The Price of Justice
California Lawyer

The Price of Justice

A True Story of Greed and Corruption

January 2014

The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer
Times Books, 448 pages, $30, hardcover

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Excerpt: CHIEF December 2013




The Price of Justice provides a captivating journalistic account of an Appalachian legal odyssey that culminated in a 5-4 U.S. Supreme Court opinion about fundamental fairness in civil litigation. The case was Caperton v. A.T. Massey Coal Co., Inc. (556 U.S. 868 (2009)), which considered the rights of litigants to present cases before elected judges who are untainted by bias, or even the objective appearance of bias. In Caperton, the high court ruled that Justice Brent Benjamin of the West Virginia Supreme Court of Appeals had to recuse himself from a case in which Massey, the coal company, was an appellant, after Benjamin had received more than $3 million in contributions to his judicial election campaign from Donald L. Blankenship, the chairman and CEO of Massey, which was a very high sum from one person at the time.

The underlying dispute began years earlier, with Massey's hardball tactics in dealing with a smaller coal-mining operation, Harman Development Corp. (and related entities) in Virginia. Through corporate acquisitions, a Massey subsidiary in 1997 obtained a long-term contract to purchase all of Harman's output, at a relatively high price. Massey soon reneged on taking any more than a third of the coal, dubiously invoking the force majeure clause in the contract to avoid honoring its full commitment. Massey seems to have simply disregarded the contract, and did not even try to implement an "efficient breach" to justify its actions. This maneuver pushed Harman to the brink of bankruptcy, prompting Hugh M. Caperton, Harman's now-desperate owner, to try to sell his company to Massey, which initially seemed amenable to a deal. But Blankenship strung out the negotiations for months, then simply walked away from them, leaving Harman to collapse, along with the livelihoods of its 150 employees. Afterward, Massey, which had already purchased land near the Harman site, obtained the mine for a song.

Prolific nonfiction author Laurence Leamer, known for his books about the Kennedys, covers all the legal action here, beginning with the first meeting of Caperton and his tenacious attorney, David Fawcett III (then a partner at Buchanan Ingersoll), who realized that the fact pattern encompassed both breach-of-contract and tort claims. Leamer also chronicles the addition to the case of impassioned attorney Bruce Stanley of Reed Smith; the two prominent law firms' laudable decisions to take on the work for contingency fees; the lengthy torts trial in a steamy small-town courthouse in West Virginia; the three trips to the West Virginia Supreme Court; the U.S. Supreme Court appeal, in which Theodore B. Olson of Gibson, Dunn & Crutcher performed masterfully as appellate counsel for Harman and Caperton; and the move to Virginia's state courts, where the case had to begin again - and is still ongoing - because of the West Virginia high court's interpretation of a contractual forum-selection clause.

Leamer excels at describing the joys and strains of both the trial preparation and the trial itself, all of which will seem familiar to any civil litigator. For example, Fawcett's legal assistant, Rob Devine, found and deciphered in the discovery disclosures a cryptic note Blankenship had scribbled on a memorandum that indicated the CEO engineered the events that Massey later cited as force majeure. Also recounted are the events of the morning that Caperton was to begin testifying, when the defense attorneys requested a brief trial continuance because one of their longtime secretaries had died the night before. Fawcett - suspicious of delay tactics - demanded proof that the woman really did die. She had, and the plaintiffs lawyers agreed to delay Caperton's testimony.

As the story develops, after Harman and Caperton win a hefty jury verdict and the case goes on appeal, the main point of The Price of Justice - to expose the corrupting influence of money on judicial systems in which judges are elected - becomes manifest. In the course of events, the author exposes how truly depressing it is that some of the West Virginia Supreme Court justices (not just Justice Benjamin) who presided over the Caperton case seem more like ethically challenged politicians rather than jurists worthy of respect and trust. According to Leamer, Benjamin solicited Blankenship face to face for major financial backing for his 2004 judicial election campaign. Benjamin later claimed not to have done so. In any event, Blankenship both bankrolled and masterminded an aggressive campaign for Benjamin that featured an onslaught of television ads that appealed to the lowest common denominator of the electorate. Then, three years after winning his seat on the state high court, Justice Benjamin cast the deciding vote overturning the jury verdict against Massey, and he was utterly obtuse about the appearance of impropriety in the matter.

Additionally, in the same general time period, Justice Elliot "Spike" Maynard was photographed sharing a meal with Blankenship while they were both vacationing in Europe. Later, during the Caperton oral argument, Justice Maynard left the room for the entirety of Fawcett's presentation, returning to hear only from Massey's advocate. It was later discovered that Maynard had been emailing his pal Blankenship for help with his own reelection campaign. Fortunately, and perhaps ironically, Maynard lost his court seat in the next election.

Leamer may be overreaching in claiming corrupt motivations for some actions of then-Chief Justice Robin Davis. Though the author's inferences of wrongdoing are plausible, they are based on indecorous leaks and the mere speculation of Justice Larry Starcher, who admittedly had an ax to grind.

The book paints a vivid picture of the goings-on inside and outside the U.S. Supreme Court on the day of the Caperton oral argument. And despite not being a lawyer, Leamer sets forth good summaries and interesting analysis of the majority and dissenting opinions in the Caperton decision. Caperton held that the due-process principles embedded in the U.S. Constitution's 14th Amendment required Benjamin to recuse himself from the $50 million business-tort case. Leamer notes that Chief Justice John Roberts's prediction in his dissent of a flood of lawsuits challenging judges for election-related biases has not come to pass.

Leamer also sketches the backgrounds and personalities of the whole saga's key characters, including many attorneys and judges. Leamer is obviously sympathetic to Caperton, Fawcett, Stanley, and the West Virginia jurists who ruled in Harman's favor. These people, including now-retired Justice Starcher, were also the folks who talked openly to Leamer. Blankenship, the defense attorneys, and the West Virginia appellate justices who ruled in Massey's favor refused to be interviewed or to contribute material for the book. Perhaps as a result, other than Blankenship and Justice Robin Davis - both semi-celebrities with strong personalities - those people are indistinct characters in the book.

Fawcett and Stanley have battled Blankenship and Massey in multiple lawsuits, not just the famous case leading to the Caperton decision. Leamer's treatment of these other cases, some involving horrific mine-safety problems leading to the deaths of many miners and/or catastrophic pollution of the environment, gives him additional opportunity to explain the history, culture, and politics of West Virginia coal country. However, the organization and flow of the book suffer somewhat because it tries to cover too much material.

Still, as other reviewers have noted, The Price of Justice reads like a legal thriller. The story is epic and entertaining - and sometimes hard to believe - but it is certainly worth reading.

Jonathan M. Eisenberg is a deputy attorney general with the government law section, civil law division, of the California attorney general's office in Los Angeles.

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