Deadly Justice Page 17

  “So when this game starts, I don’t want to see a bunch of clowns and beer-guzzlers out there on the diamond. I want to see professionals. I want to see winners! All right?”

  The team shouted “All right!,” slapped mitts, and ran out into the field of glory.

  By the top of the fifth, Apollo was behind Memorex Telex by nine runs. Three more, and the game would be a skunk. And, sadly enough, there were men on both first and second, and it looked as if Memorex Telex would bring home the clinching runs at any moment.

  The game had been a comedy of errors, except that thanks to Crichton’s shouting, bellowing, and bullying, there was nothing funny about it. Tragedy of errors, perhaps?

  Christina and Candice were both warming the bench, as they had been for the entire game. It would be difficult for Ben to say which was the more unhappy about it. Although this was purportedly a coed league, and necessarily so, the managerial team of Fielder and Crichton had not played a single woman yet.

  Sexism carried to its most pathetic point, Ben mused. He could tell just from watching Candice warm up that she had a strong arm, and he knew for a fact that Christina was a much better player than he was. But here he was on second base, letting grounders bounce into his face and bumping into the shortstop, while Candice and Christina cooled their heels.

  Shelly had been given the job of third base coach. Rob probably was just trying to get her off the bench, but this was a job for which she was ludicrously unsuited. She remained uncommunicative. She didn’t understand the rules of the game, or what she was supposed to be watching for, or what she was supposed to be telling the runners. As Chuck sailed toward third on his one hit of the game, he had yelled, “Is it safe? Is it safe?”

  She shrugged her shoulders.

  He was tagged out at home.

  As he trudged back to the bench, Ben overheard Chuck doing a lot of muttering with Shelby’s name in it. “Goddamn idiot. She’s no better at softball than she is at law. I’m going to have another talk with Crichton about her, and soon. This is goddamn intolerable.…”

  And so forth.

  The next Memorex Telex batter hit a bouncing bunt right down the middle. It slipped past Crichton (who was pitching, natch) and headed toward Ben. It passed under Ben’s glove, but he sat down on the ground and managed to block its progress with his posterior. He picked it up, then dropped it, fumbled around with it, bounced it off his chin, and eventually managed to throw it to the first baseman, much too late. The batter made it to first, the other two runners advanced.

  The bases were loaded. Ben scanned the faces lining the infield. In the words of a great philosopher, it was Tension City.

  Crichton marched toward the bench. “Time for my lucky glove!” he announced to no one in particular. He threw off his old glove, opened a wooden carrying case tucked under the bench, and removed a bright orange mitt.

  “I’ve never lost a game with this mitt,” Crichton said, as he returned to the mound.

  Ben wondered if he had ever played with it before.

  Crichton and Doug, who was catching, went through their usual series of signals. Doug told him to pitch wide outside; Crichton threw it straight down the middle. The batter got a piece of it, but fortunately for them all, it flipped backward. Foul ball.

  Doug recovered the ball and, obviously annoyed, whizzed it back to Crichton. Unfortunately, Crichton was trying to intimidate the runner on third and wasn’t paying attention. He turned around just in time to see the ball smash into the side of his face.

  “Owww!” He fell to the ground, clutching his head.

  Rob ran from first to the mound; Ben followed close behind. An extremely embarrassed Doug hobbled across home plate.

  “Sorry, Mr. Crichton,” Doug said, “I didn’t realize you weren’t watching.”

  Crichton didn’t answer. He was lying prostrate across the mound, his eyes closed.

  “I think he may be seriously hurt,” Ben said.

  “Oh, God,” Doug said. “And just when I was about to get promoted.”

  “Rob,” Ben said, “you know first aid. Check him out.”

  Rob hesitated a moment, then crouched over Crichton’s body. “Damn. See that clear liquid in his ear canal?”

  Ben looked over Rob’s shoulder. “What is it?”

  “I can’t be certain. But it may be cerebral spinal fluid. And if it is, he’s probably got a skull fracture.”

  Ben swallowed. That didn’t sound good. “What does that mean?”

