The Fall of the House of Zeus

by Curtis Wilkie

  Funderburg turned to Scruggs. “Dickie,” he asked, “do you have a problem with it?”

  Speaking for the first time, Scruggs said, “No, I think you’re entitled to go talk to your partners about this.”

  But Jones sensed that he and Funderburg were outnumbered. He picked up his briefcase and prepared to leave, struggling to express his disappointment. “I thought we were really going to come here to talk about how we could resolve this,” he said. Instead, he said he had been subjected to a “muscle job” by Barrett.

  Scruggs, who seemed passive during the argument, finally spoke up as Jones and Funderburg walked out of the room. It was apparent that the two men had alienated the other members of the group. “You shouldn’t be surprised,” Scruggs told Jones.

  Driving from the meeting, Jones got a speeding ticket. At home late that afternoon, he wandered around his yard in a deep funk. For the first time in his life, he felt terribly deceived.

  His partner agonized over their ouster through the weekend. On Sunday afternoon Funderburg composed an angry email, which he sent to “Mr. Scruggs.” Funderburg wrote of his pride in having helped represent Scruggs in the old disputes over fees. “I felt you were a fair man and that Wilson and Luckey were accusing you of vile conduct to get money.” Then his tone changed as he addressed the action by Scruggs Katrina Group. “You went along with it. I have looked in the mirror all weekend and tried to figure out how I could be so stupid.”

  Funderburg was just warming up. He continued:

  We DEFENDED you when people said you were greedy, or were a back-stabber, or a liar, or anything else. Good lord, we trusted you as a friend. Well … good job. You have developed a good routine. It worked. But go to your grave knowing that you have shaken my belief in everything I hold dear. I did not believe that people like you really existed. I am ashamed and will always be ashamed of having defended you and protected you. You are a man without honor and you should know that about yourself. You betrayed your friends without even a phone call. You never even tried to work it out with John or me. You just sat there and let Barrett do the talking. Whether you believe it or not, neither Don Barrett nor David Nutt would have stayed up nights worrying about you. I doubt they give a damn about you or your family. You all deserve one another.

  Meanwhile, Johnny Jones contemplated his firm’s options. He had asked Jack Dunbar to seek mediation, and that had failed. Arbitration had been ruled out. He decided his last resort was a lawsuit.

  He turned to Danny Cupit, because, as he said later, he didn’t want to retain a lawyer “who would light the fuse and let it blow up.”

  Cupit explained that he was not in a position to sue Scruggs. Instead, Cupit suggested another name to Jones: Grady Tollison. Others might be timorous about challenging Zeus, the King of Torts, Cupit told Jones, but Tollison would not hesitate to take on Scruggs.

  CHAPTER 11

  Grady Tollison was known around Oxford as a man with strong opinions, opinions expressed so forcefully that he antagonized acquaintances and sometimes exasperated his friends. He held a Manichean view of the world in which he placed himself on the side of light and set his adversaries in the fields of darkness. Over the years, he developed a reputation for tenacity in the courtroom and righteous indignation in private conversations. He often broke the peace of social gatherings with shouts and sneers as he vented his rage. Tollison could be obnoxious. But no one denied that he was a damned good lawyer and a robust advocate for any client.

  In 1994 he defended the embattled state insurance commissioner, George Dale, after Dale had been indicted on charges of giving preferential treatment to Blue Cross and Blue Shield of Mississippi in exchange for campaign contributions. Federal charges against Dale were dropped.

  During one of the more curious criminal proceedings in the state in recent memory, Tollison’s firm also defended Lewis Nobles, president of Mississippi College, a Southern Baptist institution steeped in fundamentalist doctrine. Nobles was accused by the school of embezzling $3 million and charged by federal authorities with using the money to pay for prostitutes. When Nobles’s office was raided, agents found $27,000 in cash, pictures of naked women, and a bottle of strychnine nestled with biblical treatises. Nobles fled. After the FBI tracked him down to a trysting spot in a San Francisco hotel, he gulped down poison in an attempt to kill himself.

