Dead Man's Rule

by Rick Acker

  He couldn’t stop thinking about the hearing on the motion to reconsider tomorrow morning. This morning, he corrected himself. The hearing was only about seven hours away, and he had no idea how he could win. He had considered and rejected every possible argument, and he was left with very little that even passed the straight-face test. He had more or less decided what he was going to say, but it wasn’t very persuasive and he knew it. His mind kept trolling through the facts and law of the case, looking for a winning angle that he might have missed somehow. Sleep would do more good than mental fidgeting, but he could not make himself sleep.

  A heavy weight of guilt kept pressing down on his mind. If he had pushed Dr. Ivanovsky when they were assembling their document production, the old man might have coughed up the now-forbidden Zinoviev letter. Instead, he had delegated the job to Noelle, who had no legal experience, while he worked on what he thought were more important projects. If he had spent more time getting ready for the summary-judgment hearing, maybe the judge wouldn’t have ruled against him. He’d put in the time now, of course, but getting Judge Harris—or any judge—to reverse himself was always an uphill battle, no matter how good an argument the lawyer presented. He shifted uncomfortably and rolled over. The bottom line was that if he had been faithful in the small things, he might not be facing this overwhelming crisis.

  He tried not to think about losing, but he feared it. Or rather, he feared the consequences of losing this case. Three times over the past week, he had woken in a heart-pounding sweat from nightmares that his eyes were bleeding—or worse, that Noelle’s eyes were. Lying there in the hopeless hours between midnight and dawn, Ben knew in the pit of his stomach that his nightmares could easily become real. Thousands, maybe millions, of men, women, and children could die horrible deaths because Ben had let himself be distracted from this irritating little case. And now there was nothing he could do to stop it.

  He tried to persuade himself that Dr. Ivanovsky was wrong, that the safe-deposit box held nothing more dangerous than smuggled diamonds or drug money. But every time he had almost convinced himself, he remembered his client’s anguished face and shaking voice as he described the dead scientists at that lab. Then the horror gripped Ben anew and he was wide awake again.

  He prayed. He often prayed for victory, much as an athlete prays before a game, but this was different. Never had he felt so utterly helpless, and never had the stakes of a hearing been so high. He was powerless to undo the damage his neglect had allowed, and he knew it. Only God could do that, but Ben had difficulty believing that he would. It wasn’t that Ben lacked intellectual faith, but that he lacked visceral trust. It’s one thing to believe in miracles; it is quite another to rely on one actually happening.

  Ben had never thought of his law practice as much more than an enjoyable way to make money. In one sense, he always wanted his cases to have some meaning too—otherwise winning wasn’t very gratifying. But real meaning, he decided—the kind of meaning that kept him in agonized prayer long after midnight—he could do without. He wanted to change people’s lives, but not hold their lives in his hands. He knew, of course, that they were also in God’s hands, just as he was. But that truth seemed awfully theoretical right now, and the hearing a few hours away seemed awfully real.

  The phone rang, startling him out of his black reverie. He looked at the clock: 2:06 a.m. The knot in his stomach tightened as the phone rang again. Nobody ever calls at two o’clock in the morning with good news. “Wha—who is it?” Noelle said sleepily.

  “The caller ID says ‘Unknown Caller,’” Ben replied, “but it can’t be a telemarketer at this hour.” He reached over and picked up the receiver as the phone rang a third time. “Hello?”

  “I have what you need,” said a digitally altered voice. It was so distorted that Ben couldn’t even tell if it was a man or a woman. “I can prove that there was a contract between Mikhail Ivanovsky and Nikolai Zinoviev.”

  CHAPTER EIGHT

  THE HUNTED MEN

  “Ivanovsky versus Estate of Zinoviev,” the court clerk announced.

  Showtime. Ben got up from his seat next to Dr. Ivanovsky and walked to the front of the courtroom. After last night’s sleepless vigil, punctuated by the early-morning phone call, he was operating solely on the combination of adrenaline and caffeine that the litigators at Beale & Ripley had always called jet fuel. The reason for the name was that some high-fliers could thrive on that mixture for months straight, while others burned out and crashed. Ben knew which category he fell into—he was focused and full of energy now, but he would be essentially worthless by early afternoon.

