Category: Legal Commentary

‘The Corruption of American Politics: What Went Wrong and Why’

by Elizabeth Drew Birch Lane Press/Carol, $21.95

It is not difficult to find those who complain that American political discourse has become more partisan, more harsh and less statesmanlike. In “The Corruption of American Politics,” Elizabeth Drew joins the chorus, arguing that campaign-finance abuses and the corruption of public political discussion have conspired to poison the American public’s view of its government.

Drew argues that over the past 25 years, U.S. politics have degenerated into nasty partisan bickering and unfair debates, curtailed or limited by anti-democratic rules imposed by congressional leaders. She believes that Americans had “fresh confidence” in their government in 1974 following the resignation of President Nixon after the Watergate scandal, all of which has dissipated in the intervening years.

Although she focuses her fire on increasing partisanship, she reserves her most withering critique for campaign-finance abuses and the collapse of the system for regulating campaign contributions.

In 1972, Congress enacted these reforms, strictly limiting the amounts that could be contributed to federal candidates or political parties. The U.S. Supreme Court overturned portions of the new law, allowing restrictions on contributions to candidates, but holding it unconstitutional to limit citizens’ contributions to political parties for purposes other than direct candidate support. Individuals and political parties, in turn, were limited in their spending on individual candidates, but retained free-speech rights to unlimited spending on issues.

This loophole quickly swallowed the rule, and in present-day political life both major political parties take in vast sums of unregulated “soft money” to be used on “issue ads” calculated to help or hinder specific candidates without expressly saying so. While federal law still strictly regulates direct contributions to candidates and direct expenditures on their behalf, these restrictions, Drew argues, are toothless and easily evaded. And she is probably right.

Drew, who regularly contributes to The New Yorker, usually dispenses carefully reasoned analysis of the political scene in Washington, but here her writing is careless and her analysis either cliched, mushy-headed, or both.

The first portion of her treatise contends that political discourse is not what is used to be and is burdened with more partisan bickering than it was 25 years ago. It’s an interesting point and one fairly subject to debate, but Drew so relentlessly lays the blame on the Republican Party that it becomes difficult to take seriously her thesis that “partisanship” is a bad thing. Partisanship, in any event, has been a central theme in American politics, which, after all, has long featured harsh debate, canings on the House floor, dueling pistols (Burr/Hamilton), assassinations (McKinley, Lincoln, Kennedy) and even revolution (tax, sexual and otherwise). Harsh words seem unlikely to pose any serious threat to the Republic’s foundation.

Drew’s complaints about campaign-finance abuses are equally misplaced. She is right in complaining that loopholes in federal campaign laws are routinely exploited by the major parties. But the cure for this is difficult to imagine and likely worse than the disease.

Drew herself devotes only a few short pages to endorsing campaign-finance reform, but without any serious effort to consider the constitutional implications. One is left wondering whether or how one might limit debate over “issues” by individuals or political parties without posing serious threats to speech rights thought fundamental not only by the Supreme Court, but a majority of Americans. It’s a difficult issue, but you’re won’t find any help in resolving it here.

Federal financing of campaigns, free airtime for political campaigns, or other solutions that might actually relieve candidates of the relentless demands of fund raising for ever-increasing campaign costs are barely mentioned and quickly rejected.

Drew’s book draws a compelling portrait of problems facing our democracy at the turn of the century. It is, unfortunately, empty of any real solutions.

‘The Search for Justice’

by Robert Shapiro

Warner Books, $24.95

Two new additions to the rapidly swelling O.J. Simpson trial library have recently arrived in bookstores.

The first, Robert Shapiro’s “The Search for Justice” (Warner Books, $24.95), provides an account of the trial by one of O.J.’s lead defense lawyers.

The second, Alan Dershowitz’s “Reasonable Doubt” (Simon & Schuster, $20), takes a more academic approach, using the trial as a vehicle to address criminal law more generally.

Shapiro’s is, in many ways, one of the most straightforward books about the trial published to date. Shapiro shuns the pseudo-autobiographical approach used by O.J. prosecutor Christopher Darden in his recent O.J. memoir, “In Contempt,” and instead focuses on the murders of Nicole Brown Simpson and Ronald Goldman, and the trial of O.J. Simpson for those murders.

