PART TWO. THE CAMPAIGN 15 page

"We beat them two years ago with McElwayne."

"So you're optimistic?"

"No, Judge, I'm terrified. I haven't slept well since Fisk announced, and I won't sleep well until he's defeated. We're broke and in debt, so we can't write a check, but every member of our firm has agreed to spend one hour a day knocking on doors, passing out brochures, putting up yard signs, and making phone calls. We've written letters to our clients. We're leaning on our friends. We've organized Bowmore. We're doing everything possible because if we lose the Baker case there is no tomorrow."

"Where is the appeal?"

"All the briefs are in. Everything is nice and tidy and waiting on the court to tell us when, and if, it wants oral argument. Probably early next year."

"No chance of a decision before the election?"

"None whatsoever. It's the most important case on the docket, but then every lawyer feels this way. As you know, the court works on its own schedule. No one can push it."

They had iced coffee as they inspected the judge's small vegetable garden. The temperature was a hundred degrees and Wes was ready to go. They finally shook hands on the front porch. As Wes drove away, he couldn't help but worry about him. Judge Harrison was much more concerned about the McCarthy race than his own.

The hearing was on a motion to dismiss filed by Hinds County. The courtroom belonged to Chancellor Phil Shingleton. It was a small, busy, efficient courtroom with oak walls and the obligatory faded portraits of long-forgotten judges. There was no box for the jurors because jury trials did not occur in chancery court. Crowds were rare, but for this hearing every seat was taken.

Meyerchec and Spano, back from Chicago, sat with their radical lawyer at one table.

At the other were two young women representing the county. Chancellor Shingleton called things to order, welcomed the crowd, noted the interest from the media, and looked at the file. Two courtroom artists worked on Meyerchec and Spano. Everyone waited anxiously as Shingleton flipped through paperwork as if he'd never seen it.

In fact, he'd read it many times and had already written his ruling.

"Just curious," he said without looking up. "Why did you file this thing in chancery court?"

The radical lawyer stood and said, "It's a matter of equity, Your Honor. And we knew we could expect a fair trial here." If it was intended as humor, it missed its mark.

The reason it was filed in chancery court was to get it dismissed as soon as possible.

A hearing in circuit court would take even longer. A federal lawsuit would go off in the wrong direction.

"Proceed," Shingleton said.

The radical lawyer was soon railing against the county and the state and society in general. His words came in short, rapid bursts, much too loud for the small room and much too shrill to listen to for more than ten minutes. He went on and on. The laws of the state were backward and unfair and discriminated against his clients because they couldn't marry each other. Why shouldn't two mature and consenting gay adults who are in love and want all the responsibilities and obligations and commitments and duties of matrimony be allowed the same privileges and legal rights as two heterosexuals?

He managed to ask this question at least eight different ways.

The reason, explained one of the young ladies for the county, is that the laws of the state do not permit it. Plain and simple. The state's constitution grants to the legislature the right to make laws regarding marriage, divorce, and so on, and no one else has this authority. If and when the legislature approves same-sex marriage, then Mr. Meyerchec and Mr. Spano will be free to pursue their desires.

"Do you expect the legislature to do this anytime soon?" Shingleton deadpanned.

"No," was the quick reply, and it was good for some light laughter. The radical lawyer rebutted with the strenuous argument that the legislature, especially "our" legislature, passed laws every year that are struck down by the courts. That is the role of the judiciary! After making this point loud and clear, he devised several ways to present it in slightly different formats.

After an hour, Shingleton was fed up. Without a recess, and glancing at his notes, he gave a ruling that was rather succinct. His job was to follow the laws of the state, and if the laws prohibited marriage between two men or two women, or two men and one woman, or whatever combination, anything other than one man and one woman, then he, as a chancellor, had no choice but to dismiss the case.

Outside the courthouse, with Meyerchec on one side and Spano on the other, the radical lawyer continued his screeching for the press. He was aggrieved. His clients were aggrieved, though it was noted by a few that both looked quite bored with it all.

