William Bernhardt - Deadly Justice

“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 brief 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.”