Fiction contest winner: 'Good News, Bad News'

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hourglass with wilderness inside

Illustration by Marc Burckhardt

Good news and bad news alike arrive in the same way. In a letter, placed in a mailbox on the first floor of the office. Mailbox is a generous term. It's really a small wooden cubby with a name pasted on it using one of those label-makers grocery stores used to use. Thursday was no different; and when bad news came in, it sat there until 3:55, when I picked it out of the cubby and leafed through it in the mail room—not so much reading it as looking for the overall thrust of the decision. "Motion denied. Domestic violence order vacated." Signed and dated, Circuit Judge.
Good news and bad news alike arrive in the same way. In a letter, placed in a mailbox on the first floor of the office. Mailbox is a generous term. It's really a small wooden cubby with a name pasted on it using one of those label-makers grocery stores used to use. Thursday was no different; and when bad news came in, it sat there until 3:55, when I picked it out of the cubby and leafed through it in the mail room—not so much reading it as looking for the overall thrust of the decision. "Motion denied. Domestic violence order vacated." Signed and dated, Circuit Judge.

Bad news exists from the time the tragedy happens, here from the time the judge signs the order. But, it's funny how—when totally oblivious of the event—life continues without change. The concerned carry on tranquilly, ignorantly, until the news is revealed.

By the time I read through the order back in my office, a small rectangle with 20-year-old wallpaper, it was nearly a quarter after 4. And by the time I read the rules for appeal, nearly 4:30. By the time I made a few notes and looked up the client's phone number, it was bordering on a quarter till.

Not enough time for a good discussion.

She may be getting dinner ready.

It's unlikely she'll hear from her ex tonight.

Best not to rush into it. Think it over.

I resolved to call her Friday and deliver the news ... and stewed on the prospect of delivering bad news all evening and as I lay in bed, wishing for sleep.

Friday morning is time for motion hour, and the first Friday of the month is motion hour in Fayetteville, the seat of Lafayette County. It's a better motion hour than the third Friday of the month, which is motion hour in Cupp, seat of Cuyler County, Kentucky. Better because Fayetteville is no more than 40 minutes away while Cupp is a solid hour and half—and they both start at 8 o'clock. Every Thursday afternoon I write the court clerk's number on the inside of one of my manila case folders, in case I'm late. With court so close, I don't have to get up quite so early, but the clerk's number is still carefully tucked in my bag.

It's morning in Eastern Kentucky and it's not so late that the clouds don't cling to the hollers between the green hills, dropping their mountain dew. And fogging my windshield. I keep the front windows cracked because the air conditioning doesn't work ... and to let the moisture out that gets in when I forget to roll the windows up when it rains. Lately one of the electric windows has been finicky, but today it's working and I crack the window a little bit and the rush of cool air clears the fog from the windshield.

It's still warm and I consider lowering the driver's window all the way and letting my arm out and the rush of air in. Pride, self-absorption or a false sense of duty intervenes. It's a court day; I have my suit. I won't let the wind in to ruin my hair. Court, hearings, trials: They're all shows and the hair is a piece of it.

The gears grind a bit as I put it into third a little too aggressively for the road-worn vehicle. I listen to NPR until I get a few miles from town. The radio antenna broke going through a car wash a while back and gets limited range. I tend to lose reception somewhere around the turnoff for Maxy Flatts. Once it does, the best thing to listen to are the Jesus stations, of which there are more than a few. A lot of them sell financial advice during the commercials—they always tell me it's a good time to buy gold.

A radio-vangelist takes me the rest of the way to Fayetteville. I'm not late, but there are no spaces in the parking lot when I get there and park on one of the back roads. It means I go in the nondescript back door, not through the grand entrance they just redid. The courthouse sits on a hill, and they redid the steps by the front door with its wide porch and columns so the stairs now reach out in every direction down the hill. They seem to be doing work on the courtroom too, but it's not clear what. They've torn down some walls and insulation. Hopefully they're making it a little tighter for the winter, when it's freezing in the courtroom.

The lawyers at motion hour sit in the jury box, and in chairs and pews in front of the bar and behind counsel's tables. Most of these courtrooms have a swinging gate that separates the members of the bar from the public pews, just like the movies. But today I have a client with me, so I sit in the public pews with her, where we talk in hushed tones about what's going on, what to expect, how to behave when the judge calls our case. Today I'm asking for a temporary custody order.

My client is probably five or six years older than me, but looks older. Though when our case is called, I escort her to the bench exuding—or imagining to exude; it doesn't matter which—a weight of confidence usually borne by experience.