  “It means he’s hurt bad. May require surgery. Help me stretch him out.” Ben took Crichton’s legs and straightened his crumpled body.

  “Now elevate his feet,” Rob said.

  Ben complied. As he did, Crichton began blinking his eyes rapidly. He was coming around.

  “Thirsty,” Crichton gasped hoarsely.

  “Someone get him something to drink, okay?” Rob barked.

  The repentant Doug hobbled to the sidelines, snatched a beer from the thermos, then returned. Crichton greedily slurped it down, spilling half of it on his jersey.

  “Help me up,” Crichton whispered. “Got to finish the game.”

  “No way,” Rob said. “You’re hurt.”

  “Nonsense. I’m fine.”

  “Fine? You were temporarily unconscious!”

  “Doesn’t matter. The game isn’t over.”

  “It is for you,” Ben said firmly.

  Crichton tried to sit up, groaned, then fell back onto the ground. “I never quit anything in my life, and I’m not quitting now.”

  “Look, sir,” Rob said, “nothing personal, but we’re getting beaten badly enough already. We don’t need an incapacitated pitcher.”

  “Perhaps you’re right.” Crichton seemed relieved to have a graceful way out. “But who will take my place? We can’t move any of the men from their positions.”

  “True. I think we have to ask Candice.”

  Crichton looked at Rob as though he thought this little better than putting in an inanimate object, but he grudgingly nodded.

  “Candice,” Rob yelled. “Take the mound.”

  Candice stood up, startled. “I’ve never pitched in my life.”

  “Well I have.” Christina leaped off the bench and pushed Candice aside. She grabbed her mitt and marched toward the pitcher’s mound. “I used to pitch twice a week when I played for Swayze & Reynolds,” she said. “We were division champs.”

  Fortunately, Crichton’s sneer was mitigated by his pain. “Was that in a…ladies’ league?”

  She shoved him off the mound. “Damn right. And every one of us could’ve showed you jokers a thing or two about softball. Play ball!”

  Rob and Ben carried Crichton off the field. Candice drove, him and his family to the emergency room, and the game proceeded with Christina at the plate.

  The batter was obviously amused at the prospect of having a woman pitch to him. He grinned at his teammates, made a few suggestive remarks, and held the bat with one hand as the first strike whizzed across the plate. Even throwing underhand, Christina could pack a lot of punch in her pitch.

  The batter’s smile faded, and he paid considerably more attention as the second strike flew past him.

  “All right, Christina!” Ben cheered.

  The batter became serious. He hunkered down in a proper batter’s crouch, held the bat with both hands and choked up. His brow furrowed as he watched the ball come toward him. He swung—after the ball crossed the plate.

  “Strike three!” the umpire cried.

  The Apollo team cheered, amazed by the sudden reprieve. Rob started chanting Christina’s name; Ben ran up and slapped her on the butt. It was a momentary high for all concerned.

  Except Doug. He kept staring down the road, in the direction Candice had taken Crichton to the emergency room. He didn’t appear happy at all.

  31

  ABERNATHY SHOWED UP FOR the hearing five minutes late, and the cause of his delay was immediately apparent. He brought his clients, Car
l and June Nelson, with him.

  That was extremely unusual. No witnesses would be called at the hearing; there was no reason for them to make the trip to the courthouse. Unless, Ben mused, Abernathy thinks Judge Roemer will be less inclined to dismiss the Nelsons’ case if he sees them staring across at him with their grief-stricken eyes. That must be it—if Abernathy can’t win the day by legal argument, he’ll try intimidation and guilt.

  Ben greeted the Nelsons as they took their seats on the front row of the gallery. They seemed subdued, reserved. Their attitude was probably influenced by whatever Abernathy had been telling them. He was very likely personalizing the litigation and blaming Ben for the fact that their case could be dismissed before trial. It was a shame; Ben hated to see the Nelsons distressed. They deserved much better than they were getting.

  Rob sat in the back of the courtroom. Ben knew he would immediately report the day’s events to Crichton, who was still in the hospital. Great, Ben thought. I was hoping for more pressure.

