Excerpt - DEAD MAN'S RULE by Rick Acker

Dead Man's Rule
by
Rick Acker

The Dead Man’s Rule—a law that bars one party of an oral contract from testifying about the agreement if the other party is dead.

Ben Corbin, a young, up-and-coming lawyer, takes on a seemingly straightforward case dealing with the legal ownership of a safe-deposit box. But he soon discovers the case is not as clear-cut as it first appeared.

Not only is his client, Dr. Mikhail Ivanovsky, an eccentric Russian scientist with a questionable past, but Ben also suspects that Ivanovsky is hiding something important.

It isn’t until the other party suddenly dies and the opposing attorney invokes the Dead Man’s Rule, that Ivanovsky discloses the whole terrifying truth, and why Ben must win. But the old law leaves Ben without his key witness, and—barring a miracle—without any chance of winning.

Excerpt of chapter one:

The New Client

This doesn’t look promising, Ben Corbin thought as he eyed the potential new client sitting in his lobby. The short, wiry man looked like he was about seventy, and the suit he wore was at least twenty years old. A thick shock of unruly gray hair crowned his overly large head, and the man’s thin hands, spotted with age, clutched a dilapidated and overstuffed briefcase in his lap.

Ben didn’t need more clients, he needed more paying clients. In the six months since he’d opened his own law practice, he hadn’t had any trouble keeping busy. The world, he had discovered, was full of people who wanted to hire a lawyer, but only a fraction of those people had both the desire and the ability to pay their legal bills in a timely fashion. That hadn’t been a problem at Beale & Ripley, the thousand-lawyer firm where Ben had spent the first seven years of his career. Every morning he’d gone up to his office on fortieth floor, worked hard for ten or twelve hours a day, and cashed a fat paycheck twice a month.

Ben was a litigator and a good one. At five feet, ten inches he was a little short to be the imposing courtroom lawyer, but his strong jaw, good looks, and muscular build helped make up for that. He had also worked hard at developing a relaxed, confident demeanor that made him very effective in front of a jury. All but five of his cases had been resolved before trial, but he’d won all five of those—including one that the lead partner had called “a dead bang loser,” given to Ben solely for experience.

Ben had enjoyed his work at Beale & Ripley, but it wasn’t very fulfilling. Most of his clients were big corporations that used his services simply as leverage to advance their business strategies. Even his big courtroom victories had little real meaning. “My job is to redistribute wealth,” he often joked, “from the rich to the rich.”

So when the time had come to make a run for partner, Ben had faced a hard decision: Would he now spend even more hours in the office, trying to build his book of business? Or would he give up the security and comfort of a big firm for the challenge and uncertainty of own practice? Ben and his wife, Noelle, had spent a lot of long nights trying to answer those questions. Noelle was an accountant working for a bank headquartered in Chicago, and for the last couple of years she’d also been chafing to get out on her own. She and Ben planned to start trying for children in two years (when she turned thirty-two), and she wanted to run a part-time practice from home once the kids came. In the meantime, spending all her time reconciling telecom expenses for a Fortune 100 company left her feeling slack and uninspired.

Ben and Noelle eventually decided that they’d rent offices together. Noelle would work part time, doing accounting and office managing for Ben’s law practice, and spend the rest of her time consulting for her former employer and soliciting other clients to build her practice.

The Law Offices of Benjamin Corbin had opened six months ago last week, and the past half year had been a mixed bag. Ben had won two trials but had been paid for only one of them. Noelle was doing a good job running the practice and had picked up a couple of small-business clients. But she wasn’t getting as much consulting work as she had hoped, and their expenses were, of course, higher than they had projected. Not a lot, but enough to make their finances uncomfortably tight.

