by Peter Murphy
Once I got over the humiliation of having to be reminded by my assistant trial attorney of something as basic as the statute of limitations, it didn’t take me long to come up with a plan of action. But how in the hell had I forgotten to ask the first question you ask in any case on the defense side? How old is the cause of action? It’s civil procedure 101.
There’s a limitation period for any civil claim. For claims of this kind against the government the period is six years, which means that if the plaintiff doesn’t file suit within six years of the claim accruing, the claim is barred. It’s a sensible enough rule. As time goes by, witnesses die, or they forget what happened, documents are lost, and it gets progressively more difficult for a court to establish the truth. The longer the delay in bringing suit, the harder it is. So the law imposes a burden on plaintiffs not to let the grass grow. It’s not a harsh burden: six years is more than enough in any normal case for a plaintiff to get her act together, hire a lawyer, and file a claim. If she didn’t know the claim had accrued, the limitation period can be extended to run from the time when she did know. So there’s little excuse for missing the deadline. All the same it happens pretty often, usually because of negligence either on the part of the plaintiff or on the part of her lawyer. When it happens in a case in which my office is defending, we ask the court to dismiss the case, and they do. It’s a routine occurrence, and Samantha van Eyck was about to go the same way.
I think the reason I had to be reminded about the statute of limitations was that the debt went back such a long way. In most cases, everything has happened within the last decade or so, and the only question is whether the plaintiff should have known of the claim at some time within the last six years of that decade. You don’t get cases where the cause of action goes back more than 200 years. But the same principle has to apply. The only thing different in Samantha van Eyck’s case was that it certainly wasn’t Samantha’s fault, or Kiah Harmon’s, that the deadline had been missed. It had passed many years before either of them had been born.
From my point of view, as simple as it was going to be to win this case, and as little credit as I deserved for my part in doing so, it was an unexpected boost in terms of career – not just for me, but for Harry and Ellen as well. News of our routing of the opposition, of our saving America from the spectre of having to fork out billions of dollars to repay a 200-year-old debt, would go directly to Assistant Attorney General Maggie Watts, from Maggie Watts to the Attorney General, and from the Attorney General to the President. The name of Dave Petrosian might even be whispered in the Oval Office. It would, no doubt, be forgotten in the same amount of time it took to whisper it, but the prospect was beguiling, nonetheless. It would be something to talk about over drinks and dinner for the rest of my life. For all that, I was going to miss the case.
As I said before, this was easily the most interesting case I had even been involved with. There was a certain romance in the idea of digging into the history of America at a time when its independence – its very nationhood – hung in the balance, when they could have been snuffed out like a candle if events had unfolded differently. It was interesting, challenging, and passionate. And even for someone like me, who slogged through law school part-time and took a very mundane view of legal practice, there was a feeling that this is why you go to law school, this is why you pay so much money, and why you subject yourself to so many tests to become a lawyer: not only because you can earn money at the end of it, but because maybe there will one day be a chance to be involved in something that becomes a part of history. And this case could have been it. I would never have said any of that to Harry, or even to Ellen, though I think Ellen would understand and I wouldn’t be surprised if she feels the same way. I wouldn’t say it because it’s just too personal.
When I called her, Kiah told me she was going to New Orleans to meet members of the van Eyck family, so we had arranged to meet on the Monday, the day after she returned. We met at Benny’s, a new casual diner not too far from my office, which was getting to be popular with local office workers. I set out in good time to make sure of a table where we could talk undisturbed. As one of his first customers I still had a little influence with Benny in such matters, though the more popular the place became, the faster that was going to disappear. On this Monday, my clout was still sufficient. As I walked, I was clutching the pleadings in a brown envelope under my arm. I suppose I hoped we might mourn the case together.
25
She arrived on time, and we shook hands before taking our seats opposite each other at our corner table. I hadn’t seen Kiah for quite some time, and I’d heard that she’d had some kind of trouble that had made her close her office for a while, so I wasn’t quite sure what to expect. But she looked really great. There was something different about her. She was dressed less formally, for one thing. Whenever I’d seen her in the past she had looked like your stereotypical female corporate lawyer: the dark suit, the starched white blouse, the heels and all the rest of it. That had all changed. She was still smartly dressed, but there were colours now: red, green and gold; a light jacket and grey slacks had replaced the suit, and the shoes were low and comfortable-looking. There was a confidence about her, an openness. She looked around her.
I perused the menu for a moment, although I knew it like the back of my hand. A board propped up by the door advertised daily specials of chili con carne and homemade lasagna.
‘So, this is where you government boys have lunch these days?’
‘Yeah. On our salary, it’s all we can afford. We can’t compete with you rich guys in the private sector.’
‘Right. I still can’t talk you into Indian food, then?’
‘I’d love to, Kiah, but I can’t do spicy any more. I took Maria out for Mexican last week and I was up half the night with heartburn. I must be getting too old.’
