Dead Man's Rule Page 3

  Ben stared out into space, his jaws clenched in anger and frustration. The only way he was going to get more good cases was to do a good job on Circuit Dynamics, but he couldn’t do that unless he gave it enough time and attention. But if he gave Circuit Dynamics the time and attention it deserved, he wouldn’t be able to pay his bills—which would also prevent him from doing a good job. He felt trapped in a vicious cycle of mediocrity. He blamed his deadbeat clients for putting him in this bind, and he blamed himself for working for obvious (at least in hindsight) deadbeats, and particularly for not making them pay up front. But he didn’t really have a choice. “Okay,” he said at last, “I’ll take the case.”

  CHAPTER TWO

  HAIR ON FIRE

  Ivanovsky was waiting outside Ben’s office when the Corbins arrived at 8:05 the next morning. He wore a threadbare overcoat and a knit hat pulled down over his ears. When he saw Ben, he started toward him in a slightly shuffling walk, holding his battered briefcase in front of him with both hands. “Good morning, Mr. Ivanovsky,” said Ben. “I hope you haven’t been waiting long. I wasn’t expecting you this early.”

  “I wanted to be here so you could start suing as soon as possible,” Ivanovsky explained. “I have this money for you,” he added, gesturing to the briefcase.

  “Okay, good,” said Ben as he unlocked the door. “Come on in.” He was afraid the man would start handing him wads of cash in the hallway and quickly ushered him and Noelle into the lobby. “This is my wife, Noelle. She and I share offices, and she helps me run my practice.”

  Ivanovsky nodded to Noelle and shook her hand. “Pleased to meet you,” he said. “Will you be working on the case too?”

  “Nice to meet you too,” she responded. “I’m not a lawyer, I’m an accountant. I handle the firm’s finances.”

  “Oh, then I should give these to you,” he said as he pulled out a sheaf of traveler’s checks. “I need to sign these in front of you so Mr. Corbin can start on the court papers.”

  Seven hours later, Ben was just finishing the first draft of a complaint and a set of TRO papers. He stopped typing and frowned at the computer as if it had let him down. The TRO argument didn’t convince him. And if it didn’t convince him, there was no way it would convince the judge.

  The problem was that Ivanovsky was trying to enforce a contract. Courts typically don’t grant TROs in contract cases because the proper sum of money is enough to make good nearly any breach of contract. If the plaintiff will be entitled only to a monetary judgment at the end of the case, the reasoning goes, it doesn’t make sense to issue orders restraining the conduct of contract violators.

  The only way Ben could think of to get around this rule was to show that money alone could never fully compensate Ivanovsky—and the only way to prove that would be to show that whatever was in the box was unique and could not be replaced no matter how much money he got. And that meant Ben needed to talk to his client.

  Ivanovsky picked up the phone on the first ring. “Ivanovsky.”

  Ben identified himself and explained the situation. “So, Mr. Ivanovsky, I need to prove that the contents of that box are one-of-a-kind items.”

  “They are. I will put my hand on the Bible and swear it.”

  “Good, but you’ll need to do more than that. You’ll need to explain why they’re unique. Can you describe any of these pieces for me?”

  Ivanovsky was silent for several seconds. “I have never seen inside the box, but the man I talked to at Saint Vladimir—he said he thought the jewelries were very old and very extraordinary.”

  That might work, but more detail would be better. “Do you have the number of the man who told you that?”

  “He is now in Russia and cannot be reached,” Ivanovsky said firmly.

  “Okay, can you give me any more details?”

  “No. I told you, I have not seen inside the box.” And that was all Ben could get out of him.

  Ben finished the papers at 4:30.

  At 4:55, he called American Union Bank’s legal department to warn them that he was seeking a TRO and to ask them not to let anyone into box 4613 until the court had ruled. The bank officer readily agreed.

  At 5:05 (after the bank had closed), Ben prepared to call Nikolai Zinoviev to alert him that they would be seeking a TRO against him at 8:30 the next morning. Ben technically didn’t have to notify his opponent, but few judges would grant a TRO unless the opposing party had been given a chance to be heard.

