The Litigators

CHAPTER 40


During her first two months on earth, little Emma had yet to sleep through the night. Down by eight, she was usually up by eleven for a quick snack and a clean diaper. A lengthy session of floor walking and chair rocking knocked her out by midnight, but by 3:00 a.m. she was hungry again. At first, Helen gamely clung to the plan of breastfeeding, but after six weeks she was exhausted and introduced the bottle. Emma’s father was not sleeping much either, and they usually had a quiet chat during the predawn meals while Momma stayed under the covers.

Tuesday, around 4:30 a.m., David gently placed her back in the crib, turned off the light, and eased from the room. He went to the kitchen, made coffee, and as it brewed, he went online to check the news, weather, and law blogs. One blog in particular had followed the Krayoxx litigation and the Klopeck trial, and David was tempted to ignore it. But he could not.

The headline read: “Mauling in Courtroom 2314.” The blogger, known as the Hung Juror, obviously had too much time on his hands, or perhaps he was one of the Rogan Rothberg grunts. He wrote: “For those with a morbid sense of curiosity, hustle on over to Courtroom 2314 in the Dirksen Federal Building today for round two of the world’s first, and probably only, Krayoxx trial. For those of you who cannot attend, it’s like watching a train wreck in slow motion, and a helluva lot of fun to boot. Yesterday, opening day, the jurors and spectators were treated to the gruesome sight of the widow Iris Klopeck testifying by video. Supposedly, she cannot attend the trial for medical reasons, though one of my spies saw her shopping for groceries yesterday at the Dominick’s on Pulaski Road (click here for photos). This gal is one heavy woman, and when her face hit the screen yesterday, it was quite a shock. At first she seemed, well, rather stoned, but as the deposition wore on the drugs seemed to wear off. She even managed a few tears when talking about her beloved Percy, who died at forty-eight years and 320 pounds. Iris wants the jury to give her a truckload of cash and she tried her best to evoke sympathy. Didn’t work. Most of the jurors were thinking the same thing I was thinking—if you people weren’t so big, you wouldn’t have so many health problems.

“Her dream team, now minus its leader, who had a heart attack of his own last week when he came face-to-face with a real jury, has made only one brilliant move so far, and that was to keep Iris out of the courtroom and away from the jury. No more brilliance is expected from these two lightweights.

“Their second witness was their star expert, a certified quack from Russia who has, so far, after fifteen years in this country, failed to master the most rudimentary elements of the English language. His name is Igor, and when Igor speaks, no one listens. Igor could easily have been bounced by the defense on the grounds that he is unqualified—his deficiencies are too numerous to mention—but it seems as though the defense has adopted a strategy of allowing the plaintiff’s lawyers all the room they need to prove they have no case whatsoever. The defense wants Igor on the stand—he helps their side!”

Enough! David closed his laptop and went for the coffee. He showered and dressed quietly, kissed Helen good-bye, peeked in on Emma, then headed out. When he turned onto Preston, he noticed the lights were on at Finley & Figg. It was 5:45, and Wally was hard at work. Good, thought David, maybe the junior partner had discovered some new theory they could spring on Nadine Karros and Harry Seawright and reduce some of the humiliation. But Wally’s car was not parked behind the building. The rear door was unlocked, as was the front. AC was prowling around the first floor, agitated. Wally was not in his office; he was not to be found. David locked the doors and went to his office upstairs, followed by AC. There were no messages on his desk, no e-mails. He called Wally’s cell and got voice mail. Strange, but then Wally’s routine often varied. However, neither he nor Oscar had ever left the office unlocked and the lights on.

