A Minor Fall

by Price Ainsworth

  Invariably, the weekend before trial, Sullivan would sit down with the file and pull a few documents and identify a few items that were “hot.” Riza and I would make sure that there were multiple copies of the thin file of documents that Sullivan put together as “his” file, because frequently he would leave it in the hotel bar or on the bumper of the car or wherever.

  The documents he selected for his hot documents file wouldn’t necessarily be the ones that would jump out at you as being essential to the case. More than once, I remember him sitting at a hotel desk or sprawled across a hotel bed with paper cluttering the floor and stacked on the desk, the television, and the bathroom counter, when he would jump up and shout, “Here it is! Hoisted upon his own ‘pittard.’”

  Of course, whenever he said things like that, I would scurry off to find a laptop and Google the phrase. I assumed that a “pittard” was some type of sharp object and that somebody was being sacrificed upon his own sword or spear. With a little effort, I would learn that the Hamlet reference was to a small bomb, but the effect was the same—somebody was being done in by his own weapon or device. In fact, the correct quotation appeared to be “hoist (not ‘hoisted’) with (not ‘upon’) his own petard (not ‘pittard.’)” But Sullivan was not above attempting to improve upon Shakespeare or at least bend the bard’s lines to his own suiting. Then, I’d try to memorize other lines from the same act and scene so that the next time Sullivan used the phrase, I could follow up with a quote of my own. This practice of mimicry had resulted in extended periods of time in which I would use words like “unctuous” or phrases like “a modicum of perspicacity.”

  Sullivan would carefully file his eureka documents in a thin, redrope folder marked “Tim’s hot docs,” and smile. Often, I’d read what he had selected and wonder what the pages had to do with proving our case. Inevitably though, he would use the documents to tell a story about which the jury already knew the ending, but nevertheless was anxious to have Sullivan reveal to them.

  In one trial, we were alleging the down-moving escalator in a large, downtown Houston bank was defective because it didn’t have “side safety plates” between the edge of the moving steps and the fixed sidewalls of the escalator. Apparently, several times each year on escalators around the country, young children will have their tennis shoes caught in the space, and the force of the moving step would traumatically crush and even amputate children’s toes.

  Our client, Scott Aldridge, was a handsome four-year-old boy whose father was holding his hand as they went to the father’s office one Saturday morning before the bank opened. Scotty’s tennis shoe got caught between the moving escalator step and the stationary wall, severing several of the little boy’s toes. Incredibly, there was a memo, discovered in previous litigation involving the same escalator manufacturer, in which a regional vice-president wrote to the home office in Switzerland about product liability law in the United States.

  Evidently, the escalator manufacturer had been considering the purchase of the side-safety-plate technology, which reduced the gap at the edge of the step, as a safety device for incorporation into the design of their product. In order to prove design defect in the case, we had to show that the design without the side safety plates was defective and unreasonably dangerous, as well as whether a safer alternative design existed that, in reasonable probability, would have prevented or significantly reduced the risk of injury. The memorandum asked, “Is a down-moving escalator without side safety plates unreasonably dangerous as designed?” A discussion of the law in various states followed. The employee who had received the memo had written in ink beside the question, “Probably so.”

  I was surprised that Sullivan didn’t put that memo in his “hot docs” file. I remember asking him if he was sure he didn’t want it. “No,” he said, “you use it. I’ve got the one I want.” He showed me an innocuous looking e-mail that discussed a dinner meeting of company executives in Geneva.

  Of course, when I used the admission-of-defect document at trial, the defense counsel was ready with stock explanations as to why the memo—which I thought was an admission of fault—was really an observance of the need for an alternative safety device, thick-bristled brushes, that the manufacturer eventually determined should be placed along the escalator sidewall in lieu of side safety plates because the brushes were more effective at keeping young children from putting their feet on the edge of the step. However, Sullivan was able to use the document he selected to show that at the very moment that Mr. Aldridge helplessly watched the mangling of his young son’s right foot, the president of the escalator company was enjoying a bottle of Montrachet and eating fondue.

