Summary Block 1-30

Howarth & Smith: Place of Possibilities

(Heritage Media Corporation)

Founding Partners Don Howarth and Suzelle Smith.

Founding Partners Don Howarth and Suzelle Smith.

Since its founding in 1985, Howarth & Smith has gained a national reputation for its extraordinary success in a variety of high profile trials and appeals. This boutique law firm, which represents plaintiffs and defendants, is the only firm in the country ever to have been selected by the National Law Journal for both "Top 10" plaintiff's and defense verdicts in a single year.

Howarth & Smith represented the plaintiff in a 1996 fraud and breach-of-contract action against General Dynamics, winning $107.4 million judgment – the largest verdict in California that year. The firm also was responsible for one of the year's most notable defense verdicts in a product liability action defending Suzuki Motor Corp. Opposing the same counsel who had obtained a $90 million verdict against Suzuki in a prior suit, Howarth & Smith's bold trial strategy led to a defense verdict after the jury deliberated for three hours. Howarth & Smith represented 14 "bellwether" plaintiffs (out of a total group of 58), residents of Lincoln Park, Colorado in a contamination case against Cotter uranium mill. In the federal court trial in Denver, a unanimous jury found in favor of all plaintiffs and awarded punitive damages against Cotter. Additionally, the jury awarded lifetime medical monitoring to all plaintiffs, an unprecedented result in a contamination case. Judgment has been entered for $2.9 million, and the remaining cases are pending.

Howarth & Smith, Annual Black Tie Dinner, Blenheim Palace, Oxfordshire, England May 9, 1998 Partners (Left to Right) David K. Ringwood, Brian D. Bubb, Suzelle M. Smith and Don Howarth

Howarth & Smith, Annual Black Tie Dinner, Blenheim Palace, Oxfordshire, England May 9, 1998
Partners (Left to Right) David K. Ringwood, Brian D. Bubb, Suzelle M. Smith and Don Howarth

Howarth & Smith specializes in complex civil actions, including business and commercial matters, antitrust cases, class actions, toxic torts and catastrophic personal injury cases. The firm's practice is focused on high-stakes trials and appeals, including "bet the company" cases. Howarth & Smith is selective in its client representation, undertaking matters involving intellectual challenges, serious social concerns and the opportunity to address groundbreaking legal issues.

The firm typically refers routine litigation to other capable attorneys and firms, many of which it has worked with over the years.

Howarth & Smith encourages close relationships with attorneys and law firms throughout the country, and many of its clients, which include individuals, corporations and nonprofit organizations, are referred by other lawyers. The firm also serves as designated trial Counsel in significant cases, where the pretrial preparation is handled by other firms in co-counsel capacity. A brief list of some prominent cases demonstrates Howarth & Smith's remarkable achievements:

The firm represented the late Doris Duke and played a leading role in the battle over the billion-dollar estate of the tobacco heiress, resulting in the removal of the opposing trustees, preliminary executor and a major banking institution and the appointment of the firm's client as a trustee of the Estate.

Howarth & Smith represents the wife and son of the original "Marlboro Man" in their suit against Philip Morris and is heavily involved in the landmark class action cases against the tobacco industry.

Howarth & Smith Partners, Oxford University, Trinity Term Law Lectures, 1998

Howarth & Smith Partners, Oxford University, Trinity Term Law Lectures, 1998

Another high profile case involved an antitrust challenge to the National Football League by the firm's clients - about 20 top professional NFL football players.

The firm has handled a number of consumer class actions, including a price fixing class action on behalf of all purchasers of eggs in Southern California. The firm is lead trial counsel for the Government of the Republic of the Marshall Islands in its action against the tobacco industry to recover healthcare costs incurred because of tobacco use in the islands. The firm represented a manufacturer in connection with its suit against the company that was to implement its Enterprise Resource Planning System..

The firm filed suit against a Pasadena shopping mall, successfully arguing that the mall's deficient security allowed two criminals to rape and murder the wife of its client. The jury returned a $3.6 million verdict in favor of the husband and against the mall.

In a product liability case, the firm won a $7 million jury verdict for a man left paralyzed in connection with the use of a Sears extension ladder sold without adequate safety warnings.

In a breach of oral contract to transfer an equity interest to a corporate executive, Howarth & Smith obtained a $9 million jury verdict for the corporate executive.

The firm has represented 12 California cities and municipalities in an action against other municipalities for recovery of $30 million lost in a fraudulent investment scheme.

On the defense side, the firm has represented many corporations in multimillion dollar suits, including anti-trust cases against vitamin, catfish, cement and glass container manufacturers, NBA and NFL stars, high net worth individuals, the Vatican Library (as custodian of Vatican artwork) and several prominent law firms.

Howarth & Smith's unique legal accomplishments stem from its partners' recognized ability to combine strategic thinking, high quality legal analysis and persuasive courtroom presence. What further distinguishes these lawyers is their ability to distill complex legal issues, technicalities and jargon into understandable and compelling arguments, enabling juries to grasp relevant issues and understand the client's position. Howarth & Smith's flair for crisp, concise communication– coupled with its analytical skills and mastery of trial strategy - are a potent combination that makes the firm a powerful force in the nation's courtrooms.

(Left to right) Kenneth Tune (of counsel) and partners, Don Howarth, Suzelle Smith, Brian D. Bubb and David K. Ringwood

(Left to right) Kenneth Tune (of counsel) and partners, Don Howarth, Suzelle Smith, Brian D. Bubb and David K. Ringwood

Howarth & Smith is led by five partners, Don Howarth, Suzelle Smith, David Ringwood, Brian Bubb and Robert Brain. The partners are supported by associates, of counsel attorneys and a group of experienced paralegal assistants.

Mr. Howarth specializes in trials and appellate arguments. He holds three degrees from Harvard University, including a B.A. from Harvard College, a Master's from the Kennedy School of Government and a JD from the Harvard Law School. He is an elected Fellow of the American College of Trial Lawyers and of the International Academy of Trial Lawyers, and the American Bar Foundation. He is a Visiting Fellow at Oxford University (England), and a Visiting Scholar at Cambridge University (England). He is a frequently invited speaker at high-level conferences throughout the U.S. and abroad.

Ms. Smith, recognized by The National Law Journal as one the nation's 10 best litigators in 1996, graduated summa cum laude from Boston University and obtained a Master's degree in Philosophy from Oxford University in England. She earned her Law degree from the University of Virginia, where she was Order of the Coif. She is now a member of the University of Virginia School of Law Board of Trustee, a member of the Pepperdine Law School Board of Visitors, a Visiting Fellow Oxford University (England), a Visiting Scholar at Cambridge University (England) and an elected Fellow of the International Academy of Trial Lawyers and American Bar Foundation.

Howarth & Smith has demonstrated that creative attorneys with the right approach and the right set of skills can provide what is necessary to succeed in today's legal arena: individualized trial and appellate advocacy so difficult to find in large firms with generic programs.

Suit Accuses Supermarkets Of Cooking Egg Prices

By Jess Bravin
(The Wall Street Journal)


SANTA MONICA -- Walk into an independently owned 7-Eleven store in and around this sunny beach town and you'll find that the price of a dozen large white eggs ranges from $1.59 to $1.99. But at local outlets of Southern California's three major supermarket chains -- Lucky, Ralphs and Vons--the price is markedly higher: a uniform $2.09.

A similar discrepancy prevails throughout much of Southern California, with independent grocers and convenience stores charging less for eggs than the big chains that dominate the market. Why the difference?

The chains say the answer is simple: Given the basic law of supply and demand, they can command these higher prices. It is, they maintain, the free market at work.

But according to the plaintiffs in a class-action lawsuit in San Diego Superior Court, the reason is much more sinister: In their view, there's an illegal price-fixing agreement among the major supermarkets. Over the past five years, they contend, consumers have paid $250 million more for eggs than they would have in a truly competitive market.

The case, originally filed in 1996 with little fanfare, was recently set for trial; jury selection is scheduled to begin Nov. 2. The plaintiffs say they will not only prove that egg prices in Southern California are higher than those in other parts of the country, but that Lucky, Ralphs and Vons share pricing information through trade associations and other intermediaries and have at least a tacit agreement to keep prices high.

"There is a mechanism...where the majors turn in their egg prices. It's 'You show me yours and I'll show you mine,'" contends plaintiffs' attorney Don Howarth of Los Angeles. "If everyone stays with the program, there's a benefit to all the participants. If not...the prices will spiral down."

Perfectly orchestrated, Mr. Howarth says, the "conspiracy" manages to prop prices at the highest level, while keeping "the purchasing public sullen but not mutinous." The plaintiffs are seeking an injunction that would prevent the price of eggs from being fixed and unspecified monetary damages.

Suit Alleges Grocers Fixed Egg Prices.

The supermarkets flatly deny the charge, and in court papers have challenged everything from the suit's factual premise to the qualifications of the named plaintiffs -- a sister and a friend of the young attorney who first filed the case--to represent the class of all egg consumers in Imperial, Los Angeles, Orange, Riverside, San Bernardino and San Diego Counties.

Vons Co. "has never entered into any agreement with any competitor to fix the price of any product it sells, including eggs," the Los Angeles-based supermarket chain said in a statement released by its attorney. Gregory Stone of Munger, Tolles & Olson, "Vons' frequent promotions and discounting of eggs results in an average sales price that is well below the egg prices of Vons' major Southern California competitors."

The attorney for Dublin-based Lucky Stores Inc., Mark Spooner of the Los Angeles firm Arnold & Porter, also calls the case "really, totally baseless." The prices on any given item, he says, "are going to vary from market to market, and what really matters is the mix of prices. There are literally thousands of items sold in grocery stores, and you can't judge competition based on any one item." (Ralphs Grocery Co. of Compton didn't respond to request for comment.)

Even with all the wrangling, two things seem beyond dispute. First, despite controversies over their health implications, eggs remain a popular food. Consumption is down from its peak in the 1940s-- when the average American ate 400 eggs a year-- but Californians still consume about 240 eggs annually, some 30% of them as recipe ingredients.

Second, although California is the nation's largest egg producer, with roughly one laying hen for each of the state's 33 million residents, its supermarket egg prices are generally the highest in the U.S.

This has been so since 1983, when an epidemic of avian influenza wiped out much of the nation's chicken population and "prices went through the roof," says Donald Bell, a poultry specialist at the University of California-Riverside. But after the industry recovered, "the rest of the country took their retail prices back down--and California did not."

According to Mr. Bell, the wholesale price of a dozen large eggs in California is now around 64 cents--meaning the supermarkets are marking up their eggs by about $1.45 per carton.

Still, he says, "it's going to be very difficult to prove a willful agreement between those parties to do whatever they're doing. You can always look at any price in a store and say, 'Boy that's high.' But that's part of capitalism."

Howard Shelanski, a law professor and antitrust expert at the University of California-Berkeley, agrees. "High margins can be the result of ...rational behavior" on the part of each supermarket acting independently, rather than through collusion, Prof. Shelanski says.

Antitrust law, he adds, "has always wrestled with the problem of how to handle "high prices in a sector in which there is just a handful of particularly large players--an oligopoly. "Generally, the position has been to watch those industries carefully," the professor explains, "but you don't punish the firms" simply for charging as much as they can.

'Cash and Carrie'

The assault on supermarket egg prices was initiated by a San Diego attorney named Cash J. Bonas. Mr. Bonas specializes in antitrust matters; as he puts it, "Price-fixing is what I do."

Shortly after his 1995 graduation from the University of Idaho law school, Mr. Bonas began comparing egg prices with his sister, Carrie O'Husky, an Oceanside schoolteacher. "It really kind of hit us that there was definitely something wrong, economically speaking."

Mr. Bonas persuaded his sister and a college friend, Sheri McCampbell of Hermosa Beach, to serve as the named plaintiffs in the class-action suit against Lucky, Ralphs and Vons. Three other firms signed on as plaintiff's attorneys, including L.A.'s Howarth & Smith, which has participated in high-profile litigation against tobacco companies and an antitrust claim against the National Football League.