  Ben hesitated before dialing. These calls were never fun, but they could be useful. Defendants generally had no idea they were being sued until they got the TRO call, and they often went ballistic. If Ben played his cards right, however, he could sometimes talk defendants out of opposing a TRO, particularly in little cases like this.

  After four rings, the answering machine picked up. “Hey, this is Nicki Zinoviev,” announced a reedy male voice with a Russian accent. “I’m not here right now, so leave me your name and phone number and I’ll get right back to you.”

  “Hi, Mr. Zinoviev. My name is Ben Corbin, and I represent Mikhail Ivanovsky. He has sued you for possession of the contents of a safe-deposit box, and I’ll be appearing in front of Judge Harris at eight thirty tomorrow morning at the Daley Center to request an order preventing the box from being opened for the next ten days, so we can sort this all out. I’m having a set of the papers messengered to you tonight. You can appear in court tomorrow morning if you want, but you don’t have to. As I mentioned, all we’ll be doing is seeking an order to keep the box unopened for the next week and a half. Feel free to call me if you have any questions.” He left his office number and hung up. Maybe that would keep Zinoviev out of court tomorrow morning, maybe not.

  At 6:10, Ben and Noelle headed home for the last quiet evening they would have for a long time.

  At 8:15 the next morning, Ben and Ivanovsky sat on one of the hard, plain wood benches at the back of Judge Alfred Harris’s courtroom. His court had the same utilitarian steel-and-oak decor as all the courtrooms in the Daley Center, though it was larger than most. At least fifty lawyers and their clients packed the spectator benches behind the railing that split the courtroom in two. More sat at the two counsel tables in front of the railing and in the jury box, since no juries were needed for the emergency-motion call.

  The lawyers were a Whitman’s Sampler of the local bar: plaintiffs’ attorneys in sport coats and questionable ties, buttoned-down defense-firm lawyers in dark suits, and a surprising number of pillars of the bar in three-thousand-dollar Armanis making country-club conversation with each other. The clients were a mixed bunch too, but their faces all wore the same nervous and uncomfortable expression.

  “Do you see Nicki Zinoviev anywhere?” Ben whispered to his client.

  Ivanovsky scanned the courtroom and shook his head. “He’s not here.”

  “Good.” Ben would still have to convince the judge to issue a TRO, but with any luck this would be an easy victory.

  Ivanovsky v. Zinoviev was near the end of the emergency-motion call list, so they would be waiting for quite a while. Ben didn’t mind. Judge Harris had a mercurial temper, and watching other lawyers go first would give Ben a pretty good idea what kind of mood the judge was in this morning. Also, although Ben didn’t expect Ivanovsky to have to testify, it would be good experience for him to watch other witnesses on the stand and see how a courtroom worked.

  “All rise,” the bailiff ordered as Judge Harris entered through a door next to the raised dais that held his bench, a large piece of furniture that looked like a cross between a pulpit and an oversized desk. The judge was a tall, thin, olive-skinned man of uncertain ethnicity. He kept his ancestry vague to avoid being claimed by one of the city’s numerous racial and ethnic bar associations—and pigeonholed by the others. He was almost completely bald, and Ben would have assumed he shaved his head were it not for the strip of short iron-gray hair
that adorned the back of his head just above his neck. It was a perfect mirror image of his thick mustache.

  Judge Harris was a sharp jurist who ran his courtroom well and did not suffer fools, gladly or otherwise. He worked through the pile of motions efficiently, ruling promptly after hearing the minimum-necessary argument and evidence. He seemed to be in a generally good mood that day, overlooking the minor gaffes and excesses of the attorneys appearing before him.

  His mood changed, however, when he reached the motion immediately before Ben’s. A flock of dour defense lawyers and bar luminaries stood up when the case was called, and crowded around the right-hand counsel table. A cluster of high-profile plaintiff’s attorneys coalesced around the left table. After they had all stated their names for the record, Bill Corcoran, a well-known plaintiff’s attorney, stepped up to the podium.

  Judge Harris held up his hand. “I’ve read the papers and the legal authorities cited by both sides, Mr. Corcoran, and there’s no need for argument. Your petition is denied.”