They were appealing immediately to the Mississippi Supreme Court. That's where they were headed, and that's where they wanted to be. And with the shadowy firm of Troy-Hogan paying the bills from Boca Raton, that's exactly where they were going.

Chapter 23

During its first four months, the race between Sheila McCarthy and Ron Fisk had been markedly civil. Clete Coley had thrown his share of mud, but his general appearance and unruly personality made it difficult for voters to see him as a supreme court justice. Though he still received around 10 percent in Rinehart's polls, he was campaigning less and less. Nat Lester's poll gave him 5 percent, but that poll was not as detailed as Rinehart's.

After Labor Day, with the election two months away and the homestretch of the race at hand, Fisk's campaign took its first ugly step toward the gutter. Once on that course, it would not and could not turn back.

The tactic was one Barry Rinehart had perfected in other races. A mass mailing was sent to all registered voters from an outfit called Lawsuit Victims for Truth. It screamed the question "Why Are the Trial Lawyers Financing Sheila McCarthy?" The four-page diatribe that followed did not attempt to answer the question. Instead, it excoriated trial lawyers.

First, it used the family doctor, claiming that trial lawyers and the frivolous lawsuits they bring are responsible for many of the problems in our health-care system. Doctors, laboring under the fear of lawsuit abuse, are forced to perform expensive tests and diagnoses that drive up the cost of medical care.

Doctors must pay exorbitant premiums for malpractice insurance to protect themselves from bogus lawsuits. In some states, doctors have been driven out, leaving their patients without care. One doctor (no residence given) was quoted as saying, "I couldn't afford the premiums, and I was tired of spending hours in depositions and trials.

So I simply quit. I still worry about my patients." A hospital in West Virginia was forced to close after getting hit with an outrageous verdict. A greedy trial lawyer was at fault.

Next, it hit the checkbook. Rampant litigation costs the average household $1,800 a year, according to one study. This expense is a direct result of higher insurance premiums on automobiles and homes, plus higher prices for a thousand household products whose makers are constantly being sued. Medications, both prescription and over-the-counter, are a perfect example. They would be 15 percent cheaper if the trial lawyers didn't hammer their manufacturers with massive class action cases.

Then it shocked the reader with a collection of some of the country's zaniest verdicts, a well-used and trusted list that always sparked outrage. Three million dollars against a fast-food chain for hot coffee that was spilled; $110 million against a carmaker for a defective paint job; $ 15 million against the owner of a swimming pool that was fenced and padlocked. The infuriating list went on and on. The world is going crazy and being led by devious trial lawyers.

After breathing fire for three pages, it finished with a bang. Five years earlier, Mississippi had been labeled by a pro-business group as a "judicial hellhole." Only four other states shared this distinction, and the entire process would have been overlooked but for the Commerce Council. It seized the news and splashed it around in newspaper ads. Now the issue was worthy of being used again. According to the Lawsuit Victims for Truth, the trial lawyers have so abused the court system in Mississippi that the state is now a dumping ground for all sorts of major lawsuits. Some of the plaintiffs live elsewhere. Many of the trial lawyers live elsewhere.

They forum-shop until they find a friendly county with a friendly judge, and there they file their cases. Huge verdicts are the result. The state has earned a shady reputation, and because of this many businesses avoid Mississippi. Dozens of factories have packed up and left. Thousands of jobs are gone.

All thanks to the trial lawyers, who of course adore Sheila McCarthy and her pro-plaintiff leanings and will spend anything to keep her on the court.

The mailing ended with a plea for sanity. It never mentioned Ron Fisk.

An e-mail blast then sent the ad to sixty-five thousand addresses in the district.

Within hours, it had been picked up by the trial lawyers and sent to all of the MTA's eight hundred members.

