Preferential Treatment, page 21
“Yeah. I didn’t think I was going to find a place to sit,” Fabian replied. “I guess I got lucky.” He looked down at her glass and pointed to it. “Looks like you’re dry. Can I buy you another?”
“Yes. Bourbon—Makers with a splash of water, please.”
Fabian got the bartender’s attention and pointed to the woman’s glass. Nodding, the bartender retrieved a fresh glass, filled it with ice, and poured an ample amount of bourbon over the cubes. Remaining in the glass was only a scant amount of room for the splash of water. The drink was placed before her, and her spent one removed. She grabbed the glass, turned toward Fabian, and lifted it toward him. He responded in kind. The two glasses met with a clink.
“Cin-cin!” she said.
Maybe Italian, thought Fabian. Has the look.
“A votre santé!” Fabian replied in French, not to be outdone.
The woman laughed heartily, and both took healthy swigs from their respective drinks. Fabian could immediately feel the warmth from the Scotch, and a wave of relaxation washed over him.
Over the next ninety minutes the two exchanged small talk and continued to drink. They talked of their travels to faraway places—she to Europe where she studied Italian and German, and he to the Caribbean, particularly St. Martin, where he studied sun and booze and where he picked up a little French along the way. Occasionally, she would touch his forearm when she was making a point, a gesture he took as a promising sign. The two enjoyed each other’s company more and more as the evening progressed and as the liquor continued to do its job. From the extremely friendly nature of his new friend, Fabian received the distinct impression that the feeling was becoming mutual. He glanced down quickly at her left hand. He spied no wedding band. He looked at his left hand and was glad he had thought to leave his wedding ring at home. He had taken it off and left it off after his last spat with Betty-Lou.
Fabian looked at his watch.
“Am I boring you?” asked the young woman.
“Not in the least. It’s just that I haven’t eaten since I had a bagel at 7:30 this morning. I’m starving, and if I don’t get something in my stomach soon, I’m going to get shitfaced.”
“I haven’t eaten since lunch and I am shitfaced,” she giggled.
“Want to get a bite?”
“Absolutely. Where do you want to go?”
Fabian looked around the bistro. The tables that had been vacant previously were now fully occupied.
“I don’t know about you, but I have an aversion to dining with a lady while sitting at a bar,” Fabian said. He felt his head swoon a bit. Too much liquor.
“Likewise with a handsome gentleman.”
Fabian, suddenly empowered by the compliment, felt a stirring in his groin. He hadn’t been laid in three months, and he felt like that streak was about to end. He took a deep breath and said, “I hope you wouldn’t think I’m being too forward if I suggested that we order some room service.”
“Are you suggesting?”
“I am.”
“Then I say of course you’re being forward.” Fabian looked deflated. The woman smiled and quickly followed up with, “And I accept. Let’s order some dinner and another drink. Your room or mine?”
“How about yours,” Fabian suggested. “What’s your room number?”
“Five sixty-four,” she replied. “I’ll go freshen up. See you in a few.”
“Great!” Fabian exclaimed. “Let me pick up the bar bill, and I’ll be right up.”
“Thank you. Don’t be long.” She turned to leave and then stopped. She looked over her shoulder and winked.
Fabian paid the bar bill, tipped the bartender handsomely, and hurried toward the elevator. After what seemed like an eternity, the elevator door opened and Fabian jabbed the button for the 5th floor.
Fabian reached the 5th floor and trotted in the direction of Room 564. He rapped lightly, and the door swung open. Standing in front of him was his new friend and dinner companion. He drew in a startled breath and took one small step back. She had ditched her blouse and skirt and wore only a bathrobe—one provided by the hotel. Her breasts, mostly exposed, protruded under the robe and were sans bra. The diamond necklace still adorned her neck. She was barefoot, her toes painted a deep purple. Her hair, now undone from the ponytail, hung to her shoulders, slightly disheveled.
“Just thought I’d get comfortable. Hope you don’t mind,” she said, batting her long eye lashes.
