Dead Man's Rule (4 page)

Ivanovsky shrugged. “I do not know.”

Ben was about to follow up with more questions when another man walked in and sat down next to Zinoviev. Ben stared in surprise. “I wonder what
he’s
doing here,” he said softly.

“Who is he?”

“Anthony Simeon. He’s one of the ten or twelve best litigators in Chicago. I’d think this case was a little beneath him.”

The judge came back in and nodded to the clerk. “Line twenty-four, Ivanovsky versus Zeen . . . Zeeno . . .”

“Zinoviev,” supplied Anthony Simeon in his rich baritone as he approached the podium, giving the clerk a friendly smile. The clerk smiled back.

Simeon was close to seventy, but his perfectly coiffed gray hair, perpetually tanned face, and vigorous, engaging courtroom manner made him appear twenty years younger. He was a thickset man of medium height, but he had an outstanding tailor who made him look burly rather than overweight. He had an impressive book of a business, though he tended to look at his clients’ bank balances a lot more closely than their ethics.

Both the bench and the bar respected Simeon, but they did not particularly like him. Not that anyone actually
disliked
him—he was cordial and had a legendary sense of humor—but the general feeling was that he was best kept at arm’s length. He was a man of many acquaintances but no close friends: a polished gentleman brawler with a tendency to play hardball with friend and foe alike. That made him an unreliable ally and earned him the sobriquet “the Velvet Dagger.”

The two lawyers stated their appearances for the record, and Judge Harris immediately started questioning Ben. “Why should I issue a TRO here?”

“To preserve unique property, Your Honor. My client is entitled to a safe-deposit box containing one-of-a-kind jewelry that Mr. Zinoviev is now attempting to—”

“Surely this jewelry has a monetary value. What did your client pay for it?”

“Five thousand dollars, Your Honor, but—”

The judge held up his hand and looked at Simeon. “Is your client willing to post a five-thousand-dollar bond?”

Simeon glanced back at his client, who in turn looked at two men sitting in the back of the courtroom. One of them nodded. “Yes, Your Honor,” said Simeon.

The judge turned back to Ben. “Problem solved, no?”

“I’m afraid not. We’re talking about one-of-a-kind items of jewelry here that can’t be replaced by any amount of money.”

“You keep saying ‘one-of-a-kind,’ but that’s just a phrase from your client’s affidavit. What exactly is in the box that’s so unique?”

“As described in Mr. Ivanovsky’s affidavit, he only has secondhand reports that generally describe the jewelry. He has never been able to look inside the box himself, so—”

“So you can’t carry your burden of proof on this point, can you?”

“I think we have, Your Honor,” Ben replied, putting as much certainty in his voice as he could muster. “Under the law, it’s sufficient for purposes of a TRO to allege uniqueness. This is an emergency proceeding with no time for discovery. Once we’ve had an opportunity to look in that box, we’ll be able to provide more detail.”

“That’s my point. If you don’t know what’s in the box, you don’t know whether you’re entitled to a TRO. And if you don’t know whether you’re entitled to a TRO, you certainly aren’t going to persuade me to issue one.”

Ben was about to lose, and he knew it. He decided to take a chance. “Your Honor, there’s one person in this courtroom who knows exactly what’s in that box, and that’s Mr. Zinoviev. I ask the Court’s permission to call him as a witness.”

The judge turned to Simeon. “Counselor?”

“Your Honor, my client will be happy to testify when proper notice has been given, but it is highly unfair to ambush him like this. It is Mr. Corbin’s duty to present the Court with evidence sufficient to justify issuing a TRO—as Your Honor just noted, an extraordinary remedy—and he has not done so. If he had wanted Mr. Zinoviev’s testimony, he could easily have included a notice or a subpoena with the TRO papers he served last night. He hasn’t done that either. We can produce Mr. Zinoviev for deposition in the next few days, and Mr. Corbin can take his testimony then.”

“And in the meantime, he’ll be free to dispose of that jewelry, right?” observed the judge.

“A TRO can only issue on a proper showing, Your Honor. In the absence of that showing, there’s no reason to prevent my client from disposing of his property as he sees fit.”

“Your Honor, the only way I can make the showing you requested is to put Mr. Zinoviev on the stand,” Ben interjected.