  Abernathy tugged at Ben’s suit jacket and pulled him to the side of the room.

  “I don’t suppose you’ve had a change of heart about producing those ten documents to me?” Abernathy asked.

  “The judge said no.”

  “I know, I know. I just thought you might be having pangs of conscience. I should’ve known better.”

  “My understanding is that those ten pages are just a lot of technical scribblings about an unrelated design project. Wouldn’t help you a bit. I don’t know why you’re so anxious to see them.”

  “I don’t exactly know why myself,” Abernathy said. “But anytime a big corporation works that hard to keep something away from me, I start to get suspicious.”

  “I noticed you didn’t file a brief in opposition to my motion for summary judgment,” Ben said. “Does that mean you’re going to confess judgment?”

  “What it means is that I believe a lawsuit ought to be tried in court, before a jury of twelve peers, not on paper. I don’t hold with all this motion practice you young kids go in for.”

  “If you’re planning to submit evidence, I’d appreciate a chance to look at it in advance.”

  “I plan to submit my evidence at trial.”

  “If you don’t come up with something today, Abernathy, you may never get there.”

  Abernathy placed his hands on his extensive belly. “Are you trying to tell me how to handle my lawsuit?”

  “No. I just think the Nelsons are good people and I hate to see them screwed because their attorney isn’t paying enough attention to their case.”

  “I resent that very much, Kincaid.”

  “I didn’t mean to be rude. I just don’t know if the Nelsons understand what they’ve got. How did they ever link up with you anyway? Surely they didn’t respond to one of those TV ads.”

  “No.” He bristled a bit. “It was a mail solicitation.”

  “You wrote them a letter?”

  “In the normal course of business. I send out some twenty, thirty letters a day. I have a runner who examines police records every afternoon, getting the scoop on all the latest car wrecks. Then he visits the hospitals and examines the admitting records.”

  “I can’t believe the hospital administration allows that.”

  “We…have a special relationship with some of the desk clerks.”

  “You mean you pay bribes?”

  “I wouldn’t put it that way.”

  “This explains a lot. I had a minor fender bender a few months ago, and the very next day I got mail from four lawyers and two chiropractors. It was like a magic trick. Now I know how it’s done.”

  “It’s a very competitive market out there,” Abernathy said. “A small practitioner has to protect himself.”

  “I’ve been a small practitioner,” Ben said, “but I never haunted accident victims.”

  “Well, I can’t afford to be quite as high and mighty as you. I have a family to feed.”

  “So you sent one of these solicitations to the Nelsons?”

  “Actually, I sent three, staggered over three days, under three different trade names. Just to increase the odds that I’d be the one they chose.”

  “And now that you’ve badgered them into giving you their case, you haven’t done a damn bit of work on it.”

  “I’ve been trying to urge an early settlement that would be to everyone’s advantage….”

  “That’s it, isn’t it? You’re just working on a percentage. You try to lure in as much business as possible, on the theory that some of those will settle profitably without any serious work. And the ones that don’t settle—well, they just go down the tubes.”

  “You can’t win every case.”

  “Especially if you don’t try.”

  “Look, Kincaid, you’re representing a big monolithic corporation. You’re not supposed to care about regular people who suffer tragedy. I don’t understand what you’re getting so upset about.”

  “How can I put this to you, Abernathy? I think you epitomize everything that’s wrong with the legal profession today. I hate lawyer jokes, I hate the bad press lawyers get, and I hate the lack of appreciation the general public has for what lawyers do. And then I meet someone like you, and I realize where people get these ideas. And it really depresses the hell out of me.”

  As if on cue, Judge Roemer sailed into the courtroom. “All rise,” the bailiff intoned.

  True to form, Roemer was in a no-nonsense mood. This could mean that he was familiar with Ben’s brief and agreed with his argument. Or it could mean it was a sunny day and there was a golf cart at Southern Hills with Roemer’s name on it.

  “This is your motion, isn’t it?” Roemer asked Ben.

  Ben nodded.

  “Do you have anything you’d like to add?”

