Something Borrowed (5 page)

automated woman. She consistently bears bad news and does so

in a chipper voice. They should adjust that recording at law firms,

make the voice more somber: "Uh-oh" with ominous Jaws music

in the background "you have four new messages"

What is it this time? I think, as I hit play.

"Hi, Rachel It's me Dex I wanted to call you yesterday to talk

about Saturday night but I just couldn't. I think we should talk

about it, don't you? Call me when you can. I should be around all

day."

My heart sinks. Why can't he adopt some good old-fashioned

avoidance techniques and ignore it, never speak of it again? That

was my game plan. No wonder I hate my job; I am a litigator who

hates confrontation. I pick up a pen and tap it against the edge of

my desk. I hear my mother telling me not to fidget. I put the pen

down and stare at the blinking light. The woman demands that a

decision be made with respect to this message I must replay it,

save it, or delete it.

What does he want to talk about? What is there to say?

I replay,

expecting the answers to come to me in the sound of his voice, his

cadence. But he gives nothing away. I replay again and again until

his voice starts to sound distorted, just as a word changes in your

mouth when you repeat it enough times. Egg, egg, egg, egg. That

used to be my favorite. I'd say it over and over until it seemed that

I had the altogether wrong word for the yellow substance I was

about to eat for breakfast.

I listen to Dex one final time before I delete him. His voice

definitely sounds different. This makes sense because in some

ways, he is different. We both are. Because even if I try to block

out what happened, even if Dex drops the Incident after a brief,

awkward telephone call, we will forever be on one another's

List that list every person has, whether recorded in a secret spiral

notebook or memorized in the back of the mind.

Whether short or

long. Whether ranked in order of performance or importance or

chronology. Whether complete with first, middle, and last names

or mere physical descriptions, like Darcy's List: "Delta Sig with

killer delts"

Dex is on my List for good. Without wanting to, I suddenly think

of us in bed together. For those brief moments, he was just

Dex separate from Darcy. Something he hadn't been in a very

long time. Something he hadn't been since the day I introduced

the two.

I met Dex during our first year of law school at NYU.

Unlike most

law students, who come straight from college when they can think

of nothing better to do with their stellar undergrad transcripts,

Dex Thaler was older, with real-life experience. He had worked as

an analyst at Goldman Sachs, which blew away my nine-to-five

summer internships and office jobs filing and answering phones.

He was confident, relaxed, and so gorgeous that it was hard not to

stare at him. I was positive that he would become the Doug

Jackson and Blaine Conner of law school. Sure enough, we were

barely into our first week of class when the buzz over Dexter

began, women speculating about his status, noting either that his

left ring finger was unadorned or, alternatively, worrying that he

was too well dressed and handsome to be straight.

But I dismissed Dex straightaway, convincing myself that his

outward perfection was boring. Which was a fortunate stance,

because I also knew that he was out of my league. (I hate that

expression and the presumption that people choose mates based

so heavily upon looks, but it is hard to deny the principle when

you look around partners generally share the same level of

attractiveness, and when they do not, it is noteworthy.) Besides, I

wasn't borrowing thirty thousand dollars a year so that I could

find a boyfriend.

As a matter of fact, I probably would have gone three years

without talking to him, but we randomly ended up next to each

other in Torts, a seating-chart class taught by the sardonic

Professor Zigman. Although many professors at NYU

used the

Socratic method, only Zigman used it as a tool to humiliate and

torture students. Dex and I bonded in our hatred of our meanspirited

professor. I feared Zigman to an irrational extreme, whereas Dexter's reaction had more to do with disgust.

"What an

asshole," he would growl after class, often after Zigman had

reduced a fellow classmate to tears. "I just want to wipe that smirk

off his pompous face."

Gradually, our grumbling turned into longer talks over coffee in

the student lounge or during walks around Washington Square

Park. We began to study together in the hour before class,

preparing for the inevitable the day Zigman would call on us. I

dreaded my turn, knowing that it would be a bloody massacre, but

secretly couldn't wait for Dexter to be called on.

Zigman preyed on

the weak and flustered, and Dex was neither. I was sure that he

wouldn't go down without a fight.

I remember it well. Zigman stood behind his podium, examining

his seating chart, a schematic with our faces cut from the firstyear

look book, practically salivating as he picked his prey.

He

peered over his small, round glasses (the kind that should be

called spectacles) in our general direction, and said,

"Mr. Thaler."

He pronounced Dex's name wrong, making it rhyme with "taller."

"It's 'Thaa-ler,' " Dex said, unflinching.

I inhaled sharply; nobody corrected Zigman. Dex was really going

to get it now.

"Well, pardon me, Mr. Thaaa-ler," Zigman said, with an insincere

little bow. "Palsgraf versus Long Island Railroad Company."

Dex sat calmly with his book closed while the rest of the class

nervously flipped to the case we had been assigned to read the

night before.

The case involved a railroad accident. While rushing to board a

train, a railroad employee knocked a package of dynamite out of a

passenger's hand, causing injury to another passenger, Mrs.

Palsgraf. Justice Car-dozo, writing for the majority, held that Mrs.

Palsgraf was not a "foreseeable plaintiff" and, as such, could not

recover from the railroad company. Perhaps the railroad

employees should have foreseen harm to the package holder, the

Court explained, but not harm to Mrs. Palsgraf.

"Should the plaintiff have been allowed recovery?"

Zigman asked

Dex.

