by Rick Acker
Ben and Weaver walked up to the wooden ledge that stuck out from Judge Ryan’s bench in place of a podium. “All right, gentlemen, where do we stand?”
As plaintiff’s counsel, Ben was expected to take the lead in pushing the case forward, so this question was directed primarily to him. “Your Honor, we have completed document discovery and each side has responded to interrogatories and requests for admission. We have three depositions left, but those are all scheduled.”
“Anything to add, Mr. Weaver?” the judge asked.
“We want to re-depose the president of Circuit Dynamics, Mr. Schultz, in light of some extremely interesting revelations in the company’s tax returns, which were only provided to us a week and a half ago. We have filed a motion seeking to reopen his deposition.” He handed copies to Ben and the judge.
“This isn’t set for hearing today, Your Honor,” said Ben as Judge Ryan skimmed through the document. “We haven’t had the opportunity to respond to it.”
“And you oppose it, right?” asked the judge.
“Yes, Your Honor.”
The judge nodded slowly as he finished reading the motion. He looked at Weaver. “I know this isn’t before me today, Counsel, but I’ve got serious concerns about it. Why are questions about these tax returns relevant to anything in this case?”
“Well, as Your Honor correctly noted the last time we were before you, these tax returns are directly relevant to the issues in the case.”
“I said that?” Judge Ryan asked incredulously.
“Actually, Your Honor, all you said was that they were entitled to look at them,” Ben interjected. “You never said that they were relevant, and you certainly never said that Mr. Weaver could use them as a crowbar to reopen other areas of discovery.”
“That’s what I remember too,” said the judge. “I’m going to deny your motion.”
“But it’s not actually before you, Your Honor,” Weaver began, now in full retreat.
“Then why did you bring it up and give me a copy? Look, if you want to come back here next week just to hear me deny it again, maybe that’s your right. But it seems like a waste of time to me.”
“We’d like to at least keep the hearing date for now, Your Honor.”
The judge rolled his eyes. “All right. Now tell me what’s going on in settlement negotiations—I know you must be having them.”
“We made an offer,” Ben reported, “but they haven’t responded.”
“Why not?” the judge asked Weaver.
“They want $25 million, Your Honor,” Weaver said with a faint tone of disbelief. “That’s not even in the ballpark, as far as we’re concerned. If Mr. Corbin’s client would knock a couple of zeroes off that number, maybe we could start talking.”
Judge Ryan raised his eyebrows. “Counsel, I can’t tell you and your client what to do, but I’ve looked at this case, and I strongly advise you to reconsider your position. As an incentive, I’m going to set this case for trial in sixty days.”
“But Judge, we need time for motions—for a summary judgment motion at least,” Weaver spluttered.
“Sixty days is fine with us, Your Honor,” Ben put in.
“I’d be surprised if you can come up with a meritorious summary judgment motion,” the judge said to Weaver. “If you can, file it in the next three weeks. If it merits full briefing, I’ll move the trial date at that time. If it doesn’t, I can take care of it pretty quickly, and there’s no reason we can’t have a trial in two months. Talk to my clerk to get a date for trial. Okay, next case.”
Five minutes later, Ben and Weaver were standing in the hallway waiting for the elevator. Ben turned to his opponent and said, “The gun’s pointed back at you now, John.”
Weaver gave a thin smile but said nothing.
Ben went straight from court to a deposition in another case, and he didn’t get back to his office until close to five o’clock. He called Fred Schultz at Circuit Dynamics to tell him about the upcoming hearing and warn him that he and their other witnesses would need to clear their calendars for the trial. Then Ben called another client, Eagle Insurance, to report on the deposition he had just attended.
It wasn’t until nearly six that Ben finally started going through the pile of messages and mail sitting in his in-box. The motion from Anthony Simeon was the third item from the bottom. Ben never got to the last two documents.
He stopped cold when he read the title of the filing Simeon had sent. It was not a motion for a continuance, as Ben had thought. It was a motion for summary judgment. Ben was stunned. Opposing counsel was asking the court to cut off all further proceedings—including the trial—and immediately enter a final judgment against Dr. Ivanovsky.
