Custom And Practice

by Ian Randall Wilson

A Hollywood studio lawyer who is the film credit czar just wants to do a good job. Always. 5,221 words. Illustration by Thomas Warming.

The legal case all hinged on a semicolon. Any fool could see it, and Champs was no fool. Not at $1,750 an hour and a big retainer. Why didn’t he see it?

It wasn’t as if one word glittered more than another, obscuring what was true. His hand trembled with that telltale shake, but he could still read. It was a matter of outcomes. Clients paid for them. Lawyers produced them. One way or another.

Now Champs wanted Baumann, whose entire job was based on outcomes. There were only 15 like him in the entertainment business. "Oh, you’re the poor bastard," National Studios’ Head of Marketing once remarked. Fifteen lawyers who understood the intricacies of the credit provisions of the guild agreements. Fifteen who could put together a billing block from a thousand pages of contract language. Hardly the glamour of the step and repeat with the red carpet photographers calling, "Look this way!" But one of the 15 who knew what to do when the Head of Marketing was hawking the new ensemble comedy that "everyone" was saying was sure to open to at in its first weekend (and when it didn’t, that Head of Marketing wouldn’t be head of marketing long). And knew what to do when the director and thus the writer and thus the producer and thus all the executive producers and thus all the department heads were going to have to appear in a billing block along with four more stars in that full-page newspaper ad the Studio planned to run in Chicago, Los Angeles and New York.

It didn’t matter that having to sandwich in all those names wouldn’t help sell the film or put one extra butt in a seat. Baumann said it was required. Even if the director and the writer asked their guilds nicely. Even if the Head of Marketing dragged his feet.

Because that’s what it meant to be Credit Czar for National Studios or any of the dream factories. You brought bad news. You told them that four words in a contract could have changed everything. But would they listen?

Outcomes. Unlike other careerists in Hollywood who were one more developing conundrum, Baumann finished things. When the call came in just after lunch, he hurried to grab it because he didn’t like to keep other people waiting. Sometimes he answered so quickly that his voice produced a stuttering surprise from the other end of the line. Because the caller wasn’t sure the phone had even rung.

When the phone started ringing, Baumann had been out in the hall, making his way from the pantry across the vast expanse of worn carpet through the zone of cheap colognes back to the safety of his office — all the while holding his breath. The IT boys, on loan from the Studio’s Mumbai operation and in temporary offices on his floor, were bathing in something new.

He let out his breath and sat down heavily on his Aeron chair, winded by his trip from the pantry where he’d tossed out the remains of his lunch: organic white meat chicken in low-sodium soy sauce and organic brown rice prepared in distilled water mixed with organic red peppers sautéed in organic olive oil. He was sensing a theme in the meals his wife sent with him to work. Baumann’s checkbook sensed the same theme, too, and it wasn’t happy. Put "organic" in front of anything and it doubled the price. His boss, Groupman, had said the Studio was starting to look for ways to market organic films, though no one had any idea what that even meant.

Baumann was tall with greenish eyes, a Roman nose and a glass jaw. He found that out in boxing class a few years earlier. His clothes seemed to belong to a smaller man with better taste. He brushed back his non-existent hair and answered on the second ring.

"Is this Mr. Jeffrey Baumann?" asked a woman’s voice deepened by a lifetime of smoking cigarettes. Just then Jen, the office slut, dropped by. Her necklines and hemlines were always in a race to see which could get closest to the other first. Today, the hemline was winning. The mailroom guys appreciated all that thigh with only a smattering of cellulite. For Baumann, she was an unwanted interruption. But she marched right in on four-inch heels which could bring a harrassment claim. She sat way too near him on the edge of his desk, and her skirt edged higher.

"Is that a yes?" said the deep voice on the phone.

Baumann pointed at the door and Jen shook her head, tossing her hair in two different compass directions. "This is important," Jen whispered. The IT boys had taught Baumann a few curses in Urdu, like "Bhadwe Ki Nasal" for "bastard son of a pimp". Baumann right then was thinking, "Bhadwe Ki Nasal" as he managed to get rid of Jen.

The archaeology of project files on his deak that ran 10 stratum deep was not going to be unearthed until he dealt with this call. "Yes, I’m Jeffrey Baumann," he said.

