Bearing Witness

by Michael A. Kahn

  Eagle Engineering had its offices in Memphis, Tennessee. According to the data compiled by my student volunteers, it was formed in 1938 by Max Kruppa and remained in the family until Rhodes & Monroe Industries acquired its assets in 1994. Rhodes & Monroe was an international construction and engineering firm with headquarters in Cleveland, Ohio. That meant that Eagle Engineering’s brains were now in Cleveland but its body was still in Memphis. My strategy involved its brains and its body.

  The alumni directory showed two classmates in Cleveland, both junior partners at major law firms. I started with the one I knew the best—a woman who lived on the same dorm floor as me our first year in Cambridge. I got lucky: her law firm did work for Rhodes & Monroe. Although they hadn’t been the transaction lawyers on the Eagle Engineering deal, they had done a fair amount of work on matters relating to Eagle Engineering since then. I explained what I needed and what I was willing to offer her client in exchange. Although she was in her firm’s tax department, she was on good terms with Rhodes & Monroe’s principal attorney at the firm, a senior corporate partner named Wendell Bingham. She agreed to handle the shuttle diplomacy between Wendell and me.

  Ordinarily, the negotiations would have dragged on for days or weeks. While corporate lawyers no doubt have strengths, speed is not one of them. Fortunately, Wendell Bingham was the exception: he was smart, had control of his client, and was quick to grasp that we could offer his client full value for its cooperation. As a result, we were able to work out the details in less than two hours—a pace approaching warp speed for a corporate lawyer. One of his associates faxed me the three-page proposal by one that afternoon.

  I read through the proposal. It was a good deal for both sides. Eagle agreed to respond to the subpoena without objection and let me inspect all documents contained in its warehouse in Memphis. Just as important, the lawyers agreed to my timetable: I would serve the subpoena on their Memphis office tomorrow, and then, even though the subpoena would state that the inspection was to occur “on or before” a specified date three weeks off, they would let me inspect the documents the following day (which was, technically, “on or before” the other date).

  The timing was a crucial part of the strategy. I would prepare five subpoenas in all: one for Eagle Engineering and one for each of the other four companies. All five subpoenas would have the same “on or before” language, which I hoped would lull Beckman Engineering’s attorneys into thinking that they had plenty of time to organize a massive stonewall operation. If my strategy worked, by the time Beckman Engineering’s lawyers got around to calling Eagle Engineering—probably early next week—I’d have already reviewed the Eagle documents and obtained copies of the important ones.

  In exchange for all this, Ruth would sign an ironclad covenant not to sue Eagle Engineering or Rhodes & Monroe for “any act or omission, whether known or unknown, occurring or alleged to have occurred at any place or at any time from the beginning of the universe until today.” Such was the belt-and-suspenders approach of a corporate lawyer.

  That took care of the brains of Eagle Engineering. The body was down in Memphis, and that’s where the subpoena would be served. Once Beckman Engineering’s lawyers got wind of what I was up to, they would run into federal court down there to quash the subpoena. That meant I had to have a well-connected co-counsel in Memphis on emergency standby. I didn’t need my alumni directory for that name. Kenny Randall had been a year ahead of me at law school, and we’d worked together on the Harvard Civil Rights-Civil Liberties Law Review. He was the epitome of an influential Memphis lawyer: his grandfather was on the Tennessee Supreme Court and his uncle was a federal district judge. Even better, Kenny was a good guy. The summer before law school, he’d married a funny, drop-dead-gorgeous southern belle named Darlene who used to bring us Chinese takeout and a big thermos of mint juleps on those long nights down at the printer as we tried to put the next issue of the law review out.

  I caught up with him after lunch. He chuckled as I sketched out my strategy. “Rachel, dahlin’,” he said in that familiar Mississippi Delta drawl, “ah’d be delighted to help y’all out. Maybe we’ll git a chance to give those Yankee lawyers a taste of some southern-style justice.”

  ***

  By four that afternoon, Jacki and I had finished all the subpoena details, including making the necessary arrangements with a process server in each of the other cities. Still no word from Benny or Ruth. The thought of Benny defending that deposition, and no doubt tangling with Kimberly Howard, gave me the jitters.

