The Dead Hand

by Michael A. Kahn

  “Crafty?”

  Reynolds laughed. “Oh, yes, Ms. Gold. Bert loved challenges. He used to tell me that there was no such thing as a problem that couldn’t be solved.”

  “How would you describe your relationship with Mr. Mulligan.”

  “Excellent. I had great respect for the gentleman.”

  “One of Unisource’s divisions is Procreative Cryogenics, correct?”

  “That’s true. Procreative has been a division of ours since before I joined the company.”

  “One of the services provided by Procreative Cryogenics is the freezing and storage of human sperm deposits, correct?”

  “That is correct, Ms. Gold.”

  I paused to allow Judge Bauer to absorb that information before moving on.

  “Mr. Reynolds, did Mr. Mulligan ever have a conversation with you regarding his own sperm deposits?”

  Reynolds smiled. “He did. He approached me regarding that subject approximately a year before he passed away.”

  “Tell us about it.”

  “Objection,” Strauss said. “Hearsay.”

  Judge Bauer looked at me. “Ms. Gold?”

  “Your Honor, this is merely background for the actual evidence we will be introducing. Just a few questions to provide the Court with some helpful context for that evidence. I would urge the Court to allow Mr. Reynolds to testify with the understanding that the Court can determine for itself the relevance, reliability, and admissibility of that testimony.”

  Judge Bauer nodded. “Objection noted. You may answer, Mr. Reynolds.”

  “Bert and I were having lunch at his club—St. Louis Country Club. Just the two of us. I knew there was something personal on his mind.”

  “How did you know that?”

  “Bert and I had many business lunches over the years, and for those his secretary would call mine to make the arrangements. Typically, we met in the conference room adjoining his office, or occasionally at the Missouri Athletic Club. But this time Bert called me himself, and when I got to his club, I discovered that we were having lunch in a private room. Just the two of us.”

  “Were you right about the personal nature of the lunch?”

  “Oh, yes. He started off telling me he had something personal and confidential to discuss. He told me that he and his new wife had been trying without success to conceive a child. He’d undergone tests and learned that he had a low sperm court. Not that unusual for a man of his age, but unfortunate for one trying to conceive a baby.”

  Strauss stood. “Objection, more hearsay.”

  The judge turned to me. “Counsel?”

  “Your Honor, Mr. Mulligan’s low sperm count has already been confirmed by the affidavit we submitted from his urologist, Dr. Silverman. Mr. Strauss did not object to that affidavit.”

  The judge nodded. “Overruled. You may continue.” He turned to Strauss. “There is no jury, Counsel. As before, I will allow this testimony for what it’s worth, and you can have a continuing objection. Continue, Ms. Gold.”

  I turned back to Reynolds. “You were describing your conversation with Mr. Mulligan about his low sperm count.”

  “Yes. Bert told me that about ten years earlier, as a precautionary matter for that very situation, he had made some sperm deposits with Procreative Cryogenics. His problem was that he had misplaced the access code for those deposits. He was quite embarrassed by that.”

  “Why?”

  Reynolds smiled. “Bert Mulligan was a highly organized individual, and he demanded that of others as well. He saw this misplacement of the access code as a humiliating blunder on his part, even an early sign of senility. I reassured him that he was hardly the first sperm donor to lose his access code. I told him that if he gave me his Social Security number, I was sure we could locate his sperm deposits and his access code.”

  “How did he react?”

  “He was relieved—and grateful. He wrote down his Social Security number and made me promise to keep it all confidential. He specifically requested that I handle the matter entirely on my own and not delegate the task to anyone else.”

  “Is that what you did?”

  “Absolutely. When I got back to the office, I personally logged onto the Procreative Cryogenics computer and performed the data search myself.”

  D.F.W.B., I said to myself.

  I asked, “Was your search successful?”

  “It was. Within an hour I had the pleasure of calling him with his access code.”

  Reynolds looked over at Cyndi and smiled. “I was privileged to play a small role in that happy event, Mrs. Mulligan.”

