Dead Man's Rule (8 page)

The door to the conference room opened and the court reporter appeared. “We’re ready to go back on the record.”

Janet Anderson was already seated as Ben, Dr. Ivanovsky, and the court reporter resumed their places. “Okay, back on the record at 3:46 p.m.,” the reporter said, and started typing again.

“No further questions,” said Anderson.

“I have no questions,” said Ben.

The court reporter began, “We’re going off the record at—”

“Hold on a sec,” Ben interrupted. “There’s one scheduling matter I’d like to take care of first. Counsel, I need a date from you for Mr. Zinoviev’s deposition.”

“Counsel, this is something we can take care of off the record,” Anderson responded.

“We’ve tried that,” said Ben. “On three separate occasions over the past week, I’ve tried to get a date from your firm, and you still haven’t given me one. That’s why I need a response from you on the record.”

“I don’t know my client’s schedule—”

“There’s a phone on the credenza behind you. Call him.”

“And Tony will be defending the deposition. I don’t know his schedule either.”

“Call him too.”

She glared at Ben. “It is highly inappropriate for you to ambush me like this. We will get you a deposition date as soon as we can.”

“You guys have been saying that for a week,” Ben replied calmly. Doing this on the record at a deposition was a little unusual and aggressive, but it was hardly inappropriate in light of their stonewalling. “Can you promise to give me a firm date by tomorrow afternoon?”

“This is ridiculous,” Anderson said as she shoved her papers in her briefcase and stood up. “This deposition is over. I’m leaving.”

As she walked toward the door, Ben said, “Janet, if you can’t promise right now to give me a date by four thirty p.m. tomorrow, I’ll be in front of Judge Harris tomorrow morning on an emergency motion to compel, and the transcript we’re making will be Exhibit One.”

Anderson paused as she reached the door. She was a competent lawyer and knew as well as Ben that Judge Harris would be irritated with both of them for wasting his time with their discovery dispute, but that he would probably be most irritated with her. “Fine. I’ll have a date for you tomorrow.” She gave him a poisonous look. “This is extremely unprofessional of you.” She opened the door and stalked out without waiting to hear Ben’s response.

Ben smiled and turned to the court reporter. “Off the record.”

Eight days later, Ben sat in his conference room, waiting for Nicki Zinoviev and Anthony Simeon to arrive. A box of documents in neatly organized folders sat on the chair beside him. Each folder contained three copies of an exhibit that Ben planned to use in Zinoviev’s deposition—one copy for Ben, one for Simeon, and one for the court reporter to attach to the transcript. They included the transcript of Zinoviev’s testimony from the TRO hearing, which Ben planned to spend at least half an hour asking about; a contract between Zinoviev and the Brothers LLC for the sale of the contents of the safe-deposit box for $100,000; two different versions of Zinoviev’s criminal record (the one he had produced in discovery and the one Sergei Spassky had uncovered); and a number of other equally damaging documents. He also had marked-up transcripts from the depositions of the four members of the Brothers, men who had been in Soviet prison together but were not actually brothers. Unfortunately, they were cagey, well-prepared witnesses, and their testimony had been basically useless. Nicki would be a different story.
This will be like shooting fish in a barrel,
thought Ben in happy anticipation.

He glanced at the clock and saw that Zinoviev and Simeon were fifteen minutes late. Were they going to back out on him? They had fought this deposition as long as they could. Even after Ben’s exchange with Janet Anderson at Dr. Ivanovsky’s deposition, they had continued to put him off. It wasn’t until Ben scheduled an emergency motion to compel and sent a draft of it to Simeon that they finally relented.

And now Ben was beginning to fear that they were at it again. He could already hear the excuses he would get from Simeon’s harried secretary: “Mr. Zinoviev had a family emergency, we’ll have to reschedule,” or “Mr. Simeon developed a scheduling conflict with another case; he’ll get back to you with a new date.” Ben regretted not having gone forward with his motion to compel. It might have annoyed the judge, but at least there would be a court order requiring Zinoviev to appear for his deposition, and he would be in contempt of court if he didn’t.

Ben waited five more minutes, then he walked back to his office and pulled Simeon’s card out of his Rolodex and dialed. In case Simeon didn’t pick up—and Ben doubted he would—Ben pulled up the draft motion to compel on his computer and started updating it. To his surprise, the attorney himself answered on the third ring. “Anthony Simeon,” he said in an odd monotone.

“Tony, it’s Ben Corbin. What’s going on? You guys were supposed to be here almost half an hour ago.”

Simeon took a deep breath before responding. “Ben, I just got off the phone with my client’s landlord. He found Mr. Zinoviev lying in the hall outside his apartment this morning.” His voice shook and he was clearly rattled. “He’s dead. The police are there now.”