The supermarkets have been vigorously fighting the case--and at times, things have gotten personal. Mr. Spooner, the Lucky attorney, not only questioned Ms. McCampbell during her deposition about economic models of egg pricing, but also whether she had ever been "romantically involved" with Mr. Bonas. (The answer: No.)

In an effort to show that the named plaintiffs hadn't suffered sufficient injury, Vons went so far as to note that both "are Vons Club members and use their cards regularly" and that "Carrie O'Husky received a free turkey this past Thanksgiving" thanks to a store promotion.

And in a case egg-ceptionally vulnerable to puns, there have been moments of levity. Pausing during the deposition of Ms. O'Husky, Ralphs attorney Eliot Disner marveled at the first names of Mr. Bonas and his client/sister. "Cash and Carrie. I don't believe it," he said. "Are there any other siblings?" (One: Michael.)

Despite the joking, consumer advocates say the litigation underscores a serious matter. "The major supermarket chains are gouging consumers on the basic necessities of life," charges Harry Snyder, senior advocate at Consumers Union's West Coast regional office in San Francisco, which has released studies showing that supermarket milk prices in Los Angeles and San Francisco are far higher than those of independent grocers.

'Tacit or Explicit'

"They have some sort of agreement, either tacit or explicit, to maintain higher-than-competitive pricing," Mr. Snyder says, because "traditionally it's thought that consumption" won't fall on basic commodities like milk and eggs, even if prices rise.

Trying to prove such an "agreement" exists, however, is bound to be an extremely complex matter.

Mr. Howarth claims that the majors share information by reporting their prices to intermediaries, such as the Chicago based market-data firm Information Resources Inc., which then tell the supermarkets what the others are charging.

But Information Resources denies that. While it does report "average" prices in the region, "we would not tell Ralphs what's going on with Lucky or Vons," says Bob Bregenzer, a senior vice president at Information Resources.

Other claims by the plaintiffs as to how the alleged cartel operates are vague. For instance, the plaintiffs say in court papers that they will "present evidence of close professional and personal relationships among the officers and directors of Vons, Ralphs and Lucky" and of those executives "many opportunities to collude through, for example, their participation in professional organizations." Citing confidentiality orders imposed by the court, plaintiff attorneys wouldn't elaborate.

Some Inconsistencies

What's more, it remains unclear whether there really is price uniformity among the chain supermarkets. It's true that in the Santa Monica area, the majors last weekend where charging $2.09 for a dozen large white eggs, while prices were lower at the local 7-Elevens, the discount gourmet grocery Trader Joe's ($1.19) and the upscale natural foods market Wild Oats ($1.69).

But at the same time, Vons supermarket in Riverside were charging only $1.49--exactly the same price as Vons outlets in Las Vegas, a city that the plaintiffs cite for its low egg prices and assert is not part of the alleged Southern California egg cartel. Meanwhile, at an El Cerrito Lucky--in the Bay Area's Contra Costa County, outside the region covered by the suit--the price was, again, $2.09.

Mr. Bonas insists that despite these pricing anomalies, he will prove his egg conspiracy at trial.

And win or lose, one thing is certain, "I used to like omelets with bacon and onions," Mr. Bonas says, "But now I never want to see another egg again."

Lawyer Suzelle M. Smith Acts as Samurai Warrior

By Margaret Cronin Fisk
(The National Law Journal)

Suzelle M. Smith

Suzelle M. Smith

She recognized the tragedy but proved that Suzuki's product had not caused it.

ATTORNEY: Suzelle M. Smith, 43
FIRM: Los Angeles' Howarth & Smith
CASE: Heath v. Suzuki Motor Corp., CV 295-164 (S.D. Ga.)

Consumers Union ran an article in 1988 contending that its tests of the Suzuki Samurai showed that the Samurai was prone to roll over during simple maneuvers. The article, says Suzuki defense counsel Suzelle M. Smith, caused a massive decline in the Samurai's public reputation; in some quarters, she notes, the vehicle is known as "the Flipmobile.” The Samurai was also the object of a number of products liability actions brought by plaintiffs claiming injuries caused by the Samurai's alleged propensity to roll over.

When defendants are faced with bad publicity, the standard approach is to suppress any mention of it in trials. In products liability trials involving the Samurai, Suzuki followed this approach, trying to keep out any references to the Consumers Union charges, Ms. Smith notes. But the company realized this was an impossibility, she says. "Everyone had heard about it. It had permeated the culture." During trials, she adds, "everybody's experts talked about it."

Consequently, when Ms. Smith was called in to defend a products liability action in Georgia against Suzuki brought by a young paraplegic, "we decided to hit it straight on.” Suzuki decided to confront Consumers Unions as well as the plaintiff. "What I did was to tell the Consumers Union story, that Consumers Union went after the Suzuki Samurai, that the tests were rigged and that Suzuki was suing Consumers Union."

Trial Tips:

  • Confront bad publicity and rumors.
  • Study opposing counsel's earlier courtroom victories.
  • Avoid a highly technical defense in this kind of case.
  • Keep examination short and simple.

It is essential, she believes, to confront such attacks or well-known rumors: "If you don't confront them head on, you may lose the jury to innuendo." At the end of this trial, the Georgia jury found no defects in the Samurai. The verdict was one of the biggest defense wins of 1996.

Ms. Smith was brought in by Suzuki General Counsel George Ball as a national trial counsel for Suzuki after the company was hit with a $90 million verdict in St. Louis in 1995. Rodriguez v. Suzuki Motor Co., 902-0869 I (Cir. Ct., St. Louis). That verdict was ultimately reversed and will be retried. "Mr. Ball was looking for a new approach," Ms. Smith notes, specifically a female attorney to soften the corporate image, but also a high-profile litigator who had experience in representing plaintiffs as well as defendants.

Ms. Smith fit the criteria perfectly. She is a name partner at Los Angeles’ Howarth & Smith, a small but highly regarded litigation boutique that handles both plaintiffs’ and defense work in civil cases. Despite its size, the firm is a primary outside counsel for Georgia-Pacific Corp. As plaintiffs’ counsel, Ms. Smith has won settlements and verdicts against the National Football League; Southern California Edison Co.; the city of Irvine, Calif.; General Electric Co.; and Sears, Roebuck and Co. As defense counsel she has won jury trials and summary dismissals for such companies as Owens-Illinois Inc. and Marriott, as well as Georgia-Pacific. In 1996, she represented one of the contestants to the will of the late heiress Doris Duke and was a primary force in having the original executor removed; her client became one of the trustees of the Duke charitable estate. Ms. Smith often handles cases with her partner, Don Howarth, who won one of 1996's largest plaintiffs' verdicts.

Formidable Adversary

In the Georgia case, the plaintiff, James Heath, had been injured in September 1991 when the 1987 Samurai he was driving went out of control and rolled over after being clipped by a Jeep Wrangler. Mr. Heath was ejected from the vehicle; his passenger, who was also ejected, died of her injuries.

Mr. Heath's attorney was James E. Butler Jr., of Columbus, Ga.'s Butler, Wooten, Overby, Pearson, Fryhofer & Daughtery, who had won the $90 million verdict against the company and has made a long career of persuading jurors to hit automobile companies with massive verdicts.

When Ms. Smith was hired as one of Suzuki's trial counsel, she says, she began to research Mr. Butler “because I knew I would eventually face him. I asked for the transcripts for Rodriguez. I also got the transcripts and the Court TV clips of the Moseley trial to see him in practice." Moseley was a products case against General Motors Corp. in which Mr. Butler won a $150 million verdict. Ms. Smith is a firm believer in getting to know one’s opposing counsel and suggests that attorneys get transcripts of openings and closings of prospective opposing counsel, "to get a feel for them."

She learned that "generally Jim Butler tries to personalize the trials. He attacks the corporate defendant, the opposing counsel and the witnesses personally. To some extent, you might think, the judge will not allow this," she adds. "But Butler is relentless, and there is only so much a judge can do." To counter this assault on the defense's credibility she did not respond loudly or emotionally, she says. "I tried to calmly defend the integrity of Suzuki, myself and the witnesses and let the jury decide which approach rang more true."

Ms. Smith established a defense for Mr. Heath that was aggressive but succinct. Each portion of the trial was much shorter than the defense Suzuki had used in Rodriguez. Her first major challenge came in jury selection. "I began by asking the jurors if they were aware of the Consumers Union test." This could be dangerous, she says. "[It] may reinforce what you don't want to reinforce. But you have to take it on." The judge dismissed any jurors who were readers of Consumer Reports.

Plumbing Possible Prejudice

She also tried to detect any prejudice against foreign corporations and her planned Japanese witnesses. “I had to be careful. I couldn't let them believe that I thought they were prejudiced, but I have to raise the issue and get it out front." To avoid implying that she thought they harbored a prejudice, she was indirect, noting to the jurors that "the Japanese witnesses would be using an interpreter, which would make the examination slower and more cumbersome. I asked if that would be a problem."

She addressed the issue of sympathy, too. “This was a young, local plaintiff in a wheelchair. I asked them if they could really turn him away. There were some people who said they couldn't do it." The jurors who didn't say they would be unable to reject a suffering plaintiff, she says, implicitly promised to be fair to the defendant

In her opening, Ms. Smith developed her countertheme. "This was a tragedy but it was not Suzuki's fault. The two drivers caused this accident. This company had built a good vehicle."

In cases of this type, she avoids putting on a highly technical defense. "You have to keep it very simple and commonsensical. It has to be packaged in a way that the jury can understand,” she adds. Being too technical can play into the hands of the plaintiffs' attorney.

Most accidents involving sports utility vehicles can be directly linked to driver error or the actions of another vehicle, she says. Mr. Butler and other plaintiffs' attorneys, she contends, "try to focus the trial on what they claim is an unstable vehicle to minimize that." To counter this in Heath, she says, "I brought the case down to the basics."

Her cross-examination of the plaintiff's principal design experts, Wade Allen, which lasted a few hours, was very different from his cross in Rodriguez, in which he testified for several days. The longer cross revealed some points for the defense, she says, "but the nuggets were lost in the volume and weight of it."

After the Consumers Union article appeared, Mr. Allen was hired by the National Highway Traffic Safety Administration to do a study on sports utility vehicles, including the Samurai. In Heath and Rodriguez, he testified that the Samurai was unsafe but, Ms. Smith says, "he never told anyone at the National Highway Traffic Safety Administration about his opinion of the Samurai. He didn't say it was a deathtrap until he was testifying for plaintiffs' lawyers." With plaintiffs’ experts, she notes, she is not afraid of being tough. Juries don't really mind attacks on experts, she believes.

During cross-examination, she says, "I'm not hostile, but I am firm. I do not shout or scream or call anybody names. I won't beat it to death, but I'II ask it four or five times so the jury knows the witness is being evasive. I will deliberately hold onto the point until I think the jury has got it. Then I move on. I’m very polite and respectful, but I've had jurors tell me I was mean. I won't back off if the witness is sweating and uncomfortable."

While Mr. Allen was on the stand, Ms. Smith continually confronted him about his lack of written or other formal reports to anyone at NHTSA concerning his opinion of the Samurai. During his testimony, she would also read to him portions of a NHTSA report denying petitions to recall the Samurni, using Mr. Allen to inform the jury about it and getting him seemingly to affirm the NHTSA conclusions.

Her own case in chief was very brief. She started with race car driver Cale Yarborough, who had also testified in Rodriguez. In that case, he had been brought on after several technical witnesses, thus losing much of his impact. "I put him up so he could talk in layperson's terms," Ms. Smith says.

Mr. Yarborough had tested the Samurai offroad and through maneuvers. "He testified that the vehicle is stable and handles better than any sports utility vehicle on the road," she says. "His testimony went very, very well." Particularly effective was his testimony that he felt the Samurai saved his life one night when he encountered a concrete block in the road; the Samurai kept him from hitting the block or going into a ditch.

She presented only three more witnesses – a Suzuki executive who had designed the Samurai, an engineer and a police officer.

