Read out loud, Zippergateâ€™s famous â€œtalking pointsâ€ memo might be mistaken for a stage hypnotistâ€™s spiel. â€œYou did not see [Kathleen Willey] go in or see her come outâ€ of the Oval Office, the script declares with serene suggestiveness. â€œYou now find it completely plausible that she herself meared her lipstick, untucked her blouse, etc.â€ â€œYou are relaxed, Ms. Tripp, calm and drowsyâ€¦and now some bad old memories can slip away, while other better ones emerge to take their place.â€
Many observers in recent weeks have been startled by just how breezy our legal culture can be about the suborning of perjury. Sure, as Vernon Jordan is alleged to have helpfully assured Monica Lewinsky, perjury seldom gets prosecuted in civil cases. But youâ€™d still think thereâ€™d be some surviving taboo on coordinating othersâ€™ false stories, with its extra element of planning and forethought. If you wonder what passes for acceptable witness preparation in our litigation system today, though, itâ€™s worth catching up on the latest developments in a case that came to light last year in Texas.
The deposition of Willie Roy Reathy on August 27, 1997, in Corpus Christi looked to be another routine skirmish in the asbestos wars. In recent decades tens of thousands of industrial workers have sued hundreds of companies that sold products containing asbestos. In the strongest such cases, a worker has unquestionably been exposed to high levels of asbestos dust and later develops a lethal disease clearly linked to asbestos (such as mesothelioma, a fatal cancer). He sues not his employerâ€”that would bring him under workersâ€™ compensation law, with its limited awardsâ€”but instead the manufacturer.
Only a small minority of todayâ€™s suits actually fit this profile. When entrepreneurial law firms came to realize the potential in this line of work, they also got a lot less choosy about recruitment. Some now park vans in front of union offices and herd workers through for quickie x-rays which nearly always, in the view of the lawyersâ€™ hired medics, indicate lung dysfunctionâ€”even if no subpar functioning at all is detectable to defendantsâ€™ doctors. The process started with occupations that worked closely with loose asbestos, such as ship insulators and pipefitters, but has since spread ever wider in concentric rings, to the point where you may hop on the claimant train if you spent one summer in college helping renovate a library. Meanwhile, most of the major asbestos makers of yesteryear having gone bankrupt, the game is increasingly one of chasing down companies that never thought they were in the asbestos business at all: makers of ceiling tiles that contained a small admixture of the substance for fire protection, family-owned wholesalers that handled thousands of different industrial products back in the 1940s, and so forth.
In the Corpus Christi case, plaintiff Reathy was represented by Baron & Budd, a 40-lawyer Dallas firm that is said to be one of the nationâ€™s most lucrative injury practices. Reportedly the firm had sent to the deposition a first-year associate who proceeded to hand over to the opposing lawyer a stack of routine documents without realizing it contained an extra document he certainly did not intend to hand over.
That document was a twenty-page memo with the title â€œPreparing for Your Deposition,â€ and it consisted largely ofâ€¦talking points. â€œIt is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER,â€ the memo advises. â€œDo NOT say you saw more of one brand than another, or that one brand was more commonly used than anotherâ€¦.You NEVER want to give specific quantities or percentages of any product namesâ€¦.Be CONFIDENT that you saw just as much of one brand as all the others. All the manufacturers sued in your case should share the blame equally!â€
â€œProduct identificationâ€ is typically a crucial issue in asbestos suits. Prevailing legal doctrine requires a showing that the complainant was exposed to particular defendantsâ€™ products, and the more different makersâ€™ the better from the lawyersâ€™ perspective. Seldom is there any independent way to verify which products were used at workplaces decades earlier, which can leave workersâ€™ memories as the only evidence.
â€œHow well you know the name of each product and how you were exposed to it will determine whether that defendant will want to offer you a settlement,â€ the document explains. â€œYou will be required [to] do all this from MEMORY, which is why you MUST start studying your Work History Sheets NOW!â€ (The Work History Sheets incorporated the planned allegations of which products would be said to have been encountered at which workplaces.)
What if defense lawyers get skeptical? â€œYou may be asked how you are able to recall so many product names. The best answer is to say that you recall seeing the names on the containers or on the product itself. The more you thought about it, the more you remembered!â€ And quit worrying: â€œKeep in mind that these attorneys are very young and WERE NOT PRESENT at the jobsites you worked at. They have NO RECORDS to tell them what products were used on a particular job, even if they act like they doâ€¦.The best way to respond to this kind of question is â€œYes, I am SURE I saw it there!â€ or â€œI KNOW it was that brand because I saw the name on the container.â€
Over the years asbestos defendants had grown quite certain that they were dealing with a huge volume of less-than-forthright plaintiff testimony, as a teacher grows suspicious when the class hands in identically worded essays. As Manville and other leading manufacturers of asbestos went bankrupt, for example, new complainants abruptly ceased remembering working with those makersâ€™ brands.