‘We have some very nice mild Indian dishes, not spicy at all. You really should try. How is Maria? How’s the family?’
‘They’re great, thanks. Maria is doing some volunteer work with the library now the kids are older, and Raul and Cindy are both future soccer stars already.’
She laughed. ‘That’s great.’
‘Yeah, you should see them. It makes me tired just watching them.’
‘Soccer scholarships on the horizon, you think?’
‘Scholarships? Hey, I’m way beyond that. I’m thinking they may go play for one of those big teams in Europe, you know, Real Madrid or Barcelona. Make some money for their old man.’
We laughed together.
‘How is…?’ I paused. I couldn’t remember his name. I was embarrassed. She must have told me, because I remembered he was an attorney who did banking law or something of the kind for a mid-sized firm in the District, but for the life of me I couldn’t remember.
‘Jordan? Jordan is gone. Jordan is long gone.’
‘Oh, I’m sorry, Kiah…’
‘Don’t be,’ she replied, ‘I’m not.’ She paused for a moment, then smiled. ‘Best thing that ever happened to me – well, almost.’ She paused again. ‘So… what’s good here?’
We both examined the menu again until the moment passed.
‘The soup and salad is always good, same with the baked potatoes. The burger is OK.’
We both settled for soup and salad with iced tea, and returned the menus to the waiter.
‘So, I brought something for you.’
‘Oh?’
I leaned down and picked up the envelope, which I had propped up against the leg of my chair. I handed it to her. I intended the gesture to be casual. I wanted to watch her as she took it, and as she opened it. I didn’t want to ambush her. With other lawyers I might have relished the moment for its own sake, but I thought far too much of Kiah to want to embarrass her. I just wanted to see her reaction. I had overlooked the statute of limitations because the case went so far back in time, until Ellen had poin
ted it out to me as the first and most obvious line of defense. It seemed inconceivable that two of us could have been thrown off track by the same illusion. But could it be? Kiah was a veteran of the Claims Court; a lawyer of her calibre would surely never have filed suit without at least thinking about the limitation period. But if so, she must have worked out some strategy for getting around it, and I couldn’t even imagine what it might be. The limitation period is technical and inflexible, and 200 years is a long time. I was curious about what, if anything, she had come up with.
‘What’s this?’
‘Government’s defence and motion to dismiss based on the statute of limitations.’
It was just the briefest of moments. She hesitated very slightly in the act of unsealing the envelope, but it was enough to tell me what I wanted to know. She had been blinded by the age of the case, just as I had. I felt certain of it. I knew what effect it must have had. She would have been feeling as if someone had just punched her right in the solar plexus. The room would have gone dark for a moment, and then her heart would have started racing. She recovered magnificently.
‘Statute of limitations?’
‘Yeah. You get six years in the Claims Court. You know that. By our calculations, you missed the deadline by more than 200 years.’
She leaned forward in her chair.
‘Have you listed your motion for a hearing?’
I nodded. ‘One week from today. I didn’t see any reason to delay, but if you need an extension to respond, just let me know; I won’t oppose it.’
She nodded. ‘Who’s our judge?’
‘Tomorrow,’ I replied.
I didn’t mean I would tell her tomorrow. Our judge was to be the Honourable Thomas Oliver Morrow, one of the more senior judges of the court. Given his name, the nickname became almost inevitable, and the bar had bestowed it on him just after his appointment some fourteen years before. The allocation of judges is in theory random, though I have always suspected that the clerk occasionally assigns a case on the basis of a feeling about what kind of judge the case needs. I wasn’t sure whether that had happened here or not. I started with the assumption that none of the judges would be too enthusiastic about being asked to order the government to pay out however many billions of dollars Kiah was claiming. On the other hand, there would be those who would relish a brush with history, as I did.
I found it difficult to predict Tomorrow’s reaction to it. He is a good, thoughtful lawyer, and more than capable of rising above the mundane world of insurance claims and government contracts that occupy most of his working week. But as to which way he would go in our case if presented with an arguable question, I felt far less sure. Tomorrow had been a Marine legal officer earlier in life. In one way that might be good for the government. He would be mindful of the need to protect the federal budget from any damage that might impact military spending. Harry and Ellen both thought that was the way he would go, for that reason alone. I wasn’t entirely persuaded. As a former military officer, he might also have some sympathy with the idea that an unsung hero who had saved America’s earliest army deserved proper recognition. And that was an idea Kiah might be very well equipped to sell him.
She nodded again, but made no comment. She smiled.
‘I’m disappointed in you, Dave,’ she said. ‘The statute of limitations? Are you really going to get technical on me just because of 200 years?’
I returned the smile.
‘Yeah, sorry about that. Government work. You know how it is. We have to tick all the boxes.’
I couldn’t leave it at that.
‘Kiah, to tell you truth, I’m really sorry to have to do this. I’m going to miss this case.’
‘You seem very confident that Tomorrow will grant your motion to dismiss.’
