Flinch Factor, The (9 page)

“I can help if you need me. I have a hearing at nine tomorrow, and I have to go over to City Hall for a couple hours, but otherwise I'm available.”

“What's at City Hall?” Benny asked.

She sighed. “Lots of boring records in one of my cases.”

“What kind of boring records?”

“Mostly building permits.”

“You got a real estate case?” he asked.

“No, I have a sleazy husband who tried to hide his marital assets by setting up trusts to invest in apartment buildings in the city. Long story short, he'd renovate them, sell them, and reinvest in others—and all the while keeping his name off the records. He made one mistake, though. He got his brother involved. His brother owns a construction company in Iowa, and he was the one who did the renovations on the properties. The good news is that it happens to be the only work his brother's company has ever done in St. Louis.”

“Why is that good news?” I asked.

“Because it means I can identify the properties by going through all the building permits issued during the relevant period and match each permit issued to his brother's company to the property involved.”

“Awesome.” I turned to Benny and smiled. “Why didn't I think of that?”

Benny frowned. “Think of what?”

“Building permits.”

“What are you talking about?” he said.

“Think about it, Benny. You need to get a building permit before you can do any work. If Corundum Construction is a real company that really builds things, there's going to be a trail of building permits. Right?”

He raised his eyebrows. “That's good.”

“What are you two talking about?” Jacki asked.

I explained my Corundum conundrum.

“No problem,” she said. “I'll be sorting through building permits anyway. I'll make copies of any that identify Corundum Construction as the contractor.”

“That would be great,” I said. “Thanks.”

“My pleasure. Maybe you'll get lucky. Maybe we'll find an active site.”

“And do what?” Benny asked.

“Check it out,” she said. “Maybe spot that big guy that Rachel's source saw.”

Chapter Sixteen

The deposition was actually going to start on time.

Ken Rubenstein was seated at the end of the conference table. To the left along the side of the table were his three lawyers—Rob Crane, a young male partner named Burwell, and a male associate. Seated to the right of Rubenstein was the court reporter. I was seated next to her and thus almost directly across the table from Rob Crane. At the other end of the conference table stood the videographer, her camera mounted on a tripod and aimed at the witness.

I gazed at Rubenstein as the videographer tested our microphone voice levels. There was a coiled intensity about him that made him seem much bigger than his five feet eight inches. He had an angular face, deep-set dark eyes, a sharp nose, and unnaturally white teeth. He wore his thick brown hair slicked back and sported a neatly trimmed goatee flecked with gray.

No bicycle shorts today. He was dressed for the boardroom: dark blue suit, white dress shirt, red-and-gold striped silk tie, and a fair amount of bling, including a gold pinkie ring with a large ruby (of course), gold monogrammed cufflinks encrusted with small diamonds, and a gold Rolex watch, all of which were on display as he rubbed his goatee with his thumb and forefinger and frowned at a message on his iPhone.

Hard to believe he was the son of a small town scrap metal dealer—or maybe not so hard. He was a climber and a striver, an alpha dog who worked long hours but found time to pursue his two passions, triathlons and crossword puzzles. And pursue them he did, with the same ferocity he brought to his business. According to one gossip column item, he played against the clock each morning at the
New York Times
online crossword puzzle site and regularly ranked in the top ten times nationwide. Indeed, Rubenstein's publicist made sure he got press for every triathlon or crossword puzzle achievement.

Watching the court reporter swear in Rubenstein, I decided to change my deposition strategy. I could already tell that Rubenstein was poised. If I had any hope of catching him off balance, of getting beyond rehearsed answers, I needed to skip the usual preliminary questions—the educational background, employment background, current job responsibilities, blah, blah, blah. That standard litany tended to calm most witnesses by giving them thirty to sixty minutes of easy questions to answer—all of which had the effect of bolstering their confidence. Ken Rubenstein's confidence needed no bolstering.

“I do,” Rubenstein said to the court reporter.

The court reporter looked over at me. I glanced back at the videographer, who nodded. I turned to the witness, who was gazing at me with just the hint of a smile. He stroked his goatee with the thumb and forefinger of his right hand.

“Mr. Rubenstein, has your company investigated the violent crime rate in Brittany Woods?”

He raised his eyebrows slightly. After a moment, he shrugged. “I don't believe we have, Ms. Gold.”

“Is that a no?”

He smiled. “That is a no.”

“In your experience, Mr. Rubenstein, can the violent crime rate of a neighborhood be a factor in determining whether that neighborhood is blighted under the TIF laws?”

