Jacob Keren expressed satisfaction with the authorities I had unearthed in Jerusalem. They established that the issue involved was very much alive. Usually, we would have appraised the other party’s lawyer. However, sending my detailed opinion to Ben Zion Vered was risky. His duty would be to plug holes in it. Jacob Keren considered it safer to leak the opinion to Rotem.
“But how?” asked Rachel. “Wouldn’t this be … unethical?”
“If we sent it to Ruth Schwartz or Hannah Hod, Vered might raise the matter with the Law Society; and justifiably so. But remember: I am a director of Rotem. What is there to stop me from showing to the Board an opinion which I received in the course of my professional activities?”
It was a sound strategy. It ensured that my opinion would be dispatched to Ben Zion by his own clients, under the guise of an analysis that casts doubts on the firm’s general business orientation. He would have to weigh the argument raised by me as a general concept or doctrine and not merely as a point raised in the context of our case. Rotem would have to appreciate that my conclusions were tenable.
Two weeks later a meeting of the parties involved was arranged at that Rotem’s request. The comity of the Bar demanded that we convene it in our office. As we did not have a proper Board Room, Jacob’s Keren spacious office was the venue.
Rotem was represented by Ben Zion Vered, flanked by Ruth Schwartz and Hannah Hod. Rachel and I looked after Dahlia’s interests and Boaz after Franz Wolf’s and Wollor’s. Wolf, too, was present. Although the clients would usually be asked to come over only during an advanced stage of the negotiations, Boaz insisted that Wolf’s knowledge of German law would stand all parties in good stead. Jacob Keren, who attended as Dahlia’s senior counsel, occupied his usual place behind his imposing desk. This position conferred on him the extra authority usually enjoyed by a chairman. It was reinforced by the neutrality dictated by his special and long-standing relationship with Rotem.
Ben Zion started the ball rolling by describing the opinion, signed by Rachel and myself, well reasoned. He then turned to me and asked pointedly whether I believed the arguments raised by us would be accepted by a court. How would I rate the chances?
“About fifty-fifty,” I admitted
“Perhaps somewhat better than that,” interceded Boaz. “The courts are aware that section 64 is still alive. I’d say the chances are about 60% or even 70% in favour of the view expressed in the opinion.”
“I was inclined to rank them as 40%,” disagreed Ben Zion. “Still, in view of the plaintiff’s compelling case, I’d accept Eli’s fifty-fifty assessment. What do you think, Mr. Keren?”
“Difficult to say,” Keren spoke judiciously. “A few years ago, I should have thought such an argument was bound to fail. Our judiciary is conservative and inclined to regard English law as sacrosanct. But the winds seem to be changing and, of course, Dahlia will have the sympathy of the court. Therefore, I think the chances are slightly better.” Pausing for a moment, he added: “Seen from Rotem’s point of view – or of the business world in general – it might be sensible to deal with this point in a less disturbing case.”
“I agree with this sentiment,” observed Ruth Schwartz.
“Actually, so do I,” nodded Ben Zion. “This is an unusual case and, of course, Wollor is a client of long standing. We accept that this in not an ordinary case of a lapsed policy.”
“So, what do you propose?” stepped in Rachel. As often before, she started the practical negotiations at what appeared a favourable juncture.
“Without prejudice, we are prepared, in principle, to treat the policy as if it had not lapsed,” said Ben Zion. “But, of course, we must discuss the amount involved and consider some apportionment.” Ben Zion’s last words suggested that he would expect Wollor to meet part of the claim. The percentage would depend on the excess clause in the original policy and possibly on the extent of Wollor’s fault.
“I am not clear about the second point,” Boaz interceded. “Surely, the policy covers Wollor’s third-party liability. So why does it matter whether or not the accident can be attributed, in whole or in part, to its own negligence. It is irrelevant.”
“It’s not that simple,” countered Ben Zion. “According to clause 12 of the policy, Wollor is not entitled to be re-paid more than 50% of a loss caused by its gross negligence.”
“Why is that of any relevance here?” I thought it important to ask.
“Because,” explained Hannah, “the ‘Safety in Operations’ section of the manual supplied to Wollor emphasised the guillotine must be switched off at the mains when it is serviced or cleaned. We appreciate that this does not have a bearing on Dahlia’s claim against Wollor; but it affects our liability to Wollor. It would be relevant even if the policy had never lapsed.”
“That puts it in a nutshell,” echoed Ben Zion. “Mr. Keren, don’t you agree?”
“I am not sure I ought to express an opinion,” prevaricated Keren. “I am in a somewhat delicate position.”
“But this is a without prejudice meeting,” insisted Ben Zion. “Everything we say is confidential. As an experienced personal accidents lawyer, you must have formed an opinion.”
Keren caved in. “Doctrinally you are right. But is this the way you expect Rotem to act in a case like this? If Dahlia gets an inadequate amount, the surgical steps may be in jeopardy!”
Ben Zion fidgeted. It was clear that Jacob Keren’s measured pronouncement carried weight with him. As an observant Jew, he felt respect for his elders.
“I agree with Mr. Keren’s view,” stepped in Hannah. “This is not an ordinary case. We are entitled to rely on an excess clause and on clause 12. But do we want to do so in this case?”
“Well, so what do you say, Hannah?” stepped in Rachel.
“It’s a difficult one,” explained Hanna with some awkwardness. “The terms of an agreement have to be observed: this is trite law. But – for the last two weeks – I have been tormented by one though: what would I feel if the victim had been my Tali and an insurance company had taken this stand. Need I say any more?”
Her words left an impression on all of us. Here was a tragic accident, which in all probability ruined the life of an innocent victim. True, the mains should have been switched off. But how could Dahlia – a temporary relief worker – proceed to do so when even the boss himself, Franz Wolf, had handled the guillotine without taking this precaution.
Ruth Schwartz and Jacob Keren nodded. Winking at me, Boaz added: “This sort of technicality – this clause – subjects the Law to the contempt of ordinary people. Surely, you agree, Ben Zion.”
“As a man, I agree,” he said unhappily. “As a responsible attorney, in charge of Rotem’s interests, I am bound to raise this issue. It is my duty as lawyer!”
Boaz agreed. “In your position I should feel under a duty to take the same stand. But don’t you think that Rotem has to protect the humanitarian reputation it enjoys in Israel?”
“That is not for me to decide,” Ben Zion let his unhappiness show. “That is a policy matter, to be decided by Rotem’s management.”
“I shall raise it with them.” Ruth Schwartz was speaking as senior in-house counsel. “I agree with Hannah’s summary. I am sure we all do, both here and in other forums.” She had addressed the last few words to Jacob Keren, her former pupil master.
“I suggest we meet again in, say, 10 days or so,” said Keren. “And let all clients be there. Any further point?”