He would have cause to regret those four simple words. It turned out the law firm of Felder Champs & Mignon needed an expert witness and they’d heard that Baumann was the right man at this particular moment.

Time was of the essence, a concept Baumann understood. It wasn’t too far to the FCM offices, but on the plaza outside he was sweating unnaturally. He was more breathless than usual. For exercise, he walked a few days a week, a mile or so at a time. He also was having unusual bouts of indigestion.

Now he was in the office of Champs and they were going over the document needing Baumann’s expert opinion at $150 an hour "since this is only your first time," Champs said. Only his first time. There was so much promise in the way Champs said the word.

Champs was a small man with delicate hands built for accepting checks. People instinctively moved out of his way though they didn’t know why. A lineman-sized black man with a polished dome head was never more than a few feet away from him. Even in Champ’s office, the African-American was seated alertly in a comfortably padded chair to Champs’ right.

Champs was a lawyer of much renown in Los Angeles and many were surprised that he had literary pretensions. He’d written two thinly reviewed books on Wordsworth, and some said he was planning a third. Everything in the room was oversized, from the desk to the floor lamps to the sofas to the dimensions. Baumann had never been in an office that large and he was from an upper middle class family who could afford a little space. It’s possible the Studio bosses had offices of similar size but Baumann had never been invited upstairs.

Someone at one of the other Studios had screwed up. Someone was supposed to give someone else credit in a certain place on one of the films and they’d failed to honor the agreement. That was one way of looking at it.

"They’d have you believe it’s the fault of the honest man who doesn’t know what he’s doing," Champs said.

Another way, Champs’ way, was that the Studio had interpreted the requirement as it was set forth in the settlement agreement and done exactly what they were supposed to do. Baumann’s role as expert witness was to find arguments and methods of persuasion that buttressed this position. It wasn’t going to be easy.

Groupman was all for it, approving the request the instant Baumann managed to get his attention between phone calls. The Group, as people called him, was only too happy to let Baumann appear as an expert for Champs. Delighted. Thrilled. Elated. Overjoyed. Baumann looked out the window and imagined another window that he’d be looking out of soon. A better window. A bigger window. A window with a view that mattered. The fact that Groupman and Baumann worked for National and the case concerned their competitor Global didn’t bother him. It was favors all around. Somewhere, sometime, he could convert this chit into a new job or at least a consultancy down the road when another round of layoffs inevitably occurred. Groupman always assumed the worst was coming and Baumann never assumed anything. This made for many misunderstandings. "Make us proud," the Group had said, though he knew a little of what Baumann was getting himself into. Because other side was represented by Rufer, one of the big men in the litigation field, maybe the biggest man in the field billing $1,755, possibly bigger than Champs himself.

"We’ll prepare a declaration of your background. We’ll do a couple of sessions together and you’ll be fine," Champs now was saying. The office smelled of tobacco with an undertone of the medicinal. "Leave it all to us. You just have to come in and say the credit is in the right place. It’s prominent, it’s appropriate, it’s consonant with custom and practice in the industry. That’s all you have to do."

This was where the semicolon came in. One of the Studios, a competitor, had released a movie whose story line had one or two "minor elements" that were similar to those from an obscure book by a little-known Albanian author that hadn’t even come close to breaking on to The New York Times bestseller list.

"Not close at all," said Champs. "Not close in its first 15 weeks of release. And if you can’t get on by then it’s a sleep and a forgetting."

Which was why no one, supposedly, knew about the book. The complaint had been a complete surprise. The author sued. The Studio evaluated whether or not the case was worth defending. Their insurance carrier advised settlement because of the proximity to the opening of the film. A settlement was reached. Money was exchanged. Prints of the film were changed to give the author a credit which had been specifically negotiated by the litigators. That should have been the end of the matter. Except the author didn’t like where his name ended up and didn’t feel its placement was important enough.

"It’s a matter of prominence," Champs said, "how the meadow flower its bloom unfolds."

Or the position of a semicolon, Baumann decided, after Champs let him look at the relevant paragraph in the settlement agreement. When the tremor rustled the papers, Champs lifted his hands and placed them in his lap.

