“I STOPPED BY the hospital this morning,” Emma says as she and Catherine enter the elevator on the ground floor of the courthouse. “There’s really no change. They said they’d like to keep her for a day or two longer.”
“Did you feed her breakfast?” Catherine says with a wink.
The door opens on the 21st floor. There is commotion in the hallway and Catherine sighs. “I wish I could just come to the courthouse and practice law without having to deal with a mob of reporters, but here they are, gathered like teenagers outside the stage door of a concert hall.” Catherine nods to Vera Paulson, who wanders over with her cameraman.
“Can I get a few clips for the noon broadcast?” Vera asks politely.
She’s one of the few who conduct themselves with civility, Catherine thinks. “Sure,” she says.
“By the terms of the last court order, your client, Mrs. Stein, is to provide details about how Mr. Henryks was a traitor and a Nazi collaborator,” Vera says. “Are you prepared to do that today, or will you be asking for a continuance?”
“There will be no continuance. We will be filing our affirmative defense this morning, with all the appropriate factual details.”
“Details that show how the words painted on the wall of The Melancholy Dane tavern were true?”
“Were and are. Mr. Henryks was in fact a Nazi informant, a traitor and a collaborator. He betrayed his Danish people and, specifically, Jewish families. As you know, truth is an absolute defense to a lawsuit for defamation, and we intend to win this lawsuit.”
Hearing those words, other reporters rush over with their microphones and video cameras and circle around Catherine and Emma. “We understand,” Vera says, “that Judge Wilson will enter a case management order this morning which will set a firm trial date. Are you going to suggest a date? Will it be far in the future?”
Nick Donnegan, a brash reporter from ABC, steps forward. “What do you think?” he says to Vera. “She’ll ask for a date five years from now. This case’ll never go to trial because these two people aren’t going to live long enough. We’re all wasting our time here.”
“No one required you to be here,” Catherine says. “I’m sure that Judge Wilson will set proper deadlines in accordance with his schedule and the rules.”
“Where’s your client?” Donnegan asks with a grin. “Is she out painting buildings this morning?”
Emma lurches forward. “You’re not funny, Mr. Donnegan. She happens to be in the hospital. She’s ill.”
Donnegan snickers. “I guess that’s what she gets from running around with a spray can in the middle of the night in her nightgown defaming restaurant owners.”
In a flash, Emma’s hands shoot out, slamming Donnegan in the chest and knocking him backward. “She wasn’t in a nightgown, you prick. And she wrote the truth.”
Catherine quickly grabs Emma and guides her toward the courtroom. “He’s not worth it, Emma,” she says. Donnegan stands up, brushes himself off, smiles and says, “You got some temper there, little lady. You should see a shrink; get some anger management.”
As Catherine and Emma are arranging their files on the counsel table, they hear more commotion out in the hallway. “The eminent Mr. Sparks must have arrived,” Catherine says. A few moments later, Sparks enters the courtroom with Ole Henryks by his side. A rush of reporters follows him in and jockeys for seats.
Catherine stands, walks across the room and hands a document to Sparks. “This is a copy of Mrs. Stein’s affirmative defense which we will tender to the court this morning.”
Sparks accepts the document and lays it on the table without looking at it. He is smartly dressed in a three-piece charcoal suit that shimmers in the courtroom lighting. “Where is Mrs. Stein?” he says. “She didn’t come to confront her archenemy today?”
“Her attendance is not required. This is a routine call.”
Sparks points to the reporters in the gallery. “Nothing about this case is routine, Catherine. You know I will be pushing Obadiah for an early trial date. I presume you will oppose that.”
From behind them, Ole shouts, “What the hell? What are you trying to do to me?”
They turn to see Ole reading the affirmative defense. He is standing at the counsel table and the papers rattle in his ancient hands. He waves them in the air. “This is a bunch of damn lies. You can’t let them file this, Sterling.” Sparks rushes over to the table. He takes the document from Ole and helps him settle back into his seat. There is a rumble of conversations in the gallery.
Sparks picks up the copy of the affirmative defense and takes his time reading the document. “Seriously?” he says to Catherine. “You intend to prove that Ole materially interfered with the escape of Jewish families from Denmark? That he was a member of a Nazi-sponsored organization that informed upon the Danish resistance? That he worked for a company manufacturing and shipping weapons to Germany, that they were manufactured in accordance with German specifications? You have proof of all this?”
“Most certainly we do. I wouldn’t allege it if I couldn’t prove it.” Upon hearing this discourse, there is a loud exchange in the gallery.
“Lies!” Ole shouts. His face is red, and tears are flowing freely. “Sue her, Sterling. Sue her for writing those lies. Add her to the lawsuit. Lockhart is defaming me the same as her client.”