"There were others planned, but I cut the case way back,” she says.

The jury was out for three hours. It returned a finding of no liability June 11, 1996. The plaintiff's post-trial motions to set aside the verdict were denied two months later. An appeal is pending.

Tobacco Pact Sets Record, Raises Issues

By Daniel Shaw, Don J. DeBenedictis, and Marty Graham
(Los Angeles Daily Journal)

After Friday's landmark $360 billion settlement between tobacco companies and anti-smoking forces, several questions remain. The most pressing for lawyers, however, may be whether the pact is constitutional.

Under the agreement - which must be approved by Congress and the president - smokers would see dire new warnings on cigarette packs, get free medical help to kick the habit and be inundated with nationwide anti-smoking advertising.

In return, tobacco companies and investors would get relief from the uncertainty posed by hundreds of pending lawsuits. The deal is to settle 40 state lawsuits that seek to recover Medicaid money spent treating sick smokers and 17 class actions against the industry. Individual smokers' lawsuits that are already pending in court are not expected to be affected, unless those people choose to join the settlement

Of concern to lawyers, the pact would take away the ability of individual smokers to sue for punitive damages for any past misconduct by tobacco companies. Instead, as punishment for all past wrongdoing, the tobacco industry would pay $50 billion into a fund. In addition all class-action lawsuits against the industry would be banned.

Several legal scholars said the settlement terms could raise constitutional issues, depending on what is in the fine print and what if any, changes Congress, makes to the agreement. The major potential issue, said one constitutional expert, is whether the settlement will limit due process.

Erwin Chemerinsky, constitutional law professor at the University of Southern California, said, "Until we see exactly how due process is limited, it's hard to evaluate the due process question."

Los Angeles attorney Suzelle Smith, a partner with Howarth & Smith, which represents a group of plaintiffs – as well as the widow of a man who portrayed the Marlboro man in ads and died of lung cancer – in a suit against the cigarette makers, said she was particularly pleased that the tobacco companies agreed to pay $60 billion in punitive damages.

"We negotiated long and hard to get the best deal for the public and the punitive damages were a breaking point for a long time," she said. "Much of that money will be used to fight the terrible problem of teen smoking and to educate people to the dangers of smoking."

Smith is among the attorneys involved in the class-action group that arose out a class action filed in New Orleans in 1994. Smith credited the New Orleans suit, known as the Castano Plaintiff Group after the lead plaintiff, Diane Castano, as the single largest force in driving the tobacco companies to the negotiation table.

"It's fair to say that without Castano, the discovery we've done and the momentum we've created, none of this would have occurred," she said. "If it hadn't been for the plaintiffs' lawyers getting out there and suing, the end of smoking addiction would not be in sight"

One unsettled question as of Friday afternoon is which attorneys will be paid – and how. Lawyers' fees and cost are not included in the settlement and will be negotiated after the settlement is approved, said Smith.

"It would be a tragedy if the lawyers who initiated this suit and got the public aboard, and brought the tobacco companies to the table, got sold down the river," she said.

The agreement allows for the industry to pay out $360 billion over 25 years, most of it for anti-smoking campaigns and public health efforts. Of that sum, the agreement would allocate $4 billion a year in compensatory damages into a fund that would pay any smoker who won a suit

The settlement is also significant because it is thought to be the largest verdict or settlement ever reached. The amount dwarfs such well-known previous settlements for asbestos, silicone breast implants ($4.23 billion from 60 manufacturers payable over 30 years), the Dalkon Shield, and the Bhopal, India, chemical spill ($470 million). It is also larger than such record verdicts as the $22 billion against the estate of Philippine President Ferdinand Marcos, the $10.5 billion awarded to Pennzoil against Texaco, and the $5 billion won by Alaskans for the Exxon Valdez oil spill.

The Dollar Total For 1996's Top Verdict Awards Continues On A Downward Trend

By Alex Chun
(Los Angeles Daily Journal)

Continuing its downward trend, the dollar total for California Law Business' annual list of the state's top 10 verdicts dipped to $284.6 million in 1996-a 5.5 percent decrease from the 1995 total.

And while the case heading the 1996 list Forti v. General Dynamics Corp., tops last year's big winner, American Samoa Government v. Affiliated FM Insurance, by $18 million, five of this year's verdicts would not have made last year's list.

"These figures seem to be consistent with what we're seeing in cases overall, not just in the top 10," said Deborah A. David, president of the Consumer Attorneys of Los Angeles. "Filings are down and punitive damage awards are just as rare as they have always been." In fact, according to the Judicial Council of California, the number of annual Superior Court filings in California has dropped from 1.26 million to 1.19 million over the last two years. "The bottom line as I look at these figures is that the notion of a tort crisis or a personal injury crisis is a figment of someone's imagination," David added.

Echoing David's sentiments is Marie Reubi, a managing editor for Jury Verdict Research. She noted that the average award for personal injury cases in California was 1 percent below the national norm last year, whereas in 1991, California was 6 percent above the national norm. In contrast to the rest of the state, however, "Los Angeles tends to be about 10 percent above the national norm," she said.

All 10 of the cases on this year's top-10 list originated in Southern California, and six of the 10 were tried in Los Angeles Superior Court. This year's list is also marked by two cases-including the case that topped the list-that arose in an employment arena, an area that was neglected in 1994 and 1995. As a result of a breach of fiduciary duty between an employer and employee, plaintiff's attorney Don Howarth won an eye-popping $107 million jury verdict in Forti v. General Dynamics, Los Angeles Superior Court, No. KC 016871. "There are so many opportunities for abuse in the workplace," said Howarth, a name partner with Los Angeles' Howarth & Smith. "Employees are beginning to understand that they do have a recourse when they've been wronged."

Life is Good: $107.4 M Verdict

By Anthony Aarons
(Los Angeles Daily Journal)

A California Attorney reached major-player status when he backed General Dynamics into a corner.

Twelve years ago Don Howarth left Gibson, Dunn & Crutcher with the hopes of leaving corporate defense work behind.

Today his own firm, Los Angeles' Howarth & Smith, still handles a fair amount of corporate defense work. Though his partner Suzelle Smith is currently defending Suzuki in a products liability case, the 20 lawyer firm has developed an eclectic list of clients including: the wife of the original Marlboro man in her suit against Phillip Morris and the estate of tobacco heiress Doris Duke. The firm also weighs in on a number of consumer-oriented class-action suits.

"These are the kinds of cases where you can feel like you are making a difference, where you are helping people," says Howarth, who handled his first plaintiff's case - a personal injury suit in which a boy fell off a ladder and became a paraplegic - the first year in his new firm.

Last summer, however, Howarth won a verdict that places him among the biggest names in California laintiffs lawyers when a Norwalk jury awarded two of his clients William Forti and Dolores Blanton, $107.4 million in a breach of contract suit against their former employer Falls Church, Va. --based General Dynamics. The suit was the largest verdict in California state courts in 1996, although it was reduced to $37.4 million by the trial judge. Although it was not a tragic personal injury suit or a tear-jerking insurance bad faith case, it was the kind of loyal employee vs. greedy corporate monster suit that wins over Jurors as well as headlines.

Don Howarth topped the list of lawyers securing the 10 biggest verdicts in California last year, netting their clients $285 million.

In 1990, Forti and Blanton, longtime General Dynamics' employees, were asked to leave their jobs at the company to start a new subsidiary for the company. The new company, to be called E-Metrics, was to develop a technology that would enable computers to recognize faces and that could be used as a security tool to identify criminals in a crowd. "It has many applications in airport security and other police work." Howarth says.

In exchange for starting the new company, Forti, Blanton and four other engineers, were promised equal shares of a 20 percent equity stake in the company. The plaintiffs did not receive a written contract, although Howarth says they received numerous verbal assurances of the agreement by General Dynamics Vice President Sterling Starr. In addition, they were told that it was too early to issue formal stock shares for the company.

Two years later E-Metrics was sold to Hughes as part of a $500 million package. When Forti and Blanton approached General Dynamics for their share of the proceeds from the sale of E-Metrics, they were told there was no such agreement.

General Dynamics essentially argued that when E-Metrics was sold to Hughes, the company had developed no products and recorded no sales.

Howarth contended that in addition to breach of contract, General Dynamics was guilty of fraud because it never intended to pay the "founders" of E-Metrics.

"In the sale to Hughes they never broke down the value of E-Metrics. I argued they did it on purpose to avoid paying any claims on the company," Howarth says.

Howarth says he was always comfortable with his clients' case. If Howarth was confident, General Dynamics was playing hardball on the eve of trial.

Howarth made a settlement demand of $1 million for each of the plaintiffs, while General Dynamics stood by an earlier offer of $100,000 each for Forti and Blanton. "That offer never changed during trial, even when I knew the jury was going with us," Howarth says.

The key moment of the trial came when General Dynamics' defense attorneys called Forti and Blanton's old boss, Starr, to the stand. Starr was under no legal duty to appear at the trial, he had retired and moved out of state, but the defense brought him to California as a major witness to rebut the plaintiffs' claims of an oral contract.

On cross, Starr's story fell apart as he contradicted his earlier deposition testimony. "He admitted he had adjusted his testimony to help the company," Howarth says. Howarth says that Starr's testimony could not be discounted in the jury's decision after only two days of deliberations - to award the plaintiffs combined compensatory damages of $7.4 million, their share of the value of 20 percent of E-Metrics. But, he says, Starr's testimony was even more important in the punitive damages phase of the trial. At this point, Howarth says, defense attorneys changed their strategy and accused Starr of wrongdoing.

"It was an incredible closing argument to cut the umbilical cord and blame it all on him. They didn't care who the jury blamed as long as it wasn't [General Dynamics]," Howarth says. Howarth's closing in the punitive damages phase of the trial took only 15 minutes, first to point out the hypocrisy of blaming Starr and then to explain the economic shortcomings of the $7.4 million compensatory award.

"All they had given them was what they were owed. At that point not paying [the plaintiffs] was a good business decision for General Dynamics. They had to punish them for refusing to honor the contract and trying to hide the value of the company," Howarth says.

The jury only took a few hours to return a punitive damages award of $100 million.

A 15-minute close might seem short, but Howarth purposely tried to keep everything brief during the three-week trial.

"We had enough material to make it last two months, but that just would have confused the jury," says Howarth who has three degrees from Harvard University, including his J.D., a B.A. and a masters in public policy. Although General Dynamics' defense attorneys did not return calls for comment, a press release issued after the trial asserted that E-Metrics had no value.

"In fact, General Dynamics told E-Metrics employees, in writing, that the E-Metrics board would decide upon equity interest once outside investors were obtained. When E-Metrics failed to attract outside investors, General Dynamics discontinued the business," the July press release stated. "General Dynamics can hardly be expected to have shared with employees the fruits of a business that never made a dime."

Judge Chris Conway reduced the punitive damages award to $30 million. While it might seem the judge reduced the punitive damages because of the excessive ratio to the compensatory damages, Howarth says that was not the case. In the first place, he says, the $100 million punitive is fair when compared to the value of both General Dynamics and E-Metrics. More importantly, in the judge's opinion, the punitives were cut to allow some damages to remain in the event the four engineers-the other "founders" along with Forti and Blanton-file suit against General Dynamics.

"It was a very reasoned opinion," Howarth says. Howarth now represents the engineers and is considering what action, if any, is still available for them. General Dynamics is appealing the verdict on numerous grounds, including the statute of frauds and the statute of limitations. The statute of frauds dictates when an oral contract is valid-and Howarth admits this could be the defense's strongest argument, but the trial judge ruled against two motions on that claim during trial. Although Howarth says that settlement negotiations have not been promising, General Dynamics General Counsel, says that a settlement could be near.

"We've had substantial discussions" to try and settle the case, said Ned Bruntrager, general counsel of General Dynamics: "The true nature of those discussions is confidential, but the fact is they were being held at the direction of the Court of Appeals. We've not inked a final agreement. It's technically correct that there is no final agreement." But, he added, "I would be surprised if that case is not settled shortly."