“I suppose so.”

“Did you know that the violent crime rate in Brittany Woods is the lowest in all of Cloverdale?”

“I did not know that.”

“Would you agree with me, Mr. Rubenstein, that if the violent crime in Brittany Woods is the lowest in all of Cloverdale, then that crime rate would not support a finding of blight?”

He smiled. “I would agree, Ms. Gold, although, as I stated before, I don't know what that crime rate is.”

“Has your company investigated the number of abandoned properties in Brittany Woods?”

“I don't believe so.”

“In your experience, Mr. Rubenstein can the number of abandoned properties in a neighborhood be a factor in determining whether that neighborhood is blighted under the TIF laws?”

“I suppose so.”

“Did you know that there are no abandoned properties in Brittany Woods?”

“I did not know that, Ms. Gold.”

And so it went for almost an hour, until the videographer's equipment went on the fritz. She said it wouldn't take more than twenty minutes to get it running again, so we took a break.

For a lawyer representing a typical client, a break one hour into a deposition is a godsend, a perfect time to meet with your witness out in the hall to go over any problems in his testimony and prepare him for the questions to come. Ken Rubenstein was no typical client. Though he had plenty of lawyers to confer with, he'd waived them all off, and now they were out in the hall on their cell phones while their client remained seated at the far end of the table. The court reporter was down the hall getting a cup of coffee, which left just three of us in the conference room—the videographer tinkering with her equipment, me leafing through my deposition notes and exhibits, and Ken Rubenstein hunched over a crossword puzzle, pen in hand, a ticking stopwatch on the table to his left. This was his second puzzle of the break. He had some crossword tournament coming up.

Our first hour had been a spirited round of deposition ping-pong, and we'd played to a draw. He was good. None of my questions fazed him. He knew—as I knew—that the dictionary definition of “blight” was not the same as the statutory definition, and thus he could concede on point after point that would hurt his case about as much as those little darts thrown into the side of a bull by the banderilleros. A few might sting, and even draw a little blood, but none would bring him down.

By the time the video equipment malfunctioned, I'd moved on to questions about the studies his company, Ruby Productions, had submitted to the Cloverdale council in support of his TIF proposal. Although I had a list of inconsistencies in those reports, none was major, which meant that after the break it would be more little darts. Such is litigation.

He grunted.

I looked up from my notes.

He glanced over at the stopwatch and back down at the crossword. He scribbled in a word.

During the deposition he had tried to put on an air of nonchalance, but the intensity in his eyes and the vein in his temple gave him away. He was too controlled to allow himself to get rattled by my questions. He was also too controlled to be lured into one of my favorite deposition traps, which I call the “accelerated conversation,” where you seek to ask questions at a quicker and quicker pace while keeping the lawyer jargon to a minimum. When it works, the witness begins to feel like he is having a conversation with you instead of answering questions that are being taken down verbatim by a court reporter. Everything speeds up, and you have a witness who not only gives you unrehearsed and unguarded testimony but gives his attorney no time to squeeze in an objection or otherwise slow down the pace.

Ken Rubenstein quickly figured out that tactic and, like a basketball coach calling timeout to halt the other team's rally, slowed the pace—listening carefully to each question, sometimes asking the court reporter to read it back to him a second time, pausing several beats before giving me a precise and narrow answer.

He was a formidable adversary.

As he frowned over his crossword puzzle, his left hand fiddled with the button pinned to his suit jacket. All Ruby Production employees wore the button, which was bright yellow and displayed the company's four-letter logo in large red letters:

WSPP

Those initials trace their origin to Rubenstein's first lawyer, Jimmy Hayden. During his rainmaker days at Gardner & Eisner, Jimmy Hayden—hawk-nosed, prematurely gray, elegantly attired—combined a hard-nosed style of advocacy for his clients with a fervent style of proselytism for his transcendental meditation. As he did with other clients, Hayden took Rubenstein up to Fairfield, Iowa for a three-day course in TM at Maharishi University. Rubenstein returned from Fairfield with enough “inner peace” and “universal consciousness” to achieve, by all accounts, even higher levels of ruthlessness in his business dealings.

He also returned with the WSPP logo. According to company literature, the initials stand for the phrase
Work So Peace Prevails
—a mantra that supposedly popped into Ken Rubenstein's head during his sojourn in Fairfield. No one is quite sure what the expression really means. How, for example, does one build upscale gated communities in a manner that will enable world peace to triumph? His critics contend that the initials stand for the company's true mission:
We Screw Poor People
.

