William Gaddis - A Folic Of His Own

— He lost! He didn't win Harry he lost! my God how many times do we have to…

— Win or lose Christina, I told you at the start you begin running up bills the minute you…

— You don't think he's going to pay them do you?

— What?

— I said, by any remote stretch of the imagination you can't think that Oscar or anyone in his right mind would even faintly consider paying these idiotic bills for one instant, can you?

— Just telling you they put in a lot of time and work on the case Christina, take a look back there at Oscar's deposition I think Basic did a pretty damn good job for the…

— For a fraud, so the State can put him away for a year, what about your friend Sam. How long can they put him away for, he knew about it before the decision didn't he? You knew didn't you? didn't you call him?

— Look I've been out of town, it still might have been just a rumour and I've been so damn busy with the…

— Is that what you're worried about Harry? what the State can do to you? You sent Oscar to Lepidus, Shea and the whole…

— No wait Christina, look. The State's got nothing to do with it, no law that we have a duty to look into the credentials of lawyers we make referrals to. The whole thing's a self regulating profession, deal with things like that under the ABA's Code of Professional Responsibility doesn't mean a client has a cause of action against a lawyer who's violated the Code just because he loses a…

— The Code! My God you sound like a, a self regulating profession! Your friend Sam got us into this mess didn't he? Is anybody going to regulate your friend Sam or do we just put it down over here Lily, do try not to spill it.

— Do you want the…

— Just put it down!

— Have to research that Oscar, end up putting you to a lot of trouble entering a claim citing the elements of damages you've incurred here needed to make you whole, as they…

— To make him what?

— Legal phrase Christina, just means what it says, to make him whole, restore someone who can prove he's suffered damages to his…

— Well look at him, he's sitting right here in a thousand pieces if you want proof of damages to make himself whole, he can't get a new trial he can't find anyone else around to sue so he's suing himself is that what you mean?

— Of course it's not. Whole heart of the Fifth Amendment, you can't be made to testify against yourself, you've got a new law firm on that haven't you Oscar? Isn't that what they've told you?

— Well he, there's a letter here from him somewhere, from Mister Mohlenhoff, he thinks maybe they could get around that by granting one of us immunity to testify against the other one under threat of perjury or contempt he's looking into it. They want a five hundred dollar retainer to look into it.

— Most ridiculous thing I ever, don't send them a nickel, these the ones you got off a matchbook cover?

— Which one of him are you talking to Harry, the one who got Mister Mohlenhoff off a matchcover or the one Lily found for him who wants Oscar to pay him for suing himself in the first place.

— I didn't know what he'd, I know it was my fault Mrs Lutz but I just thought he was this lawyer that would help Oscar out now he's doing the same thing to Daddy, he took this money from Daddy where Daddy gave my brother Bobbie all this money to buy this Porsche that Reverend Bobby Joe calls the death instrument so now Daddy's in trouble where they want to sue him for something they call I forgot what they call it but, but maybe I better go Mrs Lutz I didn't mean to start…

— Probably a suit for what they call negative entrustment Lily, like handing a shotgun to somebody who isn't resp…

— Harry leave her alone, just sit down and be quiet Lily, and bring in some sugar will you? Didn't you get a cup for yourself? Five hundred for Mister Mohlenhoff off a matchcover or seventy five hundred for Lily's ambulance chaser my God Harry we're talking about thousands, these tens of thousands for your friend Sam who hands us a convicted felon and loses the case into the bargain?

— Just what I mean, you get a look at our billings to Kiester's people probably a hundred times what we saved Oscar with a small firm like Lepidus and…

— And who pays those, Oscar? because he sued them and lost?

— Well he, it's not a requirement in civil cases that the losing defend, the losing plaintiff I mean pays defendant's costs but I told you, I haven't seen the decision I told you, unless this judge holds him liable for reasonable attorney's fees but a judge like this one, no track record to go by you can't tell what the…

— You don't need that, Harry.

— What. Need what.

— Another drink. You don't need another drink. You haven't eaten a thing and those pills you're on to keep you from jumping out of your skin they told you not to drink didn't they?

— Just cuts down their effectiveness, one or two won't make any diff…

— Well you've had one or two, now will you sit down until we straighten this out? I don't care what this decision says about your thieving defendant's reasonable attorney's fees, you just said they were a hundred times what they ought to be didn't you? Oscar wouldn't even dream of paying them, I want to know who's going to pay Oscar. To make him whole.

— Well it won't, it's not that simple Christina, the…

— My God I know it's not that simple! Would we all be sitting here tearing our hair if it were? Your friend Sam got him into this mess, what are these elements of damages he's incurred you were talking about.

— Just the, just these elements things like fees, costs, the profits and accounting he went after originally but the, I think when I've had a chance to talk to Sam we can…

— Well pick up the phone. There's your chance right over there, call him up.

— Once we've read the decision Christina, no sense in…

— Well there's no sense in Oscar trying to do anything if he doesn't know what he can do is there?

— Well he'd just, he'd probably make either a tort or a contract claim, file a notice pleading to put the defendant on notice of the claim against him but if he's going to plead fraud, it isn't that simple if he's going to plead fraud he's got to state every element of the common law tort of fraud, prove he was injured by intentional misrepresentation of a known fact, leave out one of the elements and his complaint's dismissed but if they can show it wasn't intentional, that nobody knew Basic was fraudulent he'd passed his bar exams hadn't he? showed them his certificate to practice?

— On Oscar yes, to practice on Oscar with Sam at the piano playing Nearer My God Harry either he knew or he didn't. If he knew, it was fraud wasn't it? and if he didn't know he should have.

— Well that would, you'd have to prove negligence. Take a hypothetical case, if the…

— I'm not taking a hypothetical case, we've got a real one wriggling around right here in our laps. Was it fraud or negligence.

— Well the, that would be for a jury, if the law allows claims of fraud and of negligence rising out of the same operative facts and it had to go to trial…

— That's what trials are for isn't it? My God Harry this is like pulling teeth! Either they injured him deliberately or they didn't. If they did he can charge them with fraud, if they didn't he can charge them with negligence is that what you're trying to say? or trying not to say? Either they're lying or they were plain careless and irresponsible, it's that simple, isn't it?

— Matter of fact it's, I'd have to research it but he might not be able to bring a malpractice claim till all his appeals were exhausted because up till then he hasn't suffered any injury.

— That's the most ridic, will somebody answer that?