My client’s given name is Rosalie Townsend. That is how she is addressed in the cease-and-desist letter that led to this morning’s arbitration. With friends, she tells me she goes by Rose. We aren’t friends. For the simple reason that my wife would castrate me—as the terms of our prenup stipulate—if I were socializing with attractive single women younger than our daughters. Or, an even simpler reason, why would an attractive single woman be seeking companionship from an average-looking married guy old enough to be her (grand)father? I’m sure you can think of odd exceptions, but they don’t apply here. Our relationship is a professional one only. Still, I respect the wishes of those who I represent in legal proceedings, and Ms. Townsend has asked that I call her Rose, too. So, Rose it is.
Yet most people know her, if they know her at all, by her stage name: Kandi Caprice. Under that alias, Rose has performed in over forty and counting adult films, posed nude during dozens of photo sessions, and produced exclusive, bespoke content for the thousands of subscribers to her website. With this prolific output, Rose has gained a niche—and, some would argue, disreputable—fame. People on occasion recognize her. While most folks do no more than gawk and whisper speculation to their friends (“Hey, I think I know that girl”), others are less restrained. They will ask her for selfies, autographs, dates. A certain, overfamiliar sort of creep, “the trench coats” as Rose refers to them, will outright proposition her for sex or pat her ass in a nightclub as a means of introducing themselves. “That’s why God created emasculating sarcasm,” according to Rose. “And switchblades.”
Someone without her grounded disposition would no doubt find these encounters tedious at best, menacing at worst. Not Rose. She has adopted a view of dutiful resignation about her modest notoriety. She understands it to be part of the job, out of her control.
“Obviously, I don’t mind attention,” Rose said in a video clip played during the opening presentations to the judge this morning. Joel Dunning, the opposing counsel in the hearing, queued up the film on a monitor in the conference room and said, “Here, Your Honor, is nothing short of a confession.” Then he pressed play.
The footage was from an unaired portion of an interview Rose gave at last year’s Adult Video News awards. She had been nominated in the Best New Starlet category, though she and the other nominees were ultimately defeated by an exquisitely symmetrical Hungarian who goes by the name Ramona Moans. “Besides,” Rose continued, her speech a momentary breach in her persona as Kandi Caprice, “the attention is no worse than what I’d get as a civilian walking my dog any random Thursday. Can we be real? I know we’re not supposed to, but just for a second. It’s no worse than what any woman gets just going about her day. At least I’m monetizing it.” In the background of the video, a distant Amen! can be overheard, followed by indecipherable instructions delivered to Rose from the interviewer. After their brief exchange, Rose slid back into her role as the bubbly, coquettish, and insatiable Kandi Caprice, providing an in-character response to the host’s original query. “Obviously, I don’t mind attention from the boys—or girls,” she said. “So let’s play.” Then she executed a skirt-twirling curtsy and blew a kiss to the camera.
From my perspective, this video demonstrated exactly nothing in favor of the other side’s case—apart from the superb investigative tradecraft by their team in tracking down that clip. That’s the work of good, capable staff. In Joel Dunning and the plaintiff’s view, though, this footage was damning. Evidentiary checkmate. The smoking mp4 file. He argued that it showed Rose engaged in libelous actions for financial gain (“At least I’m monetizing it”), and moreover, she directed people to harass the defenseless victim of this libel (“So let’s play”). These irrefutable facts by Rose’s own admission would give the judge no choice but to rule for their side at the conclusion of the hearing. Because while the attention may not have bothered Rose, that wasn’t the point. It profoundly traumatized the person who had sent Rose the cease-and-desist letter: her identical twin sister, Seraphia Townsend.
I took Rose’s case for many reasons: money, lurid curiosity, a paternal spark of protectiveness toward this woman who was only a few years younger than my youngest daughter. I saw in Rose the legal misfortunes possible to any of us, including my own children. No one is above the threat of getting sued. So, why wouldn’t I want her to be equipped with a vigorous, competent defense, especially in the face of meritless litigation? Those considerations all fed into my decision to represent her. But seeing the name of the lawyer her sister had hired was what clinched it.
