“Duh!” She said with a smile.
“Duh?”
“Employment history is the first thing a good lawyer would check. I checked on both of them last week.”
Using her rocket scientist computers with even the earthbound Shoftim system, she was able to find out everything about everyone without leaving her desk. Had she hacked into the pentagon before breakfast?
When I brought her lunch from Chipotle, she had easily found Marley’s autopsy report, and the police reports from the law enforcement websites.
“I’m amazed they didn’t charge Pat Chino with murder,” Luna said, between bites. “They never should have hired him in the first place considering his record at other schools. Was the fix in?”
“Judge Most is on the Caldera’s board. I’ll let you draw your own conclusions.”
The guest bedroom seemed even more crowded with all her work product. I offered to give Luna my psychic insights from my dream to put in her complaint, but she was Scully to my Mulder, and decreed that the truth wasn’t “out there.” It was online. Despite my requests, she didn’t want to include any evidence that the staff knowingly let students haze Marley, and she didn’t want to include any evidence of a cover-up.
Her theory of the case, after researching Pat Chino’s service record and employment history, was that Caldera had negligently hired him. He was literally a loose cannon as he had accidentally injured a student with a cannon backfire during a school concert at a military academy back east. This negligently hired hand had shot Marley in the back when he could have used non-lethal force to subdue the poor boy.
In addition, his “counselor,” Ermey was not properly trained and should have taken Marley to treatment at a real hospital, as opposed to a school infirmary where he was the one staffing it that day. He wasn’t even an EMT, ot even a nurse’s aide.
“What about the hazing?” I asked. “The school knew Marley was hazed and they covered it up. They didn’t give him counseling or whatever. Wouldn’t that be punitive damages?”
“There’s no proof of that.”
“Page 237 of Marley’s diary.”
“Did I miss that?” She looked through the diary and there was no page 237 of course.
“Other than your near-death hallucination experience, is there any way we can back up the story?”
“Denise can back it up,” I said. “She was in the auditorium.”
We spent the rest of the afternoon trying to find Denise on all our devices, but this beyond even Luna. Denise must have walked to a part of the Earth where they didn’t have cell phone reception.
“We are on our own,” Luna said. “I don’t even know how to calculate the damages.”
“Have you ever done this before?”
While Luna had never drafted a wrongful death suit before, she had helped her half-sister Jen file a personal injury lawsuit on behalf of Jen’s cousin Susie. Marley was a fourteen-year-old gifted child, with his whole future ahead of him; he was worth more dead than alive.
I wanted to include that Marley had the potential to change the world with his psychic gifts, but Luna would have none of that. She focused on dollars and cents, and future earning potential.
“He could have been a lawyer, a trial lawyer,” I said. “With his umm . . . abilities, his future earnings were unlimited.”
“He told me he wanted to be a game designer or programmer,” she said. “While some make millions, the grunts who do the programming make less than lawyers, and get fired after the project. With his issues, he was probably destined to be one of the grunts.”
“He was your son,” I told her. “He could have changed the world.”
“I don’t want to put my emotions into the brief,” she said.
One of her computers looked like it was rusting from her tears, so it was probably a good idea for her to write from her head rather than her heart.
“Open a window,” she said, holding her nose. “And no more Chipotle.”
• • •
“Why the rush?” I asked the next morning, bringing her a cup of coffee and bagels from Einstein. She was already cursing at the screen. “Isn’t there a two-year statute of limitations? We got time.”
“There’s a tort claim notice issue,” she said. "Caldera is a charter school with a state and Federal charter, but apparently that is in flux, and the school might declare bankruptcy. We need to sue them under the ninety-day tort claim notice requirement, so the deep pockets can't push it back indefinitely."
She talked about some recent case law. I had no idea what she was talking about, as I had never done civil cases on the breakdown docket. She also said that the case would probably be referred to arbitration which could lead to a rapid conclusion.
My ignorance didn’t matter. Luna had done extensive research into the financial situation of the school while I had been asleep. Caldera had a state charter, and still had financial ties to the local military bases. If she said we had ninety days to file, under the Tort Claims Act we would file in ninety days.
A few sleepless December nights of Red Bulls and Clif bars later, I read the almost final draft of the wrongful death complaint of Luna Cruz as guardian of Cruiser Arnold v. Caldera Academy et al. It was comprehensive, but she didn’t put in anything in the brief she couldn’t prove by a preponderance of evidence. It had precision, but no passion.
Well, that was the way the law was supposed to be, no? I went through the complaint one more time and I realized something was missing. I wasn’t mentioned at all.
“Where do I sign?” I asked.
“You don’t,” she said. “You’re a lawyer on probation.”
“Where do I sign as his parent?”
“You’re not his father, technically.”
I almost had a heart attack right there. I wasn’t Marley’s father? Had Luna cheated on me? Who was Marley’s real father? Sam Marlow? Some random dude?
Luna laughed. “You’re his biological father, of course, but as you know, he was adopted by Sir Nathaniel who changed Marley’s name on the form, unbeknownst to us at the time. That’s why his name is technically still Cruiser Arnold. Sir Nathaniel had filed papers to un-adopt him, but we hadn’t gotten around to the name change yet. I don’t want to go through the rigmarole of appointing a guardian, so I am his sole guardian in this case.”
