Miscellaneous

Shooting Her Good Side

By Mark F. Bernstein '89
(UVA Lawyer)

Now here’s a client meeting for you. In June 2017, Suzelle Smith ’83 met with Olivia de Havilland, the 102-year-old, two-time Oscar-winning best actress, most widely known as Melanie from “Gone with the Wind.” Smith had known de Havilland for more than 25 years and had advised her on some legal matters, but this was more of a social call.

Over champagne and canapés in de Havilland’s Paris apartment, Smith brought up “Feud: Bette and Joan,” the docudrama about actresses Bette Davis and Joan Crawford produced by FX Network. The show depicted de Havilland as a foul-mouthed gossip.

“I asked her,” Smith said via email, “as the only living person who participated in the real events: (1) Did you help in the writing of ‘Feud’; (2) did you consent to FX using your name and persona; and (3) did you say those things portrayed in the film?”

“No, no and no — can we sue?” de Havilland replied. So sue they did.

Their claim, alleging that the show’s creators portrayed de Havilland in a false light and used her likeness without compensation, provoked opposition from some of Hollywood’s big hitters, including the Motion Picture Association of America. Although the trial court denied a defense motion to dismiss the claim, the state court of appeals reversed in what Smith described as a “pro-industry” decision. The California Supreme Court, with one published dissent, declined to review that decision, and Smith filed a writ of certiorari with the U.S. Supreme Court in October.

Though perhaps the most colorful, the case is hardly the only high-profile matter Smith has handled since founding her Los Angeles–based firm, Howarth & Smith, in 1985. She has represented professional football players in an antitrust suit against the NFL, families of 9/11 victims in a suit against Osama bin Laden, and the Vatican Library in a $100 million breach-of-contract claim. The National Law Journal has named Smith one of the top 10 litigators in the United States.

That experience has helped Smith become an expert on sizing up potential cases and clients, expertise she distilled into a co-authored book, “Case Assessment and Evaluation,” and a series of web videos on Legal Counselor. The book has been very successful; more than once, Smith says, she has seen it on a judge’s shelf when she has gone into a conference.

Smith and her husband, Don Howarth, started Howarth & Smith two years after she began as an associate at Gibson, Dunn & Crutcher. Before law school, she worked on Capitol Hill as a legislative assistant to Alabama Sen. Howell Heflin. She graduated summa cum laude from Boston University and earned an M.Phil. from Oxford University. She is an honorary member of the Law School Foundation Board of Trustees.

Smith acknowledges that her petition for Supreme Court review is a longshot, but is undeterred.

“It is very important to Olivia de Havilland that we see this all the way through,” she said. “They’re going to have to shoot us dead before we give up.”

The Sheer Force of an Idea

by Cullen Couch
(UVA Lawyer, Fall 2014)

Salisbury Cathedral's Magna Carta

Salisbury Cathedral's Magna Carta

They say that to do injustice is, by nature, good; to suffer injustice, evil; but that the evil is greater than the good. And so when men have both done and suffered injustice and have had experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither. —THE REPUBLIC, Plato (360 BC)

39– No freeman shall be taken, imprisoned, disseized, outlawed, banished, or any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his Peers or by the Law of the land.

40– To no one will We sell, to none will We deny or delay, right or justice. —MAGNA CARTA (AD 1215)

In June 2015 Magna Carta will turn 800. Its age alone is a wonder. Only by a lucky accident of history did it survive the bloody tumult of its birth, and then centuries of war, revolution, and political upheaval. Magna Carta’s animating principles, derived from ancient concepts of justice, evolved to become the totem for the rule of law in an empire that spanned the globe.

In the 17th century, America’s colonists found in Magna Carta a guarantee. They built legal arguments to redeem it. In the 18th century they fought a war to implement it and wrote a constitution to embed its ideals in a uniquely American form of government. In the 20th century, they stored an early copy of Magna Carta for safekeeping at Fort Knox during World War II. The surviving written copies of the original Charter now reside in damage-proof viewing boxes in Lincoln Cathedral, Salisbury Cathedral, and the British Library, where viewers find inspiration, just as our Bill of Rights to the U.S. Constitution found its inspiration centuries ago.

