by Randy Singer
Jason quickly glanced through the opinion. In the Farley case, the manufacturer had actually been dismissed, and the case had proceeded only against the dealer. But it would be useless to argue that distinction. The manufacturer in the Farley case had not known about the troubled history of its dealer, and therefore the plaintiff had proceeded against the manufacturer on other grounds. But here, Kelly Starling had been clever enough to use the exact language of the exception in the Protection of Lawful Commerce in Arms Act, alleging that MD Firearms had “aided, abetted, and conspired” with Peninsula Arms to sell firearms illegally. The statute got Kelly in the front door. The Farley case prevented MD Firearms from walking out the back door based on an unforeseeable intervening cause.
In short, they were toast.
“We knew this hearing was a long shot,” McAllister said. “I just don’t like surprises.”
“Yes, sir,” Jason said.
* * *
Garrison took the bench scowling. He gaveled the court to order, and a hush engulfed the courtroom. Jason knew that a best-case scenario would be the court taking the case under advisement. Worst case would be an immediate ruling against MD Firearms, allowing the case to proceed.
Garrison turned his attention first to Blake Crawford. “What I’m about to say is meant as no disrespect, Mr. Crawford,” he said. Jason’s heart began to beat a little faster. Could it be?
“I know you’ve suffered a terrible loss and undoubtedly feel like someone needs to be held accountable for that loss.”
Jason glanced at Crawford, who looked stricken. Jason didn’t want to get his hopes up… but it sounded like Judge Garrison was winding up to dismiss the case.
“While I understand those emotions and want to personally express my condolences at what happened, in my view the person responsible for your wife’s death is Larry Jamison. At most, you might also be able to lay some blame at the feet of the store that illegally sold him the weapon—Peninsula Arms.”
Jason couldn’t believe he was hearing this. Not in a million years had he thought a judge would dismiss the case this early. It was almost too good to be true.
“Nevertheless… ,” Garrison said, pausing.
The word was like a sledgehammer to Jason’s midsection.
“My personal view is not what matters. When I took the bench, I took an oath to follow the law.”
The judge sighed and looked out over the courtroom. “The law in this case leaves me no choice. There is an exception in the federal statute protecting manufacturers, and that exception leaves room for suits against manufacturers who aid or abet illegal sales.
“In addition, I’m duty-bound to follow the precedents of this court, especially a case by someone as respected as Judge Moore.”
Garrison turned his attention to Jason and Case. “The motion is overruled. I’m not saying this case will necessarily go to the jury. But for now, the plaintiff has alleged enough to state a cause of action.”
Jason could hear some murmuring behind him, and the judge banged his gavel. Garrison was trying to play the role of ally to the gun groups even as he ruled against them. Nobody in the courtroom was buying it.
“Ms. Starling,” the judge said, “please draft an order reflecting the ruling. Anything else?”
“No, Your Honor,” Kelly Starling said, half-standing as she addressed the court.
Garrison looked at Jason and Case. Case just sat there, waiting long enough that Jason considered standing and responding himself.
When Case finally spoke, it seemed like he was talking to himself. “There are going to be a lot of dealers out of business.”
“What’s that?” Garrison said, clearly perturbed.
Case stood. “If we can be accused of aiding and abetting illegal sales on facts like these, we’ll have to stop selling guns to a lot of dealers.”
Tension lined every wrinkle on Garrison’s face. He wasn’t used to lawyers talking back.
“Speak to Congress about that,” he said. “You’re wasting your breath in here.”
“That last statement is something we can agree on,” Case said.
Judge Garrison seemed stunned by the comment. Livid. But he apparently thought twice before jumping down Case’s throat. His Republican friends would already be upset that Garrison had denied the Motion to Dismiss. No sense making things worse.
“Court adjourned,” Garrison said.
* * *
Before she left court, Kelly had one more job to do. She pulled a deposition notice out of her briefcase and checked it one last time. Normally, lawyers called the other side and mutually agreed on dates to take sworn pretrial testimony of key witnesses. But sometimes, when Kelly wanted to make a statement, she sent out deposition notices without even checking. This typically ignited the other side’s fuse, resulting in a big argument.
Eventually a date for the deposition would be established by mutual consent.
But the message would be sent.
This particular notice was for Melissa Davids. Ten o’clock. Kelly’s office in Washington, D.C. She had scheduled it for February 9, just a week and a half away. The defense lawyers would undoubtedly object to the time and place, and Kelly would agree to reschedule—so long as Davids was the first witness to be deposed.
She walked to the table where Case McAllister and Jason Noble were packing their briefcases. She placed the deposition notice in front of Case.
“It’s a notice for Melissa Davids’s deposition,” Kelly said. “I’m willing to be flexible on time and place as long as she goes first.”
“That’s very considerate of you,” McAllister said. He didn’t look at Kelly. Nor did he pick up the document.
She stood there for a second, then returned to her client. “Let’s go,” she said, packing her stuff. “Look straight ahead. Don’t respond to anybody.”
Blake nodded and put on his game face.
