[2013] Consequential Damages

by Joseph Hayes

  Jake spoke up. “Your Honor, I am renewing my motion to call Kenny Oliver as a witness. He’s the person who will testify that Mr. Black encouraged him to be untruthful in another trial. You denied my motion previously on the grounds that there was no similar issue in this case. Now there is.”

  Rick looked like he wanted to strangle Jake. “You've already ruled on that, Your Honor. It’s much too late in the game to be adding new witnesses. It’s a blatant attempt to make me look bad in the eyes of the jury. That story is false and malicious, and it would have a prejudicial effect on these proceedings. Moreover, it simply has no relevance to the issues in this case.”

  “To the contrary, Your Honor, this is highly relevant,” Jake argued. “Mr. Kraft’s testimony is critically important in this trial. The jury must decide which of his stories is true. Today he’s claiming that his deposition testimony was false and encouraged by Mr. Black. Mr. Oliver will testify that he had almost the exact same experience with Mr. Black. The jury needs to hear that in order to fairly evaluate Mr. Kraft’s testimony.”

  Rick jumped to his feet. “Your Honor, if Mr. Oliver is allowed to testify, I will move for a mistrial. Whatever relevance that testimony may have is outweighed by the prejudicial effect it will have upon the jury. I’m not on trial here. USH is.”

  Judge Trainor looked gravely at Rick. “Mr. Black, I too am concerned about the prejudicial effect this may have on the jury. I am equally concerned about the substance of this testimony. But I cannot deny the relevance. We will hear Mr. Oliver’s testimony. After that, you may move for a mistrial if you wish. I may declare a mistrial on my own, but we will hear the testimony. It is relevant. And we will hear this witness before we hear any others. How soon can you produce him, Mr. McShane?”

  “I’ll try to reach him immediately, Your Honor. Perhaps he can be here as early as this afternoon.”

  “With all due respect, Your Honor, I’ll need time to prepare for this witness,” Rick said.

  Judge Trainor became impatient. “I will not delay this trial any further. How much time could you possibly need, Mr. Black? If what he’s saying is true, then you already know what happened. If it’s not, then there won’t be much to talk about, will there? See if you can reach him, Mr. McShane. If he’s available, we will adjourn for the afternoon and resume tomorrow at nine o’clock. That gives you the rest of today to prepare.”

  Jake telephoned Kenny Oliver at home, and he answered on the first ring.

  The next morning, the courtroom was filled to capacity by eight thirty. Legions of media types who arrived too late to find a seat in the courtroom milled about the corridors just outside. The place was abuzz with rumors and speculation and a clear sense that something dramatic was imminent.

  At five minutes after nine, Kenny Oliver was sworn in. Before Jake asked the first question, Rick stood up. “For the record, Your Honor, I renew my objection to this witness, on the grounds of relevancy and prejudice.”

  “Your objection is duly noted, Mr. Black—and overruled. You may proceed, Mr. McShane,” said Judge Trainor.

  Jake approached the witness stand. He dispensed with the customary background questions and got right to the point. “Mr. Oliver, did you previously testify in another trial where Mr. Black acted as legal counsel?”

  “Yes.”

  “Tell us about that case, please.”

  “Well, this friend of mine, Larry Doyle, filed a lawsuit against the grocery store where we both worked. He claimed the owner sexually harassed him and then fired him when he wouldn’t go along. Mr. Black was Larry’s attorney.”

  “And what was the nature of your involvement?”

  “Larry was afraid he might lose the case. He didn’t have any evidence to back up his story. That’s because it was all bullshit … uh, I mean nonsense … he just made it up. So all he had was just his word against the boss’s. I met with Larry at a bar one night. He told me that he had a chance of winning a huge pile of money in this lawsuit, but he needed a little help to make this a sure thing. He said his lawyer told him to find another witness who could make the boss look like a real scumbag.”

  Rick jumped to his feet. “Objection! That’s hearsay.”

