Jefferson looked less than happy to. He wrung his meaty hands together. Then he nodded.
Judge Cook narrowed his eyes and pursed his lips. He looked at Sasha for a long moment.
“Okay. Here’s what we’re going to do. Mr. Donaldson will put his client up on the stand and question him. Ms. McCandless will have the opportunity to cross-examine him. Then Ms. McCandless can continue her argument on class certification.”
Donaldson nodded his agreement.
“Provided there’s a need to continue the argument, right, your honor? I mean, if you don’t grant my two motions after my cross.”
Sasha said it just to rattle Donaldson. He didn’t seem like a guy who would perform well under pressure.
The judge’s eyebrows were ready to shoot right off his forehead. “Of course, Ms. McCandless. In the unlikely event I grant your motions from the bench after Mr. Jefferson testifies, your work here will be done.” He smiled. “Call your client, Mr. Donaldson.”
Warren Jefferson shuffled toward the witness box, taking great care to avoid the well.
Brett swore him in and Jefferson arranged his bulk on the narrow chair.
“Good morning, Mr. Jefferson.” Donaldson walked his reluctant client through the warm up questions—name, address, occupation.
Sasha half-listened while she plotted her cross.
“When did you begin taking Slim Down?” Donaldson asked his client.
Jefferson shifted in his seat and thought back. “Maybe, uh, January 2009?” He turned to look at the judge. “New Year’s resolution.”
“And, if you don’t mind my asking, what was your weight at that time?”
“A little over two hundred and fifty pounds.”
“And, how much weight did you lose?”
“Actually, I gained weighed.”
“You
gained
weight on VitaMight’s Slim Down product?” Donaldson feigned surprise, playing to some imaginary jury.
“Yes sir. About forty pounds. I’m just shy of three hundred now. Two ninety-seven.”
“And you took it as directed?”
Sasha gritted her teeth. Starting every sentence with “and” was a lazy trial attorney’s way of developing a rhythm. It drove her up the wall.
“Hmm-mmm, yes. Three times a day. With three reasonable meals. Water to drink.”
“And how do you know what’s a reasonable meal?”
“They had a little booklet with the capsule bottle. It had menu recommendations. Like fruit, yogurt, and a piece of dry toast. That was a recommended breakfast. In fact, that’s what I had today.”
Jefferson was doing her work for her. She jotted down his breakfast on her note pad.
Donaldson looked at the judge, hands spread open. “Your honor, I don’t see any point in belaboring this. I will make a proffer that Mr. Jefferson closely followed the meal recommendations.”
The judge glared at Sasha. “Do you have any objection, counselor? Do we need a blow-by-blow account of Mr. Jefferson’s meals?”
Sasha stood. “Defendant accepts Mr. Jefferson’s proffer that he followed the recommendations for breakfast, lunch, and dinner.”
Donaldson turned and squinted at her. Wheels turned slowly in his head. She could see him trying to figure out why she worded her response that way. He’d know soon enough.
“I have nothing further.” Donaldson sat down.
Sasha glanced one last time at her notes. “I just have a few questions, Mr. Jefferson.”
In a jury trial, she would typically stand between counsel’s table and the witness stand to draw the jurors’ attention away from the witness. Today, she wanted Judge Cook’s focus and, with any luck, his ire to be entirely on Warren Jefferson.
She stood behind her table and tried to keep her voice even and her gestures minimal. No easy task for an Irish-Russian-American from a big family.
“You said you follow Slim Down’s recommended meal plan for breakfast, lunch, and dinner, correct?”
“Yes.”
“Does Slim Down also provide snack recommendations?”
A yes or no question. If Donaldson had prepared his client, Sasha would have gotten a one-word answer. Instead, Jefferson started explaining.
“Well, I’d say they’re more like, uh, suggestions. The pamphlet said you could have light snacks and it listed examples of snacks, like almonds, or fruit, popcorn, like that.”
“So, let me make sure I follow you. The meal ideas are recommendations and the snack ideas are suggestions?”
“Right.”
Tap, tap, tap.
Judge Cook was drumming his pen against the decorative gavel in front of him.
“What’s the difference?”
Jefferson shot his lawyer a desperate, panicked look. Donaldson, busy straightening his papers, missed it.
“Um, for one thing, the snacks aren’t required. If you aren’t hungry between meals, you don’t have to snack.”
“Do you snack between meals?”
“Sometimes.”
“When you snack, do you follow VitaMight’s
suggestions
in choosing your between meal snacks?”
He stared at her. She stared back. He dropped his gaze to his lap.
“Not always. Sometimes I’ll substitute, like, I’ll have cottage cheese instead of hummus.”
