A Class Action

by Gene Grossman

  When we pull into the dealership, it looks like old home week with a hero returning from the war. Obviously not one person in the whole place believed that Joe had anything to do with those explosions, and he’s tremendously well liked by everyone there. We don’t see Eaton around, but that’s no surprise. He probably knew that we’d be coming by today so he made himself scarce.

  Our appearance is during the middle of everyone’s lunch break, so Joe is having a nice time making the rounds and saying hello to all his fellow employees. While he was gone his service bay was closed, so he has to use his security key to unlock the roll-down gate and lift it up in order to enter the bay. It was a clean workspace when he left it, and it stayed that way.

  Like most journeymen mechanics, he has a six-foot high red metal tool cabinet on wheels, with plenty of different sized drawers. I don’t know too much about tools, but judging from the size of that cabinet, I’d bet that he has whatever could possibly be needed for just about any vehicle repair.

  Joe looks a little confused at first and has to open several drawers before he finds what he needs. I’m curious about this.

  “What’s the matter Joe, forget where you put some things?”

  “Naw, I don’t do brake work in my bay. We have a separate department on the other side of the lot that does alignment, brakes, shocks, mufflers, and stuff like that. I haven’t used my brake-pulling tools in a long time, and for some reason they’re not in the drawer I thought they were in.”

  He fumbles through another couple of drawers and finally locates the tool he was looking for. Suddenly, out of pure reflex action, I shout out to him. “Wait, Joe, don’t touch it.”

  He’s got good reflexes. His military training kicked in to obey my command and he doesn’t touch the tool.

  “Sorry about that Joe, but remember what we were talking about? Well, if you didn’t do anything to those vehicles, then it’s a good possibility that after hours someone else did. If that’s true, then we’ve got to get that tool dusted it for prints.”

  “That’s a good idea Mister Sharp, but you know what grease does… it destroys a hard surface’s ability to accept a print.”

  “Yeah Joe, I know that, but you told me that you haven’t used that tool in quite some time, so if you’ve haven’t done much work with it, maybe we can get lucky and it’s in a like-new condition without much grease on it.”

  We take that tool and some of the others that might have possibly been used to sabotage a brake system and put them into a plastic souvenir bag we borrow from the dealership’s gift shop. I’ll have Jack B. take the bag out to Victor’s place.

  I purposely avoid discussing the note that the D.A.’s investigator made about proof of payments to Joe. No sense in asking questions I don’t know some answers to. I want to be able to know the facts, so that when we start to discuss the matter I’ll be able to find out once and for all whether or not Joe’s been lying to me. I’d rather go along with the Ronald Reagan slogan of ‘trust, but verify.’

  Joe and I both agree that it would be best for him to lock up his service bay and go home to wait for some word from the dealership as to the status of his employment there. That Suburban will still be available for Joe to inspect next week. As for Joe’s job, I don’t think that Eaton will want him to stay, because that might look too much like Joe’s innocent of the murders, and he’s too convenient a suspect to let off the hook right now – at least until the insurance and estate monies come in for Eaton, at which time he probably won’t care about much. He’ll be long gone and far away.

  After several days of nothing happening, Mister Berland’s family attorney Socrates Gutsue calls to let me know that the Probate Court has set a hearing date for the objection he filed on Berland’s behalf. This means that if we can’t give the court some reason not to go ahead, they will accept Mrs. Berland’s Will into probate and start the process that will make Ralph Eaton a multi-millionaire.

  The next phone call that comes in is from Victor.

  “Peter, I’ve got news for you. Do you want to hear the bad news or the bad news?”

  “I get the idea Victor… let’s get it over with. What’ve you got?”

  “First, I haven’t been able to figure out who died first - Nancy Eaton or her mother. Next, I did manage to get some prints off of one of your client’s brake tools, but the locals have nothing to match it in the California database. I’ve sent it to the Feds, but that takes longer, so we’ll have to wait a while, until AFIS sends an answer. And last but certainly not least, I’ve been subpoenaed to testify at the Probate Court’s Will Contest Hearing later this week.”

