“Well, you’re the lawyer. Their side of the debate is the subject of numerous articles published by experts in the field. Two of those experts are designated by the defendant—Boyd Oil, in this case. I can tell you that this is about the same point where the earlier group of cases was settled. They filed a motion to strike my testimony. The motion was denied. I don’t think the plaintiffs in that case ever filed a motion to strike the defendant’s experts. Of course, there has been one major change since that case.”
“Don’t tell me that the scientific community has adopted the position espoused by the defendant’s experts,” I said.
“Well, they would say so, but I’m talking about a much more fundamental change. The judge in that case has been replaced. Do you know anything about the new judge?” He asked, sincerely concerned about any information that I might have to offer. “Rumor is that he might be a Boyd man.”
“I didn’t know there was a new judge,” I said. We spent another hour or so going through the stack of documents that Mr. Walton had brought with him. He took his time explaining the importance of each item to me, and it was obvious that the man knew what he was talking about. Jurors would like him if they ever got a chance to see him.
I took some of the items from Mr. Walton’s folder to the front desk to have them copied, and I charged the copies to my room. I asked the young woman at the front desk if she knew who the new judge in town was, but she told me she didn’t know him because he had grown up in Boyd County, Kentucky, and hadn’t been in Paintsville all that long. She made it sound like Boyd County and Johnson County, where Paintsville was located, were separated by a very great distance. I told the girl that I would need to check out of the hotel, and I went back to my room.
Mr. Walton agreed to drive me back to Lexington. I tried to call Michelle at work, but she wasn’t there and her secretary didn’t know when to expect her back. Then I called Eileen to see if she could find a hotel near the University of Kentucky College of Law. I could tell that the next day or so would be spent alone in the law school library. I couldn’t tell if any amount of time spent in the law library would be of benefit, but I did also meet an interesting old doctor who was meeting with our environmental lawyer in Lexington. I had dropped by the law office to say hello and the local lawyer introduced me to Dr. Larry Mock, a pathologist who was working with him on a cancer case. He was a charming man with pure white hair and clear blue eyes. I put his card in the breast pocket of my navy blazer.
I didn’t have any luck reaching Michelle on the telephone at home that evening. Of course it was a relief to me not to reach Michelle when I called the house because I knew that talking to her would bring the guilt I felt for the last evening in Paintsville closer to the surface. But I also knew that the longer I avoided talking to her, the harder it would be to package the event in a tidy little compartment to be stored somewhere in the recesses of my memory. The deception would become more and more evident on my face and in my voice. I thought that if I could talk to Michelle, even if I didn’t tell her about Beth, it would make it easier to talk to her when I eventually saw her and would prevent my breaking down and confessing information that would only hurt her. I didn’t intend to confess anything to Michelle because that would only serve to make me feel better. She hadn’t done anything wrong. I had. If I had to live with the guilt of that, I’d just have to learn to cope. It would be my punishment for my crime, and it didn’t need to involve punishing Michelle for something she didn’t do. My plan was to start now to try to make things as normal as possible . . . to put things back as they were as best I could.
After a few tries, I reached Michelle on her cell phone. I intended to have as normal a conversation as I could muster. Instead, it felt to me like Michelle was upset the moment she picked up the phone, and my telling her that I was going to be out of town another day didn’t seem to help things. It felt like there was something that she was trying to say to me but she was too upset to speak about it. She couldn’t possibly know about Beth, could she? How would she have found out?
I also didn’t have any luck the next day finding any case law that would help us in defending Mr. Walton’s testimony.