A litigant could only bring a summary judgment motion if, based on the undisputed facts, the other side could not win. Ben didn’t see how Simeon could make such a motion, particularly after Nikolai Zinoviev’s death. In fact, Ben had been toying with the idea of moving for summary judgment himself.
Ben read through the motion twice, once quickly and once with a fine-toothed comb. Simeon’s argument was based on the Dead Man’s Rule, an archaic and seldom-used rule of evidence that had made its way into the Illinois statute books. Basically, the rule said that when a lawsuit was founded on an oral contract and one of the parties to the contract died, no one with an interest in the contract could testify against the dead person’s position. Thus, because Zinoviev was dead, Dr. Ivanovsky was barred from testifying against him. And because the only real evidence of a contract came out of Dr. Ivanovsky’s mouth, Ben’s case would collapse—and Simeon would be entitled to summary judgment—if the rule applied.
Ben called Noelle and told her he’d be late—just how late, he didn’t know yet. Then he spent the next three and a half hours researching the Dead Man’s Rule, looking for some exception or loophole that would let him and his client escape. At ten o’clock, he concluded that there probably was none, though the case law in Illinois interpreting the rule was voluminous and murky.
He sat despondently in the office’s small law library, wondering what to do. He would appear in court tomorrow morning and make the best of a bad argument, but he would almost certainly lose. Anthony Simeon was a smart lawyer and Alfred Harris was a smart judge, so Ben had little chance of winning based on rhetoric alone. If he’d had more time, he might possibly have been able to find something by digging through the mountain of Illinois court opinions. Or maybe there were good cases interpreting other states’ versions of the Dead Man’s Rule. But he didn’t have more time. The hearing was only eleven hours away, and he was dead tired.
Ben yawned and kicked himself for not having paid attention to the motion earlier in the day. He could have had Susan messenger it to him at court or at his deposition, but he hadn’t. He could have asked her to read the title to him again when he could hear better, but he hadn’t done that either.
Oh well. There wasn’t much he could do about it now, except stay up all night and run up an exorbitant computer-research bill sifting through cases from across the country. He could do it, but a case of this size really didn’t justify that kind of out-of-pocket expense. A decent night’s sleep might actually be more beneficial, anyway.
Ben stood and stretched. Should he call Dr. Ivanovsky before leaving? It was ten thirty, but Ben decided that he couldn’t let it wait until the morning. There was a good chance that the man’s case would end tomorrow, and he had a right to know that.
To Ben’s relief, he got the answering machine. “Dr. Ivanovsky, it’s Ben Corbin. I’m afraid I’ve got some bad news for you. Nicki Zinoviev’s death may have had some negative consequences for your case. There’s an obscure technical rule called the Dead Man’s Rule that Tony Simeon is trying to use to throw us out of court. He filed a motion for summary judgment today based on that rule, and it’s set for hearing at nine thirty tomorrow morning. I’ll l
et you know what happens, but I have to be honest with you—it does not look positive. I’ll be in the office by eight thirty a.m. Call me if you have any questions.” Ben hung up, yawned again, and went home.
Ben and Noelle drove in together the next morning. They hadn’t been riding together recently because Ben’s workload had forced him to go in early and come home late most days. In fact, they hadn’t been spending much time together, period—except for time spent discussing discovery requests or document productions, which hardly counted. They were both looking forward to half an hour or so of chatting over coffee during their morning commute.
Then Ben made the mistake of checking his voice mail as they pulled out of the driveway. Eleven messages waited for him—and there probably would have been more if his mailbox hadn’t filled up. All were from Dr. Ivanovsky. The first one had come at 6:43 in the morning, when he had presumably gotten Ben’s message from the night before. The last one had arrived at 7:32. They were all agitated variations on the same general theme: “I am much dismayed and confused by this news. You said we would win, but now you say maybe we lose! Why this change? It is very, very important to win! Call me quickly!” Around 7:00, he started adding things like, “Why do you not call? I will come to your office and speak to you. You must win today!” Ben was very glad he had never given this client his home or cell numbers.
