Reason on a Scaffolding
REASON ON A SCAFFOLDING
(Tel Aviv, 1963)
I.REVISITING MY TEL
AVIV HOME
Lydda’s airport – recently renamed the International
Airport of Tel Aviv – had been reconstructed during my two years of study at
Oxford and my two first years in Singapore. The old viewing gallery, from which
you could drop a parcel with black market money to a departing friend, was
gone. So were the untidy passages leading from the pandemonium of the main hall
to the well guarded and orderly departure gates. The new airport looked smart,
tidy and functional. Like most airports I had seen during my years of self-imposed
exile, it had an impersonal atmosphere.
Mother was waiting for me just outside the customs area.
Her hair had gone white and the wrinkles on her face had multiplied. From a
woman in her late middle age, she had metamorphosed into a senior citizen. Still, her smile was unchanged, and her self-confident
airs had remained as of old. I was amused to observe how her glance took in my
receding hair. She knew, of course, that many men had a similar experience when
they were close to thirty.
We took the bus to the terminal in Tel Aviv. From there
we proceeded home in a taxi. I was too tired to engage in small talk. After a
few questions about my health and progress, mother, too, remained silent. Fortunately, we
arrived before the atmosphere became oppressive.
The old bedroom, in which I had grown up,
looked unchanged. The sofa-bed, the small cupboard and the mahogany desk were
still there. So was the shelf with my books.
“It’s all as it used to
be, Mamma.”
“What did you expect?
Well, you better wait here while I warm up our supper.”
I was perturbed by the arrangement of my books. I had
classified them by using the Hebrew alphabet. After four years abroad, the
method appeared alien. Reflectively, I leafed through a Hebrew translation of The Pickwick Papers. Before long I
pushed the book aside and read pages of the original. I then turned to Light in August. Some six years earlier
on, I had struggled with it. Presently, the text was clear and the style
appeared smooth and flowing. To my relief, I had no difficulty with a novel by
Remarque, my favourite German author.
We had supper in the compact dining room. As anticipated,
mother had prepared a goose liver followed by cabbage rolls. I enjoyed every
morsel, although during my
Mother started the old questioning process while I was
digging into the goose liver. She began by asking about my defence of my
doctoral thesis. She then kept asking about my life in
She came to her main point when I enjoyed the spicy
cabbage rolls. I had written to tell her that I had met a nice girl in
“Do you intend
to marry her?”
“It looks that
way,” I conceded.
“Then you
won’t be my problem any longer!” Seeing I was not going to reply, she added:
“Do you love the girl?”
“I believe I
do.”
“If you marry
her, you would find it hard to come back to
“I have, Mamma.
By and large, life in
“You don’t
intend to change your faith, Peter’le?”
“Of course
not.
“Not even your
wife?”
“Pat and I
have a clear understanding in this regard.
And look, Mamma, there is very little to attract me back to Tel Aviv. Father
has re-settled in
“Is there nothing to draw you back to
“I am afraid
not, Mama.”
Mother’s last question turned my mind back to my years as
an advocate in Tel Aviv. I had spent them as an employee of Jacob
Keren & Associates, a well known law firm in Tel Aviv. One of my
colleagues was Rachel Zeitlin. She used to practise law in
Rachel, who
was some six years older than me, was a brilliant courtroom advocate. Her
timing was perfect and her manner firm and dogged. Further, she was an
outstanding cross-examiner. Frequently, she exposed dishonest witnesses.
My role was mainly to fortify our legal points. Rachel,
whose understanding of theory left much to be desired, relied on my analytical
ability. In a sense, my task was to guard her flanks.
Before long, we became close friends. Then, one evening,
she invited me over to her place. She knew I admired her and that I had fallen
deeply in love with her. When we became intimate, she was still recovering from
the breakdown of her second marriage. She got over her setback only after she
invited me to live with her.
“Do you think of Rachel
frequently, Peter’le?”
“I do, Mamma. I’ve tried
hard to put her out of my mind; but I can’t.”
“Do you know Rachel and I
have become friends?”
I had been aware of their
friendship. Mother had met Rachel in a bridge club. Rachel had invited her for
dinner and in due course they started to meet regularly. Was this an indication
that Rachel, too, had not forgotten? During my years abroad, I wrote to her sporadically.
Whenever I did, she replied punctually. She had told me of her friendship with my
mother, asking: “How on earth could a lively woman like her have a morose son
like you?”
“Rachel asks
you to call on her as soon as possible. She wants you to handle a case for one
of their clients: an insurance company called Rotem.”
“What sort of
case, Mamma?”
“It concerns a
claim by a fellow called Fischer. He fell off a scaffolding erected in a
building he had designed as an architect.”
“What took him
there?”
“He was also
appointed as surveyor. Rachel tells me you know him. He appeared as expert
witness in a few of your cases.”
“Oh yes: I
remember him. I would rank his integrity at minus zero. Still, he is glib and
proficient. Actually, Mamma, this type of case is very much Rachel’s domain.
Why does she want to pass it to another lawyer?”
“Nowadays she
scarcely appears in court. She has taken over the Banking Department. She
drafts documents, handles corporate finance and has become an expert in home
loans and mortgages.”
“So why
haven’t they assigned to another lawyer of the firm?”
“I am sure she
has reasons.”
“But should I
really take on a case when I am here for just a few weeks? And how did she know
I about my visit. I did not contact her.”
“I told her
you were coming over for a few weeks. And, Peter’le, whether to accept or
decline the brief is up to you.”
“Well, I’ll decide
after I’ve seen her.”
II. RACHEL ASSIGNS ME A
CASE
Next morning I walked over to Rothschild’s Boulevard. The
old building, housing Jacob Keren’s law firm, looked as dilapidated as ever. So
did the boulevard. The sparse shrubs along the centre lane had grown wild. They
had not been pruned for months. Indeed, this ancient part of Tel Aviv remained
as ugly and as untidy as it had been during my pupillage.
The door to the office of the Head of Bank Documentation
was slightly ajar. Having knocked and entered, I looked Rachel over with
amazement. In her days as a courtroom advocate, she had looked tidy and trim.
Now no trace was left of her smart coiffure and her elegant posture. I was
facing a woman past her youth. True, her confident manner and her captivating
smile had remained unaltered. Somehow, though, she no longer looked like the
woman I had worshipped.
