Dead Man's Rule Read online

  Ben glanced quickly at the papers, which consisted of a map of downtown Chicago with the location of the bank helpfully marked with a red X, some handwritten Russian notes, and a letter from the bank refusing Mr. “Ivansky” access to the box. “They say their records show that the box belongs to a man named Nikolai Zinoviev,” Ben observed.

  “This lies!” Ivanovsky pointed to the letter. “This Zinoviev, he sold it to me for $5,000 last week.”

  Ben noticed that Ivanovsky hadn’t handed him a contract for the sale of the box. “Did he sign any papers showing that he sold it to you?”

  Ivanovsky hesitated. “Not yet.”

  “Have you asked him to?”

  “Yes.”

  “What did he say?”

  “He said he would sign papers from the bank to show that this box is mine, but then he did not do it. Now he will not sign.”

  “I see,” Ben said. Now they were getting somewhere. “Were there any witnesses to the conversation where Mr. Zinoviev agreed to sell it to you?”

  Ivanovsky frowned and looked down at his hands. “No, we were alone.”

  “Did you actually give him the money?”

  “Yes, yes.” Ivanovsky shuffled through his papers, happy to be able to prove something again. “Here is the receipts, here is the bank statement showing my account before, and here is another statement showing my account is much lower now.”

  Ben’s secretary, Susan, came in with a mug of tea and a sugar bowl for Ivanovsky. He thanked her and dumped four heaping spoonfuls of sugar into his mug. Ben’s teeth hurt as he watched his guest drink. “By the way, what’s in the box?” Ben asked.

  “Jewelries.”

  “What kind of jewelry?”

  Ivanovsky put down his mug. “Okay, here is what happened. I was at Saint Vladimir Church two Sundays ago and I talked to this man, and he told me about a man who died in 1985 and maybe he put some jewelries in this box at American Union Bank on LaSalle Street. This man who died, his brother lives in Chicago now, so I telephoned the brother and asked if it is true. This brother is Nikolai Zinoviev, who is called Nicki.

  “I said to Nicki Zinoviev, ‘A man told me that when your brother died, maybe he left jewelries in a safe-deposit box at a bank. I maybe would like to buy these jewelries.’ He knew nothing of this box and was very surprised. He said, ‘You are a very lucky man, Ivanovsky, because I must pay some money to a man today and my bank is closed so I cannot get my money. Because of this, I will sell whatever things are in this box to you for $5,000, but you must pay in the next two hours.’

  “American Union Bank is also closed, but I think maybe these jewelries are very valuable, so I take this risk and say yes. I gave him $5,000, and he said we will go to the bank the next day and fill out necessary forms and show the bank papers so we can take the things in the box. But now he says no.”

  Ivanovsky’s monologue seemed oddly preplanned to Ben, and he had a vague feeling that there was more going on here than this man was telling him. Ben thought about asking more questions but decided against it. Did he really need to get to the bottom of whatever was going on? Or, more importantly, did he need to do it now? Not really. After all, he hadn’t even taken the case, and he probably wouldn’t. He decided to let it slide, at least for the time being. He glanced at his watch again. He had eight minutes. “Did he say why he won’t give you the jewelry?”

  “He says now we have no deal. He says he has sold the jewelries to someone else.”

  “So you want your money back?”

  Ivanovsky shook his head. His bushy gray hair and spindly neck made him look like a dandelion flopping in the breeze. “No. I want the jewelries.”

  “But you said—”

  “The jewelries are still in the box. The bank is still looking at the papers Nicki gave them.”

  “Okay, I think I have a basic grasp of what your case is about. The real problem I see is money. This isn’t a very large dispute, and litigation is expensive. No matter who you hire, you’ll almost certainly spend more than $5,000 on lawyers. Are you really sure you want to file suit over this?”

  Ivanovsky didn’t hesitate. “Yes.”

  Ben shrugged. “Okay. And you don’t just want your money back. You want the jewelry, right?”

  “Yes.”