C
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IVE

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After he got off the phone, Ben sat in his office in shock for several minutes. According to Anthony Simeon, the preliminary cause of death determined by the police was an unintentional drug overdose. Zinoviev had needle marks on his arms and legs, and initial tests showed lethal amounts of heroin in his blood.

Ben remembered how Zinoviev had squirmed and sweated on the witness stand at the TRO hearing. And he must have known his deposition would be worse.

Ben felt a twinge of guilt as he wondered if one of the reasons Zinoviev overdosed was that he was nervous about his deposition the next day and was trying to relax. “God rest his soul,” Ben murmured to his empty office.

With a start, Ben realized that the court reporter was still sitting in the conference room, waiting for the deposition to begin. Ben hurried back and told her what had happened. Then he walked into Noelle’s office and sat down in one of her chairs. She was on the phone and had a spreadsheet in front of her, but as soon as she saw Ben’s face, she said, “Something just came up. Could I call you back later this morning? Great, thanks.”

As soon as she hung up, Ben said, “Nikolai Zinoviev died last night.”

Noelle’s eyes went round. “What happened?”

“Drug overdose; his landlord found him this morning.” He realized the muscles in his shoulders were tense, and he stretched. “I feel bad, but I’m not sure what to do. Nothing like this has ever happened in one of my cases.”

“Have you told Dr. Ivanovsky?”

Ben shook his head. “Not yet. I wanted to think about it a little first and decide what I’m going to tell him. My initial thought is to recommend that we offer to put off the trial and extend the discovery and motion deadlines until an executor has been appointed for Zinoviev’s estate. It’s the right thing to do, and the judge will probably give them the extra time whether we agree or not.”

“That sounds like a good idea.” Noelle sat back in her chair, still absorbing the news. “Wow. So what does this mean for the case—I mean, other than that everything will get delayed?”

Ben thought for a moment. For starters, Zinoviev’s estate would need to be substituted as a defendant. More substantively, his testimony had been critical to his case. Ben mentally catalogued the evidence on both sides of each issue. On Dr. Ivanovsky’s side, there was his testimony, which was circumstantially supported by a handful of documents like the pawnshop and ATM receipts. On the defense side, there was . . . well, nothing. Without Zinoviev’s testimony, there was simply no way for the defense to rebut Dr. Ivanovsky’s case. Ben had been confident before, but now he didn’t see how he could lose. “I think it means we win.”

When Ben called Dr. Ivanovsky to relay the news, the scientist appeared unfazed by the turn of events but eager to press his advantage.

“Why should we give more time?” he demanded.

“Well, because it’s the right thing to do and—”

“But more time makes them more able to fight us, yes?” his client interrupted.

“Yes,” admitted Ben. “But even with more time, I don’t see how they can win.”

“We must win as quickly as possible,” Dr. Ivanovsky insisted.

“I never said we would necessarily win,” Ben cautioned. “I only said that I didn’t see how they could win without Zinoviev’s testimony. Anything can happen in the courtroom.”

“If the possibility of our winning is higher without giving more time, then you must not give more time. I am sad Nicki Zinoviev is dead, but we must not give up any advantage. We must win. It is very, very important.”

Ben decided to try one more time. “Dr. Ivanovsky, I strongly recommend against refusing to extend the preliminary injunction schedule. The judge will probably give it to them anyway.”

“Maybe the judge will give time to them. We will not.”

Ben sighed. “All right.”

Ben frowned as he hung up the phone. He resented Dr. Ivanovsky for compelling him to be rude and inconsiderate to a senior member of the bar. He winced inwardly at the thought of having to oppose a motion for continuance. He also disliked his client’s abrasive and peremptory manner in instructing him what he “must” do to win this “very, very important” case. If there was anything important about the case, Dr. Ivanovsky certainly wasn’t sharing it with Ben—which was another thing he didn’t like. The TRO had been fun, but overall he regretted having taken the case.
Oh well,
he told himself,
at least it’s pretty much over.

He turned his attention to more pleasant matters. The effective completion of the
Ivanovsky
case would free up valuable time for other cases, most importantly
Circuit Dynamics
. Despite Noelle’s help with
Ivanovsky
, Ben had fallen behind in his other work. He had needed to get deadline extensions from opposing counsel in two cases, which he hated doing because he then owed them favors. He probably would have needed extensions in three more matters if the
Ivanovsky
case hadn’t been resolved. He also worried that he would give his clients and opponents the impression that he wasn’t paying attention to their cases, which could cause serious problems with both groups.

Ben put the
Ivanovsky
case out of his mind and had a productive day working for other clients. He pumped out three long letters that he had been putting off and got a good start on a brief that was due in two days. He would be out of the office at a
Circuit Dynamics
hearing and deposition tomorrow, but now he wouldn’t have any trouble filing the brief on time, which would save him from having to ask for yet another extension.