As they turned to leave, Kelly noticed that Case McAllister and Jason Noble had already departed. Her deposition notice was still sitting there on the defense counsel table, untouched.
“Jerks,” she said under her breath.
32
Kelly Starling and Blake Crawford emerged from the courthouse side by side, family members and friends trailing in their wake. The protestors gave the entourage room to pass and refrained from yelling slogans in their face. They were on their best behavior.
The media was not.
Cameramen walked backward with their cameras just a couple of feet from Kelly’s face. Reporters fired questions at will.
“Ms. Starling, how do you feel about the court’s ruling?”
“I feel great.”
“What evidence do you have that MD Firearms knew about the sales?”
Kelly smiled. “Lots.”
“Is it true that the investigative report about Larry Jamison was flawed?”
“What’s that got to do with anything?” Kelly shot back, before she could remind herself to keep her mouth shut.
“Could the defense raise that as contributory negligence?”
Kelly picked up the pace. “Of course not. That’s ridiculous.”
Kelly fielded a few more questions on the fly, until she and Blake outdistanced the reporters. When she parted company with Blake at her car, about a half mile from the courthouse, there were tears in his eyes.
“I’m glad I found you,” he said.
Kelly gave him a quick hug and imagined what a wonderful husband he must have been to Rachel. The man was sensitive and not afraid to show it. And though she hated herself for being so obsessively analytical about it, he would make a strong witness.
“We’ve got a long way to go,” she warned.
She spent most of the ride to D.C. thinking about Blake and Rachel, even pulling a picture of Rachel from her briefcase to remind herself of the woman’s innocent charm. The rest of the time, she was on the phone with the firm’s public-relations director. There would be four local television stations waiting for h
er in a firm conference room when she returned. The partners were proud of her. They thought a press conference would be a good way to capitalize on the free publicity.
Kelly sighed, but what choice did she have? She would prefer to try her case in the courtroom, but Melissa Davids would probably be all over television that night, spouting off about this money grab by Rachel Crawford’s family.
It couldn’t hurt to even the playing field a little.
* * *
On the way to the airport, Case McAllister didn’t seem to be at all bothered by the hearing. He had tossed his suit coat in the back and slouched down in the passenger seat, relaxed and talkative. “We knew going in that we were going to lose,” he reminded Jason. “I’ve got some friends in the Virginia legislature. They’ve got ways of getting the word to Judge Garrison. We may still win this thing on a Motion to Strike at trial.”
Jason wasn’t so sure. He would prepare for the case as if it were going to the jury. Judge Garrison’s ruling had not left a lot of wiggle room for a Motion to Strike.
For most of the trip, Case talked about everything except the lawsuit. When they pulled up to the curb at the airport, he reminded Jason not to talk with the press. “Melissa likes to handle the publicity aspects herself,” Case said.
No kidding, Jason thought.
“You just focus on trial prep,” Case said.
After he dropped Case off, Jason spent a few minutes analyzing the day’s events. Case seemed supremely confident, almost as if he had an inside line on Judge Garrison. But if he did, why would Garrison have ruled against MD Firearms today? Could it be that Davids and McAllister actually wanted to lose this hearing, realizing that the free publicity for their company would be worth millions?
The thought that his own client might be pushing this case toward trial troubled Jason. Maybe it was just the product of his cynical and imaginative mind. Or maybe Case had been through so much controversy in his day that this was just a blip on the radar screen. Either way, Jason still felt it odd that the same ruling that had sent his own stomach into a relentless churn had not seemed to impact Case at all.
But then he thought about the moment that Kelly had first pulled out the Farley ruling. Case had seemed understandably frustrated. And surprised. So maybe he just got over things quickly.
When Jason reached the interstate, instead of heading north toward Richmond, he took the second entrance ramp, heading south and eventually east to Virginia Beach. There were certain things he couldn’t control. The judge, for example. Maybe his client as well.
But Jason had a job to do, and he needed to focus on that. He had to assume this case would ultimately go to trial.
Today had given him a chance to analyze Kelly Starling, and he had been impressed. She was businesslike and well prepared, but she also had a quick smile, lively brown eyes, and a short, layered haircut that gave her an all-American image. She could do Wonder Bread commercials. Plus, she seemed to be a true extrovert, not a private person like Jason who just played the part of a trial lawyer.
But he could count on at least one weakness. She was from Burgess and Wicker, a traditional big firm that taught traditional big-firm trial prep. She would focus on pretrial depositions, file truckloads of legal motions, and try to bury Jason in a mountain of paperwork. She would view the trial as a battle of evidence, hers versus his, a procedural competition with the verdict as the prize.
But Jason had been trained differently. At Justice Inc., under Andrew Lassiter’s watchful eye, Jason had discovered that the courtroom was not about debate; it was about drama. The trial was a play, the jury the audience, the lawyers the actors. What mattered most to Jason was not this piece of evidence or that piece of evidence. What mattered to him was the audience. What did they value? What motivated them? How could he touch on the issues they cared about most? It was Cicero, not big-firm training, that formed the basis for Jason’s playbook: Touch the heart, move the mind.
