Frolic of His Own (26 page)

MR. BASIE: I only ask that his condition be taken into account in hopes that the procedure will not be unduly prolonged.

MR. MADHAR PAI: I assure you that we have no such intention consistent, of course, with a thorough airing of the situation for
which he alone is responsible in bringing suit on the . . .

MR. BASIE: Excuse me. To call him solely responsible for creating the situation in which we find ourselves is a gross misstatement of the circumstances and I cannot let it pass unchallenged.

MR. MADHAR PAI: Are you quite finished Mr. Basie?

MR. BASIE: For the moment.

MR. MADHAR PAI: May I make clear at the outset that I do not like to be interrupted, and this is the second time it has happened in as many minutes. If you have an objection please make it for the record.

MR. BASIE: I am making it for the record.

MR. MADHAR PAI: What is your objection?

MR. BASIE: What makes you say I wasn't making it for the record?

MR. MADHAR PAI: I thought you were making a statement. What is the basis for your objection?

MR. BASIE: I am starting to state my objection.

MR. MADHAR PAI: And what is your objection? If you have an objection, object. You want to make statements and testify.

MR. BASIE: I have only made comments on your statement.

MR. MADHAR PAI: I am trying to go smoothly ahead so that this session will not be unduly prolonged.

MR. BASIE: Are you asking me to give up the plaintiff's rights?

MR. MADHAR PAI: We're not here to fight over the Fifth Amendment old sport, we are trying to conduct a nice quiet deposition. As soon as you feel there's something that might get us a little nearer the truth of the matter, we seem to . . .

MR. BASIE: I don't agree with that.

MR. MADHAR PAI: I withdraw it.

MR. BASIE: Thank you.

MR. MADHAR PAI: Now may I proceed to examine the witness?

MR. BASIE: He is clearly at your disposal.

EXAMINATION BY MR. MADHAR PAI:

Q Will you please first state your name and the occupation from which you derive the bulk of your income.

A Oscar . . .

MR. BASIE: I must direct him not to answer the question as it has been put.

MR. MADHAR PAI: If you have an objection will you please . . .

MR. BASIE: It's an objection as to form. There are two questions.

MR. MADHAR PAI: To which question are you referring.

MR. BASIE: The question that has just been asked.

MR. MADHAR PAI: But you say there are two questions, and I'm asking which one you are referring to.

MR. BASIE: And I am directing your attention to the question that has just been asked.

MR. MADHAR PAI: Let me understand you. You are objecting as to form.

MR. BASIE: I am objecting as to form regarding the overall question which comprises two questions, and I am objecting to the second of these two as being improper.

MR. MADHAR PAI: I'm afraid you are confusing the record by entering a second objection before your first one has been resolved. Please read back the question.

(Record read.)

MR. MADHAR PAI: Now perhaps your first objection will be met by restricting the
question to a simple statement of the witness's name, Mr. Basie? Will that please you?

MR. BASIE: Delighted.

Q Will you please state your name.

A Oscar L. Crease.

MR. MADHAR PAI: Now I believe your second objection had to do with impropriety?

MR. BASIE: It carried the misleading implication that the witness might have a job on which he is dependent for his livelihood.

MR. MADHAR PAI: You would not want it thought that he must work for a living, is that what you object to?

MR. BASIE: That is not the question.

MR. MADHAR PAI: Then what is the question. Do you think we can move this along?

MR. BASIE: Are you asking me to deprive my client of the protection of the facts?

MR. MADHAR PAI: If you have an objection, please make it for the record.

MR. BASIE: I want the record to show that I have every clear intention of making it for the record. It is to a simple question of fact, and I want the questions to be proper. The question as stated is loaded.

MR. MADHAR PAI: In implying that, like most of mankind, he must work for a living?

MR. BASIE: Now come on Jerry, I'm not going to be drawn into a discussion of Adam's curse here. The question as it stands makes the statement that his occupation provides the bulk of his income.

MR. MADHAR PAI: And you object to that as to form?

MR. BASIE: I object to it as improper and irrelevant at this time.