“Have I aged
that much, Eli?” As always, Rachel used my Hebrew Name.
“Rubbish. You
are still the most beautiful woman in Tel Aviv, Rachel.”
“You used to
say: ‘in the world’, my pet.”
“That goes
without saying!”
“Flatterer,”
she replied bursting into laughter. But she looked pleased.
For a while we talked about the four years that had
elapsed since she sent me packing. I had
gleaned from her letters, that her third husband, Uzi, was a highly regarded
orthopaedic surgeon. Rachel, who had met him shortly after I went to
All in all,
theirs was a loose arrangement based on understanding and affection. In Tel Aviv, each had an independent agenda.
Still, twice or thrice a year they travelled. During these periods both were
‘away on leave’.
“Was our own
relationship suffocating, Rachel?”
“We did live
in one another’s pockets.”
“Was that why
you sent me away?”
“One of the
reasons. But look, we better turn to the
case I want you to handle.”
Rachel’s narration of the facts was clear. Both of us
knew Zvi Fischer well. We had used him as expert witness in some cases and had
to confront him when he was called by an adversary. Fischer was glib, self-assured
and quick on the uptake. On a number of occasions, when he appeared against us,
Rachel beat him. On others he managed to find a way out.
Fischer’s reputation as architect and designer left much
to be desired. He excelled when he planned standard designs, such as factories
and apartment blocks. When it came to more innovative projects, his plans were
usually rejected. He lacked both imagination and originality. At the same time,
he was an excellent engineer and a meticulous surveyor.
My main concern was the man’s lack of integrity. It was
known that, on at least two occasions, he gave expert evidence on industrial
accidents without even visiting the site. Rumour had it that some of his plans
were, likewise, based on photographs and measurements taken by others. You
could never predict what he was up to.
In consequence, Fischer’s earnings remained modest.
Usually, he was not the developer’s first choice. At the same time, he was a
popular expert witness. Lawyers knew he was always ready to give battle.
The accident that took place in the instant case was
banal. Fischer was in the course of a supervisory visit to a construction site
of a factory he had designed. In the process he stepped on a wooden plank that
was not part of the scaffolding. It gave way. Fortunately, one of the labourers
arrested Fischer’s fall. He ended up with a twisted ankle and a broken foot.
His suit against the developers was taken over by their insurance company. As
no settlement was reached, the case was put down for trial.
“What is so
special about the case, Rachel? There is the fine legal point of the extent of
a duty of care owed by a developer to a building surveyor. Surely, an
experienced professional – like Fischer – ought to know how to handle himself
on a scaffolding. Didn’t he know the plank was not part of the scaffolding as
erected?”
“He claims he
didn’t!”
“Surely, you
are one of the best lawyers to make mincemeat out of him.”
“You better
have a look at Rotem’s instructions.”
The perplexing words were in the last paragraph of the
letter instructing Jacob Keren’s firm to take charge of the case. Ruth
Schwartz, the Head of Rotem’s Law Department, requested that
Fischer be ‘handled gently’ when he gave his testimony. That ruled out a
searching cross- examination à la
Rachel. The case was to be fought on the legal issue.
“Why does Ruth
give us such a strange instruction? I know Rotem uses Fischer regularly as
expert witness. I can understand they don’t wish to discredit him. So why don’t
they settle amicably?”
“Have a good
look at the amount Fischer demands!”
“Good God,” I
exclaimed when I took in the figures. “Has Fischer gone berserk?”
“I don’t know.
But I have one important clue: he is Ruth’s current boyfriend!”
“I thought the
blighter was married?”
“He is. But
since when has this become an obstacle?” retorted Rachel with gusto.
For a while, I reflected.
There was something fishy about the case. It deserved the attention of a lawyer
subtler and more experienced than me.
“Have you
thought of using Boaz Tamir, Rachel? I know he has given up practice and has
become a back bencher of a left-wing party. But I’m told he still appears from time to time.”
“He does. A
back bencher’s earnings are meagre. But, you see, Fischer stole a march on us
there. He engaged Boaz right from the start.”
“Shit,” I
muttered.
“You mean
‘shut’, my pet. The legal world uses clean language. Jacob Keren would have a
fit if he overheard you. He uses foul
language only at home.”
“You have a
point there: our beloved legal world has its own double standards.”
“Not an
original observation, Eli. But be this as it may, how about the case?”
“It is an
interesting case, Rachel. If Boaz is not available, why not use one of the
firm’s own lawyers. I am sure you have engaged a few good ones.”
“Any hawk
would refuse to take the case. Ruth’s instruction would be bound to turn him
off. And the less efficient old guard fellows would be unable to handle
Fischer. They might turn us into a laughing stock. You are up to it. I am sure
of it.”
“I didn’t
really want to take a case during such a short visit but, very well, I’ll take
it. I need the money, Rachel. Further, I’d love to brandish swords with my old
mate and adversary, Boaz. We had great times together: in moots, in debating
societies and in court. How is he?”
“I haven’t met
him for years, Eli. He lives in Kibbutz Yokneam.”
“I’m sure
he’ll have a lot to tell me. I better go carefully through the documents. Has
the case been set?”
“It’s to be
heard in ten days. I believe Ehud Morag is the trial judge.”
“So, I better
hurry.”
“Quite so. And
look, Eli, I can’t have lunch with you today. Ruth Schwartz booked me two weeks
ago. Why don’t you prepare your notes? If you come over at about 11.30 on Friday,
we’ll have a business lunch.”
III. DISCUSSING THE CASE
WITH MOTHER
Mother looked at me searchingly when I passed through the
door. After a short pause, she came straight to the point: “What went wrong
when you met Rachel?”
“She is no
longer the woman I fell for. She is a different person.”
“But, Peter’le, did you fall for the real
Rachel or did you create your own image of her?”
Mother’s question made me see light. The real Rachel was
a fine woman: smart, vivacious and enterprising. She had entered into my barren
life at the appropriate moment. But, in my simplicity, I had placed her on a
pedestal. I had created a perfect statue and, like Pygmalion of old, was
perturbed when I discovered her real image.
“Perfect men
and women exist in novels: not in real life, Peter’le. Thank goodness she did
not take you on as ‘Prince Charming’. She knew yours were feet of clay. But
then, women are more realistic than men.”
“You may be
right, Mamma. I do like the Rachel I met today. But she isn’t the girl of my
fantasies.”
