On February 3, 2000, I woke up in my favorite hotel, the Hilton Torrey Pines, San Diego. Every time I go there, it is blessed with the same fresh smell of sea air, the sound of rolling waves gently sighing somewhere out beyond the balcony in the warm light. The rooms are homey and modern, in cool, well-matched colors. The air is fresh with the scent of huge eucalyptus trees. I was glad Gary had gotten to be a millionaire. The last time I stayed at the Torrey Pines was ten years before, when I tried my first case, so it had nostalgic associations. It was a good place to start a hard day. A Sikh drove me to Beth Ballerini’s court reporting office on Kettner Boulevard, where the tough part began.
There was Dave Dolkas, with a goatee and a laptop, and Bob Dorband looking fresh-faced and unflappable in his shirt sleeves, settled in behind the conference table, ready to rock. Bob Dorband is a charming man, not very big, with a full head of white hair that appears not to have gone grey so much as to have been chosen in precisely the same color as Mozart’s wig in the movie Amadeus. And while Dorband has never displayed Tom Hulz’s trademark manic Mozart laugh, that high-pitched yip that cracked up whole audiences the world over, Bob Dorband’s speech pattern does resemble the warm, convincing tone Mozart would use when he stretched the truth. Insidious, bedeviling, a tone to set your teeth on edge. Bob has a way of presenting his position so well that you feel foolish opposing him. Your own position starts slipping away like teflon under your fingers. He gives you argumentative vertigo.
And there, to my right as I walked in the door, at the head of the eight foot conference room table, sat a man with an incredibly ugly tie. The man with the very ugly tie also wore a very satisfied look. The look was one of those embryonic grins that seems about to gestate rapidly and cover the entire face with a giant smile of satisfaction. It was one of those looks that seemed to say, “C’mon, you’re dying to know what I’m smiling about, so ask me.” The smile was on the face of a good-sized Jewish man who overall looked humpty-dumptyish, although not grotesque, but more Bob Hoskinsy. And with a Bob Hoskinsy close-cropped haircut. Hoskins could probably do this role perfectly. Just cut the English accent, flatten the tone so it drops back in the throat, and blur it over with an American accent somewhere between Jersey and Newport Beach. It is a voice that lays out just the facts, ma’am. It is a voice that says he is not here to screw around, that he is too big for that, and that we should just get this over with because it’s a joke. The tie was red and black, pure strawberry red, India-ink black, with pleats in it. That tie was like the last thing a bug sees before it gets squashed flat by a flyswatter. I was not among friends.
Except Rich Diestel. And of course there’s Beth Ballerini, the proof of God’s mercy to the numerous San Diego attorneys who patronize her, no doubt because of her absolutely unfailing good cheer, casual blonde ambition, and total accuracy in preparing deposition transcripts. And meet the videographer, Jerry, a bit of a silver-haired guy who’s seen it all, most recently from behind the lens of a large legal videotape unit with dials and a backup videotape, provided courtesy of State Farm Insurance. Gee, I guess we’re all here, so we might as well start.
Right after Beth swears Cohen in, Dorband starts with a sort of soft left jab. “Charles, before we begin.”
I respond, “Sure.”
Dorband: “I’d like to bring up something that came to my attention yesterday, which was the filing of a press release apparently that came from your office. And are you acknowledging that there was a press release?”
Backing up, elbows forward, gloves high, I respond, “I’m not here to answer questions, Bob -- What’s your concern?”
Just getting wound up, Dorband starts with the body blows: “The timing of the press release was highly suspect. It happened the day before Mr. Cohen’s deposition.... The fact that this press release was issued I think is highly unethical and improper and an attempt to disturb my client’s ability to testify at the deposition today.”
Ouch! Unethical. I hate that word. It always means that things have become intensely personal. For unethical conduct the Bar can yank your ticket, pull your card, take the “esquire” right off the end of your name. And there was no doubt that playing with the news media put you right into an area where ethics could be an issue. I’d come out of prior media encounters with no more mishap than being misquoted, misinterpreted and subtly maligned. I hadn’t really thought it would be any different in this case, which was of course willfully stupid, because Cohen had already cross-claimed against Gary for defamation with respect to the Wired article. What was I thinking? Without realizing it, I was taking risks I’d never planned on, like a cabbie who gets caught up in a chase scene in some crazy movie, and ends up driving like Dale Earnhardt on his last lap, all because someone said, “Follow that car.”
But I’m not thinking about ethics for long. At that point, it’s a little bit after 9:00 a.m., I’m jack-full of Starbucks Americano, the judge told Cohen to be here, so he wouldn’t dare try and walk, and I’ve got to make this work.
Dorband lays out his proposal: “We will proceed with the deposition. If there are questions of a personal nature that my client feels uncomfortable in answering, we will reserve our rights to answer those questions at a later date after the judge has been able to rule on whether we can trust that the information that is going to be given in this deposition and in this proceeding will be kept confidential.”
