The Dead Hand

by Michael A. Kahn

  Neither Sterling nor Blatz had any cross-examination.

  After Professor Hecht left the witness stand, Jacki called Robert Dunlop, our commercial real estate appraiser. He was a familiar expert witness to Judge Ballsack and most of the other state court judges in St. Louis, having frequently testified in eminent domain cases and various real estate disputes. Jacki put him through the paces, established our $5.2 million number, and stood aside as Larry Blatz flailed away for fifteen minutes of useless cross-examination.

  Once the judge excused Dunlop, I rested our case.

  Sterling stepped forward and moved for judgment on his client’s Rule Against Perpetuities claim against Marsha Knight. When he finished, I stepped back to the podium.

  “Your Honor,” I said, “if the Court should determine that the property grant to my client is void, then I move for judgment on my client’s malpractice claim against the Cross Law Firm. The testimony of Professor McAllister and the testimony of Professor Hecht establish that my client is the innocent victim of gross malpractice on the part of her divorce attorney and his law firm.”

  Blatz practically sprinted to the podium after I stepped away. “Whoa!” He made his time-out signal. “These learned Counsel need to hold their horses. Their ejaculations over their motions are, frankly, premature, Judge. To quote the great Desi Arnaz, ‘Lucy, you got some ’splainin’ to do!’”

  He leaned back with a triumphant grin and gave me a wink.

  Ballsack glared down at him. “Mr. Blatz, unless you would like to be held in contempt—and by ‘held’ I mean in the holding cage where my bailiff will be happy to escort you—you’d better start over.”

  Blatz chuckled. “Just trying to add a little levity to the end of this long day, Judge. No harm intended. Quite simply, Counsel’s two motions are premature. We will be putting on our case tomorrow, and I can assure Mr. Sterling and Ms. Gold that we will be rocking your world and knocking your socks off.”

  Judge Ballsack banged his gavel. “Enough! Mr. Blatz, you seem drawn to hackneyed expressions and metaphors. Well, I have one for you, sir, and it comes in the form of a warning: You are skating on thin ice. Very thin ice. Proceed with great caution or you may fall through and freeze to death.”

  The judge leaned back, shook his head, and announced, “We will resume tomorrow at ten a.m. sharp.”

  He banged his gavel twice. “Adjourned for the day.”

  He stood and disappeared through the door behind the bench.

  I walked back to our counsel’s table, where Marsha was helping Jacki gather and pack up our court papers.

  “Well,” Jacki said in a whisper, “I believe the pin has been pulled.”

  Chapter Forty

  The first sign that Larry Blatz had shifted tactics was the absence of Daniel Crocker, the purported “legal malpractice expert” included on his “Will Call” witness list. He was not in the courtroom the following morning, and when asked, Blatz said Crocker was no longer needed. In other words, he wasn’t going to seriously contest my malpractice claim against the Cross Law Firm.

  The second sign of a shift in tactics was the absence of Shannon McCarthy, Adam Fox’s sister, and the second of the two witnesses on Blatz’s “Will Call” witness list. Then again, I told myself, he could be planning to put her on the witness stand later in the day.

  The third—and most surprising—sign was the presence of Irving Sliman, seated in the back row of the gallery. He was wearing his courtroom attire: gray pinstriped suit, starched white shirt, dark bow tie, black horn-rimmed sunglasses.

  The fourth and final sign, seated next to Sliman, was a man immediately recognizable with the scarlet yarmulke on his bald head, the neatly trimmed black goatee, the strong nose, and the tinted aviator glasses. Yes, Myron Dathan. One of the creepiest lawyers in St. Louis—cuddly as a tarantula, affable as a moray eel. Unfortunately, also one of the better lawyers in St. Louis—a brilliant litigator with an uncanny ability to detect his opponent’s pressure points. Dathan and I had our own courtroom history: a nasty case involving the estate of Mendel Sofer, a Holocaust survivor—a case that ended poorly for Dathan and his clients. We hadn’t spoken since then.

  Irving Sliman was hunched over a yellow legal pad and scribbling notes as I passed by the two men on my way to counsel’s table. I paused and nodded at Dathan.

