Trials by liwenting


									                          Cigarette makers once
                         were so hard to beat in
                            court that many top
                         lawyers refused to take
                         them on. Then a group
                          of attorneys, mostly in
                          small Southern towns,
                           found new ways past
                           tobacco’s defenses —
                          and now, the industry
                           hinting about a deal.

                        Don Barrett           hailed from
                        Lexington, Miss. and he liked to
                        think of himself as a small-town
                        lawyer—"slow thinking and slow
                        talking," as he put it. He was a
                        stocky     man,     relaxed     and
                        unpretentious.      He        spoke
                        frequently in Southern aphorisms,
                        such as the one he used to describe
                        his ongoing, quixotic legal battles
                        with the tobacco industry: “If
                        you’re going to fight the snake,
                        kill the snake.’ In the plaintiffs’
                        bar—the section of American
                        lawyerdom that represents victims
                        of airline crashes and sues big
                        corporations when they sell faulty
                        products—some of Barretts close
                        friends were unabashedh’ rich,
                        flying    between      trials   and
                        settlement conferences in private
Don Barrett with a      jets. Barrett, however, was
courtroom exhibit.      decidedly not rich.
Tobacco Lawsuits
have been his ‘life’s
                        By Benjamin Weiser
                        Photos by Danny Turner
His basic problem was that he hadn't killed the snake.    Barrett said that he and his colleagues in the plaintiffs'
Since 1988. he had spent hundreds of thousands of         bar were about to turn the corner: Barrett was
dollars trying three smokers' cases against the tobacco   involved in two innovative lawsuits, based on
industry But he had not won a single dollar in            powerful new legal theories that might finally produce
damages. His failures sometimes threatened him with       a big victory against the tobacco industry.
insolvency.                                               Kasowitz listened attentively and then said, “That's
One day in November 1995, Barrett found himself in        interesting. Is there no end to it?"
the skyscraper office of Marc E. Kasowitz a               “There is no end to it,” Barrett answered. it's going to
Manhattan civil lawyer. Barrett and Kasowitz had          be total defeat for the tobacco companies, because
recently concluded a settlement worth several hundred     none have sense enough to realize that they could
million dollars involving lawsuit over allegedly          settle the cases fairly easily and stay in business."
defective plumbing systems. Although they were on
opposite sides, Barrett had come to like and Kasowitz,    Barrett explained that if the tobacco industry would
and he began to tell him about his "life's work," near    agree to quit selling cigarettes to children, alter its
obsession with tobacco lawsuits.                          marketing in fundamental ways, and pay some of the
                                                          health care costs of smoking, "We could settle with
Barrett joked that he was looking forward to being        one or two of them, anyway" But Barrett said that no
paid for his work in the plumbing case, as that would     company was smart enough to do that.
"give me enough income to feed my tobacco habit for
another few years." as he recalls the conversation.       Barrett didn't know that Kasowitz represented Bennett

                                                                                 Mississippi Attorney General
                                                                                 Michael Moore, front, with
                                                                                 plaintiffs’ lawyers Richard
                                                                                 Scruggs and Michael Lewis at
                                                                                 the Capitol in Jackson.
                            hey would have to negotiate in complete
                            secrecy. If the other major tobacco
                            companies learned that Liggett was about
                            to break ranks, they would stop at
                            nothing to block the settlement.

S. LeBow, an investor with a controlling interest in       claiming wrongful death or illness stemming from
Liggett Group, the fifth-largest American tobacco          addiction to cigarettes.
company. In fact, Kasowitz's partner, Daniel R.            The deal rocked the tobacco industry Officials at the
Benson, had already suggested to him an idea that had      major cigarette companies denounced IeBow as an
been anathema in the tobacco industry for decades: a       opportunist. Philip Morris Cos., the world's largest
legal settlement that would allow LeBow and Liggett        tobacco firm and the most defiant, declared that it
to put the threat of massive liability over smoking        would not settle. President Clinton called the deal "the
deaths behind them. LeBow wanted a deal in part            first crack in the stone wall of denial" by cigarette
because he was waging a hostile proxy battle to take       makers.
over RJ. Reynolds Tobacco Co., the nation's second-
largest cigarette maker. A settlement might help clear     Amid all the noise came a statement suggesting that
LeBow's path.                                              perhaps Clinton was right.
On December 5, Kasowitz and Benson took LeBow to           In late March, Steven F. Goldstone, the CEO of RJR
lunch at Il Nido, a popular northern Italian restaurant    Nabisco Holdings Corp., under pressure from
in midtown Manhattan. LeBow authorized his lawyers         LeBow's takeover proposal, gave an interview to
to look into a settlement                                  London's Financial Times newspaper. Was it possible,
                                                           was it conceivable, that America's decades-long
A few days later, Kasowitz astonished Barrett by           tobacco liability wars could be ended with a
revealing that LeBow was his client. Kasowitz said         comprehensive settlement?
they would have to negotiate in complete secrecy. If
the other major tobacco companies learned that             "I don't know of a way, but I do know that it isn't the
Liggett was about to break ranks, they would stop at       kind of thing that the tobacco industry would try to
nothing to block the settlement.                           obstruct, because we know that litigation is not good
                                                           for our companies." Goldstone said. The legislative,
Barrett agreed to work on a deal. Although Liggett         executive, political, social and other sources" involved
controlled only a small fraction of the tobacco market,    in the tobacco conflict could be "brought together to
a settlement would be an extraordinary symbolic            resolve this Issue," Goldstone suggested. For its part,
breakthrough. Over several months, Barrett and two         he said, the tobacco industry did not have "such a
other attorneys met quietly with Liggett lawyers in        fight-to-the-death mentality that it would ignore
Houston, New York, Memphis and Miami in March.             eminently reasonable solutions."
Liggett announced the result. The company agreed to
pay 5 percent of its pretax income for 25 years, up to a   It has been just a few years since a group of Lawyers,
maximum of $50 million a year, for smoking                 mostly in small Southern towns, launched what has
cessation programs around the country and to cover         proved to be the most successful wave of litigation
some health care costs incurred by states while            ever aimed at the tobacco industry and already people
treating indigent smokers. Liggett also agreed to          are asking a question that would have, until very
voluntarily comply with Food and Drug                      recently seemed ludicrous: Is tobacco's endgame here?
