Frolic of His Own

by William Gaddis

  PLEASE TAKE NOTICE that the undersigned hereby demand that you serve upon them within twenty days particulars of the Complaint herein as follows:

  1) With respect to the allegations contained in paragraph (3-5) of the Complaint, state separately with regard to each alleged negotiation:

  a. the date and place;

  b. the name and address of each person, other than plaintiff and defendant, who was present or participated in the negotiations;

  c. the substance of statements made by each participant in the negotiations;

  d. whether the negotiations were evidenced in whole or in part by written documents, and, if so, annex a true and complete copy of each such document . . .

  —They’re steaming right along here Oscar, you find that rejection letter yet?

  —Not, no I . . .

  —What I’m trying to tell you, see that can be crucial, the judge sees that letter and it proves they had access, makes it a fact they can’t argue with. See what they’re doing here is they moved to dismiss our complaint under Rule 12 but they stuck some other documents in there where if this judge has to go look beyond the pleadings at these other affidavits their motion to dismiss gets converted automatically into a motion for summary judgment under Rule 56 where the court reaches a decision without going to trial once there’s no more questions of facts for some jury to dick around with, get these cleared up in an Amended Bill of Particulars and your depositions and . . .

  —And it’s all just more words and more words until everything gets buried under words, you said . . .

  —Said you wanted me to explain every step as we went along didn’t you? hoped you could find a few short cuts where you could maybe save some money?

  —Yes but now it’s probably beginning to cost more to explain it than anything I could save when these words all begin to sound the same and cancel each other out, that’s what I . . .

  —Get to these depositions Oscar, you haven’t seen anything yet. What I tried to tell you right from the start. Words, words, words, that’s what it’s all about.

  PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules, defendant KIESTER named herein will examine plaintiff Oscar L CREASE as the adverse party, by taking his deposition upon oral questions at 8295 Sunset Boulevard, Los Angeles, California 90046, before a notary public of the State of California or before some other person authorized to administer oaths, in compliance with Rule 3113(a) of the Civil Practice Law and Rules.

  The aforesaid party is to be examined regarding all evidence material and necessary in the prosecution or defense of the above captioned action and is required to produce the following items or copies thereof:

  All books, papers, writings, letters, written communications and records of oral or written communications, including, but not limited to, bank records, contracts, diaries, recordings, log books, call slips, memoranda, drafts, and worksheets, and other documents or things which pertain to all such evidence . . .

  —California? When you can’t even walk across the room? Have you tried?

  —Tried what.

  —Walking across the room she said, doing so herself just then to lower a blind where pale sun streaked the chair she’d been sitting in shuffling papers, —worksheets, drafts and other documents, old concert programs? Just ship those boxes in the hall out to California the way they are, old Playbills? menus? invitations? they don’t know what they’re in for, what about those family letters that doddering historical society is wheezing over down there? and that rejection letter, had he found that? —I mean it’s Exhibit A isn’t it?

  In the first place he wasn’t going to California he told her, in the second place no, he hadn’t found the letter but Basie said they could try putting in a sworn affidavit, see if they could get it admitted in evidence, as for that damned historical society no action for infringement can be started until the copyright claim is registered and if the Copyright Office turns it down Basie can start an action by serving a notice on the Register of Copyrights with a copy of the complaint, it was our family’s correspondence wasn’t it? letters between that uncle with the coal mines in Pennsylvania and Grandfather’s mother and father, when they went to France in that diplomatic post where he died —and that’s all I know except the rights, there’s no question about the rights descending directly to me through Father on this per stirpes basis where the . . .

  —Oscar please. Don’t explain it. Obviously you can’t go to California so the whole thing . . .

  —I thought Harry must have told you. They’ve just retained his firm, they’ve retained Swyne & Dour where Basie said they’ve put some snooty Hindu on it and I thought maybe I’d ask Harry to sort of get him aside and . . .

