The Appeal

"Should we arrange a meeting with Judge McCarthy?" Barbara asked after a long, heavy pause.

"In a couple of days. Let the dust settle."

Judge McCarthy was up early, and why not? She certainly couldn’t sleep. At 7:30 she was seen leaving her condo. She was trailed to the Belhaven section of Jackson, an older neighborhood. She parked in the driveway of the Honorable Justice James Henry McElwayne.

Tony was hardly surprised by this little get-together.

Mrs. McElwayne greeted her warmly and invited her inside, through the den and kitchen and all the way back to his study. Jimmy, as he was known to his friends, was just finishing the morning papers.

McElwayne and McCarthy. Big Mac and Little Mac, as they were sometimes referred to. They spent a few minutes chatting about Mr. Coley and his astounding press coverage, then got down to business.

"Last night, I went through my campaign files," McElwayne said as he handed over a folder an inch thick. "The first section is a list of contributors, beginning with the heavy hitters and going south. All the big checks were written by trial lawyers."

The next section summarized his campaign’s expenses, numbers that Sheila found hardto believe. After that there were reports from consultants, sample ads, poll results, a dozen other campaign-related reports.

"This brings back bad memories," he said.

"Sorry. This is not what I wanted, believe me."

"You have my sympathy."

"Who’s behind this guy?"

"I thought about it all night. He could be a decoy. He’s definitely a nut. Whatever he is, you can’t take him lightly. If he’s your only opponent, sooner or later the bad guys will find their way into his camp. They’ll bring their money. And this guy with a fat checkbook could really be frightening."

McElwayne had once been a state senator, then an elected chancery court judge. He’d fought the political wars. Two years earlier, Sheila watched helplessly as he was savaged and abused in a bitter campaign. At its lowest point, when his opponent’s television ads (later known to be financed by the American Rifle Association) accused him of being in favor of gun control (there is no greater sin in Mississippi), she had told herself that she would never, under any circumstances, allow herself to be so degraded. It wasn’t worth it. She would scamper back to Biloxi, open a little boutique firm, and see her grandchildren every other day Someone else could have the job.

Now she wasn’t so sure. She was angered by Coley’s attacks. Her blood was not yet boiling, but it wouldn’t take much more. At fifty-one, she was too young to quit and too old to start over.

They talked politics for over an hour. McElwayne spun yarns of old elections and colorful politicians, and Sheila gently nudged him back to the battles she now faced.

His campaign had been expertly run by a young lawyer who took a leave of absence from a large Jackson firm. McElwayne promised to call him later in the day and check his pulse. He promised to call the big donors and the local operatives. He knew the editors of the newspapers. He would do whatever he could to protect her seat on the bench.

Sheila left at 9:14, drove nonstop to the Gartin building, and parked.

The Coley announcement was noted at Payton amp; Payton, but little was said. On April 18, the day after, three important events occurred, and the firm had no interest in other news. The first event was well received. The others were not.

The good news was that a young lawyer from the tiny town of Bogue Chitto stopped by and cut a deal with Wes. The lawyer, an office practitioner with no personal injury experience, had somehow managed to become the attorney for the survivors of a pulpwood cutter who’d been killed in a horrible accident on Interstate 55 near the Louisiana line. According to the highway patrol, the accident had been caused by the recklessness of the driver of an eighteen-wheeler owned by a large company. An eyewitness was already on record stating that the truck passed her in a wild rush, and she was doing "around" seventy miles per hour. The lawyer had a contingency agreement that would give him 30 percent of any recovery. He and Wes agreed to equally split it. The pulpwood cutter was thirty-six years old and earned about $40,000 a year. The math was easy. A million-dollar settlement was quite possible. Wes drew up a lawsuit in less than an hour and was ready to file.

The case was especially gratifying because the young lawyer chose the Payton firm on account of its recent reputation. The Baker verdict had finally attracted a worthwhile client.

The depressing news was the arrival of Krane’s appellant brief. It was 102 pages long-twice the limit-and gave every impression of being beautifully researched and written by an entire team of very bright lawyers. It was too long and two months late, but the concessions had been granted by the court. Jared Kurtin and his men had been very persuasive in their arguments for more time and more pages. It was, obviously, not a routine case.

Mary Grace would have sixty days to respond. After the brief was gawked at by the rest of the firm, she hauled it to her desk for the first reading. Krane was claiming a grand total of twenty-four errors at trial, each worthy of correction on appeal.

It began pleasantly enough with an exhaustive review of all the comments and rulings by Judge Harrison that allegedly revealed his intense bias against the defendant.

Then it challenged the selection of the jury. It attacked the experts called on behalf of Jeannette Baker: the toxicologist who testified as to the near-record levels of BCL and cartolyx and aklar in Bowmore’s drinking water; the pathologist who described the highly carcinogenic nature of these chemicals; the medical researcher who described the record rate of cancer in and around Bowmore; the geologist who tracked the toxic wastes through the ground and into the aquifer under the town’s well; the driller who drilled the test holes; the doctors who performed the autopsies on both Chad and Pete Baker; the scientist who studied pesticides and said ghastly things about pillamar 5; and the most crucial expert, the medical researcher who linked BCL and cartolyx to the cancerous cells found in the bodies. The Paytons had used fourteen expert witnesses, and each was criticized at length and declared unqualified. Three were described as charlatans. Judge Harrison was wrong time and again for allowing them to testify. Their reports, entered into evidence after lengthy fights, were picked apart, condemned in scholarly language, and labeled as "junk science." The verdict itself was against the overwhelming weight of the evidence and a clear indication of undue sympathy on the part of the jury. Harsh but skillful words were used to attack the punitive element. The plaintiff fell far short in her efforts to prove that Krane had contaminated the drinking water either by gross negligence or by outright intent. Finally, the brief ended with a strident plea for a reversal and new trial, or, better yet, an outright dismissal by the supreme court. "This outrageous and unjustified verdict should be reversed and rendered," it read in closing. In other words, throw it out forever.

The brief was well written, well reasoned, and persuasive, and after two hours of nonstop reading Mary Grace finished it with a splitting headache. She took three Advil, then gave it to Sherman, who eyed it with all the caution he would have given a rattlesnake.

The third event, and the most alarming news, came in a phone call from Pastor Denny Ott. Wes took it after dark, then walked to his wife’s office and closed the door.

"That was Denny," he said.

As Mary Grace looked at her husband’s face, her first thought was that another client had passed away. There had been so many sad phone calls from Bowmore that she could almost anticipate one. "What is it?"