The Deposit Slip

18





Clausewitz said that war is just diplomacy by other means,” Clay had said. He’d been on his game that day. Feisty, expansive. Preparing for a big trial, Jared recalled. “I tell you that litigation is just war by other means. A war for the hearts and minds of the judge and jurors. Of course, in the courtroom no blood is spilled,” he had finished. “At least none that reaches the floor.”

After what Clay had pulled, Jared wondered why his words kept floating back at moments like this. Because he’d taught Jared most of what he knew about being a trial lawyer, echoed the obvious response. Clay’s memory may now be stained with betrayal, but there were few corners of a case that wouldn’t always remind Jared of his mentor.

Jared had received the letter from Whittier three days earlier. It had announced that the bank would not voluntarily produce the thirty witnesses Jared wanted, with all the language signaling a fight: “Your deposition requests are unduly burdensome”; “inadequate notice”; “too little time prior to trial”; and so on.

It had taken an effort, but on just a few days’ notice Jared had successfully scheduled this emergency motion for a court order forcing the bank to produce its employees for depositions. The judge would never let him take all thirty employees he asked for, which was why he’d padded the list. Jared could probably pare the list down to twenty-five employees safely—maybe even twenty. Any fewer and he risked missing the real gem: the honest witness who knew something about the deposit.

Sitting at counsel table, he looked up at Judge Lindquist wrapped in his solemn black robes. Jared concluded that he was beginning to understand this judge’s style. Lindquist presided like a sullen Napoleon over the battlefield of his courtroom. If you disturbed his peace with a motion, it’d better be a good one, and you’d better be prepared, or the judge would let you know about it. That was important to understand, since he was the only person in the room with the power to make a decision—or to issue a sanction.

Jared looked wearily around the courtroom while awaiting the judge’s signal to begin his argument. Apart from preparing this motion, he’d spent most of these past seventy-two hours reviewing documents. It was obvious he wasn’t going to get through all the boxes before the depos started. However many depositions the court allowed, he’d have to press ahead with them and just try to get through the documents as fast as possible.

After document review and preparing this motion, Jared had used the few remaining hours talking to witnesses and trying to focus his discovery—without success. No one could point him to proof of the deposit. So how far would Judge Lindquist let him go with the bank witnesses?

He glanced over at Stanford scrutinizing his notes. Jared guessed he’d probably moved his operations for the case up to his cabin on Lake Silbin an hour or so south. Jared had been there once on a firm event, and the place suited the man: wrapped in pines on several isolated acres, it had the trappings of a solitary fortress.

The judge nodded at Jared, who stood and walked briskly to the podium. “Always look optimistic, like you’re chafing to make your case,” Clay had exhorted the associates. Jared took a quick final breath before launching into his argument.

For the next fifteen minutes, Jared pressed his points as Judge Lindquist listened, head resting on his hands, his face taut but noncommittal. Jared made a final point, then summarized his pitch.

“Your Honor, I have been in this case for only a month. We are committed to meeting this court’s trial schedule. But without the depositions we are requesting, the estate of Paul Larson is left accepting the defendant bank at its word about its employees’ knowledge regarding the ten-million-dollar deposit. We believe it is highly unlikely that the bank has been diligent probing its own employees’ knowledge about this deposit slip—certainly not as diligent as we will be.”

In legalese, Jared had just accused the bank and its counsel of lying about the knowledge of the bank employees. He scrutinized the judge’s face for a sign—a gesture, nod or smile—that would signal his reaction to Jared’s arguments. Lindquist’s face remained closed.

Jared felt a mixture of satisfaction and dread as he saw that it was Stanford who stood to argue in response. Whittier, apparently sidelined as not up to the task, remained planted at counsel table, looking studiously away from Jared and up to the bench. The downside was Stanford was so much better.

“Your Honor, I’m sorry that Mr. Neaton feels compelled to challenge the truthfulness of the good citizens operating the oldest bank in this county,” he began, gesturing toward Sidney Grant seated in the rear of the courtroom. “I am sure that Mr. Neaton’s regret about taking this case is motivating his unwarranted charges. Faced with no proof of this alleged deposit, plaintiff’s counsel now wants to depose every bank employee in a fruitless search for evidence that doesn’t exist.

“Your Honor is well aware,” Stanford continued in a pained voice, his arms outstretched, “that discovery cannot be a fishing expedition in which an attorney throws a line into the water and hopes something will bite. Mr. Neaton has taken on this frivolous lawsuit and now asks this court’s permission to muddle around in a vain hope he can make something of it. He should be denied.”

Stanford went on along these lines for several minutes before halting, his face relaxing into a portrait of reason. “And so, Your Honor, we suggest this court permit Mr. Neaton five depositions. That is ample to confirm what Mr. Neaton has already been informed: that the deposit simply doesn’t exist.”