As the lead attorney in the biggest verdict of 1996, Don Howarth of Howarth & Smith took on and beat General Dynamics. A jury's $107 million award in the breach of contract lawsuit tops our annual list of the 10 largest verdicts, which netted their clients a total of $285 million. Today's issue of California Law Business also examines the downward trend in dollar totals.


In Serving the Famous, Is a Ringside Seat Enough?

In Serving the Famous, Is a Ringside Seat Enough?

There is nothing like a will to give billionaire watchers something to gab about. And one morsel in Harry B. Helmsley's estate should keep them buzzing for quite a while.

The New York real-estate mogul, who by most accounts was golden-hearted compared with his wife, Leona, left Ceil Fried, his longtime secretary, $25,000, a minuscule part of his $1.7 billion estate. That is all that decades of dictation, menial tasks and juggling one of the world's busiest social schedules was worth to Helmsley.

The Big Numbers of 1996

The National Law Journal
Vol. 19, No. 24 (February 10, 1997)

PLAINTIFFS' ATTORNEYS: Don Howarth and Brian D. Bubb, of Los Angeles' Howarth & Smith

CASE: Forti v. General Dynamics Corp., KC 016 871 (Super Ct., Los Angeles)

DEFENSE ATTORNEYS: Linda L. Listrom and Gregory S. Gallopoulos. of Chicago's Jenner & Block; Michael W. Mugg, of San Bernardino, Calif.'s Mac Lachlan, Burford& Arias

JURY VERDICT: $107.4 million, reduced to $37.45 million

In 1990, William B. Forti was working in business development and Delores Blanton was working as an administrator at General Dynamics Corp., when their employer asked them to leave their positions to help develop a new subsidiary called E-Metrics," said plaintiffs' attorney Don Howarth. E-Metrics would attempt to develop commercial products based on General Dynamics' patents in neural network technology.

"As founders, Mr. Forti and Ms. Blanton were to receive an equity share in the subsidiary, Mr. Howarth said. Five other General Dynamics employees were offered the same deal," he added.

In 1992, General Dynamics sold E-Metrics, along with other divisions of its Air Research Defense Systems, to Hughes Aircraft Corp. for about $500 million, Mr. Howarth said. The E-Metrics employees received nothing from the sale, so Mr. Forti and Ms. Blanton sued General Dynamics, charging breach of oral contract, breach of fiduciary duty and fraud. The other employees did not sue, Mr. Howarth said.

Company executives denied at trial that any promises of ownership had been given. General Dynamics also denied that E-Metrics was worth anything. "E-Metrics was never able to find customers or outside investors for its technology," the company said in a public statement.

But on July 26, 1996, a Los Angeles jury awarded each plaintiff $3.7 million in compensatory damages and $50 million in punitive, for a total of $107.4 million.

In October, Superior Court Judge Chris R. Conway sliced the punitive from $100 million to $30 million, then added $50,000 to the judgment for costs. The case is on appeal.

Money Doris Duke Meant for Charity Is Making a Lot of Other People Rich

This was Doris Duke's predicament. She was worth $1.2 billion, but had no relatives or friends she particularly cared to enrich so massively when she died. Instead, she decided with immodesty befitting one of the world's richest women that her estate would go toward "the improvement of humanity," as her will said. Her money would allow dancers to dance, artists to paint, doctors to cure diseases, animals to escape the cruelty of people.

It was a wonderful vision. But it overlooked what turned out to be the first effect of Miss Duke's largess: It allowed lawyers to eat.

The 30-month fight over Miss Duke's estate was as full of mystery and intrigue as was the life of the reclusive, mistrustful tobacco heiress who died in October 1993 at 80. There was her alcoholic, barely literate butler who was named in her will as the executor of the estate, and one of her many former doctors who believed he deserved the job -- and the fees. The situation was resolved last year when a surrogate judge in Manhattan approved the creation of the Doris Duke Charitable Foundation, one of the nation's best-endowed charitable funds.

The dispute played out in Surrogate's Court was, in the words of one lawyer, "the World Series of litigation," with big-name law firms playing for big stakes. Now the contest over Miss Duke's estate has gone into extra innings. The prizes this time are legal and estate administration fees that already amount to $10 million and probably will more than double when all of the requests are filed with the court.

Lawyers flew across the country charging their hourly rate as they went, sometimes as high as $450 an hour. They stayed in New York City's finest hotels. And In court appearances and meetings, clients often were represented by multiple lawyers, causing a gridlock of expensive suits and large briefcases.

Consider the lawyers' bonanza of January 1996. When the State Court of Appeals issued a decision in the case, 14 lawyers from two firms spent a total of more than 40 hours reviewing it, and all submitted bills for their work, according to court papers.

The case involved dozens of lawyers in some of the nation's most prominent firms. One of the more noteworthy lawyers, Alexander D. Forger, the president of the Legal Services Corporation, has applied for $450,000 in fees. He was appointed a temporary administrator of the estate, but the appointment was stayed nine days later, according to legal papers filed by the New York State Attorney General, Dennis C. Vacco.

Mr. Forger, who did not return telephone calls, said in court papers that his responsibilities lasted for months, not days, and that "in any event, I have not been motivated by notions of compensation."

Since the fees will be paid out of the charitable money, the requests for payment are facing stiff opposition from two other sets of lawyers -- the State Attorney General, who represents beneficiaries of the charity, and lawyers representing the trustees of the charitable fund.

"This is a feeding frenzy," said a lawyer associated with the case, speaking on condition of anonymity.

On the record, the critism is only slightly more restrained.

"If one needs cause to question the legal profession, these excessive claims provide ample issue," Laura Werner, an assistant New York State Attorney General wrote in a Dec. 11 court filing.

But the lawyers seeking the fees insist they are justified.

"This litigation undoubtedly was one of the most complicated probate matters in the history of the state of New York," said Rodney N. Houghton, one of the many lawyers representing Miss Duke's former doctor. "Its complexity was matched only by the intensity of the litigation, requiring us to work on many occasions on an around-the-clock basis to meet competing deadlines."

Even so, there were instances where it appears lawyers were stacked up like planes over La Guardia. When the charitable foundation questioned why lawyers from three different firms had to appear at court hearings on behalf of Miss Duke's former doctor, one of the lawyers answered in court papers that it was important for them to discuss matters in person after the court session and "to observe the reaction of the Court and co-counsel to various factual and legal issues."

Lawyers for the charitable foundation, who are trying to protect the estate's assets, were incredulous.

"It would plainly be wrong to require the Estate to foot the bill for multiple attorneys to 'observe the reaction of the Court,'" the foundation lawyers wrote in an Oct. 21 filing. "Presumably, one representative of the three firms could have attended proceedings to observe reactions and passed his or her observations on to other attorneys as necessary."

When several law firm partners charged the estate for attending depositionse, the charitable foundation lawyers wrote to the court that "the Estate should not be compelled to pay $465/hr. for one partner to watch other partners work."

In many respects, Miss Duke's will was straightforward, especially given the size of her fortune.

Miss Duke was twice married and twice divorced, and her closest relative when she died was a daughter, Charlene Gail Heffner, known as Chandi, whom Miss Duke adopted in 1988 when Ms. Heffner was 35. Their relationship fell apart a few years later and Ms. Heffner sued, seeking to become the beneficiary of Miss Duke's estate. The estate settled with her for $65 million last year.

In her final years, Miss Duke was unwavering in her decision to give her fortune to charity, but her estate became complicated because she repeatedly re-wrote her will, changing the executor of the estate -- a designation that would carry millions of dollars in fees. The rewriting of her will, those who knew her said, reflected her isolation from friends and relatives and her suspicion that those who were close to her were merely trying to get her money.

"We're here because of Miss Duke's personalities and eccentricities," said Don Howarth, a Los Angeles lawyer, explaining why the disposition of the estate had turned contentious. "This is a reflection of Miss Duke's vulnerability at not having close friends."

In the final years of her life, she signed a succession of wills, transferring control of her estate from her daughter to her diet doctor, Harry Demopoulos, then to her accountant, then to Bernard Lafferty, the butler whom many of Miss Duke's associates accused of isolating the heiress. (Mr. Lafferty died in November.)

The course of the estate through the court was complicated by two factors.

First, Dr. Demopoulos, and others, contended that Miss Duke, weak and disoriented, was coerced to sign her final will and suggested that her death may have been hastened to keep her from changing the will. An investigation ordered by the court found that Miss Duke's death was hastened by doses of morphine.

Dr. Demopoulos hired three law firms to press his case, and although no conspiracy to induce Miss Duke to change her will or to murder her were ever found, the lawyers say their request for more than $4 million in fees is justified. They say their work benefited the charitable fund by insuring that Mr. Lafferty would not be in control of the estate.

The other complicating factor was a May 1995 decision by Surrogate Eve Preminger to remove Mr. Lafferty and the United States Trust Company as co-executors of the estate. She said Mr. Lafferty used Miss Duke's fortune to finance his own "profligate life style" and she criticized the bank for giving him an unsecured $825,000 loan.

Surrogate Preminger installed as temporary administrators the Morgan Guaranty Trust Company and Mr. Forger. In addition to his job with the Legal Services Corporation, Mr. Forger is a veteran estates lawyer in New York and was a co-chairman of a lawyers' committee that ran advertisements backing Surrogate Preminger in the 1990 race for her court seat.

Although Surrogate Preminger's decision was stayed nine days later and ultimately reversed by the Court of Appeals, which criticized her for not giving the administrators a hearing before removing them, lawyers for Mr. Forger and Morgan Trust argue in court papers that their responsibilities lasted longer than nine days. The bills for their legal and administrative work, including fighting to defend their appointments, comes to more than $5.3 million.

While Mr. Forger's bill is relatively small, the tussle over it is particularly nasty.

In a December court filing, lawyers for Attorney General Vacco said it was worth considering "how it looks to the public when the president of the L.S.C. seeks $450,000 for 'outside work' while claiming to be working full-time to protect a federally funded program designed to assist the poor."

In a series of responses, Mr. Forger said that the Attorney General's statements were "flawed beyond carelessness," and that his contract allows him to do outside work. He also said that if the court agrees his reponsibility lasted just nine days, his fees should be substantially reduced.

"Whatever the compensation, however limited or modest, I shall not feel aggrieved," Mr. Forger wrote. "This mission was a worthy one and one -- in the long and unfortunate saga, not yet completed -- which I was privileged to undertake."

Why Philip Morris Hates Trial Lawyers

By John Stauber and Sheldon Rampton
(PR Watch)

On September 19, 1996, the widow of the original Marlboro Man filed a lawsuit in Texas charging that her husband died from using the product that made him a household word.

David McLean was hired in the early 1960s to portray the "Marlboro Man" in television and print ads. He was obligated to smoke Marlboros as he posed for television and print ads, smoking up to five packs per take in order to get the right look. Afterwards, Philip Morris continued to send him gift boxes of cigarettes.

In 1985, McLean developed emphysema, followed by lung cancer in 1993. Following unsuccessful attempts at chemotherapy and other treatments, he died on October 12, 1995. McLean's death actually made him the second Marlboro Man to die of lung cancer. Another actor, Wayne McLaren, died in 1992 at the age of 51.

"Even the 'Marlboro Man' was not immune from the effects of cigarette smoking," said Don Howarth of the Howarth & Smith law firm, which is representing McLean's widow in the lawsuit against Philip Morris. "Mr. McLean's widow and son hope by this action to strike a blow for the countless others whose lives have been ravaged through the tobacco industry's aggressive campaign of fraud and deceit."

Many people have sued the tobacco industry before, of course, and to date they have not collected a dollar in damages. During the second quarter of 1996, in fact, company profits were up 18% over the same quarter in 1995, making the first half of the year a "blockbuster" according to PM CEO Geoffrey Bible.

In order to maintain its profitability in a hostile environment, Philip Morris spends staggering sums on lobbying and public relations. According to an internal State Affairs Company (SAC) report from 1995, PM "contributed $50 million to tax-exempt organizations through the nation during 1992 and is the largest contributor to the arts.... PM also sponsored the 54th annual Convention of the National Newspapers Publishers Association" and "helps fund The American Civil Liberties Union--they gave $100,000 in 1991 and 1992."