The hearing is held right there in the middle of motion hour. The only witnesses are the parties, questioned by their lawyers. It's a typical case—Mom is the primary caretaker: She takes them to the doctor, to school, fixes meals, etc. We finish our case in about five to 10 minutes and Dad's lawyer does the same thing, except she—the lawyer—is more aggressive: My client is bad and the lawyer proceeds to elicit a number of bad stories about Mom. Two or three in, I object. "Your honor, she knows better than this," I say, gesturing to the lawyer with my yellow pad. "None of this is relevant to this motion and the question of custody." Or at least that's what I imagine that I said, the essence of which was "Objection, relevance," but in a more wordy, country lawyer type of way. What I really said, I have no recollection. I only remember the eruption that followed.

"Mr. Bailey, you know better than to object like that! Didn't they teach you better than that in law school!?"

As soon as the judge in his high chair barked the admonition at me, I had no idea what my objection had been, or at least what I had said. The air stood still and the low rumbling chatter of the courtroom disappeared. With the quiet came a primal awareness of many sets of eyes locked in on me, excepting opposing counsel, who avoided eye contact and—chin to chest—intently studied the floor. The admonition had everyone's attention.

The bench isn't that high, but he's sitting higher than me and I'm standing. I had been standing tall, confidently, but now I'm lost and only see him glaring down at me. I think I'm supposed to talk, to respond. But I have no idea "how I objected." Did I say: "Your honor, [the other attorney] knows better than that. ... This isn't relevant." Which is actually how I was taught in trial skills class. I have no idea what has happened in the last 90 seconds other than I said something and the judge took unusual offense and, having barked at me from the bench, now has the murmuring courtroom silent all looking at me.

"Sorry, your honor." I capitulate. And I think: Should I make my objection again, but formally? I hesitate and the moment is gone. Probably for the best. If relevance was the objection (I think it was) then I've drawn his attention to it. The opposing attorney isn't pushing the issue anyways.

By the time it's my turn to talk again, I've regained my footing and my embarrassment is consumed by the task at hand: a temporary award of custody and use of the home. The argument ends and, despite his outburst, he grants my request. In full. I've eaten crow but pretend I feel a little better about it because I did right by my client. Zealous advocacy through sheepishness? Although I try to satisfy myself from the very public shaming by focusing on the result, the judge's lashes still sting and I know no one in front of the bar will soon forget it.

As I pack up my bag, the elder stateswoman of the family bar says something nice—something about the judge not taking his meds today. I'm not sure if she's making conversation or having pity on me. Either way, it's a nice gesture in the midst of a feeble start to the day.

From Fayetteville I head north toward Clarksburg and a meeting with a client. At the intersection where the bypass rejoins the main road there's a new anti-drug poster. "Volleyball my anti-drug" is the caption to a 4x4 poster mounted on a barbed-wire fence. The picture drawn in Magic Marker is of a sticklike girl figure with a ball and net. It's OK. My favorite was the one of the guy with the pink pig whose anti-drug was "hog showing."

Clarksburg is an old town. A river town. One that's seen better days, and so have its residents. There are beautiful old houses through the town, by the river and on the bluff above it. They all seem like they need more attention than the town and its residents can spare. The door I knock on today is one I've seen before, one that opens on a maze of a floor plan with grand foyers, dining rooms, stairways and cupboards divided randomly to create apartments—the kind with old glass door handles and uneven oak floors that creak when trodden.

I've got something that needs signing and I don't trust sending it in the mail. Not at the fault of the mail, but in the fault of my written instructions. Directions to sign, date and notarize challenge the challenged. I once applied to teach English overseas, and I utterly failed the role-playing part of the interview, tripping up over the explanation of simple concepts to a student who lacks an understanding of simple words. I've gotten better since then, but the phone is always better than a letter and an in-person visit is always better than the phone. Anyways, she's one of my favorite clients. A sweet young woman, without fail she always calls me Mr. Belding. Belding is not my name.

I rap on the door. "Laura," I call. "It's Ernie Bailey."

There's some movement inside, and the door opens and she squints at the sun shining over my shoulder. I repeat, "Hi Laura. It's Ernie Bailey—I've got those papers for you to sign. Like we talked about over the phone yesterday."

"Oh! Hey, Mr. Belding," she smiles and says, inviting me inside.

Her home is neat, though the landlord should really have replaced the carpet a decade or so ago. A box of pink toys and dolls betrays the usual presence of a little girl. I go through the documents on the coffee table as we sit on the couch. She signs without question. I notarize it above the line with my printed name: Ernest Bailey.

I tell her I'll copy the papers back at the office and send her a copy. Give her another copy of my card, a reminder of my phone number, and tell her to call me with questions or if anything comes up.

"OK. Thanks, Mr. Belding."

