The Justice Game Page 24

  “I’m not required to divulge my deposition strategy,” Kelly responded.

  After twenty minutes of heated argument, Judge Garrison banged his gavel and told the lawyers he’d heard enough. He started with a lecture aimed at Kelly—he wasn’t going to keep letting her have a second and third shot at the defendant every time she thought of something new. But then he talked about the purpose of discovery and how both sides should have more than adequate opportunity to question the other party on all matters relevant to the case.

  Jason could see where the ruling was headed and wanted to scream. He understood the rules of full and open discovery, but Melissa Davids had already answered questions for nearly six hours. His client was going to have a fit.

  “You’re only getting two more hours with the witness,” Garrison told Kelly. “Not a minute more.”

  “Thank you, Your Honor.”

  “And you’ll have to fly to Atlanta at your expense. I’m not making Ms. Davids come back here for two hours.”

  “Yes, Your Honor.”

  “Anything else?” Judge Garrison asked.

  “No, Your Honor,” Kelly said cheerfully.

  Jason shook his head, refusing to give Judge Garrison the satisfaction of a verbal reply. At first, Jason had thought Garrison was a good draw for the case. The judge had risen through the ranks of the Republican party and was certifiably conservative. But now the information provided by Rafael Johansen was never far from Jason’s mind. The judge had issues.… Maybe somebody on the other side was pulling his strings. Jason didn’t think Kelly was capable of such a thing, but there were a lot of strident gun-control groups with an active interest in the case.

  Or maybe it was something less nefarious. Maybe Garrison just subconsciously favored nice-looking female attorneys.

  Either way, there wasn’t much Jason could do about it right now. After the hearing, he would call Case McAllister and tell him to get Melissa Davids ready for another two hours of deposition. What new angle did Kelly Starling want to pursue?

  * * *

  Ten days later, Jason stopped by his office early in the morning on his way to the airport. Not surprisingly, Bella was there. She had his trip folder organized and ready to go, including directions from the airport to MD Firearms, the prior deposition of Davids indexed and summarized, and every other possible item Jason might need on his trip, including the phone number for Judge Garrison’s chambers if the court needed to rule on something during the deposition.

  Jason thought about the day he had interviewed Bella, how he had almost hired that other woman—what was her name? Going with grit, girth, and experience over beauty and seduction had been one of the smartest decisions of his young legal career.

  But on this particular morning, Bella’s one major weakness was also in full bloom. She wasn’t satisfied just running her own life; she had to mother Jason, too.

  She did it from a familiar vantage point—blocking the door to Jason’s office, her arms folded across her chest, clutching manila folder files and legal documents.

  “Brad Carson used to always say a trial is a marathon,” Bella pontificated. “You can’t keep up this pace for a marathon.”

  “What pace?” Jason asked without looking up. He didn’t have time for this.

  “Let’s see . . . at 11:30 last night, you e-mailed me the first draft of a Motion to Compel in the MD Firearms case; two hours later, a draft of our expert’s opinions on the McAfee case—so now we’re looking at nearly two in the morning. Four hours later, I’m getting more e-mails about the need to set up appointments with fact witnesses for each of these hair cases.”

  Jason shrugged. “I’m nocturnal.”

  “Mmm-hmm,” Bella said, as if Jason’s answer had somehow confirmed her point. “When’s the last time you went to the beach?”

  Jason looked up. “Like every other normal human being, I don’t spend much time at the beach in January and February.”

  “I’m not talking about layin’ out or swimmin’ or something. I’m just talking about strolling on the boardwalk when the tourists are gone or eating at one of those restaurants that overlook the ocean. When’s the last time you did anything that wasn’t work related?”

  Jason put down his pen. She had a point. A small one, but a point nonetheless. When he moved to Virginia Beach, he had been drawn by the ocean, the sand, the water, the laid-back culture. He was going to learn to surf or maybe master the paddleboard. He would run on the boardwalk and join a gym and be part of the young lawyers’ association.

