Shark Tank
17
The man at the patio bar was back. It was the same man who, some weeks earlier, had complained about his business partner, and who had been treated to The Oldest Member’s account of Hugh Cavanaugh and Chip Wetherbee. It appeared that he had taken The Oldest Member’s advice, called his partner, and invited him to lunch. The lunch had not gone well. His partner had retained an attorney. The attorney had filed a complaint. The man was now experiencing the full range of emotions that accompany this discovery: shock, betrayal, fury, and the dawning realization that he was going to have to retain an attorney of his own who would bill by the hour.
“So much for lunch,” he said, staring into his drink.
The Oldest Member, who had been listening from his customary chair, set down his gin and tonic with the measured cadence of the master of ceremonies preparing to speak at length.
“Let me tell you,” said The Oldest Member, “about two men who sued each other for everything they had and never missed a lunch.”
The man held up a hand. “If you’re going to tell me about Cavanaugh and Wetherbee again, I’ve heard it. You told me last month.”
“This,” said The Oldest Member, with a patience that indicated he had expected this interruption and had prepared for it, “is quite a different story.”
Tony Romanesco (said The Oldest Member) was the most likable man at La Cucaracha and, by a large margin, the most dangerous. He was a litigation attorney — a man who sued people for a living and who approached this vocation not with the bitter, adversarial hostility that one associates with the profession but with a warmth and transparency that was, in its way, far more unsettling. Romanesco would sit you down, look you in the eye, and tell you, with the genial directness of a casino boss explaining the rules of a card game, exactly how badly you were about to be screwed. “I’m going to screw you,” he once told an opposing attorney, during a deposition, in a conference room with a view of the ocean. “I’m going to screw you. First I’ll tell you why I’m going to screw you, and then I’ll tell you why I’m going to get away with it.” He said this with no malice whatsoever. He said it with the collegial transparency of a crime boss who respects his opposite number enough to show him the blade before he uses it. The opposing attorney, I am told, heard what Romanesco had to say, thanked him for his candor, and then called his malpractice carrier in a state of extreme alarm.
Romanesco was a mediocre golfer — a fourteen handicap that fluctuated with the season and with the quality of the lunch that preceded the round — but nobody at the club cared about his golf game. What they cared about was his company, because Tony Romanesco at a patio bar table was a close second to Bernie Sasso as the best entertainment available in the Santa Barbara area, and I include the Solstice Parade. He told stories. He bought rounds. He laughed at other people’s jokes with the generous, full-bodied appreciation of an attorney who has spent his career listening to people lie and who therefore treasures, above all things, the truth, especially when it is funny.
His law partner was Phillip DeBorracho.
DeBorracho — “Phil ’er up,” as he was known at all the club patio bars in town, a nickname that commemorated both his Christian name and his relationship with bartenders generally — was also a litigator, a member of Burning Wood Country Club, and, in his way, a man of immense charm. Where Romanesco told you how he was going to screw you, DeBorracho screwed you without warning and then sent a handwritten note of condolence. He was a tall, thin, sardonic man with a drink perpetually in his hand and an expression on his face that suggested he found the entire human comedy mildly amusing but not worth getting excited about. He and Romanesco had been partners for eighteen years, operating under the firm name Romanesco & DeBorracho, which sounded, as Bernie Sasso had once joked, less like a law firm and more like an Italian restaurant where the portions were enormous and the patrons wore expensive pinstripe suits.
They were, by all accounts, an excellent team. Romanesco was the courtroom man — the one who stood before juries and judges and delivered arguments with the passionate, theatrical conviction of a method actor who believed every word he was saying, even the ones he had invented that morning. DeBorracho was the strategist — the one who sat in the back office, read the briefs, and found the weaknesses. But either man could do the other’s job, which is why, when they turned on each other, neither had the advantage. Together, they won far more than they lost, billed at rates that caused their clients to wince and their competitors to seethe, and conducted themselves as men who enjoyed their work and saw no reason to apologize for the bill.
