Something Borrowed Part 2

I remember it well. Zigman stood behind his podium, examining his seating chart, a schematic with our faces cut from the first-year look book, practically salivating as he picked his prey. He peered over his small, round gla.s.ses (the kind that should be called spectacles) in our general direction, and said, "Mr. Thaler."

He p.r.o.nounced Dex's name wrong, making it rhyme with "taller."

"It's 'Thaa-ler,' " Dex said, unflinching.

I inhaled sharply; n.o.body corrected Zigman. Dex was really going to get it now.

"Well, pardon me, Mr. Thaaa-ler," Zigman said, with an insincere little bow. "Palsgraf versus Long Island Railroad Company."

Dex sat calmly with his book closed while the rest of the cla.s.s nervously flipped to the case we had been a.s.signed to read the night before.

The case involved a railroad accident. While rus.h.i.+ng to board a train, a railroad employee knocked a package of dynamite out of a pa.s.senger's hand, causing injury to another pa.s.senger, Mrs. Palsgraf. Justice Car-dozo, writing for the majority, held that Mrs. Palsgraf was not a "foreseeable plaintiff" and, as such, could not recover from the railroad company. Perhaps the railroad employees should have foreseen harm to the package holder, the Court explained, but not harm to Mrs. Palsgraf.

"Should the plaintiff have been allowed recovery?" Zigman asked Dex.

Dex said nothing. For a brief second I panicked that he had frozen, like others before him. Say no, I thought, sending him fierce brain waves. Go with the majority holding. But when I looked at his expression, and the way his arms were folded across his chest, I could tell that he was only taking his time, in marked contrast to the way most first-year students blurted out quick, nervous, untenable answers as if reaction time could compensate for understanding.

"In my opinion?" Dex asked.

"I am addressing you, Mr. Thaler. So, yes, I am asking for your opinion."

"I would have to say yes, the plaintiff should have been allowed recovery. I agree with Justice Andrew's dissent."

"Ohhhh, really?" Zigman's voice was high and nasal.

"Yes. Really."

I was surprised by his answer, as he had told me just before cla.s.s that he didn't realize crack cocaine had been around in 1928, but Justice Andrews surely must have been smoking it when he wrote his dissent. I was even more surprised by Dexter's brazen "really" tagged onto the end of his answer, as though to taunt Zigman.

Zigman's scrawny chest swelled visibly. "So you think that the guard should have foreseen that the innocuous package measuring fifteen inches in length, covered with a newspaper, contained explosives and would cause injury to the plaintiff?"

"It was certainly a possibility."

"Should he have foreseen that the package could cause injury to anybody in the world?" Zigman asked, with mounting sarcasm.

"I didn't say 'anybody in the world.' I said 'the plaintiff.' Mrs. Pals-graf, in my opinion, was in the danger zone."

Zigman approached our row with ramrod posture and tossed his Wall Street Journal onto Dex's closed textbook.

"Care to return my newspaper?"

"I'd prefer not to," Dex said.

The shock in the room was palpable. The rest of us would have simply played along and returned the paper, mere props in Zigman's questioning.

"You'd prefer not to?" Zigman c.o.c.ked his head.

"That's correct. There could be dynamite wrapped inside it."

Half of the cla.s.s gasped, the other half snickered. Clearly, Zigman had some tactic up his sleeve, some way of turning the facts around on Dex. But Dex wasn't falling for it. Zigman was visibly frustrated.

"Well, let's suppose you did choose to return it to me and it did contain a stick of dynamite and it did cause injury to your person. Then what, Mr. Thaler?"

"Then I would sue you, and likely I would win."

"And would that recovery be consistent with Judge Cardozo's rationale in the majority holding?"

"No. It would not."

"Oh, really? And why not?"

"Because I'd sue you for an intentional tort, and Cardozo was talking about negligence, was he not?" Dex raised his voice to match Zigman's.

