The Appeal
Chapter 12
She once laughed at herself when she went through the dreaded ritual of crawling onto her stationary bike at dawn and pedaling away, going nowhere as the sun crept up and lightened her little gym. For a woman whose public veneer was a somber face behind an intimidating black robe, she was amused at what people would think if they could see her on the bike, in old sweats, hair a mess, eyes swollen, face unadorned with cosmetics. But that was a long time ago. Now she just went through the routine with little thought of how she looked or what anyone might think. Of particular concern now was the fact that she had gained five pounds over the holidays, eleven since her divorce. The gaining had to be stopped before the losing could commence. At fifty-one, the pounds were clinging now, refusing to burn away as quickly as when she was younger.
Sheila McCarthy was not a morning person. She hated mornings, hated getting out of bed before her sleep was finished, hated the cheery voices on television, hated the traffic on the way to the office. She didn't eat breakfast, because she hated breakfast food. She hated coffee. She had always secretly loathed those who reveled in their early morning exploits-the joggers, yoga nuts, workaholics, hyperactive soccer moms.
As a young circuit court judge in Biloxi, she had often scheduled trials for 10:00 a.m., a scandalous hour. But it was her court and she made the rules.
Now she was one of nine, and the tribunal on which she served clung desperately to its traditions. On certain days she could roll in at noon and work until midnight, her preferred schedule, but most of the time she was expected by 9:00 a.m.
She was sweating after one mile. Eighty-four calories burned. Less than a cup of Haagen-Dazs chocolate chip mint, her most serious temptation. A television hung from a rack above the bike, and she watched and listened as the locals gushed over the latest car wrecks and murders. Then the weatherman was back for the third time in twelve minutes, clucking on about snow in the Rockies because there wasn't a single cloud at home to analyze.
After two miles, and down 161 calories, Sheila stopped for water and a towel, then crawled onto the treadmill for more work. She switched to CNN for a quick review of the national gossip. When she had burned 250 calories, Sheila quit and went to the shower. An hour later, she left her two-story condo on the reservoir, got into her bright red BMW convertible sports car, and headed to work.
The Mississippi Supreme Court is divided into three neat districts- northern, central, and southern-with three justices elected from each. A term is eight years, with no limit. Judicial elections take place in the off years, those quiet ones in which there are no races for local, legislative, or other statewide positions. Once obtained, a seat on the court lasts for a long time, usually until death or voluntary retirement.
The elections are nonpartisan, with all candidates running as independents. Campaign finance laws limit contributions from individuals at $5,000 each, and $2,500 from organizations, including political action committees and corporations.
Sheila McCarthy was appointed to the bench nine years earlier by a friendly governor, following the death of her predecessor. She ran unopposed once and was certainly planning on another easy victory. There was not the faintest whiff of a rumor that someone out there had designs on her seat.
With nine years' experience, she outranked only three others, and was still considered by most members of the state bar to be a relative newcomer. Tracking her written opinions and her voting record baffled liberals and conservatives alike. She was a moderate, a consensus builder, neither a strict constructionist nor a judicial activist, but more or less a practical fence straddler who, some said, decided the best outcome first, then found enough law to support it. As such, she was an influential member of the court. She could broker a deal between the hard right-wingers, of which there were always automatically four in number, and the liberals, of which there were two on most days and none on others. Four on the right and two on the left meant Sheila had two comrades in the center, though this simplistic analysis had burned many a lawyer trying to predict an outcome. Most cases on the docket defied categorization.
Where's the liberal or conservative side in a big messy divorce, or a boundary line dispute between two timber companies? Many cases were decided 9-0.
The supreme court does its work in the Carroll Gartin Justice Building in downtown Jackson, across the street from the state capitol. Sheila parked in her reserved space underneath the building. She rode the elevator to the fourth floor alone and stepped into her suite at exactly 8:45. Paul, her chief clerk, a strikingly handsome twenty-eight-year-old single straight male of whom she was extremely fond, walked into her office seconds after she did.
"Good morning," Paul said. He had long dark curly hair and a small diamond in his ear, and he somehow managed to maintain a perfect growth of three days' worth of stubble. Hazel eyes. She often expected to see Paul modeling Armani suits in the fashion magazines stacked around her condo. Paul had more to do with her gym time than she cared to admit.
