by Randy Singer
Kelly stopped, waiting for Blake to make eye contact. He seemed to have a little more spark in his eyes this time.
“Not one of the guns linked to Peninsula Arms was used in the crime by its original purchaser,” Kelly continued. “We’re talking about a massive number of straw purchases, Blake. Three separate citations by the ATF. And guess what the gun of choice was for one out of every four crimes?”
“The MD-9,” Blake said, his voice more sad than irate.
“The MD-9,” Kelly repeated. She said it with more feeling, as if she could somehow stiffen Blake’s backbone with an injection of her own determination.
Next, Kelly opened a folder on MD Firearms and started building her case against them. According to Kelly, the company’s CEO, a woman named Melissa Davids, knew that the MD-9 was designed for one thing—killing people. That’s how they marketed the gun. And it was working. The dull black semi-automatic was preferred by street thugs everywhere, as demonstrated by the factual evidence distilled from the cities’ lawsuits.
“The company makes nearly two hundred bucks each time it sells one,” Kelly explained. “And they sell hundreds through Peninsula Arms, even knowing that many of the guns are being peddled to convicted felons through illegal straw transactions.”
Blake nodded, the sad eyes finally showing some flint. “I’ve seen Melissa Davids on a few TV shows,” he said. “That’s one of the reasons I’m here.” He paused, and Kelly noticed his lip tremble a little. “She says she’s not worried. She says there’s a federal law protecting manufacturers from lawsuits like this one. There’s no remorse about her gun being used in this crime. It’s almost like she’s proud of it.”
The short speech made Kelly realize again how much she wanted to file this case. A crusader needed a crusade. And here was a decent man whose life had been torn apart through no fault of his own. Her heart ached for him.
“There is a federal law,” Kelly said. “It’s called the Protection of Lawful Commerce in Arms Act. It protects dealers and manufacturers from getting sued if a firearm operates the way it was intended and causes injury through criminal activity. But a few courts have declared it unconstitutional. Plus, there is one very important exception.”
Kelly turned to the statute and read the exact language—every word mattered. “This act does not include ‘an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product.’”
She looked up at Blake and thought maybe she detected a thin ray of hope. Family members of victims often tried to find a larger meaning in the death of a loved one. A cause. A greater good.
“I know a lawsuit won’t bring her back,” Blake said. “But maybe it will prevent someone else from going through the hell I’m going through. Maybe it will make Melissa Davids think twice about selling guns to places like Peninsula Arms or this other dealer you mentioned. I just need to know we’re not tilting at windmills.”
Kelly resisted the urge to tell him that tilting at windmills was her specialty. This case wasn’t hopeless. Other crusaders had prevailed on similar facts.
“Remember the D.C. area snipers?”
“Yeah.”
“They got their gun through a straw purchase as well. Bull’s Eye Shooter Supply ran such a shoddy operation that it couldn’t even find the paperwork for 238 guns it sold, including the Bushmaster assault rifle used by John Allen Mohammad and Lee Malvo. The victims filed suit against both Bull’s Eye and the gun manufacturer. They settled for $2.5 million.”
Blake considered this for a moment, studying his hands. When he looked up at Kelly, she saw big tears pooling in his eyes.
“I know you hear this all the time,” he said. “But it’s not about the money. If we file suit—and I still haven’t decided to do it—but if we do… we’re not going to settle.”
Kelly had been litigating at B&W for five years. Every client swore it was a matter of principle. For most, the principle that mattered most was the amount of money the other side offered in settlement. She sensed that Blake might be an exception.
“A case like this won’t be easy,” she said. “It could take years. You and I will be ruthlessly attacked by the NRA and their affiliates.” She paused to emphasize the seriousness of her warning. “Are you ready for that?”
In response, Blake reached into his back pocket and pulled out his wallet. He opened it up and retrieved a small piece of folded paper with a grainy brown and white image on it. He gently unfolded the paper and slid it across the table.
“Here.” He rotated the paper, and the image became clear. It was a 3-D ultrasound. The small baby inside Rachel’s womb was in the traditional upside-down fetal position, looking cozy and content.
The image rocked Kelly. “How far along?”
“Twenty-two weeks.”
Kelly hesitated, trying to divorce her personal life from her professional one. She needed to focus on Blake and Rachel. “Did you know if it was a girl or a boy?”
“A little girl.”
“Had you picked out a name?”
“Rebecca.”
Rachel and Rebecca. Biblical names.
“I’m sorry,” Kelly said. She folded the paper carefully, as if handling a priceless artifact, and handed it back to Blake.
The news media had reported that Rachel was pregnant, so that part was no surprise. But actually seeing the ultrasound and hearing the name somehow made it real. A person. A tiny baby in the safest place imaginable, violently slaughtered.
These were the kinds of thoughts Kelly had been carefully avoiding the past seven years. This case, if the screening committee let her pursue it, could be tougher and more personal than any Kelly had tried yet.
14
Four days later, on a cold Friday morning in November, Kelly presented her proposal to the stone-faced B&W screening committee.
