The Ditto List (50 page)

“I'm afraid so.”

“Now, you'll need a wet suit. You can borrow Bernie Kaplan's; I'll pick it up for you, and …”

“Barbara?”

“What?”

“Fuck you and the raft you rowed in on.”

TWENTY-THREE

Riding the thrill of battle like a surging wave, D.T. entered the courtroom. Purged of fatigue, charged with anticipation, he moved quickly through the spectators and crossed the bar of the court, his heart pumping at a rate that matched his stride. “Good morning, Jerome.”

“Good morning, D.T.”

D.T. examined his opponent carefully. As expected, his pinstripe suit was cast from steel—blue, unbending armor. The shirt was starched to match, white and glistening—hairless hide. But the clothes outstripped the man. Sweat glazed Jerome's high forehead, and his bright eyes danced on fat black pillows, dusky half-rings of sleepless worry. When Jerome Fitzgerald raised his briefcase to the counsel table it vibrated as though alive.

“The first one is hell, Jerome,” D.T. said affably. “Don't let it get you down.”

“I don't know what you're talking about.”

“Some guys still barf before every court appearance, even after thirty years,” D.T. went on. “For some it never goes away.”

“I'm fine, D.T.”

“Good. I'm fine, too.” D.T. looked back over the courtroom. “Where's your client?”

“On his way.”

“Good. Mine is, too.”

“I'm going to resist any attempt to have Dr. Preston testify,” Jerome announced, his voice too loud.

D.T. smiled. “I know you are, Jerome. That's what makes this all such fun. You're going to resist, and I'm going to resist your resistance. Don't you feel great finally being up against a lawyer who really wants to go to trial?”

D.T. patted Jerome Fitzgerald on the back and went to the other counsel table and spread his papers on it, then glanced at the clock. Both his client and the judge were late. McCall had that reputation. Everything in life was more important to him than what was going on in his courtroom, including his daily fifth of gin. D.T. sighed and leaned back in his chair to wait it out.

McCall had been known to be as much as two hours late for law and motion. If there were ten lawyers present, billing an average of a hundred bucks an hour, then McCall's behavior would cause a thousand dollars of unproductive billings. Multiplied by the scores of judges with similar habits, the figure would offer one big reason why the system had become prohibitively expensive for any but the wealthy who could pay the fees, or the maimed who didn't have to.

Jerome slipped into the chair next to him. “Got a minute, D.T.?”

“We've got more than that, if McCall's running true to form. What's on your mind?”

“Settlement, of course. I can't believe you seriously want to go to trial.”

“Why not? I don't have anything else to do next month.”

“But the time. The expense.”

D.T. shook his head with pity. “See, that's what you guys don't get. It's
my
time and
my
money, and I can spend them on anything I want. I don't need to get a big return on my investment because I don't have partners who piss and moan because they're not making half a million a year off my sweat and blood. I can take any damn case to trial I want to. And this one I want to.”

“Forty thousand, D.T.”

D.T. raised his brows. “That all?”

“Come on. It's ten times what the case is worth and you know it.”

“Sorry.”

Jerome's eyelids flapped. “What are you
doing?
Is it me? Is the only reason you filed this case so you can show me up in court? If it is, I don't understand. What did I ever do to you to make you
feel
this way? I don't understand what I ever had that you wanted so badly you feel you need to
punish
me. What is it, D.T.? Tell me, so at least I'll understand what's going on.”

D.T. looked at Jerome with some surprise, surprise at his candor, surprise at himself for not knowing the answer to the question. “It's nothing to do with you, Jerome,” he lied finally. “It just has to do with winning.”

“Is that all that matters to you, D.T.?”

D.T. only smiled. “Let's see what happens today, Jerome. Who knows? McCall might even grant your motion. Then instead of forty grand I'll have to settle for a Snickers bar and a Myron Floren album.”

Jerome frowned. “I'll warn you, D.T. When we win this case my client fully intends to bring a malicious prosecution action against both you and your client, seeking monetary damages commensurate with the losses he has suffered. So consider yourself advised.”

