“I am sorry,” said Garza, his face crumpled in his hands, while Judge Cates stood at the window, shaking his head at the woeful incompetence of the world.
As for Shenk, he reached out and put his arm around Garza’s neck and held him, as the man kept going: “I am so, so sorry.”
What happened in light of this new information was entirely predictable, although it happened even faster than Shenk might have thought. It was all of two minutes, after Cates said he would need until tomorrow to rule on how to proceed, and sent them all out of his chambers.
“Mr. Shenk? Jay?” said Riggs, hands jammed in his pockets, hunched forward, contriving to maintain a neutral expression. “I wonder if we might chat for a moment?”
They took the elevator together, and Riggs got right down to brass tacks, right there in the vaulted front lobby of the courthouse, illuminated by rows and rows of skylights, surrounded by a copse of potted trees.
Riggs got right to it, and Shenk played dumb, one of his least accustomed ways to play.
“I’m so sorry, John. I don’t understand.”
“Oh. Well. I think it would be appropriate, at this moment, to think about bringing this matter to a mutually agreeable compromise.”
Of course Shenk knew what this was—given the grenade that had just exploded inside his tent, Riggs was ready to surrender.
But watching Riggs’s plump little mouth form into the shape of the initial overture—it somehow repulsed him, and he recoiled.
“You want to settle?” he said, too loud for the lobby, drawing glances from a crowd of junior associates moving in a clump of navy blue from the elevator to the door. “Now?”
“Come on,” said Riggs. “Let’s not pretend this is a surprise. The facts have evolved.”
Oh, they had evolved all right. They had certainly evolved. Shenk waited for the flood of mingled emotions that was surely on the way. Righteous triumph; giddy joy; the good green feeling of financial relief. Instead he felt like wood. He felt like a totem that someone had wheeled into this sunlit lobby on a cart and propped up against the wall.
“Well,” Riggs began again. “For my part, I have always wanted to see this matter concluded swiftly and amicably.”
“Oh, that’s funny,” said Shenk. “’Cuz there was this guy I had lunch with in Beverly Hills, and he looked an awful lot like you, and when I threw some numbers out he had a very different perspective. Very different.”
Shenk could taste the acid tone in his own voice. Riggs smiled carefully.
“I’m not sure that’s a fair characterization, Mr. Shenk. I believe what I said is that my clients were insistent on coming to trial, contrary to my own advice.”
“And now I’ve got you people by the balls, and it’s time to sing a different tune,” said Shenk.
Riggs raised his hands. No point in denying it.
So this was it, then. Break out the bubbly. Right? A year and a half of banging his head against the wall on Keener v. Valley Village Hospital Corporation, and it was time to make space in the garage because the money truck was backing up.
But Shenk didn’t want to settle. He didn’t want to.
A rush of civilians came past, everyone clutching a paper cup of coffee, all of them smiling like idiots, chatting about bullshit. Don’t they get it? thought Jay. Don’t they know what’s on the fucking line here in the lobby?
“We have both been involved in complex litigation before, Mr. Shenk,” said Riggs. “Surely you can respect my recalibration.”
“Well? So what is it?”
“What is what?”
Jay had a dark smile frozen on his face. “What’s the number, John?”
“Four point nine.”
Shenk raised his eyebrows. Four point nine million dollars was a lot of dollars.
“Gee, John,” Shenk said, “I don’t know what to say.”
“Really? I don’t think I’m giving you a hard decision here.”
Riggs leaned back slightly as another rush of people made their way from the glass fronts toward the elevator bay. Shenk did the same.
“I’m just not sure. Given what has emerged today, I don’t think this offer represents a fair settlement for my client.”
“Despite the fact that we are only several hundred thousand off from your initial settlement offer? Several hundred higher. Or have I misremembered?”
“You turned that offer down.” Shenk brought his Riggs impression briefly out of retirement, hangdog and jowly. “Or have I misremembered?”
