Ben and Christina sat patiently at the plaintiffs" table while Charlton Colby entered the courtroom—with his entourage.
“Is my math impaired,” Christina whispered, “or does he have four other attorneys with him?”
Ben nodded. “One junior partner and three associates. And two legal assistants to boot.”
“Is this supposed to intimidate us?”
“What do you think?” He craned his neck. “Is Loving ready?”
“Just like you told him.”
“Good.” Ben watched as Colby’s group surrounded the defendants" table. With their intense expressions, they looked like Pentagon staffers huddled together in the war room. Almost as an afterthought, Colby broke from the pack and strolled casually toward Ben and Christina.
“Good to see you again, Ben.”
“Wish I could say the same,” Ben replied. “But I can’t.”
“Now, now, Ben. Let’s not take this personally.”
“I do take it personally. You’ve impugned my reputation.”
He shrugged casually. “It’s all part of the job.”
“Maybe your job. Not mine.” Ben rose to his feet. “I’ve managed to handle something like a hundred lawsuits over the past few years, and I’ve never once resorted to your kind of tactics.”
“Which is why you’re still a solo practitioner who has to represent whatever walks in the door.”
“While you work in a penthouse representing blue-chip clients who don’t care what you do as long as you win?”
Colby tilted his head. “Clients like results.”
“And so you’ve developed your rep as the king of bare-knuckle litigation. You call out the attack dogs every time some big corporation has a plaintiff they want to screw.”
“Jealous, Ben?” A smile crossed his face. “From what I hear, you could take a few tips from my playbook.”
“I’d sooner starve.”
“I suppose that is the alternative.” His eyes narrowed. “Particularly if you continue to pursue this case.”
Ben felt his neck stiffening. “Did you have some reason for coming over here?”
“Yes. Against my better judgment, my client has instructed me to make you an offer. Five thousand dollars per child. Take it or leave it. It won’t be offered again.”
“Five thousand dollars? These people have lost their children! What kind of settlement offer is that?”
“It isn’t a settlement offer. It’s go-away money. Your clients" loss is quite sad, but Blaylock bears no responsibility for it. We are, however, willing to pay a small sum to avoid the cost of litigation.”
“Oh, I bet that’s a big concern for you. What are you and your four helpers billing Blaylock? About a thousand bucks an hour?”
“That, of course, is none of your concern.”
“It’s certainly Blaylock’s concern. Is that him?” Ben pointed toward an elderly gentleman sitting in the front row of the gallery. He was immaculately tailored in a blue pinstriped suit.
“It is.”
Ben took a step forward. “I wouldn’t mind meeting him.”
Colby closed him off. “He doesn’t want to meet you. Do you accept our offer or not?”
“Not. Big-time not.”
Colby pivoted, his expression unchanged. “That is a decision you will live to regret.”
About five minutes later, Judge Perry entered the courtroom. Ben had never known him to be particularly cheery, but today his expression was positively grim. He was middle-aged, around fifty, Ben guessed. Handsome for his age, with an ample shock of black hair and a strong face that had grown craggy without seeming wrinkled. Everything about him—his bearing, his voice, his appearance—gave an impression of strength. And, on this occasion, extreme intolerance.
“First of all,” he said, “I want the parties to know I’ve read the pleadings and the Motion and Brief, so don’t feel like you have to rehash anything therein. Second of all, I want the parties to know that although I am not in any way prejudging the present case or motion, my tolerance level for frivolous lawsuits is absolutely zero. The courts calendar is vastly overloaded. Legitimate litigants often have to wait years to get to trial, in no small part because unscrupulous lawyers accept clients" money to file lawsuits that are absolutely without merit. Whether they do it out of greed or mere stupidity I don’t know, and it makes no difference. It’s a drain on the taxpayer and this court and I will not tolerate it. If I find that this or any other suit is without merit, I will not hesitate to dismiss it, and furthermore, will take severe action against the lawyer who filed it with the harshest possible sanction.”