Administration proposals to try to curb smoking by         At issue is whether the tobacco industry is poised for a
children and teenagers. In exchange, the company           comprehensive settlement, roughly along the lines of
would receive assurances. pending federal court            the Liggett deal, that would itt one fell swoop resolve
approval, that Liggett could not be sued by anyone         the multiple lawsuits and conflicts involving the
American companies' domestic cigarette business.             jury probes of the industry and its executives. During
Such a settlement would probably involve huge                the last three years. the industry has sprung leak after
payments by tobacco companies that would, in effect,         leak. with damaging disclosures from whistle-blowers
buy peace with the government, aggrieved smokers             and internal documents surfacing in the news media
and their lawyers. Even if the price were tens of            and in highly publicized congressional hearings.
billions of dollars, it would be easily affordable for the   Crowning evidence of the new order includes both the
industry, whose profits increasingly come from sales         Liggett settlement and a stunning verdict delivered
overseas.                                                    four months ago, when a tiny Florida law firm won a
For nearly half a century, despite hundreds of               $750.000 judgment against one tobacco company,
thousands of American deaths each year due to                driving down tobacco industry stock prices and
smoking, the tobacco industry has been nearly                prompting plaintiffs' lawyers to declare that they
invulnerable in the US. Courts. Legal scholar Donald         would flood the nation's courts with thousands more
W. Garner once noted a "striking irony" as he put it         suits, At least one Wall Street observer has painted a
"The industry that markets the most dangerous                "doomsday" scenario "if the litigation dam breaks."
product sold in America is the only industry that has        For the first lime, "we detect an unmistakable
been completely sheltered from the storm of                  willingness by the industry to bargain, perhaps
twentieth-century product liability" Until this year,        reflecting these litigation realities," Gary D. Black a
approximately 800 suits had been filed against               tobacco analyst with Sanford C. Bernstein & Co.,
tobacco firms. About two dozen of those went to trial.       wrote in a September 3 report to clients.
But not once was a cigarette company forced to pay           Among the realities Black cites are "the sheer number
damages to a plaintiff.                                      of great plaintiff counsels ... who have joined this
Now the industry is on the defensive. What is                fight. and who have vast resources to continue the
different? Just about everything. After squashing            effort even if it takes years."
lawsuits from individual smokers successfully for            This sharp turn in the tobacco conflict is occurring
decades, Big Tobacco is facing much more formidable          amid vigorous debate about how America should
legal challenges from state governments and a                manage what has become, in effect, the
national coalition of trial lawyers representing             institutionalization of disaster. The evolution of mass-
addicted smokers. The Clinton administration has             injury law has produced a situation where today, as
declared war on tobacco, the FDA plans to regulate           the country mass produces products, it also mass
cigarettes and limit marketing to young people, and          produces liability.
the justice Department has launched criminal grand

               On April 14, 1994 seven top
               tobacco executives testified
               before Congress. One by one,
               they denied under oath that
               nicotine was addictive.
From asbestos to the Dalkon Shield to silicone-gel        the justice Department has launched criminal grand
breast implants, American civil courts have faced         jury probes of the industry and its executives. During
successive waves of liability suits. Tobacco is the       the last three years. the industry has sprung leak after
culmination of the trend. The latest tobacco suits        leak. with damaging disclosures from whistle-blowers
claim to represent tens of millions of American           and internal documents surfacing in the news media
smokers and more than a dozen state governments—          and in highly publicized congressional hearings.
potentially a greater share of American society than      Crowning evidence of the new order includes both the
any previous class of alleged victims. So large and       Liggett settlement and a stunning verdict delivered
threatening have these lawsuits become that Congress      four months ago, when a tiny Florida law firm won a
may attempt to take the litigation away from lawyers      $750.000 judgment against one tobacco company,
and the courts altogether and impose a legislative        driving down tobacco industry stock prices and
solution, if only to ensure the survival of an industry   prompting plaintiffs' lawyers to declare that they
that is so prosperously entrenched in the American        would flood the nation's courts with thousands more
economy, culture and political system; Philip Morris,     suits, At least one Wall Street observer has painted a
for example, says it's America's largest corporate        "doomsday" scenario "if the litigation dam breaks."
taxpayer.                                                 For the first lime, "we detect an unmistakable
Now the industry is on the defensive. What is             willingness by the industry to bargain, perhaps
different? Just about everything. After squashing         reflecting these litigation realities," Gary D. Black a
lawsuits from individual smokers successfully for         tobacco analyst with Sanford C. Bernstein & Co.,
decades, Big Tobacco is facing much more formidable       wrote in a September 3 report to clients.
legal challenges from state governments and a             Among the realities Black cites are "the sheer number
national coalition of trial lawyers representing          of great plaintiff counsels ... who have joined this
addicted smokers. The Clinton administration has          fight. and who have vast resources to continue the
declared war on tobacco, the FDA plans to regulate        effort even if it takes years."
cigarettes and limit marketing to young people, and

                          t least one Wall Street observer has painted
                          a 'doomsday' scenario 'if the litigation dam
                          breaks.' For the first time, 'we detect an
                          unmistakable willingness by the industry to
                          bargain.' he wrote.

                                     Left, a proposal for the
                                     Tobacco Claims Settlement
                                     Peter Castano top right.
                                     Woody Wilner, bottom right,
                                     took on Brown & Williamson
                                     and won.
                                                             the target of critics who want to reform the tort system
                                                             to limit the damages and fees that can be collected in
                                                             liability cases. In Congress, and during the recent
                                                             presidential campaign, the plaintiffs' bar became an
                                                             abstract demon of American politics, vilified as
                                                             responsible for the suppression of business
                                                             innovation, among other ills. The plaintiffs' bar also
                                                             has become an emblem of irrationalit as critics point
                                                             to cases like the initial 1994 jury award of 822 million
                                                             in punitive damages to an elderly woman who spilled
                                                             scalding Mc-Donald's coffee on her lap. Lawyers
                                                             suing the tobacco industry are motivated by one thing,
                                                             says Wall Street analyst Blacic: "It's the money. The
                                                             tobacco industry is the plumpest, juiciest, golden-egg
                                                             layer of all time."
