Dead Man's Rule (3 page)

“This isn’t discovery, Your Honor, it’s harassment,” Ben insisted. “My client’s tax returns are private documents that have no bearing on any issue in this case. I therefore ask the Court to deny defendants’ motion.”

Judge Ryan had nodded several times while Ben’s opponent argued, but he looked at Ben with an expression of withering skepticism that is only truly mastered by trial-court judges and grade-school principals. He ran his fingers through his thin white hair and sighed. “Mr. Corbin, I’m going to grant the motion, and you’re fortunate I don’t sanction you as well. In a trade-secrets case, the plaintiff has to turn over lots of private documents, as you should know by now. Your client has ten days to produce the records.”

“But Your Honor, these records have nothing to do with—”

“I’ve made my order, Counsel,” Judge Ryan said flatly. He turned to his clerk. “Call the next case.”

Hiding his disgust, Ben slipped the motion papers into his briefcase and strode out into the hallway. As he waited for the elevator, he found himself standing next to the lawyer who had just defeated him, a man named John Weaver. Weaver was a partner in a big litigation firm, which he seemed to think made him a courtroom heavyweight—even though he had never actually tried a case. He was the number-two lawyer on the case. That meant he made most of the decisions prior to trial. Steve Rocco, a well-known senior litigator, was the number one, but he wouldn’t get significantly involved until the case got close to trial or settlement. “I never heard back from you on our settlement offer,” Ben said evenly.

“That should tell you something, shouldn’t it?” responded Weaver with a sardonic half smile. “I’ll get you a formal response, but I can tell you what it will be. Frankly, your $25 million offer is laughable. We may offer a few thousand as a nuisance payment to make this case go away, but that’s it.”

Ben had expected something like that. “You’re that sure you’re going to win?”

“Yeah, I’m sure,” Weaver said as the elevator doors opened and both men stepped in. “Your client’s case is totally baseless.”

“So was your motion, as we both know.”

Weaver smiled but said nothing.

“But look what happened,” Ben continued. “You can’t be sure of anything in that courtroom. Judge Ryan is like a barroom drunk waving a gun around. Today it was pointed at me; tomorrow it may be pointing at you, and neither of us knows where it’ll be pointing when it goes off. Your client faces liability of up to $100 million, and there’s no way you can honestly tell them they have a seventy-five-percent chance of winning.” The elevator jerked unsettlingly, then came to a stop. “Think about it,” he said as the doors opened. “I wouldn’t laugh too hard at $25 million if I were you.”

Weaver chuckled. “But you aren’t me, are you?” he said as they stepped out into the crowded courthouse lobby. “And you sure aren’t Steve Rocco. Look, I said I’ll get you a formal response to your offer and I’ll do it, but you and your client will need to seriously rethink your position if you really want to settle this case.”

The two lawyers parted ways as they walked through the banks of steel-and-glass doors surrounding the Daley Center, Chicago’s massive high-rise state courthouse. A wide stone plaza sprawled immediately to the south, watched over by an ominous fifty-foot-tall sculpture by Pablo Picasso. The city of Chicago was quite proud of the statue but not quite sure what it was supposed to be. The prevailing theory among art critics was that it was the head of a woman. Ben had always thought that was questionable at best. The statue was black-and-gray steel, and it had wings, a long beak-like snout, and an empty ribcage. Several of Ben’s clients had commented that it looked like a hungry vulture, which they found to be a particularly apt guardian for a hive of lawyers.

The city put the plaza to good use, and today it held a bustling farmers’ market. A maze of stalls sold apple butter, gooseberry preserves, maple syrup, gourds, fresh flowers, and anything else that could legally be grown for profit in the Midwest. The chatter of rural sellers and suburban and urban buyers reminded Ben pleasantly of a county fair.

He spent twenty minutes wandering around the market, making an effort to shake off his irritation at the judge’s ruling and Weaver’s arrogance. He gradually relaxed as he walked, and he was actually in a good mood by the time he finished paying for a half dozen ears of sweet corn.

