An Invisible Client (9 page)

17

The first step in litigation was interrogatories—long questionnaires sent between the parties to gather as much information as possible. I set up a command center in the first conference room and recruited Olivia, two associates, and a paralegal to do nothing but work on Joel’s case. The first morning, I went through all the types of questions I wanted asked. We covered every relevant question and all the irrelevant ones. Are you married? How long? Do you have kids? Do you have a dog? What’s your religion? How do you feel about Pharma-K? How many years have you lived in this state? What did you do when you heard about the injuries to the three children?

We drafted well into the evening. I left and went home to sleep, but sleep didn’t come right away. I stayed up most of the night staring at the ceiling. Joel’s case was going to be a true battle. When I’d called Bob to tell him we wouldn’t take the deal, he started banging his phone against his desk.

He threw every cuss word he could think of at me before he screamed, “He’s fucking invisible!”

I didn’t even respond. I just hung up. I didn’t know why I thought this case had such a high valuation, but something in Pharma-K’s behavior told me I had to know what they were hiding. The trick was not bankrupting the firm in the process. If costs weren’t controlled—with experts, depositions, briefs, pulling resources away from other cases, and the opportunity cost of turning other cases down to work on this—we could easily spend a million in a year. If the case dragged on for a few years, our firm would be out of money.

When I arrived at the office the next morning, Olivia was still in the conference room, with the paralegal, drafting away. Only the lawyers had gone home. Raimi came up behind me, and Marty came in front.

“Are you crazy?” Marty said. “They offered seven figures.”

“We can’t take it.”

“Why?”

“Because they’re hiding something.”

“So what? Everybody’s hiding something. They offered seven figures.”

Raimi said, “It was far in excess of the value of this case, Noah. You need to advise the client to take it.”

“They offered seven figures!”

“Guys,” I said, “when have I ever screwed us? Hmm? Can you think of one time I took a big case and it didn’t pan out? We will get more for this case.”

“How much more?”

“I’m going to ask for ten million.”

Marty laughed. “You’re outta your mind. Are you on drugs? Is that what this is?”

“They will pay us. We just need to push them a little bit.”

“How much?”

“I don’t know—a little bit.”

Raimi shook his head. “They offered at least twice what this case is worth to settle it. If they perceive that we think we can keep getting more by pushing this along, they’ll feel it’s better to risk a trial.”

“And we’ll settle before that point. But for now, I think we can get a lot more.”

I brushed past the two of them and went to my office. I shut the door behind me and sat at the desk. I unplugged my office phone, then turned to the windows and looked down at the streets. Raimi was right: they had offered far more than the case was worth. Even if they had offered to pick up the medical bills, it would’ve been a gift. As far as anyone knew, Pharma-K had nothing to do with the poisoning. Doubt still lingered, though. If I could plant that doubt in a jury’s mind, they might side with us. And in a civil case, I didn’t need every juror, just a simple majority of them.

The worst thing that could happen to this case, of course, was if the police made an arrest. If some crazy hillbilly with no connection to Pharma-K was the one poisoning the medicine, we were sunk. The company wouldn’t even pick up the medical bills at that point, and Rebecca Whiting would be out her million dollars. We needed to speed this litigation along before that could happen.

I plugged my phone back in and dialed Jessica.

“Yeah?” she said.

“Get Luke to draft the complaint for the Whiting case. Tell him I’d like it filed within twenty-four hours. Once it’s filed, I want the soonest court date we can get.”

“Gotcha. Which court?”

I hadn’t even thought about venue. Wherever we filed the lawsuit was going to have a big impact on the outcome. Federal courts had jurors who were typically more educated and better informed, but that might not be a bonus in this case. Maybe we wanted the average Joe Schmoe who would imagine himself in the position of Rebecca Whiting.

“I want it in state court,” I said.

“Okay. We’ll get it done.”

“Thanks.”

I left my office and went back to the conference room. The two attorneys still weren’t there, and only the paralegals and Olivia were working.

“Sally,” I shouted down the hall.

“What?” came a reply from somewhere in the guts of the office.

“Get me two more of Raimi’s guys.”

“Okay. Give me an hour.”

One thing about the Commandant: she never questioned orders. I stepped inside the conference room and shut the door.

18

On a big case, interrogatories could take months. In this case, they took two weeks. We received vague answers on the 112 of them that we sent. In turn, on the two we’d received for Rebecca and Joel, we also gave vague answers.