Among groups that reported political lobbying in the first half of 1996, Philip Morris led the pack at $11.3 million, almost six times the amount reported by its arch-nemesis, the Association of Trial Lawyers of America. Consumers organizations and membership-funded citizen groups spent almost nothing by comparison. With the exception of the Christian Coalition, which spent $5.9 million, virtually every big-spending lobbyist represented a corporation or wealthy financial interest--the AMA, the U.S. Chamber of Commerce, General Motors, General Electric, the Chemical Manufacturers' Association and AT&T. By comparison, the nation's largest membership organization, the American Association of Retired Persons, spent only $3 million.

The "California Thing"

"An interesting insight into Philip Morris's efforts comes from Victor Crawford, a former . . . lobbyist for the Tobacco Institute," observes an internal report by the State Affairs Company.

Crawford became an outspoken enemy of the tobacco lobby after developing lung cancer which led to his death earlier this year. The SAC report quotes him as saying, "If you ever want to see a bunch of cowboys work, watch Philip Morris. They are tough. I mean they shoot from the hip. It was Philip Morris who did the California thing [Proposition 188] after they were advised not to. That California thing was dumb, because they had their name attached to it. They should have never done that ... and they're getting bolder. It's a take-no-prisoners fight. You're talking about $100 billion a year in gross profits ... And man, anything goes. And anything will go."

The "California thing" was PM's outrageous attempt, organized through two PR firms, the Dolphin Group and Burson-Marsteller, to sucker California voters into passing a pro-tobacco initiative disguised as a smoking restrictions law. "Specifically, Proposition 188 would have overturned about 300 local smoking ordinances," observed the SAC report. "Besides spending about $15 million dollars in lobbying and expenditures in a failed effort to pass 188, PM "was responsible for the $968,710 in independent expenditures contributed by the National Smokers Alliance."

The National Smokers Alliance is PM's version of "grassroots lobbying"--the rapidly growing practice of using advertising, fax machines, mail and telephone banks to create phony "grassroots" front groups in order to stir up public support for its corporate objectives.

SAC operates much of the National Smokers Alliance account, which PM founded with an initial contribution of $7 million dollars to Burson-Marsteller. NAS's current budget exceeds $10 million annually, primarily from Philip Morris.

In July, SAC led a PM-funded effort by the National Smokers Alliance in Virginia attacking the Motorola corporation's smoking policy, which they depicted as "the most mean-spirited and punitive ... of any we have yet encountered in this country." Thomas Humber, a Burson-Marsteller executive who is the nominal head of the National Smokers Alliance, wrote to SAC's David McCloud: "Enclosed is a check for $5,000 for the Motorola effort.... You are great Americans, and you understand raising hell and having fun."

Pair Awarded $107M Over Business Deal Company Defrauded Ex-Employees Out of Share in Start-Up Sold to Rival Concern

By Rebecca Lisa
(Los Angeles Daily Journal)

Offering more of a kick in the ribs than a slap on the wrist, a jury in Norwalk Friday directed General Dynamics Corp. to pay two former employees $107.4 million in damages for not honoring a lucrative business agreement. After deliberating for 21/2 days, the jury found by "clear and convincing evidence" that General Dynamics had committed fraud and should pay William B. Forti and Dolores Blanton – former employees of the company – $3.7 million each in compensatory damages.

"This was a very deliberate, rational verdict," said plaintiffs' attorney Don Howarth, of the Los Angeles firm Howarth & Smith. "This was a business deal and General Dynamics made this money ... They did not have a right to defraud my clients of that."

The plaintiffs were also represented by Brian Bubb, a partner with Howarth & Smith.

The Los Angeles Superior Court cases, filed in June and July 1994, arose out of the development of a subsidiary company of General Dynamics called E-Metrics. After working 15 years for General Dynamics, Forti and Blanton agreed to leave their positions and help build the new Pomona-based computer technology company. In exchange, General Dynamics, in an oral contract, agreed to give the two equity ownership in the company, the complaint alleged.

Howarth described E-Metrics as having developed "absolutely astounding technology" that was going to "change the world" had it been give commercial application. The computer they developed at E-Metrics could "think like the human brain," according to Howarth, who said it is now being used in the defense industry. "It was so good, it had to sleep for a while after you fed it information," he said.

Following two weeks of testimony, the jury found that General Dynamics not only breached the oral contract but defrauded the plaintiffs because it had never intended to honor the agreement, according to Howarth. "It was like the carrot in front of the mule," Howarth said. "They held [the equity agreement] out in front of them when they never intended to give it to them."

Jury Awards $107 Million to 2 Ex-Aerospace Employees

By Chris Kraul
(Los Angeles Times)

Two victims of Southern California's aerospace industry collapse received some sweet solace Friday when a Los Angeles County Superior Court jury awarded them $107.4 million in damages after finding that their former employer, General Dynamics, was liable for fraud and breach of oral contract.

William Forti and Dolores Blanton, two longtime employees at the company's missile plant in Pomona, were awarded $3.7 million each in compensatory damages and $50 million each in punitive damages in the case, which was tried in the court's Norwalk Division. General Dynamics, which sold the Pomona plant to Hughes Aircraft in 1992, is expected to appeal the verdict.

According to their lawsuit, filed in 1992, Forti and Blanton agreed in 1990 to start a new company for General Dynamics called E-Metrics in which they and five other General Dynamics employees were to receive an equity interest. General Dynamics would retain 80% control. The venture was to have pursued novel computer technology.

But in 1992, General Dynamics sold E-Metrics along with the rest of its Pomona-based missile business to Hughes Aircraft for $500 million and did not compensate Forti and Blanton for their equity in the spinoff, the suit says. Both were also laid off as a result of the closure of the Pomona division. They were among about 125,000 Southland aerospace workers who lost their jobs in the defense industry shakeout.

Former General Dynamics Vice President Sterling Starr, who headed the Pomona division, testified that no ownership promise was made to Forti and Blanton, according to lead plaintiff attorney Don Howarth. But the jury believed the testimony of five witnesses, including the plaintiffs, that oral promises were made.

After three days of deliberations, the jury in Superior Court Judge Chris Conway's courtroom handed down the compensatory damages award. The panel then went back in deliberations and two hours later emerged with the punitive damage award.

General Dynamics attorneys Michael Mugg of San Bernardino and Linda Listrom of Chicago did not return telephone calls.

Blanton worked 15 years as an administrative assistant at General Dynamics.

Forti was a business development executive; after being laid off by the aerospace employer, he became a successful inventor. He and his son Mark sell a one-ounce Frisbee-like plastic ring called an X-zylo that can be thrown the length of two football fields.

Brian Bubb, part of the victorious legal team, said the toy has been a "tremendous success" and that Wal-Mart recently agreed to sell the product in its stores.

"He may be financially set, but I'm sure he takes great pride in the work he and his son are doing in developing their own business," Bubb said.

Teams Help with Expertise, Backup

(The National Law Journal)

Data explosion and complexity of cases require greater division of labor.

Joe Yanny was aghast.

The veteran entertainment lawyer, whose clients include Paula Abdul and Grateful Dead Productions, was reacting to the suggestion that he comes across in the courtroom as a bit of a Lone Ranger – a solitary crusader in the mold of Clarence Darrow, Louis Nizer or these days, Gerry Spence.

"Who, me?" asks Mr. Yanny of Los Angeles Fischback, Perlstein Lieberman & Yanny. "To the contrary, I find that more and more I’m spinning courtroom work off to my colleagues."

While a lawyer might have to share the courtroom glory getting a little help on a case is proving a pretty good strategic move in the 1990s. The ideal of the lone legal eagle is out. Teamwork is in.

The rise of this "committee" effort may reflect the zeitgeist of a nation feeling communal as the century draws to a close. Or it may have been influenced by the recent impressive victories of high-profile tams, such as OJ Simpson’s defenders. But lawyers of all stripes have more practical reasons for coming to believe two, three or a dozen heads are better than one.

The length of time it takes to try a case nowadays is also a factor.

"When I started practicing law, important cases ran a week or so," says Don Howarth, of Los Angeles’ Howarth & Smith, who lectures for the California State Bar on trial strategy for plaintiffs. "The trial my partner and I just completed went three months and had a total of 22 witnesses. No one can be up, everyday, for three months."

Sharing the limelight

Not that Mr. Black has so embraced the team concept that all this talent makes an appearance at trial. He routinely gives the opening and closing as well as the key examinations – "unless I think someone is uniquely qualified to do it better. Say, if it’s a cross on DNA, I’ll gladly defer to Barry Scheck, "he says in a laughing reference to the professor in the law clinic of New York’s Benjamin N. Cardozo School of Law, Yeshiva University, who became a household name for his work on the Simpson defense.

Similarly, Mr. Winterman says he bows out of his customary starring role in favor of a "guest attorney" who combines specialized knowledge with advocacy skills – as when he used someone who was up on the psychological literature to help defend a medical malpractice case with a brain-damaged child.

There is a risk, however, to these cameo appearances Mr. Howarth cautions that a long case develops its own conventions and in-jokes that may befuddle a jury. "You bring in a stranger, however knowledgeable," he says, "and when he’s through and goes away, the jury is apt to be left thinking, ‘What was that all about?’"

Instead, the Harvard-trained litigator assumes he and Ms. Smith are interchangeable on subject matter. They divide up the trial work based on their physical differences. When examining a dying client on the stand about what terminal cancer had done to his quality of life, the petite Ms. Smith "had finesse and gentleness, almost like a hostess," he recalls. "If I’d done it, given the taboos we have in our society about death and dying, I would have come across as brusque and stilted or both."

Judge to Approve Settlement in $1.2-Billion Duke Estate Battle

By John J. Goldman and Paul Lieberman
(Los Angeles Times, New York)

Courts: In end to 2 1/2-year fight, tobacco heiress' butler agrees to play no role in new foundation, which will be one of nation's largest.

A Surrogate's Court judge in Manhattan said Tuesday that she will approve a plan to finally send Doris Duke's $1.2-billion estate to charity--and end one of the biggest will fights of the century.

Culminating a week of behind-the-scenes negotiations, Judge Eve M. Preminger told lawyers in the case that she will consent to a revised settlement to conclude a 2 1/2-year battle fought by some of the nation's largest banks, law firms, armies of private detectives and the tobacco heiress' ponytailed former butler, Bernard Lafferty.

Lafferty, who was named executor of Duke's estate under her contested 1993 will, agreed to resign that position and play no role in the Doris Duke Charitable Foundation in return for a $4.5-million executor's fee and the $500,000 yearly bequest provided for him by the heiress.

"It's been rough. It's been the roughest time of my life. I never thought I'd see the end," said Lafferty, who faced a barrage of allegations from former Duke servants and others challenging the will--accusing him of everything from being an alcoholic spendthrift to murdering the 80-year-old Duke with overdoses of drugs.

"The reason why I step aside is because it will let the money go to the charities that Miss Duke wanted, [instead of] lawyers and all these people wanting to get big fees by keeping this case going," Lafferty said.

Just last week, the judge refused to approve an earlier settlement reached by the major parties in the case, complaining that it allowed "obscene" yearly fees of up to $300,000 to be paid to the trustees of the Duke foundation--and that it did not preclude Lafferty from a future role in the charity.

Under the deal Tuesday, the foundation board will be enlarged from six to seven members--to add a "nationally recognized" medical expert--and the yearly fees cut so that trustees get no more than $128,000. In addition, the judge will review future appointments to the board of what will be one of the nation's most powerful charities.

After indicating that the changes satisfied her concerns, the judge set a hearing for this afternoon to officially ratify the settlement.

One seat on the board will go to the New York physician who led the will challenge, Dr. Harry B. Demopoulos, a "longevity" and vitamin specialist who treated Duke for years and once was in line to be her executor, but was written out of her final will.