Alas, Jimmy Hayden is no longer Rubenstein's lawyer—or anyone else's. As a result of a weekend in the penthouse suite of a downtown hotel with a large supply of crack cocaine, three bottles of Wild Turkey, a video camera, and the nubile fifteen-year-old daughter of one of his clients, Jimmy Hayden now has ample time to practice his mediation without interruption, compliments of the Missouri Department of Corrections.

“Yes!”

I looked up. Rubenstein was holding the stopwatch in his left hand and had his right hand clenched in victory.

“Better?” I asked.

“Oh, yeah. Watch out, boys.” He chuckled. “Kenny's got his groove.”

***

It was almost three o'clock. We were nearing the end of the deposition. We'd been at if for almost five hours.

Rubenstein had refused to break for lunch, preferring instead to grind on. I assumed his goal was to wear me down. Any guy who bragged about all the triathlons he competed in each year no doubt assumed he could wear down a lawyer at a deposition—especially a girl lawyer. And he was probably right, although a glance across the table at his three bleary-eyed defenders confirmed that he was wearing down all the lawyers in the room.

What Rubenstein tried to ignore, though, was the unique pressures of being the witness. His job was tougher than mine, and if you looked carefully you could see effects of five straight hours of carefully answering questions in front of a camera while a court reporter took down his words. His eyes were a little bloodshot, his collar button was undone, and the lines in his face seemed deeper.

I didn't have much ammo, but now was the time to use it.

I flipped back several pages in my deposition notes and pretended to study one of the entries for several seconds.

“Earlier today, Mr. Rubenstein, I asked you whether it was your practice to meet privately with the council members in the cities where you were promoting a TIF. You testified that it was not your practice. Do you recall that testimony, sir?”

“Of course, Ms. Gold.”

“Why don't you meet privately with those council members?”

He shook his head with impatience. “Because you're not supposed to.”

“Why not?”

“It's improper. Actually, I think it's illegal. Sunshine laws or something like that.”

“Don't speculate, Ken,' Rob Crane said. “Stick to your personal knowledge.”

“And when it comes to TIF proposals,” I said, ignoring Crane, “you and your company do not engage in improper or illegal conduct, correct?”

“Object to the form,” Rob Crane said.

I kept my gaze on Rubenstein.

“You may answer. Do you and your company engage in improper or illegal conduct in connection with TIF proposals?”

He gave me a withering smile. “No, Ms. Gold. We don't engage in improper or illegal conduct.”

“So you did not meet privately with any of the Cloverdale council members during the pendency of your TIF proposal, correct?”

His eyes narrowed slightly. “Correct.”

“Nor did you attempt to meet privately with any of the Cloverdale council members, correct?”

“Correct.”

“Therefore, you did not meet privately with Council Member Harry Furman and you did not attempt to meet privately with Council Member Harry Furman. Correct?”

He started to turn toward his attorney, but Crane was jotting down a note.

“Correct?” I repeated.

He met my gaze.

“Correct.”

“Because, as you just testified under oath, that would be improper and possibly illegal, correct?”

Another pause.

“Mr. Rubenstein, you need to answer the question.”

“Correct.”

I reached into my folder and pulled out three photocopies of a telephone message slip. I handed one copy to the witness and one to Crane.

“Mr. Rubenstein, I've just handed you what the court reporter has marked as Plaintiff's Deposition Exhibit 43. I will represent to you that the document was produced to us by the City of Cloverdale. It was in a folder of documents gathered up from Council Member Harry Furman's seat after the meeting of the Cloverdale aldermen last June fifteen, which was one month before your TIF proposal was formally presented to the City of Cloverdale. Exhibit 43 was one of approximately two dozen telephone message slips that Alderman Furman brought to the meeting and left at his seat when the meeting ended. Although we hope to have an opportunity to ask Council Member Furman questions under oath about this document, I'm showing it to you, sir, to see if it refreshes your recollection.”

Rubenstein was staring at the exhibit, his jaw clenched.

“Do you see the date at the top of the message?”

Rubenstein stared at the exhibit.

“Mr. Rubenstein?”

He looked up.

“What?” he snapped.

“Do you see the date?”

“Yes.”

“What is the date?”

“June thirteenth.”

“So two days before the city council meeting, correct?”

“I don't know when they met.”

“According to the exhibit, who called Council Member Furman on June thirteenth?”

“This says ‘Mister Rubenstein.'”

“And it also lists a telephone number for that Mister Rubenstein, correct?”

“Yes.”

“That's your cell phone number, correct?”

He stared at the document. “Yes.”