  “Good morning, Myron.”

  He stroked his goatee as he gazed at me with an expression that hovered somewhere between amusement and disdain—it was hard to tell which because his eyes were veiled behind those tinted lenses.

  He nodded back. “Counsel.”

  Sliman looked up from his notes and smiled. “Good morning, Rachel.”

  When I reached counsel’s table, where Jacki and Marsha were waiting, I looked back at Sliman and Dathan and then turned to Jacki.

  “What is Dathan doing here? Is he a witness?”

  “No,” she said. “He’s here as Slimeball’s attorney.”

  “Huh?”

  “That’s what he told the courtroom clerk.”

  I looked over at the table where Larry Blatz and Norma Cross were seated. Larry looked at me, gestured toward the back of the courtroom, grinned, and gave me a wink.

  I turned to the other counsel table—the one with Tom Sterling and Danielle Knight. Sterling had on a tan suit today, blue shirt, bolo tie, and cowboy boots. He gestured at two men in the gallery and gave me a shrug.

  I turned to Jacki and Marsha. “Fasten your seatbelts, ladies.”

  “All rise!”

  We stood as the door behind the judge’s bench opened and little Harry Ballsack strode in, his black judicial robe flapping behind him. He took his seat, looked around the courtroom, banged his gavel, and announced, “Be seated.”

  He turned toward Larry Blatz. “Ready to proceed, Counsel?”

  Larry jumped to his feet with a big grin. “To quote the late great Otis Redding, I’m sitting on the dock of the bay.”

  Ballsack frowned. “What in God’s name is that supposed to mean?”

  “All systems go, Your Honor. We are ready to launch. Shall I call my first witness?”

  Ballsack sighed and shook his head in irritation. “Yes, Counsel. Let’s get this moving.”

  “The Cross Law Firm calls to the stand one Irving Sliman.”

  Sliman and Dathan both stood and started toward the front of the courtroom. Sliman stepped to the witness box while Dathan walked over to the podium.

  Judge Ballsack frowned. “Mr. Dathan?”

  He smiled at the judge.

  “Good morning, Your Honor,” he said in that plummy baritone that some found soothing and I found smarmy. “It is always a true pleasure to be in this courtroom.”

  “Do you have some matter before the Court this morning?”

  Dathan chuckled. “I do, indeed. I am here today to enter my appearance on behalf of my client, Irving Sliman.”

  Ballsack’s frown deepened. “Mr. Dathan, your client is not a party in this lawsuit.”

  “You are most certainly correct, Your Honor. And I fully understand your bemusement. But as the Court is well aware, there are always delicate but vital issues of attorney-client privilege whenever a lawyer is called upon to testify concerning a matter in which he was once involved in his professional capacity. Such is the case here, where my client served as the attorney for the late Jerome Knight.” Dathan paused and lowered his head. “Alav ha-shalom.”

  “Huh?” Jacki whispered to me.

  I shook my head in disgust.

  Classic Dathan.

  Among his many unpleasant qualities was how he exploited his religion—our religion—for strategic advantage. He used his encyclopedic knowledge of Jewish law to cancel hearings, halt depositions, terminate meetings, and otherwise refuse to cooperate; when challenged, he would curtly cite an obscure Jewish holiday or c
ustom that purportedly created the scheduling conflict. It was a technique designed to incapacitate Gentiles. And today’s tactic was another one: baffling everyone in the court (except me) by pausing to solemnly recite a traditional Hebrew honorific for the dead, this one meaning, “May peace be upon him.”

  After that phony moment of silence, Dathan looked up and resumed. “Accordingly, Your Honor, it is imperative in such situations that there be independent counsel present during the proceeding to guard the sanctity of that attorney-client privilege. I am honored today to have been chosen to serve Mr. Sliman and our legal profession in that capacity.”

  Ballsack frowned, glanced over at Sliman, and then back at Dathan. “Very well, Mr. Dathan. Let’s proceed.”

  The judge turned to the courtroom clerk. “You may swear in the witness.”

