Balance of Power

by Richard North Patterson

  This leads to yet another hard truth the senator failed to mention—that a knee-jerk condemnation of lawsuits too often favors the rich and powerful at the expense of the injured and the powerless—including, perhaps, your own family and friends.

  He bitterly condemned class actions. Would he argue that it's all right for a crooked corporation to destroy the pensions or investments of ordinary people who, as individuals, no longer have the means to sue?

  He attacked contingent fees for plaintiffs' lawyers. Would he deprive ordinary people of lawyers because they lack the wherewithal to pay one to oppose the array of lawyers a massive corporation can use to grind them down?

  He deplored politicians who accept the support of plaintiffs' lawyers. Is he suggesting that those who accept donations from defense lawyers and their corporate clients somehow are immune from his criticisms?

  Leo Weller, Fasano observed, was now glued to the screen, all scorn or jollity vanished. There was a political problem, Fasano faintly remembered, in Montana—something about mines and asbestosis. On the screen, Kilcannon raised his head with an air of challenge.

  My political opponents, he said in a calm clear voice, will accuse me of class rhetoric and facile populism. But their antilawyer rhetoric too often masks a defense of privilege against the rights of ordinary Americans. Pausing, the President gazed out at his listeners. Too often, this simplistic lawyer-bashing helps them to manipulate the legislative process to protect their corporate patrons, and to bar the ordinary people their patrons injure from seeking justice.

  If this sounds too harsh, ponder why we have consumer protection laws which protect children from defects in toy guns and candy cigarettes, but exempt the real thing . . .

  "No mystery," Palmer answered. "It's because the folks who made the real thing have bought us. That's what campaign finance reform is all about." Under his breath, Leo Weller issued a grumble of dissent.

  In those cases, Kilcannon was saying, litigation is not simply the last resort of ordinary people—it's the only protection they've got.

  Abruptly, his tone became softer and more conciliatory. The question is not whether some lawyers are unscrupulous—they are.

  The question is not whether some lawsuits are frivolous—they are.

  The question is not whether litigation burdens your businesses—it does.

  The ultimate question, simply, is whether ordinary people who are injured deserve their day in court.

  And that, regrettably, is the most basic question Senator Harshman—and his leader, Senator Fasano—have failed to address.

  Watching, Fasano tried to detach himself as Palmer had, to study his opponent as one professional appraising another. Kilcannon's gift for confrontation and edgy rhetoric, Fasano believed, was a distinctly twoedged sword, creating both fervent admirers and dedicated detractors by the minute. But Kilcannon was skilled at turning on a dime from confrontation to conciliation, with a persuasive power which might beguile many of those listening. And he had another strength, just as disconcerting. Unlike some politicians, whom television tends to flatten to a single dimension, Kilcannon was as vivid on the screen as he was in person. All of which made Fasano's knowledge of what was coming even more unpleasant.

  Although Senator Harshman also failed to mention this, Kilcannon continued, I'm quite sympathetic to your concerns. But we have to find a balance. That's why I proposed tort reform legislation which would cap attorneys' fees, and limit the punitive damage awards which can be so catastrophic to your businesses.

  Your own leaders favored such a compromise. But Senator Fasano refused to support it . . .

  "I imagine," Palmer observed wryly, "that he's about to tell us why."

  Fasano smiled. "I'm sure he'll be at least as kind to me as Paul was to him."

  The reason is simple, Kilcannon went on. Buried at the heart of the Civil Justice Reform Act supported by Senator Fasano is a provision immunizing gun companies from lawsuits.

  I asked that it be stricken. Your officers agreed. Senator Fasano refused. So you may want to consider whether the Republican leadership's priorities are your priorities. And then, perhaps, you might ask Senator Fasano why the gun lobby's wish list takes precedence over your much broader core concerns.

  " 'Because,' " Palmer answered dryly for Fasano, " 'the right of patriotic Americans to bear arms should be sacred to you all.' "

  It's a curious thing, Kilcannon was saying with a glimmer of amusement. Senator Fasano and his colleagues are fervent defenders of states' rights and local control. Yet they propose to rewrite the laws of all fifty states, to wipe out all future lawsuits against gun manufacturers by the victims or survivors of gun violence. Gaze sweeping the hall, Kilcannon added in a soft, ironic tone, They even propose to wipe out suits which have already been filed, whoever the plaintiff and wherever the lawsuit may be found . . .

  "I wonder," Fasano remarked, "if he has any particular plaintiff in mind."

  "Why not?" Palmer answered. "The SSA does."

  Many of you may not believe that such victims or their families should recover damages. Fine. If they're not entitled to do so under existing state law, then they won't. But the Republican leadership should not sacrifice the many interests of your members simply to ensure that the survivors of those who are killed with guns never receive a dime . . .

  "Ever hear of life insurance?" Leo Weller retorted.

  "Jesus," Chad Palmer jibed good-naturedly. "I hope you don't try that one on the stump. Your opponent will kick your ass without ever leaving home."