MR. MADHAR PAI: All right, we can pursue its relevance later if it appears to be material. Let's restate the question.

Q If you are presently employed will you please
state your position, and how long you have held it.

A I have been a lecturer in American history at the community college at Lotusville for twelve years.

Q And before that?

A Before that?

Q The position you held before that.

A I pursued my own interests.

Q In your present position have you what might be called a specialty? If so will you please name it?

A The period of the American Civil War.

Q And was that among the interests you pursued before becoming a lecturer at the college here?

A It was.

Q Do you have tenure in your present position?

A I do not.

Q And this is your sole profession?

A I'd simply call it a job, you could say it's really nearer a hobby.

Q But you have no other profession. You're not a playwright for example, a professional playwright?

A I'm not clear what you mean by professional.

Q I think it is generally understood to mean someone who is paid for his services.

A A baseball player.

Q Professional sports yes, that's a good example.

MR. BASIE: You mean as opposed to amateur sports?

MR. MADHAR PAI: I am asking the questions Mr. Basie. If you have an objection please make it for the record.

MR. BASIE: I am making it for the record.

MR. MADHAR PAI: Well? What is your objection, is it as to form?

MR. BASIE: It is as to form, it was not a question but a leading observation and I want a proper question where the meaning is clear, whether you mean professional sports as opposed to amateur sports.

MR. MADHAR PAI: I think that is an assumption the witness is capable of making, that he can make that distinction.

MR. BASIE: Then it's incorrect, the witness is being led. If we mean distinction we should say distinction, if you mean professional sports as distinguished from amateur sports, that's one thing. If you mean as opposed to that's something else.

MR. MADHAR PAI: If you want to turn this whole thing into a tautological exercise, be my guest.

MR. BASIE: I want the questions to be proper and I will continue to object when I find them otherwise. Opposing professional to amateur invites an invidious comparison to the ordinary observer.

MR. MADHAR PAI: Are you implying that there is something pejorative in the use of the word amateur?

MR. BASIE: In this context that's exactly what I'm saying.

MR. MADHAR PAI: And that forms the basis for your objection?

MR. BASIE: Exactly. May I ask you . . .

MR. MADHAR PAI: I'm not here to be questioned.

MR. BASIE: I would just like your question cleared up.

MR. MADHAR PAI: It's a new question, Mr. Basie.

MR. BASIE: That was the other question. I said I object to this one too.

MR. MADHAR PAI: You are still having trouble with the word amateur.

MR. BASIE: I want to have it clearly defined. Without all the baggage.

MR. MADHAR PAI: In the sense of a dilettante, is that what you object to? Superficial, elitist . . .

MR. BASIE: Where it's not done just for payment.

MR. MADHAR PAI: Fine. We can proceed.

Q Since you do not derive your income from playwriting, would it be fair to describe you as an amateur playwright?

A If that is your characterization, I . . .

Q I want to clarify something with respect to . . .

MR. BASIE: I have to object. To question the witness and not allow him to respond, to finish his answer, that's entirely unprofessional.

MR. MADHAR PAI: I withdraw it. Since his answer was not responsive I'm just trying to move things along here and . . .

MR. BASIE: I want the record to show my objection to this flagrant abuse of the witness.

MR. MADHAR PAI: I withdrew it, Mr. Basie. Now in the interests of moving this along without unduly . . .

MR. BASIE: You withdrew it by calling his answer unresponsive when you hadn't allowed him to finish it, how do you know whether it would have been responsive or not.

MR. MADHAR PAI: Maybe we should adjourn this and do it elsewhere.

MR. BASIE: Why.

MR. MADHAR PAI: Because that way we could proceed without these constant interruptions, or at least under the supervision of a Federal magistrate. There's a contentious element creeping in here that I don't want to interrupt the sworn testimony of the plaintiff.

MR. BASIE: I think the record will be perfectly clear where the plaintiff's sworn testimony is being interrupted in an entirely unprofessional manner that I'm entitled to object to and I do object.

MR. MADHAR PAI: All right.