Magna Carta continues to inspire. Researchers at King’s College London are re-examining rival versions of clauses proposed but ultimately rejected during the negotiations at Runnymede, casting new light on Magna Carta’s meaning. Just this past July a committee of the House of Commons published a report, “A New Magna Carta,” in response to a parliamentary inquiry into the question of a written constitution. And Carlyle Group CEO David Rubenstein paid $21.8 million to own one of the four existing copies.

A. E. Dick Howard ’61, White Burkett Miller Professor of Law and Public Affairs and a noted authority on Magna Carta, is advising the Library of Congress on its forthcoming exhibit, “Magna Carta: Muse and Mentor.” In 2015 Howard will give lectures in London under the auspices of the American Embassy, and will lecture at Oxford’s Bodleian Library, at Salisbury Cathedral (which has one of the four extant copies of the 1215 Charter) and elsewhere in England.

“The 800th anniversary is not so much about celebrating Magna Carta’s origins as it is about explaining how and why the Charter survived and what its legacy is for our time,” he says. “Magna Carta could have died entirely, and yet it didn’t. Instead, it has become a universal symbol of the rule of law, of due process of law, and of limits on government power.”

“Given by Our hand in the meadow which is called Runnymede …”

Magna Carta arose out of the chaotic reign of King John whose profligacy, inept statecraft, and military incompetence had infuriated his barons. Forced by the barons’ might and lacking any popular support, John agreed in 1215 at Runnymede to 63 “chapters” that granted “to all the free men of our realm for ourselves and our heirs for ever, all the liberties written below.”

Almost immediately, John sought to have Magna Carta annulled, and Pope Innocent III issued a papal bull declaring it “null and void of all validity for ever.” The deceit of John and an irate Pope came close to smothering Magna Carta in its crib, but the king died in 1216 of dysentery and a young Henry III succeeded him. Henry’s regents, needing the barons’ support, reissued Magna Carta in 1216 (and again in 1217 and 1225). In 1297 Edward I entered Magna Carta into the statutes of the realm.

An engraved 19th century illustration of King John signing the Magna Carta

An engraved 19th century illustration of King John signing the Magna Carta

It continued to evolve over the centuries through statutory amendments and royal proclamations, some repealing its feudal anachronisms, others restating its fundamental principles (just four of the original chapters remain today—the last few were repealed in 1971).

Magna Carta lay largely dormant during the Tudor period. It was in the seventeenth century that the Stuart kings’ notions of “divine right” brought renewed reliance on the Charter. Sir Edward Coke, the greatest jurist of his time, brought forth Magna Carta as authority for his opposition to the Stuart claims of royal prerogative.

Meanwhile, colonial charter companies were assuring prospective settlers that they would enjoy in America the same rights and privileges of their homeland, understood by them to mean the principles contained in Magna Carta for justice according to “the law of the land.”

Originalism and Historical Meaning

Were the barons who forced a tyrannical king to sign the document thinking of timeless values? No. Were they trying to establish fundamental rights for all? Certainly not. Were their words open to interpretation? Absolutely, and therein hangs a tale.

“It was a bargain struck between King John and the barons who had their own interest at heart,” says Howard. “They were not concerned about posterity, and they certainly weren’t concerned about the common good. A very reluctant King John sealed the document. He would have surely broken his promises. He never intended to keep them.”

Ted White, David and Mary Harrison Distinguished Professor of Law, agrees: “It is less a charter of individual liberties than a rebellion against absolute powers of the monarch by a group of persons interested in preserving their own economic and political and social autonomy against the Crown.”

“Magna Carta was intended to give relief to a handful of angry male barons, but the word ‘barons’ was changed to ‘any freeman,’ and that made all the difference in law,” says Suzelle Smith ’83, co-founder of litigation boutique Howarth & Smith, a visiting fellow at Lady Margaret Hall at Oxford, and an elected fellow and member of the board of directors of the International Academy of Trial Lawyers. “In 1215, there were very few ‘freemen.’ But as time passed, the clause was applied in England to guarantee ‘due process of law’ universally, including to women.”

What Magna Carta’s provisions mean, taking into account their context, is not the same as what Coke understood them to mean when he fashioned his arguments against the Stuart claims. “But the language is broad and a potential source of authority to be interpreted in purposive ways by subsequent interpreters,” says White. “That dimension of Magna Carta can’t be underestimated. It is out there as a legacy of a kind, even though its meaning may not be obvious.”