  “Well, that will mean not just filing a complaint, but also moving for an immediate temporary restraining order, or TRO, to keep Mr.”—he checked his notes—“Mr. Zinoviev and the bank from giving it to someone else. TROs only last ten days, so whether you win or lose the TRO motion, you’ll need to file a motion for a preliminary injunction that will prevent them from doing anything with whatever is in the box. The trial on the preliminary injunction may come within ten days, but what usually happens is that the parties agree to extend the TRO—if it’s granted—and hold the preliminary injunction trial a little later. That way they can do some discovery before jumping straight into a trial. Still, the trial will probably come within a month, which is about two years sooner than in a regular case.

  “My old boss used to describe this type of case as ‘litigating with your hair on fire,’ and that’s what it feels like. You’ll be constantly running, from the moment you start until the end of the trial. You’ll also be spending lots of money, because your lawyer will be working for you pretty much full time for the whole month.” Ben did some quick calculations in his head. “It would probably cost you at least $20,000 to get through the preliminary injunction trial. The case won’t end then, but the work and the bills will probably drop off.”

  Ivanovsky went a little pale. “I—I do not have so much,” he mumbled, searching through his bag. “I have only $5,000 with me.” He pulled out a stack of traveler’s checks and showed them to Ben with a downcast look on his face. “I have some money saved, and I can get the rest from my pension and from selling some things, but not right away. But next week I will pay. Is this okay?”

  Ben was stunned and felt a little sorry for the old man. He was clearly burning through his retirement nest egg to get whatever was in that box. “Uh . . . yeah, sure. I would only need $5,000 up front. Just bring me a bank statement showing me that the rest is there.”

  Ivanovsky started to countersign the checks.

  “No, no. Wait,” Ben said quickly. “I’m not sure I can take your case. Remember how I said you’ll need a lawyer who can work on this full time for a month? I’ve already got a busy month ahead of me. I wouldn’t want to take your case and then not have the time to represent you as well as you deserve.”

  “But you must!” Ivanovsky said with sudden fierceness. “This is a very, very important case. When I told Mrs. Pugo I needed a very good lawyer, she said, ‘Call Ben Corbin, here is his number. He is a good lawyer, Mikhail, the best that you can afford.’ So you must take this case.” He paused. “I need you.”

  Ben knew he was running late without looking at his watch. “I have to leave for a hearing now—I apologize for running out so quickly—but I’ll take a close look at my calendar, and I’ll call you tonight to let you know whether I can take the case.” Ben was already thinking about the Circuit Dynamics case by the time he closed the door behind Ivanovsky.

  Mikhail Ivanovsky took the elevator to the ground floor, walked out of the office building, and turned left. He walked north for a block and a half, then abruptly turned and walked back south for three blocks, intently looking at the other pedestrians as he went. Then he caught a cab to Union Station.

  He got on his train, but got off two stops before his station. He watched with great care as the other passengers got off, noted where they went, and then waited alone on the platform for half an hour. When the next train came, he acted as if he were waiting for another train. When the doors were about to close, he leaped in, barely avoiding getting his arm caught. Seats were available, but he stood in the unheated, drafty vestibule for the rest of the trip.
When the train reached the next stop, he got off, looked up and down the platform, and then jumped back on.

  He got off again at the next station—his actual stop—and walked toward his apartment building. He stopped halfway there and stood in front of a storefront display for several minutes, staring in the window at the reflection of the street behind him. Then he walked briskly around the block twice, once going clockwise and once counterclockwise. Finally satisfied, he went home.

  Ben knew he was losing the hearing. The defendants had sent Circuit Dynamics a document request asking for copies of all its tax returns since the day it was incorporated. This, of course, was highly intrusive and had nothing to do with whether the defendants had stolen Circuit Dynamics’ software. Ben had objected to the request, and the defendants had filed a motion to compel, which Ben and defense counsel were now arguing in front of Judge Patrick Ryan.

  “This isn’t discovery, Your Honor, it’s harassment,” Ben insisted. “My client’s tax returns are private documents that have no bearing on any issue in this case. I therefore ask the Court to deny defendants’ motion.”