On Saturday, I flew alone back to Houston through Cincinnati. On the plane, I worked on a draft of the response to Boyd’s motion to strike Mr. Walton’s testimony, combined with a motion to strike Boyd’s experts. I thought the response and motion were coming together pretty well. My goal was to get a draft together for Eileen to type on Monday. I was distracted by the fact that Beth had not called me since she had left Paintsville in such a rush, and by the fact that Michelle had sounded distant and detached when I finally talked to her. It seemed like she needed to get off the phone. Michelle hadn’t even brought up the fact that it had been days since we had actually spoken to each other. It would be nice to have some human contact other than ordering food and answering wake-up calls. Eventually, I put the papers in my briefcase and tried to stretch out and take a nap before I got to Houston. I was nervous and yawning. As I fell asleep, I thought about a couple of alternatives for the next two lines of my poem, but I didn’t bother to write them down. I woke up as we began our descent into Houston’s Bush Intercontinental Airport.
When I got to the house later that afternoon, Michelle met me at the back door as I came in from the garage. It seemed like it had been a long time since I had seen her. She was dressed up for a Saturday. Her usual Saturday attire was khaki shorts with a brick red, Houston Astros “Craig Biggio” jersey. Years before he had autographed his name across the back. Michelle had worn the jersey so often, though, that the signature had become nearly invisible. Every time we drove by Biggio’s house, which was around the corner from us, Michelle threatened to stop and knock on the door to see if he would re-sign the shirt. From what I had heard about the guy, he probably would have. Rumor has it that he passes out signed baseballs in lieu of candy every Halloween. I realized we would have to get the updated autograph another day, though, because Michelle was dressed in a black cocktail dress and wearing the diamond earrings that her mother had given her when Michelle and I got married.
“What’s the occasion?” I asked.
“I just wanted to look nice when you got home,” she said. She was smiling broadly, and the excited way with which she greeted me made me think that she had something she wanted to tell me. She asked about the case, but I told her very little except to say that it would be difficult to get past the defendant’s motion to strike our expert.
Again, I didn’t want to tell her so much about the facts that she felt compelled to research the motion. It was not that I didn’t trust Michelle’s legal research. She was better at research than I was. Her papers in law school were more thorough than mine, and the topic she covered was always more fully explored than any I addressed. The problem with Michelle’s research, from a trial lawyer’s standpoint, was that she wouldn’t consider the memorandum complete until she had arrived at an absolute answer. If the general question, in broad terms, was “Does the law permit this?” Michelle would comb the digests and cases until she came up with a definitive “yes” or “no” answer.
That was fine if you were working for a firm that billed your time by the hour and gave legal advice to its clients based on what the research revealed. To the contrary, if Mr. Sullivan asked me if the law permitted him to do something, the answer was always “yes,” and the research would be directed at giving him a road map around whatever legal impediments stood in his way.
We were not paid by the hour; we were paid by the result in a contingency fee practice. We were not looking for the truth; we were looking for persuasion. Of course, the truth is usually the most persuasive arrow in your quiver, but the trick is being able to express it in a manner that resonates with your audience. Sometimes that required massaging the rules of court in order to make the “truth” apparent for the jury.
For example, the general rule is that you are not permitted to ask leading questions of yo
ur own witness. Your questions to your witness shouldn’t suggest the answers. But Sullivan ignored the rule and always instructed his associates “to ask every question dripping with prejudice.” In this context, “prejudice” means “prejudged” or “predetermined”—that is to say that the Sullivan question answers itself in the minds of the jurors without waiting to hear how the witness responds. For example, “Have you stopped cheating on your wife yet?” would be a prejudicial question. When he was at his best, Sullivan would ask a series of questions, each more prejudicial than the last, without waiting for the witness to respond. If he drew an objection to the leading questions, Sullivan would just ask a couple of open-ended ones before slipping back into the leading series. Usually the defense lawyer would stop objecting, probably because he wanted the questioning to be over as soon as possible as much as for any other reason.
I told Michelle about what a beautiful, old town Lexington was and about the wooden-fenced horse farms that were all around the city. She listened with interest, but I could tell that she was waiting for me to finish so that she could tell me what she had been up to while I had been gone. She told me that work had been uneventful, but that I needed to get cleaned up because we were going to dinner at her parents’ house.
