Irreparable Harm (A Legal Thriller)

by Melissa F. Miller

  Chapter 22

  Brett returned with the court reporter, who set up her equipment at a table just in front of the judge’s bench. Sasha walked up, careful to avoid the well, and placed a business card in front of her machine.

  She glanced up at Sasha, “Thank you. Party?”

  “Defendant.”

  The woman scribbled that on the card then peered over the top of her square glasses at Donaldson. He was pawing around in his mounds of papers.

  “Does plaintiff’s counsel have a card I can use to set up the caption?”

  Donaldson’s head snapped up. He patted himself down, breast pockets first, then pants pockets. Shook his head.

  “Sorry, I guess I’m all out. The name is Eric, E-R-I . . .” He stopped when his client elbowed him and handed him a business card from the table in front of them. “Oh, I do have one after all.”

  As Donaldson crossed the well to hand up his card, Sasha caught the court reporter shoot Brett a look like can you believe this guy?

  “Don’t traverse the well!”

  Brett’s tone left no doubt Judge Cook was one of those jurists who did not appreciate any break in protocol. Hardliners insisted that attorneys never enter the well—that space between the counsel tables and the bench—without asking for and receiving permission to approach.

  Donaldson stopped mid-step. “But the judge isn’t even on the bench.”

  Brett shooed Donaldson to the side with an impatient wave of his hand. “Stay out of the well.”

  Donaldson scuttled to the side of the room and shoved his card toward the court reporter. His face was red.

  Sasha really couldn’t believe Noah had convinced the client to settle with this clown.

  Immediately, she emptied her mind of Eric Donaldson’s apparent incompetence.

  More times than she could count, she had flattened a sparring partner at her Krav Maga class. Usually a newcomer. Someone who looked at her and saw a tiny girl. Someone who had not yet learned that Sasha was as vicious as she was small.

  It was never smart to underestimate an opponent. Just look at poor Connelly, roaming around town with two black eyes, a broken nose, and a broken trigger finger. It wouldn’t do to end up like him.

  And then she almost did.

  The judge swept into the room from his chambers. With his black robe flapping behind him and his bright, close-set eyes, he looked like a crow. Or maybe a hawk.

  Everyone except the court reporter rose and Brett opened the session. “This Court is now in session. The Honorable Cliff Cook presiding.”

  Judge Cook ascended to his bench and sat. Sasha, Donaldson, and Warren Jefferson bent their knees to return to their seats as well. Only Donaldson and his client made it.

  “Counsel for Defendant! Did I tell you to sit down?”

  Sasha straightened. “No, Your Honor. You did not.”

  “Very good, counselor. I’m glad to see your time at Prescott & Talbott hasn’t so dulled your wits that you can no longer play Simon Says.”

  Sasha’s pulse thumped in her ears. It seemed the judge’s grudge hadn’t died with Noah.

  “We’re here on your motion, counselor. Let’s get started.”

  She stared up at him for a minute then shifted her gaze to Brett. The deputy clerk didn’t meet her eyes. Could Judge Cook not know?

  She drew herself up and said, “May it please the court, Sasha McCandless for VitaMight, Inc. Your Honor, if I may, this motion was actually made by my colleague—or former colleague, rather—Noah Peterson. Mr. Peterson was killed last night in a car accident and, for that reason, I ask the Court to continue this hearing . . .”

  The judge cut her off. “Oh, come now, Ms. McCandless. Surely you don’t mean to suggest the late Mr. Peterson was the only attorney at your venerable law firm capable of handling this matter against the hapless Mr. Donaldson over there, do you?”

  Donaldson’s smirk faded. But the judge was just getting warmed up.

  “Your Honor,” Sasha started.

  “Don’t you tell all your old money clients the reason your rates are so high is because of the depth and breadth of your talented cadre of litigators, spread throughout the world, but integrated seamlessly?”

  He was quoting from the firm’s website now. He was also half out of his chair, arms waving.

  “Your Honor, in addition to Mr. Peterson’s tragic death, there is another reason to postpone the hearing.”