                                                             For their part, the plaintiffs' lawyers don't advertise
                                                             themselves as selfless angels, but they argue that their
                                                             lawsuits act as a catalyst for corporate regulation,
                                                             particularly in an era of smaller government. The trial
                                                             lawyers see themselves as watchdogs for the quality
                                                             of middle-class life, guarantors of the individual's
                                                             right to seek redress for corporate malfeasance or
Lawyer Wendell Gauthier, above, was inspired by the          neglect. The plaintiffs' lawyers, some driving BMWs
death of his friend Peter Castano, previous page.            or Mercedes-Benzes, portray themselves as defenders
This sharp turn in the tobacco conflict is occurring         of the little guy—in this case, nicotine-addicted
amid vigorous debate about how America should                Davids against Goliath tobacco.
manage what has become, in effect, the                       "I know that the outside world thinks we're greedy
institutionalization of disaster. The evolution of mass-     hogs. As I see it, this is our chance to do some good
injury law has produced a situation where today, as          for society and give something back," says Wendell
the country mass produces products, it also mass             H. Gauthier, a New Orleans anti-tobacco lawyer.
produces liability. From asbestos to the Dalkon Shield
to silicone-gel breast implants, American civil courts       Whatever their motivations, there is no question that,
have faced successive waves of liability suits.              through sheer relentless pursuit, the plaintiffs' lawyers
Tobacco is the culmination of the trend. The latest          have created a new paradigm for the tobacco industry
tobacco suits claim to represent tens of millions of         during the last two years. "The plaintiffs' bar is
American smokers and more than a dozen state                 peopled by lawyers who are permanently hungry,"
governments—potentially a greater share of American          says Stephen Gillers, professor of legal ethics at New
sociely than any previous class of alleged victims. So       York University. They're like red ants at a picnic.
large and threatening have these lawsuits become that        There are an unlimited number of them, and if the
Congress may attempt to take the litigation away from        food is good. theyll keep coming at you."
lawyers and the courts altogether and impose a
legislative solution, if only to ensure the survival of an   It began with a plane ride.
industry that is so prosperously entrenched in the
American economy, culture and political system;              Two little-known Mississippi lawyers were flying to
Philip Morris, for example, says it's America's largest      California in late 1992 to conduct a deposition. One
corporate taxpayer.                                          was Don Barrett, the slow-talking lawyer from
                                                             Lexington. The other was his friend Richard F.
Talk of tobacco's endgame is also taking place amid          Scruggs, of Pascagoula, a plaintiffs' lawyer who had
intense debate about the role of trial lawyers and their     hit a few jackpots in his time, primarily in asbestos
contingency fees. The lawyers behind the assault on          cases. Dick Scruggs owned a yacht, a Lear jet, and has
Big Tobacco are the same "masters of disaster" who           said he has earned more than $1 million a year after
earlier took down asbestos makers. These lawyers are         taxes.
Barrett, on the other hand, had          might evade the industry's most          Barrett had tried again in 1990.
taken out a second mortgage on his       effective defense.                       This time the judge let him blame
house and was finding it difficult       In time, the idea Barrett and            Horton's cancer on his smoking,
to pay expert witnesses in his           Scruggs identified that day would        not on excess pesticides. The jury
tobacco cases. Looking for help, he      revolutionize       civil     tobacco    ruled against the defendant,
had called up Scruggs, a classmate       litigation in America. But at first,     American Tobacco Co. For a
from their undergraduate days at         they struggled to identify a formula     minute Barrett thought he had done
the University of Mississippi.           that would work.                         it. But when the jury inexplicably
Scruggs had agreed to pitch in,          Scruggs had once sued military           awarded zero dollars in damages to
financially and intellectually.          contractors in a non-tobacco matter      Horton's family, Barrett was
The two were heading to San              under the federal False Claims Act,      despondent. "His life was worth
Diego to depose David M. Burns, a        which allows private parties to          nothing."
pulmonary specialist who helped          bring cases on behalf of the             Barrett worked his tobacco cases
write key surgeon general's reports      government, alleging fraud and           from the ground up. While other
on smoking. The problem Barrett          misrepresentation. Scruggs and           lawyers depended on fancy focus
and Scruggs faced was that even          Barrett talked about the patients in     groups and mock trials to try
though an expert like Burns might        VA hospitals who were sick or            various legal theories and evidence
have a solid reputation and              dying of smoking illness, and who        presentations, Barrett would go to
expansive       knowledge,      such     were running up a government tab.        Billy Zeigler's barbershop on
testimony had never been enough          These smokers were the victims of        Spring Street and gently question
to beat the tobacco induslry at trial.   false claims by tobacco companies        customers about their attitudes
It was a paradox: Scientific             and the government was incurring         toward smoking. Over the years,
evidence was bountiful that              the cost, they agreed. Perhaps they      the more he had talked at the
smoking was harmful, victims             could sue on behalf of the               barbershop, the more he had
were everywhere, experts were            government, saying it was the            learned that ordinary people in a
lined upto testify—yet the               victim, not the individual smoker.       town like Lexington thought
plaintiffs could not win. They           When they got off the plane,             smokers were responsible for their
could not surmount the industry's        Scruggs called his law partner and       own choices. The fact that Barrett
persuasive and brilliantly simple        asked him to research such a suit.       kept trying cigarette cases anyway,
argument Smoking was voluntary,          It was tantalizing, but they decided     he laughs, "is probably more of an
a matter of personal choice, and         that the approach probably would         ode to my stupidity than anything
since smokers were aware of the          not work because of technical            else."
hazards, the industry should not be      constraints in the false claims law.     Realistically, Barrett could not
held liable. Jurors in tobacco trials    Barrett     knew       from     bitter   afford too many more defeats. The
often agreed that the evidence           experience that the old approach         more Barrett thought about it, the
showed smoking was dangerous,            didn't work. In 1988, he had             more he believed that evading the
but they concluded at trial after        represented the estate of Nathan         personal-choice defense was key.
thrial that individual smokers were      Horton, a 50-year-old carpenter          After the plane ride with Scruggs,
responsible for their own actions.       who for 30 years smoked Pall             as he prepared for his next tobacco
On the plane, Barrett and Scruggs        Malls and who died of lung cancer        trial, he kept asking himself: How
talked for several hours about how       before the trial began. Barrett          can I get out of the smoker's
they might overcome the industry's       mustered evidence that Horton's          shoes?
personal-choice argument. They           illness was caused by excess             An answer emerged in the town of
went round and round and finally         pesticides that had contaminated         Clarksdale, Miss., where plaintiffs'
they arrived at an intriguing idea:      tobacco in the cigarettes he             attorney Michael T. Lewis was
What if they could find a way in a       smoked. It almost worked. Under          watching Jackie Thompson, the
lawsuit to get away from                 state law, he needed nine votes,         mother of his secretary, die of
individual responsibility, to "step      and the panel ended up hung, 8 to        heart disease. A heavy smoker,
out of a smoker's shoes"? By             4, in Horton's favor. He couldn't        Thompson was waiting for a heart
avoiding the individual smoker as        get the ninth vote he needed.            transplant. Lewis ran a small, two-
a plaintiff—his choices, his             "Close but no cigar," Barrett says.      person law firm with his wife,
responsibilities—the         lawyers                                              Pauline. They had no experience
with tobacco cases. Lewis wanted       Lewis saw the tobacco companies        succeed with its standard defense
to sue on Thompson's behalf, but       as the enemy and didn't hide his       that Smith freely chose to smoke
dropped the idea after researching     motivation: "It was a way to bring     and was aware of the risks.