“Lucky it is
all clear to you now. Still, will you see her again?”
“Only to
discuss the case. I’ll have to peruse the documents during the next day or two.
I’m having lunch with her on Friday.”
“So, you have
taken the case on?”
“I have,
Mamma. A one-day hearing won’t disrupt my schedule. And the money will be
handy.”
“You know. I’m
relieved you have decided to go ahead with matter.”
“Why?”
“Because you
are now on firm ground.”
Before I went to my room with the bundle of documents, I
told mother that Boaz represented Fischer. Mother knew that Boaz was one of my
closest friends. He had often come over for lunch or dinner when both of us
were in practice in Tel Aviv. To my surprise, she also knew Boaz had moved to Yokneam,
the very Kibbutz on which his wife had grown up. Mother ran into Boaz in
Allenby Street a few weeks ago. He had confided that, occasionally, he missed
the drama of the courtroom.
IV. FURTHER PERUSAL OF THE
FACTS
To my relief, Boaz and Rachel had agreed on a ‘bundle’ of documents. Accordingly,
the judge was entitled to review the documents before the hearing. A
conscientious man like Morag would go ahead. In consequence, he would have a
basic grasp of the case before the trial.
The more I looked at the documents the less easy I felt.
Fischer had stated in his report of the accident that he had parked his car on
the grounds at about 8.30 a.m. The car-park-attendant’s record suggested he had
arrived half an hour earlier. I realised it might have taken Fischer time to
find a vacant lot. Thirty minutes, though, suggested the car park had been near
full. But could this happen early in the
morning?
Another suspicious fact related to the accident itself.
Fischer claimed it occurred shortly after he climbed up to the first floor. The
affidavit of the workman, who had arrested his fall, stated that Fischer
proceeded to the ‘accident spot’ on his way down from the 2nd Floor.
A further perusal of the documents revealed that the 2nd story was,
at that time, ‘still in progress’. It had not been ready for inspection.
The third oddity related to the plank that had given way.
It was not part of the scaffolding and should not have been there. Labourers
used it as a short cut when hopping from one part of the scaffolding to
another. The workman’s report mentioned the plank had been loose. Obviously,
the labourers took their chance when they made use of it. Fischer should have
insisted that it be removed. Instead, he too stepped on it.
Mother looked with concern at my harassed expression.
When I explained the problems, she
thought they would be a good starting point for Fischer’s cross- examination.
She was startled when I showed her Ruth’s instructions. She understood,
instantly, that a genuine cross-examination was ruled out. She then asked
whether such instructions were common.
“Of course
not, Mamma. But, you see, I am told Fischer is Ruth’s current boyfriend.”
“I am not
surprised. I saw them together in the theatre and in a restaurant. And you told
me a lot about Fischer years ago. I am not surprised he is a Tachshit [ornament; slang for philanderer].”
“I suspect
that explains it. Are you surprised, Mamma?”
“Of course
not. And a fellow like Fischer would make use of an old maid like Ruth. I used
to feel sorry for her when she came to concerts and shows unaccompanied. But
Peter’le, could there be even more to it than that?”
“What do you
mean?”
“Is Ruth
entitled to give such instructions?”
“Well, she is
the Head of Rotem’s Legal Department. In this case, she is our boss.”
“But doesn’t
she have to clear such an odd instruction with her superiors?”
Mother searching question
threw fresh light on the issue. At the same time, neither Rachel nor I were in
a position to question Ruth. Still, Jacob
Keren, the Head of our firm, was a non-executive director of Rotem. He could
bring the matter to the attention of Ruth’s superiors by raising it at the next
Board meeting.
A further study of the file exacerbated my misgivings.
Both the car park attendant and Fischer’s rescuer had no reason to lie. True,
one or the other could have made an honest mistake. But could both err?
I was, accordingly, inclined to believe them. But even
so, I remained in the dark. Why would Fischer misrepresent the time of his
arrival at the site? Further, why did he proceed to the 2nd story
when the area was still out of bounds? Fischer was a cunning and unprincipled
fellow. But he was no fool. What was he seeking to hide?
Despite her effort, mother was unable to come up with any
clue. One thing, though, became clear. Ruth’s instruction ruled out an attempt
to get to the bottom of the matter during the hearing. She had played right
into her boy-friend’s hand. All in all, the outcome depended on the delicate
legal question.
V. LUNCH WITH RACHEL
During the Friday lunch, I devoured the Mediterranean
dishes as if I had been starving for days. When the meal came to its end, an
amused Rachel wanted to know what sort of food I took overseas. She grinned
when I told her Chinese cuisine was tolerable but that the delight of boiled
mutton kept eluding me during my two years at
She was not surprised when I repeated my mother’s
observation about the oddity of our instructions. She, too, sensed that Ruth
might have acted without authority. All the same, it was best to stick to our
instructions. The case was bound to turn on the legal issue. A searching cross-examination
could be counter productive.
“Why would
Ruth take such a risk, Rachel? Issuing such instructions without her superiors’
consent could lead to an in-house scandal. Her very job may be on the line.”
“But look,
Eli: Ruth is pushing forty. And she is still on her own and has few friends. On
many social occasions she looks forlorn: out of place. She would go a far way
to please somebody who knows how to handle her. Chaps like Fischer pry on women
of her type.”
Rachel’s words made me reflect. She herself was of about
the same vintage as Ruth. Further, both were good looking and highly
intelligent. All the same, they were worlds apart. Ruth was the pampered
daughter of an upper-class German Jewish family. She was widely read, genuinely
interested in music and art and a pleasant person to talk too. Rachel, in
contrast, came from no-where, had no cultural aspirations and had to fight her
way to the top. Her main asset was her worldliness. She understood people, knew
how to get on with them and had an outgoing personality. One might admire her
or hate her. But she was hard to ignore. Unlike Ruth, she was not prepared to
blend with the scenery.
“Ruth and I
are very different persons, Eli. Life has taught me I have to pay for making
mistakes. Ruth is afraid to make any. She has not realised that to be human you
have, occasionally, to step out of line. She does not know that erring is a
human trait. She is now paying for her diffidence.”
“Did you ‘err’
when you took me on?” I asked compulsively.
“I don’t think
so. You, Eli, had to be taken out of your isolation. And, as you know, I was
still recovering from the breakdown of my second marriage. I needed a shoulder to lean on. I brought our romance to its end, when I felt
the time had come.”
