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Benito DeMarco was forty-seven years old, built like a brick shithouse, a pipe fitter, and a fraud. It had been over a year since his pickup had been struck from behind as he waited al a slop sign, and still, he claimed, the phantom pains rendered him totally disabled. The report's first three pages covered Dorsey's investigation. It documented the times and routes of DeMarco's numerous trips to hardware stores and building supply centers, Dorsey following close behind in a borrowed van. Attached to the report were copies of receipts Dorsey had obtained from sales clerks, proving that DeMarco had lines of credit and was buying supplies in contractor's quantities. Also accompanying the report was a tape shot from the van's rear window as DeMarco tore into a cement sidewalk with a pickax.
The good stuff, Dorsey thought, gazing at the typewriter keys, the stuff that speaks for itself. Now for the rest, which isn't such good stuff. Put it on paper and run. Just document your time for the bill.
Without further deliberation, he began a new paragraph, the pain in his fingers increasing, and documented that on October 26, t984, he had appeared in the Court of Common Pleas of Allegheny County, at Pittsburgh, to provide expert testimony in the case of DeMarco vs. Fidelity Casualty. After which his involvement in the case ended. And that, Dorsey reminded himself, coincided with the end of Fidelity Casualty's defense.
Dorsey sipped at his beer. Fidelity Casualty's attorney: so young, the product of a large law firm, so well dressed and groomed he seemed to Dorsey the result of reading Esquire too thoroughly. The guy was overconfident, figuring he had DeMarco's lawyer, Stockman, by theass. As if Jack ''Personal Injury" Stockman ever stood still long enough to be taken hold of.
''You'll be a surprise witness " the defense attorney had said at their first meeting. "I'm—the law firm I mean— we're the ones who will hire you not the insurance company. That way you're protected rrom discovery in pretrial as part of attorney's privilege. You'll be called and sworn in and we'll watch Stockman's face drop when you show the tape. Oh Stockman will object when you're called but he'll he overruled. And you'll put on your show. And we'll have kicked his ass."
But Stockman he hadn't objected very hard.
Dorsey rose from the swivel and crossed the office to seat himself on the edge of a black leather chaise beneath the two front windows. The office was the converted living room or Dorsey's row house; outside was working-class Wharton Street the late-afternoon foot traffic increasing as the workday ended. Dorsey leaned his heavy frame toward the window resting his elbows on the sill. For a few moments he watched a woodpecker, lost in the city peeking away at a telephone pole it had mistaken for a tree. As he watched, Dorsey rehashed his day in court.
The jury box had been empty. It was the first thing Dorsey had noticed on entering the courtroom and he immediately asked the defense attorney what had happened. "Funny thing " the defense attorney said. "Soon as we got started Stockman tells the judge his client wishes to waive his right to a jury trial. Wants to plead the whole thing before the judge." When Dorsey went on to ask the defense attorney for his thoughts on the mater he was told to take a seat and wait to be called.
The judge entered and took his seat at the bench and the young attorney stood patting his hair into place at his temple and self-consciously flattening the lapels of his suit jacket. He announced a bit too quickly that he had a surprise witness and Dorsey came to the witness stand. Stockman seated at the plaintiff's table next to his client remained silent.
Led by the defense attorney's questions, Dorsey recounted this surveillance of DeMarco's activities. The sales slips were entered into evidence and examined by the judge. At that point, the defense attorney asked Dorsey if he would bring in the videotape player and monitor being attended to by a sheriff's deputy in the corridor.
Stockman objected. Not vigorously, with none of the pseudo-outrage Dorsey had come to view as standard court room procedure; he merely announced his objection, but for a moment further he continued to scan a file folder that lay open on the plaintiff's table. Then Sloekman, a man in his mid-fifties, tall and gray-haired, rose and walked half way to the bench, assuming center stage. Once there, he informed the judge that pretrial discovery procedures had failed to disclose this investigation.
"The discovery period," Stockman had said, turning to the defense attorney. "During which, I had assumed, I was provided with all the material and information the defense would present."
"Mr. Dorsey is a surprise witness, as I said." The defense attorney's words still spilled out too quickly. "More important, his services were retained by my firm. As a result, his work is confidential and protected from discovery as attorney's work product."
"Your employee?" Stockman asked. ''Not that of your client, Fidelity Casualty? You are sure of this?"
"Mr. Dorsey is definitely in my firm's services."
Showing surprising agility, Stockman twirled, more than turned, moved to the plaintiff's tablet and picked up the file folder he had been reading. He took it to the bench, still open, and presented it to the judge. While doing so he informed the judge that the folder contained a photocopy of Fidelity Casualty's claim file on Benito DeMarco, some thing he was sure the defense would be willing to stipulate to. Pointing with his finger, Stockman directed the judge's attention to a handwritten entry dated September 4 of that same year.
"The entry," Stockman said, "is signed by Raymond Corso, who is—and again I am sure the defense will stipulate to this—the local claims manager for Fidelity Casualty. The September fourth records show that Mr. Corso received a call from Mr. Dorsey requesting permission to continue. It does not say what it is he wishes to continue, but as Mr. Dorsey is a private investigator by profession it is only logical that Mr. Dorsey was referring to the investigation of my client is also logical to assume that since he was contacting Mr. Corso he was under Mr. Corso's supervision. As a result. Mr. Dorsey was working for Fidelity Casually and not a law firm. As such, his investigation was discoverable and his present testimony is inadmissible."
Dorsey immediately remembered the call and had felt himself reeling backward in his chair. Onc call, he had thought, onc fucking call! Made to Corso because you were in a hurry and this tenderfoot of an attorney couldn't be reached. One simple clarification for a fee invoice. that's all you needed. How did Stockman find it? What brought his attention to that entry? What difference did it make? Stockman always knew.
The judge ruled swiftly and Dorsey was dismissed. Walking past the defense attorney and out of the room, Dorsey worked out Stockman's scheme. Somehow Stockman had known Dorsey would be testifying about his investigation, and that's why he got rid of the jury. Stockman could object to Dorsey's testimony and the judge could throw it out afterward, but the testimony itself could never be erased from the jurors' minds. Even if the testimony was thrown out before it was given, the jury would have known an investigation had been conducted, and nobody bothers to testify about an investigation that had no results. So Stockman chooses to skip the jury and deal with the judge, who will consider only points of law. A judge who is just a little bit pissed off at the defense for springing a bogus surprise witness on him.
Wiping the memories away as best he could, Dorsey returned to the desk, took the last page from the typewriter carriage, and signed his name. Attaching the invoice, he slipped the report and the videotape into a manila envelope. The letterhead at the upper left corner of the envelope read DORSEY INFORMATION SERVICES, CARROLL DORSEY, MANAGER. Well, he thought, licking the envelope's adhesive strip, at least Junior—the attorney—had someone to blame for how things turned out.
Copyright ) 1994 by Thomas Lipinski
