May It Please the Court!
From Auto Accidents to Agent Orange:
Building a Storefront Law Practice into
America's Largest Suburban Law Firm
Leonard Rivkin
with Jeffrey Silberfeld
Carolina Academic Press
Durham, North Carolina
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Ch. 12 - Settlement
Way back when my office was still in Freeport and I was spending most of my time
representing defendants in automobile accident cases, I heard a story about an attorney from
neighboring Suffolk County who spent virtually all of his time representing plaintiffs in automobile
accident cases. There was a certain sameness to our respective practices. Regardless of which side
you were on, the cases tended to be very fact oriented. The issues were: what happened, whose fault
was it, and what were the damages. Very rarely did an auto case involve an exotic or novel legal
question. Most auto cases were settled. Relatively few went to trial.
One day, the attorney found himself representing one of two plaintiffs who were suing six
defendants in federal court for violating a newly enacted federal statute. Plaintiffs were seeking over
one million dollars in damages. The crucial issue in the case was one of statutory interpretation.
Treating the case no differently than his auto accident cases, the attorney first tried to negotiate a
settlement. Unable to do so, he went to trial and won a sizable verdict, but the defendants appealed,
first to the Second Circuit Court of Appeals and then, amazingly, all the way up to the United States
Supreme Court.
The attorney filed a brief in the Supreme Court and appeared for oral argument, even though
he did not intend to speak. Statutory interpretation was not his strong point. Four different attorneys
made presentations on behalf of the defendants, followed by the attorney for the other plaintiff Each
attorney had his own view on how the Court should interpret the statute. The Justices posed
questions to each attorney, and there were several lively but respectful exchanges.
When the plaintiffs attorney finished his argument, he sat down. For a moment, the
courtroom was silent. Then, the Chief Justice looked at my friend from Suffolk County, the only
attorney sitting at counsel table who had not yet spoken.
“Well, counselor, everyone else has his opinion on what should happen in this case. What do
you think should happen?”
The attorney rose and, without batting an eye, told the Chief Justice, “I think it should settle.”
Which was almost exactly what Judge Weinstein said during his first meeting with all counsel
in the Agent Orange case: “You know my general view, that is, that cases are better settled than
tried. If it can be settled, let’s. If I can help you, I will.”
Easier said than done. Settling the Agent Orange litigation involved problems nearly as
complex as trying it, which Judge Weinstein himself ultimately recognized. In fact, so troublesome
were these problems that six months after offering to help us settle the case, the judge told us that
he doubted that we would succeed, saying, “There are just too many unresolved issues.”
* * *
to chapter 13....
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