Disco fever had not yet arrived in San Marcos in 1975. Country was king and the hottest dance hall in the area was the Big Red Barn. Set out behind a grove of pecan trees near the river, the Big Red Barn was big, red and a barn, or at least the front part was an old wooden barn. Inside, the owners had poured a new concrete slab and lined two walls with 40 foot long bars. They stacked hay bales in the middle of the floor for decorative seating, and erected a cavernous sheet metal building out back where college kids gathered on weekends to meet, drink, dance, and find someone to go home with.
Finding someone was what Rosie and Judy had in mind when they pulled into the grassy field that passed for a parking lot. Seventeen and already been kissed, these two were weary of the high school boys and their high school ways. They wanted an adventure with the college men that came out to the Big Red Barn. There would be good conversation, great smiles, a packed dance floor for the Cotton-Eyed Joe and the Schottische, then more dancing until last call. As they exited the car, the music from the live band drifted across the parking lot, drawing them in. They were almost to the wide-open barn doors when they heard a voice from behind calling for them to wait. They turned around and a tall, dark-haired young man with a smile that seemed as bright as the full moon above approached quickly. He looked steadily into Rosie’s eyes, told her that she had the prettiest red hair he had ever seen, and said he would have never forgiven himself if she had walked into the barn and out of his life.
It was a line, but it worked. Rosie was flattered and charmed by the attention, learned that his name was John Briscoe, met John’s classmates from law school who had all driven down together to party at the Big Red Barn, drank more than a few beers, danced the Cotton-Eyed Joe and the Schottische with John, and went out to the parking lot where they consummated their new friendship in the back seat of a Chevy Malibu.
When she missed her period a few weeks later, she feared the worst. She skipped class, which was uncharacteristic of the bright and popular honor student, and drove to a women’s clinic. There she registered as a walk-in under a false name, paid in cash and learned that she was pregnant. After the initial panic, Rosie grew strangely calm and knew what she would do. She was not sure where to get an abortion, what it cost or what it involved, but she knew that her plans to go to college were not going to change. She confided in Judy, swore her to secrecy and learned of an abortion clinic in Austin that someone at school had used last summer. After convincing Judy to go with her, Rosie made the appointment, got cash from her savings account, and went to Austin.
"ALL RISE, the 494th District Court is now in session, the Honorable Rose Hannigan presiding", intoned the Bailiff. A courtroom full of lawyers rising to their feet sounded like a rumble of thunder.
Judge Rose Hannigan stepped out of her chambers and climbed the three steps up to the bench. Her red hair was attractively cut and perfectly coifed. She settled into her chair and found that the files for this morning’s docket call were neatly stacked nearby. She pushed a button on her laptop computer so it would begin to boot during docket call. "Be seated", she said.
Judge Hannigan gazed out over the lawyers in the courtroom as they settled back into their seats and saw the one she was looking for. John Briscoe was in the front row, far right side. She had not seen him since the trial. Today, he was in on a Motion for New Trial.
Even though they had exchanged phone numbers after their moonlit night at the Big Red Barn, John Briscoe had never called. Rose had not called him either, and he had never known about the abortion. Rose had told no one. She had used an alias at the clinic and paid in cash. She never told subsequent physicians, so there was never anything about it in her chart. She never told her husband, even though they had spent thousands of dollars on infertility treatments over the years, all to no avail. Only Rose and her best friend, Judy, shared the secret of their trip to Austin.
Rose sometimes wondered how life had turned out for Judy Carriot. Tall and lithe with a prominent nose that she inherited from her father, Judy had felt like an ugly duckling in high school. Rose had found JC to be a solidly loyal friend and brought her into her circle of popularity. But after the abortion, nothing was the same and they lost contact with each other upon graduation. The last that Rose had heard, Judy had married, divorced, and was a legal secretary in Austin.
"I’ll call the docket now. Please make your announcements and indicate how much time your motion will take," Judge Rose Hannigan announced from the bench. Today’s docket would be a long one, mostly motions over discovery objections. At the end of the docket would be John Briscoe’s Motion for New Trial.
Rose had never intended to be a lawyer. She thought that she would teach English and Spanish, write novels on the weekend, and travel the world in the summers. Her parents were both teachers and their summers were often spent in a camper trailer touring dinosaur excavation sites in the Dakotas or following the march of Sherman’s army from Kennesaw Mountain, down to Savannah and then up to Raleigh. She collected granite samples at Enchanted Rock and put whelks in shoe boxes on South Padre Island. But while in college, she was drawn, inexplicably, toward law school. It was the pervasiveness of law. No late night discussion at the dorm commons was complete without someone talking about the legality of this or that. No event with her sorority or other campus clubs occurred without a review of the potential liability. No Sunday morning national talk show ever discussed anything without a lawyer as a guest. In short, Rose saw the law everywhere, and she wanted to be a part of it. The first semester of law school was hard, until she learned the vocabulary of the profession. After that, Rose excelled and began to look ahead to life as a lawyer. She decided that judges had the best job: respect, control over their schedule, and good pay. Everything she did after that realization was geared to meeting the right people, in the right party, and making a run for the bench at the right time. She was a decade ahead of other Texans when she guessed that Democratic judges might one day be as extinct as some of the fossils she used to dig in the Dakotas. She joined the Republican Party, worked tirelessly for candidates and was only 7 years out of law school when she got on the bench.
