by Rick Acker
Sergei shrugged. “Sure, but nothing that’s very likely. If I were running this investigation, I’d look at the people Karl was bribing. I’d look at that company he got the money from—what was the name? Clever something? I’d look at local Oslo organized crime. I’d look at anyone who might have a motive to break into that warehouse or stop Noelle’s work.”
“But you’d look hardest at people who knew that Noelle was there in the first place, right?”
“Yes,” Sergei agreed.
“And can you think of anyone more likely to know that than Karl and his minions?”
“Nope.”
“Neither can I.” Ben leaned back and folded his arms. “Is any of this confidential, or can I ask Karl about it on the stand?”
Sergei thought for a moment. “You can ask him about it as long as you don’t mention the IOCC. My guess is that Karl will take the Fifth.”
“Mine too,” Ben said. “That’s fine with me. I’ll hammer him with that for the rest of the case. It’s almost better than having him confess to a crime, because he’s admitting that he’s guilty of something, but leaving the crime up to the jury’s collective imagination. And I’ll be happy to help them imagine.”
“Can you do that?” asked Sergei in surprise. “I thought lawyers couldn’t comment when a witness took the Fifth. In fact, I didn’t know you could force an opposing party to get on the stand and then ask him questions where you know the answers would incriminate him.”
“Prosecutors can’t do that to defendants in criminal cases,” Ben replied with a broad grin, “but this is a civil case. I can make Karl get up there, I can ask him all the incriminating questions I want, and if he takes the Fifth, I can say whatever I want about it.”
On the first day of trial, the courtroom looked different than it had during the preliminary-injunction hearing. The most obvious difference was the presence of a jury. Bjornsen Pharmaceuticals and Gunnar Bjornsen had both demanded money damages from each other, so both had a right to a jury, and both had exercised that right.
Jury selection had gone fairly smoothly, as both Ben and Bert Siwell had apparently developed similar profiles for their ideal juror: someone with a college degree or higher and experience in business or finance. Their jury pool, like most in Cook County courthouses, held few individuals meeting these criteria, so both attorneys were hesitant to use one of their strikes on any remotely acceptable juror. Thus, Siwell let an accountant onto the jury, even though she was more likely than other jurors to understand Karl’s fraud and less likely to buy any rationalizations he might have developed since the preliminary-injunction hearing. And Ben decided not to strike a retired sales executive who might identify with Karl.
Another difference from the preliminary-injunction hearing was that Bert Siwell was opening first. Most lawyers prefer to give their opening statement second because that gives them the opportunity to respond to what their opponent has said and gives them the last word. Both lawyers had wanted to go second and had argued the issue to Judge Reilly the day before. He had heard them out, and, because there were no clear rules on the issue, he had flipped a coin to decide who had to go first.
Siwell walked up to the podium and smiled at the judge and jury. “Good morning, Your Honor. Good morning, ladies and gentlemen. Thank you all for being here today. I personally hate seeing a jury summons in my mailbox, and I’m guessing that you do too.” A few smiles and nods from the jurors. “I’d also guess that each of you has something you’d rather be doing right now than listening to me, and if you don’t . . . Well, if you don’t, you need to get out more.” Smiles from more jurors and a few chuckles. “So thank you. Without the sacrifice you’re making, our system of justice could not function.”
He gestured to a paralegal sitting beside a projector hooked up to a laptop. She nodded and tapped a few keystrokes. “Stealing is wrong,” Siwell continued. As he spoke, the same words appeared in large letters on the screen facing the jury.
The judge looked at Ben as soon as the words appeared, ready for him to object. Ben almost did, but decided to stay in his seat.
Siwell turned to the jury. “You’ll be hearing a lot of complex scientific and financial evidence over the next few days, but what it will all boil down to is that Gunnar Bjornsen took something from his brother’s company and doesn’t want to give it back. Now, the interesting thing is that I don’t think you’ll hear him seriously dispute that. I think you’ll hear him sit in that chair”—he pointed to the witness stand—“and tell you that he developed a drug formula while he was working for the company as their head of research, and now he won’t give it to them. He’ll also admit that his job was to develop drugs for the company and that any drug he developed—including this one—was the company’s property.
