The afternoon sun shone down on Hanson's boatyard as Jake and Charles applied a fine rubbing compound to Resolution's cream-colored hull. Jake stood on a wooden ladder leaning against the hull as Charles worked below him from the ground.
"I don't understand why they brought the motion, anyway," said Charles, as he worked on the lower part of the hull just above the boat's waterline. "Certainly, they must agree there are questions of fact for the jury."
Jake thought about the answer. A motion for summary judgment may be brought by any party under Rule 56 of the Rules of Civil Procedure and shall be granted by the court, entering judgment without trial where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Even where there are clearly issues of fact such as in a negligence claim arising out of an auto accident, they might not be material, for example, when the plaintiff has missed the statute of limitations and defendant is therefore entitled to judgment as a matter of law. Professor Stanton knew all this of course and had in fact been the first one to teach it to Jake.
"Sure, they know," said Jake stretching his reach from the ladder as far as he could and still make the circular rubbing motion with his cloth that polished the sparkling hull. "They are probably just using it as a discovery tool. I don't approve, but many lawyers do it."
"What do you mean?" Stanton asked.
"With the Celotex cases by the U. S. Supreme Court in 1986, the nonmoving party can't just say there are issues of fact or rest on the allegations of the complaint, anymore. Now we have to respond with evidence."
"My recollection of the Celotex trilogy is the court didn't really say anything new."
"You’re right," Jake climbed down to move his ladder. "Rule 56 always said that, but in practice judges weren't enforcing it. After Celotex, nonmoving parties really have to come up with some proofs. The interesting thing is that the moving party doesn't have to prove anything. Therefore it's an opportunity for the defendant to make plaintiff prove the case early on and show it all to defense counsel. If you hold anything back, you do so at your own risk."
"I see," said Charles, "but why don't you approve?"
"Because the purpose of the rule is to save court time and litigation expense to the parties by resulting in the entering of judgment summarily when warranted and save the time and expense of a trial. When a defendant makes the motion for a discovery purpose when the case is going to trial anyway, it just adds to the court time and expense."
"What are we going to hold back?" ask Charles smiling up at Jake on the ladder.
"'A good question, my friend," said Jake, "which I suggest we ponder over a beer at your house," he nodded toward Raspberry Point. "We can come back to work on this tomorrow."
Charles Stanton looked down the long cream-colored hull of the ketch Resolution and sighed, ". . . and tomorrow, and tomorrow, and tomorrow."
CHAPTER TWENTY-ONE
"Good morning, Jack." Bert Hanson greeted Detective Jack Green in Green's St. Louis office. "Thanks for seeing me."
Detective Green's desk was a scene of barely controlled clutter. A telephone and a wooden box of pencils seemed to rest uneasily on a random collection of brown file folders and loose paper. The perimeter of the desk was controlled by a wall at one end, an "In - Out" basket at the other, and directly in front of the visitors' chairs, an executive tension relievers made of five stainless steel balls on wires that swing back and forth when pushed.
"It's good to see you again, Bert." Green came around his desk extending his right hand. The men shook hands. "How's your arm?"
Still have a cast, as you can see." Bert held up his left arm. "I tried to get the doctor to bury a steel rod in the plaster in case I find the rotten son of a bitch who did this to me." Bert grinned at Jack Green.
"Easy, Bert. Remember, if we do find him, he's ours, not yours."
"The doctors didn't want me using my arm as a weapon anyway," Bert laughed, "at least not during recovery."
"A wise recommendation." Jack Green returned to his desk. "Sit down." He pointed to the two chairs placed opposite him for visitors.
Bert sat and opened a leather portfolio, pulling out a thin folder.
"I'm following up on the investigation I was doing before. I'm interested in a convenience store robbery about twenty years ago in Middlebury."
"What?"
"Yeah," said Bert. "Three people were killed."
"What's that got to do with your accident case?" asked Green.
"I dunno, for sure," Bert pulled a single sheet of paper from the manila folder and handed it across the desk, careful to keep it above the sea of paper. "One of the people who might have been an important witness was one of the people killed."
Green studied the paper. It contained a short type-written biography of Robert England, ending with his unfortunate death in May, 1973.
"Bert," Green looked up from the single sheet of paper, "this is years before your client's injury. What's the connection?"
"Call me paranoid, but I'm checking everything," said Bert Hanson. "Besides, my paranoids have definitely become enlarged and inflamed since I was here last." He pushed two of the stainless steel balls to the left and let them go. The balls hit the stationary ones and stopped while two different balls left the other side and swung out to the right.
Green smiled. "I guess I don't blame you for that. Okay, what’ve you got?"
Hanson gave the detective the details on the convenience store robbery. Green made a phone call from his desk.
"Assuming they can find the file, it'll take a few minutes to get here. How about some coffee?"
"Great," said Hanson, "and thanks a lot for your help." He started the steel balls swinging again, this time three and three, so the center ball kept moving.
The two detectives sipped hot black coffee and exchanged war stories. After a half hour, a young man tapped on Detective Green's office door. He held up a thin brown file folder.
