Ever After: A Father's True Story

  “Now the bad news. Everybody insists that you come in and talk with Judge Steiner, another federal judge, who specializes in mediations. They’ve asked Fox to be there, too.”

  “OK. When should I be there?”

  “The first conference is scheduled for ten. I’ll come get you. Put on your ‘lawyer’s outfit.’ You’re really going to have to play lawyer, defendant, and plaintiff today.”

  An hour later we’re at the court-house. Clint, Mona, and I sit on one side of a little room; Fox, with Morgan, on the other. We don’t even go through the handshaking ceremony, just short nods. There’s an aura of hurry. I like that; it’s a good sign. A secretary comes out and asks Mr. Fox and Mr. Morgan to follow her. Mona leans close to me.

  “I think we’re about to have a mediation toward settlement, or Morgan wouldn’t be here. Everyone’s turning desperate.”

  Clint leans in close from the other side.

  “I think you’re right, Mona. They sure waited long enough.”

  “I think they’re beginning to suspect our client’s really going for a trial, even if it’s closed to the media.”

  We sit there for the greater part of an hour. Then Fox and Morgan come out. They don’t look at us. A few minutes later we’re called into the room.

  This mediation judge is tall with a pallid complexion. He doesn’t look well. He asks us to sit down. He speaks briefly about the case, offers his condolences to me. He speaks slowly with his hands flat on the large table. He turns to me.

  “You’ve indicated you do not wish to settle. Is that correct, Mr. Wharton?”

  I nod, then remember the protocol and speak.

  “That’s right, your Honor.”

  “Then why are you here in Portland?”

  “For the trial, your Honor.”

  “Well, I’ve just spoken to Mr. Fox and Mr. Morgan who represent Sampson National Carriers, Inc. in this matter and they’ve made what I consider a generous offer for settlement.”

  I sit. It’s starting. He looks me in the eyes. He’s been in the game a long time. It’s like staring into the eyes of Steve Carlton with a bat on your shoulder. He leans forward.

  “They’ve offered $90,000 as a settlement. What do you feel about that?”

  “I think I’ve made it clear enough that I do not intend to settle, your Honor. Even with the restrictions placed upon the trial by Judge Higgins, I’d prefer a jury trial to an out-of-court settlement. I believe strongly in the American system of law, your Honor, and out-of-court settlements are, to me, a denial of that system.”

  He lifts his eyebrows, leans back and then looks down at his hands on the table, first one hand then the other.

  “This trial is going to cost everybody a great deal of money and time. Our courts are full, mostly with drug or drug-related cases. Civil cases such as this can’t take precedence. You do understand that, don’t you?”

  “The case is scheduled in Judge Higgins’s court for tomorrow, sir.”

  “Would you prefer a postponement?”

  “No, your Honor. I’ve already been away from my family and work too long.”

  “I see. Is there some figure you have in mind that you would consider a proper settlement?”

  “I’d prefer not to settle, your Honor. A settlement such as you’ve presented would be an insult to my daughter, her husband, and their two babies. It’s not possible.”

  “That’s how you feel?”

  “Yes, your Honor.”

  He turns to Clint and Mona.

  “Would all of you please go back to the waiting-room? Ask Miss Gaitskill if she’ll send in Mr. Fox and Mr. Morgan again.”

  We stand up to leave. We pass Fox and Morgan on the way in. We keep straight faces, not really looking away, but not looking at them. It reminds me of bargaining for a rug in the Casbah in Algiers. We sit down. Mona nervously smiles at me.

  We sit about fifteen minutes and are called in again. Judge Steiner is sitting in the same place. Fox and Morgan pass us on our way in. Something about it all seems so silly. Why, since we’re obviously negotiating, not just all sit around this big table and talk it out?

  We sit down again in the same places.

  The judge is smiling—the first smile I’ve seen on a face that I don’t think smiles very often.

  “Mr. Fox, in an effort to avoid jamming the courts and to save his client and yours considerable sums of money”—a nod to Mona and Clint—”has offered $100,000 as a settlement. I’ll be honest, this is beyond what I consider the case to be worth.”

