LAWYERS, GUNS, AND MONEY

As he emerges for an interview in his Metairie office north of New Orleans, Gauthier is suppressing yet another grin. He has just been on the phone with Johnnie Cochran who, he says, “wants in on the action.” Many lawyers do. For “the action” is shaping up as the next big thing in industry-gouging, trial-lawyer ransom demands. Gauthier, you see, has declared war on gun manufacturers for — brace yourselves — making guns that kill people.

The legal offensive against gun makers has taken off since Gauthier’s first client, New Orleans mayor Marc Morial, filed suit on October 31 against 15 handgun manufacturers, three trade associations, and several local pawn shops. It has now even received the blessing of President Clinton, at least indirectly, when he called for “child trigger locks” on handguns in his State of the Union address. It’s hard to win a product liability lawsuit when the product in question is intended to be dangerous and is not “defective” by any ordinary understanding of the word. Indeed, no one ever has won such a suit against a gun maker. But there’s a Catch-22 in American product liability law: If manufacturers can be forced to add safety features to their wares, it becomes easier to sue them for not improving their products sooner.

For the New Orleans suit, Gauthier and Mayor Morial enlisted the help of Sarah Brady’s Center to Prevent Handgun Violence — which for years brought unsuccessful suits against gun manufacturers for accidental deaths. The suit accuses gun makers of not incorporating safety designs that prevent the use of guns by children or other unauthorized users. No matter that some of these technologies — like “smart guns” that won’t fire without a radio signal from the owner’s transmitter — have yet to be proven reliable. Like the states that made claims for the medical expenses of smokers, the city hopes to collect damages for everything from tax revenues lost from dead citizens to the cost of laundering the emergency-room scrubs of the doctors who treat gunshot wounds. But Morial denies seeking to fill city coffers; rather, he is suing on behalf of “the children.” And while Gauthier also insists his motives are more pediatric than pecuniary, he’ll take 20 percent of any settlement and 30 percent of any judgment should the case go to trial.

New Orleans’s idea was so swell that the city of Chicago filed a similar suit two weeks later. Since the city prohibits the sale or possession of handguns that weren’t registered before 1982, Chicago is pressing a public-nuisance claim as opposed to New Orleans’s product liability approach. But like New Orleans, Chicago is in it for “the children.” Mayor Richard Daley, up for reelection this year, had his police department conduct a three month sting entitled “Operation Gunsmoke.” Undercover officers posed as gangbangers, militia members, and “motorcycle toughs” (the press release’s words) while baiting suburban gunstore merchants by saying they needed to “take care of business.”

The result is poorly lit video footage of gunstore clerks with bad mustaches selling weapons to cops who speak in B-movie criminalese, asserting that they’re protecting their “spot,” which is supposed to give the clerks the idea that they are dealing with druglords. While Daley has loudly touted the unlawful behavior of the clerks selling guns to these apparent criminals, not a single target of the investigation has been criminally charged. Instead, Daley appears to have taken the unusual tack of dedicating police resources to facilitate a $ 433 million civil lawsuit against not only the gunshops, but the 4 distributors and 22 manufacturers who are allegedly overrunning the suburban market with products they know will be used within city limits.

Like New Orleans, Chicago is seeking damages for everything from police overtime to the cost of wiping blood from the streets. Unlike New Orleans, Chicago is suing with city lawyers and two civic-minded law firms that are serving — gulp — pro bono. “We won’t be representing them,” Gauthier offers jauntily.