  "The people of Montana," Leo rejoined, "don't like gun-grabbers or plaintiffs' lawyers. Or East Coast liberals like your pal Kilcannon." With a disgusted wave of the hand toward the President's image, Weller left.

  I will veto this bill, Kilcannon concluded. I cannot, in good conscience,

  accept what is unconscionable. But the compromise I've offered you still stands. Just tell Senator Fasano to call me, day or night . . .

  "Still with me?" Fasano asked Palmer in a muted, mocking tone. "Or should we call KFK together?"

  Palmer shoved his hands in his pockets. "We're not whores like Leo," he answered. "We gave each other our word, and now we're both going to keep it."

  * * *

  Returning from his meeting with Cassie Rollins, Dane switched on CNN, intending to glance at it while returning his messages.

  From Atlantic City, Kilcannon had traveled to his hometown of Newark—on the television, with the word "LIVE" emblazoned beneath their images, the President and First Lady were visiting an elementary school in Vailsburg, Kilcannon's old neighborhood. Beside them, looking discomfited, was Democratic Senator James Torchio of New Jersey, a swing vote on tort reform. As they sat in a circle with a mixture of black, white, and Hispanic schoolkids, a boy of roughly seven described the killing of his sister by a playmate with a loaded gun.

  Finishing, the boy turned to Lara. Baldly, he said, They shot your sister, too. I saw it on TV—she was bloody and everything.

  For an instant, the First Lady seemed stricken. The boy looked confused, as though wondering if he had said something wrong. Then Lara crossed the circle, taking him in her arms. Then you know how I feel, she told him gently. And I know how you feel.

  Dane stabbed the remote button, and the screen went dark.

  FOUR

  Trying to suspend her disbelief, Sarah watched the President of the United States face John Nolan across a conference table in the Washington office of Nolan's firm.

  Sitting beside the President was his personal lawyer, Professor Avram Gold of Harvard Law School. Sarah had known—because Lara Kilcannon had told her—that Kerry Kilcannon would not resist Nolan's demand for a deposition. To comply, Sarah had agreed, would provide a telling contrast with Lexington's resistance to producing George Callister. But Nolan's barely reined-in aggressiveness was palpable. From her tenure as Nolan's associate, she knew that he regarded Kilcannon with the bonedeep loathing—irrational to Sarah—that the Re
publican right reserved for this particular President. Drawn by this admixture of history and emotion, the other principal combatants surrounded the conference table: both Lenihan and Sarah; Harrison Fancher and his chief associate; the lead associate for Nolan. To commemorate the occasion, and to ensure that any flashes of Presidential temper or embarrassment were captured on film, Nolan had obtained an order from his fellow ideologue Gardner Bond that the proceedings be videotaped. From a corner, a cameraman aimed his lens directly at Kilcannon.

  Briskly entering the room, the President had seemed a magnetic figure, regarding its occupants with an air of detachment which, Sarah sensed, concealed his distaste at being there and his antagonism toward those representing Lexington and the SSA. But, given his own stake in the proceeding, Sarah was certain the President was intimately familiar with the issues and thoroughly prepared for Nolan's attack. Meeting him, Sarah felt a current of energy and hyperalertness. He paused, looking directly into her eyes as though to convey a sense of complicity and warmth complemented by the lilting quiet of his voice. "I watched you in the Tierney case," he said with a smile. "If you weren't already taken, my friend Professor Gold would be holding your coat. As it is, I suppose I'll have to reserve you for impeachment."

  The remark—with its wry acknowledgment of how hell-bent the right was to be rid of him—made Sarah's nervousness at meeting him dissipate. Then she felt a second, more embarrassing, reaction: that the always-present possibility of her attraction to a man had focused—for a brief, intense moment—on Kerry Kilcannon. Covering this thought with a smile of her own, she answered, "Thank you, Mr. President. If I have any pointers, I'll pass them on through your interim counsel."

  But—at least in the initial stages—it was clear that Kerry Kilcannon needed no coaching. Ignoring the camera, he kept his responses calm and concise while Nolan led him into the legal and psychological minefield of the events leading to the murders.

  "You were aware, were you not, that Joan Bowden was relying on you for advice on how to deal with her husband's abuse?"

  Kilcannon nodded. "Acutely aware."

  "And did you advise her to leave the marriage?"

  "Yes."

  Pausing, Nolan fixed the President with a contemplative gaze. "As a former domestic violence prosecutor, would you agree that the point at which a battered spouse breaks off her relationship marks the moment at which her life is in the greatest danger?"

  Kilcannon changed expression, a slight narrowing of the eyes. "Not necessarily, Mr. Nolan. The point of greatest danger could be when the abuser beats her to death before she decides to leave."

  The response made Nolan hesitate. "Nonetheless," he persisted, "you were aware from your own experience that batterers often react to a loss of control by escalating the violence from battery to murder."

  " 'Often'? I don't know that I'd agree. But it can happen that way."

  Nolan leaned slightly forward. "In fact, didn't your first domestic violence prosecution end in the murder of the victim by her estranged husband?"

