He certainly didn’t plan to protract matters any longer than necessary. He would ask the essential questions to elicit the plaintiffs’ version of what happened and gather any other information that might help defend Apollo against the design defect claim. Then he would close the deposition as gracefully and painlessly as possible. At least, that was the plan.
“Morning, Ben,” Rob said, as Ben entered the conference room. “You’re late.”
“Don’t start with me, Rob. I’m not having an Up-With-People kind of day.”
“Sure, no problem,” he said, backing away. “Let me introduce you to everyone.” He pointed toward a pleasant-looking woman in a blue skirt. “Trudy here is going to be our court reporter this morning.” Ben shook her hand. Then Rob directed his attention to an extraordinarily obese man perched on the edge of a chair in the corner of the room. Rolls of flesh cascaded from his chin; he had no neck at all. “This is the attorney for the plaintiffs, George Abernathy.”
Ben stepped forward and shook the immense man’s hand. “George Abernathy. Seems like I’ve heard that name before.”
Abernathy beamed. “Perhaps you’ve seen my commercials on TV.”
“Your…commercials?”
Abernathy adopted a deep anchorman voice. “ ‘Have you got a bone to pick with your boss? Have you been fired for no reason? Have you been injured, and no one wants to pay the bill? If so, then you need a fighter in your corner.’ Then you hear the sound of the bell, and we show some footage from one of the Tyson prizefights.” He resumed the anchorman delivery. “ ‘George Abernathy will go the distance for you. And you don’t pay a penny unless he collects. Call—’ And then we give our phone number. It’s been a big hit.”
“Sorry,” Ben said. “I guess I watch the wrong programs.”
“Then maybe you saw my ad in TV Guide. The headline reads PERSONAL INJURY PROFESSIONAL in great big letters.”
“I don’t watch that much TV anymore.”
“Oh, well,” Abernathy said jovially, “you big shots don’t have to worry about small-timers like me.” He reached into his wallet. “Here, let me give you my card. Who knows? You might get some personal injury situation too messy for you to deal with and consider tossing it my way.”
Ben took his business card. It was a mélange of phosphorescent colors; it glowed as it caught the light. Embossed in the center was GEORGE ABERNATHY—PERSONAL INJURY PROFESSIONAL.
“Thanks for the card,” Ben said, immediately hiding it in his coat pocket. “Does all that advertising pay off?”
“Like you wouldn’t believe. It’s hard as nails for a small practitioner like me to keep going.”
“Tell me about it.”
“But since I started placing those ads, business has been booming. I get your regular, salt-of-the-earth, hard-working blue-collar man—he gets hurt and he doesn’t know what to do about it. He doesn’t know anything about lawyers and lawsuits. He’s lost. That’s where I try to help out. It’s a public service, really.”
“Most public servants don’t work on a contingency fee,” Ben observed.
“True,” Abernathy agreed. “But that’s the only way my clients could ever pay. It’s the poor man’s ticket to the courthouse. Surely you don’t think courts are just for corporations?”
“No, I don’t.”
“In my experience, clients are happy to pay any contingency fee, even up to fifty percent. Tell you what, Ben, after we finish this depo, let’s you and me have a squat and try to polish off this mess. An early settlement would be in everyone’s best interest.”
The conference room door opened. “Have you met the Nelsons yet?” Abernathy asked.
As if on cue, a middle-aged couple entered the room and approached Abernathy, who wrapped his ample arms around them. The man was stocky, square-faced.
His white undershirt bore detectible underarm stains. The woman was a petite shadow in a plain sea-blue dress. “This is Carl and June Nelson,” Abernathy said.
Ben saw the recognition light in their eyes just as it did in his. “We’ve met before,” Ben said. “I thought your names seemed familiar, but I couldn’t quite place them.”
Now he did. Ben had represented Carl and June Nelson in a dog bite case shortly after he left Raven, Tucker & Tubb and started his own practice. They were kind, unassuming people—but they had a neighbor who kept a Doberman. The Doberman got out one day, and Carl was unfortunate enough to cross its path. His injuries were not life-threatening, but he did incur some steep medical bills and was expected to have both physical and mental trauma for some time. The nerves in his left leg were weakened, and he showed signs of severe stress, even paranoia. Ben managed to arrange a friendly judgment by which the Nelsons took home forty thousand dollars for their injuries and pain and suffering.
“I’ve represented the Nelsons on a previous matter,” Ben said.
“Really?” Abernathy’s eyebrows danced. “Hey, I wonder if we have a conflict of interest here?”
Yeah, you’d like that, wouldn’t you? Ben addressed the Nelsons. “Do you understand that in this lawsuit, I represent the Apollo Consortium—not you?”
They nodded their heads.
“To your knowledge, does this lawsuit relate in any way to the action I handled for you?”
Carl shook his head. “No connection that I can see, Ben.”
“Do you believe any client confidences I obtained during the previous lawsuit could be used to your disadvantage in the present lawsuit?” Carl and June looked at one another, then back at
Ben. “I don’t see that they have anything to do with one another,” Carl opined.
“Would you be willing to execute a waiver allowing me to continue working on this case?”
“We thought you were a fine young man,” June interjected. “In fact, we called you first when this incident arose, but your secretary told us you were tied up.”
“Hate to see you workin’ for the other side,” Carl said good-naturedly. “But we’ll sign whatever you want us to sign.”
“Thank you. Mr. Abernathy, it looks to me as if we have no conflict here.” The disappointment on Abernathy’s face was apparent. “Shall we get started?”
After the court reporter swore in June, Ben asked his preliminary background questions about her education and occupational history (none). She had not been deposed before and she had not reviewed any documents in preparation for her deposition.
“Mrs. Nelson, if at any time during this proceeding you want to take a break, for any reason at all, just tell me and we’ll do it, all right?”
She laid her hands flat on her lap. She was obviously nervous—every deponent was—but she was doing her best to contain it. “All right.”
“I’ll try to make my questions as clear as possible. If at any time you don’t fully understand my question, just tell me, and I’ll rephrase it, okay?”
“Okay.”
“And if you do respond, I’ll assume you understood the question.”
“That’s fine.”
Standard deposition babble. Try to cozy up to the witness, make her feel relaxed enough to say something she shouldn’t. It also made a useful record if, at trial, the witness tried to squirm out of an answer by claiming she didn’t understand the question.
Ben realized June might not be able to maintain her brave front for an extended period. He decided to proceed directly to the night of the accident. “Can you tell me what the occasion was that caused everyone to be riding on the flatbed behind the tractor?”
June licked her lips and thought carefully before answering. “It was Homecoming night, just after we won the football game. Our son, Jason, was the star quarterback, you know.” Ben saw a twitch in the corner of her eye, but she fought it back and proceeded. “The tractor pull was intended to be a celebration.”