Written by Con Chapman
The call came for the associate in the library. “Mr. Fox would like to see you,” the librarian said evenly in a soft tone. “He says he has an assignment for you.”
Thomas got up, said thank you, and started off quickly.
“You should take a notepad,” the librarian said, knowing from long experience that younger lawyers were sometimes so flustered by the thought of an audience with a senior partner that they forgot the essentials.
“Oh, right,” he said, and turned back to the table where he had been working. With a touch of guilt, he straightened the messy pile of books he had pulled from the shelves and picked up the leather portfolio his parents had given him when he graduated law school. Then he headed downstairs to the litigation department where he found Mr. Fox’s secretary serving as a sort of sentinel to a windowed room that looked over the harbor.
“You can go in,” she said with a glance over her half-glasses as she continued typing.
“Mr. Fox,” Thomas said as he stood hesitantly in the doorframe.
The older man briefly took his gaze away from the view. “Just saw the oddest thing,” he said, without turning around. “Plane coming in from the south was about to land, when woosh”—here Fox made an upward-swooping gesture—“it just took off again.”
“Nope. Pretty dramatic. Banked to the right and took off to circle the airport again, as far as I can figure.” The partner came back to his desk and settled himself in his chair. “Well—how are you doing?”
The associate always answered such inquiries carefully. If you said you weren’t busy—which he wasn’t, particularly—your abilities would be thrown into question. If you said you were busy, you might miss out on a choice assignment, or be thought a slacker for not being willing to take on more work.
“Moderately so,” Thomas said finally.
“Well, sure, some of it.”
“But not all, that’s for sure—right?” the older man asked with a wry look. “When my wife asks me that question I say, ‘If it was interesting they wouldn’t pay us so much!’” Then he laughed at his own joke. “Well, this one should be interesting. It’s a constitutional case.”
“That does sound interesting,” Thomas replied, preparing to take notes.
“This is pro bono, I’ll give you the number as soon as I get the paperwork done.” Fox then began to recount the sad tale of a poor fellow who’d been charged with taking short lobsters. “These guys from the state, they’ve got too much time on their hands,” he said with disgust. “Our client had a couple of lobsters that weren’t long enough—but only by a little, I guess.”
“Were there any witnesses?” Thomas asked, trying to think of something to say.
“None other than the staties and our guy,” Fox said. “I don’t think that angle’s worth pursuing. They measured the lobsters and they were short. But like I said, not by much. If they had any sense, they’d leave the poor guy alone and go after the big fish.” The partner turned to the associate with a serious look.
“So what’s the constitutional issue?” the associate asked.
“Unreasonable search and seizure—Fourth Amendment. They had no reason to board the guy’s boat. No warrant, no probable cause. The evidence ought to be thrown out.”
The younger man dutifully took notes. “So…you want me to…”
“Find out what the law is. We’re going to move to dismiss the case. This poor fellow’s facing jail time.”
The seriousness of the situation sank in.
“Up to three months. I don’t know if that’s for each lobster—be sure and research that point.”
“Gosh,” Thomas said, impressed by the awesome powers of the state that his legal skills would be called upon to oppose.
“So this fellow’s in need of some serious help. I don’t do much criminal law, but I feel pretty strongly about this case. I need somebody to keep me honest. You up for it?”
“Absolutely,” Thomas said. “What’s the timetable?”
“He was arraigned yesterday. Why don’t you call the court clerk and the district attorney’s office. Introduce yourself, tell them you’ll be working with me. File an appearance on behalf of the client.”
“What’s his name?”
“Wat Tyler. Kind of a character, you’ll enjoy him I think. Now get the research going. We should have some fun with this one—and it’s for a good cause.” Fox said that part with a smile.
The younger man felt somewhat changed as he walked back up to the library, a different man than the one who had walked down the stairs a short time ago.
He sat for a moment and opened up his portfolio to look at his notes, which upon review provided him with only the barest outline of the case:
lobster, 4th amend constitut, warrant?
He went to the stacks and pulled down the deep maroon volume that contained the Fourth Amendment and began to look through the index of cases. Nothing about lobsters. He got on the computer terminal and began to search, using various combinations of terms. After a while, he came across a doctrine that seemed to create an obstacle for the client—if evidence was in plain view, it could be seized without a warrant. It would come down to facts; where the lobsters were, how far away the state police were when they saw them, and so on.
He decided to put the research aside for the time being and follow up with the court. He called the clerk’s office and got the name of the assistant district attorney who was handling the prosecution, then stewed for awhile before calling him.
