Legally Speaking: Justice for sale?

John G. Browning Feb. 13, 2008, 3:55am

Perhaps it's only appropriate that in a hotly-contested election year, the latest legal thriller from trial lawyer-turned-literary-cottage-industry John Grisham centers on the buying of influence in the courts by moneyed special interests.

"The Appeal" unfolds in fictional Bowmore, Miss., where Krane Chemical Co. has been illegally dumping toxins into the water table for years. As a result, the drinking water is contaminated and the rate of cancer has skyrocketed to 15 times the national average, earning the setting the nickname "Cancer County, U.S.A."

Early on in the novel, dedicated husband and wife trial lawyers Wes and Mary Grace Payton take on the case of Jeannette Baker, a woman who has lost both her husband and son to cancer within an eight-month span. Despite Krane Chemical's throwing a phalanx of lawyers and bought-and-paid-for experts at the beleaguered attorney and their widow client, a jury awards a verdict of $41 million.

But the whopping judgment is only the start of the novel's twists and turns, as Krane's biggest stockholder – New York billionaire Carl Trudeau – vows that "not one dime of our hard-earned profits will ever get into the hands of these trailer park peasants."

With the lawsuits of 160 other cancer victims looming on the horizon, Krane appeals the trial court verdict while seeking something of a litigation "insurance policy." Trudeau hires a shadowy political consultant named Barry Rinehart and embarks upon a plan to "buy" the appeal.

With the Mississippi Supreme Court deeply divided, Rinehart advises Trudeau to "target a supreme court justice who is not particularly friendly, and we take him, or her, out of the picture." Krane invests millions in a handpicked, ideologically predictable jurist (the clean-cut, Bible-thumping small town lawyer Ron Fisk) who can defeat the decidedly more moderate, swing-voting incumbent Sheila McCarthy.

The ensuing campaign is replete with attack ads, mudslinging, character assassination and backroom maneuvering; in other words, an unfortunately familiar portrayal of politics at its worst.

I won't spoil for you how things turn out in Grisham's little Manichaean universe. Suffice it to say that Grisham rants like an Old Testament prophet about the corruption of the justice system by big money and special interests. In Grisham's world, corporations are evil, plaintiffs and their lawyers are models of decency and virtue, and the contingency fee represents the poor man's only key to unlock the courthouse door.

Grisham certainly could have found real world inspiration for his thesis that with enough money and political clout, you can "buy" enough judicial influence to alter the outcome of a case. Unfortunately for Grisham, some of the most egregious examples from recent headlines have cast members of his beloved plaintiffs bar in the role of bad guy.

Grisham need look no further than his Oxford, Miss., neighbor Richard "Dickie" Scruggs. One of the most successful trial lawyers in the country, Scruggs was immortalized in the 1999 movie "The Insider," which detailed his role in winning a $248 billion settlement from the tobacco industry.

Before taking on Big Tobacco, Scruggs had made his reputation prosecuting asbestos cases and suing corporate defendants in the small town Mississippi venues known to tort reform proponents as "judicial hellholes" but referred to by Scruggs as "magic jurisdictions."

So confident was Scruggs that he told a Prudential Securities conference in 2002 that these were places "where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges that are elected." In such venues, according to Scruggs, "the cases are not won in the courtroom. They're won on the back roads long before the case goes to trial."

In a 2004 deposition, Scruggs discussed the approximately $10 million in payments he had made to P.L. Blake, a political consultant and well-connected former college football star in Mississippi who had helped him navigate the tricky shoals of state politics during the tobacco litigation.

Scruggs testified that Blake "knows an awful lot of people in the political realm. And he – depending on the stage of tobacco litigation proceedings - was keeping his ear to the ground, prying, checking. I mean, I never asked who or what on all that."

But an alleged effort to purchase judicial influence may ultimately lead to Dickie Scruggs' downfall. Scruggs, who has a history of ugly fee disputes with former co-counsel, was sued by another Mississippi lawyer, John Griffin Jones, who claimed Scruggs had cheated him out of his rightful share of the $26.5 million settlement in a case brought against State Farm Insurance on behalf of Hurricane Katrina victims.

On November 28, 2007, things went from bad to worse when Scruggs was indicted (along with four other men) on charges of attempting to bribe Judge Henry L. Lackey, the judge presiding over Jones' suit. One of the other lawyers, Timothy R. Balducci, pleaded guilty to a bribery charge, and has agreed to cooperate with the federal prosecutors who are investigating Scruggs over the alleged $50,000 bribe offer (Judge Lackey informed the U.S. Attorney's office shortly after he was purportedly approached).

