by Ben Rehder
“I know. So what?”
“Bad call cost the Dolphins the game and made you look like a fool.”
“Okay. What’s your point?”
“What I’m saying goes for you and Cadillac and the whole damn world. Life ain’t fair, kid. Life ain’t fucking fair.”
***
To the west, over the Everglades, a thunderstorm was brewing. I was in my ancient Olds 442 convertible, chugging down I-95, when my cell phone rang. I owned a Motorola 8000X, an analog phone, just like Michael Douglas in the original “Wall Street.” Coverage was so sketchy, I was as likely to pick up Launch Control at Cape Canaveral as my secretary in Miami Beach. I muscled the phone – heavy as a small bar bell – to my ear.
“How’d it go with Eddie Burns?” Cece asked.
“You first. What’s up?”
“Bad news, jefe.”
“Now what?”
“Professor Ciani flipped. He’s on their witness list. Gonna testify for Silky.”
“That son-of-a-bitch! Eddie Burns sold us out, too.”
They say bad news comes in threes, I thought. What would come next? In the distance, lightning flashed, and the phone line crackled. “Anything else, Cece?”
I heard papers rustling over the phone, or maybe that was just static on the line.
“A messenger just delivered a motion for summary judgment from Krippendorf’s office. Affidavits, exhibits, a demand the case be dismissed. Hearing’s next week.”
“Great. Just great.”
“We gotta come forward with evidence or it’s over.”
“Thanks, Cece, but I know what a summary judgment motion is.”
“Then you’ve got evidence, right Jake?”
“Sure I do, Cece.”
I hung up, thinking I had the same thing as Cadillac.
Bupkes!
17. Hitting the Chords
I was flipping burgers on the backyard grill while a worried Warren Zevon was singing. Seems he was gambling in Havana and lost big-time.
“Send lawyers, guns and money…
The shit has hit the fan.”
Yeah, I can relate.
Some lawyers meet their clients in the Bankers Club in a downtown high-rise with views extending as far as Bimini. Stone crabs and sliced tenderloin, gin and tonics, or just passion-fruit iced tea if important business is to be discussed.
Me? If like the clients, I invite them over to the house for beer and burgers. I live in a little coral rock house between Poinciana and Kumquat in Coconut Grove. It has stood up to numerous hurricanes and more than a few raucous parties during my playing days and a fewer number during my lawyering days.
Tonight, with burgers grilling and Grolsch flowing, Cadillac and Sherrell were my guests, and while they enjoyed my hospitality, they weren’t especially thrilled with my professional services.
“Grandad, we got a big hero for a lawyer.” The sarcasm in Sherrell’s voice was as tangy as the soy-pineapple marinade I use on the burgers. “He turns down the money because he’s got this great case. But then, he loses his witnesses!”
“Sherrell, mind your manners,” Cadillac instructed.
She lowered her voice into some approximation of my own: “‘We’re gonna win more than seventy-five thousand, Cadillac. I guarantee it.’ Bullshit!”
“It’s not over,” I reminded her.
“I should report you to the Bar.”
“You’ll have to take a number.”
“Great to learn that now. Why didn’t you tell us what a fuck-up you were when I first came in?”
“Listen, Sherrell, once I find what Silky is hiding–”
“How? You can’t even keep your own witnesses honest!”
“By playing by Krippendorf’s rules, which is to say, no rules at all.”
“Really? He’s better at it than you, which is probably why he recommended you in the first place.” She wheeled away from the grill where I was intent on keeping our burgers bloody. Cadillac sat at an old redwood picnic table, holding his acoustic guitar. He’d been strumming and humming earlier, but Sherrell’s outburst had dampened the mood.
“I don’t blame you, Jake,” Cadillac said, gently. “I don’t blame Eddie Burns or even that shyster Krippendorf. I should have paid better attention to my business affairs and my personal affairs. When I slid downhill, there wasn’t nobody pushing me from behind.”
