“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 amp;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 amp;W screening committee.
Despite all of its marketing and recruiting pitches to the contrary, B amp;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 amp;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?”