  He had done none of those things. Instead, he’d done what he always did: thrown himself into the intellectual challenges. Sure, he had played soccer in high school and starred in the school play, but mostly he studied. In college he avoided the fraternities and extracurricular activities so he could focus on the books. Because of what he’d been through, he didn’t drink and felt out of place at parties. He went to an SEC school but never attended a football game. It wasn’t until law school, where it was finally okay to be a nerd, that he had begun to thrive. Law review, moot court, and high class rank made him the envy of classmates rather than an outsider.

  But even in law school, he ate lunch alone every day at an out-of-the-way restaurant or in the kitchen of his one-person apartment. Jason was an unrepentant introvert. He had always considered himself a paradox—a loner who liked to perform. Since law school, he had learned that a lot of other public speakers and actors were introverts as well. He couldn’t change who he was, so why not accept it?

  “When’s the last time you went to the beach?” Jason asked, turning the tables on Bella. Deflect and distract, always a good defense.

  But Bella had worked for a lawyer for thirty years. “This isn’t about me,” she said. “Besides, you want to be like me someday? Fifty years old and all I have is my job?”

  The honesty of her assessment surprised Jason. And it may have surprised Bella a little as well, because she quickly added, “And my faith and friends at church. But… I mean, I wish I had done more stuff when I was your age.”

  In that moment of transparency, Jason felt a wave of sympathy for his assistant. He hadn’t really given much thought to what it would be like in Bella’s shoes. For Jason, the law was an intriguing mistress, a challenging intellectual exercise, and a way to make money while serving the clients. For Bella, it must have been a grind—all menial and administrative tasks. And worse, after spending most of her career with one lawyer, she had to start all over again with somebody new.

  But Jason wasn’t a counselor. Quite the contrary, he hated talking about personal issues. He decided to resort to another time-tested advocacy weapon—procrastination.

  “Let’s just get through the Crawford case first,” Jason said. “And then we’ll both turn into Virginia Beach socialites.”

  “Speak for yourself,” Bella said. “You can’t teach an old dog new tricks.”

  54

  The look on Melissa Davids’s face had been smug and impatient in her first deposition, but today it was pure contempt. Jason worried that his client might say something she would regret later, something that Jason might not be able to overcome no matter how skillfully he picked and cajoled the jury.

  Even as Kelly asked her preliminary questions, Jason’s palms were practically dripping with anxiety. He caught his leg bouncing nervously under the table and stopped before he bumped Case McCallister, sitting next to him. What did Kelly Starling have that was so important it required a follow-up deposition?

  “In your last deposition, I asked if you were aware of the fact that Peninsula Arms had received three citations from the ATF even before Rachel Crawford’s death. You said you might have been aware of that. Do you remember that testimony?”

  “Yeah.”

  “Do you want to amend that answer?”

  “Of course not.”

  “Were you aware of those citations?”

  “Objection,” Jason said. “How many times does she have to answer t
he same question?”

  Kelly ignored him. “Ms. Davids, are you saying today, under oath, that you don’t recall whether you were aware of those three ATF citations?”

  “I said it before and I’ll say it again: I might have been.”

  Kelly snorted at the answer. Jason tensed even more, leg bouncing, heart pounding. He didn’t like where this was headed.

  “I also asked you whether you ever considered shutting down Peninsula Arms as a dealer.” Kelly consulted her bound copy of the prior deposition’s transcript. “And your response was, ‘No. If anybody had suggested such a thing to me, I would have told them I still believed in the Second Amendment and the free enterprise system.’ Do you remember that testimony?”

  “Not particularly. But if that’s what the transcript says, I don’t deny it.”

  “Isn’t it a fact, Ms. Davids, that you definitely considered whether MD Firearms should cut off rogue dealers and definitely decided against doing it because you wanted to protect the company’s bottom line?”

  Jason opened his mouth to object but it was too late.

