Terry Noffsinger

							                                              Terry Noffsinger
                                              ‘They know the harm they do’
                                              The David Williams Story
                                              Baltimore NCALG Convention 2003



                                                How many of you are legislators?
                                                How many of you are
                                                representatives of the casino
                                                industry? So, the rest of you are do-
                                                gooders? (Audience laughs)
        Well, you know I’m a lawyer. As they say from Indiana, I practice personal
injury; you know - no recovery, no fee. I love what I do. Therefore, it was
surprising to me when, three years ago, a man came into my office, named David
Williams, and told me he had lost everything he owned through gambling. Well, I
don’t know too much about gambling - except I think it’s sort of funny if Mr.
Robert Hayden was around today, because when I was a deputy prosecutor 25
years (well no, 30 years ago), I prosecuted Mr. Hayden for guess what -
professional gambling. Shows you how things have changed, doesn’t it?
        In Evansville, Indiana, we were the first in the state to have casino
gambling in late 1995. Gambling was going to provide jobs, it was going to
revitalize our downtown, and it was going to finance our schools. In short, it was
going to be a godsend. I’ve never heard of the term satansend, but I don’t think it
was a godsend. The point is, now I know a lot more about gambling. I know that
our downtown is still decrepit. I know our schools are in financial trouble. This
year, they’re talking about doing away with athletics, debate clubs, school plays,
and I know there are few jobs in the casino. When David Williams came in to
me, I was shocked that this could happen to him. How he could lose that much
money?
        Let me digress for just a moment to point out… have you noticed how
hard it’s getting to find out the truth about almost anything? I mean look at the
media. The New York Times says one thing and the Washington Times says
another. Molly Ivans complains about President Bush, and then we’ve got Cal
Thomas who comes up to defend him. Which is right? How do you know? Or
how about in our universities - there’s a professor of Harvard who talks about
evolution as if it is the gospel truth, and there’s another professor of Berkley who
says, “No it’s not true” and he can prove it. How do you know what’s true? And
then the legislature, do you know what we should be doing in Iraq? You know
Democrats say one thing, Republicans say another. And how about this
gambling issue? Mr. Leone was here, and the National Gambling Impact Study
Commissions have been used by both sides that say separate things. How does
this happen? Does it seem to you that most assertions of truth are made by
those who have agendas; often hidden?
        Did any of you at your hotel today get the USA Today? There’s a headline
in the life section - “When they leave casinos, gamblers are prudent.” It actually
got my attention, so I read this page and part of it says that the Roper A.S.W.
survey of 2000 Americans finds that despite a pension for taking risks, wagers
are relatively conservative with money at home. Now listen to this, 61% say they
always or almost always pay off their credit cards every month compared with
52% of the general population. Saving money in a retirement plan was cited with
50% verses 40% of the general public. Now folks, have you ever been in a
casino? Do those people look like financially conservative prudent people? Well
read farther, because I read down here and I see where Dean Hesterman, an
executive at Harrah’s, commissioned the survey. As I sometimes say, I rest my
case. Well you know (contrary to what you may believe), let me tell you how
good our legal system is at finding the truth. Now consider the following. First of
all we have strict rules with presentation of evidence, and only that which is
relevant is supposed to come into trial. Testimony that is given is sworn, under
oath, with the penalties of perjury. Everything that is said in court is subject to
scrutiny by the other side, by cross examination and by calling other witnesses.
There’s a judge who’s an impartial gatekeeper who says what these rules are,
and what comes in and what doesn’t. There’s an opportunity for both lawyers on
each side to both preview what the case is going to be, and then summarize
what the case was. It’s all presented to a jury of our peers, who make the final
decision. Those people are selected because they have no interest in the matter
other than perhaps justice. Then finally, and something I really like as I continue
to be a lawyer, is that everybody has access to this judicial system - at least as it
stands today. I pray ten seconds - preaching. Say no to tort reform; that’s not in
my talk (laughter). You know my client has access to the courtroom, and he’s
thankful.
