Dave Petrosian
I found Kiah’s brief lying on my desk when I arrived in the office at eight thirty on the Monday morning. It was in a brown envelope marked ‘extremely urgent’. I’d had a good weekend. Well, why wouldn’t I? I was looking forward to the week ahead and its promise of success. There’s always a certain pleasurable anticipation when you’re about to go to court on a motion you can’t lose. Motions you can’t lose only come along once in a while, and when they do, I’ve always thought of them as a reward for working so hard on the tricky ones that you have to argue, that could go either way. As I opened the envelope, I fully expected it to be a concession, an agreement to dismiss the lawsuit without the necessity for a court appearance. Kiah wasn’t one to waste the court’s time. She’d had a week to contemplate her mistake; she’d realised she didn’t have a leg to stand on; and she would have no appetite for appearing in court just for the pleasure of listening to Judge Morrow dismiss her case on such an embarrassing ground. Obviously. I would have done the same in her position. That’s how confident I was about what I would find in the brown envelope.
Instead, I found a forty-five page brief, exclusive of the table of contents and table of authorities, accompanied by a polite handwritten note from Kiah apologising for its lateness and offering me an unopposed adjournment for a week to allow the government time to respond. Once I recovered my composure I called in Harry and Ellen, and we scanned the brief quickly together with the aid of some very strong coffee. As we read, my pleasurable anticipation gave way to something approaching shock. Instead of a sensible concession that the case was untenable in the face of clear black-letter law, I was reading an indictment of the government (myself, presumably, included) for knavishly trying to nullify an article of the United States Constitution; and, equally knavishly, trying to deprive Samantha van Eyck and all those similarly situated of their constitutionally guaranteed right to recover a debt – a debt that represented the price of liberty – without even allowing them their day in court. What I had assumed to be an unanswerable motion to dismiss was being painted as a flagrant disregard for the Constitution and a blatant abuse of executive power, which no court should countenance. I wasn’t the only one going hot and cold. I could see Harry’s blood pressure rising. Only Ellen kept her cool. In fact, she giggled several times as she was reading, and she actually applauded one paragraph.
‘This is brilliant,’ she said as we reached the end. ‘Absolutely brilliant.’
‘I’m glad you find it amusing,’ Harry muttered sourly.
‘Credit where credit’s due, Harry,’ Ellen persisted. ‘This is amazing stuff. It raises questions of pure constitutional law.’
‘I think Harry’s main concern is with the more immediate problem of what we do about it,’ I suggested.
‘Questions of pure constitutional law, my ass,’ Harry protested. He glanced anxiously at his watch. ‘It’s bullshit. Not only that, it’s outrageous. It’s a calculated ambush. Now she leaves this for us to find? Now? This morning, at nine fifteen, when we’re due in court at eleven? We should get our asses down to the courthouse and tell Tomorrow that he can’t allow her to file this; tell him it’s a contempt of court and he should decide the motion on our papers, in addition to imposing appropriate sanctions for her abusive conduct in dropping this shit on us without any notice. And in addition to that –’
‘Harry, just calm down for a moment,’ I said.
I turned to Ellen. Together, we lowered Harry back into his chair.
‘Get him some more coffee.’
‘I’m not sure coffee’s the right thing,’ she whispered.
‘Get him some more coffee.’
‘I don’t need more coffee.’
‘Yes, you do. Drink it.’
‘We can’t get rid of it that easily, Harry,’ I said as he accepted the coffee with a show of reluctance. ‘I served our motion last Monday, and I fixed the hearing for today, so I only gave her a week for any response. Obviously, I only did that because I didn’t think there would be a response. I thought she would throw her hand in. But Tomorrow would have given her at least two weeks to respond if she’d asked him. I would have given her at least two weeks if she’d asked me. He’s not going to stop her filing her brief, and he shouldn’t.’
‘In addition to which,’ Ellen said, ‘she’s raised some serious issues. This isn’t going to be as simple as we assumed. We need to take some time and think about how to respond.’
‘You both told me we were home and dry,’ Harry objected petulantly. Ellen might have been right – the coffee might have been a mistake. It had given him another shot of caffeine, and he was getting worked up, which wasn’t good for him. Nonetheless, he had a justified complaint. We had pretty much told him that it was in the bag.
‘Relying on what the two of you told me, I assured Maggie Watts that everything was under control, that it would all be over today. She passed that message up the line to –’
‘Yes, I know, Harry,’ I replied. ‘But it’s only a short delay. It’s not the end of the world.’
‘Oh, you think? What do I tell Maggie now? What do I tell her when she asks me what she tells the Attorney General, and what he tells –?’
‘You tell her that the plaintiffs have filed a late brief, at the eleventh hour, without giving us any warning. We don’t think it has any merit –’
‘Don’t we?’ Ellen asked quietly.
‘No, we don’t. But it would be irresponsible of us not to ask for time to consider it fully and file a reply.’
‘And even if we didn’t ask for time,’ Ellen added, ‘there’s no way Judge Morrow would rule on the motion today, not with a brief like that coming across his desk at the last moment. No judge is going to rule on issues like this without being fully briefed in writing by both sides.’
Harry looked suspiciously at Ellen and me in turn.
‘I want a report on my desk by four o’clock this afternoon,’ he said, pointing a finger as he left my office.
‘Harry, take one of your pills,’ Ellen called after him.
‘Don’t nag me,’ he shouted from the corridor outside. ‘Just get rid of this.’
‘You heard the man,’ I said.
She smiled. ‘I guess I’ll get started on it, then.’
‘Ellen, do we actually think this has some merit?’ I asked, just as she was leaving.
She turned back to face me.
‘It has some merit, definitely,’ she replied. ‘It’s a great piece of lawyering, any way you look at it. Well, we didn’t see it coming, did we?’
‘No, we didn’t.’
‘But that doesn’t mean she’s right, and it certainly doesn’t mean we don’t have a response to it.’
I nodded. ‘I need a progress report not later than two o’clock.’
I called the court and got Judge Morrow’s clerk, Maisie, to adjourn our motion for a week. She offered no resistance at all. Judge Morrow was reading Kiah’s brief as we spoke, and they had both been expecting our call. I called Kiah to tell her.
‘I got your brief,’ I said, ‘and Judge Morrow has agreed to the adjournment.’
‘I appreciate the call, Dave. Thank you.’
She paused.
‘What did you think of it?’
‘Very impressive,’ I replied. ‘We may throw our hand in. Is the offer to take Rhode Island still on the table?’
She laughed.
‘I’ll talk to Sam. But we still want the statue as well.’
‘OK. I’ll see you next Monday morning.’ I had to ask. ‘Kiah, that brief is more like the kind of thing you see in the Supreme Court. How the hell did you do that in a week?’
‘I told you,’ she replied. ‘I had a call in to my fairy godmother.’