Ben felt the color drain from his face. Well, this was certainly encouraging.
“Mr. Colby, I believe this is your motion. Take the podium.”
“Yes, sir.” Colby launched into a long harangue that, despite the judge’s instructions, mostly rehashed what he had already written in his brief. He talked about how the plaintiffs" suit was entirely frivolous, that even granted the most favorable interpretation of the facts, the plaintiffs did not state a claim upon which relief could be granted. He finished with a long-winded windup about the importance of stamping out frivolous suits, which managed to borrow key words and even entire phrases from the judge’s earlier diatribe on the same subject. Ben could only marvel. Colby was nothing if not slick.
“Excuse me, counsel,” the judge interrupted, “are you suggesting the plaintiffs failed to conduct a reasonable investigation prior to filing their claims?”
“Yes, sir, that’s correct.”
“Then I’d like you to address that issue. And please present any evidence you have.”
“That puts me in a bit of a sticky situation, your honor. On the subject of what evidence the plaintiffs have to support their claims, the best witness is, of course, the plaintiffs" attorney. Therefore, as my first and only witness, I call Ben Kincaid to the stand.”
Ben jumped to his feet. “What kind of sleazy tactic is this?”
Judge Perry rapped his gavel hard. “Mr. Kincaid, I will not have that kind of language in my courtroom. You will treat opposing counsel with respect or you will be excused.”
“Your honor, I’ve had no notice that I would be called as a witness.”
“I don’t see why you need any time to prepare,” the judge responded. “You’re familiar with your own case, aren’t you?”
“Of course, your honor. But I can’t testify against my own clients. I’m the lawyer, not the witness.”
“Your honor,” Colby interjected, “who better knows what the basis for this suit might be?”
“Well, calling an opposing attorney to the stand is a bit irregular. Perhaps you could just describe your preliminary investigation to the court, Mr. Kincaid.”
“Why should I have to preview my case in advance of trial? Colby hasn’t previewed his for me.”
Judge Perry’s face was livid. “Counsel, you will comply with my request.”
Ben was beginning to flush himself. He knew he was standing on the edge of a slippery slope. If he let Colby get away with this one, there would be no stopping him. “Your honor, the Rules of Professional Conduct say that an attorney’s first and foremost duty is to zealously represent his clients. I intend to honor that duty. And I can’t square that with taking the stand to testify against them or giving opposing counsel an advance look at our case.”
Judge Perry rose to his full height. He jabbed his gavel in Ben’s direction. “I’m going to assume you didn’t understand me, counsel, so I’m going to explain it one more time. I’m a federal judge. I have the full authority of the federal law enforcement community, including the ability to lock you up, to bar you from practicing in the federal courts, or to initiate disbarment proceedings, until such time as you comply with my order. You will do as I direct.”
Ben glanced over at Colby, who was standing calmly behind the podium, a smug expression on his face. This tactic was succeeding beyond his wildest dreams. Regardless
of the result, Judge Perry was already alienated against Ben. “No, sir. I can’t do that.”
Perry was so enraged he was beginning to shake. “Last chance, Mr. Kincaid.”
Ben squared himself. “I’m sorry, your honor. No.”
With a flourish worthy of a master magician, he withdrew a small metal corkscrew from his overcoat.
“I give you the humble corkscrew,” he said, holding it delicately between his fingers. “It doesn’t look like much. You wouldn’t run if you saw it coming. But in the right hands, it can be positively deadly. And best of all, painful.”
Maggie screamed, so hard her temples throbbed, so hard it was just barely, almost, audible. But it was not nearly enough. He turned on the television and turned up the volume, just in case she managed to muster more power when the actual torture began.
