A Minor Fall Read online

  This book is a work of fiction. Names, characters, places, and incidents are either the product of the author’s imagination or are used fictitiously, and any resemblance to actual persons, living or dead, business establishments, events or locales is entirely coincidental.

  Copyright ©2017 by Price Ainsworth

  All rights reserved. Published in the United States of America. No part of this book may be reproduced or transmitted in any form or by any means, graphic, electronic, or mechanical, including photocopying, recording, taping, or by any information storage or retrieval system, without the permission in writing from the publisher.

  This edition published by SelectBooks, Inc.

  For information address SelectBooks, Inc., New York, New York.

  First Edition

  ISBN 978-1-59079-418-0

  Library of Congress Cataloging-in-Publication Data

  Names: Ainsworth, Price, author.

  Title: A minor fall / Price Ainsworth.

  Description: First edition. | New York: SelectBooks, 2017.

  Identifiers: LCCN 2016040713

  Subjects: LCSH: Personal injury lawyers--Fiction. | Values--Fiction. | Deception--Fiction. | Meaning (Psychology)--Fiction. | Houston (Tex.)--Fiction. | BISAC: FICTION / Legal. | GSAFD: Legal stories.

  Classification: LCC PS3601.I58 M56 2017 | DDC 813/.6--dc23 LC record available at https://lccn.loc.gov/2016040713

  Text design by Pauline Neuwirth, Neuwirth & Associates, Inc.

  10987654321

  For Dad

  Contents

  Part I: What I Always Say . . .

  Chapter 1

  Chapter 2

  Chapter 3

  Chapter 4

  Chapter 5

  Chapter 6

  Chapter 7

  Part II: What I Never Said . . .

  Chapter 8

  Chapter 9

  Chapter 10

  Chapter 11

  Chapter 12

  Chapter 13

  Chapter 14

  Chapter 15

  Chapter 16

  Chapter 17

  Chapter 18

  Chapter 19

  Chapter 20

  Chapter 21

  Part III: All is Said . . .

  Chapter 22

  Chapter 23

  Chapter 24

  Chapter 25

  Chapter 26

  Chapter 27

  Chapter 28

  Acknowledgments

  About the Author

  PART I

  WHAT I ALWAYS SAY . . .

  And it came to pass in an eveningtide, that David arose from off his bed, and walked upon the roof of the King’s house: and from the roof, he saw a woman washing herself; and the woman was very beautiful to look upon.

  —2 SAMUEL 11:2

  1

  I LEARNED TO TRY PERSONAL INJURY LAWSUITS BY WATCHING TIM Sullivan try personal injury lawsuits. I borrowed his phrases. I copied his outlines. I plagiarized his closings as if memorizing lines from a poem or a Shakespearean play back in high school. Relying on stock questions and uniform transitions that I had stolen from a leading partner of the Peters & Sullivan Law Firm gave me time to think about what I was going to say or do next.

  It didn’t take me long to learn that despite the stress associated with travel to unknown venues, unexpected rulings by unfamiliar judges, and unfavorable verdicts from hostile juries, cases would fall into a comfortable pattern at trial. The courtroom, any courtroom, became familiar to me, and I felt at home there. Of course, when the unexpected happened, as it invariably did at trial, I learned to pass it off as inconsequential and to show no emotion in front of the jury other than righteous indignation.

  The experienced trial lawyer becomes so adept at this practiced stoicism that he’s able to convince himself he can fix whatever has just happened. The underdog psyche is characterized by telling yourself some evidence in your briefcase will rebut a point or the last juror on the back row is still on your side, if only because of your innate charm and charisma. You rationalize. You press on. Sure, when you look back on the trial with the passage of time, you can point to the moment when things started to go south; but during the trial, in the heat of the conflict, you convince yourself that you can still win the case. After the trial, over cocktails with Sullivan, I would explain to him what went wrong and how at the time I thought I could fix it. He would always say, “Davy, do not shit thyself.”

  While during the trial you might not let yourself accept the fact that some unexpected testimony had just torpedoed the case, there are instances when you know you are about to win. It is a moment of ecstasy and relief. I was on the verge of one of those moments. I could feel it.