“I know. In any event, I shall always remain
your friend.”
“It goes both
ways,” she told me. Then, abruptly, she turned back to our case. She knew I was
still mystified by the facts. She too had noted the inconsistencies.
“Is Fischer a
fool, Rachel?”
“A cunning
devil is a more apt description.”
“So why this silly
pack of lies? Why does Fischer assert he
arrived later than he did and what on earth was he doing on the 2nd
story?”
Having nodded
her head, Rachel concluded: “But Eli, why does all this matter us? Where is the
benefit of exposing him? We have a good legal case. All you have to do is to
convince the Judge that Fischer is an expert and knows all about scaffoldings.
Ruth’s instructions do not proscribe this line of questioning or indeed the
argument.”
“But what made
her take such a risk? What are they trying to hide?”
“I’ve no idea,
Eli. Perhaps it is best to leave well
alone.”
Rachel’s approach made
sense. As often before, her strategy was superior to mine. She sensed that, in
certain situations, it was best not to open Pandora’s box. As matters stood,
Fischer’s case was weak. He was the expert asked to report on progress and
standards. In the process, he had a fall where men less qualified than himself
knew how to handle themselves. Suppose you instructed a technician to repair
the brakes of your car. Could he complain when, in the process, he had an
accident because, unexpectedly, the brakes failed altogether?
VI. MEETING WITH BOAZ
On
Saturday – the day of rest in Israel – I went again through the documents. I was by
then certain Fischer was lying between his teeth. Ruth was prepared to stand by
him. Still, she had not asked us to throw the towel in.
To look up recent authorities, I went down to the Supreme
Court library on Sunday morning. As soon as I entered, I spotted Boaz. He, too,
was refreshing his memory. To my delight, he invited me to have morning coffee
with him.
“I hear you’ve
come back for a visit, Eli.”
“News travel
fast in this town, Boaz. Sorry for not calling on Miri and you. Yokneam is a
bit out of the way. Actually, I’m told you’ve entered into politics.”
“I’m a Mapam
beck-bencher now, Eli. Still, I do appear from time to time when I need the
money. But tell me: are you happy in
“Contented is
the right word. I fit in without belonging.”
“Here you
belonged but, in many ways, you did not fit in.”
“True: but
I’ve had really good friends.”
“You still
have them,” he assured me.
Before long, we turned to the case. Boaz was aware I had
been briefed. Naturally, we had been pitted against one another on previous
occasions. We had also appeared together, albeit for different parties, in
complex cases. Our professional engagements had never marred the close
friendship we had developed during our days at the University. I had been a
frequent guest in Boaz’s welcoming home and, both he and his wife, had been to
my home. I suspected that, like myself, Boaz looked forward to our forthcoming
appearance. Both of us could be tricky. But we had always been fair to one another
in our skirmishes.
Like Rachel and I, Boaz had noted the oddities in
Fischer’s testimony. Still, he decided not to raise the issues because he, too,
realised the case was bound to turn on the fine legal point. Further, Fischer
had acquainted him with Ruth’s remarkable instructions. In consequence, Boaz
concluded that Fischer would not be subjected to a devastating cross-examination.
“Still, Boaz,
Fischer is no fool. He’s a cunning bastard. What made him come up with these
stupid assertions? Off the record, do you know what is behind them?”
“I’ve no idea,
Eli. I’ve tried to probe. But Fischer has been evasive. I am as much in the
dark as Rachel and you!”
Boaz knew that any information he gave me off the record
would remain confidential. Quite apart from the bond of friendship, my silence
was dictated by the code of conduct of our legal world.
Boaz’s next
observations threw light on one point. The excessive amount of the claim was
Fischer’s own idea. Boaz had warned him that, even if the Judge accepted that
amount as a ‘base 1’, he might have to take into account Fischer’s contributory
negligence. If, for instance, he decided that Fischer ought to bear half the
loss, the damages would be reduced accordingly. Fischer had listened attentively
but, in the event, decided to claim the largest amount feasible.
“He won’t get
that, Boaz. Not if the Judge is going to be Ehud Morag.”
“Well Morag
has agreed to hear it. Think about it, Eli. He was our teacher. And we used to
appear before him in moots, in debates and in court.”
“He is
brilliant: best legal mind I know.”
“He is. But
you better prepare yourself for a shock, Eli. You must have heard that Morag’s
wife left him.”
“Rachel told
me about it. I felt sorry for him. He was devoted to his elegant, even if
playful, wife.”
“Her desertion
affected him. Then, one of Morag’s best friends committed suicide. It hit Morag
hard. We’ll have to handle him with extra care. We were his favourite students.
And you know: he remembers. When I appeared before him in chambers on another matter,
he asked about you. He knows Rachel and you broke off.”
“Did he attend
her wedding?”
“I don’t think
she invited people. It was a very private occasion. Still, Rachel’s Uzi
operated on Morag’s knee.”
“It’s a small
world,” I muttered.
“Incestuous.
Everybody knows everybody and everything, except the truth.”
In the event, we agreed to ask that the case be heard in
two parts. The first, we concluded, ought to deal with the issue of liability.
Did a developer owe any duty of care to his consultant? The second stage ought
to deal with the issue of damages and contributory negligence.
“Once we get
over the ‘liability’ issue, everybody would wish to settle,” grinned Boaz.
“Why haven’t
they settled up to now?”
“Rachel
offered Fischer a niggardly amount. In his chagrin, he instructed me not to
negotiate any further.”
“What a pity,”
I muttered.
“Oh, I don’t
know about that. It ain’t so bad for our fee notes.”
VI. THE HARING
Boaz and myself wore gowns: a remnant of the colonial
period. The judges had by then discarded the archaic attire. They wore a black
silk jacket and a matching discreet tie. Wigs were no longer in use.
As I entered the courtroom accompanied by Rachel and a
young employee of Rotem, Zvi Fischer stepped over and shook my hand.
“I’ve heard
you are back, Eli. I hope you liked
“I did, Zvi,”
I replied slightly perplexed. On all previous occasions, Fischer and I had
remained on formal terms.
“And how do
you like
“It’s a nice PLACE.
Actually, the government has launched public housing projects all over the
town. They operate on a system akin to our joint ownership apartment buildings.
Your designs would be just right.”
“I’d love to
see these developments one day,” he told me and returned to his side of the
room.