Green leafed through its contents.
"Not much here, Bert," he said. "Just another convenience store robbery. A bit more violent than most, but otherwise a typical unsolved convenience store robbery."
"It's what I expected," said Bert examining the file folder which Green handed him. "Just seems funny, that's all."
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In Bay Harbor, Jake and Charles Stanton labored over their response to the defendant's Motion for Summary Judgment. They drafted a document with the caption of their lawsuit entitled "Plaintiff's Response to Defendant's Motion for Summary Judgment." It contained a brief statement of their opposition to the motion. Attached to it were affidavits they prepared to be signed by Sarah, Fred Slattery, their engineer, Walter Stirling and Dr. Pickett.
In order to avoid the entry of summary judgment, they had to provide the court with admissible evidence, although it could be in affidavit form for the motion, showing there were genuine issues of material fact for trial. With the affidavits and some of the requests for admission that were admitted by defendant, they could show that the tractor was manufactured by defendant, that Bobby was injured when it rolled over, and that the tractor industry and Cherokee itself, knew of the propensity for rollover and of a solution at the time of the design of the T-350. It was not as complete or as effectively presented as it would be at trial, but it should show that these were at least questions of fact for trial and summary judgment should be denied. At least they so argued in the brief they prepared to go along with their response.
In addition to the affidavits they drafted, Jake thought they could add some evidence for the judge from the upcoming deposition of Cherokee's representative in a few days. They had the motion response ready to go except to add the deposition testimony, if they decided it was useful.
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"Hello, this is Mary England," standing at a pay phone, Bert Hanson started to say somethin
g, "I'm not in right now," the recorded voice continued, "but if you'll leave your name and number, I'll be sure to call you back as soon as I get a chance. Thanks for calling."
Bert hung up the phone. Checking his notes, he put in another quarter and called someone else.
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The court reporter adjusted himself in his chair at the end of the table and replaced his hands on the small keyboard of the shorthand machine. The deposition had been going on for two hours. Jake had examined the deponent about the design and manufacture of the Cherokee T-350 tractor. He had reviewed many of the documents defendant had produced. He had designed a group of questions close together that confirmed the identity of the tractor and the defendant as manufacturer. Close together, they would be easy to locate and copy for the summary judgment response.
Jake showed the witness a copy of the Farm Safety Review from 1955 showing the testing of a tractor safety arch. "This is a magazine your company is familiar with, isn't it? he asked.
"Yes, we subscribe to that."
"In fact, Cherokee advertises in it. Isn't that true?"
"Certainly some of the time," answered Richard Ellington. "I don't know about that particular issue without looking."
Jake also asked about National Safety Data sheets, but did not show him the one he had about tractor rollover from 1954. Jake wanted information from this witness and he wanted some evidence to help refute the summary judgment motion, but he did not want to show his whole hand or give the defense witnesses and their lawyers a free rehearsal of plaintiff's case.
As they flew back, Jake brought up the subject of punitive damages.
"With Ellington's recognition of industry literature before the T-350 design, we might have a shot at an amendment for punitives, with a liberal judge," he told Charles.
"Is Judge Hawthorne liberal?" asked Charles.
"On that score, I don't know," answered Jake, "but I think it's worth a try."
Back in Bay Harbor, they did add a motion to amend the Complaint to add a claim for punitive damages and in their final decision, held back both the 1954 Safety Data Sheet and the Lamouria article. They had already been produced as part of plaintiff's documents, but it wasn't time to highlight them for the defense counsel.
It was late May. With their motion response and motion filed, counsel for plaintiff turned their attention to the spring launch of the ketch Resolution. The first sail of the season brought Jake, Professor Charles Stanton and the Hansons around to Bayfield for a traditional lunch at Maggie's on Manypenny Street.
"When do you argue the motions, Jake," asked Sandy Hanson as the four sat in their favorite back booth.
"The sixth of June," said Jake, "'D-Day,'" he added.
"The forty-ninth anniversary of 'D-Day' to be exact," added Charles.
"So it is," acknowledged Bert, "but will it be a 'D-Day' for you?"
"Well," said Jake, "I hope we are also successful, but without so many casualties."
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On the anniversary of that famous battle on the coast of Normandy, Jake and Charles appeared before Judge Hawthorne. Ed Hamilton was there with his associate counsel from St. Louis, Everett Whittemore, and two young associates.
Judge Hawthorne heard the motions in the courtroom.
"Let's see," he began, looking at the file, "we have two motions, this morning, a motion for summary judgment by defendant and a motion to amend to add a claim for punitive damages, is that right counsel?" he looked up from the file.
"Right, your Honor," was the response from both counsel tables.
"We'll take the summary judgment motion first," said the judge. "Mr. Whittemore, I believe that's your motion. You may proceed."
"Thank you, your Honor." C. Everett Whittemore began the argument praising the long successful history of Cherokee Tractor & Implement Company. As he argued, it seemed to Jake that Whittemore acted as though he were clearly the most experienced in the room regarding tractors and these cases and everyone should concede his superior knowledge and kowtow to his directions in these matters, even the judge. His degree of obvious arrogance was amazing to Jake. A bit demeaning to the judge, too, thought Jake.
