Chapter 54: I Wouldn’t Have It Any Other Way

February 3, 1997, Chicago, Illinois

“Dave Kallas, Tara Brooks; Tara, Dave - once and future VP of Software Development at NIKA.”

They shook hands and Tara and I sat down in chairs facing Dave’s desk at IIT.

“Steve filled me in,” Tara said.

“And me,” he replied. “I read your basic proposal. It’ll need to be fleshed out to turn it into an actual development proposal.”

“Steve warned me about that and said you’d ask a bunch of questions today to get us closer.”

“Then let’s get started,” he replied.

For the next two hours, I mostly listened, only asking the occasional question or making the odd comment when I felt Dave and Tara weren’t quite on the same page. Both Dave and Tara took notes, and by the time they finally agreed they’d come to a solid set of conclusions, they’d each filled several pages with notes.

“Steve, when can you get me the funding?” Dave asked.

“By the end of the week. Deborah was tied up with responding to Dante, but we’re in a bit of a holding pattern at the moment. Did she make an appointment with you to prep for the inevitable deposition?”

“Yes. She’s coming here on Wednesday to go over what we expect Dante’s attorneys to ask.”

“Remember, they’ll probably ask some unexpected things, too. And they can range far afield, including things which aren’t directly relevant.”

“They’re allowed to go on a fishing expedition?” Tara asked.

I nodded, “In depositions they can ask just about anything, and it’s very difficult to avoid answering. The Federal Rules say that any question may be asked that might reasonably lead to the discovery of admissible evidence. So the answer itself might not be admissible, but if it leads to something that is admissible, then they can ask it.”

“If you can answer in front of Tara, what do you think the angle will be?”

“Mostly what I said before - they’ll try to show you objected to the project by asking VERY carefully worded questions which don’t allow you to explain. We both know your objections were to the pressure on the ‘Young Ones’, but they’ll try to selectively quote your emails, and so on. Of course there will be the whole ‘morality’ angle, but that would be more to impeach my character than anything actually probative. The other thing they might try is to get you, or someone else, to say something which would attract ‘imperial entanglements’.”

“FBI?”

“Or IRS. Or the Anti-trust division of the DOJ. Deborah will be there, but I’d strongly advise you to have your own attorney present. I have a few names from Jamie of independent attorneys who are not NIKA clients who can handle this kind of thing, or you can pick one you find yourself. We’ll cover your costs, of course, but I’d prefer you pick the attorney.”

“To deny Dante a potential avenue of attack.”

I nodded, “Yes. And to protect your interests in the event we lose.”

“But you’re confident you’ll win.”

“I am, but if this gets in front of a jury, it’s not a sure thing. The odds are strongly in our favor, but juries do random things, according to every lawyer I’ve ever spoken to.”

“Obviously you have a strategy.”

I nodded, “Obviously.”

“Not going to give me a peek at the hole cards?”

I chuckled, “That’s about as likely here as it is at the Hold ‘Em table!”

“I might have a chance of beating you or Terry then!”

“Might,” I grinned.

“I don’t say this kind of thing very often, but you can be a real asshole!”

“Thanks!” I grinned.

“I take it you don’t lose very often?” Tara asked.

“If I do,” I replied, “it’s usually to Terry, or on occasion in the past, to my late friend Jorge.”

“How can you be that much better at a game where the cards are shuffled and come up randomly?”

Dave chuckled, “Which is why most people lose to Steve - they play their cards, and not the man. In Hold ‘Em, the cards are, for the most part, irrelevant.”

“Huh?” she asked.

“It’s a mental game based on betting and knowing the odds and knowing your opponent,” I said. “Yes, there are times when the cards matter, but that’s maybe 10% of the time. Mostly we never see each other’s cards. Showdowns are not that common; mostly everyone but one person folds before you get to the point where you show the cards.”

“Strange. When we played poker when I was younger, we always showed our cards.”

“Hold ‘Em is different. I bet you were playing stud or draw.”

“5-card draw, mostly, yes,” she replied.