  Murmurs arose from both tables, and the defense lawyers started to get up, but Corcoran was not so easily dissuaded. “Your Honor, if I might be heard on this matter. This is an awkward issue that—”

  “It is awkward—for you,” interrupted the judge. “That’s why you lost. Now, do you have anything to add to what’s in your papers?”

  “We have several witnesses in the courtroom, Your Honor, who are ready to testify—”

  “To exactly what is in their affidavits, correct?” interrupted the judge again, his irritation showing in his voice.

  There was a history here. Corcoran and Harris detested each other. They had clashed before Harris took the bench, and Corcoran had contributed heavily to Harris’s opponents each time he had been up for reelection. Making matters worse, Corcoran was not used to getting slapped down by judges and did not take it well. “I am entitled to make my record, Judge, and I could do so very quickly if I could speak without interruption.”

  Judge Harris glared at him. “Mr. Corcoran, your record is adequately made by your papers. Hearing you and your witnesses regurgitate what I have already read will do nothing but . . .”

  Ben was distracted by a nudge in his side, followed by whispering in his ear.

  He turned to Ivanovsky and whispered back, “Write me a note, we’re—”

  “Mr. Corbin,” the judge said loudly from the bench, “you know better than to talk in my courtroom!”

  Ben’s face turned hot and he felt like a fourth grader caught whispering in class. “Yes, Your Honor. I apologize.”

  The judge turned back to lecturing Corcoran. “A TRO is an extraordinary remedy. I do not grant them lightly or often, and I never grant them unless I am convinced they are absolutely necessary. This is a commercial dispute, Mr. Corcoran, and I am not going to impose a TRO simply because your client believes the defendants have violated their contractual duties. I have seen very few cases in which a contractual breach could not be remedied by an adequate application of money, and you have not convinced me that this is such a case. Now, I have a courtroom to run, so please step away from the podium so the next case can be called.”

  Corcoran did not move. “If the Court would just grant me five minutes to—”

  Judge Harris’s face darkened and the veins in his neck bulged. “If you do not step away from that podium by the count of three, there is a gentleman here with a pistol”—he pointed to the bailiff—“who will take you to jail. One . . . two . . .”

  Corcoran reluctantly stepped back from the podium, his teeth clenched with suppressed fury. Judge Harris stood, and so did everyone else in the courtroom. “We’ll take a five-minute recess and then finish the call.”

  Terrific, Ben thought as the judge walked out. Now he’s in a bad mood, irritated with me, and unlikely to grant a TRO in a contract case. At least this should be uncontested. After the judge left, Ben turned to his client. “I know I never told you this, but never, ever talk when court is in session. Now, what did you want to tell me?”

  “He is here. Nicki Zinoviev. He walked in three minutes ago, and he sits over there.” He nodded toward the bench across from theirs.

  Ben glanced over. A man wearing a double-breasted black suit with a matching black shirt and tie was doing his best to look nonchalant, but his eyes were wary. A gold watch showed at the end of his left shirtsleeve and a heavy gold bracelet adorned his right wrist, as did what looked like the end of a tattoo. He had long, thinning black hair slicked back into a short ponytail. Ben counted three earring holes in his left ear. “He looks like a drug dealer,” he whispered back to his client.

  “He is a drug dealer.”

  “Are you sure?” Ben asked.

  Ivanovsky nodded.

  Ben smiled, planning ways to use the information on cross-examination. “Any convictions?”

  Ivanovsky shrugged. “I do not know.”

  Ben was about to follow up with more questions when another man walked in and sat down next to Zinoviev. Ben stared in surprise. “I wonder what he’s doing here,” he said softly.

  “Who is he?”

  “Anthony Simeon. He’s one of the ten or twelve best litigators in Chicago. I’d think this case was a little beneath him.”

  The judge came back in and nodded to the clerk. “Line twenty-four, Ivanovsky versus Zeen . . . Zeeno . . .”

  “Zinoviev,” supplied Anthony Simeon in his rich baritone as he approached the podium, giving the clerk a friendly smile. The clerk smiled back.