  —Don’t you dare ask Harry to get anyone aside, my God. He got you a lawyer, isn’t that what you wanted?

  —Look Christina, here’s Harry with this blue ribbon law firm and I ask him to help me and end up with Mister Basie, meanwhile who ends up with the blue ribbon law firm?

  —You asked him for a Jewish law firm Oscar, I was standing right here I heard you.

  —And what’s Mister Basie then, one of the lost tribes? That’s why I’m not going to go to California, because they’re coming out here to take this deposition, do you think I’d ever collect a penny for all this pain and suffering if anybody saw me up running around the room? Five hundred dollars, that’s what they offered me Christina, the insurance company said they’d settle for five hundred dollars and pay these terrible hospital bills now they’re trying to get my claims dismissed completely by pleading immunity under these No Fault statutes and if they saw me up running around the room they’d . . .

  —They’d think you were exercising your common law rights, wasn’t that what you wanted? It’s not your constitutional rights this socalled lawyer is asserting, can’t you see? He’s asserting his own right to exploit your misery for every dollar he can, it’s not his pain and suffering is it? his brilliant lecturing career that’s in jeopardy? Is he going to pay your hospital bills when you lose? doctor bills? lab bills? this therapist? By the time you get into a courtroom that scar will look like you fell off your tricycle when you were five, think about it, when you start getting bills from Mister Basie sitting here with his clock running and these people taking your deposition, who’s paying for all that?

  —It’s right there in the complaint, it’s even stated right there in the copyright law, we’re not just suing for damages you put in reasonable attorney fees too, that’s part of the . . .

  —If attorneys’ fees were reasonable do you think Harry would be driving around in a car like ours? If they offer to settle for enough to get you out of the hole you’re digging yourself into he thinks you should take it, just forget this fifty million dollars damages you’re dreaming about.

  —I don’t know where you got fifty million dollars, we haven’t even . . .

  —The story in the paper.

  —I haven’t seen the paper. It’s in the kitchen drying out, Ilse has to walk all the way out to the end of the driveway to get it and after a rain like last night, who told them fifty million dollars?

  —I assume it’s your friend Mister Basie, he couldn’t let you sound like a piker could he? with this other ghoul suing them for twenty?

  —What do you mean this other ghoul, who.

  —Whatever his name is, he’s suing over that revolting sledgehammer scene in Uburubu or whatever it is. He claims your friend Kiester commissioned him to go over there and set the whole thing up, paid all his expenses and promised him some earth shaking fee. It’s obviously a better story than someone suing over an old play, your suit was just tacked on.

  —Well what did it say Christina. About me, what did it say about me?

  —Simply that, Oscar. That you’re suing them, that your father’s the judge in the Cyclone Seven mess and a little headline, CYCLONE SEVEN SEEKS NEW HOME. I’ll get the phone.

  —Well wait, wait if it’s . . .


  —If it’s collect from Disney World she’s probably seen your name in the paper with that fifty million dollar pricetag. Shall I just tell her the check is in the mail? And then, —hello? Oh, it’s you . . . Yes . . . Yes I can take care of it tomorrow, it’s not . . . Well it’s really not that important Harry, don’t worry about it . . . No, everything’s fine, he’s right here working himself into a state over this deposition they’re coming for . . . Coming here yes, they’ve retained your firm, did you know? He says Basie tells him they’ve put some snotty Hindu on it and he hoped you might get him aside and . . . Well of course, he knows that . . . I’ll tell him . . . Yes I’ll tell him that . . . I hope so yes, as soon as you can . . . God, I do too . . . and she hung it up. —That was Harry.

  —What did he . . .

  —He said to tell you to relax about your deposition, just remember to tell the truth and don’t volunteer. This Hindu is probably just their third world payback for being handed a token black. Just tell Oscar to tell the truth and don’t volunteer.

  —What, answers? I don’t know what he thinks I . . .