The Darden book is the No. 1 nonfiction bestseller; the more recent Shapiro book is No. 8.

Shapiro’s book is far from a classic. It does, however, have an appealing immediacy, taking the reader along from the day Shapiro was hired to represent O.J. to the day of the former football star’s acquittal. Although the book is a largely anecdotal account of the arrest, investigation and trial, Shapiro weaves throughout plain explanations for many of the criminal procedures designed to protect citizens from unjust convictions.

Shapiro’s book contrasts sharply with another recent O.J. memoir, by co-counsel Alan Dershowitz. In what has to be

Dershowitz’s 100th book, the Harvard Law School professor and sometime lawyer provides a tedious 200-page lecture on the principles underlying criminal procedure.

O.J. called Dershowitz his “God forbid” lawyer because he was responsible for appealing any conviction that might have resulted from the trial. Because no appeal occurred, he had a relatively minor role in the case. Whatever Dershowitz’s skill at appellate briefing, his book is dry, ponderous and taxing. Staying awake beyond Page 20 requires substantial effort.

Shapiro, by contrast, keeps his description of the so-called “Trial of the Century” lively with detailed descriptions of O.J.’s cell, his communications with his lawyers, and the increasing bickering between the “Dream Team” members hired to represent him. Shapiro was O.J.’s first, and principal, lawyer, hired even before Simpson’s arrest.

Shapiro hired all of the other defense attorneys. He considered, but rejected, the infamously self-promoting Wyoming lawyer Gerry Spence. Nonetheless, Shapiro takes almost all of his hires to task for their trial performance, calling Carl Douglas “pedantic” and “boring” and F. Lee Bailey a “grandiose loose cannon” who had reportedly “lost his fastball.”

Shapiro skillfully describes the tension that developed between himself and Johnny Cochran, including Cochran’s last-minute scheduling of defense strategy meetings while Shapiro was out of town.

Astonishingly, Shapiro notes that he tape-recorded the conversations between himself and Cochran in their car as they rode to court in the mornings, but he offers not a word of explanation about why he did so. It is striking evidence of the chilled, even hostile, relationship between the defense lawyers during the trial. By the end of the trial, Shapiro’s wife, disgusted with the conduct of the defense lawyers, refused to appear in court or sit behind the defense table.

Shapiro notes throughout the book the glare of publicity, complaining about it on one page but proudly noting his celebrity dinners on the next. He mentions dining with Connie Chung, Norman Mailer, Martin Landau, Warren Beatty, and an engagement party for Larry King. In one passage, Shapiro describes a post-dinner conversation with Chung in which she “jokingly” offers to sleep with Shapiro in exchange for an exclusive interview with either Shapiro or Simpson, professing to have “cleared it” with her husband.

Shapiro, like Darden and Dershowitz, criticizes Judge Lance Ito for his indecisiveness, and Ito’s televised interview during the trial. However, he defends the television broadcast and mutes his criticism, perhaps in recognition of his ongoing career as a lawyer in Los Angeles County.

Although Shapiro has harsh words about lead prosecutor Marcia Clark, he reserves his sharpest barbs for his partner on the case, Cochran. He complains about Cochran’s “incessant baiting” of Darden, Cochran’s “bodyguards” from Louis Farrakhan’s Nation of Islam, and Cochran’s methodical efforts to inject race into the trial. After the verdict, Shapiro criticized Cochran for “dealing the race card from the bottom of the deck.”

Throughout his book Shapiro makes great efforts to distance himself from his own trial team, as if to claim victory, yet at the same time disclaim responsibility for the racial strategy and negative public reaction to the trial and its outcome. It is, of course, a balancing act doomed to fail at the outset.

However, Shapiro’s failure is at least passingly engaging and occasionally enlightening. Dershowitz’s treatise is merely mind-numbing.

‘In Contempt’

by Christopher A. Darden with Jess Walter ReganBooks/HarperCollins, $26

O.J. Simpson is a name that once evoked memories of heroic acts on the football field, but now conjures distinctly different images.

