Frolic of His Own

  —Is that what you’re worried about Harry? what the State can do to you? You sent Oscar to Lepidus, Shea and the whole . . .

  —No wait Christina, look. The State’s got nothing to do with it, no law that we have a duty to look into the credentials of lawyers we make referrals to. The whole thing’s a self regulating profession, deal with things like that under the ABA’s Code of Professional Responsibility doesn’t mean a client has a cause of action against a lawyer who’s violated the Code just because he loses a . . .

  —The Code! My God you sound like a, a self regulating profession! Your friend Sam got us into this mess didn’t he? Is anybody going to regulate your friend Sam or do we just put it down over here Lily, do try not to spill it.

  —Do you want the . . .

  —Just put it down!

  —Have to research that Oscar, end up putting you to a lot of trouble entering a claim citing the elements of damages you’ve incurred here needed to make you whole, as they . . .

  —To make him what?

  —Legal phrase Christina, just means what it says, to make him whole, restore someone who can prove he’s suffered damages to his . . .

  —Well look at him, he’s sitting right here in a thousand pieces if you want proof of damages to make himself whole, he can’t get a new trial he can’t find anyone else around to sue so he’s suing himself is that what you mean?

  —Of course it’s not. Whole heart of the Fifth Amendment, you can’t be made to testify against yourself, you’ve got a new law firm on that haven’t you Oscar? Isn’t that what they’ve told you?

  —Well he, there’s a letter here from him somewhere, from Mister Mohlenhoff, he thinks maybe they could get around that by granting one of us immunity to testify against the other one under threat of perjury or contempt he’s looking into it. They want a five hundred dollar retainer to look into it.

  —Most ridiculous thing I ever, don’t send them a nickel, these the ones you got off a matchbook cover?

  —Which one of him are you talking to Harry, the one who got Mister Mohlenhoff off a matchcover or the one Lily found for him who wants Oscar to pay him for suing himself in the first place.

  —I didn’t know what he’d, I know it was my fault Mrs Lutz but I just thought he was this lawyer that would help Oscar out now he’s doing the same thing to Daddy, he took this money from Daddy where Daddy gave my brother Bobbie all this money to buy this Porsche that Reverend Bobby Joe calls the death instrument so now Daddy’s in trouble where they want to sue him for something they call I forgot what they call it but, but maybe I better go Mrs Lutz I didn’t mean to start . . .

  —Probably a suit for what they call negative entrustment Lily, like handing a shotgun to somebody who isn’t resp . . .

  —Harry leave her alone, just sit down and be quiet Lily, and bring in some sugar will you? Didn’t you get a cup for yourself? Five hundred for Mister Mohlenhoff off a matchcover or seventy five hundred for Lily’s ambulance chaser my God Harry we’re talking about thousands, these tens of thousands for your friend Sam who hands us a convicted felon and loses the case into the bargain?

  —Just what I mean, you get a look at our billings to Kiester’s people probably a hundred times what we saved Oscar with a small firm like Lepidus and . . .

  —And who pays those, Oscar? because he sued them and lost?

  —Well he, it’s not a requirement in civil cases that the losing defend, the losing plaintiff I mean pays defendant’s costs but I told you, I haven’t seen the decision I told you, unless this judge holds him liable for reasonable attorney’s fees but a judge like this one, no track record to go by you can’t tell what the . . .

  —You don’t need that, Harry.

  —What. Need what.

  —Another drink. You don’t need another drink. You haven’t eaten a thing and those pills you’re on to keep you from jumping out of your skin they told you not to drink didn’t they?

  —Just cuts down their effectiveness, one or two won’t make any diff . . .

  —Well you’ve had one or two, now will you sit down until we straighten this out? I don’t care what this decision says about your thieving defendant’s reasonable attorney’s fees, you just said they were a hundred times what they ought to be didn’t you? Oscar wouldn’t even dream of paying them, I want to know who’s going to pay Oscar. To make him whole.

  —Well it won’t, it’s not that simple Christina, the . . .

  —My God I know it’s not that simple! Would we all be sitting here tearing our hair if it were? Your friend Sam got him into this mess, what are these elements of damages he’s incurred you were talking about.