  “Of course not,” Davids shot back. She looked like she wanted to jump across the table and attack Kelly. “That’s just your fantasy.”

  Jason knew what was coming next. Part of it was the smirk on Kelly’s face. Part of it was the way she let the answer hang out there as she deliberately pulled out a set of documents, slowly removed the paper clip and separated three copies.

  She kept one copy, handed one to the court reporter, and slid the third across the table to Jason. “Since your last deposition had twenty-six exhibits, I’m going to ask the court reporter to mark this next document as Plaintiff’s Exhibit 27,” she said calmly. “Then I’ll ask if you’ve ever seen this document before.”

  Jason glanced through the document quickly. Just as he feared, Kelly had somehow obtained a copy of the memo from Case McAllister.

  “I object,” Jason interjected, even before the court reporter handed the document to Davids. “This document is protected by the attorney-client privilege. I’m instructing the witness not to answer any questions about it.”

  Without saying a word, Kelly Starling pulled out another set of documents, removed a paper clip, and separated three single sheets of paper. When Jason got his copy, his throat constricted.

  It was a copy of Davids’s e-mail to Gerald Franks, CEO of Walker Gun Co., urging him not to blacklist renegade dealers from the Walker distribution chain. The e-mail was cryptic and to the point—vintage Melissa Davids.

  Gerry:

  If just one manufacturer caves in on this, it will require that all the rest of us also monitor every dealer and shut off dealers with troubled legal histories. For a lot of reasons, this is a bad idea. Attached is a memo Case put together on the subject. For your eyes only.

  Don’t open the floodgate for lawsuits.

  Melissa

  While Jason stared at the memo, Kelly had it marked as Plaintiff’s Exhibit 28. “Do you recognize this?” she asked Davids.

  “Hold on,” Jason said. He turned to Kelly. “Where did you get this?”

  She shrugged. “I don’t have to answer that.”

  “This e-mail and the attached memo are protected by the attorney-client privilege. I’m instructing the witness not to answer.”

  “You’re kidding,” Kelly said.

  Jason felt his face flush, but he was committed now. “I’m basing my objection on the joint defense privilege. Both companies faced the prospect of being named as defendants in a lawsuit. Under those circumstances, it’s not a waiver of the attorney-client privilege to share a privileged document with an executive from another company.”

  Kelly laughed cynically. “That’s creative. But it’s also total garbage. Do you have any cases where the joint defense privilege has been applied to two companies that aren’t even defendants in the same case together?”

  Jason sat up straighter. “You’re not going to talk me into this. If you want to call the judge, be my guest.”

  Kelly gave one final harrumph and suspended her questions so they could get Judge Garrison on the phone. Halfway through Kelly’s explanation of the issue, the judge cut her off.

  “Is this true?” he asked Jason. “Did Ms. Davids send this memo to another company’s CEO?”

  “Yes, Your Honor. But both companies were potential targets in the lawsuits filed by the northeastern cities. MD Firearms had already been named as a defendant. In fact, that’s the very reason the memo was drafted in the first place.”

  “Save your breath,” Garrison said. “Your objection is overruled. Tell Ms. Davids to answer Ms. Starling’s questions or I’ll hold her in contempt.”

  Melissa Davids was still in the conference room and stared at the phone, her nose flaring. “I’m right here,” she said. “May I say something?”

  “No,” Case McAllister said quickly, surprising even Jason.

  Davids glared at her general counsel for a second and then apparently decided that twenty years of building trust ought to be worth something. “Okay,” she said to the speakerphone. “On the advice of my lawyer, I’ll just keep my mouth shut and answer the questions.”

  “Good call,” Judge Garrison said.

  55

  Following the phone call, Melissa Davids increased her level of belligerence—jaw jutting out, scowling for the camera. Jason could see the deposition being played back in court—a large monitor in front of the jury box, Davids’s fury visible for all the jurors to see.