David tried to review some materials but couldn’t concentrate. His nerves were edgy because of the trial, and now there was a nagging sense that something else was wrong. He walked downstairs and had a quick look around Wally’s office. The wastebasket next to his credenza was empty. David hated to do it, but he pulled open a few drawers and found nothing of interest. In the kitchen, next to the narrow fridge, there was a tall round wastebasket where the coffee grounds were dumped along with food containers and empty bottles and cans. David removed the white plastic liner, opened it wide, and found what he was afraid he might find. To one side, lying on top of a yogurt container, was an empty pint bottle of Smirnoff vodka. David removed it, rinsed it in the sink while he washed his hands, and took it upstairs, where he sat it on his desk and stared at it for a long time.

Wally had a few beers during lunch, then spent part of the night at the office, drinking vodka, and at some point decided to leave. Evidently he was drunk, because he left the lights on and the doors unlocked.

They had agreed to meet at 7:00 a.m. for coffee and a work session. By 7:15, David was worried. He called Rochelle and asked if she had heard from Wally. “No, is something wrong?” she asked, as if a bad phone call about Wally was never unexpected.

“No, just looking for him, that’s all. You’ll be in at eight, right?”

“I’m leaving the apartment now. I’ll run by and check on Oscar, then come to the office.”

David wanted to call Oscar but could not bring himself to do so. His triple bypass had been six days earlier, and David was not about to upset him. He paced the floor, fed AC, and tried Wally’s cell again. Nothing. Rochelle arrived promptly at eight with the news that Oscar was doing okay and had not seen Wally.

“He didn’t come home last night,” she said.

David pulled the empty pint bottle out of his back pants pocket and said, “I found this in the kitchen wastebasket. Wally got drunk last night, here, and left the doors unlocked and the lights on when he left.”

Rochelle stared at the bottle and wanted to cry. She had nursed Wally through his previous battles and she had cheered him on through his rehabs. She had held his hand, prayed for him, cried for him, and celebrated with him as he joyfully counted the days of sobriety. One year, two weeks, and two days, and now they were looking at an empty bottle.

“I guess the pressure got to him,” David said.

“When he falls, he falls hard, David, and each one is worse than the last.”

David set the bottle on the table. “But he was so proud of being sober,” he said. “I can’t believe this.” What he really couldn’t believe was that the dream team (or the three stooges) was down to its last man standing. And though his partners were woefully lacking in trial experience, they were seasoned veterans compared with him.

“You think he’ll show up in court?” David asked.

No, she did not, but Rochelle didn’t have the heart to be blunt. “Probably so. You need to get on the road.”

It was a long drive downtown. David called Helen and broke the news. She was as bewildered as her husband and offered the opinion that the judge would have no choice but to postpone the proceedings. David liked the sound of that, and by the time he parked, he was convinced that if Wally didn’t show, he could prevail upon Judge Seawright to grant a continuance. In all fairness, losing the two lead lawyers in a case was surely grounds for either a mistrial or a postponement.

Wally was not in the courtroom. David sat alone at counsel table as the Rogan Rothberg team filed in and the spectators took their seats. At 8:50, David eased over to a bailiff and said he needed to see Judge Seawright, and it was urgent. “Follow me,” the bailiff said.

Judge Seawright had just put on his black robe when David entered his chambers. Skipping the greetings, David said, “Judge, we have a problem. Mr. Figg is AWOL. He’s not here and I don’t think he’ll show up.”

The judge exhaled in frustration and continued to slowly zip up his robe. “You don’t know where he is?”

“No sir.”

Judge Seawright looked at the bailiff and said, “Go fetch Ms. Karros.”

When Nadine arrived, alone, she and David sat with the judge at the end of his long conference table. David told them all that he knew and pulled no punches about Wally’s history with alcohol. They were sympathetic and uncertain about what this meant for the trial. David confessed that he felt thoroughly unprepared and inadequate to handle whatever was left to be done, but at the same time he could not imagine the firm attempting to try the case again.

“Let’s face it,” he said, holding nothing back, “we don’t have much of a case and we knew that when we started. We’ve pushed this thing about as far as we can, and we’ve done so only to avoid sanctions and malpractice suits.”

“You want a continuance?” the judge asked.

