Unclean Hands, page 13
The judge peered out over the top of his glasses. "Those are fighting words, counselor. Please educate the court so it can understand what plaintiff did wrong here."
"Thank-you." He glanced at his notes before lifting his head, first taking a quick glance at Rick and then locking eyes with the judge. "In our discovery requests, we asked numerous times and in every way conceivable manner, for all evidence to support her claim against our client, B & D. We sought all records regarding her husband's shopping at the store and all evidence of anyone having similar claims against the company. To date, despite our requests, we received no such information from the plaintiff.
"The failure to provide this information has prejudiced the defendants who request the court dismiss plaintiff's claims for failing to conduct discovery in good faith. In the alternative, order plaintiff to provide the requested information and move the trial to the next available trial list. We would also request the court sanction the plaintiff by ordering that she cannot present evidence of other potentially similar incidents."
The judge kept his eyes directed at his pad and waved his pen at Rick who stood to respond.
Rick stared straight ahead and took in a big breath of air. "The court is aware the trial in this matter is scheduled in ten days. The parties completed discovery with each side having every opportunity to serve interrogatories, request documents and take depositions of every conceivable witness. In fact, to date, the parties took sixteen depositions. The defendants had the opportunity to take any deposition they requested–and so did the plaintiff."
Rick paused, hoping the judge understood the parties conducted a significant amount of discovery without much interference from either side.
He continued, "The parties had every chance to take discovery and the parties cooperated during the process."
Markum interrupted, "Counselor, your opponent suggests the plaintiff hasn't been so forthcoming and you are withholding information necessary for them to present their defense. How do you respond?"
Rick nodded his head. "B & D claims it asked us about other people who had similar experiences to Mr. Hawkins. We responded that we don't have such information. It's not that we are hiding any information, we just do not possess any to provide to them. We've wondered about similar incidents and don't feel like B & D has been upfront with us about similar incidents which have occurred despite being in a much better position to provide such information than we would be. However, they are correct, we are unaware of such evidence and this is why we haven't provided any."
Markum stared at Crotec shaking his head. "What are they supposed to do if they don't have any evidence of other incidents? Should I sanction them for that?"
The judge leaned forward over his bench and pointed his pen at Crotec. "They won't be able to present any information of similar incidents–not because they are being nefarious, but because they aren't in a position to know what happens at your store."
He stopped and glanced away before returning his glare to Crotec. "Apparently, you provided the plaintiff with no information related to prior incidents, correct? Should I sanction you? Given the aggression with which the store is trying to prevent this information from coming into evidence I am led to believe there are other incidents and you are playing rubber and glue with the plaintiff."
Rick kept his head down while the judge spoke, enjoying the tongue lashing directed at Crotec.
Although Markum had asked Crotec a series of questions, he wasn't really looking for answers. He was blowing off steam outraged at the defense's shameless maneuvering. Any lawyer knew that success with arguing motions before a judge was at times dependent on the mood and whims of the judge. Sometimes the judge might mutter three words during an argument without offering an indication as to his thinking. Then there were times, like this day, where a judge, leaving little doubt as to his mindset, might stick a little prod in the backside of an unsuspecting lawyer.
Rick didn't raise his eyes, hoping the judge would keep his attention directed at Crotec.
Crotec remained motionless and unresponsive, trying to formulate an answer to the multitude of outstanding inquiries.
Judge Markum waved his hand. "Counselor, please sit. There's no need to respond. Your motion is baseless and I am denying it. Let this serve as a warning–unsubstantiated allegations don't do well in this courtroom. Don't bring them here." The judge stood, grabbed his folders and disappeared out the door to his chambers.
Rick followed the judge's lead and grabbed his materials. With the judge's contempt for his opponent's tactics still playing in his head, he couldn't resist the temptation of twisting the knife. "Nice job, Crotec, you guys really nailed that one. Keep making arguments like that and I won't need to put on evidence when we get to trial."
Crotec caught Rick's stare and tried to generate an appropriate comeback, but nothing came out of his mouth.
Chapter Forty-One
Risk and its always present partner, anxiety, are constant companions for lawyers during any trial. The possible unexpected answer to even an innocuous question worries every attorney until the jury returns its verdict. This insidious, looming cloud of uncertainty hung over every meeting Rick and Arnie had getting ready to put on Emily's case.
Rick wanted to wall off the rest of his life from the trial and not deal with typical day-to-day responsibilities, but, paying bills still was necessary and if the car broke down, it had to be repaired–the demands of preparing for trial be damned.
The text came at 6:30 p.m. Receiving it was no surprise, and Rick probably would have sent a similar one had he been in a comparable situation. Yet, after spending the prior eight hours reviewing deposition transcripts, interrogatories, medical records, and everything else he needed to know inside and out, he didn't welcome it.
Even Arnie, who generally displayed little outward evidence of internal turmoil, was beginning to show the first signs of cracking. They'd been working in the conference room for nearly two weeks, focusing their vast energy on preparing for Emily's trial, learning the weaknesses of their arguments, while honing their examinations to focus on the strengths of the case.