  Kilcannon folded his hands. "I believe that's a matter of public record."

  "Did you happen to mention that to Joan?"

  The President hesitated. Softly, he answered, "I don't believe I did."

  "Because you were afraid she wouldn't leave?"

  Betraying no anger or antagonism, the President seemed to consider this. "Her husband had been beating her for years, and it was affecting her six-year-old daughter. The night before she left, Bowden held a gun to her head and threatened to kill her. I didn't think she needed to be told she was at risk, either way. She was as in touch with that fact as she was with the gun at her temple. What Joan—and Marie—needed was to be free from Bowden before it was too late."

  "But you knew from hard experience that, by leaving, she might enrage John Bowden enough to kill her."

  "I considered that, yes."

  "But you didn't see fit to warn her."

  Next to Sarah, Lenihan whispered, "This is unbelievable."

  "Try odious," she whispered back. She had never despised John Nolan more, both for the nature of his questions and the utter lack of deference with which he posed them.

  But Kilcannon gave no sign of noticing. In an even tone, he answered, "Joan and Marie were living under monstrous conditions. I didn't 'see fit' to frighten her into staying."

  Nolan gave him a quizzical look. "So you decided to assume the risk for her?"

  With a long, deliberate silence, Kilcannon studied him. Softly, he answered, "I didn't think there was any risk to me, Mr. Nolan. If there were, and Marie and Joanie would have been safer, I'd gladly have assumed it. Or have I misconceived your question?"

  If anything, Sarah thought, the quiet of Kilcannon's voice enhanced the tension in the room. The others around the table seemed as rapt as she.

  "Isn't it true, Mr. President, that Bowden's threats against his wife escalated after she went to the police—pursuant to your encouragement?"

  "Yes. Predictably. I couldn't stop that."

  "So what did you do?"

  Before answering, the President seemed to inhale, suggesting to Sarah a patient man whose patience was being tried. "I called the District Attorney, made sure the police took away Bowden's guns, and monitored the issuance of a restraining order. When his threats persisted, I saw to it that the police searched his apartment yet again, and hired private security people to protect both Joan and Marie." Briefly, the President paused. "For my pains, the Chronicle contacted my press secretary, demanding to know whether I was using 'special influence' on their behalf."

  "And that's why you and the First Lady chose to expose Bowden as a batterer on ABC?"

  "Chose?" Kilcannon considered Nolan with muted disdain. "You can't be expected to appreciate this, Mr. Nolan. But in dealing with the media, a President's choices are often limited. Faced with the prospect that the Chronicle would string this out, we decided the better course was to get it over with."

  "Whose interest did that serve?"

  The President stared at him. "Joan's, I thought. Unless we got this out, the media would have hounded her for days. As well as Bowden."

  Nolan tilted his head in an attitude of skepticism. "With respect, Mr. President, wasn't one of your concerns to put your role in this matter in its most appealing light?"

  A faint smile did nothing to diminish the new hardness in Kilcannon's clear blue eyes. "With respect, Mr. Nolan, that question is beneath contempt."

  Nolan sat back. After a moment, he said, "Whatever your emotions, sir, I'd appreciate an answer."

  The smile lingered. "What about my previous answer did you fail to understand?"

  Lenihan emitted a short, sardonic laugh. Hearing this, Nolan froze, but did not look toward Lenihan. Sitting beside the President, Avram Gold—clearly under instructions not to intervene—raised his eyebrows at Nolan as if to ask what he'd expected. Unable to resist, he inquired, "Would you like the reporter to read the answer back?"

  Scowling, Nolan checked his watch, as though to indicate that any attenuation of the deposition was Kilcannon's own doing. Then, wisely, he gave up on the question altogether.

  "In giving the interview, Mr. President, didn't you consider that you might inflame Mr. Bowden to violence?"

  "To the ultimate violence? I couldn't know. I was certain he'd not only be inflamed, but humiliated. But no more than he would have been by a story in a hometown paper with a circulation of a million, which then would have been picked up by every national and local media outlet in America . . ."

  "Given that, did you take additional measures to protect Joan and Marie?"

  "They were with us at the time, under the protection of the Secret Service. What I did do was make sure that the private security firm which we'd hired to watch Joan's home also met them at the airport." The President paused, and his voice became soft with regret. "What I failed to consider was that your client's advertisement would induce Bowden to travel to a gun show in Las Vegas, wher
e a convicted spousal abuser could acquire a Lexington P-2 and Eagle's Claw bullets. And that those at risk included Lara's mother."

  This stopped Nolan. For a moment, he seemed undecided as to his course. Then, from a folder to his right, he slid a copy of a document with the jagged scrawl Sarah knew at once to be John Bowden's.

  As she watched, appalled, Nolan asked the reporter to mark the paper as "Kilcannon Exhibit One," and then slid it in front of the President. "Can you identify this document?"

  Gazing at Bowden's words on paper, Kilcannon seemed to pale. "It's a letter from John Bowden. The contents speak for themselves."