A Patent Lie (3 page)

“I'm sure all your clients are grateful to you for winning their cases. But if you started getting clients who could pay you what you're worth, would that violate your principles?”

As she spoke, Mrs. Rosziak smoothed more lotion onto her hands, one hand wringing the other. It occurred to Seeley how little he knew of women's habits.

“How many lawyers can say they're doing what they want to do?”

“Whatever dark cloud you have hanging over you, it's not going to go away by your hiding out here. Down at the cafeteria in the county building they say you're the mystery man. You lost a big case in California and someone died who shouldn't have.”

Buffalo, though a city of 300,000, was in many ways a small town.

“Tell your friends they watch too many crime shows.” He just wanted her to leave. “Thanks for sticking around,” Seeley said. “I'll keep an eye on Rudy.”

“You have a court date at two.” She started collecting the bottles from the desktop to drop into her oversized purse. “You know, to look at the two of you, you wouldn't think you were brothers.”

“Leonard takes after his mother.” Fair, soft Leonard, always the victim. And, Seeley thought, I take after my father. Large and coarseboned like him, but chased by my own demons.

“I wasn't just talking about your looks.”

“I wasn't either,” Seeley said.

“With the holidays coming, you want to be with your family.” That had been Leonard's unspoken plea: Come for Thanksgiving. Christmas.

“I'm sure that whatever happened between the two of you, he's forgiven you.” She was watching Seeley carefully to see if she had overstepped. When he didn't respond, she said, “Why else would he call? Why would he fly out here and beg you to take his case?”

To rescue me, Seeley remembered. Do the conditions of my life look so disastrous that I would need to be rescued? He put a laugh in his voice. “You should have been a trial lawyer.”

“And you're not going to find the answers hanging around here. You could use some sunshine. The one time Mr. Rosziak took me to San Francisco, everyone was smiling.”

Sure, Seeley thought, even when they throw themselves in front of commuter trains.

“Are you going to go?”

Seeley said, “You'll be the first to know.”

She gave him a resigned look and finished collecting her creams and lotions and keys from the desktop. Seeley had been married for eight years—and divorced for less than one—and he had been in relationships with women before and since, but the unfairness of the imbalance still galled him. As profound as his ignorance was of what they were thinking and of what drove them, women knew exactly where the buttons and levers were that could turn or twist him in any direction, giving him no choice but to resist. Not just Mrs. Rosziak; women.

He went into the office to get ready for court and to find out from Rudy what the spread was for the Bills game on Sunday.

TWO

Heilbrun, Hardy occupied five floors of an office tower on Battery Street, off the Embarcadero at the edge of the city's financial district. In the conference room adjoining the office that before his death had belonged to Robert Pearsall, Michael Seeley shifted comfortably in a leather-cushioned chair. Thirty-eight stories down, sailboats scudded across the sun-speckled bay and the Golden Gate Bridge was a cupid's bow across the water. To Seeley, the scene was as flat and trite as a picture-postcard.

Fat loose-leaf binders labeled
Vaxtek, Inc. v. Laboratories St. Gall, S. A.
filled the conference room's wall-to-wall shelves. The black binders held the deposition transcripts of witnesses who would be testifying at the trial; the red binders collected patents and scientific papers related to the development and efficacy of Vaxtek's discovery, AV/AS; and the blue binders contained legal research memos. The black and red binders outnumbered the blue binders fifty to one, confirming the trial lawyer's truth that in litigation facts count more than law.

The footwork for a case this size entails months of depositions, reviewing mountains of interrogatories, camping out in chilly warehouses to examine documents, researching the applicable law, and arguing motions in court. St. Gall had overstaffed the case the way giant companies usually do, with lawyers drawn from firms in Zurich, New York, and Chicago, as well as San Francisco. Pearsall, by contrast, had staffed the case leanly, with no more than two dozen lawyers, paralegals, document clerks, and typists. Although Seeley and Chris Palmieri, Pearsall's second chair, would be Vaxtek's only trial lawyers in the courtroom, the team from the office would feed them facts, research, and law as needed.

Running big cases had not been part of Seeley's dream when he set out for law school, but, like the conference room in the sky, responsibility for a case like this offered a reassuring familiarity. He was still uncertain about his motive for coming to San Francisco. It could have been to prove that Leonard, and Seeley's own deepest fears, were wrong, that his professional edge was as sharp as ever. Or perhaps it was no more complicated than escaping the onset of another gray Buffalo winter which, if it was like the last one, would hold a perfect mirror to his soul. In either case, coming to San Francisco was the only way he was going to find out.

Before leaving Buffalo, Seeley spent a week of eighteen-hour days working through the binders that Palmieri express-shipped to him, all the while arranging continuances for his cases in the state and county courts. By the end of the week, as he began to connect the jigsaw pieces of Vaxtek's case, Seeley had a good measure of Pearsall's qualities as a lawyer. He would not have assembled the case the same way, but neither could he find anything to fault in the shrewd care with which Pearsall had gathered his facts and witnesses.

