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