“I read your motion papers.” Judge Hoffmeier patted the accordion file. “Am I correct that defendant company concedes that the incident involving Ms. Feldman is true?”
“Correct, Your Honor.” Anne took a deep, preparatory breath. “We concede that this incident took place, but we do not concede that it constitutes sexual harassment. The incident was a prank, and even though Mr. Leaver’s conduct wasn’t actionable, Chipster found it inappropriate and terminated him that very day.”
“Oh really? A prank?” Judge Hoffmeier peered in amusement over the top of his glasses. “Let’s talk turkey, Ms. Murphy. Mr. Leaver came out of his cubicle at work—and he was naked as a jaybird!”
“True.” Anne suppressed her smile, and the gallery reacted with muffled laughter. “But it was a joke, Your Honor. And, just for the record, Mr. Leaver was wearing ankle bands with little wings. They were made out of Reynolds Wrap.”
“Ankle bands with wings, of course. A fan of Hermes, or Pan, perhaps, eh?” Judge Hoffmeier chuckled, and the gallery with him, since they’d been given judicial permission. “Why wings, counsel?”
“Why not, Your Honor? Though I doubt Mr. Leaver studies mythology. He’s twenty-three years old and watches way too much Jackass.”
“Jackass?”
“It’s a show on MTV. Young men skateboard naked or dressed like gorillas.” Anne loved the show, but wasn’t eager to reveal as much to a sixty-year-old judge with Article III powers. “In any event, Mr. Leaver came out of his cubicle and stood for a moment in front of Ms. Feldman, but said nothing inappropriate and made no lewd gesture. He merely flapped his arms and pretended to fly, which I admit is silly and tasteless, but is not yet a violation of federal law.”
Judge Hoffmeier burst into laughter. “This is why NASDAQ’s in the crapper! This is the Internet revolution we hear so much about! The nation’s economy is run by children wearing kitchen supplies!”
Anne waited until the laughter in the gallery had subsided. The holiday mood had already started, and she hoped it would flow in her favor, five minutes hence. “It is funny, Your Honor, and in fact, Ms. Feldman clearly took Mr. Leaver’s actions as a joke. When he started flapping, she laughed until she fell off her chair. Mr. Leaver was so embarrassed, he ran into the men’s room and refused to come out until the close of business.”
The gallery laughed louder, and Judge Hoffmeier let it spend itself, then turned serious. “Well. This is a unique fact situation, to be sure. Your client, Chipster.com, doesn’t want Ms. Feldman to tell the story about the tinfoil wings at trial?”
“No. Her story, her evidence, is irrelevant. The upcoming trial, Dietz v. Chipster, is a quid pro quo case of sexual harassment. In it, plaintiff alleges that Gil Martin, the company’s CEO, forced Beth Dietz, a female programmer, to have sex with him in his office on a number of occasions, in order to keep her job. What happened between Mr. Martin and Ms. Dietz is a credibility question for the jury, and we will prove that plaintiff’s allegations are false. But whether Mr. Leaver streaked, flapped, or struck a pose for Ms. Feldman doesn’t make it any more or less likely that Gil Martin harassed Beth Dietz.”
“Standard relevance analysis, eh, Ms. Murphy?”
“Exactly, with one addition.” Anne rechecked her brief. “While that evidence may be admissible in a ‘hostile environment’ theory, in which the number and pervasiveness of alleged other incidents are relevant, it is clearly inadmissible as irrelevant in this, a quid pro quo case.”
“So, you rest on the difference between a hostile environment theory and a quid pro quo theory of sexual harassment.” Judge Hoffmeier frowned in thought. “It’s quite a technical argument.”
“Think of it as precise, Your Honor.” To Anne, precision mattered in the law, brain surgery, and lipliner. Otherwise it was no fun at all. “The distinction makes a difference because of the impact the evidence will have. Plaintiff’s counsel will be using this incident involving Mr. Leaver to bootstrap his meager proofs regarding Mr. Martin.”
Judge Hoffmeier rubbed his chin, clean-shaven even at this hour. “Any guidance from upstairs, Ms. Murphy? I’ve found no appellate cases on point.”
