“It would have been one and a half years next month.” Her fingers fluttered first at the file, then at a few stray hairs at her neck. She didn't seem to know what to do with her hands.
“Did he keep a trial notebook for his cases? You know, his thoughts about the case, the way he planned to try it.” Sooner or later someone would return the binder containing the transcript of Warren's deposition, but if there was anything important in it that needed attention at trial, Pearsall would have mentioned it in his notes.
Tina shook her head. “He never said anything about a trial notebook.”
A lawyer with Pearsall's experience would not prepare for a trial of this size without outlining his strategy, setting down the main points for his direct and cross-examinations, noting whether a deposition witness seemed overly forgetful or remembered events that had not occurred. By this point in his preparation, Pearsall also would have sketched out his theory of the case, the story interweaving fact and law that would, or so every lawyer hoped, give the jury no choice but to decide for his client.
“After Mr. Pearsall died, who moved his things out of the office?”
“I did. Any documents related to the case, I sent down to the workroom.” One floor down, the workroom had been part of Tina's office tour that morning. The size of three conference rooms, it was where the paralegals working on the case had their cubicles. The storehouse of last resort, the workroom was also where the team kept the correspondence files and documents that were not in the conference room.
Tina said, “I gave the papers for his other cases to Chris.”
Palmieri had evidently been Pearsall's lieutenant on other cases, not just Vaxtek. The young partner had been in the workroom talking with one of the paralegals when Tina and Seeley came through, and he seemed annoyed at the interruption when Tina stopped to introduce Seeley.
“What about his correspondence file?”
“I have it, but it's only letters.”
“Briefs?”
“Mr. Pearsall didn't write them. Usually one of the associates did, or sometimes Chris. Mr. Pearsall marked them up, crossed things out and wrote comments on them. Sometimes he rewrote them. But someone in the pool typed them.”
“Was anything else removed from his office?”
“I filled some boxes with personal things-you know, diplomas, family pictures.” She remembered something and gave Seeley a small, tentative smile. “There were the steno pads he used to draw in. Sometimes, late in the afternoon, I'd come in and he'd be looking out the window with a stenographer's pad open, drawing.”
Boats on the bay, Seeley imagined.
“I put them in the boxes along with the other stuff and had them delivered to Mrs. Pearsall.”
Papers and belongings dispersed, Seeley thought, how long would it take Pearsall's partners to forget him completely? He was thinking about his own former partners in New York, some of whom, he was sure, were still working hard to forget him.
“Could you leave me her telephone number and address? And tell Chris I'd like to see him.”
“She'll appreciate that,”Tina said.
“What's that?”
“Mrs. Pearsall. Your visiting her. Paying your respects.”
After Tina left, Seeley continued working down the list of witnesses, preparing for each a brief summary of his or her testimony, the first draft of his order of proof.
Other than the travel-poster view, the conference room was virtually identical to the dozens in which Seeley had spent a good part of his professional life, plotting strategy with his trial team, taking or defending depositions, negotiating settlements. Law firm interior designers all had the same shopping list: dark gleaming wood for the bookshelves and conference table, plump leather-and-steel chairs, chrome carafes and ice buckets to sit next to the telephone on the sleek credenza. On one off-white wall was a generic painting, neither offensive nor banal, that looked as if it had been ordered by the yard.
Seeley was near the end of the witness list when there was a knock at the open door and Chris Palmieri came in. In a firm where the younger lawyers went without ties and jackets, Palmieri wore a trimly cut gray suit, starched dress shirt, and silk tie. A pale pink pocket square was carefully folded to look like a casual afterthought, and his light hair was cropped close.
“Tina said you wanted to ask me about something.”
Seeley had wondered about Palmieri's prickliness not only when Tina introduced them in the workroom but also in their telephone conversations the week before. He assumed it was the young partner's resentment at being passed over to run the case when Pearsall died. But it could also have been ill will toward any lawyer who tried to replace his mentor and, probably, friend.