Dex said nothing. For a brief second I panicked that he had

frozen, like others before him. Say no, I thought, sending him

fierce brain waves. Go with the majority holding. But when I

looked at his expression, and the way his arms were folded across

his chest, I could tell that he was only taking his time, in marked

contrast to the way most first-year students blurted out quick,

nervous, untenable answers as if reaction time could compensate

for understanding.

"In my opinion?" Dex asked.

"I am addressing you, Mr. Thaler. So, yes, I am asking for your

opinion."

"I would have to say yes, the plaintiff should have been allowed

recovery. I agree with Justice Andrew's dissent."

"Ohhhh, really?" Zigman's voice was high and nasal.

"Yes. Really."

I was surprised by his answer, as he had told me just before class

that he didn't realize crack cocaine had been around in 1928, but

Justice Andrews surely must have been smoking it when he wrote

his dissent. I was even more surprised by Dexter's brazen "really"

tagged onto the end of his answer, as though to taunt Zigman.

Zigman's scrawny chest swelled visibly. "So you think that the

guard should have foreseen that the innocuous package measuring fifteen inches in length, covered with a newspaper,

contained explosives and would cause injury to the plaintiff?"

"It was certainly a possibility."

"Should he have foreseen that the package could cause injury to

anybody in the world?" Zigman asked, with mounting sarcasm.

"I didn't say 'anybody in the world.' I said 'the plaintiff.'

Mrs. Palsgraf,

in my opinion, was in the danger zone."

Zigman approached our row with ramrod posture and tossed his

Wall Street Journal onto Dex's closed textbook.

"Care to return my newspaper?"

"I'd prefer not to," Dex said.

The shock in the room was palpable. The rest of us would have

simply played along and returned the paper, mere props in

Zigman's questioning.

"You'd prefer not to?" Zigman cocked his head.

"That's correct. There could be dynamite wrapped inside it."

Half of the class gasped, the other half snickered.

Clearly, Zigman

had some tactic up his sleeve, some way of turning the facts

around on Dex. But Dex wasn't falling for it. Zigman was visibly

frustrated.

"Well, let's suppose you did choose to return it to me and it did

contain a stick of dynamite and it did cause injury to your person.

Then what, Mr. Thaler?"

"Then I would sue you, and likely I would win."

"And would that recovery be consistent with Judge Cardozo's

rationale in the majority holding?"

"No. It would not."

"Oh, really? And why not?"

"Because I'd sue you for an intentional tort, and Cardozo was

talking about negligence, was he not?" Dex raised his voice to

match Zigman's.

I think I stopped breathing as Zigman pressed his palms together

and brought them neatly against his chest as though he were

praying. "I ask the questions in this classroom. If that's all right

with you, Mr. Thaler?"

Dex shrugged as if to say, have it your way, makes no difference to

me.

"Well, let's suppose that I accidentally dropped my paper onto

your desk, and you returned it and were injured. Would Mr.

Cardozo allow you full recovery?"

"Sure."

"And why is that?"

Dex sighed to show that the exercise was boring him and then said

swiftly and clearly, "Because it was entirely foreseeable that the

dynamite could cause injury to me. Your dropping the paper

containing dynamite into my personal space violated my legally

protected interest. Your negligent act caused a hazard apparent to

the eye of ordinary vigilance."

I studied the highlighted portions of my book. Dex was quoting

sections of Cardozo's opinion verbatim, without so much as

glancing at his book or notes. The whole class was spellbound nobody did this well, and certainly not with Zigman

looming over him.

"And if Ms. Myers sued," Zigman said, pointing to a trembling

Julie

Myers on the other side of the classroom, his victim from the day

before. "Should she be allowed recovery?"

"Under Cardozo's holding or Justice Andrews's dissent?"

"The latter. As it is the opinion you share."

"Yes. Everyone owes to the world at large the duty of refraining

from acts which unreasonably threaten the safety of others," Dex

said, another straight quote from the dissent.

It went on like that for the rest of the hour, Dex distinguishing

nuances in changed fact patterns, never wavering, always

answering decisively.

And at the end of the hour, Zigman actually said, "Very good, Mr.

Thaler."

It was a first.

I left class feeling jubilant. Dex had prevailed for all of us. The

story spread throughout the first-year class, earning him more

points with the girls, who had long since determined that he was

totally available.

I told Darcy the story as well. She had moved to New York at

about the same time I did, only under vastly different circumstances. I was there to become a lawyer; she came without

a job, or a plan, or much money. I let her sleep on a futon in my

dorm room until she found some roommates three American

Airlines flight attendants looking to squeeze a fourth body into

their heavily partitioned studio. She borrowed money from her

parents to make the rent while she looked for a job, finally settling

on a bartending position at the Monkey Bar. For the first time in

our friendship, I was happy with my life in comparison to hers. I

was just as poor, but at least I had a plan. Darcy's prospects didn't

seem great with only a 2.9 GPA from Indiana University.

"You're so lucky," Darcy would whine as I tried to study.

No, luck is what you have, I'd think. Luck is buying a lottery ticket

along with your Yoo-hoo and striking it rich. Nothing about my

life is lucky it's all about hard work, it is all an uphill struggle. But

of course, I never said that. Just told her that things would soon

turn around for her.

And sure enough, they did. About two weeks later a man waltzed

into the Monkey Bar, ordered a whiskey sour, and began to chat

Darcy up. By the time he finished his drink, he had promised her a

job at one of Manhattan's top PR firms. He told her to come in for

an interview, but that he would (wink, wink) make sure that she

got the job. Darcy took his business card, had me revise her

resume, went in for the interview, and got an offer on the spot.

Her starting salary was seventy thousand dollars. Plus an expense