“Frankly, no, Your Honor. I briefed Becker v. ARCO, which supports my position, but it’s not precisely on point. It does emphasize the danger in admitting evidence of this kind, in that it enables the plaintiff to prove the defendant’s liability only in the loosest and most illogical fashion, like guilt by association.”
“Thank you. I have your argument, Ms. Murphy.” Judge Hoffmeier nodded and turned to plaintiff’s counsel table. “You want in, Mr. Booker?”
“Sure do, Your Honor.” Matt went to the lectern as Anne stepped back. “Your Honor, I like a joke as much as the next guy, and I agree this incident may sound funny to us now. But contrary to defense counsel’s assertion, Ms. Feldman did not think this supposed prank was funny. Mr. Leaver’s conduct constitutes indecent exposure in this and most jurisdictions.”
Judge Hoffmeier’s mouth’s flattened to a politically correct line of disapproval. Anne wondered if she could rescind her flirting.
“Your Honor, we think Ms. Feldman’s testimony is admissible,” Matt continued. “This is proof positive of the type of ‘locker room’ conduct that is encouraged at Chipster.com and at an increasing number of Internet companies. Sexual harassment suits are on the rise in the Internet companies because computer programming is so male-dominated. In fact, ninety-five percent of Chipster’s programmers are male, between the ages of twenty-one and thirty-five, and none of the company’s fifteen supervisors are women. This creates the raucous ‘boys only’ pattern of conduct, which permits conduct like Mr. Leaver’s and Mr. Martin’s to flourish.”
“What about Ms. Murphy’s point that this is a quid pro quo case and not a hostile environment case?”
“I agree with Your Honor that that is a hypertechnical argument. Sexual harassment is sexual harassment. And Becker v. ARCO notwithstanding, the law in the Third Circuit is not settled on whether evidence proving a hostile environment case can be admitted in a quid pro quo case.”
Judge Hoffmeier rested his chin on his hand. “It does seem probative to me, especially considering that it is undisputed.”
“I agree, Your Honor, and it is for the jury—not for any of us—to decide whether the corporate culture at Chipster is one in which sexual harassment is permitted. The defendant in the present case is the very CEO of the company, Gilbert Martin.”
“Thank you for your argument, counsel,” Judge Hoffmeier said with finality, and Anne couldn’t tell which way he would rule. She couldn’t take a chance on losing. The evidence would kill her case. Time for Plan B.
“Your Honor, if I may, I have rebuttal,” Anne said, and Judge Hoffmeier smiled.
“The fighting Irish. Okay, counsel, but keep it short.”
“Your Honor, in the alternative, defendant argues that even if the Court thinks the evidence is relevant, it should be excluded under Federal Rule 403 because of the danger of unfair prejudice. Imagine how distracted the jury would be if this evidence came in. Your Honor, we’re talking here about a naked man.”
On cue, the young man sitting behind Anne in the gallery stood up, stepped into the aisle, then unbuttoned his raincoat and let it drop in a heap at his feet. The man was sandy-haired, handsome—and buck-naked. The gallery let out a collective gasp, the court reporter covered her mouth, and the bailiff reached for his handcuffs, but Anne continued her legal argument:
“The image of a naked man commands instant and total attention. It is a riveting, galvanizing image, especially in a courtroom. If it’s permitted, the jury will be so distracted—”
“What is this?” Judge Hoffmeier exploded. He was craning his neck and fumbling for his gavel. Crak! Crak! “Order! Order! My God in Heaven! Get dressed, young man! Put your clothes on!”
Matt sprang to his feet, pounding the table. “Your Honor, we object! This is an outrage!”
Pandemonium broke ou
t in the gallery as the naked man grabbed his raincoat and took off, flapping his arms and sprinting down the center aisle and out of the courtroom doors, with the bailiff in hot pursuit. The gallery burst into spontaneous applause at his performance, and Anne decided on the spot to pay him a bonus.
Crak! Crak! “Order! I will have order in my courtroom! Settle down, everybody! Settle down!” Judge Hoffmeier stopped banging the gavel, and the redness ebbed from his face. He straightened his glasses and glared down at Anne. “Ms. Murphy, I cannot believe my own eyes! Did you arrange that ridiculous stunt?”