Ben knew he was probably too busy to take the old man’s case, even if he could and would pay. In fact, Ben knew he really should be preparing for a court hearing he had in less than an hour. The hearing wasn’t particularly important, but the case was. Ben represented a small company called Circuit Dynamics whose trade secret software had been stolen—or so Ben hoped to prove—by several car-part manufacturers. If Ben won, the damages would be at least $50 million, and Ben would get 10 percent of that under a partial contingent fee agreement he had with his client.

He glanced at his watch. The old man had been referred by Cathy Pugo, one of Ben’s more reliable clients, so he at least had to talk to him. He swallowed his doubts and strode across the lobby, a smile on his face and his hand reaching out. “Hello, I’m Ben Corbin,” he said, shaking the man’s hand warmly.

“Mikhail Ivanovsky,” the man said with a sharp nod. “Pleased to meet you, Mr. Corbin.”

“Likewise,” replied Ben. “Please come with me.” He led his guest into the firm’s conference room. It was small, but the table and chairs were beautifully finished solid oak. Ben also took pride in the paintings on the walls, both originals, though they’d come from the Starving Artists gallery south of the Loop. “Can I get you anything to drink?”

“Tea with sugar,” said Ivanovsky in clear but thickly accented English.

Ben picked up the phone and dialed. “Susan, could you bring in tea and sugar for Mr. Ivanovsky? Thanks.” He stole a glance at his watch again as he sat down at the table. ”I have twenty minutes before I need to leave for court. What can I do for you, Mr. Ivanovsky?”

The old man reached down into his battered briefcase and pulled out a stack of papers. “I need you to get some things that are in a safe deposit box. The things in the box I bought, but they will not give them to me,” he explained.

“Who won’t give them to you?” asked Ben.

“The bank which this box is in. American Union Bank.” He riffled through the sheaf of papers and handed several to Ben. “Box number 4613 in the LaSalle Street American Union Bank building.”

Ben glanced at the papers. They consisted of a map of downtown Chicago with the location of the bank marked by a red X, some handwritten Russian notes, and a letter from the bank refusing Mr. “Ivansky” access to the box. “They say their records show that the box belongs to a man named Nikolai Zinoviev,” Ben observed.

“This lies!” Ivanovsky insisted hotly, pointing to the letter. “This Zinoviev, he sold it to me for $5,000 last week.”

Ben noticed that Ivanovsky hadn’t handed him a contract for the sale of the box. “Did he sign any papers showing that he sold it to you?”

Ivanovsky hesitated. “Not yet.”

“Have you asked him to?”

“Yes.”

“What did he say?”

“He said he would sign papers from the bank to show that this box is mine, but then he did not do it. Now he will not sign. I think he discovered someone who will pay more.”

“I see,” said Ben. Now they were getting somewhere. “Were there any witnesses to the conversation in which Mr. Zinoviev agreed to sell it to you?”

“No, we were alone.”

“Did you actually give him the money?”

“Yes, yes,” said Ivanovsky, shuffling through his papers, happy to be able to prove something again. “Here is the receipts, here is the bank statement showing my account before, and here is another statement showing my account is much lower now.”

Ben’s secretary, Susan, came in with a mug of tea and a sugar bowl for Ivanovsky. He thanked her and dumped four heaping spoonfuls of sugar into his mug. Ben’s teeth hurt as he watched his guest drink. “By the way, what’s in the box?” Ben asked.

“Jewelries.”

“What kind of jewelry?”

Ivanovsky put down his mug. “Okay, here is what happened. I was at St. Vladimir Church two Sundays ago and I talked to this man, and he told me about a man who died in 1985 and maybe he put some jewelries in this box at American Union Bank on LaSalle Street. This man who died, his brother lives in Chicago now, so I telephoned the brother and asked if it is true. This brother is Nikolai Zinoviev, who is called Nicki.

“I said to Nicki Zinoviev, ‘A man told me that when your brother died, maybe he left jewelries in a safe deposit box at a bank. I maybe would like to buy these jewelries.’ He knew nothing of this box and was very surprised. He said, ‘You are a very lucky man, Ivanovsky, because I must pay some money to a man today and my bank is closed so I cannot get my money. Because of this, I will sell whatever things are in this box to you for $5,000, but you must pay in the next two hours.’