  As I watched the clerk administer the oath, I tried to figure out what Sliman’s end game could be. Yes, he was angry with Danielle Knight for deserting his son as her attorney. And yes, he was angry with Norma Cross for, according to Jacki’s account, humiliating his son in open court. But to seek revenge on the witness stand against either of those women brought with it great personal risk. The presence of Myron Dathan as his guardian angel—or perhaps guardian devil—added yet another layer of complexity to the situation.

  The early phase of Blatz’s examination was noteworthy primarily for how easily Sliman avoided admitting anything.

  “At what point, Mr. Sliman, did you realize your proposed deed violated the Rule Against Perpetuities?”

  “Violated?” Sliman frowned, his dark sunglasses hiding his eyes. “Has there been a ruling to that effect, Counsel? I thought the applicability of the Rule Against Perpetuities was the central legal issue in this proceeding. I am merely a fact witness, sir. I defer to our learned judge for such lofty determinations.”

  “Okay. Let’s try it this way: Did you believe that your proposed deed violated the Rule Against Perpetuities?”

  “I confess, Counsel, that I barely passed my Property Law course in law school. I am no more an expert on the Rule Against Perpetuities that I am an expert on Einstein’s Theory of Relativity. As they say, it’s all Greek to me.”

  “But you do know, sir, that Mr. Fox believed that your proposed deed violated the Rule Against Perpetuities, correct?”

  “Objection,” Dathan said. “Calls for speculation. Mr. Sliman is not a mind reader.”

  “Sustained.”

  Blatz looked down at his notes, hands clenching either side of the podium. Eventually, he looked up at the witness.

  “Okay, sir, let’s try it this way. During your negotiations with Mr. Fox over the divorce settlement, did he tell you that his issue with the deed could be resolved by Section 456.025 of the Missouri Revised Statutes?”

  “Objection,” Dathan said. “Hearsay and violation of the Dead Man’s Act.”

  “Sustained.”

  Blatz looked down at his notes, and then opened a manila folder he had with him on the podium. He held up a paper-clipped set of documents. “Okay, okay. Let’s give it a try this way. I present the witness with a document I have marked Cross Exhibit A.”

  He handed the document to Sliman, a copy to the courtroom clerk, and passed out copies to each of the attorneys.

  Cross Exhibit A was the two-page transcription of that final telephone call between Sliman and Fox.

  “Do you recognize Cross Exhibit A, sir?”

  “I do.”

  “Can you tell me what it is?”

  “Yes, I can.”

  Blatz waited, his expression gradually growing confused. “Well?”

  “Well what, sir?”

  “I asked you if you could tell me what Cross Exhibit A was?”

  “You did. And I answered truthfully. I told you that I could.”

  Blatz exhaled slowly. “Okay. Then tell me. What is it?”

  “It would appear to be a transcript, prepared by my secretary, of a telephone conversation between Mr. Fox and myself.”

  “Was that unusual?”

  “Was what unusual?”

  “Preparation of a transcript of a telephone conversation between you and opposing Counsel?”

  “In general, yes. With respect to Mr. Fox, sadly, no.”

  “Why so, with Mr. Fox?”

  “Because I learned early on that he was a mendacious and untrustworthy individual who was prone to misrepresentations and exaggerations, especially in court. In short, he was a standard member of the Cross Law Firm.”

  I glanced over at Norma Cross, who visibly stiffened.

  Sliman continued. “His deceitful ways were all the more dangerous because of his innocent Boy Scout persona. Accordingly, I deemed it prudent to keep a record of our communications.”

  “And thus this exhibit.”

  Sliman nodded. “Correct.”

  “Do you see Mr. Fox’s reference to Section 456.025 of the Missouri Revised Statutes in that transcript?”

  “I do.”

  “Do you know what that Section is?”

  “No.”

  “No?”

  “No, and I don’t even know if that is the correct citation.”

  “What do you mean?”