Pearsall's secretary, assigned to Seeley for the duration of the trial, came into the conference room while he was rechecking the witness list to locate a misplaced deposition binder. Christina Hoff couldn't have been more than twenty-two or twenty-three, young to have worked for a partner as senior as Pearsall, and in her neat skirt and oxford shirt with the sleeves rolled up, was mostly elbows and knees. She had shown him around the firm's five floors of offices when he arrived earlier in the morning, and although she had touched up her makeup, it still failed to mask the bleariness in her eyes, from fatigue, Seeley thought, or grief.

“I just wanted to see if you needed anything.” She had a nice voice.

“Should I call you Christina or Tina?”

“Tina. How'd you know?”

She was almost six feet tall, just an inch or two shorter than Seeley, and he guessed that, as a gawky adolescent, the shortened name might have helped inch her toward invisibility. There was a vulnerability about her that, along with the earnestness, seemed out of place amidst the hard polished surfaces of the conference room.

Seeley said, “Have you seen the deposition binder for Lily Warren?” Warren was a St. Gall vaccine researcher, and she should have been deposed along with the others on St. Gall's witness list. But the binder was missing. The last transcripts Seeley reviewed in Buffalo had traveled on the plane with him as freight and were now back on the conference-room shelf with the others. He had called Mrs. Rosziak, but she said he hadn't left any Vaxtek papers in the office.

“We have a sign-out system for them.” Tina took a slender file from the credenza at the far end of the room and quickly paged through it. “No one's checked it out.”

That meant nothing. Litigators, meticulous about observing court procedures, regularly overlook office protocol, particularly as they get close to trial.

“How long did you work for Mr. Pearsall?”

“It would have been one and a half years next month.” Her fingers fluttered first at the file, then at a few stray hairs at her neck. She didn't seem to know what to do with her hands.

“Did he keep a trial notebook for his cases? You know, his thoughts about the case, the way he planned to try it.” Sooner or later someone would return the binder containing the transcript of Warren's deposition, but if there was anything important in it that needed attention at trial, Pearsall would have mentioned it in his notes.

Tina shook her head. “He never said anything about a trial notebook.”

A lawyer with Pearsall's experience would not prepare for a trial of this size without outlining his strategy, setting down the main points for his direct and cross-examinations, noting whether a deposition witness seemed overly forgetful or remembered events that had not occurred. By this point in his preparation, Pearsall also would have sketched out his theory of the case, the story interweaving fact and law that would, or so every lawyer hoped, give the jury no choice but to decide for his client.

“After Mr. Pearsall died, who moved his things out of the office?”

“I did. Any documents related to the case, I sent down to the workroom.” One floor down, the workroom had been part of Tina's office tour that morning. The size of three conference rooms, it was where the paralegals working on the case had their cubicles. The storehouse of last resort, the workroom was also where the team kept the correspondence files and documents that were not in the conference room.

Tina said, “I gave the papers for his other cases to Chris.”

Palmieri had evidently been Pearsall's lieutenant on other cases, not just
Vaxtek
. The young partner had been in the workroom talking with one of the paralegals when Tina and Seeley came through, and he seemed annoyed at the interruption when Tina stopped to introduce Seeley.

“What about his correspondence file?”

“I have it, but it's only letters.”

“Briefs?”

“Mr. Pearsall didn't write them. Usually one of the associates did, or sometimes Chris. Mr. Pearsall marked them up, crossed things out and wrote comments on them. Sometimes he rewrote them. But someone in the pool typed them.”

“Was anything else removed from his office?”

“I filled some boxes with personal things—you know, diplomas, family pictures.” She remembered something and gave Seeley a small, tentative smile. “There were the steno pads he used to draw in. Sometimes, late in the afternoon, I'd come in and he'd be looking out the window with a stenographer's pad open, drawing.”

Boats on the bay, Seeley imagined.

“I put them in the boxes along with the other stuff and had them delivered to Mrs. Pearsall.”

Papers and belongings dispersed, Seeley thought, how long would it take Pearsall's partners to forget him completely? He was thinking about his own former partners in New York, some of whom, he was sure, were still working hard to forget him.

“Could you leave me her telephone number and address? And tell Chris I'd like to see him.”

“She'll appreciate that,”Tina said.

“What's that?”

“Mrs. Pearsall. Your visiting her. Paying your respects.”

After Tina left, Seeley continued working down the list of witnesses, preparing for each a brief summary of his or her testimony, the first draft of his order of proof.

Other than the travel-poster view, the conference room was virtually identical to the dozens in which Seeley had spent a good part of his professional life, plotting strategy with his trial team, taking or defending depositions, negotiating settlements. Law firm interior designers all had the same shopping list: dark gleaming wood for the bookshelves and conference table, plump leather-and-steel chairs, chrome carafes and ice buckets to sit next to the telephone on the sleek credenza. On one off-white wall was a generic painting, neither offensive nor banal, that looked as if it had been ordered by the yard.