Nat Lester was thrilled with the ad. As campaign manager, he preferred broad-based support from many groups, but the reality was that the only major donors to McCarthy were the trial lawyers. He wanted them angry, spitting nails, frothing at the mouth, ready for an old-fashioned bare-knuckle brawl. So far, they had given just under $600,000. Nat needed twice that, and the only way to get it was by throwing grenades.

He sent an e-mail to every trial lawyer, and in it he explained the urgent necessity of answering the propaganda as quickly as possible. Negative ads, both in print and on television, must be responded to immediately. Direct mail is expensive, but very effective. He estimated the cost of the Lawsuit Victims for Truth mailing at $300,000 (actual cost: $320,000). Since he planned to use direct mail more than once, he demanded an immediate infusion of $500,000, and he insisted on commitments by return e-mail.

His coded e-mail address would publish a running total of new contributions from trial lawyers, and until it reached the goal of $500,000, the campaign would remain virtually hamstrung. His tactic bordered on extortion, but then he was still, at heart, a trial lawyer, and he knew the breed. The mailing jolted their blood pressure to near-lethal levels. They loved to fight anyway, and the commitments would pour in.

While he manipulated them, he met with Sheila and tried to calm her. She had never been attacked before in such a manner. She was upset, but also angry. The gloves were off, and Mr. Nathaniel Lester was relishing the fight. Within two hours, he had designed and written a response, met with the printer, and ordered the necessary supplies. Twenty-four hours after the Lawsuit Victims for Truth's plea was sent by e-mail, 330 trial lawyers had committed $515,000.

Nat also went after the Trial Lawyers of America, several of whose members had made fortunes in Mississippi. He e-mailed the Lawsuit Victims for Truth's fulmination to fourteen thousand of its members.

Three days later, Sheila McCarthy counterpunched. Refusing to hide behind some silly group organized just to send propaganda, she (Nat) decided to send the correspondence from her own campaign. It was in the form of a letter, with a flattering photo of her at the top.

She thanked each voter for his or her support, and quickly ran through her experience and qualifications. She claimed to have nothing but respect for her opponents, but neither had ever worn the black robe. Neither, frankly, had ever shown any interest in the judiciary.

Then she posed the question: "Why Is Big Business Financing Ron Fisk?" Because, she explained in detail, big business is currently in the business of buying seats on supreme courts all over the country. They target justices like herself, compassionate jurists who strive for the common ground and are sympathetic to the rights of workers, consumers, victims injured by the negligence of others, the poor, and the accused.

The law's greatest responsibility is to protect the weakest members of our society.

Rich people can usually take care of themselves.

Big business, through its myriad support groups and associations, is successfully coordinating a grand conspiracy to drastically change our court system. Why? To protect its own interests. How? By blocking the courthouse door; by limiting liability for companies that make defective products, for negligent doctors, for abusive nursing homes, for arrogant insurance companies.

The sad list went on.

She finished with a folksy paragraph asking the voters not to be fooled by slick marketing. The typical campaign run by big business in these races gets very ugly.

Mud is their favorite tool. The attack ads would soon begin, and they would be relentless.

Big business would spend millions to defeat her, but she had faith in the voters.

Barry Rinehart was impressed with the response. He was also delighted to see the trial lawyers rally so quickly and spend so much money. He wanted them to burn money.

The high end of his projection was $2 million for the McCarthy camp, with 90 percent from the trial lawyers.

His boy Fisk could easily double that.

His next ad, again by direct mail, was a sucker punch that would quickly dominate the rest of the campaign. He waited a week, time for the dust to settle from the first exchange of jabs.

The letter came straight from Ron Fisk himself, on his campaign letterhead, with a photo at the top of the handsome Fisk family. Its ominous headline announced: "Mississippi Supreme Court to Rule on Gay Marriage."

After a warm greeting, Ron wasted no time in launching into the issue at hand. The case of Meyerchec and Spano v. Hinds County involved two gay men who wanted to get married, and it would be decided the following year by the supreme court. Ron Fisk-Christian, husband, father, lawyer-was adamantly opposed to same-sex marriages, and he would take this unshakable belief to the supreme court. He condemned such unions as abnormal, sinful, against the clear teachings of the Bible, and detrimental to society on many levels.