  —Just the, just these elements things like fees, costs, the profits and accounting he went after originally but the, I think when I’ve had a chance to talk to Sam we can . . .

  —Well pick up the phone. There’s your chance right over there, call him up.

  —Once we’ve read the decision Christina, no sense in . . .

  —Well there’s no sense in Oscar trying to do anything if he doesn’t know what he can do is there?

  —Well he’d just, he’d probably make either a tort or a contract claim, file a notice pleading to put the defendant on notice of the claim against him but if he’s going to plead fraud, it isn’t that simple if he’s going to plead fraud he’s got to state every element of the common law tort of fraud, prove he was injured by intentional misrepresentation of a known fact, leave out one of the elements and his complaint’s dismissed but if they can show it wasn’t intentional, that nobody knew Basie was fraudulent he’d passed his bar exams hadn’t he? showed them his certificate to practice?

  —On Oscar yes, to practice on Oscar with Sam at the piano playing Nearer My God Harry either he knew or he didn’t. If he knew, it was fraud wasn’t it? and if he didn’t know he should have.

  —Well that would, you’d have to prove negligence. Take a hypothetical case, if the . . .

  —I’m not taking a hypothetical case, we’ve got a real one wriggling around right here in our laps. Was it fraud or negligence.

  —Well the, that would be for a jury, if the law allows claims of fraud and of negligence rising out of the same operative facts and it had to go to trial . . .

  —That’s what trials are for isn’t it? My God Harry this is like pulling teeth! Either they injured him deliberately or they didn’t. If they did he can charge them with fraud, if they didn’t he can charge them with negligence is that what you’re trying to say? or trying not to say? Either they’re lying or they were plain careless and irresponsible, it’s that simple, isn’t it?

  —Matter of fact it’s, I’d have to research it but he might not be able to bring a malpractice claim till all his appeals were exhausted because up till then he hasn’t suffered any injury.

  —That’s the most ridic, will somebody answer that?

  —I will yes, Oscar told me hello? It’s who? Oh . . . no. No, he’s . . . No he went to California no he didn’t leave a number.

  —Who went to California.

  —Nobody, that was just what Oscar told me to tell them.

  —To tell who! Who was it, Lily.

  —They said it was the South Georgia Pilot.

  —There! You see Christina? as though they have the right to call whenever they, aren’t there laws Harry? laws of privacy? The rights of, it’s what Father used to say, the right to be let alone?

  —A hundred years ago, that was a judge named Cooley coined the phrase opened up the whole can of worms, it came down from the invasion of property rights but in the courts these days if you’re a public figure you haven’t got any.

  —Well I’m not. I’m not a public figure, I’ve done everything to avoid it, it says right there in the paper doesn’t it? calls me a recluse?

  —Call you Oswald too don’t they? First Amendment freedom of the press to get things wrong Oscar, they . . .

  —It’s not just that it’s the whole, when Father reads it he’ll . . .
br />   —He’ll probably just chuckle like he did when that old woman with the withered hand? the one who frightened us on your mother’s side, she asked him why on earth they’d named you Oscar? Nobody’s family name she said, and he just chuckled and said well, we had to call him something, heat up some more water will you Lily? This tea’s quite cold, of course it might come in handy for telling you apart if you insist on suing yourself Oscar but . . .

  —I’m not suing myself Christina! And I’m, it’s not funny, the whole thing, don’t you think Father will read it? that his law clerk will show it to him? He already thinks I wrote that vulgar grotesque perversion he saw up there on the screen now when he reads this, if he had any doubts and he reads this where they say I wrote the original script for this spectacularly successful motion picture exploiting madness in the family did you see that? as an article of impeachment did you see that Harry? Impeachment! Just the word, a man who’s lived and breathed the law for his whole, for almost a hundred years a century, a century!

  —Look Oscar, one thing old Judge Crease is not, he’s not stupid. Not thinskinned either. People paying press agents through the roof to get their names in the paper you sit here trying to protect your privacy the more vulnerable you become, call that the people’s right to know. You think he doesn’t see right through it? that they’re just using you to get at him? Aiming for a seat on the appeals court and damn the people’s right to know gets him the front page, you think he blames you for this rubbish about impeachment? How the hell do you think you sell papers, stir up a little controversy, create ill feeling wherever you can, bait the hook, stir the pot, stay away from them. Just stay away from them.