  He stares at me again. Now he has his hands wrapped around each other in front of his mouth, in a sort of double-handed fist. A vision of Judge Murphy, with his prayer-pointed fingers in front of his mouth, rushes through my mind.

  “I’m sorry, your Honor, but I submit that neither you, nor Mr. Fox, nor Mr. Morgan can have any idea of the worth, to my wife and me, of our daughter. I’m sure, if you have children of your own, you understand my feelings. I very much dislike hearing the ‘case’ discussed as to its worth. It is demeaning.”

  I can hear Clint shifting in his chair. Mona is absolutely still.

  The judge takes his hands from his mouth, puts them back on the table, pushes his chair slightly back. He’s pretty good. He turns to Mona and Clint.

  “Would you two be so kind as to leave your client alone with me for a few minutes? I’d like to speak to him in private.”

  They leave. I sit as still as I can. We’re both waiting for the other to open. Now, we’ve progressed to an all-night, high-stakes poker game, a small step up from the Casbah.

  “Mr. Wharton, are you sincere in saying you consider settling out of court a violation of due process of law, the intent of law?”

  “Yes, your Honor.”

  “This, despite the fact that there are enormous backlogs of cases pending in just about every state in the union?”

  “That’s right, your Honor. I consider this backlog of cases to be scandalous. One of the rights guaranteed in our Bill of Rights, and spelled out in the seventh amendment, is a right to a fair trial. If our society is not prepared to support this right, by expenditure of money, to expand the courts, the judgeships, all the ancillary necessities to ensure proper justice, adequate and timely jury trials, the system is at fault. The price of two aircraft carriers and their support backup could probably be enough to rectify a good part of the problem.

  “However, I am not obligated to participate in this failure, by agreeing to circumvent the courtroom, the judges, and the jury. In fact, despite the difficulties to my family, I feel obligated to insist on my constitutional right.”

  He pushes his chair all the way back and stands up. I stand, too. He motions for me to sit down again.

  “I’d like you to just ponder on what you’ve said and think of what would happen to our present judicial system, with all its strengths and faults, if everyone took your position. I’ll be right back.”

  I sit for several minutes. This man is nicer than Judge Murphy and much more effective. I wonder what he’ll come up with next. I’m sure he has Fox and Morgan in another room, trying to encourage them to up the ante. I stand and go over to the window. Lunch traffic is beginning. I’m just starting to think that the judge himself has gone out for lunch when he comes back. He has Mona and Clint with him. They all sit down. The judge is back to his double-handed, fist over his mouth, position. He stares at me. I stare back. He starts speaking from behind his hands.

  “Obviously, I disagree with your analysis of the use of the settlement process as a legal procedure. To me it is the civilized way to settle these kinds of conflicts. A jury trial is a failure of our legal methods. It is a much more primitive way to resolve differences.”

  “If that is so, your Honor, why is the right to a jury so carefully defined in the Bill of Rights? The whole chicanery of settlements has come to dominate civil law, as plea bargaining dominates criminal law, but I don’t remember ever reading about ‘settlements,’ or ‘sett
lement conferences,’ or ‘plea bargaining’ in those original documents of our forefathers.

  “As I said to Judge Murphy, entrusting the resolution and declaration of justice to money only, in itself, is a terrible retreat to the most primitive methods, only one step away from direct violence, an eye for an eye, a tooth for a tooth. It is vulgar.

  “Your Honor, I’m sorry we hold such divergent positions and I know your expressed opinion is the prevalent ethical code in the legal and business world. It’s most usually expressed as ‘money talks.’ But I am not comfortable with it, and I don’t think I should be.”

  I consider throwing in another “your Honor,” but decide it isn’t appropriate.

  Judge Steiner leans back in his chair. He looks at Mona and Clint, his eyebrows up, his eyes finally wide open.