After a trio of Cincinnati cheese coneys, I take the road back to the office, windows down, watching the passing fields, farms and cattle, chasing the smell of rain that has already passed. The midday storm has left in its wake a blue sky and a quickly evaporating damp. I try to empty my head and avoid dwelling on the morning's events and worrying over the delivery of the bad news that's been waiting since the day before. It works, up to a point. Waiting to deliver bad news is never a good idea. You risk them getting the news secondhand. And it festers in the body of the messenger. Unmet obligations are the ephemeral cause of ulcers, hair loss and most other maladies that show with age. I resolve to deliver the news as soon as a I return. Or try; she might not even answer, and if she doesn't I'm not going to leave any message other than to call me on the machine.

She picks up on the second ring.

"Ms. Nappier, it's Ernie Bailey," I say, waiting only briefly for an acknowledgment. "I wanted to give you a call. We got the judge's order in the mail and unfortunately it's not good. He denied our motion."

Am I talking too fast? "The judge said that we weren't entitled to a protection order and we didn't show the girls were endangered with Dad. Therefore, judge said Dad didn't need supervised visitation, and we hadn't justified reducing Dad's visitation." A complete loss.

We'd had the hearing about three weeks ago. It had gone most of the day in the upstairs courthouse in Cupp. A town with a courthouse, grain silo and a diner with the best fried chicken in the state. Before I started venturing there, the town had put tape over the parking meters around the courthouse, conceding the lack of traffic to town, even on court days.

In the courtroom, the opposing attorney wore a gangster's suit with black and white patent-leather shoes. He once told me he buys 300 used suits at a time from some guy in his old neighborhood in Chicago. I don't know that I believe him, but he gave my client a good working over on cross-examination.

She was the kind of client that bordered on difficult. She easily qualified as challenging, with lots of questions and lots of demands on what "had to happen." I tried to prepare her for any outcome, but she refused to acknowledge the possibilities, as if she could mold the outcome through sheer stubbornness. So we pressed on with a full attack on Dad, his inattention, inappropriate behavior, cavorting, drunkenness, and a long list of Mom's complaints. In the end the judge didn't buy it. Any of it. I thought he was wrong, but not terribly wrong. And almost certainly acting within his discretion.

I explained as much to the client. Talked about the possibility of appeal. I didn't have much hope for one. But if she wanted, we could talk about it and whether we could help her with it. "But there's only a limited time period to appeal, so if you want to do it, we need to talk again early next week." I'd been talking straight for about 15, maybe 20, minutes now without interruption, and almost without pause. A loud TV on in the background was about the only sign that she was still there. Now both of us were silent and I waited for some response. An angry question. Quiet sobbing. Yelling. Her actual response was unexpected.

"Nah, I don't want to appeal. I guess if the judge thinks he ain't done nuthin' too bad, then I guess he hasn't."

Her response caught me off guard—it was accepting, but not one of defeat or resignation. I should have shut up and listened but started babbling, tripping through a rehearsed apology for an outcome that didn't go the way we wanted.

"Oh, that's all right, Mr. Bailey; you worked really hard for us. I ain't never had a lawyer before, and someone had to stand up to Roy and tell him he can't ack like this. Maybe he'll behave a little better now; I know he don't want to pay no lawyer fees again," she said with a laugh. "Well, I better get to fixin' supper. Thanks for your help, Mr. Bailey."

This story originally appeared in the January issue of the ABA Journal with this title: "Good News, Bad News: After a prickly motion hearing, a challenging client delivers a surprise to her lawyer."

In September, we announced the results of the second annual ABA Journal/Ross Short Legal Fiction Contest. The winner of the $3,000 prize was first-time author Jason Bailey, a civil and domestic lawyer who currently practices in Grand Junction, Colorado. His short story, published here, was inspired by his experiences as a newly minted attorney working for Legal Aid of the Bluegrass in Covington, Kentucky—a Legal Services Corp. entity. Bailey, who graduated from the University of Kentucky College of Law in 2005, provided free civil, family and housing law representation for poor and indigent clients throughout the state. "It was my experience in Kentucky that the need for legal services far outstrips the ability to provide them, either on a pro bono or small fee basis," Bailey told the ABA Journal. He says he would like to see increased funding for the LSC and its entities such as Legal Aid of the Bluegrass. "It's a great deal for taxpayers," he says. The LSC and LSC entities "provide important legal services at an incredibly low rate to taxpayers, but it goes beyond helping poor people. We have to ensure that everyone has access to the justice system."

The annual contest, supported by the Erskine M. Ross Trust, is intended to encourage literary fiction that illuminates the role of the law and lawyers in society.

Winning short stories in the Ross Essay Contest:

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