by Rick Acker
“Were those two guys ever prosecuted?”
“Not for that. One of them is doing a fifty-year sentence for attempted murder and a bunch of extortion counts. The other one died a couple years ago.”
He felt exposed, and her wide brown eyes unsettled him, so he changed the subject. He stooped and pulled a white satin shirt out of one of the boxes. “Well, this is evidence of something, but I don’t think I want to know what.”
Elena laughed. “I’m sure it would look good on you.”
“Was that a compliment?” he asked, looking at the shirt. “Or were you trying to make me picture myself as a Saturday Night Fever extra?”
She laughed again. “I’ll let you decide.”
It was nearly six, but Judge Harris had kept them late in order to finish one more witness. That worried Ben. Judges typically did that only when they were convinced the testimony would take just a few minutes. Since the witness in question was Dr. Ivanovsky, and Ben had a lot more than a few minutes’ of questions for his client, he took the judge’s scheduling decision as a bad omen. “Dr. Ivanovsky, when was the first time you met Nikolai Zinoviev?” asked Ben.
“I met him on September fifteen of this year. A man I know from Saint Vladimir’s church said to me that maybe Mr. Zinoviev owned something that I wished to buy, so I called Mr. Zinoviev and he said to meet him. So I met him.”
“And what did you discuss at that meeting?”
“Objection, Dead Man’s Rule,” said Simeon.
“Your Honor, that rule is intended to protect the interests of deceased parties by preventing testimony about oral contracts with them,” said Ben. “It is not intended to bar all testimony in which a witness happens to mention a dead man. I recognize that the Court has barred Dr. Ivanovsky from testifying about his contract with Mr. Zinoviev, and I don’t intend to ask him about that. But the witness is entitled to talk about his other contacts with Mr. Zinoviev.”
“Your Honor—” Simeon began, but Judge Harris held up his hand.
“Regardless of what the Dead Man’s Rule may or may not be intended to do, Mr. Corbin,” the judge said as he opened a well-thumbed copy of Illinois’s civil procedure statutes and rules, “I am bound by what it actually does. Section 8-201 of the Code of Civil Procedure says in relevant part, ‘In the trial of any action in which any party sues or defends as the representative of a deceased person, no adverse party shall be allowed to testify on his own behalf to any conversation with the deceased.’” He closed the book and put it down. “That doesn’t leave me much choice. I’m bound by my oath of office and the laws of Illinois to enforce the Dead Man’s Rule as it’s written, whether I like it or not. And that means I’m going to have to bar this witness from testifying to any conversations he had with Mr. Zinoviev.” He paused and looked at Ben compassionately, knowing full well that he had just torn the heart out of Ben’s case. “I’m sorry.”
After they had been in the apartment for about half an hour, Sergei called Ben to give him an update. “There are lots of documents from the Brothers. Import/export licenses—including some forgeries that Elena is excited about—corporate resolutions, contracts, minutes of meetings, stuff like that. Also, it looks like these guys received five million dollars recently from an offshore bank account, and there’s nothing to explain why.”
“Five million bucks?” Ben whistled through his teeth. “That’s a chunk of change.”
“No smoking guns, though,” Sergei continued. “No letter saying that Dr. Ivanovsky had a contract with Nikolai Zinoviev or anything like that. Is there anything in particular that you’d like us to look for?”
“Yes, but it would take too long to explain it over the phone. I’ve got an after-dinner meeting with another client that I’m already late for. Do you have time to bring the documents over to my office first thing tomorrow morning? I’d like to go through them with you before I head over to court.”
“No problem. How early would you like me there?”
“How about seven?”
“Sure. I’ll see you then.”
Sergei turned to Elena. “I’m going to meet with Ben tomorrow morning to go through this stuff. Want me to just bring it to the Bureau when we’re done?”
“That’d be terrific.”
“I’ll go tell the landlord that we’re leaving—unless you’d like to.”
“That’s okay. I’ll let you do it.”
“Really? I think he’d like to say good-bye to you.”
“But if I see him again, I won’t be able to say good-bye,” she said with mock passion.
Sergei chuckled. “I’ll try to let him down easy.”
“Thanks. I’ll meet you out front.”
Five minutes later, Sergei met Elena on the sidewalk in front of the apartment building. The night had turned cold, and a chill, wet wind was blowing in off the lake. “Hey, they’ve got great peppermint cocoa over at Peet’s,” said Elena. “Could I talk you into some?”
“You just did,” he replied.
Sergei tore himself out of bed at six o’clock the next morning. He was still exhausted from staying up until one thirty to print and read the documents he had photographed. Some of them looked more interesting than he had first thought—including some corporate minutes that discussed a contract between Zinoviev and the Brothers. He had meant to get up at five thirty, but he’d slept through his alarm. Now he would have to rush to be at Ben’s office by seven. He took a quick shower, dressed, and grabbed a banana as he ran out of his apartment.
A high-pitched alarm went off just as he opened the door. He grimaced, then turned on his heel and ran to the control panel for his new burglar alarm. He had already set it off three times since it was installed last week. He keyed in the pass code and the alarm stopped, but it was too late. Now he would have to wait for the security company to call. He looked impatiently at his watch as long seconds passed, each one making it less likely that he would arrive downtown by seven o’clock.