  Cyndi did not smile back.

  “Mr. Reynolds,” I said, “have you brought with you today your company’s business records regarding those sperm deposits?”

  “I have. I printed them out myself.”

  I turned to the judge. “May I approach the witness?”

  “You may.”

  I walked over to the witness box and handed Donald Reynolds a stapled set of documents. “Mr. Reynolds, I have handed you a set of documents marked as Defendant’s Exhibit G. Do you recognize them?”

  He flipped through the documents. “Yes.”

  “Are those the business records you brought with you today?”

  “Yes.”

  I turned toward Benny and nodded. He took a copy of the exhibit out of a folder and handed it to Milton Strauss.

  I turned back to the witness. “Would you please read aloud the access code for those three sperm deposits?”

  All eyes turned toward the blackboard as Reynolds read off the same combination of numbers and letters that were already on the blackboard.

  “What is the name identified with that access code?”

  “It says here ‘Mulligan, B.’”

  “How many vials were listed under that access code?”

  “Three.”

  “Do the records indicate what happened with those vials?”

  “Yes. A Doctor Robert A. Feldman obtained one vial for Mrs. Mulligan two years ago on April 29th. The following month—May 31st, to be exact—he obtained the other two vials.”

  “Your Honor,” I said, “can I have a moment to confer with my co-Counsel?”

  “Make it quick, Ms. Gold.”

  I walked over to the table where Benny and Cyndi were seated.

  I leaned in close to Benny. “Well?” I whispered. “Should I?”

  Benny glanced over at Strauss, who was grinning and nodding as he examined the several-page exhibit. “Looks to me like he’s going to do it for you.”

  I turned toward Strauss and then back at Benny. “You think?”

  “Look at him now. He’s got the subpoena you served on the sperm bank. Showing it to Grimsley. That knucklehead thinks he’s Perry Mason. I say we sit back and watch him blow up his lawsuit.”

  “Counsel?” Judge Bauer said.

  I stood, my mind racing. I’d already put in all the evidence we needed. Assuming Strauss tried to cross-examine Reynolds but avoided the land mine, I could trigger it on redirect. And if he decided not to cross-examine Reynolds, I could still connect the dots in closing argument.

  I glanced over at Strauss, who was grinning as he jotted down notes.

  Why not?

  I turned to the judge. “Nothing further, Your Honor.”

  “Mr. Strauss?”

  “Oh, yeah, Judge.” Strauss chuckled, setting down his pen. “I got a few.”

  “Proceed.”

  Strauss took the exhibit, stepped to the podium, and turned to Reynolds with a predatory grin.

  “Mr. Reynolds,” he started, “are you aware that earlier in this lawsuit Miss Gold served a subpoena on your company? That subpoena sought the very same records you have brought with you today.”

  “Really?”


  “In fact, let me show you a copy of that subpoena. It’s Plaintiff’s Exhibit 1.”

  He handed it to Reynolds, who glanced through it and then looked up. “Okay.”

  “You see there that it seeks all records regarding any sperm deposits by Mr. Mulligan, correct?”

  “I do.”

  “It even has his Social Security number, doesn’t it?”

  “That’s what the document indicates.”

  “Are you aware that your company produced no documents in response to that subpoena?”

  “Is that so?”

  Strauss smiled. “Oh, yes, sir. That is most certainly so.”

  Reynolds frowned. “I didn’t realize that.”

  “My, my. Well, how about we take a look at the Social Security number in the subpoena?”

  “I see it.”

  Strauss walked over to the chalkboard. “How about reading off that number? The one in the subpoena?”

  As Reynolds read the nine-digit number, Strauss wrote it onto the chalkboard.

  “This number you just read from the subpoena—” Strauss paused to point at the chalkboard “—is indeed the late Mr. Mulligan’s actual Social Security number. We have confirmed that from other personal records of his, including the tax returns.”

  “Okay.”

  “You understand what that means?”

  Reynolds shook his head. “No.”