For many lawyers, his very name brings into focus an embarrassment of a trial, so out of control that it smeared an entire system of justice.

For many in the African-American community, the name evokes memories of a bungled investigation and a racist cop from a notoriously bigoted police department.

But for others, O.J. Simpson is nothing more than a fallen hero, almost certainly guilty of a brutal double murder, but set free by a terribly misguided jury drawn from one of the most racially divided cities in America.

One of the more interesting characters to emerge from the O.J. trial – and virtually the only one to survive it with his integrity intact – is Christopher Darden, the 39-year-old African-American lawyer who served as the co-prosecutor in the O.J. trial.

Darden arguably had the most difficult role of anyone in the nearly year-long trial. In his just-released autobiography, “In Contempt,” Darden details his role as a black man, prosecuting a black hero, in a trial not only racially charged but grotesquely sensationalized.

Darden notes in his acknowledgments that his goal had been to write a “book that would remain on bookshelves and in libraries for the next hundred years.” Measured against that somewhat pretentious standard, Darden falls short.

The book is largely an episodic account of the O.J. trial, without any serious focus on larger issues, as if Darden were unsure of exactly what he wanted to say. By any other measure, however, the book is a successful and interesting anecdotal account of the trial from someone with a spectacular vantage point.

Written with Jess Walter, a journalist and author from Spokane, “In Contempt” is styled as an autobiography. The first third of the book peels back the layers of Darden’s life, his large family, and his childhood in California. He takes particular care to highlight his troubled older brother, Michael Darden, always two steps ahead of Chris – experimenting with drugs and the fast life while insisting his little brother stay behind. Michael later contracted AIDS, and Darden weaves his relationship with his dying brother throughout the book.

But this is primarily an O.J. memoir. While the book touches on most of the notable events of the trial itself, it does not even attempt to chronicle the trial’s details, dissect the errors by the parties or the court, or make any larger points about law or justice in America. Instead, Darden veers from anecdote to anecdote and unleashes his anger at the bungled investigation, the racial strategy employed by the defense lawyers, and the misguided conduct of the trial itself.

Found evidence

Darden reveals that – long after O.J.’s Bronco had been seized and searched – he stumbled upon a blood-stained towel in the back of the vehicle that the police had overlooked.

He also noted other key pieces of evidence that were lost: a three-page set of notes on domestic abuse apparently written by O.J. himself that was shredded by an O.J. associate before they could stop her and an eyewitness who saw O.J.’s infamous white Bronco run a red light near Nicole Brown’s house just after the crime, but who destroyed her own credibility by selling her testimony to a tabloid before the trial started.

Darden reserves his harshest words for Judge Lance Ito. Darden recounts Ito’s sexist treatment of lead prosecutor Marcia Clark, including Ito’s offensive “joke” in one side conference with Cochran and Darden over a pair of panties in the background of a photograph. Judge Ito commented that “you couldn’t ask Marcia because she doesn’t wear any.”

Darden notes the irony of Ito’s frequent but toothless threats to remove the cameras from the courtroom, while at the same time posing for pictures with boxes of mail he was receiving from admirers.

Startling behavior

Perhaps the most stunning revelation is a meeting in Ito’s chambers in which a juror complains that he had wanted to attend a UCLA football game. Ito, apparently oblivious to the blatant impropriety, asked defense lawyer Johnnie Cochran if he could help. While Darden watched in amazement, Cochran leaped at the chance to provide a gift to a sitting juror.

For tabloid fans, Darden describes his friendship with Clark, forged under nearly impossible conditions. But he refuses to directly address the question of whether the relationship was deeper than platonic friendship. His disingenuous coyness is enough to raise an eyebrow, but this book provides no direct answers to those interested.

Throughout, Darden returns to his brother’s unsuccessful fight against AIDS, his declining health, blindness and death. It is a provoking metaphor for the O.J. trial or the criminal justice system more generally, but one that Darden indifferently offers and then ignores.

Since the trial’s conclusion, Darden has retired from the practice of law and now teaches part time at a law school. His retirement may well provide a more telling comment about his faith in American justice than anything in this book.