"Good morning," she said coolly, as if she had barely noticed him.
"You have the Sturdivant hearing at nine."
"I know that," she said, glancing at his rear end as he walked across her office.
Faded jeans. The ass of a model.
He walked out, her eyes following every step.
Her secretary took his place. She locked the door and pulled out a small makeup kit, and when Justice McCarthy was ready, the touch-up was done quickly. The hair-short, almost above the ear, half sandy blond and half gray, and now carefully colored twice a month at $400 a pop-was fussed into place, then sprayed.
"What are my chances with Paul?" Sheila asked with her eyes closed.
"A bit young, don't you think?"
The secretary was older than her boss and had been doing the touch-ups for almost nine years. She kept powdering.
"Of course he's young. That's the point."
"I don't know. I hear he's awfully busy with that redhead in Albritton's office."
Sheila had heard the rumors, too. A gorgeous new clerk from Stanford was getting plenty of attention down the hall, and Paul usually had his pick.
"Have you read the Sturdivant briefs?" Sheila asked, standing as she prepared to be robed.
"Yes." The secretary carefully draped the black robe over her shoulders. The zipper ran down the front. Both ladies tugged and fussed until the bulky garment was perfect.
"Who killed the cop?" Sheila asked, gently pulling the zipper.
"It wasn't Sturdivant."
"I agree." She stepped before a full-length mirror, and both ladies inspected the presentation. "Can you tell I've gained weight?" Sheila asked.
"No." Same answer to the same question.
"Well, I have. And that's why I love these things. They can hide twenty pounds."
"You love it for another reason, dear, and we both know it. You're the only girl out there with eight boys, and none of them are as tough or as smart as you."
"And sexy. Don't forget sexy."
The secretary laughed at the idea. "No competition, dear. Those old goats can only dream about sex."
And they went off, out of the office, down the hall, where they met Paul again. He rattled off some key points in the Sturdivant case as they rode the elevator to the third floor, where the courtroom was located.
One lawyer might argue this, and the other might possibly argue that. Here are some questions to trip both of them.
Three blocks away from where Justice McCarthy assumed her position on the bench, a group of rather intense men and (two) women gathered to discuss her demise. They met in a windowless conference room in a nondescript building, one of many clustered near the state capital where countless civil servants and lobbyists ground out the work of running Mississippi.
The meeting was hosted by Tony Zachary and Judicial Vision. The guests were the directors of other like-minded "government relations" firms, some with vague names that deflected categorization-Freedom Network, Market Partnership, Commerce Council, Enterprise Advocacy. Other names got right to the point-Citizens Opposed to Lawsuit Tyranny (COLT), Fair Litigation Association, Jury Watch, Tort Reform Committee of Mississippi.
And the old guard was there, the associations representing the interests of banks, insurance, oil, medicine, manufacturing, retail, commerce, trade, and the best of our American way of life.
In the murky world of legislative manipulation, where loyalties shift overnight and a friend can become an enemy by noon, the people in the room were known, at least to Tony Zachary, to be worthy of trust.
"Ladies and gentlemen," Tony began, standing with a half-eaten croissant on the plate before him, "the purpose of this meeting is to inform you that we will remove Sheila McCarthy from the supreme court in November and her replacement will be a young justice committed to economic growth and limited liability."
There was light applause around the table. Everyone else was seated, all curious and listening. No one was certain who was behind Judicial Vision. Zachary had been around a few years and had a fair reputation, but he had no personal money. Nor did his group have much of a membership. Nor had he ever shown much interest in the civil justice system. His newfound passion for changing liability laws seemed to spring from nowhere.
But there was no doubt that Zachary and Judicial Vision were well funded. And in their game, that meant everything.
"We have the initial financing on the table, with more committed down the road," he said proudly. "More, of course, will be needed from you. We have a campaign plan, a strategy, and we, Judicial Vision, will be running the show."
More applause. The biggest obstacle was always coordination. There were so many groups, so many issues, so many egos. Raising the money was easy, from their side of the street anyway, but spending it wisely was often the challenge. The fact that Tony had, rather aggressively, assumed control was wonderful news. The rest of them were more than content to write the checks and turn out the voters.
