Silent Justice (28 page)

“I have.”

“Is there any aspect of your prior testimony you wish to … change? Or amend?”

“Objection!” Colby fumed. “Leading the witness!”

“I can lead. He’s your witness.”

“Not today, he isn’t. Again, I object. This is outrageous.”

“The witness may answer the question,” Ben intoned, ignoring Colby.

“Yes,” Turnbull replied. “There are some things I … didn’t get quite right last time.”

“With regard to what?”

“Blaylock’s waste-disposal procedures.”

“Please describe to me what really happened.”

“Objection!” Colby shouted. “What is this, deposition by ambush?”

Ben kept his eyes focused straight ahead. “The witness will answer the question.”

Turnbull started, but Colby cut him off.

“No, he will not!” Colby rose to his feet. “This is the most grossly inappropriate procedure I’ve encountered in twenty-three years of practicing law. As the representative of the defendant and the witness’s employer, I instruct the witness not to answer.”

Ben drew in his breath. He had suspected Colby would try something like this. And planned accordingly. “Are you claiming this question intrudes upon the attorney-client privilege?”

“No, I’m claiming this whole procedure is grossly inappropriate!”

“Because the witness is trying to tell the truth? Yeah, I can see how that might put your nose out of joint.”

Colby looked as if the top of his head might fly off at any moment. “This deposition is over.” He walked behind the court reporter and yanked the power cord to her laptop out of the wall socket.

“You don’t have the right to terminate my deposition, Colby,” Ben said.

“This is my conference room,” he growled. “I’ll do whatever the hell I please.”

Ben walked around the large mahogany table. He opened the door a crack. “Christina?”

She appeared in an instant. “He’s on line one. We’ve been talking about cocker spaniels.”

Good old Christina. She knew everyone, or at least knew someone who knew someone who knew someone. He reentered the conference room and strolled to the phone.

“That’s my phone,” Colby spat out, “and I’m not taking any calls.”

“Oh, I think you’ll want to take this one.” He punched the button to activate the speakerphone. “Are you there?”

“This is Magistrate Grant. What seems to be the problem?”

As red as Colby’s face had been before, it became absolutely ashen when he heard the voice on the phone.

“Magistrate Grant,” Ben said, “we’re having a bit of a discovery dispute here. I remember when we were in your office you said you were available to resolve any problems that might arise. I appreciate you being good to your word.”

The magistrate’s voice crackled over the speaker box. “What’s the problem, Mr. Kincaid?”

After the initial shock faded, Colby recovered himself. “The problem is,” he shouted across the room, “Kincaid’s trying to depose my witness without giving me advance notice!”

“That’s not precisely so,” Ben said calmly. “This is a continuation of a deposition taken two weeks before, of which Mr. Colby had notice and ample prep time. Last night, the witness called me on his own initiative and told me he wanted to amend his testimony. Naturally, I want to give him a chance to do so.”

“It’s grossly improper!” Colby shouted. “Kincaid can’t contact my clients!”

“He contacted me,” Ben emphasized. “The only thing I told him was where and when to show up.”

“Well, that doesn’t seem improper to me,” the magistrate remarked. “A bit irregular, perhaps, but not improper.”

“But I haven’t even had a chance to talk to the man!” Colby insisted.

“Is the witness there?” the magistrate asked.

Turnbull cleared his throat. “Uh, yes, sir. I am.”

“Do you wish to speak to your attorney?”

“No, sir. I don’t. We’ve spoken before and … I’m ready to proceed now.”

“Well,” the magistrate said, “I’m not going to force a man to consult with counsel against his will.”

“He’s my witness!” Colby spat back.

“Yes,” the magistrate said. His voice had acquired a bit of an edge. “He’s your witness. He’s not your property. If he wants to testify, he can. So get on with it. I’ll remain on the line, just in case there are any additional problems.”

Colby lowered himself into his chair, so angry he could barely contain himself. The court reporter plugged herself back in. Ben retook his seat.

“Mr. Turnbull, please describe Blaylock’s waste-disposal procedures. As they really were practiced.”

“Objection,” Colby said. “Asked and answered.”

“Overruled.” The magistrate’s voice came in clear over the speaker box.

“Then I object for lack of personal knowledge.”

“Overruled,” the magistrate repeated, without missing a beat. “The witness will answer.”