Fabian was momentarily speechless as he marveled at this sexy, brown-eyed beauty. He moved toward her, placed his hand on her left shoulder, and gently guided her backwards into the room. Unable to contain himself, he placed his other hand on her right shoulder and drew her toward him. She did not resist. He kissed her deeply. Her tongue slipped into his mouth and he responded in kind. While still in their embrace, he deftly stuck his foot behind him and kicked the door shut.
“The hell with dinner,” they both said simultaneously.
The alarm clock on his nightstand had been set for 7:30 a.m. Somehow Fabian had managed to remember to accomplish that necessary task when he got to his room at 5:00 a.m. At the appointed hour the clock did its job and unceremoniously rousted him from a deep slumber. His head thumped from the copious amounts of Scotch he consumed the previous evening, but he felt good otherwise. He had cured his terminal case of horniness by having some of the most wonderful sex he had had in many years. Three orgasms in one night. Not too bad for an old guy, he thought. What a toe curler! And we still don’t know each other’s names. She passed out before I could make the formal introduction. Probably best for the both of us. Betty-Lou would cut my balls off if she knew where I was last night even though she doesn’t seem to want anything to do with me.
Fabian staggered to the bathroom, relieved himself, lathered up with shaving cream, and dragged a razor across his face. He came back to the bedroom and dialed room service—two eggs over easy with wheat toast and coffee—lots of coffee. After ordering, he took a shower, donned his black pinstriped suit, starched white shirt, and orange and blue club tie. He absent-mindedly leafed through his deposition prep notes while he awaited his morning meal.
After room service arrived, Fabian ate and tried to concentrate on his preparation for the day; however, he could not stop thinking of the woman with whom he had spent most of the previous evening and night. She was gorgeous and witty, and he chastised himself for not at least exchanging first names and maybe snagging her telephone number. But hell, for all I know she could be from L.A. or Seattle or somewhere that would make future encounters unrealistic, Fabian thought.
Fabian finished his breakfast and sopped up the remainder of the egg on his plate with a scrap of toast. The meal settled poorly. As the buzz he awakened with slowly subsided, an old fashion hangover began to settle in. He rummaged through his travel bag and found a bottle of Excedrin, a staple when he traveled. He popped three of the pills in his mouth and chased them with a handful of water from the bathroom sink. He thought maybe a couple of swigs of beer might settle his stomach, but on second thought, maybe not.
Fabian checked the time—8:45. In fifteen minutes he would be working, taking the first deposition in the Gunther case. He stood at the sink and looked at himself in the mirror. He looked like hell, eyes slightly bloodshot, face puffy and splotched. He turned on the cold water in the sink, soaked a washcloth, rung it out, and rubbed it on his distorted face. It felt good, but it did little to cure the self-inflicted wounds.
It won’t be the first time I’ve had to work feeling this shitty, he thought. I know I deserve this, but Jesus, last night was fun.
Fabian gathered his notes and the hospital chart and headed for the hotel’s mezzanine conference room that he had reserved for the morning. He thought he would arrive a little before the appointed hour, 9:00 a.m., just in case he could steal a few minutes of small talk with the nurse he was deposing to put her at ease prior to questioning her.
Fabian entered the conference room at 8:52. A court reporter was already present, her steno machine unpacked and loaded with paper. Neither the nurse, Jane Thomas, nor opposing counsel had arrived. Fabian wondered if, for some reason, neither would show up. It wouldn’t be the first time a witness got cold feet and reneged on a promise to voluntarily appear, and it wouldn’t be the first time opposing counsel failed to appear, either inadvertently or purposefully. Based upon Darnell’s description of Woodall, nothing would surprise him.
Fabian introduced himself to the court reporter who presented him with a card and her fee schedule. He shoved them in his briefcase without looking at them and selected a seat from which he could look out the window of the conference room while opposing counsel was droning on. Darnell had warned him about Woodall’s propensity to bilk the clock at depositions—in the rare event he took one—by asking repetitious questions. The more hours he could bill the more money he would make for the firm. While Fabian knew Woodall would never get away with such shenanigans at trial, this would only be a deposition. No judge to hear objections and keep the annoying practice from continuing, thus the seat looking out the window and plenty of paper to doodle on to pass the time.
