Deadly Justice

14

BEN TOSSED HIS FILES into his briefcase and hurried toward the conference room where the depositions were to be taken. Fortunately he had prepared yesterday; he had certainly had no time to prepare this morning. After finding a corpse in his backyard and narrowly escaping a trip to the big house, he was lucky to make it to the office at all.

Ben mentally reviewed his plans and goals. A deposition allows an attorney to ask the opposing party questions while a court reporter takes down everything the witness says. Objections can be made, but since there is no judge present to rule on them, the objections are made for the record, to be ruled upon later if necessary. The witness answers the question regardless of any objections made, unless specifically instructed not to answer by his or her attorney.

It was supposed to be a simple, unemotional fact-finding exercise. Ben hoped that proved true.

He certainly didn’t plan to protract matters any longer than necessary. He would ask the essential questions to elicit the plaintiffs’ version of what happened and gather any other information that might help defend Apollo against the design defect claim. Then he would close the deposition as gracefully and painlessly as possible. At least, that was the plan.

“Morning, Ben,” Rob said, as Ben entered the conference room. “You’re late.”

“Don’t start with me, Rob. I’m not having an Up-With-People kind of day.”

“Sure, no problem,” he said, backing away. “Let me introduce you to everyone.” He pointed toward a pleasant-looking woman in a blue skirt. “Trudy here is going to be our court reporter this morning.” Ben shook her hand. Then Rob directed his attention to an extraordinarily obese man perched on the edge of a chair in the corner of the room. Rolls of flesh cascaded from his chin; he had no neck at all. “This is the attorney for the plaintiffs, George Abernathy.”

Ben stepped forward and shook the immense man’s hand. “George Abernathy. Seems like I’ve heard that name before.”

Abernathy beamed. “Perhaps you’ve seen my commercials on TV.”

“Your…commercials?”

Abernathy adopted a deep anchorman voice. “ ‘Have you got a bone to pick with your boss? Have you been fired for no reason? Have you been injured, and no one wants to pay the bill? If so, then you need a fighter in your corner.’ Then you hear the sound of the bell, and we show some footage from one of the Tyson prizefights.” He resumed the anchorman delivery. “ ‘George Abernathy will go the distance for you. And you don’t pay a penny unless he collects. Call—’ And then we give our phone number. It’s been a big hit.”

“Sorry,” Ben said. “I guess I watch the wrong programs.”

“Then maybe you saw my ad in TV Guide. The headline reads PERSONAL INJURY PROFESSIONAL in great big letters.”

“I don’t watch that much TV anymore.”

“Oh, well,” Abernathy said jovially, “you big shots don’t have to worry about small-timers like me.” He reached into his wallet. “Here, let me give you my card. Who knows? You might get some personal injury situation too messy for you to deal with and consider tossing it my way.”

Ben took his business card. It was a mélange of phosphorescent colors; it glowed as it caught the light. Embossed in the center was GEORGE ABERNATHY—PERSONAL INJURY PROFESSIONAL.

“Thanks for the card,” Ben said, immediately hiding it in his coat pocket. “Does all that advertising pay off?”

“Like you wouldn’t believe. It’s hard as nails for a small practitioner like me to keep going.”

“Tell me about it.”

“But since I started placing those ads, business has been booming. I get your regular, salt-of-the-earth, hard-working blue-collar man—he gets hurt and he doesn’t know what to do about it. He doesn’t know anything about lawyers and lawsuits. He’s lost. That’s where I try to help out. It’s a public service, really.”

“Most public servants don’t work on a contingency fee,” Ben observed.

“True,” Abernathy agreed. “But that’s the only way my clients could ever pay. It’s the poor man’s ticket to the courthouse. Surely you don’t think courts are just for corporations?”

“No, I don’t.”

“In my experience, clients are happy to pay any contingency fee, even up to fifty percent. Tell you what, Ben, after we finish this depo, let’s you and me have a squat and try to polish off this mess. An early settlement would be in everyone’s best interest.”

The conference room door opened. “Have you met the Nelsons yet?” Abernathy asked.

As if on cue, a middle-aged couple entered the room and approached Abernathy, who wrapped his ample arms around them. The man was stocky, square-faced.

His white undershirt bore detectible underarm stains. The woman was a petite shadow in a plain sea-blue dress. “This is Carl and June Nelson,” Abernathy said.

