A Minor Fall

by Price Ainsworth

  “The point, Mr. Abbott, isn’t whether this document has been published. The point is that it’s part of the materials that the witness reviewed in deriving his opinions in this area, though he saw fit to omit it from the itemized list of things he said he had reviewed. Furthermore, it will be published, perhaps not with every jot and tittle that appears in the copy you have in your hand, but the conclusion will be the same. If I can borrow your phrase, ‘the good people of this commonwealth’ shouldn’t be required to live under an outdated scientific paradigm simply because the Defendant Boyd Oil was successful in scheduling this hearing now as opposed to four months from now.” I said, pounding my fist with righteous indignation on the conference table.

  I looked over at Riza who had a concerned look on her face. At the time I thought she was worried that the commissioner might exclude my questions from the BEIR VII-Phase 2 report, so I added, “If you exclude this evidence you will put the trial court, and any appellate court that might someday review his decision, in the ridiculous position of having to pretend that this report doesn’t exist when we all know, Dr. Thomas included, that the consensus of scientific opinion is contrary to the position he has stated, because the report will most certainly be published before any higher court gets around to ruling on this issue.”

  Mr. Abbott looked befuddled as he continued to leaf through the document, pausing form time to time to look up at opposing counsel. The huge conference room was completely silent. The blue and grey suited crowd had stopped clattering on its laptops. Riza sat with her lips pressed tightly together. The only movement in the room was from Mr. Walton who sat a few chairs to my right. He smiled as he shook his head from side to side, anticipating the ruling that was about to come.

  “Well,” Mr. Abbott finally said. “If it’s not published, I don’t see how I can allow it.” A general sigh emanated from the crowd. It reminded me of the sound a home crowd makes when its star point guard misses a crucial free throw late in the game with the score tied. I thought Riza looked strangely relieved.

  “Do you have anything else with this witness, Mr. Jessie?” The Commissioner asked, but he didn’t look up from the papers in front of him.

  Because the Commissioner had taken the air out of what I had intended to be my big finish, I fell back on a conclusion that I had used a few times in car wreck cases.

  “Do you recall, Dr. Thomas, whether it was the Paul Newman character or the Elizabeth Taylor character in Cat on a Hot Tin Roof that tells Burl Ives, ‘I smell mendacity in the air Big Daddy’?”

  I guess that, because he had never tried a car wreck case, the defense lawyer forgot that he could object. Maybe he was curious to see what I would do next. Or maybe he knew that it didn’t matter what I did next.

  “No.” Dr. Thomas said. “I don’t recall.”

  “But you do smell it, don’t you?” I asked. “Do you smell mendacity in the air?”

  “I . . . I don’t know what I smell.” He said.

  I turned to the Commissioner and said, “I think I’m about through. Let me check with my assistant and see if there is anything I left out.”

  I leaned over to Riza and put my arm across the back of her chair. As I whispered into her ear a question about whether there was anything else she thought we should cover, I studied her computer screen. It was not an instant-messaging page. Instead, it seemed to be some type of page that depicted the current pricing of various oil company stocks. Boyd’s stock price was at the top of the page.

  “Davy,” she said already trying to console me over the expected loss, “you’ve done all you can do. You did a fine job. It doesn’t matter if you prove that the Martha Oil Field is comparable to Hiroshima or Nagasaki. He’s going to rule how he’s going to rule. Don’t beat yourself up over this. Some motions are just not meant to be won. But I’ve got to ask. How did you ever get your hands on that unpublished report?” She asked.

  “Mr. Walton told me that the industry has been expecting it for some time. He thought that a draft copy might have gone to Thomas, and Walton suggested that I hire someone to go through the trash can outside Thomas’ house periodically. I told Walton to hire somebody and sent him a check, but I think the old man might have done the search himself, judging by that smile on his face.” I said.

  Riza looked over at Mr. Walton. “What is it that Sullivan always says?” She asked.