Joel Dunning of Dunning and Associates is a legendary ambulance-chaser in our city. His port-wine-stained face graces innumerable bus stop benches around town. Between the inevitable vandalism, the white streaks of bird droppings, and his own protean birthmark matriculating across his forehead, the photos of him viewed at a distance all ended up looking like Impressionist paintings of humorless clowns. The advertisements are a regular target of mockery among area attorneys, which, you know, fair enough. They invite ridicule. Laugh all you like over drinks, but I know firsthand Joel is no one to trifle with in civil proceedings.
Before I opened my own practice, I was one of his associates. He had given me my first job out of law school almost three decades ago. A year later he took that job away when, as was his custom, he fired most of the first-years in his firm and brought in a fresh batch of recent law school grads who’d work comparably cheap. Local attorneys have a term for his annual cull: “one-and-Dunning.” In the time I worked with Joel, though, I witnessed him pull in millions in damages for his clients and overwhelm talented litigators from more prestigious firms through brute mercenary force. The man knows the law cold, and he will hurt whoever he needs to win.
Consider the cease-and-desist letter in this case. From a legal standpoint, it is a brazen and ambitious document. Most attorneys wouldn’t have the imagination to even think of it, let alone the stones to attempt it. But Joel is a trailblazer of the nuisance suit. In the letter, he accuses Rose of willful and ongoing libel against her sister. Yet his allegation rests not on any specific statement(s) Rose has made in print or broadcast, as a normal libel suit would. The transgression, he contends, is Rose appearing in adult films without Seraphia’s express consent. According to Joel, if Rose’s performances are speech, which—Supreme Court precedent, Supreme Court precedent, blah, blah, blah—they are, then her entire career is one giant, unrepentant act of character assassination against his client.
The argument, in a gross perversion of the transitive property, goes like this: because Rose’s films do not specifically say that Kandi Caprice is not Seraphia Townsend, and because the actress who is Kandi Caprice shares genetically indistinguishable features with Seraphia Townsend, and because that person possessed prior knowledge of their matching attributes and pursued the herein cited offenses anyway, then that is functionally saying Seraphia Townsend performs in adult films. A charge that is demonstrably false, defamatory, and devastating to the reputation of Seraphia Townsend.
Joel then lists as evidence of a direct injury his client’s forced resignation from her administrative position in the front office at Lockwood Preparatory Academy. After some of Kandi Caprice’s videos were discovered by a parent—and allow me to put aggressive scare quotes on that word, “discovered”; this unidentified parent is a true Columbus of internet porn, a masturbatory Magellan—they alerted the school that their receptionist was appearing in XXX-rated films. Seraphia’s proof of a twin sister and provision of alibis to the school could never overcome rumors or prevent enormous disruptions once these clips were uncovered and circulated through the student body. So, she was out. And good luck getting hired anywhere else in a public-facing role. That injury, Joel concludes in his letter, provides standing for Seraphia to sue Rose for general and special damages in the amount of _____ (a sum so absurd and unpayable by any human of normal means that he may as well have put a drawing of Florida with a dollar sign in front of it, dubbed a villainous cackle over it).
Of course I took Rose’s case. She needed my help.
Now it is my turn to present our response to this argument to the judge. I stand from my seat next to Rose, giving her a quick reassuring tap on the shoulder. Then I grab the remote for the television off the conference table and shut it off, vanquishing the unflattering image of Kandi Caprice flirting with the camera, lips squeezed into a kissy face. Joel had deliberately left the interview clip paused at that spot. It’s a trial lawyer trick to create a negative impression of a witness or defendant or whoever, but one that traditionally works better in front of a jury who would be less aware of the manipulation. As far as Joel is concerned, though, where’s the downside in trying?
I flip on the lights, which Joel has dimmed for his presentation, and say, “Time to wake up now, everyone.” It is a backhanded comment intending to suggest his argument was boring and ignorable, but it’s benign-sounding enough I can deny it.
