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Dan entered the courtroom wondering why he felt such acute anxiety. Compared to other visits to this venue, today should be a snap. After all, he wasn’t even the attorney of record, so technically he didn’t have to do anything except sit in a chair like a phlegmatic android. No one was looking at possible jailtime or a death sentence. He didn’t have a make a brilliant argument. To be honest, he wasn’t even sure what the argument was. He hadn’t even read their brief, though knowing Jimmy, he felt certain it was wonderful.
But there were stakes. Enormous ones, even if they weren’t the usual stakes. He was fighting not only for his name, but his family’s name. His father’s name. And the more he dug into this, the more convinced he became that Sweeney was at the center of it—and had been for a long time. He was certain someone was watching him. Following him.
Jimmy came barreling through the courtroom doors, swinging his satchel like a deadly weapon. He paused breathlessly before he and Maria.
“Whoa, slow down, pardner,” Dan said, holding up his hands. “The deputies are already on edge. You keep moving like that and they’re gonna draw on you.”
“Sorry,” he said, gulping air, trying to catch his breath. “Important.”
“Nothing is that important. You can’t help us if you stroke out.”
“I’m...not...gonna...”
Maria appeared unpersuaded. “Of course, getting some exercise is probably good for you. Those desserts do tend to add up. But next time you decide to work up a sweat, you might take off the cardigan.”
“Would you two clowns just listen to me?” he asked, gulping air. “I found two invoices.”
Maria twirled a finger in the air. “Hurray. More bills to pay.”
“You’re not getting it.” He reached into his satchel and withdrew a file folder. “Two invoices for investigators.”
Maria opened the file. “Where did you find this?”
“In the documents our worthy opponents produced.”
“Why didn’t we see this sooner?”
“Because it was buried in a morass of more than twenty thousand pages of garbage. This was in a box that looked completely irrelevant. And most of it was. But not this.”
“Common trick. It would be contempt of court to not produce requested documents. But there are no rules against producing so much the other side can’t possibly wade through it all.” He scanned the first invoice. “This does confirm what Sweeney alluded to in his deposition. Private investigators.”
“If they’re claiming this is privileged work product, why produce the invoices?”
“The results of the investigation may be privileged, but the existence of the investigation is not,” Dan explained.
“Won’t they have to tell all if they want to use the info at trial?”
“Sadly, no. They’ll tell as much or as little as they like.”
“But you can cross-examine their witnesses, if they put them on the stand.”
“I can try,” Maria replied. “But paid witnesses tend to be loyal to the person who’s paying them.” She tucked the invoices into her notebook. “But this is good work, Jimmy. Thanks for bringing this to my attention.” She laid a hand on his shoulder. “Now sit down and rest. We need you healthy.”
They all took a seat. Dan waved at Drake and Caldwell as they entered the room. Still no client. Sweeney was presumably still too busy to be bothered with anything so trivial as a motions docket. He was beginning to wonder if the man would show up for the trial.
A few minutes later, Judge Fernandez entered the courtroom. After addressing a few preliminary matters, he drew his attention to the motion. “If I understand this, Ms. Morales, you want to compel production of documents and witnesses pertaining to private investigations?”
She rose. “Yes, your honor. During the deposition, the defendant, Mr. Sweeney—”
“Dr. Sweeney,” Caldwell corrected.
She rolled her eyes. “Whatever. He admitted that he has hired people to investigate matters pertaining to this suit. We immediately requested the production of all documents relevant to these investigations, but they stonewalled us.”
Caldwell stood. “Not entirely—”
“Yes, we know you produced the invoices, buried in a box of documents pertaining to something else entirely, but that only tells us, once again, that the investigations exist. Didn’t even give us a clear idea who was hired. So our motion to compel relates to all documents pertaining to these investigations. We assume that will give us the names of the investigators, and then we’ll likely take depositions.”
Judge Fernandez adjusted his gaze. “And I suppose you object to this, Ms. Caldwell?”
“Indeed, your honor. Those investigative reports are privileged work product.”
“That’s not what Sweeney said,” Maria cut in. “He said he hired people.”
“He was speaking figuratively. Dr. Sweeney said he hired the investigator, but that was actually a reference to the work of his legal team. I know, these abstract concepts may be difficult for you to—”
“I still want the documents.”
“As those invoices make clear, the fact is, the investigators were hired by my law firm. They were paid by my firm. Any work generated by them is by definition work product and thus protected from oppositional discovery.”
“Unless is isn’t,” Maria said. “Those invoices could be a smokescreen, which would explain why they were produced. Sweeney hired the investigators, the lawyers realized it was a mistake, so they’re trying to avoid discovery by claiming they did the hiring. We really have no way of knowing, and these invoices don’t prove a thing.”
Judge Fernandez lowered his head and rubbed his temples. “Have any of you read the decisions of Judge Wayne Alley?”
Caldwell hesitated. “I...don’t think so.”
“He was handling a case like this. For some reason, his words come back to me today. He wrote in his opinion, “If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.”
Maria tucked in her chin. “We all hate discovery disputes, your honor. And the easiest way to resolve them is to adopt a liberal approach. Make them produce the documents. There is little to no harm in producing them, but a great deal of harm if important information is kept secret.”
“As a general rule,” Fernandez said, “I do adopt a liberal approach. But when client confidences are involved, or attorney work product, I have to be more strict. Clients must be able to tell their lawyers matters in confidence, and lawyer must be able to prepare a case without worrying that the opposing side will seize everything they scribble on a piece of paper. Or eavesdrop on every conversation they have. Or quiz everyone they hire.”
