Irreparable Harm (A Legal Thriller)

by Melissa F. Miller

  Chapter 40

  Sasha and Connelly huddled in the first row of the gallery in Judge Cook’s courtroom, paging through the printout from Warner’s thumb drive. Connelly had shown his identification to the security guards in the lobby, who called up the U.S. Marshals Service and confirmed that an air marshal could bring both cell phones and a gun into the courtroom.

  They were skimming the pages, looking for whatever was in the files that had Irwin so hot to get them back. So far, it had all been pretty mundane. Calvaruso’s job application, the consulting agreement, his benefits package. Sasha flipped the pages in frustration. Nothing worth killing Warner over.

  “We must have missed something.”

  She stacked the papers into a pile and moved up to the counsel table to look over her notes until Mickey arrived.

  He hustled in, tossed his briefcase on the table for plaintiff’s counsel, and headed straight for her. He gave her a big smile, but she could see the strain wearing through it.

  “You okay, Mickey?”

  “Fine, fine.” His eyes darted around the room and his movements were jerky and frenetic.

  She narrowed her eyes. “Are you nervous?”

  “What? Nervous? By lunchtime, I’m gonna be the guy who went up against Prescott & Talbott on a long-short TRO and won. I can probably cancel my Yellow Pages ad; I’m gonna be beating off clients with a stick.” He grinned at her.

  He was right, if everything went according to plan, he’d be the man of the hour and she’d be the associate in over her head who lost an important argument. That would do wonders for her partnership prospects, she thought. Strangely, that fact evoked no emotion in her. She simply did not care.

  He was also lying. He was nervous, no doubt about it. It occurred to Sasha that Mickey probably hadn’t spent much time in court in recent years. He found good, sympathetic plaintiffs, wrote decent papers (for a plaintiff’s attorney), and then got defense counsel to the table to settle. She tried to remember the last case Mickey had actually taken to verdict. She drew a blank.

  Mickey was out of practice and about to perpetuate a fraud on the court. Of course he was nervous.

  The door leading from the judge’s chambers opened, and Brett entered, followed by the court reporter, carrying her stenography machine.

  Brett placed a stack of papers on the judge’s bench, probably copies of the motion, and walked over to the counsel tables.

  “Mickey, Ms. McCandless,” he said. “I don’t suppose you fine barristers have worked out an agreement that obviates the need for the judge to hear this motion?”

  “I’m afraid not,” Sasha said.

  “I’d be afraid, too, if I were you,” Brett told her. “The judge is not going to be happy to see your firm in his courtroom two days in a row; but he’s really not going to be happy to see you. No offense, of course.”

  “None taken.”

  Sasha and Mickey were counting on Judge Cook reacting badly to her.

  The deputy clerk fixed her with a look, but he didn’t say anything further. Just turned on his heel and retreated to his desk.

  Sasha walked over to the bar and beckoned Connelly with a small wave. He came and stood at the rail, gripping the top with his good hand.

  “What’s wrong?” he asked, leaning in close so they could whisper.

  “Mickey’s a ball of nerves.”

  Connelly blinked. “Is he going to hold up?”

  “I don’t know. Look at him.”

  Their fierce whispers drew Mickey’s attention and he waved a hello to Connelly, then pointed to himself, seeing if he should join them.

  Connelly shook his head no, and Mickey went back to unpacking his trial bag. He dropped his pen and it clattered and rolled across the floor. He chased after it, cursing it aloud.

  “He’ll be fine once he gets going.”

  She hoped so.

  “Listen,” Connelly continued, “I’m going to check in with the Marshal’s office. See if anything’s going on with their case against Gregor. Will you be okay while I’m gone?”

  Sasha looked over at the Special Deputy U.S. Marshal standing against the wall. He was watching Mickey chase his pen with a bemused half-smile.

  “I doubt even Irwin is crazy enough to try something in open court with an armed federal agent present,” she answered.

  “Good point. I won’t be long.”

  The court reporter looked up from her machine. “Ms. McCandless, I’ll just use your information from yesterday. Mr. Collins, do you have a card on you?”