  “Sustained,” Judge Trainor pronounced. “The jury will disregard the witness’s statement about the content of any conversation between Mr. Black and Mr. Doyle. You may proceed, Mr. McShane.”

  “So what happened next, Mr. Oliver?”

  “Me and Larry talked about some possible ideas for a story. We finally agreed that I’d tell a story about how the boss was stealing from some of the old ladies we delivered groceries to. We agreed that we’d go talk to his lawyer the next day.”

  “What happened then?”

  “I chickened out. The next day, it just seemed like bar talk, you know, something guys would scheme about over a few beers, but never actually follow through with. I told Larry that the plan was crazy. Those things never happened and I couldn’t just make up a story like that and expect a jury to believe it. Besides, it just didn’t feel right.”

  “How did Larry respond?”

  “He got really pissed … uh, excuse me … angry. He said I could make more money from this case than I would earn in five years. He said I shouldn’t worry about the story. He had a lawyer that would help us turn this into a very believable story. He said his lawyer was really good, and he wasn’t one to let the facts get in the way when there was a lot of money to be made.”

  “Objection!” Rick yelled again.

  “Overruled,” Judge Trainor replied.

  “Then what happened?”

  “I still didn’t want to do it. Then I got a call from Mr. Black. He said he just wanted to talk. Just talk, that’s all. So I went to see him. He said that if I were to testify, and tell the story that me and Larry talked about, there would be easy money, and lots of it. He told me I could be so much more than just a delivery boy in a grocery store. He told me it was insulting, how little they paid me. If I had a story to tell, this could be my ticket to a new life.”

  “And what was your reaction?”

  “I started thinking about my dead-end job, and feeling bad about my situation. I began warming up to the idea. He really made it sound like it was something I should do, like I owed it to myself. But I told him I didn’t have any evidence, so why would anyone believe me?”

  “And what did Mr. Black say?”

  “He said, no problem, just go out and get the evidence. He said that if some valuables from the old ladies’ apartments wound up in the boss’s office and I had pictures, the jury would go crazy and we’d score big.”

  Rick was red-faced with rage, and on his feet again. “Objection, Your Honor! This is outrageous and ridiculous. It is a blatant character assassination that has nothing whatsoever to do with these proceedings. This witness should be excused and his testimony stricken from the record!”

  “Sit down, Mr. Black! Your objection is overruled. If you have issues with this testimony, you may bring them out in cross-examination.”

  “So then what happened?” Jake asked.

  “I took some jewelry and other things from some of the old ladies’ apartments and planted them in the boss’s office. Then I filmed them and brought the recording to Mr. Black. Before I gave it to him, I asked him how I was going to get paid. He said that he and Larry agreed that my cut would be ten percent of the jury verdict, but we had to be careful about how I got it. He said he couldn’t pay me directly for my testimony, and neither could Larry. So, what he would do would be to threaten a lawsuit against the store and the owner. I would quit, and the lawsuit would claim that I was constructively discharged, you know, forced to quit because my only other choice was to do something against the law. After the jury verdict came in, he would get the defendant, Mr. Quinn, to settle both cases. He’d make it worth Mr. Quinn’s while by agreeing to settle both my case and Larry’s for something less than the jury verdict. The settlement agreement would be confidential. We would neve
r actually have to file the lawsuit, so there would be no public record. And that’s how it played out. Mr. Quinn paid $2,000,000 to settle both cases. I got two hundred grand.”

  Jake looked at Rick, who fumed in silence. “I have just one more question, Mr. Oliver. Did Mr. Black, as your attorney, encourage you to provide false testimony in that case, and promise to reward you for doing so?”

  “That’s exactly what happened,” said the witness. “The whole idea about creating the evidence – actually stealing from the old ladies, and then filming it – that was his idea.”

  “Your witness,” Jake said to Rick, sitting down, his heart pounding at the implications of this testimony.

  Hostility and rage were etched into Rick’s face as he glared at Kenny Oliver from his seat. The courtroom was utterly silent. Every eye was riveted on Rick, as he rose and walked menacingly toward the witness, looking like he might strike him.

