Sarah nodded. "That's how the SSA pushes these state laws creating an automatic right to carry a concealed handgun. The idea is that you need a hidden gun to defend yourself against someone else's hidden gun." Abruptly, she turned to Mary. "I'm sorry," she apologized. "Give two trial lawyers an audience, and we'll talk for hours. It occurs to me that you may actually have some questions."
Plainly nettled at being cut off, Lenihan, too, faced Mary. "There's one more aspect, Mary, that I think we should cover. I call it 'entertainment marketing.'
"Lexington creates video games where kids can fire a 'virtual' P-2. They also place their guns in movies and TV shows, often as the criminals' gun of choice. The idea is to create a whole new wave of technofreaks—from kids to criminals to survivalists—who've just got to have the newest, lightest, fastest killing machine.
"That's what Bowden responded to. I'm confident that I can prove that the P-2 has no legitimate sporting use; that its sole function is to kill a lot of people quickly; that it contains features that are especially attractive to mass murderers and other criminals; that it's one of the weapons most frequently used in crimes; and that the Eagle's Claw is designed not to stop a would-be burglar or rapist, but to make death a near certainty." Now his own voice softened. "The deaths of your mother, sister and niece, for which Lexington should pay and pay and pay."
Mary glanced at Sarah, as though caught between competing forces. "How can we sue them," she asked, "if selling these guns is legal?"
"That's the crux of their argument," Sarah agreed. "But another argument is that the P-2 worked exactly the way it's supposed to. If it's not defective—unlike a faulty tire or an SUV that flips—how can they be sued?
"You can't sue them, Lexington will say, for murders that some demented stranger committed with a nondefective legal product. Even if Lexington knew to a certainty that someone like Bowden would choose a P-2 to commit murder." Sarah's tone became etched with disgust. "Which Lexington did, by the way. Remember the white supremacist who killed three kids at a Jewish day-care center in Los Angeles? He used a Lexington P-2."
"So what's your theory?" Lenihan asked sharply. "That Lexington could have imagined the illegal use of a legal product doesn't get Mary her verdict. Or else Ford would be liable if Bowden had killed them with your hypothetical SUV."
"Tell us your theory," Sarah countered. "If I have anything to add, I will."
Quickly refocusing on Mary, Lenihan spoke with the paternal air of a doctor prescribing medication. "Under California law, Mary, we need to prove that Lexington caused Bowden to act. In essence, that it persuaded him that the P-2 was the best available weapon for killing all of you . . ."
"How?" Mary asked in bewilderment. "John's dead."
"True. But we do know that he flew to Las Vegas on the day of the gun show. And after he died, the police found the SSA magazine in his hotel room, containing the ads the President mentioned in his speech— calling the P-2 an 'endangered species, banned in California.' " Lenihan permitted himself a smile. "There's an old saying that if you go to bed without snow on the ground, and the next morning awaken to snow, the inescapable conclusion is that it snowed."
"Snow aside," Sarah remarked, "it would be far better if we could find the seller. Or, at least, someone Bowden talked to about buying the P-2.
"There's an unfortunate decision called Merrill versus Navigar. That case involved an office massacre in San Francisco where the murderer also killed himself. The survivors sued the gun manufacturer on much the same grounds—inflammatory advertising. But the California Supreme Court ruled for the gun company, saying it was protected by a peculiar state statute shielding gun companies from product liability lawsuits— partly because there was no direct evidence that the murderer ever saw the ads.
"The California legislature promptly repealed the statute. But Lexington still can argue that there are a thousand other places Bowden could have bought the gun—including the black market . . ."
"Of course," Lenihan told Mary, "if Lexington had required a background check at gun shows, Bowden couldn't have bought it there. Instead, they virtually invited him to Las Vegas—not only to acquire a P-2 but bullets designed, and I quote, to inflict a 'massive wound channel.' When we begin gathering documents and deposing Lexington witnesses, we'll explore what research they did to authenticate that claim. I intend to show the jury that they believed every word."