  He pulled one from his breast pocket and walked it over to her. Sasha noticed he remembered to skirt the well. Maybe Connelly was right. Once Mickey got going, he’d probably be fine.

  She was about to find out. As Connelly walked out the doors in the back of the courtroom, Judge Cook walked in through his private entrance. He looked sour.

  “All rise. The Honorable Cliff Cook presiding.” Brett sounded like he would rather be anywhere else.

  The judge reached his seat but did not sit. Instead, he locked his elbows, pushed his palms against the table in front of him, and glared down at Sasha and Mickey.

  “Counselors. The Court is not pleased, not pleased at all, to see the two of you here on an emergency TRO.”

  He started with Mickey. “Mr. Collins, has Ms. McCandless had an opportunity to review your papers?”

  “She has, Your Honor. And it is my understanding that she has read them very closely, perhaps even more closely than I have.”

  Sasha shot Mickey a look.

  “Well, Mr. Collins, they are a notch above the usual slapdash job you foist upon the bench. Perhaps she found them a better read than expected.”

  The judge turned to Sasha. “Ms. McCandless, having read Mr. Collins’ papers, are you prepared to tell me your client does not consent to the relief he’s seeking?”

  Sasha opened her mouth to answer.

  Apparently, the question was rhetorical, because Judge Cook kept going. “Hemisphere Air is willing to risk the lives of, hundreds, thousands, who knows how many, Americans rather than ground a tiny percentage of its fleet to rule out a mechanical error that could have caused Monday’s crash? Is that what you’re saying, counselor?”

  “Your Honor, if I may . . .”

  “Answer my question. Yes or no.”

  “Hemisphere Air does not consent to grounding eleven planes with no known or suspected mechanical problems, Your Honor.”

  Judge Cook glared at her. She braced herself for his reaction, but his attention shifted to the back of the room. Sasha risked a peek over her shoulder, thinking Connelly hadn’t been gone for very long. But, instead of Connelly making his way up the aisle, she saw Vivian Coulter slipping into the last row of seats.

  She recognized Vivian from photographs she’d seen in the Business Times and on the Post-Gazette society page. Vivian was close to six feet tall, with a strong, square jaw and broad shoulders. She wore her light brown hair in layers to her shoulders. She reminded Sasha of Kathleen Turner. Old, depraved Kathleen Turner from Californication, not young, hot Kathleen Turner from Body Heat.

  She just hoped Vivian didn’t belong to Noah’s country club. Sasha didn’t mind arguing to an angry judge, but an apoplectic one would be distracting.

  The judge returned his attention to the lawyers standing before him.

  “I haven’t got all day. Let’s get started. Mr. Collins, I’d like you to focus on the irreparable harm requirement and its interplay with the public interest prong of the test.”

  He lowered himself into his chair and nodded at Mickey.

  So far, so good. The judge had given Mickey the blueprint for his argument. All Mickey needed to do was follow it and he should win.

  Sasha started to sit, too, but remembered the Simon Says rules from the previous day and straightened back up to standing.

  The judge held up a hand to stop Mickey before he began. “Ms. McCandless, if you’ve finished your deep knee bends, kindly sit do
wn. You’re distracting the Court with your antics.”

  Warmth spread across Sasha’s face and she sat. The deputy clerk flashed her a quick smile. He remembered, too.

  “Your Honor,” Mickey began, “the plaintiffs, on behalf of the putative class, seek an order grounding eleven planes until the cause of the crash can be determined or, at a minimum, testing confirms that these eleven planes are free of defect.”

  Mickey might not have been much of a writer, and his offices may have left something to be desired aesthetically, but he was a master storyteller. He settled into a rhythm right away, and his tone was grave and full of authority.

  Sasha listened with one ear as she scanned the printouts from Warner. There had to be something incriminating in the papers. She just had to find it.

  “The plaintiffs seek this extraordinary relief, not only to preserve evidence that could explain why their daughter and her fellow passengers died, but also to protect the interests of the flying public. At present, there is no explanation for Monday night’s crash other than the plane stopped responding to the pilot’s controls and flew itself into a mountain.