Magna Carta is interesting for what it meant at the time it was adopted and how it summed up important principles, but its modern legacy flows in part from the uses made of it by later generations. “Magna Carta has been glossed in a way that John or the barons in the 13th century might not recognize,” says Howard, who sees “due process of law” as the actual textual connection between Magna Carta and the U.S. Constitution. The phrase “law of the land” in English history very quickly became interchangeable with due process.

“They’re the same concept,” he says. “Due process has been perhaps the most powerful single organic concept in constitutional law. Throughout the centuries people have poured their contemporary understandings into what due process is all about.

“If I wanted to respect the so-called ‘original meaning’ interpretation of the Constitution, I could argue that, when the framers used the phrase ‘due process of law,’ they understood it to be a constantly evolving concept.” Unfortunately, the framers of the Constitution never made explicit how they wanted future generations to interpret their document; or put another way, their original intent about original intent. But we know they had a perspective framed by deep study of the rise and fall of governments and civilizations.

The American Bar Association’s Magna Carta Memorial at Runnymede.

The American Bar Association’s Magna Carta Memorial at Runnymede.

“We tend to think of historical change as a qualitative development over time so that the meaning of a provision one day might not be the same at a later date in a different context,” says White. “But the framers’ perception was different. They saw history as a cyclical process that approximates the human condition going from early life to maturity to decay and ultimately disintegration. It’s not progressive change. It’s not qualitative change. Instead, it is the recurrence of fundamental principles as the course of a nation’s history evolves.”

When Chief Justice Marshall wrote in McCulloch v. Maryland that the Constitution is designed to be adapted to the various crises of human affairs, he wasn’t saying that the meaning of the Constitution would change over time. “Instead,” says White, “he meant that the foundational principles of the Constitution will need to be restated in different contexts as the context emerges. The crises that require constitutional interpretation are products of changed circumstances, and the interpreter is supposed to solve those problems by restating the original foundational principles. The problem is that that view of history has been abandoned for over a century.”

The Law of the Land in England

While the bones and sinew of Magna Carta dealt with the immediate and specific grievances of the barons in their feudal role, the heart and soul of the document is its Chapters 39 and 40. Those fifty words became the cornerstone of English common law, a nascent form of what would later inform part of the U.S. Constitution. But it took a long time and many turns to get there.

What does Magna Carta mean by “the Law of the land”? It doesn’t say, but over time it became consistent with the idea of the right to trial by jury of one’s peers, to confront accusers, and to appeal. “That’s important because you could imagine in a monarchy that there is no appeal, that everything is done at the pleasure of the monarch,” says White.

Later, in 1368, a statute of Edward III said if a law was in conflict with Magna Carta, it should be “holding for none,” or null and void, essentially treating Magna Carta as a “superstatute, in other words, as a constitution,” says Howard. “It didn’t turn out to be Marbury v. Madison. England still has Parliamentary supremacy, and they don’t have what we call judicial review, but the idea gets planted.”

But it was the ascent of the Stuart dynasty with James I in 1603 that became a “pivot point” in England and America that refined the meaning of “Law of the land.” The new king’s claim of divine right was clearly not a Parliamentary principle and was not consistent with English constitutional traditions.

Penumbras and emanations, brawlers and vagabonds : In researching her book on vagrancy law Professor Risa Goluboff came across a revealing artifact in the substantive due process debate in the mid-20th century U.S. Supreme Court.

Penumbras and emanations, brawlers and vagabonds: In researching her book on vagrancy law Professor Risa Goluboff came across a revealing artifact in the substantive due process debate in the mid-20th century U.S. Supreme Court.

In response, Parliament passed a series of acts, particularly the English Bill of Rights, which introduced principles beyond those found in Magna Carta. “Coke and his friends argued that Magna Carta laid down certain precepts which they built upon and enlarged in the quarrels between Parliament and the Crown,” says Howard.

“So, yes, you do have some open-ended language in Magna Carta,” says White, “but it is plain that at the time the United States declared independence from Great Britain, the British citizens did not have a full panoply of individual rights against the Crown. In fact, the Crown and Parliament are still dominant. The lawmaking authority in England is statutory. The British don’t have separation of powers in the full sense that the Americans do, so I think Magna Carta is susceptible of over-generalization.”