Halfway through the letter, he introduced to the fray the well-known voice of the Reverend David Wilfong, a national loudmouth with a huge radio following. Wilfong decried such efforts to pervert our laws and bend, yet again, to the desires of an immoral few. He denounced liberal judges who insert their own beliefs into their rulings. He called upon the decent and God-fearing people of Mississippi, "the heart and soul of the Bible Belt," to embrace men like Ron Fisk and, in doing so, protect their state's sacred laws.

The liberal-judge theme continued to the end of the letter. Fisk signed off with another promise to serve as a conservative, common sense voice of the people.

Sheila McCarthy read the letter with Nat, and neither knew what the next step should be. Her name was never mentioned, but then it really wasn't necessary. Fisk certainly wasn't accusing Clete Coley of being a liberal.

"This is deadly," Nat said, exasperated. "He has claimed this issue as his own, and to take it back, or even to share it, you have to pulverize homosexuals worse than he does."

"I'm not doing that."

"I know you're not."

"It is so improper for a member of the court, or one who aspires to be, to state how he or she will decide a future case. It's horrible."

"This is just the beginning, dear."

They were in the cramped storage room that Nat called his office. The door was shut, no one was listening. A dozen volunteers were busy in the adjacent room. Phones rang constantly.

"I'm not sure we answer this," Nat said.

"Why not?"

"What are you going to say? “Ron Fisk is being mean.” “Ron Fisk is saying things he shouldn't.” You'll come off looking bitchy, which is okay for a male candidate, but not for a female."

"That's not fair."

"The only response is a denial of your support for same-sex marriages. You would have to take a position, which-"

"Which I'm not going to do. I'm not in favor of these marriages, but we need some type of civil union arrangement. It's a ridiculous debate, though, because the legislature is in charge of making laws. Not the court."

Nat was on his fourth wife. Sheila was looking for husband number two. "And besides," she said, "how could homosexuals possibly screw up the sanctity of marriage any worse than heterosexuals?"

"Promise me you'll never say that in public. Please."

"You know I won't."

He rubbed his hands together, then ran his fingers through his long gray hair. Indecisiveness was not one of his shortcomings. "We have to make a decision, here and now," he said.

"We can't waste time. The smartest route is to answer by direct mail."

"What's the cost?"

"We can scale back some. I'd say two hundred thousand."

"Can we afford it?"

"As of today, I would say no. Let's revisit it in ten days."

"Agreed, but can't we do an e-mail blast and at least respond?"

"I've already written it."

The response was a two-paragraph message sent that day to forty-eight thousand e-mail addresses. Justice McCarthy issued a strong rebuke to Ron Fisk for pledging his vote on a case he was far away from hearing. Had he been a member of the court, he would have been chastised. Dignity demands that the justices keep matters confidential and refrain from any comment whatsoever about pending cases. In the one he mentioned, no briefs had been filed in the appeal. No arguments heard. Nothing was before the court as of this date.

Without knowing the facts or the law, how could Mr. Fisk, or anyone else for that matter, possibly decide on a final ruling?

Sadly, it was just another example of Mr. Fisk's woeful inexperience injudicial matters.

Clete Coley's losses were piling up at the Lucky Jack, and he confided this to Marlin late one night in a saloon in Under-the-Hill. Marlin was passing through, checking on the candidate, who seemed to have forgotten about the race.

"I have a great idea," Marlin said, warming up to the real reason for his visit.

"There are fourteen casinos on the Gulf Coast, big, beautiful, Vegas-style-"

"I've seen them."

"Right. I know the guy who owns Pirate's Cove. He'll put you up three nights a week for the next month, penthouse suite, great view of the Gulf. Meals are on the house.