“Objection,” Joel says. He is in top form this morning. Another tactic: object to everything, even if only to break the rhythm of the opposition.
I glance at Joel and shrug. “Serious? I wasn’t implying anything about your spellbinding oratory. You’re getting paranoid.”
“Okay, that’s enough,” says the judge, the Honorable Yvonne Griffin. She holds up her hand to stop either of us from speaking further, and we both fall silent. She commands that kind of respect. Judge Griffin had served for over two decades in family court in Tampa before retiring from the bench a few years back. During her career, she earned a reputation as a fair-minded jurist who treats each party who appears before her with equal severity in the application of the law. Consequently, everyone fucking hates her. Yet her unanimous scorn by practicing attorneys is what makes her an ideal selection to oversee arbitration hearings. Confident that neither litigant will be gaining an edge, she is somebody who both sides can agree on to issue a ruling on the merits. Because of this, Judge Griffin now spends much of the time afforded by her retirement adjudicating cases on a freelance basis as a member of the American Council on Conflict Resolution. Some people never truly leave a job.
“First off,” Judge Griffin continues, “look around you. There’s no gavel, there’s no bailiff, there’s no state seal on the wall behind me. We are in a conference room at a Marriott, not a courtroom. This isn’t a trial. Everyone here has agreed to settle their dispute through binding arbitration, which means my judgment is final. So nobody needs to object constantly to lay grounds for an appeal or to wrongfoot the other side’s representative. I’m looking at you, Mr. Dunning.”
“Sorry, Your Honor. Force of habit,” Joel says.
“Wonderful,” Judge Griffin says. “Now, how about we let everyone say their piece, I’ll let you know what my decision is, and we’ll wrap this up before lunch. I’ve got three more of these today.” She grabs a thermos with the logo of Yale Law printed on it, her alma mater, and takes a long pull. “And we can dial back the snarky commentary, too. At least until I get some more caffeine in me. I’m looking at you, Mr. Wilkes.”
“Yes, Judge,” I say. “Apologies.”
I glance over at Rose, who perked up while I was being admonished. She is sitting across from Joel and her sister, where the siblings have been passing cold and wounded expressions to one another. It is a seating arrangement onto which I can superimpose all the past uncomfortable family dinners Rose has told me about, those suppertime stare-downs she had with Seraphia for the duration of their adolescence. I find their hostility alarming to see firsthand. It is foreign to my experience with my brothers and sisters growing up, as well as in my own home as a father. My daughters, each now in their early thirties, got into the occasional silly argument like any siblings: accusations of going into each other’s rooms without permission, of eavesdropping when a friend was over, of hogging the restroom. That sort of thing. But even the most extreme of their disagreements were resolved in a day or two, and then my daughters were back into their harmonious groove of sisterhood, laughing and rhetorically ganging up on my wife and me, their square, clueless parents. The natural order of things. Nothing like the live-wire charge of animosity flowing between Rose and Seraphia now.
Rose disclosed the estranged nature of her relationship with Seraphia during our first meeting. After I finished reading the cease-and-desist letter, I had said to her, “You did the right thing bringing this to an attorney,” which is something I told everyone who came to my office, whether I believed it or not. As a lawyer, you sign clients or you starve. You have to always be selling yourself. However, I followed that statement with sincere advice that came from earnest sympathy for Rose. “Look, at the risk of talking myself out of some business, can’t you just work this out with your sister over a beer? You’re going to save yourself money and aggravation if you can smooth things over with her without hauling people like me into the mix.”
Rose laughed at a joke I hadn’t realized I’d made. It was a bitter guffaw at a hidden family punchline. “Uh, no,” she said. “For starters, Seraphia doesn’t drink. Even if she did, I doubt she’d slum it so much as to hoist a glass with me. What would the PTA say?”
I curled in my bottom lip, nodded once. “Okay then. Let’s proceed,” I said and reached into my desk drawer for a copy of my retainer agreement.
