The Appeal

The Appeal Page 15

The winter meeting of the Mississippi Trial Advocates (MTA) was held each year in Jackson, in early February while the legislature was still in session.

It was usually a weekend affair with speeches, seminars, political updates, and the like. Because the Paytons currently had the hottest verdict in the state, the trial lawyers wanted to hear from them. Mary Grace demurred. She was an active member, but it wasn't her scene. The gatherings typically included long cocktail hours and war stories from the trenches. Girls were not excluded, but they didn't exactly fit in, either. And someone needed to stay home with Mack and Liza.

Wes reluctantly volunteered. He, too, was an active member, but the winter meetings were usually boring. The summer conventions at the beach were more fun and family oriented, and the Payton clan had attended two of them.

Wes drove to Jackson on a Saturday morning and found the mini-convention at a downtown hotel. He parked far away so none of his fellow trial lawyers would see what he was driving these days. They were noted for their flashy cars and other toys, and Wes, at the moment, was embarrassed by the ragged Taurus that had survived the trip from Hattiesburg.

He would not spend the night, because he could not afford a hundred bucks for a room.

It could be argued that he was a millionaire, in someone's calculation, but three months after the verdict he was still squeezing every dime. Any payday from the Bowmore mess was a distant dream. Even with the verdict, he still questioned his sanity in getting involved with the litigation.

Lunch was in the grand ballroom with seating for two hundred, an impressive crowd.

As the preliminaries dragged on, Wes, from his seat on the dais, studied the crowd.

Trial lawyers, always a colorful and eclectic bunch. Cowboys, rogues, radicals, longhairs, corporate suits, flamboyant mavericks, bikers, deacons, good ole boys, street hustlers, pure ambulance chasers, faces from billboards and yellow pages and early morning television.

They were anything but boring. They fought among themselves like a violent family, yet they had the ability to stop bickering, circle the wagons, and attack their enemies. They came from the cities, where they feuded over cases and clients, and they came from the small towns, where they honed their skills before simple jurors reluctant to part with anyone's money. Some had jets and buzzed around the country piecing together the latest class action in the latest mass tort. Others were repulsed by the mass tort game and clung proudly to the tradition of trying legitimate cases one at a time. The new breed were entrepreneurs who filed cases in bulk and settled them that way, rarely facing a jury. Others lived for the thrill of the courtroom.

A few did their work in firms where they pooled money and talent, but firms of trial lawyers were notoriously difficult to keep together. Most were lone gunmen too eccentric to keep much of a staff. Some made millions each year, others scraped by, most were in the $250,000 range. A few were broke at the moment. Many were up one year and down the next, always on the roller coaster and always willing to roll the dice.

If they shared anything, it was a streak of fierce independence and the thrill of representing David against Goliath.

On the political right, there is the establishment, the money, and big business and the myriad groups it finances. On the left, there are the minorities, labor unions, schoolteachers, and the trial lawyers. Only the trial lawyers have money, and it's pocket change compared with big business.

Though there were times when Wes wanted to choke them as a whole, he felt at home here. These were his colleagues, his fellow warriors, and he admired them. They could be arrogant, bullish, dogmatic, and they were often their own worst enemies. But no one fought as hard for the little guy.

As they lunched on cold chicken and even colder broccoli, the chairman of the legislative affairs committee delivered a rather bleak update on various bills that were still alive over at the capitol. The tort reformers were back and pushing hard to enact measures designed to curtail liability and close courthouse doors. He was followed by the chairman of political affairs, who was more upbeat. Judicial elections were in November, and though it was too early in the year to be sure, it appeared as though their "good" judges at both the trial and the appellate levels would not draw serious opposition.

After frozen pie and coffee, Wes Payton was introduced and received a rousing welcome.

He began by apologizing for the absence of his co-counsel, the real brains behind the Bowmore litigation. She hated to miss the event but believed she was needed more at home with the kids. Wes then launched into a long recap of the Baker trial, the verdict, and the current state of other lawsuits against Krane Chemical.

Among such a crowd, a $41 million verdict was a much-revered trophy, and they couldhave listened for hours to the man who obtained it. Only a few had felt firsthand the thrill of such a victory, and all of them had swallowed the bitter pill of a bad verdict.

When he finished, there was another round of boisterous applause, then an impromptu question-and-answer session. Which experts had been effective? How much were the litigation expenses? (Wes politely refused to give the amount. Even in a room of big spenders, the sum was too painful to discuss.) What was the status of settlement talks, if any? How would the class action affect the defendant? What about the appeal?

Wes could have talked for hours and kept his audience.

Later that afternoon, during an early cocktail hour, he held court again, answering more questions, deflecting more gossip. A group that was circling a toxic dump in the northern part of the state descended on him and wheedled advice.

Would he take a look at their file? Recommend some experts? Come visit the site?