So when the notification appeared on his phone, Rick tried to avoid it by turning his phone face down on the table. Three minutes later he read it. Despite his overwhelming desire to delete it and pretend he'd never seen it, he knew his only option was to deal with the fallout. The piles of documents on the conference room table and Arnie's incessant, yet relevant, questions, could wait. Ignoring the text would only open the festering wound further. He needed to respond.
"I'm taking a break," Rick said to Arnie, who was scribbling furiously on a yellow pad.
Arnie barely acknowledged Rick's announcement, nodding without taking his eyes off his writing.
Cell phone in his right hand, Rick scampered out of the conference room and ducked into his empty office. He collapsed into his chair and let himself ease backwards, allowing a change in his blood flow and a slight reduction in the stress coursing through his body. He stared at the phone and felt the pangs of guilt gnaw at his insides once again.
Dammit. The trial is bad enough, but now I have to deal with this.
His body balanced almost horizontally in the chair, inches from tipping over onto his head. He let the phone rest on his chest contemplating the response he would issue. Acerbic possibilities whizzed through his head, each, in his mind, more brilliant than the previous one. He knew he would never send any of the wittier ones, and he urged himself to write down some of them to save for another time, but he understood he needed to respond to the text before returning to his trial preparation.
By pulling his head forward, the chair tilted back to its upright position.
The game was over and once again he was the loser. If only this were golf, and he could pick up his opponent's ball to concede the putt, or chess, where he could knock over his king to surrender with grace–but this was life and his failures had consequences. He read the text again:
Rick, my financial situation is getting out of control. I got a notice from the bank that they are going to repossess my car next month. I'm three months behind on the mortgage. Sam needs help. Her new doctor is a pro, but it's getting expensive. The school wants her to get tested, but won't pay for it. You still owe me money. I talked to my lawyer (more cash). He's to send you a threatening letter. Grow a set already, so I don't have to call a reporter. Let me know when you're sending the money.
The brilliant responses which fluttered through his head minutes before vanished. He typed:
Mol, the trial is in two weeks. We're working hard getting ready. Arnie's been an amazing find. I know (and I know I said this before) I owe you the money. You're going to get it right after this trial. Please tell your lawyer to hold off a little so we can get through this trial without any more distractions. Tell Sammie I miss her.
He pressed the send arrow and hoped he wouldn't hear the ping signaling a new text arriving until at least he got home. He raised his head and offered a little prayer Emily Hawkins would hold up as a witness, and pave a path to making things right with his ex-wife and daughter.
Chapter Forty-Two
Morgan Askew stood before his mom who straightened his tie and then pushed his hair out of his eyes. "Now, you're ready. I hope you make me proud."
Morgan didn't respond and continued to stare up at the ceiling, causing his mom to grasp his chin and pull his head down so he made eye contact. "You're going to be a star," she said while nodding her head.
He slapped at her hand and broke away. "I don't know ma, this isn't so easy."
She squinted her eyes at him. "Don't talk like that. You know what to say."
"I do. They've told me what I need to say and told me if I do it wrong, I may not have my job any longer."
"Don't worry, honey, they need you as much as you need them." She engulfed him in a huge hug, his head buried in her bosom. A quiet moan escaped from his mouth. Monica patted him on the head until he broke free.
"You don't understand. If I don't get this right, those prosecutors could reinstate the charges against me. Prison was horrible. I can't go back."
"Look at me, Morgan." She grabbed both of his hands with hers. "You aren't going back to that jail. You said the lawyers helped you get ready to testify, didn't they?"
"They did, but who knows. Those guys are trying to help me, but the other lawyers, the ones representing the woman whose husband died, they won't be so kind. Their job is to put words in my mouth. They want to confuse me. I'm worried they're going to mess with my head. I won't be able to think too fast with so many people watching me."
Monica's hands flew up to her chest and her head rocked backwards. "You have to do whatever it takes to make sure you don't go back to jail–I couldn't handle it again. Don't you dare do that to me, you understand?"
Morgan's head bobbed up and down. "I do, mamma. Trust me, the last place I want to go back to is there. Our lawyers promised me that if I did what they said, I would be okay and the company would make sure I would stay out."
The green couch behind Monica caught her as she collapsed backward, causing the small polyester cushions to bounce a few inches in the air. She fanned herself with her right hand. Morgan leaned over and put his head in front of hers while grabbing her cheeks with both of his hands. "Don't worry. I will make sure you are proud of me."
"Like I always am." Monica smiled weakly and turned her head away.
Chapter Forty-Three
The robe was buttoned halfway revealing a white t-shirt and a paunch. Judge Markum paid no heed to his manner of dress as he traipsed around his chambers in black socks, oblivious to the small hole that allowed his left pinkie toe to peek out. The few extra-long hairs curling at the edges of his eyebrows completed the image of a judge devoid of care for his personal grooming.