  Judge Ryan had nodded several times while Ben’s opponent argued, but he looked at Ben with an expression of withering skepticism that is only truly mastered by trial-court judges and grade-school principals. He ran his fingers through his thin white hair and sighed. “Mr. Corbin, I’m going to grant the motion, and you’re fortunate I don’t sanction you as well. In a trade-secrets case, the plaintiff has to turn over lots of private documents, as you should know by now. Your client has ten days to produce the records.”

  “But Your Honor, these records have nothing to do with—”

  “I’ve made my order, Counsel,” Judge Ryan said flatly. He turned to his clerk. “Call the next case.”

  Hiding his disgust, Ben slipped the motion papers into his briefcase and strode out into the hallway. As he waited for the elevator, he found himself standing next to the lawyer who had just defeated him, a man named John Weaver. Weaver was a partner in a big litigation firm, which he seemed to think made him a courtroom heavyweight—even though he had never actually tried a case. He was the number-two lawyer on the case. That meant he made most of the decisions prior to trial. Steve Rocco, a well-known senior litigator, was the number one, but he wouldn’t get significantly involved until the case got close to trial or settlement. “I never heard back from you on our settlement offer,” Ben said evenly.

  “That should tell you something, shouldn’t it?” responded Weaver with a sardonic half smile. “I’ll get you a formal response, but I can tell you what it will be. Frankly, your $25 million offer is laughable. We may offer a few thousand as a nuisance payment to make this case go away, but that’s it.”

  Ben had expected something like that. “You’re that sure you’re going to win?”

  “Yeah, I’m sure,” Weaver said as the elevator doors opened and both men stepped in. “Your client’s case is totally baseless.”

  “So was your motion, as we both know.”

  Weaver smiled but said nothing.

  “But look what happened,” Ben continued. “You can’t be sure of anything in that courtroom. Judge Ryan is like a barroom drunk waving a gun around. Today it was pointed at me; tomorrow it may be pointing at you, and neither of us knows where it’ll be pointing when it goes off. Your client faces liability of up to $100 million, and there’s no way you can honestly tell them they have a seventy-five-percent chance of winning.” The elevator jerked unsettlingly, then came to a stop. “Think about it,” he said as the doors opened. “I wouldn’t laugh too hard at $25 million if I were you.”

  Weaver chuckled. “But you aren’t me, are you?” he said as they stepped out into the crowded courthouse lobby. “And you sure aren’t Steve Rocco. Look, I said I’ll get you a formal response to your offer and I’ll do it, but you and your client will need to seriously rethink your position if you really want to settle this case.”

  The two lawyers parted ways as they walked through the banks of steel-and-glass doors surrounding the Daley Center, Chicago’s massive high-rise state courthouse. A wide stone plaza sprawled immediately to the south, watched over by an ominous fifty-foot-tall sculpture by Pablo Picasso. The city of Chicago was quite proud of the statue but not quite sure what it was supposed to be. The prevailing theory among art critics was that it was the head of a woman. Ben had always thought that was questionable at best. The statue was black-and-gray steel, and it had wings, a long beak-like snout, and an empty ribcage. Several of Ben’s clients had commented that it looked like a hungry vulture, which they found to be a particularly apt guardian for a hive of lawyers.

  The city put the plaza to good use, and today it held a bustling farmers’ market. A maze of stalls sold apple butter, gooseberry preserves, maple syrup, gourds, fresh flowers, and anything else that could legally be grown for profit in the Midwest. The chatter of rural sellers and suburban and urban buyers reminded Ben pleasantly of a county fair.

  He spent twenty minutes wandering around the market, making an effort to shake off his irritation at the judge’s ruling and Weaver’s arrogance. He gradually relaxed as he walked, and he was actually in a good mood by the time he finished paying for a half dozen ears of sweet corn.

  “Will it be a problem to give them the tax records?” asked Noelle.