Shortly thereafter, the usher announced the Judge was
about to arrive. The few persons present rose to their feet and bowed to. Morag
returned our greeting graciously and took his seat on the bench. As I looked at
him, I felt grateful to Boaz for his warning. Ehud Morag’s presence and keen
expression used to command the respect of all in attendance. Even now his
demeanour confirmed that he remained the master of his court. But the lustre in
his eyes was gone. So was the eternal twinkle. I was facing an aging man.
Before the formal hearing started, Boaz applied that the
case be heard in two parts. When I agreed, Morag granted the application. Boaz
then introduced his case and as called Fischer as his first witness. To my
surprise, Fischer proceeded slowly and with some hesitation.
Boaz’s examination-in-chief was brief. He took Fischer
through the main events but, I noticed, did not touch on facts that had not
been spelt out in Fischer’s original report on the accident.
Fischer stuck
to his original story: he had arrived well after 8.00 a.m. and proceeded directly
to the accident site. Boaz did not refer to the time of Fischer’s arrival or to
the time of the accident. He was keen to
close the examination-in-chief as quickly as possible. As soon as he resumed
his seat, I stood up to cross-examine.
“You are one
of Tel-Aviv’s renowned designer of factories and joint ownership housing, Mr
Fischer?”
“I believe I
am well known in my profession,” retorted Fischer with pomp.
“Please answer
‘yes’ or ‘no’, Mr Fischer,” interceded Boaz.
“In that case:
yes, I am.”
“You are also
an experienced surveyor of work on building sites?”
“Well, yes.”
“How many
sites did you survey in, say, the last six months?”
“I don’t see
what this has got to do with this case,” Fischer flared up.
“Kindly answer
the question” instructed Morag, looking at Fischer narrowly.
“I can’t
recall!”
“Three?” asked
Morag.
“More than
that.”
“Twenty?”
“Not so many!”
“So, you can’t
recall how many sites you inspected during the last six months, but you are
certain the number is somewhere between 3 and 20?”
“Quite so,”
replied Fischer testily.
“How many
times did you inspect the current building site?” asked Morag unperturbed but
irked.
“Two or three,
Your Honour,” replied a much deflated Fischer.
“You inspected
the progress made in the construction of the 1st floor?”
“I did.”
“On these
occasions, was the accident-plank there?” persisted Morag, who had by then
taken over my role.
“I don’t know!
I mean: I have no idea.”
“And on the
day of the accident, did you expect to find the plank?”
“Of course
not.”
“It wasn’t
supposed to be there, was it?”
“No, it
wasn’t.”
“Did you ask
what it was doing there?”
“No, I
didn’t!”
“You just
stepped on it?”
“I did,
rather.”
“Sorry for
butting in Mr. Berger. I think you better continue.”
“Just a
question or two, Your Honour. Mr. Fischer, the scaffolding was erected
according to standard building regulations?”
“It was.”
“And you have
a great deal of experience in inspecting sites under construction.”
“I’ve already
said so.”
“No further
questions, Your Honour. But, of course, my Learned Colleague may wish to recall
the witness if the case proceeded to the next part.”
“Precisely,”
nodded Morag.
Boaz
advised that he was not calling any further witnesses at this stage. I, in
turn, decided not to introduce evidence.
Under standard civil procedure, Boaz was supposed to address the court
forthwith. Keeping with the philosophy of Jacob Keren’s law firm, I waived my
right to have the last word.
“Then, you
have to address me straight away,” pointed out Morag.
“I am ready,” I assured him.
“So am I,”
grinned Boaz.
“Very well
then,” said Morag smiling at both of us benignly. We were about to address him
on one of his pet subjects: the difficult legal issue he had discussed in his
role as our teacher. Morag looked forward to the occasion.
My address was
brief. A landlord did owe a duty of care to people using the building. He had
to maintain the premises so as not to cause injury to a reasonable man. Such a
person should not be expected to dodge traps. In particular, no ‘ambush’ should
be placed in a reasonable man’s way. In the instant case, though, it was
impossible to invoke the test based on the expectations of a reasonable man.
Such a man had no place on a scaffolding. He ought to find less hazardous pastimes,
for instance, relaxing in front of his television set.
“But surely,
you must not put a chair in his way or ask him to walk over a dangerous surface
like a wet floor?” asked Morag.
“Of course
not. And you must not booby trap the terminal. These duties are owed to any
person found on the premises or in the television room. And, Your Honour, I
submit this is the only duty owed by a developer to a technical surveyor, who
is a construction works expert.”
“But wasn’t
the plank a trap?”
“The plaintiff
conceded that the plank should not have been there. He himself is the very
expert to establish the point. Instead, he stepped on the plank although he
knew that was not part of the scaffolding. Why then did he step on it? There is
no evidence to establish that, seen from the plaintiff’s point of view, the
plank was a trap.”
Boaz’s reply was even shorter than my address. He
insisted that Fischer, had been asked by the defendants to inspect the progress
and standards of the factory under construction. In consequence, they owed him
the duty to make the site safe for any ‘reasonable man’. How could a reasonable
man be expected to examine the safety of every plank on a scaffolding? By its
very nature, such an object was a trap.
“Even when the
victim of the accident is an expert on
buildings and scaffoldings?”
“That is my
submission. Further, a reasonable man cannot be expected to anticipate such a hurdle. Here the plaintiff was in the
position of a ‘reasonable man’ notwithstanding his expertise.”
“Notwithstanding
his knowledge that the plank ought not to be there?”
“That, Your
Honour, is our submission.” Boaz then referred to the authorities in point.
“Two fine
addresses, if I may say so,” observed Morag. He was beaming at his two one-
time students.
“Both
are derived from what my Learned Friend and I were taught by a fine teacher,” I
told the Judge. Boaz nodded his consent.
“I need some
15 minutes to collect my thoughts. I’ll deliver an ex tempore judgment as soon as we resume.”
All present rose to their feet and bowed. Morag nodded
and withdrew to his chambers. When he resumed his seat on the Bench, he
dismissed the claim. By and large, he accepted my arguments. But he added two
points. First, Fischer had not established that the plank was a trap. In other
words, he had failed to prove a vital point of his case. Secondly, the
‘reasonable man’ test was of no help. If a ‘reasonable man’ were to find
himself on a scaffolding, he would take extra care when he sought to depart. It
was common ground that the accident took place when the plank gave way. But it
was unclear why the plaintiff stepped on it when he knew the plank should not
have been there.
