The Ditto List (38 page)

“I'm thankful for you and Mommy.” Her face would have converted Mencken.

“I'm glad, honey. You have a whole lot of things to be thankful for, don't you?”

“I guess.”

“You're smart, and pretty, and healthy, and you have a nice house and nice clothes, and nice friends, and a mommy and daddy who love you very much. That's quite a lot, isn't it?”

“Uh huh.”

“A lot of children in the world don't have all those things, did you know that? Lots of them don't have any of them.”

“I know.”

“Lots of kids are hungry every day. And sick. And live in the streets because they don't have a house. I just want you to think a little about those kids on a day like this, okay? Just for a little bit?”

“Okay.” She turned and looked at him. “But what should I do about them, Daddy? I don't know what I should
do
about those people.” Her voice was a tearful plea.

He had blown it again, had tried to do his duty and as usual it was all more complicated than he knew, and he had caused his daughter needless grief. She had thought more about those kids than he had, and like everyone else she didn't know what to do and he couldn't begin to tell her.

“You don't have to do anything right now, honey. Not a thing. Right now it's only important that you think about them for a minute today, and maybe pray for them, and not pretend they don't exist, like lots of people do. Then maybe some day when you're older there'll be other things you can do.”

“Like what?”

“Oh, cast a vote. Write a check. Smile a smile, maybe. Lots of things.” He tried to smile himself.

“I have a nice smile. My teacher said so.”

“You have the nicest smile I've ever seen.”

He squeezed her roughly. Like her mother moments earlier, she tilted her head against his chest. He was miserably ecstatic.

“Will you be glad when George gets here, honey?”

“I guess.”

“Is he over here a lot?”

“Sometimes.”

“Does he stay all night sometimes?”

“Why would he do that? He has his own house.”

“Have you seen it? His house, I mean?”

“Once.”

“Is it nice?”

“It's okay.”

“Is it big?”

“Not as big as this. Why do you always ask me about George, Daddy?”

“I don't always ask you about George, honey. I just want to make sure you and George are friends, that's all.”

“We're friends. Can we
do
something, Daddy?”

“Sure. Why don't you show me your room?” he said. “Maybe we can play a game.”

“What game?

“Whatever you want.”

“Donkey Kong?”

“How about Crazy Eights? Remember how we used to play Crazy Eights a lot?”

“Okay,” she said, and led him out of the den and up the staircase and into the marvel that was her room. They fooled with toys and dolls and books and records, played Crazy Eights and Donkey Kong and Simon Says, and she beat him at all of them. The next thing he knew Michele was in the doorway, telling him that George had arrived, asking if he wanted to come down. He left Heather reluctantly and followed his ex-wife down the stairs and shook hands with the man she intended to marry in three months. His replacement.

Michele gave them wine and they retired to the den to talk. George had seen a play he'd liked, and a concert he hadn't, and he was intelligent and articulate and amusing in explaining each reaction. By the time dinner was served he found himself enjoying George, as he was enjoying Heather and Michele. They seemed a family already, a happy one, and there was much laughter and affection and good feeling and good food and so it surprised him greatly when Michele got up in the middle of the meal and fled the room in tears.

TRIAL

SEVENTEEN

“Jerome Fitzgerald on two,” Bobby E. Lee announced.

D.T. dropped his gum into the wastebasket and pushed a button. “Jerome. How are you and your pension plan?”

“I'm calling about the Preston case, D.T.”

“I thought you might be.”

D.T. had spoken with Jerome Fitzgerald twice in the three months since he'd filed the complaint against Nathaniel Preston in November. The first was to arrange a time for a hearing on Jerome's demurrer that the complaint failed to plead facts sufficient to state a cause of action. Jerome had cried long and hard at the hearing, arguing that Mrs. Preston had no legally cognizable claim against her former husband, and that even if she had possessed a claim at one time she had slept on her rights to the extent that legal limitations and equitable laches had long ago worked to bar the suit. Jerome had lost on all counts, though just barely, the law and motion judge making clear through a spectrum of scowls and scoffs his reluctance to rule in D.T.'s favor and his confidence that Jerome's points might well prevail after evidence was introduced at trial.