During my research on the case and in subsequent discussions with Rose, I learned that there hadn’t been an explosive falling out between the siblings. There was no singular, unforgivable betrayal, no you-slept-with-my-fiancé or you-narced-on-my-dogfighting-ring sort of incidents (both real examples from some of my prior cases). Rather, there was a steady corrosion of their bond, inched along through their formative years by the actions of their parents and the accumulation of their life choices: friends they hung out with, boys or girls they dated, colleges they did or didn’t apply to, and so on.
For the bulk of their upbringing, the twins had been raised by their mother, Anna Elliot (she had shed the Townsend name after her divorce). Their father was not often in the picture. Now dead from cirrhosis, Rose depicted him as loving but incompetent, too wrapped up in his own spiral of alcoholic chaos and failure to be there consistently for them, but always kind-hearted in the rare moments when he was present. Your basic dime-store fuck-up, may he rest in peace.
Their mother, by necessity and natural affinity, took the role of disciplinarian in the household. This only increased after the dissolution of the marriage. Anna took on additional jobs and grew simultaneously meaner and more distant—a combination of increased hours at mediocre part-time and temp positions and a need to enforce order in her absence. Her preferred technique had been to pit the siblings against one another for her affection. Anna had devised a rewards system to encourage her children to do their chores and homework. Whoever got the higher grades or cleaned the home to her liking received the prize of their mother’s limited attention. She’d take the winner for ice cream or to a record store or allow them to choose what movie to rent.
When Rose described this arrangement, I was appalled. With the exception of birthdays, you don’t play favorites with your children, and when you have twins, not even then. In Rose’s telling, Seraphia was consistently the beneficiary of this divide-and-conquer form of parenting, having mastered the language of appeasement for their mother, meaning by the time the two siblings were teenagers a deep well of resentment had blossomed in Rose. That acrimony led to acting out on Rose’s part, a conscientious forfeiting of the household competition. She would refuse to clean, blow off school assignments, skip classes to hang out with friends. She drank, she partied, she slept around. The holy trinity of adolescent misadventure.
Once the sisters graduated high school, Rose moved in with friends and worked retail, while Seraphia remained at home with their mother and attended the local community college. Eventually, Rose learned about camming from a coworker who had quit to pursue adult streaming full-time. “The money is insane,” the friend had told her. Compared to the meager hourly wages offered by big box employers, she was right. Money is the most persuasive of advocates, and it convinced Rose, too. This profession offered her a pathway to both financial and familial independence. If she committed, truly committed, she would never have to speak to them again. In fact, until Seraphia hit her with the cease-and-desist, she hadn’t. Today’s arbitration was the first time they’d been in the same room together in years.
“We are not in disagreement about what the facts are here, Your Honor,” I say. “There really is nothing in dispute. Yes, Ms. Rose Townsend currently works in adult entertainment. She appears in multiple forms of erotic media and has been successful in building her brand in this industry, as Mr. Dunning’s own presentation demonstrated effectively. That clip he played was taken at an awards ceremony recognizing Ms. Townsend and others’ contributions within the adult profession. None of that is debated.
“What is at issue, if you go by opposing counsel’s arguments, is whether my client has the right to do this. Here’s a spoiler alert: she does. She satisfies all the requirements that would allow her to legally engage in this activity. Is she over eighteen years of age? Yup. She’s twenty-four. Has she submitted to regular medical tests confirming she is disease and drug free? Absolutely. Did she sign valid contracts with the producers and filmmakers consenting to perform in exchange for agreed-upon compensation? Yes. And that’s it. That’s all the law demands of her or anyone else that wants to do this job. We have copies of her birth certificate, release forms, and medical records for you to review, Judge, which confirms all of this. Ms. Townsend has met her obligations. If she had any other face, that would be the end of the discussion and of this ludicrous suit.