"What about a candidate?" someone asked.
Tony smiled and said, "You'll love him. Can't give you his name right now, but you'll love him. Made for television." Ron Fisk had not yet said yes to the campaign, but Tony knew that he would. And if, for some reason, he did not, there were more names on the list. They would indeed have themselves a candidate, and soon, even if it took sackfuls of cash.
"Shall we talk money?" Tony asked, then plunged headlong into the issue before anyone could respond. "We have a million bucks on the table. I want to spend more than both candidates spent in the last contested race. That was two years ago, and I don't need to remind you that your boy in that race came up short. My boy in this race will not lose. To guarantee this, I need two million from you and your members."
Three million for such a race was a shock. In the last governor's race, a race that covered all eighty-two counties and not just a third of them, the winner spent $7 million and the loser spent half that. And a good governor's race was always a major spectacle, the centerpiece of state politics. Passions were high, turnouts even higher.
A race for a seat on the supreme court, when one did occur, seldom drew more than a third of the registered voters.
"How do you plan to spend $3 million?" someone asked. It was telling that the question was not about raising so much money. It was assumed they had access to pockets deep enough.
"Television, television, television," Tony responded. This was partly true. Tony would never reveal his entire strategy. He and Mr. Rinehart planned to spend a lot more than three million, but many of their expenditures would be either in cash or carefully hidden out of state.
An assistant popped up and began passing around thick folders. "This is what we've done in other states," Tony was saying. "Please take it with you and read it at your leisure."
There were questions about his plan, and more about his candidate. Tony revealed little, but continually emphasized his need for their financial commitments, the sooner the better. The only blip in the meeting came when the director of COLT informed them that his group had been actively recruiting candidates to run against McCarthy and that he himself had a plan to take her out. COLT advertised eight thousand members, though that number was dubious. Most of its activists were ex-litigants who'd been burned in a lawsuit of some variety. The organization had credibility, but it did not have a million dollars. After a brief but tense flare-up, Tony invited the COLT guy to go run his own campaign, at which time he backed down quickly and rejoined ranks.
Before adjourning, Tony urged secrecy, a vital element of the campaign. "If the trial lawyers find out now that we have a horse in the race, they will crank up their fund-raising machine. They beat you the last time."
They were irked by this second reference to "their" loss in the last race, as if they would've won if only they'd had Tony. But everyone let it pass.
The mere mention of the trial lawyers immediately refocused their attention.
They were too excited about the race to bicker.
The class action claimed to include "over three hundred" victims injured in various ways by the gross negligence of Krane Chemical at its Bow-more plant. Only twenty were named as plaintiffs, and of these twenty perhaps half had significant afflictions.
Whether their ailments were linked to polluted groundwater would be a question for another day.
It was filed in Hattiesburg at the federal courthouse, a good stone's throw from the Forrest County Circuit Court building, where Dr. Leona Rocha and her jury had rendered its verdict barely two months earlier. Lawyers Sterling Bintz of Philadelphia and F. Clyde Hardin of Bowmore were on hand to do the filing, and also to chat with any reporters who'd responded to their prefiling press alert. Sadly, there were no television cameras, only a couple of green print reporters. At least for F. Clyde, though, it was an adventure. He hadn't been near a federal courthouse in over thirty years.
For Mr. Bintz, the pathetic lack of recognition was appalling. He had dreamed of huge headlines and long stories with splendid photographs. He had filed many important class actions and had usually managed to get them adequately covered by the media.
What was wrong with the rural Mississippians?
F. Clyde hurried back to Bowmore, to his office, where Miriam was lingering to see how things went. "What channel?" she asked.
"None."
"What?" It was without a doubt the biggest day in the history of the firm of F. Clyde Hardin amp; Associates, and Miriam couldn't wait to watch it all on television.
"We decided not to deal with those reporters. Can't trust them," F. Clyde explained as he glanced at his watch. It was a quarter after five, past time for Miriam to leave the office. "No need to stick around," he said, flinging his jacket. "I've got things under control here."
She quickly left, disappointed, and F. Clyde went straight for the office bottle.
The chilled, thick vodka soothed him immediately, and he began to replay his big day. With a bit of luck, the Hattiesburg paper would include his photo.