Their second conversation had been a result of Jerome's attempt to take Esther Preston's deposition. On that one, D.T. had bluffed and won. He'd carefully outlined the torment of Mrs. Preston's disease, and supplemented his call with a doctor's opinion, obtained by Rita Holloway from her boyfriend, to the effect that the rigors of a deposition would be seriously harmful to Mrs. Preston's already delicate neurology. When Jerome had persisted, D.T. had threatened to go to court for a protective order that would stop the deposition, armed with a videotape so heartrending it would be guaranteed to convince any judge with tear ducts that the poor woman was not up to it. When even that hadn't been enough, D.T. had threatened to take Esther Preston's predicament to the papers, as illustrative of the plight of the handicapped in a heartless and legalistic world, and of the burden placed on public programs by the failure of private individuals to do their duty to those who depended on them,
e.g
., the wealthy physician who abandoned his impoverished former spouse to the public dole.

With that, Jerome had folded his tent, had made do with D.T.'s barely relevant answers to interrogatories and his unhelpful responses to Jerome's request for admissions of matters of fact. D.T. had prepared both documents in the wee hours of the night before they were due, with the help of half a fifth of Jack Daniels and a copy of his law school yearbook opened to a picture of Jerome Fitzgerald accepting an award from the regional vice president of his legal fraternity. The award honored Jerome's significant achievements in the study of law, which Jerome had most often accomplished by tearing pages out of assigned journal articles before anyone else had a chance to consult them.

Now it was summary judgment Jerome was after, claiming that the facts of the case were undisputed, that the only questions at issue were legal ones, whether fraud had occurred, whether Mrs. Preston had a legal interest in her husband's medical degree that could be asserted at this late date, whether statutes of limitation and laches barred all claims. Jerome had filed an affidavit of Dr. Preston in support of his motion, seventeen pages of self-righteous disclaimers and outraged assertions covering every phrase of the complaint against him.

D.T. was worried. His case was weak at best, despite Rita Holloway's efforts to improve it through the acquisition of evidence, and if the judge bought the Preston affidavit at face value then D.T. and Mrs. Preston would be tossed out on their ears and the doctor would be off the hook forever. D.T.'s plan, if it began to look bad at the hearing, was to call the doctor to the stand in person, to insist that Preston's evidence be given under oath rather than by affidavit, so D.T. would at least have the pleasure of working the doctor over on cross-examination before final judgment was entered.

But perhaps Jerome would make another settlement offer. The last time they'd talked, Jerome had made a firm offer of twelve-five. Nuisance value, no more. D.T. had rejected it out of hand. Confidently, to Jerome. Nervously, to himself.

“Dr. Preston told me he'd been served with a subpoena for the hearing Thursday, D.T.,” Jerome said, his voice thin with betrayal.

“Good,” D.T. said.

“But we've filed his affidavit, D.T. There won't be any
need
for live testimony.”

“There will be if I have anything to say about it. You can't cross-examine an affidavit.”

“But—”

“But nothing. If you prevail with only that pathetic affidavit as evidence I'll be in the court of appeals before nightfall.”

“Well, I just wish you'd talked to me before you had him served. Dr. Preston said it was embarrassing to have the sheriff lurking in his waiting room.”

“Good,” D.T. said again.

“It's dirty pool, D.T. I would have agreed to produce him without a subpoena.”

“But this takes the worry out of it, don't you see, Jerome? I mean, if the good doctor shows up Thursday we're all happy, and if he doesn't, the judge issues a bench warrant for his arrest and I don't have to take you before the ethics committee. So I did you a favor, Jerome. I'm surprised with your vast experience in litigation you didn't recognize that.”

Jerome sniffed. “I'm experienced enough to know you're flying blind on this one, D.T. If the judge had any sense he'd have sustained my demurrer two months ago.”