Michelle couldn’t keep a secret for very long, and she was incapable of lying. She had an abiding respect for the truth and could categorize most conflicts as black or white with very little room for shades of grey. She envisioned the law as a steadfast set of rules, and when a situation might arise that had not previously been addressed by the law, then logic and reason would expand the existing principles of the law to cover the new situation. Interestingly, I had met other children of lawyers who seem to have similar notions about the resolute sanctity of the law. In law school I imagined that this mindset had something to do with the fact that the offspring looked up to their parents and their parents’ law practice.
As I got older, however, and got out into the world of private practice, I came to see that such a belief system was probably more the result of never having had to want for anything rather than respect for a parent’s profession. Michelle loved her father and respected his accomplishments as a trial lawyer, but the truth is that she knew very little about how he spent his time each day. She thought he won cases because the law said he should win. I, and anybody else on the St. Jude Squad, could tell you that often Sullivan won cases despite what the law required. Because Michelle had never been deprived of any material item, she had never, as far as I knew, been in a situation where she might have been tempted to bend the rules to obtain what she wanted.
I knew that Michelle wanted to tell me something, but that she thought she had to wait to tell me. I knew it wouldn’t take much prodding on my part to get her to tell me what it was that she was trying to keep secret. For a brief instant, it occurred to me that she might have found out about Beth somehow, but the news, whatever it was, seemed to be causing her to smile uncontrollably. That was not exactly the response one would expect upon learning that a spouse had committed adultery.
When I asked again what the occasion was, Michelle told me that we had to go tell her parents that they were going to be grandparents.
As I realized what she was telling me, I burst into a laugh and we hugged and kissed. I asked her how she knew and when she found out. She told me that she had done an in-home pregnancy test, and when it came out positive, she performed two more tests. When we went upstairs to the bathroom, she opened a drawer beside her sink and there were the positive strips laid out in order. She had called her doctor and made an appointment for the next week. She hadn’t told anybody but the doctor’s office about the pregnancy, and she wanted to wait until I got home to tell me in person.
“Does this mean our son is going to be named Jorge Alvarado?” I asked. At that point in my life, I actually thought of clients, especially those I went to trial with, as family members. Now they seem more like characters in a play that you have seen multiple times with different actors playing the role each time.
“No,” she said. “I think his name will be ‘Paul’ because he should be named after Paul Thompson.” She was referring to the name of a rearend collision case I had tried a couple of months earlier—and to the facts of the accident—not our method of conception. The case had languished at the office for years, and the plaintiff’s deposition had been taken long before I had arrived at the firm.
In civil cases, it is common practice to depose the principle witnesses. A deposition is a procedure whereby attorneys for all parties ask questions of a witness under oath while a court reporter, and sometimes a videographer, records the questions and answers. The deposition transcript, and sometimes the video, can be presented to a jury at trial in lieu of the witness’s live testimony. A deposition can be taken to preserve a witness’s testimony, to collect information about what the witness saw or heard, or to gather ammunition to cross-examine or impeach the witness if he testifies live at trial. Interestingly, we depose most witnesses in civil cases but rarely do so in criminal cases. Civil cases are about money. Criminal cases are just about life or liberty.
I had been confused when reading the deposition transcript of Paul Thompson as I prepared for the trial because I did not understand why, after every other sentence, the plaintiff said, “Excuse me.” Halfway through my opening statement at trial, however, I learned that Paul Thompson had a flatulence problem. During the entire trial, he would pass gas and then blurt out, “Excuse me.” There was no evidence that, in reasonable medical probability, the farting proximately resulted from the car wreck. In fact, Mr. Thompson had only received chiropractic care, a healing discipline of debated value. To my knowledge, even the most ardent proponents of chiropractic care do not claim that it can cure flatulence. Of course not having health insurance, Thompson only received chiropractic care until he exhausted his personal injury protection coverage of $2,500.00 paid by the plaintiff’s own insurance company without regard to fault.