I think I stopped breathing as Zigman pressed his palms together and brought them neatly against his chest as though he were praying. "I ask the questions in this cla.s.sroom. If that's all right with you, Mr. Thaler?"

Dex shrugged as if to say, have it your way, makes no difference to me.

"Well, let's suppose that I accidentally dropped my paper onto your desk, and you returned it and were injured. Would Mr. Cardozo allow you full recovery?"

"Sure."

"And why is that?"

Dex sighed to show that the exercise was boring him and then said swiftly and clearly, "Because it was entirely foreseeable that the dynamite could cause injury to me. Your dropping the paper containing dynamite into my personal s.p.a.ce violated my legally protected interest. Your negligent act caused a hazard apparent to the eye of ordinary vigilance."

I studied the highlighted portions of my book. Dex was quoting sections of Cardozo's opinion verbatim, without so much as glancing at his book or notes. The whole cla.s.s was spellbound-n.o.body did this well, and certainly not with Zigman looming over him.

"And if Ms. Myers sued," Zigman said, pointing to a trembling Julie Myers on the other side of the cla.s.sroom, his victim from the day before. "Should she be allowed recovery?"

"Under Cardozo's holding or Justice Andrews's dissent?"

"The latter. As it is the opinion you share."

"Yes. Everyone owes to the world at large the duty of refraining from acts which unreasonably threaten the safety of others," Dex said, another straight quote from the dissent.

It went on like that for the rest of the hour, Dex distinguis.h.i.+ng nuances in changed fact patterns, never wavering, always answering decisively.

And at the end of the hour, Zigman actually said, "Very good, Mr. Thaler."

It was a first.

I left cla.s.s feeling jubilant. Dex had prevailed for all of us. The story spread throughout the first-year cla.s.s, earning him more points with the girls, who had long since determined that he was totally available.

I told Darcy the story as well. She had moved to New York at about the same time I did, only under vastly different circ.u.mstances. I was there to become a lawyer; she came without a job, or a plan, or much money. I let her sleep on a futon in my dorm room until she found some roommates-three American Airlines flight attendants looking to squeeze a fourth body into their heavily part.i.tioned studio. She borrowed money from her parents to make the rent while she looked for a job, finally settling on a bartending position at the Monkey Bar. For the first time in our friends.h.i.+p, I was happy with my life in comparison to hers. I was just as poor, but at least I had a plan. Darcy's prospects didn't seem great with only a 2.9 GPA from Indiana University.

"You're so lucky," Darcy would whine as I tried to study.

No, luck is what you have, I'd think. Luck is buying a lottery ticket along with your Yoo-hoo and striking it rich. Nothing about my life is lucky-it's all about hard work, it is all an uphill struggle. But of course, I never said that. Just told her that things would soon turn around for her.

And sure enough, they did. About two weeks later a man waltzed into the Monkey Bar, ordered a whiskey sour, and began to chat Darcy up. By the time he finished his drink, he had promised her a job at one of Manhattan's top PR firms. He told her to come in for an interview, but that he would (wink, wink) make sure that she got the job. Darcy took his business card, had me revise her resume, went in for the interview, and got an offer on the spot. Her starting salary was seventy thousand dollars. Plus an expense account. Practically what I would make if I did well enough in school to get a job with a New York firm.

So while I sweated it out and racked up debt, Darcy began her glamorous PR career. She planned parties, promoted the season's latest fas.h.i.+on trends, got plenty of free everything, and dated a string of beautiful men. Within seven months, she left the flight attendants in the dust and moved in with her coworker Claire, a sn.o.bbish, well-connected girl from Greenwich.

Darcy tried to include me in her fast-track life, although I seldom had time to go to her events or her parties or her blind-date setups with guys she swore were "total hotties" but that I knew were simply her castoffs.

Which brings me back to Dex. I raved about him to Darcy and Claire, told them how unbelievable he was-smart, handsome, funny. In retrospect I'm not sure why I did it. In part because it was true. But perhaps I was a little jealous of their glamorous life and wanted to juice mine up a bit. Dex was the best thing in my a.r.s.enal.

