The Ditto List

by Stephen Greenleaf

  “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 muc
h. 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?”

  Preston shrugged. “How should I know?”

  Jerome stood up. “Objection. Calls for a legal conclusion.”

  “You’re a little late, Mr. Fitzgerald,” Judge McCall pointed out. “As I understand the law of evidence, the objection is supposed to precede the answer. Overruled.”

  “Thank you, Your Honor,” D.T. said. “Come now, Dr. Preston. You understood that the six thousand was to represent a portion of the marital assets, didn’t you?”

  “I did. Yes.”

  “And by this time there were some marital assets, were there not? You were in the second year of your practice, after all.”

  “I suppose there were some.”

  “And your income the first two years of practice was, what? Do you remember?”

  “Not without my notes.”

  “Please consult them.”

  The briefcase came and went. “I earned thirty-one thousand the first year. And fifty-two the next.”

  “Calendar year?”

  “Yes.”

  “Net of business expenses?”

  “Yes.”

  “And exactly which assets were divided to give Mrs. Preston that six thousand dollars? Do you have any idea?”

  Preston smiled savagely. “I certainly do. I gave my lawyer a list of everything I owned. He divided it up. The house plus the six thousand was exactly half. Which was everything she was legally entitled to.”

  “Do you have that list with you?”

  “Yes. I just found it recently, in some papers I had in storage.”

  Preston brought the briefcase back to his lap, fished around in it, brought out a sheet of paper, and proffered it. D.T. stepped forward and took it from him. One glance showed him the East Jersey Instruments stock was listed, along with various savings accounts and other minor assets. Alongside the items were value amounts, and half the total was six thousand and change. The interest in the house was in lieu of further alimony. A common practice in those days. D.T. swore under his breath, knew if he raised his eyes they would be slapped by Preston’s grin.

  He looked at the list again. There was no date, no signature, nothing. It could have been written yesterday, forged, manufactured solely for purposes of this hearing. But evidence of such chicanery would be scientific, not produceable at this stage of the litigation. Besides, D.T. sensed no forgery, sensed that the list was genuine, sensed that he was screwed.

  He flipped the paper to the table and glanced over at his client. She seemed to sense it, too, the sinking of their most promising claim, their status now reduced to litigious nuisances—beggars, cheaters, frauds. D.T. sagged inwardly at what he’d done to her. He turned back to the witness.

  “An interesting document, Mr. Preston. Totally self-serving, of course, and totally inadmissible, since it was not produced for my inspection in response to my request for all such documents in your possession or control.” D.T. turned toward the judge. “Your Honor, Mr. Preston seems to have a great many papers in that briefcase of his, and many of them seem to relate directly to the issues in this case, to contain material evidence of the facts at issue. He has referred to those papers repeatedly, and the one document he produced from it is something withheld from plaintiff though clearly called for in our discovery.”

  McCall shook his head to clear it. “What’s your point, Mr. Jones?”

  “I request permission to examine the entire contents of the briefcase, Your Honor.”

  Jerome Fitzgerald leaped and screamed. “I object, Your Honor. A totally inappropriate invasion of privacy. An outrageous request.”

  “Nonsense,” D.T. said calmly. “That briefcase clearly has nothing to do with Mr. Preston’s medical practice; it has to do with this lawsuit. I request leave to examine the papers he has collected and brought to court to aid him in his testimony, and to arrange for copying those that are relevant, which I suspect is all of them.”

  “A fishing expedition, Your Honor. Totally beyond the proper scope of discovery.” Jerome’s face was as white as his shirt.

  D.T. laughed. “Mr. Fitzgerald apparently learned the law of evidence watching Perry Mason, Your Honor. There is nothing inappropriate in fishing inside a briefcase from which relevant documents have been extracted in order to determine whether other of its contents may lead to the discovery of admissible evidence. If nothing else about his testimony is true, it is certainly true that Mr. Preston has demonstrated that the contents of that briefcase are very likely to lead to just such materials.”

  “Let me see it.” Judge McCall gestured toward the case. Preston frowned and gripped it tighter and silently demanded that his counsel intervene.

  “Your Honor,” Jerome sputtered. “There is no foundation for—”

  “An in camera inspection is called for,” McCall retorted. “Hand it here, Mr. Preston. I me
an Doctor.”

  Preston hesitated, the judge gestured, Preston did as he was told. His eyes burned holes, first in D.T. and then in Jerome. The only sound in the room was the ripple of paper beneath Judge McCall’s bleary eyes.

  It took him only seconds. He pushed the briefcase toward the edge of the bench. “Here you are, Mr. Jones. For what they’re worth.” D.T. stepped forward and retrieved what he hoped would be a prize.

  “No.”

  Nathaniel Preston surged out of the witness chair and swiped his hand at the case in D.T.’s hands. “You can’t do that.”

  Jerome hurried to his client’s side. “Yes, Your Honor. There is no basis for this. I insist on a stay so your decision can be appealed.”

  “Restrain yourselves, gentlemen,” Judge McCall said. “As far as I can see, those papers all bear upon this case, at least conceivably. Discovery should have been completed by now, but maybe if we do it right here we can get this thing settled and off the calendar. I don’t see anything of much importance, frankly, but you can look them over for a few minutes, Mr. Jones, and make whatever points you want to make. Then we can wrap it up before lunch. I’ll take the matter under submission and Dr. Preston can go see some patients. I see nothing appealable about any of this, Mr. Fitzgerald.”

  “But …”

  D.T. returned to his table and extracted the contents of the case. In front of him, the argument between Jerome and the judge continued. He sighed. His victory was indubitably small, proof merely that because of the break-in at his office, Preston was concerned about the loss of important bits of evidence and that Jerome had failed to give his client a basic bit of advice—that anything on Doctor Preston’s person not only wasn’t secure, it was liable to be ordered produced for inspection in open court. D.T. thumbed through the pile of papers.

  They were what he expected—tax returns, income statements, handwritten notes, legal documents, all supporting what he now was certain was the truth—that Nathaniel Preston had not defrauded his wife seventeen years previously by concealing a portion of his holdings. Enervated, D.T. pawed his way to the bottom of the pile, going through the motions in order to justify his request to see them, certain there was nothing helpful in the lot.

  The very last item was a file folder with Esther Preston’s name on it. He opened it. The file contained a medical record, evidently of Esther Preston’s routine checkups, administered by her husband during their marriage, maintained by him or by his nurse with an objectivity that seemed similar to the treatment of other patients. Lacking any other task, D.T. looked more closely at the scrawled notations.