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High Caliber Justice

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After Agent Orange, Weinstein's devotion to mass torts only grew more intense. In the mid-eighties, he called on Congress to expand Social Security into a national health-insurance and comprehensive disability plan, and to create a federal court for helping victims of mass disasters, from train crashes to terrorist attacks. It was as if he had finally found a method for improving the world that could satisfy his bold theatrical streak, his zeal for administrative law, and his social conscience -- all at the same time.

On February 10 at 2:45 p.m., the jurors send in yet another note: "We've examined the evidence and at this point both sides have very distinct opinions. Do we 'compromise' to come to an agreement?"

Weinstein instructs each juror to decide the case on his or her own while taking care to listen to the others. But Smith & Wesson lawyer James Dorr warns Weinstein that they might be on the brink of an unfair horse trade. "I'm inclined not to stir a pot at this point," Weinstein says. "Let's see what they come up with next."

The next day, like clockwork, another note arrives: "One juror refused to work toward a verdict because he or she feels the verdict 'will open the floodgate of lawsuits across the country.' Could the judge address the importance of focusing only on the evidence in these seven cases?"

Barnes smells one bad apple in the barrel. "I wanted him out, out, out!" she recalled later. "He clearly had an agenda of his own." Weinstein turns Barnes down, refusing even to interview the skeptical juror.

Again, gun lawyers warn Weinstein about a jury compromise. And again, Weinstein won't budge. Instead, he makes a pun: "As a practical matter of jury's prudence," he says, spelling it out so the joke can make it into the record, "jurors constantly compromise. Otherwise they would not be able to decide very many cases."

Weinstein's reputation in class-action cases got him noticed by Elisa Barnes, a Manhattan plaintiff's lawyer who had spent years building the Hamilton v. Accu-Tek case. She needed a judge who would sit still for the wild-card thesis of her case -- that the gun industry turned a blind eye to the fact that its handguns found their way into a black market of guns used in crimes like the one that killed Freddie Hamilton's son.

And so, rather than wait for a Second Circuit judge to be chosen randomly, Barnes formally requested Weinstein -- citing a DES case, and one in 1981 that he heard involving a defective shotgun, as "related cases." Gun attorneys insist they didn't learn Barnes had done this until a year later, when one of them stumbled across the request sheet in a file; they now plan to contest it as an abuse of the related-cases rule.

Once aboard, Weinstein rode Barnes hard to make sure the case was trial-worthy. Before arguments started, he dropped all victims who hadn't been shot in New York State. Seven plaintiffs remained. During the trial, Weinstein kicked all of the gun distributors out of the case, leaving 25 manufacturers, and ordered Barnes to produce evidence on national market share in the handgun industry. After trying dozens of different tactics, Barnes found the sweet spot: not just seeking to prove that the industry's marketing practices supported a black market but identifying each gun-maker's liability by matching it to its share of the national handgun market.

If this was Weinstein's intent all along, he certainly didn't hide it. "I have to say, I'd never seen Judge Weinstein so happy and beatific as the day he got the market-share evidence," says Denise Dunleavy, who came on board to try Hamilton with Barnes and two other lawyers. "Not happy for the plaintiffs -- just happy that he was watching the case unfold, maybe in the way he envisioned it years before."


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