Unsaid: A Novel (16 page)

“It was at a point when we believed the disease was going to mean surgery, and recovery. I thought the garden would be a good place for her to sit and heal. Both of us, I guess. We got that wrong. I never called the architect to cancel the plans after… you know…” David’s voice drifts off.

“I’m so sorry. This would have been beautiful to see.”

Skippy enters the kitchen, his little nails tapping on the floor. Clifford follows a step behind. Both Clifford and the dog give big yawns.

“Clifford, this is Mr. Colden.”

David bends down slightly to get into Clifford’s field of vision. He speaks slowly. “Nice to meet you. How was your day?”

Clifford looks first to his mother, who encourages him. “It’s okay,” she says.

Clifford’s eyes focus at a spot above David’s head and he smiles. “I like your home,” he says in his unyielding monotone. “I like all the animals, but I like Skippy most of all. He is a good dog.”

“Yes, he is, and you’re welcome here anytime.”

Skippy trots back out of the kitchen, and Clifford follows him.

“Can I get you something to eat or anything before we go?” Sally asks.

“Looks like Skippy’s made a new pal,” David says.

“You’ve no idea. They’ve been inseparable all day.”

“Obviously it’s up to you,” David says, “but it seems kind of silly to go home tonight just to turn around and come back in the morning. You two can have the spare bedroom and I’m sure I’ve got extra toothbrushes and things.”

“I don’t want to impose.”

I only now get how desperate David is to avoid being alone in the house. “No imposition at all,” he says. “I need to be up and out before you get up anyway. C’mon, I’ll show you where everything is.” David leads Sally out of the kitchen and back toward the den and the spare bedroom.

“That certainly makes sense, but I don’t know if Clifford will be okay with it. He’s got his routines and, well…” David and Sally stop at the door to the den. Clifford is curled up on the couch under a throw rug with Skippy resting between his legs. Bernie and Chip sleep on the floor next to the couch, and a few of the cats sleep precariously balanced (as only cats can do) on the arms of the sofa.

“Like I said,” Sally says, finally allowing herself to feel a small measure of relief, “I’m sure Cliff will be fine staying here.”

Four hours later, when the house is in the deepest part of sleep, David rises from our bed, throws on a bathrobe, and returns to the kitchen. He pours himself a snifter of cognac, picks up the blueprints, and brings them and the liquor to the dining room. Skippy waits for him there.

“Why are you awake?” David asks. I know the answer, even though David does not. Skippy wakes up every night at this time and wanders the house looking for me. Tonight is no different, except perhaps that his apparent sense of urgency is diminished. He seems more tired or, perhaps, resigned.

David sits down at the table, pats his lap, and Skippy jumps up. The three of us sit in the dining room poring over the details of the blueprints until the cognac is gone and the first sliver of light appears in the eastern sky.

T
he following day, David, Chris, and Dan appear in the courtroom of Judge Arnold Allerton to explain why they should not be sanctioned.

Allerton is a federal judge and that means, as David once explained to me, he is appointed for life. I know from David that Allerton was a Yale Law School classmate of Max and that because of some incident from those days, Allerton is barely civil to Max to this day. It is for this reason and one other that David always tries to step lightly in Allerton’s courtroom. The other reason is that Allerton has absolutely no patience for the gamesmanship that is the bread and butter of all litigation. He is one of the few judges whom David both fears and respects.

Across the aisle from David and his team sit two particularly smug-looking lawyers. The older one looks like a woodchuck I raised in vet school and this makes his scowl difficult to take seriously. No one shook hands when they entered the courtroom and they will not do so when they leave today. There is no pretense of
cordiality. Instead, all the lawyers wait impatiently for Allerton to enter the room and take the bench.

Within moments, there are two loud raps on a closed door behind the dais. The door flies open and a short rotund woman in her mid-forties yells, “All rise!” The lawyers are instantly on their feet. Judge Allerton enters holding a stack of documents and drops into his throne-like chair with a huff.

It might be the fact that he is on a raised dais or that he is covered in a black robe, but Allerton seems larger than everyone else in the courtroom. He is completely bald, which makes him look ageless and somehow angry.

“Be seated,” the court clerk calls. The attorneys again follow the instruction.