Despite all of its marketing and recruiting pitches to the contrary, B&W was still firmly entrenched in the “good-old-boy culture.” The five unsmiling faces on the screening committee belonged to old, male, white, Ivy League–credentialed lawyers. They were also five of the most conservative and pessimistic partners in the firm, strategically placed on this committee because the firm believed that the best time to fire troublesome clients was five minutes before signing an agreement to represent them.
Kelly made it about halfway through her presentation before the questions started.
“What about the theory of independent superseding cause? Don’t the actions of this guy… what’s his name?”
“Jamison.”
“Right. Don’t his criminal actions cut off the right to pursue MD Firearms?”
Before Kelly could answer, another member of the committee piped in. “She’s not proposing a negligence theory. She’s saying this company creates a public nuisance by selling to rogue dealers. Causation is analyzed differently under a nuisance theory.”
“Actually,” Kelly said, “I’m proposing both.”
“Even if we take this on a contingency fee, who’s going to pay the out-of-pocket costs?”
“I’m proposing that our firm would advance them.”
“Could be a hundred thousand or more,” somebody murmured.
“Have you seen the polls on gun control?” one of the members asked. “A majority of Americans support the Second Amendment.”
“What’s that got to do with anything?” countered another committee member. “We’re not attacking the Second Amendment.”
“That’s semantics,” the first member shot back. “You know as well as I do this is just a backdoor way to take guns out of the hands of American citizens.”
And so it went. The pro-gun members arguing with the anti-gun members and Kelly hardly getting a word in edgewise. The men staked out their positions early, and nobody changed anyone else’s mind. At the end of the meeting, the committee authorized Kelly to take the case by a 3–2 vote.
There was an
unexpected twist, however. John Lloyd, the chairman of the committee and a vote in favor of the case, proposed that B&W take the case pro bono instead of on a contingency fee basis.
At first, Kelly hated the idea. If the firm handled the case on a contingency fee basis and obtained a large verdict, the money collected would count toward her billable hour requirement. But pro bono cases were extra—community service work done above and beyond the normal oppressive billable hour quota.
“If we take the case on a contingency fee,” Lloyd said, “the media will portray us as a bunch of ambulance-chasers trying to profit from gun violence. If we take it pro bono, they’ll applaud us as principled advocates for reform.”
“And we might leave a million dollars on the table,” somebody protested.
Lloyd motioned toward Kelly. “We’re gonna have our firm’s prettiest face all over The Today Show and Nightline and 20/20—no offense, Kelly. How much do you think it would cost us to buy that kind of publicity?”
Kelly blushed a little. She wasn’t afraid of the publicity, but it would be nice to be more than just the firm cover girl. “I think that’s a mistake,” she said. “This case could lead to other cases just like it. This could develop into a very lucrative practice area.”
That thought generated looks of grave concern on the faces of the two partners who had voted against the case. “B&W is a business litigation firm,” one said. “Not a plaintiff’s personal injury firm. I for one don’t want to be known as the law firm that declares war on the Second Amendment.”
John Lloyd took off his glasses and spoke with the gravitas of a peacemaker. “Those are valid concerns, and I’m not proposing that we declare war on the Second Amendment. We’re taking one case, milking all the publicity we can out of it, then going back to our bread and butter.”
It wasn’t exactly a ringing endorsement, but Kelly just wanted out of the room with her case intact. Even though she couldn’t possibly handle her billable hours requirement and this case, in a way it wouldn’t matter. If she won, her reputation would soar, and her lack of billable hours wouldn’t matter. If she lost, all the billable hours in the world wouldn’t save her.
The more she thought about it, the more she liked the idea of taking the case pro bono. Lloyd was right. The liberal media would portray Kelly as the white knight, riding in to save the day against gun violence. Her firm could take the next case on a contingency fee.
“You really want me to do this pro bono?” she asked. Her tone made it clear that it would be a major sacrifice, one she would reluctantly make for the good of the firm.
“I’m afraid so,” John Lloyd said.
“All right,” Kelly said, resisting the urge to smile.
15
Two weeks later, a B&W runner filed a thick lawsuit in Virginia Beach circuit court. A press release quickly followed. In the lawsuit, Kelly was required to provide only general allegations, but she had gone much further. She beefed up the pleadings with lots of specific facts about the MD-9 and the way Peninsula Arms supplied much of the black market in New York, Philadelphia, Baltimore, and D.C.
Fortunately for Kelly, all four of those cities happened to be major media markets.
A week earlier, B&W had hired an outside PR firm to arrange interviews on the most prestigious morning shows for the day after the filing. Accordingly, while the lawsuit was being file-stamped by the Virginia Beach court clerk, Kelly was on a flight from D.C. to New York. She was nervous, but she had learned from the rainmakers at B&W that building a law practice consisted of one part skill and two parts marketing. Besides, this would be a great opportunity to influence the public’s perception of her case, including potential jurors in Virginia Beach. She would look into the cameras and pretend she was talking to a few friends over a nice dinner. How hard could it be?