  I thought my half of the closing argument in the escalator case had gone pretty well. I had used the often-quoted passage from Ezekiel 22:30 where God searches for a man among the Israelites “. . . who would build up the wall and stand before me in the gap . . .” I had remembered Church of Christ preachers talking about filling in the gaps in society’s safety net through charitable contributions to help the poor, and I asked the jury, through its verdict, to stand in the gap between the escalator wall and the escalator steps to prevent other kids from being injured in the future. I did think that Sullivan one-upped me in his half of the closing argument. He argued that requiring the escalator manufacturer to fill in the space between the escalator steps and the escalator wall was akin to taking a position on the Alamo wall against Santa Anna’s murderous hordes looking for a breach in the integrity of the Texans’ defenses.

  It’s a close call, but generally speaking, I think Alamo references are superior to Old Testament quotes in the hierarchy of effective jury arguments in Texas.

  Sullivan didn’t say a word as the hospital elevator descended five floors. When the doors opened, he pushed the wheelchair out. “We just have to cross the lobby, and the chapel is on this floor over there behind the piano,” he said, and began whistling as we went across the spacious lobby, through a small vestibule, past a pair of heavy oak doors, and into the long, hushed, Wiess Memorial Chapel.

  24

  ONE WALL OF THE softly lit chapel was made of carved, oak panels, and the opposite wall held a series of four stained-glass windows that let in light from the lobby. The ornate pieces of glass reflected geometric patterns of color across the cool terrazzo floor that was carpeted down the center aisle. Oak pews faced a pulpit from both sides of the aisle. In the center of the pulpit was a stained-glass window with a figure of Christ, and beneath the window was a bronze plaque with the quote, “These things I have spoken unto you that in me ye might have peace. In the world ye shall have tribulation: but be of good cheer; I have overcome the world.”

  I continued to sit in the wheelchair while Sullivan pushed me to about the middle of the chapel. He walked around in front of me and sat down next to me on one of the pews. He looked over his right shoulder at the stained-glass window and asked, “Namesake?” I looked up at the window of olive green, burgundy red, golden-yellow, and blue-almost-purple stained glass, and I recognized for the first time that the image depicted was of David holding a harp and unfolded scrolls of paper with writing that might be psalms, or stories, or laws. Beside him was a lamb, beneath him was a rock, and the bottom panel in the window was of a royal lion with a sun behind him.

  From his right coat pocket, Sullivan produced a Laguiole corkscrew. From his left coat pocket, he produced several Dixie cups. He kept two Dixie cups, and returned the others to his pocket.

  Most of the lawyers that I have met have a specific drink that they always order, without regard to the meal they’re having, the time of day, or the season of the year. Sullivan was different. Other than the first Sea Breeze or two that the staff at Damian’s greeted him with when he came through the door, Sullivan would actually spend a moment contemplating what the perfect choice of wine or spirits might be for a particular occasion. He might even engage the waiter in a discussion in which it seemed that the waiter’s opinion held great sway. To the uninitiated,
this hesitation before ordering might at first seem to reveal a level of inexperience when ordering alcohol. When Sullivan finally got around to ordering, I always wished that I had waited to see what he was getting before I had reflexively said “scotch” to the waiter.

  He never ordered a Bloody Mary, Mimosa, or Bellini after eleven o’clock in the morning. Bourbons and scotches were reserved for the fall and winter months to accompany steaks served medium rare, and gin and tonics and vodka sodas were favored in spring and summer with Cobb salads or pecan-crusted snapper or blackened redfish topped with lump crabmeat. He might order a beer with barbecue or a dozen raw or an oyster po-boy, but the beer would have to be ice cold, and, if it got warm before he finished it, he would get a fresh one. Every now and then he would request a Martini straight up with olives, but only if the bar had Monopolowa vodka. He explained that one can’t distinguish between vodkas. However, vodka was supposed to be made from potatoes, and Monopolowa was the only potato vodka readily available in the States.

