Friday, June 17, 2:34 p.m.
The Honorable T.J. Putnam Chandler exhales with melodramatic disdain. The Presiding Judge of the San Francisco Superior Court–Civil Division can feign exasperation as convincingly as any jurist in Northern California. “Mr. Daley,” he bellows, “why are you wasting this court’s time on a beautiful Friday afternoon?”
As if I had anything to do with the scheduling of this hearing. I summon an appropriately deferential tone. “Your Honor,” I say, “we are here to contest the defendant’s motion for summary judgment.”
The three-hundred pound Brahman responds with another pronounced sigh. The fifth-generation San Franciscan firmly believes his appointment to the bench was an entitlement bestowed upon him by birthright. To those of us who have the privilege of appearing before him, it’s common knowledge that Putty Chandler is well into the back nine of a thoroughly undistinguished judicial career. The dour bureaucrat has to go through the motions for six more months before he can start collecting his pension and retreat to a cushy corner office in a private mediation firm where he can work a couple of days a week for triple his current salary—as if he really needs the money. His more immediate concern is that he may be late for his regular three-thirty tee time at the Lake Course at the Olympic Club.
Judge Chandler leans forward in the custom leather chair he had to buy on his own dime. The state budget covered the construction costs of the workman-like civil courthouse across McAllister Street from City Hall, but there wasn’t much left over for furniture. His bushy right eyebrow shoots up toward his mane of uncombed gray hair. The Einstein look is better suited to physicists. His voice fills with its customary scorn. “You’re a criminal lawyer, aren’t you, Mr. Daley?”
“Yes, Your Honor.” I prefer the term defense attorney.
“That means you spend your time representing criminals, doesn’t it?”
It will serve no useful purpose to remind him that everybody who watches Law and Order knows we’re supposed to pay lip service to the concept that you’re innocent until proven guilty. The Putty Chandlers of the world draw no substantial distinction between people who are accused of crimes and those who are actually convicted—or, for that matter, the attorneys who represent them. “We take on pro bono civil matters from time to time,” I tell him. “This case was referred to us by the Haight-Ashbury Legal Aid Clinic.”
He’s unimpressed. “As I recall, the last time you were in my courtroom, you were trying to make the world safe for panhandlers.”
“Something like that, Your Honor.” A couple of years ago, I filed a civil suit for false arrest on behalf of a homeless man on the theory that the cops had violated his constitutional right of free speech. It wasn’t precisely what the Founding Fathers had in mind when they drafted the Bill of Rights, but it seemed like a good idea at the time. Not surprisingly, Judge Chandler ruled against me. That case is still working its way up the appellate ladder.
He points his gavel in my direction. “Mr. Daley,” he says, “I trust you understand we try to conduct ourselves with greater professional decorum over here in the civil courts?”
“Absolutely, Your Honor.” I don’t care how many of your inbred ancestors are living off their trust funds in Pacific Heights—you’re still a pompous jackass.
I shoot a glance at my law partner and ex-wife, Rosita Fernandez, who is providing moral support from the front row of the otherwise empty gallery. I met Rosie at the Public Defender’s Office two decades ago. I was fresh out of Boalt Law School after a brief and unsuccessful attempt at being a priest. She was fresh off an acquittal in a capital murder case after a brief and unsuccessful attempt at being married. After a string of victories, the State Bar Journal boldly proclaimed we were the best PDs in Northern California. Then we made the tactical error of trying to transform a successful working relationship into a more intimate one. We quickly discovered we were more adept at trying cases. The wheels fell off our marriage two years after it started. After a five-year cooling-off period, we formed the tenuous law partnership we’ve operated slightly north of the subsistence level for the past decade.
“Mr. Daley,” the judge says, “I understand the plaintiff is claiming she was injured by a product manufactured by the defendant.”
“That’s correct, Your Honor.” That’s why it’s called a product liability case.
I steal a look at the plaintiff’s table, where my client is staring intently at her jet-black fingernails. Andrea Zeller is a sullen young woman whose closely cropped pink hair, twin nose rings, and gothic tattoos project an acceptable professional image for her day job as a sales clerk at Amoeba Music, a cavernous store in a converted bowling alley in the Haight. When she isn’t peddling CDs, she plays bass guitar for a heavy metal band known as Death March. She prefers to be called by her stage name, Requiem. I’ve tried, without success, to explain to her on several occasions that patrician judges like Putty Chandler tend to have little empathy for people who exercise their right of free expression through body piercings and tattoos.