  Tollison reveled in high-profile criminal defense cases, but he was also known as a hard-hitting plaintiff’s attorney. Though he rarely acted as if he were a candidate in a popularity contest, his colleagues thought enough of his abilities to elect Tollison president of the state bar association. As one of his contemporaries said of him, “Grady’s got a good mind. If he had any kind of Dale Carnegie training he’d be a hell of a fellow.”

  For such an unusual character, it was not surprising that Tollison arrived at the practice of law through an unorthodox fashion. He was the product of a white working-class neighborhood in Memphis, one of the first to be taken over by blacks as the city’s population shifted. His father had been a soldier in Ed “Boss” Crump’s political machine, an organization that had so many votes locked up in Memphis that its influence extended throughout Tennessee. So the son came by Democratic Party politics naturally.

  While Elvis Presley, a kid who transferred from Tupelo, Mississippi, was matriculating at Humes High School, Tollison was attending Southside High, another gritty public school across town. Both young men had their own ways to break out of their backgrounds.

  Tollison enrolled in a small, prestigious liberal arts college, Southwestern at Memphis, now known as Rhodes College. He played football, and it is easy to picture him on the field while crowds of a few hundred followed low-stakes contests with the likes of Sewanee and Millsaps. He was short and bulky, built as strongly through the chest as a bulldog. Tollison was a natural lineman, and a good one. But he excelled in academic work, too. He won spots in honor societies and a listing in Who’s Who in American Universities and Colleges.

  In 1962 he enlisted in the Marine Corps, spent three years in their service, and reached the rank of sergeant. It is easy to imagine him there, too.

  In 1965 he was hired as head football coach at the new Coahoma County High School in Clarksdale, Mississippi. During the struggle over desegregation in the Delta, CCHS had been created as a school that would be open to blacks. Segregationists were willing to sacrifice the school’s “purity” in order to try to preserve an all-white status at other public facilities in Clarksdale. In the throes of the desegregation process, a certain esprit developed among members of the CCHS faculty. They were willing to accept the challenge of integration and make it work. Tollison was comfortable with the situation. His political views as a progressive Democrat were maturing. After moving to Clarksdale, he asked to be introduced to Aaron Henry, a local druggist who was one of the most formidable civil rights figures in the South, and he identified with a tiny coterie of white liberals in the town.

  When Tollison expressed an interest in law school, it seemed odd that the most conservative bank in Clarksdale agreed to sponsor him. But the arrangement enabled Tollison to burnish his curriculum vitae. At Ole Miss, he became editor of the Mississippi Law Journal, a position reserved for the best law student, and he followed up with the highest grade point average in his graduating class. Instead of returning to Clarksdale to become a trust officer in the bank, Tollison stayed in Oxford to help establish a beachhead there for a prominent Clarksdale law firm that included Jack Dunbar and Charlie Merkel. Tollison’s performance was so impressive that within a few years he joined the masthead of Holcomb, Dunbar, Connell, Merkel and Tollison.

  He also plunged into Democratic politics in the state and served on a biracial delegation from Mississippi to a Democratic National Convention. Tollison was expanding his horizons.

  The firm attracted some interesting names, including an Ole Miss superstar, Robert Khayat. After giving up his professional football career, Khayat had joined the law school fac
ulty before leaving the academic setting to go into private practice with Tollison. In a smart commercial investment, the two men bought the most conspicuous building on Oxford’s square, a three-story structure known as the Thompson House, and rented office space to their own law firm. But there was a rupture in the relationship between Tollison and Khayat, who left the firm and sold his interest in the building to Tollison. And after Dunbar moved from Clarksdale to Oxford to take over as head of operations there, an unpleasant break occurred in the friendship between Tollison and Dunbar, too. Tollison left to start his own firm, and sued Dunbar on the way out.

  Tollison lost the security of belonging to a successful shop full of lawyers, but he held a trump card: the old Thompson House. Just as Oxford had begun to acquire a reputation as one of the most attractive locales in Mississippi, Tollison groomed the old building, which had once housed a hotel, into a eye-catching office and turned the upper floors into chic living quarters for himself.

