Silent Justice: A Ben Kincaid Novel of Suspense

Chapter 14

BEN TRIED TO REMAIN calm as he scanned the front lobby of his office.

“You know, Christina, when I told you I thought we needed to redecorate our office space, this wasn’t exactly what I had in mind.”

Christina smiled thinly. The decor of the front lobby had indeed changed—it was buried in paper.

“Couriers from Raven, Tucker & Tubb dropped by this morning. Twelve of them. They had to cart the stuff over in a truck.”

Ben reeled as he looked at the vast quantity of documents. Stacks upon stacks of photocopied documents filled the waiting room. Thousands upon hundreds of thousands of pieces of paper—he couldn’t even begin to make an accurate estimate. The cost—not to mention the manpower involved—must have been enormous.

“You think they’ve produced everything they have?” Christina asked, although in truth she already knew the answer.

“Of course not,” Ben replied. “They’ve given us a little bit of what they have, and buried it in a huge mass of crap that has nothing to do with the case. The problem is, we can’t complain to the court about what they’ve failed to produce—”

“Until we know exactly what they have produced. Which, judging from the magnitude of the production, would take roughly—”

“Forever. Which is exactly the point.” Ben pressed his lips together. “Colby is well aware of the fact that he’s up against a firm with one lawyer—”

“One and a half,” Christina corrected.

“—while he has dozens of associates at his disposal. He’s going to press that advantage to the max. He’s going to try to bury us.”

“He also sent this,” Christina said.

It was a bill for the photocopying—a huge bill, which the plaintiffs were obligated to pay. “And now he tries to exercise his other great advantage. The fact that he has tons of money at his disposal. And we don’t.”

“That’s so … unethical. Trying to win a lawsuit with these bullyboy tactics.”

“Unethical, maybe. But hardly uncommon. More like standard practice, for big defense firms.”

“So what are we going to do about it?”

“Well, we can’t begin to afford to hire help. So there’s really only one thing we can do.” He grabbed a pile of paper from the nearest stack. “We roll up our sleeves and get to work.”

One glance at the front page of the Tulsa World was sufficient to give Fred a piercing headache. Damn, damn, damn!

The membership roll of their little club was once again diminished.

He walked out of the kitchen, strode through his living room, and turned the dead bolt on his front door. What was he going to do? He had to do something. He couldn’t just sit here, waiting for his former friend to come sashaying through the door, swinging his sledgehammer or whatever gruesome instrument of torture he was using this week.

But what could he do? He’d tried to get vacation time; no go. The merchandise was worthless to him now, although it would be riches beyond measure in such a short time.…

Which would not do him a damn bit of good if he was dead. He had to face reality—he was not safe. Anywhere. He had tried to pretend he would be safe if he stayed at home at night and kept the doors locked. Yeah—that’s probably what Harvey thought, too. And Fred’s house wasn’t nearly as secure as Harvey’s. Plus, he lived alone.

There were things he could do to make his place more secure. But would that be enough? He could run, flee the city, hide out somewhere. Of course, that’s probably what Maggie did. And she still ended up stuffed in a steel drum.

Bottom line—if his former friend wanted him—and he did, or would, at any rate, when he realized the truth—

There was no stopping him.

A chill rippled down Fred’s spine. His mouth went dry. There had to be something he could do. He had to prove once and for all that he was not Fred the Feeb. That he was better than all of them. Even—

He heard a clattering sound in the kitchen. Fear paralyzed him. He felt his knees grow weak and wobbly. He stumbled across the room, struggling to escape. His heart was pounding, beating so hard he felt he might have a stroke at any moment. Sweat dripped from his temples. It was all over now. All done. He was here! Here, now! Coming—

Actually, it was his cat—a mousy-looking calico he called Charlotte. God, he hated that cat. Now more than ever.

He collapsed into an easy chair. He couldn’t go on like this, living in terror, having his heart stop every time he heard a noise. He had to do something. But what?

There were only three of them left now. One killer. And two future victims.

And for all he knew, he could be next.

Ben’s discovery motion had been sloughed off to a federal magistrate, a sort of assistant judge who dealt with matters federal judges were either too busy or too important to handle. Discovery disputes almost always went to the magistrates; judges would do anything to avoid that inevitable and interminable mudslinging. This referral to a judicial officer of lower rank hadn’t bothered Ben at first; after all, it wasn’t as if he had exactly charmed his way into Judge Perry’s heart. Who would have guessed the magistrate could be worse?

His first clue was when Charlton Colby walked into the small conference room and Magistrate Grant all but hugged him. He grabbed Colby’s hand and shook it vigorously. “Good to see you again, Charlton.”

“And you,” Colby replied. “How’s Dorothy? And the boys?”

“They’re fine.” The magistrate was an older man, about Colby’s age, with gray hair, prominent cheekbones, sunken temples, and a long face. Whether it was true or not, the combined features gave the impression of a weary, impatient man. “You need to come over again. See what Dorothy’s done to the garden.”