“But my job is to catch you,” I told him. “I made promises to you, and I intend to keep them.”
Cadillac picked up his guitar and seemed to contemplate just what notes to play. “There’s a moment in time when you stand at a crossroads. A man can go either way.” He strummed a major chord.
“Top of the highest mountain.”
Then hit a minor chord.
“Or bottom of the deepest pit.”
“It’s my job to make sure you get back what you lost,” I said.
“Get me my due.”
“That’s right.”
“Before I turn to dust, young man, I’d like credit for what I’ve done.”
This time, he hit a bluesy chord and said, “What’s a man got, anyway, but his name?”
18. Games Lawyers Play
In depositions, as in football, you crave home field advantage.
If I’m taking a witness’s sworn pre-trial statement, I want to do it in my office. Or at least, I did, before I moved my meager belongings to the parking garage in the alley. So when Lyle Krippendorf suggested that we use his quarters for Professor Ciani’s deposition, I agreed.
“I think you’ll agree, Jake, that we’ll all be more comfortable in my conference room. We can stretch out, bring lunch in, and you can take all day if you want.”
Translation: I know you’re embarrassed by that hellhole you’re renting, and I don’t want to inhale exhaust fumes all afternoon, so I’ll spring for some deli and you can spread your files on my mahogany table and see what you’re missing.
I knew it wouldn’t take all afternoon. Professor Ciani betrayed me for a payday, and there was no way to turn that around. But I could chisel away at his testimony and pin him to a position I could then attack at trial.
Once pleasantries had been exchanged and coffee poured, the court reporter administered the oath, and I let Ciani blather on a bit about his degrees and his work as a composer. Yes, he’d testified in other cases. No, he was not a friend of either M.C. Silky or anyone in the Krippendorf firm. No, in his expert opinion, Silky did not plagiarize Cadillac’s work.
I placed the plastic overlay of Silky’s score over Cadillac’s older song. Then throwing Ciani’s own words from our first meeting back at him, I asked, “Isn’t it true Silky’s Don’t Cry, Baby uses the same musical intervals and rhythmic repetition as Cadillac’s I’m Leaving You, Baby?”
“Partially true,” which I figured was an apt description of much of Ciani’s testimony.
“What part is true and what part is not?” I was trying not to sound pissed.
“In a nutshell, the differences are greater than the similarities.”
“But you would concede there are similarities both in the music and the lyrics?”
“Not sufficient to indicate plagiarism because of the combination of different musical elements.”
“Such as?”
“Silky’s staccato phrasing is different than your client’s soul inflection. Silky’s rap beat is different than your client’s beat. I could go on.”
“Please do.”
“Why don’t I just sum it up? The songs are clearly different.”
“Despite similar notes?”
“Yes.”
“And similar rhythmic repetitions?”
“Yes.”
“And musical intervals.”
“Objection, repetitious,” Krippendorf said.
“You may answer, Professor Ciani,” I said. “Mr. Krippendorf is just letting me know he’s still awake.”
“Let me put it this way. Unlike words, there are fewer combinations
of notes. Sooner or later, practically every motif will be repeated, without any copying or plagiarism.”
That one stung. But the answer served a purpose. It laid out the defense. Cadillac’s song lacked uniqueness. Therefore, someone repeating its patterns and notes decades later might not necessarily be guilty of plagiarism.
“Isn’t it true you expressed a different opinion when you met with me?” I asked.
“As I recall, I expressed certain preliminary thoughts but had not yet studied the matter in depth.”
“So your opinion then about the songs’ similarities was only preliminary?”
“So preliminary as to not even be an opinion. More of a notion.”
I suppressed the urge to strangle the professor and simply asked, “Are you being paid for your testimony today?”
“I’m being paid to render an impartial expert opinion.”
Crafty, I’ll give him that.
“And how much does it cost to extract that impartial opinion from you?”
