“Your Honor…” Shenk began, and Scanlon told him to hush again, but at least now she was on his side.
“Mr. Keener, the court strongly recommends you heed your lawyer on this matter.”
Rich shook his head, implacable.
“Words, please, Mr. Keener,” said the judge. “We need words.”
“No. No, thank you.”
He was exactly the same. Beth Keener was a tattered copy of her old spitfire self, and God knows what Shenk himself would look like, stood up next to the Shenk of a decade ago. But Richard Keener was the same, solid as old rock. The same.
Shenk was on his feet again. He felt his age in his knees.
“Your Honor, I can’t be ready to argue this properly in twenty days. I really can’t. Is there anything we can do here?”
“You and I? No, sir,” she said, and then stayed ahead of him, not letting him talk. “The right to a speedy trial attaches not to the State, nor even to defendant’s counsel, but to the defendant him- or herself.”
“Right,” said Shenk. “It’s just—”
“If the man wants to be sentenced in twenty days, that’s what happens.”
“But…it’s like he wants to go to prison. To death row.” Shenk opened both hands, imploring. “The law can’t allow him to do that.”
“In point of fact,” said the judge, “the law gives me no other choice.”
“But…”
Shenk stopped. He had nothing to say after but, and it didn’t matter. Judge Scanlon was done. The gavel came down. She said, “Welcome to criminal court, Mr. Shenk. Ms. Nguyen? What’s next?”
The clerk held up a new file and Scanlon snatched it, and Jay watched helplessly as Richard Keener was led out by his elbows.
January 20, 2009
“Uh-oh!” cried Shenk. “Oh boy! Here comes trouble!”
Trouble was coming in the short, squat form of Jackie Benson, chief clerk to Judge Andrew Cates, and it was coming out of the Starbucks on Sixth Street, holding a venti mocha latte, extra whip.
“Don’t start with me, Counselor. Don’t start.”
Ms. Benson scowled playfully and wagged a chubby finger at Jay Shenk.
“I start nothing,” he said. “I come in peace. How you doin’, gorgeous?”
There were court clerks who scrupulously observed the traditional ethical lines separating them from lawyers who practiced before their judge, but Jackie Benson—whom Shenk had now taken arm in arm, as if on promenade, as they approached the courthouse—was not among them.
“Oh, you know. Got a new cat.”
“I saw her on Facebook. Sneakers, right?”
“Squeakers.” Jackie guffawed as Jay the gentleman held open the big glass lobby door. “Who names a cat Sneakers?”
They waited together for the elevator up to the fifth floor and Judge Cates’s courtroom. Jackie took a careful sip of her latte, and Shenk, daubing a spot of whipped cream off her nose, took advantage of the moment’s small, sweet intimacy to make a whispered inquiry. “How’s the weather today?”
“Oh, you know,” said Jackie. “Mrs. Cates took him sailing, for his birthday.”
“Nice. Down at the marina?”
Jackie shook her head. The elevator opened and they got on together. “Catalina.”
“Very nice. And are the grandchildren in town?”
“All but the oldest.”
Shenk grinned up at the tiled ceiling of the elevator. Today was merely the case management conference, the first gathering of all parties in a civil litigation, at which the calendar for the case is established and any small motions can be ruled on, before discovery is opened and the fun and games begin. But it was Jay’s long-held belief that the whole tone and tenor of the case are set at the CMC, and thus a relaxed and recharged Judge Cates, fresh from a weekend at sea in the bosom of his nearest and dearest, boded very well indeed.
“Jackie, I must say,” said Shenk, one hand upon his heart as they stepped off the elevator. “I’ve always loved you very much.”
“Oh, right. You don’t even wear the socks I got you for Christmas.”
Shenk gasped, offended. On the threshold of courtroom 5, he tugged up his pants to reveal the very socks in question: lime-green Scottish lisle cotton, patterns of kittens at play.