“Will it be a problem to give them the tax records?” asked Noelle.

“Not really,” said Ben. He and Noelle were sitting on their back deck, finishing a delicious dinner of grilled pork chops and the corn Ben had bought. They sipped iced tea and enjoyed the unseasonably warm October evening. The rich golden light from the low sun gave everything it touched a soft glow, bringing out the auburn highlights in Noelle’s brown hair and making her deep-blue eyes strikingly luminous. Ordinarily, Ben would have said something nice to his wife, but tonight he was distracted. “Nothing in them has any impact on the case—a point that Judge Ryan completely ignored.”

“Is that what’s bugging you so much?”

Ben didn’t answer right away. He thought for a moment, gazing at the row of oaks at the back of the yard, their red leaves beginning to thin as autumn took hold. “Well, I hate getting criticized by a judge, particularly when he’s wrong,” he said after a moment. “But what really bothered me was Weaver not taking me seriously.”

“He’ll learn his mistake in court,” said Noelle.

Ben shrugged. “I hope so.” He paused again. “You know what? Seven months ago, if I’d been in Weaver’s shoes, I would have thought the same thing he did. I wouldn’t have been pompous enough to say it, but I would have thought it. Maybe that’s what’s really eating at me; I’m afraid I’m becoming something I don’t respect.”

“What do you mean?”

“I left Beale & Ripley because I wanted to do something better. I was tired of always representing big corporations that used my cases as leverage in their business strategies. Even my big courtroom victories didn’t have much real meaning.”

She nodded. “I remember. You used to joke that your job was ‘to redistribute wealth from the rich to the rich.’”

“Exactly, except it wasn’t really a joke. I was ‘kidding on the square,’ as Uncle Mike used to say. That’s why, when the time came for me to make a run for partner, we prayed about it. Would I spend even more hours in the office and out entertaining clients? Or would we give up the security and comfort of big-firm life so I could go out on my own and you could open your own accounting practice?”

She cocked her head and wrinkled her brow. “Yes, and we did exactly what we thought God was leading us to do. So why did you stop respecting yourself all of a sudden?”

“Look at me.” Ben spread his arms. “I’m running around hustling nickel-and-dime cases to make my rent. I’m just a small-time solo practitioner. When I left Beale & Ripley, I wanted to take cases that would make a difference in people’s lives. The only one I’ve got that fits that bill is
Circuit Dynamics
, and I just took a shot from the judge who’ll be trying the case.”

Noelle bit her lip. “Um, speaking of paying the rent . . .”

Ben winced. “Are we past due?”

She nodded. “The check from Anderson Engineering bounced, so I couldn’t pay Chicago Properties. I called Ed Anderson and told him I was going to break his kneecaps if he didn’t have a good check in my hands within twenty-four hours. He said he’s bringing over a new check tomorrow morning, but even if it’s good, it won’t clear for at least another day after that.”

Despite the bad news, Ben couldn’t help smiling at the thought of his five-foot-four, 110-pound wife threatening to take out the knees of the burly engineer. “And by then we’ll be past the grace period and we’ll get hit with another $500 penalty, right?”

Noelle nodded.

Ben closed his eyes and sighed. “Any bright ideas?”

“We just don’t have $3,000 free right now. We could try to take out a loan, but that would be hard to do on such short notice. Also, we could easily spend $500 on transaction costs and interest.” She thought for a moment. “Is there any work you could do that could raise some quick cash? What about that guy the Pugos referred? What kind of work did he want?”

“Well, he wants a TRO and a preliminary injunction,” Ben explained reluctantly. “He’s willing to pay a $5,000 retainer.”

“Terrific! That’ll take care of the rent and leave enough extra to pay for the new computer we wanted.”

Ben frowned. “This is
exactly
the kind of work I’m trying to get away from. It’s just a two-bit little breach-of-contract case, but it could take up a lot of time over the next month, and I really need to focus on
Circuit Dynamics
. I was going to call this guy after dinner and tell him I couldn’t take his case.”