“By the way, this isn’t just any drug. There are hundreds of drugs developed every year that do everything from reducing earwax buildup to curing toenail fungus. But the drug Gunnar Bjornsen developed is special. Its name is Neurostim, and it improves reflexes and makes the brain work faster. In tests with monkeys and rats, it actually made them noticeably smarter. Neurostim is worth billions of dollars to Bjornsen Pharmaceuticals and could save the lives of firefighters or police or our men and women in uniform—that is, it could if Gunnar Bjornsen turned over the formula for it and—”
“Objection,” said Ben, rising to his feet. “That’s argument.”
“Sustained,” said Judge Reilly. “Please stick to the facts, Mr. Siwell.”
“I apologize, Your Honor,” said Siwell.
Ben sat back down, carefully avoiding a look of irritation. Whether or not Neurostim would “save lives” was irrelevant to who should win this lawsuit, and it was improper and damaging for Bert Siwell to imply otherwise—though not improper and damaging enough for Ben to get a mistrial.
“It’s a fact,” Siwell continued, “that the formula for Neurostim is highly valuable. No one disputes that. It is a fact that every day that the company doesn’t have that formula is a day the company is losing money as a result. It is also a fact that Gunnar Bjornsen doesn’t have a real explanation for why he shouldn’t turn over the formula. When I ask him about that, I expect you’ll hear him do what my five-year-old does when he’s caught doing something wrong—try to change the subject. I’ll say, ‘Jack, did you put your brother’s Matchbox cars in the garbage disposal?’ and he’ll turn around and say, ‘Well, he ate my bag of Cheetos.’ That doesn’t work at our house, and it shouldn’t work in this courtroom.
“So when you hear Mr. Bjornsen and his lawyer going on and on about the company’s accounting and finances, recognize what that is: it’s an attempt to change the subject. I can assure you that all of those financial questions have answers, and unfortunately, you’re going to have to listen to them for hours. But as you’re listening, ask yourselves, ‘Does any of this make it right for Gunnar Bjornsen to keep the Neurostim formula away from his former employer?’
“In fact, ask yourselves that question while you’re listening to all of the evidence in this case, because that’s the question you’re going to have to answer at the end of the trial. And once you’ve heard all the evidence, I think the answer will be as obvious to you as it is to me: it’s time for Gunnar Bjornsen to hand over the formula for Neurostim and pay for the damage he has done by taking it in the first place. Thank you.”
Siwell gathered his notes and sat down, and Ben took his place.
Siwell’s paralegal shut off the projector, but Ben said, “No, no. Please leave that up.” Startled, the paralegal looked at Siwell, who shrugged. She turned the projector back on, and “Stealing Is Wrong” reappeared on the screen. Ben pointed to them. “You won’t hear Mr. Siwell and me agree on much over the next few days,” he said to the jury, “but we agree on that. Stealing is wrong, and that principle should guide your deliberations.
“You just heard that the drug Gunnar Bjornsen developed is a revolutionary drug worth billions of dollars. Who should own that drug? You just hea
rd Mr. Siwell say that Bjornsen Pharmaceuticals should. Of course it should. No one disputes that. But contrary to what Mr. Siwell said, that’s not the real question you’ll have to answer in the jury room.
“The real question is, who should control Bjornsen Pharmaceuticals? The evidence will show that the current president is an embezzler and worse. He stole millions of dollars from the company and used the money to fund a campaign of bribery to force Gunnar Bjornsen out as president of the company. And he may have done worse things to keep Gunnar from winning back control of the company. He is a man who will do whatever—”
Siwell stood and interrupted. “Objection, Your Honor. This is more argumentative than anything I said.”
“Mr. Corbin, please stick to what you believe the evidence will prove,” said the judge.
“Yes, Your Honor,” said Ben. “You will hear some very troubling things about the president of Bjornsen Pharmaceuticals,” Ben said to the jury. “You will have to judge for yourself what to make of them. By the way, Mr. Siwell didn’t mention his name: it’s Karl Bjornsen. He is Gunnar’s brother.