  —No but listen Harry, just to set the record . . .

  —Want to write them an indignant letter for calling you Oswald? They’ll print letters from every Oswald in the country from Lee Harvey’s widow on down a few libel suits thrown in, no malice intended? Whole damn thing’s malice out there waiting for you. Stay away.

  —No but listen! I, when they say I wrote the original script for this, this distorted travesty of a movie that bears no resemblance to what I really wrote to this blood and sex ninety million dollar spectacular they . . .

  —Going to write them an indignant letter and tell them that?

  —I have to! To set the record straight so that when Father sees it he’ll see I had nothing to do with this warped twisted . . .

  —Fine. And when Kiester’s lawyers see it, when Mudpye reads it he’ll mark it Exhibit A if you show up throwing away more money on an appeal, see what I mean Oscar? Just digging up grounds for an appeal if there are any you’re one step deeper in the whole . . .

  —My God Harry what do you want him to do, just forget the whole thing?

  —Might not be a bad idea Christina, he fought the good fight didn’t he? That’s the important thing, fought the good fight and lost no disgrace in that is there? Might even be able to take a good tax loss on the . . .

  —Harry look at him! Does he look like he needs a good tax loss? My God of course he’ll appeal, you just finished saying he couldn’t do this malpractice business till all his appeals are exhausted didn’t you? I told you Mister Basie said we’d win on appeal, he . . .

  —And who’s going to handle it, Basie? He’s probably busy right now making brooms at a dollar twenty three an hour in a Federal prison, gives them something to do to keep them from killing each other, you expect Sam to handle these appeals with a malpractice suit waiting for him at the end of the road? Look. I’ll talk to Sam minute I get a chance, considering the whole situation he might take it on at a cut rate once these other obligations are settled and . . .

  —A cut rate! What do you mean these obligations, this stack of bills Oscar’s sitting here drying his tears on? and you think for an instant I’d let him pay for one single . . .

  —All right look, Christina. Look. Give me a chance to talk to Sam once he’s studied the decision, can’t promise anything but considering the whole situation might even get him to let these billings slide for a while.

  —Harry. You don’t seem to understand me. I’m not talking about letting anything slide for a while, I’m . . .

  —All right! Suppose we, not promising anything but suppose he’d consider letting them slide till, keep sending them through to satisfy the IRS he’d made every effort to collect and eventually write them off, just let Oscar pay the disbursements and . . .

  —Harry?

  —Don’t have to make a big thing of it Oscar, getting it all over the newspapers just make trouble for the . . .

  —Harry!

  —Settle up what they’ve already laid out and drop the whole . . .

  —Harry what in God’s name do you think you’re talking about! Those car rentals? photocopies? transcripts, telecopiers that whole trash heap you just spelled out for us? For what. Plane rides, depositions, drinks for God knows who at your Beverly Wilshire for what! You imagine he’s going to pay one penny for this, this rollercoaster ride he’s been taken on? Make a big thing of it my God it is a big thing, get it all over the newspapers he should shout it from the housetops, can they make it any worse? Can they?

  —It’s all, look Christina, get it all over the papers the way they twist things around make us all look bad that’s all, this little mixup about Basie shows up there in your South Georgia Pilot gets picked up by some stringer for the Atlanta Constitution the Charlotte Observer grabs it by the time it gets to the Times here, the Wall Street Journal you’ve got those five blind men describing an elephant look. I’ll talk to Sam, no reason we can’t work something out before the whole thing gets out of, out of look, look Christina . . .

  —I’ve looked! All I’ve been doing I’ve been looking it’s taken me this long to finally see what I’m looking at hush things up, keep out of the papers, fight the good fight and lose there’s no disgrace in that is there? Your great Code of what was it you just told us? of professional responsibility and every profession’s a conspiracy against the public who told me that. Who told me that! Your self regulating profession no reason you and Sam can’t work something out what about us?

  —It’s, look Christina.

