A Minor Fall Read online

  The problem with my face, and I had never pointed this out to anyone, including my wife Michelle, was that it looked to me like the right side of my jaw was becoming more prominent than my left. Was my face becoming lopsided? Did anybody else have this problem? Maybe that was why all those old paintings of retired judges at the courthouse showed the men leaning unnaturally on a fist at their chin. If the left side of my brain, the logical side, controlled the right side of my body, maybe I was becoming deformed because I was not paying enough attention to the creative right side of my brain. Maybe I should finish that poem I was always starting. Maybe I should dust off a draft of one of those short stories I wrote in college. I kept a copy of one, the best one I thought, at the bottom of my underwear drawer and sometimes would take it out and read it. It seemed syrupy and innocent, but maybe with a few changes . . . I used to think I would be a writer or a poet or something creative.

  One of the reasons I had wanted to become a trial lawyer was the storytelling part of the job. The first lines of my unfinished poem weren’t bad either, I thought, but so far there were only two lines, and, well, the first line was borrowed (that is, plagiarized). Rather than working on my closing, I stared at myself in the mirror, turned my chin from side to side, and vowed to start chewing my food on the left side only so that I would build up my left jaw line. And I might work on that poem when I got the chance.

  The Alvarado case was the first time I recognized that jurors usually make up their minds before the closing arguments take place. The arguments just reinforce the jurors’ positions and give them ammunition in their deliberations to confront the jurors who disagree with them. Gath’s closing argument concentrated on damages. He reminded the jury that the fall did not cause any broken bones. He argued that the fall should be considered minor, not because of the distance the man fell, but because of the minimal objective impact it had on him.

  Because I thought I was winning on liability, I also focused my argument on damages. I talked to the jury about the insidious nature of closed head injuries: the personality changes, the loss of memory, the loss of focus and the inability to maintain attention, the frustration with being unable to do the simple tasks that you were able to do before the injury, the embarrassment of not being able to provide for your family, the humiliation of having your spouse care for you like a child, the likelihood of a subsequent accident, and the ever-present fear of having another epileptic seizure in front of your kids. I tried to explain to the jury that while Mr. Alvarado did not have broken bones or bleeding cuts, he was a broken man, and his injured body part, his brain, was responsible for performing the most important functions of life. I did not discuss my theory as to how one could tell by looking at him which side of Jorge’s brain was more damaged than the other.

  The jury paid attention to what I was saying, but the only part of my argument that elicited a response from the jury was the part I plagiarized from Sullivan. I think he stole it from Scotty Baldwin, a legendary trial lawyer in East Texas who was a generation older than Sullivan. The argument goes something like this:

  Ladies and gentlemen: you’ve been a good jury. You’ve paid attention to the evidence and I’m sure that you’ve been diligent in following the court’s instructions. Judge Elam has instructed you each evening not to discuss the case with anyone, including your spouse. Now, I’m looking at this question on the verdict form that asks you what amount of money damages should be awarded to Mrs. Alvarado for her loss of “consortium,” that is “the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love, and felicity necessary to a successful marriage.” I won’t suggest to you what amount of money you ought to put in that blank, but I will tell you that, after you return your verdict, the judge is going to lift the restriction regarding talking to your spouse. You need to put a number in here of which you will be proud.

  A couple of the jurors grinned, and the lady in the front row laughed.

  2

  I GOT TO BRENNAN’S ABOUT 7:00 P.M., AFTER THE JURY HAD RETURNED its verdict thirty minutes earlier. Brennan’s was about halfway between the courthouse and my home. It was an upscale restaurant with incredible Creole entrees, impeccable service, and intimate tables for dining. It was the setting for the lunch scene in the movie Terms of Endearment. It was owned by a member of the family that owns Commander’s Palace, Mr. B’s Bistro, and other restaurants in New Orleans. We ate there sometimes. But the main reason we went there was to meet in the bar and spill out onto the brick-covered patio (which we referred to as the “brickyard”) to smoke cigars, drink scotch, and find out what was going on in the Houston legal community.