The security company finally called and Sergei ran out the door a second time, now with only fifteen minutes to make the twenty-five-minute trip. He tossed the stack of printouts into the backseat and jumped into the driver’s seat. He stuck his key in the ignition and turned. Nothing happened. Heart sinking, he tried again. Still nothing.
He popped the hood and got out, hoping that it was a loose wire rather than a dead battery. He walked around to the front of the car, opened the hood, and looked down at the engine. He had just enough time to notice that the wires on the battery had been disconnected—but not enough time to wonder why—before something heavy struck him from behind and he passed out.
“Hi, Elena, it’s Ben Corbin. Have you seen Sergei this morning?”
“No. I haven’t seen him since he dropped me off at the FBI parking garage last night. Why?”
“He was supposed to meet me here at seven o’clock this morning with some documents. It’s seven thirty and he hasn’t shown up or called. I tried his office and his cell phone, but he’s not answering. That’s not like him.”
“No, it’s not,” said Elena, concern in her voice. “I’ll look into it and let you know what I find. Call me if you hear from him, okay?”
“I will. Thanks.”
Ben hung up the phone and wondered what to do next. Elena would no doubt do a better job of looking for Sergei than Ben could, but there wasn’t much she could do to help him with his case. Ever since Sergei had called last night, Ben had entertained the hope that even if Josef Fedorov couldn’t testify, his papers could. Those documents were Ben’s last chance of finding some type of admissible evidence of the contract, and it looked like that chance was slipping away.
Ben nervously paced the short hallway of his office. He rarely felt helpless or frustrated in his law practice, but now he felt both. Again. This case held more unpleasant surprises than any other case he had ever worked on. If Serge
i had been working for Ben on Circuit Dynamics and had not shown up for a meeting, for instance, Ben would have simply assumed that his detective had car trouble and had forgotten to call. But Ben didn’t assume that in this case. His gut told him that Sergei was in serious trouble. Not that there’s anything I can do about it, of course, he thought, his jaws clenched in impotent anger.
That wasn’t quite true, he realized a second later—there was one thing he could do: pray. So he prayed silently but fervently for Sergei as he walked back to his office and sat down at his desk.
Noelle came in a few minutes later and found her husband staring out the window. “Still no word from Sergei?” she asked.
“No, and I’ve got a bad feeling about it. I called Elena, and she said she’d try to find him.”
She sat down in one of his guest chairs. “Do you think that assassin might have come back for him?”
“That guy’s probably still in the hospital, but he might have friends. And the Brothers might have done to him whatever they did to Josef.”
“Especially if they can make those documents disappear at the same time.”
“I know.” He put his head in his hands and sighed. “I need those documents, and I need them before the trial ends. And I’m worried about Sergei. Every time I start feeling good about this case, someone dies or there’s some disaster in court and we’re in deep trouble again. It seems like each day holds a new crisis where I’m completely out of control and all I can do is pray and hope. This is getting to be a habit.”
Noelle reached over and patted her husband’s arm. “Praying and hoping aren’t bad habits to have.”
Two hours later, Ben stood at the lectern in Judge Harris’s courtroom, bracing himself to try one more desperate gambit. “Your Honor, I move the admission of all of plaintiff’s exhibits into evidence.”
“Any objection?” Judge Harris asked Anthony Simeon.
“We object to Plaintiff’s One. Lack of foundation.”
“Your Honor, I believe we’ve laid a foundation establishing the authenticity of this document. Mr. Kolesnikov conceded that one of the signatures on this document was probably his. Mr. Voronin admitted that the Brothers passed resolutions authorizing all significant transactions and that he couldn’t find another resolution authorizing this one. True, these witnesses also denied that Plaintiff’s Exhibit One is the minutes of their October nine meeting. However, none of their denials were credible. If anything, they underscored the fact that this is a genuine document.”
The judge raised skeptical eyebrows, sending wrinkles up to his gleaming scalp. “But the problem is that you have nothing but denials. No one has come in here and said these are in fact the actual minutes of an actual meeting. Without that, I can’t let this into evidence. You have raised serious questions about the character and credibility of various witnesses, but that’s not enough. A series of unbelievable denials does not add up to an admission. Objection sustained. Does the plaintiff rest, Counsel?”
“For the moment, Your Honor. I—”
“There’s no resting your case ‘for the moment,’ Mr. Corbin,” interrupted the judge. “Either you have more evidence to put on or you don’t. Which is it?”
“We don’t have any more evidence to offer right now, but we may later today. I had expected to receive some documents this morning, but they haven’t arrived yet. I would ask the Court for a brief recess, probably not past the end of the day.”
“What are these documents?”
“Even though the defense has been unable or unwilling to produce Mr. Fedorov—despite repeated court orders—we have managed to obtain a number of documents from him regarding the Brothers.”
“You were able to find Mr. Fedorov?” asked the judge in surprise.
“No, Your Honor, just his documents.”
“Are any of them relevant to this case?”
