| |
Before the trial proper could begin, the court had to consider the defendants’ multiple motions to dismiss one after another of the plaintiffs’ claims. Hu knew better than to expect all the claims to survive. Federal judges generally took satisfaction in pruning a case down to size, if they couldn’t justify dismissing it altogether.
All in all, she fared well enough. The voting records, showing that various plaintiffs had voted in different states, were sufficient to fend off defense challenges to diversity jurisdiction. The judge enforced only a few of the contractual attempts to weasel out of implied warranties and other forms of liability. And Hu’s cherished constitutional claims, while not necessarily guaranteed survival until the end, at least made it past this initial scrutiny.
* * * * *
As far as he knew, Max had been part of every discussion between Thea and her lawyer, at least since he became a plaintiff himself. And today’s trial prep session had been just the same, until now.
“Max, I’d like to speak to Thea privately for a few minutes. I’ll explain later.”
“Uh . . . Okay. Sure.” What else could he say? “Should I just hang up now?”
“Yes, please. But stand by for a call when we’ve finished.”
Thea blew him a kiss. “Back soon, lover.” Whatever this was about, it didn’t seem to be worrying her any. But then, she might not know, yet, what was going on.
He hung up, grabbed his guitar and his phone, and went out on the balcony. He had run through a succession of favorite riffs and made three passersby smile when the phone rang and Thea’s face appeared. He had just enough time to absorb her grave expression before she spoke. “Hu wants me to tell you about something.”
Was Hu using Thea as a messenger for some setback in the case? “Why doesn’t she just tell me herself? Or why didn’t she tell us both at the same time?”
“That’s not what I meant.” Her speech, usually verging on staccato, had slowed down. If she were walking instead of speaking, she would be dragging her feet. “There’s something I didn’t tell you before. Hu asked me . . . if I had any secrets from you. And when I said I did, and I told her what it was, she said I should tell you now . . . so LiveAfter doesn’t spring it on you at the trial. So they don’t make it seem . . . They might try to make it look as if you didn’t know me as well as you thought. Then they could argue that you might not know . . . whether I’ve really changed all that much.”
Was she actually hanging her head?
“What is this, some sort of confession?” That must have sounded angrier than he intended: Thea’s shoulders went tense and pulled inward. He made himself breathe. “It’s okay. Just tell me.”
Thea straightened up again, her chin raised as if defying a threat. The movement made her breasts jut out; he wrenched his attention away from them.
“I’ve got a kid somewhere.”
He could not help gasping; but he shut his mouth and tried not to stare. Thea closed her eyes, opened them, and went on.
“When we went off to different colleges, we agreed to keep things loose. You remember.”
He did; and he’d been glad, even though it had been Thea’s idea, part of her drive to explore everything around her and make the most of new opportunities. He’d only slept with two or three women during that first year, before he switched colleges to be with Thea again.
“There was a bad batch of pills—unreliable. I took some before they were recalled. I got pregnant.”
How many men had she slept with that year? She’d told him, some time or other, but he couldn’t remember.
Thea’s tone had become calmer, deliberately unemotional. “You know how it works if you don’t want to continue a pregnancy. You’re required to go to a government-approved hospital and have the embryo extracted, and it’s transferred to an artificial womb. It’s a simple procedure. The scar’s very faint, and it’s in my pubic hair. I don’t think you ever noticed it.”
He hadn’t.
Thea bit her lip and released it. “It was up to the adoptive parents whether I could know where they lived, or keep in touch. They decided against it. They have—they had my contact information in case they changed their minds. But I haven’t updated it. I don’t see the point —” The calm was breaking now. Max, as so often, ached to put an arm around her and help her through. “Why tell a child that they have a parent they never knew about, a parent who’s dead, a parent they can only see on a screen? It’d be cruel, don’t you think?”
He could only nod, and try to decide whether to ask the obvious question. If he waited, Thea would probably ask it for him.
She did. “You want to know why I didn’t tell you.”
The wave of anger startled him. “Of course I do!”