the dismal history of such suits.      them down, to make them pay, to        Lewis drove over, watched the
Lewis felt frustrated and angry at     punish them, to destroy them."         court     proceedings    for   the
the inability of the legal system to   He mulled the plan for a few           afternoon, then visited both
hold the to bacco industry             weeks, then in June 1993 contacted     lawyers at the Hampton Inn.
accountable.                           Michael Moore, a law school            Lewis laid out his concept about a
One day in the spring of 1993, as      classmate from Ole Miss who had        Medicaid suit. Barrett and Scruggs
Lewis rode down the elevator of a      become the state attorney general.     described their earlier efforts to
Memphis hospital, where he had         Moore liked the Medicaid idea,         find a way to get out of the
just seen his secretary's mother for   and referred Lewis to another Ole      smoker's shoes, but this seemed
what would prove to be the last        Miss law school classmate—             like the best idea yet As Barrett
time, an idea struck him like a        Scruggs, who had once worked           puts it "The state of Mississippi
thunderbolt. The woman had             with Moore's office to recover the     has never smoked a cigarette. It
exhausted her personal assets, and     costs of asbestos abatement in state   was like 'Eureka!'
her care was now being covered by      buildings.                             A short time later, Barrett and
state Medicaid funds. (With the        By this time Scruggs was in            Scruggs lost the Smith case after
heart transplant, the cost of her      Greenville, Miss., where he was        the judge wouldn't let them use
illness eventually exceeded $1         helping with Barrett's latest          their evidence about Smith's
million, Lewis says.) "The idea        tobacco trial. Their client was        mental capacity. But now they
just came to me unbidden that we       Anderson Smith, who had been           were more energized than ever.
ought to get a small measure of        institutionalized in a psychiatric     With Moore's encouragement,
justice by suing on behalf of the      hospital, diagnosed as a paranoid      Barrett, Scruggs and Lewis went to
state of Mississippi to recover not    schizophrenic. While hospitalized,     work on the Medicaid plan. There
only Jackie's Medicaid money but       Smith began to smoke, and given        were 500,000 people in Mississippi
all the other money the state of       that he could not make decisions       on Medicaid, Scruggs said; about
Mississippi had spent" on similar      by himseif—doctors said he had         200,000 had smoking illnesses. "If
patients, Lewis recalls.               the mental age of 7—Barrett felt       we do it for one, we might as well
                                       the industry could not possibly        do it for all."

                              authier decided to fashion a suit around
                              addiction. He calculated that there were
                              tens of millions of addicted smokers in the
                              U.S. and that such a class action case
                              could be worth billions of dollars.
In New Orleans at around
the same time, Wendell Gauthier         produced his epiphany. On               compensate the family for his lost
also discovered what would prove        February 25, FDA Commissioner           earnings and lost life. But an
to be a second, complementary           David A. Kessler announced that         "addiction-only" claim, for any
track for evading the tobacco           the FDA was investigating               smoker, might be worth only in the
industry's traditional defenses. As     allegations that the tobacco            thousands of dollars—the cost of a
with Michael Lewis, his inspiration     industry manipulated the level of       nicotine patch or addiction
arose from the smoking-related          nicotine—the addictive ingredient       treatment, perhaps. What lawyer,
death of a friend. Peter J. Castano,    in cigarettes—to keep people            working on a contingency fee,
47, a local criminal defense            smoking. Three days later, ABC's        would pursue that?
attorney and Gauthier's best friend,    "Day One" news magazine made            Gauthier decided that the way
had died of lung cancer. After his      similar charges, and further            around this problem was to bundle
funeral in March 1993, Castano's        asserted that tobacco firms spiked      together a huge number of
widow had asked Gauthier whether        cigarettes with nicotine to sustain     addiction-only suits into a national
he could sue the industry for the       smokers' addictions. (ABC later         class action, a mass tort in which
family. Gauthier's first response       apologized for certain claims made      large numbers of victims with
was no. The odds of winning were        on the show, but defended the           similar injuries stemming from
too low.                                allegation that nicotine was            similar causes are addressed at one
                                        controlled to hook smokers.)
Gauthier was one of the nation's                                                time. Gauthier calculated that there
leading mass-injury lawyers. He         Gauthier decided that the industry's    were tens of millions of addicted
had pioneered the use of mock           manipulation of nicotine was the        smokers in the United States—
trials to prepare for civil suits. He   best way to rebut its claim that        such a class action case could be
had built a courtroom in his office,    smokers      knew     their   risks:    worth billions of dollars.
complete with an American flag          Addiction was a risk that the           On March 18, 1994, Gauthier took
and a judge's bench, where mock         industry had not warned about. If       some friends to dinner at Emeril's,
trials could be held for three juries   the industry secretly maintained        a Creole restaurant in the
at a time; their deliberations could    nicotine at addictive levels,           warehouse district of New Orleans.
be secretly observed through a          smoking was no longer a matter of       His companions were leading
camera hidden behind the eye of a       personal choice; the industry was       p1aintiffs lawyers in town to work
man in a painting on the wall.          seeing to it that smokers could not     on breast implant litigation. As
Gauthier used the facility to           stop.                                   they talked, the lawyers remarked
forecast how he would do at trial—      Gauthier decided to fashion a           about the smoke wafting through
and he usually did pretty well. His     lawsuit around addiction. This          the restaurant, and how much it
$10.1      million    trial   verdict   would not be a personal-injury or       bothered them. Several of the
stemming from a 1982 Pan Am jet         wrongful-death case—it would not        lawyers had a story to tell about
crash outside New Orleans was for       seek damages for cancer, heart          the impact of smoking on their
years the largest single verdict in     disease or other injuries stemming      personal lives: Ralph I. Knowles
an air crash case. He also led the      from smoking. It would instead          Jr., of Atlanta, had a father
team that negotiated the $220           seek damages for mental distress,       suffering from emphysema; Daniel
million settlement in the 1986 fire     the cost of nicotine patches and of     E. Becnel Jr., of New Orleans, had
that killed 96 people at San Juan's     attending     smoking      cessation    lost his father to cancer; Leslie J.