Riggs raised his eyebrows. “I would only add that, although this new information is rather damning—”
“Yeah,” said Shenk. “I’d say so.”
“—it is not sufficient, in a malpractice suit, to show fault. You must also show that the fault was the cause of the injury.”
“Wow. Hey. Thanks for the refresher, Mr. Riggs.”
“You are being sarcastic. That’s fine. I merely wished to remind you that this matter may not be as open-and-shut as you now think, but I am nevertheless making a very generous offer. I would think that at the very least, you might make a counteroffer.”
Name your price, is what he was saying. Just name it, and I’ll give it to you. Name your price and get my clients out of this. The Keeners could get a settlement of five million—northwards of that, Riggs was saying—an enormous settlement for a med-mal with no economic damages, and though they would owe Shenk forty percent of the first fifty thousand, thirty-three and a third of the next fifty, and so on from there, the Keeners would end up with more than enough to move on with their lives—not healed, never healed, but the next best thing: provided for.
Which was not nothing. Which was a lot. And yet.
“I have no counter, Mr. Riggs.”
Riggs looked at him, puzzled, even slightly sad. “OK…so…” He opened his hands. “When can we expect one?”
“Frankly, John, my strong inclination, given today’s turn of events, is to put this one in the hands of the jury.”
“And you think you’ll do better?”
“I do.”
“Better than four point nine?”
“Much better.”
“Better than…” Riggs palmed his mouth a moment, waggled his head back and forth. “Five point two?”
Jay closed his eyes. Five point two was really a lot.
“No,” he said. He opened his eyes. “I’m not negotiating.”
“Really?”
“Yeah. Really.” He stared defiantly at Riggs. “You’ve been telling me for eighteen months how your clients were playing it fair and square, how Dr. C and his team of angels were doing God’s work over there, and, hey, gee, now it turns out they flat-out fucked it up. They turned this kid into a wooden soldier.”
Riggs seemed genuinely perplexed, so adamantly angry had his rival become, in the face of being offered $5.2 million. After all, this was how it was done. This was the game as it was played, and Riggs had merely played it—was merely playing it—exactly as Shenk himself had done.
“So, no, I am not inclined to accept your offer. What I am inclined to do is put Paolo Garza on a spit and slowly rotate him. See if we can’t get your five point two up to fifteen. Maybe twenty.”
Shenk had become red-faced, jabbing the point of his finger in Riggs’s formidable slab of a chest. Riggs merely stared at him, chewing on his cheek, eyes scrunched up like a zookeeper puzzling over some strange form of animal behavior.
The elevator door made its sly shooshing noise, and more people came off, and more people got on. More stories, more traumas, more injustices to be set right.
“Understood, Mr. Shenk. But I trust you will present my offer to your clients?”
“Of course. Yeah. Of course I will.” Shenk nodded up and down, up and down. “I’ll ask them, and I’ll let you know.”
And he almost did, too.
He got back to his office and loosened his tie and took out his cherry-red flip and found Beth’s number.
She
had left court the moment it was gaveled out of session, as she did every day—back to Wesley, back to her vigilant sleepless watch. Walking with him in his circles, studying his eyes for the flicker of life that never came.
Shenk didn’t press SEND. He flipped the phone shut and put it down on his cluttered desk and stared at it for a second, as if it was the phone’s job to decide whether to make the call or not.
Then Jay decided to go for a quick run on the treadmill, just to shake out the day. Process the craziness, distract his brain.
He didn’t have any running clothes with him so he stripped down to his T-shirt and his work slacks and started slow and easy, at a very comfortable four and a half miles an hour. Warm-up pace.
The problem of course was that he knew what Beth and Richard would say.
He would tell them, Look, this is a good offer, but we can do better at trial. This new information about the CT, this is gold. It’s pure gold. There was a clear medical error, and it was subsequently covered up. This will set the jury on fire. These people have lost every leg they had to stand on.
But Rich—Rich would be skeptical. Shenk ran a little faster, playing out the conversation in his mind as his blood began to rush. Richard, furrowing his brow, puzzling it out: You’re saying the offer is higher than we even started with. How is that not a win?