The judge looked at each of them thoughtfully for a moment. “Mr. Simeon, you are correct that there is no basis to compel your client to testify at this hearing, but Mr. Corbin is also correct that he can’t make his TRO showing without Mr. Zinoviev’s testimony. Since Mr. Zinoviev is sitting in this room right now, I’m reluctant to deny a TRO just because he hasn’t been identified in advance as a witness. So I’ll tell you what I’m going to do. You can either let your client take the stand now or I can make certain assumptions about his failure to testify and issue a TRO that will last until twenty-four hours after his deposition takes place. You choose.”

“May I have ten minutes to discuss this with my client?”

Judge Harris glanced at the clock on the wall. “You can have five.”

The judge went into his chambers and Simeon, Zinoviev, and the two men from the back bench filed out into the hall.

Ben guessed that Simeon would put Zinoviev on the stand rather than agree to a TRO. Otherwise, the judge might suspect that Zinoviev’s unvarnished testimony was bad for his case and needed to be polished before his deposition. Also, as a practical matter, it was easier to get a judge to continue a TRO that was already in place than to enter one
ab initio
.

Ben spent his five minutes scribbling down notes for his cross-examination and asking Ivanovsky terse, whispered questions: “Who were those men in the back of the courtroom?” Ivanovsky didn’t know. “Did Zinoviev have any criminal convictions, whether for drug dealing or not?” Ivanovsky shrugged. “What price had the second buyer agreed to pay for the jewelry?” He didn’t know that either. “Who was that buyer?” No idea.

“But you will win?” Ivanovsky asked anxiously.

“I’m not sure,” replied Ben. “That’ll depend on what Zinoviev says on the witness stand.”

“But you must win!”

“I’ll do what I can.”

The judge reappeared just as Ivanovsky seemed about to say something else. A few seconds later Anthony Simeon and company reentered the courtroom and walked up to the podium. “Your Honor, we have decided to allow Mr. Zinoviev to testify, though we wish the record to reflect our continuing objection.”

“So noted,” said the judge. He gestured to the witness box. “Mr. Zinoviev.”

Simeon sat down at the defense-counsel table and watched with an air of faint disinterest as Ben approached the podium, his heart pounding. He had never done a cross-examination without days of preparation. He also had never done one without first taking the witness’s deposition. One of the time-honored maxims of cross-examination is “Never ask a question that you don’t know the answer to”—but Ben was about to ask lots of questions that he had no idea how the witness would answer. And he was going to do it on five minutes’ notice in front of an unforgiving judge and the toughest opponent he had ever faced.

Ben said a quick prayer, took a deep breath, and smiled at the witness. “Good morning, Mr. Zinoviev. I’d like to ask you a few questions about safe-deposit box 4613 in the American Union Bank on LaSalle Street. Did you sell the contents of that box to Mikhail Ivanovsky?”

“No.”

“Did he give you $5,000 last Tuesday?”

“He loaned it to me, yes. I tried to pay it back, but he wouldn’t take it. He insisted that I give him the box instead.”

“Why did you ask Mr. Ivanovsky for a loan?”

Simeon stood up. “Objection, relevance. This is getting pretty far afield, Your Honor. Mr. Zinoviev is here to answer questions about the jewelry in that box, not his personal finances.”

The judge nodded. “Sustained. Mr. Corbin, at some point you’ll have to convince me that your client had a contract to buy that jewelry, but today your examination is limited to whether that jewelry is unique and irreplaceable.”

“Thank you, Your Honor,” Ben said as Simeon sat down. “Mr. Zinoviev, have you ever looked inside that box?”

“Yes.”

“What’s in there?”

He shrugged. “Some old pearl earrings, my brother’s passport, a few papers, a couple of watches. Nothing special or one-of-a-kind.”

“What kind of watches?”

The witness thought for a moment. “A Seiko, I think. A Rolex, too—or it says it’s a Rolex, anyway. Some of the gold is rubbing off, and I don’t think that happens with real Rolexes.” A chuckle ran through the courtroom. Zinoviev grinned and leaned back into the witness chair.

“Anything else?”

“That’s it.”

“Have you had the jewelry appraised?”

“No.”

“Do you have any idea which piece is most valuable?”

He shrugged again. “Probably the Seiko. It looks almost new. The earrings might be worth something, but the pearls are pretty small.”

“You recently sold this jewelry, correct?”

“Correct.”

“To whom?”

“A trading company. I don’t remember the exact name.”