Dupont Plaza Hotel                      clinics, and other problems arising     Bryan, of Atlanta, said both her
In the months after Castano's           from addiction alone.                   parents had suffered smoking-
death, Gauthier kept thinking about     Gauthier realized such a novel
                                                                                related heart attacks.
a way to take on tobacco. He kept       theory would not be worth very          Gauthier    seemed     the  most
on his desk a judge's opinion           much even if he won at trial. From      distraught. He talked about
blasting the tobacco industry for       a pure damages perspective, the         Castano, as well as his own three
concealing facts about the dangers      wrongful death of a high-powered        daughters, now in their twenties,
of smoking. But it wasn't until         lawyer like Castano might be            who all had smoked as teenagers.
early 1994 that two separate events     worth tens of millions of dollars, to   One of them still smoked,
sometimes in front of Gauthier's       This internal feud centered on one         of Trial Lawyers of America
young grandson, which drove            question: Was it better to bundle          (ATLA), a powerful lobbying
Gauthier crazy.                        huge numbers of mass-injury cases          group in Washington. Gauthier
                                       together, as Gauthier planned in           enlisted other big hitters, like
Gauthier began to describe his idea
                                       tobacco, or to try only the strongest      Baltimore asbestos lawyer Peter G.
about addiction and a class action
                                       cases individually?                        Angelos, owner of the Orioles; and
lawsuit. To make it work, he
                                                                                  John O'Quinn, of Houston, whose
needed a large group of plaintiffs'    On one side were lawyers like
                                                                                  net worth was placed by Fortune
lawyers to spread the risk and the     Stanley M. Chesley of Cincinnati,
                                                                                  magazine at half a billion dollars.
expense—lawyers      like     those    class action specialists who argued
                                                                                  He also wanted Motley, a rugged
around the table.                      that their strategy delivered justice
                                                                                  attack dog of a lawyer who calls
                                       to the greatest number of potential
Because he didn't want to engender                                                himself a "crazy tank commander"
                                       victims. They held that a class
any false optimism, he cited the                                                  and came to see that Gauthier had
                                       action was more efficient than old-
case of attorney Marc Edeli, whose                                                "a wonderful political ability to
                                       fashioned trials, which were
firm     had      spent    millions                                               meld       together       disparate
                                       expensive and could drag on for
unsuccessfully pursuing a tobacco                                                 philosophies. He is truly our
                                       years during appeals. Class actions
case. "My thought was, 'Why                                                       Eisenhower."
                                       also gave defendants incentive to
would anybody want to get in it?'"
                                       settle since, in a single act, all suits   Soon Gauthier had persuaded 60
Gauthier recalls.
                                       against a firm or industry could be        law firms to join the Castano class
But another Louisiana lawyer at        resolved. Some deals even at               action. Each pledged $100,000 to
the table, Calvin C. Fayard Jr.,       tempted to close off future cases.         support the effort, and many firms
looked right at Gauthier and                                                      sent lawyers to staff the Cantano
                                       But many traditional trial lawyers
interjected: "Don't tell me how we                                                war room, a headquarters office
                                       felt the class action lawyers were
can lose. Tell me how we can                                                      established on the 30th floor of the
                                       too quick to settle, and did so for
win."                                                                             Energy Centre at 1100 Poydras St.
                                       pennies on the dollar, at the
The other lawyers agreed. The                                                     in downtown New Orleans.
                                       expense of their clients. The trial
class action idea was appealing. As    lawyers believed they could win            Gauthier also wanted to add D.C.
Gauthier      remembers,     "They     substantial verdicts, sometimes in         attorney John P. Coale to the team.
wanted in."                            the millions of dollars. for clients       Coale's detractors branded him a
                                       who might receive only a fraction          media hound and accident chaser.
Gauthier set out to build an           of that amount in a class action           After the Union Carbide chemical
unprecedented force of private         settlement. One such lawyer,               disaster at Bhopal in 1984, Coale
plaintiffs' lawyers. The size and      Ronald L. Motley of Charleston,            jetted off to India and signed up
staying power of the group would       SC., barely hid his scorn for the          60,000 clients, winning him the
be critical because the tobacco        class action settlements reached by        derisive nickname "Bhopal Coale."
industry was united and typically      Chesley and lawyers like him. The          But Gauthier liked Coale's
spent huge sums to defeat its          "Chesley-ites," as Motley put it,          philosophy that a mass-injury
opponents. Gauthier would also         were the "lawyer-diplomats who             lawsuit had to be fought like "a
have to persuade the nation's top      sue for peace before there's a war."       huge war" on many fronts, with
plaintiffs' attorneys to set aside                                                plaintiffs'    lawyers      wearing
                                       For his anti-tobacco army,
their historical differences over                                                 "different hats"—legal, political,
                                       Gauthier tried to recruit the best
how mass-injury cases should be                                                   even PR In the tobacco suit, Coale
                                       and brightest from each faction.
fought There were two schools of                                                  said, the plaintiffs would have to
                                       Some of his earliest calls went out
thought, and the two factions had                                                 win the PR battle or Philip Morris
                                       to Chesley and other leading class
bickered so bitterly over the years                                               would dominate. Coale wanted to
                                       action litigators, such as Elizabeth
that it could be said at times that                                               organize a media blitz, using
                                       J. Cabraser and Dianne M. Nast.
the enemy of the plaintiffs' bar was                                              internal     tobacco       company
                                       From the traditional trial lawyer
not corporate America but the                                                     documents and whistle-blower
                                       side, Gauthier recruited Russ M.
plaintiffs' bar itself.                                                           interviews to influence future
                                       Herman of New Orleans, who had
                                                                                  jurors and create an environment in
                                       been president of the Association
                                                                                  which tobacco firms would feel
    pressure from stockholders and         When Herman was president of              these people. That's the bones I'm
    politicians to settle. Coale told      ATLA in the late 1980s, he and            picking."