“Oh, don't make me laugh, Jerome. That threat isn't even good in small claims court. Grow up and do your job. Leave the threats to the kids who think they work.”

Jerome sputtered with uncertainty, then looked up anxiously as Judge McCall entered the room from the door behind the bench.

Both lawyers stood up. The clerk hurried to his place, the court reporter arched her fingers over her machine, Jerome scurried back to his table. The judge sat down and so did all the rest. D.T. heard a noise beside him.

Nathaniel Preston was standing in the center aisle, staring at him furiously. D.T. smiled and waved. Preston mouthed an epithet, then moved to join Jerome.

“Well, gentlemen,” McCall began, flipping through the file. “Summary judgment, is it? Any reason why the matter can't stand submitted? I've reviewed the affidavits and points and authorities. They seem satisfactory. No need for anything more, is there?” McCall's puffy features broadened hopefully and his wide smile blossomed, making D.T. leery to erase it.

Jerome stood up. “Jerome Fitzgerald, Bronwin, Kilt and Loftis for the defendant, Your Honor. We stand by our moving papers and are happy to submit the matter on the record.”

McCall nodded and turned his head. “Mr., ah, Jones, is it?”

“Yes, Your Honor. We do wish to present testimony this morning.”

The smile narrowed. “From whom?”

“Chiefly from the defendant, Nathaniel Preston. I wish to call him as an adverse party.”

“Objection, Mr. Fitzgerald?”

“Most definitely, Your Honor.”

“Is the doctor in court?”

“Yes, Your Honor,” Jerome answered. “But the plaintiff is not. If Dr. Preston is examined we would want a concomitant right to examine his former wife.”

“Was she subpoenaed?”

Jerome wiped his brow. “No. I assumed there would be no testimony taken.”

“It usually helps to subpoena your witnesses, Mr. Fitzgerald. Mr. Jones? This is really a question of law, isn't it? Whether the woman at this late date has a right to the fruits of her husband's degree? And isn't the Supreme Court about to enlighten us on that point any time now? Shouldn't we just wait and see what happens?”

D.T. stood slowly, plotting a response. “Your Honor, in his affidavit Dr. Preston has denied that his wife was their sole source of income during the time he was acquiring his medical degree. Also, there are other claims. Dr. Preston asserts stock he currently owns in East Jersey Instruments was included in the boilerplate language of the property settlement agreement, even though there is no evidence other than his word to support that contention. Cross-examination on these and other points might well be conclusive, Your Honor, in establishing plaintiff's right to prevail on her countermotion. The examination need not be lengthy. An hour at most. I—”

“Is plaintiff in court?”

“No, Your Honor. But I expect her momentarily. She—”

He heard a voice. The door at the rear of the courtroom opened. Rita Holloway pushed Esther Preston into the courtroom.

It could not have been staged more dramatically. Every eye was on her, every ear was attuned to the squeak of the ancient wheels, every breath paused at the particulars of her misfortune. D.T. moved to the bar of the court and held open the gate, smiling at the most perfect client he had ever had. When she had rolled to a space beside his table, D.T. turned back to the judge. “Mrs. Preston is here, Your Honor. May I proceed to call Dr. Preston?”

Jerome was on his feet, his face reddened as though the air itself was dye. “Your Honor, defendant objects. This is not a trial on the merits, this is merely a preliminary motion. Dr. Preston is a very busy man. To make him waste valuable time giving pointless, redundant testimony is both inconvenient and totally unnecessary. The affidavit—”

“Cross-examination is still the best vehicle in which to pursue the truth, Your Honor,” D.T. interjected loudly. “While only an inconvenience to Dr. Preston, this matter is vital to his former wife, who as you can see suffers from a most debilitating disease. Surely shortcuts are not in order in this case, Your Honor. Surely Dr. Preston's time is not more valuable than truth itself.”

Judge McCall nodded. “Yes, Mr. Fitzgerald. This court is not run for the convenience of litigants, even medical doctors, though at times it may seem otherwise. Your objection is overruled. As it happens, my calendar this morning is clear. You may proceed, Mr. Jones. But make it brief and material.”

