The Justice Game

by Randy Singer

  His conclusion: “A careful cost-benefit analysis suggests we should continue selling guns to all licensed and qualified dealers.”

  Melissa Davids had hand-scratched her response across the top of the memo: “No kidding. Whatever happened to free enterprise?”

  It was the kind of memo that Kelly Starling would love to wave around during her closing argument, arguing that MD Firearms cared only about profits, not the lives of innocent victims like Rachel Crawford. Jason intended to make sure that she never got that opportunity.

  As part of pretrial discovery, Kelly had made an official request for all relevant documents possessed by MD Firearms. But Jason had withheld Case’s memo.

  In doing so, he knew he was on shaky legal ground. On its face, the memo contained legal advice and was therefore covered by the attorney-client privilege. But when Jason talked to Case McAllister about the memo, he learned that Davids had actually forwarded the document by e-mail to the CEO of another gun manufacturer who was facing the same decision.

  “Twice a year, some of the executives of the biggest gun companies get together and talk about issues of mutual concern,” Case had explained. “One of the ongoing issues, of course, was the litigation filed by the cities. Another CEO was seriously considering shutting off sales to renegade dealers. Melissa was determined to talk him out of it and sent him the memo without checking with me first.”

  By providing the memo to a person outside the company, Davids had arguably waived the attorney-client privilege. But that wasn’t the end of the analysis. Jason’s research had turned up a possible justification for still withholding it from Kelly Starling—something called “joint defense doctrine.” If two companies were both targets of a lawsuit and conducting a “joint defense,” they could arguably share documents without waiving the attorney-client privilege. It was a stretch, but the doctrine at least gave Jason a good faith reason to keep the memo from seeing the light of day.

  Still, it made him uncomfortable when Davids pretended to know so little about the sales patterns of these dealers.

  Kelly Starling slid a nineteen-page spreadsheet in front of the witness and provided Jason with a copy. Even though Jason hadn’t produced the Case McAllister memo, Kelly had apparently done her own homework.

  “This is a spreadsheet containing information about guns traced to crimes in the cities that filed lawsuits and the stores that sold the guns,” Kelly said. “In 2006 alone, 251 guns bought from Peninsula Arms were linked to murders or aggravated woundings in these four cities. None of those guns was used by its original owner. Only one other dealer had a greater number of guns involved. Did it ever occur to you that maybe you should discontinue selling guns to Peninsula Arms and this other dealer, Brachman’s Gun Shop, based on their obvious involvement with gun traffickers?”

  “I told you—it’s not our job to monitor gun dealers.”

  Kelly snorted at the blow-off answer. “That’s not my question. Did you ever consider whether you should stop selling guns to Peninsula Arms?”

  “No,” Davids said. “If anybody had suggested such a thing to me, I would have told them I still believed in the Second Amendment and the free enterprise system.”

  Because he knew about the McAllister memo, this answer really made Jason squirm. Davids had phrased her answer in hypothetical terms, so she technically wasn’t lying. But the answer was not the whole truth, either.

  Kelly made a few notes on her legal pad, as if she knew she was getting warm but couldn’t quite figure out what she was missing. “Even though you knew Peninsula Arms had been cited for straw purchases three separate times by the ATF, had engaged in straw sales with undercover agents from New York City, and was linked to over 200 guns in one year used in crimes by unregistered owners, you didn’t think you had any responsibility to cut them off?”

  Davids didn’t blink. “Let me put it to you this way,” she said. “If you came into a car dealership with three DUIs, do you think that car dealership is going to sell you the car?” She didn’t pause long enough for Kelly to answer. “Of course they are. And when you kill somebody on your fourth DUI, you know whose fault that is? The government’s, that’s who. They’re the ones that should have put your sorry butt in jail the third time. It’s not the car dealer’s fault. It’s not their job to regulate your conduct.”

  Kelly Starling made a face, as if kicking herself for asking one too many questions. But she was committed to this line of questioning now. “Let’s try a different analogy, Ms. Davids. If you’re a bartender and your patron has already had one too many drinks and he’s searching his pockets for his car keys, you think you can just sell him another beer and not worry about it?”

  For the first time all day, Melissa Davids smiled at Kelly. “Perfect example. Maybe the accident victim could sue the drunk driver. And maybe the accident victim could sue the tavern that gave him another drink. But you don’t get to sue Anheuser-Busch.”

  * * *

  After the deposition, Jason drove Case McAllister and Melissa Davids to the airport. They had just enough time to check their guns through baggage and make the flight.

  “Good job today,” Jason said.

  “Don’t give her a big head,” Case warned.

  Davids smirked. “It must have been all the practice.”

  44

  Jason showed up at his new office on Tuesday in jeans and an old sweatshirt. He left his winter jacket on for the first hour while the space heated up. He had leased the second floor of a nondescript brick building on Laskin Road about a mile from the beach. The first floor housed an insurance agent and a mortgage broker. There was adequate parking, the building was fairly new, and the marquee out front now displayed Jason Noble, Attorney at Law in the third slot from the top.