        Our legal system is a manmade system, so it’s not perfect. But you know,
as a lawyer who’s been trying cases in the heartland for thirty-three years, let me
say that it’s pretty darn good at finding the truth. I’ve won cases that I thought I
might lose, and I’ve lost cases that I knew I’d win. Overall we’ve got a great
system in this country, and we need to be proud of it. Don’t be talking better of it
than bashing lawyers, especially those of us (like me) who don’t take their fee
until the end of the case. The question every lawyer must ask before filing suit
and undergoing this process that can be lengthy and expensive is what? Well it
is whether this good case. Can I win this case? Can I afford this case, what will
it cost? Those are questions that I asked myself after meeting with David
Williams.
        David told me that he lost his entire life savings gambling at the River Boat
which I can see by looking out my office window. It didn’t seem right to me, but
you know, I didn’t know about gambling. It came to town, they had a vote on it, I
voted against it (I think), but I didn’t really care if it opened. I didn’t go. My
friends really didn’t go.
        The following Saturday after he left my office I went down to the office and
I spent most of the day on my computer doing research. It’ pretty interesting,
there have been lawsuits filed by gamblers against casinos for losing money,
duh. To my dismay I found in every case (that I found that day) where a gambler
had sued to recover loses from a casino, the casino won. It’s just like gambling;
the house wins. What did they argue? The casinos, in all cases, argued that first
of all they don’t know who the problem gamblers are, and second they don’t have
any duty to them anyway.
         Well, let me tell you about the David Williams’s case. Let me give you
some of the facts. He was employed by the State of Indiana as an auditor; made
about $42,000 a year. Forty six years old at the time, been single all of his life.
A very frugal guy; clipped coupons to buy toothpaste. He had his house paid for
and net worth was about $175,000. Then one day in the mail, he got one of
these coupons that he clipped. It was from the Casino Aztar. He’d only been to
a casino once in his life; about twenty years earlier. So he takes his twenty dollar
coupon and he goes down… now I’m going to ask you to raise your hands, how
many think he won his twenty dollars back? No, he lost his twenty dollars. To
some that would be a lesson. Don’t go back. But there’s something that really
appealed to him.
         Then he goes back the next time with his own money, this time and he
loses $800. It was all down the hill from there. Now you all know that addiction
takes various times, with various people, to take effect. With him I’ll tell you it
was pretty quick. So he loses more and more. He keeps going back to the
casino. Visits in the casino are all that he lives for. He told me that day (and I
couldn’t believe it - I do now) that he would go home just distraught. He couldn’t
believe how he’d lost this money. The next day he is running stoplights to get to
the casino.
         Some nights when they gave him a free night in the hotel, he’d stay there
even though it was ten minutes to his home. Why? Because he could hardly
wait until the casino opened up the next morning, because they had to close for
four hours every night. Now it’s open 24 hours a day. So finally in March of 1997
things are so bad, he lost more that month than he earned in a year as a State
Auditor.
         His girlfriend called the casino to tell them to do something to stop him.
What’s their reply? Well there’s nothing we can do. So he continued gambling.
During just two days in March of 1998 he lost $44,000. During this very dark,
dark time in his life, his girlfriend did two things after finding a suicidal note that
he’d written. One of them was that she had him committed for thirty days to a
local state mental institution based on the suicidal note. The second thing is she
sent a certified mail letter… this woman is so neat, I mean she’s not educated,
she makes her living as waitress in a bar, but she really cares about him. She
wrote this letter (she set out from his credit card paperwork) how much he’d lost.
She put down the date, and how much he’d charged in this long letter that you
couldn’t deny that here’s some trouble. She also included a copy of the suicide
note.
         She sort of put the casino where they had to respond somehow, right? So
they did, they wrote a letter to him while he was locked up saying that he couldn’t
come to the casino anymore until he provided medical and psychological proof
that it’s safe for him to gamble again. Well I thought that letter was a legal
knowledge that sometimes it’s not safe to gamble there. Yet even after being
banned from the Boat, and being institutionalized and going to GA meetings, a
year later he left a GA meeting to go down to the casino.