“Learn Hold ‘Em,” I replied. “It’s a great mental game.”

“In my spare time! Dave, when do you think you can have the design document fleshed out?”

“Give me two weeks. Once you approve, we’ll get started coding right away, and you’ll have the first working module by mid-April.”

“Excellent. Steve, how do I pay you?”

“I’ll have Deborah send you the information. You can wire the money or send a check to the LLC. When you’re ready to let someone else in on this, then we’ll work out a royalty system. Dave’s going to do an analysis of what we should charge for it. When you’re ready.”

“And nobody else in Pennsylvania, right?”

“That’s your call,” I said.

“There is no way in hell I’m helping my competition! Why would anyone do that?”

Dave started laughing and shook his head.

“You might want to ask Steve about Lone Star and the latest version of NIKA’s legal software,” he said with a grin.

“The phrase ‘the enemy of my enemy is my friend’ explains everything,” I replied.

“I think we call it ‘politics makes strange bedfellows’,” Tara said.

“Are you two ready for lunch?” Dave asked.

I chuckled, “I haven’t eaten in the Bog in ages!”

“The Bog?” Tara asked.

“IIT’s non-cafeteria food service. Burgers, fries, and beer. I’ll use up my entire carb allowance for the week, but it’ll be GOOOOD!”

“And you’ll feel lousy for a couple days while your body readjusts,” Dave replied.

“True, but I don’t do this very often.”

“What’s your limit?” Tara asked.

“No more than 50 grams of carbs a day, but I usually stick to around 30, though most of those are ‘hidden’ in the sense that they’re in things like broccoli, dressings, and sauces. I’ll make up for it by going to karate tonight, which I usually don’t do on Mondays.”

“You still run every morning, right?” Tara asked.

I nodded, “Yes. On the treadmill or at the Y in the Winter, and in Washington Park during the warmer months.”

“So only in August?” she teased.

“It’s not THAT much worse here than Pittsburgh. Let’s go!”

The three of us left Dave’s office in the Stuart Building and headed to the Bog. It had been remodeled at least once since the previous time I’d been there, but the food was basically the same - good hamburgers and fries, though I got water rather than a soft drink. We chatted a bit about hockey, football, and baseball, though I mostly listened when Dave and Tara discussed the Bears, Steelers, Cubs, Sox, and Pirates.

When we finished lunch, we said goodbye to Dave, and then Tara and I headed back to the NIKA offices. She’d come to IIT straight from Midway Airport, so she hadn’t seen my office. She was totally impressed, and I suppressed a laugh when Penny just rolled her eyes and smirked. After the brief tour, which involved our new space in the other building, Tara left to do some shopping on North Michigan Avenue, and I got back to work.

February 5, 1997, Chicago, Illinois

“The court scheduled arguments on the motions,” Deborah announced from the door to my office on Wednesday.

I got up and motioned her to the «zabuton». She slipped off her shoes and joined me.

“Which ones?” I asked.

“The injunction request and our motion to dismiss.”

“Which means?”

“I’d run this by Jamie to be sure, but I’d say that means the motion for summary judgment will be denied as we expected. But it also means the judge thinks there’s at least a chance Dante can win on his injunction, which actually surprises me. I’m also surprised that our motion to dismiss is getting a hearing.”

“Do we know anything about the magistrate judge who is reviewing the motions?”

Deborah shook her head, “She’s relatively new, so her record is minimal. And remember, all she can do is recommend dispositive actions. In other words, she can’t, herself, dismiss the case or grant summary judgment.”

“So why the hearing on our motion?”

“Most likely because there is some specific issue we raised which might sway her to recommend dismissal.”

“Interesting. Can she grant the injunction?”

“Anything she does is subject to review by the District Court Judge, unless we waive our rights to that, and we haven’t. If she’s inclined to grant it, it would be stayed until it was confirmed by the District Court judge.”

“That’s an ‘Article III’ issue, right?”

“Exactly. It’s because a US Magistrate Judge is appointed by the district itself for eight-year terms, or four if they’re part-time. They aren’t nominated by the President and confirmed by the Senate, so they can’t act as Federal judges and make final, binding rulings. Mostly they manage discovery and pre-trial orders and motions such as the ones we’re talking about.”