“Think of it as a demonstration, Your Honor. It proves my point that if a naked man enters the courtroom, all else stops—”
“Was that man Mr. Leaver?” Judge Hoffmeier’s hooded eyes widened.
“No, he works for Strippergram. He sings, too, but the case didn’t call for it.”
“I object, Your Honor!” Matt was yelling, but Judge Hoffmeier waved him into his seat, never taking his stern gaze from Anne.
“Ms. Murphy, are you telling me you paid a stripper to come here today?”
“Who else would get naked for money?”
“Ms. Murphy! I could cite you for contempt for this sort of thing! Send you to jail! My courtroom is not a peep show!”
“I’m sorry, Your Honor, but I couldn’t think of any other way to show you. I mean, look around.” Anne gestured at the gallery, now in complete disarray. People were half-standing and half-seated, laughing and talking among themselves, unable to get back in order. “See? The naked man is gone, but everybody was completely distracted by him. I was making a valid legal argument when he dropped his coat, but everybody stopped listening, including you.”
Judge Hoffmeier bristled, but Anne went on.
“With all due respect, Your Honor, what just happened proves my point. If a naked man is on the jury’s mind, they won’t be able to focus on Mr. Martin, and he’s the one on trial. They’ll go into that jury room to deliberate, and a naked man is all they’ll talk about. That’s exactly what Federal Rule 403 was designed to prevent.”
Judge Hoffmeier went speechless, and Matt simmered. The courtroom fell suddenly silent as everyone gazed, stunned, at Anne. She remained uncharacteristically mute, wondering if she could post bail with a Visa card. After a minute, Judge Hoffmeier sighed, nudged his glasses needlessly into place, and met Anne’s eye.
“Ms. Murphy, I will not sanction this sort of foolishness in my courtroom. I maintain a relaxed atmosphere here, but you have evidently gotten the wrong message.” The judge squared his shoulders in the voluminous robes. “I am therefore citing you for contempt, to the tune of $500. Thank your lucky stars I’m not locking you up for the weekend. But as I said, the Fourth of July is my favorite national holiday, and every American should celebrate our individual freedoms. Even Americans as absurdly free as you.”
“Thank you, Your Honor,” Anne said. As for the $500, she’d have to take it out of her personal savings, which would leave $17.45. She couldn’t very well charge the client for keeping the lawyer out of jail. She was pretty sure it was supposed to be the other way around.
“And, Ms. Murphy, you’re on notice.” Judge Hoffmeier wagged his finger. “I will not tolerate another such display in my courtroom next week, or any week thereafter. Next ‘demonstration’ like this, you go directly to jail.”
“Understood, Your Honor.”
“Fine.” Judge Hoffmeier paused. “Now. Well. As for defendant’s motion to exclude evidence, I hereby grant the motion, albeit reluctantly. I am loathe to reward Ms. Murphy’s misconduct, but I cannot penalize the defendant company for its lawyer’s hare-brained schemes. I therefore rule that Ms. Feldman will not be permitted to testify at the trial of this matter, and that there will be no naked men in evidence next week, either in word or deed. So ordered!” Judge Hoffmeier banged the gavel, shaking his head.
“Thank you, Your Honor.” Anne wanted to cheer, but didn’t. She won. She won!
Matt rose briefly, with a scowl. “Thank you, Your Honor.”
“Now, Ms. Murphy, get out of my courtroom before I return to my senses.” Judge Hoffmeier got up and left the dais. “Have a good holiday, everybody.”
Anne stood up as soon as the judge had left, felt a soft caress on her back, and turned. Two lawyers in fancy suits stood behind her. They were hot, successful, and evidently patronized the same custom tailor.
“That was amazing, Anne!” the one said, touching her again, though she didn’t know him at all. He wore a practiced smile and a wedding band.
The other lawyer stepped closer. “Where’d you get that idea? And didn’t we meet at—”
“Thanks,” Anne said politely, but she didn’t want to get picked up in federal court unless it was by Matt Booker. She peered past their padded shoulders at Matt, who was hunching over his briefcase, shoving papers inside. She waved, trying to get his attention, but his forehead was knitted with anger and he wouldn’t look up. Then her view was blocked by the lawyers.
“How did you get the guts to do that?” the married lawyer asked, but Anne stepped around him.
