The correspondence respecting the case of Omri Tal versus Solomon Vered and Movil & Co. Ltd was dumped unceremoniously on my desk late in the morning, on a heavily clouded day in early spring, by Jacob Keren, sole proprietor of J. Keren & Associates, Advocates, of Rothschild Boulevard, Tel Aviv. A short choleric man in his late fifties, with thick glasses, receding hair and a loud metallic voice, he was – as was his wont – in a foul mood.
“I can’t understand why this idiotic matter has been sent to us. Ruth Schwartz ought to handle such a simple case from her smart desk at Rotem. Find out why she passed it on to us, will you, Eli?”
“When do you need the answer, Mr Keren?”
“Yesterday!!!” he muttered.
“I’ll attend to it over lunch,” I heard my mute reply.
“Very good! And – before I forget – think who would be good person to handle the case! And that file of Kadmon you are working on can wait: he sat on it for three months!”
“Very well, Mr Keren!”
“And, Eli, did I see you yesterday in ‘Habimah’?”
“I was there. I love Peer Gynt! Where were you seated?”
“Circle, 3rd Row! What did you think of the performance?”
“Excellent. But I wish Finkel had curbed his Russian accent!”
“You can’t expect everybody to speak Hebrew like a Yekke!” He retorted, departing before I had a chance to recover.
It was fortunate that the last exchange took place in 1958. Three years earlier on, when I had joined Keren’s firm during my last year in Law School, his pungent retort would have crushed me. My long spell in his firm, taught me to take Jacob Keren’s acid tongue with a pinch of salt. To start with, it had dawned on me that, like most Russian Jews, Keren respected the mid-European German speaking Jewry. His jibes at the Yekkes camouflaged cultural envy. I had also worked out that Keren’s assessment of his staff was based on their performance. If you were good at your job, you could safely ignore his outbursts, tantrums and patent rudeness.
Jacob Keren’s mannerism did not endear him to his employees. Many banged the door never to return. On a few occasions, I, too, came close to quitting. Invariably, though, I decided to stick it out. Jacob Keren was a brilliant courtroom tactician, had a singularly sharp and methodical legal mind and was an excellent teacher. During my years in his firm, I grew from a starry-eyed law graduate into a realistic and down to earth lawyer.
Placing Kadmon’s file in my ‘hold’ tray, I got stuck into the papers referred to me. Running quickly through them, I concluded that Keren’s outburst was well founded. The facts of the case were plain. Omri Tal, a young dental technician, had been riding home on his bicycle after a pleasant evening in a dancing club in Ramat-Gan. He was proceeding along a poorly lit and narrow stretch of road on his way back to Tel-Aviv, when a truck bumped into him. Fortunately, he escaped without head or back injuries. But his right leg was a mess. His shin and thigh bones sustained multiple fractures and his knee cap was smashed. Omri spent eight days in hospital followed by six weeks at home, with his leg in a cast. The bones healed. But the report of his orthopaedic surgeon affirmed that a certain weakness would remain for life and that his knee would be stiff for years to come. A second orthopaedic surgeon, engaged by our clients – the Rotem Insurance Company – confirmed that Omri’s injury was of a ‘permanent or semi-permanent’ nature.
Omri Tal conceded that the accident was caused in part by his own ‘stupidity’. The charger, connected to the headlight of his bike, had been out of order for a few days and he had not “had the time to get it fixed or to buy a torch”. His dark clothes exacerbated the visibility problem. The driver, who had knocked Omri off his bike, was also at fault. Solomon Vered had been on the road since 6.00 a.m. On his own admission, he had been ‘dead tired’ when he picked up his last load for the day in Netanya. The delivery, though, was marked ‘urgent’. The designated relief driver was ill in bed and Solomon Vered, whose son was in his third year in the School of Engineering, coveted the generous overtime pay. He conceded that, had he not been ‘so exhausted’, he might have spotted Omri although the bike was without lights.
