by Norman Crane
waist with as little hesitation as I can muster. Confidence is a sham, but projecting it is a skill and anyone who says there is no magic outside of books has a limited definition of illusion. Mine works, just as it works in the courtroom, over the phone and in examinations for discovery. Rosie snuggles against my shoulder. The snow piles up on our heads and shoulders. The Ontario cold snaps at my skin. I barely see where I’m going. I vaguely remember where I parked. I’m proud of myself for telling Rosie some of what I feel and thrilled she feels some of the same. Although I’ve always associated winter with cleanliness and death, tonight I learn to also associate it with love. Love by me and love for me. Even when it is only implied, love can be real. Much of what we value is inexplicit: God, innate human goodness, tomorrow. We enjoy belief. I enjoy believing Rosie loves me and I love her, as she snuggles tighter against my shoulder and I can feel her body shiver from the cold. It’s my role not to shiver. It’s my role to be her unshivering warmth. It’s irrational, then, that I take off my winter hat—green and woollen, one of the remnants of my unrefined life before law school and entry into the upper tier of society—and pull it onto Rosie’s head, messing up her dark hair but vindicated by the happiness in her eyes. Real happiness, or reflected? I don’t believe in illusion; I know it exists because I stand tall under the scrutiny of those eyes despite still being a teetering tower of Tetris blocks inside. Several times in my life I’ve had the realisation that this time I truly am an adult, shed of all the toys of childhood. Each realisation rendered the last one false. Tonight, finally catching sight of my car, I know something else: I know I’ve found my place.
The next day I call my mom and listen to her voice falter as I tell her I won’t be visiting for Christmas. I lie about the reason but she knows as well as I do that I don’t just mean this Christmas. I mean every Christmas. “Goodbye,” I say before hanging up.
“Goodbye,” she says.
Or I imagine her saying it, because by then I am no longer listening.
Seven Months Later…
Having stated my case I sit down. The defence counsel, sitting beside me, rises to begin to state his. We’re in the pre-trial room on the third floor of the old courthouse. The room, or perhaps the judge, smells like history: musty. There’s an air conditioner in a window to my left that’s been improperly installed and wobbles as it works. I let myself get lost for a few seconds in the sound of humming air coupled with the rhythmic banging of the unit against the window frame. It’s not so different from the jargon-filled legalisms being spouted by the defence counsel. The goal of any pre-trial conference is to aid the process of settlement by forcing both parties to sit with a judge who will be barred from presiding over the eventual trial and hear his opinion about the outcome. It’s in nobody’s interest to go to trial. The justice system is overloaded and both sides will incur mounting legal costs—are already incurring them. My own client, Mrs. Johnson, is waiting on a bench on the main floor of the courthouse, paying Winterson & Partners $350 for every hour I’m here. The conference was supposed to begin at 10:00 a.m. It’s already 10:42 a.m. and I only spoke for five minutes. By the time the conference is over, Mrs. Johnson will owe my firm at least an extra thousand dollars: two hours of preparation and an hour of conference, most of which I will spend listening to the air conditioner and worrying about an unrelated settlement conference I have scheduled for the afternoon. This pre-trial is a waste of time. Potential damages are small and the chances of success are split. The settlement conference is high stakes. It’s real. It’s the most real case I’ve had so far, and I have a decent shot of ending it today. If the other side signs on the dotted line I will earn my firm a small windfall. When I said it’s in nobody’s interest to go to trial, I lied. It’s in the lawyer’s interest. But an early settlement can be lucrative too.
The settlement isn’t the only thing on my mind. Today is also Rosie’s birthday and the gift I ordered for her, a collection of Finnish bath soaps, has been giving me a headache with shipping. I’ve been assured it will arrive today at the address of Winterson & Partners, but I’m still nervous because I don’t have a backup if it doesn’t.
I notice the defence counsel has stopped talking.
He sits down.
“Thank you, counsel,” the judge says in an ancient voice in preparation for clearing his throat. He pans his attention from the defence counsel to me, and back to the defence counsel. Then he looks down at the thick, bound binders lying on the table in front of him: our respective materials: a few pages of facts—about which no one disagrees—followed by a few pages of basic arguments, followed by a few pages of expert opinions, followed by hundreds of pages detailing how qualified those expert opinions are.