  I handed the valet the keys to my car, nodded to the tuxedoed maitre’d, and cruised down the short hallway to the bar, stopping only to sample a praline from the platter that always sat on the buffet in the hallway. I was walking on air. I could see two of the associates from my firm in one corner with other lawyers our age, but before I could say anything, Mr. Whiskers, the bartender, shouted, “Davy Jessie, the Duke of Deuteronomy.”

  Everyone in the bar laughed, and a few even clapped. I don’t know how he already knew about the testimony or the verdict, but Mr. Whiskers, so-nicknamed for his resplendent Mr. French-like beard, knew a lot of things. He could tell you the over and under on the Bucks/Bobcats game. He could take your bet on anything ranging from sporting events to the next day’s Dow to the outcome of local trials. He could tell you what every state representative from Harris County liked to drink. The rumor was that Jack Nicholson still called him from time to time.

  I stopped at the bar, and he handed me a Famous Grouse on ice. He poured himself a shot, and we clinked our glasses together. “Boy, I’d hate to be your wife tonight,” he said, laughing and tucking his thumbs into the armholes of the colorful silk vest that stretched over his round belly. I nodded for him to top off my glass, and after he did, I eased over to my group in the corner.

  “Two hundred and fifty thousand dollars on that dog? That case wasn’t worth that amount before tort reform.” Eli said, as I pulled an unoccupied chair over from a neighboring table.

  “That’s what I call ‘consolation and succor,’” Rod said.

  “Compensation and succor,” Eli said laughing.

  “Compensation that doesn’t succor for once,” Rod added.

  “I argued for more,” I said. “They might have given me more, if I’d argued for less. They gave the wife almost as much for consortium as they gave the husband for a closed head injury.”

  “Don’t second-guess it, man. That’s a home-fucking-run,” Eli replied. He had been hired by the firm two years before I had. He already had a couple of substantial verdicts. That, and because he was assigned to Peters, the senior-most partner in the firm, made Eli the senior member of our group. The other associate from our firm who was at the table was Rod Day. He was probably my best friend in town, and he was smiling from ear to ear, genuinely excited for me.

  “Hey, didn’t I take the psychiatrist’s deposition in that case?” Eli asked, and I nodded. I could tell that Eli was calculating in his head what part of the potential fee would be apportioned to him in his annual “fee column,” the report card the partners used to grade the associates’ efforts.

  Another young lawyer at the table, a grey-suited, prematurely balding young man employed at one of the large defense firms in town, asked, “Where did you ever get that Deuteronomy stuff?”

  “Sullivan,” Rod said, before I could. He knew I was assigned to Sullivan. “He always says it in speeches against tort reform, claiming that even the Old Testament sanctified the tort system. Still,” he said, turning to me and raising his beer glass, “it was pure genius to remember to use it in a fall-from-a-roof case.”

  “I got lucky. The safety director had been to seminary.”

  “Have you talked to Michelle?” Rod asked.

  “I called her from the car. She’s on her
way over,” I said.

  We sat in the bar for about an hour, with different lawyers sitting down and replacing others as they left. Each replacement required a retelling of that day’s trial story. Several people asked about Gath’s reaction to the verdict. Most of us figured it served him right. No doubt, he had signed on to the case telling the insurance company for the general contractor that he expected either Peters or Sullivan to try the case. By the time Michelle got there, you’d have thought I’d won Pennzoil v. Texaco.

