Bearing Witness (3 page)

I rolled my eyes. “Oy, mother.”

My crazy mother, who never fails to surprise me, had enrolled in a weight-training class at the Jewish Community Center almost two years ago. In fact, that's where she met Ruth Alpert. Ruth was there on doctor's orders to slow her osteoporosis; my mother was there because she'd all of a sudden decided it was time to “tighten up.” The two widows became fast friends while pumping iron on Monday and Thursday nights. When Ruth lost her secretarial job at Beckman Engineering Co. last November, it was my mother who insisted that she consult with her daughter Rachel-the-Harvard-lawyer about a possible discrimination charge.

“Don't worry,” my mother said as she cut a piece of quiche with her fork. “You won't be alone.”

I gave her a puzzled look. “What does that mean?”

“I'll help.”

I smiled with weary amusement. “Thanks, Mom, but I'm going to need more than that. It's not quite like my sixth-grade science fair project.”

She shrugged, unruffled. “So we'll get Benny.”

“Benny already has a job.”

She dismissed that with a wave of her hand. “He's a law school professor. What kind of job is that? He'll have time. I'll talk to him.” She paused and snapped her finger. “I've got it.”

“Oh?”

I was smiling. Sarah Gold to the rescue. My mother is the most determined, resourceful, and exasperating woman I know. Life trained her well. She came to America from Lithuania at the age of three, having escaped with her mother and baby sister after the Nazis killed her father. Fate remained cruel. My mother—a woman who reveres books and learning—was forced to drop out of high school and go to work when her mother (after whom I am named) was diagnosed with terminal cancer. Rachel Linowitz died six months later, leaving her two daughters, Sarah and Becky, orphans at the ages of seventeen and fifteen. Two years later, at the age of nineteen, my mother married a gentle, shy bookkeeper ten years her senior named Seymour Gold. My father was totally smitten by his beautiful, spirited wife and remained so until his death from a heart attack almost two years ago on the morning after Thanksgiving.

“The law school,” my mother said. She leaned back in her chair, crossing her arms over her chest triumphantly.

I gave her a curious look. “What about it?”

She waved her hand impatiently. “Don't you see? You need help, the law school has students. We'll get volunteers. Benny can help get them.” She paused, looking up. “Ah, here he comes now.”

I turned and saw Benny approaching. He had a dark expression.

“What's wrong?” I asked as he pulled up a chair.

He stared down at the table and took a deep breath. He exhaled slowly, shaking his head.

“What?” my mother said. “Talk already.”

He looked up at me, glowering. “You're not going to believe this. The dean stopped me after class. He told me that Ray Hellman just announced that he's taking five weeks of sick leave.”

“Who's Ray Hellman?” my mother asked.

I explained that he was a professor of law at Washington University.

“The dean wants me to cover one of Hellman's classes,” Benny said.

“Which one?” I asked, and then it clicked. “Oh, no. Insurance law?”

He nodded grimly. Benny and I hate insurance law.

“What did you tell him?” I asked.

“I told him I'd rather spend a weekend in a dog collar as Rush Limbaugh's boy toy.”

“What kind of toy?” my mother asked.

“Never mind, Mom.” I patted Benny on the hand. “It could be worse.”

I noted that the female patrons at several nearby tables were eyeing Benny warily. His outfit certainly didn't allay their concerns. Although he had donned a blue blazer in technical compliance with the law school faculty dress code, he was wearing it over a black T-shirt, baggy khaki slacks, and green Converse All-Star high-tops. The black T-shirt, one of his favorites, bore the legend
I Am That Man From Nantucket
. For that final dash of sartorial elegance, he hadn't shaved. As a result, Benny looked ready to answer Central Casting's call for an overweight Bolivian drug courier. Surely none of the apprehensive women at the nearby tables would have guessed that this fat, swarthy, curly-haired phenomenon was actually a hotshot professor with a growing reputation in the field of antitrust law. (Justice Stephen Breyer had recently cited one of Benny's articles in a concurring opinion in
United States
v.
Beal Fuel Co
.—a form of recognition that is the law school professor's equivalent of an Oscar.)

Nevertheless, Professor Benjamin Goldberg was, by any standard, crude and vulgar and obnoxious. But he was also ferociously loyal, wonderfully funny, and—most important—my best friend. I loved him like the brother I never had, although he bore the same resemblance to my dream brother as Divine did to Tinkerbell.