Silent, Mary stared bleakly at some middle distance of the mind—in remembered horror, Sarah supposed, perhaps combined with disbelief that Lexington would choose to profit in such a way. Turning to Sarah, Lenihan asked, "Speaking of juries, you tried the Tierney case before a federal judge. No disrespect intended, Sarah, but I have to ask how many jury cases you've tried."
Surprised, Sarah tried to appear unruffled. "Three."
"Any plaintiffs' cases?"
"None at all."
"Have you at least tried a personal injury case, or a wrongful death action?"
"I haven't. As you already know."
"That's just as well," Lenihan responded with an amiable smile. "God knows your mentors in your former law firm lost enough of them. To me."
Mary shifted in her chair. "If you're trying to embarrass me," Sarah said in even tones, "at least address the issues. To even get this to a jury, you'll have to prepare for the argument that any suit is barred by the Second Amendment."
Lenihan, Sarah sensed, was eyeing her with increased caution. "The Second Amendment defense has never flown," he parried. "Not in a civil case."
"Not in California," Sarah agreed. "At least not yet." Facing Mary, Sarah explained, "Until recently there's been an unbroken line of cases, including a Supreme Court case, which suggested that the Second Amendment does not protect an individual's right to own a gun—as opposed to a collective right which belongs to governmental bodies like the police department, or the National Guard."
Mary nodded. "That makes sense to me."
"And to me. But the SSA disagrees. They claim that the Constitution enshrined the right of armed insurrection by individuals against the government the men who drafted it created, replacing votes with bullets. They also claim that this right cannot be infringed for any reason—that leading the Western world in homicides is the price we pay for this precious 'freedom.'
"Until a few years ago, no one but gun fanatics took that seriously. Then the SSA began financing a wave of 'scholarship': one law review article after another which argued that Madison, Jefferson and the rest meant each of us to have the absolute right to own any weapon we want—including weapons that the Founding Fathers never dreamed of. Like the Lexington P-2 and Eagle's Claw bullets . . ."
"That's absolutely ridiculous." Mary's voice trembled in anger. "I saw that gun kill my family. I saw what that bullet did."
"It is ridiculous," Sarah echoed softly. "Even sick. But at the same time those articles started appearing, Republicans began appointing federal judges approved by the SSA—or, at least, who shared its views." Sarah slid some papers across the desk to Mary. "I've copied a Texas case which began in federal court. An abusive husband subject to a restraining order claimed that the Constitution created a right of individual gun ownership—one so absolute that it barred the government from taking his gun away. Even to protect his wife.
"Creating precedents cuts both ways. This judge, a Reagan appointee, found that the right exists. Whether it's absolute, permitting a spousal abuser to keep his guns no matter what, has yet to be decided. And a recent opinion from this circuit, Silvera v. Lockyear, the most thorough opinion written on the subject, says emphatically that the Second Amendment does not create an individual right to own a gun. But you can see where the SSA is going: if unregulated gun ownership causes so much violence that we all get sick of it, the SSA's only hope is to create an absolute right, embedded in the Constitution, which would bar us from passing new gun laws." To Lenihan, Sarah finished, "With the SSA's encouragement, I'd expect Lexington to argue that it can't be s
ued for an activity which enables citizens to exercise their sacred Second Amendment rights. Even in the face of the Silvera case, and even for citizens like Bowden."
Mary listened intently. Glancing at her, Lenihan told Sarah, "And even I read cases. In fact, I'm thoroughly familiar with the law surrounding guns. That's one of several reasons she's asked me to represent her."
"Which you'd like to do without me," Sarah answered calmly. "So let's stop playing games.
"I didn't call Mary—you did. I've never met with Mary alone. And after she leaves here, I'm not going to call her to explain why you shouldn't represent her, or I should." Sarah's voice became crisp. "On the other hand, I'm quite confident that as soon as you leave here, you'll give her any number of reasons why you should try this case without me. So why don't you tell us both?"