    Gauthier "You're not just fighting a   Coale had gotten into a bitter            When Gauthier finally told
    corporation; this time you're          dispute over the propriety of             Herman that Coale would be
    fighting the biggest media machine     soliciting clients after big disasters.   joining them, Herman recalls
    in the world. The only reason that     At one point, Coale snidely               "there were a lot of people scared"
    a lot of people smoke today is         suggested in a newspaper interview        about what might transpire at that
    because of the media blitz."           that Herman and other ATLA                first meeting. But both men made
                                           leaders were ashamed of being
    Coale understood how the press                                                   it work. Within months, Coale was
                                           plaintiffs' lawyers, and privately
    worked. He also had good contacts                                                disseminating industry documents
                                           wished they had gone to Harvard
    in the FDA and would be able to                                                  to reporters and sympathetic
                                           Law School and into the legal
    monitor the agency's probe into the                                              members of Congress. As for the
    industry's use of nicotine, which                                                feud with Herman, that soon
    could produce evidence for their       Outraged, Herman snapped back in          disappeared. Months later, when
    case. Coale knew his way around        another press interview, calling          Coale and Herman bumped into
    Capitol Hill, too, and could follow    Coale a "cesspool."                       each other on a New Orleans street
    the efforts of the new Republican      A few weeks before the Emeril's
                                                                                     corner near the federal court, the
    majority's push for tort reforms       dinner, CBS's "60 Minutes" ran a
                                                                                     two men, both quite large and
    that might threaten their ability to   profile of Coale in which the
                                                                                     wearing conservative business
    win punitive damages.                  lawyer seemed disarming. When
                                                                                     suits, threw their arms around each
                                                                                     other with great gusto and began to
    Gauthier's biggest concern was         correspondent      Ed      Bradley
                                                                                     dance in a circle, with Herman
    putting Coale in the same room as      pronounced Coale a "vulture" who
                                                                                     calling out. "Cess! Cess!" It was an
    trial lawyer Russ Herman. Herman       would circle in and "pick the
                                                                                     echo of his notorious "cesspool"
    hated the fact that Coale was proud    bones" when people suffered
                                                                                     insult—only this time, it was a
    of being an ambulance chaser,          misfortune, Coale replied genially,
                                                                                     term of endearment.
    thought it reinforced the worst        "No ... I pick the bones of the
    stereotypes of plaintiffs' lawyers.    corporation bastards who did it to        On March 30, 1994, Gauthier’s
                                                                                     team filed the Castano class action
                                                                                     in federal court on behalf of "all

                                                                                     nicotine dependent persons" in the
                                                                                     United States. (Later a federal
                                  ou're not just fighting                            appeals panel threw out the
                                  a 'corporation' Coale                              national class action; the Castano
                                                                                     group reified in more than a dozen
                                  said, 'you're fighting                             state courts.) As Gauthier had
                                  the   biggest     media                            envisioned, the suit was limited to
                                  machine in the world.
                                                                                     the harm caused by addiction.
                                                                                     Citing the potential "class" of tens
                                  The only reason that a                             of millions of smokers, the suit
                                  lot of people smoke                                asserted that "a class action is
                                                                                     superior to other available
                                  today is because of                                methods." The document was
                                  the media blitz.'                                  signed by Gauthier, followed by a
                                                                                     long list of lawyers from the many
                                                                                     firms he had enlisted.
In     Mississippi,             state
Attorney General Moore had              Louisiana and Massachusetts; both        litigated   big     cases     against
goften a clear signal from his state    states later filed suits. Florida and    automakers, drug companies,
legislature that it would not pay for   other states sued as well.               asbestos    firms.    They      were
his novel Medicaid suit, which          The Medicaid strategy generated          impressed by the group Gauthier
might cost as much as $5 million.       headlines and earned strong              had assembled; they admired his
But Dick Scruggs and Ron Motley         support from the anti-tobacco            vision. But they were concerned
were willing to front the money         movement. Still, Moore knew the          about some of the "classers," as
from their private practices.           risks were high. "There was no one       one called them, in the group.
                                                                                 Branch says he wanted to make
The April 14 appearance by seven        who told me this was a good idea
                                                                                 sure that no one tried to "steal" the
top tobacco executives before a         from a practical or political point
                                                                                 Castano case and "turn it into a
congressional         subcommittee      of view," he recalls. The suing
                                                                                 runaway class action, where the
catalyzed Moore. He thought the         attorneys general tended to be
                                                                                 client be damned and attorneys be
testimony—particularly      denials     Democrats, the party with the
under oath that nicotine was            strongest ties to the plaintiffs' bar.
addictive—was "the biggest lie          But the governors of some states         Gallagher worried about how it
ever committed before Congress. I       were Republicans, the party that         would look if they reached a
called right then and told Dick and     had developed strong ties to the         settlement with the tobacco
Motley and the crew to get the case     tobacco      industry    and      had    industry in which each addicted
ready—we're going to file."             supported tort reform measures to        smoker got only a few dollars. He
                                        curb lawsuits by plaintiffs'             could see the headlines: "Lawyers
They did, on May 23, in the
                                        attorneys. Moore, for instance,          get a bejillion dollar fee—and the
Chancery Court of Jackson
                                        soon found himself at loggerheads        individual plaintiffs get very little."
                                        with Mississippi's Republican            Such results, he said, fueled the
Moore also wanted to enlist other       governor, Kirk Fordice, who went         fires of tort reform in legislatures
states to file similar Medicaid         so far as to sue Moore to block the      and Congress.
actions. He, Scruggs, Barrett and       Medicaid suit—a matter that is still
                                                                                 But Hare and Baldwin were
the other private lawyers wanted to     pending in the state Supreme Court
                                                                                 coming around to the idea that a
do it quietly; they feared the
                                                                                 class action might be a useful tool
industry might try to get state         When lawyers from the 60                 in tobacco cases, where traditional
legislatures to block such suits.
                                        firms enlisted by Gautier held their     trial methods had not succeeded.
Scruggs knew their task would be
                                        first big strategy session at the
complicated by political issues:                                                 As Hare put it, "You're never
                                        Windsor Court Hotel in New
Unlike recruiting from among the                                                 going to win these damn cases," so
                                        Orleans, four of them broke away
private bar, they were now trying                                                maybe the class action alternative
                                        one evening and headed for
to persuade elected officials,                                                   was not so bad after all.
                                        Antoine's restaurant in the French
sometimes in states where tobacco                                                Hare also was attracted by the
was king.                                                                        possibility that a class action
                                        It was a kind of encounter group, a
Moore lobbied his counterparts at                                                settlement could be negotiated that
                                        chance to talk philosophy, examine
national meetings, often asking                                                  would include remedial action like
                                        what they were doing.
Scruggs to accompany him.                                                        a nationwide medical monitoring
Scruggs remembers a meeting in          The four were Turner W. Branch           program to track smoking illness, a
San Antonio that summer, where          of       Albuquerque,     Michael        "public interest" result that could
they got an enthusiastic response       Gallagher of Houston, Francis H.         not be obtained in a traditional
from West Virginia Attorney             "Brother" Hare Jr. of Birmingham,        trial.