 

The mayors’ crusade

Gauthier has little cause for worry — nobody is anticipating an epidemic of pro-bono largesse amongst the bar. But the odds are great that other cities will want to follow the examples of New Orleans and Chicago. During last June’s meeting of the U.S. Conference of Mayors in Reno, Philadelphia Mayor Ed Rendell launched a task force to work with the gun industry, promising any litigation against manufacturers would be “10 years down the road.” That was one short decade. In the publicity downdraft of the New Orleans and Chicago lawsuits, Rendell now speaks of the possibility of up to 100 cities filing suit within the next six months. At least 15 other mayors, from Baltimore to St. Louis to Los Angeles, have already declared their intent to sue. All these cities need legal representation, of course, and here, Gauthier and his colleagues will prove a godsend. Cities that operate on austerity budgets may not be able to fund protracted litigation or conduct sting operations. But attacking gun manufacturers is a no-lose proposition for big-city mayors. They appear tough on crime to constituencies that are generally more tolerant of gun-industry bashing than their rural cousins, and they are effectively gambling with someone else’s money. If the cities don’t collect, the trial lawyers will eat the litigation costs. If the mayors win, jackpots will abound, and nobody will quibble with the lawyers’ 30 percent cut.

Gun manufacturers have already started grousing about the unfairness of it all. There is for one thing no evidence to suggest they concealed the fact that their products, when used as intended, kill people. Rather, they tend to advertise it. Their chief defense is that the law is on their side; that both cities’ cases are absurd on their face. But who can be sure these days that the law will trump public opinion?

And inflamed public opinion, not the law, will be crucial to the success of Gauthier and his counterparts. As the University of Chicago’s John Lott has noted, in 1996, 230 children under the age of 15 died from accidents with guns in the United States. Over the same period, 950 drowned and 500 died in bicycle accidents. There is of course, no cry for the heads of swimming pool manufacturers, lifeguards, or Huffy executives. Likewise lives that are lost to gun accidents are exponentially offset by the 2.5 million times a year law-abiding citizens successfully employ their “unsafe” guns defensively. Ironically, the morning the New Orleans Times-Picayune announced Morial’s lawsuit, the front page also carried an account of a gun-toting good Samaritan warding off a knife-wielding stalker in a parking garage just minutes from Gauthier’s law office.

While the gun industry is vowing to fight, its various parties are a diffuse, iconoclastic lot who are resistant to pooling resources for a united legal front. They contend the mayors will never get a judgment by applying untested legal theories (similar cases against the industry have been dismissed), but that’s hardly a sure thing. The tobacco lawsuits effected the largest transfer of wealth in the history of civil litigation — without a single judgment ever being entered against the industry. And since the $ 2-billion-a-year gun industry earns a tiny fraction of the Big Four tobacco companies’ annual profits, the gun manufacturers are in a bind. If they settle, they might have trouble scratching up enough ransom to sate the mayors and their attorneys. If they don’t settle, they face not 50 lawsuits, as Big Tobacco did against the states, but hundreds of lawsuits from cities across the nation.

It’s enough to make even a trial lawyer take pity — and no less of one than Mississippi’s Richard Scruggs, who masterminded the states’ anti-tobacco attack. Scruggs says he has no plans to join the latest “gang-bang.” He agrees with the gun manufacturers that this is a naked attempt to accomplish judicially what couldn’t be accomplished legislatively — nationwide gun control. And he’s skeptical that the cities will curtail death rates. Scruggs thinks litigation will drive legitimate gun dealers out of business and foster a thriving black market. But more important, “If Chicago wins, they’ll put those guys into bankruptcy, and New Orleans won’t get anything. There’s just not enough money to go around.”

Scruggs, who led a rival faction to Gauthier’s in the tobacco litigation and made out much better, may be overstating. Gauthier has made a career of plundering relatively small targets that keep him and his colleagues bringing in seven and eight-figure sums a year. This type of litigation is a science, really, designed to force quick settlements, since protracted class-action judgments can mean financial ruin for companies (and a meager payday for those who sue them). It’s what industry types call the Masai Move — named for the African tribesmen who don’t kill their cattle for steaks, but repeatedly draw blood from the beasts for a nutritious beverage. The mass-disaster bar has similarly grown wise over three decades of pillaging. Rather than put anyone out of business, better to let them go on doing the producing, then step into court and tap them, Masai-style, right in the neck.

