Marsha Knight arrived at our office at seven p.m. that Sunday. Jacki and I went over her testimony for a couple of hours. We’d probably have another opportunity to work with her Monday night, since she was unlikely to take the witness stand on that first day.
I walked her out to her car.
“One last thing, Marsha.”
She turned. “What?”
“Dressing for court. It may seem a little frivolous, but I promise it’s not.”
She frowned. “Okay.”
“Optics are important in the courtroom, even when it’s just a judge. We need to make sure he understands the consequences to you if you lose. One way to do that is through what you wear. No flashy jewelry. Easy on the makeup. No heels. And keep your clothes simple. A skirt and blouse, a dress, or a pantsuit—but nothing flashy. Okay?”
She nodded. “I understand.”
“Good.” I smiled. “Now go home and get a good night’s sleep. Hopefully, you spend tomorrow as a spectator.”
“I sure hope so.”
“Goodnight, Marsha.”
“Goodnight, Rachel.”
Chapter Thirty-six
Before the first day of trial, every good lawyer talks to the client about optimal courtroom attire—and Tom Sterling’s discussion with Danielle Knight had obviously been different than mine with Marsha Knight. I had assumed, perhaps naively, that the Danielle Knight who would take the witness stand that first day would be the demure but competent ICU nurse. Instead, we got the flashy “beautiful people” version, the one with a smile as dazzling as her jewelry, the one that appears in the photos in the Ladue News and the other society magazines from the prior week’s charity fundraiser events. This version strutted into the courtroom in high heels with coiffed red hair, a deep tan, gold earrings and matching necklace, and a snug navy jacquard dress that highlighted her long legs and big boobs.
I would have taken a different tack. After all, Danielle was seeking to grab back the entire property settlement that her late husband had given to his first wife—and in the process, as Tom Sterling surely knew I would emphasize, leave that first wife impoverished. But then again, I’m not a guy, and Tom Sterling certainly is. And little Harry Ballsack’s slack-jawed reaction as Danielle sashayed up to the witness stand seemed to affirm Sterling’s concept of optimal courtroom attire for his client.
Nevertheless, once she’d been sworn in and taken her seat, Danielle performed her role with calm composure as Sterling walked her through nearly two hours of direct examination—her background, her profession, her marriage to Jerry Knight, her widowhood, and her “reluctant” decision to challenge the property deed at issue.
When we returned to the courtroom after the lunch break and Danielle resumed her seat in the witness box, Sterling stepped back to the podium, gestured toward Marsha Knight, who was seated at counsel table between Jacki and me.
“Danielle,” he said, “one final question: are you motivated today by any ill will toward the defendant?”
“Oh, no. Not at all.” She turned to the judge. “I have no hard feelings toward Mrs. Knight. This is not personal. Not in the least.”
Judge Ballsack smiled and nodded at her.
“I have no further questions, Your Honor.”
Ballsack turned to me. “Counsel?”
I stood. “I have some questions for the witness.”
“Proceed.”
I stepped to the podium. “Hello, Mrs. Knight.”
She gave me a forced, “Hello.”
“No hard feelings toward my client? Did I hear that correctly?”
She stiffened slightly. “Yes.”
“What’s your net worth, Mrs. Knight?”
She shrugged. “I don’t know.”
“I’ve reviewed your late husband’s probate file. According to the public filings, you inherited money, stock, and property worth more than forty million dollars, correct?”
She shrugged again. “Maybe.”
I held up a stack of probate court filings and turned to Sterling. “Counsel, these are certified copies of the probate court records. I can go through the lengthy process of having these records admitted into evidence or you can save us all some time and just stipulate that your client inherited more than forty million dollars from her late husband.”
Sterling stood and looked toward the judge. “No need to waste the Court’s valuable time. We will so stipulate, Your Honor. And we will also object as to the relevance of this evidence.”
Ballsack turned to me. “Counsel?”
“Impeachment, Your Honor. The plaintiff claims her lawsuit is not motivated by any ill will toward my client even though if she succeeds she will leave my client destitute and in the poor house. Now if the plaintiff herself were impoverished, if she were struggling to make ends meet, perhaps living on food stamps, and thus had a legitimate financial need to grab back this property, her claim of no ill will might be credible. But if she is worth more than forty million dollars, with homes here and in Aspen, Colorado, and in Naples, Florida, then I think the Court can see no motivation for this vicious lawsuit other than her ill will toward my client.”
Sterling was on his feet. “I object to that mischaracterization of the Widow Knight, Your Honor.”
Ballsack banged his gavel. “Enough! Enough from both you. If you have any other questions for this witness, Ms. Gold, ask them now.”
I spent the next thirty minutes poking around and pecking away at some of her earlier testimony, but mostly for the purpose of getting her into a sufficiently irritated state for my final series of questions.
“During your marriage to Mr. Knight,” I said, “he talked to you about his first wife, my client, correct?”
“We talked about many things.”
“I’m sure you did, Mrs. Knight. But that’s not what I asked. Listen to the question. Did he talk to you about my client?”