He looked the fellow up in the lawyer’s directory; a recent law school graduate, as he was. Thomas felt better about his chances and so, after taking a deep breath, dialed the number.
“O’Malley,” came the voice at the other end of the line.
“Hi, uh, this is Thomas Van der Kellen, I’m calling about a guy named Wat Tyler.”
“Oh, yeah. That’s mine. They caught him red-handed.”
He knew better than to get into it with an adversary over the phone; he’d been told early on by a senior associate that there was no point to it. Just move things along, keep things professional.
“When’s the arraignment?”
“It was yesterday—he pleaded not guilty. Said he didn’t have counsel. You been retained?”
“We’re representing Mr. Tyler pro bono.”
“Oh, pro bono,” the other lawyer said, drawling out the words.
“When’s the next hearing?” Thomas asked, trying to get things back on track.
“It isn’t a hearing,” O’Malley said, making a fine distinction with a coarse tone. “Next step is a pre-trial conference. You and me get together and talk about how we’re gonna dispose of the case. If your guy’s pro bono I guess that means he can’t pay a fine?”
“I…can’t say at this time.”
“’Cause if that’s the case then we’re lookin’ at some jail time.”
Thomas wondered if he had blundered into some sort of trap. “We’ll be filing a preliminary motion before then,” he said hastily, trying to put up a strong front.
“What kinda motion?”
“A motion to quash the evidence.”
There was silence at the end of the line. I have him back on his heels, Thomas thought to himself.
“On what grounds?” O’Malley asked, sounding incredulous.
“Unlawful search and seizure.”
“Okay, counselor, if you want to make a couple dozen short lobsters a constitutional case, I guess we can play that game. I don’t think the court is gonna be receptive to it.”
“Well, that’s why we have judges, isn’t it,” Thomas said, feeling a bit better about himself.
“Sure. You go ahead and file your motion. Right now, I don’t even have to turn over any evidence to you, so it’s gonna be premature.”
“As I said, it’s a preliminary motion.”
“Nice talkin’ to you,” O’Malley said, then hung up as if their conversation had ended by agreement.
When the time came for his next meeting with Fox, Thomas was ready but apprehensive.
“So why didn’t they need a warrant?” Fox asked.
“Lobster fishing is a regulated activity and there’s an expectation you’ll be inspected. The Marine Fisheries people can stop you and ask to see your license and inspect your equipment.”
“Without a warrant?”
“Without a warrant.”
“That’s got to be wrong,” the older man said, turning to look out the window. “Did you research federal cases?”
“There’s a California case.”
“Spiny lobster. Administrative searches and seizures are reviewed under a lower standard when the action serves an important state need independent of criminal law.”
“So, a state lobster cop can search anybody, anytime?”
“Yes.” Thomas realized he sounded less than zealous, so he explained. “Well, no, only people who are fishing.”
“But from what I understand our guy was just cruising along. Whatever he’d done he’d done, so he wasn’t fishing when they stopped him.”
“They can inspect people engaged in the regulated activity if limiting inspections to those suspected of committing violations would undermine the state’s ability to address the need.”
The partner found the whole notion troubling. “Here’s a man just trying to feed his family—from the sea. He brings lobsters up into his boat, maybe hasn’t even measured them yet. He gets them on board and the police swoop down on him. Seems awfully unfair to me.” He swiveled around and looked the associate straight on.
“Well, I guess it will depend on the facts,” Thomas said.
“Maybe it will. We need to get the client in here and talk to him. Abby!”
“Yes Mr. Fox?”
“Would you get Wat Tyler on the line?”
The younger man was both impressed and repelled by the practice the older lawyers followed of having their secretaries make telephone calls. On one hand, it seemed awfully vain of some people to think such an easy task beneath them. On the other, he’d heard it explained as an efficiency measure; if you delegated that sort of thing to others, you had more time to tend to the law.
“I’ll put him through,” the secretary said after a moment, and the phone beeped in Fox’s office.
“Hullo there,” Fox boomed into the receiver. “Staying out of trouble?” Thomas was impressed that a senior partner could get on so cordially with an indigent client; perhaps he’d been wrong about the apparent formality of the proxy dialing.
Fox continued after the pleasantries were over. “Say, we’ve got a few questions for you about what actually happened the other day. Do you think you could come in soon so we could get your side of the story, from beginning to end? I think it would help us prepare your case.”
Thomas watched as the older man handled the client in a sensitive manner; not doubting the man’s story, just wanting to get all the facts. There might have been something important legally that the fellow had overlooked, or thought didn’t matter.