  “He’s grinning like a cat eating shit out of a hairbrush.” I whispered. “Do you think the record is ready for our appeal after a summary judgment?”

  “Yes,” she said.

  “We have nothing further Mr. Commissioner.” I said.

  When the defense lawyer indicated that he had no questions for the witness, probably to avoid having me get another crack at him, the commissioner invited us to give our closing remarks.

  I gave my closing argument without referring to my notes. I had been working on it for months, and however Quixotic the effort, I thought it went well.

  I talked about how the presence of radioactivity on the land, whether or not the court decided that it presented a health risk, meant that the future use of the land would be restricted. Who would buy property that he knew was contaminated with radiation even if it was only contaminated a little bit? I reminded the commissioner that these properties were all that the plaintiffs had, and that the properties had been passed down from generation to generation going back to the time of Jenny C. Wiley. More importantly, it was all future generations would have. I concluded with the quote I had seen on a bumper sticker. I had intended to save the quote for trial, but I figured that I had better go ahead and use it. The quote is sometimes attributed to David Brower, the founder of the Sierra Club, and sometimes attributed to Chief Seattle. “We do not inherit the earth from our ancestors; we borrow it from our children.”

  Like Sullivan always says, “Just because it’s on a bumper sticker doesn’t mean it’s not true.”

  Then his friend William would blow cigarette smoke skyward and respond, “Means it is true, Podzy.”

  The Boyd lawyer essentially read his argument from a yellow legal pad.

  I think even the Boyd lawyers were surprised when the commissioner ruled from the bench after the conclusion of the arguments, rather than taking the matter under advisement. Clearly the commissioner appeared to be reading from a prepared text that was so detailed that I doubted at the time it could have been put together during the testimony or arguments presented that day. He struck Mr. Walton’s testimony, and refused to strike Boyd’s witnesses.

  The folks in the blue and grey suits rushed out into the hallway, and it was difficult to hear over them as they shouted into their cell phones.

  Mr. Carter came over to me and told me that he thought I did a good job. “That feller,” he said, indicating the commissioner, “thinks that you could put TENORM on ice-cream and eat it.” I smiled and shook his hand.

  “Don’t let the bastards grind you down Mr. Carter.” I said.

  He nodded, but before he left for the elevator, he made a point of telling me not to take the ruling too hard.

  “You kinda look like you might be the one caught in the grinder.” He said.

  In a few minutes, the conference room was empty. Only Riza and I were still sitting at the enormous table, and she continued to watch her computer monitor. My luggage was downstairs in the rental car, but she had brought her hanging bag inside and placed it in the corner.

  “I have to get back,” I said, cramming the materials from the table in front of me into the briefcase that my brother had given me and fastening the latch. I stood and gestured toward the door indicating that I would wait for her.

  “I know. You need to hurry. You go ahead. I’ll catch a cab and fly back later on a commercial flight. I need to do some things here before I go, and I don’t want to slow you down.” she said.

  “There can’t be much left to do here.” I said. Everybody was gone. Even Mr. Carter had left. “You can call Tim from the car on the way to
the airport.” I was curious about what she was going to tell him had happened.

  “You go, and I’ll see you later. I’ll see if there is anything Tim wants me to do while I’m still here. Good luck with the baby.” She said in a very business-like fashion as she was reaching into her purse to find her cell phone. I assumed at the time that she was going to call Sullivan to let him know what had just happened, and I assumed that everyone in Houston would know long before I arrived.

  I grabbed my briefcase and raced to the elevator. I considered stopping on the way to the airport and getting a hamburger or some fast food to go, I was jittery and almost weak with hunger, but I didn’t want to waste the time.