She shrank back a bit; he winced and almost apologized, but did not want to divert or delay the answer she might be about to give. She straightened up, looked at him soberly, then gave the half-snort, half-chuckle with which she acknowledged bewildering circumstances. “I wasn’t sure how to bring it up. Start a bull session about who we each slept with that year? Ask how you felt about prenatal adoptions in general? I hoped it would somehow come up on its own, by happenstance, and it never did. And . . . I was afraid you’d want to do something about it.”
Max swallowed down a lump in his throat. “Like try to find the kid and talk the parents into changing their minds.”
She nodded. “I didn’t want to do that. I’d made my peace with not knowing where they were or who they were, not being part of their lives. I didn’t want to deal with how I might feel if I had to decide all over again.”
That sounded analytical enough to fit the Thea he knew. But it didn’t fully fit, all the same. It wasn’t—brave.
How had this conversation even started? Oh, yes. Hu wanted him prepared. Well, he could say, now, that he knew about the child. LiveAfter wouldn’t catch him flatfooted.
But it did make him wonder, all the same, what else he might not know, or might “know” wrong.
* * * * *
Some things never changed. In court, unless there was a very good reason to the contrary, the plaintiff went first. That suited Hu. She had been waiting quite long enough.
Hu’s witnesses would form a rather neat progression. First would come the unwilling, subpoenaed, aptly named “hostile witnesses” she had uncovered in discovery—the president of the nonprofit behind the alterations, key officers in LiveAfter, members of the technical team that did the dirty work—and incognito among the latter, she hoped, one of her conspirators. She would follow these with her own expert; and then, finally, would come the personal, beating heart of her case.
“Do you swear or affirm, under penalties of perjury and pursuant to the dictates of your belief system, that the testimony you give will be the truth and nothing but the truth?”
The former actor, also a sometime director and well-known philanthropist, shook his salt-and-pepper mane in evident disbelief that all his lawyers' efforts had failed to protect him from finding himself in this position. The bailiff regarded him sternly and thrust forward a Bible as a prompt. The witness huffed and looked away from the volume. “I so affirm.”
Hu gave him a bland and benign smile. “Good morning, sir. I don't believe we'll need to take up too much of your valuable time.”
The judge raised one thin eyebrow. “Counselor, be so good as not to waste any of our valuable time with unnecessary verbiage.”
“My apologies, your Honor . . . . Sir, I ask you to recall a conversation between you and the Chief Executive Officer of LiveAfter Corporation, some months ago. I refer to the first discussion the two of you had concerning a possible contractual relationship between Humane Future and LiveAfter.” She paused briefly. “Have you brought that conversation to mind?”
The witness nodded, then apparently recalled his lawyer's instructions and growled, “Yes.”
“In that conversation and any subsequent communications between you or others associated with Humane Future, on the one hand, and any officers, employees, or agents of LiveAfter, on the other: what arrangement did you make in regard to stored individuals?”
Bit by grudging bit, Hu extracted the story. She did not ask any questions about motive or the like, counting on defense counsel to jump in and provide the necessary metaphorical rope with which she could hang the witness on redirect. Defense counsel did not disappoint.
“What were your goals in this endeavor?”
The witness appeared to swell a little larger in the witness chair. “Following upon LiveAfter's work in allowing its clients to participate in social and political action, we wished to offer them particular opportunities in those areas, opportunities of which they might have been unaware during their prior, ah, existence.”
“Did you consider yourself obligated to include a spectrum of such opportunities, serving divergent political and social goals?”
“We did not consider either our organization nor LiveAfter to be under such a compulsion. LiveAfter's position was, in our view, analogous to that of early social media such as Facebook and Twitter, which were private, as opposed to governmental, concerns even though a great many people in various countries took advantage of their services. These and other companies disproportionately directed users to sources the company management found socially and politically congenial, and to some extent offered broader services to users with compatible views.”
A little more of this ingenious appeal to history, and it was Hu’s turn again. Redirect, she mused, was so aptly named on occasion. She directed the witness' and the court's attention back to essentials. “While LiveAfter, per your contractual instructions, offered these opportunities, did it not also supply the subjective desire to take advantage of them, rather than relying on the client's preexisting value system?”