  It was a Friday morning in late February of 2005. I was twenty-nine years old. This was the third day of trial in the new Harris County civil courts building in Houston, Texas. A jury sat dispassionately in olive-green leather chairs in the jury box. Some jurors rocked back and forth. A mottled green, burgundy-flecked, gold-streaked commercial carpet, darkened by the purple shadows of the long counsel tables and empty pews intended for onlookers, dampened any noise in the room. I sat with my client, Jorge Alvarado, at the plaintiff’s table. This, like the rest of the cases I had tried in my short “career,” was a civil suit seeking money damages as compensation for an injury. Defense counsel was Gregory Gath, a towering man twenty years my senior who proudly claimed to have gone to law school “back in Philadelphia.” He had just passed the witness, Mrs. Andrea Alvarado. The judge was a passive old man named Benjamin Elam. He had thick bifocals and a grey smoker’s complexion.

  I was not supposed to win this case. Judge Elam knew it. Mr. Gath knew it. Mr. Sullivan knew it when he assigned the case to me for trial. My client, an ironworker, had stepped backwards through a hole in a warehouse roof. He had fallen eighteen feet onto his neck and head. Knocked unconscious, Jorge suffered a brain injury that had kept him from working since the incident.

  Damages weren’t the problem. In fact, I led off our case with damages testimony.

  Jorge’s supervisor testified about what a hard worker Jorge was. I played the videotaped deposition of one of Jorge’s treating physicians, a psychiatrist. Jorge’s testimony had gone pretty well, despite the fact that I thought he might have smoked a little marijuana, perhaps self-medicating, on his way to the courthouse the day before. His wife Andrea’s testimony had gone very well. She was a licensed vocational nurse. She had maintained consistent employment, some dozen years before the incident and during the two years since, while managing to care for their two small kids and Jorge. Her description of the changes in Jorge’s personality since the fall had been dramatic. Gath, despite his Yankee superiority, had not laid a glove on her.

  Liability was the problem. I had sued the general contractor, a large employer in Houston. They had subcontracted the roof construction job to a group of ironworkers. Jorge, who worked for the subcontractor, had cut the hole in the roof a few days earlier so that he and other construction workers could get on the roof of this warehouse project near the shipping channel. The point of the case was that the general contractor bore some responsibility for not marking the hole in the roof and securing it from accidents, a requirement spelled out in black and white in the Occupational Safety and Health Administration (OSHA) code. That code violation probably wouldn’t be much help in a case involving the person who put the hole there in the first place. Why did he need a warning about the hole he had made? The nature of Jorge’s injury was, however, was such that he was unable to recall cutting the hole, and it was unlikely that any of his fellow ironworkers would offer testimony that would hurt his case. While none of them would lie about who made the hole, they would probably (conveniently) not remember who made the hole, under
standing that the next case in which they were called to testify could well be their own.

  It was clear to me that Gath intended to win his case by cross-examining my OSHA expert witness, a kindly old man who was pacing the hallway outside the courtroom wishing he could go outside and smoke a cigarette. I had to call the expert to prove up the OSHA regulation; but, if I called the expert, Gath would prove that Jorge had most likely cut the very hole in the roof through which he fell.

  I was supposed to lose most of the cases on my docket. I worked for a top-drawer plaintiff’s personal injury law firm in downtown Houston. The firm’s business thrived on the referral of cases from other lawyers. Usually, a referral lawyer with a good case also had one or two not-so-good cases that he wanted to refer . . . that is, get rid of. This cow-and-a-calf approach to getting business led Sullivan and his seven partners to hire eight young attorneys, including me. The firm assigned an associate to each partner.

  Admittedly, I was something of an afterthought, younger than the others, and perhaps more naïve. Still, I wanted what they wanted: the trappings of success, including power, prestige, and possessions. Sullivan and the other partners handled the good cases. The associates handled the others, and from time to time we assisted the partners at trial. Among the associates there was an intense, albeit at that point good-natured, competition to prove ourselves worthy of handling better cases. We were each trying to win a few of these impossible cases, attempting to distinguish ourselves from our peers.

