Once, I was asked to sue a real estate developer who’d stiffed us for a bill somewhere between $200,000 and $300,000. It was a case I’d have to file in state court, which was so badly backed up it could drag on for the rest of my life. So I went to see Gerry, the partner who’d been in charge of the deal.
I asked, "Do we have documents about this?"
"A couple of file drawers."
"Anything they really need?"
"Probably not."
So I explained my idea for asserting a lien on the documents and tempting the former clients to sue us. "They’re pretty dumb," Gerry said, "but nobody’s that stupid." But it was worth a shot, and I drafted a letter for him to sign, making a big deal about how we’d never part with even a single page, no matter how badly they needed it. It was not a nice letter because the whole idea was to tick them off enough to bring on testosterone poisoning.
Sure enough, they sued us, demanding return of the papers. We counterclaimed for our unpaid fee and, because they sought an injunction, the case went to the head of the line. Soon, we were before a judge. They told the court how desperately they wanted and needed the documents, but they offered no good reason for not paying our bill. I said we’d be happy to give up the files once we were paid. The judge saw an opportunity to get the matter off his calendar and ordered them to pay and us to give them the files.
The moral, of course, is that if you are the one who ought to be getting sued, it is almost never a good idea to rush into court.
So why did PCMR’s lawyers sue Talisker and initiate the two years of ensuing idiocy? Testosterone poisoning, no doubt, intellectual arrogance, and, one can’t help but suspect, a touch of latent anti-Semitism. (My firm in N.Y. represented a different Toronto-based real estate enterprise run by orthodox Jews; I understood there were occasional hints of prejudice on the part of people with whom they did business.)
PCMR’s lawyers had some arguments that could have constituted interesting defenses if Talisker had sued them, but that were never enough to make their case. They participated in the creation of a fraudulently backdated letter which, even if it were real, would have been 60 days late, and produced that document during discovery. In many states that kind of fakery is called spoliation and is often the basis for a judgment against the guilty party and disciplinary action against the lawyer.
Lacking a decent case, the PCMR lawyers were always first to run to the media and make a big deal about every little thing. If memory serves, they were first to suggest that the resort might not open. I’m pretty sure that they’ve now billed PCMR hundreds of thousands in fees for bringing about a result that wasn’t even contemplated at the outset. Remember: Vail wasn’t in the picture originally. Talisker presumably brought them in to hedge its bets and create the possibility of a resolution like the one that came about.
My personal view is that the outcome was just and that Vail will be good for Park City. The Cumming family has always been good for the community. I hope they are satisfied with the deal that was struck, and that they hire better lawyers in the future.