MR. BASIE: I don't mind if you ask questions on this subject matter. I am merely . . .

MR. MADHAR PAI: I am gratified.

MR. BASIE: I am merely asking that you make these questions in the proper form.

MR. MADHAR PAI: Fine. We can proceed.

(Document marked Defendants' Exhibit 1 for identification as of this date.)

Q The play on which plaintiff brings this action for infringement is titled Once at Antietam. Is this your own title, or is it meant to somehow conjure up something?

MR. BASIE: The witness does not need to answer that or even comment since the title's not protected by copyright in any case.

MR. MADHAR PAI: Are you objecting?

MR. BASIE: I want the record to show I am objecting on a matter of substantive law here.

MR. MADHAR PAI: I am not questioning the copyright one way or the other. I think the question will stand. Read it back.

(Record read.)

A In a way possibly, yes. It echoes a line in Othello.

Q For the record, you are referring to the play Othello by William Shakespeare?

A The Tragedy of Othello, the Moor of Venice, by William Shakespeare, yes.

Q Will you identify the line?

A In his death scene at the end, yes. ‘And say besides, that in Aleppo once, where a malignant and a turban'd Turk Beat a Venetian and traduc'd the state, I took by the throat the circumcised dog, and smote him thus.' And he stabs himself.

Q And the title Once at Antietam is intended to evoke reverberations of that dramatic moment at Aleppo seized upon by Shakespeare in his memorable poetic rendition?

A Well it, yes.

Q To evoke these reverberations in a wide audience, would you say? Or a potentially wide audience?

A To anyone who's read Shakespeare.

Q Would you characterize that as a general audience? Or a rather narrow one?

A As the theatre going audience.

Q As a relatively narrow audience then, a traditionally elite audience? In other words you wouldn't have expected a mass audience to make this Shakespeare connection?

A Well, you made it didn't you?

Q I ask the questions. I am asking the questions and I want to move this along. As an amateur playwright, is that a fair assumption?

MR. BASIE: Excuse me, but I can't let the witness answer that. We're not making assumptions here.

MR. MADHAR PAI: Are you making an objection?

MR. BASIE: I am entitled to object to the form of questions, as you know, and I object as to form, yes. To any question based on an assumption, whatever it is that's being assumed.

MR. MADHAR PAI: I am assuming that one would not expect a mass audience to make an esoteric connection with a phrase from Shakespeare.

MR. BASIE: That's not the question that was asked.

MR. MADHAR PAI: My patience is wearing quite thin, Mr. Basie. I did not state that that was the question, I was repeating the assumption that formed the basis for your objection.

MR. BASIE: My objection is based on your assumption characterizing the witness as an amateur. It's disparaging and I direct him not to answer.

MR. MADHAR PAI: I thought we had cleared that up. Read it back, please.

(Record read.)

Q If we've defined services that are done for pay as those of a professional, can we distinguish those done without pay as the efforts of the amateur?

A Broadly speaking, but . . .

MR. MADHAR PAI: You have an objection, Mr. Basie?

MR. BASIE: The form is improper, the form of the question employing the phrase ‘the efforts of the amateur,' the word ‘efforts.' It's disparaging.

MR. MADHAR PAI: It's a perfectly good English word.

MR. BASIE: In this context, the way it's used here it implies failure, just reeks of it. You've got your professional there being paid for these services where the amateur's efforts aren't making him a dime. It's pejorative on two counts.

MR. MADHAR PAI: You seem bent on turning this procedure into some sort of Chinese water torture. Can we move on?

MR. BASIE: I thought we'd cleared all this up. This word amateur starts out to mean doing something for the love of it, that's the root, doing it for its own sake without a price on it. Now these days where there's a price on everything, what's not worth getting paid for's not worth doing. You say something's amateurish means it's a real halfassed job. You want the best you hire a professional. A real pro, as they say.

MR. MADHAR PAI: So that accusing someone of unprofessional conduct is pretty damning.

MR. BASIE: Where you have money setting the standard for performance it's the worst.