Jake gave his oral argument briefly. The judge had a busy calendar. He hoped that Charles and he had sufficiently presented their side on both written motions and accompanying briefs.
Then they argued the motion for punitive motions, Jake first, then Whittemore, then Jake in brief rebuttal. When Jake was done, the Judge asked, "Anything else, gentlemen? Well if not, then both motions will be taken under advisement. I see we have a trial date of July 19. I'll have an order out to you within two weeks."
PART SEVEN: THE TRIAL
CHAPTER TWENTY-TWO
"Ah, a lovely day in June!" exclaimed Charles from his seat in Resolution's cockpit as she sailed lazily downwind in a slight westerly breeze.
"Unusual wind for June," said Jake, "but it sure makes it a lot warmer than the usual east wind this time of the summer."
Resolution ghosted along the shore of Oak Island in a southeasterly direction between the island and the mainland.
"There's my cottage!" said Charles pointing up at wooded Raspberry Point. In amongst the tall pines, the deck, the windows and the roof line of the cottage could be seen high above the shoreline. Those were the windows through which they had admired the lake and the islands many times in summer and winter. Charles never tired of seeing his home from the water. He always looked up for it when they sailed this part of the islands.
Jake and Charles were taking a break from their trial preparation. They had nearly completed the trial notebook and organization of exhibits. A week earlier, they had received Judge Hawthorne's ruling on the pre-trial motions. He had denied the motion for summary judgment, which was expected, by both sides, Jake was sure. A little less expected was the judge's ruling on punitive damages. He allowed the motion to amend the Complaint to add a punitive damages claim. Jake had not been sure he would. He had hoped the judge would be one who would be liberal in allowing the amendment, even though Jake knew Judge Hawthorne would be strict at trial in requiring the proof of every claim.
With the judge's ruling, they had everything they needed for final trial preparation. The punitive damages claim changed the evidence slightly, making certain evidence about the defendant's financial condition relevant. Once the ruling was received and even though the trial was a month away, they began their final trial preparation for two reasons. First, they had the time because they were only handling one case, and second, because they wanted to provide the judge with a trial brief and requested jury instructions and verdict form well in advance of trial.
They anchored Resolution past the sand spit on Oak Island's south side.
"When do we meet with witnesses for a final run through?" asked Charles from the deck as he returned from checking the anchor line off the bow,
"Right after the Fourth of July weekend," said Jake, tying down the mainsheet. "The Fourth is a Sunday and the observed holiday is the fifth. Trial is the nineteenth, two weeks later. I'm arranging to meet with the Duluth witnesses later in the week, after the Fourth. That gives the whole next week before trial in Minneapolis."
"How about Bill Simpson and Mac McElroy here in the Apostles?"
"We can meet with them here right around the Fourth, too," answered Jake.
Over the next several days, Jake and Charles worked at Charles' cottage putting together the trial notebook in final form. A few changes would still be made as they had their final pre-trial conversations with witnesses, but essentially the case was ready.
On Thursday, July 7, the witnesses gathered at the St. Louis County Courthouse in Duluth. Jake had talked to Judge Kathrine Riley the week before and learned that her courtroom on the fourth floor of the beautiful, old courthouse would be free that day. She graciously allowed Jake to use it for his trial prep
aration rehearsals.
The courtroom was of the old style. The room was large, with high ceilings, paneled and draped walls. Rows of wooden church pew style benches behind the rail provided ample, if uncomfortable seating for witnesses and observers. In front of the rail were counsel tables, a jury box, tables for the clerk, bailiff and court reporter, and the elevated judge's bench. The courtroom was beautiful, somewhat intimidating and was blessed with poor acoustics. Jake had tried a few cases in the large old-fashioned courtrooms in this building. He always enjoyed coming back.
The witnesses sat in the front row benches. Jake sat on the corner of one of the counsel tables. Charles sat up in the judge's high backed chair at the bench, looking very much the part of a judge. Jake explained to the witnesses that the courtroom in Minneapolis would be different, but not really. It would be smaller and more modern looking. The seats would be more comfortable. But there would be a judge's bench, tables for the courtroom staff, a witness box, jury box, and counsel tables just like in this one.
"When you are called to testify, I will tell the judge your name," Jake explained, "and then you will walk up here, past the counsel table where I'll be standing. The clerk will be standing over there," he pointed, "with a hand raised and will give you the oath. Then you walk up there and sit in the witness chair."
Jake was being very careful to explain the procedure completely. Most of these people had never testified in court before. Some had never seen the inside of a courtroom. The more comfortable he could make them, the better witnesses they would be. Many a witness has become unnerved while sitting waiting to testify because of uncertainty about the procedure, what to do when one's name is called, where to go, and what to say. Nervousness over such simple matters, can affect a witness and can hurt the witness' credibility before a jury. Jake believed it to be a trial lawyer’s duty to see that didn't happen.
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