Ben’s hearing the next morning was at eight thirty, so he headed directly to the courthouse and didn’t bother stopping at the office first. He did, however, call Susan from the L, Chicago’s extraordinarily loud light-rail system. “Anything interesting?” he shouted into his cell phone over the clatter and roar of the train.

He had the volume on the phone turned all the way up, but he still could catch only about half of what Susan said. Fortunately, he could fill in most of the blanks. “Let’s see. Cathy . . .”

Pugo.
Ben mentally filled in the missing word as the noise drowned out Susan’s voice for a second.

“. . . called about the status of the . . .”

Wilson Trucking case,
Ben supplied.

“Frank Harbaugh sent you a letter wondering when you could . . .”

Give him the witness list I promised him a week ago.

“And Anthony Simeon hand delivered a petition to substitute a new defendant and a motion . . .”

For a continuance . . .

“. . . set for hearing tomorrow at nine.”

Ben gritted his teeth at the last item. He wasn’t looking forward to that hearing. Judge Harris was likely to continue the trial date and other deadlines for as long as Simeon wanted, no matter what Ben said. And the judge would probably be surprised and annoyed that Ben was opposing the extensions.

“Okay, thanks,” he yelled and hung up.

Ben’s
Circuit Dynamics
hearing was a status conference at which the judge would review the current progress of the case and set a schedule for future activity. Discovery was mostly done, so Judge Ryan would likely set a motion cutoff in the next month or two, and a trial date a couple of months after that. Two days ago, that would have been a difficult schedule, but now it was definitely doable.

John Weaver was already in the courtroom when Ben arrived. Ben nodded to him and sat down. They were near the top of the court call, so they didn’t have to wait long. “Circuit Dynamics versus Johnson Automotive,” said the clerk two minutes later.

Ben and Weaver walked up to the wooden ledge that stuck out from Judge Ryan’s bench in place of a podium. “All right, gentlemen, where do we stand?”

As plaintiff’s counsel, Ben was expected to take the lead in pushing the case forward, so this question was directed primarily to him. “Your Honor, we have completed document discovery and each side has responded to interrogatories and requests for admission. We have three depositions left, but those are all scheduled.”

“Anything to add, Mr. Weaver?” the judge asked.

“We want to re-depose the president of Circuit Dynamics, Mr. Schultz, in light of some extremely interesting revelations in the company’s tax returns, which were only provided to us a week and a half ago. We have filed a motion seeking to reopen his deposition.” He handed copies to Ben and the judge.

“This isn’t set for hearing today, Your Honor,” said Ben as Judge Ryan skimmed through the document. “We haven’t had the opportunity to respond to it.”

“And you oppose it, right?” asked the judge.

“Yes, Your Honor.”

The judge nodded slowly as he finished reading the motion. He looked at Weaver. “I know this isn’t before me today, Counsel, but I’ve got serious concerns about it. Why are questions about these tax returns relevant to anything in this case?”

“Well, as Your Honor correctly noted the last time we were before you, these tax returns are directly relevant to the issues in the case.”

“I said that?” Judge Ryan asked incredulously.

“Actually, Your Honor, all you said was that they were entitled to look at them,” Ben interjected. “You never said that they were relevant, and you certainly never said that Mr. Weaver could use them as a crowbar to reopen other areas of discovery.”

“That’s what I remember too,” said the judge. “I’m going to deny your motion.”

“But it’s not actually before you, Your Honor,” Weaver began, now in full retreat.

“Then why did you bring it up and give me a copy? Look, if you want to come back here next week just to hear me deny it again, maybe that’s your right. But it seems like a waste of time to me.”

“We’d like to at least keep the hearing date for now, Your Honor.”

The judge rolled his eyes. “All right. Now tell me what’s going on in settlement negotiations—I know you must be having them.”

“We made an offer,” Ben reported, “but they haven’t responded.”

“Why not?” the judge asked Weaver.

“They want $25 million, Your Honor,” Weaver said with a faint tone of disbelief. “That’s not even in the ballpark, as far as we’re concerned. If Mr. Corbin’s client would knock a couple of zeroes off that number, maybe we could start talking.”

Judge Ryan raised his eyebrows. “Counsel, I can’t tell you and your client what to do, but I’ve looked at this case, and I strongly advise you to reconsider your position. As an incentive, I’m going to set this case for trial in sixty days.”

“But Judge, we need time for motions—for a summary judgment motion at least,” Weaver spluttered.

“Sixty days is fine with us, Your Honor,” Ben put in.

“I’d be surprised if you can come up with a meritorious summary judgment motion,” the judge said to Weaver. “If you can, file it in the next three weeks. If it merits full briefing, I’ll move the trial date at that time. If it doesn’t, I can take care of it pretty quickly, and there’s no reason we can’t have a trial in two months. Talk to my clerk to get a date for trial. Okay, next case.”