Fortunately, the waitress arrived with a menu. Benny's mood improved noticeably as he scanned the selections. After he placed his order, my mother launched into her plan for student volunteers. By the time I left for court ten minutes later, he was scoffing down a roll while my mother was, quite literally, on a roll.

“What do you mean ‘maybe'?” she said to him. “If those kids have any ideals, they should jump at the chance to work on a case against such
goniffs
.”

***

I arrived at Judge Wagner's chambers at five minutes to two. Kimberly Howard was already there, seated primly in the waiting area, back erect, legs pressed together, Little Miss Posture Perfect. She was studying a set of papers.

“Hello, Kimberly,” I said coolly as I took a seat across from her.

She looked up from her papers and nodded precisely. “Good afternoon, Rachel.”

On either side of Kimberly sat the mandatory smug associate, each in a dark suit and starched white shirt, each wearing tortoiseshell glasses. Kimberly didn't bother introducing Frick and Frack, and I didn't bother acknowledging their presence. I was familiar with the routine. Kimberly would be the sole mouthpiece for Beckman Engineering. Frick and Frack would take voluminous notes during the proceeding, say nothing in the judge's presence, smirk when any ruling went against me, and probably not be seen again in the case for weeks. They were here today primarily because Roth & Bowles was a large law firm. Lawyers in large firms are like wolves: they prefer to travel in packs.

On this case, Kimberly was the leader of the pack. She was a litigation partner at Roth & Bowles, a powerful St. Louis firm, and her specialty was defending employment claims, especially claims of racial discrimination. She was also the firm's only black partner. Today, as always, she was elegantly dressed and perfectly coiffed. She exuded the cool poise of a former beauty queen, and with good reason. Nearly twenty years ago, Kimberly had been the first black contestant crowned Miss Teenage Missouri.

The composure and tenacity that made her a pageant queen had served her well in her legal career, which began as a law clerk to a then obscure U.S. Circuit Court judge by the name of Clarence Thomas. Unlike Judge Thomas, however, Kimberly could not claim humble origins. Her father was a prominent radiologist at Barnes Hospital. Her mother was a genteel product of the Chicago black middle class who was active in several St. Louis charities and had served an unprecedented two terms as president of the Junior League. Kimberly was their only child. She grew up in the wealthy suburb of Frontenac, prepped at Villa Duchesne (a snooty Catholic girls' high school), and earned her B.A. in economics at Smith College. She met her first husband at St. Louis University Law School, divorced him during her clerkship with Judge Thomas, married her second husband during her years in the general counsel's office of the Department of Commerce, and shed him before returning to St. Louis. She was now thirty-eight and unmarried, although one of the gossip columnists had linked her to Barry Silvermintz, a local urologist who, if memory serves, either did Geraldo Rivera's vasectomy or reversed it.

Kimberly's strategy in this case had been obvious from the start: wage a war of attrition. I was outgunned and outmanned. We both knew that I couldn't risk a full-scale battle out in the open, and she exploited that knowledge by objecting to all of my requests for information, swamping me with her own discovery requests, contesting virtually every action I took in the case, and generally doing whatever could be done to make my pretrial preparations unpleasant, arduous, and demoralizing.

We sat in silence across from each other until Judge Wagner's secretary announced that Her Honor was ready for us. With Kimberly in the lead, we filed into the chambers of the Honorable Catherine L. Wagner.

Like their courtrooms, the chambers of U.S. District Court judges are built on a scale for pharaohs. This one had high ceilings and dark paneling. Her Honor was seated in a high-back leather chair behind an imposing desk. She stood as we approached.

“Greetings, Counsel.”

Catherine Wagner was in her mid-forties, a tall, willowy blonde, with long hair, piercing blue eyes, and a ski-slope nose. She had been a renowned beauty in her early twenties, and she still cut quite a figure when striding into the courtroom with that long blond hair cascading down her black judicial robe. In her chambers, the black robe hung on the brass rack in the corner. She was wearing a cream-colored silk blouse and a maroon wool skirt. Up close you could see the bags under her eyes and the worry lines on her forehead—the wear and tear of a hectic career squeezed on top of life as a divorced mother of two adolescent boys, whose framed portraits hung on the wall above her credenza.