“Hell, Jerome. You'll be lucky if my countermotion isn't granted.”

“Nonsense.”

D.T. was tempted to continue sparring but he let it drop. He wouldn't win anything at all on Thursday. The best he could accomplish was simply not to lose. Many lawyers made livings doing no more than that, but doing what other lawyers did was never reason enough for anything.

“What do you hear about the Supreme Court's opinion on the professional degree issue?” D.T. asked. “I know you guys have wires in to the court.”

“They're going to ask for re-argument on the measure of value point.”

“Yeah? An even split, huh?”

“Sounds like it. Judge Wygant has recused himself, so we see it three-three.”

“The opinion should come down by the time we go to trial, though, right?”

“There's no way you can try this case, D.T.,” Jerome insisted. “The money's just not there.”

D.T. laughed his condescending laugh. “You still don't get it, do you, Jerome? There's plenty of money for me in the case. My overhead wouldn't keep you guys in Bic Bananas and I don't have to hustle clients at country clubs and cocktail parties.”

“Well, a trial is just silly, anyway,” Jerome persisted. “I've talked to Dr. Preston. He's willing to increase his settlement offer, to avoid the inconvenience of a trial and to give some assistance to his former wife even though he has no obligation to do so.”

“How much?”

“You understand this is not an admission of
anything
.”

“How much?”

“He'll go to twenty thousand.”

“Will he, now?”

“Yes. But I warn you. The offer will be withdrawn on the morning of trial.”

“Lump sum?”

“Yes.”

“I'll speak with my client and get back to you.”

“Will you recommend she take it?”

“No.” D.T. laughed, this time genuinely.

Jerome seemed to squeal. “Why
not?
How much will it
take
, D.T.? I mean, you've never even made a
counter
offer. I don't get it.”

D.T. didn't say anything.

“It's me, isn't it, D.T.? You're in this case to beat me, and that's all. You don't give a
damn
about your client, you just want to win against
me
. Because I did better than you in law school, I guess. Or because I make a lot of money in litigation and haven't even tried a case. That's it, isn't it? Well, I'm not a fool, D.T. I know you're good in court; I've asked around. But you can't win this one, you don't have a prayer. So maybe you'd better start thinking about how you're going to feel if you lose. To
me
. To someone who's never tried a lawsuit in his
whole entire life
.”

D.T. was still trying to frame a reply when Jerome Fitzgerald hung up on him.

Losing to Jerome. God. As depressing as impotence or even the Fiasco. So maybe he should cave. Twenty grand times 25 percent equals five thousand as his fee. Plus expenses off the top. The equivalent of twenty-five Fiascos. Enough to get him square with Bobby E. Lee and the book as well. A clean slate, at least every slate but the one tacked to the wall of his conscience, the one that hadn't been cleaned for years.

There was something there, was the problem; something Dr. Preston didn't want known. If he could just learn what it was, the settlement potential would increase by a factor of ten, he was sure of it. His money was on abortion. Lucrative and immoral. It fit all he knew about Nat Preston. But how to find out. He leaned back in his chair and closed his eyes and thought until he had a plan of sorts. Then he buzzed for Bobby E. Lee to join him.

“What have I got this afternoon?” he asked as Bobby came in and sat down.

“Three dittos. All candidates for the Fiasco.”

“Call and put them over to next week. I've got to be out.”

“Out where?”

“Just out. The Preston hearing is Thursday, right?”

Bobby E. Lee nodded.

“When's the Stone trial?”

“Tomorrow.”

His heart flipped. “Jesus, Bobby. How did that happen?”

“You've asked the calendar clerk for too many favors.”

“How many names on Gardner's witness list?”

“Twenty or so.”

“Who?”

“Friends and neighbors, I think. Or former friends. One psychologist you probably should have deposed.”

“Have you notified our own witnesses?”

“Yep. They'll be there, maybe, but they're not too eager. I get the impression Mareth Stone isn't particularly well liked.”