If the gun manufacturers think the Gauthier crowd will be deterred simply because they are not, like tobacco, the biggest torts prize in history, they’re in for a shock. As one bloodied tobacco lawyer says of Gauthier’s Castano Group, “The gun manufacturers are really in for it. These guys are shrewd and well-funded . . . and don’t give a s — about anything except how much money they can make.”

 

“Toys are not us.”

What makes Gauthier and his colleagues so formidable is their bellicosity. Though his New Orleans comrades call him “Goat” (his name is pronounced “Goat-chay”), he’s better known as “the General” for building the A-team of ambulance chasers — a roguish band of overpaid and outsized egos whose displays of plumage and aggression have earned them wrestling-card sobriquets like “the Girths,” (a group of Castano lawyers known for their sybaritic corpulence). In the early days of Castano, New Orleans lawyer Russ Herman swore that he’d never work alongside John “the Wizard of Bhopal” Coale, the lawyer who famously signed up 7,000 defendants for a class-action suit against Union Carbide after its plant explosion in Bhopal, India, though it was rumored that many of his Indian clients couldn’t read their retainer agreements. Herman even called Coale a “cesspool” in print. Coale, who once solicited the family members of ValuJet-crash victims by mailing them pictures of his CNN-commentator wife Greta Van Susteren, referred to himself as a “pirate” and suggested Herman was putting on airs to compensate for not going to Harvard. Gauthier responded by appointing the two men co-chairs of the Castano Group’s public relations committee. His successful laissez-faire management style, he explains is: “Let ’em scrap.”

And scrap they do. Gauthier says that during tobacco negotiations, Coale, who was kicked out of high school for stealing hubcaps, actually started an elevator fistfight with fellow lawyer Hugh Rodham, brother of Hillary Rodham Clinton and member of the Castano Group. Rodham was recruited by Gauthier, who was determined not to get “out-brother-in-lawed” by rival Scruggs, who is married to Trent Lott’s sister.

This shamelessness serves as the bedrock of a litigation philosophy pinched from Gauthier’s “idol,” the late Melvin Belli, aka the “King of Torts” (a Castano member until his death in 1996). After once commanding his weeping client to convince a jury of her botched operation by baring her deformed breasts, Belli recalled that he “could hear the angels sing and the cash register ring.” Gauthier built on this tradition. After the 1986 Dupont Plaza Hotel fire in San Juan, Puerto Rico, which killed 97 people, Gauthier and Co. actually moved to the island before the cinders had cooled. The fire had been deliberately set by three angry Teamsters in the midst of a labor dispute. Gauthier’s coalition, however, sued not only the hotel (which was carrying a mere $ 1 million in liability insurance), but also 200 manufacturers, right down to the makers of the dice in the casino. At least their non-flame-retardant products were present at the time of the fire. Belli was fined for suing on behalf of a man who had died 12 years earlier. The case was so unwieldy — over 2,300 plaintiffs brought suits — the judge had to build a special courtroom just to contain the lawyer traffic. The gun industry should take note: All this firepower was marshaled against a single hotel for a $ 220 million settlement.

Those who know Gauthier best say litigation for him is not just about the settlements — or even the beloved children — it’s about the contest. Law partner Danny Abel, who has an encyclopedic knowledge of French Quarter watering holes and off-menu specialties, explains Gauthier’s love of the hunt to me and his young litigation assistant Shane D’Antoni, as we slop oyster po’ boys at the Napoleon House. “Money’s not the major issue. We’re just a bunch of country [boys]. . . . Toys are not really us,” Abel says, though Gauthier has owned a piece of the New Orleans Saints, a Rolls-Royce, and an interest in a casino.

Abel knows Gauthier better than most. They were fraternity brothers at Southeastern Louisiana State. While chain-smoking Marlboro mediums, Abel moderates a slurred Sazerac-influenced symposium on the evils of tobacco and firearms. Shane and I are smoking Dominican cigars as thick as babies’ legs, which Shane was kind enough to purchase after lecturing the employees of the tobacco shop on how cigarette companies target children. If the New Orleans handgun lawsuit seems sophomoric, there’s a good reason. Abel says Shane first brought up the idea to Gauthier last year when he was a college sophomore. At the time, “we were doing the other s –, tobacco, which is about children,” explains Abel. So they walked in to Gauthier’s office with the gun idea and said, “This is about children.”