“Do you know where the Warren deposition is?”
“Warren?”
Seeley slid the witness binder down the conference table to where Palmieri was. “Lily Warren. The scientist who St. Gall says invented AV/AS first.” Vaxtek's case turned on its claim that one of its own scientists, Alan Steinhardt, invented AV/AS. If St. Gall could prove that Warren invented AV/AS first, it would win.
“Oh, her.” He left the binder on the conference table, unopened. “We didn't depose her.”
Seeley waited. Not to depose a key witness was unthinkable.
“St. Gall dropped her. It turns out she's a crackpot. They were afraid her testimony would backfire on them.”
In a deposition, the deposing attorney-for Warren it would have been Pearsall or another Heilburn, Hardy lawyer-gets to ask the witness anything he wants. If, on questioning, Warren said something that hurt Vaxtek's position, the deposition transcript would be there to warn the lawyer against asking the same question at trial. However, if Warren said something that was favorable to Vaxtek and later contradicted herself at trial, Vaxtek could introduce the deposition transcript to impeach her testimony. Otherwise, no member of the jury would ever get to see the deposition. From Vaxtek's viewpoint deposing Warren was a no-lose proposition. Why, then, hadn't its lawyer done so?
“So there's no record of her story?”
“I think she talked to one of the newspapers, maybe the Chronicle, but after St. Gall dropped her, there wasn't a story.” Palmieri tilted his chair back from the table and closed his eyes. “No deposition, either.”
“Do you know how we can reach her?”
Palmieri was looking at him again, but made no effort to hide how boring he found this. “I think St. Gall fired her right after they cut her from the witness list.”
“You'd think Pearsall would want to get her story down, for the record. She could still turn out to be a problem for us.”
Palmieri flushed. He half rose and leaned over the table. “Warren was St. Gall's witness, not ours.” For the first time, he looked squarely at Seeley. “Bob never missed an angle that mattered.”
“I'm not saying he did. He may have been planning to depose her when he died.” Seeley didn't mind that Palmieri idolized his mentor; he admired loyalty. But if they were going to work together, the young partner would have to calm down. “Did Pearsall seem any different before he died? Had he changed?”
Palmieri drew back. “You mean, what happened that he would throw himself in front of a train?” He started to answer his own question, but changed his mind. “Bob was as passionate about this case as he was about all his cases.”
That told Seeley nothing. What looks like passion can in fact be nothing more than a driving fear of failure. In his last years in New York, even as he was winning most of his cases and favorably settling the others, Seeley could never shake the conviction that he had failed his clients by not obtaining a larger damage award or more generous settlement terms.
“Maybe Warren isn't a problem,” Seeley said, “but I want to nail this down. If there's someone out there with a halfway legitimate claim that he-or she-made this invention before Steinhardt did, I need to know it before I put him on the stand. I'm seeing him this afternoon, but I want you to go through his lab
notes and mark anything that could raise a question.”
Again Palmieri reddened, and this time Seeley caught the meaning at once.
“This is too important for an associate. If it weren't important I wouldn't ask you to do it. I'll look at whatever you come up with tomorrow morning.”
Palmieri pushed back to leave.
“Look, Chris, when Vaxtek asked me to take this case, I told them they should let the second chair run it, but they wouldn't listen.”
“What did they say?”
“That you didn't have enough experience.”
“And you believe that?”
“It wasn't my decision to make.” Seeley remembered the missing trial notebook. “Did you get a look at Pearsall's trial notes?”
Palmieri said, “Look, Mr. Seeley-”
“The people I work with call me Mike. What about the notebook?”
“He didn't keep one.”
“You're sure of that.”
“I worked for Bob from the day I started here. Eleven years. He never kept a trial notebook. Maybe it's something New York lawyers do.”
Seeley was growing tired of the barbs. “Did he talk to you about his theory of the case?”
“Sure. Except he didn't call it that. For him it was the ‘path to victory. ’ We worked it out together.”
