6

LAST SUNDAY, CONNOR’S PASTOR HAD PREACHED ON MATTHEW 5:9: “Blessed are the peacemakers, for they shall be called sons of God.” The pastor’s central message had been that if God blesses peacemakers, we also should honor and respect them. The pastor did a nice job with the sermon, but Connor thought it was a little obvious. After all, who doesn’t like peacemakers?

Now he knew.

Connor was in no mood to bless the retired judge who was mediating State of California ex rel. Devil to Pay, Inc. v. Hamilton Construction Corp. The mediation had been going on for nearly five hours, and Connor was seething.

The problem wasn’t that the mediator was incompetent. Quite the contrary. The mediator was a wily old trial judge named Abraham Washburn who had retired to the greener pastures of private mediation, where he could do half the work of a judge for twice the money. Unfortunately, he was proving entirely too good at his new career for Connor’s liking.

“A good mediator only looks for one thing: weakness.” So another judge-turned-mediator had told Connor several years ago as he was preparing for his first mediation. Connor had seen the weaknesses in Hamilton Construction’s case perfectly clearly, but he had missed a serious weakness on his side of the table: Max Volusca.

Connor had figured that he could count on Max to take a hard line throughout the negotiations but ultimately allow himself to be talked into whatever deal Connor could get. That sort of tag-team effort had worked well in the past and had shaken loose handsome sums in half a dozen prior settlement negotiations.

Max was taking a hard line this time too, but Judge Washburn had persuaded him that it was more important to fight over principles than dollars. “You represent the Department of Justice, not the Department of Finance, counsel,” he had told Max. “And isn’t justice better served by a comprehensive deal that includes a criminal plea and a public apology, even if that means a little less money?” That resonated with Max, even once it became clear that “a little less money” really meant “nothing more than repayment of the most egregious overbilling”— a number that Hamilton Construction insisted was less than $1 million.

Connor protested, of course. A criminal plea and apology would look great in a press release from the Attorney General’s office but would have little real effect. Companies like Hamilton Construction didn’t give a rat’s rear end about bad publicity as long as it didn’t interfere with business.

Unfortunately, Connor and his client had very little leverage in these negotiations. That was the downside of suing on behalf of the state. It was great to have Max Volusca thunder about orange jumpsuits and terrify defendants into doing the right thing. But if Max decided that the right thing was little more than a public shaming, there wasn’t much Connor or Devil to Pay could do to stop him.

The mediator fully understood the dynamics of the situation and did everything in his power to keep Connor from talking Max out of the deal that was beginning to gel. First, he took Connor with him as he shuttled back and forth between Max and the Hamilton Construction team, who were in separate conference rooms at either end of a short hallway. Then he parked Connor by himself in a third conference room on the pretext that there were certain matters related to confidential investigative documents (which Connor could not legally see) that needed to be hammered out.

Connor spent half an hour cooling his heels and admiring the spectacular view of the Golden Gate Bridge afforded by the conference room window. Late afternoon fog softened the outlines of the graceful spans of the bridge and cast halos around the headlights of the cars coming south out of the rugged Marin Headlands, which were graced by picturesque (and very expensive) towns. It was a soothing view. But Connor was in no mood to be soothed.

Judge Washburn opened the door and poked his head in. “Connor, great news!” he said, his bright white smile contrasting with a deep golf tan. “We’ve got a deal!”

Connor raised his eyebrows in surprise. “Really? How can you have a deal without my client’s agreement?”

The mediator’s brow furrowed in a disingenuous show of surprise and concern. “Oh, I thought that the whistleblower just gets a share of whatever the state gets. Did I misunderstand that?”

“That’s technically how the law works,” Connor conceded, “but as a practical matter we’re always part of the negotiations. Plus there’s the issue of attorney fees.”

“Ah, well your fees are taken care of,” interjected Judge Washburn, his smile returning. “Every penny. You’ve billed just over $200K, correct?”

“That’s right, but fees aren’t the only issue that concerns us.”