Although Dorband didn’t have the right to demand confidentiality for this presumptively public proceeding, my back was against the wall. I had to get Cohen’s testimony, or all of the expense of flying to San Diego, and most of the advantage of having Judge Ware order the deposition to take place at all, would be lost. So I cut the deal. It would all go forward under wraps.
I felt like I was in a boxing ring. I am no boxer, being more of a tuck and roll Aikido type myself, but my dad was a professional boxer in his late teens and early twenties until a bout with TB forced him to hang up his gloves. His aggressive drive to compete in multiple weight-classes weakened his health. He told me he could lose or gain up to 20 pounds in a few weeks time. In the end, he said TB was a blessing. Good thing he caught it, or he’d have ended up like those other old Mexican boxers we’d run into on Sunday morning, shopping for tortillas and menudo in Phoenix. He’d point out a fellow with a loping stride and a slightly foolish grin and say, “Ring a bell next to that one and he’ll put up his dukes, asking ‘where’s the fight?’” He loved the sport and skill of boxing, but regretted its human toll. From this perspective, he taught me his fundamental rules -- keep your guard up, use lots of short jabs and very few big swings, and train for endurance so when you need to, you can outrun the other guy and the clock. Above all, avoid hits to the head. My dad sat in the back row during my first trial down in San Diego. On February 3, 2000, he was in a nursing home, silent among his 90 years of memories. I would fight this one for him.
The bell rang. I stepped forward from my corner, my father’s cautious voice in my ear. Cohen sat smirking, his bulk a silent challenge. He wasn’t here to box. He was a sumo wrestler with tentacles. He wanted to wrap one of those long sucker tentacles around me, lock me in stupid wordplay, make Beth’s fingers type endless bullshit, and squeeze the life out of my expiring body. Out of breath, out of words, my lifeless corpse would float to the surface. I could see that fate looming before me, to be left like flotsam in the wake of a remorseless con man who was absolutely detached from any personal issues I could affect. Cohen was above the fray. Dorband was just security. I was a nuisance, being evicted from a place I didn’t belong. Contempt rolled off Cohen like fog off the slopes of a mountain. Like a mountain, he shrugged at the insignificance of it all.
Cohen was what Francis Wellman calls “the perjured witness” in his book The Art of Cross-Examination. Wellman advises fast questioning to trip up the liar, because he “can’t make up lies as fast as you can make up questions.” To ask questions fast, you have to know what you’re going to ask. You need a list of questions. But if you put together a questionnaire, you may not listen to the answers you’re actually getting. If a smart witness understands that you’re working off a questionnaire, and you fail to explore the details of areas before moving on, they realize they can keep things from you, and you won’t notice it. They start to nod along with you, allowing you to believe what they want you to believe, knowing that once they get through an area, you are not likely to return to it. So a deposition is not conducted like an oral questionnaire. You must stay loose, and adapt your questions to the rhythm of the witness. One way is to hook your next question to their last answer. You do it like this:
CARREON: “Does he work with a firm?”
CARREON: “Which firm is that?”
A. “Hochman & Cohen.”
At first, the witness has to go along with it to get your rhythm started. But the rhythm feels safe and harmless. Since the witness is on the other side of a push-me-pull-you setup, they feel somewhat in control. They relax, you can begin to take advantage of it, pulling harder here, pushing harder there, without engendering too much resistance. Pretty soon you are sawing through the facts, and with luck your adversary is going along with it, lulled by the fact that his client appears to be okay with it. That’s how it’s supposed to work.
With Cohen, of course, nothing works right. Take this typical piece of questioning about Ocean Fund International:
CARREON: “What ownership interest did you have in Ocean Fund International?”
CARREON: “How much?”
COHEN: “I don’t recall.”
CARREON: “Were you the majority shareholder at any time?”
CARREON: “Who was the majority shareholder?”
COHEN: “It’s ambiguous.”
CARREON: “It’s ambiguous? What part of majority don’t you understand?”
COHEN: “What part of time do you not understand?”
CARREON: “When Ocean Fund was created... the approximate date?”
COHEN: “I can’t even do that. I think -- I believe it was in the year 1996 or -- 7, but I’m not quite sure.”
CARREON: “Did you have to sign any papers in order to participate in the creation of Ocean Fund International?”
COHEN: “I probably did.”
CARREON: “And do you remember what the nature of those papers was?”
COHEN: “No, I do not.”