  “Good morning, Your Honor,” Ben said as he approached Judge Harris’s bench. “Benjamin Corbin on behalf of Dr. Mikhail Ivanovsky.”

  “Good morning. Anthony Simeon on behalf of the estate of Nikolai Zinoviev,” Ben’s opponent said as he approached from the other side of the courtroom.

  “Good morning, Counsel,” Judge Harris greeted them from his high seat behind the bench. “Mr. Corbin, what do you have to say in support of your motion for reconsideration?”

  “As pointed out in our motion—”

  “Which I’ve already read,” the judge warned.

  “Yes, Your Honor. As the Court knows, one of our central arguments is that summary judgment is inappropriate because there may be additional evidence that could prove the existence of a contract between Dr. Ivanovsky and Mr. Zinoviev without the necessity of my client’s testimony.

  “That argument was proven true at 2:06 this morning. As is set forth in my affidavit, which was hand delivered to your chambers as soon as court opened today, there is a witness out there who claims to be able to prove that this contract exists. We deserve the opportunity to find that person and establish that he or she is telling the truth. But we can do that only if the judgment in favor of Mr. Zinoviev’s estate is vacated. All we’re asking for is what the law clearly gives us: the right to finish discovery and present our evidence. Thank you, Your Honor.”

  “You’re welcome,” said the judge. “Mr. Simeon?”

  “Your Honor, this affidavit is the very definition of hearsay: an out-of-court statement introduced to prove the truth of the matter it asserts. We cannot cross-examine this person who called Mr. Corbin or otherwise test his reliability. We don’t even know who he is. Your Honor told Mr. Corbin to file a motion to reconsider if he uncovered new admissible evidence. He has not. All he has is his own affidavit saying, in essence, that he hopes to find admissible evidence in the future. That is not enough.

  “Worse, this is hearsay tied to a sandbag. This is the second time this week that the plaintiff has tried to blindside us with undisclosed evidence. The Court rejected my opponent’s last attempt to circumvent the discovery rules and should do so again. Thank you, Your Honor.”

  “You’re also welcome.” The judge turned back to Ben. “Okay, Mr. Corbin, I’m going to give you the last word.”

  Ben straightened his papers and collected his thoughts. “Mr. Simeon said that this affidavit establishes nothing but the hope of finding admissible evidence. That is precisely the purpose of discovery, Your Honor. It allows litigants to pursue the hope of finding admissible evidence to support their cases. If that hope remains unfulfilled when all avenues of discovery have been exhausted, then—and only then—is summary judgment appropriate.

  “This affidavit does not prove that a contract existed between my client and Mr. Zinoviev, but it does prove that evidence exists that can establish that fact. We are entitled to investigate that evidence.

  “As to Mr. Simeon’s allegation that we sandbagged him, I—”

  “That doesn’t bother me,” interrupted Judge Harris. “I came down on you last time because it looked like you or your client was withholding evidence and playing hide-the-ball. I don’t get the sense that that’s happening here. What troubles me about this affidavit is how you’re going to get this informan
t’s testimony. I don’t have any idea how you’re going to do that. Do you?”

  “Well, Your Honor—”

  “And if you don’t, why should I keep this case going?”

  “We have already retained a top-notch detective to look into this, Your Honor. I was on the phone with him this morning before the hearing. He’s a former FBI agent with outstanding credentials and strong connections to the local Russian community. I have every confidence in him. If anyone can hunt down this informant, he can. Again, Your Honor, all we’re asking for is the opportunity to try.”

  “They’ve already had that opportunity,” Anthony Simeon countered. “This sounds like a wild-goose chase to me.”

  The judge sat in thoughtful silence for several seconds. “I’m reluctant to enter judgment against a party when it looks like evidence may exist that could prove his case. Maybe it is a wild-goose chase, but the law allows him to chase that goose. I’m going to vacate the judgment entered in favor of the defendant.”