Sparks taps him gently on the shoulder. “Calm yourself, Ole. Statements in a judicial proceeding are privileged; we can’t sue Ms. Lockhart. But she and her client will have the sorriest day of their lives when this case comes to trial.”
“All rise,” announces the clerk as the corner door opens and Judge Obadiah Wilson takes the bench. He looks down at Sparks. “I see you’ve brought your fan club with you today.” Then to the gallery, he says, “Usual warning. No noise, no photos, no recordings.” He nods to his clerk. “Call the case.”
“Case number 18-L-20998, Henryks v. Stein, continued by previous order.”
Sparks, Catherine and Emma approach the bench and identify themselves for the record. Catherine hands a copy of her pleading to the judge. “Mrs. Stein’s affirmative defense, your honor,” she says, “with factual detail in accordance with your order.”
Wilson scans the document, raises his eyebrows and says, “My, my, my.”
“It’s scandalous,” snaps Sparks. “Where’s the proof of these outrageous accusations?”
“I suppose you’ll find out when she answers your interrogatories and sits for her deposition, Mr. Sparks,” Wilson says calmly. “Isn’t that the way these things usually work in our profession?”
Sparks is just warming up. He begins to pace back and forth in front of the bench. He has his index finger ready for emphasis. “Don’t you see what she has done?” he says. “She has compounded the harm brought upon Mr. Henryks. It is not enough to falsely claim in generalities that her spray-painted words are true, she has now made it ten times worse by specifying conduct she cannot possibly prove.”
“Well, we do not know that at this stage, do we, Mr. Sparks?” Wilson says.
Sparks points to his client, who is sitting at the counsel table shaking his head and mumbling. Then he speaks to the entire courtroom in a heightened tone. “Member of a Nazi-sponsored organization? Making weapons for the Nazis? Preventing Jews from escaping? Informing? Betraying? Your honor, these horrific accusations are hanging in the air for all to see and consider until the day comes that they are proven false and blown away. But every day between now and then is a day that Mr. Henryks must live under a cloud of infamy. You know what will happen,” Sparks says as he waves his arm at the reporters sitting in the gallery. “All these fine ladies and gentlemen of the media will now go out and repeat these accusations, even though they are lies, because that is their job. Breaking News! Can’t you see it? Millions of listeners and viewers will form their opinions long before we get the chance to disprove them. We must prevent this perverse abuse of our legal system. I respectfully move that you place defendant’s affirmative defense under seal, strictly protected from public view. Further, I move that you issue a gag order to all present today in this courtroom, strictly prohibiting them from disclosing what has been said and heard in this room today. That is the only way to protect a good man’s reputation.”
Judge Wilson sits silently while he ponders the motion. He taps his fingers on the top of his elevated desk. He breathes deeply through his nostrils. There is not a sound in the courtroom. Finally, he stands and announces, “The court will take a short recess. In the interim and until I rule, there will be no public disclosures of anything that has transpired this morning. No texts, no calls. I prefer that everyone just stay put, unless there is a prior commitment or a personal need.” He turns and leaves the courtroom.
Sparks walks over to Henryks, who says, “Thank you, Sterling. Well done.”
Thirty minutes later, Judge Wilson returns, and his clerk slams the gavel. “Court is back in session. Come to order.”
Sparks immediately steps forward, “Your honor, if I may add one more thing…”
Wilson holds his palm up like a stop sign. He solemnly shakes his head. “No, Mr. Sparks, I’m ready to rule. While I respect your concern and that of your client, we have a strong tradition in this country and in our state. Our founding fathers determined that, unlike the star chambers and secret courts of prerogative that existed under old English common law, our courts would be open and public. That is carved in stone in the Constitution. In Illinois, our statutes provide, ‘All records, dockets and books required by law to be kept by court clerks shall be deemed public records, and shall at all times be open to inspection and all persons shall have free access.’”
Wilson continues, “The First Amendment to the United States Constitution provides that ‘Congress shall make no law abridging the freedom of the press.’ While we have on rare occasion allowed certain court filings to be placed under seal—health records, children’s identities, Social Security numbers and the like—the threshold is very, very high. Our Supreme Court has held that the mere fact a person may suffer embarrassment or damage to his reputation as a result of allegations in a pleading does not justify sealing the court file. Accordingly, your motion must be denied.”
Henryks jumps to his feet. “That’s not fair. They will write all these lies. Sterling, you have to do something. File an appeal.”
Judge Wilson nods slightly. “You may indeed appeal my ruling.”
Sparks shakes his head. He knows that an appeal will take months if not years, and will most likely be unsuccessful. “Your honor,” he says, “because of the damaging content of Mrs. Stein’s affirmative defense, we demand that this court set an immediate trial date. It is only fair to Mr. Henryks that the allegations against him not be allowed to linger unopposed. We do not think there is a shred of evidence to support such baseless claims and we insist on the opportunity to dispel them at the earliest possible date.”