  His firm prospered and grew. Tollison offered positions to family members, in-laws, and promising newcomers just out of law school. But the board by the front door listing associates in the Tollison Law Firm had to be updated frequently to account for the divorces and disagreements that changed the cast of characters inside. In one tragic episode, a prominent Oxford businessman climbed to the second-floor balcony of Tollison’s office before dawn one day and shot himself to death.

  One figure remained at the firm through all its turnovers: Tollison’s son Gray. He proved to be a major asset. Gray was not only quick-witted, like his father, but far more easygoing. People liked Gray Tollison. They elected him state senator from Oxford’s district in 1995. In a legislature blighted by many burned-out bulbs, young Tollison quickly rose in respect, and he began to be mentioned as a possible gubernatorial candidate for the Democrats someday.

  When Johnny Jones took his grievance against Dick Scruggs and the rest of the Katrina group to Grady Tollison after the bitter meeting in Jackson in early March, he could not have found a more enthusiastic counsel.

  Tollison had never particularly liked Scruggs, even though Scruggs had provided financial support to Gray Tollison’s campaigns and had cashed an IOU with Lieutenant Governor Amy Tuck to ensure that the young state senator got a coveted committee assignment. The older Tollison did not like Scruggs’s swagger, and he felt that Scruggs was naïve in his dealings with Mississippi politicians.

  Scruggs sensed Tollison’s resentment. In spite of his contributions of thousands of dollars to Democratic candidates and his support of the trial lawyers’ political arm, ICEPAC, Scruggs felt he had never been truly accepted by Tollison and his Democratic pals. He knew they considered him a closet Republican. After all, Trent Lott was his brother-in-law, and Scruggs had occasionally sided with Republican candidates.

  There was one particular apostasy that grated on Tollison. When Susan Collins, the moderate Republican senator from Maine, came to speak at Ole Miss, Scruggs helped sponsor a fund-raiser for her. It was in gratitude for Collins’s vote in a Republican caucus that gave back a leadership position to Lott. But that was not enough of an excuse for Tollison.

  In the four years since Scruggs had moved to Oxford, Tollison’s bitterness had only grown. Though known as one of the top trial lawyers in the state, Tollison had never been a participant in any of Scruggs’s big licks. Instead, Tollison had built his own practice in Oxford. And he curried a name for himself by hosting elaborate parties for a panoply of important visitors from around the state following Ole Miss football games. He also sponsored Democratic fund-raisers at the Thompson House, which offered guests a sweeping panorama of the Oxford square.

  When Scruggs arrived, it was as though the town was not big enough for both of them. While the Tollison Law Firm held down a spot on the northern corridor out of the square, Scruggs bought office space on the west side of the square and underwrote a costly renovation that transformed the upstairs space from dingy student apartments into an elegant suite. Scruggs even built a large balcony that overlooked the old courthouse and peeked around the corner at Tollison’s office. If the four sides surrounding the Oxford courthouse were represented on a Monopoly board, it was as if Scruggs had come in and seized Park Place and Boardwalk.

  Within a few months, Scruggs had supplanted Grady Tollison as the Big Dog Democrat in Oxford. High-octane receptions were being scheduled at the Scruggs Law Firm. In 2004, Scruggs fêted the Senate Democratic leader Tom Daschle at a lunch in his office. Many of the movers and shakers in Mississippi’s community of trial lawyers were on hand to deliver campaign contributions to the national Democratic cause. John Grisham came from Charlottesville, Virginia, where he spent most of his time, to introduce Daschle and lend the event a measure of pizzaz. Tollison attended the gathering, but grumbled privately that it was he, not Scruggs, who had arranged for Grisham to be there, because Tollison once represented the novelist’s father.

  Tollison’s disposition was not helped when the rear of the Thompson House buckled and began to collapse a couple of years later, leading to the condemnation of part of the building. Unsightly barricades had to be put up along North Lamar Avenue to ensure that bricks did not fall on passersby. It seemed that townspeople were laughing at Tollison’s distress and, at the same time, sucking up to Scruggs, who showered local charities and causes with substantial contributions.