  More often than not though, Sullivan ordered wine. He was not what I would call a wine snob. He could of course afford anything on the wine list, but he might not order the most expensive bottle if it didn’t fit his mood or complement the dish he was ordering.

  He never ate at a Chinese food restaurant unless it served Wan Fu. He judged all Italian food restaurants by whether or not they had Tignanello available. Even if they did and he was ordering pasta with cream sauce, he would probably just order an inexpensive bottle of Frascati, but only if it could be brought to the table in a bucket of ice.

  Remember when your grandmother would have ladies from the church over for Bible study, and she would serve different salads like ham salad and chicken salad and potato salad? Mine also made something that she called a pear salad. She put a big leaf of iceberg lettuce on a salad plate and then opened a can of halved pears. She put a pear half on each plate and filled the hollowed cavity in the middle with a large dollop of Miracle Whip. Then she would let me drink the juice out of the pear can. That is pretty much what Frascati tastes like. Maybe Frascati isn’t quite as sugary sweet, but it almost tastes like pear-flavored water, and it’s delicious with a large bowl of pasta with Alfredo or vodka sauce.

  Sullivan liked champagne ahead of cocktails before a meal. He liked Montrachet with cheese after a meal. He ordered obscure California chardonnays as if he was searching for the best buy, constantly comparing them to Au Bon Climat, Cakebread, or Marcassin as his yardsticks.

  Of the many bottles of wine I had consumed with Sullivan, Far Niente chardonnay was my favorite, and I often told him so. He liked it well enough—he said that he thought it compared favorably among the California chardonnays—but preferred the big Tuscan reds like Tignanello that were kept stockpiled for him at Damian’s, and he considered it heresy to drink chardonnay when offered Montrachet. I liked Far Niente’s intricate, art nouveau parchment label. I liked the spicy, oak flavor of the wine, and the full, roundness of the flavor as it rolled back over my tongue. Because Sullivan preferred it served very cold, I preferred it served cold. After a few glasses, the velvety wine seemed to manifest itself by turning my hands into soft cotton balls at the ends of my arms.

  To tell the truth, what I liked most about the wine was its name. I had read on the back of a bottle that “Far Niente” was an Italian phrase meaning “without a care,” but not having studied Italian, I was certain the phrase meant more than that. According to the label, the phrase was carved into a stone on the front of the winery built in approximately 1885, which sat in disrepair from the time of Prohibition until 1979 when new owners took over.

  Admittedly, I had spent long hours with Sullivan, drinking Far Niente as if we had nothing to worry about; but even in the early days of my working for him, I thought that “Far Niente” meant something else, something darker, more ominous. For some reason, the phrase reminded me of the Lord’s Prayer speech from somewhere in Hemingway—I can’t remember if it was said by the old waiter in the short story A Clean, Well-Lighted Place or by Jake Barnes in the novel The Sun Also Rises: “Our nada who art in nada, nada be Thy name.”

  Probably the waiter had said it, biding his time while the old customer finished drinking before they closed up the bar and sent the man home and out into the darkness. Or maybe Jake had said it when he slipped into the cathedral near the Hotel Montoya and off the hot streets of Pamplona. No, I think Jake’s prayer was a rambling prayer for bullfighters and Lady Brett Ashley’s prayer in the San Fermin Cathedral later in the book never got started. I can’t remember now who said the prayer, but I used to know things like that back in college, which was not all that long ago. I’ll bet my dad could tell you that.

  “Niente” had to mean “nada” or “nothing.” I assumed “far” translated directly from Italian to English, referred to distance. Thus, a “far niente” was a “distant nothing,” a black hole in the heavens where one expected there to have been a moral authority. “Far Niente” is the vintner’s recognition of a godless universe. Why would we have any cares if we knew there was no God? We could act in our own self-interest without fear of punishment or retribution, because beyond our knowable, observable existence, there was only a distant nothing, a “far niente.”