You can play cards all night, and during the day you can do a bit of campaigning.

Folks down there need to hear your message. Hell, that's where the votes are. I can line up some audiences. You do the politicking. You've got a great speech and people love it."

Clete was visibly taken with the idea. "Three nights a week, huh?"

"More if you want it. You gotta be tired of this place."

"Only when I'm losing."

"Do it, Clete. Look, the folks who put up the money would like to see more activity.

They know it's a long shot, but they are serious about their message."

Clete admitted it was a great idea. He ordered more rum and began thinking of those beautiful new casinos down there.

Chapter 24

Mary Grace and Wes stepped off the elevator on the twenty-sixth floor of the tallest building in Mississippi, and into the plush reception suite of the state's largest law firm. She immediately noticed the wallpaper, the fine furniture, the flowers, things that had once mattered.

The well-dressed woman at the desk was sufficiently polite. An associate in the standard-issuenavy suit and black shoes escorted them to a conference room, where a secretary asked if they wanted something to drink. No, they did not. The large windows looked down at the rest of Jackson. The dome of the capital dominated the view. To its left was the Gartin building, and somewhere in there on someone's desk was the case of Jeannette Baker v. Krane Chemical.

The door opened and Alan York appeared with a big smile and warm handshake. He was in his late fifties, short and heavy and a bit sloppy-wrinkled shirt, no jacket, scuffed shoes-unusual for a partner in such a hidebound firm. The same associate was back, carrying two large expandable files. After greetings and small talk they took their places around the table.

The lawsuit the Paytons filed in April on behalf of the family of the deceased pulpwood cutter had sped through the early rounds of discovery. No trial date was set, and that possibility was at least a year away. Liability was clear-the truck driver who caused the accident had been speeding, at least fifteen miles per hour over the limit. Two eyewitnesses had been deposed and provided detailed and damning testimony about the speed and recklessness of the truck driver. In his deposition, the driver admitted to a long history of moving violations.

Before taking to the road, he worked as a pipe fitter but had been fired for smoking pot on the job. Wes had found at least two old DUIs, and the driver thought there might be another one, but he couldn't remember.

In short, the case wouldn't get anywhere near a jury. It would be settled, and after four months of vigorous discovery Mr. Alan York was ready to begin the negotiations.

According to him, his client, Littun Casualty, was anxious to close the file.

Wes began by describing the family, a thirty-three-year-old widow and mother with a high school education and no real job skills and three young children, the oldest being twelve. Needless to say, the loss was ruinous in every way.

As he talked, York took notes and kept glancing at Mary Grace. They had spoken on the phone but never met. Wes was handling the case, but York knew she was not there simply because she was pleasant to look at. One of his close friends was Frank Sully, the

Hattiesburg lawyer hired by Krane Chemical to add bodies to the defense table.

Sully had been pushed to the rear by Jared Kurtin and was still bitter about it.

He had passed along to York many stories about the Baker trial, and it was Sully's opinion that the Payton tag team worked best when Mary Grace was chatting with the jury. She was tough on cross-examination, very quick on her feet, but her strength was connecting with people. Her closing argument was brilliant, powerful, and, obviously, very persuasive.

York had been defending insurance companies for thirty-one years. He won more than he lost, but there had been a few of those awful moments when juries failed to see the case his way and nailed him for big verdicts. It was part of the business. He had never, though, been in the neighborhood of a $41 million award. It was now a legend in the state's legal circles. Add the drama of the Paytons risking everything, losing their home, office, cars, and borrowing heavily to sustain a four-month trial, and the legend kept growing. Their fate was well-known and much discussed at bar meetings and golf tournaments and cocktail parties. If the verdict stood, they would be primed to rake in huge fees. A reversal, and their survival was seriously in doubt.

As Wes went on, York couldn't help but admire them.

After a brief review of the liability, Wes summed up the damages, added a chunk for the carelessness of the trucking company, and said, "We think two million is a fair settlement."