"Judge, this is a Motion on Special Exceptions," said the defense lawyer for the first case on the docket, "and should not require more than ten minutes."
Special Exceptions, usually over whether something was fully plead, irritated Judge Hannigan. They were anachronistic in a time where there was full discovery and she considered them a waste of her time.
Time was something that she was becoming more acutely aware of. Having turned 40 last year, she was beginning to reassess what was important and what was not. Some of her friends from college had kids graduating from high school. She had attended her 20 year high school reunion in San Marcos a couple of years ago. And time was running out for her to have children of her own. She was pregnant once, a long time ago.
"Judge, this is a Motion for Continuance. Their expert has been in Scotland for the past four months, and we still need to depose him. This motion shouldn’t take more than about ten minutes."
There would be no continuance from the inexorable biological clock that ticked loudly for Rose Hannigan. She longed for kids to camp with, to take on museum tours, and hug at bedtime. All of the fertility treatments had been tried. All had failed. The remorse and sadness from the loss of a child so long ago were a private torture that she shared with no one.
Judge Hannigan looked at John Briscoe again, still seated on the front row. She remembered how in law school she had first learned to look up the names of lawyers in the Texas Legal Directory and discovered to her amazement that his name was there. John Oliver Briscoe. She had never known his middle name. There was his name, address and phone number, for anyone to see, and for anyone to call. But Rose did not call. No one would know her secret, especially not John Briscoe. After finishing law school, she would occasionally see his name in a legal publication. She read the article about when he had a particularly good result in a big case, she saw the notation that he had made partner, there was an announcement when his firm merged with another, another announcement when he was transferred to Houston to open a new office for the firm, and then last year, one of his cases ended up in her court.
It was a first-party insurance case. Briscoe was defending an insurance company that provided homeowners coverage to a family in Clear Lake City. Their home burned to the ground while they were on vacation. They filed their claim, but the insurance company denied it by contending that they were arsonists. Briscoe had appeared before her on three or four motions during the pendency of the case. The first time, Rose was nervous, but when Briscoe showed no indication that he remembered her or knew who she was, Judge Hannigan settled down and calmly ruled on the disputed matters that they brought her. When they started the trial, all went smoothly, until the third day, when Briscoe called his fire origin expert. The plaintiff’s lawyer objected: Briscoe, or someone in his office, had failed to supplement the interrogatory answers and designate the defense expert on the origin of the fire. The rules require an automatic sanction of exclusion when an expert is not designated at least 30 days before trial, but Hannigan thought it a bad rule that made no sense, especially where the expert had been deposed and a report provided to the plaintiff’s attorney. Hannigan would have granted a continuance or even a mistrial to anyone with this situation, but John Oliver Briscoe came on like a bull in a china shop. He was angry, loud, and told the judge that she just couldn’t exclude his witness. She did. Without their hired expert to speak eloquently on the intricacies of burn patterns, flash points, and source ignitions, Briscoe had no way to win. The plaintiffs, a charming family who were vacationing with in-laws in Colorado when their house and all of their possessions turned to ashes, did not look like arsonists, did not sound like arsonists, and John Briscoe had no expert to say that they were arsonists. Briscoe was so upset that he failed to make an offer of proof of what his expert would have said, had he not been excluded. The verdict was large, and there was trebling under the Insurance Code. The verdict made the newspaper and Briscoe was quoted as saying that it was the first case he had ever lost. Today, Briscoe was back and would argue a Motion for New Trial at the end of today’s docket.
Judge Rose Hannigan glanced again at Briscoe and for the first time noticed the woman sitting next to him. She looked tall, but sat a bit slumped and looked glum. She looked so familiar. Something about her eyes, or her nose. Her nose. That wonderful nose she inherited from her father. The nose of Judy Carriot. Rose Hannigan’s mind raced. How? Why? What was she doing here? What was she doing with John Briscoe?
Hannigan’s heart beat rapidly and her breathing was labored, but she completed all of her docket, except for Briscoe’s motion, in record time with quick, almost brusque rulings. The courtroom had cleared out except for the final case.
"Ten minute recess," announced Judge Hannigan.
