Reasonable Doubts: Thanks for the Memories

How lawyers get the testimony they want.

Read out loud, Zippergate's famous "talking points" memo might be mistaken for a stage hypnotist's spiel. "You did not see [Kathleen Willey] go in or see her come out" of the Oval Office, the script declares with serene suggestiveness. "You now find it completely plausible that she herself smeared her lipstick, untucked her blouse, etc." You are relaxed, Ms. Tripp, calm and drowsy…and now some bad old memories can slip away, while other better ones emerge to take their place….

Many observers 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 you'd still think there'd be some surviving taboo on coordinating others' 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, it'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 employer--that would bring him under worker's compensation law, with its limited awards--but instead the manufacturers.

Only a small minority of today'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 halls and herd workers through for quickie x-rays which nearly always, in the view of the lawyers' hired medics, indicate lung dysfunction--even if no subpar functioning at all is detectable to defendants' 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 gravy train if you spent one summer in college helping to 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 nation's most lucrative injury practices. Reportedly the firm had sent to Reathy's deposition a first-year associate who proceeded to hand over to the opposing lawyer a stack of papers without realizing it contained an extra document he certainly did not intend to hand over.

That document was a 20-page memo with the title "Preparing for Your Deposition," and it consisted largely of talking points. "It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER," the memo advises. "Do NOT say you saw more of one brand than another, or that one brand was more commonly used than another….You NEVER want to give specific quantities or percentages of any product names….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!"

"Product identification" is typically a crucial issue in asbestos suits. Prevailing legal doctrine requires a showing that the complainant was exposed to particular defendants' products, and the more different makers the better from the lawyers' perspective. Seldom is there any independent way to verify which products were used at workplaces decades earlier, which can leave workers' memories as the only evidence.

"How 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," the document explains. "You will be required [to] do all this from MEMORY, which is why you MUST start studying your Work History Sheets NOW!" (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? "You 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!" And quit worrying: "Keep 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 do….The best way to respond to this kind of question is `Yes, I am SURE I saw it there!' or `I KNOW it was that brand because I saw the name on the container.' "

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 Johns-Manville and other leading manufacturers of asbestos went bankrupt, for example, new complainants abruptly ceased remembering working with those makers' brands.

"Remember to say you saw the NAMES on the BOXES," the memo says of pipe covering and block insulation--the problem here being that workers might "remember" seeing brand names on these products themselves when in fact they weren't stamped with makers' names. Although some of the highest dust exposures occurred during demolition work, "Unless 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 out…."

Defense attorneys may try to ask trick questions about products that weren't in use during your time on the job, but your lawyer will object: "[L]isten carefully to your Baron & Budd attorney's suggestion. Some examples are: `You didn't see that product before the 1960s, right?' Your attorney will not ask you to say something wrong." That's why you should pause after any question: "Make sure you give your attorney TIME to object before blurting out an answer!"

Make sure to keep your lawyers' options open. "You 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 yourself….It is VERY important to say that there were LOTS of other brands. You just cannot recall ALL the names!" Whatever you do, brazen it out: "You 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 used…." And while you may have to let the opposition see your work history sheets, "Any other notes, such as what you are reading right now, are `privileged' and should never be mentioned."

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 document--which was prominently marked "Attorney Work Product," and reflected close knowledge of the legal impact of possible testimonial content--was in fact the production of a rogue, unsupervised legal assistant. (But then, some have suggested that Monica Lewinsky wrote the "talking points" herself.) In fact, Baron maintained, none of the firm's lawyers knew of the document's use, it had only been used in a small number of cases by this one paralegal in the past year or two, and besides which he would never knowing employ anyone he caught suborning false testimony. (The memo itself, incidentally, amusingly anticipates this tendency to lay the blame on the firm's non-attorney employees: "If there is a MISTAKE on your Work History Sheets, explain that the `girl from Baron & Budd' must have misunderstood what you told her when she wrote it down.")

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 firm'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 they've seen the memo.

In fact, Baron & Budd argues, the real scandal is that their privacy has been invaded--a position that has had some success. True, in December Bexar County Judge Michael Peden ruled against the firm's claim that the memo was protected by attorney-client privilege--"No privilege attaches to the Deposition Script because it also evidences a plan to commit a crime or fraud within the meaning" of the Texas Rules of Civil Evidence. But in January a state appeals court in Austin found the document was privileged "as a confidential communication between an attorney's representative and the client made for the purpose of facilitating the rendition of legal services." In March the full court withdrew that opinion, which had been issued by a panel irregularly constituted of two judges, and ordered a rehearing on the matter. Meanwhile, "Baron & Budd takes the position that any public use of The Document is a breach of B&B's privileges, and we will retaliate against any attorney who uses it," Baron told Mealey'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, "[a] lawyer shall not…counsel or assist a witness to testify falsely." But in no time at all the bar committee dismissed the complaint. In the view of the State Bar of Texas, the memo apparently 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 "scandalous to the community as well as to the profession," and "an affront to the integrity of the judicial system," he referred it to a grand jury for possible prosecution. Baron proceeded to call Judge Marshall "a fruitcake" 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 "nothing improper or unethical" in Baron & Budd's use of the document in the Reathy case. "It is…appropriate for a lawyer to instruct his client how to answer questions in accordance with the truth that will best serve his case," Hodes wrote. That affidavit deserves an acid-free mount and mahogany frame: How better to sum up the degree of moral insight and ethical rigor that America's legal academy expects of its members?

Really, we should be grateful to America's lawyers. Not only are they entertaining, but we owe them so many memories.

Contributing Editor Walter Olson ([e-mail]) is senior fellow at the Manhattan Institute and author most recently of The Excuse Factory.