo in person, and transferred the money the morning before the hearing, just to be safe. Now Gary was suing me, and Wells Fargo, for the money. Those were some of Wagstaffe’s glad tidings.
Additionally, he testified, in retrospect I had screwed up by not suing NSI for “negligent damage to personal property.” Unfortunately for me, Katie Diemer’s Second Amended Complaint included a claim for “negligence” against NSI, and now Idell was arguing that I malpracticed when I didn’t carry on with that claim in the Third Amended Complaint, because, he theorized, a negligence claim would have given us an additional leg to stand on with Judge Ware.
Gary’s criticisms of my performance were bogus. With respect to the money that disappeared, I’d done everything possible to fax the order to Wells Fargo at the earliest possible moment, and Cohen had simply gotten the drop on us. That last unpreventable theft merged with all the millions that had already been piped offshore, and were also small in proportion to the large sums Gary was now receiving monthly from Sex.Com. And as far as my failure to allege negligence against NSI, I knew Gary would ultimately win on appeal, making it all a moot point.
I was keen to prove to the arbitrators that I had been the architect of victory. I knew I’d benefited Gary in a unique and thorough way that overarched the accomplishments of all Gary’s other lawyers. If my contractual entitlement went down in flames because I’d left magic words out of the October 4th agreement, I would be asking the arbitrators to award the reasonable value of my services, so it made sense to build my case around a single principle -- I did my job.
I didn’t figure I could call a better witness on this point than Bob Dorband. Jim was incredulous when I suggested that we call Cohen’s lawyer to the witness stand. Wouldn’t his words be discounted as sour grapes? Wouldn’t he seem to be the wrong person to have as an ally? No, I assured Jim, no one would ever look at Bob Dorband and discount his testimony. His word on the subject of my skill and ability would be true, and the truth will be believed when spoken by Bob. I had received Bob’s promise to testify during a lunchbreak at the two-day trial he defended on behalf of an absent Cohen. Bob’s comments on that day made it clear he was now doubly convinced that every accusation of deception he’d directed against Gary had been true all along. He now saw exactly what he would have prophesied coming true in spades. It was telling that I was getting sympathy from a man who represented Cohen. Bob and I could have commiserated about our client-inflicted wounds, but we never have. Bob is a knight I have only met on the battlefield, encased in iron, a foe to whom mercy is alien, and yet accords me respect. His testimony was as good as I could have hoped.
JIM: Up until the time that Mr. Carreon came into the case, what was the procedural status of the case?
BOB: There had been several complaints filed and we had filed a motion to dismiss against each complaint, in turn, and basically won all those motions.
JIM: And what was your expectation as to the outcome of this case?
BOB: After the second amended complaint was dismissed, I thought that was probably going to be it, that they probably would not be able to replead it successfully.
JIM: And it was replead successfully?
BOB: Yes it was.
JIM: Who filed the third amended complaint that was pled successfully?
BOB: Mr. Carreon.
JIM: When Mr. Carreon came in the case, did you have to change the way in which you were litigating the case?
BOB: Mr. Carreon was much more aggressive.
JIM: And in terms of his aggressiveness, was it appropriate or inappropriate?
BOB: It was very appropriate.
JIM: And in terms of taking your client’s deposition, who in your estimation questioned your client most effectively in this litigation?
BOB: Of all the attorneys that questioned Mr. Cohen, I would say Mr. Carreon was the most effective.
JIM: Who propounded all the discovery to Mr. Cohen, Ocean Fund, and YNATA in this case?
BOB: As far as I can recall, it was Mr. Carreon.
JIM: And in terms of who was responding to your discovery on behalf of Mr. Kremen, which attorney was handling that?
BOB: Mr. Carreon.
JIM: There was a lot of paper in this case, to say the least?
BOB: A ton of paper.
JIM: Did you have a view as to how Mr. Carreon handled those thousands of pages of paper?
BOB: He handled it very effectively, as effectively as any attorney I’ve dealt with in cases where there’s a lot of documentation.
JIM: Were you the attorney primarily responsible for preparing the opposition to Mr. Kremen’s motion for preliminary injunction and summary judgment?
BOB: Yes.
JIM: And were there declarations submitted with attached evidence in support of those motion?
BOB: Yes.
JIM: And in terms of the attorney who was submitting the many pages of exhibits that supported those motions, what attorney was that?
IDELL: Objection -- lack of foundation, vague and ambiguous.
CHIEF ARBITRATOR: I’ll allow it if you know.
BOB: I know it was Mr. Carreon.
JIM: And the evidence submitted by Mr. Carreon, did you believe that that played a critical role in Judge Ware’s eventual ruling?
BOB: In my opinion, yes.
JIM: Did you and Mr. Carreon have a cordial relationship?
BOB: Yes, we did.
