Balance of Power

SIX

To Sarah's surprise, when Mary Costello appeared at the Kilcannon Center, Robert Lenihan was with her. As soon as Sarah had led them to her office, he said in a proprietary tone, "I gather that Mrs. Kilcannon wanted you to meet my client."

Casting a disdainful glance at Sarah's spartan office, he sat back, hands folded comfortably across his belly. His own office in Beverly Hills was as legendary as his ego: a former colleague of Sarah's had described its decor as "late Byzantine, accented by photographs of the Emperor Bob receiving tribute from Presidents and other lesser men." In contrast to Lenihan's arrogance, Mary's blue-green eyes conveyed the aftershock of a trauma so severe that it seemed to have overwhelmed her.

At once, Sarah decided to focus on Mary. "What I understand," she said gently, "is that you wanted to discuss a potential action for wrongful death."

Silent, Mary nodded. "What's your take?" Lenihan inquired of Sarah. "My message to the jury will be simple—that Lexington designed and marketed the P-2 as a weapon uniquely suited to killing human beings."

"That's fine," Sarah rejoined. "But you have to put the P-2 in its context." Pausing, she spoke to Mary. "Financially, the gun industry's in trouble. Guns don't wear out, and their traditional owners are slowly dying off.

"So the industry faced a choice. They could expand their customer base by making guns safer, or by persuading urban and suburbanites that they needed superguns capable of firing more rounds more quickly, and of inflicting deadly wounds." Her voice softened. "You saw the choice they made. Morally, it's analogous to big tobacco deciding to put more nicotine in cigarettes . . ."

"The difference," Lenihan objected, "is that people don't smoke in self-defense. As Lexington will drive home to a jury."

Lenihan, Sarah thought with irritation, was positioning himself as the voice of experience, uniquely capable of persuading twelve ordinary citizens to decide for Mary Costello. "Self-defense," she said to Mary, "doesn't begin to explain the record rate of gun violence in America.

"In nineteen sixty-three, there were a little over half a million handguns in America. Today, there are over three million. In 1963, only fourteen percent of handguns had a magazine capacity of ten rounds or more. The next year, the percentage of those guns tripled. And the P-2 is among the worst. It's not designed for self-defense. It's simply not accurate enough. All it's good for is spraying the most bullets in the least amount of time." Turning to Lenihan, she finished, "That's your case. Because that's why Bowden bought it."

Mary's gaze darted back to Sarah. "But why do ordinary people want one?"

"Fear," Sarah answered. "Fear of minorities, or civil disorder, or the government, or violent crime. Fear sells guns to homeowners, and single women." Before Lenihan could interrupt, Sarah continued. "Fear even sells guns to cops. The gun industry sold the first superguns to police, then told them they were threatened by the even more lethal guns they'd begun selling to civilians, then offered the cops the newest superguns in exchange for their old ones, and then resold those guns on the open market, double-dipping while increasing the number of lethal weapons on the streets. Which increased the risks to cops . . ."

"It's an arms race," Lenihan interposed, "as the President suggested. The message is that the world is a scary place, populated by people who are armed and dangerous, so you'd better be better armed than they are."

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 sued 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."