We could deal with the name change later. Didn’t Ogado handle those? There was something else that bothered me. “That means I get nothing if you win?”
“That’s correct. Do you still want to help me?”
“In a heartbeat. This is for Marley, not for money. Actually, this is for you!”
“You’re a good man, Dan Shepard. A far better man than I am.”
To show my good faith and integrity, I offered to drive the paperwork down to Las Cruces and file it myself, and she laughed at me.
“You know everything in civil court is electronic now?”
I hadn’t filed a civil lawsuit in ages, so I watched her wait until 11:59 p.m. of the eighty-ninth day and then hit send on that rocket scientist computer.
I felt like we’d just launched a rocket of our own. I prayed it wouldn’t crash.
• • •
A response came early the next morning, at 8:01, as if Caldera had been expecting our suit. Luna’s prime causes of action were the negligent hiring of Pat Chino and his negligence proximately causing Marley’s death. The Caldera lawyers responded with a 12(b)(6), that Luna had failed to state a claim. Much of the reply brief focused on Marley’s unusual behavior—that his actions were contributory negligence per se. Were they actually saying that Marley deserved to be killed, he was ultimately responsible for his own demise?
At the end of the day, we received notice from the courts that the case had been referred to court-annexed arbitration on December 21, the shortest day of the yea
r. Since the Third Judicial District courthouse in Las Cruces was indeed being renovated, we would have to do the court-annexed arbitration on the Caldera campus, in the belly of the beast so to speak.
“I keep asking if the fix is in?” Luna said. “We’re getting home-towned.”
“Marley went to the campus and lost his life. We have to go and win one for the Cruiser..”
Chapter 34
Devon in the Desert
I started the Lincoln up before dawn on a Tuesday in December, while Luna was getting ready for the big day. I went with a basic black suit and black tie and the rattlesnake boots. I looked like Johnny Cash's lawyer about to go down into the burning ring of fire.
While hardly vain, Luna spent hours adjusting her hair and make-up. Her black outfit seemed even blacker than before, but somehow her turquoise earrings glowed as if they captured light from beyond the usual frequencies. She came out to the car and then hurried back inside the house. She did this a few times until she finally emerged with a small backpack and had me open the trunk to put the backpack inside. While still thin, she had regained much of her strength. Yet, her hair was dark again, and had a Cruella de Ville streak of gray. She seemed to have kicked the pills, but I noticed the odd shake here and there. I feared that if we lost, the depression would take her back.
It was cold in the desert when we drove to Las Cruces. The Lincoln ran smoothly, but the heat just wasn’t working well today, it hadn’t been working right since the accident. I had expected it to warm up when the sun reluctantly came up over Elephant Butte, but the day stayed cold, a dry desert cold that went right through my lungs.
I drove while Luna worked on her arguments for the arbitration. She practiced out loud, as if rehearsing lines for a play. We still hadn’t been able to find Denise, so we were without an affidavit of her corroborating Marley’s version of events. I had never done one of these so I had no idea what to expect.
We didn’t say a word until the Cruces city limits and we headed east on US 70. The construction was finished, so we didn’t have to go all the way down to Exit Zero. After we took the Caldera exit off US 70, we passed the cemetery. The property was now surrounded by barbed wire, and no trespassing and foreclosure signs. I didn’t know a cemetery could be foreclosed. Several of the gravestones had been overturned, just as people had testified in my dream. When the fading adobe wall of the campus was in view, it suddenly grew even colder in the car. We felt like we were walking into an ambush in an old western movie. I stared hard around every adobe corner.
We were guided into the dirt Caldera parking lot by a new guard in a khaki uniform. Pat Chino was nowhere to be seen, but I sensed he was somewhere on campus.
The campus looked worse for wear. The students were away for winter break, so it was as quiet as the foreclosed cemetery.
After we parked in a rutted part of the dirt, another armed guard in khaki escorted us through the brown campus. Was he afraid we were going to investigate? Uncover a secret?
I couldn’t see the spot on the campus pathway where Marley had been shot, but I could feel it. While I had felt warmth when I was on the lake, I felt a pang of coldness walking by the kiosk. I knew where Marley had fallen. I could practically see the chalk outline in the cold dirt.
I looked at Luna. She nodded. She felt it too.
The guard opened the big wooden door for us, and we entered Old Main. The elevator wasn’t working, so we had to walk up the rickety stairs and down a dark hallway to the board room. The room had brick walls and with its conquistador motif (the school mascot) it felt more like a museum. With all the dust and mold, it smelled like one too. The board room also had a picture window that looked over the drab campus. I could see the classroom building and that mangy palm tree that was covered with toilet paper and other sundry items.
I knew the arbitrator who sat in a plush chair. She was a former police officer, Bebe Tran. After clerking for the New Mexico Supreme Court, she now she had a private arbitration service that contracted with courts across the state. Tran was nearing fifty, but looked older. Unlike Justice Chairez, I didn’t mean enough to her for there to be a conflict, apparently. Once a cop, always a cop, and her eyes darted around the room looking for clues for wrongdoing.