Cohen used my speedy rhythm to short-change me on information. As I learned things, I had to backtrack and pick them up and restart my questioning. Ordinary witnesses usually try and make the truth plain for you. Their biggest problem is mixing what they know with what they believe. Usually they know a lot less than they think they do, but they are so confident of the truth of it that they’ll just throw their whole story in front of you. You can pick out the pieces of hearsay, opinion and prejudice, leaving the diminished resultant facts for your use. An honest witness will fill you in on the who, where, what, why and when with a rounded, all-encompassing response, but I got none of that from Cohen. Check out his smooth denial here, where he claims to own no portion of several companies which are all owned by his offshore holding company YNATA:
CARREON: “Tell us what you know about what YNATA Corporation owns in terms of interests, financial interests in other corporations, please.”
COHEN: “Other than the corporations that I have listed which were Omnitech International, First City Financial, Sandman Internacional, Oceantel, those are the companies that I am aware of.”
CARREON: “Do you have any ownership in any of those companies?”
If an average witness had once held stock in these companies and later sold it, he would say so straight out. But Steve made me dig it out of him:
CARREON: “Have you at any time held an ownership in any of those companies?”
CARREON: “Which of those companies did you have an ownership interest in at some time.”
COHEN: “All of them.”
So now I just have to find out when he sold the stock, and then we’ll work our way back to when he bought it. Witness my attempt:
CARREON: “When did you cease to own Ocean Fund stock?”
Great, I found out when he sold it. Now to just find out to who, and for how much.
CARREON: “Who did you sell it to?”
COHEN: “I sold it back to the corporation.”
CARREON: “For how much?”
COHEN: “I’m not sure of the exact amount.”
CARREON: “Can you please give me an estimate?”
When faced with an inability to estimate, a lawyer tries to help by holding up a “yardstick”:
CARREON: “Can you please come to the nearest $10,000?”
CARREON: “Nearest $100,000?”
Dorband interjects: “You don’t have to guess.”
Cohen takes the hint: “I’m not going to guess.”
CARREON: “I’m not asking you to guess. You can’t come to the nearest $10,000 and you can’t come to the nearest $100,000; is that correct?”
CARREON: “That would require you to guess. Can you come to the nearest $500,000?”
I’m thrilled. I’ve got the “when,” the “who,” and I’m about to get the “how much” to the nearest 1/2 million, (it’s gonna be a big number), so the shell game is almost over. I point at the shell with satisfaction:
CARREON: “And can you please give me that number, your best estimate?”
CARREON: “And why is that, sir?”
COHEN: “Because there’s a confidentiality agreement between myself and the other parties.”
Cohen grins as he lifts the shell, revealing nothing, and scoops up the winnings. It was like trying to hit an enemy in a nightmare. My punches felt weak and horribly ineffectual. If we’d been in trial, the judge would berate Cohen for his uncooperativeness, and the jury would dock him points for arrogance. But it was only a deposition, and lawyers are expected to extract facts in the face of resistance. When they fail in the effort, it can be pathetic. I remember hearing Oliver North humiliate special prosecutor Arthur Liman during the Iran-Contra hearings. North disarmed Liman simply by admitting he had lied under oath previously, while insisting that he was telling the truth under oath at the time. Usually, contentions like North’s fall flat, indicting the witness as a perjurer and undermining all credibility. But North was a gifted liar, and his justification -- that he’d lied to fulfill his patriotic duty -- will go down in history as one of the most successful public shellackings a lawyer has ever received at the hands of a felon. Voice choking and eyes watering, North convinced a nation of gullible viewers that lying was virtue and admitting it now was proof of his bravery. The lie slipped from Liman’s grasp, and further efforts to pin North down were, as they say, like trying to nail jello to a wall. Due to this performance, North was spotted as a promising Republican talent, and made his run for Congress.
Cohen’s deft economy in dispensing the truth, and his ability to entomb each needle of fact within a bale of misleading hay, should qualify him for some kind of position in government. He had a perverse grasp of corporate law, and an amateurish willingness to exploit the complexities created by multiple, overlapping corporations. In Cohen’s universe of puppet companies, nothing was what it seemed, every sleeve had a trick up it, and there was always another wrinkle to be explored.
Ultimately, Cohen’s testimony about his shell corporations became unbelievably tangled and incomprehensible, simply because his deposition was taken so many times that his lies became absurdly complex. In the end, Francis Wellman was proven right, except it wasn’t so much that Cohen couldn’t make up answers as fast as we could make up questions, but rather that his ability to make up credible lies diminished as he told more of them. Even as the contradictions became more numerous and blatant during depositions that continued in July, August, September and November, Cohen would never admit to having lied. He would just shake his head patiently once again to explain precisely how we had misunderstood him. He moved, as we say in the vernacular, from dazzling us with brilliance to baffling us with bullshit.
Near the end of the case, Cohen’s construct of lies became an absurd machine, a demented battle android half shot away by enemy fire, able to do little more than limp forward with hard-wired sincerity, entreating, “You do not understand... repeat... let me explain...” But on February 3, 2000, at around 10:30 in the morning, that battle droid was in fine form, and my punches were landing on solid armor.