The basic legal position was clear: the loss was to be apportioned based on the parties’ fault, which meant that each of them had to bear a part reflecting his contribution to the occurrence of the accident. In the instant case, any lawyer practising in the field would have predicted a division of approximately fifty-fifty, with a possible variation of up to 10% either way depending on the facts emerging in the cross-examination. It followed that Rotem had to reckon with the payment of damages equalling about one half of the loss sustained by Omri.
The difficulty in the case was in quantifying that loss. Naturally, there was no argument about the amount due to Omri for the money he lost during the eight weeks he was unable to work. His annual income was about IL4,000. Accordingly, this loss amounted to about IL615.00. Rotem had agreed to pay half of that amount and was prepared to cover Omri’s medical expenses. In addition, the firm was prepared to pay an appropriate sum by way of damages to compensate him for the pain and sufferings he had sustained during the period involved.
The contentious element concerned two further claims made by Omri’s lawyers. One was for loss of future earnings resulting from the permanent injury to his right leg. In a letter addressed to Rotem, Omri’s lawyer, Boaz Tamir, said that dental technicians did most of their work on their feet, standing by their bench or “moving about in their sophisticated workshops, equipped with kilns, moulds and other instruments placed on different work stations”. Omri’s accident was bound to slow him down considerably, reducing his foreseeable future earnings by at least 50%. Taking into account all factors, including the benefit derived by the payment of a lump sum ahead of the anticipated earnings, the damages so suffered were assessed at IL18,000.00. Ruth Schwartz, Rotem’s in-house legal adviser, expressed her strong disagreement in her reply. Jacob Keren was less adamant. “Ask for further particulars,” was scribbled in the margin of our copy of Boaz Tamir’s letter.
Omri’s other controversial claim had nothing to do with his profession. For the three years preceding the accident, he and his charming girl friend had held the Israeli Dancing Club’s trophy for the Rumba and were also voted the runners up in the Polish Folk Dances competition. Boaz Tamir dealt with this aspect of the claim in a few pungent sentences: “It is a shame that our client’s injuries – which will prevent him from taking part in further dancing competitions – have deprived the Israeli World of Art of the stimulating input of a most able and promising participant. It saddens us to have to say that our client will never regain his skills as a virtuoso dancer. The quality of his life will, thus, not be the same as prior to the accident!”
The amount of IL30,000.00 demanded for the ‘ensuing loss of enjoyment of life and consequential mental pain’ made me gasp. Ruth Schwartz’s reaction had been equally strong. In her reply, she described the claim as unreasonable and wildly excessive. On this point, Jacob Keren voiced his consent, scribbling: “Why not suggest the young man take up a less strenuous hobby like playing the piano or crossword puzzles?”
Usually, cases of this sort ended with an amicable settlement. But Boaz Tamir was a tough, tenacious and shrewd courtroom virtuoso. I had argued cases against him in mock trials during our days in Law School. Although I had bested him on fine questions of law, he had a knack of springing surprises on points of fact. Frequently, he pulled the rug from under the feet of myself and other adversaries by presenting fresh evidence or by twisting the tail of one of our witnesses. He had put his gladiatorial skills to good use after being called to the Bar.
Ruth knew she was no match for Boaz. When he rejected her overture for a settlement, she decided to play safe. She passed the file on to her old pupil-master and first employer, Jacob Keren. His jaundiced remarks about the referral were triggered by his natural resentment of employees who left his firm to join the staff of one of his major clients. Although for all outward appearances he remained on good term with Ruth, he continued to smoulder about her desertion.
I spent the next two hours on a further perusal of the documents. I soon noted that Boaz had cooked his figures. A meticulous search in our library established, further, that the claim for Omri’s loss of future enjoyment on life was flawed. In his enthusiastic quest for justice, Boaz had conveniently forgotten that the law imposed on the injured party a duty to mitigate his loss. This meant that if Omri was no longer able to pursue his original vocation or hobby he had to look for suitable alternatives. Encapsulating my conclusions in a short, hand written note, I added: “I suggest we call the plaintiff’s bluff: in my opinion, Hannah Hod is the best person to take charge.” Satisfied with my decision, I delivered the file to Jacob Keren’s secretary. Then, just as the clock chimed 2.00 p.m., I rushed out to grab a sandwich for lunch.