Rick and Arnie sat on the felt green couch shoved against the wall to the side of his desk, while Spencer and Crotec wedged into two tiny wooden chairs placed on the other side of the desk. They didn’t have enough space to put their yellow pads and other documents, and sat in silence as Markum held the floor.
"Once we're done in here," Markum said, his back to the attorneys, "you will head to the jury selection room and pick your jury. You can come back on Monday, and we will start the trial. Any questions?"
"No, Your Honor," Rick said, assuming nothing they said would make much difference at this point.
Crotec, however, wanted to be heard. "Defendants would like to discuss a few matters before we select the jury."
Markum spun on his heels and placed both hands on his desk. "Go ahead, counselor. What would you like?"
Crotec leaned forward holding his yellow pad before him. "Your Honor, defendants filed three motions in limine to preclude certain evidence we believe plaintiff will attempt to elicit during trial. We provided your chambers with the motions and the supporting law in corresponding briefs last week. Plaintiff did not file a response." Crotec pulled a stack of documents from his bag and grabbed the one on top. "Our first motion is to preclude any evidence of prior stops made by any B & D employee because such evidence would be irrelevant and highly prejudicial to the defendant because. . . ."
Still leaning on his desk, Markum quietly stated, "Denied, next."
"But you didn't hear our argument," Crotec's voice squeaked a little.
"I read your brief, and your motion is denied."
Crotec shook his head. "Our next motion is to preclude evidence of work the deceased did in the past as he was not working at the time of the incident."
Markum leaned forward a little more so his face was closer to Crotec. "Denied."
"But," Crotec attempted to continue to argue his motion.
"Denied, Mr. Crotec. You may not know, but I'm not a fan of motions in limine. I find I do much better hearing the evidence at trial and making rulings on the fly. Do you think I should change my practice, counselor?"
"Well," he stammered, "this is the purpose of motions in limine–to review evidentiary issues before we begin the trial. These are issues that are germane to the evidence the jury will be hearing, and we want to make sure that the court is aware of these issues to avoid any possibility the jury considers improper evidence."
Markum responded in a slow, steady voice that bordered on patronizing. "I understand the purpose of motions in limine. I also went to law school. It wasn't one of those fancy law schools you big firm attorneys seem to always attend, but we studied evidence. I like to make my rulings in the context of the testimony a jury hears and I find I do a much better job at avoiding the introduction of improper evidence by doing it this way." He smiled at Crotec, who did not reciprocate. "Mr. Waterston, any need to respond to defendants’ motions?"
Rick shook his head. "Plaintiff understands how this court handles evidence. We did not file a responsive brief yet, understanding these issues may come up during trial. We will be prepared to support any evidence we intend to proffer with an appropriate legal basis."
"I look forward to it," Markum said, returning his gaze to his notes. "Any need to discuss settlement one final time? I know mediation didn't resolve the matter, but sometimes the threat of trial is enough to move parties to reevaluate their positions. I'm at your disposal if you think it can help."
Arnie patted Rick on the arm and said, "As you are aware, plaintiff came to the mediation in good faith, ready and willing to discuss settlement. Defendants were looking to get rid of a substantial case at a major discount. They never actively participated in the settlement process. We remain willing to discuss reasonable terms to a settlement. Ms. Hawkins will respond once defendants make a significant offer."
The judge's chair squeaked as he angled himself to face defense counsel. "Sounds like the ball is in your court. You prepared to swat it back?"
Spencer shook his head and exhaled. "The defendants believe they made a reasonable offer at the mediation and their offer was refused. Defendants are not prepared to raise their offer unless plaintiff substantially lowers her demand."
Huffs of air escaped as both Rick and Arnie scoffed simultaneously.
Markum turned his head back and forth between counsel waiting for the logjam to break, but neither side gave any indication of the potential for further movement. "This is why we call in jurors. They will make the final decision as to the value and merit of this case. We will begin at one o'clock this afternoon with jury selection with the goal to have opening statements first thing on Monday."
The judge stood and extended his hand. "I don't need to tell any of you this, and please remind your clients of what I am about to say. There is significant risk on both sides. An individual died on defendant's property. That certainly can be troubling to jurors."
He paused, looking Rick in the eyes. "Please remind your plaintiff there are no guarantees at trial. Yes, her husband died, but the jury will also evaluate his conduct. They may not like it and there is the possibility she gets nothing. Please continue talking and I will see you later today for jury selection."
The words of the judge's warning reverberated in Rick's head as he left chambers.
Chapter Forty-Four
Counsel settled at their respective tables with Rick and Arnie sitting closer to the jury box as is the custom in every courtroom. The sound of folders and binders dropping onto wood came from their right as Spencer and Crotec emptied their document bags and then made tidy piles of their papers and exhibits.
Thick, choking tension enveloped the room, causing the lawyers to communicate in hushed whispers as if in church.
Jury selection was scheduled to begin in ten minutes. Both sides made sure to be ready long before the anointed hour, not wanting to risk raising the ire of the judge and creating a bad impression with the jury before any witness took the stand.