“When you say she’s ‘new’, what do you mean?”

“She was appointed only a couple of months ago. She used to be a top litigator in Dallas. From all reports, she’s smart, witty, and excuse the term, fair-minded. But she also has a reputation for being a stickler for protocol and following the rules.”

I chuckled, “That works in OUR favor, not Dante’s. Give me a no-nonsense judge with a decent sense of humor, and I’ll be very happy. But she can’t actually hear the case, can she?”

“Actually, she could; about ten years ago, the Supreme court ruled that so long as both parties consent, a US Magistrate Judge can preside over a jury or bench trial in civil matters. At that point, she would be, for all intents and purposes, a Federal District Judge, and any appeal would be to the Court of Appeals for the 5th Circuit. But Dante would have to consent.”

“OK, Counselor, let me know when the hearings will be.”

“You’re going to Dallas?”

I nodded, “I want to size up this judge. If she’s what she’s reported to be, I’m going to want to maneuver Dante into a bench trial before her.”

“But you said he wants a jury trial!”

I nodded, “Yes, but when his request for a preliminary injunction is denied, time is on our side, not his. And if I understand docketing, it’s MUCH easier to get on the trial docket for a US Magistrate Judge than on the actual District Court docket. I read it can take two years from the initial filing for a civil case to actually go to trial.”

Deborah nodded, “Or longer, depending on all the pre-trial stuff. That’s why parties sometimes agree to allow the case to be heard by a magistrate judge.”

“So, if Dante thinks he can win, he’ll be very much interested in a quick resolution. We certainly are, either way. So we smoke him out by asking for the magistrate judge to hear the case, assuming my gut tells me that’s the right thing to do.”

“You’re going to make that decision on your gut?”

“Counselor, tell me about the District Court Judge.”

“Appointed by Carter, he’s a former civil rights attorney, who has a reputation for not liking multi-national corporations. His rulings tend to favor the ‘little guy’.”

“Who’s the little guy in this case?”

“I think Penny is right,” Deborah smirked.

“Somehow I think whipping them out and putting them on the bench will get us both found in contempt and arrested,” I chuckled.

“True. I’d have to say Dante would appear to be the little guy, with two big, mean corporations picking on him.”

“That tells me we’re better off with the magistrate, even without me going to Dallas. But I’ll go anyway.”

“How the heck do you intend to maneuver him into a bench trial?”

I grinned, “He’ll ask for one.”

“But you said he wouldn’t!”

“What’s off limits in a civil case between private parties?”

“Not much, so long as it’s relevant.”

“Think Dante’s character can stand up in front of a jury?”

“You mean the serial sexual harasser who has violated patents, treated his employees like crap, sued both you and Melissa several times, and otherwise behaved like a scumbag? No.”

“His attorney will understand that we won’t try that approach in front of a judge. Facts, yes, but not putting Penny, Sam, and others, including his former employees on the stand, or doing our best to do so to show a pattern of behavior. The same goes for what I think happened with Lone Star. What he did MAY have been perfectly legal, and if it was, it won’t sway the judge. But think about a jury hearing how Dante has, in effect, been picking on both Melissa and me since he sold her DP.”

“I wondered why you weren’t too concerned about going to trial. Do you really think you can pull that off?”

“One step at a time, Counselor. When is the hearing?”

“March 6th, which is a Thursday.”

“Well, that’s inconvenient because I’m flying to Boston on Thursday night for our long weekend at a bed-and-breakfast. What time?”

“9:30am.”

“And how long?”

“About two hours, I would guess, three at the outside. I need to talk to Jamie to be sure.”

“Do that. Worst case, I’ll fly straight to Boston from Dallas. Birgit will have a hissy fit, but it can’t be helped.”

“And you claim that child doesn’t run your life!”

“Yeah, yeah,” I grinned. “Talk to Jamie and let me know.”

“I need to talk to Lone Star’s counsel as well.”