Thus buoyed, Shenk strode between the aisles of benches and took his place at the plaintiff’s table like a man coming home. He set his briefcase at his feet and arranged his folders on the desk, just so, spared a moment to give a warm how’s tricks wave to Sammy Beaudreau, the bailiff, and another to toss a salute to the Stars and Stripes that hung between the two banks of high windows, above the great seal of the State of California. He had been in this courtroom a hundred times and still always felt a little shiver at the trappings of justice: the vaulted ceilings, the jury box waiting to be filled, Sammy with his badge and gun, the streams of daylight through the great windows. Jay was not naive enough to think of a courtroom as a cathedral, but on days like today—at the dawn of a new case, all parties assembling to seek justice together—it filled him with tremors of awe.
Shenk was in a favorite court-day suit, a well-tailored two-piece of imperial blue, with a pinstripe of such exceeding nuance that it could only be seen when he stood in just the right shaft of window light.
“Mr. Riggs, I presume?” Shenk turned to the heavyset man setting down his own briefcase at the defense table and leaned across to stick out his hand. “Jay Shenk.”
“Yes.” The man looked at Jay’s hand for a lingering moment and then took it grudgingly. “John Riggs. Telemacher.”
“Oh, I know. Your reputation precedes you.”
Riggs raised both eyebrows in justified skepticism. Indeed, though Shenk by this point had seen the man’s name atop the various reply briefs in Keener, all he really knew of this particular law monkey was that he toiled in overpaid obscurity at Telemacher, Goldenstein, the fat-cat Beverly Hills firm that handled Wellbridge, the general and malpractice insurer of Valley Village Hospital.
“I look forward to working with you,” said Shenk with a wink—this being another of his favorite opening lines for opposing counsel, a sly acknowledgment that, though they were not colleagues per se, their working lives would be yoked for the months and even years over which a complex civil litigation like this might play out.
But Riggs’s expression—eyebrows up, mouth slightly tightened—did not change. “Really?” he said, and before Shenk could find a way to parry this uninspiring reply, Sammy told everybody to rise.
“Good morning, good morning, everyone,” said Judge Andrew Cates, striding up the stairs to the bench, his mane of hair shock white against the black of his robes, his vigorous old-man features looking indeed very slightly tanned. “Have a seat.”
Cates settled with a significant exhale into his own high-backed chair and then said nothing—for one long moment that dragged into another and then another—while the courtroom waited. He trained his eyes on the short stack of paperwork in front of him and read through it, page after page, with one long finger moving slowly down the lines of text. Presumably he was reading Shenk’s suit and the defense’s answer, although for all anyone knew out in the courtroom, silently watching him read, it could have been some other case, or a Ray Bradbury story, or a recipe for chicken à la king. He read slowly, with furrowed brow, tapping his chin and quietly humming something from La Traviata. Occasionally he stopped, selected a number-two pencil from the little cord of them on his desk, licked its tip, and added an underline or annotation.
It would have made more sense to review these documents prior to the hearing, of course, but that would have deprived Cates of the opportunity to hold a room full of people in respectful abeyance, waiting for him to finish. Midway through this performance, Shenk looked over at opposing counsel in search of a moment of lawyerly solidarity: Good ol’ Cates, huh? But Riggs was having none of it; he returned Shenk’s conspiratorial wink with a small pucker of distaste and kept his own eyes focu
sed straight ahead.
“Interesting,” said Cates at last, looking up at some ruminative spot over the head of the litigants. “Very interesting.”
Shenk smiled. Classic. Andrew Cates saw himself as a great scholar, an eminent professor of constitutional law who by some twist of fickle fate had ended up on the state superior court, entertaining motions on slip-and-falls and med-mals.
“Mr. Shenk,” he said at last, tilting his chair down and looking over the edge of his glasses at Jay, who jumped up.
“Yes, Your Honor.”
“How does the court find you, Mr. Shenk?”
“Very well, sir. And how is the court?”
“Oh, fine,” said Judge Cates, puffing out his cheeks, giving the matter due consideration. “Just fine. Before we begin in earnest, Counselor, I wonder if you have brought with you today any soup?”
Jay laughed out loud, and so did Sammy the bailiff and Ms. Benson the clerk. Even Judge Cates, trying to remain deadpan, cracked his old granite face into a puckish grin.