“The liquid waste was collected in drums, and sometimes, the drums were hauled off to designated disposal sites,” Turnbull said. “But that was expensive, and Mr. Blaylock was always trying to cut costs. So sometimes he wouldn’t do it. Especially during busy periods when a great amount of waste collected.”

“What did you do instead?”

“Objection,” Colby said. “Assumes facts not in evidence.”

“Overruled,” the magistrate said. “Mr. Colby, please don’t interrupt unless you have an objection that is at least arguably applicable.”

Colby burrowed down in his chair, his lips pressed tightly together.

“I’ll ask again,” Ben said. “What did you do when you didn’t have the drums hauled away?”

“We buried them.”

Ben nodded. Scout had been right. He
had
seen drums coming out of the ground.

“We had a big Brush Hog behind the plant. So someone would dig a hole and bury the drums. Saved Blaylock a significant amount of money.”

“How many drums were buried? Five? Ten?”

“Try fifty or sixty.”

Ben’s eyes widened. “How sturdy were the steel drums?”

“We didn’t use steel drums. At least not most of the time. We did keep a few out back, but they were mostly for show. The ones we actually used were made of corrugated cardboard. They were less expensive than the steel variety, obviously. They might look the same from a distance, but they weren’t the same. They broke much more easily.”

“And did they break?”

“All the time. Frequently. Particularly when we were trying to bury them. And when they broke, the waste would spill all over the ground.”

Ben nodded. And from the ground to the groundwater to the ravine to the aquifer to the water well. Just like that.

“Are the drums still buried behind the plant?”

“No. Mr. Blaylock ordered that they be removed about two months ago.”

Exactly when Scout and Jim were playing the “Outsider” game. Scout had seen exactly what he thought he’d seen. “Do you know why they were moved?”

Turnbull’s head turned slightly. “I believe it was done on the advice of counsel.”

Ben’s chin rose. “Mr. Colby, I believe you are guilty of tampering with evidence and obstructing justice.”

“Mr. Kincaid.” The magistrate’s voice crackled. “Don’t make accusations you can’t substantiate. I’ve told you before I won’t tolerate that.”

Ben kept his silence. He would never be able to prove that Colby deliberately hid evidence by advising Blaylock to get rid of the drums. But he had. Ben knew it, and the court reporter knew it, and the magistrate knew it. Soon, everyone in town would know it. Colby’s reputation would never be the same.

“Anything further to tell us, Mr. Turnbull?” Ben asked.

“No,” he said, head down. “That’s all. Except—I’m sorry.”

“Sir, you have nothing to be sorry about. You’re a brave man.” He glanced up at Colby. “Care to withdraw your motion for summary judgment?”

Colby coughed into his hand. “I … may have to amend my brief. Refile on other grounds.”

“You do that.” Ben thanked the magistrate for his assistance, then disconnected him. “Mr. Turnbull, would you like to walk back to my office with me? Cecily Elkins is back there. I think she’d like to talk to you.”

Turnbull’s eyes brightened. “Yes. I’d like that very much.” He pushed out of his chair. “I have a few things to say to her, too. And I’ve waited far too long to do it.”

B
EN DROVE HIS VAN
back toward Tulsa after spending the morning in Blackwood. It was the most pleasant morning he’d had in weeks—possibly since this lawsuit began. He’d assembled Cecily and all the other plaintiff-parents to give them an update on the status of the case.

Ben started the meeting with the good news: they had a witness who would testify—had testified—that Blaylock’s waste product had seeped into the soil, just as the EPA suspected. The bad news? Their work was just beginning. They would need expert witnesses to prove Blaylock’s TCE and perc did in fact seep into the water supply. That would be expensive, but Ben believed it could and would be proven. But even after they met that burden, they would need experts to prove that the contaminated water had caused the children’s leukemia. That would be far more difficult—but essential to their case.

Ben left them on an upbeat note, but made it clear they still had a long way to go before judgment. It was hard, staring out into that sea of faces, confronting those hopeful, wide-eyed expressions. He had the sense that, strange as it might seem, he had taken the place of their children, that they had bundled up all their remaining sorrow and guilt and lost hopes and deposited them on one Ben Kincaid. They were counting on him to give some meaning to all those days they had spent raising a child who never reached adulthood, all those messy diapers and sleepless nights, all those dreams.