After an instant, Lenihan shrugged. "I'm sure you're an able lawyer, Sarah. At least you've read a lot about guns. That's because, for you, the client is the cause.
"To me, the client is Mary. My job is to bring thirty years of experience to a single cause—to simplify the case, to present the most attractive facts to the jury in the most persuasive possible way, and to win Mary the largest recovery possible." Pausing, Lenihan gave Mary Costello an encouraging smile. "And, not incidentally, inflicting so much pain on Lexington that an entire industry will shiver.
"I understand the First Lady's affinity for the Kilcannon Center. I'm sure, as an older sister, she means to look after you. But when it comes to the courtroom—as the President would say if he were here—there's no one better suited than I. You don't need me wasting time in needless quarrels over strategy."
Turning, he held up a placating hand to Sarah. "I, too, admire the Center. It's simply a question of whether you're the right lawyer for Mary's wrongful death action. You're not. Both because of inexperience and because public interest lawyers push the law to its limits. Even if that endangers the client's interests."
Smiling, Sarah spoke to Mary. "Bob's right," she acknowledged. "I'd like you to advance this lawsuit in a way which protects others from suffering as you have.
"I'll never conceal that. I think you should do it. But I'll always tell you when the public interest diverges from your own." Sarah faced Lenihan. "Every lawyer has an agenda. Sometimes it's a cause, sometimes glory, sometimes money. Sometimes it's all three.
"I don't care about 'glory'—I had enough exposure in the Tierney case to despise it. I don't want any piece of the verdict. All I want is our expenses, and the chance to help Mary make this lawsuit matter."
Mary regarded her gravely. When Lenihan began to speak, she placed her hand on his wrist. "I want you both," she told him. "I'd just feel more confident if you could work together."
Lenihan's eyebrows flew up. "That's fine with me," Sarah answered promptly. "In fact, I'd be very grateful for the opportunity."
With a theatrical sigh, Lenihan sat back, regarding Sarah with a complex look of enmity, amusement, annoyance and calculation. "Then come along with me, Sarah. I imagine we'll both learn something."
SE VEN
"This is our biggest challenge," Charles Dane told Senator Frank Fasano. "At least since 1968."
He did not mention the murders of Martin Luther King and Robert Kennedy. He did not need to. That they met in Kelsey Landon's K Street office, not the SSA's or Fasano's, said enough about the volatility of the moment.
The SSA's choice of Kelsey Landon as its consultant spoke to this as well. A small, well-knit man with silver hair and a perpetual expression of shrewd but pleasant alertness, the former senator from Colorado's fund-raising prowess had secured him a unique influence among Senate Republicans, cementing his closeness to Frank Fasano: when Fasano had set out to succeed Macdonald Gage, Landon had quietly passed the word that major Republican donors and power brokers favored his aspirations. Now, deferring to Fasano, Landon merely responded to Dane's comment with a wry smile of acknowledgment—a cue, Fasano sensed, that he should remind Dane of how much the SSA needed them both.
"It's the worst I've seen," Fasano said bluntly. "Especially in the Senate. My moderates are worried—they've seen the numbers for Kilcannon and the First Lady. And Lexington's not warm and fuzzy."
Seated in an elegant wing chair, Dane wore a pin-striped Savile Row suit which accented his air of power and ease. "In the end," he told Fasano, "Americans will respect individual responsibility. Bowden pulled the trigger, not George Callister."
"That's not good enough," Fasano said. "At least right now." Pausing, he added softly, "Some would say that Martin Bresler had the right idea on trigger locks and gun shows. And that it's too bad someone crushed him."