“Are those gentlemen back there affiliated with this company?” Ben pointed to the two mystery men sitting in the back of the courtroom.

Zinoviev sat forward in his chair and it creaked. “I think so.”

“What are their names?”

Zinoviev glanced at them nervously. “I think one of them is named Anton and the other is Josef. I don’t know their last names.”

“Did you let them look in the box before selling the contents to them?”

“Yes.”

“Did you let Mr. Ivanovsky?”

“I told you, I never agreed to sell the jewelry to him, so no.”

I walked into that one,
thought Ben, kicking himself. “How much did you sell the jewelry for?”

“Objection.” Simeon stood again. “This is all outside the scope of this hearing.”

“Overruled,” said the judge. He glanced at the clock. “But do try to wrap this up in the next few minutes.”

“I will,” said Ben. He was running out of questions, in any event. “How much did you sell it for?” he repeated.

“I don’t remember exactly.”

“Do you remember generally?”

“Not really.”

“When did you agree to sell the jewelry?”

Zinoviev hesitated. “Last Thursday.”

“So you sold the jewelry last Thursday, but you have no idea how much you sold it for, right?”

“Objection,” interjected Simeon. “He’s arguing with the witness.”

“And he’s winning,” said the judge, who was now watching with interest. “Overruled. This is well within the bounds of permissible cross-examination.”

Asking questions about the men on the back bench seemed to make Zinoviev uncomfortable, so Ben decided to do it again. He pointed at them. “Do you think Anton or Josef might have any idea how much they paid you?”

Ben could see tiny drops of sweat glistening between the strands of Zinoviev’s sparse black hair. “I didn’t say I had no idea how much they paid, I just said I couldn’t remember the figure.”

“So what do you remember?”

“I think it was somewhere around $100,000.” He was flustered and didn’t realize his mistake until the words were already out of his mouth.

Gotcha!
“You earlier testified that the Seiko watch was the most valuable of the four items in that box. Would it be fair to say that it accounted for forty percent of the purchase price?”

Zinoviev now sat on the edge of his seat, shoulders slightly hunched as if he were expecting someone to hit him. “I don’t know.”

“Thirty percent?”

“I don’t know.”

“But certainly more than twenty-five percent, right?”

Zinoviev sat in miserable silence for several seconds. “I guess so.”

“No further questions.” Ben returned to his seat, walking on air.

Simeon stood up, but the judge held up his hand. “May I ask a few clarifying questions, Your Honor?” Simeon asked.

“Not unless you can clarify how a Seiko watch can be worth more than $25,000 and not be unique,” the judge replied. He didn’t wait for Simeon to respond. “I’ve heard enough to convince me that whatever is in that box is pretty unusual and should stay there until we can have a full preliminary injunction trial, at which point you can ask as many questions as you want. Now, I’ve got another trial starting in here in half an hour, and I needed to meet with the two sides ten minutes ago to rule on some motions
in limine
. I want you gentlemen to go into the cloakroom back there and work out a discovery-and-trial schedule. Then go to my chambers, and my clerk will give you the next available trial date.”

The two lawyers caucused with their clients in preparation for meeting in the little room that opened off the entrance to the courtroom. As soon as they were alone, Ivanovsky grabbed Ben’s hand in both of his and shook it vigorously. “You were magnificent!” he said, his voice quavering with emotion. “I thought for sure we were going to lose, especially after I made the judge mad at you for talking. But then you put Zinoviev up there and showed the judge he was lying and he gave us this TRO! Thank you so very much!”

Ben smiled and gently retrieved his hand. “You’re very welcome. This is a significant win for us, but it’s just the first round. Remember what I said about litigating with our hair on fire? That’s what happens now. Do you have any appointments during the next month that you can’t cancel?”

Ivanovsky shook his head.

“Good. Wait out here and I’ll go see if Simeon is ready.”

Ben found the distinguished defense attorney waiting for him in the cloakroom. It might at one time have been used to store coats, but now it served as an informal conference room for attorneys appearing before Judge Harris. It held a well-used round table and five unmatched chairs, the best of which was now occupied by Anthony Simeon. Ben sat down facing him, and they quickly agreed to extend the TRO from ten days to thirty to give them both time to prepare their cases. They then hammered out a schedule of deadlines for the coming month. As they sat waiting for the clerk to finish in the courtroom, Simeon turned to Ben and said, “By the way, congratulations. That was a nice piece of cross out there.”