Bintz was claiming three hundred clients. At $500 each, F. Clyde was due a nice referral fee. So far he'd been paid only $3,500, most of which he used for back taxes.
He poured a second drink and said what the hell. Bintz wouldn't screw him, because he needed him. He, F. Clyde Hardin, was now an attorney of record in one of the most important class action cases in the country. All roads ran through Bowmore, and F. Clyde was the man.
Sheila McCarthy was not a morning person. She hated mornings, hated getting out of bed before her sleep was finished, hated the cheery voices on television, hated the traffic on the way to the office. She didn't eat breakfast, because she hated breakfast food. She hated coffee. She had always secretly loathed those who reveled in their early morning exploits-the joggers, yoga nuts, workaholics, hyperactive soccer moms.
As a young circuit court judge in Biloxi, she had often scheduled trials for 10:00 a.m., a scandalous hour. But it was her court and she made the rules.
Now she was one of nine, and the tribunal on which she served clung desperately to its traditions. On certain days she could roll in at noon and work until midnight, her preferred schedule, but most of the time she was expected by 9:00 a.m.
She was sweating after one mile. Eighty-four calories burned. Less than a cup of Haagen-Dazs chocolate chip mint, her most serious temptation. A television hung from a rack above the bike, and she watched and listened as the locals gushed over the latest car wrecks and murders. Then the weatherman was back for the third time in twelve minutes, clucking on about snow in the Rockies because there wasn't a single cloud at home to analyze.
After two miles, and down 161 calories, Sheila stopped for water and a towel, then crawled onto the treadmill for more work. She switched to CNN for a quick review of the national gossip. When she had burned 250 calories, Sheila quit and went to the shower. An hour later, she left her two-story condo on the reservoir, got into her bright red BMW convertible sports car, and headed to work.
The Mississippi Supreme Court is divided into three neat districts- northern, central, and southern-with three justices elected from each. A term is eight years, with no limit. Judicial elections take place in the off years, those quiet ones in which there are no races for local, legislative, or other statewide positions. Once obtained, a seat on the court lasts for a long time, usually until death or voluntary retirement.
The elections are nonpartisan, with all candidates running as independents. Campaign finance laws limit contributions from individuals at $5,000 each, and $2,500 from organizations, including political action committees and corporations.
Sheila McCarthy was appointed to the bench nine years earlier by a friendly governor, following the death of her predecessor. She ran unopposed once and was certainly planning on another easy victory. There was not the faintest whiff of a rumor that someone out there had designs on her seat.
With nine years' experience, she outranked only three others, and was still considered by most members of the state bar to be a relative newcomer. Tracking her written opinions and her voting record baffled liberals and conservatives alike. She was a moderate, a consensus builder, neither a strict constructionist nor a judicial activist, but more or less a practical fence straddler who, some said, decided the best outcome first, then found enough law to support it. As such, she was an influential member of the court. She could broker a deal between the hard right-wingers, of which there were always automatically four in number, and the liberals, of which there were two on most days and none on others. Four on the right and two on the left meant Sheila had two comrades in the center, though this simplistic analysis had burned many a lawyer trying to predict an outcome. Most cases on the docket defied categorization.
Where's the liberal or conservative side in a big messy divorce, or a boundary line dispute between two timber companies? Many cases were decided 9-0.
The supreme court does its work in the Carroll Gartin Justice Building in downtown Jackson, across the street from the state capitol. Sheila parked in her reserved space underneath the building. She rode the elevator to the fourth floor alone and stepped into her suite at exactly 8:45. Paul, her chief clerk, a strikingly handsome twenty-eight-year-old single straight male of whom she was extremely fond, walked into her office seconds after she did.
"Good morning," Paul said. He had long dark curly hair and a small diamond in his ear, and he somehow managed to maintain a perfect growth of three days' worth of stubble. Hazel eyes. She often expected to see Paul modeling Armani suits in the fashion magazines stacked around her condo. Paul had more to do with her gym time than she cared to admit.
"Good morning," she said coolly, as if she had barely noticed him.
"You have the Sturdivant hearing at nine."
"I know that," she said, glancing at his rear end as he walked across her office.
Faded jeans. The ass of a model.
He walked out, her eyes following every step.
