too late


On Sunday, August 12, 2012 at 9:07pm I got the following email from my client, Willie Roth, whom I’ve been representing for 3 years:

I want you to reach out to the defense and the insurance to see if their last offer is still on the table.  If so, accept it, and let’s be done. My physical limitations and my mental state are about as good as they are going to get, and I am tired of feeling like a mushroom. Thanks for all of your help.

We’d had 2 failed mediations in the past couple years, and the last offer presented just wasn’t good enough in either of our estimation, but he’d grown tired of fighting with them.  Tired of living on a workers’ comp check that represented half what he made before he fell off a nearly 2-story high ladder and required multiple discs in his back to be fused together.

I responded at 9:20pm from my iphone:

I think it is.  Defense counsel insists we’re close to getting the insurer to agree to our terms, though.  I understand your frustration, but I really do think another few weeks would do it.  Let me try to reach him again on Monday. 

I immediately emailed the opposing counsel about getting the settlement we’d agreed was warranted here…the one the insurance company had, so far, seemed unwilling to “close the gap” and authorize, despite its own counsel’s insistence that it do so.

But Monday, I had a meeting at 8am after we sent Maddie to her first day of elementary school.  Then I had a deposition at 10am and a mediation at 1pm.  And Tuesday, I had a hearing in the morning, followed by a mediation that afternoon at 2pm.  Wednesday, I got up at 4am, drove 4 hours to Savannah, mediated a case, and then drove 4 hours back.  Thursday, I had a meeting a 7:30am, a meeting at 10:30am, and a 2pm mediation.  At the end of the day, our office suite went to happy hour and dinner together to send off our summer file clerk who was returning to college this weekend.

At 6:03pm, I got an email from my after hours answering service that said this:

Call From:  Scott Roth / Regarding:  His brother. He said it was urgent.

I’d forgotten to follow up on my email Monday like I said I would.  I wasn’t sure why Willie’s brother was calling me, but I was a few drinks in by this point, so I figured I’d call him Friday morning.  Still, it bothered me.

I called Scott at 9am Friday.

Scott:  Willie died yesterday.  I found him on the floor of his bathroom.  He was still pretty warm…I don’t know if he had a heart attack or something happened related to his diabetes or what…  I just… I wanted to let you know.

I asked some questions about whether it looked like a fall and thought about whether I could possibly relate his death to the back surgeries I helped him get over the course of the past few years.  Realizing such was unlikely, and realizing I’d lost about $20k in expenses and fees by not settling before he died, I mustered:

Me:  I’m really sorry to hear this.  Your brother and I spent several hours together during two failed mediations and a couple depositions.  We exchanged countless emails and phone conferences.  I’ve represented a lot of folks the past decade, but Willie…he was one of my absolute favorite clients–a joy to talk to and be around.  I will miss him.

And then I hung up and cried a bunch while wondering if I could have saved him the heart attack or diabetic coma or whatever killed him by acting immediately on Monday instead of getting too fucking busy to follow through.  I hated myself.

I emailed my opposing counsel with the news.  He called me within a few minutes, but I wasn’t able to talk to him about it.  He asked if I’d be okay and offered to take me to lunch, but I had obligations to meet and appointments to keep.  Specifically, a 10:30 client meeting and a noon deposition.  He promised he’d light a candle for my client at Mass over the weekend and that he’d “chant vespers.”  I didn’t know what that meant, but it sounded like a nice gesture.

I got through the day.

Tonight, I drove 45minutes north of town to catch the last 15 minutes of his visitation.  I met Scott, who greeted me with a “I was expecting someone older!” to which I replied, “So was I!” because I love any chance to quote “A Few Good Men.”

I met his family and saw pictures of his mother, who died 5 months ago.  I met his sister.  His brother-in-law talked to me about his hernia case and the hearing set for 10 days from now.  I saw a very still Willie Roth lying in the suit he wore when we were last together.  I missed his smile and his eternal optimism in the face of shitty circumstances and unpleasant news from medical professionals.

I answered some of Scott’s questions about Willie’s case and discussed how Florida and Georgia have different workers’ compensation laws.  The clock changed to 8:00pm.  Visitation was over.

Scott reached his hand toward me for another handshake.  “Willie always said good things about you and what y’all were doing.  I hate that, you know, you can’t get compensated for any of that now…”

Then, “It really means a lot to us that you came tonight.  I know you’re busy.”

And for the first time since 9:00 Friday morning, I almost felt like I’d done right by Willie Roth.  By his family, at least.

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  1. I’m so sorry – what a terrible way for it all to turn out.

  2. Sweetmateamanda

    I’m so sorry to hear that Moe. You are an amazing person, amazing friend, amazing lawyer. xox

  3. I’m really very sorry. How horrible. For everyone.

  4. “…instead of getting too fucking busy to follow through.”

    Who’s the real villain of this piece? You, for not following up on an email, or a giant insurance company for deliberately putting your client through three or more years of misery?

    You may recall our discussion about certain kinds of people who grow up in certain kinds of families. And how they sometimes feel overly responsible for things which are, if we pause to think about it, random events or out of their control.

    Let’s talk like you were calculating contributory negligence.

    How much did your “negligence”—if, indeed, there were any—contribute to your client’s suffering and death? Could you reasonably foresee this? No. Is it reasonable for a busy lawyer to take a week to attend to a matter? Yes. Was it reasonable to expect that a delay of some days would have these consequences? Of course not. Do insurance companies sometimes draw out proceedings in the hope that plaintiffs will get worn down, give up, or drop off the twig? No doubt—in your job, you see it every working day.

    The lawyer in you—or the overly-dutiful son, brother, father, commander or citizen in you—might want to pin the rap on yourself. But it would be a bum rap.

    Feel sad, for sure. But don’t feel guilty.

    Love, THH.

  5. I’m not a bad person. I’m not a bad lawyer. I’m a great man/dad/husband/lawyer/human being. It’s not my fault.

    Repeat that to yourself about 50-bajillion times. Because it’s true. Or I’m coming down there and smacking you.

    Sorry this happened and sorry you had to go through this. Much, much love, darlin’.

  6. Ah, I’m sorry, Michael.

  7. Oh, I’m so sorry. For you and for everyone.

  8. Damn. So sorry… for you, and everyone involved. Peace, brutha. xo

  9. I’m so sorry for your loss. And, have no doubt. You are a good attorney and a good person. You had no way of knowing what was to come. However, we all walk away wiser and (hopefully) more attuned to each other.

    Thank you for sharing your story.

  10. Dude. I’m so sorry.

  11. You did right, my friend. The fact that you were worried that you might not have… well, to me that just reinforced that you’re the kind of person who did.

  12. you did do right by him. you, my friend, have goodness in your heart. and it’s plain to see.

  13. Does his death make them less culpable? I’d think that his estate would still have the right to the suit.

    I’m sorry that you lost a client who seems like he became a friend. You didn’t fail anyone – your conscientiousness as a lawyer is something I admire greatly.

    • Thanks…from what I hear, in FL, a WC claim does have a death benefit to heirs, but in GA, it stops if the death is unrelated to the WC injury. Even if it were related, it’s a small amount at stake when the decedent has no heirs, as is the case here (less than $10k to cover burial). We’ll probably go for it anyway.

  14. We can’t be everything to everyone all the time. I say this as someone who tries to be, so I recognize you.

    That said: I like your humanity.

  15. I’m so sorry for your loss. What a great blog, as always.

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