Smith notes another glaring difference. “The bedrock of American judicial process, the Constitutional right to a jury of one’s Peers, is straight from Magna Carta. Yet, the English, with no formal written Constitution, have virtually eliminated the right to a jury in civil cases.”

The Law of the Land in America

While Coke was leading the opposition to the Stuarts in England, the first English-speaking colonies were being planted in America, beginning with Virginia in 1607. The colonial charters introduced principles of Magna Carta by promising that those settlers who immigrated to Virginia would enjoy all the rights they would have had in England.

The promises helped soothe fears that the charter company would become a monarchical fiefdom with absolute power over them if they chose to settle in the new world. Still, “the theory was that these colonies ultimately would be governed by England,” says White, “so these provisions referencing Magna Carta were likely intended to be rhetorical.”

However, the Crown barely governed at all during the time between the original settlements in the early 17th century and the movement for independence that began in the 1750s. The colonies essentially governed themselves during this long period of “benign neglect” by Great Britain. “By the time that Great Britain attempted to tighten the administrative screws and raise some money [the stamp tax] after the end of the Seven Years War [in 1765], the barn door had been left open too long,” says White. “The colonists had grown used to the freedom to conduct their affairs economically, and to some extent politically, so this was deeply resented,” all of which ultimately led to war and separation.

Magna Carta Moves Temporarily to the Sidelines

After the Revolution, the new government became hopelessly gridlocked under the ineffective Articles of Confederation. Delegates from the 13 states met at the Philadelphia Convention to repair the Articles. But instead they created a new Constitution, which in manifest ways was fresh legal terrain. The frame of government went beyond anything the barons and King John were trying to accomplish, and they had no models to follow. “We are in a wilderness without a single footstep to guide us,” Madison wrote to Thomas Jefferson. “Our successors will have an easier task.”

“The issue in the 13th century and the 17th century was competing notions of who had what power within an existing government,” says Howard. “Nobody was trying to create a new government. In writing the federal Constitution, Americans were exploring new territory.”

Magna Carta resurfaced after the Philadelphia Convention, says Howard. The convention had rejected the proposal that the Constitution include a Bill of Rights. The Anti-Federalists charged that the federal government would be too powerful and threaten civil liberties. “The Federalists realized that they had a problem on their hands so they made the implicit promise that, if the states would ratify the Constitution, the first Congress would move to add a Bill of Rights.”

The political debate that followed was not about civil rights or civil liberties in the modern sense, according to White. The supporters of the 1789 Constitution realized they needed to sell a document that restricted the power of the states more than ever before.

“The debate about the Constitution is really about whether there should be a unit of government, including a judicial branch, that restrains the power of the state legislatures,” he says. “One of the things they do in the Federalist Papers is create this idea that sovereignty resides in the people, so it’s not a matter of transferring power from one set of elites to another. The people were the ultimate sovereign. But that was a rhetorical strategy, not a representation of the reality of American political culture at the time.”

If the Articles of Confederation did anything, they proved that the new country badly needed a stronger central government. “Madison was absolutely right in his diagnosis of the problem: that the states left to their own devices would be prey to European powers,” says Howard. “We had to have a functional central government.”

But the Anti-Federalists struck the cautionary note about the temptations of power and threat to liberty from a strong central government that still ignites debate today. “This has been a process of confrontation and cross-examination in debates over what’s the right balance,” says Howard. “It tends to swing back and forth, but I find it a fundamentally healthy process that began with the Federalists and Anti-Federalists.”

Only in America

The American contribution to constitutionalism, and what makes it distinctly American, arose from its several generations of colonial self-government in an environment abundant with natural resources and conducive to explosive economic growth.

White doesn’t find any comparable episode in the history of colonialism where a colony is given that much autonomy to regulate itself at the same time that it becomes prosperous. “When the British attempted to reassert authority, they were confronting 200 years of American history that tilted in the direction of autonomy for residents of America,” he says. “The British found themselves up against a powerful and singular historical experience.”

Thomas Jefferson’s copy of Edward Coke’s  The Second Part of the Institutes of the Laws of England at the Library of Congress.

Thomas Jefferson’s copy of Edward Coke’s The Second Part of the Institutes of the Laws of Englandat the Library of Congress.