“That right there tells you something. This is a man who forced his own brother out of the company they founded together, the company Gunnar devoted his life to for thirty years. And Karl did it by fighting dirty. As I mentioned earlier, he took from the company and used that money to bribe some of the company’s directors to vote against Gunnar. Is that the kind of person who should be in charge of a major drug company, particularly a company that is developing a multibillion-dollar drug that affects the brain?
“Gunnar Bjornsen doesn’t think so. That’s why he refused to turn the drug formula over to the company while Karl is still in control. And that’s why, after Karl had the company sue him, Gunnar countersued on behalf of the shareholders to take the company back from Karl.” He paused for a moment and continued in a lower tone. “Gunnar loves his brother, but unfortunately, he can’t trust him. He can’t afford to, not when the stakes are as high as they are in this case.
“Mr. Siwell gave you a question he wants you to remember while you’re listening to the evidence in this case. I’ll give you another: Do you trust Karl Bjornsen? Do you trust him enough to give him control of both Bjornsen Pharmaceuticals and this incredibly powerful and valuable drug? That is ultimately the question you will have to answer at the end of the case.
“And now I’m going to end the way I began—by agreeing with Mr. Siwell. Thank you all for being here today. You are being forced to give up a lot to sit here and listen to this trial, and both my client and I appreciate that.”
After watching the first day of trial, Sergei checked his watch and hurried out of the courtroom. Ordinarily, he would have gone back to Ben’s office to help prepare for the next day’s festivities, but this evening he had other plans. He quickly walked the two blocks to the Sidebar, where Elena was waiting for him. “Hi. Sorry to keep you waiting,” he said as he walked up to her.
She smiled. “Actually, I just got here myself. Let’s grab a table.”
Five minutes later, they were seated in a leather booth next to a window with a view of the Chicago River. The brownish-gray water looked almost picturesque as it sparkled in the slanting evening sun. “So how did trial go today?” asked Elena.
“Pretty well, I think. They picked a jury and gave opening statements. Ben did a good job, but so did the other lawyer. They’ll start putting on witnesses tomorrow. How was your day?”
“Good. I finally tracked down a witness I’ve been trying to find for three months, and he’s willing to talk to us. Also, my computer died completely, so the office will finally have to buy me a new one, and I basically had the afternoon off.”
Sergei laughed. “Sounds like a double win for you. What did you do?”
“I did what I could without my computer, which took about fifteen minutes. Then I spent the rest of the day reading that book Pastor Joe mentioned in his sermon.”
“The Practice of the Presence of God, or something like that?”
“That’s the one.”
“That was quick. What did you think of it?”
“It was really interesting,” she replied. “This monk, Brother Lawrence, wasn’t all that smart or dynamic or anything, but people came to the monastery just to talk to him and see how he lived.”
“Pastor Joe described him as being really spiritual, with people coming to sort of watch him. What exactly did he do?” asked Sergei.
“It wasn’t really what he did but how he did it,” she said. Her head bobbed slightly as she spoke, as it often did when she was excited. “He was just a regular monk who worked in the monastery kitchen, but he tried to ‘practice God’s presence’ in everything he did, to let it flow through him and control everything he did. He said that for him there was no difference between times of work and times of prayer, because he was always communicating with God and submitting himself to God’s will, no matter what he was doing. Everyone around him was just amazed at how . . . how real God was in his life. You should read it.”
Sergei smiled at her excitement. “I never thought I’d see you more interested in religion than I am.”
“Neither did I. It’s like . . . Have you ever been to the Grand Canyon?”
He shook his head.
“I went when I was in college,” she continued. “It really takes your breath away, but you can’t see it until you’re almost on top of it. It’s basically a big hole and the ground around it is pretty flat, so you don’t see anything except a few buildings until you’re close enough to the edge to look down into it. I remember hearing this old story about a farmer who lived less than a mile from the canyon his whole life, but didn’t know it was there. He knew the paths that led to his farm and to his neighbors’ homes and to their village, but none of those paths took him close enough to the canyon for him to see it.”
“Doesn’t sound very realistic,” observed Sergei.
