Muscle Memory Page 3
After an awkward pause, Mick said to Kaye, “Well, how’s it going, honey?”
She glanced at him, then let her eyes slide away. “I’m fine, Michael.”
“Talked to the kids lately?”
“Oh, sure.” She smiled. “Just about every day. They’re doing real well. We can be proud of them, Michael.”
His eyes suddenly narrowed, and I saw his hands clenching each other. “Well, I’m not doing real well,” he said. “Would you mind telling me what the hell—”
I grabbed his arm. “Come on, Mick.”
He glanced at me, then shook his head. “Sorry,” he grumbled.
I turned to Cooper. “Why don’t we get started?”
She frowned at Mick for a moment, then nodded. “Sure. Come on.”
We followed her into a conference room. The shorthand reporter was already set up. Cooper introduced her to the rest of us. Mick and I sat side by side at the rectangular table. She sat across from us, and the reporter was at the end. Kaye took a chair in the corner of the room, behind Cooper’s left shoulder.
The reporter administered the oath to Mick.
PROCEEDINGS
MS. COOPER: In terms of stipulations, Mr. Coyne, I consider the standard ones are reserving objections to the time of the trial as well as motions to strike, except objections to form.
MR. COYNE: That’s fine.
MS. COOPER: Privilege of course. I don’t know—do you want your client to sign the deposition?
MR. COYNE: No.
MS. COOPER: You will waive the signing and filing?
MR. COYNE: Yes. Waive it.
MICHAEL S. FALLON, a witness called for examination by counsel for the plaintiff, being first duly sworn, was examined and testified as follows:
EXAMINATION BY MS. COOPER:
Q. Your name is?
A. Michael Fallon.
Q. Your full name, please.
A. Sorry. Michael Simon Fallon.
Q. I’m going to be asking you a series of questions today. If there is any question that you do not understand or that you wish repeated, please just say so. Okay? Is that understood?
A. Okay.
MR. COYNE: You have to say yes or no, Mick, because the stenographer has to take down yes or no. All right?
THE WITNESS: Got it. Yes, I mean.
Mick’s knee was jiggling wildly under the table beside me, and his fists were clenched so tight that his knuckles were white. He kept glancing beyond Barbara Cooper to Kaye, who was sitting there with her fine legs crossed, her hands folded in her lap, and her head bowed as if the whole thing embarrassed her.
Q. Mr. Fallon, how long have you been unemployed?
A. What?
Q. I don’t know how to rephrase the question for you. Can you please tell me when was the last time you held a job?
A. I don’t know what you mean. I’ve always made money.
Q. I’m asking about the last time you earned an actual salary, went to work every day.
A. I guess the last time I got a regular paycheck, if that’s what you mean, was when I was scouting full-time for the Pistons, and that ended in 1984. But it’s not like I haven’t been earning any money. I’ve supported my family.
Q. How have you supported your family? What’s been your source of income?
A. Investments, mostly.
Q. Investments in what, specifically?
A. Look, she knows exactly what—
MR. COYNE: Please, Mick. Just answer the question.
THE WITNESS: They’re just trying to harass me. There’s no reason why—
MR. COYNE: I’d like a moment with my client.
(counsel confers with witness.)
I stood up, grabbed Mick’s arm, and said, “Follow me.”
I led him out of the conference room. His forearm felt like the business end of a Louisville Slugger where I held onto it. We stood in the corner of the reception room, and I looked up into his face. He was clenching his jaw, and his eyes blazed.
“We do not want this to go to trial,” I said. “But if it does, and if you behave like this, the judge’ll cite you for contempt and give everything to Kaye. Now listen to me. You’ve got to keep it together. Attorney Cooper will not put up with any more of your childish bullshit. She’ll terminate the deposition, and she’ll refuse to negotiate a settlement, and then we’ll have a trial where she’ll ask you the same questions all over again in front of a judge. Do you understand?”
Mick nodded. “I’m sorry, but this is ridiculous, Brady. I mean, what is this unemployed bullshit? Kaye knows perfectly well where our money comes from. What the hell is she up to?”
“Attorney Cooper wants to know what will make a fair settlement,” I said. “What’s fair depends on your income, and what your income will be in the future, and without an actual salary to base it on, it’s a little hard to figure.”
“She’s just busting my balls, man.”
“Then we’ve got no problem. Answer the damn questions to the best of your knowledge, that’s all. Keep your cool and let’s get this over with.”
“Kaye’s playing with my head, Brady. She won’t even look at me.”
“Ignore Kaye. Concentrate on what Attorney Cooper is saying. Can you do that?”
“Okay.” He nodded. “I’m sorry. I’ll try.”
“Hey,” I said. “It’s your divorce.”
We went back into the conference room, and Mick, responding to Barbara Cooper’s questions, described his various sources of income—a small pension from the NBA; residuals from a series of television commercials he’d done for a friend of his who owned a string of Ford dealerships; the chain of pizza houses in Brighton, Allston, Cambridge, and Brookline he held part ownership in; occasional appearances on an afternoon radio sports talk show; dividends from a variety of stocks; rent from the four-family house he owned in Acton; a stipend from the Pistons for part-time scouting. It averaged out to a little more than $75,000 gross for the past several years.