  “C’mon Victor, they can’t be serious about that. If you don’t know enough to advise me, what can they think you’ll be able to tell them?”

  “I don’t know either, Pete, but the papers they served on me require that I bring all the photos along with me to the hearing, so maybe there’s something there I haven’t noticed yet.”

  This is a fine mess. Not only do I have nothing at all to use in support of Mister Berland’s objection to the probate proceeding, my only possible witness has been ordered to come in and testify against us. I make arrangements to meet Victor at the courthouse an hour before the hearing and start to prepare myself mentally for an embarrassing loss. I warned Mister Berland that we might not stand a chance.

  There’s a knock on the hull. Jack B. is here with copies of the medical records on Nancy Eaton and her mother. I call a friend of mine who used to practice internal medicine and after about thirty minutes of reading a foreign language to him he tells me that Nancy Eaton had a heart condition resulting in an irregular heartbeat. I don’t know if it helps me, but it’s all I’ve got.

  At the Probate hearing I introduce myself to the dapper Socrates Gutsue, Berland’s family lawyer. He’s been handling the Berland personal and business affairs for the past thirty years and also prepared both of their Wills. He asks me what we have to work with on the objection, and I sheepishly confess that we haven’t been able to come up with anything substantial.

  “Well Mister Sharp, should we just call this whole objection hearing off, or do you want to go in there and give it a shot?”

  I tell Socrates I’ve never won a card game that I didn’t play in, so we all enter the courtroom together and see Ralph Eaton with his lawyer already seated at their respective places behind the counsel table. He’s retained an attorney named Paul Larkin, who I’ve been up against in the past. He’s a first class schmuck. They both look confident, and I don’t blame them. As a matter of courtesy I go over and say hello to them, but there is no shaking of hands. Before returning to our side of the courtroom, I take the opportunity to ask Larkin one question. “Why did you subpoena Victor Gutierrez to come in today? Do you think he has some important information that will show which one of them died first?”

  Larkin smirks as he answers me. “Not really, Sharp, I know he has nothing that can help you, so I wanted to make sure he was here to help you make a fool out of yourself.”

  Great. That’s the kind of moral support I really need before starting a hearing that’s a guaranteed dead-bang loser. It also proves the old saying about birds of a feather. A jerk like Eaton found an attorney he could identify with.

  Being an informal hearing, there is no armed bailiff to call the court to order, and rightfully so, because we’re the only ones in the room. The judge walks in, steps up and sits down behind the bench. The court file has already been placed in front of him, so he calmly looks up and starts the proceeding.

  “In the matter of the Will of one deceased Estelle Berland, the file indicates that there has been an objection filed concerning the time of death. The moving party contends that Estelle Berland’s primary beneficiary, her daughter Nancy Eaton, pre-deceased her, therefore requiring that portion of her estate intended for the daughter instead to be re-directed to her alternate beneficiary, her husband.

  “Mister Gutsue, you’re the attorney of record for the movin
g party. You’ve appeared before me many times and I’m sure you know the way it works. It’s your objection, so it’s your burden of proof. Let’s hear what you’ve got.”

  “Thank you Your Honor. At this time I’d like to have attorney Peter Sharp take over the presentation of evidence. He is our special co-counsel in this matter.”

  This is the moment every lawyer dreads… being called on in open court to say something when you have absolutely nothing to say. And not only do I know I have nothing to say, opposing counsel knows it too. Caving now would let the court know that we’ve wasted its time with a frivolous objection, and that’s the type of insult no member of the bar wants to give to any judge.

  I stand up and start talking. Nothing special, but I must be talking because I hear some words coming out of my mouth, and there’s no one else standing up but me. The only chance I have is to put Victor on the stand and hope that I can get him to admit that it’s possible that the daughter predeceased the mother. That’s not going to cut it in this court and I know it, but it’s all I’ve got.