“But this is entirely different,” Maria said. “Here we’re talking about the results of an investigation. We’re talking about evidence. Not trial strategy. Not confidential discussions. Evidence.”
“If I may,” Caldwell interrupted, “it’s only evidence if we decide to present it as evidence at trial. And if we do, they will receive notice and copies of relevant materials in advance. If we use any witnesses obtained as a result of an investigation, they will see the name on our witness list and they can depose before trial and cross-examine at trial. But the idea that we have to share everything we obtain as we investigate a case is absurd.”
“If the court takes that position,” Maria insisted, “then basically, you’re saying the defendants can decide for themselves what’s important and what isn’t. Which basically means they can bury anything that helps us or hurts them.”
“Do you have any evidence of any relevant documents being buried?” Judge Fernandez asked.
“Well...no.”
“Have they done anything to prevent you from conducting investigations of your own?”
“Not to my knowledge.”
“In fact, you have conducted your own independent investigations, haven’t you?”
“Of course.”
“Have you shared those reports with your opponents?”
“Well...no. But that really is attorney work product.”
The judge gave her a wide-eyed look.
“Because it was conducted by an actual attorney,” she continued. “One representing this client. Garrett Armstrong, a member of my firm.”
“I’m not seeing a distinction.”
“At his deposition, Sweeney made veiled references to his discoveries, suggesting they are relevant and threatening us with them. Saying they were going to make us look like fools at trial.”
“I can see where you would want to see the reports, given those facts,” the judge said. “But I don’t see that you have a right to obtain them.”
“Your honor,” Caldwell said, “I can assure you that this is legitimate work product. I personally hired the investigators and I personally communicated with them. And to the extent that we found anything threatening, the plaintiff will know about it as soon as we exchange witness and exhibit lists.”
Judge Fernandez tilted his head. “That is the way it usually goes.”
Maria did not relent. “Your honor, that’s not satisfactory in this case. When we exchange lists, it will be shortly before trial. We need to know everything these people have up their sleeves—”
Fernandez cut her off. “Ms. Morales, am I correct in my belief that you more frequently appear in criminal courts?”
“Well...yes.”
“Usually on the side of the defendant?”
“Always, your honor.”
“I thought as much. Ms. Morales, the civil courts are a completely different kettle of fish.”
“I am aware that—”
“Seriously. Completely different. A defense attorney can demand that the prosecution turn over all exculpatory evidence. But a plaintiff does not have the same rights. In civil cases, where no one’s liberty is at stake, we have a much more level playing field. No one has an advantage. A plaintiff is expected to prove his own case. In fact, a plaintiff is expected to already have that proof before filing. Otherwise, the lawsuit is brought in bad faith and could be seen as a tool for harassment rather than genuinely seeking reparation for damages.”
Dan didn’t like the sound of that at all. Was the judge trying to send them a message?
“You have the burden of proof. A considerably less stringent burden than the one you’re accustomed to, but still a burden. Which you must meet. Without a lot of whining.”
Maria’s lips parted, but she did not speak.
“So your motion is denied.”
“But your honor—”
“Yes, Ms. Morales, I know you disagree, but I’m the one wearing the black nightgown, so I’m the one who makes the rulings. Now be quiet and listen. I’m not ordering any additional discovery, but I’m not having a trial by ambush, either. When can the parties be ready to exchange witness lists and exhibits?”
Caldwell spoke loud and clear. “We’re ready now, your honor.”
He nodded. “Ms. Morales?”
“We can be ready...very soon.”
“Good. And I don’t want endless laundry lists of every document in your possession. Do your work in advance of trial and produce a list of the items you think might actually be introduced. After you’ve exchanged those lists, you both look them over carefully. If you see any names you don’t know or exhibits you didn’t expect, notice some depositions. But please stop with the discovery disputes. They are irritating, unproductive, and frankly, make you look rather desperate.”
Maria looked like an ice sculpture.
The judge scooted back in his chair. “Is there anything else? Good. I don’t expect to see any of you before the pretrial. Submit your trial briefs, which by the way are limited to twenty pages. I do not want any Homeric epics. Just tell me what the case is about. The issues to be addressed. I expect everyone to be ready to go to trial on time.” He paused. “Without a lot of whining.”
The judge left the courtroom.
Maria fell into her chair in a heap.
Jimmy leaned closer to both of his partners. “What...just happened?”
“I’m not sure,” Dan said.
“Was the judge being sexist? The stuff about whining?”
“I think he just doesn’t like discovery disputes.”
“Or me,” Maria added.
“I didn’t perceive any animus toward you,” Dan said, hoping it was true. “But he is a Bush appointee. Probably leans toward the conservative. And let’s face it—Sweeney is a prominent citizen with a lot of connections. No one wants to be on his bad side. I know Sweeney thinks he controls judicial appointments around here. Maybe Fernandez would like to be on the Fifth Circuit one day.”
“You think Sweeney got to the judge?”
“I don’t think he has to say a word. Everyone knows the kind of power Sweeney wields. No one ambitious wants to be on the wrong side of that.”
Maria flipped her head around. “Bottom line this for me, Dan.”
“You won’t win over the judge with the bleeding heart stuff.”
“Then what?”
“I dunno. Proving Sweeney is a liar. And a criminal. If you do that, then sucking up to him becomes a liability, not a career move.”
Her head dropped lower. “I don’t have that kind of proof.”
Dan pushed himself out of his chair. “Then I guess we know what work remains to be done. And the sooner the better. We don’t have much time left. And I feel relatively certain that Judge Fernandez is not going to be amenable to a motion for a continuance.” He paused. “Or anything else.”