“I’d like that. It’s been too long. Perhaps you should drop by for dinner when—”

“No, no. I owe you.” His voice dropped a notch. “I haven’t forgotten what you did for me. Before the committee. When the magistrate’s post was being filled.”

“It was an honor. My pleasure.”

Ben sat quietly. Somehow, this conversation did not awaken great hopes for the success of his motion.

Colby took a seat at the conference table and, almost as a afterthought, waved vaguely in Ben’s direction. “Magistrate, I assume you know my opponent, Mr. Kincaid.”

A sour expression passed over Magistrate Grant’s face. “Only by reputation.” He riffled through the papers he’d brought into the room. “I gather this is your motion, Mr. Kincaid?”

“Yes, your honor. We’re having some problems with discovery.” Technically, a magistrate wasn’t “your honor,” but Ben thought it best to overlook that detail for the time being.

“Has the defendant failed to produce documents?”

“No. Much to the contrary. They’ve produced hundreds of thousands of documents.”

“Then what is your problem?”

“Your honor, I’ve made a preliminary review of these documents, and I can tell you that most of them are not even arguably relevant to this case.”

The magistrate’s eyes narrowed. “Let me see if I’ve got this straight. You’re complaining because the defense has been too generous.”

“Your honor, the defense is clearly engaging in a deceptive scheme to hide the ball in a morass of useless information.”

“You stop right there, Mr. Kincaid.” The magistrate’s eyebrows formed a solid ridge above angry eyes. “In my conference room, members of the bar will treat one another with respect.”

“But your honor—”

“I’ve known Mr. Colby for years. We went to school together. I know from experience, that he is a man of honor and a distinguished member of the bar, and I will not have you refer to him in that abusive and derogatory manner.”

Oh, great, Ben thought silently. He would get nowhere as long as this suckup was calling the shots. “Pardon me, sir. I know your honor has always upheld the highest standards of decorum—”

“Flattery won’t win your motion, counsel.”

Ben drew in his breath. This guy had it in for him, big time. “Your honor, it’s my sincere belief that this document production violates the spirit, if not the letter, of the discovery code and this court’s new mandatory production guidelines. No effort has been made to sift out the documents that actually pertain to the case.”

“The defendant didn’t ask to be sued, Mr. Kincaid.”

“Yes, your honor. I realize that.”

“You can’t expect an ongoing corporate concern to stop everything and start reading every document in sight. They have a business to run.”

“But the discovery code still applies to them.”

“Let me be blunt with you, counsel. I’m not remotely interested in your whining about getting too many documents. As far as I’m concerned, that just means you should stop complaining and get to work.”

“But, sir—”

“Do you have any evidence that there are relevant documents that have not been produced?”

“Yes, your honor.” At last, they were getting to his motion. “I discussed that in my brief. They have produced no internal studies relating to Blaylock’s waste-disposal practices.”

“Do you know that there are in fact any such studies?”

“No, not for certain. But if there are—”

“So basically this is a big fishing expedition. I might have known.” He adjusted himself to face Colby. “What about it, Charlton? Do you know if your client has conducted any internal studies that are relevant to this case?”

Colby didn’t hesitate a moment. “I assume your honor is only interested in documents subject to production.”

“Of course.”

Ben felt an alarm sound inside his head. What did that mean?

“I have no knowledge of any such studies. I see no reason to believe there are any.”

“You would agree that, if the studies exist, they should be produced.”

Again he did not hesitate. “Certainly, your honor. Assuming there is not some other factor that renders them not subject to production.”

“Wait a minute,” Ben said. “What is all this wishy-washy talk about documents subject to production? Every relevant document is subject to production.”

Colby glanced at Ben benignly, as if he were trying to deal kindly with the village idiot. “What opposing counsel has just said, your honor, is of course not accurate. Sometimes otherwise relevant documents must be withheld. For instance, when they are subject to a claim of privilege.”

“Are you saying you’re holding back documents under some claim of privilege?”

“I did not say that.”

“Don’t mince words with me, Colby. Are you holding back documents?”

When Colby spoke, it was to the magistrate, not Ben. “A very few documents have been withheld, of course, as always occurs in cases of this nature. Communications between client and counsel are naturally protected by the attorney-client privilege.”

The magistrate nodded. “Of course. Nothing unusual about that.”

“Wait a minute!” Ben said. “If he’s holding back documents, I want to know what they are.”

Colby used the same patronizing tone. “The provision of such information would, of course, violate the privilege.”

“Naturally.” The magistrate stacked his papers before him. “I think we should move on—”

“I don’t!” Ben shouted. He knew he wasn’t going to win any points with the magistrate with this outburst, but that was just too bad. “If he’s holding back documents, I want to know about it.”

The magistrate’s dander was rising. “If documents are privileged, you are not entitled to know anything about them.”

“Fine. Make him submit them to the court in camera. You can decide whether they’re privileged or not.”

The magistrate’s reply was succinct. “No.”