"I do believe it's a victory," said one of Demopoulos' attorneys, Don Howarth. "Our goals were to get Lafferty out [and] Harry in."

The settlement, however, leaves in place three trustees originally proposed by Lafferty: Nannerl O. Keohane, the president of Duke University, which is named for the heiress' father; J. Carter Brown, former chairman of the National Gallery of Art in Washington; and Marion Oates Charles, a society friend of Duke's.

The other seats will be taken by John J. Mack, president of the Morgan Stanley investment banking firm, and New York lawyer James Gill, who led Gov. George Pataki's effort to dismantle the Long Island Power Co.

Those members will name the final trustee requested by the judge, the medical expert, and appoint an executive director to oversee day-to-day operation of the foundation, which Duke created to benefit such causes as Islamic art, historic preservation, AIDS research and animal rights.

Although Lafferty in the past expressed frustration that the tangled case was costing the estate millions in legal fees and delaying formation of the foundation, he praised the judge Tuesday for helping limit future fees to Demopoulos and others who will direct the charity.

While admitting it was "painful" to play no role in the board himself, Lafferty said he was pleased with his financial settlement.

The hearing today is expected to be brief, but one party pledged to protest the settlement--Raymond Dowd, a New York lawyer representing three former Duke servants who have issued sensational allegations in the case, including the claim that Duke was murdered.

Duke, the only child of James Buchanan Duke, founder of the American Tobacco Co., died in October 1993 at her gated home above Beverly Hills. The fight over her will was waged here because it was filed for probate in Manhattan.

Authorities in Los Angeles still are investigating the allegation that doses of morphine and Demerol killed the heiress, who gained fame earlier in the century as "the richest girl in the world."

The challenge to Duke's last will originally was led by Chandi Heffner, the woman Duke adopted a decade ago and then tried to disown. But Heffner gave up her claims in return for a $65-million settlement from the estate.

Settlement Reached Over Duke Estate

By Paul Lieberman and John J. Goldman
(Los Angeles Times, New York)

Courts: Heiress' former butler loses executor role but will be paid millions. His foe gets seat on charitable foundation.

The central parties in the bitter fight over the $1.2-billion estate of Doris Duke announced Wednesday that they have reached a settlement that finally could send the tobacco heiress' fortune to charity more than two years after her death.

Under the agreement, the controversial executor named in Duke's last will--her former butler, Bernard Lafferty--would relinquish any role in administering the estate or the new Doris Duke Charitable Foundation but still would get a $4.5-million payment as well as the $500,000-a-year bequest provided for him in the will.

Meanwhile, Dr. Harry B. Demopoulos, the New York physician who led the challenge to the will, would get a seat on the foundation's board in return for dropping his legal challenge, which spawned a series of sensational allegations--including the charge that Duke was murdered with overdoses of drugs.

"The overriding objective was to get the billion and a quarter [dollars] to charity and get a [foundation] board that will withstand scrutiny," said New York Deputy Atty. Gen. John H. Carley, who helped mediate the proposed settlement.

Although the pact still must be approved by Manhattan Surrogate's Judge Eve M. Preminger, lawyers in the case said that they believed they had satisfied her main concern--that Lafferty should play no role in what will become one of the nation's largest charities.

Lafferty declined comment Wednesday. In the past, he has said that he would bow out only if that was "the only way to get the money to charity."

The proposed settlement would leave in place three members of the Duke foundation board originally proposed by Lafferty: Nannerl O. Keohane, the president of Duke University, which is named for the heiress' father; J. Carter Brown, former chairman of the National Gallery of Art in Washington, and Marion Oates Charles, a society friend of Duke's who was named in the will to oversee the heiress' charitable trusts.

Left off the board from Lafferty's original list were another old friend of Duke's, actress Elizabeth Taylor, and New Jersey Gov. Christine Todd Whitman.

Under the settlement, their places, along with Lafferty's, would be taken by Demopoulos, who once served as Duke's longevity and vitamin doctor but was frozen out of her final wills; John J. Mack, president of the Morgan Stanley investment banking firm, and New York lawyer James Gill, a strong supporter of Gov. George Pataki.

Though Demopoulos had sought restoration of an old will naming him Duke's executor, Don Howarth, one of his attorneys, said that the settlement was acceptable because it gets "the butler out of there [and] gives Harry [Demopoulos] a significant role."

The 80-year-old Duke died Oct. 28, 1993, at her home above Beverly Hills. Her will was filed for probate in Manhattan.

The dispute got front-page headlines last year when Demopoulos and others filed a series of affidavits alleging that Lafferty was a drunk illiterate who went on spending sprees with Duke's money.

Lafferty countered that he was being targeted unfairly by lawyers, bankers and others seeking "to slice up Miss Duke's estate like a pie."

The dispute seemed hopelessly mired in New York courts amid investigations, endless appeals and even a challenge to the partiality of Judge Preminger, which recently put the proceedings on hold.

Indeed, in announcing their proposed settlement, parties in the case had to request formally this week that a March 5 stay on the proceedings be lifted--so the judge could review the terms. Preminger was expected to set a hearing on them for early May.

"We anticipate the thing will be wrapped up quickly [but] she has to approve it," noted Carley, who oversees charity matters for the state.

Objections could still be filed, however, by two financial giants--the Bank of New York and Chemical Bank--which were in line to handle Duke's funds in earlier wills and have been seeking standing to challenge her final one.

The proposed settlement gives the lucrative job of managing the Duke funds to United States Trust Co. of New York, the bank brought in by Lafferty a few months before Duke's death. As part of the deal, U.S. Trust would pay the former butler's executive fees to date--the $4.5 million--if they are not approved by the court.

Deal Reached Over the Estate of Doris Duke

By Don Van Natta, Jr.
(The New York Times)

A tentative settlement was announced yesterday that would end the war over Doris Duke's $1.2 billion estate and pay Bernard Lafferty, her high-spending, ponytailed butler, millions of dollars to give up his role in overseeing her fortune.

Mr. Lafferty, whom Miss Duke wrote into her will less than a year before she died, has agreed to resign as co-executor of the estate and relinquish a powerful seat on the board of the charitable foundation that would control Miss Duke's wealth. But while he would lose the power and prestige of those roles, Mr. Lafferty who is 46, an admitted alcoholic and barely literate would not give up any money. He would be paid his executors fee of $4.5 million, plus $500,000 a year for the rest of his life, according to the proposed settlement submitted yesterday in Surrogate's Court in Manhattan.

If the settlement is approved by the court which is by no means certain it would end more than two years of litigation over the estate of the late tobacco heiress, who left most of her fortune to charity. The will has been challenged by one of Miss Duke's doctors, former employees and others, and the bitter battle has led to charges and countercharges, including an affidavit contending that Mr. Lafferty and a doctor hastened Miss Duke's death with a drug overdose.

After Miss Duke died in 1993 at the age of 80, Mr. Lafferty moved into her mansions and traveled around in her chauffeured Cadillac and her private Boeing 737 at estate expense. His "profligate life style" was criticized last year by Surrogate Eve M. Preminger, who dismissed him from managing Miss Duke's estate a decision that was later overturned.

"Mr. Lafferty has agreed to step aside when the will is admitted to probate to fulfill Doris Duke's wishes that this money go to charity," said Robert Y. Sperling, a lawyer for Mr. Lafferty. "He saw no reason to continue litigation that would be costly to the estate and further delay Miss Duke's wishes that the money be used for charitable purposes." Yesterday, Surrogate Preminger was asked by the parties to approve the proposed agreement. A legal assistant said yesterday that the surrogate would hold a hearing on the matter on May 6 in her courtroom.

"This is an opportunity to resolve all possible litigation and get the money to charity and end enormous unnecessary legal bills and other expenses," said Deputy State Attorney General John H. Carley, who helped negotiate a settlement.

Surrogate Preminger rejected another proposed settlement in January, but that agreement had a key difference: It would have allowed Mr. Lafferty to keep his seat on the board of the Duke charitable foundation.

Last May, Surrogate Preminger removed Mr. Lafferty and the United States Trust Company from managing the estate, saying that the bank's executives should have reined in Mr. Lafferty's prolific spending habits. She also sharply criticized the bankers for lending Mr. Lafferty more than $825,000 at a time when he had no personal assets.

But the State Court of Appeals reversed that decision in January, saying the removal of U.S. Trust and Mr. Lafferty as co-executors was based largely on "untested hearsay."

Several lawyers and a spokeswoman for U.S. Trust, Allison Cooke Kellogg, declined to discuss the case yesterday. But according to court papers describing the settlement, all challenges to Miss Duke's disputed will, which she signed on April 5, 1993, would be dropped. One of Miss Duke’s doctor’s, Harry J. Demopoulos, who had been named executor in an earlier will, would give up his challenge; in exchange, he would get a seat on the Duke Foundation board of trustees.

According to the tentative settlement, six people would sit as trustees of the charitable foundations established by Miss Duke's will. Besides Dr. Demopoulos, these are the trustees:

J. Carter Brown, former chairman of the National Gallery of Art in Washington; Marion Oates Charles, a friend of Miss Duke's who was named as a trustee in her last will; James Gill, a partner in the law firm of Robinson, Silverman, Pearce, Aronsohn & Berman; Nannerl O. Keohane, president of Duke University, and John Mack, president of Morgan Stanley.

The dispute over Miss Duke's last will has become so tangled that more than loo separate allegations of wrongdoing have been made. The allegations range from failure by U.S. Trust to reign in Mr. Lafferty's spending to allegations that Mr. Lafferty wormed his way into Miss Duke's confidence while her mind, addled by prescription drugs, was failing.

The most scandalous allegation, leveled last year by one of Miss Duke's private nurses, is that Mr. Lafferty conspired with others to kill Miss Duke with a drug overdose. The Los Angeles District Attorney's office is investigating, but no mention is made of any of those allegations in the proposed settlement.

Another subplot came as several lawyers tried to remove Surrogate Preminger from hearing the case. After she rejected the first proposed settlement, lawyers for Mr. Lafferty and U.S. Trust asked her to recuse herself, ci-ting the harsh criticism she leveled at their administration of the estate last year.

But the surrogate refused to step aside, and the lawyers appealed. That appeal would be moot if she accepts the new settlement plan.

Even if the settlement is accepted, the case will be far from over. Still to come are applications for legal fees from more than 40 lawyers at 10 different law firms who have been involved in -two and a half years of litigation.

One lawyer estimated that the fees for all the lawyers would easily exceed $10 million, which would be paid by the Duke estate.

Deal Being Crafted to Settle Fight Over Heiress' Estate

By John J. Goldman and Paul Lieberman
(Los Angeles Times)

NEW YORK — Lawyers in the bitter fight over the $1.2-billion estate of Doris Duke met Thursday in Manhattan Surrogate's Court to work out a settlement that could finally send the tobacco heiress' money to charity more than two years after her death.

While no final agreement was reached during the closed-door meetings before Surrogate Judge Eve M. Preminger, attorneys in the case said they were negotiating details of a deal under which Duke's former butler, Bernard Lafferty, would step aside as co-executor of the estate but still play a role in the charity created by Duke's last will.

Also slated to get a place on the board of the Doris Duke Charitable Foundation is Dr. Harry B. Demopoulos, a New York physician who has led the legal challenge to the 1993 will signed by Duke in a Los Angeles hospital bed. Another member would be a Newport, R.I., society friend of Duke, Marian Oates Charles, with two other trustees to be determined.

The settlement talks were pushed by the New York state attorney general's office after a ruling by the state's highest court that Preminger had improperly removed Lafferty as executor. Preminger had removed Lafferty after hearing allegations that the butler went on spending sprees and drinking binges.

Under the heiress' 1993 will, Lafferty was to receive $500,000 a year plus $5 million in executors' fees and have the power to appoint the five-member board of the charitable foundation.

Under the tentative settlement, the 50-year-old Lafferty would step down as co-executor, but the bank he brought in to help manage the estate, United States Trust Co. of New York, would remain a co-executor along with an individual still to be named.

Attorneys for Demopoulos said they would not object to the former butler having some position in the Duke foundation.