“The parties
may wish to address me on the issue of costs. Further, the case turned on a
difficult issue. Please let me know in case you require Written Grounds of
Judgment. The plaintiff may, of course, wish to take the matter further. I’ll
call a break now. Please be back at 2.30 p.m.”
“Can we have
an indication of Your Honour’s thoughts respecting contributory negligence? The
issue could arise if one applied the ‘reasonable man’ test,” asked Boaz.
“The evidence
is too scanty for a determination or even a firm indication. Off the cuff, I
would anticipate a finding of about 60 per cent against the plaintiff. In my judgment, though,
the ‘reasonable man’ test is inapplicable. Further, I wonder if the test has
been misguided right from its inception.
Has any one of you ever met a ‘reasonable man’?”
VII. A CLASH WITH RUTH
Boaz and Fischer slid out of the courtroom forthwith. I
was taking off my gown when Ruth Schwartz’s voice startled me.
“Why didn’t
you stick to your instructions?” Her voice was harsh and her demeanour
antagonistic.
“What on earth
do you mean?” I asked angrily. Before Ruth had the time to respond, Rachel
approached us.
“I’ll tell you
what she means: she wanted us to lose the case. Well, Rotem did not instruct us
to do so. And we should not have accepted such a brief. We are lawyers: not
clowns.” Rachel was breathing hard. On occasions, I had seen her irked or
annoyed. But she had never lost her temper before.
“We did not
ask you to lose the case,” protested Ruth.
“Then what is
this fuss all about?”
“We asked you
to handle Fischer gently in the witness box.”
“we did. But
Fischer was impudent. So, Ehud Morag took the cross-examination over. And he is
not subject to your instructions.”
“I am told you
capitalised on it.”
“We did!”
replied Rachel angrily. “But then, you say you did not instruct us to lose the
case. And we didn’t!” Turning to me, she added:
“Your address was excellent, Eli. On behalf of Jacob Keren and Associates, I congratulate you! Well done. If
Rotem takes exception, they can challenge us! Actually, Jacob Keren intends to
raise the nature of these strange
instructions at Rotem’s next board meeting.”
Ruth looked at Rachel narrowly: the barb had found its
mark. I was by then convinced Ruth had given the instructions without the
necessary internal clearance. Regardless of things to come, she was bound to
face a storm.
Our immediate
task, though, was to bring the matter to its close. An appeal by the plaintiff
would be costly. Even if Rotem won, it might be difficult to recover the costs
from an impoverished Fischer. An ex
gratia payment might be the best solution.
I was about to
express my sentiment, when Ruth regained her cool. In point of fact, I knew her
well from a literary circle. One evening we took opposing roles in a literary
trial of Franz Kafka’s Castle. It had
been a pleasant and highly civilised occasion. At the end of the debate, all
present conceded they found Kafka hard to understand. Both Ruth and I were given an ovation. Ever
since, I regarded her a likeable person.
“Look, Eli. I am sorry I flew off the handle.
I did not realise Ehud Morag stepped in. I arrived during your fine address.
Can you please tell me what triggered Morag’s wrath? He hasn’t been the same
man for the last two years.” Ruth’s voiced evinced embarrassment mingled with
regrets.
“He did not
appreciate Fischer’s demeanour. Actually, I’m still in the dark. Fischer
appeared to sort of look over the Judge’s shoulder. He did it to me too. But I
thought he was being awkward. Coming to think of it, he sorts of limped to the
box. I asked myself what was the matter with him.”
“Boaz may be
able to tell you now,” said Ruth.
For a short while the three of us kept our silence. Then,
to my relief, Rachel regained her composure. She emphasised that, if the Court
of Appeal disagreed with Morag’s legal analysis, the case would be sent back
for a further hearing. An ex gratia
payment was the best way out. She thought Fischer might be willing to accept
the amount offered to him originally plus an additional sum to cover some of
his costs. We concluded it would be best to leave the negotiations in Ruth’s
hand.
“I’m afraid I
can’t have lunch with you Eli. Uzi has to attend to a patient who developed
some complications. I’ll go back home to prepare him a snack and some
sandwiches. He’s got to be at the hospital at 2.30 p.m. and may not be back
until late in the evening. Are you free for dinner?”
“Of course.”
“Come over to
my office at 6.30p.m. I want to back at
home at 9.30 p.m.”
“That should
be easy. And well, thanks,” I said and was startled by the Ruth’s supportive
smile.
VIII.REACHING A SETTLEMENT
I had no wish to remain in the empty courtroom for about
three hours or to join the queue of advocates at the cafeteria. To save mother
the trouble of preparing a hasty lunch, I got myself a Pitah Falafel – a local
delicacy which had lined the pockets of many a surgeon specialising in
abdominal ulcer operations – and walked home. In those golden days of youth, a
half hour’s walk appeared a trifle.
As I entered, mother looked up from her needle work. As
soon I sat down and took off my jacket, she started to question me about the
case. She was taken aback when I told her of Morag’s intervention.
“Was this
appropriate?” she wanted to know.
“Hard to say. Fischer
irked him. But I suspect there was more to it than that.”
“How did
Fischer irk Morag?”
“Fischer was
plain uncivil to me when I started my very mild cross. Morag is known as a
master of his court. He intervened when Fischer stepped out of line. Still, I
think there was some other factor. Fischer kept looking over my shoulder when
he talked to me. I suspect Morag was given the same treatment. And he did not
appreciate it.”
“I think I
understand,” conceded mother.
Mother was not surprised when I mentioned Rachel’s
outburst. She knew Rachel disliked Ruth
and her entire milieu. All in all, Rachel was a self-made woman. She had no
time for the pampered carriers of mid-European culture. She looked down on
them.
“Surely, Mamma,
she did not ‘look down on me’?”
“She didn’t. I
know that. But you Peter’le had never been a cultural snob. Further, you
admired Rachel for months before she took you on. I remember how you kept
raving about her. On the surface, you admired her courtroom manner. But right
from the start there was more to it than that.”
“I know.
Still, Mamma, I am out of the woods now. As you know, I am a reasonable man
prepared to concede defeat.”
“Thank
goodness. Still, Peter’le, Rachel continues to have a soft spot for you. This,
in part, explains her outburst. I’m pretty sure of it. You see, women tend to
remember. And Rachel is human. She took you on at the right time and decided,
on her own, when to call it a day.”