Hu and the witness then played a game of competing definitions. Hu moved on just before the judge's irritation, if any, might shift from the witness to herself. “To return to your historical comparisons: if the political orientation of Facebook or Twitter became obnoxious to, or less valuable to, the user, could such an individual cease to use the service? . . . Did the user thereby become unable to participate in social or political activities? . . . Would such cessation of use prove fatal?”
Earlier in their acquaintance, Hu had been concerned about Esther's thespian capabilities. Witness prep had allayed those concerns. Hu noted with appreciation, but no surprise, Esther's uncharacteristically slumped posture and sullen expression. It might, perhaps, be a shade overdone. Whoever had hired Esther or worked with her, should they be present or view the proceedings later, might notice the discrepancy.
Hu asked for and received permission to treat Esther, like the Humane Future president, as a hostile witness. First hurdle jumped. Now she could ask Esther leading questions, and Esther could grudgingly say yes and no.
“Are you employed as an engineer for LiveAfter Corporation? . . . Were you so employed this last summer? . . . Did you receive a new assignment at that time? . . . Were any new security procedures put in place at that time? . . .”
Time for the red meat. She had considered letting Esther give a more substantive answer this time. It would have more impact. But without ethically questionable coaching, it would have been difficult to ensure that Esther maintained her cover and revealed the truth with a realistic amount of evasive stalling.
“Were you tasked with finding ways to alter the political views of LiveAfter’s stored clients?”
A grudging, grunted sound, not quite audible. Esther was hamming it up. The judge glanced over at her, then at Hu. If the judge’s bullshit detector had sounded, things could get sticky. Claiming a friendly witness as hostile would count as misleading the court. A bit late to worry about that now. “Please repeat your answer a bit louder, Ms. Boccara.”
“Yes!” A belligerent shout. And more quietly, once again sullen: “That’s what they told us to do.”
“And did your department succeed in writing code to effect this . . . transformation?”
Esther sat up straighter, her chin raised. “Yes, we did.” A nice touch, that: pride in the achievement. It might even be genuine emotion, brought forth for the occasion.
Esther’s inside information had helped Hu find the next witness—a fact Hu had done her best to conceal. Esther had not been part of the team that actually applied the key code to stored individuals, but she knew who had. Hu had spent hours tinkering with the wording of the pertinent discovery request, trying to ensure that a truthful response would list at least one of these team members without making her questions suspiciously specific. Whether due to her imperfect wording or LiveAfter’s evasiveness, her first try did not yield any of the names she needed. Further consultation with Esther and massaging of legalese had finally pried this man’s identity loose from his reluctant employer.
The man had been no more willing to testify than LiveAfter had been to expose him. His responses to Hu’s pretrial discovery would have given Hu very little to work with, if she had been dependent on those responses. She had pressed him hard enough, at his deposition, to convince the LiveAfter attorneys of her thwarted frustration. Her better-aimed questions at trial would, she hoped, come as a surprise. But whether she could extract any usable answers remained to be seen.
Hu asked for and received permission to treat him as a hostile witness, then called him to the stand. As the man made his way forward, Hu did a double-take. Had LiveAfter slipped in an impostor? No, she remembered the short black hair, the stubble, the thin arms and legs. But at his deposition, the man had slouched to his seat, sneered once seated, and slouched out of the room when she let him leave. Now, he walked slowly but stiffly to the witness stand; and when he took his seat, he sat up straight and looked her in the eye, with the air of a man on a mission.
This was bound to be interesting.
The witness answered the preliminary questions—his technical credentials, his employment with LiveAfter—simply but civilly. Hu studied him for a few more seconds, then dove in.
“Do you know who Esther Boccara is?”
At his deposition, the man had found one way after another to evade this question. Now, he answered, “Yes. She works in what we call the Cerebral Management group.”
Two straightforward responses in one! “Did any group or groups in which you worked during the last several months coordinate with that group?”
“Not for long. But when they turned their work product over to us, they held our hands for a while.”
Was the man determined to do her work for her? If so, it would be more effective to let him do the talking, instead of leading him by the nose. “And what was that work product?”
The man took a visibly deep breath. “Code for altering the political opinions of stored clients.”
