In Firm Pursuit (20 page)

I
t took me by complete surprise when O'Reilly invited me for lunch two days after my trip to San Diego.

“How's it going, kiddo?” O'Reilly asked as he greeted me in the patio of the McCormick & Schmick's seafood restaurant across from our office building. He was already seated when I got there, but rose to give me a light embrace.

We engaged in small talk while browsing the menu. O'Reilly ordered a glass of white wine and his usual, the seafood salad. I ordered the same, minus the wine.

“So what's the real reason you invited me to lunch?” I finally asked. O'Reilly had barely spoken to me since my inquisition in his office just over a week ago. I was certain he had not extended this invitation just to shoot the breeze.

“What're you talking about? I don't need a reason to invite my favorite associate to lunch,” he said.

My eyebrows fused in skepticism.

“Okay, Vernetta, you're much too smart for me.” O'Reilly took a sip of wine. “I won't beat around the bush. Micronics wants you back on the Randle case.”

I was momentarily stunned but quickly recovered. “Really? Even though they think I'm sleeping with the enemy?”

“C'mon, nobody thinks that. This was all a crazy mix-up. They realize now that nothing was going on between you and Hamilton Ellis. They really want the case settled and they think you can get the job done. We've tried to talk settlement, but Hamilton Ellis insists on dealing only with you. I told those boneheads at Micronics that they never should've taken you off the case.”

Sure you did.

I suddenly remembered my conversation with Norma Brown and wanted to throw up. I had tried to convince myself that I had no obligation to report what she had told me since I was no longer handling the Randle case. But I couldn't even sell that faulty logic to myself. Even if I wasn't on the case anymore, I still had an ethical obligation to advise a client of the firm that one of its employees had unauthorized possession of a highly confidential legal memo.

The memo provided a clear explanation for Micronics's haste to resolve the case. It was a case analysis prepared by the General Counsel and addressed to the CEO, with a copy to Rich Ferris, the VP of HR and Nathaniel Hall, the Chief Financial Officer. It highlighted the obvious flaws in the Randle case, such as the lack of eyewitnesses to the incident, Randle's excellent work history, and the six white employees who'd engaged in sexual harassment that the company had not fired. Micronics's most immediate concern, according to the memo, was avoiding media attention concerning Randle's complaints of billing irregularities.

The memo noted that fifteen years earlier, the company
had been the target of a federal investigation that uncovered dozens of billing irregularities on a Navy contract. It was the kind of investigation that made great headlines, like a one-thousand-percent markup on a fifty-cent bolt. The media blitz and fines that followed sent Micronics's stock price into a high-speed nosedive. The memo warned that if the media picked up on Randle's allegations, it could prompt government investigators to take a closer look at not only Micronics's billing practices on the GAP-7 Program, but other programs as well.

The memo troubled me a great deal. It was yet another document that had been withheld from me. One that conclusively showed that Ferris knew about the other sexual harassment cases, but had lied to Porter about it. It also tended to support Henry Randle's claim that Micronics wanted him and his complaints of fraud hushed up. But had they actually framed him to achieve that end?

“How about it?” O'Reilly asked. He glanced past me to eye a tall brunette with legs up to her neck, wearing a skirt the size of a paper towel.

“This is a new one,” I said. “I didn't know associates were allowed to pick and choose their cases.” I felt like a rat trapped in a maze. If I reported Norma's conduct now, I would be chastised for not coming forward sooner, destroying any chance I had of making partner, if one still existed. If I refused to rejoin the case, the result would be the same. I would just have to keep my mouth shut and pray that Norma did, too.

“C'mon, Vernetta, don't give me such a hard time. We could order you back on the case, but I have too much
respect for you as a lawyer to do it that way. The client made a mistake. They need you. The firm needs you.”

Yeah, right.
“Sure, O'Reilly, whatever you want.” I took a sip of water.

“What I want is a little enthusiasm,” he said.

“Well, it's hard to be excited about a case when the client accuses you of making out with the opposing counsel. Is Porter on board with this?” I asked.

“Yes, of course. He's looking forward to putting the entire case back in your lap. Haley's in over her head.”

As the waiter walked up with our salads, O'Reilly stole another look at the brunette with the long legs. This time he made eye contact and smiled. The woman returned an even bigger smile.

“What's going on with the case now?” I asked.

“I understand there've been some significant developments. Haley was fishing around on the Internet and found some troubling information about Randle's background. And the Micronics Security Department went through some surveillance tapes and also came up with some useful stuff.”