“Your Honor,” I continue, “we have fulfilled our obligation to provide prima facie evidence that Ms. Zeller’s injuries were caused by a defective product. The defendant’s motion for summary judgment therefore should be denied.”
This gets the attention of my worthy opponent. The aptly named Gary Winer is a cloying, owl-eyed man with large, horn-rimmed glasses, a horrific comb-over, and a grating nasal voice. He’s spent the past thirty years trying to make the world safer for insurance companies. He has also perfected a legal strategy that may be summarized in three words: delay, delay, delay. He nods reassuringly to his client, a greasy, middle-aged man whose ill-fitting black suit matches the bad toupee that he probably bought on eBay.
Winer stands and addresses Judge Chandler. “Your Honor, the plaintiff wouldn’t have been injured if she had followed the easy-to-understand instructions included with my client’s product.”
“She did,” I say. Well, more or less. “The on-off switch didn’t work properly.”
“Your Honor,” Winer drones on, “my client has rigorous quality control standards. Nobody has ever complained about the switch.”
“There’s always a first time,” I say.
Winer won’t let it go. “This is what happens when criminal lawyers bring civil cases. They don’t understand our procedures.”
Now that’s a cheap shot. “Your Honor,” I say, “the Civil Code isn’t that much more complicated than the Penal Code.”
“Nevertheless,” Winer continues, “if Mr. Daley insists on proceeding with these unsubstantiated charges, we will need additional time to conduct a full structural analysis of this product.”
He’s stalling. “Your Honor,” I say, “we don’t need to take up this court’s valuable time with expensive experts to prove Ms. Zeller was injured when the defendant’s product malfunctioned. We’ve submitted an affidavit from a reputable engineer attesting to the design flaws in the switch. We’ve provided a sworn statement from her doctor and copies of her medical bills. Unless Mr. Winer’s client is prepared to reimburse Ms. Zeller for her medical bills and lost wages, this case should move forward to trial.” So there.
Putty Chandler’s chin is resting in his right palm. “Mr. Daley,” he says, “what can you tell me about the product in question?”
“It might be more appropriate to have that discussion in chambers.”
Have it your way. “If I might ask the bailiff to bring it over to you.”
Judge Chandler’s bailiff is a world-weary African-American woman with the unenviable job of trying to keep her boss from making an ass of himself—no small assignment. “Your Honor,” she says, “counsel’s point might be well taken.”
He doesn’t take the hint. “Is it offensive?” he asks.
“Then please deliver it to the bench.”
Her eyes dart toward the ceiling, then she dutifully hands him a shoebox marked with an evidence tag. The judge removes a device that’s the size of a screwdriver. He takes off his glasses and examines it. “Mr. Daley,” he says, “is this some sort of power tool?”
You might say that. “It’s a marital aid,” I tell him.
“What does it do?”
The same thing as Viagra. “It stimulates erotic feelings.”
He quickly sets it down on the bench. “How was your client injured?”
How do I say this? “The on-off switch jammed as Ms. Zeller was, uh, gratifying herself. She sustained bruises in certain sensitive areas.”
He’s getting the idea. Thankfully, he doesn’t ask for additional details. A reasonable argument could be made that Requiem didn’t use the product in precisely the manner contemplated by the easy-to-understand instructions.
“Your Honor,” Winer says, “Mr. Daley has not provided any evidence our product is defective.”
“I’d be happy to show you,” I say.
“Your Honor—” Winer implores.
The judge stops him with an upraised hand. “Approach the bench, gentlemen.”
We do as we’re told.
The judge puts a huge paw over his microphone. “We’re off the record,” he whispers. “It seems to me the most expedient way to decide this matter is to have a demonstration of the allegedly defective equipment.”
“Fine with me,” I say.
“That would be highly irregular,” Winer says.
“I want a demonstration, Mr. Winer,” the judge says.
It’s my cue. “It works just like a flashlight,” I explain. I slide the switch to the “On” position and it springs to life.
Judge Chandler’s interest is piqued. “How do you turn it off?” he asks.
“That’s the problem.” I keep my tone clinical. “It’s supposed to shut down when you slide the button back to the ‘Off’ position. Unfortunately, it doesn’t.”
“Your Honor—” Winer says.
I cut him off. “I don’t expect you to take my word for it, Mr. Winer.” I hand him the pulsating equipment. “Move the button to the ‘Off’ position.”