But "it cannot be a Lafferty-controlled thing," said Don Howarth, a Los Angeles lawyer for the physician, who once was in line to be Duke's executor under a 1991 codicil. "Basically there were two critical things: that Lafferty not control [the board] and that Dr. Demopoulos should have a significant role."

Lafferty would not comment Thursday, but he said recently that he was anxious "to get the money to the charities," and might agree to a reduced position--as long as he had some role in the foundation.

One unresolved issue is the size of "surcharges" that may be owed the estate by Lafferty or U.S. Trust because of alleged mismanagement. One lawyer at the meetings said a huge range was mentioned--from $500,000 to $18 million--but that the bank may pay whatever Lafferty owes.

"There is no settlement [yet]," New York Deputy Atty. Gen. John H. Carley said as he left court.

A roadblock could be financial giant Chemical Bank of New York, which was in line to manage Duke's fortune until she moved her money to U.S. Trust months before her death in October 1993.

After the meetings ended Thursday, Chemical obtained a court order setting a hearing next week to determine if it should have standing to challenge Duke's last will and any settlement that freezes it out of the lucrative job.

Lawyers for the bank charged that Duke was medicated and suffering from "cognitive impairment" when she changed banks.

"It now seems clear that the firing of Chemical was likely to have been part of Mr. Lafferty's orchestrated efforts, as assisted by [Duke's attorneys] to completely take over Miss Duke's affairs," the bank charged. "Chemical Bank, as well as Miss Duke herself, was duped by this scheme."

Also ready to object is Raymond J. Dowd, the lawyer for three former Duke servants who have leveled a series of highly publicized charges since her death, at 80, in her home above Beverly Hills. They reportedly are being denied any monetary settlement from the estate.

Family Says Mom's Job Caused Son's Cancer

By Jennifer Auther


Several lawsuits have been filed in Southern California alleging that former nuclear power plant workers unknowingly brought home radiation. Attorneys say that the positively charged fuel particles attached themselves to clothing.

The Rock family thinks Vicki Rock's former job at the plant caused her son's cancer.


Joshua Rock, 19, once dreamed of becoming a firefighter. But in 1994, Joshua learned that he had developed a rare form of Leukemia.

His mother, Vicki Rock, says she thinks she brought home cancer-causing radioactive particles from defective fuel rods at the San Onofre Nuclear Power Plant in California, where she worked 10 years ago. "My responsibility was to record and monitor exposure of other employees to radiation and to document that. I also inspected and repaired respirators," Rock said.


Dr. Harry Demopolis, a cancer origin expert, said the hazards of working in those conditions are sometimes underestimated. "It's like handling a spill of AIDS-infected blood. The toxic element was there," he said.

The Rock family is suing the San Onofre Nuclear Power Plant. But the vice president of the company that owns the plant, Southern California Edison, says that they are not responsible. "There's no way we could have harmed Joshua Rock," Dick Rosenblum said.

Although Vicki Rock has not been diagnosed with cancer, Dr. Demopolis will testify that by washing her clothes with the rest of the family's, she exposed them to radiation. He will say that is how Joshua got his rare form of leukemia. "The overwhelming cause of AML, acute myelogenous leukemia, is radiation," Demopolis said.


Don Howarth is representing Joshua Rock's family in the suit and he's filed at least five other lawsuits on behalf of former San Onofre workers. He'll argue that San Onofre workers in 1985 and 1986 carried home tiny radioactive particles called "fuel fleas."

"We have documented examples of them getting out of the plant during the '80s, onto somebody's carpet who worked in the plant; going off on somebody's shoe," Howarth said.


Rosenblum doesn't deny the claim, but he denies that the plant caused leukemia in families that have brought suits against the company. He says that San Onofre gets high marks from the Nuclear Regulatory Commission on radiation monitoring and on worker safety.

"In fact, we showed that (the NRC report) to a jury here a couple of months ago in a lawsuit we just completed and a jury unanimously voted for our side," Rosenblum said.


The Rock family suit will wait to go on trial after another suit against Southern California Edison is completed. The family expects Joshua's health to hold out till then.

Winning on Appeal

by Lois Romano


Marcia Clark isn't the only lawyer out there who's smart, strong, and female. These legal eagles aren't afraid to use what comes naturally to a woman ... and it's working.

A few months ago you probably saw O.J. Simpson prosecutor Marcia Clark grill Brian "Kato" Kaelin into a sweat and reduce defense attorney F. Lee Bailey to a trembling fury. You re probably also familiar with lawyer Leslie Abramson, whose defense of Erik Menendez, who confessed with his brother to the murder of their parents, was so compelling that the trial ended in a hung jury.

When Abramson defended Menendez two years ago, she was one of few women to have achieved stardom in criminal law. But today some of the biggest names in criminal law—and civil litigation—belong to women. Although talented, ambitious women in other professions have had a tough time rising to the top, female lawyers have been landing more and more of the hot cases.

Their arrival in the forefront of the legal world is partly a result of numbers, Twenty-five percent of lawyers and 115 percent of law school students are women.

But unlike their counterparts of 20 years ago, many of today's experienced female lawyers are trusting what's often referred to as their female traits instead of copying those of male lawyers A number of these legal eagles believe that being a woman makes them particularly suited to practicing criminal and civil law, "Everything I am as a woman can work for me in the courtroom," says Suzelle Smith, a prominent Los Angeles litigator. "I have the advantage of having been better trained than my male colleagues in relating to people. It's easier for me to question a witness without being condescending, Juries pick up on the tone of your voice and your body language. The model of a shoot-‘em-up aggressive courtroom style as a surefire way to win is a myth. I make just as much headway being firm without being threatening."

Many female lawyers say they have also benefited from what could be called an outsiders mentality, which has kept them focused on their clients best interests and riot on what their male colleagues think of them, Victoria Toensing. The Washington. D.C. lawyer who recently negotiated a landmark discrimination case for a female client against the CIA. claims that male lawyers are too caught up in being one of the guys,"Women do not have a stake in perpetuating the old-boy network," she says, "because the old boys are never going to help them. This empowers women to go for the jugular. All men do is pat each other on the rear end --and this does nothing for the client."

If the old boys tend to look out for one another, some also like to play out their egos in the courtroom. When this happens, according to University of Pennsylvania law professor Loni Guinier, it can distract from the issues of a case, "F. Lee Bailey is the classic male lawyer who, with enormous bravado, keeps the attention on himself," she says. "Some cases cannot be won if the jury is diverted from the evidence by lawyer theatrics."

Guinier, who recently cowrote a study that examined the effect of her law schools teaching methods on female students, believes some women have a distinct advantage in the practice of courtroom law. "Many have been socialized to do well as listeners, to establish rapport, and to be caring interviewers," she says, "Since all lawyers are trained to be performers and aggressors, empathetic women can have an advantage over those who have learned how to talk, but not how to listen"

And when it comes to dress, today s high-powered female lawyers have to some extent rewritten the code. Gone are the mannish pinstripes and bow ties. Now they wear bright, stylish suits and dresses that they believe send a positive message to the judge and jury. Nancy Hollander, a criminal defense attorney in Albuquerque, New Mexico, says that when she faces off against male lawyers in blue suits, her feminine dresses "perk up jurors, and they pay more attention to what I have to say." Rikki Klieman. a Court TV anchor and longtime litigator, always wears white for her opening and closing statements, "It subliminally signals to the jury a certain purity, an innocence."

As women lawyers bring their own sensibilities to the profession. are the old boys running scared? Not exactly, but they are looking over their shoulders. As they should be. Because six women we talked to (and a good many others) are giving them a real run for their money in the courtroom.

The Right Touch

Suzelle Smith, half of the Los Angeles firm of Howarth & Smith, wins multi-million-dollar settlements for her clients by unabashedly playing the gender card. In a successful 1988 damage suit brought against a shopping mall from which a 26-year-old woman was abducted, raped, and later murdered, the civil litigator bet on a strategy that would make the jury identify her with the slain woman. A key move was to seat herself alone at the attorney's table and place her clients—the victim's parents and husband—behind her in the public seats.

When she recently represented workers at a nuclear plant who claimed to be contaminated by radiation, she relied on her experience as a mother.

"In legal circles, it's said that a lawyer should talk to a jury as if it were a class of sixth graders," she says. "That's not meant as an insult. The fact is juries have to deal with issues and technicalities of which they have little or no knowledge. Complex cases have to be broken down into their components—even for judges. As a woman and the mother of a 5- and 8-year-old, I am used to teaching and explaining."

Smith has also found touching to be an effective tactic. "I will walk around an opposing lawyer and put my hands on his shoulder" explains the 41-year-old Birmingham, Alabama, native. "I am signaling the jury that I am in control of this situation, it works for me, but could backfire for a male lawyer because men are seen as predators. His touching me is viewed as a violation of my space."

Court Revisits The Last Days Of Doris Duke

By James C. McKinley, Jr,
(New York Times)

On April 5, 1993, the woman once called "the richest girl in the world" lay feverish and emaciated in a luxury hospital suite in Beverly Hills, suffering, of all things, from starvation.

Doris Duke, 80, the legendary tobacco heiress, looked more like a blond skeleton than the athletic debutante who had made her society debut in the 1930's at Buckingham Palace or the stately and private woman who only a few years before was socializing with Jacqueline Onassis and Imelda Marcos.

Her circle had shrunk to a few servants and a group of doctors and lawyers she had known only a short time. As she signed her last will that day with a shaky hand and turned her fortune over to her butler, not a single close friend or family member was present.

Her doctors and lawyers say they helped Miss Duke realize her final wish in a lifetime of unorthodox choices. The will gave control of her $1.2 billion fortune to her butler, Bernard Lafferty, a barely literate man with a drinking problem who had become Miss Duke's sole confidant.

But since her death October 28, 1993, Miss Duke's last will has been the center of a legal fight in Surrogate's Court in Manhattan and a criminal investigation in Los Angeles, tying up what Miss Duke intended to be a $1 billion fund for charity.

In the next few days, Surrogate Eve Preminger is expected to make the first in a series of crucial decisions that will determine who will run a charitable foundation that will rank among the nation's largest.

First she has to rule on whether Mr. Lafferty is responsible enough to be executor. Then she has to decide whether one of Miss Duke's former physicians has legal standing to challenge the will. Finally, the Surrogate has to decide whether to validate the final will -- and whether Miss Duke was coerced into signing it.

Several people who were named executors in earlier wills have accused Mr. Lafferty, a soft-spoken man with a ponytail and a penchant for diamonds and Italian suits, of worming his way into Miss Duke's confidence while her mind was crippled. And in Los Angeles, the District Attorney is investigating allegations by one of Miss Duke's private nurses and one of her former doctors that the butler conspired with other doctors and lawyers to murder Miss Duke with a drug overdose.

Aside from the question of foul play, hospital records and court papers paint a disturbing portrait of Miss Duke at the end and raise serious questions of how much control she had over her decisions.

The records show she was taking several medicines -- antidepressants, painkillers, sleeping pills -- which at least three doctors have said in affidavits might have interfered with her thinking. Also, two former servants now say that Miss Duke was often dazed and confused in her last year.

Two weeks ago, a lawyer appointed by Surrogate Preminger to help sort out the battle concluded that Miss Duke's primary doctor, Charles F. Kivowitz, purposely cut her nutrition and hastened her death with a morphine overdose.

The lawyer, Richard H. Kuh, a former Manhattan prosecutor, also determined that her mental state was "questionable" when she signed the will. His report cited hospital records showing Miss Duke often had a mild drug-induced delirium.

Lawyers for Miss Duke's estate have challenged the Kuh report with reams of affidavits from friends and business associates attesting to her mental competency.

The stakes are high. If the will holds up, Mr. Lafferty will get a $5 million executor's fee plus $500,000 a year for the rest of his life. The law firm that drew up the final will, Katten, Muchin & Zavis of Chicago, has already billed the estate $13.5 million and stands to get millions more. Heiress Lonely, Suspicious And Reclusive

In interviews and court papers, Miss Duke's friends and former employees describe a lonely old woman who grew more and more isolated from others and dependent on Mr. Lafferty in her dotage. As her health declined, they said, her natural suspicion of people's motives grew, and she changed her will four times in the last three years of her life.