  Relief flooded through Ben and he heard stifled sounds behind him where Dr. Ivanovsky was sitting. With an effort, he focused his attention back on what the judge was saying.

  “. . . previously set trial date still stands. There will be no continuances. We’ll all be back here in five days and, Mr. Corbin, you’ll need more than an affidavit to avoid judgment then. You’re free to chase your goose, but you’d better catch him by nine o’clock Monday morning.”

  “Do you know who this informant is?” The voice on the phone was smooth and professional, with only a slight Chechen accent.

  “I’m sorry, ‘Leonid.’ We don’t,” Dmitry Kolesnikov replied, his palms growing slick with nervous sweat as he spoke.

  Dmitry hated dealing with Chechens. They were exceptionally brutal, even by mafiya standards. For instance, he knew of a gang of Chechen drug runners who had been having difficulty getting paid by some of their buyers. As a remedy, they had caught one of their delinquent customers and vivisected him. Not only that, they had videotaped the whole thing and distributed copies to their other slow-paying accounts with a note saying, “Pay or you are next.” A Russian gangster might kill another man in a situation like that, but it would be a clean shot to the head, not a sick exhibition. But with the Chechens, vicious behavior was the rule, not the exception—Dmitry knew a dozen similar stories, some worse.

  He and the other Brothers never would have dealt with such barbarians if there hadn’t been so much money at stake. “Leonid” and his associates—none of whom the Brothers had ever seen—were willing to pay five million dollars up front and another ten on delivery, over twice as much as the next-highest bidder. Money like that was worth taking a risk or two.

  “Do you have any suspects?” Leonid asked.

  “Unfortunately, we don’t, but if we think of any, we’ll tell you right away.”

  “I can think of four,” Leonid said evenly.

  Fear clutched Dmitry’s heart. “It’s not one of us! I swear it!”

  “Then find out who it is.”

  “But how do you know there even is an informant? You know how these American lawyers are—they always lie.”

  “The lawyer is not lying. How we know this is not your concern. Finding the informant is.” The line went dead.

  Dmitry paused for a moment, then slowly placed the receiver back in its cradle. “Anton!” he called.

  A few seconds later, his colleague appeared in the door. He was a big man with the large, scarred hands of a boxer. “What is it, Dima?” He looked at Dmitry’s face. “A call from Leonid?”

  Dmitry nodded. “He wants us to find whoever called Ivanovsky’s lawyer last night.”

  “Why should we?” Anton growled. “That wasn’t part of the deal. We’ve done a lot more than we agreed to already. I’m getting tired of those baklany.”

  “They think it might be one of us.”

  “So?” Anton spat angrily. Then the implication hit him. “Oh.”

  “Exactly,” said Dmitry. “It wouldn’t be quick either. Those filthy animals would want to get us to talk first.” He shivered. “That cold-blooded snake Leonid never even raises his voice. Those types are always the worst.”

  “I’d get him first,” Anton said. “I’d give him a bullet right here”—he pointed to his pockmarked forehead—“and that’s if he’s lucky.”

  Dmitry nodded absently, his brain whirring. “Do we have a traitor among us? Remember how the police were sniffing around a few months ago and then backed off?”

  “Because we made sure they didn’t find anything.”

  “That’s what we all thought. But what if they did find something? What if, instead of arresting someone, they decided to threaten to arrest someone unless that someone turned informant? And what if that someone said yes and that’s why the police aren’t bothering us—for now?”

  Anton stared for a second with his mouth open. “I am not an informant!”

  Dmitry chuckled. “If I thought you were, would we be having this conversation? No, I don’t suspect you. But someone is talking to that lawyer.”

  Anton looked confused. “Why the lawyer? Wouldn’t they be talking to the cops?”

