Deadly Justice

20

BEN AND ROB SAT at one of two counsel tables in Judge Roemer’s courtroom and waited. Roemer’s courtroom was one of the smaller ones tucked away on the seventh floor of the state courthouse at Fifth and Denver.

Ben checked the clock on the wall. “The judge is already fifteen minutes late. I hate waiting around like this, but it seems to happen every time.”

“Is this sort of like being fashionably late to a party?” Rob asked.

“Well, this is more a power-of-the-judge pose. You know: you have to be on time; I don’t.”

“That must be irritating.”

“True. On the other hand, state judges don’t have clerks, much less magistrates. They have to do everything themselves. Roemer’s probably back in chambers reading our brief.”

Ben apparently was not the only person in the courtroom getting restless. Abernathy lumbered over and plopped another business card in front of Ben. “Wanted to make sure you gentlemen had my new card. It’s got my 1-800 number.”

“You have a 1-800 number? For your law practice?”

“Sure. Doesn’t everyone?” He laughed. “It’s the wave of the future, Ben. Mass marketing. Media referrals.”

“So if I want to call you up and talk about the pending motions or something, I can just use this number?”

“Well…er, no…This is really for prospective clients…”

“Ah.”

“Have you seen my new commercial? It’s running during reruns of Laverne and Shirley on Channel Six.”

Ben glanced at Rob. “You know, I don’t keep up with Laverne and Shirley like I used to.…”

“It’s a great spot.” Abernathy shifted his considerable weight into action, reenacting the commercial. “It starts with the camera tightly focused on me.”

“What a surprise.”

“Then the camera pulls back, and you see I’m wearing a black leather jacket and straddling a great big Harley. I lean into the camera lens and say, ‘If a doctor makes a mistake, I believe he should be held accountable. If you’re hurt On the job, I believe your boss should be accountable.’ Then I rev up the Harley and say, ‘And if you’re injured by some pig on the highway, I believe he should be held accountable.’ By this time, the music is swelling. Really exciting stuff—we looped it from Top Gun. It’s very moving.”

“No doubt.”

“And I finish off with, ‘Don’t give up your claim prematurely. Don’t accept a nuisance settlement from someone who owes you more. You need a hot rod in your corner. Call George Abernathy.’ And then the 1-800 number flashes. It’s beautiful. The first time I saw it, I got choked up.”

“Better than Casablanca,” Rob said.

“Oh, a hundred times over,” Abernathy replied. “If you ever go back into private practice, you should try TV, Ben.”

“I’ll pass. Thanks.”

“Hmmph. You guys who act like you’re too classy to advertise are going to be left behind in the dust.”

“Maybe so,” Ben said, “but at least I won’t be straddling a great big Harley, begging people to sue their friends and neighbors.”

“Since you apparently loathe, litigation so much, we could avoid this whole unpleasant hearing if you’d sit down and talk some settlement.”

“Thanks, but no thanks, Abernathy. I’m not convinced you even have a case.”

Judge Roemer chose that moment to enter the courtroom. Roemer was one of the more laid-back state judges; in fact, Ben reflected, some might call him comatose. He never took an active role, he let the lawyers do whatever they wanted, and he hated to make a decision. “Please be seated,” he mumbled into the microphone.

He glanced at the papers on the bench, frowned, and then said, “I understand we have a discovery dispute today.” His voice was thin and reedy. “I hate discovery disputes. Can’t you boys work this out on your own?”

Abernathy waddled toward the podium and went into his gosh, shucks routine. “Darn it all, Judge, I’ve talked to Mr. Kincaid about this, but he refuses to produce those ten pieces of paper.”

Roemer addressed Ben. “Is this true?”

“Yes, your honor. We’re claiming privilege as to those documents because they contain proprietary information. Furthermore, they would not be admissible at trial as they contain evidence of subsequent remedial repairs.”

“Any reply, Mr. Abernathy?”

Ben watched as Abernathy struggled for words. Ben expected that he would request the judge to examine the documents in camera, or would offer a confidentiality order restricting the dissemination of the trade secrets, or would argue that ultimate inadmissibility should not preclude production during discovery. But Abernathy did none of that. He just stood there, fumbling and foomferalling, obviously unprepared.

Beads of sweat poured down from Abernathy’s hairline. “Well, gosh, your honor. I haven’t even seen these documents. How can I know what’s in them?”

Roemer’s bored impatience was evident. “You’ve just heard an officer of the court make a representation as to their contents. Do you have any reason to dispute it?”

“Well, no, I’m sure Mr. Kincaid is an honest young man—”

“And you do agree that evidence of subsequent remedial repairs is inadmissible, don’t you?”

Abernathy blinked, then wiped the sweat from his forehead. “Now, I don’t see why that should be. If a company repairs something, that’s a darn clear indication that there was something wrong with it in the first place.”

“Mr. Abernathy has, of course, just pinpointed the entire reason for this evidentiary doctrine,” Ben interjected. “If such evidence was admissible, companies would be disinclined to make repairs, even where lives are at stake.”

“Anything further?” Roemer asked Abernathy, tapping a pencil.

Abernathy was steadying himself against the podium. “Gosh, your honor, I’m not sure what to say. This is a new one to me.”

Ben’s eyes crinkled. This was first year law school stuff. Abernathy apparently was so used to settling cases quickly—taking the money and running—that he never had to do any real legal work.

“Can you cite any cases in support of your position,” Roemer asked, “assuming you have one?”

“Uh…Judge, I’m not really prepared to do that at the moment.”

“Then I have no choice but to deny your motion.” Typical Roemer—he didn’t want to take any longer than necessary. And he didn’t want to order anyone to do anything if he could avoid it. “In the future, Mr. Abernathy, don’t waste this court’s time if you can’t defend your motions any better than this.” He reached for the gavel. “This hearing is concluded.”

Everyone rose as Roemer drifted out of the courtroom.

“All right!” Rob said, punching Ben on the shoulder. “You killed him! Crichton’s going to be pumped.”

“I suppose.” Ben watched Abernathy lumber out of the courtroom. “I didn’t win on the merits, though. I won because the Nelsons hired a walking TV Guide ad instead of a lawyer.”

“What’s the difference? Man, you’ve been on this case less than a week, and you’ve already turned it completely around. Crichton was right—you’re the greatest!”

Ben smiled pleasantly, but said nothing.

“C’mon,” Rob said enthusiastically. “Let me buy you a chocolate milk. You must be feeling great.”

Ben followed Rob out of the courtroom, wishing Rob were right. But he wasn’t. He wasn’t right at all.