  —It’s that fifty million dollars, Oscar. They’re beginning to take you seriously.

  APPEARANCES:

  Messrs. LEPIDUS, HOLTZ, BLOMEFELD, MACY & SHEA

  Attorneys for plaintiff

  12 West 43d Street

  New York, N.Y. 10036

  BY: HAROLD BASIE, ESQ.,

  Of Counsel

  Messrs. SWYNE & DOUR

  Attorneys for defendants

  450 Park Avenue

  New York, N.Y. 10022

  BY: JAWAHARLAL MADHAR PAI, ESQ.

  J. VENNER SMITH, ESQ.

  Of Counsel

  OSCAR L. CREASE, plaintiff, called as a witness by defendants, being duly sworn testified as follows:

  MR. BASIE: Before we start, but on the record, I should like notice to be taken of Mr. Crease’s physical condition confining him to a wheelchair in an almost prone position thus preventing the free expression of his feelings under the stress occasioned by this procedure in the hope of seeing it conducted as expeditiously as possible.

  MR. MADHAR PAI: May I remind counsel for the record that it is plaintiff himself who in bringing this action has already seriously inconvenienced others to the degree of journeying some distance to his residence to examine him in taking this deposition at his convenience, and if he now feels suddenly reluctant to confront the possible rigours of a legal procedure which he himself has . . .

  MR. BASIE: I only ask that his condition be taken into account in hopes that the procedure will not be unduly prolonged.

  MR. MADHAR PAI: I assure you that we have no such intention consistent, of course, with a thorough airing of the situation for which he alone is responsible in bringing suit on the . . .

  MR. BASIE: Excuse me. To call him solely responsible for creating the situation in which we find ourselves is a gross misstatement of the circumstances and I cannot let it pass unchallenged.

  MR. MADHAR PAI: Are you quite finished Mr. Basie?

  MR. BASIE: For the moment.

  MR. MADHAR PAI: May I make clear at the outset that I do not like to be interrupted, and this is the second time it has happened in as many minutes. If you have an objection please make it for the record.

  MR. BASIE: I am making it for the record.

  MR. MADHAR PAI: What is your objection?

  MR. BASIE: What makes you say I wasn’t making it for the record?

  MR. MADHAR PAI: I thought you were making a statement. What is the basis for your objection?

  MR. BASIE: I am starting to state my objection.

  MR. MADHAR PAI: And what is your objection? If you have an objection, object. You want to make statements and testify.

  MR. BASIE: I have only made comments on your statement.

  MR. MADHAR PAI: I am trying to go smoothly ahead so that this session will not be unduly prolonged.

  MR. BASIE: Are you asking me to give up the plaintiff’s rights?

  MR. MADHAR PAI: We’re not here to fight over the Fifth Amendment old sport, we are trying to conduct a nice quiet deposition. As soon as you feel there’s something that might get us a little nearer the truth of the matter, we seem to . . .

  MR. BASIE: I don’t agree with that.

  MR. MADHAR PAI: I withdraw it.

  MR. BASIE: Thank you.

  MR. MADHAR PAI: Now may I proceed to examine the witness?

  MR. BASIE: He is clearly at your disposal.

  EXAMINATION BY MR. MADHAR PAI:

  Q Will you please first state your name and the occupation from which you derive the bulk of your income.

  A Oscar . . .

  MR. BASIE: I must direct him not to answer the question as it has been put.

  MR. MADHAR PAI: If you have an objection will you please . . .

  MR. BASIE: It’s an objection as to form. There are two questions.

  MR. MADHAR PAI: To which question are you referring.

  MR. BASIE: The question that has just been asked.

  MR. MADHAR PAI: But you say there are two questions, and I’m asking which one you are referring to.

  MR. BASIE: And I am directing your attention to the question that has just been asked.

  MR. MADHAR PAI: Let me understand you. You are objecting as to form.

  MR. BASIE: I am objecting as to form regarding the overall question which comprises two questions, and I am objecting to the second of these two as being improper.