  “That means your company has absolutely no record of any sperm deposit ever made by a person with that Social Security number. None, sir. Zero. Zilch. Okay?”

  Reynolds gave him a puzzled look. “Mr. Mulligan gave me his Social Security number. He wrote it down.”

  “Ah.” Strauss grinned. “Mr. Mulligan gave you a Social Security number, sir. Did you ever confirm that the number he gave you was in fact his Social Security number?”

  Reynolds rubbed his chin. “I don’t recall.”

  “Let me direct your attention back to the documents you brought with you today. The ones Miss Gold marked as Exhibit G. You feel pretty confident in the accuracy of those records?”

  “Yes, I do. We have high standards for our data.”

  “Excellent answer, Mr. Reynolds. How about we take a look at the Social Security number on those records? I think you’ll find it on page four.”

  “Yes, I see it.”

  “Good. Now take a look at the number up here on the chalkboard—the one you just read aloud from the subpoena.”

  Reynolds looked at the chalkboard and then down at the records.

  Strauss was grinning. “They aren’t the same number, are they?”

  Reynolds looked at the chalkboard again, and then down at the records. “You are correct.” He looked up at Strauss. “They are different.”

  “Yes, I am correct.” Strauss walked over to the chalkboard and picked up the chalk. “Okay, Mr. Reynolds. For the record, how about reading aloud the Social Security number from the documents you printed out this morning? The Social Security number that is actually connected to the vials of sperm your company delivered to Dr. Feldman—to the vials of sperm of the actual father of the defendant’s child. Do it nice and slow, sir, so I can write it down.”

  Reynolds got as far as the sixth digit when Grimsley jumped to his feet and shouted, “Stop!”

  The courtroom was silent. Strauss turned to his client wide-eyed, the chalk still in his hand. Judge Bauer stared at Grimsley. Benny stifled a laugh.

  Strauss said, “A moment, Your Honor.”

  He hurried over to Grimsley. As they huddled in frenzied conversation, I looked up at Judge Bauer. He had lifted the sheet of paper from earlier today, the one where Grimsley had written down his own Social Security number. The judge looked at the paper and then at the blackboard and then back at the paper. He leaned back in his chair, his lips pursed. He folded his arms over his chest and glanced at me. I nodded.

  Strauss stepped back to the podium. Grimsley was slumped in his chair, eyes down, slowly shaking his head.

  “Uh, Your Honor,” Strauss stammered.

  “What is it now, Counsel?”

  “My client has, uh, he has decided to dismiss this lawsuit.”

  Judge Bauer studied him. “Just to be clear, Mr. Strauss, at issue in this lawsuit is the trust established for the benefit of any child born into the decedent’s bloodline. You propose to dismiss your challenge with respect to the child named Carson Sue Mulligan, born to defendant on February fourteenth of last year?”

  “Yes, Your Honor.”

  “Thus your client no longer disputes the claim that the child named Carson Sue Mulligan, born to defendant on February fourteenth of last year was indeed born into the decedent’s bloodline, correct?”

  Strauss took a deep breath and exhaled. “Correct.”

  Bauer lifted his gavel, looked over at me, then back at Strauss. “Case dismissed.”

  Bang.

  Section 5

  “No one sees the hump on his own back.”

  —Yiddish proverb

  St. Louis Lawyer Weekly (November 9)

  Battle of the Knights Goes to Trial

  Outcome Likely to Turn

  on Obscure Rule of Property

  A mysterious rule dating back to the Middle Ages and notoriously difficult to apply properly may determine the outcome of a property bequest at the heart of a legal battle between the two wives of the late Jerome Knight. The case is set for trial Monday before Circuit Court Judge Harry Ballsack.

  Knight’s widow, Danielle Knight, seeks an order invalidating a life estate granted to Knight’s ex-wife Marsha in Fontainebleau Estates, the luxury high-rise apartment complex in Clayton. Danielle’s claim is that the grant, part of the divorce proceedings, violates the Rule Against Perpetuities. She is represented by Thomas Sterling of Abbott & Windsor. Marsha Knight’s attorney is Rachel Gold of Gold & Brand. Both attorneys declined to comment on the case.