“Was I just an
‘episode’ in her life?”
“Perhaps. And,
of course, it is over. But all in all, neither of you has grounds to regret the
past.”
Mother was pleased to gather that Ruth and Boaz would be
working out the details of an ex gratia
settlement. When I told her about my dinner appointment with Rachel, she urged
me to talk as little as possible about the case.
“You better
make it clear to Rachel that your affair did not leave a bitter taste in your
mouth. That’s what she wants to hear.”
I got back to our courtroom at about 2.15 pm. One of Ruth’s
assistants handed me a note advising that Rotem has agreed to make an ex gratia payment of an amount slightly
above Rachel’s original offer. A few minutes later, Boaz stepped in accompanied
by Fischer. Stepping over to my side of the courtroom, he confirmed the details
of the arrangement.
“How did you
feel about Morag’s intervention, Eli?”
“Coming from
him it was fine. I don’t think another judge would have stepped in like that.
Thank goodness, he did not persist.”
“I was getting
ready to object when he handed poor Fischer back to you.”
“What on earth
possessed him? Morag has a short fuse. Still, he knows how to control himself.”
“Fischer was
unnecessarily rude to you. But I think there is a background. Before Morag’s
wife ran away, she had a number of affairs. I believe one was with Fischer.’
“Did Morag
know?”
“Rumour has it
that he did. Still, Fischer appeared as an expert witness in a few cases tried
by Morag recently. Morag showed no irritation on these occasions. In any event,
the present dispute has been settled. Accordingly, all is well.”
“But why did
Fischer play the fool? He is a shrewd fellow. What’s the matter with him?”
“I found out
three days ago. I’d like to tell you over dinner.”
“Rachel has
asked me out for tonight. How about lunch tomorrow?”
“I’ve got to
catch the bus to
“Let’s then
meet in our old eatery at 11.45am.”
As soon as Morag returned to court, Boaz advised him of
the settlement. Morag made it clear he was pleased. He assumed that the matter
of costs had been attended to and that there was no need for him to write a
full judgment.
“Procedurally,
there is no need, Your Honour. But I am convinced my Learned Friend, other
members of the profession and, of course, I, would love to read Your Honour’s
analysis of the issue.”
“I couldn’t
agree more,” responded Boaz.
“Very well
then. It will be ready in about two weeks.”
IX.
LAST CHAT WITH RACHEL
Rachel was waiting for me when I arrived sharp on time. I
admired the skill she showed as she steered us through the congested traffic.
To my delight, we got the very table we used to occupy in the same restaurant
in times past.
Rachel grinned again as I devoured the excellent dishes.
During the first two courses we talked about the case. Rachel was happy with
the settlement but, like myself, continued to wonder about Fischer. Why would
an experienced expert witness step out of line for no apparent reason? He knew
I had been instructed to handle him with silk gloves. What had induced him to
become antagonistic when the reply was obvious and harmless?
“I suspect
there is a reason,” Rachel opined.
“Boaz
will tell me all he knows tomorrow over lunch.”
“I too would like
to know. But honestly, we’ve dug deep enough for the time being. Tell me a bit
about your life in
For the next half hour, I told Rachel about my isolated
but fruitful existence in Oxford: my well heated but lonely room, the junior
common room and the pleasant strolls along the Cherwell and Addison’s Walk and my occasional trips to
Woodstock. I then told her about my experiences as a teacher in
Rachel, in turn, told me how she had met Uzi, how they
went together to concerts, to the theatre and to the cinema and about their
recent trips overseas. It was clear she had brought her ship home.
“I’m glad
you’ve got there, Rachel.”
“But how about
you, Eli? Do you have any regrets or hurt feelings?”
“I’m sorry
things did not work out for us. But I remain deeply grateful to you.”
“For what?”
“You
transformed me from an immature boy into a young man. I shall always think of
you with affection.”
As
we were getting ready to leave, Rachel mentioned that my mother told her about
the girl I had met in
She smiled
happily when I told her Pat was beautiful and had a presence. Still, Rachel manifested
concern when I told her Pat did not share my interests in art and literature and
had no academic bent. She was, further, perturbed by Pat’s ardent Christianity.
Rachel knew I was either an agnostic or an atheist. At the same time, Rachel
knew that my revolt against Faith and Judaism concealed a firm commitment to
the tribe. She did not think I would never be happy if I were induced to change
my religion. She was reassured when I told her how much Pat cared for me and
that Pat’s family had welcomed me as I was. They knew I had no intention of
changing my skin.
Rachel realised that my plans had been worked
out neatly. The University provided subsidized accommodation for its staff and
did much to encourage expatriate staff members to stay put. Both financially
and in terms of prestige, my future was more secure in
For a while Rachel reflected. She then summed up with the
confidence and clarity she manifested whenever she dealt with an issue.
“Look, Eli, in
these personal matters every person has
to make his own decision. But I want to give you one solid advice: be guided by
your instincts. Personal decisions concerning a relationship, a union or a
divorce are not dictated by reason. They are produced by emotions. In that
area, instincts provide the best guide. Even in a courtroom skirmish they have
a role to play. Still, reason often forces you to suppress them. This should
not happen in your personal life.”
Rachel drove me back to my parents’ flat. Before we
parted, she asked me to give her regards to mother. In a sense, she transported
me back to the place from which I had come over to her originally.
X. A REVEALING LUNCH WITH
BOAZ
Boaz arrived before me. As soon as we had placed our
orders, he told me the truth about Fischer. A few days before our trial, Boaz
went to have an eye check. As he stepped into the waiting room, Fischer emerged
from the ophthalmologist’s room. His eyes were still blurred and so he failed
to recognise Boaz. From Fischer’s conversation with the receptionist, Boaz
gleaned that Fischer was making an appointment for the removal of one of his
cataracts. Dr Much was uneasy about operating on both eyes together.
“What did you
do?”
“I went over
and greeted Fischer. He was embarrassed but after a while blurted out that he
had been suffering from cataracts on both eyes for a few years. Dr Much had
urged him not to delay surgery any further. It was best to operate forthwith.”
I looked at Boaz uneasily. Our profession imposed certain
ethical doctrines on us. Every lawyer was ‘an officer of the court’. Misleading
a judge or suppressing the truth was an offence. Reading my thoughts, Boaz
explained he would have discharged himself from the case if had learned the
truth earlier on. He was not prepared to leave his client in the lurch just
before the trial.