  —You look! I said what about us Harry, a conspiracy against the public my God we’re your family! Protecting yourself, protecting your friend Sam, protecting Swyne & Dour and your whole ridiculous self regulating white shoe conspiracy against your own family?

  —Look, I’ve got a lot of, we can discuss it in the car Christina I’ve got to get back, Oscar? Got to be in court first thing in the morning, a lot of paperwork to get through tonight try to, just try to get some rest I’ll call Sam first chance I get and straighten things out, try to get some rest. Coming Christina?

  —No.

  —But, look I can’t wait around I . . .

  —I said no Harry!

  —Well what do you, Oscar’s fine he’s got Lily here to look out for him you can’t just, I’ve got to take the car I can’t just . . .

  —Well take it! Just don’t break your neck like we did getting out here.

  —Oscar look, will you tell her you’re . . .

  —And get me a cloth from the kitchen, will you Lily? I’ve spilled some tea here. Is there any food in the house?

  —There’s some eggs.

  —Never mind, here’s a napkin, now . . .

  —Can I help you Mrs Lutz? I could prepare some . . .

  —And for God’s sake stop calling me Mrs Lutz.

  —But I thought, I have to go in a minute anyway, I have to get this car back to my girlfriend but if there’s anything I . . .

  —We’re all right Lily, we’re fine. I’ll just make some scrambled eggs, we’ll be fine.

  Down the bare hall the outside doors clattered again, the obstinate whine of a car’s starter, the cough of the engine, the wrath of crows down there on the lower lawn where she looked out over the brown grasses stirring along the edge of the pond’s surface teeming with cold which seemed to rise right up
here into the room to wrap them each in a chill mantle of silence pillaged by the clatter of all that had gone before the more intense in this helpless retrospect of isolation where their words collided, rebounded, caromed off those lost boundaries of confusion echoing the honking tumult of Canada geese in skeins blown ragged against the uncharted grey of the sky out over the pond, each thread in the struggle strung to its own blind logic from some proximate cause blinded to consequence and the whole skein itself torn by the winds of negligence urging their hapless course, she’d told him to take their settlement offer hadn’t she? and Harry, hadn’t Harry told him the same thing? Then who’d got him into this mess in the first place? Get yourself a Jewish lawyer if you’re going after these movie people, who’d handed him over to Sam Lepidus? passed him along to Harold Basie stranded here tugged between a Jew and a black drawn tight as the sullen line of his lips in this mute exchange raging between them, the way Basie’d not so much deceived him as let him down: Where had Maid Quiet gone to, nodding her russet hood? That’s good to know, as though some breath of fondness lingered, tinging her lips with a smile the way he’d sat here with something he’d torn from the paper about the hairy Ainu gone on the instant, breaking out with —my God I hope he drives carefully, two or three drinks and those pills he’s been taking. Isn’t there some more of your Pinot Grigio? as the day drained away at last, and over the scrambled eggs in the kitchen —you’ve got to call him, Oscar.

  —Call him where! Making brooms in some, why hasn’t he called me? He’s the one who . . .

  —I’m talking about Father. You’ve got to call Father she said, and again more astringently next morning going through that blue folder adding columns of figures, going through the mounting heap of mail —my God, haven’t you opened any of this? Overdue account Third Notice, a sale of boating equipment, of tulip bulbs, Final Notice Overdue, Hobbytime, The Bursar’s office wishes to inform you that a $7500 lien has been placed against your salary effective immediately, in the event that Schriek Mohlenhoff & Shransky At your request we have applied for a hearing date for your appearance in connection with the above captioned product liability action brought by your insurance Ace Fidelity Worldwide against Sosumi Motors relevant to inconveniences allegedly suffered by you resulting from vehicular malfunction due to Delinquent Account Unless we are in receipt of your certified check in the above amount within five business days we shall Be the first on your block to sport a pair of Hiawatha’s Magic Mittens Wear ’Em With The Ladies Historical Preservation Society eagerly awaits your response to our earlier request for letters documents and other memorabilia relating to the late Thomas Crease (later Justice Crease) Seventeenth Regiment Army of Northern Virginia in your possession which properly belong in our archives before we are obliged to take legal steps —for the love of heaven. You’ve got to call him.