‘He has no choice. In the Claims Court, failure to file in time takes away the court’s jurisdiction. You know that as well as I do. What else can he do?’
She was giving nothing away. She waited for some time.
‘So, Dave, tell me: why will you miss the case?’
I laughed out loud.
‘Kiah, are you kidding me? Do you know what I usually do all day?’
‘Of course I do.’
‘Then you’ll understand. This is the most interesting file ever to cross my desk in all my years of practicing law. I actually look forward to getting up in the mornings. The entire office is jealous of me. They all want in on this. Hell, we practically have to keep the file locked up in case somebody steals it.’
‘Well, in that case, why don’t you forget about the statute of limitations? Fight me on the merits. Dive into history with me. Have some fun.’
‘You know what? I really wish I could.’ I meant it. ‘But unfortunately, I have people higher up in the office, not to mention the Attorney General, not to mention the President, who seem to think that getting rid of this as quickly as possible is the way to go.’
We were silent, awkwardly, for a minute or so.
‘Kiah, can I ask you something?’
‘Of course.’
‘You don’t have to answer, but I’m curious. What do your people want out of this? Assume you had a fairy godmother who could wave her magic wand and find you a way around the statute of limitations. I don’t think that’s possible, but just suppose for a moment. What is it you want? I assume you realise that there’s no way the government could pay even a fraction of what you’re asking for?’
‘We’re open to reasonable offers. Perhaps a small state no one would miss? How about Rhode Island?’
We laughed together again.
‘Hey, why not? Tell you what, I’ll speak to the President about it and get back to you. What else?’
‘Dave, the van Eyck family aren’t crazy people. They’re not vindictive. They’re as patriotic as you or me or the next family. They don’t want to bankrupt the country. They just want Jacob to be recognised for the hero he is. He deserves his place in history.’
‘So…?’
‘So the government will erect a statue to Jacob van Eyck in Philadelphia,’ she replied, ‘and the President of the United States will unveil it.’
I must have stared at her for a long time. I could have said nothing, I suppose, but that wasn’t the way I felt. Her words had had an effect on me.
‘You know what, Kiah, if the facts are as you say in your Complaint – if Jacob van Eyck really did what you say he did – I wouldn’t have any problem with that. I truly wouldn’t. But there are some people above me who probably don’t share that view. So first, you’re going to have to find a way to beat the statute of limitations, and I don’t see any way you can do that.’
‘I have a call in to my fairy godmother,’ she smiled.
‘Tell her I said good luck,’ I replied.
26
Kiah Harmon
They say that as you are about to die, your whole life flashes before your eyes. I don’t know about that, but I can tell you that when someone casually points out exactly how you have screwed something up beyond belief, there’s a moment when a complete and detailed sequence of past events and decisions enters your mind, and forces you to see how you screwed up with absolute clarity in the time light takes to cross a synapse in your brain. In fact, you have a sense that this has somehow happened even before whoever is doing this to you even opens their mouth. It’s as if you have a premonition of it, or as if, on some level, you have always known it. You also see, instantaneously and with complete clarity, just how terrible a catastrophe it is. And then your heart stops and your vision blurs for a moment or two, and you aren’t sure you want to eat your lunch any more.
So even before Dave spelled it out for me, I immediately knew that I had forgotten about the statute of limitations. I also knew exactly why I had made a mistake I would never have made in any other case. Jacob’s loans had been made in the
winter of 1777–1778. But it wouldn’t have been clear until much later that the new government had no intention of repaying him; he may not even have finally realised the truth until he was about to die in poverty in 1812. From that point, there could hardly be any doubt that his claim had accrued. But in 1812, there was no court in which to sue the government. In fact, in 1812 the very concept of suing the government would have made no sense at all. The rule of English law, on which our law was based, was that the King could do no wrong. However often the King taxed you unjustly, however much he dispossessed you of your land or chattels without due process of law, however much he locked you up without trial, there was no court to sue him in. You had to find a different remedy, such as bribing some minister or favourite close to the King, or if that didn’t work, starting a revolution or a civil war. If that didn’t work, your best bet was to abjure the realm: pronto.
Our Founding Fathers were determined to end the King’s influence in America, but that didn’t mean they were going to throw the baby out with the bath water. They were way too shrewd for that. If the King had a good idea working for him, they were quite happy to appropriate it, and the King could do no wrong was a really good idea – if you were the King. Now obviously, our thinking had to change over the years. We had become a republican, democratic nation, and in due course the Constitution and the Bill of Rights were bound to replace the tyranny of monarchical rule in the public psyche. But it couldn’t happen overnight. You can’t just expect a people to discard centuries of ingrained historical memory with a wave of the hand. There has to be a lengthy period of adjustment in their social and political discourse. But eventually, the view that governments should be accountable to the people was bound to supersede the view that the King could do whatever he wanted with impunity. So in 1855, Congress created the Claims Court, and for the first time, in certain limited kinds of case, the ‘King’ was made subject to the judgment of a court.