Beth, who had never been in it for the money, not exactly, Beth would rally, shake her head, insist that they stay the course. But Rich would scowl, say Hold on, do the numbers, and Beth’s rally would collapse. The trial, no matter the justness of the cause, was a strain, and it was getting worse every day.
What a mercy it would be, for it to end.
Shenk turned up the machine from five to six and then to seven, and then he punched in an incline. Faster now, faster and uphill, and he could feel his heart pulsing in his neck.
What Rich would do is, he would ask whose decision this is, ours or yours, and Shenk would concede the point, and then Rich would nod.
All right, then. A single nod: Obviously. Of course.
He thought, ludicrously, that he should go home and ask Ruben what he thought. Then he laughed out loud at himself, clicking the speed on the console up to eight. Ruben’s just a kid. This decision is way above his pay grade. It was an attorney’s responsibility, ethically and legally, to present his clients with a good-faith offer of settlement. How the hell was Ruben, at fifteen years old, to help him decide whether it was an appropriate time to abdicate that responsibility?
Of course the real problem was that Ruben would tell him the answer and would be confused as to whether it was even a question. The real problem was, Ruben wouldn’t hesitate.
But he had meant what he shouted at Riggs in the hallway: Settling would be crazy. It would be crazy! When the jury heard about all this, they’d be as incensed as Shenk himself. They were going to want to punish Dr. Catanzaro for his error, and doubly punish Valley Village for their complicity in covering it up. Five point two million was a lot, but he could get more. He knew he could.
Enough to keep Wesley Keener cared for forever by professionals, enough for all the armed security and private nurses they would ever need to keep him safe and comfortable; enough for him, Shenk, to pay back all the money he had scraped out of the bank, to fill back up the account that was earmarked for Ruben, and all the other ones besides.
So no, he did not present Riggs’s offer to Beth and Richard Keener. He made the decision on their behalf, entrusting their future to his superior wisdom, while he ran faster and faster on his treadmill, its glowing panel the only light in his empty office.
And if there was some hidden part of Jay Shenk’s mind—a large part or a small part, a lawyer’s part or a part belonging to the human person, the person of flesh and feeling, if there was some tender place in Jay’s mind that was thinking also of Dr. Theresa Pileggi, and of how settling at this point, before her testimony, would rob her of the opportunity to stride to the stand and put her hard-won expertise to use, after they had practiced so hard—well, he did not allow that part to impinge on his conscious deliberations.
He just ran and ran, Jay Shenk in furious motion, running to leave his body behind, until he felt like his heart was going to roar and leap from his chest, and then he went home and turned his phone off and showered and went to sleep.
Part Four
The Night Man
April 14, 2010
It was root beer floats with three scoops of ice cream that night, and you better goddamn believe it.
It was Shenk in his brightest humor, god of lovingkindness, dancing across the kitchen to the freezer door and singing his way down to the lowest shelf, where they kept the dented cardboard cartons of ice cream. Shenk rummaging for two tall glasses, for two long straws and two long spoons, lining everything up neat like he was running a parlor.
“Mr. Shenk,” said Shenk in a flutey, funny voice to Shenk the Younger, and Ruben, catching the fire of his dad’s good humor, playing his role: “Yes, Mr. Shenk?”
“Would you care for chocolate or vanilla?”
And Ruben, bowing his head in the little half bow that was expected of him, selected vanilla because root beer floats were the custom, and chocolate in soda was not a root beer float, it was a Brown Cow, which was obviously delicious but not traditional.
Tonight was a night for tradition. For celebration. Tonight was the Shenks in their glory.
“Are we seriously having floats now?” Ruben said uncertainly, brow furrowing, unable even in the face of his father’s joyousness to fully silence the voice of worry. “We haven’t eaten dinner.”
“There are some nights,” explained his father with heavy gravitas, dropping generous glomps of ice cream into frosted glasses, watching them slowly roll and effervesce, “when dessert must come first.”