“Like what?” I asked, my interest piqued.

“I don't know all the details, but as I understand it, we're serving a motion to amend Micronics's answer to assert the after-acquired evidence rule.” He glanced at his watch. “The motion is being served on Ellis and Jenkins right about now.”

I had used the after-acquired evidence rule once before to get a wrongful termination case dismissed based on evidence discovered after the employee had been dis
charged. “The information Haley found must've been pretty good,” I said.

“Apparently so.”

“Is Micronics still willing to spend whatever it takes to settle the case?” I asked.

O'Reilly nodded.

“That can only mean they have something to hide.”

“Name me one of our clients who doesn't have something to hide.” O'Reilly reached for the basket of sourdough bread. “We just need to make the case go away. It's nothing short of a miracle that the other side hasn't found out about that woman's death yet.”

I wanted to ask O'Reilly about the news reports concerning the GAP-7 Program, but thought better of it. My suspicion that there might be a link to the Randle case was nothing more than a hunch.

O'Reilly reached over and playfully patted my hand. “C'mon, Vernetta, this is no big deal for you. I'm sure you'll have the case settled in no time.”

Being asked to return to the case, at least on the surface, seemed like a plus for me. But I could not shake a gloomy feeling that more bad news might be waiting in the wings.

“Does this mean I'm still on track for partnership?” I asked.

O'Reilly's lips curled into an evasive smile. “I don't recall anyone ever saying you were off track.”

I tossed the same sly smile back at him. “Can I get that in writing?”

“W
hat kinda bullshit is this?” Reggie Jenkins screamed into the telephone.

I had rushed back to the office after my lunch with O'Reilly to take a look at the motion Haley had filed. Her Internet search had revealed that Randle had been convicted of felony burglary a month before he joined Micronics, some twenty-plus years earlier. Even more problematic for Randle, Micronics's Security Department had him on tape stuffing confidential documents into his briefcase.

Reggie must have dialed my number the second he finished reading the motion. I was surprised that he called me since he knew I'd been taken off the case. He had good reason to be upset about the motion, but the intensity of his rage startled me.

“Reggie, Reggie, temper, temper,” I said. “I guess this means you'll be opposing the motion?”

“Absolutely!” Reggie shouted. “You know and I know those assholes at Micronics framed my client. Yet you have the nerve to file this bogus ass motion!”

“Look, Reggie,” I said, “your client stole some confidential company records before he was terminated and neglected to mention that he was a convicted felon when he
filled out his job application. If Micronics had known either fact, he would've been fired long before he grabbed Karen Carruthers in that elevator.”

“My client never touched that bitch!” Reggie yelled so loudly I had to pull the telephone away from my ear. I was relieved that he had yet to mention Carruthers's death.

“Reggie, is that language really necessary? Can't we all just get along?”

“This ain't funny,” Reggie snarled. I could almost see the smoke rising from his nostrils through the telephone.

“And if he did take any documents, it was only to prove that everything he was saying about the overbilling was true.”

“Oh, so you admit your client stole the records,” I said. “I guess that statement will back up the surveillance tape we have showing him stuffing documents into his little briefcase several months before he was fired.”

Reggie began to stutter, but quickly regained his composure. “You know, my sistah,” he said, his voice still raging with animosity, “I really don't understand how you sleep at night. The white boys over there are just pimping you, and you're too dumb or too naive to know it.”

His words stung like a slap, but I refused to give him the satisfaction of knowing it. “You haven't said anything yet about your client's felony conviction.” My tone was deliberately taunting. “And your defense to that is what?”

Reggie remained silent for longer than he should have. “Tell me something, Ms. Henderson, exactly how low do you plan to go? My client was barely out of his teens when that happened. He was in the wrong place at the wrong
time. He asked a buddy for a ride and ended up in the middle of something he had absolutely nothing to do with. The judge knew it and the jury knew it. That's why he only got probation.”

“But the fact remains that Micronics's employment application asks every applicant if they've ever been convicted of a felony. And your client intentionally lied about his criminal background. That's a material misrepresentation, which constitutes grounds for immediate termination. If he had answered the question truthfully, he never would've been hired in the first place. He was just lucky his conviction was too recent to have been picked up by Micronics's background check. So if he wants to scream fraud, he should stand in front of the mirror and do it.”

I closed my eyes and tried to ignore the rancid taste rising in my throat. I wished there was some way to detach myself from my own smug words.
This is what lawyers do. Provide a vigorous defense for their clients.

