Off target: the biggest challenge to the NRA may not come from trial lawyers, but from demographics

Washington Monthly, Jan-Feb, 2003 by Stephen Pomper

OUTGUNNED: The First Complete Insider Account of the Battle Over Gun Control by Harry Brown and Daniel G. Abel Free Press, $26.00

SEVERAL MONTHS AGO, AT THE HEIGHT of the Washington sniper crisis, conservative New York Times columnist and Maryland suburbanite William Satire wrote an uncharacteristic column calling for the government to do something, for God's sake. "Congress should make it easier to identify ammunition and the weapons of individual destruction that fire it," Safire declared. "Gun registration's time has come." This slightly panicky outburst amused online commentator Mickey Kaus. Recalling the old joke that a conservative is a liberal who's been mugged, Kaus observed that "a statist is a libertarian who can't walk his dog."

Right--and gun control is what will come to pass when all those anxious dog walkers reach critical mass and head for the voting booth. Meanwhile, Outgunned, by journalist Peter Harry Brown and trial attorney Daniel G. Abel, is about what's happening in the here and now. More specifically, the book is a sympathetic look at the efforts of a nationwide consortium of trial lawyers (including Abel) who called themselves the "Castano Group," and who took on the gun industry in the late 1990s. Why are these lawyers particularly interesting? While it's true that others had already tried to sue the gun industry (including in a well-publicized New York litigation), the Castano lawyers were different. In the world of the plaintiff's bar, they were the A-Team. They had resources, connections, and experience--including the experience of winning a $346 billion settlement from the tobacco companies. They were also ambitious. Beginning in 1998, the Castano lawyers launched anti-gun suits in cities across the country--until more than 30 state and local governments were involved in litigation against the gun industry.

The Castano lawyers knew this would be extremely challenging litigation and were proven correct--most of it has floundered or failed. So why did they do it? Not for the cash, insist the authors, who point out that the gun Companies do not have the same deep pockets as Big tobacco and could never offer the same kind of rich settlement that the tobacco litigation yielded. But even if one accepts that the lawyers' motives were largely pure (maybe they were, maybe they weren't)--and, indeed, even if one discounts their failures in court--Outgunned is not a book that inspires great confidence in the potential of litigation to solve the nation's most vexing policy issues.

It also is not a very reflective or analytic book. To be fair, Outgunned bills itself as an "insider account of the battle over gun control." This is meant to be juicy stuff, not a policy tract. But without much critical argument to distract the reader, the book bogs down in a muck of appalling details about the Castano lawyers who are supposed to be our heroes--facts that the authors unabashedly trot out and never successfully excuse. The key players include well-connected Washington, D.C., lawyer John Coale--who is called "the clown prince of the legal world"--and Cincinnati's Stanley Chesley, a.k.a. the "sultan of settlement." But the lion's share of the limelight is reserved for the book's co-author Abel and his partner, Wendell Gauthier, with whom Abel bonded at the site of the Union Carbide disaster in Bhopal, India. Ah yes, those were the days. "While an elephant chased Gauthier through the streets of India," recall the authors, "Abel crept over terrain with thickets full of cobras to spy on the Union Carbide plant."

Excuse me, but doesn't that sound like the voiceover for an old "Rocky & Bullwinkle" segment--all deadpan and credulous? What's more, the authors manage to sustain this tone for much of the book, making for reading that, despite the subject matter, sometimes verges on the hilarious. In one memorable scene, the Castano lawyers make the mistake of letting a reporter, Matt Labash of the conservative Weekly Standard, tag along for a few days while they work and play. Labash discovers firearms "everywhere" on these ostensibly anti-gun lawyers, including "in Danny Abel's automobile [and] inside the jacket of [colleague] Michael St. Martin--who pulled out the weapon in a fancy restaurant." "I think this is really going to hurt our credibility," intones a sorrowful Gauthier after Labash has left, armed with all the goods for a truly, world-class takedown.

Well gosh, Bullwinkle, that's right--and the same observation might be made of Outgunned. Indeed, by the time we read about Gauthier's adventures in riverboat gambling and learn that John Coale's law license suspended as recently as 1996 for "professional misconduct in soliciting clients," the Castano lawyers are all but stripped of credibility. I say this, by the way, as a lawyer who has some appreciation for the useful role that trial attorneys can play in ensuring that manufacturers take responsibility for the goods and services they produce. I certainly don't reflexively dislike trial lawyers. But Outgunned gives precious little reason to trust the judgment of its protagonists--much less afford them a prominent role steering national policy in an area pretty far from their normal product liability work.