"So why don't you like him?" Darcy would ask.

"He's not my type," I'd say. "We're just friends."

Which was the truth. Sure, there were moments when I felt a flicker of interest or a quickening of my pulse as I sat near Dex. But I remained vigilant not to fall for him, always reminding myself that guys like Dex only date girls like Darcy.

It wasn't until the following semester that the two met. A group of us from school, including Dex, planned an impromptu Thursday evening out. Darcy had been asking to meet Dex for weeks, so I phoned her and told her to be at the Red Lion at eight. She showed up, but Dex did not. I could tell Darcy viewed the whole outing as wasted effort, complaining that the Red Lion wasn't her scene, that she was over these grungy under-grad bars (which she had been into just a few short months ago), that the band sucked, and could we please leave and go somewhere nicer where people valued good grooming.

At that moment Dex sauntered into the bar wearing a black leather coat and a beautiful, oatmeal-colored cashmere sweater. He walked straight over to me and gave me a kiss on the cheek, which I still wasn't used to-Midwesterners don't kiss and greet like that. I introduced him to Darcy, and she turned on the charm, giggling and playing with her hair and nodding emphatically whenever he said anything. Dex was pleasant to her but didn't seem overly interested and, at one point, as she was dropping Goldman names-Do you know this guy or that guy?-Dex actually appeared to be suppressing a yawn. He left before the rest of us, waving good-bye to the group and telling Darcy that it was nice to meet her.

On the walk back to my room, I asked her what she thought of him.

"He's cute," Darcy said, giving the minimum endors.e.m.e.nt. Her lackl.u.s.ter response irritated me. She couldn't praise him because he hadn't been dazzled enough by her. Darcy expected to be the one pursued. And that's what I had come to expect too.

The next day, as Dex and I had coffee, I waited for him to mention Darcy. I was sure he would, but he didn't. A small-okay, a big-part of me enjoyed telling Darcy that her name hadn't come up. For once, somebody wasn't falling all over themselves to be with her.

I should've known better.

About a week later, out of the blue, Dex asked me what the story was with my friend.

"Which friend?" I asked, playing dumb.

"You know, the dark-haired woman from the Red Lion?"

"Oh. Darcy," I said. And then cut right to the chase. "You want her phone number?"

"If she's single."

I delivered the news to her that evening. She smiled coyly. "He is pretty cute. I'll go out with him."

It took Dex another two weeks to call her. If he waited on purpose, the strategy worked wonders. She was in a frenzy by the time he took her to Union Square Cafe. The date obviously went well, because they went to brunch the next morning in the Village. Soon after that, Darcy and Dex were both off the market.

In the beginning, their romance was turbulent. I always knew Darcy loved to fight with her boyfriends-it wasn't fun unless high drama was involved-but I viewed Dex as this rational, cool creature, above the fray. Maybe he had been that way with other girls, but Darcy sucked him into her world of chaos and high emotion. She'd find a phone number in one of his law-school notebooks (she was a self-proclaimed snoop), do the research, trace it back to an ex-girlfriend, and refuse to speak to him. One day he came into Torts looking sheepish, with a cut on his forehead, right above his left eye. Darcy had hurled a wire hanger at him in a jealous rage.

And it worked the other way, too. We'd all go out and Darcy would cozy up to the bar with another guy. I'd watch Dex steal casual glances their way until he could stand it no longer. He'd go to collect her, looking angry but composed, and I'd overhear her justifying her flirtations with some tenuous connection to the guy: "I mean, we were just talking about our brothers and how they were in the same freaking fraternity. Jesus, Dex! You don't have to overreact!" < but="" eventually="" their="" relations.h.i.+p="" stabilized,="" the="" fights="" grew="" less="" intense="" and="" more="" infrequent,="" and="" she="" moved="" into="" his="" apartment.="" then,="" this="" past="" winter,="" dex="" proposed.="" they="" picked="" a="" weekend="" in="" september,="" and="" she="" picked="" me="" as="" her="" maid="" of="">