Their clubs were different — Romanesco at La Cucaracha, DeBorracho at Burning Wood — but they played in each other’s annual member-guest tournaments and alternated guest days monthly, so that Phil was a familiar face at La Cucaracha’s patio bar and Tony was equally at home at Burning Wood. Phil had once played his guest rounds at Burning Wood with Don Pengerson, until Pengerson won the team low gross in the annual member-guest tournament on his own ball and was banned for eternity — a sentence Pengerson accepted with the quiet amusement of a barred card counter who has won so thoroughly that the punishment served as a compliment.
Then DeBorracho moved some money.
I will not go into the details of what DeBorracho moved, or from where, or to where, because the details are the subject of legal filings that run to several hundred pages and that I have not read and do not intend to. What I can tell you is that Romanesco, upon discovering the movement of the money, experienced the incandescent wrath of a man who has spent his career telling other people exactly how they were going to be screwed and who has now discovered, with a shock that bordered on the existential, that he has been screwed himself.
He sued DeBorracho. He sued him for breach of fiduciary duty, which is the legal term for taking your partner’s money and putting it where your partner cannot find it.
DeBorracho filed a cross-complaint. Of course he did. DeBorracho was a litigator, and a litigator who has been sued does not sit peacefully and absorb the blow. He cross-complains, because the cross-complaint is to the litigator what the counter-punch is to the boxer: instinctive, visceral, and dispatched with the full weight of professional training. DeBorracho’s cross-complaint alleged that Romanesco had been overbilling clients, underreporting revenue, and conducting the firm’s affairs with a disregard for fiduciary standards that DeBorracho described, in his pleadings, as “systemic and pervasive,” which are the two words that litigators use when they want the judge to know that this is not a misunderstanding but a way of life.
The partnership was dissolved. The firm name came down. The offices were divided. The clients were parceled out in negotiations that, I am told, made a Montecito divorce look like a spirited game of pickleball. Two men who had shared a letterhead for eighteen years now occupied separate offices on opposite sides of State Street, and each was paying a separate team of attorneys to argue, in separate filings, that the other was a thief.
And every day, at twelve-fifteen, they met for lunch.
I must pause here, because I can see that you think I am joking. I am not. Tony Romanesco and Phil DeBorracho, while actively suing each other for breach of fiduciary duty, met for lunch every day at the same private dining club on Chapala Street — where the staff had the good sense not to ask questions — and compared notes on who was winning. A number of La Cucaracha and Burning Wood members also belonged to this dining club, and they watched the drama with undisguised fascination, reporting back to their respective golf clubs with the breathless reliability of foreign correspondents filing dispatches from the front. The monthly guest days provided additional intelligence, as members from both clubs watched in disbelief the two combatants playing golf together with the serene collegiality of men who were not, at that very moment, suing each other for everything they owned.
They did this openly. They did this shamelessly. They did this with the collegial enthusiasm of two chess players analyzing a match in progress, except that the match was a lawsuit and the stakes were several million dollars and not a single missed lunch.
“Your cross-complaint was weak,” Romanesco would say, over the bruschetta.
“It was not weak. It was strategic. You’ll see why when I call your CPA to testify,” DeBorracho would reply, signaling for another glass of the EnRoute.
“You’re not going to depose my CPA.”
“I’m going to call your CPA, your bookkeeper, and your housekeeper to testify, and by the time I’m done, the judge is going to wonder how you ever passed the bar exam.”
“That,” Romanesco would say, reaching for the focaccia, “is the best idea you’ve had all week. Check, please.”
They split the check. They always split the check. Even this was a negotiation.
At La Cucaracha, the membership watched this performance with a fascinated horror usually reserved for watching a man propose in a restaurant to a woman who is clearly about to say no. At Burning Wood, the reaction was much the same. Even at The Valet Club, where suing a fellow member was expressly forbidden under the club bylaws, the membership followed the proceedings with the guilty voyeurism of people watching a sport they have officially condemned.
The lawsuit ground on. Depositions were taken. Experts were retained. Forensic accountants were hired, at rates that caused even Romanesco, who had spent his career hiring forensic accountants, to raise an eyebrow. Motions were filed. Motions were argued and denied. Motions for reconsideration were refiled with additional exhibits. The legal bills accumulated on both sides with the quiet, implacable persistence of snowfall in the Sierra Nevada, and the attorneys — not Romanesco and DeBorracho themselves, who were too smart to represent themselves, but the attorneys they had retained, who were among the most expensive available — grew sleek and well-fed on the proceeds.