Moreover, while building the framework of their local governments, the colonial “creole elites” (third- or more generation settler families) had been listening to Lord Coke’s arguments. His foundational set of treatises, Institutes of the Lawes of England, overwhelmingly populated their libraries. They had time to develop powerful legal arguments supporting their cause.

The American innovation that the authority for government flows directly from the people emerged from the structural necessity of the moment. They needed government. It follows naturally that in forming that government the colonists intended to retain their inherent fundamental rights within it.

“One way of understanding American constitutional law is to realize that it flows from a common law tradition,” says Howard. “It’s not simply legislation. It is organic and has deep roots in English and American constitutional history. It evolves. It’s dynamic. It becomes, to borrow a phrase that today is very controversial, a living Constitution.”

The Stamp Act, the first time that Parliament had tried to impose an internal tax in America, outraged the colonists. They fashioned resolutions and tracts and pamphlets, repeatedly invoking Magna Carta. Echoing Coke, they argued that their ancestors had been promised the rights of Englishmen as found in Magna Carta, and that the tax violated its principles. “Magna Carta was front and center in this battle with the Parliament and the Crown,” says Howard.

Coke’s authority, the rhetoric of the creole elites, and the language in the charters themselves ultimately gave rise to the unique American insistence on a written Constitution based on concepts of natural law, common law, and the English constitutional system, sometimes pulling together and at other times apart, and still controversial today.

A “Baffling” Form of Government

It’s difficult to explain American constitutionalism to Europeans, says Howard. “The English don’t understand federalism because the notion that you can have dual sovereignties escapes them. Our mix of practices and ideas is also baffling to many people in other countries.

“American constitutional law has a dialectical quality. It’s a conversation among people, most of whom share some basic assumptions about liberty and freedom and order but have often very conflicting views of how to make it work.”

The American fealty to a written Constitution, partly British and partly American, comes from a long tradition of putting in writing documents reflecting the terms and balance of government power, from Magna Carta through the Petition of Right and the English Bill of Rights to the colonial charters and state constitutions.

“We like to look at a text and say, ‘There’s the answer,’” says Howard. “There’s a certain comfort in the assurance of the written word. But we also carry unwritten ideas about inherent rights, fundamental rights, natural law. We put different labels on them, and a dualism between the written and unwritten continues.”

Further, and particularly in New England, colonial Congregationalists and Presbyterians added to the mix their ideas about covenant theology. Originating in Europe and Scotland, covenant theology was based on a voluntary association between members of a congregation who make a compact between each other and with God. Covenant theology developed its modern form in New England in the 17th century, and the Constitution took on some of its flavor, says Howard.

Visitors tour the Library of Congress new exhibit, Magna Carta: Muse and Mentor, in Washington, D.C.

Visitors tour the Library of Congress new exhibit, Magna Carta: Muse and Mentor, in Washington, D.C.

“I think it helps explains how, when the American Civil War erupted, the North had become committed to the notion of the Constitution as a covenant of the people that you couldn’t rip apart,” says Howard. “In the South, John C. Calhoun’s compact theory claimed that the states had made the Constitution and were free to leave it. These two fundamentally different ways of thinking about the Constitution are highlighted by the religious fervor of the North in the Civil War. Think of the ‘Battle Hymn of the Republic,’ that God was part of this plan.”

“There are many people today who will tell you that the Constitution was divinely inspired; that is distinctively American,” says Howard. “In most parts of the world, constitutions are thought to be useful but certainly not divine. They don’t have the enduring quality that the American Constitution has had.”

Still a Touchstone

Or that Magna Carta still has today. “It would be interesting to do a formal count of how many times Magna Carta has been cited in state and federal opinions,” says Smith. “My guess is hundreds of times. Magna Carta has been referenced as the keystone of the rule of law in many significant opinions in the 21st Century.”

In 2003 Justice O’Connor calculated that the Supreme Court alone had cited Magna Carta 50 times in the past 40 years. In Hamdi v. Rumsfeld, the 2004 case involving the holding of suspected terrorists indefinitely without charge or trial, they would do it again. Justice Souter wrote, in partial concurrence and partial dissent:

‘[W]e are heirs to a tradition voiced 800 years ago by Magna Carta, which on the barons’ insistence, confined executive power by ‘the law of the land.’”