Her secretary took his place. She locked the door and pulled out a small makeup kit, and when Justice McCarthy was ready, the touch-up was done quickly. The hair-short, almost above the ear, half sandy blond and half gray, and now carefully colored twice a month at $400 a pop-was fussed into place, then sprayed.
"What are my chances with Paul?" Sheila asked with her eyes closed.
"A bit young, don't you think?"
The secretary was older than her boss and had been doing the touch-ups for almost nine years. She kept powdering.
"Of course he's young. That's the point."
"I don't know. I hear he's awfully busy with that redhead in Albritton's office."
Sheila had heard the rumors, too. A gorgeous new clerk from Stanford was getting plenty of attention down the hall, and Paul usually had his pick.
"Have you read the Sturdivant briefs?" Sheila asked, standing as she prepared to be robed.
"Yes." The secretary carefully draped the black robe over her shoulders. The zipper ran down the front. Both ladies tugged and fussed until the bulky garment was perfect.
"Who killed the cop?" Sheila asked, gently pulling the zipper.
"It wasn't Sturdivant."
"I agree." She stepped before a full-length mirror, and both ladies inspected the presentation. "Can you tell I've gained weight?" Sheila asked.
"No." Same answer to the same question.
"Well, I have. And that's why I love these things. They can hide twenty pounds."
"You love it for another reason, dear, and we both know it. You're the only girl out there with eight boys, and none of them are as tough or as smart as you."
"And sexy. Don't forget sexy."
The secretary laughed at the idea. "No competition, dear. Those old goats can only dream about sex."
And they went off, out of the office, down the hall, where they met Paul again. He rattled off some key points in the Sturdivant case as they rode the elevator to the third floor, where the courtroom was located.
One lawyer might argue this, and the other might possibly argue that. Here are some questions to trip both of them.
Three blocks away from where Justice McCarthy assumed her position on the bench, a group of rather intense men and (two) women gathered to discuss her demise. They met in a windowless conference room in a nondescript building, one of many clustered near the state capital where countless civil servants and lobbyists ground out the work of running Mississippi.
The meeting was hosted by Tony Zachary and Judicial Vision. The guests were the directors of other like-minded "government relations" firms, some with vague names that deflected categorization-Freedom Network, Market Partnership, Commerce Council, Enterprise Advocacy. Other names got right to the point-Citizens Opposed to Lawsuit Tyranny (COLT), Fair Litigation Association, Jury Watch, Tort Reform Committee of Mississippi.
And the old guard was there, the associations representing the interests of banks, insurance, oil, medicine, manufacturing, retail, commerce, trade, and the best of our American way of life.
In the murky world of legislative manipulation, where loyalties shift overnight and a friend can become an enemy by noon, the people in the room were known, at least to Tony Zachary, to be worthy of trust.
"Ladies and gentlemen," Tony began, standing with a half-eaten croissant on the plate before him, "the purpose of this meeting is to inform you that we will remove Sheila McCarthy from the supreme court in November and her replacement will be a young justice committed to economic growth and limited liability."
There was light applause around the table. Everyone else was seated, all curious and listening. No one was certain who was behind Judicial Vision. Zachary had been around a few years and had a fair reputation, but he had no personal money. Nor did his group have much of a membership. Nor had he ever shown much interest in the civil justice system. His newfound passion for changing liability laws seemed to spring from nowhere.
But there was no doubt that Zachary and Judicial Vision were well funded. And in their game, that meant everything.
"We have the initial financing on the table, with more committed down the road," he said proudly. "More, of course, will be needed from you. We have a campaign plan, a strategy, and we, Judicial Vision, will be running the show."
More applause. The biggest obstacle was always coordination. There were so many groups, so many issues, so many egos. Raising the money was easy, from their side of the street anyway, but spending it wisely was often the challenge. The fact that Tony had, rather aggressively, assumed control was wonderful news. The rest of them were more than content to write the checks and turn out the voters.
"What about a candidate?" someone asked.
Tony smiled and said, "You'll love him. Can't give you his name right now, but you'll love him. Made for television." Ron Fisk had not yet said yes to the campaign, but Tony knew that he would. And if, for some reason, he did not, there were more names on the list. They would indeed have themselves a candidate, and soon, even if it took sackfuls of cash.
