Surprise Witness: A. Stein & Associates Thriller Read online

  Will sat.

  “We have to assume Baylie will ask Mauricio about his status if you put him on the stand,” Aaron said. “If Mauricio were legal, his son would have been, too. But Baylie knows José was undocumented before he married his American wife.”

  “I agree,” Will said, “but do you think Mauricio’s service record trumps the fact that he’s undocumented? That is, would the jury overlook the immigration problem because Mauricio served his country?”

  Aaron shrugged. “You can’t be sure.” He shifted his gaze to his senior associate. “Marlon, what do you think?”

  “Forget the jury for a moment,” Marlon responded. “Remember what you said earlier when we were talking about José, Will. If Mauricio admits his status in open court, that fact is on public record. What if the immigration authorities find out about him? We don’t know the answer to that.”

  Will’s shoulders slumped. “I can’t call him. Damn it!” He pounded his fist on his knee.

  “You’ll be fine,” Marlon said. “There has to be another employee who can testify to the materials handling issue. He might not be your best witness, but you can make it work.”

  “Yeah, come on, Will,” Cassandra said as she stood. “Let’s get back to work. I’ll reread Mauricio’s deposition and identify candidates for replacing Mauricio. I’ll draft the revised witness list to file tomorrow, too. You can decide who you’ll call tomorrow instead of Mauricio and get him or her lined up to be in court on time.”

  Will looked around at his colleagues. He felt a surge of renewed energy.

  “Sounds like a plan. Oh, and José.” Will turned to his client. “I’m sorry I kept you so long. You must be exhausted. Jim will take you home now.”

  A few minutes later, Aaron’s big corner office was empty and dark.

  Chapter 5

  Take the Fifth

  Will maneuvered his Prius through the tight fit into the garage as the motion sensor light came on. He glanced into the rearview mirror to make sure the garage door closed completely. He would have to get to that rusty mechanism and grease it one day.

  As he reached for the door handle, his reflection in the mirror caught his eye. He was reminded of Marlon’s comment, one evening over drinks, on Will’s appearance. Will would have made a perfect spy, Marlon had said. Will understood. With his unremarkable appearance, Will blended into a crowd. Marlon had hastened to add that Will had a great smile, however. The face in the mirror grinned. Gathering up his old leather briefcase, Will got out of the car and unlocked the lower-level door to his house.

  “Norma, I’m home,” he called as he crossed their finished basement and started up the stairs. He glanced at his watch and grimaced. Ten o’clock. He had to get to bed soon to get an early start tomorrow.

  Norma met him as he reached the top of the stairs. They murmured greetings as she leaned in for his embrace and kiss. She took his hand and led him toward the kitchen. For the first time since he had left for court that morning, Will relaxed.

  “Wine?” Will asked. Norma nodded her approval. Will took a chilled bottle out of the refrigerator, opened it, and poured her a glass. He chose a Corona for himself and popped off the cap. Just one, he thought as he leaned back onto the granite counter. It would help him sleep.

  “How was your flight?” Will asked. Norma had returned earlier that day from Spain. An engineer, Norma worked for a multinational wind energy production company. Part of her job included travel to assist in wind farm inspections.

  Norma yawned in reply. Both laughed.

  “Fine,” she replied. “Uneventful.” She took a sip of her wine. “How’s the trial going?”

  Will filled her in, skimming over all of it except the revelation about José’s fake social security card.

  “What did you decide to do about it?” Norma asked.

  “Punt,” Will answered. Norma, whose exposure to American football was decidedly limited, looked confused. “We did the best we could with limited options,” Will explained. “We couldn’t get advice from anyone during the break. It was lunch hour, after all. So, Aaron instructed me to have José ‘take the Fifth.’ Aaron told me exactly how to do it. When we all looked surprised, he said it had happened to him, once, years ago. It worked for him, and maybe it would for me and José.”

  “And?” Norma inquired.

  “Worked like a charm,” Will answered. “I requested that the clerk read back the last question from the transcript, which she did. I rose and said in the most solemn tone I could muster: ‘Mr. Marquez, do you choose to utilize the rights guaranteed to you and other citizens by the Fifth Amendment to the United States Constitution and refuse to answer that question?’ José said, ‘I do.’ And that was that. Went right over the jurors’ heads. None of them batted an eyelash.”

  Norma laughed. “You’ve told me Aaron is good,” she said.

  Will nodded. “Really good.”

  Will was on the verge of telling Norma about his other immigration problem but bit his tongue. The District of Columbia had abolished the marital privilege. He could and did tell Norma almost, but not quite everything.

  Norma yawned again and said she was ready for bed. She invited Will to join her, but he declined.

  “Tired but wired,” Will explained with an attempt at a grin.

  Norma nodded. They had been married long enough that she knew what Will was like during a trial. She kissed him and retired to their bedroom.

  Will, restless, idly fingered the stack of mail on the kitchen counter. Might as well do something constructive, he told himself, extracting a letter from the top of the stack.