General Darrell McGraw Jr., who         and Scott Baldwin of Marshall,
                                                                                 Still, Hare said he was concerned
filed a Medicaid case on                Tex. All four represented the
                                                                                 about what might happen if the
September 19. Scruggs also spoke        traditional trial bar and were
                                                                                 tobacco industry actually offered a
with the attorneys general of           skeptical of class actions. They
                                                                                 deal. Limiting their suit to
                                        were veteran lawyers who had
addiction was a brilliant way to get   was in continual contact with             jurors filed into their box and
into court and overcome the            Liggett lawyers in New York.              listened as a clerk read aloud their
traditional industry defenses. But     The Castano vote took place in a          verdict in the matter of Carter v.
in any settlement, the tobacco         large conference room on the 23rd         Brown & Williamson Tobacco
industry would likely demand an        floor of the Windsor Court                Corp.: liability for the lung cancer
end to all litigation—suits over       Security guards stood outside as          of Grady Carter is found against
cancer, heart disease, emphysema,      the lawyers listened to two of the        the tobacco defendant Total
secondhand smoke, the Medicaid         Castano negotiators, Barrett and          damages: $750,000.
costs, everything. On the other        Richard M. Heimann, as they               Two obscure North Florida trial
hand, if the Gauthier team could       described the proposal.                   lawyers,     Norwood      "Woody"
deliver that kind of all-inclusive
                                       During the discussions that               Wilner and his partner, Gregory H.
deal, an end to the legal
                                       followed—in a signal of the               Maxwell, celebrated with their
uncertainty that beset the industry,
                                       tensions rising within the plaintiffs'    client; a 66-year-old former air
Gauthier's group would have
                                       bar as their campaign against             traffic controller who had smoked
enormous leverage; it was the kind
                                       tobacco yielded early successes—          Lucky Strikes and other cigarettes
of deal Wall Street would love.
                                       one lawyer raised persistent              heavily for more than 40 years.
The trouble was, if they sought to     concerns about whether they were          They were unlikely victors—the
settle claims that went beyond         getting the best deal possible.           two lawyers had spent more than a
addiction, Hare said, other                                                      decade at the defense table
plaintiffs' lawyers with suits         Russ Herman abruptly stood up,            representing the asbestos industry,
against the industry would             bluntly interrupted, and took the         winning case after case for their
complain that they were being          floor. As if he were making some          clients by arguing that plaintiffs'
undercut. Under the rules of class     great closing argument Herman             cancers or empliysemas were not
actions, if they made a deal that      declared passionately that they           from asbestos but from smoking.
went beyond addiction and a judge      should recognize the significance         Finally Wither and Maxwell had
approved it, other suits by smokers    of this potential deal—the first          asked each other, Why not sue the
could be foreclosed.                   settlement ever, curbing the sale of      tobacco       industry?    Without
                                       cigarettes to minors. The lawyers         substantial expenditures or new
In the end, Hare concluded that        should say yes—now.                       legal theories, they had done what
what mattered most was whether
                                       With the Liggett lawyers listening        had seemed nearly impossible for
the Castano lawyers could deliver
                                       in on the phone from New York,            decades: They had stayed in a
the best deal for their client—in
                                       Herman dramatically called for a          smoker's shoes, sued a tobacco
this case, the class of addicted
                                       vote and a roar of "ayes" went up.        company, and won.
                                       It took a few extra days for the          Coming on the heels of the Liggett
The combined,               growing    attorneys general to complete their       settlement; their verdict sent
threat of the Castano and Medicaid     portion of the deal.                      tobacco shares tumbling on Wall
lawsuits gave rise to the landmark                                               Street—Philip Morris, which had
                                       "The tobacco industry has lived for       nothing directly to do with the
Liggett deal, the crack in tobacco's   too long with the possibility of
wall.                                                                            Jacksonville case, saw its stock fall
                                       financial catastrophe from product        about 14 percent in one day.
On March 12, 1996, Wendell             liability lawsuits that could destroy
Gauthier summoned the lawyers          the industry," LeBow said later in        The Jacksonville verdict seemed to
from his consortium of 60 firms to     a press release. "liggett's assets will   be evidence of how much was
New Orleans for a secret vote on       no longer be held hostage by the          changing in the battle between
the proposed settlement. On the        tobacco litigation, and we will be        plaintiffs' lawyers and the tobacco
same day, Scruggs and Mississippi      free to run our business without          companies. It was hard to know
Attorney General Moore were in         this distraction."                        precisely what had changed, what
Washington,        working      the                                              was cause and what was effect. But
                                                                                 clearly public attitudes were
telephones to round up the votes of    Five months later,               on       shifting and clearly they were
the state attorneys general who had    August 9, in a Duval County
filed Medicaid suits. Each group                                                 being influenced by a new
                                       courtroom in Jacksonville, Fla., six
fountainhead of internal tobacco       smoking in American society are        Behind the scenes, Scruggs floated
industry documents and whistle-        now shifting," wrote Wall Street       a proposal known as the Tobacco
blower allegations that the industry   tobacco analyst Jay Nelson, of         Claims Settlement Act of 1996.
had been well aware of the hazards     Brown Brothers Harriman & Co.,         Under terms of the act, Scruggs
of cigarettes since the 1950s and      on    August     26,   after    the    says, the tobacco industry would
had concealed what it knew. In the     Jacksonville verdict. The varied       pay some $160 billion over 20
Carter case, the jurors told           and intensified legal and political    years to partially reimburse state
reporters afterward that one of the    pressure on the industry gave rise     Medicaid      costs   and     fund
most important factors in their        to serious speculation about a         independent research and public
decision had been damaging             tobacco end- game, what Nelson         education programs on the dangers
internal    company      documents     called "a Grand Compromise."           of smoking. The industry would
presented in evidence at trial.                                               have to divulge its own tobacco
                                       A week later, Wall Street analyst
                                                                              research, and FDA proposals to
To at least some extent, the           Gary Black suggested that if the
                                                                              curb sales to minors would become
Jacksonville verdict could be          number of states participating in
traced to the ongoing work of          the Medicaid actions grew— by
lawyers in the Medicaid and            this fall, the plaintiffs numbered     In return, Congress would pass a
Castano groups, who had supplied       more than a dozen states, induding     law ensuring that the industry
Wilner and Maxwell with many of        Maryland, and cities like New          would not be subjected to FDA
the tobacco industry documents         York and Los Angeles—then the          regulation, or to suits from
they used at trial. Since 1994, Dick   result could be an "unprecedented      smokers or states, for 20 years. In
Scruggs and others had been            threat ... These alone could           pending cases, damages that could
facilitating the emergence of          bankrupt the industry." Industry       be recovered would be capped.
documents and of such prominent        opposition to any settlement           Scruggs says he had support from
industry whistle-blowers as Jeffrey    continued to soften. Martin            Senate Majority Leader Trent Lott
Wigand, a former executive of          Broughton, chief executive of          (R-Miss.)— who happens to be his
Brown & Williamson, and Merrill        Brown & Williamson's parent            brother-in-law. Lott told Scruggs
WIlliams, a paralegal at the           company, said that a legislated        that while he would not become
company's defense firm. Wilner         settlement was a "common sense"        directly involved in the talks
and Maxwell also consulted with        way to solve the industry's            between the parties, if a
Motley and Barrett and used            problem.                               satisfactory deal was reached, Lott
documents and depositions from
                                       For the Castano and Medicaid           would be willing to help enact the
Barrett's earlier tobacco cases.