“Ben, we need that money. What if the Andersons bounce another check? Chicago Properties has already threatened to evict us once. You can’t focus on
Circuit Dynamics
without an office.”

Ben stared out into space, his jaws clenched in anger and frustration. The only way he was going to get more good cases was to do a good job on
Circuit Dynamics
, but he couldn’t do that unless he gave it enough time and attention. But if he gave
Circuit Dynamics
the time and attention it deserved, he wouldn’t be able to pay his bills—which would also prevent him from doing a good job. He felt trapped in a vicious cycle of mediocrity. He blamed his deadbeat clients for putting him in this bind, and he blamed himself for working for obvious (at least in hindsight) deadbeats, and particularly for not making them pay up front. But he didn’t really have a choice. “Okay,” he said at last, “I’ll take the case.”

C
HAPTER
T
WO

H
AIR ON
F
IRE

Ivanovsky was waiting outside Ben’s office when the Corbins arrived at 8:05 the next morning. He wore a threadbare overcoat and a knit hat pulled down over his ears. When he saw Ben, he started toward him in a slightly shuffling walk, holding his battered briefcase in front of him with both hands. “Good morning, Mr. Ivanovsky,” said Ben. “I hope you haven’t been waiting long. I wasn’t expecting you this early.”

“I wanted to be here so you could start suing as soon as possible,” Ivanovsky explained. “I have this money for you,” he added, gesturing to the briefcase.

“Okay, good,” said Ben as he unlocked the door. “Come on in.” He was afraid the man would start handing him wads of cash in the hallway and quickly ushered him and Noelle into the lobby. “This is my wife, Noelle. She and I share offices, and she helps me run my practice.”

Ivanovsky nodded to Noelle and shook her hand. “Pleased to meet you,” he said. “Will you be working on the case too?”

“Nice to meet you too,” she responded. “I’m not a lawyer, I’m an accountant. I handle the firm’s finances.”

“Oh, then I should give these to you,” he said as he pulled out a sheaf of traveler’s checks. “I need to sign these in front of you so Mr. Corbin can start on the court papers.”

Seven hours later, Ben was just finishing the first draft of a complaint and a set of TRO papers. He stopped typing and frowned at the computer as if it had let him down. The TRO argument didn’t convince him. And if it didn’t convince him, there was no way it would convince the judge.

The problem was that Ivanovsky was trying to enforce a contract. Courts typically don’t grant TROs in contract cases because the proper sum of money is enough to make good nearly any breach of contract. If the plaintiff will be entitled only to a monetary judgment at the end of the case, the reasoning goes, it doesn’t make sense to issue orders restraining the conduct of contract violators.

The only way Ben could think of to get around this rule was to show that money alone could never fully compensate Ivanovsky—and the only way to prove that would be to show that whatever was in the box was unique and could not be replaced no matter how much money he got. And that meant Ben needed to talk to his client.

Ivanovsky picked up the phone on the first ring. “Ivanovsky.”

Ben identified himself and explained the situation. “So, Mr. Ivanovsky, I need to prove that the contents of that box are one-of-a-kind items.”

“They are. I will put my hand on the Bible and swear it.”

“Good, but you’ll need to do more than that. You’ll need to explain
why
they’re unique. Can you describe any of these pieces for me?”

Ivanovsky was silent for several seconds. “I have never seen inside the box, but the man I talked to at Saint Vladimir—he said he thought the jewelries were very old and very extraordinary.”

That might work, but more detail would be better. “Do you have the number of the man who told you that?”

“He is now in Russia and cannot be reached,” Ivanovsky said firmly.

“Okay, can you give me any more details?”

“No. I told you, I have not seen inside the box.” And that was all Ben could get out of him.

Ben finished the papers at 4:30.