Oh, this is good, thought Jay. Very good.
“Inside joke,” he murmured to Riggs, who blinked back at him, bemused.
When last Jay Shenk stood in courtroom 5, it had been on behalf of a union carpenter named Jerry Mulcahy, who’d lost the use of his right hand after a disastrous reconstructive surgery. In his direct examination of his expert witness, a stiff-necked but highly articulate professor of medical ethics from Stanford, Shenk had elucidated the theory of multiple culpability by drawing a metaphor to a bouillabaisse: there may be a variety of ingredients (to a soup, that is, or to an unsuspecting carpenter’s carpal neuropathology), but there are always certain ingredients (medical errors) that must be present in order for the soup to be delicious (or for the accident to be debilitating and therefore deserving of compensatory damages).
His opposing counsel, Nick Harden of Wildman, Casher, Teller, Bauman, had risen repeatedly to object; objections as to relevance, as to vagueness, as to the line of questioning’s generally florid and digressive quality. Judge Cates had sustained all of these objections—his gnarled hands whanging the gavel down repeatedly in Harden’s favor—and finally ordered Shenk, in his exaggeratedly slow warning voice, to “give it a rest with the damn soup.” But the Mulcahy jury had eaten it up, so to speak. They had sparked to the soup analogy and had rooted for him every time he brought it up, even in the face of Cates’s admonitions. They were smiling away over there, chuckling and glancing at one another and nodding those tiny nods of agreement where a juryman doesn’t even know he’s nodding, but which Shenk, as echo-responsive as any bat, could feel on the atmosphere between him and the box. All of which is to say that even after Harden’s umpteenth objection, even after Cates’s umpteenth “sustained,” Shenk had risen solemnly for the redirect of the Stanford guy, walked slowly over to the witness box, and said, “Some tough questions there, huh? You were really in the soup.”
Mulcahy the carpenter, by the way, came home with the maximum allowable $250,000 for pain and suffering, plus another $150,000 on lost wages, and somewhere north of $225,000 on a life-care plan, exactly the terms Shenk’s expert had proposed.
Mulcahy had been a grand little victory, and the fact that now, today, Cates was making soup jokes from the bench seemed to indicate that all was forgiven. His annoyance at Shenk’s performance during Mulcahy would not be taken out on him and his new clients. For the Keener matter, a tabula rasa.
“Now.” Cates placed one hand on the papers in front of him. “As to today’s business. Mr. Shenk. Mr.—” Checking the file, tapping his chin, taking his time. “Riggs. Before we ask Ms. Benson to work her usual magic and find us a court date, I offer you both my customary entreaty. As you proceed with discovery, stay in contact with each other. Communicate. If there is any way to come to an accommodation, I hope that you will do so. In other words…” He leaned forward in his chair, stern and solemn as a Civil War general. “For God’s sake, settle.”
If there was one thing trial judges hated, it was going to trial. Andrew Cates, like many judges, saw the long period of discovery and depositions as a chance for the parties to come together, compare their respective desires, and—with or without the help of a mediator—find a way to save the State of California the considerable time and expense of summoning a jury and hosting an actual trial. Shenk could not agree more. There was fun to be had in the dog and pony show, of course, but a jury trial was an expensive proposition and the satisfaction of a courtroom victory could not compare to that of settling. Strike the deal, cash the check, and move on to the next adventure.
“Very well,” said Cates, his point made. “Ms. Benson, it is calendar time.”
“Your Honor?” said John Riggs, lumbering to his feet. “If I may?”
“What is it, Counselor?” said Cates, and Shenk in his seat felt a cool wash of unease. If he may what?
“Your Honor, the defense moves for summary judgment.”
Shenk leaped up, both arms raised, astonished. “What?” He turned to Riggs. “What is this?”
“Mr. Shenk,” said Cates, and found his gavel and gave it a tap. “If you please.”