  The office furniture arrived just before noon—two hours late—and Jason directed its placement while simultaneously meeting with representatives from the phone company and broadband provider. By 2 p.m., he had moved most of his legal files from his truck to the floor of his office, just in time to start the five back-to-back interviews he had scheduled.

  The week before, Jason had placed want ads for a legal assistant in the bar association newsletter and local paper. Of the first three candidates, only one had any legal experience, and that was twelve years of real estate closings. One of the three candidates tried way too hard, giggling incessantly, the second had the personality of a tree stump, and the third, the one with real estate experience, spent too much time asking about disability, sick leave, and personal days. “I can’t work weekends or evenings,” she said, as if the job were already hers.

  You won’t have to worry about that, Jason thought.

  The fourth candidate, Tami Pershing, walked off the cover of Runway magazine and into Jason’s small conference room, rendering him speechless. She wore a short skirt and tight-fitting sweater and looked Jason right in the eye when they shook hands. Even factoring in the heels, she must have been nearly six feet tall.

  Tami had an associate’s degree and had just moved to Virginia Beach, she explained. She had no legal experience but Jason immediately began downplaying that factor. “Join the club,” he joked. “We can learn together.”

  The practice of law, Jason knew, was grueling. Having someone like Tami in the office would give him some incentive to get there early. Plus, male clients wouldn’t mind waiting a few extra minutes in the reception area.

  He got Tami’s basic information—experience as an assistant, typing speed, computer skills, etc. She didn’t have any of the fatal personality flaws of the earlier applicants—and even if she did, Jason was now grading on a curve, so to speak.

  “What brings you to Virginia Beach?” Jason asked.

  “My boyfriend’s a fighter pilot,” Tami responded. “He just got stationed at Oceana.”

  It wasn’t exactly the response Jason would have scripted, but as a lawyer, he was used to looking for loopholes. Boyfriend, she had said. Not fiancé or husband. She wasn’
t wearing an engagement ring. And she hadn’t automatically dismissed working nights and weekends. He wouldn’t try to break up a solid relationship, but sometimes things just happened.

  Tami’s forty-five minutes seemed to go much faster than the previous applicants, confirming that she was the best choice so far. They were talking about how much they both liked the beach and how they couldn’t wait for the weather to warm up when they were interrupted by the next applicant.

  A short lady, heavyset with thinning blonde hair and hound-dog eyes, peeked around the corner of the conference room door that Jason had left open. “I’m Bella Harper,” she said in an Brooklyn accent that sounded like something from My Cousin Vinny. “I was supposed to meet with Jason Noble.”

  “That’s me,” Jason said. “Have a seat in the reception area; we’ll be done in just a minute.”

  Five minutes later, Jason and Tami wrapped it up. Jason escorted her out to the reception area, introduced Tami to Bella, and was struck by the contrast. Tami handled herself with the elegance of a model—straight posture, easy smile, a “nice to meet you” greeting. She towered over Bella, who was slump-shouldered and stiff in her movements, her reading glasses hanging from a lanyard around her neck.

  “Good thing these aren’t volleyball tryouts,” Bella joked.

  Tami gave her a quizzical expression and a curious smile. Then Jason saw a glint of mischief in Tami’s eyes. “Oh,” she said, her face reflecting surprise. “You thought I was interviewing to be Jason’s assistant.”

  Jason watched Bella, who seemed to have lost a little of her color.

  “He’s my boyfriend,” Tami said.

  Before Jason knew what was happening, Tami reached over and squeezed Jason’s arm. “See you later, honey,” she said, and gave Jason a quick peck on the cheek.

  “Okay, thanks,” Jason said, reddening. “See you tonight.”

  He turned to Bella Harper, who was looking at him with a curious expression. “Let’s talk in my conference room,” Jason said.

  His BlackBerry buzzed, and the number on the screen belonged to Andrew Lassiter. “Give me just a minute,” Jason said to Bella. He answered the phone and wandered down the hall to his new office, closing the door behind him.

  He wanted to get Lassiter involved in the Crawford case as early as possible. They had already negotiated a consulting agreement. “Can you come to Virginia Beach and watch the video of Melissa Davids’s deposition?” Jason asked. “She’s a little difficult to coach. It might help get her attention for trial prep if we could show her the reactions of a few Virginia Beach focus groups.”

  * * *

  Jason had intended to make it a quick interview, but Bella wasn’t cooperating. She had nearly thirty years’ experience as a legal assistant, knew about all the courts and procedures in the Hampton Roads area, possessed superior typing and filing skills, and even knew how to keep the financial records required for trust accounts and operating expenses. “Mr. Carson didn’t need to hire a bookkeeper for the first five years,” she said proudly.

  It would be nice, Jason thought, to hire Tami as a receptionist and let Bella to do the grunt work. But he couldn’t afford two staff members just yet.

  He studied Bella’s résumé. She had jumped around when she first entered the workforce, but the last twenty years had all been at one firm. “Why did you leave Carson and Associates?” Jason asked.

  “Brad Carson is probably the best lawyer in this area,” Bella said defensively, as if Jason had just insulted the man’s character. Her face changed expressions, and Jason thought he noticed her get a little misty-eyed. “I was with him when he started. But lately, well… um, to be honest, he brought in a hotshot young lawyer who thinks she’s God’s gift to the legal profession, and, well, we just fought constantly, and I finally decided it was time for one of us to move on.”