“Yes. I think it’s only fair under the circumstances.”

Nadine said, “My client will resist any effort to delay matters, and I’m certain it will push hard to finish this trial.”

Judge Seawright said, “I’m not sure a continuance will work. If Mr. Figg is back on the booze, and drinking so much he fails to show up for court, it might take some time to get him detoxed again and ready for action. I am not inclined to consider a continuance.”

David could not argue with this logic. “Judge, I have no idea what to do out there. I’ve never tried a case before.”

“I have not detected a great deal of experience on the part of Mr. Figg. You can certainly perform at his level.”

There was a long pause as the three contemplated their rather unique dilemma. Finally, Nadine said, “I have a deal. If you will finish the trial, I will convince my client to forget Rule 11 sanctions.”

Judge Seawright chimed in quickly, “Mr. Zinc, if you will finish the trial, I guarantee there will be no sanctions against you or your client.”

“Great, but what about the malpractice claims?”

Nadine said nothing, but the judge replied, “I doubt you’ll be in trouble there. I’m not aware of a successful malpractice action against a lawyer who simply lost a trial.”

“Nor am I,” Nadine added. “There’s a winner and a loser in every trial.”

Of course, David thought, and it must be nice to win every time.

“Let’s do this,” the judge said. “We’ll stand in recess today—I’ll send the jury home—and you do your best to find Mr. Figg. If by chance he shows up tomorrow, we’ll continue as if nothing happened, and I will not punish him for today. If you don’t find him, or if he’s unable to continue, then we’ll resume the proceedings at nine in the morning. You do your best, and I’ll help you as much as I possibly can. We’ll finish the trial, and that will be the end of it.”

“What about an appeal?” Nadine asked. “Losing the two lead lawyers might make a convincing argument for a new trial.”

David managed a smile and said, “I promise you there will be no appeal, not that I’m involved in. This case could very well bankrupt our little firm. We borrowed money to litigate this far. I can’t imagine my partners wasting another moment fooling with an appeal. If they were to somehow win one, then they would be forced to come back here and try the case again. That’s the last thing they want.”

“All right, so we have a deal?” the judge asked.

“As far as I’m concerned we do,” replied Nadine.

“Mr. Zinc?”

David had no choice. Continue, alone, and he would save the firm from the threat of sanctions, and probably malpractice as well. His only other option would be to demand a continuance and, when that was denied, refuse to participate in the trial.

“Sure, it’s a deal.”

He took his time driving back to the office. He continually reminded himself that he was only thirty-two, that this would not ruin his career as a lawyer. Somehow, he would survive the next three days. A year from now, it would almost be forgotten.

Still no sign of Wally. David locked himself in his office and spent the rest of the day reading transcripts of other trials, poring over the depositions from other cases, studying the rules of procedure and evidence, and fighting the urge to throw up.

Over dinner, he poked at his food as he replayed everything for Helen.

“How many attorneys are on the other side?” she asked.

“I don’t know, too many to count. At least six, with another row of paralegals packed behind them.”

“And you’ll be alone at your table?”

“That’s the scenario.”

She chewed on a bite of pasta, then said, “Does anyone check the credentials of the paralegals?”

“I don’t think so. Why?”

“Just thinking. Maybe I should be a paralegal for the next few days. I’ve always wanted to watch a trial.”

David laughed for the first time in hours. “Come on, Helen. I’m not sure I want you, or anyone else, to witness the slaughter.”

“What would the judge say if I showed up with a briefcase and a legal pad and started taking notes?”

“At this point, I think Judge Seawright would cut me a lot of slack.”

“I can get my sister to keep Emma.”

David laughed again, but the idea was gaining momentum. What was there to lose? It could well be the first and last trial of his career as a litigator, why not have a little fun? “I like it,” he said.

“Did you say there are seven men on the jury?”

“Yes.”

“Short skirt, or long?”

“Not too short.”