  We kept the associates’ files in one large file room. In the back of the room, the associates had constructed a small shrine to St. Jude, the patron saint of hopeless causes, complete with a small figurine of the saint purchased at a local religious bookstore and votive candles that those of us on the “St. Jude Squad” threatened to light from time to time but never did. Handwritten on a sheet of letterhead taped to the table where the little figurine sat was the prayer, “St. Jude: Come to our assistance that we may receive the consolation and succor of Heaven in all our needs, trials, and sufferings.” Jorge’s file sat in that room for a considerable amount of time.

  Apparently, I had been contemplating my next move at trial for what must have been a considerable amount of time. I awoke from my daydreaming to hear the judge clearing his throat and saying to me across the valley between the raised bench and the counsel tables, “Mr. Jessie. Mr. Jessie. Please call your next witness.” It was a bit of a gamble, but I called the defendant’s corporate representative to the stand. Gath had introduced the young man to the jury panel during jury selection. I had flipped through the discovery materials in my file at that time to determine that he was the safety director for the general contractor. His name was Anderson because his daddy owned the company. He had a civil engineering degree from Texas A&M University. He also had attended a Presbyterian seminary.

  I had five points to make with the witness. There was plenty of time before the next break, so I saved my best point for last. First, I went through the obtuse language in the OSHA code. Yes, the general contractor had a responsibility to see that such holes in the roof were covered, cordoned off, or protected by a railing put around the roof opening. I glanced at the jury, noting that they weren’t particularly impressed. The next three points dealt with specific references to the company’s safety manual, which reiterated the OSHA requirements and discussed the fact that the general contractor had an obligation to see that the subcontractors’ employees abided by the general contractor’s safety directives. Again, there was little interest on the part of the jury, even though one of the references included a “lunchbox safety lecture” that depicted a worker falling backwards through an unguarded hole in a roof.

  The fifth point, however, would hit its mark. “Let’s see if you can agree with me, Mr. Anderson, and my summary of your testimony thus far. As safety director of Anderson Construction, you would agree, wouldn’t you, that Anderson’s obligation under OSHA was to cover the hole, cordon it off, or put in a railing around the opening?”

  “Yes,” he said flatly.

  “The failure to cover the hole was a violation of a federal law designed to protect workers like Mr. Alvarado.”

  “Well, our obligation is principally to our company employees rather than the subcontractor’s employees, but, yes, that is a correct statement.”

  “Thank you. Further, Anderson’s failure to cover the hole, cordon it off or put up a railing was a violation of the concepts stated in your own company’s safety manual, a manual that you helped prepare.”

  “That’s correct.”

  “But, Anderson violated a standard much older than any standard of conduct stated in your policy manual, didn’t it?”

  “I don’t understand what it is you’re asking,” Anderson said, as he shifted his weight in the witness chair and raised his hands with both palms up.

  I ignored him. “Anderson violated a standard that predates the OSHA Act, didn’t it?”

  He hesitated to respond, shrugging his shoulders and shaking his head from side to side indicating that he was not following my question. I doubted that anybody in the courtroom was following my question. I continued with what I thought was just the right amount of righteous indignation. “Anderson violated a standard of conduct older than the laws of the State of Texas, the Constitution of the United States, the Magna Carta, or even the New Testament. Isn’t that right?” While he hesitated again, I turned to the jury, and an older woman on the front row had raised one hand and was waving it in front of her as I had seen women do back in Abilene at the Church of Christ when I was growing up. “You violated Deuteronomy, didn’t you, Mr. Anderson?”

  “I . . . I . . .” he stammered, but I didn’t wait for a reply. I pulled a worn Bible out of a briefcase and turned to a Post-it marked page. The Bible was mine. I’d had it since I was a teenager. The briefcase, actually an old catalogue case with the firm name printed on the side, belonged to Sullivan. I had a nice briefcase that my younger brother had given to me when I had graduated from law school in 2002. But I thought it was too shiny and new to carry to trial, so I always pulled one of Sullivan’s beat up-old catalogue cases out of Sullivan’s closet to take to trial because I thought that it made me look more like a seasoned trial lawyer.