Still, I thought I was going to win the Thompson case until the very moment the jury returned a defense verdict. In retrospect, I don’t think the farting or the minimal medical expenses threw the jury against Paul Thompson, but I admit that his deliberately putting on a nitroglycerin heart patch during my closing argument was a bit excessive. Hopefully, the pregnancy would go better than the case had.
“Paul” would be a fine name, I thought to myself, as I reflected on the converted apostle struck down by a blinding light on the road to Damascus. Paul Jessie had a nice ring to it. And if he ever played shortstop for The University of Texas, the crowd would call him “P. J.”
Michelle’s excitement was infectious, and I found myself laughing out loud as I stepped into the shower. It wasn’t until the hot water hit me that I thought about Beth and the fact that I had not talked to her since she left Paintsville.
As the hot water streamed over my head, I started thinking about what Michelle would do if she found out about Beth. Michelle, I guess because her dad was a plaintiff’s lawyer, was accepting of strangers and rarely judgmental of others until she got to know them. However, her concept of right and wrong was concrete and immutable. While we had never discussed what would happen if I cheated on her, it was understood that the relationship would be over and that she would leave at once—or kick me out, whichever would be most expedient. Michelle couldn’t stand liars and cheating was just lying raised exponentially. Again, I assumed that this attitude was the result of her being her father’s daughter. While I never heard Michelle and her mother discuss Tim Sullivan’s philandering, there was always an undercurrent at family gatherings where Michelle and Amy would look at each other with their jaws clenched, Michelle curious about what her father was doing and Amy determined to keep Tim’s proclivities from upsetting their daughter.
“Where is your dad?” Amy would say between her teeth.
“I don’t know why you continue to put up with that man, Mother. The things he has put you thro
ugh . . .” Michelle would whisper back to her mother.
Then Tim would burst into the room telling stories and asking questions that drew everyone into the conversation and the undercurrent would be calmed.
I think that Amy liked me, if only because both of her kids liked me, and she would do anything for her kids. The longer I worked at Peters & Sullivan, however, and the more time I spent with Tim, I began to sense an increased level of scrutiny of my actions by Amy—and even an elevated level of distrust. I thought that she was worried I knew something about her husband that she didn’t. And of course, I did, but I was not worried that she thought I was capable of the same indiscretions as Tim. Maybe she was worried about it, though. Maybe she saw me trying to emulate Tim, and she knew what risks that entailed. Amy might like me well enough, but if she thought that I was capable of hurting her daughter, she wouldn’t hesitate to intervene. I would have to be careful around Amy. I didn’t know how much Tim would have discussed Beth with her. Probably he had not said much. But he could have mentioned the fact that the female contract lawyer unexpectedly left Kentucky while I was still there in an effort to deflect attention from whatever he had been doing. As I washed my hair and watched the suds disappear down the drain, it occurred to me that I had been home less than an hour and already I was beginning to suffer alternating bouts of guilt and paranoia that seemed to intensify.
For the first time, I dreaded going to my in-laws’ house. I had to relax. There was no chance that Michelle was going to find out about Beth. If I could just get by this one screwup without Michelle finding out, I would never make such a mistake again—and the only way she was going to find out was if I told her. I couldn’t let myself do that even if it would relieve the pressure of the guilt that was building up inside me.
Tim and Amy Sullivan lived in a French-style, cream-colored stucco house in River Oaks. Most of the houses in River Oaks are old southern mansions with giant oak trees and towering magnolias in well-manicured yards. Here and there, marble villas and Italianesque mansions have replaced the Georgian and Federal-style brick homes. Sullivan’s house was unique because it looked like it belonged in a French vineyard rather than River Oaks. In the backyard was an old oak with a trunk so large that two people could not reach around it; and in the front was a series of towering plane trees that reached as high as the two-story, green-tiled roof.
A Minor Fall Page 11