The mediator opened a black leather notebook. “Did you want to go over the terms of the deal now before I read them to the whole group?”

Connor thought for a moment. “Actually, that’s okay. I don’t want to keep everyone waiting. If Max is comfortable with the settlement, I’m sure it’s in the best interests of the state.”

Judge Washburn’s grin widened. “Great, I’m glad you see it that way. Let’s head to the big conference room. I think everybody else is already there.”

Connor followed him down the hall and into the conference room. It held a broad walnut table surrounded by about twenty leather chairs. Most of these were empty and the lawyers had spread out some. Max looked tired, but satisfied. The Hamilton Construction team across the table was exultant. Its inside and outside counsel, Joe Johnston and Carlos Alvarez respectively, were both smiling and talking quietly, and Hiram Hamilton was beaming and making small talk with Max about the 49ers.

Connor sat down right next to Max, who moved some of his notes to make room. Judge Washburn walked to the head of the table and the room fell silent as the negotiating teams looked toward him expectantly. “Okay, now that we’re all here, I’m going to read the settlement term sheet and then, if what I have written is acceptable to everyone, I’ll have my secretary type it up so you can all sign it before you go home.” He glanced around the table, opened his notebook and began to read.

As Connor expected, the settlement was long on press release fodder (a wordy apology and a meaningless guilty plea to a record-keeping infraction) and short on money. Even with Connor’s attorney fees, the defendants were only paying $1.5 million—or about a quarter of Connor’s private estimate of what the case was worth. To call it a slap on the wrist would be an overstatement.

Judge Washburn stopped reading and looked up. “So, does that accurately reflect your agreement?”

“It does,” said Alvarez.

Max started to nod, but Connor leaned forward and said, “That’s not the whole settlement, is it?”

The mediator frowned at Connor, and Max turned to him in surprise. “What’s missing?”

“Well, the fact that they’ll be barred from public contracting in the future, of course. I mean, they’re publicly admitting that they stole taxpayer money, right? They’re even pleading guilty to it. The government can’t very well turn around and do business with them after that, can it?”

“Of course not,” replied Max nonchalantly.

“And someone will need to notify all the cities, school districts, and so on to make sure they know who they’re dealing with before they hire these guys,” Connor continued, “So there should be some sort of notice provision in the settlement agreement and— ”

There was a choking sound from across the table. Hiram Hamilton’s mouth was opening and shutting soundlessly and his lawyers both wore expressions of mixed shock and outrage.

“That was not part of our deal!” said Alvarez. “We’re not agreeing to debarment!”

“You don’t have to!” Max shot back, his face reddening. “The State of California does not do business with criminals.”

Alvarez glared at Max. “You are acting in remarkably bad faith, Mr. Volusca! I—”

“As long as we’re talking about bad faith—” began Max, his voice rising.

Judge Washburn held up his hand. “Counsel!” he said in a stern tone cultivated through twenty years on the bench. He gave Connor a quick look that made him glad that retired judges can’t jail anyone for contempt.

Max and Alvarez subsided, though both continued to glare at each other like feuding fourth graders.

Connor relaxed and suppressed a smile. That had been a gamble. Despite Max’s comments, the government often did business with companies that had previously been caught overbilling. Max didn’t like that and had grumbled to Connor about it from time to time. Connor had therefore bet that his friend would rather walk away from the settlement than admit that a dirty company could be allowed to land state contracts in the future.

“All right,” said the mediator. “It looks like I was a little premature in thinking we had a deal. I’d like both sides to go back to their conference rooms while we sort out this little hiccup.”

Connor hung back as the room cleared. Once he and Judge Washburn were alone, he said, “Sorry about that.”

The mediator looked at him darkly. “No, you’re not.”

“Actually, I am. I want a negotiated settlement too, but I don’t think either of us want one that’s based on a misunderstanding.”

Judge Washburn scowled at Connor for several seconds, then shook his gray head and broke into a rueful grin. “I think both of us understand the situation perfectly.”