"Shall we talk money?" Tony asked, then plunged headlong into the issue before anyone could respond. "We have a million bucks on the table. I want to spend more than both candidates spent in the last contested race. That was two years ago, and I don't need to remind you that your boy in that race came up short. My boy in this race will not lose. To guarantee this, I need two million from you and your members."
Three million for such a race was a shock. In the last governor's race, a race that covered all eighty-two counties and not just a third of them, the winner spent $7 million and the loser spent half that. And a good governor's race was always a major spectacle, the centerpiece of state politics. Passions were high, turnouts even higher.
A race for a seat on the supreme court, when one did occur, seldom drew more than a third of the registered voters.
"How do you plan to spend $3 million?" someone asked. It was telling that the question was not about raising so much money. It was assumed they had access to pockets deep enough.
"Television, television, television," Tony responded. This was partly true. Tony would never reveal his entire strategy. He and Mr. Rinehart planned to spend a lot more than three million, but many of their expenditures would be either in cash or carefully hidden out of state.
An assistant popped up and began passing around thick folders. "This is what we've done in other states," Tony was saying. "Please take it with you and read it at your leisure."
There were questions about his plan, and more about his candidate. Tony revealed little, but continually emphasized his need for their financial commitments, the sooner the better. The only blip in the meeting came when the director of COLT informed them that his group had been actively recruiting candidates to run against McCarthy and that he himself had a plan to take her out. COLT advertised eight thousand members, though that number was dubious. Most of its activists were ex-litigants who'd been burned in a lawsuit of some variety. The organization had credibility, but it did not have a million dollars. After a brief but tense flare-up, Tony invited the COLT guy to go run his own campaign, at which time he backed down quickly and rejoined ranks.
Before adjourning, Tony urged secrecy, a vital element of the campaign. "If the trial lawyers find out now that we have a horse in the race, they will crank up their fund-raising machine. They beat you the last time."
They were irked by this second reference to "their" loss in the last race, as if they would've won if only they'd had Tony. But everyone let it pass.
The mere mention of the trial lawyers immediately refocused their attention.
They were too excited about the race to bicker.
The class action claimed to include "over three hundred" victims injured in various ways by the gross negligence of Krane Chemical at its Bow-more plant. Only twenty were named as plaintiffs, and of these twenty perhaps half had significant afflictions.
Whether their ailments were linked to polluted groundwater would be a question for another day.
It was filed in Hattiesburg at the federal courthouse, a good stone's throw from the Forrest County Circuit Court building, where Dr. Leona Rocha and her jury had rendered its verdict barely two months earlier. Lawyers Sterling Bintz of Philadelphia and F. Clyde Hardin of Bowmore were on hand to do the filing, and also to chat with any reporters who'd responded to their prefiling press alert. Sadly, there were no television cameras, only a couple of green print reporters. At least for F. Clyde, though, it was an adventure. He hadn't been near a federal courthouse in over thirty years.
For Mr. Bintz, the pathetic lack of recognition was appalling. He had dreamed of huge headlines and long stories with splendid photographs. He had filed many important class actions and had usually managed to get them adequately covered by the media.
What was wrong with the rural Mississippians?
F. Clyde hurried back to Bowmore, to his office, where Miriam was lingering to see how things went. "What channel?" she asked.
"None."
"What?" It was without a doubt the biggest day in the history of the firm of F. Clyde Hardin amp; Associates, and Miriam couldn't wait to watch it all on television.
"We decided not to deal with those reporters. Can't trust them," F. Clyde explained as he glanced at his watch. It was a quarter after five, past time for Miriam to leave the office. "No need to stick around," he said, flinging his jacket. "I've got things under control here."
She quickly left, disappointed, and F. Clyde went straight for the office bottle.
The chilled, thick vodka soothed him immediately, and he began to replay his big day. With a bit of luck, the Hattiesburg paper would include his photo.
Bintz was claiming three hundred clients. At $500 each, F. Clyde was due a nice referral fee. So far he'd been paid only $3,500, most of which he used for back taxes.
He poured a second drink and said what the hell. Bintz wouldn't screw him, because he needed him. He, F. Clyde Hardin, was now an attorney of record in one of the most important class action cases in the country. All roads ran through Bowmore, and F. Clyde was the man.