Meanwhile, KGB scored the surveillance video from Greens. On the date Rebecca bought her medication, it showed her picking up the medicine, paying for it, and leaving. I paid Anto to watch the entire video for that day and the day before. No one had tampered with the medicine the day Rebecca bought it, or the day before.

The first court date had been set. We placed the case at the West Jordan District Court, and a judge named Gills had been assigned.

I had been in front of Nathan Gills only once. I’d tried a dog-bite case to the bench—meaning the judge, not a jury, was the decider—and lost. I’d thought it wasn’t a terrible case, but Gills had disagreed. Though, in fairness, we should have lost that case because liability wasn’t clear.

The main thing I remembered about him was his proclivity for swearing while on the record. I initially thought I misheard him, but then he’d kept doing it. I’d asked the bailiffs about it afterward, and they had said that was how he was.

The morning of court, I met with Olivia. Though we had four other actual attorneys on the case, I had made her my lead on Joel’s case. She was passionate about it in a way the other four weren’t. I didn’t think they liked taking orders from a clerk—you didn’t become an associate until you passed the Bar exam—but I informed them she was going to be my right hand.

Olivia sat in my office, sporting a business suit I hadn’t seen her wear before. I’d expected her to come in with stacks of notes and files, but all she had was her phone.

“You got everything on there?”

“Yup,” she said. “All the interrogatories. The complaint, the answer . . . pretty much everything. And it’s easy to search and find something. I think those days of lawyers carrying boxes of documents into court are over.”

“The boxes were usually filled with copies of the same document. It was a show for the clients to make them think we were prepared.” I checked my watch. “Let’s go. Judges hate it when you’re late.”

We took my car down. The West Jordan District Court was an L-shaped building with metal detectors up front, and three floors of clerks’ offices and courtrooms. The first floor was nothing but clerks, the second was juvenile court, and the third housed the criminal and civil courts. Gills was on the third floor and off to the left when we stepped off the elevator. Before going in, I closed my eyes and took a deep breath. I opened the door for Olivia and said, “Remember one thing above anything else: if you say something confidently enough, people will believe you. Even if you’re wrong.”

We stepped inside the courtroom. The defense was already there—six of them, with Bob at the head. He was still wearing his eye patch. I sat at the plaintiff’s table, and he said, “Morning, Counselor. You look nervous. No need to. This will be quick and painless.”

I ignored him and looked up at the judge’s bench. The courtroom had no windows, and it was always, somehow, cold—even in the summer. The bailiff stood by the judge’s bench and stared out at nothing. When the judge’s clerk came out, everybody stood before realizing he wasn’t the judge. Everyone sat back down. Then the judge came out, and we had to stand again, as if we were praying to a deity.

Gills was a short man, maybe five three, maybe less. He sat on something to make him appear taller, and I wondered if it was a phone book. He looked out at our table, then over at the defense table. “We’re calling the case of Joel Whiting versus Pharma-K Pharmaceuticals. Now is the time set for scheduling conference. I have before me a motion to excuse the plaintiff’s presence due to health reasons. Mr. Walcott, you don’t have an objection to said motion. Is that correct?”

“Actually, Judge,” Bob said as he rose, “I think it’s only fair that the plaintiff be here. Mr. Rucker is here and has to take time off. I’m certain Mr. Whiting wouldn’t have too much trouble making it down for the court appearances.”

I rose to my feet. “Mr. Whiting is a twelve-year-old boy in renal failure, Your Honor. He couldn’t come here any more than he could climb Mount Everest right now.”

Bob said, “I just want what’s fair, Your Honor. It seems unfair that Mr. Rucker has to take time off from his busy schedule overseeing the operations for Pharma-K, and Mr. Whiting won’t even have to appear in court. I think the plaintiff should have to bear the burden of filing suit.”

“He’s sick, Bob,” I said, trying to bore a hole through him with my stare.

“Then maybe he and his mother should’ve thought of taking the more-than-generous offer that was made.”

“Gentlemen,” Gills said, “calm down. Mr. Walcott, you’re being an asshole. I don’t like assholes in my courtroom. Is that clear?”

“Of course, Your Honor. Again, we just want what’s fair.”

Olivia cleared her throat and stood up. Her hands were trembling. “Um, Your Honor, I’m . . . um, Olivia Polley, I work with Mr. Byron. I’m allowed to appear under Utah’s third-year practice rule as I—”

“Ms. Polley,” the judge said, “you see this chair? It’s not comfortable. Hurts my ass like sitting on a jagged rock all day. Just tell me what you’re gonna tell me.”