Gary Winer has many talents, but manual dexterity isn’t one of them. He corrals the bucking bronco and holds on for dear life. He makes a heroic, but ultimately futile, attempt to manipulate the switch. “I can’t get it to stop,” he says.
“Neither could Ms. Zeller,” I reply.
Winer loses the handle and inadvertently flips the merchandise in my direction. I snag it just before it hits the floor.
The judge can’t contain a smile. “Nice catch, Mr. Daley,” he deadpans.
“Thank you, Your Honor.” I make a big display of pretending to jimmy the switch. “I think we’re going to have to remove the batteries.”
“You’ve made your point, Mr. Daley.” Putty Chandler turns to his favorite page in the judicial playbook: trying to broker a quick settlement. “Did Ms. Zeller sustain any permanent injuries?”
I answer him honestly. “No, Your Honor.”
“How much were her medical bills?”
“About ten thousand dollars. Her lost wages were another five grand. I’ve told her she’s unlikely to collect punitive damages.”
“So you’re willing to dispose of this case for fifteen thousand dollars?”
“Yes, Your Honor.”
“Are you prepared to keep the settlement terms confidential?”
“Absolutely.” Requiem isn’t interested in making a statement—she just wants the cash.
Judge Chandler’s pleased expression suggests he may make it to the Olympic Club after all. He turns his attention back to Winer. “You can make this go away for fifteen grand,” he says.
“If we admit liability, we will be inundated with frivolous lawsuits.”
“Mr. Daley has already agreed to keep the terms confidential.”
“But Your Honor—”
“Let me put it this way, Mr. Winer. If you don’t settle this matter in the next ten seconds, I’m going to rule there is sufficient evidence to move forward and that Ms. Zeller may assert claims for punitive damages. A full-blown trial will run your client at least six figures in legal fees—not to mention the possibility a jury may come back with a verdict for a lot more than fifteen grand. You know how unpredictable juries can be, don’t you, Mr. Winer?”
“Yes, Your Honor.”
“You’re going to make this go away, aren’t you, Mr. Winer?”
“Yes, Your Honor.”
I’m not inclined to quibble about whether Judge Chandler is trying to serve the interests of justice or the interests of getting in eighteen holes before the sun goes down. Either way, Requiem comes out ahead.
“Step back, gentlemen,” the judge says to us. He turns to his court reporter. “I have good news. Mr. Winer and Mr. Daley have agreed to a confidential settlement of this case. Have a nice weekend, everybody.”
# # #
“Nice work,” Rosie says to me.
“Requiem was very appreciative,” I reply.
“I’ll bet.” Rosie’s cobalt eyes twinkle as we’re standing in Judge Chandler’s empty courtroom. “You just made the world a safer place for consumers of sex toys.”
“It will be my lasting legacy to the justice system—and mankind.”
Her right eyebrow shoots up in a manner I still find irresistible. “Did you tinker with the switch to make sure it wouldn’t turn off?”
“That would have been dishonest.”
“I’ll take your word for it. I trust you appreciate the irony of an ex-priest representing a client named Requiem in a case involving a sex toy?”
“I wasn’t planning to tell the Archbishop.” Enough gloating. “Is Grace going out with Bobby again tonight?”
Our sixteen-year-old daughter was one of the few positives to emerge from our marriage. “They’ve been spending a lot of time together,” I observe.
“Yes, they have.”
Bobby Fairchild isn’t Grace’s first boyfriend. He is, however, her most serious. They met at a high school science fair last October. As far as we can tell, their relationship has been reasonably tame. He’s the sort of kid that I’d like Grace to marry—in another twenty years. He graduated last week from the prestigious and very private University High School in Pacific Heights. He’s on his way to Columbia in the fall. His father is a Superior Court judge who is on the fast track to the federal bench. His mother is a neurosurgeon at UCSF.
“You need to start dealing with it like an adult,” Rosie says.
“I’m trying. Is your mother staying with Tommy tonight?”
Our energetic four-year-old son was an unplanned surprise long after Rosie and I split up. Around the same time, we decided to move forward as a permanent—albeit unmarried—couple. Life is full of compromises.
“Does that mean we have time for an early dinner to celebrate my great victory?” I ask.
The door swings open and San Francisco’s newly elected Public Defender strides forcefully down the center aisle. After three decades of toiling in the trenches, Robert Kidd finally got his chance to fill the top spot of the office he’s served capably for so long.
“What brings you to the civil courthouse?” I ask him.