"I bet you do," York said, managing the customary defense lawyer reaction of shock and dismay. Eyebrows arched in disbelief. Head shaking slowly in bewilderment. He grabbed his face with his hand and squeezed his cheeks, frowning. His quick smile was long gone.

Wes and Mary Grace managed to convey apathy while their hearts were frozen.

"To get two million," York said, studying his notes, "you have to factor in some element of punitive damages, and, frankly, my client is simply not willing to pay these."

"Oh yes," Mary Grace said coolly. "Your client will pay whatever the jury tells it to pay." Such blustering was also part of the business. York had heard it a thousand times, but it did indeed sound more ominous coming from a woman who, during her last trial, extracted a huge punitive award.

"A trial is at least twelve months away," York said as he looked at his associate for confirmation, as if anyone could project a trial date so far in the future. The associate dutifully confirmed what his boss had already said.

In other words, if this goes to trial, it will be months before you receive a dime in fees. It's no secret that your little firm is drowning in debt and struggling to survive, and everyone knows that you need a big settlement, and quick.

"Your client can't wait that long," York said.

"We've given you a number, Alan," Wes replied. "Do you have a counteroffer?"

York suddenly slapped his file shut, gave a forced grin, and said, "Look, this is really simple. Littun Casualty is very good at cutting its losses, and this case is a loser. My authority to settle is $1 million. Not a penny more. I have a million bucks, and my client told me not to come back for more. One million dollars, take it or leave it."

The referring lawyer would get half of the 30 percent contingency contract. The Paytons would get the other half. Fifteen percent was $150,000, a dream.

They looked at each other, both frowning, both wanting to leap across the table and begin kissing Alan York. Then Wes shook his head, and Mary Grace wrote something on a legal pad.

"We have to call our client," Wes said.

"Of course." York bolted from the room, his associate racing to keep up.

"Well," Wes said softly, as if the room might be bugged.

"I'm trying not to cry," she said.

"Don't cry. Don't laugh. Let's squeeze him a little."

When York was back, Wes said gravely, "We talked to Mrs. Nolan. Her bottom line is one point two million."

York exhaled as his shoulders drooped and his face sagged. "I don't have it, Wes," he said. "I'm being perfectly candid with you."

"You can always ask for more. If your client will pay a million, then they can kick in another $200,000. At trial, this case is worth twice that."

"Littun is a tough bunch, Wes."

"One phone call. Give it a try. What's there to lose?"

York left again, and ten minutes later burst back into the room with a happy face.

"You got it! Congratulations."

The shock of the settlement left them numb. Negotiations usually dragged on for weeks or months, with both sides bickering and posturing and playing little games. They had hoped to leave York's office with a general ideaof where the settlement might be headed. Instead, they left in a daze and for fifteen minutes roamed the streets of downtown Jackson, saying little. For a moment they stopped in front of the Capitol Grill, a restaurant known more for its clientele than for its food. Lobbyists liked to be seen there, picking up tabs for fine meals with heavyweight politicians. Governors had always favored the place.

Why not splurge and eat with the big boys?

Instead, they ducked into a small deli two doors down and ordered iced tea. Neither had an appetite at the moment. Wes finally addressed the obvious. "Did we just earn $180,000?"

"Uh-huh," she said while sipping tea through a straw.

"I thought so."

"A third goes for taxes," she said.

"Are you trying to kill the party?"

"No, just being practical."

On a white paper napkin, she wrote down the sum of $180,000.

"Are we spending it already?" Wes asked.

"No, we're dividing it. Sixty thousand for taxes?"

"Fifty."

"Income, state and federal. Employee withholding, Social Security, unemployment, I don't know what else but it's at least a third."

"Fifty-five," he said, and she wrote down $60,000.

"Bonuses?"

"What about a new car?" he asked.

"Nope. Bonuses, for all five employees. They have not had a raise in three years."

"Five thousand each."

Date: 2015-12-17; view: 332