  Kelly had the witness read Case McAllister’s conclusion: “A careful cost-benefit analysis suggests we should continue to sell guns to all licensed and qualified dealers.”

  “Did you agree with Mr. McAllister’s cost-benefit analysis?”

  “No.”

  The response seemed to surprise Kelly, causing a double take. “What’s wrong with it?”

  “There should be no cost-benefit analysis in the first place.”

  “Why not?”

  “Two little things called the Second Amendment and free enterprise. It’s a game of dominos played by gun-control zealots like you. Shut down the worst dealer, and the next in line is then by definition the world’s worst dealer. So you shut him down, and then people start pointing at the next one. Where does it stop?”

  “Let me ask you a few specific questions about Mr. McAllister’s data. Do you see in the memo where he indicates that four dealers in particular account for more than half the guns traced to crimes in these northeast cities?”

  Davids took her time reading the document, generating a long silence.

  “Page two, second paragraph,” Kelly prompted.

  “What was the question again?” Davids asked.

  Kelly read the question a second time.

  “Yes, Case says that.”

  “And Peninsula Arms was one of those dealers, right?”

  Again, Davids took her time reading the document. Kelly waited her out.

  “That’s correct,” Davids said. “You want me to just read the whole memo into the record?”

  “That won’t be necessary,” Kelly said sharply. “Now, Mr. McAllister says that cutting off dealers might result in litigation by those dealers and would also play into the cities’ hands by acknowledging that MD Firearms has a responsibility to monitor dealers. Isn’t that right?”

  “The document speaks for itself,” Jason said. “Do you have a question for this witness?”

  Kelly sighed and put the document down, staring at Melissa Davids. “Is there one single sentence, anywhere in Mr. McAllister’s memo, stating that one of the factors you ought to consider is the life-threatening danger that occurs when felons and other illegal purchasers obtain firearms?”

  “No,” Davids said decisively. “And if he had put something like that in there, I probably would have fired him.”

  Kelly chuckled aloud at the perceived absurdity of the answer.

  “You find this funny?” Davids challenged.

&n
bsp; “Yes. As a matter of fact, I find most of your answers hilarious.”

  “Objection,” Jason said, using the most condescending and disdainful tone he could muster. “Counsel’s remarks are childish and disrespectful and should be struck from the record.”

  “You’re calling me childish?” Kelly asked with a small ironic snicker. She shook her head and turned her attention to the witness. “Why would you have fired Mr. McAllister if he had suggested that you ought to consider the risk to people’s lives?”

  “Because anybody who believes that stopping the sale of guns to Peninsula Arms will keep criminals from getting guns doesn’t have enough sense to work at MD Firearms.”

  “Maybe they could be a plaintiff’s lawyer,” Kelly said sarcastically.

  “Your words, Counselor. Not mine.”

  * * *

  When the deposition was over and everyone had cleared out, the MD Firearms brain trust huddled in the conference room.

  “I want to know where that leak came from,” Melissa Davids demanded, looking at Case. “I want somebody looking through every one of our e-mail servers and employee accounts. I want you to interrogate every area manager. We can’t afford to have traitors working at our company, Case.”

  Davids was on her feet, pacing next to the conference table, her face tight with anger. In contrast, Case remained seated, a soothing presence as his volcanic CEO spilled her lava.

  “Do you have any idea who did this?” she demanded.

  “There’s no guarantee that it’s somebody at our company,” Case said. “It might have been somebody at Walker Gun Co., or somebody could have hacked into our network.”

  The two of them speculated for a while about who might be behind the leak. Case promised he would leave no stone unturned in his investigation.

  After Melissa left, Case blew out a deep breath.

  “What do you think?” Jason asked.

  “She handled the questions well. Unfortunately, her previous deposition answers painted her into a corner.” Case tugged on his bow tie. “Bottom line, she’s going to look like she was lying when Starling plays her previous testimony denying that anybody ever suggested she look at the possibility of shutting down Peninsula Arms.”