“A retainer of twenty thousand dollars to be earned at the rate of four hundred dollars per hour.”
Pretty good money for those days. No wonder he switched sides before I could officially retain him.
“Any more questions, Jake?” Krippendorf asked.
“Many. Why do you ask?”
“Because you stopped and you look perturbed.”
“I don’t get perturbed, Krip. Sometimes, I get pissed. I might even get mad as hell. But I don’t get perturbed.”
“There’s no need to use that threatening tone of voice.”
The son-of-a-bitch was baiting me. “My voice is the same tone it is when ordering a Grolsch at the Barristers’ Saloon. You got a problem with that, Krip?”
“Let the record reflect that Mr. Lassiter has raised his voice in an attempt to intimidate the witness.”
I felt like picking up one of the corned beef sandwiches on the deli platter and squashing it in Krippendorf’s face, but I knew that’s the kind of stunt he hoped I’d pull.
“The only thing that intimidates your witness is the prospect of working for less than four hundred bucks an hour.”
“I resent that insinuation,” Professor Ciani said.
“Tough shit,” I said.
“Let the record reflect that Mr. Lassiter is now using scatological terms in an affront to the dignity of the court,” Krippendorf said.
“The record speaks – and smells – for itself,” I said.
“That’s it!” Krippendorf slammed his legal pad onto his fine mahogany table. “This deposition is terminated.”
19. Singing for Judge and Jury
I lay in the hammock in the backyard, rocking to and fro, occasionally sipping at a 16-ounce Grolsch, the green bottle with the porcelain stopper.
Lawyer at Work.
Really.
Doc Charlie Riggs was there, drinking Jack Daniels from a tumbler, seeing how I had no Mason jars in the house. A coroner by training, he’d spent more time in courtrooms than most trial lawyers, so I valued his instincts and his expertise. Charlie loved reading appellate court opinions, sometimes mocking the logic, but always lending insight to my trial preparation. At the moment, he was reading Arnstein versus Porter, an opinion of the Second Circuit Court of Appeals.
“Cole Porter got sued for plagiarism,” Charlie mused. “Now there’s an oldie.”
“But a goodie. Stands for the proposition a plaintiff doesn’t need an expert witness to prove plagiarism. And guess what? I don’t have one.”
“What else don’t you have?”
“The original score and recording by Cadillac. In fact, I don’t have any recording. I’m Leaving You, Baby is a collectors’ items so rare I can’t lay my hands on a record.”
“How is that possible?”
“Cece located five old 45s, pretty much spread across the country. Three were owned by dealers. By the time we called, they’d each just sold them to the same guy, with delivery to a P.O. Box in Jacksonville.”
“Jacksonville?”
“Krippendorf has a satellite office there. So I figure…”
“He has a beard collecting and deep-sixing every 45 he can find.”
I nodded and so did my Grolsch bottle. “The buyer’s name – Avery Goodblatt – doesn’t match anyone in the firm. It could be his boat captain or personal trainer, but most likely it’s just a P.I. using phony I.D. We can’t locate the guy anywhere.”
“What about the other two 45s?”
“Owned by personal collectors. One wouldn’t talk to us. The other had just sold his copy to Mr. Avery Goodblatt.”
“Shipped to a post office box in Jacksonville?”
“Yep.”
Charlie sipped at his Jack Daniels, savored the taste, then said, “Cadillac still own a guitar?”
“Sure.”
“Can he still sing?”
“Like an angel with the blues.”
“Isn’t that your answer then? You put Cadillac under oath. He swears he wrote and recorded I’m Leaving You, Baby, in 1959 or whenever. Then he plays and sings the song for judge and jury.”
“After the applause dies down, then what?”
“What do you think?”
That was just like Doc Riggs. Always making me think for myself. “I don’t know. That’s why I’m asking.”
“What is it you lack?”
“An expert witness. Oh! There it is. While Cadillac is on the stand, I play Silky’s Don’t Cry, Baby. I’ll have him dissect both songs.”