Listening to the messages took half the trip to the office, and the other half was ruined by the prospect of dealing with an upset and demanding client the moment they walked in the door. By the time he and Noelle arrived at the office, they both thoroughly resented Dr. Ivanovsky.
Once again, they found him in the hallway, wearing clothing that looked like rummage-sale rejects. He paced back and forth, muttering to himself and resembling a deranged vagrant.
“Hello,” Ben said as they approached, a polite smile firmly planted on his face. “I just got your messages. You can come in if you like, but I really should spend the next hour preparing for the hearing.”
To Ben’s surprise, Dr. Ivanovsky did not protest. “Okay. I will wait. We will speak on the way to this hearing. May I have a copy of Mr. Simeon’s motion to read?”
“All right. I’ll set you up in the conference room. You won’t be needing it this morning, will you, Noelle?”
“No, no, that’s fine,” she said quickly. Ben guessed that she also didn’t want Dr. Ivanovsky sitting and talking to himself in the lobby, on display for any visitors who might come during the next hour.
Dr. Ivanovsky didn’t disturb Ben, but it wasn’t easy for the old scientist. He didn’t completely understand the motion—though he understood enough to be very anxious. Losing the case was unthinkable, but now he was forced to think about it. Ben had said in his voice mail (which Dr. Ivanovsky had listened to five times and had largely memorized) that the situation did “not look positive.” How bad was it? And what exactly would happen if they lost—would the Brothers get immediate access to the box? Dr. Ivanovsky desperately wanted to go into Ben’s office and get answers to these and dozens of other questions, but he knew that would be counterproductive and he restrained himself with an iron will.
Finally, he got up and walked around the conference room. He stared at the paintings without seeing them. He fidgeted with the office supplies that sat neatly organized on the credenza at the back of the room. His lack of knowledge and control of the situation weighed heavily on his mind.
At all critical points in his adult life, Mikhail Ivanovsky had been in control. He had made a point of it. When he’d caught pneumonia and had to be hospitalized, he’d argued with the doctor about his treatment even though he could barely breathe. When his condition worsened, he took over his own treatment—feverish and weak as he was—and managed to cure himself. And when some bureaucrats in the collapsing Soviet Union had tried to keep him and his wife from emigrating to America, he had stormed past a host of protesting functionaries and into the office of the passport-control officer and refused to leave until the man reversed his decision.
Ivanovsky had even guided the lives of those around him at crucial times. When his wife was diagnosed with cancer, for instance, he had researched the type of tumor and its treatment in depth, had handpicked her doctor after several rounds of interviews, and had even stood watching in the operating room during her surgery.
He had decided long ago that even people of goodwill cannot be entirely trusted, and that not all those who seemed to have goodwill actually did. Even the best of them had small weaknesses, corruptions, and lapses in judgment that made them unreliable. Ben Corbin, for instance, seemed to be a good lawyer and a good man, but he had obviously completely missed the legal significance of Nicki Zinoviev’s death. What else had he missed?
Dr. Ivanovsky wondered whether he had made a mistake in not handling the case himself. Then he thought of the Byzantine procedural intricacies that Ben negotiated so effortlessly. No, he decided, he could no more represent himself than he could have removed his wife’s tumor. But he could be more involved. Ben’s performance at the TRO hearing had given him a false sense that everything was under control. Now he knew that it wasn’t—and that he’d have to keep a shorter leash on his lawyer.
Ben stuck his head in the conference-room doorway. “Let’s go.”
Dr. Ivanovsky, who had never taken off his overcoat, quickly grabbed his papers and met Ben in the lobby.
“What’s that?” Ben asked, looking at the pad of paper Dr. Ivanovsky held in his hand. It was completely covered by numbered paragraphs of scribbled Russian.
“I have some things to ask you while we walk.”