  Earlier in the fall, Gold ratcheted up the stakes by adding the Cross Law Firm to the case, alleging malpractice in its representation of Marsha Knight in the divorce proceeding, including its approval of the property bequest now at issue.

  The law firm’s principal, Norma Cross, had no hesitance in commenting on the allegations against her firm. “Rachel Gold will rue the day she filed this pathetic claim against my firm. Once we get it thrown out of court, we’ll come after her with a vengeance seeking sanctions.”

  Her firm is represented by Lawrence Blatz. Informed of his client’s comments, he laughed and said, “Ditto that.”

  (continued on page 12)

  Chapter Thirty-five

  Jacki and I spent most of Sunday mapping out our trial strategy. Our options were limited.

  On the previous Friday, the parties had exchanged their “Will Call” witness lists, i.e., the witnesses they intended to call at trial. The plaintiff’s list confirmed what I had assumed would be Tom Sterling’s trial strategy: keep it simple. He listed two witnesses: his client and Hiram McAllister. Neither was a surprise.

  Presumably, Sterling envisioned Danielle Knight’s principal role, at least for the purpose of his direct examination, to attach a pretty young face to the name on the lawsuit caption. I had other plans for her.

  As for Hiram McAllister, he was the plaintiff’s expert witness. Now in his late sixties, McAllister was a distinguished professor at St. Louis University Law School and the co-author of McAllister and Christianson on Property Law. His written expert witness report concluded as follows: “Accordingly, my opinion is that the real property deed at issue in the case so blatantly violates the Rule Against Perpetuities in Missouri that it was void ab initio.”

  While that was an opinion that might have some value in our malpractice claim against the Cross Law Firm, it created a daunting barrier to scale in our attempt to refute the plaintiff’s claim that the deed
was void. Jacki had taken Professor McAllister’s deposition a month ago. I’d watched it later on the video. The silver-haired McAllister was pompous and aloof and decidedly “old school,” but he was also brilliant and articulate. Despite three hours of tough, probing questions by Jacki, she was unable to expose even a crack in his opinion.

  The more intriguing witness list was the one Larry Blatz had submitted for his client, the Cross Law Firm. Norma Cross was on the list, of course. As was Daniel Crocker, a lawyer who Blatz was going to try to get the judge to allow to testify as an expert witness on the question of legal malpractice. I’d taken a pass on deposing Crocker after doing a little digging into his credentials—unimpressive—and his social network, where, among other things, he and Blatz were Facebook friends. Rather than give him a dress rehearsal of my cross-examination during a deposition—and thus give him an opportunity to concoct a new, less flawed version of his testimony for court—I decided to save my questions for the trial. My first strategy, however, was to get the judge to disqualify him as an expert.

  The other name on Blatz’s witness list was more intriguing: Adam Fox’s sister, Shannon McCarthy. As I learned when I called her later that day, she was now a hostile witness.

  “I can’t believe it,” she’d said, her voice lace with anger. “You’re accusing my dear dead brother of malpractice. The nerve!”

  Before I could respond she hung up.

  My Will Call witness was short: just three names. The first was Marsha Knight. The second was Phoebe Hecht, the Washington University professor who taught property law and would serve as my expert witness in the malpractice claim against the Cross Law Firm. My third witness, also an expert, was Robert Dunlop, a commercial real estate appraiser. He would testify that the present value of the life estate granted to Marsha under the property deed—and thus the value of her loss if that deed was invalidated—was $5.2 million. His purpose, in short, was to attach a dollar amount to Marsha’s malpractice claims against the Cross Law Firm.

  Judge Ballsack’s pre-trial order required disclosure of only the “will call” witness lists, and not the “may call” list that some other judges require. And thus each party no doubt had a few surprise witnesses that, depending upon how their case went, might get called to the stand.