Factor in the existence of conversations taped by Mr. Balducci, and prospects may look bleak for the onetime "King of Torts," who faces up to 75 years in jail and $1.5 million in fines if convicted. The Justice Department's Public Integrity unit, which investigates corruption of public officials at the local, state, and federal levels, is reportedly in the process of widespread investigations looking into the potential of bribery in other cases.

Had he looked further for inspiration, Grisham might have witnessed West Virginia's unique approach to justice. In November 2007, Chief Justice Elliott "Spike" Maynard of West Virginia's state Supreme Court helped form a 3-2 majority in a ruling that overturned a multimillion dollar judgment that Harman Mining had won in a contract dispute against Richmond-based coal producer Massey Energy Company.

After Harman and its president asked the high court to reconsider the ruling that threw out the 2002 judgment (which had grown to $76.3 million with interest), vacation photos surfaced depicting Chief Justice Maynard enjoying the sights of sunny Monaco with an interesting companion – the CEO of Massey Energy.

While Chief Justice Maynard maintains that he has been "and would be fair and impartial in this case," he agreed to recuse himself after the photos came to light because the matter had "become an issue of public perception and public confidence in the courts."

Of course, just how shocking is this in a state that regularly ranks among the worst "judicial hellholes" on the American Tort Reform Association's annual list, and whose one-time state Supreme Court Chief Justice Richard Neely was once unabashedly quoted as saying "As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so."

For that matter, if Grisham had wanted to look at how the plaintiffs bar has thumped its collective chest about its ability to influence rulings by exercising political clout, he could have started with prominent San Antonio plaintiff attorney Mikal Watts. During his abortive bid to unseat U.S. Senator John Cornyn using $7.7 million of his own money, some of Watts' own words came back to haunt him.

One particular example was a nine-page, April 26, 2001, letter Watts wrote in an automobile accident case to opposing counsel representing American Electric Power. In the letter, Watts recites a litany of some of his greatest hits: a $139 million judgment in a Nueces County refinery case, a $106 million Nueces County verdict against Ford Motor Co., a $100 million verdict in a pesticide case, and so on. More disturbingly, Watts justifies his demand for $60 million by maintaining a purported advantage if the case were appealed because of his firm's "heavy" campaign financial support to an appellate court's justices, "all of whom are good Democrats."

The letter warned that the decision-makers at American Electric Power should remember that "'Toto, we aren't in Kansas anymore.' Politely put, South Texas venue by itself makes this a very dangerous case."

In the election cycles surrounding this letter, Watts and his law firm donated a total of $82,500 to five of the six justices who were then sitting on Corpus Christi's 13th Court of Appeals; three of those jurists are no longer on the court. In fact, according to the Texas Ethics Commission's campaign finance database, Watts and his law firm have donated more than $2.6 million to candidates and political action committees in Texas.

Now, there is no evidence that his law firm's "heavy support" of justices on the 13th Court of Appeals ever resulted in any undue influence in favor of Watts and his clients. And Watts himself has downplayed the letter, saying that he mentioned his campaign contributions only in response to "the garbage we hear from defense lawyers every day" about how the Texas Supreme Court consists of nine Republican justices. But there is no escaping the lingering public perception that politics plays a role in judicial decision-making.

From the 1980s "60 Minutes" biting examination of the primarily Democrat Texas Supreme Court in "Justice For Sale" to "Frontline's" investigative look at a far more conservative state Supreme Court years later, to more recent studies that portray the current Texas Supreme Court as extraordinarily business-friendly, Texas has long been cited as a leading example of how campaign contributions can influence jurisprudence.

Craig McDonald of Texans for Public Justice, a campaign finance reform advocacy group, cites the Mikal Watts letter as something that "seems to confirm what everybody thinks about Texas justice… (and) confirms the fact Texas courts are filled with politics."

McDonald also notes a 1999 poll conducted at the behest of the Texas Supreme Court, in which 79 percent of the lawyers and 48 percent of the judges responding believed that campaign contributions influence judicial decisions.

The question of who is responsible for this perception may depend largely on your political leanings. But one thing is clear – corporate defendants are not the monolithic evildoers, nor are plaintiffs' personal injury lawyers the shining virtuous knights, that John Grisham's black and white world would have you believe. Reality has a far grayer tinge to it.

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