  “Of course,” Dmitry said patiently, “but there’s no reason they can’t talk to both the cops and the lawyer. If they’re going to be double-crossing us, why not make some money in the process—particularly since the police will be shutting down our little business? They tell the police what we’re doing to stay out of jail, and they sell the same information to the lawyer. In fact, they probably tell the lawyer first, because once the police know, everyone gets arrested, the story hits the papers, and there’s nothing to sell.”

  Anton nodded slowly as he thought it through. “But who would do this?”

  Dmitry shrugged. “Someone who knows about Nicki’s foolish deal with the scientist. Someone who can be pressured. How many people fit that profile?”

  “Pasha. Josef.” Anton was silent for a moment, his brow furrowed in concentration. “I can’t think of anybody else.”

  “Neither can I,” said Dmitry. “Let’s keep a very close eye on those two. And if we catch one of them, he has an ‘accident,’ just like Nicki.”

  Anton looked troubled, so Dmitry added, “I don’t like it, but we don’t have much choice. And if the lawyer or his detective get too close to finding the informant . . . ?”

  Anton grinned like a hockey player, reminding Dmitry of just what a tough, ruthless fighter his colleague had become in the Soviet prison system. “They have ‘accidents’ too.”

  Dmitry smiled. “Exactly.”

  Where to start? Sergei settled in at his desk and reached for a notepad. The thing to do, of course, would be to assign a detective to each potential informant and investigate that person thoroughly. Sergei didn’t have those kinds of resources, so he decided to do the next-best thing: pick the most likely suspect and watch him.

  And who was the most likely suspect? Probably one of the Brothers, or someone close to them. To Sergei’s knowledge, they were the only ones who could know about both the contract and Ben’s need for their help.

  Sergei had already reviewed all their phone records to see if any of them had called Ben. He also checked Dr. Ivanovsky’s records. It wasn’t impossible that the monomaniacal scientist was trying to generate evidence to keep his case alive. None of them, however, had called Ben from home or on their mobile phones, and two of the Brothers—Dmitry Kolesnikov and Pavel Voronin—had been on the phone with each other at the time the informant had called Ben.

  Two down, three to go.

  There was only one man in Chicago who sold digital voice-altering equipment, and Sergei knew him. He picked up the phone (which he regularly swept for bugs) and dialed.

  “George, it’s Sergei Spassky. I’ve got a couple of questions for you about some equipment you sold.”

 
“Fire away.” George Spender was a former FBI electronics expert who had discovered about five years ago that his skills were a lot more valuable to private buyers than to the government.

  “Have you sold voice-altering equipment to a man in his seventies with bushy gray hair and a thick Russian accent? He’s about five foot eight, thin, and he doesn’t dress too well.”

  “Doesn’t sound familiar. I’ve sold to Russians, but no one fitting that description.”

  Sergei crossed Dr. Ivanovsky off his list. “How about a big Russian guy, about forty, with lots of tattoos and some missing teeth?”

  “Nope.”

  “Okay.” Sergei drew a line through Anton’s name. “Last one: a Russian in his early fifties with a light accent, bald, glasses, and around five ten.”

  Spender had to think about that one for a few seconds. “Maybe . . . maybe. I’ve sold to a couple of Russians this month, and one of them might have looked like that. I just don’t remember.”

  Sergei circled Josef Fedorov’s name. He now had his prime suspect. “Thanks, George.”

  After he hung up the phone, Sergei sat in silence for several minutes, considering his next move. After rejecting more aggressive alternatives, he decided on a conservative and straightforward strategy: he would simply put Josef Fedorov under surveillance and wait to see what he was doing the next time the informant called Ben. Sergei was about to call Ben when the phone rang. He picked it up. “Sergei Spassky.”

  “Sergei, it’s Ben Corbin. Good news. I just got a package from our informant. He sent me the minutes from a meeting of the Brothers where they talked about buying the box contents from Nikolai Zinoviev. Nicki was actually there for part of the meeting—and he told them he already had a deal with Dr. Ivanovsky. Plus, all four Brothers signed the minutes.”

  “Great!” Sergei replied. “I was just about to call you with an update on my search for the informant, but I guess there’s no point in that now.”