  Simeon was close to seventy, but his perfectly coiffed gray hair, perpetually tanned face, and vigorous, engaging courtroom manner made him appear twenty years younger. He was a thickset man of medium height, but he had an outstanding tailor who made him look burly rather than overweight. He had an impressive book of a business, though he tended to look at his clients’ bank balances a lot more closely than their ethics.

  Both the bench and the bar respected Simeon, but they did not particularly like him. Not that anyone actually disliked him—he was cordial and had a legendary sense of humor—but the general feeling was that he was best kept at arm’s length. He was a man of many acquaintances but no close friends: a polished gentleman brawler with a tendency to play hardball with friend and foe alike. That made him an unreliable ally and earned him the sobriquet “the Velvet Dagger.”

  The two lawyers stated their appearances for the record, and Judge Harris immediately started questioning Ben. “Why should I issue a TRO here?”

  “To preserve unique property, Your Honor. My client is entitled to a safe-deposit box containing one-of-a-kind jewelry that Mr. Zinoviev is now attempting to—”

  “Surely this jewelry has a monetary value. What did your client pay for it?”

  “Five thousand dollars, Your Honor, but—”

  The judge held up his hand and looked at Simeon. “Is your client willing to post a five-thousand-dollar bond?”

  Simeon glanced back at his client, who in turn looked at two men sitting in the back of the courtroom. One of them nodded. “Yes, Your Honor,” said Simeon.

  The judge turned back to Ben. “Problem solved, no?”

  “I’m afraid not. We’re talking about one-of-a-kind items of jewelry here that can’t be replaced by any amount of money.”

  “You keep saying ‘one-of-a-kind,’ but that’s just a phrase from your client’s affidavit. What exactly is in the box that’s so unique?”

  “As described in Mr. Ivanovsky’s affidavit, he only has secondhand reports that generally describe the jewelry. He has never been able to look inside the box himself, so—”

  “So you can’t carry your burden of proof on this point, can you?”

  “I think we have, Your Honor,” Ben replied, putting as much certainty in his voice as he could muster. “Under the law, it’s sufficient for purposes of a TRO to allege uniqueness. T
his is an emergency proceeding with no time for discovery. Once we’ve had an opportunity to look in that box, we’ll be able to provide more detail.”

  “That’s my point. If you don’t know what’s in the box, you don’t know whether you’re entitled to a TRO. And if you don’t know whether you’re entitled to a TRO, you certainly aren’t going to persuade me to issue one.”

  Ben was about to lose, and he knew it. He decided to take a chance. “Your Honor, there’s one person in this courtroom who knows exactly what’s in that box, and that’s Mr. Zinoviev. I ask the Court’s permission to call him as a witness.”

  The judge turned to Simeon. “Counselor?”

  “Your Honor, my client will be happy to testify when proper notice has been given, but it is highly unfair to ambush him like this. It is Mr. Corbin’s duty to present the Court with evidence sufficient to justify issuing a TRO—as Your Honor just noted, an extraordinary remedy—and he has not done so. If he had wanted Mr. Zinoviev’s testimony, he could easily have included a notice or a subpoena with the TRO papers he served last night. He hasn’t done that either. We can produce Mr. Zinoviev for deposition in the next few days, and Mr. Corbin can take his testimony then.”

  “And in the meantime, he’ll be free to dispose of that jewelry, right?” observed the judge.

  “A TRO can only issue on a proper showing, Your Honor. In the absence of that showing, there’s no reason to prevent my client from disposing of his property as he sees fit.”

  “Your Honor, the only way I can make the showing you requested is to put Mr. Zinoviev on the stand,” Ben interjected.

  The judge looked at each of them thoughtfully for a moment. “Mr. Simeon, you are correct that there is no basis to compel your client to testify at this hearing, but Mr. Corbin is also correct that he can’t make his TRO showing without Mr. Zinoviev’s testimony. Since Mr. Zinoviev is sitting in this room right now, I’m reluctant to deny a TRO just because he hasn’t been identified in advance as a witness. So I’ll tell you what I’m going to do. You can either let your client take the stand now or I can make certain assumptions about his failure to testify and issue a TRO that will last until twenty-four hours after his deposition takes place. You choose.”