Randy Singer - The Justice Game

Whatever the reason, this was a far cry from the secluded trials Jason had cut his teeth on at Justice Inc.

Muscling her way through the crowd, Kelly Starling thought about what an obvious and stupid ploy this was. A few hundred gun nuts, stripped of their weapons at the metal detector, were not going to intimidate her. Even Judge Garrison, a hard-core conservative and a bad draw for Kelly’s case, would probably be offended by this stunt-as if he might be swayed by pressure from the crowd.

Blake Crawford and a few friends and family members were already inside the courtroom and seemed a little shaken by all the attention. Nobody had treated them rudely, Blake said, but Kelly could see concern in his eyes. He probably hadn’t anticipated a crowd that would be so overwhelmingly against a grieving widower.

There was something else in Blake’s expression that fed Kelly’s fervor. It was the dazed look of a client who was trying to make sense out of tragedy, a threadbare hope that the justice system could bring good out of a horrendous evil. At times like this, clients would irrationally pin their hopes for recovery on the outcome of a civil case: “Maybe I can keep others from suffering like this. Maybe my wife’s death won’t be in vain.”

To balance her client’s tentativeness, Kelly put her own confidence on overdrive, asking the deputies to clear out a few seats in the front row behind Kelly’s counsel table so Blake’s relatives and friends could have a place to sit. That maneuver earned her the barely muted hostility of the crowd, especially since she did it over her client’s objection.

“We can stand next to the wall,” one of Blake’s brothers offered.

“Don’t be ridiculous,” Kelly said, loud enough for the first few rows to hear. “They’ve packed the entire courtroom. We’re entitled to one lousy row.”

When Jason Noble and Case McAllister came walking down the aisle, Kelly sized them up, positioning herself so it looked like she was talking to her client. McAllister looked old, weathered, and confident, walking with a slight limp. His thin, rounded shoulders revealed his age, but his eyes were sharp, and he had a sly half smile on his face, as if surveying a masterpiece he had just painted. Jason Noble was young and decent looking, in a carefree surfer sort of way. He had penetrating green eyes and dark shaggy hair. He looked like maybe he had just left a frat party at the University of Georgia, the yin to Case McAllister’s yang.

Kelly made a note-Jason would probably do okay with young female jurors. But other than a kind of roguish charm, she couldn’t figure out why MD Firearms might have chosen him to help on the case. He was only two years out of law school-nearly five years younger than she. And Kelly herself was relatively young and inexperienced to be trying a case of such magnitude. Jason, she concluded, was probably just there to carry Case McAllister’s briefcase.

She approached the defendant’s counsel table and extended her hand.

“Kelly Starling,” she said.

Jason’s grip was firm, but his hand was cold and moist. Nerves.

“Jason Noble,” he said.

He turned and motioned toward Case McAllister, who had just settled into his seat. “This is my co-counsel, Case McAllister.”

Kelly took a step toward the man, expecting him to rise and shake her hand. Instead, he looked up at her disdainfully, gave her a curt nod, and turned back to his papers.

“Nice to meet you, too,” Kelly said.

She returned to her own counsel table, blood pounding in her temples. The man was rude, but she wouldn’t let it throw her off focus.

They could bring a big crowd and they could play mind games, but Kelly wasn’t about to back down. McAllister might have experience, a sympathetic judge, and a federal law on his side, but Kelly had a grieving widower, a horrific shooting, and the mainstream media in her corner.

And she also had one other thing. Her own little secret weapon. The reason she was supremely confident about today’s hearing.

Kelly had a lawyer’s holy writ-legal precedent. A case from this very same court. Not a ruling from Judge Garrison but from one of his respected colleagues from more than a decade ago. It was, to use a bad analogy, her silver bullet.

Farley v. Guns Unlimited. Let’s see how the great Case McAllister deals with that.

After being granted pro hac vice status, Case McAllister rambled on for nearly half an hour about why Judge Garrison should dismiss the case. Kelly could hear the murmurs of agreement coming from the cheap seats.

McAllister’s primary argument was that manufacturers should not, as a matter of law and policy, be held liable for misuse of their products. He went through an illustrative list of products. Knives, of course. And what about cars? If somebody drives a car into a busy shopping center, should the manufacturer be liable? Then there was fertilizer. Nobody had sued fertilizer companies after Timothy McVeigh used a fertilizer bomb in Oklahoma City.

What about cigarettes? Kelly wanted to ask. But it wasn’t her turn yet.

McAllister then turned to the Protection of Lawful Commerce in Arms Act-a law he claimed was designed to prevent exactly these types of frivolous lawsuits. He explained the rationale, quoting extensively from the legislation itself. He spoke at a deliberate pace, with just a twinge of a Southern drawl: “Civil liability actions against gun manufacturers are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law.”

He paused and glanced up at the judge, then continued reading. “The possible sustaining of these actions by a maverick judicial officer would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States.”

Judge Garrison’s face seemed to redden a little at the reference to a maverick judicial officer. “Isn’t there an exception for illegal acts by a dealer or manufacturer?” Garrison asked. “Including the types of straw purchase transactions alleged to have occurred in this case?”

It was a good question, Kelly thought, the first indication that maybe Garrison wasn’t totally drinking the Kool-Aid.

But Case McAllister just shrugged it off. “The exact language of the act says that a manufacturer or seller must aid or abet or conspire with another person to sell a gun to somebody who does not qualify. Here, my client didn’t sell the gun-the dealer did. And my client certainly didn’t aid or abet that sale. We didn’t even know about it until after the shooting.”

“Why isn’t that a jury question?” Garrison countered. “Questions of fact, like whether your client’s conduct was aiding or abetting, should be decided by a jury, not a judge.”

McAllister didn’t hesitate. “Because for hundreds of years criminal acts of third parties have cut off the liability for a seller or manufacturer. The only reason we’re here, with all due respect to Mr. Crawford, is because my client is the only entity associated with this gun that isn’t bankrupt.”

McAllister paused and swallowed, as if he didn’t like making this next part of his argument. “Larry Jamison shot Rachel Crawford. Jarrod Beeson bought the gun illegally. Peninsula Arms sold the gun illegally. My client violated no laws, yet we’re the only one who gets sued.

“We’re here because Mr. Crawford believes MD Firearms has deep pockets. Mr. Crawford wants somebody to pay for what happened to his wife, even if that person or entity acted entirely properly, selling guns legally to a federally licensed firearm dealer. Unfortunately for Mr. Crawford, my client is a gun manufacturer, not an insurance company. No reasonable judge would let this case go to the jury.”