“American Union Bank is also closed, but I think maybe these jewelries are very valuable, so I take this risk and say yes. I gave him five thousand dollars, and he said we will go to the bank the next day and fill out necessary forms and show the bank papers so we can take the things in the box. But now he says no.”

Ivanovsky’s monologue seemed oddly pre-planned to Ben, and he had a vague feeling that there was more going on here than this man was telling him. But did Ben really need to get to the bottom everything? Or, more accurately, did he need to do it now? Not really, he decided. After all, he hadn’t even taken the case, and he probably wouldn’t. He decided to let it slide, at least for the time being. He glanced at his watch again; he had eight minutes. “Okay, I think I have a basic grasp of what your case is about,” he said. “The real problem I see is money. This isn’t a very large dispute, and litigation is expensive. No matter who you hire, you’ll almost certainly spend more than five thousand dollars on lawyers. Are you really sure you want to file suit over this?”

Ivanovsky didn’t hesitate. “Yes.”

Ben shrugged. “O-kaaay,” he said. “And you don’t just want your money back. You want the jewelry, right?”

“Yes.”

“Well, that will mean not just filing a complaint, but also moving for an immediate temporary restraining order, or TRO, to keep Mr. . . .,” he checked his notes, “Mr. Zinoviev and the bank from giving it to someone else. TROs only last ten days, so whether you win or lose the TRO motion, you’ll need to file a motion for a preliminary injunction that will prevent them from doing anything with whatever is in the box. The trial on the preliminary injunction may come within ten days, but what usually happens is that the parties agree to extend the TRO—if it’s granted—and hold the preliminary injunction trial a little later. That way they can do some discovery before jumping straight into a trial. Still, the trial will probably come within a month, which is about two years sooner than in a regular case.

“My old boss used to describe this type of case as ‘litigating with your hair on fire,’ and that’s what it feels like. You’ll be constantly running from the moment you start until the end of the trial. You’ll also be spending lots of money, because your lawyer will be working for you pretty much full time for the whole month.” Ben did some quick calculations in his head. “It would probably cost you at least $20,000 to get through the preliminary injunction trial. The case won’t end then, but the work and the bills will probably drop off.”

Ivanovsky went a little pale. “I . . . I do not have so much,” he mumbled, searching through his bag. “I have only $5,000 with me.” He pulled out a stack of traveler’s checks and, with a downcast look on his face, showed them to Ben. “I have some money saved, and I can get the rest from my pension and from selling some things, but not right away. But next week I will pay. Is this okay?”

Ben was slightly stunned and felt a little sorry for the old man. He was clearly burning through his retirement nest egg to get whatever was in that box. “Uh . . . yeah, sure. I would only need five thousand up front. Just bring me a bank statement showing me that the rest is there.”

Ivanovsky started to countersign the checks. “No, no. Wait,” Ben said quickly. “I’m not sure I can take your case. Remember how I said you’ll need a lawyer who can work on this full time for a month? I’ve already got a busy month ahead of me. I wouldn’t want to take your case and then not have the time to represent you as well as you deserve.”

“But you must!” Ivanovsky said with sudden fierceness. “This is a very, very important case. When I told Mrs. Pugo I needed a very good lawyer, she said, ‘Call Ben Corbin, here is his number. He is a good lawyer, Mikhail, the best that you can afford.’ So you must take this case.” He paused. “I need you.”

Ben knew he was running late without looking at his watch. “I have to leave for a hearing now— I apologize for running out so quickly—but I’ll take a close look at my calendar, and I’ll call you tonight to let you know whether I can take the case.” Ben was already thinking about the Circuit Dynamics case by the time he closed the door behind Ivanovsky.

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Excerpted from Dead Man's Rule by Rick Acker, Copyright © 2005, published by Kregel Publications.

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