Hu could not, of course, do a fist pump or shout in exultation; but she allowed herself one quick bounce on her toes. The judge interrupted as Hu opened her mouth to ask the next question. “Counsel, approach the bench.”
As soon as Hu and the defense team reached the curved rostrum from which the judge ruled the courtroom, the judge transfixed Hu with her stare and said, simply: “Hostile witness?”
Hu forced back a potentially disastrous giggle. She had, for the moment, slipped Esther through, only to be asked to defend her quite innocent presentation of a witness from whom she had expected the worst. “Your Honor, my most recent, and only previous, contact with this witness took place at his deposition. I invite you to view that deposition and the witness’ demeanor throughout. I believe you will agree that my designation of this witness as hostile was appropriate.”
“Believe me, Ms. Yang, I will view that deposition during our next recess. And I will have a few questions for the witness, as well. For now, I withdraw my permission for you to treat this witness as hostile. Please proceed without such apparently unnecessary tactics as leading questions. Though I notice that you have already moved in that direction.”
Lead counsel for LiveAfter opened his mouth. The judge switched her piercing gaze in his direction; he blinked, but persevered. “Defendants object to any further questioning of this witness by plaintiff until the issue of his possible collusion has been settled.”
“Are you suggesting, counsel, that I would be unable to disregard information that plaintiff’s counsel elicits in the meantime?”
Defense counsel’s Adam’s apple bobbed up and down. “By no means, Your Honor. But the presentation of possibly improper testimony would be an unnecessary waste of time.”
The judge turned back to Hu. “Ms. Yang, please get to the point directly and address it expeditiously.”
“Thank you, Your Honor.” Hu stepped back quickly, almost skipping. Defense counsel followed more slowly; Hu did not wait for him to reach his counsel table before facing the witness. “As to which clients was this code introduced?”
“The ones who’d voted. And the ones who’d been politically active, or well-connected, or both, before they were stored—unless they were already communitarian in their politics.”
Hu glanced at her notes. “Were these individuals offered the opportunity to decline this political conversion?”
“Objection!” The attorney came halfway out of his chair. “There has been no foundation laid to indicate that this witness would be aware of such offers.”
True enough. “Withdrawn.” She mustn’t get sloppy, whatever unexpected gifts the gods of litigation had bestowed.
As Hu stepped back, the judge looked down at the defense table and asked, “Would the defense prefer to cross-examine before I question the witness as to his change in attitude?”
Lead defense counsel stood and bowed slightly. “Defense has no objection to waiting, Your Honor.”
The judge’s thin lips twitched. “Very well. Counsel, please approach. Bailiff, deploy the acoustic shield.” She waited for the bailiff to activate the mechanism preventing observers from overhearing the coming colloquy; then she sat forward and faced the witness. “Sir, I understand that you were rather less forthcoming in your deposition than you have been in today’s testimony. Do you agree with that assessment?”
The man wrinkled his forehead for a moment as if translating the judge’s words. Then he nodded. The judge made a “go on” gesture with one hand, the long thin fingers surprisingly graceful. The man looked confused again, then apparently realized the need for speech. “Yes, ma’am.”
“You may address me as Your Honor, if you bother with anything of the sort. Please explain your willingness to answer Ms. Yang’s questions so freely today, after your very different attitude on that prior occasion.”
The man slumped a bit in his chair and squeezed his eyes shut for a moment before opening them to reveal the shine of tears. Judge and lawyers looked at him in shared astonishment as he struggled for composure. Finally he cleared his throat and spoke. “This is pretty personal.”
The judge started to raise an eyebrow and then evidently thought better of it. “Obviously.”
The man took a ragged breath. “First, you need to understand that my dad and I never agreed on much . . . especially about politics. I’ve always been on the left end of the spectrum, you might say.” He paused, straightened up, and looked briefly defiant. “What we were doing, the direction we moved the stored people: that was the right direction, according to what I believe.” He slumped again. “But my father always thought I was a soft-headed dope. Or dupe. He kept saying he hoped I’d grow out of it before he died, so —” The man dropped his head and choked out a sob.
With a gentler tone than Hu had ever heard from her, the judge said, “You may take your time, young man.”
