Chapter 21
I WAS EXPECTING to go toe to toe with Marcus Mason about my witness list, not with Judge Ruhlin. But right out of the gate she had me in her crosshairs.
“Before we start, I would like to ask you a question, Mr. Haller,” she said.
“Of course, Your Honor,” I said, moving to the lectern.
“How many civil cases have you brought in federal court before this one?”
I thought I heard one of the Masons quietly snicker. Before answering, I casually turned and glanced at the gallery to confirm that there were no recognizable members of the media in attendance. Jury selection was rarely a newsworthy part of a trial.
I returned my focus to the bench.
“Uh, that would be none, Judge,” I said. “But I have handled several criminal cases over the years. Here and in superior court.”
“I guessed as much, Mr. Haller,” Ruhlin said. “Because I see you are employing a trick that may work on the criminal side but does not have a place on the civil side and especially not in this courtroom.”
“Judge, I’m not sure I understand.”
“Yes, I think you do. You’re playing hide the ball, Mr. Haller. I counted forty-eight witnesses on your list. Forty-eight, including the name you added this morning after the deadline.”
“Yes, Your Honor.”
“Mr. Haller, I know that you will not be putting forty-eight witnesses on the stand. You are hiding your trees in the forest, and we don’t have time for your games in federal court.”
“Your Honor, I—”
“Don’t interrupt me, sir. I am now going to retreat to my chambers to make a phone call. I will be back in twelve minutes. That’s how long you have to cut this list to a true and accurate accounting of witnesses you intend to call to the witness stand.”
“Judge, I intend to call them all.”
“Don’t kid me, Mr. Haller. And don’t try my patience.”
“I’m not trying to do either, Your Honor.”
“Very well, then. I am putting you on notice that you will be fined one thousand dollars for each person on this list who is not called as a witness during the presentation of your case.”
“Judge, that’s not—I intend, as of right now, to call them all, but strategies can change midcourse in a trial. I am sure the court understands this. I remember when Your Honor was a practicing—”
“What you have to understand, Mr. Haller, is that I am not going to allow you to waste the court’s time. Twelve minutes. We are adjourned.”
Ruhlin left the bench and went through the door that led to her chambers.
This time I unmistakably heard the snicker from the Masons’ table.
I ignored it as I went back to my table, opened my briefcase, and took out my laptop.
I pulled up the witness list that had been submitted to the court and amended with the name Naomi Kitchens.
The reality was that the judge had nailed me, but I wouldn’t admit it on the record.
The list was stocked with people I could call, but their testimony would be repetitive of other witnesses.
For example, I didn’t have to call both detectives assigned to the murder of Rebecca Randolph, since they would essentially tell the jury the same thing.
Same with the coders who worked on Project Clair.
The list had been designed to keep the Masons guessing and busy running down my witnesses for depos and background checks.
That way they’d presumably be distracted from their own case.
“Mickey, are we in trouble?” Brenda asked.
I looked over at her. Both she and Trisha had looks of concern on their faces.
“No, we’re fine,” I said. “The judge is just flexing her muscles so we know who’s in charge. That’s all. I was going to cut my list down on Monday anyway.”
I went to work on the list. On my first go-through, I quickly and easily deleted nine names.
I wondered if that would satisfy the judge but decided I had to cut more.
I checked the time, saw I still had six minutes, and went back to work.
After one more thinning of the herd, I sent the new list to the clerk for submission to the judge and the defense team.
Ruhlin returned to the bench promptly at the twelve-minute mark, carrying a printout of the new witness list.
“Mr. Haller, I appreciate your effort to cull your list,” she said. “I still believe that twenty-three names is excessive, but we will see how many survive challenges from the defense. Misters Mason, I believe you have the new list. Do you object to any of these witnesses?”
Mitchell Mason stood and went to the lectern. I was surprised it wasn’t Marcus taking the reins. The witness list was the backbone of the case.
“Your Honor, where do I begin?” Mitchell said. “I mean, even at twenty-three names, this list is—”
“Do you have an objection to a specific name, Mr. Mason?” the judge interrupted.
“To many of them, Judge.”
“Then what do you say we just start with one of them? We have a jury pool waiting to come into court for voir dire. Let’s not keep them waiting too long.”
“Yes, Your Honor. The defense objects first and foremost to Naomi Kitchens.”
“State your grounds.”