“I can't believe this!” Reggie said, yelling again. “Your boys have to go back more than twenty years to find a reason to justify terminating my client. What the hell does that tell you?”

That was not my problem. I needed leverage to get the case settled and Randle's felony conviction and his act of theft provided it. “The after-acquired evidence rule is a valid defense and Judge Sloan is going to grant our motion. So you may want to consider settling the case.”

“Oh, so that's how you do it? Blackmail style?”

“Nobody's blackmailing you. I'm just suggesting we go back to the table. If you want, I can call the court and take
the motion off calendar until we've had a chance to see if we can resolve the case.”

“Screw that! Our position hasn't changed.”

“I'm not sure Hamilton will feel the same,” I said. “I heard he specifically wanted me back on the case precisely so that we could talk settlement.”

“That was before you filed this motion. And anyway, this ain't Hamilton's case, it's mine.
I
call the shots. And we ain't settling. We're going to the mat on this one. Let's put twelve in a box and let a jury tell Micronics just how much this case is worth.”

“You sure you want to do that? You and your client could very well end up with nothing.”

“I'll take my chances,” Reggie shouted. “I'll see your ass in court!”

R
eggie stared at the Micronics motion, then hurled it across the room. “This is some bullshit!”

He had never even heard of the after-acquired evidence rule. He turned on his ancient computer and tried to enter the Westlaw Web site to look it up. The message “access denied” appeared on the screen.

“Damn it!” he said under his breath. Cheryl had probably forgotten to pay the bill again.

He went to the Internet and typed in the Web address for FindLaw.com. He entered a series of search terms, but was not very adept at legal research and didn't find anything helpful. Running over to the narrow bookcase against the far wall of his office, Reggie cocked his head to the side and began scanning the spines of the books. He had never put much effort into building a decent law library. Instead, he kept up-to-date on new case law by attending seminars and reading newsletters. Over the last few years, however, he had failed to even do much of that. Being able to quickly settle most of his cases before they reached the motion stage made legal research unnecessary.

He finally spotted the book he was looking for,
Recent Developments in Employment Law,
which he had
received at a seminar years earlier. When he snatched the book from the shelf, three others tumbled to the floor, kicking up a small cloud of dust. Reggie coughed uncontrollably as he waved the dust from his face.

He sat down and flipped to the index in the back of the book. He was surprised to find a whole section on the after-acquired evidence rule. Several cases were listed, but only one California decision—
Camp v. Jeffer, Mangels, Butler and Marmaro.

As Reggie read the brief synopsis, he began to hyperventilate. The case was directly on point.

The Camps, a married couple, had been fired from a law firm for poor performance. They sued for wrongful termination claiming that they were really terminated because the wife had blown the whistle on one of the firm's partners, who had engaged in insider trading. After the lawsuit was filed, the law firm learned that both Mr. and Mrs. Camp had been convicted of a felony years earlier and had lied about it on their employment applications. The firm also discovered that before the couple's termination, they had stolen confidential documents to support their whistle-blowing claim.

In its motion to dismiss, the law firm argued that the couple had obtained their jobs under false pretenses and would have been terminated had the firm known about the document theft and the felony convictions. The motion requested that the Camps' complaint be dismissed and the court did exactly that. In explaining the rationale for its decision, the court stated:

Reggie closed the book and pounded it with both fists. He was so angry his head was throbbing.

Had Reggie run the
Camp
case through the Westlaw database, he would have learned that it had been overruled. Later courts held that the after-acquired evidence rule could only be used as a means of limiting damages, not for a total dismissal of a case.

But Reggie didn't think any further research would do him any good. He was much too distraught after learning that the one case that could potentially make him rich was about to evaporate. He punched his intercom button, but Cheryl did not pick up.

Charging out of his chair, he flung open the door to his office. “Did you hear me buzzing you?” he yelled.

Cheryl was talking on the telephone and stroking her nails with a shiny gold polish.

“Hey, girl, I gotta go.” She glared up at Reggie. “This man done lost his mind.”

Holding the receiver between her thumb and forefinger so as not to smudge her wet nails, Cheryl dropped it back into the cradle. “I told you before, don't be shouting at me like that,” she shouted back.

“I left my cell phone with Hamilton's number in it in my car,” Reggie growled. “Get him on the phone for me. Now.”

Cheryl took her time thumbing through her Rolodex.
Reggie walked up to her desk and hovered over her. When she finally pulled out Hamilton's business card, Reggie snatched it from her.

“Never mind,” he said, running back into his office. “I'll call him myself.”