Ben saw the recognition light in their eyes just as it did in his. “We’ve met before,” Ben said. “I thought your names seemed familiar, but I couldn’t quite place them.”

Now he did. Ben had represented Carl and June Nelson in a dog bite case shortly after he left Raven, Tucker & Tubb and started his own practice. They were kind, unassuming people—but they had a neighbor who kept a Doberman. The Doberman got out one day, and Carl was unfortunate enough to cross its path. His injuries were not life-threatening, but he did incur some steep medical bills and was expected to have both physical and mental trauma for some time. The nerves in his left leg were weakened, and he showed signs of severe stress, even paranoia. Ben managed to arrange a friendly judgment by which the Nelsons took home forty thousand dollars for their injuries and pain and suffering.

“I’ve represented the Nelsons on a previous matter,” Ben said.

“Really?” Abernathy’s eyebrows danced. “Hey, I wonder if we have a conflict of interest here?”

Yeah, you’d like that, wouldn’t you? Ben addressed the Nelsons. “Do you understand that in this lawsuit, I represent the Apollo Consortium—not you?”

They nodded their heads.

“To your knowledge, does this lawsuit relate in any way to the action I handled for you?”

Carl shook his head. “No connection that I can see, Ben.”

“Do you believe any client confidences I obtained during the previous lawsuit could be used to your disadvantage in the present lawsuit?” Carl and June looked at one another, then back at

Ben. “I don’t see that they have anything to do with one another,” Carl opined.

“Would you be willing to execute a waiver allowing me to continue working on this case?”

“We thought you were a fine young man,” June interjected. “In fact, we called you first when this incident arose, but your secretary told us you were tied up.”

“Hate to see you workin’ for the other side,” Carl said good-naturedly. “But we’ll sign whatever you want us to sign.”

“Thank you. Mr. Abernathy, it looks to me as if we have no conflict here.” The disappointment on Abernathy’s face was apparent. “Shall we get started?”

After the court reporter swore in June, Ben asked his preliminary background questions about her education and occupational history (none). She had not been deposed before and she had not reviewed any documents in preparation for her deposition.

“Mrs. Nelson, if at any time during this proceeding you want to take a break, for any reason at all, just tell me and we’ll do it, all right?”

She laid her hands flat on her lap. She was obviously nervous—every deponent was—but she was doing her best to contain it. “All right.”

“I’ll try to make my questions as clear as possible. If at any time you don’t fully understand my question, just tell me, and I’ll rephrase it, okay?”

“Okay.”

“And if you do respond, I’ll assume you understood the question.”

“That’s fine.”

Standard deposition babble. Try to cozy up to the witness, make her feel relaxed enough to say something she shouldn’t. It also made a useful record if, at trial, the witness tried to squirm out of an answer by claiming she didn’t understand the question.

Ben realized June might not be able to maintain her brave front for an extended period. He decided to proceed directly to the night of the accident. “Can you tell me what the occasion was that caused everyone to be riding on the flatbed behind the tractor?”

June licked her lips and thought carefully before answering. “It was Homecoming night, just after we won the football game. Our son, Jason, was the star quarterback, you know.” Ben saw a twitch in the corner of her eye, but she fought it back and proceeded. “The tractor pull was intended to be a celebration.”

“Realizing that you’re not an engineer, Mrs. Nelson, can you describe the physical layout of the mechanism for me?” Ben glanced at Abernathy. To his surprise, there was no objection. Abernathy was doodling on his legal pad, only barely paying attention.

“The tractor was nothing out of the ordinary—one of those big John Deere machines. The flatbed behind it was large, wooden, and flat. Enough room for thirty or forty of us without much crowding. Plus an ice chest filled with Cokes.”

“And what did you do on this flatbed?”

“We just rode around on the dirt north of the football field. I don’t know why. They’re teenagers, for God’s sake. What they do for fun…” Her voice trailed off.

“And parents were involved in this? As well as the kids?”

“Oh, yes. We try to do everything we can with our children. Especially…Jason.” Another twitch, quickly stifled.

“And then what happened?”

She released a stream of air through parted lips. “At first, nothing. Everyone was having a great time. Laughing, shouting, passing around the Cokes. Jason was swinging his legs off the edge of the flatbed, flirting with Terri, his girlfriend. Everything was wonderful.”