Litigators are often vague. They pride themselves on ambiguity. It’s a way to generate additional fees because the client always has to come back to find out what was meant, exactly, by subparagraph 16.b.i. No one ever knew what it meant, exactly, and the fees churned on. In the world of credits, things were black and they were white. Names were arranged in spatial and temporal relationships, their inclusion or exclusion part of policies that might date back 75 years. Custom and practice. Though things had evolved. You may remember how old films had all the credits up front and just one card at the end with the name of the players. You may remember when old film posters had the names and the title in all different sizes. Things changed. Slowly. Now there were perhaps 30 cards at the front and then three or four minutes worth of names at the end, sometimes much longer if it were a film full of effects. In a few years Baumann would find himself putting all the names at the end with only a logo up front. Posters featured a block of names, all sized equally. Sizes were subject to accurate, precise measurement. That’s why the position of the semicolon in the settlement agreement diluted this precision.

Most everyone knows what is said about the semicolon, that dangerous hybrid of comma and period: they’re unnecessary; they’re bourgeois; they have some strange and enslaving connection to the pause; the difference between them and other marks of termination is too slight to be understood by most men. Umberto Ecco never had much use for them, but trust the litigators to muck things up with them.

"Clear as yon mountain," Champs said, pointing to what was really no more than a set of substantial hills separating the L.A. basin from the Valley.

Baumann was escorted from the office by a secretary who gave him a smile reserved for condemned men.

It was difficult to describe what Baumann did for a living. His mother thought he was a compiler of names. His wife was often mildly amused by his tales of daring-do, how he caught a misspelling in a main title sequence moments before things had gone beyond the point where any changes could be made. When Baumann made a mistake, it cost the company tens of thousands to correct. He didn’t make mistakes. Couldn’t make mistakes. Stayed up nights worried that he’d erred on the order or spelling or size of a name while his wife snored gently beside him. Sometimes he thought he misinterpreted the guild agreements, his arcane knowledge of them a comfort when he knew he wasn’t wrong. He didn’t take what most consider real vacations. Yes, he went places with his wife but while she sunned herself by the pool, he took calls and sent faxes approving credits in the layouts; his office never slept.

At home, his wife, whom he called "Sweetie," asked, "How’d it go?"

"They want me," Baumann said.

"Doesn’t everyone?"

Well, no, not exactly. When he put his hand on her shoulder she smiled, but her shoulder remained as unresponsive as the granite on their kitchen counters.

HD Hollywood Law

The preparation didn’t seem like that much preparation. Baumann sat with Champs. They looked over the deadly paragraph, again. Sometimes the tremors were more apparent than others. Champs said nothing about the semicolon. A lot of other people had plenty to say about it: two woozy clauses leaning on each other like drunks. Champs said, "Let nature be your guide."

Baumann had to admit he enjoyed these little aphoristic fragments quoted from the past, though their codes were different than any he’d previously encountered. He’d gone to engineering school, which taught him how to think but not to feel. English was spoken not studied; their literature was written in the language of calculus and differential equations.

Champs was unconcerned as they read over the paragraph. None of the words and none of the punctuation changed. The meaning Champs assigned to it shimmered. In a few days Baumann was going to have to confirm that meaning and do so with certainty. They talked about the guild agreements. They agreed that prominence for one was not prominence for another; not all stars get the same treatment. They might have been talking about the cosmos it seemed until they agreed that many important logos for the sound processes and craft unions were prominently located in the same place as the wrongful credit. The fact that most of the audience would be gone before ever waiting that long didn’t seem to factor into the discussion.

All of the audience was gone before the credit arrived except for Baumann. There hadn’t been that much audience to begin with at a Saturday afternoon showing of the film. Baumann had found it still playing in one of the third-tier houses necessitating a good deal of driving inland away from his home. The credit had been large; its arrival sudden. It was, however, far back in what was commonly called "the roll" though it occupied well more than the "equivalent of a separate card." Baumann confirmed this by staying for a second showing and counting the seconds the name stayed up on screen. He kept his ticket as both evidence of his viewing and as a receipt for reimbursal. The movie itself was mediocre, though judgments on that score were never welcomed by the higher-ups in Creative. Baumann was in Legal and Legal was never creative; the lines firmly drawn. The one time he had suggested making a film about an obscure black female barnstormer from Chicago who left America because of the racism and triumphed in the skies high over France, the Studio reader assigned said wouldn’t another film about Amelia Earhart be the way to go?