On Tuesday evening, Kelly was greeted at LaGuardia Airport by PR consultant Jeff Chapman and a limo driver holding a sign with Kelly’s name on it. On the way to the hotel, Jeff briefed Kelly on each interview scheduled for the following day and the types of questions she might expect. Jeff was a big man, gregarious and confident, and his briefing helped Kelly calm down. He seemed to be on a first-name basis with all the hosts and assured Kelly that most of the interviews would be very sympathetic.
“They’ll have to ask hard questions because that’s what they do. But remember, secretly they’ll be cheering you on. If you stumble, they’ll ask a softball question so you can end strong.”
“And then there’s Fox and Friends,” Kelly said.
“Even there, they’ll have to be careful how hard they push. There’s a lot of sympathy for your client.”
* * *
At each studio, Jeff Chapman introduced her to the producers and makeup crews, chitchatting with them like old friends. Kelly breezed through the first few interviews, her only disappointment being that Matt Lauer was taking the day off. Her third interview, ABC’s Good Morning America, was smooth sailing until Diane Sawyer popped the experience question: “If you don’t mind my asking, how long have you been practicing law?”
“Five years,” Kelly replied. She had flashed her smile often that morning, on the advice of Jeff Chapman. But she didn’t smile now. “I’m the same age Rachel Crawford was when she was gunned down.”
“Great answer!” Jeff said after the interview. All morning long, he had been telling her that she was a natural.
I could get used to this, Kelly thought.
* * *
CNN was probably her best interview. They had assembled a whole package of graphics based on the statistics Kelly had highlighted in her lawsuit. As an extra bonus, they had uncovered some details about several other crimes involving guns sold by Peninsula Arms, particularly the MD-9. Toward the end of the interview, they actually produced an MD-9 on the set, assuring Kelly it was not loaded.
It looked evil, lying on the anchor desk—flat and boxy, dull black with a blunt barrel. “Do you think guns like this should be legal?” the anchor asked.
In response, Kelly launched into her speech about why criminals prefer guns like the MD-9. Law-abiding citizens have no use for them, she argued. And the NRA can no longer use the slippery slope argument, saying if we outlaw guns like this we will eventually come after hunting rifles and pistols. The Supreme Court took that possibility away in the Heller case.
Fifteen minutes later, Kelly was being whisked into the less friendly environs of the Fox News studios. Jeff made his usual round of introductions and Kelly was ushered into makeup. As she climbed into the chair, Jeff explained that he had some other pressing appointments and had to run. This was her last interview. Kelly should just call a cab to take her back to the hotel. Jeff would meet her there for lunch.
Kelly thanked him and settled into the chair while a perky young woman touched up the makeup that had been layered on at the other shows. “You don’t need much help from me,” the woman said.
“Thanks.”
“You’ve got about five minutes before they start your segment,” the woman said when she had finished. “The greenroom is right down the hall.”
Kelly thanked her and headed to the greenroom. Things had been happening so fast all morning, she needed a few minutes to clear her head. So far, she had survived her media baptism relatively unscathed. One more interview and she could return to the safety of her office in D.C.
The Fox News greenroom was a clone of the other greenrooms Kelly had seen that morning. A sofa, a few leather chairs, a coffee table, and a large mirror on a side wall. Plaques hung around the room along with signed photos from celebrities expressing best wishes to the hosts. Munchies and drinks lined a table along one wall, while a flat-screen LCD television broadcast Fox News on the other. A middle-aged man with a full head of gray hair was talking to a razor-thin and diminutive woman in the middle of the room. They stopped talking when Kelly entered.
The man extended a meaty hand. “I’m Congressman Parker,” he said.
He looked older
in real life, his skin wrinkled and beginning to spot. He was a conservative icon, sixty-five or seventy years old, certainly no fan of gun litigation.
“Kelly Starling.”
They shook hands, Parker squeezing hard enough to send a message. “I know who you are.”
Kelly ignored the comment and extended her hand to the woman standing in front of her. She estimated the woman to be about five-two or -three and could tell she was wound tight.
Maybe it was because Kelly had just sued her company.
Melissa Davids ignored Kelly’s outstretched hand. Kelly smiled and withdrew it.
“I didn’t know we were appearing together,” Kelly said.
“Now you do,” Davids responded.
16
Kelly saw no reason to get into a big argument in the greenroom. “It’s nothing personal,” she said. “I’m just representing my client.”
She started to walk away and take a seat, but Davids had other ideas. “Have you ever been raped?” she asked.
Kelly stared at her for a second, sure she’d misunderstood the question. “Excuse me?”
“I was. At age sixteen. I spent two years learning jujitsu and was assaulted again at age eighteen. That’s when I bought my first gun.” Davids took a half step closer and lowered her voice. “Nobody’s touched me since.”
This woman is hard-core.
“Look, I know you mean well,” Davids continued. “You’re no doubt one of those big-hearted liberals all fired up about women’s issues. You want to empower women?”
Kelly crossed her arms, choosing not to respond.
“Teach them to shoot. A gun is a woman’s best friend.”
If Kelly hadn’t heard it with her own ears, she probably wouldn’t have believed it. Davids was like a character from a comic book.
“Thanks for the advice,” Kelly said.