He finally escaped by going to the bar, and there he bumped into Barbara MeUinger, the savvy and battle-weary executive director of the MTA and its chief lobbyist.

"Got a minute?" she asked, and they retreated to a corner where no one could hear them.

"I've picked up a frightening rumor," she said, sipping gin and watching the crowd.

MeUinger had spent twenty years in the halls of the capitol and could read the terrain like no other. And she was not prone to gossip. She heard more than anyone, but when she passed along a rumor, it was usually more than just that.

"They're coming after McCarthy," she said.

"They?" Wes was standing next to her, also watching the crowd.

"The usual suspects-Commerce Council and that group of thugs."

"They can't beat McCarthy."

"Well, they can certainly try."

"Does she know it?" Wes had lost interest in his diet soda.

"I don't think so. No one knows it."

"Do they have a candidate?"

"If they do, I don't know who it is. But they have a knack for finding people to run."

What, exactly, was Wes supposed to say or do? Campaign funding was the only defense, and he couldn't contribute a dime.

"Do these guys know?" he asked, nodding at the little pockets of conversation.

"Not yet. We're lying low right now, waiting. McCarthy, typically, has no money in the bank. The Supremes think they're invincible, above politics and all that, and by the time an opponent pops up, they've been lulled to sleep."

"You got a plan?"

"No. It's wait and see for now. And pray that it's only a rumor.

Two years ago, in the McElwayne race, they waited until the last minute to announce, and by then they had a million plus in the bank."

"But we won that race."

"Indeed. But tell me you were not terrified."

"Beyond terrified."

An aging hippie with a ponytail lurched forward and boomed, "Y'all kicked their assesdown there." His opening gave every impression that he would consume at least the next half hour of Wes's life. Barbara began her escape. "To be continued," she whispered.

Driving home, Wes savored the occasion for a few miles, then slipped into a dark funk over the McCarthy rumor. He kept nothing from Mary Grace, and after dinner that night they slipped out of the apartment and went for a long walk. Ramona and the children were watching an old movie.

Like all good lawyers, they had always watched the supreme court carefully. They read and discussed every opinion, a habit they started when their partnership began and one they clung to with conviction. In the old days, membership on the court changed little. Openings were created by deaths, and the temporary appointments usually became permanent. Over the years, the governors had wisely chosen the fill-ins, and the court was respected. Noisy campaigns were unheard-of. The court took pride in keeping politics out of its agenda and rulings. But the genteel days were changing.

"But we beat them with McElwayne," she said more than once.

"By three thousand votes."

"It's a win."

Two years earlier, when Justice Jimmy McElwayne got himself ambushed, the Paytons had been too mired in the Bowmore litigation to contribute financially. Instead, they had devoted what little spare time they had to a local committee. They had even worked the polls on Election Day.

"We've won the trial, Wes, and we're not losing the appeal," she said.

"Agreed."

"It's probably just a rumor."

The following Monday afternoon, Ron and Doreen Fisk sneaked away from Brookhaven and drove to Jackson for a late meeting with Tony Zachary. There were some people they needed to meet.

It had been agreed that Tony would serve as the official director of the campaign.

The first person he brought into the conference room was the proposed director of finance, a sharply dressed young man with a long history of statewide campaigns, in a dozen states no less. His name was Vancona, and he quickly, and confidently, laid out the basic structure of their financial plan. He used a laptop and a projector and everything was flashed against a white screen, in vivid color. On the income side, the coalition of supporters would contribute $2.5 million. Many of these were the folks Ron had met in Washington, and for good measure Vancona presented a long list of groups. The names were a blur, but the sheer number was impressive. They could expect another $500,000 from individual donors around the district, moneys that would be generated when Ron hit the stump and began to win friends and impress folks.

"I know how to raise the money," Vancona said more than once, but without being offensive.

Three million dollars was the magic number, and it virtually guaranteed a win. Ron and Doreen were overwhelmed.

Tony watched them carefully. They weren't stupid. They were just as easily misled as anyone else would be under the circumstances. They asked a few questions, but only because they had to.

On the expense side, Vancona had all the numbers. Television, radio, and newspaper ads, direct mail, travel, salaries (his would be $90,000 for the venture), office rental, all the way down to bumper stickers, yard signs, billboards, and rental cars.

His grand total was $2.8 million, which left some wiggle room.

Tony slid over two thick binders, each majestically labeled: "SUPREME COURT, SOUTHERN DISTRICT, RON FISK VERSUS SHEILA MCCARTHY CONFIDENTIAL."

"It's all in there," he said.

Ron flipped some pages, asked a few benign questions.

Tony nodded gravely as if his boy had genuine insight.

The next visitor-Vancona stayed in the room, a member of the team now-was a saucy sixty-year-old woman from D.C. whose specialty was advertising. She introduced herself as Kat something or other. Ron had to glance at his notebook to confirm-Broussard.

Next to her name was her title: Director of Advertising.