  He opened the envelope addressed to him from the District of Columbia Bar Association. The enclosed letter announced the two candidates for the upcoming election for the president of the organization. Will would vote this year, as he always did. Not recognizing either from their pictures, he scanned the candidates’ bios. Will noticed that one of the candidates originally hailed from Baltimore. He had attended high school at Gilman, an exclusive private school outside Baltimore.

  Will’s father had tried so hard to get Will into Gilman, but Will’s application was rejected. The lump rose in his throat. After all these years, Will chided himself. Still, he let the wave of embarrassment and disappointment run through him, anyway.

  After Gilman rejected him, Will’s father comforted him. He assured Will that he would do as well in life as those kids who grabbed the Gilman golden ring. Will would have to work harder than they.

  After attending a local community college, Will finished his degree in biology at Catholic University. He taught high school biology in Baltimore public schools, studying for his law degree at night.

  With his law degree in hand, Will hit the job market hard. He mailed dozens of applications to law firms across the D.C. metropolitan area. He took the only job offer he received, with a sole practitioner in Gaithersburg, Maryland.

  Will tried routine slip-and-falls and car accidents for ten years before his luck turned. He landed a job with Aaron Stein. To Will, a position at Aaron’s was good fortune, indeed. He knew, however, how the corporate bar looked down on med mal practitioners. No graduate of Gilman would have considered working for Aaron.

  Will shook himself back to the present. He had to try to get some sleep. He had already made a bad mistake in this trial. He would not allow himself another.

  Chapter 6

  An Unpleasant Surprise

  Trial Day 2

  The clock on the wall behind the Judge’s dais read 4:10 p.m. They had been at this since 1:00 p.m. Will needed a break.

  “Give me a minute, Your Honor?” Will asked. Judge Storer nodded.

  Will smiled at Dr. Moraski, perched jauntily at the edge of his chair in the witness box. Of course, Will thought, José’s treating doctor was unfazed. What had been a grueling three hours for Will and far too much for most witnesses to handle was nothing to this doctor. He performed ten-hour, life-and-death surgeries daily.

  Will turned and strode back to counsel’s table to check his notes. Ready to wrap it, he decided. He returned to his usual examination post in front of, but not crowding, his witness.

  Q:What, in your opinion, is José’s prognosis, Dr. Moraski?

  Glancing at the jury box, recognizing looks of uncertainty, Will rephrased.

  Q:What does the future hold for José in terms of his physical condition, given what has happened to him?

  A:José will, unfortunately, suffer from recurrent back pain all his life. His movements, particularly his walk, will be stiff and ungainly because of the fusions to the vertebrae I had to perform to save his life. The severe trauma to his spine from the fall will cause continued deterioration of the vertebra. Therefore, he is likely to need additional surgeries as he ages.

  Q:Would you please tell the jury what you mean by “continued deterioration”?

  Dr. Moraski rose, the pointer he had used earlier in the afternoon still in his hand. He walked to the easel sitting directly in front of the jury box. He indicated the cervical spine on the life-size illustration of the human spine drawn on the poster board propped on the easel. In his clear, tenor voice, Dr. Moraski began his explanation.

  A:This is C-6, directly below the site of the first fusion …

  As the jury listened attentively to Dr. Moraski, Will’s thoughts momentarily drifted. He knew he was decidedly
old-school in using poster boards and paper documents. The younger lawyers used a laptop and flashed digitized images on the white board hanging on the wall to the left of the jury box. After decades of doing it his way, however, Will stuck to the tools with which he was most adept.

  Trying a case was already like being the ringmaster in a four-ring circus, without adding new technologies to the mix. In the center ring, Will struggled to get the witness from meandering off into damaging territory. Opposing counsel interrupted with objections which Will fought to overcome. He had to argue with the judge over unfavorable rulings without showing disrespect. Last but most importantly, Will clued the jurors with every word he spoke and every move he made. He must convey honesty and integrity and win the jurors to his side. To be further distracted by crotchety electronic gadgetry was more than Will could handle.

  Dr. Moraski concluded his testimony and returned to the witness box.

  Q:Do you hold the opinions you have testified to today to a reasonable degree of medical certainty?

  Clumsy, Will knew. He had to ask the question, though, to establish the final element of admissible opinion evidence.

  A:I do.

  Will hesitated, giving the jurors time to absorb Dr. Moraski’s grim predictions and him a moment to consider asking one more question. He had another witness with the answer he wanted. His vocational rehabilitation expert would testify about José’s diminished work capacity and loss of future earnings. Still, he could see that Dr. Moraski had established a good rapport with the jury. Two of the jurors nodded appreciatively when Will walked the doctor through his impressive credentials. All of them remained attentive to Dr. Moraski’s testimony even through the driest stretches of technical medical details. Go for it, Will decided. The worst that could happen was an objection from Baylie.

  Q:Will José be able to work again, in your opinion?

  No objection from Baylie, to Will’s surprise. He glanced over. Baylie was not looking at the witness but down at his notepad. Hah, Will thought. It had worked. Baylie was too busy thinking about his cross.

  A:How much he is going to be able to do for his company is a big unknown. But he certainly will not, physically, be able to play the dominant role that he has in the past.

  A:Thank you, Dr. Moraski.

