Dancing to the Jailhouse Rock

By John Merriam

"What do you mean you're in prison? You've got to be up here for trial in two months!" My fisherman client, Gabe, was calling from a correctional facility in Sterling, Colorado. "How are you long are you in for?"

"Four years, but with time off for good behavior I'll be out in 2001."

"What are you in for?"

"A probation violation."

"What probation violation?"

"Driving without a license."

"Wow!" I thought. "Colorado must have a lot of empty prison beds if people get hard time for driving while license suspended..." I knew Gabe was on probation for an assault charge, but thought he had been keeping his nose clean.

"Gabe, listen, this is going to make it tough to get you the money you deserve for getting hurt on that fishing boat if you can't come to trial in October." He hurt his back while working as a processor aboard a factory trawler three-and-one-half years before, in early 1996. "Maybe you should just settle this case for cigarette money while you're in the joint."

"I don't smoke. With good behavior, I'll be out in two years. Can't you delay the trial? That fishing company really jacked me around. I want to be able to tell my story in court."

"A two-year continuance . . ." I paused to think if there was any court rule preventing such a motion. "I've never tried something like that. It probably won't work." I took a deep breath. "I'll give it a shot."

I drafted a motion to continue Gabe's case for two years. The only authority I could find even remotely on point involved language that the special solicitude for seaman was so great that one of them, in the early days of steam, was still entitled to unearned wages for the duration of shipping articles when, at the time, the seaman was an escapee from the House of Correction. McCarron v. Dominion Atlantic Ry. Co., 134 F. 762 (D. Mass. 1905). I filed the motion barely in time for it to be noted for consideration in federal court before the scheduled trial date.

The fishing company had liked Gabe when he applied for a job because he was a tall lad weighing in at about 200 pounds. He was in his early twenties when he signed on the factory trawler Northern Jaeger and sailed to Alaska as processor in March 1996.

In early April 1996 the Northern Jaeger was moored in Dutch Harbor, Alaska. Gabe was in a frozen hold space helping unload the catch of fish, an area lacking an effective guardrail. He slipped on a piece of icy cardboard and fell about twelve feet, into a deeper compartment of the hold, landing on his back. He was stunned but still conscious. Young and a stoic, Gabe got up and tried to keep working. He didn't last. After retreating to his bunk he was locked in his room, not allowed food and threatened by supervisory personnel. He managed to get off the vessel after a week of this treatment. The fishing company denied him his pay bonus and listed him as ineligible for rehire. Gabe, once in Seattle, saw a doctor once and was diagnosed with cervical and lumbar strain. Gabe hired a lawyer, then went home to Colorado. He never got further medical attention, claiming he could not afford it. He was given no maintenance and paid for the one-time doctor visit in Seattle out of his own pocket. His first lawyer did not force the fishing company to pay Gabe's maintenance and cure, and told Gabe not to talk to the adjuster.

I first spoke to Gabe in a long distance telephone call more than two years later. He wanted to switch lawyers, claming his first one wasn't doing anything. I took over the case.

The file from Gabe's first lawyer was rather skinny. The insurance adjuster said Gabe had no damages because he had only seen a doctor once, offering $250.00 if Gabe and I would take a hike. I filed a lawsuit in federal court, even though damages did leave a bit to be desired. It was the same old story . . . one that Gabe would probably lose: The seaman says he could not get medical treatment because the fishing company would not authorize treatment. The fishing company says they wouldn't authorize treatment because no one asked them to. Because Gabe's first lawyer had not forced the issue, the fishing company could portray itself as pure as the driven snow, blissfully ignorant of the fisherman's need for medical attention.

I liked Gabe and felt sorry for him, given the situation. As a child he had been emotionally, physically and sexually abused, and expelled from school for fighting. He had been shot once, convicted of assault, and was facing a second assault charge when we first spoke. With that kind of background, his only logical career choice was to go to sea. When he came to Seattle for his discovery deposition Gabe told me that he was soon to be sentenced for the second assault charge. I did not realize the impact the criminal proceedings in Colorado would have on Gabe's Jones Act case in Washington.