I was surprised to see Judge Most, who handed us a card indicating that he had left the bench for the Las Cruces office of a big El Paso law firm. He would act as counsel for Caldera Academy et al. He wore a black suit and tie, as if he was still on the bench. Dean Korn sat next to him. Two mysterious white men in black suits sat against the far wall. They didn’t get up to introduce themselves, and I couldn’t tell if they were bodyguards, hitmen or extras from the next Men in Black film.
We didn’t shake hands with anyone as we sat on opposite sides of a big wooden table. Instead, I fiddled with several Caldera pens that were on the table. I bit a pen due to nervousness, when Luna grabbed it away from me.
Shaharazad, the wandering court reporter, was there to keep a record. She had her hair in a bun, so I couldn’t tell if it was long or short.
“I’m going to keep this informal,” Tran said. “With somewhat relaxed rules of evidence. However, this is binding—till death do us part binding—if both parties sign the arbitration agreement. At any moment, however, you can still walk out and resume litigation.”
I looked at the two hitmen and couldn’t tell if she was kidding. Tran still acted like she didn’t recognize me.
“And you are, sir?” she asked. “Please state your name for the record.”
“Dan Shepard,” Luna said. “He’s here for moral support.”
She didn’t say I was Marley’s father, or that I was a lawyer. Tran didn’t even blink, looked over at Most.
“No objection,” said Most. “As long as he doesn’t interfere.”
“I know my place,” I said. But did I?
“I’ll allow him to stay.” After a nod from Tran, Luna stated her case first. She talked about the negligence in hiring the Caldera employees like Pat Chino who negligently caused Marley’s death while acting within the scope of his official duties. She basically read verbatim from her brief.
She then handed both parties a page with a figure on it, her initial demand. I didn’t look at it. I didn’t want to know what my son was worth.
“Thank you,” Tran said as she scanned the document. “Counsel?”
Most had his laptop computer with him and a cellphone that must have come from Star Trek. Using his phone, he scanned several items and projected them onto a Mondopad on the other side of the room. He enlarged page 239, the page where Marley said he would kill everybody.
“While we are sympathetic to you for your loss, Ms. Cruz,” he said. “Your son was dangerous. He was mentally ill and emotionally disturbed. Had it not been for the brave Mr. Chino, Cruiser Arnold would have turned Caldera into Columbine.”
“So, what is your counteroffer, Judge Most?” Tran asked. “Excuse me, what is your counteroffer, Mr. Most?”
“Once a judge I’m always a judge. Our counteroffer is nothing,” he said. He picked up a purple Beware o’ Caldera pen. “You can keep this pen, so you can have something to sign the check when the arbitrator orders you to pay the cost of the arbitration and the attorney fees for drafting our thirty-page brief.”
The cost of the arbitration? How much was Tran charging an hour? Attorney fees for the thirty-page brief? Even at top dollar Las Cruces or El Paso rates, the fees would be in the thousands.
Luna kept her composure, but wiped sweat from her forehead. Losing her flesh and blood had taken its toll. Was coming down off Crotaladone also messing up her mojo? Her hand was shaking. Most had called her a bad lawyer and a bad mother. I didn’t know which she was taking worse.
I had to do something, so I turned away from the projection of page 239 on the Mondopad and looked out the big picture window to the brown campus beyond. The sun no
w shone directly on that scraggly palm tree. Something was shiny in the light. What the hell had people thrown out the window that had got stuck on the palm fronds? It looked like a prism, because I saw a partial rainbow from the light hitting the glass.
Somewhere over the rainbow was over in that palm tree.
Then a cloud passed in front of the sun, the light changed, and the rainbow vanished. Was the sun trying to tell me something?
“Excuse me for a moment,” I said. I worried that if I left the room, they might not let me back. I would take that risk. I had to know.
“What are you doing?” Tran asked.
“You said that there would be relaxed rules of evidence in an arbitration hearing, well I’m going to get some evidence. Relax.”
Luna put her head in her hands, deathly embarrassed.
I hurried out of the conference room, nearly tripping over the two men in black. I pushed open the doors and headed to the base of the palm tree. I was in my suit and cowboy boots, so I threw off the jacket and pulled off the boots. I took off my socks to better grip on the slippery trunk with my toes.
A cold wind swirled around the caldera. I didn’t care. I knew what I had to do. I would climb that tree, even if it killed me.
Pat Chino appeared out of nowhere, right behind me, his hands on his pistols. “What the hell are you doing?” he asked.
“Climbing a tree,” I said. “You don’t have to shoot me in the back, subdue me with extreme prejudice, like you did my son. This is an assumption of risk here. I’ll probably fall and break my neck, so hold your fire.”
Chino laughed. He looked at this crazy barefoot man in nice pants and a tie about to attempt to climb a wavering tree in a stiff, cold wind. This was too good to pass up. “Go for it, ese.”
This wasn’t a leap of faith. This was a climb of faith and that was pretty much the same thing. I couldn’t help but think that A Separate Peace concerned someone falling out of a tree with ultimately fatal results.
Rattlesnake & Son Page 29