Though the hour is late and the Quarter is infested with loutish tourists, we are secure in the knowledge that Abel has a .32 caliber Beretta in his truck. Never mind that it has neither the loaded-chamber indicator nor the magazine-disconnect — the safety features that Gauthier and the city of New Orleans call for in their “safe guns” suit. It is a minor hypocrisy in a city that passed a law in 1996 encouraging it’s citizenry to shoot carjackers, after Ms. Louisiana had her Ford Taurus boosted from her driveway. What is a major hypocrisy, however, is the behavior of Gauthier’s client, Mayor Marc Morial.

The city’s suit faults manufacturers for not developing the technology to keep “unauthorized users” from firing guns. The supposed remedy for the undocumented spate of suicides and accidental shootings for which New Orleans is ostensibly seeking damages would be for manufacturers to incorporate push-button combination locks in gun grips or develop “smart guns” that require the owner to wear a wrist-band radio transmitter to fire (only Colt has developed a prototype, which they say is still years away from working properly). While the suit faults manufacturers for not being innovative enough, it goes after everyone from pawn shops to trade associations for encouraging the sale of “unsafe” guns. But Morial’s own police department has placed itself in the distribution chain — with his approval. Last February, the New Orleans police department traded in 715 Beretta 92 Series pistols for 1,700 Glocks. To complete the transaction, the department also agreed to trade guns confiscated from criminals in a three-way-transaction with a distributor who supplies police departments and who also sells guns commercially.

According to paperwork supplied by Glock, Inc., and accounts of the transaction by Glock vice president Paul Jannuzzo, the city traded over 8,000 confiscated guns, at least 40 percent of which were semiautomatics, and nearly all of which are “unsafe,” by the definition of the city’s lawsuit. The letter to Glock from Police superintendent Richard Pennington that consummated the deal is signed and approved by Morial.

According to Jannuzzo, over half of the guns traded in were redistributed commercially in cities from Abilene to Carpentersville, Illinois (a suburb of Chicago). While some of the local pawn shops it is suing sold fewer than 50 guns last year, the city of New Orleans redistributed thousands. This is perfectly legal, of course. But if the specious logic of New Orleans’s own lawsuit is applied, the city could technically become a defendant in other cities’ lawsuits.

 

‘Alligator Mick’ and the guv’nah

If any of these cities wants to file suit, there’s a place it can go to get great legal representation: Vizard’s in the Garden District. It is at this restaurant, a former bordello that is owned by one of Gauthier’s law associates, that I break paneed sweetbreads with Gauthier, Abel, and other Castano lawyers. There’s Calvin Fayard of Denham Springs, nicknamed “Calhoun” after the shyster lawyer from Amos ‘n Andy. And there’s Michael St. Martin from Houma, La., whose friends call him “Alligator Mick.” When he’s not hunting the offshore personal-injury cases that have made him one of the richest men in the state, St. Martin hunts alligators with rotting chickens and shark hooks.

They are a garrulous and jovial crew. They strictly prohibit grabbing checks or taking a swallow without their topping off your wine. (“Buy a reporter, get a good story,” Wendell says with a wink.) If fatty foods and alcohol are next on the mass-torts hit list, as some suspect, it is clear that these lawyers will bring into the courtroom an extensive personal knowledge of the products. They are happy to be here with their families, eating calamari stuffed with Gulf shrimp and slurping sherry-laced turtle soup. They are happy to sit next to a neighboring table of full-sweatered southern magnolias (“The one in the blue should open a dairy farm,” Alligator Mick observes). Mostly, however, they are sue-happy.

Fayard promises to send me some of the best strawberries in the state. And if I disparage those strawberries in print, he adds, “I’ll sue the s — out of you.” Of St. Martin, Fayard warns, “He’ll sue anybody but his doctor.” Later, when I break the news to Gauthier that a gunowners group called the Second Amendment Foundation is threatening to sue the cities for violating their civil rights, Gauthier shrugs: “We gonna sue them before they sue us for interfering with our contract. Boy, that’ll be fun!”