When Baumann was ushered out by Champs’ gracious assistant, the arbitration now only a few days away, Champs shook his hand. That soft grip. The visible tremor and stiffness to the body. Baumann was advised to call in and find out about the progress of the arbitration. They expected him to testify on the fourth or fifth day.

"You’ll do fine," said Champs. "We learn from the past and profit from the future."

The building was a box-like structure in the middle of an office park not far from his home. This was convenient. There were no markings on the front and Baumann was not sure he had arrived at the correct location. He took his parking receipt and walked inside. He carried nothing else but his car keys and for good reason. Before he was allowed to sit in during the last part of the testimony from Clark Markman, the lawyer from Global who was in charge of Business Affairs, he was warned that any notes he took were not privileged nor confidential. One time he wrote down, "Rufer is a dick" because it seemed accurate to him as he observed the other attorney in action but quickly crossed that out, put the note in his pocket and carried it with him to the bathroom where he disposed of it during a break in the proceedings.

Clark Markman was being tortured by Rufer. Nearly three days on the stand. Back at Baumann’s office the calls, the emails, the projects were piling up. Rufer asked something, Champs objected and got about half of them sustained. His man watched from the corner. The judge, retired from Superior Court, was nothing if not a model of fairness to both camps. That’s how he kept his reputation as a neutral. That’s how he kept the dispute resolutions coming in, a very lucrative second career after his retirement.

Rufer was actually nasty, his questions tinged by sarcasm. Maybe it was his size, even small than Champs. Baumann was not the only one who found it surprising that these small men became so big in their field. Even the judge was below average height. Baumann was the giant in the room.

"And did you think, Mr. Markman," Rufer was saying, "when you had your opportunity to review the credits that the position was appropriate? Knowing that a man’s literary reputation was at stake and your having that important responsibility."

"I thought the position was consonant with the settlement agree–"

"That’s not what I asked. Did you think it was appropriate?"

"Objection, your honor. I believe Mr. Rufer has covered this ground at least a day ago. Perhaps our reporter would be so kind as to look back in the record."

"Mr. Rufer?" the judge said.

Baumann also sat through the testimony of the plaintiff’s expert witness, a lawyer who didn’t have one third of Baumann’s experience. The man was constantly brushing at the hair over his right ear. Rufer asked him a question and first he brushed and then he answered. Early in his testimony he announced with grave certainty that one of the guilds gave credit in a certain fashion. Which Baumann knew was completely wrong.

At the break, when Champs and his group including Baumann, retired to a side room to rest for a moment and have some refreshment, Baumann took the opportunity to let Champs know. "That first point he made," said Baumann. "The guild agreement doesn’t say that. He’s wrong. All wrong."

"Show me," said Champs.

They conferred in low tones. Markman joined them and Baumann pointed to a worn copy of the guild document. They turned the pages back and forth as if it were a Bible containing the hidden knowledge of the ages. Champs stood up suddenly. "This little act of kindness and love shall not go unremembered," he said. "Watch as we skewer our fair expert on the sword of his own creation. You’ve earned every bit of your fee today, my boy."

"Great catch," said Markman as they were called back into the conference room.

When all hell breaks loose in a bar, there are flying chairs and blood and sweat and tears. There in the conference room, Champs started his cross examination slowly with a tone of respect. That lasted three minutes until the pertinent document was read and the mistake revealed. Champs battered the plaintiff’s expert quietly, but every word was another body blow. The expert’s confidence was shattered. He was now nearly pulling at his hair. He seemed to have forgotten everything he knew. And Rufer could do nothing except ask for a recess, that was finally granted.

Baumann didn’t know whether to be happy or sad. After all, he hadn’t testified yet and Rufer might not take being shown up too kindly. But who did? Baumann’s mother had given birth to two doctors. Baumann was the only child in show business. "Well dear," his mother once said, "you do what you can." Then she told him his youngest brother had just saved a life in the emergency room.

In the hallway outside, Baumann and Markman and Champs heard Rufer bellowing into his cell phone. The expert was also on a call. Both were trying desperately to confirm that the original testimony was valid. Champs looked over at the judge who steepled his fingers. It was a lovely warm morning outside and inside. When Rufer returned, the judge decided on an early lunch.