Later in Boumediene v. Bush, another detainee rights case, Justice Kennedy wrote for the majority:

Magna Carta decreed that no man would be imprisoned contrary to the law of the land. Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. [G]radually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.

And he linked it directly to Article I of the U.S. Constitution:

The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.

Aside from the Supreme Court, politicians and activists of all stripes from the earliest days of the Republic to this day, from the right and the left, have used Magna Carta as a tool to support very different understandings of what “liberty” and “freedom” mean.

“Curiously, I think we have made more use of Magna Carta’s legacy and symbolism in this country than they have in England, where it was first written,” says Howard.

Smith agrees. “My sense is that Americans, led by the Founding Fathers may have an even stronger reverence than the British for Magna Carta,” she says. “Our dedication to restrictions on government and protection of individual liberty by law is more a part of our societal structure than in Britain.”

If symbols mean anything, then Magna Carta really does mean more to Americans, and understandably so. The settlers leveraged it to build a working government and the framers to build a republic. So it is fitting that the only monument built at the Magna Carta memorial at Runnymede, a white portico cupola in the meadow by the Thames and a short royal barge trip from London, came courtesy of the American Bar Association in 1957. So happy 800th, Magna Carta. America might have been a very different nation without you.

Top 30 Women Litigators

(Los Angeles Daily Journal)

top30pic.jpg

Six years ago, Suzelle Smith won an automobile rollover case against an undefeated attorney, paving her way to the national ranks of litigators.

In 1985, Suzelle Smith and Don Howarth struck out on their own to form Howarth & Smith, a litigation boutique. Even though Smith was only a second-year associate, she was confident that she could handle her own practice.

"I had shown that I could stand up in the courtroom," Smith says.

At that point in her career, Smith worked on "bet the company" defense litigation. Suzuki was having some problems, and it hired Smith to change its strategy.

"What they needed was a woman first-chair trial lawyer," Smith said.

Smith, 48, also handles plaintiffs’ work. She’s working as lead counsel on the first class action against terrorists and terrorist groups for the Sept. 11 attacks. The case was filed May 9 on behalf of the victims and the decedents’ families. Havlish v. Bin Laden, CV 0035 (D. D.C., filed May 9, 2002). "It’s about war on terrorism and seeing that it never happens again," Smith says.

Women at the Top

(The National Law Journal)

Fifty litigators who succeed in and out of the courthouse

Suzelle M. Smith is a plaintiffs’ attorney who has won substantial settlements and verdicts against the National Football League, Southern California Edison, the city of Irvine, Calif., General Electric Co. and Sears Roebuck & Co. This summer, Smith won a $16.3 million verdict against Cotter Corp. on behalf of 25 plaintiffs who were contending that Cotter’s uranium mill poisoned their community; that judgment was increased to $43.3 million in November, through the addition of prejudgment interest and the cost of medical monitoring. For several years, Smith also represented defendants in high-profile litigations. She has returned to a plaintiffs’-only practice and is currently representing the government of the Marshall Islands in a major lawsuit filed against the tobacco industry that will likely be the first international tobacco case to be tried.

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.

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."

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."

Winning on Appeal

by Lois Romano
(Redbook)

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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."

Hey, Dude. I OBJECT.

By David J. Jefferson
(The Wall Street Journal)

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People who start small law firms also like to do things their way. In Los Angeles, this can take on a California cast. When Don Howarth left a big Los Angeles law firm seven years ago to start up a trial law firm, Howarth & Smith, he brought his surfboard with him. And he wasted no time immersing his staff in California surf culture.

Copies of "Surfer" magazine are strewn about the office, and seascapes painted by Mr. Howarth's wife hang on the walls. Mr. Howarth proudly points out to visitors that the "wave action" in the paintings is technically accurate from a surfer's viewpoint. Mr. Howarth, 45, had a huge saltwater aquarium with a living reef constructed in the office.

In court, the attorney often peppers his closing arguments with surfing metaphors; one recent courtroom speech about a missed opportunity became the tale of "a wave that passed you by," he says. And the firm's 22 lawyers and their spouses attend an annual retreat in Cabo San Lucas, Mexico, where Mr. Howarth arranges group surfing activities and shows beginners how to hang 10. "I tried surfing with him once and I almost got killed," says partner Suzelle Smith.