Ruben laughed, and accepted the glass that Shenk slid toward him, and saw himself in his father’s eyes.
Shenk at the last minute had decided to let him miss another day of school, even though it meant skipping out on the social studies final, so he could be present in court for today’s climactic testimony. An exam could be made up, after all, and at the prices Shenk was paying, Morningstar wasn’t going to just let the kid fail social studies, right? He should be there—he should be there to see his father deliver the killing blow to fat John Riggs and all the starchy Riggses of the unjust universe.
And Lord God had the day delivered.
Thinking back over all his years of practice, Shenk was hard-pressed to think of another day that had been so satisfying, that had so thoroughly met his expectations for success.
First, in the morning, it had been Paolo Garza, shaved and shorn and abashed up on the stand. In careful sentences he repeated the confession he’d made in Cates’s office, of his careless error and what it meant, while Rourke sat in a front-row bench, snapping her gum, and Riggs watched helplessly, the color on his cheeks darkening slowly, like a setting sun. Shenk for his part had kept his gleeful eyes on the jury, watching with enormous pleasure as it all sank in.
The wrong chart. They had mauled this kid, they had monkeyed with his brain, based on the wrong chart…
And then, after lunch, came Dr. Theresa Pileggi.
“You saw her?” he said now, to Ruben, his eyes swimming with pleasure. “You saw?”
“I saw her, Dad. I was there.”
“God, she was fucking amazing. Oh. Shit. Sorry.” They tried not to curse in the house. Shenk looked up at the ceiling and past that to heaven, blew Marilyn an apologetic smooch. “But the gal fucking nailed it.”
Pileggi’s testimony had been a thing of beauty, precise and on point from would you state your name for the record onward. She was concise and she was clear and she was likable, chauvinist double standard be damned. What had seemed heretofore like her diffidence had played as politeness; her smugness as restrained humility; her arrogance as well-deserved confidence.
She rattled off her credentials crisply and with due mo
desty—the honors at Caltech and then the PhD from, ahem, Duke, and her current gig at Riverside; a humble lectureship, yes, but in a prestigious department, and tenure-track despite her tender age. Dr. Pileggi had detailed the extraordinary facts about Syndrome K: its origins in a molecular pathogen, its invisible dormancy and long period of gestation, its catastrophic effects on the brain once awakened—not on one or two discrete sections of the brain, but on whole systems, whole clusters of systems. Shenk made a show of prodding Pileggi, prying open her modest reluctance, until she conceded that it was she herself who had discovered it.
“So basically,” she said, asked in the end to summarize, “Syndrome K is an exceedingly rare form of a larger category of abnormal protein deposition neurodegenerative disorders.”
“Can I ask you to put that in layman’s terms for us, Doctor?”
“Oh yes.” A smile. A smile! “You betcha.” Shenk, dying inside, melting with pride and pleasure: you betcha! “A lot of folks have heard of mad cow disease, right? It’s different than that, but that’s the general category we’re talking about.”
“OK. But Wesley Keener didn’t get this illness from a diseased cow, did he?”
“Well, that’s the tricky bit. We may never know how he became infected with the prion. We only know what caused it to emerge.”
“Emerge?”
“Brain surgery is a traumatic event. What the body does, to cope with a traumatic event, is release certain chemicals. These sudden changes in chemistry activated the dormant prion.”
“So—just to be totally clear. No surgery, no syndrome. Would that be fair to say?”
“Yes, it would.”
Shenk’s only job through all of this testimony was to nod at the right places, furrow his brow at others, interject occasional questions, not because Theresa didn’t know what to say next, but to highlight the passages where he wanted dear Celia Gonzalez paying extra attention.
Shenk now, reliving it all, reveling in it all, still holding the ice-cream scoop and waving it like a barbarian’s triumphant club. Recalling the big finish. “Now, Dr. Pileggi. You were present for the testimony from Dr. Catanzaro, yes?”
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