        It was back on the road again. They put him back on the mailing list.
They started inviting him to promotional things. They accepted his fun card. You
know what a fun card is, all of you? It looks like a credit card. You take it and
you put it into the machine when you gamble; when you do the slots it keeps
track. It’s like you get frequent flyer numbers, so the more you gamble, the more
perks you get. That’s what you see from the consumer’s point-of-view. From
their point-of-view, they are able to know who you are; they know where you’re
gambling. They know what machine, or should I say machines; they know how
long you’re there. They know how much you’re winning or losing, and let me tell
you it’s mostly losing. They knew that David Williams was a pathological
gambler.
        Now… you know how I told you that casinos always win lawsuits that I did
research on? Well, we sued anyway. Sometimes I wonder why, but it’s
interesting, I’ve been accused of a lot of things. I’ve been told this suit is just like
the one that’s suing McDonald’s for the fast food; the over-weight people. I’ve
had several radio and drive time… television and drive time radio talk show
appearances, which are sort of fun (except for they really do jump on my
lawsuit).
        They talk about how I’m a greedy lawyer that wants to make millions.
They’re only partially right; I’m not greedy (laughter). They say, well at this point
he knew he could lose, and they say it’s a matter of individual responsibility. I
wonder why it is this individual’s responsibility. Then why is it that all of these
people are responsible until these casinos come to town? David Williams is 46
years old and $175,000 accumulated. He was responsible. What made him
irresponsible? Casino Aztar.
        What about corporate responsibility? Well at any rate, in our lawsuit we
discovered the things lawyers can do to ask questions and stuff. I’m going to
have to talk fast; I’m talking fast already. We discovered, contrary to their
arguments, the casinos know both who the pathological gamblers are, and the
harm that befalls them.
        Now Aztar - we say Aztar should have known about David Williams when
his girlfriend called in March of 1997, and they blew her off. Part of our case is
that soon afterwards she sent this letter I told you about. Here’s what I think is
important, not only in our case, but maybe to you and to other people you may
talk to, and about other cases in the future. That’s this - first of all Aztar knew
that David was in over his head. He borrowed money to gamble. He filled out a
credit application there. They knew what he had, and what he didn’t have. They
used their central credit to check up on him. He used this fun card; this player
attraction system they used for marketing. They wanted to know who to send the
mailers to. Who’re the big players? Who’re the big losers? That’s who they
want in there. It tells them when, how much.
        They know exactly who’s there because of the computer. That is what’s
interesting about our case. Those other cases that I researched on a Saturday
morning did not have that. Another thing I found out about (only after asking and
getting a court order) I found out that the Casino Aztar has 258 cameras on
twenty-four-seven taping. The law says that those cameras require (this is the
law in Indiana) sufficient clarity to allow identification. So they knew who David
Williams was. They knew how often he was there. They knew how much he
was losing.
          Now it’s interesting that Aztar says they don’t know who the pathological
gamblers are; no one knew David Williams. Their lawyers told me that. So I
scheduled a deposition of the Indian State Police Supervisor of the casino. By
law they have to have a police in the casino at all times. I didn’t tell him about
why I was subpoenaing him. I brought him in and I said, “Can you tell who the
problem gamblers are when you are there.” Of course he didn’t know what to
say. He didn’t know why I was asking him this question, but you know what his
answer was? Yes. I said well have you received any training? No. Are they
your customers? No. Yet he knew who the problems were. Well if he knew, I’m
telling you that Aztar slot superintendents knew. Aztar slot attendants knew -
Aztar knew.
          It’s also really interesting to me that while Aztar can’t identify who these
pathological gamblers are, they do figure out who the card carriers are. That’s
legal by the way. They identify them and throw them off. Now it may not
surprise you whatever, despite all of these great facts that I’ve told you. That I
know that if you were on the jury you would give me millions of dollars. Except
that we’ve only asked basically for the $175,000, which is what David lost. We
lost our case at the District Court level. The other side filed a motion basically
saying, well there’s no law to back them up, there’s no law that there’s a duty.