Wilson is inclined to be sympathetic to Sparks’s request, with limitation. “Given the gravity of the situation,” the judge says in his deep voice, “I am persuaded to enter an expedited case management order. All depositions and written discovery must be completed within three months. Motions for summary judgments are to be filed within three weeks thereafter. I will set a pretrial conference for a date five months from today.”
“Five months!” Sparks says. “My client has to live under this cloud of shame for five months? And how long after that will the trial be? I’m sorry, but that’s far too much time. I will waive my right to take Stein’s deposition. I will waive my right to file interrogatories or request production. I will even waive my right to file a motion for summary judgment, even though I’m sure I would win it. I will waive all these rights to proceed to an immediate trial where we will show the world that Mrs. Stein has absolutely no evidence, and we will once and for all end her outrageous attacks against my client. It is only fair. I demand a trial in three weeks!”
The gallery gasps. Judge Wilson smiles. “You demand, do you? Well, you can waive your rights, you can’t waive the defendant’s rights. Ms. Lockhart has a right to conduct her discovery. My scheduling order is actually very generous to you, Mr. Sparks.”
Emma elbows Catherine, leans over and whispers in her ear. Catherine nods. “Your honor,” she says, “may I have a moment with my co-counsel?”
Catherine and Emma step to the side. “He’s playing right into our hands,” Catherine whispers. “That’s exactly what your grandmother wants.”
Emma nods. “You should have seen her this morning. I don’t think she’ll be able to withstand months of discovery. As much as it grieves me to say, my Bubbe may not even survive ten or twelve months.”
“Right now, her testimony is all we have,” Catherine says. “You know as well as I, that much of her testimony is based on what other people told her and it’s hearsay. It will be stricken.”
Emma agrees. “I do know that, but Sparks doesn’t. If we had to answer interrogatories and submit Bubbe to a deposition, Sparks would find out we don’t have solid evidence. He’d be able to file a motion for summary judgment and it would be granted. Henryks would walk away with a judgment against my Bubbe, and she’d never even get to tell her story to a jury. Sparks is a fool. He’s offering to give up his rights without knowing what kind of evidence we have. Or don’t have! I think we should agree.”
Catherine grimaces. “I’m still hopeful that Liam will come up with something. He’s never failed me. If we had another six months, that would give Liam plenty of time to gather evidence. But you might be right; Britta’s health is our primary concern. It’s a tough decision.”
“You’re the boss, Catherine,” Emma whispers, “but I say we honor Bubbe’s request. If nothing else, she’ll get her day in court.”
They return to the judge; Catherine speaks. “Your honor, I wish to dispel the erroneous notion that Mrs. Stein wants to delay this proceeding. Let’s also dispel the notion that Mrs. Stein is afraid of a trial. On the contrary, she is anxious to show that her words are true. If Mr. Sparks is so eager to proceed to trial that he will waive all his rights to discovery and to pretrial motions, then Mrs. Stein will do the same. We agree to an immediate trial.”
The courtroom explodes. Comments fly from the gallery. “Did you see what Six-o’clock just did? He pulled a fast one on Lockhart that we’ve never seen before.” “Six-o’clock does it again.” “Sparks is masterful.” The clerk repetitively slams his gavel. “Order,” he shouts. “Silence.”
Wilson is confounded. “This case gets more curious every day. Well, if that is the joint request of the parties, then the court will honor it and we will proceed to trial three weeks from today. Court is adjourned.”
Reporters flock around Sparks. He is relishing his stardom. As Catherine and Emma leave the courtroom, the reporters shake their heads. One of them looks at Catherine, snorts and says, “She just doesn’t get it.”
Vera Paulson is in the hallway waiting for Catherine. “I’ve been covering this beat long enough to know that you just scored,” Vera says. “It was the waiver of his motion for summary judgment, wasn’t it? You’re worried about the strength of your evidence.”
Catherine smiles. “You’ll never hear that from me.”
“Is that why your husband’s in Copenhagen; digging for evidence?”
“How do you know that?”
Vera smiles and bites her bottom lip. “In my business, you have to stay alert. Someone saw him at the airport.”
“Can I ask for a favor?” Catherine says quietly. “Just between you and me?”
“You bet. I’d love to see the day Six-o’clock gets clocked. What do you need?”
“A copy of the video taken at Ole Appreciation Night.”
Vera nods. “I’ll get you a copy. Now tell me, what’s wrong with Mrs. Stein?”
“Not for public knowledge, but she’s ninety-two and she has heart problems. She’s in the cardiac ICU.”
“Tell her I wish her the best.”