“I’ve made quite a study of anatomy, you know. It comes in handy in this line of work.” He grabbed the bottom of her blouse and literally ripped it off her body, tearing it at both ends till her bra and bare torso was exposed. He pressed his fingers against her bottom two ribs. “I know, for instance, that the doctors label these the Tl and T2 ribs. I also know that if I twist this corkscrew, slowly, between Tl and T2, it will not kill you. Not immediately. It will hurt like hell. It will likely puncture your lungs, which, if untreated, will of course kill you. But not right away. For the first several hours, all you’ll have is pain. Pain like none you’ve ever experienced in your life. Pain so intense you’ll wish you were dead. But you won’t be.”
He walked his fingers up her rib cage. “I’ll go left, right, left, right, working my way up, until I finally reach right here.” His fingers paused. “Here, I’ll point the corkscrew upward and pierce your heart. Then you really will die, although even then not as quickly as you’d like. And we won’t be there for hours. So let’s get back to the beginning.”
He pressed the tip of the corkscrew against the space between the first two ribs. She flinched, trying to pull away, but there was no escape.
“Here we go.”
She clenched her eyes shut, bracing herself against the pain she knew was about to follow.
“Oh my goodness. I forgot something.”
Her eyes popped open.
He punched her amiably on the shoulder. “I almost forgot. I’m supposed to give you a chance to tell me what I want to know. But can I tell you a secret?” He crouched down next to her ear and whispered. “I’m hoping you won’t. At least not at first. That would spoil all the fun.”
He grasped the edge of the tape covering her mouth. “Needless to say, if you even think about screaming, the tape will go down and I’ll just start drilling. Without mercy.”
He gave the tape a violent jerk. “So tell me, Maggie. Is the merchandise secure?”
Her lips trembled so she could barely speak. “I don’t know.” Her face was desperate and pleading. “It wasn’t me! I never had it!”
“Wrong answer.” He snapped the tape down. “Don’t worry. I’ll give you another chance. Sometime between T6 and T7.”
He pressed the metal tip of the corkscrew against the soft flesh covering her two bottommost ribs. Her gut-wrenching cries for help were almost completely muffled. The only person who heard them was the one who not only didn’t care, but rather enjoyed it.
“That was an order, Mr. Kincaid!” the judge bellowed. His voice boomed all the way up to the high-vaulted ceiling and reverberated back down again. “You will take the witness stand.”
“With regret, your honor, I must refuse.”
“Bailiff!” Judge Perry’s lips quivered. “Take Mr. Kincaid to a jail cell, where he will remain unless and until he decides to comply with my order.”
The bailiff was a burly, balding man who was obviously startled, since most days his only job was to keep himself from falling asleep. He strode hastily toward Ben.
Ben held up one hand. “Your honor, may I make a suggestion?”
“No!”
“The issue here is whether we have sufficient basis for filing a Complaint, right? And whether the Complaint is legally sufficient to state a claim? I can’t take the stand against my clients, but I can offer affirmative proof to support our position.”
“This is nonsense,” Colby interjected. “A ploy to delay the inevitable.”
“How can he know that?” Ben shot back. “He has no idea what we have or what we know.”
“I know he has no evidence against Blaylock. Because none exists.”
“What about the EPA report?” Ben replied.
Judge Perry appeared surprised. “There’s an EPA report?”
“Yes, your honor,” Ben continued. “A report on the contamination of the Blackwood water well. And it mentions H. P. Blaylock by name.”
Perry slowly lowered himself back into his seat. “That wasn’t mentioned in Mr. Colby’s brief.”
“It’s inconsequential,” Colby said, maintaining his calm demeanor. “Bureaucratic guesswork. All it says is that Blaylock is a possible contributor. It’s not even admissible.”
“The issue isn’t whether it’s admissible, your honor. It’s whether the plaintiffs have any reasonable basis for their claims.”
“There’s nothing reasonable about relying—”
“And what about the toxicology reports from the contaminated well? What about the geologists" report on the ravine running from Blaylock’s property? What about the information from the Centers for Disease Control on possible toxicological causes of leukemia? None of which Mr. Colby mentioned in his brief.”