  Tollison’s animosity boiled to the surface at a meeting in Columbus, Ohio, involving a number of lawyers sorting through distribution of some of the tobacco funds. After an earlier meeting in the same city, Scruggs had given Tollison a ride back to Oxford in his private jet. Things were not so cozy at a later get-together. Tollison felt that Scruggs had been working, without authority, to change the terms of the agreement among the anti-tobacco lawyers and had claimed false credit for hammering out a compromise. He confronted Scruggs in the hallway of the Ohio courthouse where negotiations were taking place. Reverting to the harsh discipline he had learned in Marine training at Parris Island, Tollison yelled at Scruggs, “Do you understand what fiduciary duty is? Do you!” Other lawyers involved in the case, huddled in a nearby conference room, were astounded when they overheard the outburst.

  When Scruggs flew home that night, he did not invite Tollison to join him, and Tollison, who had been counting on the ride, had to spend the night ingloriously in an airport hotel and catch a commercial flight back to Memphis the next day.

  Less than two weeks after he had been banished from the Scruggs Katrina Group, Johnny Jones and Tollison, newly retained, prepared to file suit against Jones’s erstwhile partners. It was a labor that inspired Tollison to rhetorical heights. He quickly whipped up a harsh eighteen-page attack portraying Scruggs and others as greedy and deceitful. He wrote, “The facts in this case show reprehensible conduct” by the Scruggs team. Though four firms in the group were all listed as defendants, Scruggs stood out as the obvious target.

  Marshaling material provided by Jones, Tollison itemized no fewer than 130 points. He charged that “Scruggs and Barrett conspired among themselves and others” to set Jones’s allocation “at a ridiculously low figure.” During three months of arguments that had gone on since Scruggs’s December telephone call, Jones had been subjected to a campaign “to bully and cajole” him into accepting less than his fair share, the suit contended. “These intentional, egregious acts were intended to cause and did cause extreme distress” in Jones and members of his firm.

  Jones’s suit demanded 20 percent of the fees collected by Scruggs Katrina Group—a claim that would be worth roughly $5 million—plus 20 percent of fees the consortium might be awarded in the future. In addition, it called for heavy punitive damages against Scruggs and Barrett to “deter such conduct in the future” and to serve “as an example to others that such conduct would not be tolerated.”

  · · ·

  On March 15, 2007, Tollison took the papers to file at the Lafayette County courthouse, across the street from his firm. He also carried a one-
page attachment he had prepared in advance. That page contained an “order” to put the lawsuit under seal for four days, giving Tollison authority either to unseal the complaint by the afternoon of March 19 or to dismiss it altogether. On the single sheet, Tollison had left blank places for a docket number, a date, and a signature by a circuit court judge.

  He encountered Judge Henry Lackey at the circuit clerk’s office. As one of only three judges in the district, Lackey was well known to members of the bar in Oxford. Tollison’s relationship with the judge was cordial, but not close. Because of the informality of the court system, Tollison effectively chose Lackey to preside over the Jones case when he asked him to sign the document sealing Jones’s complaint. Tollison explained that the lawsuit contained derogatory comments about lawyers and suggested that it might best be kept secret from the public. As Lackey would describe it later, Tollison told him “he hated to hang out our dirty wash in public.”

  In Mississippi, where judges are short-staffed, it is not unusual for attorneys to prepare an order for a judge to sign—if the language is satisfactory. But in this case, the order given to Lackey provided Tollison with a trigger to use against Scruggs and his co-defendants: the threat that the complaint would be made public in four days.

  Lackey signed the order. It was the first time he had ever put a case under seal.

  With the judge’s order in hand, Tollison unleashed a parallel action. He sent the Scruggs office a copy of Jones’s suit along with a two-paragraph letter. “The complaint is currently under seal by order of the court at our request as a courtesy to you,” Tollison wrote. “Unless this matter can be resolved by Monday, March 19, at 4:30 p.m., we will move the court to unseal the complaint and will move forward.”