  At four-twenty, Jacki buzzed to tell me that Laurence Browning was on line two. Browning was Kimberly Howard’s lieutenant on the lawsuit, an unctuous senior associate who oozed the warmth of a moray eel. Reluctantly, I lifted the receiver, half expecting him to notify me to meet Kimberly Howard in Judge Wagner’s chambers to discuss Mr. Goldberg’s shocking misconduct.

  “Hello?”

  “Rachel, this is Laurence.”

  Never Larry. Always Laurence.

  “What’s up, Larry?”

  “A bit of good news. Mr. Beckman’s schedule has developed an unexpected opening on Friday afternoon from three until five.” He paused for one of his world-weary sighs. “If you still insist on taking that man’s deposition, he will be available then.”

  I glanced at my calendar. I had a deposition in another case scheduled for Friday afternoon but I could get it moved. This was far more important.

  “Fine,” I said. “Your offices?”

  “Of course. Precisely at three, and remember, Rachel, exactly two hours. That’s the limit.”

  “You just make sure he’s on time.”

  He chuckled. “We’ll take care of Mr. Beckman. You worry about you.”

  ***

  Well?”

  “Probably,” I conceded.

  Benny widened his eyes in disbelief as he reached for another tortilla chip. “Probably?” He laughed and pointed at the transcript with the chip. “Come on, woman. You know I’m right.” He scooped up some fresh salsa with the chip and popped the whole thing into his mouth. Crunching away, he said, “There’s nothing there. She’s got absolutely bupkis.” He reached for his Dos Equis beer and took a gulp. “You’re home free.”

  We were having dinner at Chueys, a noisy Mexican restaurant in the Dogtown area. The evening was on me as thanks to Benny for defending Ruth’s deposition. Jonathan was supposed to meet us here later; he was flying back from Chicago, where he’d spent a long day at the arraignment and related matters for a bank president indicted for various federal bank crimes.

  Ruth’s deposition had lasted all day and ended at five o’clock with an infuriated Kimberly Howard storming out of the conference room. Benny had called me from his car phone on the way back to Washington University, where he was teaching a two-hour seminar on advanced civil procedure that started at five-thirty.

  “How’d it go?” I’d asked nervously.

  “Okay. We had some fireworks this afternoon.”

  “Fireworks?” I said, closing my eyes. “How bad?”

  “You can see for yourself before dinner,” he said with a chuckle. “Kimberly ordered daily copy. The court reporter said she’d drop off your copy by seven.”

  I groaned, envisioning the scene in court, presumably tomorrow morning: an outraged Kimberly Howard demanding sanctions against my client for the egregious misconduct of her attorney.

  “Don’t worry, Rachel. There’s nothing there. Trust me. The court reporter takes down words, not tone. You’ll see. I’m the perfect gentlemen in the transcript.”

  And, incredibly enough, he was right.

  A messenger delivered the 220-page transcript to my house at seven o’clock, and I was able to skim through it before Benny arrived to drive us to the restaurant. The fireworks didn’t erupt until the afternoon portion of the deposition. Kimberly spent most of the morning of this, the thirteent
h day of Ruth Alpert’s deposition, asking questions that she had already asked her in prior sessions of the deposition, which merely confirmed what I already knew was their strategy, namely, to harass and demoralize my client. During the morning session, Benny behaved better than I would have. But midway through the afternoon session, his patience ran out. Fortunately, though, his savvy did not. As a result, he was able to get Kimberly completely flustered while sounding, at least in the black and white of the transcript, like Miss Manners, his sarcasm quite literally invisible. In passage after passage, Benny came off so polite that Kimberly began to sound clinically unbalanced. Typical was this one at page 184:

  MS. HOWARD: At the time that you first saw this bid announcement, which has previously been marked Defendant’s Deposition Exhibit 429, had your duties and responsibilities changed in any respect?

  MR. GOLDBERG: Bravo, Kimberly. That is what I call an excellent question. Getting right to the heart of the matter, eh? Allow me to commend you.

  MS. HOWARD: That’s it. That was totally unjustified.

  MR. GOLDBERG: My goodness, Kimberly, I merely meant to express my admiration for your estimable talents as an interrogator. You are a veritable heat-seeking missile at a deposition.