“Sorry,” said Shenk. He turned to Riggs, astonished, and then back at the judge. “Sorry, Your Honor. But I, uh—” He reached up and adjusted his ponytail, pulled it taut, gathering himself together. “Your Honor, we are at conference here. This case is just getting going. No depositions have been taken. We reserve our right, unless I’m missing something, to add additional defendants, if and when new evidence is discovered. So, I mean, Your Honor, surely a request for dismissal is premature.” He looked at Riggs pointedly. “Surely it is vastly premature.”
Shenk opened his hands and ducked his head to await vindication.
“Well…” said Cates, and then paused. He turned his eyes up toward the high ceiling of courtroom 5 and tilted his head back and forth slowly a couple of times. Shenk, his astonishment deepening, looked at Jackie Benson, who looked back at him and shrugged.
Judge Cates should be laughing at Riggs. He should be sternly upbraiding him for his presumptuousness. The idea of dismissing a case like this one, where grievous harm had been done to a minor child—dismissing it prior to any substantive briefing—dismissing it before a single deposition was taken—well, it was absolutely bonkers, and this Riggs clown had to know that it was bonkers.
And yet, Cates seemed very much to be considering it.
“Mr. Riggs,” he inquired finally. “On what grounds?”
“Respectfully, Your Honor, plaintiff has not proven any allegations of misconduct. And—”
“Your Honor!” Shenk shot out of his chair. Of course he hadn’t proved anything! It was day fucking one! Cates shook his head and pointed Shenk back to his chair. “Your adversary has the floor, sir.”
“Yes, but—Judge.”
“Hey. Counsel has the floor.”
Shenk sat, fuming.
“Moreover,” said Riggs, and if he was pleased with his victory, his pleasure did not alter his tone. “As briefing indicates, and as Your Honor may have gathered from press coverage of this case, Wesley Keener’s condition is both tragic and entirely unprecedented.”
The news coverage had been extensive, to say the least. In the three months since Wesley’s accident and subsequent surgery—three months during which Shenk & Partners had been absorbed with drafting the notice of complaint, with writing preliminary briefs and doing background research, with filing the lawsuit proper—the wider world, inevitably, had discovered the story. There had been newspaper articles; magazine pieces; all manner of clickbait website features. Here was this handsome high school student, in the heart of sunny Southern California, who had suffered an accident and been plunged along with his family into a waking nightmare. His condition utterly bizarre and utterly impossible to explain.
Every news item found space for breathless descriptions of the boy in room 906, walking in his endless circle, never sleeping, never eating. Never slow
ing down or speeding up, never stopping, never growing tired. And the questions—so many questions: urgent, prurient, provocative. What was happening inside his head? What about his metabolism? Was he growing? What about the bathroom? One monstrous photojournalist, working on assignment for some scumbag British tabloid, had managed with a telephoto lens to get a shot of Wesley through the hospital room window, captured him in his endless slow-motion circuit, face frozen, eyes dead. The picture had been viewed millions of times, tweeted and retweeted, posted and shared.
“Which is to say,” Riggs continued in his disinterested drone, “that the plaintiff’s contention, that it was medical malpractice which led to the child’s condition, is not only unproven. It is unprovable. If, as I believe we can stipulate, this condition has never been seen before, then it was impossible for Wesley’s doctors to predict or prevent it. Ipso facto.”
Shenk was dying. He was seething in his seat. “Your Honor, may I please.”
Cates allowed it with a deep nod of his head, and Shenk sprang up.
“Due respect to Mr. Riggs,” Jay started, looking sideways at his opponent in his ugly brown suit. “But that argument comes from backwards town. It is precisely the unusual nature of Wesley’s condition that demands the cause be discovered and proper recompense be made.”
Shenk stood for another moment, thinking whether he had more to say, hot with his own righteousness. Ipso facto? Fuck you with your ipso facto!
Cates tilted way back again in his chair, taking a long moment to weigh the matter, murmuring a snatch of Tosca just loud enough for the whole courtroom to hear, the low bum bum bum taking on a foreboding air as Shenk waited for him to pass judgment. Flabbergasted that this motion was even being considered, Shenk looked again at Jackie Benson, who over the lip of her Starbucks cup mouthed a wow of solidarity.
The Quiet Boy Page 8