Allerton peers down from the bench. “Someone want to tell me what this is about?”

Both David and the woodchuck are instantly on their feet like racehorses jockeying for position out of the gate. Allerton rolls his eyes. “Okay, children, let me hear from the movant first.”

The woodchuck begins a Dickensian tale of woe about his client’s repeated attempts to discover critical information from and about David’s key expert who is expected to testify at trial only a few short weeks away and about David’s delays and, finally, the coup de grâce, David’s failure to turn over a set of documents “absolutely essential” to the trial.

David jumps up to respond but Allerton shoots him down. “Not yet, Mr. Colden. Precisely how much delay was there, Mr. Jared?” Allerton questions David’s adversary.

“Excuse me, Your Honor?” Jared asks.

“You said that Mr. Colden delayed in getting you documents. Quantify that for me. Weeks? Months?”

“Well the exact time… I… ur… I don’t really think…” Jared’s colleague hands him a note and he quickly reads it. “Four days, Your Honor.”

“And at that time Mr. Colden had requested an extension, had he not?”

“I believe so, Your Honor, but—”

“You ‘believe so,’ Mr. Jared? ‘I believe’ is for the tooth fairy and Santa Claus. We’re here because of your sanctions motion. That’s a very serious motion. I think you’d better do a damn sight more than ‘I believe.’ Did he request an extension or not?”

“Yes, he did,” Jared answers. Jared clearly didn’t expect things to go this way, and he isn’t happy about it.

“And did Mr. Colden tell you why he wanted the extension?”

“I’m not sure.”

“Oh, you can do better than that, Mr. Jared. Do you know or not?” The word
not
echoes in the otherwise quiet courtroom.

Jared’s colleague hands him another note. Jared scans the note quickly. “I believe—”

“Pardon me?” Allerton snaps.

“I mean, yes, we know he stated that he needed more time because his wife had died… unfortunately.” Jared then turns to David. “My condolences, of course, for your loss.” The woodchuck’s offer of sympathy, made for the first time during a proceeding to sanction my husband, is almost comical.

Allerton apparently doesn’t see the humor. “You are correct in your facts, Mr. Jared. Mr. Colden’s wife died following a long and cruel illness. And so he asked you for a brief extension and you said what?”

“Mr. Colden is part of a very large firm, Your Honor. Surely there are other capable lawyers who could have—”

“I asked you about your response to him, sir. Did you understand my question?”

After several seconds of hesitation, Jared answers weakly, “We declined the request.”

“Why did you do that, sir?”

“The schedule was—”

“I see. And then there’s the matter of the documents you say Mr. Colden is withholding, correct?” Allerton asks as he picks up a document from the pile in front of him. “What document in particular was missing?”

Jared slides into a well-rehearsed response. “Mr. Colden’s office would be—”

“Are you aware of the existence of a specific document that has been improperly withheld or not?” The frustration is dangerously clear in Allerton’s voice.

“I think… Not a specific document, no,” Jared finally concedes.

“The reason why I ask, Mr. Jared, is because I have an affidavit here from a Ms. Jerome that includes her sworn statement that they have reviewed everything again and double-checked with the expert and—get this—there are no other documents. Period.” Allerton flips through the pages of Chris’s sworn statement. “Have you seen this affidavit, Mr. Jared?”

Jared looks at his younger colleague, who nods slightly. “Yes, we’ve seen it,” Jared admits.

“Well then, is Ms. Jerome just lying? Are you accusing her of perjury?”

“I believe she is mistaken,” Jared answers.

Allerton makes a show of looking through the papers on his desk. “Well then, where’s your answering affidavit? Where’s the document where you lay out your proofs why you believe she’s
wrong—or worse, has committed perjury? I can assure you, if you have proof that Ms. Jerome has lied to this court, then I will not rest until she’s disbarred. I’ve done it before. I will not abide liars in my courtroom. Just give me the proof.”

“We just received the affidavit last night. We have not had time—”

“According to the fax stamp on the document, you got the affidavit yesterday at three twenty-two
PM
. That’s not night.”