“Exactly. Who’s a better expert witness than the man who wrote the first song?”
“Of course, they’ll impeach Cadillac as having an interest in the case. But we impeach experts all the time for being paid whores for one side or the other.” I drained the beer, thought everything over, and said, “Not bad, Charlie, and in reality, I have no other choices.”
I swung out of the hammock to pull a fresh Grolsch from a picnic cooler. Charlie smacked his lips with satisfaction, or maybe that’s how he always sounded after a swig of sour mash whiskey.
“What about proving access to Cadillac’s song?” Charlie asked. “Will Silky admit having heard it?”
“He professes to love Cadillac’s work but swears under oath he never heard I’m Leaving You, Baby.”
“Can you prove he’s lying?”
“Nope. Which means, without access, I have a higher burden of proof. I have to show the songs are not just similar but, what the hell’s the legal term, really similar?”
“That’s not a legal term,” Charlie said.
“I know. I just can’t remember the magic language in the appellate cases.”
“A plaintiff need not prove access where the songs are so similar ‘as to preclude independent creation.’”
“That’s it, Charlie.”
“Or so said the judges in Heim versus United Music.”
“Now you’re showing off. But you’re right. That’s the burden of proof when a plaintiff can’t prove the defendant heard the copyrighted song.”
“What about Professor Ciani?”
“He’ll say the songs aren’t that similar. That it’s just a motif being repeated at random.”
“Not good.”
“Ciani’s the ball game. If I can’t discredit him, I lose.”
Charlie thought that over a moment, his thinking process lubricated by the last of the Jack Daniels. “If only you could prove Silky had the old record…”
“Yeah?”
“You’d lower your burden of proof on plagiarism, but just as important, you’d show Silky lied under oath.”
“And if he lied about one thing…”
“Exactly. It’s a virtual guarantee the jury would find he’s also lying about not copying the song. Slam-dunk automatic win for the good guys.”
“Right on all counts, Charlie. But how do I prove he had the record or at least heard it?”
“How the hell should I know? You’re the lawyer.”
; 20. The Summons
I was jogging down the bike path along Old Cutler Road a few blocks south of the Gables Waterway, when the midnight black BMW convertible cut me off. Behind the wheel was Kim Coates. We hadn’t spoken since the aborted settlement conference. My instincts told me that she’d seen me jogging and just pulled over to say hello, maybe throw her arms around me, tell me how much she missed me and what a fool she’d been.
My instincts were wrong.
The car was idling in the shade of a banyan tree when I approached the driver’s door and gave her a sweaty smile. “Kim, what’s up?”
She slid the window down but made no move to get out. Instead, she handed me a legal-size envelope. “You’re going to want to read this,” she said.
“If it’s another settlement proposal, you could have just picked up the phone.”
Once again, my instincts were wrong.
“You’ve been served,” she said in a voice devoid of emotion.
“What?”
“James Farrell versus Jacob Lassiter. Assault and battery and intentional infliction of emotional distress.”
“Emotional distress, my ass!”
“Calm down, Jake.”
I leaned into the open window, and she recoiled. Either she thought I was going to bite her nose off or I smelled bad. Or both. A young couple on a two-person bike pedaled by. “You’re representing that slime against me?”
“He hired the firm. Krippendorf assigned me the case.”
“He’s a sadist. Don’t you get that?”
“I had no choice, Jake.”
“You always have a choice!”
I tore open the envelope and thumbed through the summons and complaint, stopping at the ad damnum clause. “Five hundred thousand dollars? I’ll let him punch me for a half a million bucks!”
“What if I could make it go away?”
“How?”
Instead of answering, she just looked at me. The look a teacher gives to a particularly slow student.
“Oh shit, Kim. If I tank Cadillac’s case, you’ll get me off the hook with Farrell. Is that the deal?”
“You’re not giving up anything. You’re going to lose Cadillac’s case anyway.”