Seeley was near the end of the witness list when there was a knock at the open door and Chris Palmieri came in. In a firm where the younger lawyers went without ties and jackets, Palmieri wore a trimly cut gray suit, starched dress shirt, and silk tie. A pale pink pocket square was carefully folded to look like a casual afterthought, and his light hair was cropped close.

“Tina said you wanted to ask me about something.”

Seeley had wondered about Palmieri's prickliness not only when Tina introduced them in the workroom but also in their telephone conversations the week before. He assumed it was the young partner's resentment at being passed over to run the case when Pearsall died. But it could also have been ill will toward any lawyer who tried to replace his mentor and, probably, friend.

“Do you know where the Warren deposition is?”

“Warren?”

Seeley slid the witness binder down the conference table to where Palmieri was. “Lily Warren. The scientist who St. Gall says invented AV/AS first.” Vaxtek's case turned on its claim that one of its own scientists, Alan Steinhardt, invented AV/AS. If St. Gall could prove that Warren invented AV/AS first, it would win.

“Oh, her.” He left the binder on the conference table, unopened. “We didn't depose her.”

Seeley waited. Not to depose a key witness was unthinkable.

“St. Gall dropped her. It turns out she's a crackpot. They were afraid her testimony would backfire on them.”

In a deposition, the deposing attorney—for Warren it would have been Pearsall or another Heilburn, Hardy lawyer—gets to ask the witness anything he wants. If, on questioning,Warren said something that hurt Vaxtek's position, the deposition transcript would be there to warn the lawyer against asking the same question at trial. However, if Warren said something that was favorable to Vaxtek and later contradicted herself at trial,Vaxtek could introduce the deposition transcript to impeach her testimony. Otherwise, no member of the jury would ever get to see the deposition. From Vaxtek's viewpoint deposing Warren was a no-lose proposition. Why, then, hadn't its lawyer done so?

“So there's no record of her story?”

“I think she talked to one of the newspapers, maybe the
Chronicle
, but after St. Gall dropped her, there wasn't a story.” Palmieri tilted his chair back from the table and closed his eyes. “No deposition, either.”

“Do you know how we can reach her?”

Palmieri was looking at him again, but made no effort to hide how boring he found this. “I think St. Gall fired her right after they cut her from the witness list.”

“You'd think Pearsall would want to get her story down, for the record. She could still turn out to be a problem for us.”

Palmieri flushed. He half rose and leaned over the table. “Warren was St. Gall's witness, not ours.” For the first time, he looked squarely at Seeley. “Bob never missed an angle that mattered.”

“I'm not saying he did. He may have been planning to depose her when he died.” Seeley didn't mind that Palmieri idolized his mentor; he admired loyalty. But if they were going to work together, the young partner would have to calm down. “Did Pearsall seem any different before he died? Had he changed?”

Palmieri drew back. “You mean, what happened that he would throw himself in front of a train?” He started to answer his own question, but changed his mind. “Bob was as passionate about this case as he was about all his cases.”

That told Seeley nothing. What looks like passion can in fact be nothing more than a driving fear of failure. In his last years in New York, even as he was winning most of his cases and favorably settling the others, Seeley could never shake the conviction that he had failed his clients by not obtaining a larger damage award or more generous settlement terms.

“Maybe Warren isn't a problem,” Seeley said, “but I want to nail this down. If there's someone out there with a halfway legitimate claim that he—or she—made this invention before Steinhardt did, I need to know it before I put him on the stand. I'm seeing him this afternoon, but I want you to go through his lab notes and mark anything that could raise a question.”

Again Palmieri reddened, and this time Seeley caught the meaning at once.

“This is too important for an associate. If it weren't important I wouldn't ask you to do it. I'll look at whatever you come up with tomorrow morning.”

Palmieri pushed back to leave.

“Look, Chris, when Vaxtek asked me to take this case, I told them they should let the second chair run it, but they wouldn't listen.”

“What did they say?”

“That you didn't have enough experience.”

“And you believe that?”

“It wasn't my decision to make.” Seeley remembered the missing trial notebook. “Did you get a look at Pearsall's trial notes?”

Palmieri said, “Look, Mr. Seeley—”

“The people I work with call me Mike. What about the notebook?”

“He didn't keep one.”

“You're sure of that.”

“I worked for Bob from the day I started here. Eleven years. He never kept a trial notebook. Maybe it's something New York lawyers do.”

Seeley was growing tired of the barbs. “Did he talk to you about his theory of the case?”

“Sure. Except he didn't call it that. For him it was the ‘path to victory. ’ We worked it out together.”

“And what does it look like—Vaxtek's path to victory?”

“Nothing that would surprise you: Vaxtek's a small American company that has nothing going for it except the brilliance, creativity, and dedication of its handful of scientists and the protection of the American patent system. St. Gall is a multinational octopus that knows nothing about science, lacks any creative aptitude or spirit, and survives by poaching on the hard work of small companies like Vaxtek.”