  I thought about how Sullivan (really Riza) usually called ahead to the pilot and had him arrange for there to be sandwiches on board when we got there. I reconciled myself to the fact that there were usually chips and salted nuts in the compartment where the liquor was kept. Scotch and cashews didn’t sound all that bad. It would be a repeat of the dinner I had the night before in my room. I had stayed up all night, periodically watching SportCenter, looking over my notes for the hearing, and writing a few lines for the short story that I had folded in half and crammed back into the breast pocket of my blazer. I hung the jacket in the bathroom so that my shower the next morning might steam out a few wrinkles from my travels.

  Usually, after losing a motion or a trial, I would play the courtroom scene over and over in my mind, trying to determine if there was something I could have done differently to affect the outcome. Typically, as a young lawyer, the “what if” questions I would ask myself were about not doing something next time. What if I had not called that witness? What if I had stopped asking questions two questions earlier? What if I had limited the amount of money I requested?

  But on the way to the airport, and even on the flight home, the only thing that went through my mind (besides the fact that Michelle told me on the cell phone that she was fine) was that Riza had been watching oil stock prices rather than taking notes at the hearing (well, that and the fact that when I got home, I would have to tell my pregnant wife that I was an adulterer who had given her a venereal disease).

  I tried to divert my attention by looking through the folder of Bar Journals and Supreme Court Digests that Eileen had sent along for the trip. Apparently I had fallen a bit behind on my reading because there were several copies of each in the folder. I looked at the Journals first, generally just checking out the disciplinary rulings and deaths, until I got to the most recent edition which included the publication of short stories and poems submitted by lawyers to a contest the Journal held every year. I remember wondering if other professions (dentists, oncologists, etc.) were so jaded by their practices that they felt the need to encourage fiction writing.

  Frankly, the short story winners were very good even though the stories were all about practicing law. The first place poem was okay, but second place was marginal. The shock came when I saw the third place poem: Prufrock’s Reprise. There in black and white for all the world to see was my poem. Of course, the world wouldn’t know that it was my poem because the author was listed as “Anonymous.” I knew that I hadn’t submitted it. I couldn’t believe that the black-haired, freckled-face girl in Memphis had, but I thought she was the only person that might have seen it. However, as I looked more closely at the poem, I saw that a stanza had been added, like a chorus after the fourth and tenth stanzas that I had written:

  Remember the clean, well-lighted Queen,

  Kids’ ice cream socials and teenage scene,

  Grizzled old men drinking their coffee

  Discussing weather, ballets Joffrey?

  I had only told Beth about my Dairy Queen story. She must have been the person who modified the poem and sent it to the Journal. But how would she have gotten the poem? And if she did, why did she submit it? Why did she include the chorus? Did she just think the poem needed it (wasn’t there a chorus of sorts in Prufrock)? Was she asking me to contact her, or was she saying goodbye?

  Reading the poem made me think about the handwritten short story in my breast pocket. I pulled it out and tried to finish it. I made a few changes, added a few sentences, got frustrated, folded it back up, and put it back in my blazer.

  In a few hours, the plane landed at the Raytheon Fixed Base Operation next to Hobby Airport in Houston, and I walked as fast as I could across the tarmac carrying my briefcase and hanging bag. The cell phone rang. It was Michelle. She didn’t sound upset, but she did sound anxious.

  “Davy,” she said, “something’s happening. Thank God you’re back. I just went to the bathroom, and this bloody looking stone came out. The book calls it a ‘plug’ or ‘bloody show.’ I think we’re having a baby. Where are you?” She asked excitedly.

  “I’m at Raytheon by Hobby. I can be at our house in less than fifteen minutes. Do you want me to come get you, or do you want me to meet you and Jonathan at Methodist Hospital?” I asked.

  “Come get me,” she said, and I thought I could hear a sense of relief in her voice now that she knew that I was back in Houston. I could tell that she was reading from a checklist that she had prepared in advance for this situation. “I’ll call Dr. Nathan’s office, and let them know that we’re on the way to the hospital. Then I’ll call Mom and Jonathan. After that, I’ll call the Hundred Acre Wood Preschool.”