  “As I understand it, Mr. Oliver, you have just told this courtroom that you knowingly provided false testimony under oath, for your own personal gain, is that correct?”

  “That is correct, and I’m not proud of it.”

  “Of course you’re not. Committing fraud and perjury is nothing to be proud of. Think back carefully on our conversations, Mr. Oliver. Did I ever once instruct you to lie?”

  “I don’t recall if you ever used words like ‘I want you to lie,’ but you definitely encouraged me to do that and even helped me develop the story.”

  “Answer the question, Mr. Oliver,” Rick said. “Did I ever tell you to lie?”

  “I think I just answered that question.”

  “No, you didn’t. It’s a yes or no question. Your Honor, I ask that you instruct the witness to answer the question posed to him.”

  “Answer the question, Mr. Oliver,” Judge Trainor directed.

  “If the question is, did you ever specifically state that you wanted me to lie, the answer is no, but –”

  “Thank you, Mr. Oliver. That’s all.”

  “—- you encouraged me to. You helped cook up the scheme and you encouraged me to lie,” Oliver shouted.

  “Move to strike, Your Honor.” Rick shouted back.

  “The jury will disregard the witness’s last statement,” Judge Trainor instructed.

  “One last question, Mr. Oliver. By your own account, you are an admitted perjurer. Why should the jury believe you here today?”

  Kenny Oliver paused and looked down. “Because I’m dying,” he said in a soft voice. “I have an inoperable brain tumor. I have no reason to lie today.”

  Rick grimaced at the response. He had just asked one question too many and he knew it. “I have no further questions for this witness,” Rick muttered, looking scornfully at Kenny Oliver as he took his seat.

  Jake rose. “Your Honor, I would like to recall Randy Kraft to the stand.” The judge looked surprised. Rick looked like he was about to object but the judge cut him off with a look.

  “Very well, call Mr. Kraft.”

  Randy Kraft walked into the courtroom and was reminded that he remained under oath.

  “I have just one additional question, Mr. Kraft,” Jake said. “You testified yesterday that Mr. Black encouraged you to provide false testimony in your deposition. Did he indicate that there would be some financial reward in it for you if you did so?”

  “Yes. He said that after the trial, I should quit and claim that the company was retaliating against me for my testimony. He would threaten to bring a wrongful termination lawsuit and we would make big bucks.”

  “Objection, Your Honor! This has gone on long enough!” Rick was shouting, a fit of rage clearly overtaking him. “This is nothing but a malicious, underhanded ploy by the defense to besmirch my character and divert the jury’s attention from the real issues in this case. I’m not on trial here —”

  “Sit down, Mr. Black!” Judge Trainor ordered.

  Rick ignored him and continued shouting. “I’m not on trial here. The defense has produced two witnesses who are both admitted perjurers. Their testimony should be stricken –”

  “Sit down, Mr. Black, you’re out of order!”

  Rick shouted back. “With all due respect, Your Honor, these last two witnesses have irreparably tainted the fairness of these proceedings. The prejudicial effect of their testimony has made it impossible for this jury to render an objective verdict. I am moving for a mistrial.”

  Judge Trainor rose to his feet. “Sit down, Mr. Black, that’s enough!”

  Rick looked like he was about to say something else, then thought better of it and took his seat.

  Judge Trainor sat down, folded his hands and stared down at his desk, as he took a few moments to compose himself. He heaved a deep, audible sigh and looked up. “Much as it pains me to do so, I must agree. I am declaring a mistrial.” He hesitated, then looked at the jury. “Many people have invested a great deal of time and effort into this trial—the parties, their counsel, the witnesses, and the jury. They deserve better than this. Unfortunately, I have no choice. The integrity of these proceedings has indeed been compromised. Therefore, I am dismissing this case, without prejudice. The plaintiffs are free to request a new trial. However, if they do so, you will have no part of it, Mr. Black. It is the allegations about your misconduct that compel me to declare a mistrial, and the taint that surfaced here would follow you into any subsequent proceeding. I must say, I find those allegations deeply disturbing. You’re right, Mr. Black, you’re not on trial here, and it is not my place to pass judgment on you. However, as an officer of the court, I feel I have an ethical duty to turn this matter over to the State Bar’s Ethics and Disciplinary Committee for further investigation. I sincerely hope these allegations turn out to be unfounded. Conduct of that nature has no place in our profession. If the allegations are substantiated, I assure you that I will do everything within my power to see that you never practice law in this state again. Case dismissed!” He pounded his gavel and walked out.