“And what does it look like-Vaxtek's path to victory?”
“Nothing that would surprise you: Vaxtek's a small American company that has nothing going for it except the brilliance, creativity, and dedication of its handful of scientists and the protection of the American patent system. St. Gall is a multinational octopus that knows nothing about science, lacks any creative aptitude or spirit, and survives by poaching on the hard work of small companies like Vaxtek.”
“And what's Emil Thorpe's ‘path to victory’ going to be?” Thorpe, St. Gall's lead trial counsel, was a legend of the San Francisco trial bar and, for major cases like this one, was at or near the top of the list of preferred counsel for any company that could afford him. Seeley guessed that Vaxtek would have hired Thorpe if St. Gall didn't already have him on retainer.
“Bob and I never got the chance to talk about it.” Palmieri was at the conference-room door, looking down the corridor.
Seeley wondered if he was like this with everyone, or reserved his detachment for interlopers.
“You're running this case,” Palmieri said, “so you get to choose your second chair. If you want to work with someone else, that's fine with me. I'll do everything I can to support him.”
Seeley had reservations about Palmieri, but he knew that if he hesitated for a moment he would lose him. “You're the one I want sitting next to me at counsel's table.”
“Thanks”-Palmieri turned back into the room-“but you'll have to talk to the client about my being at counsel's table.”
“Why?”
“Ask Ed Barnum when you see him.”
As Vaxtek's general counsel, Barnum was the person Seeley was supposed to answer to.
“It doesn't matter what Barnum says. I want you there.”
“Just ask him.” Palmieri started out the door.
“Have you taken care of the pro hac papers?” Because Seeley wasn't a member of the California bar he would have to be admitted, just for this trial, pro hac vice.
“One of the paralegals is taking care of it.”
“Good. If I don't get admitted, you'll be sitting at counsel's table all by yourself.”
For the first time since he met him, Palmieri smiled.
Seeley checked his watch. Vaxtek was in South San Francisco, a half-hour drive from downtown. On his way out, he stopped at Tina's desk. She wasn't there, but had left a message slip for him with Judy Pearsall's address and phone number on it.
Lawyers occupy forty-story office towers to inscribe their presence on the skyline. Scientists stay closer to the ground. Vaxtek's building in South San Francisco was two floors of glass and polished stone, one of dozens of such facades along the commercial boulevard that exited from the freeway. Signs on some of the buildings indicated biotech companies, but others were more mundane-a restaurant-supply firm, a marble-and-granite works, outlet stores for several big retail fashion brands. A temp agency was next door to Vaxtek. For a long stretch of boulevard, the grass was overgrown and clogged with windblown debris, but the lawn in front of Vaxtek's building was neatly trimmed. Low hedgerows separated the parking lot from the street.
Seeley signed in at the security desk and let the receptionist clip a laminated visitor's pass to his lapel. The sparely furnished lobby could have been an airport waiting area with its empty walls and industrial gray carpeting. A slender potted tree guarded two chairs and the carpet gave off a chemical smell as if it had been recently installed. There was no movement in the broad corridor on the other side of the glass double doors leading into the building's interior. After a while, an attractive middle-aged woman in jeans and a turtleneck sweater came through the doors to take Seeley to Leonard's office.
Seeley had heard somewhere that cramped quarters were common in biotech, even for senior executives, and Leonard's office was no larger than Seeley's in the Ellicott Square Building. The desk was a slab of blond wood, part of a combination cabinet-bookshelf. The desktop was empty and the bookshelf nearly so. A beefy man in chinos and polo shirt had propped himself against the desk's outer edge, facing the open door. His bulk partially obscured Leonard, who was sitting behind the desk. There was a tension in the room, as if the two had been arguing.
“Ed Barnum,” Leonard said, introducing them. “Michael Seeley.”