“I don’t know yet,” admitted Ben. “I need to go through them first.”
“And you need to get them before you can go through them,” observed the judge, shaking his head. “This is a trial, Mr. Corbin, not some open-ended truth-seeking investigation. When you’re done putting on the evidence you have right now, you’re done. I’m not going to recess this trial so you can go looking for more. That all has to happen before trial. Now, do you have any more evidence to put in the record, or do you rest?”
Ben stood for several seconds trying to think of some way to buy time, but he couldn’t come up with anything. Hopefully, he’d be able to track down Sergei in time to introduce any new documents as rebuttal evidence after Simeon put on his case. “Your Honor, the plaintiff rests.”
“The defense moves for judgment as a matter of law, Your Honor,” Anthony Simeon said, handing up a stack of papers.
Ben wasn’t happy, but he wasn’t surprised. The defense always has the option of moving for judgment as a matter of law at the end of the plaintiff’s case in chief. If the plaintiff fails to put on any evidence in support of a necessary element of his case, the defendant can ask the judge to end the trial because there’s no need to put on the defense case—the plaintiff’s case is fatally defective no matter what evidence the defendant presents.
“We can have our response on file in forty-eight hours, Your Honor,” Ben said as he leafed through the copy Simeon had given him. It appeared to make essentially the same points as the summary judgment motion the defense had filed earlier in the case.
“No,” the judge said. “The whole point of this motion is that none of us should have to sit through the defense case if your client can’t win. If I give you a briefing schedule on this, then Mr. Simeon has to put on his case anyway—and that defeats the purpose of a motion like this, doesn’t it?”
“You could recess the trial for long enough for this motion to be briefed and argued,” suggested Ben.
“I wasn’t willing to give you a one-day recess five minutes ago. I certainly won’t give you a two- or three-day recess now. Mr. Simeon, are you ready to argue this?”
“Yes, Your Honor.”
“Proceed.”
“Thank you. The very first fact that any plaintiff in a breach-of-contract case must prove is, of course, the existence of a contract. The plaintiff here has not done that. There is no evidence in the record of any contract between Mr. Zinoviev and the plaintiff.
“First, let’s look at the testimonial evidence. Every time Mr. Corbin has asked a witness if such a contract exists, he has received denials. He may not believe those denials, but as the Court just explained, a collection of unbelievable denials does not add up to an admission. No witness has admitted the existence of the alleged contract.
“Second, the documentary evidence. The only contract in evidence is the agreement between Mr. Zinoviev and the Brothers LLC—a contract that covers the same items that the plaintiff allegedly bought and is therefore completely inconsistent with the plaintiff’s theory of the case. What else does the record contain? Mr. Brodsky’s signature, some bank statements, and a resolution authorizing the creation of bank accounts in various locations. None of that proves the existence of a contract between the parties to this case.
“It’s also worth noting what the record does not contain.” He pointed to the minutes that had just been excluded from evidence. “It does not contain the one document on which Mr. Corbin has founded his whole case. The Court once entered judgment against the plaintiff in the absence of that document, a judgment that was only reversed when Mr. Corbin promised that he would be able to produce a witness to authenticate it. He has not done so. He has produced no evidence that the meeting referenced in that document took place or that Mr. Zinoviev made the statements attributed to him. He cannot even tell you who wrote that document. We move the Court to enter judgment in favor of the defendant.”
The judge nodded. “Mr. Corbin?”
“Yes, Your Honor. I have already gone ove
r the unbelievable testimony offered by the defense witnesses, all of which points to the existence of a contract between Mr. Zinoviev and Dr. Ivanovsky. If there is no contract to hide, then why were they lying?”
“I remember their testimony,” interjected Judge Harris, “but you’ll need more than that to defeat Mr. Simeon’s motion.”
Ben launched into his last argument, which had only occurred to him that morning while he was waiting for Sergei. “Well, Your Honor, even more significant than the testimony of those witnesses who did take the stand is the probable testimony of one who didn’t. I believe Josef Fedorov is the man who called me that night, and he indicated to us that he would be willing to testify. We subpoenaed him, but he did not come to court. Your Honor held him in contempt, but he still did not come to court. Your Honor issued a bench warrant for his arrest, but even then he did not come to court.
“Mr. Fedorov is a missing witness within the meaning of Neal v. Nimmagadda. He satisfies all of the Neal factors.” Ben ticked them off on his fingers. “First, he was under the defense’s control and they could have produced him in court, but they didn’t. In fact, it appears that they actively prevented him from testifying. Second, he was not equally available to us. Third, you can bet that if he were going to testify favorably to them, he would have been here. And finally, they’ve offered no excuse for failing to produce him. We therefore ask that Mr. Fedorov’s likely testimony be construed against them.”
“Your Honor,” rejoined Simeon, “the missing-witness presumption only applies to witnesses controlled by a party to a lawsuit. Aside from Mr. Corbin’s client, the only party to this lawsuit is the estate of Mr. Zinoviev. There is no evidence whatsoever that the estate controls Mr. Fedorov or is preventing him from testifying. If Mr. Corbin is to be believed, the Brothers—who are not parties to this case—are doing that.”