  Ms. HOWARD: Stop it. You hear me? Stop it. Stop it. Just stop it.

  Benny shook his head as he reached for his beer, his smile fading. “What a sanctimonious bitch. I hope you kick her ass.”

  ***

  Jonathan arrived around nine-thirty and the three of us moved to a booth near the bar. When Benny got up to go to the restroom thirty minutes later, I leaned across the table and gave Jonathan a kiss.

  “I have a wonderful idea,” I whispered, nibbling on his lower lip.

  “Oh?”

  I sat back and eyed him with a naughty expression as I slipped off my right shoe under the table. “Tonight you could pretend that you’re a reform Jew,” I said, “and you could take me home and ravish me until dawn.” I slid my stockinged foot up his leg and along his thigh.

  He smiled as he reached under the table to give my foot a gentle squeeze. “Reform Judaism has never seemed more enticing.”

  Benny returned at that very moment, of course. I banged my knee under the table pulling back my foot. Benny gave me a curious look and then, as it clicked, he tried to conceal a leer.

  In the awkward moment of silence I glanced over at the television above the bar. The ten o’clock news. Footage of the Missouri governor signing a piece of legislation. I watched idly, sipping my white wine. From the governor it was back to a pair of grinning anchors who couldn’t contain their mirth as they introduced the next story: a snowboarding standard poodle.

  “What dreck,” Benny said as we watched the poor pooch, strapped to a snowboard, skid down the slope with a look of pure dread.

  Back to the male anchor, chortling with amusement. Then he paused, wrinkling his brows gravely. Time for a serious story. He said something to his co-anchor, a fortyish woman with brown shoulder-length hair. She shook her head somberly and then looked toward the camera, which pulled back to reveal a display terminal in the background above her shoulder. The terminal had a color shot of a man wearing a green beret standing on the courthouse steps.

  “Hey,” Benny said, “isn’t that whatshisname?”

  “It is,” I said, getting to my feet and moving toward the bar to hear. Benny and Jonathan joined me.

  “…on the steps of the Old Courthouse in downtown St. Louis,” the anchorwoman was saying.

  The screen shifted to a videotape of Bishop Kurt Robb. He was dressed in his white clergy robe, tinted horn-rims, and green beret. He was holding up a cardboard poster that appeared to be a blowup of a court document. The word “indictment” was clearly legible at the top of the poster.

  The anchorwoman continued in voice-over. “Claiming to speak on behalf of all Americans of Aryan descent, Bishop Robb announced a people’s indictment of Missouri’s governor, lieutenant governor, and attorney general.”

  “Gentlemen,” Robb was saying, “you have exactly thirty days to resign. Otherwise, we will commence our grand jury inquest as the true representatives of the Aryan citizens of this great state.”

  Back to the reporter, a still photo of the governor over her shoulder. “A spokesperson for the governor denounced the charges as, quote, ‘a cheap publicity stunt by a fascist thug.’”

  The screen shifted to stock footage of Missouri attorney general Bob Simmons walking down a hallway. The anchorwoman continued in voice-over. “Sources within the Attorney General’s office confirmed that Robb and other leaders of Spider, a white supremacist group headquartered in St. Louis, are the subject of an ongoing criminal investigation.” Back to the anchorwoman. “That investigation is headed by St. Louis attorney Jonathan Wolf, a former federal prosecutor who has been appointed a special assistant attorney general on the matter.”

  I glanced over at Jonathan, who was watching the screen intently.

  “Although Attorney Wolf was unavailable for comment,” the anchorwoman continued, “Bishop Robb had plenty to say.”

  Back to a full-screen video of Robb, who was shaking his head sadly. “It’s a pitiful state of affairs when the chief law enforcement official in this state has to send his dirty work out to a lawyer wearing a beanie. It kind of makes you wonder who’s really calling the shots down there in Jeff City? Our elected officials or these so-called special assistants lurking in the shadows? That’s the real mystery here.”

  Back to the anchorwoman, who frowned seriously and turned to her cohort, who joined her in an instant of solemnity. “Thank you, Sharon,” he said. Turning to face the camera, he paused a beat and then immediately perked up. “Well, you won’t have to call tomorrow’s weather a mystery. In a moment, we’ll be back with Big Bob Buckles and his Döppler RadarWatch Weather Update.”