“Your honor! He could be suppressing anything under some fishy claim of—”

The magistrate rose, his face red with anger. “Mr. Kincaid, I have already warned you about these disparaging remarks. I will not have them in my conference room, particularly not regarding a lawyer of the caliber of Mr. Colby. His professional reputation is unparalleled and unblemished. Quite the opposite of yours, I might add. If Charlton Colby tells me a document is privileged, then no further inquiry is required.”

Ben bit down on his lower lip. The magistrate’s good ol" boy favoritism was enraging, but making a scene wouldn’t help. The best thing he could do now was control his temper and try to salvage what little he could from this disaster.

“May I ask for a ruling on my motion, your honor?” he said quietly.

“Your motion is denied.”

“As to what?”

“As to anything. I will not punish a busy defendant for producing too many documents. That’s the stupidest thing I’ve ever heard.”

“And about the internal studies?”

The magistrate pursed his lips. Clearly his patience was being pushed to its outer limits. “To the extent that any such studies exist, they must be produced. Assuming they are not subject to privilege or any other infirmity.”

“Understood, your honor,” Colby said quietly. “I’ll institute a thorough search immediately. Just to be sure.”

“I know you will. Thank you for your cooperation. It is much appreciated and”—he glanced quickly at Ben—“most refreshing.” With that, the magistrate rose to his feet and strode out of the conference room.

“I’ll expect those documents by the end of the week,” Ben said to Colby, once they were alone.

“Or what?” Colby replied, arching an eyebrow. “You’ll complain to the magistrate?” He allowed himself a small chuckle, then quietly slid through the door.

Late that night, Charlton Colby arrived at the private office of Myron Blaylock, on the top floor of the Blackwood headquarters building. They were alone. The room was mostly dark. A green shaded banker’s lamp on Blaylock’s desk provided the only illumination.

“What happened?” Blaylock snapped. Colby wasn’t surprised. A man Blaylock’s age had no patience for small talk.

“It went precisely as I anticipated.”

“So … we don’t have any problems?” Although his eyes did not avert, his hand touched the blue-covered report on the corner of his desk.

“None at all.”

“We have a reason for not producing it?”

“We not only have a reason”—a tiny smile crept across Colby’s face—“we have the magistrate’s blessing.”

“Excellent. Excellent.” Blaylock rubbed his spindly fingers together. “Maybe you are worth that outrageous fee you charge, after all.”

“I try.”

His hand returned to the report. “This must never get out.”

“Then it won’t.”

“And we must win this lawsuit. Whatever the cost.”

“Understood.”

“Any more settlement talk from the plaintiffs" lawyer?”

“No. He still thinks he can win.”

“You don’t seem too worried.”

“I’m not.” Colby turned slightly, gazing out the window at the night sky. “What Kincaid doesn’t understand is that I’ve got an ace in the hole. No matter what. Even if he makes it to trial. And whatever the result. He cannot prevail. It’s not possible. No matter what happens.” He turned back toward Blaylock, his eyes unblinking. “No matter what.”

Friday night, Ben was still in his office working late, as he had been every night since he’d accepted the Elkins class action. His staff was all present as well. Jones was on the phone, trying to line up the corps of experts they would need to prove this case and, even more challenging, trying to figure out how to pay them. Ben was talking to Loving about his two ongoing investigations—one of Blaylock employees, the other of Mrs. Marmelstein’s “Paulie.”

“I didn’t find a birth certificate anywhere in Oklahoma,” Loving told him. “If there is a son, he must’ve been born in another state.”

“Keep looking,” Ben said. “There must be record somewhere.”

They were interrupted by a knock on the office door. A moment later, Christina stepped inside. “Courier from Raven, Tucker & Tubb.”

Ben glanced at his watch. “What do you know? Colby made the deadline. Just barely.”

He took a large manila envelope from Christina. A note on the outside said it contained “all additional documents to be produced pursuant to the magistrate’s order.” Ben opened the envelope.

It was empty.

Ben tossed it over his shoulder and let it slowly flutter down to the trash can.

“They’re not going to give us a damn thing,” Ben said quietly. “And there’s nothing we can do about it.”

“So where does that leave us, Skipper?” Loving asked.

“In your ball park. I don’t want to put the pressure on you, Loving, but the fact is, they’re not going to tell us anything. I could probably depose every employee in the whole damn corporation. As long as Colby’s hovering over their shoulders, it won’t make any difference.”

“What can I do?”

“What you are doing. Only more so. You’ve got to find someone who will talk. Someone in that corporation must have a shred of decency. Someone’s conscience must be bothering them.”

“I’ve been tryin’—”

“Try harder. As soon as the depositions are done, I can guarantee you Colby will file a motion for summary judgment. If I can’t prove Blaylock is responsible for tainting the Blackwood water supply, we’ll never get to trial.”

“I’ll do everything I can, Skipper. And then some.”

“Good. Good.” Ben nodded slowly. “And I’ll take all the depositions we can afford. Maybe someone will slip, tell us something we don’t know. But I doubt it.” He leaned forward. “You’re our last best hope, Loving. The last one we’ve got.”