  “Not really,” said Ben. He and Noelle were sitting on their back deck, finishing a delicious dinner of grilled pork chops and the corn Ben had bought. They sipped iced tea and enjoyed the unseasonably warm October evening. The rich golden light from the low sun gave everything it touched a soft glow, bringing out the auburn highlights in Noelle’s brown hair and making her deep-blue eyes strikingly luminous. Ordinarily, Ben would have said something nice to his wife, but tonight he was distracted. “Nothing in them has any impact on the case—a point that Judge Ryan completely ignored.”

  “Is that what’s bugging you so much?”

  Ben didn’t answer right away. He thought for a moment, gazing at the row of oaks at the back of the yard, their red leaves beginning to thin as autumn took hold. “Well, I hate getting criticized by a judge, particularly when he’s wrong,” he said after a moment. “But what really bothered me was Weaver not taking me seriously.”

  “He’ll learn his mistake in court,” said Noelle.

  Ben shrugged. “I hope so.” He paused again. “You know what? Seven months ago, if I’d been in Weaver’s shoes, I would have thought the same thing he did. I wouldn’t have been pompous enough to say it, but I would have thought it. Maybe that’s what’s really eating at me; I’m afraid I’m becoming something I don’t respect.”

  “What do you mean?”

  “I left Beale & Ripley because I wanted to do something better. I was tired of always representing big corporations that used my cases as leverage in their business strategies. Even my big courtroom victories didn’t have much real meaning.”

  She nodded. “I remember. You used to joke that your job was ‘to redistribute wealth from the rich to the rich.’”

  “Exactly, except it wasn’t really a joke. I was ‘kidding on the square,’ as Uncle Mike used to say. That’s why, when the time came for me to make a run for partner, we prayed about it. Would I spend even more hours in the office and out entertaining clients? Or would we give up the security and comfort of big-firm life so I could go out on my own and you could open your own accounting practice?”

  She cocked her head and wrinkled her brow. “Yes, and we did exactly what we thought God was leading us to do. So why did you stop respecting yourself all of a sudden?”

  “Look at me.” Ben spread his arms. “I’m running around hustling nickel-and-dime cases to make my rent. I’m just a small-time solo practitioner. When I left Beale & Ripley, I wanted to take cases that would make a difference in people’s lives. The only one I’ve got that fits that bill is Circuit Dynamics, and I just took a shot f
rom the judge who’ll be trying the case.”

  Noelle bit her lip. “Um, speaking of paying the rent . . .”

  Ben winced. “Are we past due?”

  She nodded. “The check from Anderson Engineering bounced, so I couldn’t pay Chicago Properties. I called Ed Anderson and told him I was going to break his kneecaps if he didn’t have a good check in my hands within twenty-four hours. He said he’s bringing over a new check tomorrow morning, but even if it’s good, it won’t clear for at least another day after that.”

  Despite the bad news, Ben couldn’t help smiling at the thought of his five-foot-four, 110-pound wife threatening to take out the knees of the burly engineer. “And by then we’ll be past the grace period and we’ll get hit with another $500 penalty, right?”

  Noelle nodded.

  Ben closed his eyes and sighed. “Any bright ideas?”

  “We just don’t have $3,000 free right now. We could try to take out a loan, but that would be hard to do on such short notice. Also, we could easily spend $500 on transaction costs and interest.” She thought for a moment. “Is there any work you could do that could raise some quick cash? What about that guy the Pugos referred? What kind of work did he want?”

  “Well, he wants a TRO and a preliminary injunction,” Ben explained reluctantly. “He’s willing to pay a $5,000 retainer.”

  “Terrific! That’ll take care of the rent and leave enough extra to pay for the new computer we wanted.”

  Ben frowned. “This is exactly the kind of work I’m trying to get away from. It’s just a two-bit little breach-of-contract case, but it could take up a lot of time over the next month, and I really need to focus on Circuit Dynamics. I was going to call this guy after dinner and tell him I couldn’t take his case.”

  “Ben, we need that money. What if the Andersons bounce another check? Chicago Properties has already threatened to evict us once. You can’t focus on Circuit Dynamics without an office.”