There were a lot of questions. “We’re only going a little over a block.”
“Okay. I will start now and ask quickly. What is the chance to win? And why?”
The elevator came and they got in. “Less than fifty percent. Why? Because the law in Illinois more or less supports Simeon’s position and he’s a good lawyer.”
“Okay. I read Mr. Simeon’s motion, but I still do not understand. Why should this Dead Man’s Rule apply to my case when I am not dead?”
“Because the idea behind the rule is that dead men should be protected,” explained Ben.
“Yes, but they are dead. How to protect them?”
They stepped out of the building and into the teeth of a cold November wind. Ben pulled up his collar against the blast. “Maybe it’s more accurate to say that their heirs need protecting. Dead men make bad witnesses in court, so it would be easy for someone to come in and say, ‘I had a contract with Mr. Dead Man to buy his Ferrari for $5,000, but he died before we could write it down.’ Mr. Dead Man can’t testify, so it will be hard for his heirs to prove there was no contract. The people who made up the Dead Man’s Rule hundreds of years ago didn’t think that was fair, so they made a rule that prohibits people from testifying about oral agreements they claim they had with dead people.”
“But this rule is not fair either!” Ivanovsky objected.
“I know. The law is full of rules that are supposed to make it fairer but do the opposite.”
Dr. Ivanovsky said something, but Ben couldn’t hear him over the whistle of the wind. “What was that?”
“Why did not you tell me of this rule before last night?” he repeated, watching Ben closely from under his knit hat, which he wore pulled down to his unruly eyebrows.
Ben stared ahead as they walked and didn’t answer right away. “Because I didn’t think of it,” he said candidly. “It doesn’t come up often, and I’ve never run into it before. It’s a pretty obscure rule.” He paused. “I’m sorry. I shouldn’t have gotten your hopes up without doing more research.”
Dr. Ivanovsky nodded. “I forgive you. All persons make mistakes.” They were crossing Daley Plaza now, and Dr. Ivanovsky hurriedly scanned through his questions. “What happens if we lose this motion?”
“We’re done,” Ben replied
as they walked into the building and got in line to go through a metal detector. “The case is over for all practical purposes. We could try appealing, but it would be virtually impossible to keep that safe-deposit box frozen in the meantime. And from what you’ve said in the past, I assume you wouldn’t want to bother with an appeal under those circumstances.”
Dr. Ivanovsky grabbed Ben’s arm with surprising strength and looked at him with burning eyes. “You must not lose!”
“Your Honor, all Mr. Simeon is doing here is making a premature motion to bar,” Ben argued. “At most, the Dead Man’s Rule might allow him to prevent Dr. Ivanovsky from testifying at trial. It does not entitle him to summary judgment in the middle of discovery.”
“But you’re not in the middle of discovery, are you?” interjected Judge Harris. “As I understand it, both sides have completed their document productions, have responded to interrogatories, and have deposed all the witnesses they want.”
Simeon nodded and Ben shook his head. “Your Honor, there are deposition subpoenas outstanding for four witnesses—the members of the Brothers LLC, the entity that attempted to purchase the contents of the box from Mr. Zinoviev after he had entered into a contract with my client. Those subpoenas also call for the production of additional documents.”
“We will be moving to quash those subpoenas, Your Honor,” replied Simeon. “Mr. Corbin just handed them to me in court this morning, so I haven’t had a chance to analyze them in depth, but I don’t need to, and neither does the Court. All of these witnesses have already been deposed and produced documents. They didn’t know anything about Dr. Ivanovsky’s purported contract then, and they don’t know anything now. These subpoenas are nothing but a stalling tactic to avoid summary judgment.”
That was at least partially true, Ben had to admit. He decided to try a different tack. “We just got this motion yesterday, and trial is less than two weeks away. We haven’t had time to respond. Mr. Simeon can make his motion to bar at the proper time and on proper notice, and the Court can rule on this issue if it comes up at trial. In the meantime, we’re entitled to finish our discovery and put on our case.”