‘A Civil Action’

by Jonathan Harr

Random House, $25

For a parent, there is nothing more terrible to consider, much less experience, than the death of a child. In Woburn, Mass., Anne Anderson watched her young son Jimmy die a slow, painful death from leukemia – and Jimmy, she soon learned, was not alone. A number of other children, all from the same small, blue-collar neighborhood, had suffered the same fate.

Anne Anderson’s neighborhood lay in the shadow of industrial facilities owned by two of the largest corporations in America, and the water in that part of Woburn had long been a subject of dispute. Residents complained of its taste and smell, but city officials repeatedly assured them that everything was fine. The water, they said, contained nothing unusual and was perfectly safe for everyone, even children, to drink.

Not satisfied with the city’s response, Anderson and her neighbors sought a remedy in the courts. Jan Schlichtmann, a flamboyant young trial lawyer with expensive tastes and a flair for winning jury trials, was hired by the families of the young victims. His small office proceeded to take on two of the nation’s major corporations – the W.R. Grace Co. and Beatrice Foods – who were represented by two of the largest, most respected law firms in Boston.

Schlichtmann, who favored using expensive hotel suites, with lavish meals and expensive wines, to influence settlement discussions, wagered virtually everything he had on the case: his office, his home, his savings, even his expensive sports car. By the middle of the trial, he was up to his neck in debt and his car had been repossessed; by the last days of the trial, his associates were fending off angry creditors and juggling the firm’s last remaining dollars to ensure that Schlichtmann could pay his dry-cleaning bills for the rest of the trial, if nothing else.

Schlichtmann’s experts discovered that toxic chemicals from the two plants had seeped underground and poisoned the neighborhood’s water supply and, with it, the children who lived there. But many things are believed to contribute to leukemia – even peanut butter has been suspected – and very little is known for certain of the causes.

Difficult case to prove

Most of the dumping had occurred long ago, and only the tattered remnants of history remained: witnesses with fading memories, empty rusted barrels, and earth contaminated by layers of pollution from different sources at different times. Sorting out the causal link between one source of pollution and a disease as poorly understood as leukemia can be difficult business at best; proving it under the harsh conditions of a courtroom can be impossible.

Despite these handicaps, “A Civil Action” tells a gripping story of epic environmental litigation – a story so compelling that Robert Redford is directing a movie version. Author Jonathan Harr immerses us in this legal drama, taking us backstage to watch lawyers fashioning legal proof from raw human experience. Harr, who has written for The New Yorker and other journals, pored over eight years of litigation records and reviewed 50,000 pages of depositions and trial transcripts.

What emerges is a picture of the civil justice system far different from that usually portrayed in the popular media. Here, lawyers make mistakes, face financial realities, and do their best in difficult situations. Unlike their 30-minute, prime-time colleagues, they toil for years before an ending that is never as clean-cut as one might hope.

Harr tells this story with consummate skill, jumping back and forth between the families, their lawyer and the defense, to build real-life suspense. As Schlichtmann aptly describes a trial, it is “like being submerged in deep water for weeks at a time. The world above becomes a faint echo. War, scandal, and natural disaster may occur, but none of it seems to matter.”

Yet Harr plainly has his sights set higher than merely retelling the story of the trial, compelling as it is. The Woburn case vividly illustrates how our system of justice allows a small handful of working-class families to hire a lawyer, step into court and challenge powerful corporate interests.

But that’s only the most obvious, and least interesting, lesson. Harr’s triumph is in his brutally accurate depiction of civil litigation when played for keeps with high stakes. Despite strong evidence of pollution by the defendants, it took eight years and millions of dollars to complete the case.

Costly to everyone

By the end, lawyers on both sides had been found to have violated ethical obligations, and one lawyer was driven to bankruptcy. The sheer cost of the trial – expert analysis and testimony, graphic exhibits and thousands of hours of preparation – ultimately absorbed a huge percentage of the award for damages. The remainder was reduced further to compensate the families’ lawyer’s contingent fee.

The families who suffered the tragedy – remember them? – ultimately recovered a relatively small amount after years of struggle. Their lawyer was left in bankruptcy, and their corporate opponents were left to ponder liability on obscure grounds.