  I didn’t see her come in, but I felt her put her arm around me, and I stood up to give her a kiss. She was beaming with pride. Red-haired and green-eyed, it was her engaging smile that I had first noticed when her brother Jonathan introduced us the third day of law school in the fall of 1999 in the “Keeton Casino,” the lunchroom at The University of Texas School of Law. Michelle’s smile was perfect, no doubt the result of expensive, cosmetic dentistry and early orthodontics. Like me, she had worn her navy blazer that day, but she had matched hers with a light wool flannel, black watch skirt and a crisp, light-blue pinpoint oxford. She often wore dark green colors like the hunter-green stripe in the black watch because they set off her hair and made her eyes sparkle. The brass buttons on the blazer shined in the bar light like the gold of the small, tasteful Rolex watch that her parents had given her for law school graduation.

  After we sat down, Mr. Whiskers brought over a bottle of champagne and told us that Sullivan had called it in with his congratulations. I wondered even at the time if Sullivan had really ordered the champagne. Sullivan had spent far more time in this bar than I ever would, and I’m sure Mr. Whiskers would have had carte blanche to put the bottle on Sullivan’s tab. I always tried to be careful about what I said or did at Brennan’s. I don’t know if Mr. Whiskers still talked to Jack Nicholson or not, but I know that he talked to Sullivan. After a glass of champagne, Michelle escorted me out of the place. It took us several minutes to get to the front door because Michelle had to stop and talk to several of the patrons on our way out. Whiskers gave her a hug and called her “Sugar.” We left my car, and Michelle said she would drive. I realized I had not eaten anything all day. “I’m starving,” I said.

  “We could stop and eat, if you want. I was thinking we might go home and start working on the next little Clarence Darrow,” Michelle said.

  I smiled. “I’ll just get something at the house.”

  Michelle hadn’t liked law school, and she disliked working for a large, downtown Houston firm even more. She liked the people she worked with well enough. It was the business part of the practice that she didn’t like. She wanted to have a child. Though we had never really talked about it, I assumed that the plan was that she would stop working at that point. We had put off getting married until after I had finished a federal clerkship and taken a job. We had put off having a child until our careers were on track. Now did seem like a good time. “Did all the associates in your firm show up tonight?” she asked as we stepped outside onto the red brick steps that went up to the front door at Brennan’s. A parking valet pulled up in Michelle’s car and I fished a couple of dollars out of the breast pocket of my blazer when he came around and opened the passenger door for me.

  “Only Eli and Rod,” I said as we fastened our seatbelts and Michelle put the car into drive. “It’s Friday night, after all. I’m sure Ozzie (our nickname for Franklin Ozem, III) had something to do. The brickyard really isn’t his scene. I don’t know where the others were.”

  “What did Eli say about the case?” she asked. When I told her about the home-fucking-run comment, she kissed me and whispered, “Well, let’s run home and fuck.” She had the ability (I don’t know if it was learned or inherited) to turn a phrase, and it was usually funny, dirty, or sexy or some combination of all three. I will never forget the first time I saw her naked. While the hair on her head was a luxurious, deep red, her pubic hair was a bright, orange-flame color. “Lots of women have Dorito chips,” she said, “But how many have nacho cheese flavor? Makes you just want to lick your fingers, doesn’t it?” And of course, involuntarily, I put my fingers to my lips.

  Michelle’s small Lexus sedan pulled away from the curb. “I wonder why Lawyer Sullivan didn’t show up this evening?” she asked, as she turned onto Smith Street and eased onto the Southwest Freeway. I hadn’t said anything, but that question had crossed my mind as well. I had wanted Sullivan to hear the others toasting my success at trial, but there would be plenty of time on Monday morning to tell the story at the office at least once more.

  3

  MICHELLE AND I MADE LOVE before we ever got to our bedroom. That was not unusual for us. We probably had more sex on a gold damask sofa that she had back in law school than at any other location. She explained the first time we sat on the couch that the fabric was an acanthus leaf pattern—I didn’t recall ever having seen an acanthus plant growing wild in Abilene or Lubbock. We had been with each other long enough to know what the other liked and wanted during sex, and we enjoyed being with each other. I couldn’t remember when we had last had sex, so we were obviously overdue.

