David Rossmiller reviews Kings of Tort and recaps Scruggs saga as only he can
Partial reprint courtesy of David Rossmiller and Mississippi College School of Law
The following is an excerpt from an article (Westlaw Subscription required) written by David Rossmiller, of the Insurance Coverage Blog, published in the Mississippi College School of Law Review. Thanks to both David Rossmiller and the MC School of Law for permission to excerpt the article.

In the broad scheme of things, Scruggs's use and misuse of a combination of litigation, politics, self-promotion, and public relations appeals to naked self-interest masked as altruism and whatever-it-takes rule-bending *603 and -breaking is the real story--a toxic smorgasbord we might call Scruggsism--not merely the fact that a famous guy got pinched for rigging the scales. The story of Scruggs and Scruggsism has broad implications for American legal culture. Although we receive a certain schadenfreude from the details of some elite celeb miscreant like Winona Ryder getting bagged by the rozzers and frog-marched like a commoner for taking a five-finger discount, there is much more at play in the Scruggs story than morbid fascination.

A new book on Scruggs called Kings of Tort [FN3] gives us reason to think once again of Scruggs, who went to prison in 2008. The authors of this book provide a valuable service by examining Scruggs's rise and fall. Although there is a decided emphasis on the fall with more than half the book's 255 pages devoted to Scruggs's prosecution, the authors' cataloguing of his methods on the way up effectively foreshadows his end and makes us unsurprised--even if we did not know how the story ends--that Scruggs went out the way he did. The authors are Alan Lange, proprietor of the Y'all Politics blog [FN4] in Mississippi, and Tom Dawson, a recently retired federal prosecutor who played a major role in investigating and prosecuting Scruggs. It should be mentioned that I do not know Dawson, but Lange is a friend of mine. Lange and I communicated pretty often about the Scruggs scandal and prosecution and about Scruggs's earlier role in Katrina civil litigation. One can also see in the book's credits that the authors cited posts and materials from my blog, Insurance Coverage Blog, [FN5] and I am mentioned once or twice in the book. However, although I was aware they were working on a book, I did not speak to them about it or have any role in its creation or writing.

One strength of this book is that the authors play it straight, with a minimum of editorializing and restrained use of adjectives. This is the right decision for a book that is mainly about the criminal investigation and prosecution of Scruggs, with abundant material about Scruggs's earlier career and Katrina litigation presented to provide the context that Scruggs had certain operational conventions and parameters that, we are not shocked to discover later, were flexible enough to include bribing a judge or two. This is, in other words, a book that takes Scruggs and his crimes seriously, which is what you would expect from a book cowritten by one of the people who put Scruggs behind bars. There is more than one legitimate interpretation of Scruggs, however, depending on what one focuses on, and I long saw it somewhat differently.

One can summon a fair amount of outrage at Scruggs's practices and procedures. Exploring them in serious tones is one option, but I think the person best equipped to give the definitive interpretation to the last chapter of the Scruggs saga, and possibly his entire career, is the actor, director, *604 and producer Mel Brooks. I have often blogged in jest about a stage musical I pretend to be working on called The Katrina Follies, where the Scruggs farce plays out in a series of slapstick scenes interspersed with hilarious, well-choreographed musical dance numbers, inspired by classic Brooks, such as the song “Prisoners of Love” from the final prison scene in The Producers [FN6] (“Prisoners of love / Blue skies above / Can't keep our hearts in jail”); “Springtime for Hitler” from the same movie; or the “de Camp Town Ladies” redneck dance scene from Blazing Saddles. [FN7] There is, after all, only so much outrage a person can maintain, and often the best thing to do with outrageously pompous and nasty behavior is to laugh in its face. Many a true word is said in jest, and there was good reason for the demagogues of Athens to fear and loathe Aristophanes and his comedies. (Of course, I am not directly comparing Brooks and Aristophanes--Brooks is much funnier.) This production better get made quickly, while Brooks is still around to direct it and Gene Wilder is still here to play Scruggs.


. . . .

But again, Kings of Tort takes on the subject differently. The book gives a more or less chronological history of Scruggs's ascent and subsequent Icarus-like plunge, along with a relatively dispassionate examination *607 of the facts. The authors clearly do not think much of Scruggs, but neither do they measure him for Beelzebub's horns. The pace and structure of the book sacrifices drama but allows the reader to draw his or her own insights into Scruggs's character, relevance, and place in the cosmos in a way that might be more difficult if the information were not set out so methodically. The book begins with a crucial moment in the Scruggs story, the highway stop and confrontation by the FBI of Balducci, the Scruggs hireling, fresh from delivering bribery cash, or “sweet potatoes” as he refers to it, to a state court judge who was cooperating with authorities. Even this scene is underplayed, a decision I questioned until I had proceeded to about halfway in the book. Ultimately, letting the reader do a bit of work was the best move for the goals of this book; a man persuaded against his will is of the same opinion still.

For example, even though I know, have read, and have written a great deal about Scruggs, I learned some new things and saw his life and career in a somewhat different light after finishing this book. The new opinion I formed of Scruggs, or rather, the amendment I made to my existing opinion, is touched with a peculiar duality. On the one hand, after reading the book, I gave up all remaining notions that there was something admirable about his career. The portrait that emerges from the book is a Charles Foster Kane-like figure whose legacy is of a shrewd and cynical manipulator of the culture and the law chiefly for his own immense gain and aggrandizement, and who preened and basked in the light of a manufactured media glow, a pretend apostle of justice, an Elmer Gantry with a yacht and Learjet. On the other hand, much like the traitorous Lord Cawdor in Macbeth, [FN12] who manned up at execution time so that it was said of him that “nothing in his life became him like the leaving of it,” Scruggs met his fate at sentencing with dignity and a degree of self-reflection that the authors credit with being more than mere bargaining with the priest during Last Rites. Perhaps this was just one more dodge by Scruggs, but like the authors, I tend to believe Scruggs and found myself rooting for him. But then, who is not a sucker for a story about a guy who is down and out getting a shot at redemption? Elmer Gantry sold that nightly.

Kings of Tort does an excellent job of taking us inside the federal investigation and prosecution of Scruggs, and one would expect this, with a key prosecutor as a cowriter. We learn a lot about how federal investigators and prosecutors do their work, but this section of the book, like the earlier part about Scruggs's earlier career and life, is written from the outside looking in, if what you want is an insider perspective into Scruggs's cranium. The book is fascinating, but I found myself wishing for more detail, more color, more perspectives, more description, and more insider information. The events of Scruggs's criminal conspiracy are not the what of what undid Scruggs; these are the consequence. But what was it that undid Scruggs? Who was he, and what is the significance of him and his actions? *608 These are hard questions, but if we do not look for the answers, Scruggs is just another orange-jumpsuited jailbird who is not worth thinking or writing about. Why should we care? That is explained by someone who also landed in stir for a long stretch, albeit for far different reasons, Aleksandr Solzhenitsyn:

If only it were all so simple! If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart? [FN13]

So, whether we like it or not, Scruggs is in us and we are in him, and if we hope to learn anything from the uprooting of Scruggism, we must first face something that Thucydides laid down 2500 years ago in his History of the Peloponnesian War: [FN14] the things that were are the things that will be, as long as human beings are the way they are. Human beings always have been the way they are and they always will be. All we can do is try to learn from their mistakes and design things so they are less likely to be able to harm others. Scruggsism, in one form or another, is a recurring boil on the backside of society.


Posted November 22, 2010 - 4:01 pm

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