At 4:55, he called American Union Bank’s legal department to warn them that he was seeking a TRO and to ask them not to let anyone into box 4613 until the court had ruled. The bank officer readily agreed.

At 5:05 (after the bank had closed), Ben prepared to call Nikolai Zinoviev to alert him that they would be seeking a TRO against him at 8:30 the next morning. Ben technically didn’t have to notify his opponent, but few judges would grant a TRO unless the opposing party had been given a chance to be heard.

Ben hesitated before dialing. These calls were never fun, but they could be useful. Defendants generally had no idea they were being sued until they got the TRO call, and they often went ballistic. If Ben played his cards right, however, he could sometimes talk defendants out of opposing a TRO, particularly in little cases like this.

After four rings, the answering machine picked up. “Hey, this is Nicki Zinoviev,” announced a reedy male voice with a Russian accent. “I’m not here right now, so leave me your name and phone number and I’ll get right back to you.”

“Hi, Mr. Zinoviev. My name is Ben Corbin, and I represent Mikhail Ivanovsky. He has sued you for possession of the contents of a safe-deposit box, and I’ll be appearing in front of Judge Harris at eight thirty tomorrow morning at the Daley Center to request an order preventing the box from being opened for the next ten days, so we can sort this all out. I’m having a set of the papers messengered to you tonight. You can appear in court tomorrow morning if you want, but you don’t have to. As I mentioned, all we’ll be doing is seeking an order to keep the box unopened for the next week and a half. Feel free to call me if you have any questions.” He left his office number and hung up. Maybe that would keep Zinoviev out of court tomorrow morning, maybe not.

At 6:10, Ben and Noelle headed home for the last quiet evening they would have for a long time.

At 8:15 the next morning, Ben and Ivanovsky sat on one of the hard, plain wood benches at the back of Judge Alfred Harris’s courtroom. His court had the same utilitarian steel-and-oak decor as all the courtrooms in the Daley Center, though it was larger than most. At least fifty lawyers and their clients packed the spectator benches behind the railing that split the courtroom in two. More sat at the two counsel tables in front of the railing and in the jury box, since no juries were needed for the emergency-motion call.

The lawyers were a Whitman’s Sampler of the local bar: plaintiffs’ attorneys in sport coats and questionable ties, buttoned-down defense-firm lawyers in dark suits, and a surprising number of pillars of the bar in three-thousand-dollar Armanis making country-club conversation with each other. The clients were a mixed bunch too, but their faces all wore the same nervous and uncomfortable expression.

“Do you see Nicki Zinoviev anywhere?” Ben whispered to his client.

Ivanovsky scanned the courtroom and shook his head. “He’s not here.”

“Good.” Ben would still have to convince the judge to issue a TRO, but with any luck this would be an easy victory.

Ivanovsky v. Zinoviev
was near the end of the emergency-motion call list, so they would be waiting for quite a while. Ben didn’t mind. Judge Harris had a mercurial temper, and watching other lawyers go first would give Ben a pretty good idea what kind of mood the judge was in this morning. Also, although Ben didn’t expect Ivanovsky to have to testify, it would be good experience for him to watch other witnesses on the stand and see how a courtroom worked.

“All rise,” the bailiff ordered as Judge Harris entered through a door next to the raised dais that held his bench, a large piece of furniture that looked like a cross between a pulpit and an oversized desk. The judge was a tall, thin, olive-skinned man of uncertain ethnicity. He kept his ancestry vague to avoid being claimed by one of the city’s numerous racial and ethnic bar associations—and pigeonholed by the others. He was almost completely bald, and Ben would have assumed he shaved his head were it not for the strip of short iron-gray hair that adorned the back of his head just above his neck. It was a perfect mirror image of his thick mustache.

Judge Harris was a sharp jurist who ran his courtroom well and did not suffer fools, gladly or otherwise. He worked through the pile of motions efficiently, ruling promptly after hearing the minimum-necessary argument and evidence. He seemed to be in a generally good mood that day, overlooking the minor gaffes and excesses of the attorneys appearing before him.