On one occasion, over the pasta course, Romanesco leaned forward and said, thinking aloud with a speculative air, that he was considering having an affair with the opposing attorney’s paralegal in order to obtain confidential information.
DeBorracho lowered his wine glass. He did not dismiss the idea. He considered it. He considered it with the professional exactitude of one who has spent his career evaluating strategies on their merits, regardless of whether they were ethical, legal, or likely to result in disbarment.
“It would work,” DeBorracho said, slowly. “In theory.”
“It would work brilliantly,” said Romanesco. “The question is whether anyone would actually do it.”
They both thought about this for a moment.
“No,” said DeBorracho.
“No,” Romanesco agreed. “I don’t think anybody would ever have the nerve to do that.”
They clinked glasses. I am told that an attorney from another firm, seated at an adjacent table and recognizing both men, watched this exchange in wonder, his understanding of the legal profession having just been fundamentally revised.
The case went to trial, and the trial lasted three months, during which the local legal community and both club memberships were treated to the spectacle of two of the area’s finest litigators being litigated against by attorneys who were billing at rates that would have made a cosmetic dentist blush.
And every day, at twelve-fifteen, on Chapala Street, the two litigants sat across from each other, ordered the ribeye steak sandwich, rare, and discussed the case.
“Your expert is going to get torn apart on cross,” said DeBorracho, one Tuesday, over the penne.
“My expert is a former partner at Deloitte.”
“Your expert is a former partner at Deloitte who was fired for cause, which I know because I interviewed his former secretary last week, and she was extremely forthcoming.”
Romanesco set down his fork. “You interviewed his secretary?”
“I did.”
“That’s good. That’s very good. I wouldn’t have thought of that.”
“I know you wouldn’t have. That’s why I’m going to win.”
The case settled on a Friday, during trial, after their respective attorneys spent eleven hours in a conference room producing an agreement that neither man was happy with, which is, as I have noted before, the definition of a settlement. Money changed hands. Releases were signed. The complaints were dismissed with prejudice. The forensic accountants packed up their spreadsheets and went home.
On Saturday evening, Romanesco and DeBorracho were both at Casa de Sevilla — Jabba’s restaurant, before Jabba’s sudden departure — with their respective wives, at separate tables. It was Romanesco who picked up his wine glass, crossed the room, and sat down across from DeBorracho.
“Phil,” he said.
“Tony,” said DeBorracho.
“Guest Day next Wednesday?”
“Next Wednesday.”
They played golf the following Wednesday at La Cucaracha. Romanesco shot an eighty-one. DeBorracho shot an eighty-seven, ordered a double at the patio bar, and then asked the wine steward to wrap up a bottle of well-cellared EnRoute Pinot Noir to take home — a request that Romanesco, whose member account would absorb it, permitted with the magnanimity of a victor who has won the larger war.
They never spoke of the lawsuit again. Not at the club. Not at lunch. Not anywhere. It was as if it had never happened, except that it had, and everyone at La Cucaracha knew it had. When asked, both men said only that the matter had been resolved to the satisfaction of all parties, which is the sentence that lawyers write when neither party is satisfied and both have been told to shut up.
They still have lunch every week. Same dining club. Same table. Same time. The staff still don’t ask questions. The monthly guest days continue — Romanesco at Burning Wood, DeBorracho at La Cucaracha — and they discuss whatever two men who have known each other for thirty years discuss — family, sports, the market, and whether the dining room has changed the wine list for the worse.
“The point,” he said, “is not that they sued each other. The point is that they had lunch while they were doing it. There are men who can hold two contradictory truths in their heads at the same time — that this man is my friend, and that this man has wronged me — and who can act on both without losing either. Most of us cannot. Romanesco and DeBorracho could.”
The man at the bar was quiet for a moment.
“You told me to take him to lunch,” he said. “I took him to lunch. He sued me anyway.”
The Oldest Member finished his gin and tonic and set the glass down with quiet finality. “My dear fellow, if Tony Romanesco and Phil DeBorracho can sue each other for everything they own and still play golf on Wednesday, you can buy out your partner, settle the matter, and still send him a card on his birthday.”