  I never told anyone my translation of “far niente.” For a long time, I intended to look it up in an Italian/English dictionary. I never discussed with Sullivan his understanding of the phrase.

  In my mind, a “far niente” expressed a thought I had already had, but had not articulated, perhaps because I didn’t want it to be true. Maybe there was nothing beyond the present. Maybe we’re just here and then we’re not. Maybe over the horizon of the here and now, there is only nothing, nada, niente. Why not celebrate that isolating, otherwise depressing recognition by drinking good wine in such quantities that you lose the hopelessness of the thought and enjoy the endorphin rush of the present? Eventually, the wine takes hold, and the far niente doesn’t seem so distant or empty, just an accepted proposition; and, with nothing beyond today, you begin to seek enjoyment now rather than sacrificing for any non-existent future. Or as old Khayyám put it,

  Yesterday This Day’s Madness did prepare;

  To-morrow’s Silence, Triumph, or Despair:

  Drink! for you know not whence you came, nor why:

  Drink! for you know not why you go, nor where.

  When I did get around to looking up the phrase, I was pleased with myself to learn that “niente” did translate as “nothing,” and not necessarily as “nothing to worry about,” just “nothing.” “Far” was apparently from the verb “fare,” which means “to have” or “to make.” “Fare” is defined a lot like “hacer,” if my high school Spanish serves me. As best I can tell, “to have” and “to make” can’t be accomplished with the same word in English, in which one can have something without making anything. Growing up in Texas, I frequently heard the salutation, “Como tio?” After a year of high school Spanish, I assumed that one was being greeted “like an uncle,” but thinking about it now, the phrase is probably a contraction for “Como te haido,” or how have you been making it.

  I don’t know if the anonymous stonemason in Northern California just dropped the “e” on “fare” because he got tired of chiseling, or if he didn’t allot enough space, or if he was engaged in an early evolution of the art of text messaging. Maybe it’s a contraction or a participle form of the word. Or, maybe, the man was the artisan son of immigrant parents, and he grew up hearing the phrase; and like me, he sensed a distant nothingness when he did.

  My sketchy understanding of the Romance languages notwithstanding, I was at a point where the far niente didn’t seem all that far away at the moment, and I could feel the engulfing blackness of it settling all around me. As I watched Tim set the Dixie cups beside each other between us on the pew, it felt as if I was watching him through a microscope.

  In an elaborate, and decidedly practiced fashion, Sullivan opened the wine and poured us ea
ch a glass. As he handed me a cup, I thought about the fact that I had, in just the short time I had known and worked for Tim Sullivan, consumed thousands of drinks with the man. I also imagined that this would probably be the last.

  “I think you’ll like that,” he said admiring the label on the green bottle. “It’s your favorite, isn’t it? Be of good cheer,” he said and nodded toward the plaque at the front of the room.

  “Yes. I’m sure I will,” I said.

  “Listen,” I said. “There is something I have to tell you about a case.”

  “A case? Don’t we need to talk about my daughter right now?”

  “Yeah, the Tamara Davis case. She is the tonsillectomy lady on the hospital security camera video.”

  “Right,” Sullivan said. “I heard about your settlement. Great result. I know the facts are kind of shocking, but who wouldn’t take a quarter of a million dollars to let some good-looking young doctor kiss her chest while she was asleep?” He held up his cup. “Congratulations.”

  “Thanks,” I said. “It’s not that simple. I didn’t know it when I sent the demand letter or when the adjustor offered the money, but I think the case is a fraud. Tamara and her doctor, um . . . boyfriend, staged the whole thing. My guess is he knew the person in the monitoring room also . . . maybe they are related or something.”

  “And how did you figure this out?”

  “I thought there was something wrong on the video, and Eileen pinned it down. Ms. Davis smiles after the kiss. So I confronted Ms. Davis on the phone just now. She pretty much admitted everything. Do you take the money? Do you withdraw? Do you tell the adjustor before he sends the check and release?”