  “I have sent away Mr. Fox and Mr. Morgan. I explained your position, Mr. Wharton, as best I could. I think they were convinced as to your sincerity, as I am.”

  OK, there’s the piece of chocolate cake, the come-on. What comes next?

  “They have decided, and, I assure you, against my advice, to make a ‘once and for all’ offer of $120,000. It is a significant increase over the last offer, by $20,000. It’s a lot of money. It’s tax free and could be set up as a very comfortable twenty-year trust for you and your wife. I’m sure you must agree they are being very generous.”

  “Yes, if I were interested in a settlement, I would consider it, as you do, most generous. However, I state once more that I do not want to settle. I shall take your kindly advice into consideration regarding the function of ‘settlements’ in today’s law, the urgent need to clear the docks for criminal cases. I shall phone my wife this evening and ask for her opinion. I guess that’s all I can say.”

  The judge stares at me uncomprehendingly. He looks at his watch.

  “All right. I hear you. I think you are being stubborn and unreasonable, despite, or maybe because of, your sincerity. I’d like you to think this offer over. I can be reached at my home any time before eleven o’clock this evening. Miss Gaitskill will give you my card with my home telephone number. Thank you very much, all three of you.”

  He stands, gives a slight bow, and we leave. We note that Fox and Morgan are not in the waiting-room but they could be stashed away in some other room.

  Clint suggests we have lunch together. We eat in an Italian place.

  “My God, Will, $120,000! How could you refuse it? I told Mona the most we could expect was $100,000, and this with a favorable jury and judge.”

  I slice my lasagne.

  “I think they’ll push it up another $5,000. We go to trial tomorrow if they don’t, so be prepared everybody.”

  Mona drops her salad fork into her lap. We all scramble to wipe it off her new $300 black suit. She bought it for the trial.

  After dinner that night, Mona and I go out on the porch again. I try not to look at my watch. Mona is doing the same. It’s past ten.

  “Mona, first I want to thank you for sticking by us. I know you risked your job, but I think that if we arrange the kind of settlement we’re heading toward, all will be forgiven. As I said, money talks, especially with Steele, Cutler and Walsh, which is, above all, a business. I’ve made them about $15,000 in the past day or two.

  “What bothers me is the conscientiousness with which you’ve prepared our case. I can’t think of anyone who could have done it better. We won’t talk about the settlement conference, that was a mousetrap operation, and you weren’t the only one caught in it.

  “I’ve told you I’m not happy with the costs of the expert witness business, but that’s my fault. I should have paid more attention. You were only carrying through as you’ve been trained to do.”

  She’s keeping her eyes on me, smoking slowly, the way one smokes to keep calm.

  “You know I’ve been writing a book about this entire ordeal up to right now, here, this moment on this porch. It’s titled Ever After because sometimes when Kate would have had too many Franky Furbo stories or stories from my childhood, she’d like a fairy story. I’ve always enjoyed making up fantasy, fairytale-like stories. When she wanted one of those, she’d ask for an Ever After story, meaning one that ended with ‘and they lived happily ever after.’ It seems like the right title in many ways.

  “Believe it or not, another title I considered, for a while, was Expert Witness. I wanted to be my own expert witness, tell my truth of what happened in my own way. But the more I learned about expert witnesses and how they are ‘jury rigged’ literally, the less interested I was in that title. Ever After also means they will live ‘ever after,’ despite all.

  “Now, I’ve seen that the practice of field burning is horrible and yet no one can stop it. Even the people devoted to stopping it, obsessed by it, can’t stop it. They’ve passed out petitions but couldn’t manage enough signatures to hold a referendum.

  “We’ve tried the legal solution. As you know, Mona, I never wanted to be involved in this suit. If, at any time, the field burning had been stopped, I would have called the whole thing off, settled at whatever Steele, Cutler and Walsh considered the case to be ‘worth.’ But it came to the point where nothing else seemed possible. We were cornered.