Before beginning, Mitchell glanced over at his brother sitting at the defendant’s table.
“Thank you, Your Honor,” Mitchell said. “Ms. Kitchens is a former employee of Tidalwaiv who was dismissed for performance issues and whose record of hostility toward the company renders her testimony unreliable. But, Your Honor, all of that is moot because Ms. Kitchens signed an ironclad nondisclosure agreement that prevents her from discussing anything she did or observed while in the employ of Tidalwaiv. She simply can’t be allowed to testify.
Last, counsel for the defense is out-and-out sand—”
“Counsel for the defense?” Ruhlin asked.
“Apologies, Your Honor,” Mitchell said. “Counsel for the plaintiffs. I guess I’m used to Mr. Haller defending criminals.”
Yeah, right—as if he hadn’t been waiting for the right moment to make that “mistake.” I objected, just to knock Mitchell out of rhythm. The judge overruled.
“May I continue, Your Honor?” Mitchell asked.
“Please,” the judge said.
“Thank you. Your Honor, plaintiffs’ counsel is clearly trying to sandbag us.
He’s been hiding this witness. She was on neither of the preliminary witness lists and suddenly appears on this list in an amendment filed just minutes before court was convened so that we had little time to prepare our objection and when he has known for weeks that she would be on the list. The bottom line, Your Honor, is that any one of these arguments is enough to remove Naomi Kitchens from the witness list. Taken as a whole, the court has overwhelming reason to strike her. ”
Finished, Mitchell turned from the lectern and headed back to his table without waiting to see if the judge had any questions.
“Very well,” Ruhlin said. “Mr. Haller, a response?”
I jumped up quickly and went to the lectern like a man on a mission. Along the way, I saw Marcus Mason whispering to his brother and pointing a finger in the air to make his point. He had seen the mistake his twin made, but it was too late.
I had seen it too.
“Your Honor,” I began, “before I argue the points Mr. Mason thinks he made, I would ask the court to inquire about his statement that I knew ‘for weeks’ that Naomi Kitchens would be a witness in this case. The facts are, Your Honor, that I did indeed meet Professor Kitchens several weeks ago and then again this past Friday. But she felt intimidated and afraid of Tidalwaiv and did not, in fact, agree to be a witness until shortly before nine this morning. If you wish to confirm that, we can set up a teleconference with Professor Kitchens at the court’s convenience.
But that aside, Your Honor, Mr. Mason’s statement indicates that the defense team has been surveilling Professor Kitchens because they know her value as a witness for the plaintiffs in this case.
They did this with Mr. Patel and now Naomi Kitchens.
It’s called witness intimidation, Judge, and I would like it stopped. ”
I saw the skin around the judge’s eyes tighten, and when she spoke, an unmistakable but controlled anger had entered her voice.
“Mr. Mason,” she said. “Do you care to offer an explanation for the knowledge you seem to have of Ms. Kitchens’s status as a witness?”
Mitchell Mason stood up and moved to the lectern as I backed away. He seemed to be two shades paler than when he had stood there a few moments before.
“Thank you, Your Honor,” he said. “I can assure you that no attorney or staff member of the law firm of Mason and Mason has had any witness or opposing counsel under surveillance at any time. Mr. Haller is just trying to—”
“That’s all well and good, Mr. Mason,” Ruhlin said. “But what about your client? Did you receive information from your client as to who Ms. Kitchens or Mr. Haller and his staff were meeting with?”
Now Marcus Mason stood up and came to the lectern in an attempt to rescue his brother.
“Your Honor, if I may be heard?” he said.
“Go ahead,” Ruhlin said. “We are losing the morning with this, but go ahead.”
“Thank you,” Marcus said. “As my brother said, Mason and Mason has not engaged in any surveillance or intimidation of witnesses. But as he said earlier, and as with Mr. Patel, Ms. Kitchens was terminated from Tidalwaiv for cause and was deemed a security threat by the company. As such, the company took measures to protect itself. And this was long before any lawsuit was filed by the plaintiffs. No laws were broken by these procedures. They were perfectly acceptable and legal. Mr. Haller has made it a routine during this legal action to seek out as witnesses those who left the company under rancorous terms in hopes that he will sway a jury with false and biased testimony harmful to the company.”
I had stayed standing at the plaintiffs’ table, ready to respond.
“Your Honor?” I said. “May I—”