I am livid. I turn to Mrs. Gentry’s son as I speak. He is in his sixties, squashed down in his seat as if he knows his mother will never forgive him; nor should she.”
“Your Honor, this question is probative of absolutely nothing, is a total invasion of Mrs. Gentry’s privacy, and is simply to harass and upset her.”
Taking off his reading glasses and rubbing his eyes, Judge Fogarty, laconic as usual, says in a monotone, “What’s the relevancy, Mr. Machen?”
The Nerd, for no apparent reason, points theatrically at my poor client.
“Your Honor, Mrs. Gentry is old and sick;
she could have gotten hurt or even locked in the closet. She may well have been given a social disease. It is just another example that this old lady has no idea what she’s doing and needs to be protected.”
Judge Fogarty stands up, and crooks a finger at us.
“I’d like to see the lawyers back in my chambers right now.
Court’s in recess.” He walks into his chambers without even a backward glance at us.
Ferd and I shrug at each other, wondering what’s up. We haven’t exactly been Clarence Darrow and William Jennings Bryan, but we’ve each done worse, I suspect. I tell Mrs.
Gentry she can come sit at the counsel table, but she glares balefully at her son and shakes her head. He is finally beginning to seem embarrassed by what he is putting his mother through and glances sheepishly at her.
Clarence Fogarty’s chambers are impersonal as a public urinal, without a single plaque or diploma on the walls. His office looks as if he moved in this morning. In fact, he is new, having only recently been elected, but he has had six months to unpack. He is a bachelor (shades of Justice Souter). On his desk, at an angle, I can see a single picture of, presumably, his parents, since he looks just like his mother:
a woman whose most distinguishing features are almost thread-thin lips and a chin so triangular that it reminds me of a snake’s head. No beauty queen, but at least not bovine-looking, as my father used to say of half the girls he saw on the streets in Bear Creek in eastern Arkansas.
Behind closed doors Judge Fogarty’s manner changes.
Gone is his laborious, painstaking, and diffident manner. He grabs the volume of the Arkansas code containing the guardianship statutes from a shelf by his desk and flips through the pages in a rapid, irritated manner. His reputation is that he takes so long to make up his mind on difficult cases my client could be dead by the time he gets around to making a decision.
I glance at the Nerd, who looks smug and confident, as if he has only begun to humiliate my client. It crosses my mind that I am putting Mrs. Gentry through hell. Perhaps, I should tell the judge we will take a voluntary nonsuit and dismiss the case. From the way it has gone in the last ten minutes, it might end up taking six months off Mrs. Gentry’s life no matter who wins, and at her age she doesn’t have that much time to give.
Judge Fogarty looks up over reading glasses considerably more expensive-looking than mine, and says to Ferd in a low, intense voice, “Mr. Machen, do you know what the probate code says is the purpose of the guardianship statute?”
Ferd leans back in the imitation-leather chair provided to the judge’s visitors, and says in an offhand manner, “To protect the ward.”
“Do you know?” Judge Fogarty asks me.
I rack my brain, fearing I’m about to be embarrassed. In taking the case over from Clan, I haven’t exactly knocked myself out reading up on guardianship law. I glanced over the statutes, but I didn’t memorize them. There’s too much law to keep up with all of it, especially if you’re not getting paid. Usually, judges, like lawyers, exhibit a paternalistic attitude when dealing with incompetents. Surely I can’t go wrong with the Nerd’s answer. I guess, “I don’t think Ferd is too far off.” The judge draws back in his chair in obvious disgust with both of us.
“Let me read you both something,” he says brusquely.
“I’m quoting here.
“The purpose is … the development of maximum self-reliance and independence of the parson, and shall be ordered only to the extent necessitated.”
” He pops the bright red book shut and says to Ferd: “My suggestion to you, Mr. Machen, is that in the next fifteen minutes you get together with your client and consider settling this matter along the following lines: Mrs.
Gentry does not appear in need of a guardian of her person;
however, she would seem to require the services of a guard ian of her estate. Unless Mr. Page is going to present evidence of severe mismanagement or fraud, I see no reason why her son should not be appointed guardian of his mother’s estate so long as she is permitted to leave the nursing home and resume her former quality of life. If you want to try this case, it’s fine with me. But let me warn you that I’m not inclined to keep the elderly locked up in nursing homes be cause it’s convenient to do so. You embarrassed that poor old woman out there by that ridiculous question about sex.
If she wants to have sexual relations with another consenting adult, she should be able to do so in the privacy of her own apartment or house instead of being forced to have them in a closet. I’ll resume court in fifteen minutes to either continue the trial or dictate into the record a settlement.”
Ferd leans back in his chair as if he can’t believe his ears.
“Judge, she’s batty as she can be!” he protests, pointing at his head and rotating his right hand in the time-honored manner
“She sounds like a chain saw if you give her a chance!”
Fogarty leans forward on his desk and peers over his glasses unpleasantly at Ferd.
“Mr. Machen,” he says, “the world is full of eccentric people, but we don’t institutionalize them in this country simply because they’re odd. For your information, my mother is in her eighties and hums as loud as Mrs. Gentry, and she does the crossword puzzle in the paper every morning before breakfast!”
The Nerd, whose face has turned almost as red as the statute book on the judge’s desk, says, “Yes, sir,” and he and I leave, chastened as schoolchildren who have been sent to the principal’s office for disrupting class.
After a talk alone with our clients, within ten minutes we witness a reconciliation between mother and son. As Ferd and I watch, our clients embrace in the hall outside the courtroom, I marvel at the capacity of some humans (at least) to forgive and to trust once again people who have wronged them. I wouldn’t want her son near me, but as I watch the tears run down his mother’s cheeks, I realize she really loves him, regardless of how he treated her. However, at her age, she doesn’t have a lot of choice, leaving me to speculate what, if anything, was going on in that closet. Her boyfriend, a man at least a decade younger, refused to talk to me and wasn’t worth a deposition I couldn’t afford. Subpoenaed to testify by Ferd, he has been sequestered with the other witnesses but with this settlement, we will never know, and, for once, I am content to leave my prurient curiosity unsatisfied.
Judge Pogarty, again relaxed and in good spirits after learning Ferd’s client has swallowed the settlement the judge rammed down his throat, tells me to prepare a petition for an attorney’s fee for my representation to be paid from Mrs.
Gentry’s estate, but hints, as I feared, that the amount won’t be overly generous, since he was less than impressed with the quality of representation by both attorneys in the case.
He tells Ferd bluntly that he won’t be able to charge the estate at all for his time in court. My cheeks burn, but Mrs. Gentry is happy. She tells me to come visit her any time. When Eagle Savings and Loan forecloses on my mortgage, I will remember her invitation.
Cooking in the July heat, I walk back to my office wondering what lessons I have learned from this case. In the future, reading the law might help. I realize now that despite what I had told myself, I was only going through the motions, never expecting to win, never expecting to be paid a dime, so I didn’t prepare adequately, relying mainly on my instincts from the days when I represented mental patients at the state hospital as a public defender. If the state hospital wanted a patient badly enough to go through a commitment proceeding the judge wasn’t going to get in its way. The patients rarely had a chance, so I assumed Mrs. Gentry wouldn’t either. My clients won’t always be so fortunate as to have a judge rescue them.