His mood changed, however, when he reached the motion immediately before Ben’s. A flock of dour defense lawyers and bar luminaries stood up when the case was called, and crowded around the right-hand counsel table. A cluster of high-profile plaintiff’s attorneys coalesced around the left table. After they had all stated their names for the record, Bill Corcoran, a well-known plaintiff’s attorney, stepped up to the podium.

Judge Harris held up his hand. “I’ve read the papers and the legal authorities cited by both sides, Mr. Corcoran, and there’s no need for argument. Your petition is denied.”

Murmurs arose from both tables, and the defense lawyers started to get up, but Corcoran was not so easily dissuaded. “Your Honor, if I might be heard on this matter. This is an awkward issue that—”

“It
is
awkward—for you,” interrupted the judge. “That’s why you lost. Now, do you have anything to add to what’s in your papers?”

“We have several witnesses in the courtroom, Your Honor, who are ready to testify—”

“To exactly what is in their affidavits, correct?” interrupted the judge again, his irritation showing in his voice.

There was a history here. Corcoran and Harris detested each other. They had clashed before Harris took the bench, and Corcoran had contributed heavily to Harris’s opponents each time he had been up for reelection. Making matters worse, Corcoran was not used to getting slapped down by judges and did not take it well. “I am entitled to make my record, Judge, and I could do so very quickly if I could speak without interruption.”

Judge Harris glared at him. “Mr. Corcoran, your record is adequately made by your papers. Hearing you and your witnesses regurgitate what I have already read will do nothing but . . .”

Ben was distracted by a nudge in his side, followed by whispering in his ear.

He turned to Ivanovsky and whispered back, “Write me a note, we’re—”

“Mr. Corbin,” the judge said loudly from the bench, “you know better than to talk in my courtroom!”

Ben’s face turned hot and he felt like a fourth grader caught whispering in class. “Yes, Your Honor. I apologize.”

The judge turned back to lecturing Corcoran. “A TRO is an extraordinary remedy. I do not grant them lightly or often, and I never grant them unless I am convinced they are absolutely necessary. This is a commercial dispute, Mr. Corcoran, and I am not going to impose a TRO simply because your client believes the defendants have violated their contractual duties. I have seen very few cases in which a contractual breach could not be remedied by an adequate application of money, and you have not convinced me that this is such a case. Now, I have a courtroom to run, so please step away from the podium so the next case can be called.”

Corcoran did not move. “If the Court would just grant me five minutes to—”

Judge Harris’s face darkened and the veins in his neck bulged. “If you do not step away from that podium by the count of three, there is a gentleman here with a pistol”—he pointed to the bailiff—“who will take you to jail. One . . . two . . .”

Corcoran reluctantly stepped back from the podium, his teeth clenched with suppressed fury. Judge Harris stood, and so did everyone else in the courtroom. “We’ll take a five-minute recess and then finish the call.”

Terrific,
Ben thought as the judge walked out.
Now he’s in a bad mood, irritated with me, and unlikely to grant a TRO in a contract case. At least this should be uncontested.
After the judge left, Ben turned to his client. “I know I never told you this, but never, ever talk when court is in session. Now, what did you want to tell me?”

“He is here. Nicki Zinoviev. He walked in three minutes ago, and he sits over there.” He nodded toward the bench across from theirs.

Ben glanced over. A man wearing a double-breasted black suit with a matching black shirt and tie was doing his best to look nonchalant, but his eyes were wary. A gold watch showed at the end of his left shirtsleeve and a heavy gold bracelet adorned his right wrist, as did what looked like the end of a tattoo. He had long, thinning black hair slicked back into a short ponytail. Ben counted three earring holes in his left ear. “He looks like a drug dealer,” he whispered back to his client.

“He is a drug dealer.”

“Are you sure?” Ben asked.

Ivanovsky nodded.

Ben smiled, planning ways to use the information on cross-examination. “Any convictions?”