As D.T. assembled his notes Jerome and his client huddled hurriedly. Jerome stood up again. “Your Honor, in light of your ruling the defendant hereby withdraws his motion for summary judgment and asks that court be adjourned.”

“Plaintiff's countermotion is
not
withdrawn, Your Honor,” D.T. said quickly. “May I proceed?”

“You may.”

“Then defendant's withdrawal is hereby, ah …”

“Withdrawn?” D.T. suggested.

“Yes, Your Honor.” Jerome sat back down and faced his client's scowl.

“Plaintiff calls Dr. Nathaniel Preston,” D.T. announced, and watched his adversary leave his lawyer's side. As Preston shouldered past him he muttered, “You bastard; I'll get you for this. And if you try to break into my office again like you did last night, you'll be a dead man.”

D.T. laughed. “Do you want your statement on the record, Doctor?”

Preston only pressed his lips. D.T. wished he knew what Preston was talking about, wished even more that he knew what there was to do in the next few minutes beyond a sweet but irrelevant humiliation of Nathaniel Preston.

The doctor took the oath and then his seat. Judge McCall, his hands out of sight below the bench, seemed to be engaged in something else entirely, perhaps the crocheting for which he was infamous. D.T. crossed to the front of the counsel table and leaned back against it. “When were you married, Dr. Preston? To the plaintiff in this case?”

“Nineteen fifty-six.” If D.T. had been closer to Preston he would have been spat upon.

“At the time of your marriage were you employed?”

“No. I was a student.”

“An undergraduate?”

“Yes.”

“What was your net worth at this time?”

“Not much. I don't know, exactly.”

“Virtually nothing, isn't that correct?”

“Virtually. I had a car. That's about it.”

“Your wife had just graduated from college, had she not?”

“Yes.”

“And she took a job just before your marriage? At the Western Mountain Bank?”

“Yes.”

“In fact her job was the determining factor in your decision to marry; she now had an income that could support you both, isn't that right?”

“I wouldn't put it that way.”

“No, I don't suppose you would. Now, you were in medical training for the next seven years, were you not? Including residency?”

“Yes.”

“And during medical school you earned not one cent yourself, whether in wages, scholarships, or gifts, isn't that right?”

“Well, I—”

“Isn't that right,
Mister
Preston? Yes or no.”

“I believe.…” Preston reached for his briefcase and put it on his lap and opened it and shuffled through some papers. “Yes. I guess that's right,” he said after a moment.

“You earned two hundred dollars a month as an intern, right? After you left medical school?”

Preston looked once again inside the briefcase. “Twenty-five hundred dollars a year, to be exact.”

“And your wife in that year made what?”

“Ah, let's see, sixty-five hundred.”

“As a resident what did you earn?”

Preston probed his case. “It's written down here. Forty-eight hundred.”

“And other than that, nothing?”

“I guess so. I'd have to consult my notes.”

“Well, please consult them.”

Once again Dr. Preston reached inside his briefcase and rattled through some papers. “Yes, I had no other income in those years.”

“Thank you. And your wife in each of those years was earning between six and eight thousand dollars a year, was she not?”

“If you say so.”

“Well, your records don't dispute that, do they?”

“No.”

“Okay. Let's move on to something else. You and Esther Preston divorced in 1965, correct?”

“Right.”

“You had a lawyer and she didn't?”

“We both had a lawyer.”

“The same one?”

“Yes.”

“The same firm that represents you here today, isn't that right?”

“Right.”

“And that lawyer drew a property settlement agreement? And you and your wife signed it?”

“Yes.”

“She got the house, and a sum of six thousand dollars, and alimony of two hundred a month for two years, is that right?”

“Yes. I believe so. I'd have to consult the agreement.”

“Do you have a copy?”

“Yes.”

“Then please consult it.”

Preston opened the briefcase once again. “Six plus the house and alimony. That's right.”

“Now,” D.T. continued. “What was that six thousand dollars supposed to represent?”