Before Baumann had even answered a question, Rufer tried to disqualify him as not being an expert in the field. There had been a small mistake in Baumann’s biographical statement: He had been in charge of credits for 20 years but he had only been elevated to VP in the last two. Rufer seized on this as proof that Baumann did not know his business. The certification of his expertise went on in front of him, but Baumann stayed silent. Champs argued with Rufer.

Finally the judge said, "I’m going to make a ruling here. Mr. Rufer, he has more experience than your own expert. Many years more. He’s in charge of credits for a major Studio. I think that’s sufficient to certify him."

"Very well, your honor," said Rufer.

"Thank you, your honor," said Champs.

"Yes, thank you, your honor," said Baumann.

Everyone laughed. Even the judge.

Champs’ direct questioning was brief and to the point. He got Baumann to establish that the credit was on a separate card; prominently placed. That was what he wanted. That was what he got. Then Rufer took over.

"The guild agreement says their credit must be in a prominent place and the settlement agreement says the author’s credit must be prominently placed. Would you agree they’re the same?"

"No," said Baumann. "The guild–"

"No, is sufficient, Mr. Baumann," said Rufer. "Sufficient. I’m asking the questions here."

Baumann sat back and folded his hands as Markman leaned in and Champs stayed still. The judge’s head swiveled slightly, enough to take in questioner and respondent. The reporter kept typing. And so it went on with definitions and recitations of what exactly constituted custom and practice along with arguments about placements, the refutation of non-applicable sections of collective bargaining agreements, and the reading and re-reading of the settlement agreement. Nonsense. Gibberish. Unintelligible jargon to most. But life and death for everyone in the room. Life, an entire career, for Baumann. A 20-year career understanding and implementing the instructions of documents like the settlement agreement. Usually it was more clear cut and apparent.

"I’m unable to respond to the question in the manner you’ve posed it," Baumann said.

"Let me rephrase," said Rufer and did.

Rufer tried again and again but Baumann said he wasn’t able to answer. The two men  were sitting next to each other in the arbitration, the lawyer leaning in and Baumann leaning back, and not because it was more comfortable sitting that way.

"You have to answer, sir," said Rufer. "You have to answer."

"I’m happy to answer if you can pose a question I can answer."

"Perhaps a little less complexity, Mr. Rufer," the judge said, "and maybe we should take a moment’s break and separate these two. These conference rooms." He smiled at Baumann. He smiled at his stenographer.

When they reconvened, Baumann was now sitting across the table from Rufer. Champs assumed his Buddha pose, as he called it. He never told Baumann that expert witnesses were largely on their own. They couldn’t be protected. Champs had given Baumann advice instead. "The many multitudes act to dull the distinctive powers of the mind." "Don’t let him penetrate you." "Stay with your focus." "Fill your papers with the breathing heart."

Baumann was thinking of those words right now.

"Can we accept the definition of prominence from the guild agreement?" Rufer said.

"No," said Baumann. "That only holds for guild members."

"Please restrict your answers to yes or no."

"When you ask me a question I can answer yes or no, I’ll be happy to answer yes or no," said Baumann.

"Can we turn back to the guild book?" said Baumann. "Let me read from it again."

"Wait," said Rufer. " What did Mr. Champs say to you during the break?"

Champs had said a lot of things and Baumann wasn’t sure how much of those things he had to reveal. Uppermost in Baumann’s mind was that he was under oath. Uppermost in Rufer’s mind was the need to discredit this expert witness.

"There’s a question before you, Mister Baumann. Are you able to respond to it?"

"He told me not to let you bully me."

"Objection! Objection! Your honor."

"Mr. Rufer, I don’t think you can object to your own question. Can we move on."

For the first time Champs smiled and the judge smiled, too. It wasn’t often they heard Rufer’s voice crack. Even the court stenographer looked up from her recording device and smiled at all of them.

There had been a moment before Baumann walked into the proceedings, when he’d wondered why he was putting himself through this. The money was good, but it wasn’t great. He didn’t really believe in the cause.