He only hoped he wouldn’t let them down.

Back at the office, Jones was fuming. “Guess what we got in the mail this morning?”

Ben wasn’t in the mood for guessing games. “Judging by your expression, I’d say it must be a bill.”

“Darn tootin". Do you have any idea how much you blew taking all those depositions?”

Ben peered at the bottom line on the invoice Jones was waving. He did a double take. It was twice what he had expected.

“Sorry, Jones. It was necessary.”

“Necessary? Thirty-two depositions? Couldn’t you have skipped the losers?”

“Unfortunately, you can’t separate the winners from the losers until after you take their depositions.”

“Well, then couldn’t you have asked fewer questions? Or asked them faster?”

“There’s no point doing it if you’re not going to do it right. You have to be thorough if you hope to drag anything out of unwilling witnesses.”

“Fine.” Jones folded his arms. “Tell me, Mr. Thorough, how exactly are we going to pay this bill?”

“I thought the last loan—”

“Long gone.”

“Gone? That was supposed to last us through the trial.”

“Well, surprise, surprise. It didn’t even come close.”

“Where did it go?”

Jones threw his hands up in the air. “Where do you want me to begin? This case has been a money pit since day one—as I predicted. You totally wiped us out with that battery of experts you hired. Geologists and hydrologists and all that rot.”

“We can’t make this case without expert testimony.”

“Did you need so many?”

“I didn’t get nearly as many as I would’ve liked.” Ben felt himself getting hot under the collar. This was ridiculous. He was being put on the defensive—by his employee. “I needed a geologist to analyze the soil behind the plant, in the ravine, and at the water well to prove it was contaminated. I needed a hydrologist to prove the groundwater from Blaylock made it to Well B. They all have to conduct tests, which must be run twice for confirmation, once by themselves, once by independent analysts. They’ve got to consult with specialists, prepare exhibits.”

“It’s too expensive.”

“It’s only just begun. I still need doctors to provide medical testimony about each of the children’s illnesses. I’ve got to have a cancer specialist talk about the causes of leukemia, to tie it to the tainted well—”

“Which you don’t have yet.”

“The point is, I’ve already cut expenses to the bone. If I do any more, we’ll be throwing the case away. And if we do that, we have no chance of recovering anything.”

Jones sat in his chair and stewed. A long period passed during which neither of them spoke.

“I’m not going back to The Brain,” Jones said finally.

“Jones, you have to.”

“I’ve done it the last three times. I’m not doing it again.”

“It’s your job.”

“I don’t care. I’m tired of groveling for change. I feel like a little boy asking for an advance on his allowance. I refuse.”

Ben could see they were at a stalemate. “Fine. I’ll go.”

“Wonderful. I’ll make you an appointment.” He pointed across his desk. “By the way, you got a big package from Colby. I think he’s taking his revenge for the Turnbull depo.”

Ben picked up the hefty stack of paper and rifled through it.

“Eight motions?
Eight?”

“Guess he thought you had too much free time on your hands.”

“Eight?
How can he do this?”

“When you have forty or so associates at your disposal, you can do about anything.” He smiled thinly. “The one that matters is on top.”

Ben glanced at the titles of the motions and their attached briefs (few of which were, in fact, brief). Three motions in limine, trying to keep out various pieces of evidence, including Turnbull’s testimony. Two discovery motions, one requesting not only medical records, but requesting that each of the plaintiffs undergo an extensive (and no doubt humiliating) battery of medical and psychological tests. A motion for physical inspection of the plaintiffs" homes. A motion for censure against that notorious embarrassment to the local bar, Benjamin Kincaid. But as Jones had said, the best was the one on top.

A motion for summary judgment.

“Son of a bitch,” Ben murmured. “He did it anyway.”

“He came up with different grounds,” Jones explained. “Some legal mumbo jumbo I didn’t begin to understand.”

Ben thumbed rapidly through the brief. It seemed the legal scholars at Raven, Tucker & Tubb had been working double time. The motion hinged on a Supreme Court case called
Daubert v. Merrill Dow Pharmaceuticals
which, according to the Raven brief, established standards for scientific testimony. According to the brief, this case precluded Ben from putting on evidence at trial about the causes of leukemia—which of course would make the parents" case unwinnable. Therefore, Raven argued, summary judgment should be entered against the parents now.