  “Now, Ms. McCandless will argue this was a fluke, a one-off anomaly. Should travelers be required to take that on faith? If she’s wrong and another plane crashes, well, the harm will be, not just irreparable, it will be inexcusable, because it is so avoidable. Right now, today, Hemisphere Air can decide to protect the public. The real question, Your Honor, is what is the harm to Hemisphere Air in doing the right thing?”

  Sasha looked up. The judge was nodding along with Mickey, who was gesturing broadly as he moved through his points.

  She went back to the papers in front of her. Behind Angelo Calvaruso’s consulting agreement, there was an identical agreement between Patriotech and someone named Harold Jones. Whoever had created the document had copied it from Calvaruso’s and neglected to change the footer, which still read “Calvaruso IC Agreement.” Warner’s key word search must have tagged it as a hit based on the footer.

  Sasha felt a rush of adrenaline. She took the agreement from the stack and put it aside. Harold Jones. With any luck, she had just identified the second cancer patient.

  “The relief requested by the plaintiffs is extremely narrow and minimally intrusive to Hemisphere Air’s business,” Mickey was saying. “By taking just a small number of planes out of service, they could safeguard the lives of hundreds, if not thousands, of fliers, as well as countless other innocent citizens. Flight 1667 happened to crash into a mountain, but the next plane to crash could collide with another plane or fly right into a building, killing many more people than those onboard.”

  Mickey paused here to let an image of the September 11th destruction develop in the judge’s head.

  Sasha pulled a spreadsheet from the stack. It was a draft expense report for the current month, set out in tiny font. She held it up close to her face to read. The equipment category had two entries for smartphone. Each listed a ten-digit number that began with 301, the area code for Bethesda. Presumably, these were telephone numbers. One was labeled Calvaruso; the other one, Jones.

  Sasha’s heart quickened. She scanned the rest of the sheet. Under travel, there were a dozen or so entries, but two jumped out. The first had Monday’s date and the notation Calvaruso 1667. The other read Jones 1480 and had Friday’s date. She circled it. Flight 1480 was Metz’s redeye back from Washington State. There were two other notations that listed Jones and Calvaruso. Calvaruso’s Pittsburgh to D.C. flight and a flight from Pittsburgh to Seattle for Jones on Tuesday morning.

  Harold Jones, recently hired as an independent consultant and in possession of a smartphone issued by Patriotech, was currently in the Seattle area with a ticket to travel across the United States on a plane that had been retrofitted with a RAGS link.

  Sasha stared at the expense sheet in her hand. The room got very small and her mouth went dry. This was it. She craned her neck to check the gallery. No Connelly.

  “Ms. McCandless!” Judge Cook cut through her mounting excitement.

  She sprang out of her chair. “Your Honor?”

  “I am so terribly sorry to interrupt your daydreaming, counselor. Would you consider deigning to respond to the Court’s question?”

  “Of course. I apologize, Your Honor.” She could feel Vivian’s eyes boring into her back. She looked at Mickey in a silent plea for help.

  He spoke slowly. “Your Honor, if I may. Before Ms. McCandless addresses the issue of how grounding such a small number of planes could be deemed disruptive to her client’s business, I do want to add that, if you grant our order, and subsequent testing indicates the planes are not defective, we would be willing to take into consideration any costs related to the interruption to Hemisphere Air’s business later on down the road, when we make a settlement demand in the class action. That’s not in our papers, but it seems like a more than fair thing to do.”

  Sasha got her feet under her, thankful Mickey had hit his stride enough to repeat the judge’s question for her benefit.

  “Your Honor, while Mr. Collins’ offer might seem more than fair to him, it is a complete nonstarter for my client. First, Hemisphere Air is confident that, should this case even proceed beyond the class certification stage, it will be thrown out on a motion to dismiss. Why, then, would Hemisphere Air incur a loss now in the hopes of offsetting it in a settlement that, frankly, is unlikely to ever come to pass?”