That was the key to advocacy.
But there were practical concerns as well. He had overlooked a critical case in his prep for today’s hearing because he wasn’t part of the local legal culture. That was why smart companies usually hired local legends for their trials as opposed to nationally known out-of-town lawyers. Every courthouse had its own culture. Every city and county had its unique jury pool with a unique set of values, fears, and hot buttons to push.
Let Kelly Starling focus on evidence and legal motions, Jason decided. He would work hard on those aspects of the case too, but his real focus would be elsewhere. He would become part of the Virginia Beach culture. Tonight he would spend time hanging out in Virginia Beach. Tomorrow he would look for a temporary place to stay for the next few months, just like Robert Sherwood had suggested.
In six months or so, unless Case McAllister took care of things behind the scenes, Jason would play a starring role in the case of Crawford v. MD Firearms.
It was time to start getting into character.
33
Jason secured a room at an oceanfront hotel, then drove up Laskin Road, looking for a place to eat. He had been on edge at lunch and hadn’t had much appetite. Now he was famished.
About half a mile from the oceanfront, next to an abandoned movie theater, Jason found just the place. He pulled into a burger joint with a purple roof and a sign that promised thick shakes. The Purple Cow. If he wanted to find an authentic slice of Virginia Beach life, this looked like a promising place.
The interior featured purple booths, an old jukebox playing “Help Me, Rhonda,” a soda bar, a giant gum ball machine, children’s crayon drawings of purple cows pasted to one wall, and a colorful assortment of life-size figures covering the others, including a picture of Bill Clinton dressed up like Elvis and singing next to an image of Marilyn Monroe. The place was about half full, not a bad crowd for a weeknight in the winter, and the hostess said Jason could sit anywhere he wanted. Jason picked a booth in the back corner and studied the menu.
Jason guessed his waitress was a local high school or college student. Her name badge said Kim, and she tried to talk Jason into ordering a purple milk shake, pointing out a family at the next table where the kids sported purple teeth and tongues.
“You can’t come to the Purple Cow and not order a purple milk shake.”
“I’ll stick with vanilla.”
For the main course, Kim recommended lasagna, and Jason obliged. A few minutes later she brought the vanilla shake, and Jason knew immediately that he had found the right spot. The shake was otherworldly good, a throwback to the days of real ice cream and real milk, thick enough that you couldn’t coax it through a straw. Kim served it in two glasses—the tall aluminum glass it was mixed in and a tall thin glass to drink from. This was the way shakes were supposed to be served.
A thought hit Jason just before the food arrived. It was crazy, and way outside his comfort zone, but his competitive instincts edged out his shyness. Kelly Starling would probably be spouting off on television tonight on one channel, while Melissa Davids would be making her case on another. But Jason had an opportunity to find out how real Virginia Beach jurors might think. He got Kim’s attention, and she came smiling to the table.
“Do you have any regulars in here?” Jason asked. “I need to bounce something off some folks who live in Virginia Beach. Get their opinion on something.”
Kim scrunched her forehead, looking confused.
“I’m a lawyer,” Jason said, lowering his voice. “I’m from out of town, and I’ve got a case I need to try in a few months. I wanted to get a quick opinion from the types of people who might sit on my jury.… I’ll even pay for their dinner.”
Kim asked a few questions about the case, and Jason kept it general. Still, she heard enough to pique her curiosity. “Could I listen too?” she asked.
“As long as you don’t get in trouble with your boss.”
“That won’t be a problem,” Kim said. She nodded toward a corner booth. “The guy facing us is a youth
pastor named Wayne from a local church. He comes in here about once a week. That couple with him—I can’t remember their names—but they’re in the church too.”
“Think they’ll do this?” Jason asked.
“A free meal? Wayne? Uh… yeah.”
After an awkward introduction, Jason began explaining the facts of the Crawford case. He spoke with as much detachment as he could muster; he didn’t even let on whether he represented the plaintiff or the defendant. About three minutes into his presentation, he was forced to start over again when the couple who owned the restaurant joined the discussion, asking lots of probing questions.
He took mental notes as the little group argued about the right verdict. The men tended to sympathize with MD Firearms, but the woman who was part owner of the restaurant proved to be very persuasive. “I’ll never forget seeing that shooting on television,” she said. “I just think this manufacturer has a duty not to use dealers who are making illegal sales.”
Her husband shook his head. “I don’t see that. The manufacturer didn’t shoot that woman.”
“But let’s say we hire an employee who we know has violent tendencies. And then he gets mad one day and gets in a fight with a customer. You don’t think we’d be responsible?”
The question brought a reflective pause. “I see your point,” her husband said.
And so did the others. Once the pendulum started swinging, it didn’t stop until it had arrived at $2.5 million.
It wasn’t a scientific poll or even a representative focus group. But it served as an effective wake-up call.
“Who do you represent?” Kim asked.
“The company you just nailed for $2.5 million.”
When he returned to his booth, Kim asked Jason if he wanted his lasagna reheated.
“Why don’t you put it in a box,” he said. “I think I lost my appetite.”
34
