Balance of Power

    Sarah could not protest. Unrestrained by the presence of a jury, Bond could castigate her as he liked, and be as peremptory as he wished. And his barely veiled threat, Sarah realized, reflected Lenihan's own reservations. Steeling herself, she answered, "Rule 11 does not require us to prove our case before we've had a chance to prove it. That is what discovery exists for. At this stage, we must have a good faith basis for believing—should this Court let the case proceed—that we can prove it." Pausing, she finished firmly, "I would not be standing here, Your Honor, were that not the case."

    From the bench, Bond scowled at her. "At this point, Ms. Dash, we'll take a fifteen-minute recess. Then I'll wish to hear about another point I question—this public nuisance theory, and the haste you seek in pursuing it. And, specifically, whether it's a pretext to accelerate discovery."

* * *

"Palmer," Chuck Hampton told the President, "is playing hardball."

    Alone in the Oval Office, they reviewed the increasingly tense partisan politics surrounding Palmer's hearing. "I can't believe," Kerry said, "that Chad's scheduled the committee vote for three o'clock."

    "And with as little notice as possible," Hampton replied. "He won't even tell Frank Ayala whether he'll hold a separate vote on gun immunity."

    Despite his thirteen years in politics, Kerry found Chad's opposition difficult to accept—not the fact, but the manner of it. "Less than three weeks ago, Chuck, Chad was here for dinner, when you were. Now he's fronting for Fasano as if he were Paul Harshman. The vote Lara requested is utterly routine."

    "Maybe not on this bill," Hampton responded. "A chairman can do pretty much whatever he wants. In Fasano's place, I wouldn't want my Republican colleagues on Palmer's committee sticking their necks out on barring Mary's lawsuit. I'd want to give them the cover of voting 'yes' or 'no' on the entire bill."

    "Will any of the Republicans break ranks?"

    "At this point, Ayala thinks not. I agree."

    For a moment, the President reflected. "However this goes down," he said emphatically, "I need a party line vote against the bill—all eight Democrats. If Democrats peel off in committee, there may be more defections on the floor. This is our first test of strength, and I don't want to signal weakness."

    Hampton nodded. "Then you'd better call Vic Coletti, Mr. President. I can't quite nail him down."

TW ENT Y

"Plaintiff's public nuisance theory," Nolan told Judge Bond, "has two purposes—both of them abusive.

    "First, by asking for a permanent injunction against this so-called threat to Californians—the legal sale of a legal product in another state— plaintiff seeks to create an air of crisis where there is none . . ."

    "For what purpose, counsel?"

    The seemingly straightforward question, Sarah knew, presented Nolan with a challenge. If he accused plaintiff of attempting to push toward a trial before the passage of the Civil Justice Reform Act, he must acknowledge defendant's interest in delay. "To further inflame the media," Nolan said at length. "To make their political points, plaintiff's counsel must be able to feed their supposed evidence to the press, sooner rather than later. Pushing through depositions to an early trial will enable them to do that."

    "Not in this Court," Bond said sternly. "What's your second point?"

    "That by recasting a wrongful death action as an ongoing public nuisance, plaintiff's counsel have created a monster which would swallow the entire law of wrongful death." Nolan hesitated, his manner suggesting a reluctance to speak harsh but necessary truths. "To be plain, Mary Costello's family is already dead. Enjoining Lexington Arms from selling weapons in Nevada cannot change that . . ."

    "What plaintiff alleges," Bond interjected in a dubious tone, "is some form of continuing danger."

    "That's entirely speculative," Nolan said dismissively. "And there is no precedent whatsoever for enjoining so-called excessive sales in another state as a public nuisance in California.

    "Even accepting plaintiff's allegations, she cannot assert that Lexington controls sales at gun shows in Nevada, or anywhere else, an allegation required under the law of public nuisance. Which, as our brief points out, exists to protect property, not people . . ."

    "Very well," Bond cut in. "Does counsel for the SSA have anything to add?"

    At the defense table, Harrison Fancher stood. "This isn't even our gun, Your Honor. A public nuisance claim against the SSA is more than innovation—it's a mutation. If anything, the case shows why there's a pressing need for legislation to protect legitimate organizations from legalized blackmail by plaintiffs' lawyers. Where the only restraint on such suits is the conscience of the lawyers who bring them, our only protection is this Court."

    Bond smiled faintly. "Which of plaintiff's counsel," he inquired, "wishes to respond?"

* * *