  The courtroom exploded. Excited voices chattered urgently on cell phones, spreading the news. Cameras clicked and flashed. A hoard of people crowded around Jake, all seemingly talking at once. He didn’t hear any of them. He was lost in his own thoughts, trying to comprehend what had just happened. This had been an exercise in damage control, yet the case had just been dismissed without any adverse judgment. That was something that neither Jake nor anyone else had considered even a remote possibility. The plaintiffs could seek another trial, but what impact would these events have? It would take some time to sort out all of the ramifications, but at least for now, there was no question that this was a stunning victory for USH.

  Rick sat in his chair, looking like a dazed prizefighter trying to get his bearings after being knocked out. After several minutes, he looked around at the sea of reporters snapping pictures and hoping for a quote. He stood up and abruptly walked past them, muttering “No comment.”

  CHAPTER 55

  Jake stood outside the school as the bell rang and hordes of young students poured out. He spotted Anna chatting happily with a couple of classmates, one on either side of her. He watched silently, his heart warming at the sight of his young daughter, looking and acting like a perfectly normal, happy, well-adjusted seven-year-old.

  One of her classmates pointed in his direction, and Anna looked up. “Daddy!” she squealed, and sprinted toward him. “What are you doing here?” she asked, her face beaming with delight at the unexpected surprise. Then, for a moment, her demeanor abruptly darkened. “You didn't get fired, did you?”

  Jake laughed. It seemed strange. It had been so long since he had laughed. “No, little girl, I didn't get fired. The trial is over. I came to bring you home.”

  Anna's eyes widened. “Really? Home?”

  Jake nodded.

  “Yea! I'm going home! I'm going home!” she shouted exuberantly, to no one in particular, and to everyone.

  That night, they snuggled together on the couch, like they used to. Jake attempted
to read to Anna, but it soon became clear that she just wanted to talk and cuddle. He put the book down.

  “Tell me about your trial, Daddy.”

  Although he expected that she would not understand much, he explained what the trial was about and how it concluded, in terms he hoped a child could understand. Anna listened with keen interest, looking intently at her father with dark, intelligent eyes—Amanda's eyes.

  “And it's all over now?” she asked, when Jake had finished his story.

  “Yes sweetheart, it's over.”

  A look of concern crossed her face. “Will you have another trial soon?”

  “I don't think so.”

  “So we can get back to having a normal life?”

  “Yes, little girl. We will get back to having a normal life. I promise.”

  The next morning, Jake looked at the headline in the morning paper with a sense of wonder. “USH CASE DISMISSED” was plastered across the front page in large bold print. His eyes wandered over the opening sentences of the article:

  “In a shocking turn of events, Judge Peter Trainor dismissed the class action lawsuit against US Health Corporation yesterday. The dismissal was prompted by evidence of misconduct on the part of plaintiffs’ counsel, Richard T. Black. A witness testified that Black encouraged him to provide false testimony against the company in exchange for the promise of future financial rewards. When Black challenged the testimony, the defense produced a witness who testified about a similar incident involving Black in another trial. Judge Trainor ruled that the testimony was sufficiently inflammatory that, true or false, it was likely to taint the fairness of the proceedings. The State Bar is investigating, and considering disciplinary action against Black. The State’s Attorney's Office is considering possible criminal prosecution. And most ominous of all, sources indicate that Black is considered a “person of interest” in a homicide investigation relating to the death of the defense counsel's wife in a suspicious auto accident.”