As Mick went through this, Cooper showed him copies of his and Kaye’s joint federal income tax returns, which were marked as exhibits one through eleven, and asked him to point to the line where each source of income was listed. He did this calmly and without once glancing toward Kaye, who continued to sit quietly in the corner staring down at her hands, which were folded in her lap.
Q. Now, Mr. Fallon, you have provided us today with a copy of your most recent tax return plus copies of your bank statements for the past sixteen months and of all your canceled checks for that period of time, the sixteen months that you and your wife have lived separately, is that right?
A. Yes.
Q. And for this past tax year, you and your wife filed separate tax returns?
A. Yes.
Q. Why was that?
A. Because she thought she’d get a big refund that way, and I guess she probably did. We weren’t living together, and I was giving Kaye money for the kids and the house, and she was substitute teaching. It was her idea. My accountant said I was crazy, that being married and filing separately was the best way to get screwed, but I did it because Kaye wanted to. See, she could file as head of household, and with her income and not having to declare what I was giving her—
Q. Thank you, Mr. Fallon. You’ve answered the question.
A. Yeah, but see, the point is—
MR. COYNE: Just answer the questions, please.
THE WITNESS: That’s what I was doing.
MR. COYNE: You were elaborating. Attorney Cooper will ask you to elaborate if that’s what she wants. Do you understand?
THE WITNESS: Sure. Yes.
Q. Okay, now I call your attention to this document. Is this a copy of your last year’s federal tax return?
A. Yes.
MS. COOPER: Let’s mark this as Exhibit 12.
(Exhibit 12 marked for identification)
Q. Do you want a minute to review this document?
A. (Witnes
s reviews document.)
Q. Mr. Fallon, you have had time to look at this document that’s been marked as Exhibit 12?
A. Yes.
Q. This return was prepared by your accountant?
A. Yes. Ray Allen.
Q. Which you filed separately.
A. Right. Kaye and I filed separately last year. We’ve already been over that.
Q. And your accountant—Mr. Allen—prepared this return based on information you gave him, is that right?
A. Yes.
Q. And you reported a gross income of $71,772.
A. Right. Yes.
Q. Was that exhibit accurate when you signed it?
A. Well, sure. Yes, I mean.
Q. Is it still your opinion today that it was accurate—that it was accurate at the time you signed it?
MR. COYNE: Excuse me? Could you restate your question, please?
Q. Is it your opinion today, Mr. Fallon, that this exhibit was accurate at the time you signed it? Have you come into possession of any knowledge since March 16 of this year which would indicate to you that your tax return was not accurate?
A. I signed it and I wrote a check and mailed it off, and I never thought about it again one way or the other. Why, do you think I—
MR. COYNE: Just answer the question.
THE WITNESS: What was the question?
MR. COYNE: Would you repeat the question?
Q. As far as you know, was your last year’s tax return accurate?
A. As far as I know, yes.
Q. You didn’t have any income that you failed to report?
A. Look, are you accusing me of cheating?
MR. COYNE: Okay. Time out.
(Counsel confers with witness.)
I steered Mick out of the conference room. We sat on the sofa in the reception area. I caught the eye of the secretary, who was seated behind her desk. She nodded, got up, and left the room.
Mick was leaning forward, gripping his thighs, shaking his head back and forth, and muttering, “I don’t fucking believe this.”
“Answer the question for me, Mick.”
“What question?”
“Did you cheat on your income tax last year?”
“Jesus. You, too?”
“I’m not accusing you of anything, Mick. I just need to know.”
“Of course I didn’t cheat.”
“If you did, you should refuse to answer the question on grounds of self-incrimination.”
“Christ,” he said. “I didn’t cheat on my taxes, Brady.”
“You gave your accountant all the figures he needed?”
“Sure. Ray’s been doing our taxes for years. We’ve never had a problem.”
“Okay.” I put my arm around his shoulder. “You’re doing fine, Mick. But you’ve got to keep cool. Answer the questions and please resist the urge to elaborate or to express your feelings. Can you do that?”
“Yeah. I’m trying. It’s just—it feels like I’m on the hot seat, you know?”
“Well, you are on the hot seat. But you should be used to that. You’ve been on the foul line at the end of a close game more than once.”
He turned to me and smiled. “That was a helluva lot easier than this.”
“You were a good free-throw shooter, Mick. I remember a playoff game in the Garden. They sent you to the line just as the clock ran out. The Celtics were up by a point, and you made both of them with thirteen-thousand hostile Boston fans screaming and stomping on the floor, me included. That old building was shaking, and Mick Fallon swished both of them to win the damn game.”
“You were there?”
I nodded. “I was yelling as loud as anybody. I didn’t see how anybody could be a calm as you were.”
“It’s not calmness, Brady. It’s concentration. Free throws are all muscle memory. All you’ve got to do is focus on the front of the rim and block everything else out. Then you just let your muscle memory take over.”