Ever since her father, James Buchanan Duke, told her on his deathbed to "trust no one," she had been suspicious of those around her -- many of whom were sycophants and fortune hunters, they said. Time and again, she had cut people off at the first sign of disloyalty.

"She once said to me that she often felt that whenever some people looked at her, they saw her face as a dollar bill," Annabelle Kenessy, an old friend from Hawaii, said in a court affidavit.

Miss Duke was born on Nov. 22, 1912, the only child of the American Tobacco Company president, who had built a $300 million fortune.

But her acquaintances say she craved the things money could not buy: talent, love, friends. She took jazz piano lessons religiously and studied dance until she was well into her 60's. She loved gospel music, rare animals and Islamic art. She kept a pair of camels on her 2,700-acre main residence, Duke Farms in Somerville, N.J.

Her money could never protect her from unhappiness; she had two failed marriages and several unsuccessful relationships. In 1940, she bore one child, who lived less than 24 hours. In 1966, Eduardo Tirella, an interior decorator who was a close friend, was killed in an accident when the car she was driving slammed him against a gate on Rough Point, the Newport estate.

As she grew older, she became more reclusive, dividing her time between homes in New York City, New Jersey, Beverly Hills and Hawaii.

It was in Hawaii, in early 1984, that Miss Duke met the woman who would eventually become the daughter she never had -- Chandi Heffner.

Ms. Heffner was a follower of Hare Krishna who had rejected her middle-class upbringing in Baltimore and was living on a communal farm when she was introduced to Miss Duke through a mutual friend. The two shared an interest in dance, Eastern philosophy and animals, Miss Duke's friends said. Before long, they became close.

In 1985, Ms. Heffner moved in with Miss Duke at Somerville. The next year, the heiress bought Ms. Heffner a $1.5 million horse ranch in Oahu. They traveled the world together at Miss Duke's expense.

"She always wanted a daughter," said Peggy Lee, the singer, a longtime friend of Miss Duke. "Chandi filled an empty spot in Miss Duke's life."

Ms. Heffner introduced Miss Duke to Bernard Lafferty, former employees said. Orphaned at 17, Mr. Lafferty had emigrated from Ireland to Philadelphia, where he worked in hotels and theaters. In the 1980's, he became a personal assistant to Miss Lee, who met him on a singing tour.

Little by little, Ms. Heffner took a bigger advisory role in Miss Duke's finances, Miss Duke's associates said. In 1987, she persuaded the heiress to dismiss her business manager and hire Irwin Bloom, a New York accountant. That year Miss Duke signed a will making Ms. Heffner executor. In 1988, the heiress adopted her as her only heir.

But the relationship between the women began to sour a year later when Ms. Heffner became romantically involved with one of Miss Duke's bodyguards, James Burns. "Chandi's loyalty became divided and Doris could never stand that," said Liz McConville, who served as Miss Duke's secretary for 18 years. "She had bought and paid for Chandi 100 percent."

Soon Ms. Heffner began to alienate many servants, including Mr. Lafferty, with bossy demands, some of Miss Duke's associates say. "The day after the adoption she changed and became the little tyrant she really is," said Colin Shanley, who said he quit as Miss Duke's cook in 1989 because of Ms. Heffner. He and Ann Bostich, a housekeeper for Miss Duke in Beverly Hills from 1989 until her death, have sued the estate, charging breach of contract.

By February 1991, Miss Duke's disenchantment with Ms. Heffner peaked. She ordered her lawyer to tell Ms. Heffner to get out. They never saw each other again.

Ms. Heffner declined a request to be interviewed for this article. After suing three times, she reached a $65 million settlement with the Duke Estate last month. Part of the agreement is that she not talk about Miss Duke's life, her lawyers said. Staff Ex-Servants Accuse a Butler

Mr. Shanley, the cook, came back to work for Miss Duke in March 1991; he says he hardly recognized her. In 1989, she had been a vibrant older woman who swam laps every day, but now she looked emaciated and pale. Miss Duke told him she believed Ms. Heffner had poisoned her.

"She was frail, very frail," Mr. Shanley said in a recent interview.

Mr. Lafferty's role also changed after the falling out between Miss Duke and Ms. Heffner, Mr. Shanley and Ms. Bostich said. Before 1991, he had been a traditional butler, serving tea and answering doors. Now, they said, he gave orders to the staff and often said he spoke for Miss Duke.

Mr. Shanley said Mr. Lafferty began to isolate Miss Duke. He intercepted her calls, and friends and relatives said in interviews and affidavits that it became nearly impossible to reach her on the telephone.

"He made it clear that everyone had to go through him first to speak to Miss Duke about anything," Mr. Shanley said.

Mr. Lafferty declined a request to be interviewed for this article. In affidavits, he has denied having exerted any influence on Miss Duke's decisions.

Over the next 12 months, Miss Duke changed her will three times, court papers say. After meeting several times in the spring of 1991 with Dr. Harry B. Demopoulos, a diet specialist from Scarsdale, N.Y., who had treated her for a decade, she hired the law firm that represented the doctor and signed a new codicil naming him and Chemical Bank as co-executors. Dr. Demopoulos and the bank were to get $25 million each.

"She was definitely motivated by a fear that Chandi or Burns were going to harm her," recalled Suzelle Smith, a lawyer for Dr. Demopoulos. Miss Duke went so far as to have tests run on the food and sherry at Shangri-La, her house on the coast of Oahu, she said. No poison was found.

In November 1991, Miss Duke had a new will drafted that made Mr. Bloom, the accountant, the executor. After a trip to Vietnam and Thailand in April, 1992, she changed course again, signing another codicil that made Mr. Lafferty co-executor along with Walker Inman, her half-nephew and closest relative. She confided to friends during the trip that she no longer trusted Mr. Bloom, court papers say. Health Spending Sprees And Operations

Miss Duke's medical disasters started in April 1992, when she decided to have a facelift and asked her servants to seek out Dr. Harry A. Glassman, a well-known Hollywood surgeon. Two days after the operation in his office, she fell out of bed and broke her hip, her employees said. She was taken to Cedars-Sinai Medical Center in Los Angeles, where Dr. Glassman recommended she seek treatment from Dr. Kivowitz and an orthopedic surgeon, Barry M. Braiker.

That summer while she recovered, Dr. Kivowitz and Dr. Glassman started visiting her frequently at home, Ms. Bostich and Mr. Shanley said. The cook said the two doctors would arrive in the late afternoon and drink $100 bottles of Louis Roederer Cristal champagne with Miss Duke. She grew especially fond of Dr. Glassman, her friends said.

Sometime that fall, Miss Duke decided to have her arthritic knees replaced with artificial joints. She told friends she wanted to dance again. The surgery was done in January 1993, and Miss Duke went to Shangri-La, in Hawaii, to recover.

Mr. Shanley said Miss Duke "did not know where she was or what day it was" while they were in Hawaii. She took strong narcotics for pain -- Percodan and Demerol -- plus several sleeping medicines and anti-depressants, court papers said. She also drank wine daily, and took laxatives to stay thin, her servants said.

By late February, she had become so malnourished and dehydrated that her life was in danger, court papers say. She flew back to Los Angeles and was admitted to Cedars-Sinai.

Her nurses noted she was intermittently disoriented and confused, sometimes hallucinating that she was in a noisy apartment in Brooklyn.

A staff neurologist, Dr. Clarke D. Espy, examined her on March 2 and said in his report that she suffered from a mild delirium "possibly exacerbated" by prescription drugs. He said later in an affidavit that once she was taken off certain medications, her mental state improved. Hospital records for the days on which she later signed documents suggest she was alert and oriented.

Whatever her mental state, in early March Ms. Duke called Angier Biddle Duke, her cousin and a former ambassador, and asked if he could recommend a lawyer. (Mr. Duke died three weeks ago.)

She also asked her plastic surgeon, Dr. Glassman, to put her in touch with Alan Croll, a neighbor of his. Mr. Croll referred her to William M. Doyle Jr., one of his partners in the Katten, Muchin firm. Mr. Doyle, their leading estate specialist, flew from Chicago to Los Angeles the next day.

"The only change she was making was to replace Irwin Bloom with Bernard Lafferty," Mr. Doyle said. "She said Mr. Bloom had lost his sense of territory and had violated the cardinal sin of somehow thinking that he had become Mr. Duke."

Mr. Doyle said he proposed other trustees and pointed out Mr. Lafferty's lack of education. "She told me that he wasn't college educated, but nor was she," Mr. Doyle recalled. "He had been by her side 24 hours a day for six years. He was intimately familiar with her view of life."

On March 9, 1993, Miss Duke signed the codicil, so weak that Mr. Doyle had to guide her hand, witnesses said. Mr. Doyle said he knew the will would be challenged. "It was clear she was disinheriting her daughter," he said. "Any third grader would realize this was going to be a contested estate." The Last Months No Extra Measure To Sustain Life

The months that followed her release from the hospital on April 15, 1993, were hard for her, her employees said. She was often forgetful and disoriented, and still had problems with her artificial knees. She made short trips to Hawaii and New Jersey before returning to Los Angeles to have another knee operation in July.

Dr. Kivowitz said in court papers that he advised her against the operation. So did Eleanor Lawson, her longtime friend and dance teacher. But Miss Duke insisted. Two days after she went home from the hospital, she had a stroke and nearly died.

She returned to Cedars-Sinai, where she stayed two months before being sent home on Sept. 20, for the last time.

Her bedroom was converted for intensive care, with two nurses on duty round the clock. She had a stomach tube for feeding and a tracheotomy tube for breathing.

On Oct. 7, Dr. Kivowitz said in court papers, Miss Duke told him that she did not want to go on living if her health could not improve. The next day, he ordered nurses to take no special measures to keep her alive.

From that point, Miss Duke was heavily sedated, the nurses' notes and court documents say. On Oct. 18, a nurse noted that Miss Duke had told her: "I want to die."

During this time, Mr. Lafferty was running up Miss Duke's credit card accounts, court records show, spending lavishly on gifts for nurses and, in October 1993 alone, buying $20,000 worth of clothes.

Mr. Lafferty and Miss Duke's business manager, George Reed, also doled out several large gifts to the doctors and to charity in the month before Miss Duke died, saying they had been authorized by Miss Duke, the records show. Dr. Glassman received $500,000, and Dr. Kivowitz got $10,000 in addition to his fees.

On Oct. 26, Dr. Kivowitz stopped Miss Duke's feedings and oxygen.

On Oct. 27, Dr. Kivowitz, Dr. Glassman and Mr. Doyle all visited the Beverly Hills house. Mr. Shanley said that when a package of medication arrived in the kitchen that afternoon, Mr. Lafferty grabbed it from him, saying: "Miss Duke is going to die tonight."

At 4 P.M. on the 27th, Dr. Kivowitz ordered her to receive a morphine drip, starting at 5 milligrams. His order said to increase the flow 1 milligram an hour as needed.

But for some reason, the dosage of morphine was increased to 10 milligrams per hour at 6:30 P.M., then 15 milligrams at 7:30, and finally, at 4 A.M., to 25 milligrams, according to the nurses' notes. Dr. Kivowitz also gave her an additional injection of 10 milligrams before he went home for the night, the records show.

The drug slowed her breathing. Her lungs filled with fluid. At 5:15 A.M. on Oct. 28, her nurses gave her an injection of 100 milligrams of Demerol. Their notes indicate Dr. Glassman ordered the extra painkiller over the telephone at the request of Dr. Kivowitz. At 5:48 A.M., Miss Duke stopped breathing.

Mr. Lafferty and Mr. Doyle were at her bedside. Soon afterward, Dr. Kivowitz's partner, Dr. Joshua Trabulus, signed a death certificate, saying the cause was fluid in the lungs and infection. A few hours later, the butler and the lawyer took the body to Westwood mortuary for cremation.