That’s when Baumann remembered the dogs of the New England neighborhood where he grew up. They all seemed big to him and scary and they wouldn’t leave him alone. As he walked to and from school, he was surrounded by a pack of them jumping up on him. He hated the dog smells and the wet tongues and the mud prints on his shirt. His mother said she’d put a stop to it. She got yesterday’s newspaper and rolled it up into a tight club. "When the dogs jump, you hit them," she said, and whacked Baumann on the arm. "You hear me? Hit him hard. On the nose."

He didn’t even get out of his driveway on the way back to school that afternoon when the dogs come toward him. Baumann just held the tightly rolled newspaper by his side. His mother watched from the door. "Hit the dogs," she called. "They’ll get the message." The next time the dogs jumped on him, Baumann hit one on the nose. The dog yelped and backed away. The dog cames toward Baumann again but Baumann hit once, twice and then a third time. With each hit, the dog yelped and backed away. Then Baumann only had to raise his hand, and the dog turned and ran off.

After that, Baumann never had a problem with the dogs. They didn’t come around anymore.

The pattern didn’t change: Rufer would ask a question and Baumann deferred, unable to answer as it had been posed. Rufer slammed his hand on the table. He tossed papers. Champs did nothing nor did Markman. The reporter kept typing. Rufer rephrased and rephrased and rephrased again, and each time Baumann was unable to answer the question as it had been posed. The inquisition went on for three hours and in the middle of it, Baumann felt adrift. He was leaving his body, convinced he was hovering somewhere above himself. He forced himself back down, back into his body, anchored his shoes firmly on the floor and pressed. He grabbed his thighs with his hands. The questions kept coming back to prominence, location, custom and practice, always skipping over the semicolon as if it weren’t there.

Rufer raged at him and asked Baumann if he was stupid.

"Is that an actual question that you want me to answer?" said Baumann. "No, not stupid. We’ve read my degrees into the record."

"Oh, that question you can answer."

"Because it’s well phrased."

"Mr. Baumann, please try to be a little more responsive."

"I’m doing my best, sir," said Baumann.

The corners of Champs’ mouth crinkled upward. He was enjoying this. Markman looked downward.

Then another hour of tortured questions. Baumann didn’t give up an inch on his position that the credit was misplaced or should have appeared sooner. Champs had told him what to do and he was doing it. He hoped he was doing enough. He wanted to do a good job. Champs sat in the same position, constant and unyielding.

Finally, it was over. Rufer said, "For the record, you are the worst expert witness I have ever had to question." High praise, indeed, thought Baumann though he didn’t respond. "I’m going to ask the judge to strike it all, all, every bit of your testimony."

But Rufer didn’t do that. It was just a last bit of bluster to send Baumann off into the world with his arteries a little tighter. Champs didn’t say anything. He knew he didn’t need to. No need for redirect, either.

His part finished for now, all that remained was for Baumann to add up his total hours and submit his bill. Thirty minutes after leaving the arbitration, Baumann began to experience an odd tightening in his chest that spread into his shoulder and arm.

The next morning, Champs’ associate delivered the news. She hesitated before telling him, waiting to gauge his mood. He was reading the newspaper and sipping tea. With an eye still on the morning’s headlines, he said, "At least we finished him up in time." When asked if he wanted to send a card, Champs said, "Why not? He did a good job for us. Send him flowers, too. Something that smells nice to sweeten up his hospital room."

About The Author:
Ian Randall Wilson
Ian Randall Wilson is VP of Marketing Contract Compliance at Columbia TriStar Marketing Group. His fiction has appeared in the North American Review and The Gettysburg Review. He has authored two story collections (Hunger And Other Stories, Absolute Knowledge) and a novella (The Complex). His first collection of poetry Ruthless Heaven will be published by Finishing Line Press. He has an MFA in Creative Writing and is on the fiction faculty at the UCLA Extension Writers Program.

About Ian Randall Wilson

Ian Randall Wilson is VP of Marketing Contract Compliance at Columbia TriStar Marketing Group. His fiction has appeared in the North American Review and The Gettysburg Review. He has authored two story collections (Hunger And Other Stories, Absolute Knowledge) and a novella (The Complex). His first collection of poetry Ruthless Heaven will be published by Finishing Line Press. He has an MFA in Creative Writing and is on the fiction faculty at the UCLA Extension Writers Program.

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