"ALL RISE," bellowed the portly bailiff. Briscoe and the others stood while the judge exited the bench, clutching a file in her hand.
When she got into chambers, she began to pace. She walked past the wall where her college and law degrees were hung. She paced across to where her law license was displayed next to a photograph of her and the governor. She paced past the pictures of her husband and their golden retriever that decorated the shelves filled with law books. She thought of the child that might of been, but never will. She grew angry at the man who made love to her, but never made a call to her. She thought about Judy Carriot and the secret they shared, and she tried to put together what her presence in the courtroom meant.
After the ten minute recess grew to twenty, Rose Hannigan had the most likely scenario figured out. Judy Carriot must have applied, at some point, to Briscoe’s firm in Austin. She must of told someone at the firm, or perhaps several at the firm, about her trip to an abortion clinic years ago with a young woman who grew up to be the most conservative, most influential, most pro-family, anti-abortion Republican woman judge in Harris County. After John Briscoe lost his first case in that judge’s court, someone told him about Judy Carriot. That had to be why she was here.
The boldness and the audacity of this type of blackmail was shocking to Rose Hannigan. She had played some hardball politics, but nothing like this. Briscoe was sending a message to Rose Hannigan: grant me a new trial, or I will tell your Republican friends that you are a hypocrite, fake and a fraud. Hannigan knew that the revelation of an abortion would erode her support among the Republican base that she counted on, and one or more well-funded primary opponents would be a certainty. Damn! She slapped her hand down on top of the file that lay on her desk. Now she was mad.
What John Briscoe did not know, was that Hannigan was prepared to give him a new trial. She did not like the automatic exclusion rule and certainly did not want Briscoe’s insurance client to suffer an adverse judgment as a result of the failure to supplement an expert designation. But this attempt at blackmail changed everything. Rose Hannigan was going to do something to John Briscoe. She did not know what, but there had to be something she could do. The twenty minute recess stretched to thirty minutes.
Last week, Hannigan had lunch with Judge Artie Shaw, a dynamic personality with a thousand stories, some of which were even true. He was a fun lunch companion, and Judge Shaw had regaled Rose with stories about the days before discovery, when lying behind the log was the way cases were tried. He told stories about surprise witnesses, about couch fees, about pots and pans divorces. He lamented the technicality of today’s rules and told a story about a lawyer who had forgotten to attach an affidavit to his Motion for New Trial and lost his right to an appeal.
Hannigan looked at the file on her desk and thought about the consequences of what she was about to do. She considered all the possibilities, she thought of her career, she remembered what it felt like to be seventeen and pregnant, and she made a decision. She opened up the file to the Motion for New Trial, took the staple out, removed a page, carefully restapled the Motion, and put the removed page in her briefcase which she then locked. She picked up the file and headed for the door to the courtroom.
"ALL RISE," howled the bailiff, and Rose Hannigan retook her place in the courtroom.
"Come on up. What can I do for you today?", said Judge Hannigan as she waived the remaining lawyers up to the bench.
"Your honor, we are here on a Motion for New Trial on . . ." Briscoe was interrupted by Rose Hannigan.
"I don’t think so."
"Beg your pardon," a slightly confused Briscoe asked.
"I don’t think you’re here on a Motion for New Trial, because your motion is not sworn to. There is no Motion for me to consider." Hannigan’s voice was firm and steady.
Briscoe began quickly turning the pages of his motion. He knew how badly this case had gone and how he had forgotten to make a record of what his expert would have said had he not been excluded. He knew that he did not have a prayer of getting the case reversed on appeal without an offer of proof, and he was painfully aware that he had to offer the expert’s opinion today under the rubric of newly discovered evidence. A sworn motion was required when one is trying to offer evidence at a hearing on a Motion for New Trial, and now some secretary has failed to attach the affidavit. Briscoe’s handsome brow was furrowed. He kept flipping, and then he found it. A smile as bright as a harvest moon on a clear fall night in Texas spread across his face.
"Your honor, I found it. The motion is sworn."
"It may be in your file, but it’s not in mine. There is nothing for me to rule on today. You are dismissed." Hannigan leaped up from her chair and headed to chambers while John Briscoe was left sputtering "but your honor, but your honor".
Rose Hannigan sat down at her maple desk and thought about what she had just done. She had violated her oath of office, violated her oath as an attorney, and probably cost John Briscoe a major client. There was one thing left to do. She turned to her computer and began a resignation letter.
Copyright 1999 --- Authored by Albert Hollan
This short story is fiction. The events and persons portrayed
are fiction.
The story was the winning entry in the 1999 Houston Bar Association
Fiction Writing Contest and was published in The
Houston Lawyer, Vol. 37, Num. 1, Pg. 51, July/August 1999.
fiction, legal fiction, Houston Bar Association