Where had Tony found all these people?

Kat was filled with big-city hyperactivity. Her firm specialized in state races and had worked in over a hundred.

What's your winning percentage? Ron wanted to ask, but Kat left few openings for questions. She adored his face and voice and felt confident they would put together the "visuals" that would adequately convey his depth and sincerity. Wisely, she spent most of her time looking at Doreen as she talked, and the girls connected. Kat took a seat.

Communications would be handled by a Jackson firm. Its boss was another fast-talking lady named Candace Grume, and, not surprisingly, she had vast experience in these matters. She explained that a successful campaign must coordinate in communications at all times. "Loose lips sink ships," she chirped. "They also lose elections." The current governor was a client, and she saved the best for last. Her firm had represented Senator Rudd for over a decade. Enough said.

She yielded the floor to the pollster, a brainy statistician named Tedford who managed to claim, in less than five minutes, that he had correctly predicted the outcome of virtually every race in recent history. He was from Atlanta. If you're from the big city of Atlanta and you find yourself in the outback, then it's important to remind everyone there that you are indeed from Atlanta. After twenty minutes they were tired of Tedford.

The field coordinator was not from Atlanta but from Jackson. His name was Hobbs, and Hobbs looked vaguely familiar, at least to Ron. He boasted that he had been running successful campaigns in the state- sometimes out front, sometimes in the background-for fifteen years. He threw out the names of his winners without a thought of mentioning his losers. He preached about the necessity of local organization, grassroots democracy, knocking on doors, turning out the vote, and so on. He had an oily voice, and at times his eyes glowed with the fervor of a street preacher.

Ron disliked him immediately. Later, Doreen would admit she found him charming.

Two hours after the parade began, Doreen was almost catatonic, and Ron's notepad was bristling with the drivel he wrote in an effort to remain engaged.

The team was now complete. Five well-paid professionals. Six including Tony, but his salary would be covered by Judicial Vision. Ron, poring through his notebook while Hobbs was ranting, found the column that projected "professional salaries" at $200,000 and "consultants" at $175,000. He made a note to quiz Tony about these amounts later. They seemed much too high, but then what did he know about the ins and outs of a high-powered campaign?

They broke for coffee, and Tony herded the others out of the room. They left with warm farewells, excitement about the thrilling race ahead, and promises to meet again as soon as possible.

When Tony was alone again with his clients, he suddenly looked tired. "Look, I know this is a lot. Forgive me, but everybody is busy and time is crucial. I thought one big meeting would work better than a bunch of smaller ones."

"No problem," Ron managed to say. The coffee was working.

"Remember, this is your campaign," Tony continued, straight-faced.

"Are you sure about that?" Doreen asked. "Doesn't really feel like it."

"Oh yes, Doreen. I've assembled the best team available, but you can cut any one of them right now. Just say the word, and I'll be on the phone finding a replacement.

Someone you don't like?"

"No, it's just that-"

"It's overwhelming," Ron admitted. "That's all."

"Of course it is. It's a major campaign."

"Major campaigns don't have to be overwhelming. I realize I'm a novice here, but I'm not naive. Two years ago in the McElwayne race, the challenger raised and spent about two million dollars and ran a great race. Now we're tossing around numbers that are far more than that. Where is the money coming from?"

Tony snapped on his reading glasses and reached for a binder. "Well, I thought we covered that," he said. "Vancona went over the numbers."

"I can read, Tony," Ron shot across the table. "I see the names and amounts. That's not the question. I want to know why these people are willing to pony up three million bucks to support someone they've never heard of."

Tony slowly peeled off his reading glasses with an air of exasperation. "Ron, haven't we covered this a dozen times? Last year, Judicial Vision spent almost four million to elect a guy in Illinois. We spent close to six million in Texas. These numbers are outrageous, but winning has become very expensive. Who's writing the checks?

The folks you met in Washington. The economic development movement. The conservative Christians. Doctors who are being abused by the system. These are people who are demanding change, and they are willing to pay for it."

Ron drank some more coffee and looked at Doreen. A long, silent moment passed. Tony re-shifted, cleared his throat, and said softly, "Look, if you want out, then just say the word. It's not too late."

"I'm not quitting, Tony," Ron said. "But this is too much for one day. All these professional consultants and-"

"I'll handle these people. That's my job. Yours is to hit the stump and convince the voters you're the man. The voters, Ron and Doreen, will never see these people.

They will never see me, thank God. You are the candidate. It's your face, your ideas, your youth and enthusiasm that will convince them. Not me. Not a bunch of staff members."

Fatigue overcame them and the conversation lagged. Ron and Doreen gathered up the bulky notebooks and said their goodbyes. The drive home was quiet, but not unpleasant. By the time they drove through an empty downtown Brookhaven, they were once again excited by the challenge.

The Honorable Ronald M. Fisk, Justice, Mississippi Supreme Court.