JIM: Did Mr. Carreon ever discuss with you whether he was willing to try this case?
BOB: Yes, he did.
JIM: Did Mr. Carreon ever indicate to you that he wasn’t going to be the trial counsel in the case?
BOB: No.
JIM: Did you have the impressions in your dealings with Mr. Carreon that he would be trial counsel in this case?
BOB: Absolutely.
Jim: And what did you base that impression on?
BOB: My discussions with Charles. We would actually have discussions on occasion bout actually trying the case, and in a sort of collegial way, we would talk about how fun it was going to be and that it was kind of a crazy case. And also, my observations of Mr. Carreon in terms of how he was handling the case day-to-day, he was always involved in it, as far as I can tell.
JIM: Did he ever appear to be tired or burned out to you?
BOB: I couldn’t say that. No, he never did.
JIM: You were the lawyer for Mr. Cohen at the trial in this matter, correct?
BOB: Yes.
JIM: How long did that trial take?
BOB: It was less than a day and a half.
JIM: Was it a bench trial?
BOB: It was a bench trial.
JIM: Did Mr. Cohen appear?
BOB: No.
JIM: Did you call any witnesses?
BOB: No.
JIM: Were there any liability issues on the facts tried?
BOB: No.
JIM: What issues were dealt with at the trial?
BOB: It was purely damages at that point, and all the liability issues had been decided on summary adjudication, and there were orders entered as a result of contempt sanctions that pretty much precluded our presentation of anything. It was basically, I just sat there.
Bob had flown in from Portland to give his testimony, and when he was done, we adjourned for the day. I will always remember the feeling of sympathy for the adversary I felt when Bob was worn down by the hail of lead, and Cohen left him with no case to defend. Those days were behind him, though he acknowledged without explaining too much, that they had taken their toll on his personal life. After Gary won the trial, he had sued Bob, who then left the Duboff firm to work for Safeco managing an insurance defense shop in Portland. I wished him well and bid him goodbye. My closest enemy had done me all the good he could.
Peter Carini, my closest friend, also flew into town to testify at the arbitration. Since Gary had impugned both my willingness and ability to try the case, the Chief Arbitrator allowed Peter to testify about his knowledge and opinion concerning my trial abilities. Like Bob had, Peter first testified about my willingness to try the case, that had been cast into question by Pam’s recovered memories:
JIM: What did Mr. Carreon say on the topic of whether or not he would be trial counsel on the Kremen vs. Cohen matter?
PETER: He was definitely going to be the trial counsel.
JIM: And what did he say that led you to that conclusion?
PETER: Not only what he said, but what he was doing. Oftentimes during that period of time, we’d be working up themes and working up strategies and tactics to be utilized for a jury trial, and we were working on it together. I was interested in doing the case because it was just a great case. I mean, just from a litigator’s perspective, going into court against Cohen, it was like a field day. It was incredible, an opportunity you wouldn’t want to miss if you were a trial lawyer.
Peter also gave his opinion about how well I tried cases, based on our work together:
JIM: Have you tried cases with Mr. Carreon?
PETER: Yes.
JIM: What are your observations of Mr. Carreon as a trial attorney?
PETER: He’s excellent.
But it’s one’s performance as any adversary that is the most convincing test, and Peter found a succinct way to describe my abilities:
JIM: Have you tried cases against Mr. Carreon?
PETER: Yes.
JIM: And that’s when Mr. Carreon was a district attorney; is that correct?
PETER: That’s right.
JIM: And during that period of time, how was his work as a prosecutor?
PETER: He was a feared prosecutor.
That’s high praise from a man as insensible to fear as Peter. I was proud to have two Oregon lawyers come down to the Bay Area to vouch for me. I had hoped to have a third Oregon lawyer show up, but Sue Whatley was hiding out in Oregon, supposedly on the lam from Gary but probably avoiding me by absenting herself from the Bay Area during the hazardous time period of the arbitration. She had promised repeatedly to come San Francisco and testify for the hearing, once after I personally delivered her a subpoena, but when the day came, she didn’t make the trip.
My ecstasy-head friend also failed to show. Ben, who had direct evidence of Gary’s admission to axing me with malice aforethought, and had sworn eternal loyalty to my cause for one blazing moment in Vancouver, had also been subpoenaed, and also absented himself. After first calling Jim DeSimone to ask for plane fare, Ben then had a New York lawyer contact us to make threatening excuses for his non-appearance. I sensed Fernando’s big, fat hand squashing my plans, while Gary looked on with delight. It was all too gross.
Cyrano knew how little a man can expect from his friends:
Watching you other people
Making friends everywhere
As a dog makes friends,
I mark the manner of these
Canine courtesies and think
“My friends are of a cleaner breed—
Here comes, thank God, another enemy!”