I knew him first, I think to myself now. It is no more ironclad than the Ethan defense, but I cling to it for a moment. I picture my sympathetic juror, leaning forward as she absorbs this revelation. She even raises the point during deliberations. "If it weren't for Rachel, Dex and Darcy would never have met. So, in a sense, Rachel deserved one time with him." The other jurors stare at her incredulously, and Chanel Suit tells her not to be ridiculous. That it has nothing to do with anything. "In fact, it might even cut the other way," Chanel Suit counters. "Rachel had her chance to be with Dex-but that window has long pa.s.sed. And now she is the maid of honor. The maid of honor! It is the ultimate betrayal!"

I work late that night, delaying my call back to Dex. I even consider waiting until tomorrow morning, mid-week, not calling at all. But the longer I wait, the more awkward it will be when I inevitably see him. So I force myself to sit down and dial his number. I hope for voice mail. It is ten-thirty. With any luck, he will be gone, home with Darcy.

"Dex Thaler," he answers, his tone all business. He is back at Goldman Sachs, having wisely chosen the banker route over the lawyer route. The work is more interesting, and the money much better.

"Rachel!" He sounds genuinely happy to hear from me, although somewhat nervous, his voice a bit too loud. "Thanks for calling. I was starting to think I wasn't going to hear from you."

"I've been meaning to call. It's just that... I've been really busy... Crazy day," I stammer. My mouth is bone-dry.

"Yeah, it's been nuts here too. Typical Monday," he says, sounding a bit more relaxed.

"Yeah..."

An awkward pause follows-well, it feels awkward to me. Does he expect me to bring up the Incident?

"So. How do you feel?" His voice becomes lower.

"How do I feel?" My face is burning, I'm sweating, and I can't rule out the possibility of regurgitating my sus.h.i.+ dinner.

"I mean, what do you think about Sat.u.r.day?" His voice is lower still, almost a whisper. Maybe he is just being discreet, making sure n.o.body in the office hears him, but the volume translates as intimate.

"I don't know what you're asking me..."

"Do you feel guilty?"

"Of course I feel guilty. Don't you?" I look out my window at the lights of Manhattan, in the direction of his downtown office.

"Well, yeah," he says sincerely. "Obviously. It shouldn't have happened. No question about that. It was wrong... and I don't want you to think that, you know, that it's typical practice for me. I've never cheated on Darcy before. Never... You believe that, don't you?"

I tell him that of course I believe him. I want to believe him.

Another silence.

"So, yeah, that was a first for me," he says.

More silence. I picture him with his feet up on his desk, his collar loosened, tie thrown over his shoulder. He looks good in a suit. Well, he looks good in anything. And nothing.

"Uh-huh," I say. I am gripping the phone so tightly that my fingers hurt. I switch hands and wipe my sweaty palm on my skirt.

"I feel so bad that you've been friends with Darcy forever, and this thing that happened between us... it puts you in a really atrocious position." He clears his throat and continues. "But at the same time, I don't know..."

"What don't you know?" I ask, against my better judgment to end the conversation, hang up the phone, choose the flight instinct that has always served me well.

"I don't know. I just... well, in some ways... well, objectively speaking, I know what I did was so wrong. But I just don't feel guilty. Isn't that awful?... Do you think less of me?"

I have no idea how to answer this one. "Yes" seems mean and judgmental; "no" might open the floodgates. I find safe, middle ground. "I have no room to judge anyone, do I? I was there... I did it too."

"I know, Rachel. But it was my fault."

I think about the elevator, the feel of his hair between my fingers.

"We were both at fault... We were both drunk. It must have been the shots-they just sneaked up on me and I hadn't really eaten much that day," I ramble, hoping that we are nearly finished.

Dex interrupts. "I wasn't that drunk," he states plainly, almost defiantly.