“I’ve got a bright young fellow working on your case,” Fox said, winking at Thomas. “He’ll sit down with you and work out all the facts, okay? Shall we say Thursday morning about…ten o’clock? How’s that? Okay, I’ll get a conference room here and you’ll be meeting with Thomas Van der Kellen.” He paused to listen for a moment. “No, I’m not shunting you off on some rookie. I’m very involved in the case. I have a meeting out of the office in the morning so I may be running late, that’s all. All right. I’ll plan to see you then.”
Fox hung up the phone with a look of exasperation. “Everybody demands top-notch service, even when they don’t pay your bills,” he said. Thomas smiled back, wondering at the ingratitude of some people.
When the day arrived, the secretary ushered Mr. Tyler into the conference room and got him coffee, then buzzed Thomas’ line to tell him the client had arrived.
Upon entering the room and getting his first look at Tyler, the associate was slightly surprised, but stifled the impulse to judge the man. He had white stubble on his face, which was red from the sun where you’d expect it to be for a fisherman, and red around the nose and eyes in a way that suggested he liked to drink. He had on boat shoes but no socks, a worn pair of red trousers, a good tattersall shirt that showed signs of age, and a faded blue blazer. Thomas imagined the man that morning, getting dressed up in a fashion that he was probably unused to, and uncomfortable in.
“Mr. Tyler?” he asked as he stood at the threshold.
The greeting didn’t register at first; Tyler sat staring straight ahead, lost in thought. Possibly contemplating what sort of facility he’d be incarcerated in if he were convicted.
“Mr. Tyler?” he tried again, after clearing his throat.
“You Thomas?” the man said, standing up.
“Yes.” Thomas moved towards the man, who seemed unsteady as he stood up. “Nice to meet you.”
“Nicer to meet you, I’m sure,” Tyler said, and Thomas smiled in appreciation of the man’s gratitude.
“Are you all set with coffee and everything?” Thomas asked.
“Yes, that nice lady took care of me.”
“Good, good. So—let me get the tape recorder here going and I’ll start asking you some questions.”
“Fire when ready,” Tyler said, looking out on the harbor, inattentive. He was vague at times, but generally responsive. His story resembled that of other cases that Thomas had read; the defendant claimed he always threw back short lobsters, or didn’t realize they were short, or was just in the act of throwing them back when he was caught. His defense was that he hadn’t measured the lobsters yet, but this was undercut by the number he’d been caught with; he’d had plenty of time to check—it didn’t look good.
Still, there was the man’s demeanor, thought Thomas; he was self-assured, but not smug. “Demeanor is testimony” Thomas had heard Fox say one time, and he contemplated putting Tyler through his paces on the witness stand, then turning him over to that distasteful O’Malley fellow who he imagined would be frustrated by the old fellow’s aplomb.
Once Thomas had run out of questions, he turned off the tape machine.
“Well, I hope that does the trick,” Tyler said. He seemed to relax a bit, although he’d never appeared particularly worried when he was answering questions.
“I think it will,” Thomas said. “I hope the case goes to trial.”
“You need the experience?” Tyler asked, pointedly but with a friendly tone.
“Sure. Someone like me has to spend a lot of time in the library, so you can imagine how much I’m looking forward to my first trial. Especially representing someone like yourself…”
“Like myself? What’s that supposed to mean?”
Thomas wondered if he’d said the wrong thing. “Well, Fox said we’re doing it pro bono, so I thought…”
“Ha! I could buy and sell him three times over. I’m not a charity case, I’m just cheap. I hate paying lawyers money.”
“I was his fraternity brother in college. He used to represent my dad’s company, but since we sold it we haven’t needed a lawyer much.”
Fox came in with a booming voice and said, “Well hello, you old salty dog!” The two men shook hands. “You up for a bite of lunch?”
“I could use some, sure,” Tyler said. “I’m exhausted from the third degree I’ve been getting from this young fellow here.”
“Well, I hope it wasn’t too bad.”
“No, you’ve got a good man there, very thorough, very capable,” Tyler said.
“Good, good. Well, I’ve got a table for noon if you don’t mind walking a few blocks.”
“Sure. Walk will do me good.”
The men started to leave the conference room when Fox stopped and turned around. “You’ll have Abby type that up, right?”
“Okay.” Fox started to leave, then stopped and turned around again. “You…want to join us for lunch?” he asked, as Tyler stood in the hall, looking over his shoulder.
“No, it’s fine,” Thomas said. “I’ve got a lot of work to do.”
featured in our winter 2019 issue