  MR. MADHAR PAI: I’m afraid you are confusing the record by entering a second objection before your first one has been resolved. Please read back the question.

  (Record read.)

  MR. MADHAR PAI: Now perhaps your first objection will be met by restricting the question to a simple statement of the witness’s name, Mr. Basie? Will that please you?

  MR. BASIE: Delighted.

  Q Will you please state your name.

  A Oscar L. Crease.

  MR. MADHAR PAI: Now I believe your second objection had to do with impropriety?

  MR. BASIE: It carried the misleading implication that the witness might have a job on which he is dependent for his livelihood.

  MR. MADHAR PAI: You would not want it thought that he must work for a living, is that what you object to?

  MR. BASIE: That is not the question.

  MR. MADHAR PAI: Then what is the question. Do you think we can move this along?

  MR. BASIE: Are you asking me to deprive my client of the protection of the facts?

  MR. MADHAR PAI: If you have an objection, please make it for the record.

  MR. BASIE: I want the record to show that I have every clear intention of making it for the record. It is to a simple question of fact, and I want the questions to be proper. The question as stated is loaded.

  MR. MADHAR PAI: In implying that, like most of mankind, he must work for a living?

  MR. BASIE: Now come on Jerry, I’m not going to be drawn into a discussion of Adam’s curse here. The question as it stands makes the statement that his occupation provides the bulk of his income.

  MR. MADHAR PAI: And you object to that as to form?

  MR. BASIE: I object to it as improper and irrelevant at this time.

  MR. MADHAR PAI: All right, we can pursue its relevance later if it appears to be material. Let’s restate the question.

  Q If you are presently employed will you please state your position, and how long you have held it.

  A I have been a lecturer in American history at the community college at Lotusville for twelve years.

  Q And before that?

  A Before that?

  Q The position you held before that.

  A I pursued my own interests.

  Q In your present position have you what might be called a specialty? If so will you please name it?

  A The period of the American Civil War.

  Q And was that among the interests you pursued before becoming a lecturer at the college here?

  A It was.


  Q Do you have tenure in your present position?

  A I do not.

  Q And this is your sole profession?

  A I’d simply call it a job, you could say it’s really nearer a hobby.

  Q But you have no other profession. You’re not a playwright for example, a professional playwright?

  A I’m not clear what you mean by professional.

  Q I think it is generally understood to mean someone who is paid for his services.

  A A baseball player.

  Q Professional sports yes, that’s a good example.

  MR. BASIE: You mean as opposed to amateur sports?

  MR. MADHAR PAI: I am asking the questions Mr. Basie. If you have an objection please make it for the record.

  MR. BASIE: I am making it for the record.

  MR. MADHAR PAI: Well? What is your objection, is it as to form?

  MR. BASIE: It is as to form, it was not a question but a leading observation and I want a proper question where the meaning is clear, whether you mean professional sports as opposed to amateur sports.

  MR. MADHAR PAI: I think that is an assumption the witness is capable of making, that he can make that distinction.

  MR. BASIE: Then it’s incorrect, the witness is being led. If we mean distinction we should say distinction, if you mean professional sports as distinguished from amateur sports, that’s one thing. If you mean as opposed to that’s something else.

  MR. MADHAR PAI: If you want to turn this whole thing into a tautological exercise, be my guest.

  MR. BASIE: I want the questions to be proper and I will continue to object when I find them otherwise. Opposing professional to amateur invites an invidious comparison to the ordinary observer.

  MR. MADHAR PAI: Are you implying that there is something pejorative in the use of the word amateur?

  MR. BASIE: In this context that’s exactly what I’m saying.

  MR. MADHAR PAI: And that forms the basis for your objection?

  MR. BASIE: Exactly. May I ask you . . .

  MR. MADHAR PAI: I’m not here to be questioned.

  MR. BASIE: I would just like your question cleared up.