â€œRemember to say you saw the NAMES on the BOXES,â€ the memo says of pipe covering and block insulationâ€”the problem here being that workers might â€œrememberâ€ seeing brand names on these products themselves when in fact they werenâ€™t stamped with makersâ€™ names. Although some of the highest dust exposures occurred during demolition work, â€œUnless your Baron & Budd attorney tells you otherwise, testify ONLY about INSTALLATION of NEW asbestos material, NOT tear-out of the OLD stuff. This is because it is almost impossible to prove what brand of material was being torn outâ€¦â€
Defense attorneys may try to ask trick questions about products that werenâ€™t introduced until after your time on the job, but your lawyer will object: â€œ[L]isten carefully to your Baron & Budd attorneyâ€™s suggestion. Some examples are: â€¦ â€˜You didnâ€™t see that product before the 1960s, right?â€™ Your attorney will not ask you to say something wrong.â€ Thatâ€™s why you should pause after any question: â€œMake sure you give your attorney TIME to object before blurting out an answer!â€
Make sure to keep your lawyersâ€™ options open. â€œYou should name all the products YOU RECALL, but be sure to say there were others, too. This way, your co-workers can testify about brands you cannot remember yourselfâ€¦It is VERY important to say that there were LOTS of other brands. You just cannot recall ALL the names!â€ Whatever you do, brazen it out: â€œYou must be CONFIDENT about the NAMES of each product, what TYPE of product it was, how it was PACKAGED, who used it and HOW it was usedâ€¦â€ And while you may have to let the opposition see your work history sheets, â€œAny other notes, such as what you are reading right now, are â€˜privilegedâ€™ and should never be mentioned.â€
How did Baron & Budd react when this document came to public light? With the same strategy pursued so brilliantly by the Clinton White House: not only refusing to apologize for anything, but proposing that they are the real victims.
To begin with, attorney Frederick Baron declared that the artfully written documentâ€”which was prominently marked â€œAttorney Work Product,â€ and reflected close knowledge of the legal impact of possible testimonial contentâ€”was in fact the production of a rogue, unsupervised legal assistant. (But then, some have suggested that Monica Lewinsky wrote the â€œTalking Pointsâ€ herself.) In fact, Baron maintained, none of the firmâ€™s lawyers knew of the documentâ€™s use, it had only been used in a small number of cases by this one paralegal in the past year or two, besides which he would never knowingly employ anyone he caught suborning false testimony. (The memo itself, incidentally, amusingly anticipates this tendency to lay the blame on the firmâ€™s non-attorney employees: â€œIf there is a MISTAKE on your Work History Sheets, explain that the â€˜girl from Baron & Buddâ€™ must have misunderstood what you told her when she wrote it down.â€)
So are these explanations for real? You might think the answer would be to conduct some sort of investigation into such questions as how and how widely the document was used, whether the firmâ€™s lawyers were ignorant of its use, whether there were other, similar versions of the memo, whether any such versions were shared among other law firms, and so forth. But Baron & Budd has proceeded to block any such probe. In fact, its lawyers have been refusing to let their clients answer questions about whether theyâ€™ve seen the memo.
In fact, Baron & Budd argues, the real scandal is that their privacy has been invadedâ€”a position that has had some success. True, in December Bexar County Judge Michael Peden ruled against the firmâ€™s claim that the memo was protected by attorney-client privilegeâ€”â€œNo privilege attaches to the Deposition Script because it also evidences a plan to commit a crime or fraud within the meaningâ€ of the Texas Rules of Civil Evidence. But in January a state appeals court in Austin found the document was privileged â€œas a confidential communication between an attorneyâ€™s representative and the client made for the purpose of facilitating the rendition of legal services.â€ â€œBaron & Budd takes the position that any public use of The Document is a breach of B&Bâ€™s privileges, and we will retaliate against any attorney who uses it,â€ Baron told Mealeyâ€™s Asbestos Litigation Reporter.
Even more colorful developments were afoot in Dallas, where Judge John McClellan Marshall, who presides over a group of Baron asbestos cases, referred the matter to a state bar grievance committee: the Texas Rules of Professional Conduct, like those of other states, provide that â€œA lawyer shall not â€¦ counsel or assist a witness to testify falsely.â€ But in no time at all the bar committee dismissed the complaint: in the view of the State Bar of Texas, the memo revealed no ethical violation worth worrying about. Judge Marshall, evidently nettled at the quick rejection of the bar complaint, proceeded to raise the stakes: terming the matter â€œscandalous to
the community as well as to the profession,â€ and â€œan affront to the integrity of the judicial system,â€ he referred it to a grand jury for possible prosecution. Baron proceeded to call Judge Marshall â€œa fruitcakeâ€ and fired off an official complaint against him to the State Commission on Judicial Conduct.
Meanwhile Baron was preparing to proceed with his ultimate line of argument: there was nothing ethically wrong with the memo in the first place. He proceeded to obtain opinions in its favor from two University of Texas legal-ethics professors, from University of Indiana legal ethics specialist William Hodes, and from Steven McCormick, general counsel of the State Bar of Texas.
Hodes, for example, wrote in an affidavit that he found â€œnothing improper or unethicalâ€ in Baron & Buddâ€™s use of the document in the Reathy case. â€œIt is...appropriate for a lawyer to instruct his client how to answer questions in accordance with the truth that will best serve his case.â€ That affidavit deserves an acid-free mount and mahogany frame: how better to sum up the degree of moral insight and ethical rigor that todayâ€™s American legal academy expects of its members?
Really, we should be grateful to Americaâ€™s lawyers. Not only are they entertaining, but we owe them so many memories.