“Yes.”
“And he talked to you about the divorce, correct?”
“Yes.”
“And he talked to you about my client’s divorce lawyer, correct?”
“I guess so.”
“In fact, he told you that my client was having sex with her divorce lawyer during the divorce proceeding, correct?”
“Objection. Irrelevant and inflammatory and prejudicial.”
Ballsack glared at me. “Counsel?”
“May we approach?”
The judge sighed. “Fine. Approach.”
Sterling and I stepped over to the far side of the judge’s bench—the side opposite the witness box.
“What is it?” Ballsack asked.
“This is highly relevant, Your Honor,” I said in a whisper, “and opposing Counsel knows that it is. It’s relevant to this claim and, moreover, it’s highly relevant to our malpractice claim against the Cross Law Firm. I only have a few more questions in this line of inquiry if this Court will allow me to continue. Otherwise, I would request that the Court take a recess so that I can fully explain this outside the hearing of the witness and make an offer of proof for the record on appeal.”
Ballsack stared at me. “Just a few more questions?”
I nodded. “Ten minutes at most.”
“Fine. Get it over with.”
I walked back to the podium and Tom Sterling returned to his counsel table.
I turned to Danielle, who was clearly angry. “To repeat my last question, Mrs. Knight, your husband told you that my client was having sex with her divorce lawyer during the divorce proceeding, correct?”
“Sex? I don’t remember that.”
“You don’t remember that he told you his ex-wife was having sex with her divorce lawyer?”
“No.”
“Mrs. Knight, do you recall that I took your deposition earlier in this case?”
“Yes.”
“In fact, the court reporter sent your lawyer a copy of your deposition transcript for you to review for accuracy, correct?”
“Maybe, I’m not sure.”
“May I approach the witness, Your Honor?”
“Fine.”
“Let me hand you a copy of that transcript, Mrs. Knight.” I turned toward the judge’s clerk. “And here is an extra copy for the Court.”
She handed it up to the judge.
I went back to the podium. “Turn to page 243, Mrs. Knight.”
I waited.
She looked up. “Okay.”
“It’s the last page of the transcript. The heading reads ‘Certification,’ correct?”
“Yes.”
“Please read aloud the language below that heading.”
“Okay.” She cleared her throat. “‘I, the undersigned, do hereby certify that I have read the foregoing deposition and that, to the best of my knowledge, said deposition is true and accurate with the exception of the following corrections listed below.’”
“And are there any corrections listed below?”
“No.”
“Is there a handwritten date and signature below that certification?”
“Yes.”
“Whose signature is that?”
“Mine.”
“So you read your deposition transcript on that date and certified that to the best of your knowledge it was true and accurate, correct?”
“Yes. Yes. Yes.”
“Thank you. Now earlier I asked you whether your husband told you that his ex-wife was having sex with her divorce lawyer and you said you didn’t remember, correct?”
“Yes.”
“Let’s see if we can refresh your memory. Please turn to page 187 of your deposition.”
I waited as she found the page and the judge found the page.
“Now, for context, please read aloud your answer, which starts at line seven.”
She looked up, eyes wide. “You want me to read that?”
“Yes, we’re trying to refresh your memory. Perhaps this passage will help. Read it, please.”
She stared down at the page for a moment, took a deep breath, and read aloud: “How about, uh, um, screwing your own lawyer, lady? In your own, uh, expletive, uh, home? While your teenage daughter’s bedroom is just down the hall?”
She looked up.
“Continue,” I said.
She looked over at Sterling and then back down at the transcript. “Your client has no shame,” she read. “She deserves exactly what’s going to happen to her in this lawsuit.”
“Good. And then I asked you ‘How do you know that?’ and at line 22 you ask, ‘How do I know what?’ and I said, ‘That my client was sleeping with her divorce lawyer.’ And what’s your answer? It’s at the top of the next page—page 188.”
That next line in the transcript read: Sleeping? You mean fucking like two rabbits in heat?
She looked down at the transcript and then up at her lawyer and then over at the judge, whose facial expression confirmed that he had just read that line.
She said, “Do I have to read that out loud?”
“Yes,” I said. “We’re trying to refresh your memory.”
Danielle shook her head. “Okay, okay, I remember now. My husband told me that your client was having sex with her divorce lawyer.”
“So this is a fact that your husband knew, correct?”
“I guess so.”
“And did he tell you how he found out that my client was having sex with her divorce lawyer?”
“Objection,” Sterling said. “That conversation is protected by the spousal privilege.”
I turned to the judge. “Perhaps it was protected once upon a time, Your Honor. But as you see from the transcript, she voluntarily waived that privilege.”
“Objection overruled. The witness can answer.”
Danielle just sat there, eyes wide.
“Mrs. Knight?” I said. “I asked you how your husband found out that my client was having sex with her divorce lawyer. The judge says you can answer that.”
“He saw them.”
“He saw them having sex?”
“No, I mean, he saw her lawyer coming out of her house early one morning.”
“Okay. And what else did he see that morning?”
