Balance of Power

THREE

Entering the Republican cloakroom after morning business, Frank Fasano had hoped to test his colleagues' reaction to Senator Hampton's uncharacteristically lacerating critique. Instead, he found Chad Palmer and Leo Weller absorbed in watching Kerry Kilcannon on CNN. Joining them, he perceived at once that Hampton's speech was part of a broader attack orchestrated by Kilcannon himself.

The President had ventured into opposition territory, choosing to address a Chamber of Commerce convention in Atlantic City, part of a one-day media blitz devoted wholly to guns. Faced with a potentially hostile reception, Kilcannon seemed more cheerful—in a sardonic way— than Fasano had seen him since the murders. Palmer, too, seemed amused, watching Kilcannon with the detached appreciation of one warrior for another—enhanced, the Majority Leader suspected, by Palmer's distaste for his own alliance with Fasano.

"For Kerry," Palmer observed, "a little antagonism is the spice of life." Watching the screen, Leo Weller chuckled.

Frivolous lawsuits, Kilcannon was telling his listeners, ought not be encouraged. But some of the antilawyer rhetoric used to promote tort reform is based on calculated disinformation. To be blunt, it's more attractive to attack "greedy trial lawyers" than a ten-year-old quadriplegic facing life in a wheelchair because of a defective tire . . .

"To be blunt," Fasano repeated with a smile. But he was gaining a fresh appreciation of how deadly such directness could be.

I understand the temptation, Kilcannon went on. A lot of people hate every lawyer except the one they need. It's rather like politicians. In fact, as a class, we're both so widely despised that it's easy for our detractors to claim that lawyers buy politicians on the open market. Kilcannon smiled, skipping a beat. In fact, one of your previous speakers implied that about me, just yesterday.

The speaker, Fasano knew, had been Paul Harshman. Kilcannon continued in the same ironic tone. Seven times, in fact, he employed the words "Kilcannon" and "trial lawyers" in the same unflattering sentence. Never once did he utter the word "victim." But that's what you get from a defective tire; or an exploding gas tank; or a plane which blows up in midair.

Lawyers don't create victims. But all too often, victims need lawyers. Because without legal representation, ordinary people are all too often powerless to gain recourse from the institutions whose carelessness or callousness has blighted their lives forever . . .

"Cheap populism," Leo Weller snorted. "You'd think we're a nation of victims."

Fasano glanced at him. "Best not to say that in public, Leo. At least until the 'ordinary people' of Montana have voted you a second term."

And so, Kilcannon suggested to his captive audience, let's address some other questions Senator Harshman failed to ask.

Time and again, he complained that the cost of "needless litigation" is passed on to the consumer.

But is litigation "needless" when it secures the constant care our ten-year-old quadriplegic will require for the rest of his very difficult life?

Didn't "needless litigation" compel the auto industry to improve the safety of its cars?

And why are plaintiffs' lawyers more blameworthy than the defense lawyers for the tobacco and asbestos industries—some from the most prosperous firms in America—who earn five hundred dollars an hour bludgeoning plaintiffs who are dying of cancer or emphysema?

Palmer laughed softly. "Where's Paul?" he asked. "I'm dying to hear his answer."

Senator Harshman, Kilcannon continued, emphasized time and again that you represent the men and women of Main Street. Many of you own small businesses. But who does he suppose supports your companies and stores? For the most part, ordinary people. After all is said and done, we all should be together in this.

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.