  It might have been the smile she first gave me that first brought us together, but it was something else that kept us together and resulted in our getting married. I loved her almost as much as she loved me. Somehow, she seemed more capable of love. She was always open and honest and somewhat vulnerable. She was passionate, almost to the point of being volatile. If she was happy, you knew it. If she was upset, you knew it. Her wide, pretty, expressive face always gave you a clear indication of what she was thinking—a trait trial lawyers and card players practice to eliminate. She made no pretense of wanting to be a trial lawyer. Her background may have equipped her to appreciate the skills required to be effective at the gamesmanship, but she wasn’t about winning or losing.

  At fifty, she might struggle with various diets and exercise regimens, but at twenty-nine, Michelle exuded a voluptuous ripeness that was intoxicating and virtually irresistible. We used to laugh at the number of times she could go to the liquor store and come away with what the proprietor called his “pretty-girl discount.” I’m sure she never paid for a drink in a bar, and I doubt that she ever received a traffic citation that wasn’t reduced to a warning by the time the officer completed the paperwork.

  That is not to say that she was flirtatious or acted in any way that would upset other women. She made friends easily. It was because of her warmth. Her outgoing manner, broad smile, and willing embrace drew you in to her. But, from the first time I touched her, I sensed that her skin was slightly warmer to the touch than my skin, or anybody else’s, for that matter. If 98.6 degrees Fahrenheit is normal body temperature, Michelle’s never dipped below 99 degrees. It made you want to hold her, to caress her, to make love to her. Michelle was the personification of that feeling you get just when the sun goes down on a hot, humid July day in Houston and the fecund air feels rich, fertile, and full of possibilities.

  If there were problems in our marriage, and by all outward appearances, there were none, they probably stemmed from our mutual ability to avoid conflicts with each other. I’m sure that is a trait that Michelle learned from her family having to deal with her father. From time to time, Michelle’s mother must have wondered what Michelle’s father was up to, but she never discussed her concerns directly with her kids. I spent my time, both at the office and at home, trying to convince those around me that I was confident and self-assured. Michelle and I might get irritated with each other occasionally, but we never really argued about anything. I could always tell when she was upset about something, but that doesn’t mean that we ever addressed what the underlying cause might have been.

  Obviously our family and my work situation were going to be a problem at some point, but we never discussed it. At twenty-nine, Michelle was approaching a decision point where she would have to decide if she was going to choose a partnership track or a mommy track at the firm where she worked. An unspoken animosity festered between the
female lawyers in her firm that had chosen one track over the other. I could see the women in the firm attempting to recruit Michelle to each side. I thought that I already knew which option she would pick, but she had not said anything officially or to her employers. It appeared to me that most of the women who picked the mommy track eventually left the firm. I don’t know if there just wasn’t much call for part-time lawyers or if the requirements of looking after kids made it impossible to work as a lawyer even on a part-time basis. I knew that Michelle wouldn’t leave the office until she finished whatever had been assigned to her, and I didn’t see how she would be able to balance the need for perfection at work with the need to be at home with kids.

  I assumed that, whichever track Michelle ultimately chose, it was incumbent upon me to go to work and make money. She might have been faced with a difficult choice, but I didn’t see myself as having any. Watching Tim Sullivan made it clear to me that if I was going to be a successful trial lawyer, there were going to be many occasions when I would not be available for my family, with or without kids.

  Most non-lawyers think that lawyers create conflicts. Sullivan always said that a small town will support two lawyers before it will support one. But the truth is that lawyers are hired to resolve disputes, not create them. Perhaps it was a bit ironic that two people in the conflict resolution business chose to avoid conflicts in their personal lives. Our friends, most of whom were colleagues or people Michelle knew from growing up in Houston, saw us as a model couple, and we spent considerable effort in trying to maintain that image. We lived in the right house, drove the right cars, wore the right clothes, and even attended the right church. Lately, the notion that it was time for us to have a baby consumed our marriage. We talked about that a lot, but we never talked about what would happen after that.