“A Civil Action” has an uncomfortably untidy ending – but perhaps more true and accurate than we might like to admit.

‘The Death of Common Sense: How Law Is Suffocating America’

by Philip K. Howard

Random House, $18

Americans love to rail against excessive regulation – at least until someone gets hurt. Then they cry, “There ought to be a law!”

Philip K. Howard’s new book, “The Death of Common Sense,” is the latest swing of this pendulum. The slim volume is packed with splendid examples of absurd regulatory inflexibility – like the portable public toilets in New York, doomed because they were not wheelchair-accessible; or the nuns who were stopped from converting townhouses into homeless shelters because they could not afford to install elevators.

Howard complains that this growth of bureaucratic rule-making stifles economic growth and impedes the very safety and environmental objectives that the regulations are supposed to ensure. “Common sense,” he declares, is the solution.

But countless lives have been saved by seat belts, air bags, air-quality standards, child-resistant drug bottles and flame-retardant requirements for children’s pajamas. Howard threatens to throw the baby out with the bath water. And “common sense” is not always obvious, especially to unelected government regulators.

Still, as our own governor was distressed to discover last month when he tried to allow a girl to keep a horse she had found, formidable regulatory barriers often thwart common-sensical solutions. Flexibility and measured deregulation can be valuable goals. Howard’s overwrought manifesto at least provides a starting place for the debate.

Peter Irons has his work cut out for him.

The 53-year-old attorney and political science professor may soon be taking on the toughest possible legal opponent: the entire United States Supreme Court.

He is no stranger to controversy. A 1960s civil-rights activist who later served 2 1/2 years in federal prison for draft resistance during the Vietnam War, Irons has angered the court by making public some of its most significant debates in the past four decades – debates such as Roe v. Wade on abortion rights, Cooper v. Aaron on school desegregation in Little Rock, and United States v. Nixon on the Watergate tapes.

Irons, who is director of the Earl Warren Bill of Rights Project at the University of California at San Diego, released copies of the tapes through the nonprofit publisher, The New Press, only after signing a pledge not to reproduce them. The court considers it a “clear violation” of Irons’ contract with the National Archives, said a court spokeswoman, and “is considering what legal remedies may be appropriate.”

Public records

Irons, on the other hand, considers it common-sense disclosure of public records and adamantly rejects the court’s justification for its restrictive rules.

“It seems a little odd that they have only complained when the tapes were made available more widely to the general public,” said Irons in a telephone interview. “Why is it in the public interest to require every person who wants to use one of the tapes to go through the laborious and expensive and time-consuming procedure Supreme Court public information officer of requesting each one individually from the National Archives – and then waiting months for a response?”

The tapes, Irons pointed out, have been available to legal scholars for years, and the court has “never defined what the harm would be by wider release of these tapes.” He said he is distressed by what he called the court’s attempt at “trial and conviction through press release.”

The tapes are available at bookstores in a boxed set titled “May It Please the Court. . .” – the traditional opening phrase used by attorneys before the nine justices. Priced at $75, the package edited by Irons and his associate, Stephanie Guitton, includes six 90-minute audiocassettes and a 370-page book of transcripts of oral arguments in 23 landmark decisions.

Irons admits that he asked neither the court nor the National Archives for permission to reproduce the tapes.

“I knew perfectly well that . . . it would be an exercise in futility,” he said, acknowledging that he agreed not to reproduce the tapes or allow them to be reproduced for any purpose. The contract with the archives, provided by the court to The Seattle Times, also shows that Irons agreed “to use such audio tape for private research and teaching purposes only.”

Though the agreement seems clear-cut, Irons explains his signing and subsequent disregard of it in true lawyerly fashion. His release of the tapes, he said, is “consistent with the contracts to the extent that the contracts are intelligible at all.”

The tapes, he continued, “belong to the American people. They do not belong to the Court or to the justices. . . . They’re public records.”