Colby hesitated for a moment, and Ben thought he knew why. Colby hadn’t mentioned all this other evidence because he didn’t know about it. But he didn’t want to admit that to the judge.
“This is all bluff,” Colby said, eventually. “Bluff and bluster. If Mr. Kincaid really has all this evidence, let’s see it.”
“I was hoping you’d say that.” Ben motioned to Christina, who was standing at the back of the courtroom. She pushed open the back door. A moment later, Loving entered pushing a dolly loaded with four large bankers boxes.
He flashed Ben a next-round’s-on-me grin. “Where should I put it, Skipper?”
“Next to the table will be fine.” Ben turned back toward the judge. “This is the evidence we obtained from the EPA under the Freedom of Information Act,” Ben explained. “Before filing suit.” As soon as Loving deposited his load, he scurried back out of the courtroom for more.
“This is the information we obtained from the Centers for Disease Control,” Ben said, as Loving returned with another equally ample load. All eyes in the courtroom watched as Loving returned not once, not twice, but six more times, each time bringing in another load of bankers boxes. “This is the information we obtained from the Blackwood city engineer,” Ben explained. “This is what we got from the state health department.” By the time Loving was done, a mountain of evidence had piled up, so high Ben had to step in front of it just to be seen.
“That’s the evidence we’ve collected to date, your honor.” Ben leaned gently against the Everest of evidence. “And we haven’t even entered the discovery phase yet.”
Judge Perry swiveled. “Do you have a response, Mr. Colby?”
Colby cleared his throat. “I, uh, was not … aware of this additional evidence.”
Judge Perry nodded. “Which suggests to me that this Motion may have been premature. Now don’t misunderstand me.” He turned back to Ben, a stern expression on his face. “I am not in any way saying I believe the plaintiffs will prevail. It appears to me, based upon my review of the pleadings, that the plaintiffs have a very difficult causation problem, and if that is not addressed to the court’s satisfaction, I will not hesitate to dismiss this case. Before it goes to a jury. But to dismiss now, before formal discovery has taken place, would not be appropriate. Defendant’s motion is denied.” Judge Perry rapped his gavel, then left the courtroom.
Ben glanced over at Colby. He was not smiling. Colby had not on
ly lost the motion—he’d been embarrassed in front of his megabucks client. Hard to explain why you’re billing someone a thousand bucks an hour to get creamed in court.
He felt Christina’s hand on his shoulder. “Congratulations, champ. You must be ecstatic. You won the motion.”
“I’m ecstatic not to be spending the night in jail.”
She grinned. “That was a pretty good gimmick, having Loving haul in all those boxes. Did you learn that in law school?”
Ben shook his head. “Miracle on 34th Street.”
Christina laughed, then moved to the back of the courtroom and sidled up beside Loving. “Nice work, Loving.”
The big man shrugged. “Just followin" orders.”
“Uh-huh. Thing is—I was back at the office when we were packing up all this stuff, and I don’t remember there being quite so many boxes.”
“Well … don’t tell the Skipper, but …” Loving glanced over his shoulder, making certain no one else was listening, then winked. “Half of them are empty.”
Strike two! Damn!
Calm soul though he was, this was getting irritating.
Maggie wasn’t the one. He had held out high hopes; she had always been a little too clever for her own good.
But it wasn’t her. She didn’t have the merchandise. He was certain. Frankly, he thought she would’ve spilled all before he even started, but certainly by the time he pressed the corkscrew between T3 and T4, she would’ve sold her mother into white slavery if it would’ve stopped the torture. She wasn’t capable of lying at that point. No one would be.
She didn’t have it.
Well, two down, two to go. But good as he was, he had to assume the police were looking for him, and the search would intensify as soon as Maggie turned up looking like a slice of Swiss cheese. He had tried to make this murder distinctive, to create a different M.O., but he feared two torture-murders in the same area in so short a time—no matter how different—would attract attention. He needed to do something to prevent that cop in the grungy raincoat from putting two and two together as long as possible.
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