“Obviously. Just keep me posted.”

“Will do.”

February 7, 1997, Chicago, Illinois

“Steve, I have Gwen Meyer on the phone,” Kimmy announced late on Friday morning.

“Put her through, please.”

A moment later Gwen was on the line.

“I wanted to call and give you an update with regard to Miss Sutcliffe. She’s still in Illinois, and I think there’s a reasonable chance she’ll be able to stay with her foster family. That said, the court did order visitation under the supervision of DCFS, but at a neutral site, so her mom doesn’t know where she’s staying.”

“When you say, ‘reasonable chance’, do you mean a layman’s ‘reasonable chance’ or a lawyer’s?”

“A layman’s. You know that DCFS can operate nearly autonomously. The only thing that is stopping them from making a decision in this case is that it’s interstate, and Family Court stated that there’s sufficient evidence of abuse to void the automatic return to North Dakota. They haven’t changed their mind on that.”

“Is that what DCFS is fighting?”

“Yes, because they don’t want trouble bringing kids from Illinois back from North Dakota in the future.”

“So they screw over a specific individual to protect their agreement, and thus their own power? Typical. What’s next?”

“After the visitation, DCFS will determine if her mother is fit, and then make that report to the court. From there, if the court rules her mother is fit, DCFS and North Dakota Family Services will petition the court to have Miss Sutcliffe returned to North Dakota.”

“She doesn’t want to go,” I protested.

“She’s a minor, Steve. I know you disagree with the entire concept, but in the end, that means she doesn’t get to decide. This is different from Marcia’s case, because that was a question of which parent in Illinois should have custody, and DCFS wasn’t really involved except to do an evaluation. In this specific case, it’s a question of who has jurisdiction over a minor child, and generally, it’s the court where she has her permanent residence.”

“She was abused, Gwen!”

“I can’t go into the details, but North Dakota claims that is resolved and she isn’t at risk.”

“Well, I’d say Willow seems to think she is!”

“Yes, she does. And that WILL be taken into account by the court. Remember, DCFS can only make a recommendation; they do not have final say. I’ll get to make my case, as will the Public Guardian, and he’s not part of DCFS.”

“OK. Keep me posted.”

“Don’t try any end-runs, Steve. And please don’t contact Miss Sutcliffe. It’s OK if she calls you, but if you appear to be actively interfering, it will hurt, not help, her case.”

“OK. Thanks, Gwen. Let me know when you know any more.”

“I will. I’ll send you an accounting of my time charged against the retainer.”

“Thank you.”

We said ‘goodbye’ and hung up.

“You know,” Penny said, conspiratorially, “we could make a lot of money opening a ‘hitman’ service that only targets moms acting like bitches.”

“Sadly,” I replied, “I don’t think we’d ever run out of customers.”

About an hour later, Deborah came to my office.

“We got Dante’s discovery list,” she said. “I called Jamie and we can head over for a meeting with him, Thad, and by phone, the Lone Star attorneys and our attorney in Dallas.”

“Any surprises?”

“No. You called it exactly right.”

“Then let’s go.”

We left the building and walked to the Allen & Baker offices where Jamie’s assistant ushered us into a conference room where Jamie and Thad were waiting.

“No surprises, right?” Jamie asked.

“No,” I replied. “Well, except that a movie named Dante’s Peak opens on Friday!”

“I heard about that,” Jamie said, shaking his head. “About a volcano everyone is afraid will erupt!”

“Sounds about right, I chuckled. Anyway, we figured that was the approach he’d take.”

“Anything to add to our discovery list?”

I shook my head, “No. He’s going to go completely around the bend when he sees the approach we’re taking. Is there any way he can prevent us from deposing Nathan Edwards?”

“Not that we can see,” he replied. “Unless there’s something that the team in Dallas knows about this.”

“Jake Brown, here in Dallas. Not that we’re aware of. The other side can argue relevance, but that doesn’t generally prevent depositions or subpoenas. If what we glean isn’t relevant, it can be excluded if it has no probative value for the matter before the court.”