  “This transcript was prepared by my secretary as she listened in on the speaker phone. She is not a trained court reporter or stenographer. And because very few of my opponents are dishonest and unreliable, she is seldom called upon to create these transcripts. While I rarely reviewed them for accuracy back then, the occasional time I did review one I would find a few mistakes. Thus I can’t be sure if she correctly transcribed the Section number Mr. Fox cited.”

  Blatz backed away from the podium as he tried to collect his thoughts.

  “Counsel?” the judge asked.

  “Sorry.” He stepped back to the podium. “Are you aware that the section of the Missouri statutes cited by Mr. Fox was enacted specifically to avoid the Rule Against Perpetuties?”

  “No.”

  “Why do you think he cited it?”

  Sliman shrugged. “I don’t know. I don’t remember. This was several years ago, Counsel.”

  “Look at the exhibit, sir. Do you see where he says that you should make that deed a trust? He says he checked. He says that Section 456.025 solves the issue. Do you see that?”

  “I do.”

  “Does that refresh your recollection that Mr. Fox wanted you to make the deed a trust so that it would avoid the Rule Against Perpetuities?”

  “No, it does not refresh my recollection.”

  “Look at what follows in the transcript.”

  “Okay.”

  “He says that the statute solves the issue. You tell him you hardly think so. You tell him your draft solves the issue because you checked the rules. He asks what rules. You answer, and I quote, ‘Come on, Adam. We play by the rules.’ Closed quote. And his answer—and I warn the Court there is a curse word in here—his answer is, quote ‘You mean 4-1.8? Come on, Irving. This is bullshit.’ Is that what he said?”

  “So it appears.”

  “Can you tell the Court what you meant by Rule 4-1.8?”

  “No.”

  “Why not?”

  “Because I didn’t say it. Mr. Fox did.”

  “What did he mean by it?”

  “Objection,” Dathan said. “Calls for speculation.”

  “Sustained.”

  After a pause, Blatz asked, “Did you understand what he was referring to?”

  “I don’t remember.”

  “Are you familiar with the Missouri Rules of Professional Responsibility?”

  “Yes.”

  “Are you familiar with Rule 4-1.8?”

  “Not off the top of my head.”

  “It covers conflicts of interest.”

  “If
you say so.”

  “I don’t say so, Mr. Sliman. The Rule says so.”

  Sliman smiled. “If you say so.”

  “Here. I am handing you a photocopy of the full text of Rule 4-1.8.”

  He handed a copy to Sliman, a copy to the courtroom clerk, and copies to each of the attorneys.

  “Mr. Sliman, would you look at subsection (j) of Rule 4-1.8?”

  “Okay.”

  “Please read it into the record, sir.”

  “Okay. ‘A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.’”

  “At the time of the telephone call transcribed as Exhibit A, Mr. Sliman, you were aware that Mr. Fox was having sexual relations with his client, Mrs. Knight. Correct?”

  Sliman appeared to ponder that question. “I had no personal knowledge of that fact.”

  “But you had been told of that fact by your own client, correct?”

  “Objection,” Dathan said. “Hearsay and the Dead Man’s Act.”

  “Your Honor,” Blatz said, “my question goes solely to Mr. Sliman’s mental state, and not to the underlying truth of whatever his client told him.”

  Judge Ballsack frowned. “Overruled. You may answer, sir.”

  Sliman nodded. “Yes, my client told me that his wife was having sexual relations with Mr. Fox.”

  “And Mrs. Knight testified yesterday that her sexual relationship with Mr. Fox started after she had retained him and his law firm. That fact is undisputed.”

  “If you say so.”

  “Therefore, sir, did Mr. Fox’s conduct with his client constitute a violation of Rule 4-1.8 of the Missouri Rules of Professional Conduct?”

  “So it would appear.”

  “What are the consequences of a violation of subsection j of Rule 4-1.8?”

  “I don’t know.” Sliman smiled. “I never violated it.”

  “A violator could be disbarred, correct?”

  “Perhaps.”

  “And if not disbarred, then sanctioned severely, correct?”

  “Perhaps.”

  “Mr. Sliman,” Blatz said, pausing to stare at him, “did you threaten Mr. Fox with a disciplinary complaint over his sexual misconduct?”