“Well, all I’m asking you to do today is concentrate. Forget Kaye and forget whatever implications you think might be behind Attorney Cooper’s questions. Concentrate on what she’s asking you, and then just answer it. If you can answer yes or no, that’s what you should do. Just keep your eye on the front of the rim. Okay?”
“I’ll try, man.” He took in a deep breath and blew it out. “When this is over, you gotta buy me a beer.”
“I’ll buy you a six-pack, Mick.”
Q. It was in January of last year, sixteen months ago, when you and your wife started living separately, is that right?
A. Yes.
Q. And you took your apartment in Somerville.
A. Yes.
Q. And did you at that time separate your finances?
A. I opened my own bank account.
Q. And you got your own credit card, is that right?
A. Yes. Kaye did, too.
Q. Whose idea was that?
MR. COYNE: Which idea?
Q. I’m sorry. Whose idea was it to separate your finances, Mr. Fallon?
A. Mine.
Q. Why did you want to do that?
A. Because Kaye is not very responsible with money. She never paid any attention to how much we had or how much was coming in. If she wanted something, she just bought it. So I figured if she had to worry about money a little bit, maybe she’d—she’d appreciate me.
Q. You were hoping to punish her because she asked you to move out?
A. Do I have to talk about this?
MR. COYNE: Answer the question, please.
A. I guess I was hoping she’d realize everything I did for her and want me to move back home.
Q. You gave your wife money while you were living apart?
A. Yes.
Q. How much?
A. I gave her twenty-five hundred a month.
Q. How did you arrive at that figure?
A. It’s what I thought was fair.
Q. Did your wife agree to that figure?
A. It’s what I gave her. I don’t know if she agreed or not.
Q. She never asked for more or said she thought it was inadequate?
A. She might have. I don’t really remember. It didn’t matter. I was always the one who had to think about money. She had no idea what was fair. She has no concept of money.
Q. Do you recall any specific occasion when she told you she didn’t have enough money?
A. I don’t know.
MR. COYNE: Yes or no, Mick. Either you recall or you don’t.
A. I don’t recall any occasion, no.
Q. Did you think what you were giving her was adequate for her to meet her expenses?
A. If she was careful with her money and didn’t buy everything she saw, it should have been plenty. She was teaching. She had income of her own, too.
Q. What did you do about your joint accounts and joint credit cards?
A. I canceled our credit cards. The joint bank account was the one she used. I took some money out of it and put it in my own account.
Q. When you canceled the credit cards, did your wife agree to that?
A. I don’t know.
Q. Did you consult her about it?
A. No. I did it, and then I told her that her credit cards were no good, and if she wanted one, she better get one for herself.
Q. Okay, Mr. Fallon. Now I want to call your attention to some documents that you’ve provided for us. Will you look at these, please, and tell me if these are photocopies of your bank statements from the time when you and your wife separated and you established your separate accounts?
A. (Witness reviews documents.)
Q. You’ve had a chance to look over these papers. These are your personal bank statements for the months of February a year ago through April, last month?
A. Yes.
Q. And this account is the only bank account that you have, or have had, since you and your wife separated your finances?
A. Right. Ye
s.
Q. So all of your financial activities are reflected in these bank statements.
A. Is that a question?
Q. Yes. I’ll restate. Are all of your personal financial activities since the time when you and your wife separated accounted for in this particular account, and are these the complete statements of that account?
A. That’s worse than your other question. But, yes. The answer is yes.
MS. COOPER: I want to mark these as Exhibits 13 through 27 for the record.
(Exhibits 13 through 27 marked for identification.)
Q. Okay, now, Mr. Fallon. Here we have several pages of photocopies of canceled checks and others with photocopies of checks stubs. Are these what you provided for us today?
A. (Witness reviews documents.)
Q. Have you had a chance to look at these documents? And are they what you provided for us?
A. Umm, yes. That’s what these are.
MS. COOPER: Let’s mark these exhibits now. They will be Exhibits 28 through 57. There are thirty pages of photocopies here.
(Exhibits 28 through 57 marked for identification.)
Q. Now, calling your attention to Exhibit 16, Mr. Fallon. Your bank statement from last May, a year ago. Would you read this line here, where I’m pointing?
A. That’s a deposit for $8,500.
Q. What was your source of that money?
A. I don’t remember.
Q. Would you examine the documents on which the check stubs were photocopied, please, and point out the stub for that $8,500 check you deposited.
A. (Witness examines exhibit.)
A. It’s not here.
Q. How do you account for that?
A. I don’t know. It might’ve been a check with no stub. You know, like somebody’s personal check.
Q. Could that have been cash that you deposited?
A. I don’t know. I guess so.
MR. COYNE: Yes or no.
A. Yes. It could have been cash.
Q. Where would you get $8,500 in cash?
A. It might have come from a lot of different places, in smaller amounts, and I just held onto it until it added up and then I deposited it.
Q. Is that what actually happened?
A. I don’t remember. Like I said, it might’ve been a check with no stub.
Q. And who would have given you a check for that amount?