At 9:05 a.m. the door of the conference room stood ajar and still no Woodall and no witness. The court reporter checked her watch and squirmed in her chair. Fabian shrugged his shoulders signaling “who knows” and rose from the table to pour a cup of coffee that had been provided by the hotel. His back was to the conference room door when he heard a woman’s voice say, “I’m so sorry we’re a little late, but I had to talk with the witness for a few minutes.” Amanda Cohen and nurse, Jane Thomas, hurried into the conference room and found empty seats. Cohen ripped open her briefcase and pulled out its contents—a legal pad full of scribbled notes and a thick copy of Joe Gunther’s chart.
Fabian was surprised by the apology coming from a woman, thinking Jeffrey Woodall would be the lawyer appearing for the defense. Not wanting to look surprised or too eager to begin, he poured milk into his coffee cup along with two sugars and stirred it slowly and deliberately, back still toward the door.
Cohen spied Fabian who continued to stir his coffee. She knew immediately that the man in the room, whom she presumed was her opposing counsel, was not her old boss, Ben Darnell. She surmised that she was finally going to get to meet the other half of the plaintiff’s team.
Fabian completed his ritual at the coffee pot and turned. He looked in the direction of Cohen and the witness and raised his right eyebrow. He was startled, but did not show it. He was a seasoned pro, cool as ice, and very little fazed him. Amanda Cohen’s eyes grew wide as saucers. Fabian and Cohen instantly realized that each was looking into the face of the person he and she spent hours ravaging only hours before.
Fabian charged toward Cohen, hand outstretched. Cohen stood and stiffly reached out to shake Fabian’s hand. She looked shaken and flushed. She also looked much like Fabian remembered himself looking like while staring at himself in his room’s mirror moments ago. Although she appeared a bit disheveled, a bit puffy, and now sporting large frame horn-rimmed glasses, she still looked beautiful to Fabian. Fabian thought he felt her tremble as he shook her hand. She tried to compose herself, but she was failing miserably.
“Jack Fabian,” he said with a broad smile. “And you are?”
“Uh, Amanda Cohen, Jeffrey Woodall’s associate and co-counsel,” Cohen said almost in a whisper. She forced a smile, but it was readily apparent she was aghast. Abruptly, her angst turned to anger—at herself and the smiling lawyer still clinging to and pumping her hand. You jerk, she thought. How could you let this happen? Can’t you control your goddamned hormones? She wasn’t sure to whom her thought was directed—herself or the handsome man she had boinked all night and into the wee hours of the morning. Probably both.
The young lawyer withdrew her hand from Fabian’s, took a deep breath, and tried to compose herself. She looked nervously at the court reporter and then at the nurse sitting to her left. She felt as if they could read her like a book and knew something was terribly wrong. Fabian, however, thought she was extremely poised under the difficult and embarrassing circumstances. While he felt somewhat sorry for her in her situation, he was mildly amused.
Fabian reflected on what had transpired. Boy meets girl. Boy and girl get drunk. Boy and girl neglect to ask each other’s names. Boy and girl bang each other’s brains out all night long. The next day boy and girl meet as opposing lawyers in a huge medical malpractice case! Sounds like a bad soap opera. He shook his head slightly in disbelief and introduced himself to the witness nurse.
After the introduction, Fabian’s smile rapidly disappeared. He no longer looked like the friendly, jovial, and sexy man Amanda Cohen had met the night before. Fabian grabbed his notes and legal pad. “Let’s get started, shall we?” he barked. “Please swear the witness.”
Fabian’s examination of Jane Thomas went as he had expected. There were no real surprises. She had been a registered nurse for seven years. She recited her duties before, during, and after Joe Gunther’s surgery.