“I was out of the office at another engagement when it came in and I didn’t see—”

“But you’re part of a very large firm, Mr. Jared,” Allerton answers. “Surely there are other capable lawyers who could have drafted some response.” Even Jared knows enough at this point to keep his mouth shut. “Now, I also have before me Mr. Colden’s application to adjourn the trial date in this matter.”

“We oppose that application because—”

That’s as far as Jared gets before Allerton snarls, “I think I’ve heard enough from you today, sir.” Jared sits down reluctantly. “It seems to me, Mr. Jared, that with all of your ‘I believes’ and ‘I thinks’ you might be well served with some additional time to learn the ins and outs of your case. I wouldn’t want to deprive you of the opportunity to present every learned argument to the court.”

The woodchuck pops up again, and I’m reminded of the arcade game Whac-A-Mole. “But Your Honor, the trial date is set. We have witnesses flying in from all over the world. My client expects—”

Allerton shoots Jared a chilling smile. “I understand,” he says. And then—whack! “Perhaps you’d like to bring your client into my courtroom, Mr. Jared. I’d be more than happy to explain to him the rationale for my ruling and the role your conduct played in it. Shall we adjourn until noon then, so you can get your client?”

Jared’s face could not be any redder. “That won’t be necessary, Your Honor. I’m sure my client will understand that the court has a very busy calendar.”

“I had thought so. I’m putting the trial over for three months. My clerk will issue a revised scheduling order. Good day to you all.”

The clerk calls, “All rise,” and then Allerton is gone. Jared and his colleague race out of the courtroom—either to share the bad news with their client or to avoid having to face David in his victory. Chris, David, and Daniel watch them scurry out. “Like big rats, don’t you think?” Chris asks.

“Not like rats,” David answers. “Once you get past the tail thing, rats are actually okay.”

David gives congratulatory handshakes to his team, but in light of the win he just obtained, his mood seems subdued. Although David’s work life just got a whole lot better, I’m not at all certain he really wanted the luxury of empty time. The pressure of a trial would have been just the thing to perpetuate the fantasy that it was all business as usual. Now there would be more freedom from which David would need to escape.

Chris must sense the same reserve. “That was priceless. You can smile now.”

“Let me buy you guys lunch at Rizzo’s,” David offers. “Go on ahead and order appetizers. I need to make a few calls first.”

Chris searches David’s face with concern and then shrugs. “Don’t be too long.” Chris and Daniel quickly pack their materials and leave. As they walk out, I can hear Dan enthusiastically recapping the blow-by-blow of the proceeding to Chris as if she hadn’t just seen the whole thing.

David, now alone in the courtroom, collapses into his chair—partly in relief, partly in exhaustion, and partly in sadness. He just
sits there, his eyes moving from the judge’s bench, to the jury box, to the now vacant opposing counsel table, and then to his wedding band. It’s like he’s trying to connect dots that refuse his desire for order and symmetry.

In a few minutes, Judge Allerton, this time dressed in just a suit, returns alone to the courtroom. David instantly jumps to his feet and starts collecting his papers. “I’m sorry, Judge. I’ll be out of here in a moment.”

“No need to get up, Mr. Colden. I’m just getting a few pleadings,” Allerton says as he moves toward the bench and starts shuffling some pages.

David remains standing. “I want to thank you for… you know… being understanding of my situation.”

Allerton looks up from what he’s doing. “Please don’t thank me for treating you like a human being. I would’ve hoped that our profession had not sunk so low that common courtesy is actually shocking.”

“Perhaps not shocking, but certainly appreciated.”

Judge Allerton nods in understanding. “August 12, 1997, ten thirty-seven
PM
.”

“Excuse me?”

“August 12, 1997, ten thirty-seven
PM
. The exact time my wife died.”

“I’m sorry. I didn’t realize.”

“I can tell you that it does get better. Not a day goes by when I don’t think of her, but it does get better.”

David’s lips begin to tremble. Judge Allerton looks away and quickly pulls together his papers. “Good luck to you, Mr. Colden. And do try to settle this case. I’m sure you now have better ways to spend your time.”

“Thank you, Judge,” David whispers back as Allerton exits through the door behind the dais.

At about the same time that David leaves the courthouse, Sally enters Joshua’s examination room carrying Skippy under her arm.

“This is a nice surprise,” he says. “Everything okay?”