“But she has a twin,” I say, gesturing across the table to Seraphia. “Now, it might seem that adds a layer of nuance to the situation, and I agree it’s unusual. Having a twin doesn’t abrogate my client’s rights to work as she sees fit, though. There aren’t any special laws for twins. I know that, and Mr. Dunning knows that, too. But let’s set all that aside for a moment and address the other side’s arguments directly. They fail even on their own terms. If Mr. Dunning’s novel interpretation of libel had any basis in statute, which it doesn’t, who’s to say which direction that libel runs? Perhaps some of Seraphia’s actions reflect poorly on Rose?” Just then, on my phone, I bring up my own clip and pass the device to the judge. The video shows Seraphia at a city council meeting speaking in favor of a policy that removed books from school libraries that featured “pornographic” and “age-inappropriate” content, such as Nobel Prize-winning author Toni Morrison’s Beloved. The counter shows that it has several thousand views on the site and has been shared across social media. “I’m not here to say Ms. Townsend’s support of book bans is incorrect. I vehemently disagree with her and seeing that video makes me think she might be a little parochial in her thoughts, but she’s allowed to hold them. That said, if I had seen that clip of Seraphia and then ran across Rose in the street, I might give her a disapproving look. I might be disinclined to hire Rose for a job in the adult industry. Seeing as how she has such a judgmental perspective on a critically acclaimed literary masterpiece, I can’t imagine how rigid her views are on actual X-rated fare.
“You see, both of these young women are adults and free to make their own choices. We may not be able to pick who we are related to, and who doesn’t have a relative or two that we might be embarrassed by, but suing one another isn’t the best venue for resolving what is basically the interpersonal squabble of a dysfunctional family. This should be hashed out over awkward holiday visits like the rest of America. Thank you.”
Judge Griffin chuckles at my last comment as I take my seat. “Well, as someone who presided over plenty of custody battles, I’ll say lawsuits actually are sometimes the best way to settle a fight with family. But I digress.”
A short break follows these opening presentations. The judge instructs us to confer with our clients to gauge attitudes on whether to proceed with supporting evidence for each side’s claims or if an amicable solution can be reached beforehand. I’m not hopeful of an accord. Throughout the process Rose has been steadfast in her refusal to settle, reluctant to give Seraphia a cent, only agreeing to arbitration to lower her own legal fees and make Seraphia go away faster. Still, in the hallway outside the conference room, I chat with Rose again about a possible deal. While I think logic will prevail with the judge, a good result isn’t guaranteed, I tell Rose. A settlement guards against this uncertainty.
“The biggest plus for us is that it would mean we can have a say in the outcome. It won’t be left to chance. If you were willing to throw some money at them, I think I could get Joel to drop the suit and agree that you can continue to perform as Kandi Caprice without any future interference from them.” I stop talking for a second as a hotel staff member pushes a trolley of dirty dishes out of a nearby event and walks past us. He does a double take at Rose. I can’t be sure whether it was out of recognition of her work or if it were simply the horny, biological impulse of seeing an attractive woman in a similar age cohort as himself. “Look, as far as they’re concerned, stopping you from ever appearing in another scene again accomplishes nothing. The footage is already out there. It’s forever. Seraphia is always going to run the risk of being mistaken for your adult film persona. No ruling could ever fix that. So, for them, it’s just about money. And for your sister, it might be entirely personal, wanting to hurt you or get back at you some. So, what do you think? Should I toss around some numbers with them?”
Rose considers this proposal for a moment and smirks. “You know,” she says, “it’s funny Seraphia would sue me just to hurt me. Part of the reason I went into porn is because I knew it might hurt her. I mean, it wasn’t the only reason or even the main reason, but in the back of my mind, I always knew it was a possibility folks would mistake her for me. We’re twins. People have been doing that all our lives. Like, I wish I could have seen some of the reactions from the people at her church or job who mixed her up for me. That would’ve been so amazing.”
I look around to see if anyone else is nearby who could have overheard that. Then I lean in to Rose and say, “Do not ever repeat what you just told me. I mean it. That wins their case.”