Fabian established that she had never been in surgery with Montgomery and had never participated in aneurysm surgeries with any of the rest of Gunther’s surgical team. Importantly, he learned from the nurse that there was no surgical team discussion with the doctor or the other team members prior to surgery.
Fabian, a seasoned veteran of the malpractice wars, knew that one of the favorite tricks of some unscrupulous members of the defense bar was to have a medical witness at trial have sudden recall of a critical fact that was not recorded in the patient’s chart. Often, the recalled fact was one that could torpedo or seriously damage a plaintiff’s case. He always made a habit of trying to shut the door on this sneaky tactic by locking in the witness’s recollections during a deposition, presumably when his or her memory would be fresher closer to the time of the alleged malpractice than at the time of trial months in the future.
Through his meticulous questioning, Fabian established that as far as this deponent was concerned, the chart was complete and accurate and that the nurse recalled no unrecorded facts.
Satisfied with the answers he received, Fabian looked at Amanda Cohen for the first time since his questioning began. A cocky smile flashed across his face. “I have no further questions at this time. Do you care to inquire, Ms. Cohen?”
Cohen, still shaken from the revelation that her adversary was also her last night’s roll in the hay, frowned. “I think this might be a good time to take a short break. Mr. Fabian, may I have a brief word with you in private, please?”
“Certainly. Let’s take a ten minute break.”
Cohen and Fabian pushed back from the conference room table. Cohen charged out of the room, and Fabian followed. She scurried down the hall seeking a place where she could have some privacy for her confrontation with Fabian. She found a small alcove and ducked in. She looked at Fabian, fire in her dark eyes.
“What the hell are we doing, Mr. Fabian?”
Fabian grinned. “Call me Jack, please. Don’t you think we know each other well enough to skip the formalities? And may I call you Amanda—or do you prefer Mandy?”
“Cut the shit. We’ve got a big, big problem here.”
“A little late to worry about that now isn’t it, Counselor?” Fabian quipped.
“No, it’s not. There’s got to be some ethical quandary we find ourselves in, don’t you think?”
“And what Rule of Professional Conduct have we broken may I ask?”
“I left my ethics code at the office. Even if it’s not an ethics violation, it stinks.”
“Come on, Amanda. What have we done wrong? You picked me up in a bar, took me to your room, fucked me until I couldn’t stand up, then I went to bed. Nothing was discussed about the case—no pillow talk, just some screams and moans, if I remember correctly. Hell, we didn’t even come up for air long enough to ask each other our names. Who could fault a guy and gal for that? Good old fashion fun, as far as I can see.”
“Without quibbling about who picked up whom, which is not the point, I think both of our clients would probably have a problem knowing that each of his lawyers had a fling with each other when they were supposed to be battling each other to the death for their client’s cause. How would you like it, Jack, if you were in your client’s shoes?”
“Okay. Touché on that point. Probably would raise my eyebrow a bit. But let me ask you a question. What’s your solution? Are you suggesting we go to our respective clients and confess our sins? Let’s see how that plays out: you go to whatever insurance company insures Montgomery and you say to the adjuster in charge, ‘Sam, I boinked my opposing counsel in the Gunther vs. Montgomery case the night before the first deposition in the case. I didn’t know who he was at the time. I got drunk at the hotel bar where I was staying when I should have been preparing. We got together and ended up in my room. I guess my firm and I are going to have to get off the case.’”
Fabian paused, pressed his two index fingers together, laid his fingertips on his pursed lips, and frowned. “I don’t think that would play too well in Peoria, do you?”
Cohen hung her head. “I guess not. Probably would be a career ender for me, at least at Darnell-Smyth. Somehow, I don’t think that would be a forgivable offense.”
Fabian stayed on the offensive. “And what am I supposed to tell Ben Darnell? I’m screwing the opposition, and not in the way you should be expecting me to.”
“Oh, God! Mr. Darnell has been one of my biggest mentors for the past five years. He would be tremendously disappointed in me.”
“And probably in me, too. Hell, it might knock me out of a nice fee.”
“So, what do you think we should do? We’re kinda in this mess together, whether we like it or not.”