The witness nodded. A few painfully long seconds passed as he sat and cried in their midst. Finally he spoke again, through gritted teeth. “He was disappointed in me, his whole life. He died disappointed. And then he was stored.”
Hu drew in a breath, realized she was holding it, and made herself exhale as the man went on.
“He was one of the ones we—changed. He’d been quite the mover and shaker, so he was on the list. And I was glad, at first. He would finally see things the way I saw them. I was glad right up until I actually talked to him afterward.”
Another pause.
“It was horrible. It was like some sort of science fiction movie. My father was saying things I would say, or my friends would say, and he was smiling and saying how glad he was that we agreed! He didn’t even know we never had agreed.
“No, it wasn’t so much science fiction as that old story. ‘The Monkey’s Paw.’ Where the old couple keep wishing for things, and the wishes come true in really awful ways. I’d made a wish, and now —” The witness started crying again, but he could still speak. “I know him. I mean, I knew him. He would rather have died than have that happen. If he’d known what would happen, he would rather have died.”
The cross-examination had all the overbearing intensity that Hu neither needed to nor was allowed to indulge in.
“Aren’t you distorting the facts as a way of handling your unresolved guilt and pain about your relationship with your father? . . . How do you know your father didn’t come by this change of heart by natural means? . . . Isn’t it your own deep-seated sense of inadequacy that prevents you from accepting that your father has come to agree with your world view?”
Whether this amateur psychoanalyzing impressed the judge, Hu could not positively say, but she rather doubted it.
Though apparently the man had obtained more professional advice. “Isn’t it true that you’re in the midst of psychiatric treatment?” (LiveAfter still paid its employees’ health care, no doubt one reason it had managed to attract such an impressive pool of talent.)
Given her low expectations for this witness, Hu had not dug deep enough to know he was seeing a psychiatrist, let alone the details of the diagnosis. She decided to gamble, mentally apologizing to every professor who had warned her against asking questions without knowing the answer, and to every young attorney to whom she had passed on that instruction. When her turn came for redirect, she asked: “Sir, does your psychiatrist believe you to be suffering from, or to have suffered from, any sort of hallucinations or delusions?”
Luck, or the joint intercession of Hermes and Pan, Greek gods of gamblers, gave her the desired negative answer.
In choosing a witness to testify about comparative voting figures, Hu had made a point of finding someone relatively lively. Even with this intelligent a judge, numbers versus numbers could use some added interest. The man who now took the stand had gangly limbs, untamed red hair, and a mobile face that would have enhanced the career of any stand-up comic.
His credentials, however, were quite traditionally impressive. Hu declined to stipulate to them, insisting on presenting each degree and award via preliminary questions and answers. Then she let him loose, with his unusually colorful charts and his darting laser pointer.
“I randomly selected five districts in which LiveAfter clients could vote if they chose, based on their premortem registration. . . .” Hu had reluctantly scotched the witness’ initial suggestion to label the sample districts as Eenie, Meenie, Miney, Mo, and Miscellaneous. There was such a thing as going too far; and the actual district names were more informative.
“This bar graph shows total numbers of voters, and this one shows the votes for parties recognized by nonpartisan organizations as left and right of center . . . And see here! The same districts in the most recent elections. And these lovely colored bands, in both charts, show the percentage of stored who voted in every category. . . .”
The pattern, if not obviously dramatic, was plain. The witness, successfully keeping his language both technical and comprehensible, further illuminated what the data showed; though the price for obtaining his services included, in the end, one foray into the fantastic. “If we live—all of us, not just the stored!—in a computer simulation, and the folks in charge run the same election from the same starting point ten thousand times, this chart shows how few of them would end up looking like this one.”
Hu made haste to wrap up her direct examination. And as per Hu’s instructions, the witness subsided, during LiveAfter’s cross-examination, into as dry and unexciting a presentation as he was capable of producing.
The afternoon ended with a brief logistical discussion. “After two more witnesses,” Hu informed the judge and opposing counsel, “we will be ready to present the testimony of plaintiffs.”
The judge nodded, showing little expression; but as she looked toward the bailiff to announce their adjournment for the day, Hu thought she saw a momentary gleam in the judge’s eyes.