  “Yes, thank you, your honor.” Ben headed for the podium. He didn’t actually have anything to add; his brief outlined everything he had to say. But he’d been practicing long enough to know it was a mistake to assume the judge had read the briefs.

  “Under the standards adopted for summary judgment proceedings by the United States Supreme Court in the Liberty Lobby trilogy of cases,” Ben began, “the plaintiff is required to come forth with some evidence to prove there are material facts in dispute that should go to trial. The evidence must be more than a mere scintilla; the evidence must be such that a reasonable jury could find there is some possibility that the plaintiff’s position is correct. This is what the plaintiffs in this case have failed to do.

  “Plaintiffs have reviewed thousands of Apollo documents, have issued interrogatories, and have taken depositions. They have forced the Apollo Consortium to expend thousands of dollars in legal fees and expenses.

  And they have come up with nothing. This has been a gigantic fishing expedition conducted at Apollo’s expense, and the plaintiffs haven’t caught a single fish.

  “Your honor, I have outlined the elements of the various claims plaintiffs have raised in our brief, and specified each requirement they have failed to meet. Plaintiffs claim there was a design defect in the XKL-1 suspension system, but they have no evidence. They claim there was negligence by Apollo, but they have no evidence. And they claim there was a failure to provide an adequate warning, but they have no evidence.

  “Plaintiffs have brought an action for wrongful death, claiming that the acts of the Apollo Consortium caused the death of their son. But they have neither produced nor found any evidence to support this claim. Granted, the Nelsons have suffered a horrible loss, and I’m sure we all sympathize with them. But there is simply no connection between what happened to their son and the Apollo Consortium. Therefore, summary judgment should be entered against the plaintiffs.”

  “Thank you, counsel,” Roemer said. He seemed pleased. Ben wasn’t sure if that was because he liked what Ben had said or because Ben had said it quickly. Roemer was thumbing through the pleadings file, searching for something.

  “Mr. Abernathy, I don’t find a brie
f in opposition in the file from you. Did you reply?”

  “Uh, no, sir.”

  Roemer frowned. “Would you like to reply now?”

  “Yes. Thank you, sir.” Abernathy fumbled with his papers and stumbled to me podium. Ben checked the Nelsons’ expressions; they were obviously concerned.

  “You know, your honor, I don’t much hold with all this pretrial motioning.”

  Roemer’s eyebrows rose slightly.

  “I believe every man and woman is entitled to his or her day in court. Everyone is entitled to a fair shot at proving their case.”

  “If we followed your theory,” Roemer said, “the courts would be so bogged down with trials we’d be backed up for years. Just dealing with all the lawsuits that do make it to trial is a nightmare.”

  “Still, your honor, every litigant deserves a chance to be heard—”

  “We’re not here to debate policy, Mr. Abernathy. The Supreme Court has given us our marching orders. Do you have any response to the defendant’s motion?”

  “Well…obviously I disagree—”

  “Do you have any evidence to support your clients’ claims?”

  “Discovery is ongoing, sir. We still hope to uncover—”

  “Perhaps you didn’t understand me, counsel. I asked if you have any evidence. Now.”

  Ben covered his smile with his hands. This was going beautifully. He glanced at his colleague in the back row; he could tell Rob was pleased.

  “Your honor, these are very complex, technical issues. We need more time—”

  “There is no more time, Mr. Abernathy. Summary judgment is a put-up-or-shut-up motion.”

  “Still, your honor—”

  “Mr. Abernathy, do you at least have affidavits from your clients? That might be enough to put a material fact into dispute. Surely you could get an affidavit from your own clients.”

  “I hadn’t really considered that, sir….”

  Roemer threw up his hands. “This is absurd. You have no evidence. Furthermore, you have no likelihood of finding any in the future unless it walks up and clubs you in the face. This case is ripe for summary judgment.”

  “Judge, if I may—”

  “In fact, it’s more than ripe. This is a perfect example of what summary judgment was designed to preclude. A frivolous lawsuit alleging unsupported claims dragging a faultless defendant through pointless, expensive litigation. Summary judgment is hereby granted.” He banged his gavel to solidify his decision.