  “Oh, do tell.” Judge Cook returned to his seat, put his elbows on the desk, and propped his chin on his fists, doing a fair impression of a child anticipating a treat.

  “The parties agreed to settle this matter. All that remains is working out the details, which Mr. Peterson had undertaken but, unfortunately, had not finished before his death.”

  “Oh, really?”

  “Yes, Your Honor.”

  Sasha looked at Donaldson, who was suddenly very interested in his cascading pile of folders.

  “Mr. Donaldson, is this true?”

  Donaldson stood, one hand clamped around the knot in his tie, like it was his security blanket. “Your Honor, um ... Mr. Jefferson objects to VitaMight even ... uh, raising the subject of a confidential settlement agreement. But, um, the fact is no agreement was finalized and, uh, as I informed the court this morning, we are ready to proceed with the class certification hearing today. Mr. Peterson’s tragic death notwithstanding.”

  Sonofabitch.

  She couldn’t breathe. It was like he’d delivered a solid blow to her diaphragm. Judge Cook had set her up. Donaldson couldn’t possibly have planned this ambush. At least not without some guidance and suggestions from someone whose synapses actually fired.

  “Excellent. Ms. McCandless, it is, as they say, show time. Unless you’d like to withdraw your motion?”

  Forget the Hemisphere Air case. If Sasha messed this up, her partnership prospects were over. She took a moment to hope Noah had really enjoyed the incremental increase in his millions that he’d probably gotten by screwing Judge Cook over at his country club.

  She squared her shoulders. “VitaMight is ready to proceed, Your Honor. VitaMight has moved for a denial of class certification at this early stage for all the reasons set forth in our papers. But, I’d like to focus on the very simple point that class certification is not appropriate unless the same issues of law and fact apply to all the members of the proposed class. Here, those issues of fact would require all class members to have taken VitaMight according to directions and, not just failed to lose the desired amount of weight, but to have actually gained weight. To prove this up would require mini-trials for each class member to determine that there were no other factors, such as a health problem, responsible for the weight gain.”

  She paused and poured herself a glass of ice water from the cut-glass pitcher on the table. She was pleased to see her hands weren’t shaking. She took a sip. Then she looked over at Donaldson and his slovenly client and smiled.

  She picked back up, her voice stronger now. She was about to decimate Donaldson’s case and he had no clue it was coming.

  “Indeed, these issues of fact illustrate why Mr. Jefferson cannot possibly serve as the class representative. To that end, we are seeking not just a denial of class certification, Your Honor, but a finding of summary judgment in VitaMight’s favor and the dismissal of this case.”

  Donaldson turned to stare at her and Judge Cook’s fuzzy eyebrows shot up.

  “Oh, you are?” the judge said.

  “Yes, sir. Because Mr. Jefferson failed to follow the Slim Down weight loss plan, he cannot represent a class of plaintiffs who did follow the plan.”

  Donaldson stood. “Your Honor, I object. There is nothing in VitaMight’s papers that establishes Mr. Jefferson did not follow the plan. Of course he did. That’s the crux of our complaint!”

  He was right. The papers didn’t allege that. But, Sasha figured Donaldson wouldn’t stand on that point. He’d be eager to prove Jefferson was a good class rep. Other
wise, he would never be approved as class counsel. Some moderately competent attorney would swoop in with a suitable representative and he’d be left with nothing.

  She baited him. “Mr. Jefferson is here today, I see. Why don’t you put him up on the stand and let the Court make that determination?”

  He bit. “We would be more than happy to.”

  Jefferson looked less than happy to. He wrung his meaty hands together. Then he nodded.

  Judge Cook narrowed his eyes and pursed his lips. He looked at Sasha for a long moment.

  “Okay. Here’s what we’re going to do. Mr. Donaldson will put his client up on the stand and question him. Ms. McCandless will have the opportunity to cross-examine him. Then Ms. McCandless can continue her argument on class certification.”

  Donaldson nodded his agreement.

  “Provided there’s a need to continue the argument, right, Your Honor? I mean, if you don’t grant my two motions after my cross.”

  Sasha said it just to rattle Donaldson. He didn’t seem like a guy who would perform well under pressure.