As Stanford returned to his seat, Jared rose to respond—until the judge, rousing himself at last, waved him back into his seat.

“Mr. Neaton, I can finish this one for you,” the judge began. “You’re going to repeat that you shouldn’t be compelled to accept what the bank tells you about the knowledge of its employees. That’s well and good—but Mr. Stanford is also right: litigation isn’t a green light to build a case from scratch. You’d better have some basis for your claims before you start the lawsuit—or you know the consequences.”

Jared winced inside at the reference to Stanford’s threat of Rule 11 sanctions against him and Erin.

“So let me make this short and sweet,” the judge continued. “Mr. Neaton, I always have sympathy for second counsel on a case. So I will permit you ten—not five, not thirty—but ten depositions to conclude this case. And you, Mr. Stanford,” the judge turned his face to Stanford’s table, “will cooperate to permit Mr. Neaton to complete those depositions in the next three weeks.”

Jared saw the satisfaction on Stanford’s face as his opponent began to rise. “No, Mr. Stanford,” Judge Lindquist said with another wave of his hand. “I can also save you a trip to the podium. You want to tell me you’re bringing a summary judgment motion to dismiss Mr. Neaton’s claims before trial.” Stanford nodded.

The judge motioned to his clerk, who handed him a thick bound book. “Looking at my calendar, you may schedule your motion for any date up until two weeks before trial.” He handed the book back to his clerk and set Jared in a piercing look.

“Mr. Neaton, I have given you your discovery. Maybe not as much as you would have liked, but all you’re going to get. Use it wisely. Because if you do not have admissible evidence to support your claim by the date of that summary judgment motion, you needn’t worry about trial, because that will be the end of your case.”





Jared looked across the room at Mrs. Huddleston, sitting on her couch speaking softly to Shelby Finstrude at her right.

Ten depositions. It was far worse than Jared had expected.

Who to pick? Someone with a fair chance at knowledge of the deposit, and with the character to tell the truth if pressed. For the latter attribute, Jared decided to return to Mrs. Huddleston—who in turn brought her friend Shelby in to help.

“Carol, Shelby,” he said, gaining their attention. “We have ten bank employees we can depose. From the list you sent us earlier,” he said, nodding with a smile at Shelby, “I’ve pared the number down to twenty employee names. These remaining twenty are all people whose jobs and terms of employment made them potential witnesses to the deposit.”

Shelby was listening especially intently. Mrs. Huddleston described Shelby as the uncommon friend—the one who could always keep a secret. Mrs. Huddleston also insisted that her friend had the mind and habits of a packrat crossed with an elephant: she kept everything and forgot nothing. She and her husband ran the Mayfair Drug Store on Main Street for thirty years before selling out and retiring. In the process, they’d done business with everyone in town. It was knowledge Jared hoped to tap now.

“From this pool, I need to know who’s likely to tell the truth. Keep in mind, the bank lawyers will be prepping all of these witnesses to be hostile. They will be fearful of losing their jobs; they will be coached on how to view the evidence and how to interpret my questions. We’re looking for people who, when pressed, will default to their own consciences. We’re looking for the honest man and woman who’ll tell us the truth regardless of the pressure from the lawyer at their side.”

Shelby nodded earnestly and picked up the list. For half an hour, while Jared culled through documents from a single box he had brought along, she and Mrs. Huddleston conferred like sober spymasters.

“I believe we have it,” Mrs. Huddleston said at last. Jared accepted the list from Mrs. Huddleston and scanned it.

Amidst scratches and erasures, ten names were checkmarked and underlined on the list. Beside some of the names, personal notes and observations were inked in each of the women’s hands. Jared saw that the chosen ones stretched from clerks to vice-presidents, the Human Resources Department to a night custodian.

“You know all these people? Believe they fit my description?”

They each nodded. “Some better than others, Jared,” Mrs. Huddleston said. “But none of them are strangers.”

“All right then,” he said, setting the list down with an air of finality. Mrs. Huddleston and Shelby looked solemnly pleased with themselves. He raised two open palms across the table for high fives, which they each accepted.

“Let the games begin.”





Marcus scanned Neaton’s list of ten witnesses a final time as Whittier entered his office.

“Marcus?”

“Sit down, Franklin. Grant just called from the bank. He reviewed Neaton’s list this morning. I want you to get up to Ashley and start prepping the bank witnesses tomorrow.”

“I’m still trying to get the summary judgment brief done.”

Marcus nodded. “I want to keep things moving along, not give Neaton a breather to complete his review of the documents. Neaton says he wants to start on the depositions next Monday, so let’s accommodate him. Take the summary judgment papers along with you and work on them at night.”

Marcus ignored the junior partner’s tortured look.

“Oh and Franklin,” he added offhandedly as Whittier stood to leave, “there is one witness—Sylvia Pokofsky. When you’re ready to meet with her, give me a call. We have a few issues we need to talk through about her deposition.”