From behind his desk, Fasano noticed, Landon followed the exchange with the air of a connoisseur of tennis watching two veteran players testing each other's game. "Bresler crushed himself," Dane admonished. "Sometimes you'd be better off, Frank, envisioning gun owners not as a 'special interest,' but as members of one of the great religions of the world. The core of our membership would give us everything they owned before they give Kilcannon an inch on guns."
"Sounds like religion," Fasano answered. "I know it isn't politics. The Kilcannons have hung Lexington with an image problem that'll be hard to overcome."
"That's the real problem," Landon told Fasano. "It's not just Kilcannon's gun bill—it's our old friend Robert Lenihan. He can't help bragging—seems like he's signed up Lara Kilcannon's sister for a wrongful death suit against Lexington. If Lenihan's doing this, Kilcannon's pulling his strings . . ."
"It's been like synchronized swimming," Dane interjected in sardonic tones. "First the tape of Bowden killing them, then Kilcannon's speech, then Callister turns him down, and then Mrs. Kilcannon gives her interview. At this rate Lexington will have to look for neutral jurors in caves."
"The gun manufacturers," Landon added smoothly, "are petrified. Lenihan can finance this with millions in tobacco money. If he delivers George Callister's head on a platter, the trial lawyers can write their own ticket in the Democratic Party. And the gun industry may well cave in to whatever Kilcannon wants."
So far, Fasano reflected, the meeting had gone as he had expected. The SSA, he suspected, had compelled the manufacturers to take a hard line, and now had to show that it had the power to protect them. And Dane needed results for special reasons of his own: he was both intimidator and beseecher, whose tenure as SSA president depended on pleasing a board of governors whose intransigence on gun rights was equalled only by its hatred of Kerry Kilcannon. Evenly, Fasano inquired, "What is it that you want, Charles?"
Dane folded his arms. "A bar on lawsuits by people like Mary Costello."
"Just 'people like Mary Costello'? Or do you want us to kill her lawsuit?"
"What we want," Dane said succinctly, "is a law barring all lawsuits against the manufacturers of guns for deaths and injuries caused by someone else's criminal misuse. That means suits by anyone."
Fasano found himself studying Landon's bust of an Indian warrior, the gift from a grateful tribe for whom he had secured exclusive gaming rights. "If you're right about Lenihan," he told Dane, "Mary Costello will file any day now. We'd have to cut her off in mid-lawsuit."
Dane frowned. "No choice, Frank. We've passed laws like this in other states, but we lack the wherewithal in California. So you're the only game in town."
Though Fasano was prepared for this, the pressure building in the room had begun to feel like a vise, tangible and sobering. "You don't want much," he told Dane. "Only that the United States Senate stomp all over Lara Kilcannon's sole surviving relative, with the bodies of the others barely cold."
"Not just the Senate," Dane responded coolly. "The House of Representatives. Speaker Jencks is ready to go."
"Well, good for Tom," Fasano said dismissively. "Even if both of us can pass this bill of yours, Kilcannon will veto it. To override a veto, you may recall, we need a two-thirds vote of the Senate.
"By my count, that means sixty-seven senators wi
ll have to spit in the President's eye. Or, as Kilcannon will have it, on the graves of the First Lady's family." Turning to Landon, Fasano continued, "You can do the math as well as I can, Kelsey. I've got fifty-four Republicans. I can count at least five who are up for reelection next year and don't want Kilcannon's very warm breath on the backs of their necks. They'd sell their souls not to cast this vote."
Kelsey Landon smiled. "You remind me of what my predecessor used to say: 'Half my friends are for it, half against, and I'm all for my friends.' Except that your friends are in this room, and we're all for you."
For Fasano, the soothing bromide eliminated all doubt—the SSA had engaged Kelsey Landon not just as an advisor, but to bring all the pressure at his command to bear on Frank Fasano. For a brief, intoxicating moment, Fasano imagined telling them both to go to hell. Then he weighed yet again the political impracticality of offending the SSA, the risks and rewards—both monumental—of waging this fight against Kerry Kilcannon.
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