  The judge’s eyebrows were ready to shoot right off his forehead. “Of course, Ms. McCandless. In the unlikely event I grant your motions from the bench after Mr. Jefferson testifies, your work here will be done.” He smiled. “Call your client, Mr. Donaldson.”

  Warren Jefferson shuffled toward the witness box, taking great care to avoid the well.

  Brett swore him in and Jefferson arranged his bulk on the narrow chair.

  “Good morning, Mr. Jefferson.” Donaldson walked his reluctant client through the warm up questions—name, address, occupation.

  Sasha half-listened while she plotted her cross.

  “When did you begin taking Slim Down?” Donaldson asked his client.

  Jefferson shifted in his seat and thought back. “Maybe, uh, January 2009?” He turned to look at the judge. “New Year’s resolution.”

  “And, if you don’t mind my asking, what was your weight at that time?”

  “A little over two hundred and fifty pounds.”

  “And, how much weight did you lose?”

  “Actually, I gained weighed.”

  “You gained weight on VitaMight’s Slim Down product?” Donaldson feigned surprise, playing to some imaginary jury.

  “Yes sir. About forty pounds. I’m just shy of three hundred now. Two ninety-seven.”

  “And you took it as directed?”

  Sasha gritted her teeth. Starting every sentence with “and” was a lazy trial attorney’s way of developing a rhythm. It drove her up the wall.

  “Hmm-mmm, yes. Three times a day. With three reasonable meals. Water to drink.”

  “And how do you know what’s a reasonable meal?”

  “They had a little booklet with the capsule bottle. It had menu recommendations. Like fruit, yogurt, and a piece of dry toast. That was a recommended breakfast. In fact, that’s what I had today.”

  Jefferson was doing her work for her. She jotted down his breakfast on her note pad.

  Donaldson looked at the judge, hands spread open. “Your Honor, I don’t see any point in belaboring this. I will make a proffer that Mr. Jefferson closely followed the meal recommendations.”

  The judge glared at Sasha. “Do you have any objection, counselor? Do we need a blow-by-blow account of Mr. Jefferson’s meals?”

  Sasha stood. “Defendant accepts Mr. Jefferson’s proffer that he followed the recommendations for breakfast, lunch, and dinner.”

  Donaldson turned and squinted at her. Wheels turned slowly in his head. She could see him trying to figure out why she worded her response that way. He’d know soon enough.

  “I have nothing further.” Donaldson sat down.

  Sasha glanced one last time at her notes. “I just have a few questions, Mr. Jefferson.”

  In a jury trial, she would typically stand between counsel’s table and the witness stand to draw the jurors’ attention away from the witness. Today, she wanted Judge Cook’s focus and, with any luck, his ire to be entirely on Warren Jefferson.

  She stood behind her table and tried to keep her voice even and her gestures minimal. No easy task for an Irish-Russian-American from a big family.

  “You said you follow Slim Down’s recommended meal plan for breakfast, lunch, and dinner, correct?”

  “Yes.”

  “Does Slim Down also provide snack recommendations?”

  A yes or no question. If Donaldson had prepared his client, Sasha would have gotten a one-word answer. Instead, Jefferson started explaining.

  “Well, I’d say they’re more like, uh, suggestions. The pamphlet said you could have light snacks and it listed examples of snacks, like almonds, or fruit, popcorn, like that.”

  “So, let me make sure I follow you. The meal ideas are recommendations and the snack ideas are suggestions?”

  “Right.”

  Tap, tap, tap. Judge Cook was drumming his pen against the decorative gavel in front of him.

  “What’s the difference?”

  Jefferson shot his lawyer a desperate, panicked look. Donaldson, busy straightening his papers, missed it.

  “Um, for one thing, the snacks aren’t required. If you aren’t hungry between meals, you don’t have to snack.”

  “Do you snack between meals?”

  “Sometimes.”

  “When you snack, do you follow VitaMight’s suggestions in choosing your between meal snacks?”

  He stared at her. She stared back. He dropped his gaze to his lap.

  “Not always. Sometimes I’ll substitute, like, I’ll have cottage cheese instead of hummus.”

