“Yeah, okay,” she replied.
I described how the case would begin with opening statements, the plaintiff’s witnesses, and then cross-examination. I gave her a brief overview of the introduction of documents and records into evidence. Then, after the plaintiff rested, I could call my own witnesses, including possibly Marisa.
She was mildly taken aback. “You mean I have to talk in court?”
“Yeah, maybe. I’ll decide after we see what the plaintiff presents.”
“Look, I don’t want to testify. Speaking in public is, well … not my thing.”
“Nobody likes it,” I said, “but you might have to. We’ll work on that this morning. It’s important, because I need to know what you’ll say. When lawyers ask questions, we prefer to know the answers ahead of time. Witnesses authenticate evidence the same way, too. The questions have to be general, not leading.”
“What’s that mean?”
“The questions can’t suggest the answers. Each witness tells the story in his or her own words, guided along by the attorneys. When I’m finished, the lawyers for Benton Dynamics will cross-examine you.”
She seemed to be following me, but her tight jaw and darting eyes gave away her hesitation and fear, especially at the thought of being cross-examined.
I explained that after the final witness testified, the attorneys would make closing arguments. The lawyers for Benton Dynamics would have to prove four elements to get a preliminary injunction.
“I still don’t fully understand what a preliminary injunction is,” she said.
“It’s a court order that prevents you from using or disclosing any confidential information from Benton Dynamics until the full trial. That’s what the hearing Wednesday is about. A preliminary injunction is a temporary measure maintaining the status quo until trial. With me?”
“To be honest, somewhat, but no, not really.”
“Okay. Right now you can’t divulge anything from Benton Dynamics without violating the temporary restraining order, the paper that the sheriff’s department served on you and Richard Kostas. Wednesday is your opportunity to challenge that TRO. The judge will decide if it should be extended until the full trial.”
“So what’s involved?” she asked.
“I’ll break it down for you. We talked a little about this last week. To get a preliminary injunction, Benton Dynamics has to prove four things. First, a likelihood of winning against you at trial. Second, irreparable harm. Third, the court applies a balancing test. Will you be more harmed if the injunction is granted, or will Benton Dynamics be more harmed if there’s no injunction? One final thing, a public interest must be served, like allowing a company to keep its confidential files private.”
Marisa stared at me suspiciously, but said nothing.
I removed the initial pleadings from her client file and placed them next to the yellow pad. “All this is a lot to absorb, and I know I’m going fast. The hearing Wednesday will focus on these four elements.”
“And Benton Dynamics goes first?”
“Yeah,” I replied. “The plaintiff always does.”
“Sounds like this whole case is stacked in favor of Benton Dynamics, doesn’t it?”
“Well, maybe at first glance. I can’t predict what will happen at trial, but their lawyers should nail three of these elements cold. Irreparable harm, public interest, and the balancing test.”
“So they walk into court with three out of four, is that what you’re saying?”
“Well,” I shrugged, “not necessarily, but yeah, most likely. We still don’t know much about the missing files. Benton Dynamics still has to prove all of this. To give it to you straight, the evidence should easily demonstrate these three elements. They still have to prove the fourth or no injunction.”
“What’s that?”
“Substantial likelihood of success on the merits.”
Marisa looked perplexed.
I regretting slipping into legalese and said, “Benton Dynamics has to prove you stole the files.”
“But I didn’t. I don’t have them.” Her voice strained with exasperation.
“I know, Marisa, but that’s where the fight will be.”
“So what do we do?” she asked.
“For a start, I need more information from you. What kind of work did you do for Benton Dynamics?”
“Like I already explained. I have a security clearance and a confidentiality agreement. I just can’t blab away.”
“I get it,” I said, setting the point of my pen onto the legal pad and looking straight into her worried eyes. “I respect that, even under these circumstances. Benton Dynamics plans to pin a theft on you. That means a civil trial and then criminal charges after this hearing. You can’t expect me to walk into a courtroom completely in the dark … not if you want to win. Tell me what you can.”
Marisa rubbed her hands together, massaging her fingers. She looked hard at me, as if she were debating how far she could trust me.
I reminded her, “Everything you say here is covered by attorney-client privilege. I’ll honor that.”
Slowly leaning her head to the side in an unconscious gesture of surrender, Marisa replied, “Okay then. I was in research and development.”
“What kind?”
“Nuclear submarines.”
“Benton builds them?”
“No,” she replied, “but we supply components as a subcontractor. All kinds of different things.”
“Weapons systems? At least that’s the rumor about Benton.”
“Yeah, of course. Hardly a secret, really. Torpedoes. Missiles. Not exclusively. We’ve got competitors.”
“What was your specific area?”
She hesitated, absent-mindedly running her index finger along the polished surface of the wooden table. “Nuclear missiles.”
“How long did you do that?”
“Pretty much since I was there. Thirteen years, give or take. Some other stuff as well. I started out with torpedo design and refit, but got promoted.”
“Torpedoes and missiles have been around a long time. How about newer kinds of weapons … like underwater drones?”
She said, “I’ve heard about them, but no. Not my division.”
I pulled the article about the Remora Shadow from her client file and slid it to her across the conference table. “Do me a favor and take a look at this, Marisa.”
She slowly picked up the printout.