  “Then, with the settlement conference, it became more and more apparent that the law wasn’t going to work. There would be no way of bringing the subject of field burning into the public eye, no way of punishing those responsible for the horror. No way of encouraging them to admit responsibility. All I heard from the moment I arrived was ‘settlement.’ How much money? What’s it worth? Well, you know how it went, you were in the middle of it all. I can’t tell you how it disturbed me, but you know that, too.”

  I look at my watch. It’s twenty to eleven. If I’m not careful, I’ll be going to court tomorrow, whether I want to or not, all alone, without my witnesses, maybe without a lawyer.

  I smile at Mona in the dark. She’s not looking at me now, still staring down the length of that tree-lined Portland residential street. She’s a handsome woman, feminine but very strong, determined yet sensitive. I hadn’t noticed it much before. I must be getting old.

  “Some last questions, Mona, then I promise I’ll stop all this preaching, and I’ll call Judge Steiner.

  “If we settle, accept Sampson’s money, is that an admission of guilt on their part? Are they agreeing they’re responsible for what happened? Are they even saying they’re sorry? Or does our taking this settlement money exonerate them, everybody in fact, for what’s happened?

  “Mona, I’ve read through all the documents and one phrase keeps coming up. It set my nerves on edge each time I see it.

  “The term ‘wrongful deaths’ is used when referring to our family. Now, if no one is held responsible for these deaths, if no one is found guilty, are they now ‘rightful deaths’? Is there such a thing?”

  She shakes her head.

  “I don’t think so.”

  “Each of us has a right to death. But when is a death rightful? Is a suicide rightful, because it is a sought-for death, a desired death? The death of our family was the opposite of a suicide: there was no desperation, no despair, no desire to end it all.

  “They were each of a wonderful age, from Mia, just discovering the physical world, to Dayiel, discovering herself, to Kate and Bert, deeply in love; a whole future with loved ones in front of them.

  “Naturally, in time, this would have changed, as most things do. Call it inertia, entropy, senility. These are many names for the same thing: the tiring out, the wearing down, the gradual reduction to physical nothingness. They won’t need to experience any of it. Perhaps that’s a blessing.

  “Perhaps they did have a ‘rightful death,’ such as most of us will never know. I can live with that. Can you?”

  She turns to me and nods. There are tears in her eyes. She starts to speak, can’t. She nods her head. We stare at each other a second, and then, simultaneously, we’re in each other’s arms. She’s sobbing deeply, pulli
ng in gasps of air into those nicotine-coated lungs. I’m shaking at first, then sobbing, hard sobs: I begin rocking my head back and forth the way I did when we first found out they were all dead. I can accept their deaths now, feel they were a preordained ending, for reasons I don’t know, will never know. That’s what Bert was trying to tell me and I misunderstood. It’s the way it had to be.

  Mona’s speaking against my neck.

  “I’m so sorry, Will. I tried. What should have been simple became so complex. The answer to your question is, no, by settling they do not admit to responsibility, to guilt: they do not need to be sorry.”

  “That’s what I thought, Mona. Nobody came out ahead, did they? No winners. Kate, Bert, and the babies were already gone, beyond our struggles. I should have known better than to think I could stop a big operation such as field burning. The people I’ve been fighting helped design the system, they want to keep it running just the way it is.

  “The people of Oregon, for reasons of their own, don’t seem to mind field burning as much as I do; some do but, apparently, not enough. Probably TV has made them think it’s normal for people to be killed in big accidents, to die slowly of respiratory disease. I don’t know; I’ll never understand.

  “Sampson’s lost a wad of money, just because they hired an inept driver. Steele, Cutler and Walsh didn’t make the kind of money they thought they could. Bob Stone will be driving trucks again, maybe even big eighteen-wheelers. Mr. Thompkins will go back to burning fields, growing grass, making tens or hundreds of thousands of dollars a year, protected by the state. And the state of Oregon will continue to protect itself against its own citizens at all costs.

  “It will be the same as if we hadn’t done one damned thing. The legislature has another chance next year to do as little as possible to curb the problem and they’ll pocket seed grower and dealer money to help them be elected again. Nothing’s changed.