  Victor takes the witness stand and is sworn in. He looks relaxed. He should look relaxed. He’s got nothing to lose today because he gets paid his seven-hundred-fifty-dollar witness fee whether he talks or not. I might as well make him work a little for it, so I start in with the usual questions. We cover every word in the police accident investigation reports, and I concentrate on the fact that the daughter was thrown clear of the car while the mother stayed in it all the way down the hill. My only hope is to try and get the judge to believe that because the daughter was thrown clear of the car, she probably died instantly, leaving the mother alive in the car for the rest of the way down the hill.

  Naturally, Larkin is up and down like a jack-in-the-box, objecting to every question I ask Victor. The judge probably feels a little sorry for me fighting such a losing battle, but if asked, he would have to admit that I’m at least giving it my all.

  Victor had some enlargements made of the accident scene photos, and one of them is propped up on an exhibit easel near the judge’s bench. As I’m questioning Victor, I keep looking at it and see that it’s a shot of the car after it came to rest. The front windshield has been shattered inward, probably as the result of hitting a tree branch on the way down the hill. Mrs. Berland is still in the vehicle and the photo shows her covered with broken glass and her own blood. This must be a terribly uncomfortable thing for Mister Berland, sitting there directly in front of these grim pictures showing his dead wife and daughter. The old man’s holding up pretty well though, and I give him credit for that.

  On the other hand, Ralph Eaton seems more interested in whispering strategy into his lawyer’s ear. He doesn’t seem the slight bit bothered by the picture of his wife lying on top of a boulder.

  We show another enlargement of the Suburban’s interior, after Mrs. Eaton’s bloody body was removed. I can see that both front airbags had been deployed and deflated. That probably happened when the vehicle crashed through the road’s guardrail and started its descent.

  Something’s wrong with these pictures. It’s all over the photographs and hiding in plain sight. It’s the blood. Suddenly I feel like there’s a way to go here. I brought my whole file along and it includes the doctor’s report about Nancy Eaton’s heart trouble, so I ask Victor if it’s possible that Nancy died of a heart failure while her mother was still riding down the hill.

  As expected, Larkin is up out of his seat.

  “We strenuously object to this line of questioning to this witness. He’s not a medical doctor and can’t possibly qualify to testify as an expert as to any live person’s health condition.”

  The judge would like to hear more of my argument, but in order for him to do that he must first rule on this objection to Victor’s testimony. I see the judge looking down at me over his glasses with an expression of curiosity on his face.

  “Your Honor, we are not attempting to qualify Mister Gutierrez as an expert medical witness. He is here today as the result of being subpoenaed by Mister Larkin, so his testimony should not be treated so lightly. Furthermore, while not a licensed physician, he has taught autopsy science and procedure to countless medical students and coroners’ staff throughout the United States, and his expert opinion as to cause of death is highly respected by bench and bar alike.

  “The question we are now putting to him is not merely to seek an opinion of her health while alive, but to ask him to state whether or not in his many years of doing post mortem examinations he has ever seen a person with the type of medical condition Nancy Eaton had, die instantly in an automobile accident.”

  Larkin won’t let go. He jumps up again and starts to shout more objections, trying to stop Victor from answering my question. It worked. Contrary to public opinion, judges are human too, and subject to having just as much curiosity as the rest of us. Experience has taught me that if you can get a judge involved in what you’re trying to bring out in court, he’s more likely to be influenced by his own curiosity, and that’s what probably happened here. The judge is curious to see where I’m going with my questioning, so he tells Larkin to sit down, because he won’t sustain the objection. Victor is allowed to answer my question and he does by telling us that it is possible that Nancy Eaton died instantly, prior to her mother’s death.