The fishing company would not make an offer to settle Gabe's case. The claims manager from that fishing company said, according to a prior defense counsel, that she would never settle a case with me again. I had taken an earlier case against the same company all the way through the state court appellate system in an attempt to establish precedent, even though a small amount of money was involved. The prior defense counsel informed me that my efforts were not appreciated.

I did my best to get a low-ball demand from Gabe in an effort to avoid a trial for which I would not have a client present. Despite Herculean efforts to break my client's arm during a long distance telephone call (Gabe always calling collect), the lowest I could get for settlement authority was $8,000.00.

The scheduled mediation before Mac Archibald was cancelled when I confessed that my client could not attend due to incarceration. At that point the fishing company, assuming it occupied the catbird seat, would not authorize more than $2,000.00 in settlement. Defense counsel told me, off the record, that the most he would recommend was $3,500.00.

Unless my motion was granted, it appeared I was to be forced to trial without a client.

"A two-year continuance . . .? You're kidding, right?" The judge's clerk laughed into the telephone during a conference call with opposing counsel and myself. I tried to act like a good sport, chuckling slightly as the clerk and defense counsel regained their composure. "The judge will let you put on your case with your client's deposition." Luckily for Gabe, my fallback position from a two-year continuance was to request, in the alternative, that the plaintiff be allowed to present his case by way of telephone perpetuation deposition, taken from prison. I would now have to set up such a deposition through Colorado prison authorities. I had already determined that such a deposition was permissible, at least in theory. The trial date was continued to November 24.

"Grace Beverly (not her real name), please." I was calling the prison in Sterling, Colorado in an attempt to schedule the deposition. Grace was Gabe's case manager. After lengthy delays and getting cut off, I finally spoke to her. "Grace, I want to set up Gabe's telephone deposition down there on October 21st starting at 10:00 a.m. Pacific time, if that's okay with you. It's 8:30 here; that makes it 9:30 where you are, right?"

"No, it's 10:30."

"But I thought you were on Mountain time . . . ?"

"We are on Mountain time. It's 10:30!"

"I'll call you back before October 21st." The conversation ended in confusion. I checked the time display on my computer. "Maura!" I bellowed for my legal assistant. She had grown up in Colorado and I hoped she would know what time zone Sterling was in. "I didn't know that the line between Mountain time and Central time passed through the middle of Colorado . . . ?"

"It doesn't. The whole state is in one time zone, Mountain time."

"Well, Gabe's case manager says it's 10:30 down there."

Maura glanced at my clock. "No it's not. It's 9:30 everywhere in the whole state, I swear! His case manager is probably worried she'll be late for lunch."

I later confirmed with Grace's assistant, Shirelle, that Sterling, Colorado really was only one hour ahead of Seattle, Washington. At that point I began to wonder whether I would be able to pull off a telephone deposition with prison officials in Colorado. "Does anybody know what time it is? Does anybody really care?"

After a couple logistical nightmares, the telephone perpetuation deposition actually went off on schedule. Other than a few disconnections, followed by misconnections, it was relatively smooth. I got from Gabe what I hoped was a prima facie case of unseaworthiness and Jones Act negligence.

Trial briefs, exhibits and the deposition transcript were submitted the day before Thanksgiving. The case was to be decided upon the written record only. It was one of the easier trials of my career because I didn't have to go to court.

The verdict was handed down in late January 2000. The judge found liability based upon Gabe's telephone testimony describing an unsafe place to work. He awarded $3,000.00-plus for maintenance, reimbursement for the one unpaid medical bill, and $10,000.00 in general damages.

The case is Vande Sande v. Oceantrawl. et al, C98-1098L. Plaintiff was represented by John Merriam. Defendants were represented by Clayton Ramsey at Forsberg & Umlauf, P.S.

John Merriam is a sole practitioner in Seattle representing seamen on a wage and injury claims.

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