“Well, I was just thinking that a good compromise might be that we excuse both Mr. Whiting and Mr. Rucker. That way no one is inconvenienced but the lawyers.”

“Nothing I love more than inconveniencing lawyers. My order on the motion is that Mr. Whiting is excused for all future court appearances, and anybody the defense would want to bring is excused, as well. I’m fine going forward with just counsel at all future appearances. Everybody happy?”

“Yes, Your Honor.”

“Yes, Judge.”

I leaned over to Olivia and whispered, “Nice.” She blushed and had to fight back a smile, as though you weren’t allowed to smile in a courtroom.

“Good,” the judge said. “Now, I assume we want a discovery timetable?”

“Actually, Your Honor,” Bob said, “may I approach?”

“Certainly.”

Bob laid a document down on the plaintiff’s table then gave another copy to the judge. It was a 12(b)(6) motion.

The motion was named after the rule of civil procedure that governed it. The caption read:
FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
.

Bob was claiming that we didn’t have any legal basis for filing a lawsuit. It was one of the most dangerous motions in all of civil practice. If the motion was granted, the suit would be dismissed, and I would find it extraordinarily difficult to bring another one. If the motion was denied, Pharma-K would likely raise the initial offer and try to settle the case. The motion was typically filed after discovery was completed, not before.

“You sure you wanna file this now?” the judge asked.

“Yes, Your Honor.”

“Okay, it’s your rodeo. Mr. Byron?”

“I’ll need at least a month for my reply, Your Honor.”

“A month it is. Get a new date from my clerk.”

After we secured new dates, I asked Olivia to get started on the reply. Bob had filed one of the few motions that would allow the judge to make a decision based completely on the actual documents rather than any testimony. The judge would hold a hearing and ask us questions about the motions, but by then, he would have already made up his mind. It was a way for judges to make sure they weren’t overwhelmed with crappy lawsuits. They didn’t like letting things go forward when they knew the plaintiffs were holding out to find better evidence later. It was very likely this case would be dismissed in a month. So I decided I had better find something good to put in that reply.

I spent the rest of the workday conferring with KGB about the case, then went out to Greens to actually see where they kept the children’s medicine.

Greens was one of those little neighborhood groceries that had just a few shelves of products and a couple of cashiers standing up front with nothing to do. One smiled at me but said nothing. I strolled around for a little bit, getting a feel for the place, before heading to the pharmacy area.

The over-the-counter medications were right in front of the cashier. I doubted anyone could do anything to the medicine without someone seeing. The Pharma Killer still could have either taken the bottle to another section of the store, put the poison in and resealed it, or taken it home, poisoned it, then resealed it. The first child was made sick the day before Rebecca bought the medicine, which meant her bottle likely couldn’t have been tampered with the day she bought it. It had to have been the day before or the day before that. I made a note in my phone to have a laboratory test Rebecca’s bottle for any glue that might prove it had been resealed.

Of course, Rebecca Whiting’s instincts could have been right, meaning the medication had been contaminated at the source before going out. Pharma-K had recalled the product so quickly, I wasn’t surprised there weren’t more than just the three cases.

“Can I help you?” the cashier asked.

“Yes, actually. I, um, am interested in some cough medicine, but that whole Pharma Killer thing has me kinda spooked. Not sure what to buy.”

“I’ve been hearing that a lot lately. It’s up to you, but I might suggest trying another brand if you’re concerned about that.”

“Would that help?”

“Certainly. The contamination only affected the Pharma-K brand.”

“Really? That seems weird that some psycho would just pick that brand.”

He shrugged. “Well, I don’t know. I can’t really speak to that. What I can tell you is all the medication is right here. We inventory them every night.”

“Huh. That doesn’t sound like you think it was a single person.” I stepped closer and glanced around, as though I were saying something controversial. “You think it could’ve been tainted by the company?”

“Well, I don’t know. But I will say it would be very difficult for someone to tamper with one of our medications. They’d have to purchase it, tamper with it, and then put it back. And we do inventory every night. If we had one too many, we would’ve noted that—and we never did.”

I nodded. “Sounds like there’s more going on than the public gets to know, huh?”

“I would say that’s accurate.”

“Well, I think I’ll pass. Thank you for your help.”

“You bet.”

I left Greens and texted Jessica to list the Greens cashiers as witnesses to depose later on.