  “Does he know you’re interviewing?” Jason inquired.

  “No. He’d probably try to talk me into coming back. He’s very persuasive, and I love him like a son, but I… well, you know.”

  Jason didn’t know, but figured he probably shouldn’t probe any deeper. Bella had about thirty years on Tami in the experience department. But Bella was brusque and seemed to be a little emotional. And Tami had already proven herself to be pretty quick-witted.

  “Thanks for coming in and meeting with me today,” Jason said. “I’m going to take a couple of days to think about this and then get back in touch with everyone.”

  Bella didn’t move.

  “Should be no later than Thursday or Friday,” Jason said, standing. “Should I use this e-mail that’s on your résumé?”

  “Can I be frank?” Bella asked.

  Jason gave her a twist of the head, a nonverbal cue that the answer was no. But what came out of his mouth was, “Sure.”

  “You do a lousy interview, Mr. Noble. But then again, there are lots of questions you probably can’t ask without getting sued.”

  Jason stiffened. At least she was making his choice easy. The last thing he needed to deal with every day was a brash New Yorker.

  “I’m single,” Bella said. “I work weekends and nights. I might complain about it, because that’s what I do, but I really don’t even mind getting your dry cleaning.

  “You seem like a nice young man and probably need somebody in the office to play the bad cop. That just happens to be my specialty. That, and collecting fees. With all due modesty, if it wasn’t for yours truly, Brad Carson would have been bankrupt about three times over by now.”

  Jason stared for a moment and, sensing she wasn’t done with her sales pitch, sat back down.

  “You just moved here from Richmond, right?” Bella asked.

  “Right.”

  “Ever spent much time in Florida?”

  Though he wasn’t used to the interviewees asking the questions, Jason decided to play along. “Not really.”

  “Didn’t think so.” Bella leaned forward. “Your… girlfriend—” Bella made quote marks with her fingers—“drove away in a car with Florida plates. I watched out the window while you were back in your office on the phone because I had my suspicions. Now, she’s obviously pretty clever, and she’s got other… assets that I don’t have, but what does she know about client trust accounts and generally accepted accounting principles and drafting pretrial orders for Virginia Beach Circuit Court?”

  Now it was Jason’s turn to be a little embarrassed. He gave Bella a tight-lipped and sheepish smile. Busted.

  “Plus,” Bella said, “you’ve got to wonder whether a girl who dresses like that knows anything about guns and the Second Amendment.” She glanced around and lowered her voice. “I’m packing,” she said conspiratorially. “It’s not one of MD Firearms’s guns, but I’ve got a concealed carry.”

  Jason wasn’t really sure how that struck him. Something about the idea of the firm secretary carting around a gun in her handbag was a little unsettling.

  Bella bent over and reached into her massive handbag. “Don’t worry,” she said. “I’m not going for the gun.”

  She pulled out two manila folder files and placed them on the table. The first one was labeled “research” and the other “deposition summary.”

  “I took the liberty of pulling a few Virginia cases on issues like superseding cause and the definition of ‘aiding and abetting,’ since that’s the language of the exception to the Protection of Lawful Commerce in Arms Act,” Bella explained. “This second folder is a deposition summary with page citations for Melissa Davids’s deposition yesterday. I know the court reporter. She sent me a digital file.”

  Jason knew it was important to have depositions accurately summarized so that the lawyers could have easy access to a witness’s prior testimony. Summarizing a six-hour deposition could easily take three hours or more.

  He leafed through the folders. “Impressive,” he said.

  “Now,” Bella said, “can we talk health plans?”

  A fleeting image of Tami Pershing
made one last dramatic run through Jason’s mind. It was tempting, but he had a duty to his clients. With Bella in the office, there would be no distractions, no office romance, no drama. The thought of it made him a little melancholy.

  “When can you start?” Jason asked.

  45

  Kelly slept very little on Tuesday night. On Wednesday morning, she spent a little extra time on makeup, lipstick, accessories, and what she should wear, but still she was unable to remove all evidence of the dark circles that had formed under her eyes. After three outfit changes, appraising herself in the mirror each time, she settled on a modest gray suit and matching silver earrings. She chastised herself for caring at all about how she looked. When was the last time she had stressed out this much over which outfit to wear?

  It seemed fitting that the day was one of the coldest and windiest of the entire D.C. winter. Banks of clouds blocked a sun that seemed to have lost all its heat in those rare moments when it did break free.

  Kelly’s car was parked nearly a block from her apartment—the price of getting home late from the office the night before. She buttoned the top button on her overcoat and pulled up the collar, but her face still stung from the biting wind by the time she reached the shelter of her Toyota.

  She arrived at the federal courthouse about fifteen minutes early, carrying a thin briefcase as if she had an important motion to argue. She slid into the last row of benches in Judge Shaver’s courtroom and watched him preside over a discovery dispute between two experienced litigators. His eyes caught hers momentarily, a greeting so subtle it would have been lost on anyone else, and then he turned his attention back to the proceedings.