  She paused to gather her thoughts and the judge jumped in. “You think I’ll dismiss it? Why, do you have information that one of the pilots had a Primanti’s sandwich before take off?”

  He was smiling. Was she supposed to laugh? The court reporter stifled a giggle and Brett chuckled. Mickey, not in on the joke, looked baffled. She settled for a small smile.

  Then she continued, “Second, the notion that there’s anything wrong with any of Hemisphere Air’s planes, including, I might add, the one that crashed three days ago, is pure speculation.”

  All traces of the judge’s smile disappeared, as though it had never existed.

  “I think we can go out on a limb and assume that there was something wrong with the downed plane,” he said.

  “Maybe so, maybe not, Your Honor. The circumstances surrounding Monday’s tragedy will come out through discovery. In the meantime, the harm to Hemisphere Air’s shareholders, who will lose value; employees, who will lose hours and corresponding pay; and travelers, who will be inconvenienced, are all real.”

  “Surely, you aren’t equating the loss of value to shareholders with the loss of human life, Ms. McCandless? I thought even Prescott & Talbott lawyers would have some minimal humanity.” Judge Cook’s nostrils flared and he leaned back in his chair, recoiling like she was something fetid and unappealing.

  “Of course not,” Sasha said, moving in for the kill, while he was good and agitated.

  “The irreparable harm will come from the public relations fallout that Hemisphere Air will sustain. Imagine the loss of trust the company will suffer when it suddenly takes some, but not all, planes out of service shortly after a fatal crash and then puts them back in service, saying there was never anything wrong with them in the first place, which is, after all, the likely outcome? Travelers will lose confidence in the safety of Hemisphere Air’s fleet. Not to mention, they will be skittish about booking flights on Hemisphere Air. They’ll worry that the company might pull more planes out of service, they won’t want to take the risk of being stranded or delayed. It will be a nightmare. The damage to the company’s image will be irreparable.”

  The judge stared at her. Then he said slowly, “The public relations hit to your client’s reputation is an irreparable harm that outweighs the loss of human life? Is that your argument, Ms. McCandless?”

  “No, Your Honor. The certain harm to Hemisphere Air outweighs the remote and theoretical loss of life. Any plane could crash. Why stop with eleven? Why not ground Hemisphere Air’s entire fleet? Or, for that matter, why stop with H
emisphere Air? Why not ground all U.S. commercial flights until we know for sure what happened on Monday night?”

  Sasha stood there for a minute, waiting to see if Judge Cook had any more questions. He did not. He just shook his head in a show of disgust.

  Sasha felt disgusting. She had spun the argument out to its absurd conclusion. Aside from Mickey, everyone in the room probably thought she was the lowest form of scum. Except for Vivian. Vivian probably thought she hadn’t gone far enough in her defense of the company.

  “I’ve heard enough. Mr. Collins, I am going to grant your motion. Ms. McCandless raised one good point—I’m certain it was quite by accident. Are you sure you want to limit it to the eleven planes you identified in your papers? Speak now or forever hold your peace.”

  Mickey continued to play the role of World’s Most Reasonable Plaintiff’s Attorney. “Yes, Your Honor. The plaintiffs believe the planes most likely to share any defect that might have existed on Flight 1667 are the eleven that we have identified on the basis of make, model, and time in service.”

  The judge leaned forward and pointed at Sasha. “In light of Ms. McCandless’ cavalier attitude toward human life, I am going to provide a copy of this temporary order to the U.S. Marshals and ask them to ensure that the affected planes are grounded immediately. I would not normally involve the Marshals Service in a civil matter, but the callous disregard of Hemisphere Air’s counsel causes me grave concern that this order will not be taken seriously absent law enforcement involvement.”

  He arched a brow and scrawled his name with a flourish across the proposed order that Sasha had drafted for Mickey to submit. He motioned for the deputy marshal against the wall to come up and take it.

  “Have your office make copies of that, will you?” he said, as he handed it to the deputy. Without further comment, he stood and left the courtroom, trailed by Brett and the court reporter.