Barnum studied Seeley unhurriedly through aviator glasses and said nothing while Seeley walked around the office. The photographs were mostly of Leonard on vacation, posed against a ski slope or beaming under a baseball cap on a fishing charter. A woman was with him in the photographs. The view out the wall-sized window was of a succession of mud-brown hills, relieved in their monotony only by a bright ribbon of cheap-looking houses.
Leonard started to speak, but Barnum said, “Ray Crosetto sends his regards. So does Sandy Eyring.” The two were well-known trial lawyers, Crosetto from Los Angeles and Eyring from Salt Lake City. Seeley had litigated against them in a couple of long trials before he left his New York firm. This was Barnum's way of letting Seeley know that he had asked around before agreeing to take him on as his new trial counsel.
“They said you're a good lawyer, but that you have an independent streak. I don't know if Leonard impressed on you how important this case is to our company.”
“All my cases are important.”
Barnum moved so that Seeley could no longer see Leonard's eyes. “I don't think you understand. St. Gall already has its product on the market. If we lose this patent the generics will flood the market with knockoffs inside of a year. We've sunk almost half a billion dollars into AV/AS. If you lose this case, we'll never see a dime of it.”
From behind Barnum, Leonard said, “We have other drugs in the pipeline, Mike, but AV/AS is why Wall Street loves us.”
Barnum's large pink face was just inches from Seeley's. “If you lose our case-”
“I'm not planning on losing your case,” Seeley said. “But you're the ones who came looking for me to run this trial. If you changed your mind, now's the time to tell me.”
Barnum paced the small room. He had a sluggish way of responding, and Seeley didn't know if the silence was deliberate or if he was just slow.
Leonard leaned back in his chair. “What Ed's saying is, we're betting the company on this case. If-”
Barnum said, “How does the case look to you?”
“Bob Pearsall did a good job putting it together.”
“That's why I hired him. I don't want any loose ends.”
When Seeley didn't respond, Leonard said, “There aren't any loose ends, are there?”
“There's Lily Warren.”
Annoyance crossed Barnum's face. “Who?”
Leonard said, “
The woman who thinks she invented AV/AS.”
“Oh,” Barnum said. “The crackpot.”
It was what Palmieri had said, but Seeley thought it was more likely that the description came from Barnum.
Leonard said, “Why should that be a loose end?”
Seeley said, “Even if she's not on St. Gall's witness list, she could be a problem.”
“There won't be a problem.” Barnum's impassive face moved in front of Seeley so that he again lost eye contact with his brother. “St. Gall already stipulated that Alan Steinhardt invented the vaccine first.”
The information stunned Seeley. When two companies flog their researchers around the clock to come up with a cure for the same disease, it is no accident when they arrive at virtually identical drugs, sometimes within days of each other. Often the margin of difference is so thin that, outside a courtroom, no one can say for sure which team produced the invention first. Alexander Graham Bell's competitor, Elisha Gray, got to the patent office on the same day as Bell, forcing Bell to prove that he invented the telephone first. And, like Bell, whoever reaches the finish line first not only gets the prize they were all competing for-a patent-but, with that patent, the power to stop anyone else, including the runner-up, from producing or selling the invention.
For St. Gall to concede priority was no less than for a country to cede half its territory to a despised foe, and without a shot being fired. There were still important issues to be litigated at trial, among them, whether the discovery of AV/AS was sufficiently novel to deserve a patent. But for St. Gall to stipulate that Vaxtek won the race even before the trial began was startling. It also bothered Seeley that, if he hadn't asked about Warren, Barnum might never have told him about the stipulation.
“Why did they concede priority?”
“Probably,” Barnum said, “because we were first.”
“If you were first, why are they already in the market, and you're just starting phase-three trials?”
“Resources,” Leonard said. “They got a late start, but their money and connections got them through the FDA in half the time we could.”
That still didn't explain St. Gall's stipulation of priority-particularly if they thought one of their employees made the discovery first. “What about Warren?”
A Patent Lie Page 3