“And since February eighteenth, despite numerous demands made upon Respondent by you, the money has not been paid back as ordered by the court. Is that correct?”
“Until this morning’s mail,” said Franks.
“That is all, counselor. You may step down.”
But Tranquillini was on his feet as Franks started to rise. “I have a few questions on voir dire.”
Franks slowly sank back into the witness chair. Tranquillini leaned an elbow on the witness stand and from less than two feet away stared at the other attorney. Franks began to fidget and look away and clear his throat and. finally, took a handkerchief out of his pocket and mopped his face. Tranquillini stepped back abruptly when, from the corner of his eye, he saw Delaney starting to his feet to make an objection.
“You said on direct testimony, Mr. Franks, that you instructed Mr. Pivarski to get Miss Onoda’s signature on the letter. Did he also get a receipt?”
Franks cleared his throat. “I have no knowledge of such.”
Tranquillini laid a copy of Kathy Onoda’s receipt to Pivarski on the Hearing Officer’s desk. “Respondent wishes at this time to introduce his Exhibit A, a copy of the DKA receipt to Mr. Pivarski on the day in question.”
“Objection!” burst out Delaney. “This—”
“The Hearing Officer will note that this receipt plainly states ‘Two hundred dollars received on account from K. Pivarski, November fifth, 5:48 P.M.’ Nothing about money held in trust or—”
“This is purely hearsay evidence!” cried Delaney with an apoplectic face. “Mr. Franks has no way of knowing—”
“Pivarski does,” said Tranquillini.
“The State has no intention of producing Mr. Pivarski.”
Tranquillini paused. For the first time he realized that Delaney’s reluctance to produce Kasimir Pivarski went beyond a desire to avoid putting a witness on the stand who would be thoroughly mauled by opposing counsel. He needed time to think about that reluctance. This was not the time to push it. He shrugged eloquently.
“Respondent amends the submission to Respondent Information Exhibit A, with the request that this exhibit be put in evidence if direct testimony so indicates at a later time.”
“Noted.”
In turning back toward Franks, as if it were an afterthought, Tranquillini picked up two Xerox copies of Simson’s affidavit, and dropped one on Delaney’s table and slid the other across the bench to the Hearing Officer. “Respondent also wishes at this time to present Respondent’s Exhibit B, a holographic, signed, and witnessed deposition by a witness, Jeffrey L. Simson, as to events on the day in question.”
“How did you find...” Then Delaney, scanning the affidavit, yelled, “Objection, Your Honor! This is not only a purely hearsay document, it is presented out of order—”
“We are not a formal court here,” said Tranquillini blandly. His spur of the moment idea was working, by God. “As you pointed out this morning, this is a disciplinary action, not a trial.”
The Hearing Officer looked up from the document. “That’s all very well, counselor, but this is being presented out of order. Why wasn’t it among the Respondent’s documents presented to and filed with the Bureau of Private Investigators and Adjusters last week, preliminary to this hearing?”
“If you will note the date, Your Honor, this document was not obtained until this past weekend.”
Tranquillini glanced over at Delaney, expecting an objection, but there was none. Instead, he looked almost pleased. Which wasn’t right or reassuring. Something more to worry about after the session was finished.
“This is obviously a hearsay document, not connected up at this time,” said the Hearing Officer. “However, since I already have admitted two other hearsay documents and a good deal of hearsay evidence, I will accept this as Respondent Information Exhibit B. Please proceed.”
Tranquillini had, for the first time, been examining his copy of the letter Pivarski was supposed to have given to Kathy Onoda.
This is to acknowledge receipt of Two Hundred and no/100 Dollars to be held by you on behalf of the account of Kasimir M. Pivarski. In return for this payment you have promised not to attach the wages of Mr. Pivarski at this time. Your signature on this letter will constitute a receipt for the Two Hundred and no/100 Dollars.
He read it again, stared at it, unable to believe what was there. Or rather, what wasn’t there. He turned to the waiting Franks.
“Counselor, would you tell this hearing whether there is a space at the bottom of this letter where Miss Onoda was to sign on behalf of Daniel Kearny Associates?”
“Well, yes, but...”
“I see no such signature there, yet this purports to be a true copy of the original letter, does it not?”
Delaney was on his feet, his face scornful. “Objection, Your Honor. Obviously, this is merely a Xerox copy of Mr. Franks’s office carbon of the letter. If counsel insists on Mr. Franks producing the original with Miss Onoda’s signature, it will delay proceedings considerably and...”
Tranquillini went after Franks before the Hearing Officer could rule on the objection. “The original letter with Miss Onoda’s signature, offered as an exhibit, would have been direct rather than hearsay evidence, would it not, Mr. Franks?”
“Objection,” said Delaney again, quickly, realizing his witness was in trouble. “Calling for a conclusion from the witness.”
“Witness has been qualified as an attorney-at-law.”
“Even so,” said the Hearing Officer, “I must sustain.”
“As you wish, Your Honor.” To Franks, Tranquillini said, “Why didn’t you give the original letter with Miss Onoda’s signature on it to the State for submission into evidence?”
Delaney started up to object, then, frowning, sank back again. Franks was silent for so long the Hearing Officer said, “The witness may answer.”
“Uh... I don’t have the original.”
“Then Mr. Pivarski still has it.”
“I... don’t know.”
Now? Tranquillini asked himself; then rejected it. No. Not yet. Instead, he veered sharply in his attack. “You have testified that opposing counsel was not present at the hearing of your demurrer on November twelfth of last year — a hearing at which judgment was rendered in favor of your client.”
“That is correct.”
“Prior to that hearing, you of course served Respondent with the necessary notice?”
“My office served Respondent’s attorney. I didn’t personally wait around in a doorway to—”
“Quite,” said Tranquillini drily. He turned. “Your Honor, at this time I wish to be sworn so I can testify under oath that no such notice was ever received by my office.”
Franks said, very quickly, “We didn’t serve you, counselor. We served a Mr. James.”
“I have been attorney-of-record for Respondent Corporation for the past twenty-two months. Mr. James has not represented Kearny Associates for nearly five years.”
There was a moment of uneasy silence. No one doubted that Franks had known he was serving an attorney who would not pass on the service to Kearny or to Tranquillini, and that thus Franks would win his case by default. As he had. And now was the time to push again. Tranquillini turned to the Hearing Officer. “I once again, at this time, request on behalf of the Respondent that Mr. Pivarski be brought into this court, under subpoena if necessary, to testify as to the events of that day in November.”