                                       group lawyers, who claimed to          legislation necessary to put it in
The Jacksonville verdict was a         represent tens of millions of          place.
shock, but it might prove to be        smokers and more than a dozen          Tobacco officials publicly denied
only the beginning:                    state governments, any such            authorizing any congressional
                                       compromise would require them to
Confident that they had found a                                               settlement talks. Philip Morris, in a
                                       weigh the interests of their clients
way to win old-fashioned tobacco                                              statement, said the company
                                       against broader public and policy
liability  cases,    Wilner     and                                           intended to "vigorously defend" all
                                       questions. This was not something
Maxwell have nearly 200 such                                                  of its lawsuits and played down
                                       plaintiffs' lawyers normally did.
cases pending, to be tried one after                                          any chances of a deal.
                                       For the lawyers in both groups, the
another, with the next one set to                                             The talks came as a complete
                                       shift     represented    both    an
begin in April 1997.                                                          surprise to many Castano lawyers,
                                       opportunity and a continuing
                                       source of internal tension.            some of whom first read about the
"The tectonic plates      on                                                  proposal in the Wall Street Journal.
which rests the issue of the           Some in the plaintiffs' bar were
continuing role of cigarette           already thinking like policymakers:
                                           ellon thought Clinton would have to
                                           sign it. 'This will be one of the great
                                           pieces of legislation in the century,
                                           if you believe as I do that tobacco is
                                           the scourge of our society.'

Gauthier contacted Scruggs, who        he suggested that the time might be     "If you are president of the United
assured him that Castano lawyers       right to launch yet a new wave of       States, and Congress gives you this
would participate in any future        tobacco litigation, ratcheting up the   act," Mellon told the group, as he
negotiations.   Some       Castano     pressure even more.                     listed the potential benefits
lawyers were supportive; others        Mellon told the group that the
                                                                               contained     in    the     proposed
were concerned, even upset. To         tobacco industry was embattled.
                                                                               legislation, how could Clinton say
them, the idea of agreeing to any      Public sentiment was coming their
                                                                               no? The president would have to
settlement in which Congress           way. There might be grand jury
                                                                               look at the bigger picture. "It is just
would ban future lawsuits was          indictments     against   tobacco
                                                                               clear to me that that piece of
abhorrent — it contradicted            executives or their companies and,
                                                                               legislation has to be signed,"
everything they had fought for in      in 1997, a movie version of John
                                                                               Mellon said, as he recalls it.
the long-standing battles in           Grisham's anti-tobacco novel, The       One lawyer present was Hugh
Congress over tort reform.             Runaway Jury, was scheduled for         Rodham,       President     Clinton's
Castano leaders talked about the       release. Mellon suggested that the      brother-in-law and a member of
settlement proposal during a           Castano lawyers flood the courts        the Castano team. Mellon turned to
conference call in September. One      with thousands of new cases by          Rodham and asked what he
lawyer on the phone, Maury             individual smokers. The litigation      thought. Alter all, the president had
Herman, Russ's brother and law         would swamp the tobacco industry.       opposed tort reforms that he saw as
partner, urged his colleagues to       At day's end, Mellon and some
                                                                               unfair to consumers; he had vetoed
keep their objections to such an       other Castano lawyers adjourned to
                                                                               a tort reform bill.
overarching deal private. They had     the hotel lounge on the second          Rodham's       response,     recalls
remained united thus far, and if       floor. Sipping iced tea, white wine     Mellon, was that the president
they started going after each other    and O'Doul's nonalcoholic beer,         would never sign a bill that
now, their critics would portray the   the group began talking about           restricted the right of citizens to
lawyers as motivated by greed. "It     Scruggs's proposed congressional        sue.
would be sharks circling sharks        deal, the Grand Compromise. As
eating sharks," Maury Herman told                                              But Mellon thought Clinton would
                                       they went around the table, almost      have to sign it. "This will be one of
his colleagues.                        everyone agreed that they were          the great pieces of legislation in
Several weeks later, the Castano       against any settlement that             the century, if you believe as I do
lawyers journeyed back to New          imposed a ban on future lawsuits.       that tobacco is the scourge of our
Orleans for another strategy           But Mellon, of all people,              society," Mellon recalls saying.
meeting at the Windsor Court. One      dissented. He had a background in
hot topic was the Jacksonville         public policy as a former federal       Listening to all this was Brother
verdict, which had electrified the     prosecutor. He wondered if the          Hare, the old-line trial lawyer from
group. During one session,             others might be underestimating         Birmingham.            He         felt
Thomas E. Mellon Jr., an intense,      the political attractiveness of such    uncomfortable. He was certain he
curly-haired      lawyer      from     an endgame.                             would not support a deal in which
Doylestown,      Pa.,   gave     an                                            Congress—rather than a court—
enthusiastic presentation in which                                             restricted the right of individuals to
sue. Yet he agreed with Mellon:         for tens of millions of people—        that are political, philosophical—
Politically, Clinton might have to      smokers he had never met and           that sort of thing," Hare says,
sign such a bill.                       never would meet.                      "rather than just the case of a
                                                                               lawyer with an individual client.
Hare found himself thinking less in     Yet,    if   Hare      thought    a
                                                                               And that troubles me.”
his classic role as a lawyer and        congressional solution was the best
more like some social architect, as     thing for the country, even if it
he put it later. When he                deprived the plaintiffs' bar of the    Benjamin Weiser, a reporter on
represented a single client, Hare       right to sue, what should be his       The Post's investigative staff writes
focused narrowly on his client's        position?                              frequently about legal and
interests and "the public interest be   Like so many of his colleagues         financial issues. Post staff writer
damned." When he joined the             these days, he felt torn even trying   John Schwartz contributed to this
Castano group, he had accepted an       to answer the question. "I'm now       article.
enlarged view of his "client"; now      aware that I'm making decisions
he was trying to fashion a solution

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