“Matt!” she called, but he’d grabbed his briefcase, hurried down the center aisle, and left through the double doors. Anne didn’t go after him. She couldn’t apologize for representing her client. She couldn’t say she was sorry she’d won. She stood there, suddenly aware that two suits were hovering over her, an entire gallery was gawking at her, and several reporters were rushing at her with notebooks drawn.
“Anne,” the married lawyer said, in low tones. “I was wondering if you were busy tonight. I’d love to take you out to celebrate.”
A reporter elbowed him out of the way, shouting questions in Anne’s face. “Ms. Murphy, that was great! What a trick! What was the stripper’s name?” The press glommed suddenly around her, like bees to a Pulitzer. “Did you think you’d go to jail?” “What did your client think about that stunt?” “Would you consider a photo shoot this week, for our ‘up-and-coming’ feature?”
Anne shoved her way back to counsel table for her briefcase and bag, answering none of the questions and ignoring all of the stares. She screened out the world around her, which left her feeling the way it always did, a little dead inside. But at least she’d won the motion, and she’d deserved to win. Even without any case precedent, Anne knew in her heart she was right on the law.
Mental note: Only a beautiful woman can understand the true power of a naked man.
2
ROSATO & ASSOCIATES, read the brass nameplate affixed to the sky-blue wall, and Anne stepped off the elevator into the air-conditioned cool of the empty reception area. Navy club chairs, a blue-patterned Karastan, and a glass table covered with a slick magazine-fan formed a corporate oasis after the heat and hubbub outside. Holiday traffic had already started, and Anne couldn’t get a cab from the courthouse, so she had walked the twenty-five blocks in her Blahniks, which constituted cruel and unusual punishment. She kicked off her shoes and they tumbled over each other in a taupe blur.
“Faithless ones,” she said, then went over and rescued them.
She tucked them into her briefcase and padded barefoot to the reception desk, which was also empty. The receptionist must have gone home early, and a quick glance around told Anne that the whole place had cleared out. It was silent except for the echo of laughter at one of the far offices, near the corner of the building. She knew who that would be.
She picked up the clipboard they kept on the reception desk and scanned the list of sign-ins and outs. Bennie Rosato had signed out all day in depositions, and Anne breathed a relieved sigh. She would have a lot of ‘splainin’ to do for the naked-man motion. The telephone rang on the reception desk, and she picked it up. “Rosato and Associates,” she answered.
The caller was a man. “This is the Daily News, is Anne Murphy in? We’d like to ask her a few questions about—”
“I’m sorry, I’m not here.” Anne let the receiver drop into the cradle, and wh
en the phone began ringing again, pretended it was background music. She set down the clipboard and sorted through the while you were out pink slips to collect her own, then grabbed her mail and FedExes from the black tray bearing her name. She padded, stuff in hand, to her office.
Sunlight poured through the window behind her chair, bathing her messy desktop in a too-white glare and illuminating the dust motes in the air, agitated by the slightly damp lawyer. Her desk sat flush against the left wall and above it hung wooden bookshelves stuffed with law books, thick copies of the Federal Rules, a couple of legal thrillers, and outdated Neiman Marcus catalogs full of clothes she deserved to own but didn’t yet. Her office contained no photographs, and nothing hung on her walls except for her diplomas from UCLA and Stanford Law.
Anne dropped her messenger bag and briefcase on a chair, her mail and messages on the desk, then walked to her chair and sat down. The laughter sounded louder now that she was closer to the source, the two older associates, Mary DiNunzio and Judy Carrier. They were hanging out in Mary’s office, which doubled as their clubhouse.
She thumbed through her messages but her heart wasn’t in it. She couldn’t sit still. She felt jiggered up from her victory. She had called Gil on the cell to tell him about the win, but he hadn’t answered and she’d left a message. She hadn’t told him about the naked man, either; she’d wanted him to have deniability in case of her arrest. Now it would play out beautifully. She won!
Anne felt like celebrating. She heard the laughter again. Maybe she could take Mary and Judy out for drinks. She never had before, but why not? She had nothing else to do tonight except go to the gym, and she’d love to skip that for once. She worked out to burn off stress, but hated it so much it was stressing her. If this kept up, she’d have to go back to charging things.