I realised that, in Boaz’s position, I would have taken
the same course. He faced Hobson’s
choice: desert your client or compromise yourself. Boaz’s misgivings were allayed when we agreed
to divide the case into two separate parts. The ex gratia settlement got him off the hook.
“I feel sorry
for Fischer.” I observed. “No wonder his eyes could not focus. And he lost his
cool as soon as my questions got too
close to the mark for comfort. Still, now that I know the facts, I can’t
understand why they eluded us.”
“Again, I
agree, Eli. I believe Fischer arrived at the site at about eight o’clock. He
lost his way as he climbed up. When he realised he had overshot, he returned to
the first floor. All this took a while! Impaired eyesight is the obvious
explanation.”
“A man in his
condition should not climb up a scaffolding. He was no longer fit for his job.
But I can see his dilemma. If the cat got out of the bag, he would lose his
livelihood,” I concluded
“Precisely.
Who would employ a surveyor with defective eyesight? Fischer tried to hang on.
Well, we know the outcome.”
“Did Ruth know
about his condition?”
“I suspect she
did. Still, to Rotem the ex gratia payment
is a mere trifle. Fischer was their regular expert witness. The payment will
help to tide him over.”
All in all, I found Boaz’s analysis unexceptional. In
those early years, any eye surgery was serious. The healing process was
prolonged and the prognosis – especially in the case of cataract removals – was
questionable.
Having exhausted the issues respecting the trial, we
turned to personal affairs. Boaz told me all about his life in the Kibbutz,
about Miri and about their children. I told him many of the anecdotes I picked
up at
He also told me about his life as a back bencher of his left-wing
party. On some occasions he had to vote with the other MPs even if his
conscience pricked him.
“But surely,” I told him, “in the very least you can
bring up the social problems that used to bother up. And you hold the key to
law reform.”
“The trouble is that politician raise questions only when
an issue is topical: if it can bring them votes. Many of the idea we have
developed, for instance, about fixed pensions for injured parties, are not
popular at the moment. Parliament will deal with them when some interested
lobbies emerge. Sometime, we can trigger them. But such instances are rare.”
“Would you have better chances if you moved to the front
bench – became a minister?”
“Marginally. You see a front bencher must always reckon
with his electorate.”
“Still, will you get there?”
“Time will tell.”
“If you had remained with the law, you could by now be on
the Bench!”
“Perhaps. But, Eli, I still prefer to slog on in
politics. I’ve made my choice.”
I accompanied Boaz to Tel Aviv’s old bus exchange. He asked
when I would visit
“Are you more
content there than with us, Eli?”
“Difficult to
say. You see, here in
“I wish you
well, Eli. And, yes, I know what you are talking about. Here, at home,
everybody knows everybody. Look at our case. You have known Rachel, Ruth,
Fischer Morag and me for years. Your mother, too, knows every person or, in the
very least, hard the relevant gossip! It is a small, incestuous, network. True,
we are a tolerant lot. Nobody interferes with you if you don’t cross the line.
But how many times did you, yourself, do things because you knew they were
expected of you?”
“Most of the
time. Worse still, on many occasions I did not raise my voice …”
“Because you
thought it best to shut up?”
“That too,
Boaz. But usually I maintained my silence because ‘acting’ would have been
‘unacceptable’.”
“And overseas
you are a free man?”
“Not really.
Each society has its norms and conventional wisdom. But nobody expects an
outsider to be a member of the crowd. In consequence, it is easy to follow the
old wisdom of ‘don’t see, don’t hear and don’t speak’. It makes life easy.”
“I must agree.
But you know, Eli: the way back will always be an option.”
“Precisely.
And you can trust me to keep a foot in the door.”
We joined the lengthy queue in front of bus stop to
Mother was not
surprised by my revelations. My account of the proceedings had aroused her
suspicions. My description of Fischer’s demeanour suggested to her that his
vision was down. True, she had not suspected he had cataracts. But she
perceived that the explanation of his stupid behaviour could be a deterioration
of his eyesight.
In my mother’s opinion, Fischer did not deserve much
sympathy. You had to take life as it came. Once you reached forty, you had to
wear sunglasses or, better still, give the glaring beaches a miss. Fischer had
always acted as a young man. In the end, he had to pay a price for his
extravagance.
“How do you
know he pretended to be a youth?”
“Rachel tells
me he used to be seen on Herzliya’s beach in the company of girls half his
age!”
X.
MY DEPARTURE
During the next few days in Tel Aviv I attended emigration procedures. In the evenings, I
skimmed through many of my old books. It soon became clear that my literary tastes had remained largely intact.
Both Kafka and Joyce remained high on my priorities list. The main change was my migration from Hebrew to
English. The latter had become my natural, even if acquired, medium of
communications.
Mother and I arrived in the airport well before the
estimated boarding time. To my surprise, we ran into Ruth Schwartz. Having seen
off a VIP, she was getting ready to take a bus back to Tel Aviv. Ruth, who knew
that mother’s Hebrew was poor, greeted
us in German.
“Again, Eli,
I’m sorry for my outburst. And you know, the result is satisfactory.”
“Were you
aware of Fischer’s deteriorating
eyesight?”
“Well, I was.
For quite a while I pressed him to take stock. We knew that eventually
everybody would talk about Fischer’s
condition ‘in strict secret’ to one and all.”
“It is our
type of society, Ruth. That’s the way it is,” interjected mother.
“I know. Still,
Zvi had to go through a lot. I am genuinely worried about him.”
“Don’t you
worry, Ruth. Men like Fischer always fall on their feet. But it is good to know
he has a shoulder to lean on,” I expressed my sentiments.
“Not for long,
Eli. My boss called me up and told me off. Our Human Resources Department decided to
transfer me to Beer-sheva.”
“Quite a
change,” interjected mother.
“It’s going to
be a challenge. But, you know, all in all, I am looking forward to it. Here in
Tel Aviv I got myself into a rut. Hopefully, I’ll find new horizons. Look me up
if you come over for another visit, Eli.”
Boarding started shortly after Ruth had left. Mother
smiled at me sadly. She was familiar with my plans.
“See you in
“It won’t be
long, Mamma. I promise.”
Comments
Post a Comment