Recording since 1955

The Supreme Court itself began recording oral arguments for internal use in 1955, and in 1969 began turning the tapes over to the National Archives, where copies are made available “for private research and teaching purposes only.” The archives bars duplication of the copies for any other use, including radio or television broadcast – a provision already violated this week when National Public Radio aired excerpts from “May It Please the Court. . .” during a three-day series on its “Morning Edition” news program.

Calling the set of tapes a “clear violation of Professor Irons’ contractual commitments,” the spokeswoman for the Supreme Court notes that others have sought permission to reproduce the tapes and such requests have been routinely denied.

“He signed several contracts with the archives, but he must have had his fingers crossed behind his back,” said Toni House, the court’s public information officer. The tapes, she said, belong to the court and the court had neither the obligation to produce them nor to deliver them to the archives.

However, in a telephone conversation House was unable to articulate any compelling public interest in restricting distribution of the tapes. She acknowledged that copies of the tapes were available to scholars and even for classroom use. What further public interest was served in denying the taxpaying public access to the tapes?

Sound bites

“The court,” she said, “is concerned about distortion and sound bites.” House refused to say what actions the justices might take when they reconvene later this month, noting only that the court has its own lawyers and could refer the matter to the Justice Department.

Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, in California, does see some purpose in the court’s restrictions.

“Oral arguments are high-pressure situations, for both the judges and the lawyers,” said Kozinski in a telephone interview. “Judges may be hesitant to ask questions if they know that every stutter will be on the evening news.”

But constitutional scholar Laurence Tribe of the Harvard Law School agrees with Irons that the court has “no legitimate general interest” in precluding distribution of the tapes. In fact, Tribe said by telephone, the “general public ought to have access to the tapes. It’s wrong in principle that the only people who have access to these arguments are those that can fit into the courtroom.”

However, he noted that “it doesn’t follow that the restrictions are unconstitutional or that you should take the law into your own hands . . . I think that’s a pretty extreme way of challenging a rule.”

Louis Michael Seidman, a constitutional law professor at Georgetown University and a former clerk to Justice Thurgood Marshall, agrees with Tribe, saying that the court “looks foolish” for refusing to release the tapes and that it “makes the court look like it has something to hide.”

A glimpse inside

The tapes themselves are a fascinating glimpse into the marble and velvet-shrouded public courtroom of the highest court in the land. Among other highlights, they include:

— Gideon v. Wainwright, in which the Court established the right to counsel for the poor. Abe Fortas, later a Supreme Court justice himself, shakes with indignation at the state of Florida’s suggestion that an indigent could possibly match the state without the assistance of counsel, as he booms “(n)o man, certainly no layman, can conduct a trial in his own defense so that the trial is a fair trial.”

— Cooper v. Aaron, in which the court rejected the state of Arkansas’ attempt to block school integration. A young Thurgood Marshall makes a passionate argument, including: “I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I’m worried about their future. I don’t worry about those Negro kids’ future, They’ve been struggling with democracy long enough.”

— United States v. Nixon, or the Watergate tapes case. This tape includes then-Justice Marshall’s cutting cross-examination of James St. Clair, President Richard Nixon’s lawyer, on whether the president would obey the court’s ruling if it compelled release of the Watergate tapes.

— Gregg v. Georgia, in which the court held the modern death penalty constitutional. Robert Bork, then U.S. Solicitor General, made a ponderous argument for the government, facing off against New York University’s sparkling Anthony Amsterdam.

— Roe v. Wade, in which the court first recognized constitutional protection for abortion. Texas Assistant Attorney General Jay Floyd began his argument against young attorney Sarah Weddington with a ghastly, perhaps revealing, attempt at humor: “It’s an old joke,” Floyd says, “but when a man argues against two beautiful ladies like this, they’re going to have the last word.” No one laughed.

There are many other prominent or controversial arguments, from “one-man-one-vote” in Baker v. Carr, to the right to remain silent in Miranda v. Arizona. Irons has done a masterful job of editing the tapes, and he introduces each with a brief background on the case. From time to time, he interrupts the tapes to identify (and sometimes misidentify) the justices asking questions, and he concludes each with a brief summary of the court’s ultimate ruling.