In a modest accommodation to the realities of modern political campaigning, our former mentor has ditched his Men’s Wearhouse suits for a more polished Wilkes Bashford look. Nevertheless, the charismatic sixty-year-old still embodies the working-class values of his upbringing in the Mission District. His hair is thinner and his jowls are larger, but his clear blue eyes still radiate the same intensity I first saw when he was promoted to the head of the felony division. At six-two and a lean two hundred pounds, he starts every morning with a six-mile run across town to the functional new building a half-block south of the Hall of Justice that houses the PD’s Office.
“I just saw Putty Chandler heading to his car,” he says.
“Did he have his golf clubs?” I ask.
“As a matter of fact, he did. He said you’re developing a new specialty in the law of sex toys.”
“It was a cameo appearance on a pro bono case. On Monday, we’ll be back in the trenches fighting the good fight on behalf of drug dealers, pimps, and other small-time crooks.”
“Glad to hear it.”
My ever-practical ex-wife interjects. “You didn’t come looking for us on a Friday afternoon just to give us a hard time for taking a civil case,” Rosie says.
“I wanted to see if you’ve had a chance to consider my very attractive offer.”
He’d asked us to take over his old job as head of the felony division at the PD’s Office.
“We’re still thinking about it,” I say. “We’ve been busy.”
“Working on civil cases.” It’s the ultimate put-down to a defense lawyer.
“We take a few pro bono referrals from the Bar Association. Ninety-nine percent of our work is criminal.”
“One hundred percent of our work is criminal. You aren’t a civil lawyer.”
“I’m a very civil lawyer. We just don’t handle many civil cases.”
“We don’t handle any.”
“We like to pick our clients,” Rosie says.
“Most of whom are flaky or deadbeats—or both,” he says. “Not to mention the long hours, the little thanks, and the lousy pay.”
“That’s no different from the PD’s Office,” Rosie says.
“True enough, except you’d be working for me—that should count for something.” He turns serious. “I’m trying to upgrade the quality and reputation of our office. I need competent people like you to train the next generation.”
“We’re flattered,” I say, “but we’re trial lawyers. We don’t want to spend the next ten years shuffling paper.”
“I’ll get you help with the admin stuff. I’ll let you pick some cases to try. We have decent health benefits and a good retirement plan. You aren’t going to get rich, but you won’t starve. It’s a pretty good deal when you have one kid heading to college soon and another who’s starting grammar school. I might even be able to offer you some flexibility in your hours.” He flashes the recently developed politician’s smile that’s still a work in progress. “What’s it going to take to get your answer today?”
“You sound like a used car salesman, Robert.”
“Cars. Lawyers. It’s all the same.”
“We understand the urgency. We’ll get back to you as soon as we can.”
The Public Defender of the City and County of San Francisco nods and heads toward the door.
“What do you think?” Rosie asks me as soon as he’s out of earshot.
“It may be a chance to work on some interesting cases for a good guy. We’d get to train some talented young lawyers. It would be a regular paycheck and decent benefits. He’s even willing to let us work part-time.”
“I’m not sure I’m ready to cash in our chips to go back to a job that we left fifteen years ago. It’s a step backward.”
Rosie gives me a thoughtful look. “Maybe it’s a step forward,” she says.
# # #
I’m lying in bed, thinking about Robert Kidd’s offer, when my phone rings. I can tell immediately from the tone of Rosie’s voice that something is terribly wrong. “I need you to come over right away,” she says.
“Are Tommy and Grace okay?”
“What about your mother?”
“She’s fine, too.”
I flip on the lamp in the bedroom of the tiny fifties-era apartment where I’ve lived since Rosie and I split up. There’s just enough room for a sagging double bed, a worn oak dresser, and a couple of mismatched nightstands. My eyes struggle to adjust to the light as I squint at the watch my grandfather acquired for a sack of potatoes in Galway City over a hundred years ago—or so our family legend goes. Gramps was also an accomplished pickpocket. Either way, I know for a fact my father wore the same watch as he walked the beat in San Francisco’s toughest neighborhoods when I was born fifty-four years ago.
“It’s two o’clock in the morning,” I say to Rosie.
“If you wanted to work regular hours, you shouldn’t have become a defense lawyer.”
It would be a serious tactical error to elevate this discussion into a full-blown argument. “What is it?” I ask.
“Bobby called. It’s his father.”
“Is Judge Fairchild sick?”
“No,” Rosie says. “He’s dead.”