  “Deuteronomy is sometimes referred to as “books of the laws” in the Old Testament, isn’t it, sir?”

  Gath stood up and shouted out, “Objection, Deuteronomy?”

  “You know the Bible, the Old Testament, the Ten Commandments, and all that, Mr. Gath—adultery, murder . . .” I interrupted.

  “I know what the Ten Commandments are, but what do they have to do with . . .” Gath began asking while attempting to button his suit coat around his ample midsection.

  “Your Honor,” I interjected, “there is case law in Texas supporting examination of an adverse witness about recognized standards of conduct. It so happens that there is a standard set forth in a Biblical passage. I can tie this up with a few questions.”

  “Very well, you may proceed, Mr. Jessie,” said Judge Elam, with a hint of a smile revealing his yellow-stained teeth.

  I turned back to face the witness and waited for his answer.

  “That’s right,” Anderson said.

  “And that same book, Deuteronomy, tells us in Chapter 22, Verse 8, that, ‘When thou buildest a new house, then thou shalt make a battlement for thy roof, that thou bring not blood upon thine house, if any man fall from thence,’ doesn’t it?” I asked, looking up from my reading.

  “That’s what it says,” he responded. “Some versions use the word ‘parapet.’”

  “Anderson Construction was building a roof, correct?” Sullivan always said to the associates, “Hit the witness over the head with a flat rock.”

  “Correct.”

  “You know what a battlement or parapet is, don’t you?” I asked, nodding my head up and down.

  “Yes,” he said nodding his head along with me, “it’s a protective railing.”

>   “The failure to put a protective railing around the hole in this warehouse roof was a violation of OSHA regulations, your own company’s policies, and even the dictates of Deuteronomy. Isn’t that right, Mr. Anderson?”

  “I guess so,” he whispered in a barely audible response.

  “Let me check my notes, Your Honor; but I don’t think that I have any more questions for this witness,” I said, and I grabbed a pen and scrawled a note on my legal pad. The note told my expert witness to leave the courthouse at once to avoid a subpoena from Gath. I folded the note, wrote the expert’s name on it, and handed it to Mrs. Alvarado in the front row. I whispered to her to take it to my expert out in the hallway. “No further questions, Your Honor.”

  The old judge smiled his tobacco-stained smile at me and turned to Gath.

  “Your witness, Mr. Gath.”

  “We’ll reserve our questions for our case in chief, Judge,” Gath replied in an overly courteous Philadelphia-lawyer tone that couldn’t conceal his anger with the witness. The defense still had to put on its case, and both sides had to do their closing arguments, but I was going to win. I knew it, and Gath knew it. The only question was, how much would the jury award? I thought that the woman on the front row wouldn’t let the numbers drop too low. I couldn’t wait to tell my wife. I couldn’t wait to regale the St. Jude Squad about my exploits of the afternoon, but first I had to argue the case, and the jury still had to make its rulings.

  Like all beginning lawyers, I thought that the closing argument was the most important part of the case. Usually, it was the most fun part. I had spent several hours the night before putting my thoughts together for my argument, and I had tried to practice my closing that morning while facing the mirror and putting on the red-and-blue striped tie that I intended to wear with my navy blazer and grey slacks.

  I was so distracted by my concern about my appearance that I did not accomplish much by way of rehearsal. I was just average looking—average height, average build, average features. I still looked very young, though I was not as thin as I had been in law school, and I had some difficulty buttoning the collar button on the starched white, buttoned-down oxford shirt. In my mind, I always pictured my short hair, parted on the left, as a deeper, richer color than the dull brown that it actually was. Should I get some of that shampoo with henna in it? My eyes, which looked brown from a distance, were really a mottled green and brown when I looked at them closely in the mirror. I thought that I was okay looking, but I wished that I looked older and more distinguished. My skin was fair, more rosy than ruddy. I shaved every day, but I probably could have gotten away with shaving every other day, and my jaw line was almost square.