“The lawyer was dressed, but she was in her nightgown. He saw them kiss in the driveway.”
“And he saw this before the divorce was final?”
She frowned. “I think so.”
“Did he tell you that he told his lawyer what he saw?”
“Objection, Your Honor. This is clearly covered by the spousal privilege.”
“Sustained. Move on, Counsel.”
I looked down at my notes and then back at the witness. “Mrs. Knight, you have no legal training, correct?”
“Correct.”
“Never taken a course in property law, correct?”
“Correct.”
“I assume you could not explain to me the Rule Against Perpetuities.”
She laughed. “You assume correctly.”
“Then how did you know to hire a lawyer to challenge this deed under the Rule Against Perpetuities?”
“Objection. Attorney-client privilege.”
“Sustained.”
“Leaving aside the Rule Against Perpetuities, how did you know to hire a lawyer to challenge the deed?”
“Objection. Attorney-client privilege.”
“Sustained.”
“Did your husband tell you that he and his lawyer had made sure that the deed was defective and that you could challenge it?”
“Objection. Spousal privilege.”
“Sustained.”
I hadn’t expected to get an answer to those last questions. The goal was to plant the questions in the judge’s mind in the hope that he might provide himself with the answers.
I smiled. “Thank you, Mrs. Knight. No further questions, Your Honor.
Judge Ballsack said, “Anything further, Mr. Sterling?”
Sterling flipped through his notes, stood, and shook his head. “Nothing further, Your Honor.”
Judge Ballsack turned to Danielle. “Thank you, Mrs. Knight. You may—”
“—Time out!”
We all turned.
Larry Blatz was standing and making a time-out sign with his hands. “Got a few more questions for the lovely lady, Judge.”
Ballsack frowned, leaned back in his chair, and shook his head. “Then ask them, Mr. Blatz.”
Blatz chuckled as he stepped up the podium. “Thanks, Judge.”
I glanced over at Jacki. She raised her eyebrows and shrugged.
Blatz obviously had his own vision of optimal courtroom attire, which today featured a plaid sports jacket, green slacks, and an enormous red-and-white polka-dot bow tie.
“According to my notes, Mrs. Knight,” he said, looking down at his legal pad, “you are not able to explain to us the Rule Against Perpetuities. Is that an accurate statement?”
“Yes.”
“Pretty complex stuff, eh?”
“I suppose.”
“And not just you, eh?”
“Pardon?”
“You’re not the only one who thinks it pretty complex stuff, right?”
“Objection.” Sterling stood. “The question is vague and lacks foundation.”
“Sustained. Be more specific, Counsel.”
“No problema. Your lawyer thinks it’s pretty complex stuff, right?”
“Objection. Attorney-client privilege.”
“Sustained. Get to the point, Mr. Blatz.”
“You have any friends who are lawyers?”
Danielle paused as she thought it over. �
�Yes, a few.”
“Ever ask any of them about their opinion on the Rule Against Perpetuities?”
“Objection. Irrelevant.”
“Sustained.”
“Any of those lawyers ever tell you it’s a pretty doggone complicated rule?”
“Objection. Hearsay and irrelevant.”
“Sustained!” Ballsack banged his gavel. “Move on, Counsel. Or just sit down.”
Blatz chuckled. “I think I’ve more than made my point, Judge. Nothing further here. Over and out.”
The look Norma Cross gave him as he returned to their table seemed the perfect illustration for that saying, If looks could kill.
Blatz was not her choice of attorneys. But since he’d been retained by her malpractice insurance carrier, she was stuck with him. Rarely have I felt such tender affection for an insurance company.
“Thank you, Mrs. Knight,” the judge said. “You may now step down from the stand.”
Ballsack checked his watch and turned to Sterling. “Call your next witness.”
“You Honor, the plaintiff calls Professor Hiram McAllister.”
Chapter Thirty-seven
In addition to Hiram McAllister’s obvious qualifications as an expert witness in the case, a more subtle but important qualification emerged during the first few minutes of Tom Sterling’s direct examination.
“Professor, for how long have you taught property law at the St. Louis University Law School?”
“This fall marks my fortieth year, Mr. Sterling.”
“Four decades. My goodness, sir. Well done.”
McAllister smiled. “Thank you.”
With his shock of white hair, bushy white eyebrows, ruddy complexion, and brown tweed sports jacket, McAllister seemed Central Casting’s answer to a call for an esteemed emeritus professor of law.
“I understand that many of your former students have become prominent figures in our local and national bar.”
“That is true, Mr. Sterling. My goal as their teacher was to prepare them for the rigors of the legal world, and I must say that I have been most pleased with the results of my efforts. Several of my former students have become senior partners in law firms, both here and elsewhere, including three managing partners over the years. More than two dozen of my former students are now professors in their own right at law schools here and around the country, including Stanford, Michigan, and Harvard. And I am proud to count among my former students more than twenty federal and state court judges, including, I might add—” and he paused to smile at Judge Ballsack “—the presiding judge in this case. You were a good student, Harry.”
The Dead Hand Page 15