“Okay,” she says, an uncomfortable grin forming at my sudden seriousness. “No problem.”
Just then, a follow-up thought chills me. What if she’s already said this before? What if she’s said it frequently or in a place where it could’ve been documented? What if Joel already has this admission recorded somewhere? No indications of this turned up in my firm’s background check on Rose or during our prior conversations, but in the act of thinking this thought, I immediately conclude we missed something. I am positive it is out there and that Joel has it. He does not take lost causes. If he signs on, he thinks he’s going to triumph.
“You haven’t ever told anyone else that, have you?” I ask Rose.
“I don’t know.”
“Texting with a friend? Written in a journal? Posted on a deleted social media account?”
My intensity causes Rose to back up a bit. “I don’t know, man. Maybe. Sure. Yes. Probably. What do you want to hear?”
My shoulders slump, and I put my face in my hand, shaking my head for a moment.
“We have to settle,” I say. “Say you agree.”
“For real?”
“For real.”
Rose scoffs at me, disgusted both by the suggestion and at the fact she’s going along with it.
“Whatever,” she says. “Pay the ransom.”
For evidence in support of Rose’s case, I had combed through Seraphia’s background. I dug up video clips of her offering objectionable views about immigrants, as well as posts she’d written on conspiratorial message boards praising the missions of various organizations on the Southern Poverty Law Center’s list of known hate groups. This was intended to further my argument that libel by mistaken identity ran in both directions, which would mean neither sibling should be able to sue. But Rose’s admission to me in the hallway and the likelihood that Joel has something corroborating her indifference and passive malice toward Seraphia’s situation dooms my attempts at equivalency.
I walk into the conference room and approach Joel. He is smiling before I say a word. He can read defeat in my face.
“Let’s talk,” I tell him.
Later in the day, after Rose went to the hospital to be treated for her injuries, I would return to my office to change clothes and drop off case files. Sitting at my desk, I’d call each of my daughters. Neither of them would pick up their phones, as the idiosyncrasy of their generation dictates, but I would leave them voicemails telling them I was wanting to just say I love them and am proud of them, and no, I hadn’t been diagnosed with a terrible illness, talk soon. After hanging up, I swiveled around to face the computer monitor, and I searched for Kandi Caprice. With parental controls on, the images were anodyne and wholesome. Kandi Caprice posing outside the awards ceremony, Kandi Caprice fully clothed leaning against a large boulder in a field, Kandi Caprice in a makeup chair having foundation applied. I can’t be sure why I was looking at these photos. I suppose I was trying to find an explanation, some insight into her that I’d overlooked, but all they told me was that she wasn’t a daughter of mine. She didn’t need my protection or concern. She was a stranger. A client whose business with me was done. I didn’t know anything about this woman at all.
Before then, though, back in the conference room, Joel and I informed the judge that we had agreed on terms. We drafted up a contract on a tablet computer, and the judge presided over the signing of the settlement. Seraphia would receive an affordable if painful initial lump sum from Rose, and most crucially, she would receive a cut of any future earnings Rose made when using their shared likeness in adult content. If Rose’s performances could be mistaken for Seraphia, then Seraphia would be compensated. They both autographed where they were required, and the judge closed out the hearing.
“Thanks, sis,” Seraphia said.
Rose clenched her jaw and said nothing in response. Instead, she stood up from the table, as though about to stomp out of the hearing, ready to wash her hands of the lawyers, her vengeful sister, and the whole miserable process. But she didn’t leave. She made certain Seraphia would never receive any more of her money. Rose reached into her purse and retrieved the knife she carried for self-defense, dug it into her cheek until she broke the skin. A dimple of blood bloomed from the wound. It followed the path of the blade as she dragged it down the side of her face. Before anyone could react, she was on to the next side, adding a mirroring slash on her other cheek.
“You can tell us apart now,” Rose said to us, blood dripping from her face onto her blouse, elated by her victory. “I’m the one with the scars.”