  Having taken her scolding like a big girl, Sasha was packing up her briefcase and steeling herself to talk to her client, when Mickey walked over and stuck out his hand.

  “Well done, counselor.”

  “You, too.” She lowered her voice and said, “I won’t forget this. Thank you, Mickey.”

  He held her elbow while he said, “Just make sure your air marshal friend nails Irwin’s ass to the wall. Where is he, anyway?”

  Good question, Sasha thought.

  “He must have gotten held up in the U.S. Marshal’s office.”

  “You okay facing the music alone?” He inclined his head in Vivian’s direction.

  She gave a slight shrug. “It can’t be worse than what’s going to happen when I get back to the office.”

  She slid the printouts from Patriotech into an unlabeled folder and buried it in the middle of the papers in her bag.

  Mickey was still standing there, waiting for something.

  “I’m sorry I suspected you were working with Irwin.” That had probably stung.

  He waved it off. “Forget it. Listen, no matter what happens with those soulless pricks at your shop, you’re the real deal. What you did today, that was good.”

  He suddenly looked embarrassed, like he’d said too much. He clasped her on the shoulder and walked away, past Vivian, and out the door.

  She appreciated what Mickey tried to do with his pep talk. She might have been on the side of the angels with this argument, even though her behavior was, without question, unethical, but Judge Cook had her number.

  She was nothing but a corporate whore. If Mickey had filed a similar motion in the case, without the backdrop of the RAGS link and the murders, Sasha had no doubt she would have stood in this courtroom and made the same arguments she’d made today. The only difference was she would have meant them.

  She pushed it out of her mind. She needed to find Connelly and pass along the information about Jones and the flight from Seattle. Then, she could ruminate on what was left of her career.

  Sasha walked over to her client. Vivian had her cell phone jammed in her ear and was hissing at someone. Probably reporting back to the board. She clicked it shut without saying goodbye.

  “Vivian,” Sasha said, plastering on a smile and extending her hand, “it’s nice to finally meet you. I wish the circumstances were different.”

  Vivian’s eyes were gray and cold. They looked like the October sky. And, just like the sky, they held the promise of thunder.

  “Sasha.” She took Sasha’s hand and arranged her mouth into a smile.

  “So, not the outcome we were hoping for today. Cook was a bad draw.”

  Noah had told her to never apologize to a client for a bad outcome. You didn’t want them to get the idea that it was your fault.

  “Indeed.” Vivian said.

  “I assume you’ll want to file an appeal if we can? I’ll get an associate on it when I get back to the office, but the judge’s order sounds interlocutory in nature, so we may not be able to appeal.”

  Final orders were appealable. Interlocutory, or non-final orders, were not. Typically a temporary restraining order was not considered final because it was, well, temporary. But, appellate lawyers rarely let a little detail like that get in the way of a good argument.

  Vivian’s answer surprised Sasha. “I’m not sure we do. An appeal may just drag this out and, as you noted, it is a public relations disaster. It might be better to just ground the planes, do the testing, and move on. We’ll need to make a formal recommendation to the board, of course. But, that’s my current thinking. We can talk through the strategy on the way out to headquarters.”

  “You want me to attend the board meeting with you?”

  “You’re our company’s lawyer for this matter. Of course, you’ll attend the meeting. It’ll be a conference call, actually, given the short notice. And we’ll also need to issue a press release. Public relations will want to run that by you.” Vivian smiled again. Sasha had never seen a smile so devoid of warmth.

  “Are you sure you don’t want to have someone else . . .”

  “Do you want to run with the big dogs or not, Sasha?”

  Sasha just nodded, not quite sure what to say.

  As they waited for the elevator in awkward silence, Sasha checked her phone to avoid further conversation with the amazon standing next to her.

  Connelly had texted her during the argument.

  Irwin called. Going to meet him now. Good luck. After argument, GO STRAIGHT BACK TO OFFICE.

  No worries there. As soon as she got through this presentation to the Hemisphere Air board of directors she planned to hole up in her office and bury herself in paper. She was glad to be done with the intrigue and drama. She didn’t feel like a very big dog.