  It was well known in certain circles (a euphemism for “inside Loop 610”) in Houston that a student was unlikely to get into St. John’s for kindergarten if he hadn’t attended the Hundred Acre Wood Preschool. If you didn’t go to St. John’s, Harvard was a long shot.

  The trouble was that the preschool had an unlisted phone number and address. Most prospective students were registered at birth. Neither Jonathan nor Michelle had attended the exclusive preschool, and Sullivan saw this as a generational failing that Michelle intended to rectify. After considerable effort to secure the address and telephone number from another female attorney in her firm, Michelle had made several trips by the ivy covered gate in front of the unmarked entrance to observe young, blonde women in their tennis dresses escorting toddlers through to a life of privilege and prestige.

  “Sorry again about your hearing.” Michelle said to me.

  For a few seconds, I couldn’t remember what hearing she was talking about.

  As I approached my car in the FBO parking lot, I looked across the airport towards the skyline of downtown Houston. Even carrying only the briefcase and the light overnight bag, I was beginning to sweat so much that I had to stop, put the bags down, and loosen my tie and collar. In reality, there were three skylines: downtown, the Galleria, and the medical center. My house was close to downtown. Tonight would be spent in the medical center.

  The late afternoon sun shone brightly on the stair-stepped glass buildings in the distance. Though it was mid-September, summer wouldn’t give way to fall for another month in Houston. It was still miserably hot, and I could feel the sweat soaking through my jacket as I walked to the car. I finished taking off my tie when I got to the car.

  From this distance and perspective, Houston was a gleaming, beautiful city, a testament to the newly minted wealth of an economy based on energy and commerce. I could make out the building where the law firm was, and I imagined that I could tell which office was mine. Many times, I had sat in that office and watched planes circle downtown as they began their approach into Hobby Airport. Often I had wondered where they were coming from and whom they were bringing to Houston. New arrivals, no doubt intrigued by the glimmer of the giant, new city, were excited by the prospect of wealth and opportunity, and oblivious to the fact that between the airport and downtown, lay the slums of the Fifth Ward.

  Briefly, I thought about getting in my car and driving straight to Abilene. I could call Jonathan and ask him to pick up Michelle. In a few hours she would safely give birth to our child, and I would be well on my way out of the heat and humidity of Southeast Texas, and making my way toward the dry air of the wi
nd-swept hills around Abilene. Fall wouldn’t have arrived there either, but the evenings would already be cooler. Dad would have a lead on a good place to go dove hunting. In a few hours I could be sitting around a stock tank, drinking beer, and waiting for the dove to come flying in for a drink of water before roosting in the mesquite trees around the tank. I could just run away and avoid forever the painful conversation that I had now put off for so long. Or I could just leave the car at the airport and catch the next flight to Argentina. That way even my parents wouldn’t be involved in my escape.

  I threw my bags in the trunk of my car and raced up I-45 to the Southwest Freeway, and took the Kirby exit to West University. Before I turned into the neighborhood, I called Eileen to see if anything was happening at the office and to let her know that I would be taking Michelle to the hospital.

  Eileen asked me about the hearing and about the Davis case. I told her about the commissioner’s ruling at the Carter hearing, and that the Davis case had settled. “There is something weird about that Davis case.” I said.

  “What do you mean?” Eileen asked. “Back before you were a lawyer, we used to settle cases like that all the time. You are not feeling guilty about the fee, are you? One of the reasons the insurance company is settling is because they know you are willing to take the case to court if you have to.”

  I thought to myself that the company was more concerned about Sullivan taking the case to court than me, but I didn’t say that. I was worried about the fee a little bit. On one hand, I was worried that it might be seen as excessive. On the other hand, I wished that the case had not been settled until after I left the firm and that I might have some claim to at least a portion of the fee.

  “No, that’s not it. I don’t know what it is. I can’t put my finger on it. I’ve looked at that video one hundred times, and there is something that just doesn’t seem right.” I said.