Ben bit down on his lower lip. He hated this. What could possibly be worse than forcing a woman to relive the night her oldest son…

“And then?” he said, nudging her along as gently as possible.

“And then…” She shook her head. “I don’t know what happened. I still don’t understand. There was a sudden…lurching. We heard an awful sound—metal grating against metal—then the flatbed pitched violently to one side. I immediately thought of Jason, dangling off the edge.” Her face twisted, tightened. “I saw him waving his arms, trying to regain his balance. He was always such a coordinated boy, so strong, so light on his feet…”

Her eyes began to water. “I reached out to him.” She extended her hands, as if reliving the entire horrific incident. “I shouted, ‘Jason! Someone grab Jason!’ But no one did. He fell.” Tears were streaming down her face.

Ben paused while June tried to regain her composure. The tension was affecting everyone in the room.

“Did you see anything after that?”

“Oh, yes,” she cried. “Oh…yes.” She wiped me tears from her face, but more streamed down to replace them. She was full out crying now, no turning back.

“What did you see?”

She breathed deep and raspily. “Jason held onto the flatbed as long as he could. Too long. As he fell, he pulled himself back under the flatbed. He got caught—between the tires and axles and—” Her eyes widened. “I ran toward him, but I was too late. He was caught in the metal workings under the flatbed. He, screamed out in pain. Blood splattered into my face. It was hideous. He was…mangled in the machinery. Jason!—”

She collapsed into the arms of her husband, crying and gasping for air. She would never have agreed to bring this lawsuit, Ben thought, if she had realized she would have to relive that nightmare.

Ben wiped the perspiration from his brow. Everyone else in the room seemed equally edgy. Even the court reporter appeared near tears.

“Let’s take a five-minute break,” Ben said. There was no dissent.

The five-minute break became a fifteen-minute break; Ben made certain everyone had all the time they needed to recover from the stress of June’s testimony.

When the deposition resumed, Ben departed from the night of the accident for less emotional grounds—matters that could only interest an attorney.

“Do you have any idea what caused the lurching of the flatbed you described?”

June glanced at Abernathy. “The defective leaf spring made by your company.” It was more a question than an answer.

“Is that something your attorney told you to say?”

“Objection.” Abernathy proved he was awake for the first time in the deposition. “That’s protected by the attorney-client privilege. I instruct the witness not to answer.”

“Do you personally have any knowledge regarding the design of the Apollo suspension system?” Ben continued;

“Well, no,” June answered.

“Do you know what is referred to as the XKL-1?”

“I’m…not sure.”

“That’s the trade name of the suspension system Apollo designed and manufactured that was used in the flatbed. Have you seen any documents suggesting there is a design defect in the XKL-1?”

“Not that I recall.”

“Do you have any reason to believe there are any documents suggesting the existence of a design defect in the XKL-1?”

She looked again at Abernathy, but he was no help. “I…don’t know of any, no.”

“Did you personally observe any machinery you believed to be defective?”

“I’m not very mechanically inclined. I can’t even start the lawn mower—”

“Please answer my question, ma’am. Did you see any machinery you believed to be defective?”

“No. Not that I was aware of.”

“How fast was the driver of the tractor going?”

“I’m…not certain…”

“Mrs. Nelson…isn’t it possible the flatbed just hit a bump?”

She seemed to be focusing on a point in the center of the table. “I don’t think so…”

“But you don’t know for sure?”

“The dirt field had been recently graded…”

“Do you have personal knowledge of that fact?”

She placed her hands under her arms. “No.”

“Can you say with absolute certainty that the flatbed didn’t just hit a bump?”

Abernathy hoisted himself up again. “To which we object.”

“On what grounds?”

“On…ummm…I object to the form of the question.”

Ben rolled his eyes. “Mrs. Nelson, that’s what we call an objection for the record. Your counsel will renew it at trial, if he’s not too embarrassed. For now, however, you must answer my question.”

“I don’t think it was a bump.”

“But you can’t rule it out?”

“No. I suppose I can’t.”

“And it isn’t Apollo’s fault that the driver took that flatbed over a bumpy field, is it?”

“No. Of course not.”

“Thank you,” Ben said, relieved to be done with it. “I appreciate your honesty.”