Judge Cook appeared to be doodling now.
“Did you have a mid-morning snack today?”
“Yes.”
“One of the suggested snacks?”
“No, I substituted.”
“What did you have?”
No response.
“Mr. Jefferson, on your way into the courthouse at about 9:15, what were you eating?”
“A sandwich.”
“What kind of sandwich?”
Jefferson spoke in a whisper. “A Primanti’s sandwich. Capicola and cheese.”
The court reporter recoiled. Judge Cook looked up, mild interest in his face. Donaldson stopped shuffling his papers.
“With fries and coleslaw, I imagine?”
“Well, yeah.” Jefferson said it like he couldn’t conceive of holding the fries and coleslaw on his mid-morning snack.
Sasha let that sink in, then took a stab. Violated the rule that you never ask a trial witness a question you don’t already know the answer to.
“Did you have an after dinner snack last night?”
“Yeah.” Jefferson’s hands were balled into fists.
“From the list of suggested snacks?”
“No. Peanut butter chocolate ice cream.” His face was red.
She’d made her point. No need to further humiliate the man.
“Thank you, Mr. Jefferson.”
The judge leaned forward, “Do you want to try to rehabilitate your class representative, Mr. Donaldson or can we finish up here so he can go get his before-lunch snack?”
Donaldson winced. “No redirect, your honor.”
Judge Cook turned to the witness. “You can step down, Mr. Jefferson.”
Sasha was silent until he had climbed down from the box and returned to his seat next to his lawyer.
Then she addressed the judge. “At this time, VitaMight respectfully renews its motions for summary judgment and denial of class certification. In light of Mr. Jefferson’s admitted deviations from a healthy diet, he cannot establish that his weight gain was caused by VitaMight’s supplement nor could he serve as the named representative of a class of consumers who
did
take Slim Down as instructed.”
Donaldson didn’t even bother to respond. He was busy trying to calm down his client, whose angry whispers threatened to veer into an outburst.
Judge Cook sighed theatrically to communicate his disgust.
Sasha waited.
The judge flipped his pen onto the desk in front of him and exhaled loudly, his nostrils flaring. “Ms. McCandless, I do not approve of your tactics, but it is evident that Mr. Jefferson’s case has serious weaknesses. I will issue an opinion in short order.” He leaned forward. “Mr. Donaldson, you might want to revisit that settlement.”
He stood and left the courtroom through the door to his chambers. Brett trailed behind reluctantly. Sasha was sure he’d bear the brunt of the jurist’s displeasure at not succeeding in his efforts to screw over Noah’s client.
She slipped her notes and files into her bag, trying not to listen as Warren Jefferson yelled at his attorney. She stood to leave.
Donaldson broke free of Jefferson and grabbed Sasha’s arm as she passed by.
“Sasha, is the thirty grand still on the table?” If he had tried to keep the desperation out of his voice, he failed.
Sasha swallowed her initial response, which was to laugh in his face. She’d love to tell him what he could do with his settlement demand, but the sad truth was VitaMight would probably still pay him to go away. There were two types of corporate clients: those that made litigation decisions based on business factors and those that would not settle ever, no matter what. Almost all clients claimed to fall in the second category. Almost none did.
“I’ll have to talk to my client.”
“Of course. Can you let me know, maybe this afternoon?” Donaldson cut his eyes toward his pissed off client.
“I doubt it will be this afternoon, Eric. I have a lot on my plate, especially with Noah’s death. I’ll call you after I’ve had a chance to consult with VitaMight.”
Donaldson reddened at the mention of Noah, briefly chastised, but then engaged in a final bit of theater for his client’s benefit.
“You do that. But, you’re on notice, we won’t wait forever. If we don’t settle this soon, our number goes up.”
Sasha didn’t bother to hide her laughter this time. “Noted,” she said, as she shook his hand off her arm.
She walked out into the hall and decided to take the stairs. Running a gauntlet of illicit smokers would be better than riding in an elevator with Donaldson and his client.
Chapter 23
Sasha pushed open the heavy door to the stairwell, thinking about her courtroom performance. Noah would have been proud of her. The client and the firm would be pleased by how she handled today’s hearing.
If she could convince VitaMight not to settle before Judge Cook wrote an opinion, she figured she might even deliver a dismissal. That would be a nice card to have in her pocket when the partnership vote came up.
The door swung closed behind her with a quiet thud.
She started down the stairs and two things happened.
One, heavy footsteps hurried down from the landing above her. And two, a big, young guy rounded the corner from the landing below at full speed.
She locked eyes with him and he yelled up the stairwell, “Gregor, it’s her!” The footsteps from above quickened.