“Good afternoon, Your Honor,” Kimberly answered cheerfully.

“Hello, Kimberly. Good to see you.” Judge Wagner nodded at me with somewhat less enthusiasm. “Ms. Gold.”

I returned the nod at the same level of zeal. “Hello, Judge.”

Although Catherine Wagner was known as a tough but fair judge, the playing field never felt quite level with Kimberly Howard present. The two were active members of the St. Louis University Law School alumni association. They also shared another important bond: the Republican Party. Catherine Wagner's GOP bona fides had been impeccable when she was appointed to the bench eight years ago, and Kimberly Howard was an increasingly visible member of the Missouri Republican Party. Indeed, her name had started popping up when political pundits talked of the next round of elections; some picked her to challenge the incumbent Missouri Attorney General.

“Well, well,” Judge Wagner said in a voice laced with sarcasm after we'd taken our seats, “my favorite case.” She looked at Kimberly and then at me. “To what do I owe the pleasure today, ladies?”

“Judge,” Kimberly began solemnly, “we have grave concerns about Miss Gold's conduct.”

Judge Wagner nodded as she lifted a copy of the letter Kimberly had faxed to me earlier in the day. “You're referring to the ex-employees and their nondisclosure agreements.”

“That's certainly one important item on the agenda,” Kimberly said. “However, there are others. For starters, we have Miss Gold's outrageous attempt to serve Mr. Beckman with a subpoena in the middle of an awards ceremony on Sunday night.”

We were off and running. Although I hate squabbling with opposing counsel in front of a judge, Kimberly and I were at each other before long. As for my efforts to contact former employees of Beckman Engineering, she wanted an order requiring my investigators to issue a Miranda-like warning to each prospective witness informing him of the nondisclosure agreement and providing the ex-employee with the name and telephone number of a Beckman Engineering attorney with whom he could consult without charge before answering any questions. In addition, Kimberly wanted twenty-four-hour advance written notice of each witness contacted.

“Your Honor,” I said, trying to maintain my composure, “this is nothing less than an attempt to use the power of this Court to intimidate potential witnesses and, in the process, to invade the confidentiality of my trial preparations.”

Judge Wagner agreed and disagreed. She granted Kimberly's request for the Miranda-style warning, but ruled that I did not have to let Kimberly know who I contacted. I told myself that I could probably live with that—as if I had any choice in the matter.

I fared worse with the Conrad Beckman subpoena. “Ms. Gold,” Judge Wagner announced sternly, “the Court is not unmindful of the fact that Mr. Beckman is an extremely busy executive. Reluctantly, I will allow you to depose him. However, I will limit that deposition to exactly two hours.”

“Two hours?” I said, incredulous. “I don't think I could complete it in two days.”

Judge Wagner responded with an imperial shrug. “Deal with it. The mere filing of a lawsuit does not give a plaintiff the unfettered right to depose a busy chief executive officer.” She paused to jot a note on her docket sheet. “You'll have two hours.” She turned to Kimberly. “Anything else?”

“Unfortunately, yes, Your Honor. Given that the trial date is now just two months away, I must remind Ms. Gold that we are still awaiting new dates for her client's deposition.”

Judge Wagner looked at me. “Is there a problem?”

“There most certainly is,” I said, my temper flaring. “Kimberly has already subjected my client to twelve days of deposition. Twelve days.” I shook my head in disbelief. “While Ms. Howard squeals in panic at the thought of having Conrad Beckman deposed for two hours, she thinks nothing of subjecting my client to day after day after day of completely irrelevant lines of questions. At some point—”

“That is preposterous,” Kimberly said, acting shocked.

I spun toward her. “Let me finish,” I snapped. I looked back at Judge Wagner. “Judge, enough is enough. The defendant is using discovery as a weapon to make this case as painful as it can for the plaintiff. It's a scorched-earth tactic, Your Honor—an attempt to turn the discovery process into a trial by ordeal.” I shook my head angrily. “And meanwhile, more than six months have elapsed since defendant was supposed to produce its documents to me. Six months, and I have yet to see a single piece of paper. Ms. Howard is trying to sneak to trial without having to reveal a thing.”