  Larkin correctly argues that ‘possible’ isn’t good enough here. He points out that the burden of proof is on us to establish that Nancy died first by at least a preponderance of the evidence, and not just by a mere possibility. The judge agrees with him. I feel a lot better already. This hearing started out with me not standing a chance in hell, and now I feel like I’m at least back in the game. I’ll probably lose anyway, but at least I’m back in the game.

  My next line of questioning to Victor is quite simple to follow, and almost objection proof.

  “Mister Gutierrez, you perform autopsies on dead bodies, is that correct?”

  “Yes, Mister Sharp. The State doesn’t like us to perform autopsies on people until they’re actually dead.”

  Victor knows I’m making him work for his money, so I don’t blame him for having a little fun with me.

  “Mister Gutierrez, would you please tell the court if it is possible for a dead body to gush blood?”

  Victor knows where I’m going with this and so does Larkin, but there’s nothing he can do about it.

  Victor answers as expected, that dead bodies don’t gush blood. This leads to my next series of question regarding the photos of the smashed window and Estelle Berland covered with blood. The logical conclusion that the judge should reach is that she was alive while the car was rolling down the hill.

  This is a big victory, because we have just established that she didn’t die instantly. It doesn’t mean that she died before or after her daughter, it only means that she didn’t die instantly, and that’s half the battle.

  My next series of questions establishes where Nancy Eaton’s body was found and how close to the roadway it was. This is an attempt to establish the fact that she was tossed free of the car before it started it’s descent down the hill.

  We bring up the picture of Nancy Eaton lying on top of the boulder. There is no blood to be seen. My contention is that she was dead when she hit the boulder and therefore must have been dead when being tossed from the vehicle.

  I sum up my argument to the court by contending that the blood tells the tale - none on the daughter, plenty on the mother. Therefore, our entire objection is that the daughter died instantly from heart failure when the car hit the guardrail and the airbags deployed. She was then thrown from the car and landed on a large boulder, not shedding a drop of blood. Her mother was still alive and bleeding during her trip down the hill. Pictures of the car after she was removed show a complete pattern of blood, indicating that she was alive and bleeding while the car was rolling down the hill. The daughter died first.

  The judge doesn’t make an instant ruling. Instead, he says he’ll take the matter und
er submission, which means he’ll think about it for a couple of weeks before sending us postcards with his decision. We fill out the postcards and leave the courtroom. On the way out, I make every effort to thank Eaton and attorney Larkin.

  “Gentlemen, I couldn’t do it without you. Thanks for forcing Victor to be here with his pictures.”

  Mister Berland and his attorney are both pleased with the way it went in court. I remind Socrates to tell Berland that it isn’t over until it’s over. He nods in acknowledgment and we all head for our respective parking spaces. I owe Jack B. another one for those medical reports.

  On the way out of court, Victor calls me aside.

  “By the way Peter, I got some results on those prints from the brake tool. There was a match.”

  “Really Victor, did the national database come through for you?”

  “Better than that, Peter, I used another database – one that I’d almost forgotten about. I keep a file on every print I’ve ever lifted, so I tried matching the tool prints with that file. And whatta ya think? I found a match.”

  “Don’t keep me guessing Vic, who’s the bomber? We’d really like to find him.”

  “You already found him, Pete… he’s Marv Kupchic, the stiff from Stuart’s trunk.”

  *****

  Chapter 13

  I email a report to Indovine’s office and his reply is encouraging. He’s especially pleased that I sprung Joe Morgan, hoping that the dealership will also be cleared of any civil liability.

  Unfortunately, it appears that Indovine’s pleasure is pre-mature, because my caller ID display shows Joe Morgan’s telephone number. I answer and say hello.

  “Mister Sharp? This is Joe Morgan.”

  “Yes Joe, I know… what can I do for you today?”

  “I’m going back to jail, Mister Sharp… they’re here right now arresting me. The lady said it would be okay to make a quick phone call to you.”