The court ruled against it, so we have appealed it to the Seventh Circuit.
          We filed in federal court originally for a purpose that is we want good
precedent. So we’re going to have an argument in the Seventh Circuit Court of
Appeals in Chicago in about three weeks, October 22. Any of you are welcome
to attend (laughter from audience). You will have to go through security.
          Now as I said, people, including talk show hosts, that ridiculed my case,
did I say ??? well it may not be my best case, but it’s my favorite case. This is
the kind of case you dream about when you’re in law school. The kind of case
you dream about as a young lawyer. Matter of fact, I still dream about it
sometimes - I have nightmares about it. Here’s why it’s my favorite case. It’s a
chance to do some real good for David Williams, and believe it or not that’s what
personal injury lawyers do, in spite of all the TV ads, whatever.
          Most lawyers out there that I know are hard working dedicated
professionals who went to law school for a reason. It’s also a chance to do real
good for pathological gamblers around the country if we win. Already stressed
about this case we’ve focused some national attention on the problem, because
I’ll tell you, I knew nothing about it before. It was either John Kindt, or John Grey,
or somebody called me. I never heard of National Coalition Against Legalized
Gambling until after the suit was filed. I do want to thank both of them publicly for
the help they’ve been, and for the support and encouragement they’ve given us.
          Because this is just our little firm, my partner George and I, and we have
one lawyer that works for us; you know fighting this casino. I’ve got to say it’s
been fun. I sort of like the attention, I like coming here and talking to people like
you. You know I’ve enjoyed some of the media events. When Chris Mathews
asked me on Hardball, “How much money are you going to make,” and my
answer (I really enjoyed this when I said) “You know if we win every dollar my
client lost, and my firm keeps all of it, we might break even.” You know our firm
has invested about $25,000 just in the expenses in the case; not counting our
time.
         I really don’t think the casino industry understands your mentality, and
now mine, in that you know it’s really not about the money. And not just the
publicity with the David Williams case, because I really know how bad the
problem is. I’m still learning. Just this week I re-read an article by John Kindt.
Do you know we spend more money each year in this country on gambling, than
on groceries? You know I’ve had calls from people who’ve lost everything. I’ve
had calls from the children of a farmer who lost everything including his farm; a
$6,000,000 farm. I got another man from out of state that lost five-and-a-half
million dollars, he wanted me to help him. Another guy from Kansas City owned
a company and he lost a million and a half. It’s not just money.
         There’s been divorce, loss of jobs, bankruptcy. You know it’s so sad. I’ve
had calls from people who are suicidal, but hopefully help is on the way. If we
don’t win, I’m convinced there will be more cases filed that will build on this.
There may be different facts, different judges, different lawyers, and different
jurisdictions. As the problems get worse, more and more people are going to
know that something has to be done.
         I wish there were this many lawyers in the meeting rather than just all you
do-gooders because at the meeting of the American Travelers, in San Francisco,
about a month ago, we had a plethora of people interested in gambling cases.
There were just three lawyers: me, Steve Smallback, there from Kansas City,
and a lawyer from an Indian tribe. He didn’t want to talk to anyone (laughter).
It’s my opinion that the most effective method will be through the court system,
and I’m telling you, you don’t know how good it is. You know, unfortunately,
legislation hasn’t worked. You don’t have enough money to get all the publicity
out that you need to, and all the education that you need to. I think that with
good facts, good analysis, good advocacy, and lawyers and juries who care, that
it will make a difference. I’ll just close by saying this - it occurred to me the other
day. There were two soldiers on the battle field and they were going toward the
enemy for a righteous cause. If one of them gets shot dead and falls on the
battlefield, and the other one goes up and he captures the enemy; he wins. I
think at the end of the day - end of the life, that God in heaven will say to both of
them, “Well done good and faithful servant.”