  Judge Cook appeared to be doodling now.

  “Did you have a mid-morning snack today?”

  “Yes.”

  “One of the suggested snacks?”

  “No, I substituted.”

  “What did you have?”

  No response.

  “Mr. Jefferson, on your way into the courthouse at about 9:15, what were you eating?”

  “A sandwich.”

  “What kind of sandwich?”

  Jefferson spoke in a whisper. “A Primanti’s sandwich. Capicola and cheese.”

  The court reporter recoiled. Judge Cook looked up, mild interest in his face. Donaldson stopped shuffling his papers.

  “With fries and coleslaw, I imagine?”

  “Well, yeah.” Jefferson said it like he couldn’t conceive of holding the fries and coleslaw on his mid-morning snack.

  Sasha let that sink in, then took a stab. Violated the rule that you never ask a trial witness a question you don’t already know the answer to.

  “Did you have an after dinner snack last night?”

  “Yeah.” Jefferson’s hands were balled into fists.

  “From the list of suggested snacks?”

  “No. Peanut butter chocolate ice cream.” His face was red.

  She’d made her point. No need to further humiliate the man.

  “Thank you, Mr. Jefferson.”

  The judge leaned forward, “Do you want to try to rehabilitate your class representative, Mr. Donaldson or can we finish up here so he can go get his before-lunch snack?”

  Donaldson winced. “No redirect, Your Honor.”

  Judge Cook turned to the witness. “You can step down, Mr. Jefferson.”

  Sasha was silent until he had climbed down from the box and returned to his seat next to his lawyer.

  Then she addressed the judge. “At this time, VitaMight respectfully renews its motions for summary judgment and denial of class certification. In light of Mr. Jefferson’s admitted deviations from a healthy diet, he cannot establish that his weight gain was caused by VitaMight’s supplement nor could he serve as the named representative of a class of consumers who did take Slim Down as instructed.”

  Donaldson didn’t even bother to respond. He was busy trying to calm down his client, whose angry whispers threatened to veer into an outburst.

  Judge Cook sighed theatrically to
communicate his disgust.

  Sasha waited.

  The judge flipped his pen onto the desk in front of him and exhaled loudly, his nostrils flaring. “Ms. McCandless, I do not approve of your tactics, but it is evident that Mr. Jefferson’s case has serious weaknesses. I will issue an opinion in short order.” He leaned forward. “Mr. Donaldson, you might want to revisit that settlement.”

  He stood and left the courtroom through the door to his chambers. Brett trailed behind reluctantly. Sasha was sure he’d bear the brunt of the jurist’s displeasure at not succeeding in his efforts to screw over Noah’s client.

  She slipped her notes and files into her bag, trying not to listen as Warren Jefferson yelled at his attorney. She stood to leave.

  Donaldson broke free of Jefferson and grabbed Sasha’s arm as she passed by.

  “Sasha, is the thirty grand still on the table?” If he had tried to keep the desperation out of his voice, he failed.

  Sasha swallowed her initial response, which was to laugh in his face. She’d love to tell him what he could do with his settlement demand, but the sad truth was VitaMight would probably still pay him to go away. There were two types of corporate clients: those that made litigation decisions based on business factors and those that would not settle ever, no matter what. Almost all clients claimed to fall in the second category. Almost none did.

  “I’ll have to talk to my client.”

  “Of course. Can you let me know, maybe this afternoon?” Donaldson cut his eyes toward his pissed off client.

  “I doubt it will be this afternoon, Eric. I have a lot on my plate, especially with Noah’s death. I’ll call you after I’ve had a chance to consult with VitaMight.”

  Donaldson reddened at the mention of Noah, briefly chastised, but then engaged in a final bit of theater for his client’s benefit.

  “You do that. But, you’re on notice, we won’t wait forever. If we don’t settle this soon, our number goes up.”

  Sasha didn’t bother to hide her laughter this time. “Noted,” she said, as she shook his hand off her arm.

  She walked out into the hall and decided to take the stairs. Running a gauntlet of illicit smokers would be better than riding in an elevator with Donaldson and his client.