and in the beginning wondered if she had bitten off more than she could chew. Then she decided that she had, and stopped wondering.
“Happy Fourth!” whispered a voice at her ear, and she looked up.
Matt Booker was a year older than Anne’s twenty-eight, and he stood over her, with dark, wavy hair, light- blue eyes, and eyelashes too thick to be wasted on a man. She would have been wildly attracted to him if he hadn’t been opposing counsel, but that was an alternate reality. Matt represented the plaintiffs in this case, a female programmer named Beth Dietz and her husband Bill, who had filed a derivative claim against Chipster. Though Anne hadn’t dated anyone for the year she’d been in Philly, Matt Booker was the first time she’d been tempted. Really tempted, but opposing counsel was about as forbidden as fruit gets.
“Go away,” she said, but Matt leaned closer.
“I just want you to know that I’m not asking you out today.” His whisper smelled like Crest. “You’ve turned me down 329 times, and I’m detecting a pattern. Stop me before I ask again.”
Anne blushed. “Matt, has it occurred to you that you are sexually harassing me, in a sexual harassment lawsuit?”
“Come on, my advances are welcome, aren’t they? Sort of?”
Anne didn’t answer. She was deciding. It had been so long since she’d let herself trust anyone. But she had known Matt for almost a year, since the complaint in this case was filed, and he was an overconfident pain in the ass, which she liked in a man.
“A little? Slim to none?” Matt was asking, bracing a hand on the polished counsel table, and she took a chance.
“Okay. After the trial is over, I will go out with you. But only after.”
“
“No.”
“Will you sign an affidavit to that effect?”
“Go away.” Anne studied her brief. “I’m preparing to kick your ass.”
“What if I win this case?”
“Not possible. You’re in the wrong, and you’re against me.”
“I won the last evidentiary motion, remember?”
“That was a battle, not the war.” Anne eyed the bailiffs over her papers. “Now go away. Everyone knows you’re flirting.”
“You’re flirting back.”
“I don’t flirt with opposing counsel.”
“I’m not opposing, you are.” Matt snorted, then stepped away and crossed to plaintiff’s counsel table. Beyond it lay the jury box, a polished mahogany rail cordoning off fourteen empty chairs in various states of swivelhood. They made an interesting backdrop, and Anne wondered if Matt would still want to see her after the verdict came back. She thought of the young man sitting behind her and suppressed a guilty twinge. That made a total of two guilty twinges she’d had in her whole life, and Anne wasn’t good at suppressing them, on account of such sporadic practice.
“All rise!” the bailiff cried, from beyond the bar of the court. The golden seal of the United States Courts rose like the sun on the paneled wall, behind a huge mahogany dais of contemporary design. Gilt-framed portraits of past judges hung on the walls, their thick oil paint glistening darkly in the recessed lights. The bailiff stood near one, his chest puffed out as if it bore medals. “All rise! Court is now in session! The Honorable Albert D. Hoffmeier, presiding.”
“Good afternoon, everybody,” Judge Hoffmeier called out, emerging from the paneled pocket door, carrying a thick accordion case-file. The gallery greeted the stocky little judge in return, and he bustled into the courtroom, the hem of his shiny black robes brushing the carpet as he chugged past the American flag and onto the large, wooden dais, then plopped the file onto the cluttered desktop, seated himself in his chair, and pushed up his tortoiseshell glasses.
“Good afternoon, Ms. Murphy.” Judge Hoffmeier smiled down at her, his eyes bright. His wiry hair was flecked salt-and-pepper, and he wore a Stars-and-Stripes bow tie that evidenced a sense of humor legendary on the district court bench. “What is it you’re troubling us with, young lady? My favorite holiday is almost upon us, and we should all be out buying hot dogs and sunblock.” The gallery chuckled, as did the judge. “Yes, I like sunblock on my hot dogs.”
The gallery laughed again, and Anne rose and took her brief to the lectern. “Sorry to keep you, Your Honor, but I do have this pesky evidentiary motion. As you know, I represent Chipster.com, the defendant company in this matter, and I am asking the Court to exclude the testimony of Susan Feldman, whom plaintiff intends to call as a witness at trial next week.”
“You don’t think the jury should meet Ms. Feldman, counsel?” If Judge Hoffmeier appreciated Anne’s beauty he hid it well, and she didn’t kid herself that he’d let it influence him. It took more than a pretty face to win in a federal forum. Usually.
“Not at all, Your Honor. I think Ms. Feldman and her testimony should be excluded under Federal Rule of Evidence 401, because it is irrelevant. Ms. Feldman alleges that one of Chipster’s programmers, named Phillip Leaver, sexually harassed her, in a rather bizarre incident.” The judge’s already-twinkling eye told Anne that he knew the underlying facts. “Neither Ms. Feldman nor Mr. Leaver have anything to do with this case or either of the parties at issue. The incident concerning Ms. Feldman occurred in a different department, at a different time, between different people.”
“I read your motion papers.” Judge Hoffmeier patted the accordion file. “Am I correct that defendant company concedes that the incident involving Ms. Feldman is true?”
“Correct, Your Honor.” Anne took a deep, preparatory breath. “We concede that this incident took place, but we do not concede that it constitutes sexual harassment. The incident was a prank, and even though Mr. Leaver’s conduct wasn’t actionable, Chipster found it inappropriate and terminated him that very day.”
“Oh really? A prank?” Judge Hoffmeier peered in amusement over the top of his glasses. “Let’s talk turkey, Ms. Murphy. Mr. Leaver came out of his cubicle at work—and he was naked as a jaybird!”
“True.” Anne suppressed her smile, and the gallery reacted with muffled laughter. “But it was a joke, Your Honor. And, just for the record, Mr. Leaver was wearing ankle bands with little wings. They were made out of Reynolds Wrap.”
“Ankle bands with wings, of course. A fan of Hermes, or Pan, perhaps, eh?” Judge Hoffmeier chuckled, and the gallery with him, since they’d been given judicial permission. “Why wings, counsel?”
“Why not, Your Honor? Though I doubt Mr. Leaver studies mythology. He’s twenty-three years old and watches way too much
“
“It’s a show on MTV. Young men skateboard naked or dressed like gorillas.” Anne loved the show, but wasn’t eager to reveal as much to a sixty-year-old judge with Article III powers. “In any event, Mr. Leaver came out of his cubicle and stood for a moment in front of Ms. Feldman, but said nothing inappropriate and made no lewd gesture. He merely flapped his arms and pretended to fly, which I admit is silly and tasteless, but is not yet a violation of federal law.”
Judge Hoffmeier burst into laughter. “This is why NASDAQ’s in the crapper! This is the Internet revolution we hear so much about! The nation’s economy is run by children wearing kitchen supplies!”
Anne waited until the laughter in the gallery had subsided. The holiday mood had already started, and she hoped it would flow in her favor, five minutes hence. “It is funny, Your Honor, and in fact, Ms. Feldman clearly took Mr. Leaver’s actions as a joke. When he started flapping, she laughed until she fell off her chair. Mr. Leaver was so embarrassed, he ran into the men’s room and refused to come out until the close of business.”
The gallery laughed louder, and Judge Hoffmeier let it spend itself, then turned serious. “Well. This is a unique fact situation, to be sure. Your client, Chipster.com, doesn’t want Ms. Feldman to tell the story about the tinfoil wings at trial?”
“No. Her story, her evidence, is irrelevant. The upcoming trial,
