Special Edition: Florida's Cigarette Victory (continued)
Making Big Tobacco Pay the Damages

Assembling Florida's "Dream Team"

Assembling Florida’s “Dream Team” T he Governor assigned the primary responsibility of assembling a trial team to Fred Levin. Fred initially made a few in-state calls to Plaintiffs’ lawyers and was not impressed with the responses he got. None seemed to be interested in making the financial and manpower commitment necessary to take on this Industry. He then turned to his long-time friend, Ron Motley of the Ness, Motley, Loadholdt, Richardson & Poole law firm in Charleston, South Carolina for help. Ron was already pursuing the Tobacco Industry along with Dick Scruggs’ law firm from Pascagoula, Mississippi. Ron and Dick had both been very successful in their career battles against the asbestos industry and had recently turned their attention to the

Tobacco Industry. Ron and Dick said they would consider joining a team of Florida lawyers to pursue Tobacco in Florida, as long as a sufficient number of qualified law firms agreed to participate. He thought that 15 to 20 Florida law firms would be sufficient, along with Ron Motley’s and Dick Scruggs’ law firms. The commitment of Dick and Ron could be the catalyst that would bring a team together.

Initially, Fred identified approximately 40 Florida law firms who were invited to represent the State against the Tobacco Industry. The criteria for the invitation included a successful personal injury practice; financial strength to withstand at least five years of litigation with a minimum of $100,000.00 per year per firm in cost outlay (and much more if enough firms did not sign on); experience pursuing major industries in product liability actions, mass tort, or class action litigation; and an “AV” Martindale Hubbel rating. In order to avoid favoritism, cronyism, or political influence in being chosen as a team member, the Governor required that law firms from each geographic area of the State be invited, and consequently, the initial calls went out to lawyers from all over Florida.

I got the call from Fred Levin in January 1995. I had already heard about the possibility of such a case and trial team effort and was honored to get the call. Fred gave me a synopsis of the proposal and invited me to a meeting and briefing at the Governor’s office. A week or so later when I walked into a high security meeting in the Governor’s main conference room, I found some longtime friends with whom I had litigated cases over the past 15 years. On one hand, I was impressed by the outstanding lawyers who were considering the case, and on the other it struck me that there were not many law firms present. As it turned out, of the 40 or so firms that were invited to the first meeting, less than half were even willing to attend the initial meeting and consider the case on the terms proposed. I could see that the cost of participating was going up fast.

It was at this meeting that the Florida law firms were first briefed on the battle plan. Mississippi’s Attorney General, Mike Moore, was present along with the Ness Motley and Scruggs firms. We learned that Scruggs’ and Motley’s commitments to the Florida case were contingent on a substantial number of Florida firms joining the team.

Since the early 1980s, our law firm and Ness Motley had a history of combining manpower against the forces of evil. I spent a lot of time that day discussing strategy and justification for undertaking this high-risk case with members of that firm. Ron Motley was convinced nicotine was addictive and that the Tobacco Industry had known this fact for years. Likewise, he was certain that the Tobacco Industry knew for years that using tobacco caused lung and other types of cancer. He also believed that the Tobacco Industry had a longstanding plan of marketing to America’s youth and addicting them early in life, thereby creating their own manipulated market. Finally, I learned that Ness Motley had budgeted a significant amount of money to pursue the Tobacco Industry after which it would abandon the case if things were not looking good. Ness Motley had also committed approximately 40 of their own lawyers and staff to the case.

At this point, I had enough information to return to the office and discuss whether or not we were willing to sign on to the case and take the long shot at the Tobacco Industry. The next meeting of the proposed team would be in a week or so in Fort Lauderdale and by that time we should be ready to make a commitment.

I arrived at the meeting in Fort Lauderdale to find that the list of potential participants had dramatically changed. Many of the firms present at the Tallahassee briefing were gone and new ones were there. Fred Levin was having a difficult time convincing firms to even consider the case, much less undertake it. At this meeting were probably 15 Florida law firms represented out of the original 40. Many attorneys expressed skepticism. Some thought the idea was next to insane and, after listening patiently, announced on the spot they would not participate. Others wanted to think about it and discuss it further. There was no way to get commitments from more than five or six Florida firms at this point so another meeting was scheduled.

By the time we arrived at this third meeting, many of us had thoroughly discussed the potential and risks involved in the case together on telephone conferences, and we had at least eight firms, including Fonvielle & Hinkle, committed to the case. By the end of the meeting, we had ten Florida firms committed and at that point we were positive no other Florida firms would participate. Twelve firms, including Ness Motley and Scruggs, were significantly fewer than we had hoped for, which meant workload and expense sharing would increase accordingly. Nonetheless, we decided to go forward. By the time I made the first call as Trial Team treasurer for expense money, the number of Florida firms dropped to nine, for a final total of 11 firms going forward with the case.

Next Our Decision to Participate – A Tough Choice