The summaries make clear Irons’ personal approval or disapproval of the results, but he argues that “it is virtually impossible to totally eliminate your personal perspective on things. I’ve never made any pretense of being totally unbiased”

Ultimately, the tapes are a wonderful resource, even if sensationalized by the method of their release. The contrast between the more emotional and passionate arguments of the early tapes and the cooler, more formal recent arguments is striking.

Stripping away mystique

For the vast bulk of the American public, unable to attend any argument before the high court – much less 23 of its most important – the tapes are invaluable. They strip away the court’s black-robed mystique to reveal the very human, very simple, and very compelling core of nine men and women struggling to come to terms with difficult issues in a responsible way.

As Irons notes, the tapes make the court look like the serious, deliberative body it is.

“There is nothing on the tapes that diminishes the integrity of the court,” he said. “I think that people will have a better understanding of the Court as an institution and also (an opportunity) to experience these historic cases.

Undue Influence: The Epic Battle for the Johnson & Johnson Fortune

By David Margolick

William Morrow & Co. $23

A general rule of thumb with lawyers is that you should consider yourself lucky if subjected to only one or two boring “war stories” per day. Look interested and you may spend the next hour listening to yet another mind-numbing exposition. Call it an occupational hazard.

This appears to be the problem with “Undue Influence,” the interminable account of the battle over the last will of Johnson & Johnson magnate Seward Johnson.

The story has all the necessary elements to be fascinating: lots of money, rich middle-aged children fighting their father’s young widow for his estate, sordid sex, bungled murder plans, arrogant New York lawyers (the worst kind) and an openly biased judge presiding over it all. In fact, this would make a compelling, fast-paced, 200-page book. It would make an exhaustive, complete account of a complex litigation at 400 pages. Unfortunately, it rambles on for 612 pages.

Margolick writes with flair in the book, but he tells this story twice.

First, in narrative, he tells the story of Seward Johnson – his $500 million fortune, his first two wives and his distant relationship with his children and their families. (Each held a trust fund worth millions). The 76-year-old Johnson then encountered and later married Basia Piasecka, his 34-year-old Polish immigrant maid. The two, apparently happy and content, proceeded to spend lavishly, even building a $25 million home, grandly named “Jasna Polana.” When, shortly before his death, he signed his last will, leaving virtually his entire estate to his wife, most readers can see the train wreck approaching.

Then Margolick tells the story again through the testimony at trial.

Both sides hired high-priced, big firm “litigators” who proceeded to bill enormous amounts for overly aggressive and tedious litigation. (One deposition lasted 26 days.) Two of the lawyers even billed the estate for attending the funeral. But none of it stopped Basia’s team of lawyers from dining on catered multicourse lunches with expensive wines at their nearby getaway during trial.

Eventually, just before it went to the jury, the parties settled, providing $350 million to Basia, with a few million each to the children. Basia’s lead lawyer, dubbed a “sack of potatoes” by the ever-caustic Basia, bought a cow after the settlement, symbolically named it “Basia” and had it slaughtered and made into hamburger. The meat, he announced, was “tough and stringy.”

Both before and after the litigation was ultimately settled, it spawned numerous related lawsuits, including one against Basia by her defense firm for her refusal to pay them an additional $5 million beyond their billings. When that case, too, settled (she paid an additional $2.3 million), she sued her other defense firm for malpractice in Florida. They counterclaimed by filing suit in New York. After another year of combative litigation, that case settled, again with Basia paying the lawyers millions.

It’s hard to feel sorry for anyone involved in this mess. But it’s more than a little ironic that this account of this litigation gone wild is itself overwritten.

‘Turning Right: The Making of the Rehnquist Supreme Court’

by David G. Savage

Wiley, $22.95

The new book by David G. Savage, the Los Angeles Times’ Supreme Court correspondent, tells the terribly depressing – or terribly exciting, depending on your point of view – story of the transformation of the United States Supreme Court from 1986 to the present. Beginning with the confirmation of William Rehnquist as chief justice, “Turning Right” goes on to discuss in some detail the nominations and confirmations of Justices Scalia, Kennedy, Souter and Thomas.