A drop of sweat sprouts on the judge’s eyebrow, travels down his nose and lands on a binder.
Splat.
I want him to hurry up. I want to leave here as soon as possible. I even want to plan how to avoid meeting Mrs. Johnson downstairs, but even my weak and atrophying conscience knows that won’t happen.
“It appears to me thus…” the judge begins.
I focus on the air conditioner again. The defence counsel peers down at his tablet, where he’s stored all his notes. I know he’s actually reading his email. I have a tablet in front of me too. The judge has a yellow pad of paper and a pen. He also has a reputation for falling asleep during trials and of possessing a memory so bad he sometimes asks the same question three times in one day. He speaks slowly and with authority, saying nothing that the defence counsel nor I don’t already know. Despite being a fifty-fifty case, everything about it from a legal standpoint is simple. Mrs. Johnson went to the hospital with a pain in her breast. The doctor on call noticed a lump and conducted a biopsy. The wound resulting from the biopsy developed an infection. The complications from the infection caused Mrs. Johnson to lose her nipple by surgical amputation. I emphasise in both my written and oral argument that it was “the right nipple” for no reason other than that it makes a greater emotional impact to lose something that’s right. The defence counsel calls it merely “the nipple”. That, in a nutshell, is the heart of the matter and the practice of law.
The single issue in question is whether the hospital, through its employee the doctor, acted negligently to cause the infection. Because the three of us in the pre-trial room are trained in law, not medicine, and know less about biology than a typical high school student, we cannot resolve this issue. That’s why we’ve brought in experts. “Brought in” is a euphemism. We paid people with acceptable credentials in a particular field of medicine to give opinions supportive of our cases. I have two experts, for whose opinions Mrs. Johnson paid $10,000, and the defence counsel has one. The defence counsel’s expert, however, has a more expansive C.V. It runs hundreds of pages. I don’t know how much the defence counsel paid for his opinion, but hospitals have deeper pockets than Mrs. Johnson.
At 11:12 a.m. the judge offers his take. “After perusing the submitted materials, I find the case of the defence more persuasive than the case of the plaintiff,” he says.
The defence counsel and I thank the judge. He shakes our hands and wishes us luck with this case and with our budding careers. Then the defence counsel and I shake hands, turn off our tablets and pack them into our briefcases. His is nicer than mine. He’s from Toronto. He offers to treat me to coffee, but I have my settlement conference to prepare for and therefore have too little time. I politely decline. His plane doesn’t leave until the morning so I suggest ways for him to spend the evening, but he appears to know the area already. There’s a glint of victory in his farewell smirk.
Mrs. Johnson spots me in the main floor hallway.
She asks how the pre-trial went. Like most of my clients, her body language betrays how out of place she feels in a courthouse. Her questions are inflected with uncertainty.
I tell her the judge leaned toward the hospital but that this judge won’t be the one hearing a potential trial.
“Can we still go to trial
?” she asks.
“We can,” I say. “But the outcome of the pre-trial means the hospital is less likely to settle, and we’ll also need to get at least one more expert witness if we want to win.”
Mrs. Johnson already knows that doing anything means spending money. She remains silent and still. “Did you tell them that I lost my nipple?”
I nod. I explain that the judge wasn’t unsympathetic to her troubles, just more inclined toward the medical opinion of the hospital’s expert witness than ours, and that the effects of Mrs. Johnson’s amputated nipple only come into play at the damages stage. The greater Mrs. Johnson’s losses, the more money she’ll get. That’s an argument I’ve not yet started to construct.
“What’s the chances we win at trial?”
I say they’re about thirty percent. I’ve no way to know that but Winterson himself taught me to always communicate vague notions in concrete terms to give clients the impression of authoritative knowledge. I say nothing about how much a trial costs, how far into the future it would be or how much stress and disruption it would cause.
“And if we win, the hospital would still pay me one hundred thousand dollars?”
“That’s just an