“It’s a parable; go with it,” she said, giving him a playful kick. “Anyway, one day as he was walking home from his farm, a huge storm blew up and caught him in the open. The sky turned black and wind and hail pounded the farmer and nearly killed him. He saw some bushes off to the side of the path and ran to them. He hid under them until the storm had passed. Then he got up and looked around—and for the first time he saw the Grand Canyon.”
“Mm-hmm,” said Sergei.
“That’s sort of like what Norway did to me,” Elena continued. “Everything that happened there with Noelle and Einar pushed me out of my comfortable little world and to a place where I could see God. And once I saw him, I couldn’t believe I’d never noticed him before. It was like . . . well, like living next to the Grand Canyon all my life and not knowing it was there. I’ve still got a lot of questions, but I want to know more. I have to know more.”
Sergei nodded. “It sounds like you’re about where I was last year.”
“I really want to thank you for being willing to take so much time talking about this stuff over the past month,” she said. “I know you tried to bring it up before, but I wasn’t always interested.”
He laughed. “Yeah, you weren’t ‘always interested’ in the same way that ice isn’t always warm.”
She smiled sheepishly. “Maybe so. Anyway, I appreciate it.”
He returned her smile and looked her in the eye. “Hey, I enjoyed it. I got to spend time with you, and that’s one of my favorite hobbies, except maybe during the Winter Olympics.”
She blushed slightly and looked out the window. “You’ve just never understood how thrilling a good biathlon can be.”
He chuckled and opened his mouth to say something, but just then the waiter came with their meals. Once he left, Sergei cut off a bite of his steak but stopped before he put it in his mouth. He looked at Elena, who was busy mixing her seafood Cobb salad. “You know, we’ve had a lot of good times together.”
She nodded and stopped mixing her salad, but she didn’t look up. “Yes, we did.”
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He put his fork down. “I was thinking that it would be good to get back together, but that won’t work, will it? We’re kind of past the dating stage, aren’t we?”
She nodded again.
“But now that we’ve been getting together a lot as friends, it’s . . . well, that’s not enough for me. When we broke up, neither of us said anything about being just friends, and I think that was right. It’s killing me to be just friends when we’ve been so much more. I don’t know how you feel about this, but I was wondering if maybe we could start . . . not dating, but being more than friends again and maybe . . . well, maybe start thinking about where we might go long term.” He took a deep breath and let it out. “What do you think?”
She looked up. Her eyes were dry, but her voice was unsteady. “Sergei, I can’t let you do this to me again. I can’t let myself start caring for you again, not like that.”
He put his fork down. “Why not?”
She sighed. “Because I can’t start loving you again and then have you pull the rug out from under me. Because I’m thirty-three and I can’t waste my time on a relationship that’s not really going anywhere.”
“What do you mean I pulled the rug out from under you? You’re the one who walked out on me, remember? We were having lunch at Star of Siam and you stood up and literally walked out on me and left me there with everyone staring at me.”
“Because you had just said you wouldn’t marry me!” she said, her eyes flashing angrily.
“Well, I’m saying something different now.”
“Are you? All I’m hearing is, ‘Let’s get back together and see what happens.’”
“Well, that’s different, isn’t it? I’m not saying I won’t marry you anymore.”
She shook her head. “I’m sorry, Sergei. That’s not good enough.” She smiled. “You’d better eat your steak. It’s getting cold.”
CHAPTER SIXTEEN
DAMAGE
Ben sat at the defendant’s counsel table, glancing back and forth between the jury and Gunnar, who was on the witness stand being cross-examined by Bert Siwell. Gunnar was doing as well as could be expected, but Siwell was good at cross. The jurors’ body language was not encouraging—they were paying attention, which is rarely good when the other side is questioning a witness. They were also smiling at Siwell’s one-liners, but not at Gunnar’s deliberate, sometimes irritated responses. Gunnar’s appearance didn’t help: he was frowning occasionally and forgetting to look at the jury when he answered questions. He also was fidgeting with a pen and hunching forward in the witness chair, which made him look defensive and nervous. He was defensive and nervous, of course—virtually all witnesses are when they’re being cross-examined—but juries nonetheless tend to react negatively when witnesses let it show. In Gunnar’s case, his tension and posture made him look vaguely like a giant ape trapped inside the confines of the witness stand.