  ***

  I don’t care,” I said, still furious. “That’s outrageous.”

  Jonathan reached across the seat and squeezed my shoulder. “It’s okay.”

  We were in his car in front of my house. He’d driven me home from the restaurant.

  “’A lawyer wearing a beanie’?” I repeated. “I’m so angry I can’t see straight.”

  “Rachel, that’s just phony bravado. Robb is worried. We’re tightening the vise, and he’s starting to feel the pressure. Now tell me about Memphis.”

  I explained my Eagle Engineering subpoena gambit.

  “You might get lucky,” he said.

  “I sure hope so. I’ve got Conrad Beckman’s deposition Friday afternoon. If I find something juicy in Memphis, I might spring it on him at the deposition.”

  Jonathan grinned. “How do you think Kimberly will react?”

  I shrugged. “I’m not ruling out the possibility of spontaneous combustion.”

  Jonathan laughed. “When do you and Benny leave?”

  “Tomorrow afternoon. It’s about a five-hour drive.” I smiled. “Benny’s totally pumped.”

  Jonathan gave me a puzzled look. “About reviewing documents?”

  “Benny?” I said with a laugh. “No way. Memphis means two cherished things to him: Elvis and barbecue.”

  “Barbecue?”

  “I forgot,” I said, “you poor yeshiva boys don’t know from barbecue. Benny’s a zealot. He’s even compiled a computer data bank on barbecue restaurants around the country.” I sighed and shook my head. “And he’s driving me crazy. Memphis is unexplored territory for him, which means he’s been spending hours sifting through his materials and talking to others on the Internet to find the best spots. I told him we’re only having barbecue twice down there.” I groaned. “He’s already called me three times to go over his choices.”

  Jonathan chuckled and took my hands in his. “Good luck down there, Rachel. Call me tomorrow night.”

  We kissed—a gentle, linge
ring kiss.

  Lovely, I said to myself as I floated up the walk to my front door.

  Chapter Nine

  “We’ll see how much time we have, Benny,” I said, raising a hand to calm him down. “No promises.”

  The light turned red up ahead and I slowed to a stop. It was Thursday morning. We were driving through a run-down warehouse district south of downtown Memphis somewhere near the Mississippi River. According to the directions, we were just a few blocks from the Eagle Engineering warehouse. I peered out the window, trying to find a street sign.

  “Come on, Rachel,” Benny whined. “We got to make the time. We’re not talking mere mortal here. We’re talking ‘Heartbreak Hotel.’ We’re talking ‘Jailhouse Rock.’ We’re talking about a guy whose idea of heaven was watching a pillow fight between teenage girls in white panties, whose idea of a gourmet treat was a fried peanut butter and banana sandwich. We’re talking about a guy who died on the crapper twenty years ago but still gets spotted two or three times a year scarfing Ding Dongs and Big Slurps at 7-Elevens in rural Michigan. You realize what kind of a guy we’re talking about?”

  I looked over at him and nodded. “A total loser.”

  “A loser?! My God, Rachel! We’re talking about the King.”

  The light turned green. “Yeah, right,” I said, pulling into the intersection.

  “Okay, big shot, name me one other rock ‘n’ roll singer from that era—just one—who could hold a candle to Elvis.”

  “One?” I slowed the car and gave him a look. “How about, let’s see, five?”

  “Five?” He burst into laughter. “No way.”

  “Chuck Berry, James Brown, Sam Cook, Ray Charles, Stevie Wonder.”

  That shut him up for the rest of the ride.

  “Here we are,” I said, pulling the car into a spot across the street.

  The faded Roman lettering etched in the grimy slab of granite high above the door read EAGLE ENGINEERING CO.—CENTRAL WAREHOUSE. The sign looked like it dated back to the company’s founding in 1938. So did the building. It was your basic two-story, redbrick, tar-paper-roof Depression-era structure. No windows on the first floor, and those translucent pebble-glass windows on the second floor—the kind that open not by sliding up but by tilting out on a chain. There was a buzzer and an intercom box next to the heavy metal door.