  Will turned back and nodded at Baylie. “Your witness.”

  Two hours later, Will and Cassandra sat motionless in their cab. They had been lucky to nab it just outside the courthouse, on the corner of Third and E. But now, they were stuck in rush-hour traffic. Will leaned back against the headrest and closed his eyes.

  “What is it about this trial?” he asked petulantly. “I’m a good lawyer. I prepare. Thoroughly. I don’t get unpleasant surprises. In this one, I’ve already had two,” he groaned.

  Towards the end of his cross-examination of Dr. Moraski, Baylie handed the court clerk, the witness, and Will copies of a document. Will realized, with a jolt, that this document was not in his file. He had barely a second to absorb its contents.

  Baylie asked that the document be admitted in evidence. Will stood and objected. Summoned to the judge’s dais, the attorneys argued furiously but, as far as everyone else in the courtroom was concerned, silently. Judge Storer had activated the husher.

  “Your Honor,” Will began, “we asked for all relevant documents in discovery. The defense did not produce this one. They cannot use a document they failed to disclose before trial.”

  Judge Storer switched her attention to Baylie.

  “We only received this document from the insurance company yesterday, Your Honor,” Baylie responded. “Besides, Mr. McCarty could and should have had all of Mr. Marquez’s medical records whether or not we provided them. That’s his job.”

  “Overruled,” Judge Storer said without hesitation. She admitted the document, the record of an emergency room visit José made to Sibley Memorial Hospital three months ago.

  José had been a passenger in a company vehicle driven by one of his newer employees. A Mercedes SUV rear-ended their truck on Western Avenue. The cops came. The driver of the SUV admitted fault and was given a ticket, and insurance information was exchanged. Neither vehicle appeared to be damaged, and José claimed he was fine. However, because José was only a month post-op, his employee insisted on driving his boss to Sibley.

  José’s recent car accident was as much a surprise to Dr. Moraski as it was for Will. And Baylie pushed the witness, hard, to admit that the impact of the collision worsened José’s condition.

  If Dr. Moraski had caved to the pressure, his testimony would have thrown a very big wrench into Will’s case. Will claimed that all of José’s damages, totaling in the millions for medical expenses alone, were caused by his fall at the construction site. Baylie was trying to shift the blame, and a sizeable percentage of the damages, to the car accident.

  To Will’s immense relief, Dr. Moraski, calmly but firmly, rejected Baylie’s theory. When Baylie tried to cut him off, Dr. Moraski insisted on explaining to the jury why the recent accident caused José no harm.

  After Dr. Moraski left the stand, Judge Storer excused the jury. She also reminded them, as she did every day, not to discuss anything about the evidence or the trial with another juror, family member, or anyone else. She then adjourned court for the day.

  José apologized profusely to Will as he and Cassandra packed their bags. “I didn’t purposefully withhold the information,” he explained. “I simply forgot all about the accident. It was such a minor fender-bender. I was in the ER only a half hour or so, and a thousand more serious matters captured my attention between then and now. I am so sorry.”

  Will struggled to conceal his irritation with his client. Will had been blindsided. Again. Will’s surprise had been evident to Baylie and the judge. That stung. He remembered that feeling too well. Will stumbled badly in his early trials. He began to doubt his ability to play in the big leagues in Washington. He worked harder. He had succeeded, but all could too easily be lost.

  Will pulled his attention back to his client. José’s cheeks were drawn, and a sickly, grayish pallor darkened his light caramel complexion. It was not José’s fault, Will scolded himself.

  “It’s okay,” Will said, putting his hand on José’s shoulder. “I understand, and Dr. Moraski stopped Baylie in his tracks, anyway. Jim will take you home now. Relax and get some rest.”

  Their cab lurched forward just as Cassandra reached over and patted Will’s hand. “You’re a med mal lawyer, Will,” she said soothingly, “and a very good one.” Will’s thoroughness was renowned throughout the med mal bar, among both plaintiffs’ and defendants’ lawyers. “But you haven’t handled a personal injury case in ages. Personal injury is a different world, you know.”

  Will sighed. He thought back to those slip-and-fall cases he had tried for so many years. The big battles focused on the client’s credibility. Was that back pain, of which the client complained, real or a ploy to run up the bill for damages? Aaron’s cases centered on medicine and science. “Yeah, you’re right,” he agreed. “The roadmaps for success in the two are very different.”

  “And I don’t think Baylie scored any points with the jury, do you?” Cassandra asked.

  Will sighed, again, but opened his eyes and sat up. He had expressed confidence for his client’s sake, but he had his doubts. “Maybe not,” he said. “Won’t know until it’s over. Anyway, let’s think, what all do we have to do between now and 9:00 tomorrow morning?”

  Chapter 7

  Pro Bono

  Betsy set down her ladle and straightened herself. Cradling her back with both hands, she leaned back and stretched.

  She caught the eye of the woman in front of her station: Diminutive, of uncertain age—she could have been thirty or sixty—swathed in layers of Goodwill-quality sweaters despite the balmy April evening. She stood, head down, face hidden under the brim of a Washington Redskins baseball cap.