Savage is particularly adept at describing complex decisions accurately and in plain English – a talent not widely shared by reporters covering the high court. He also takes pains in his portrayals of the justices, carefully avoiding overly broad generalizations about the rightward shift in the court’s philosophy.

Taken as a whole, the book ably documents the fundamental shift in power that has necessarily resulted from consecutive Republican administrations. By the fall of 1991, Presidents Reagan and Bush had appointed 439 of the existing 837 federal judges and, perhaps more significant, five of the nine Supreme Court justices. Justice White, appointed by President John Kennedy, is the sole remaining Democrat-appointed justice, though he most often votes with the conservative majority. The book, and those statistics, are well worth pondering.

‘Galileo’s Revenge: Junk Science in the Courtroom’

by Peter W. Huber

Basic Books, $23

The plaintiff had a minor accident: falling from a streetcar. She sued the city not for her bruises but for breast cancer. A distinguished “expert” testified that the accident was the “direct cause” of the cancer. The jury awarded $50,000. Elsewhere, an “expert” helped a psychic who claimed she lost her powers after undergoing a CAT scan won a million dollars from a jury.

Peter W. Huber, a conservative scholar, cites these and dozens of other examples in his new book “Galileo’s Revenge: Junk Science in the Courtroom” (Basic Books, $23).

In the book, Huber argues that “junk science” has invaded the courtrooms of America, misleading gullible juries into awarding absurdly high verdicts and forcing safe and important products and drugs off the market. Vice President Quayle’s Competitiveness Council has joined in the attack on “junk science,” and President Bush has even signed an executive order requiring government lawyers to present only “reliable expert testimony.” (One wonders what sort of expert testimony the Justice Department was using before it had the president’s guidance on the issue).

Huber argues, paraphrasing Justice Oliver Wendell Holmes, that the best test of certainty we have is “good science.” Unless accepted by the scientific mainstream, he argues, all such “junk science” should be excluded completely. What Justice Holmes actually said was that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” There is remarkably little explanation in Huber’s book why such patently goofy “junk science” is not easily and immediately squashed by an overpowering display of “good science.”

And some of Huber’s examples prove the opposite point: Some radiation once thought benign is now universally recognized as devastating. Theories that at first blush seem outlandish or unusual are not infrequently later accepted as scientific dogma. And no, a jury’s verdict is not the final word on scientific truth, and yes, a jury can make a mistake.

But Huber mistakes the role of a scientist and a jury: a scientist’s task is to discern the truth; a jury’s task is to sift disputed evidence and allocate blame on a “more probable than not” standard.

Huber, though, admits to none of this complexity. Like Chairman Khrushchev pounding his shoe on the table, Huber seems oblivious to the subtler gradations of rhetoric. But if you can ignore all the arm waving, the book is hilarious. Huber is a superb and genuinely funny writer who turns this somewhat arcane topic into interesting and compelling reading.

‘Praying for Sheetrock’

by Melissa Fay Greene Addison-Wesley, $21.95

“Praying for Sheetrock” is a beautifully written first book by an ambitious young lawyer who set out to change the world 15 years ago by working in a rural Legal Services office in an obscure Georgia backwater: McIntosh County. What Melissa Fay Greene found was an astonishing pocket of the world, seemingly untouched by the civil-rights movement and still controlled by a corrupt white sheriff and his courthouse gang.

Sheriff Poppell did not rule through force, but through patronage. When a truck crashed on the interstate, he would spread the word and stand by quietly while the poor harvested the shoes, candy bars, or whatever unfortunate cargo was lost. He was involved in drug smuggling, prostitution, and gambling, but most of all, he enforced the segregated status quo. Greene details the black community’s awakening and overthrow of the sheriff, assisted in part by Legal Services lawyers.

She tells the story through the eyes and voices of the community, with poetic and striking portraits of the county, its people, and its politics. She could have stopped with a romanticized version, untouched by human weakness, but Greene opts to tell also of the downfall of the most prominent black activist. He succeeded in overthrowing the sheriff and was elected to the County Commission, only to succumb to temptation and be convicted of corruption. It’s messy and inelegant, just like life. That, I suppose, is about the highest praise one can give to a portrait of a community in change.