Scruggs says the Castano Group is “the best bunch of bulls — ers you’ll ever see.” A week later, I’ll see what he means. While soliciting clients at a Conference of Mayors gathering in Chicago, Gauthier emits confidence pheromones, speaking in a thick-Cajun brogue that he must save for the road, as country lawyers travel well. Dennis Hennigan of the Center to Prevent Handgun Violence drops the ball in front of a roomful of reporters, while trying to prove the efficacy of Saf T Lok, a purportedly easy-to-use combination lock in the gun’s grip. Hennigan fumbles and fails to unlock the gun in a well-lit room with no intruder at the door. Hair grays. Epochs wane. Finally, disengaging the safety, he apologizes, “Most people aren’t as klutzy as I am.”

But Gauthier makes no such missteps. “We gonna win this thing in Loo’siana, ain’t no doubt about that. It’s just simply what amount and when,” he brags before a roomful of mayor’s aides and city attorneys. “Second Amendment rights? Boolsheet! I’m payin’ when [gun victims] go to the hospital. . . . We comin’ after ’em; we are a bad dream for the gun industry.”

Back at Vizard’s, I ask Gauthier how he’s going to win what looks to be a weak case. He is, after all, alleging that the industry hasn’t properly warned people about the dangers of its product. This has drawn abject ridicule from writers who cover the gun industry, like Massad Ayoob, who says, “Highway departments must be negligent for not putting up signs that say ‘Do not drive off bridge.’ Hell’s Angels are negligent for not having a sign outside their favorite bar that says ‘Do not stand in doorway and scream ‘Kawasaki rules.’ There are certain basic laws in life. It’s kind of understood.” Though calls right now are running four-to-one against the suit, Gauthier says he’ll get what he needs in discovery. One might think he’s bluffing, though in the courtroom, Gauthier is not known as a gambler. He tests every aspect of his cases, making such elaborate use of mock trials that he even had a courtroom built in his law offices, complete with hidden cameras and a jury box.

Mike St. Martin suddenly adds drama to the discussion by pushing back from the table and drawing a snubnose .38 from under his jacket. Since its only noticeable safety is that the hammer isn’t cocked, I ask St. Martin how his wife feels about light gunplay during dinner. “Safe,” he says. Having captured our undivided attention, the Alligator conducts a teach-in on the perils of showing one’s hand, which may explain why Gauthier grins his coprophagous grin and fails to elaborate about his strategy in the gun suit.

St. Martin’s lesson about not giving anything away comes courtesy of their hunting buddy Edwin Edwards, who used to earn three times his gubernatorial salary at the craps tables. Edwards and the Alligator once found themselves — shades of Tom Wolfe’s A Man in Full — quail-shooting at a Georgia plantation with a group of New York stockbrokers. In their L. L. Bean jackets and double-billed caps, the New Yorkers “couldn’t hit their ass with both hands,” says St. Martin.

“So the guv’nah gets out there and shoots at one bird and misses altogether. He shoots the second bird and just nicks it. He comes walkin’ back and I say, ‘Goddamn Edwin, those were easy shots.’ So I walk out there, they threw two birds, and I blew ’em to dust. I come back lookin’ kind of smug, and Edwin pulls me over to the side and says, ‘You stupid coon-ass!’ I say, ‘What’s wrong?’ He says, ‘This afternoon, those Yankees were gonna think we couldn’t shoot worth a damn. We were gonna be able to shoot against them for fifty to a hundred thousand dollars, and you just f — it all up. Now they know you can shoot, and they never gonna gamble with us.’

“That afternoon, Edwin gets in a gin rummy game with one of them,” adds the Alligator, shaking his head while Gauthier beams admiringly. “He clipped that guy for a fortune.”

Matt Labash is a staff writer at THE WEEKLY STANDARD.