By Stephen Young
By Stephen Young
By Stephen Young
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
One Baron & Budd client, who asked not to be identified because his case is still pending, says he learned that asbestos was dangerous in 1978 or 1979, when OSHA came out to his workplace. Yet his interrogatory answers, filed by Baron & Budd, contain the standard statement that "Plaintiff learned that asbestos could be harmful to his health through the media."
Likewise, Willie Jean Armstrong of Pleasant Grove, Alabama, the widow of a Baron & Budd client, told the Observer that her husband was warned about the dangers of asbestos at least 10 years before he testified he did. At the time, his company forbade its workers to take their work clothes home to be washed because of the danger from asbestos dust.
"When they first started doing this stuff--telling people there was asbestos at the plant and that it was dangerous--they made them wear protective clothing and wouldn't let them bring their laundry home," she says.
In a deposition taken in November 1995, the man testified he knew nothing of the danger of asbestos until 1992, "[w]hen the doctor told me." A smoker from age 7, he nevertheless insisted that smoking is not dangerous. Indeed, he was perfectly clear about what he believed was killing him:
"I'm mad at the people that produced asbestos-material disease. I'm mad at God. I'm mad at this whole world because I'm not educated on what--on this stuff that's damaged my health."
To tell the truth
While former paralegals and the firm's documents paint one picture, many Baron & Budd clients insist they were not coached to lie.
"They said if you ain't never seen nothing like that, don't tell it," says Roger Freeman of Alabama.
"Some people say, 'They'll put words in your mouth,'" says Julian Roberts of Alabama. "But they never done me like that. It was always, 'Tell the truth, tell the truth.'"
Neither does the firm lack champions among former employees.
"In the time I was there, I don't believe I observed any preparation I would consider improper," says Andy Waters, a former trial lawyer who now has his own asbestos plaintiffs' practice.
"I'd say I was very surprised when [news of the Terrell memo] came out," he says. "I was flabbergasted by the thing. For one, I'd be surprised if more than a third of our clients could even read that thing."
"I wasn't exposed at Baron & Budd to a policy where we told people what to say," says Al Stewart, a former Baron & Budd trial lawyer. "What I saw on TV [about the memo], I thought, 'There is no way anything like that could be going on.' As a matter of fact, my adage before I put them on the stand was, 'Your job is to tell the truth. If you don't remember, say that.'"
"To tell the truth. That is the culture," says Amy Blumenthal, a former deposition lawyer who, like other former Baron & Budd attorneys, still does asbestos plaintiffs' work at a Baron & Budd spin-off. "I was proud to be a part of that culture."
Others are more equivocal. "That [lying or shaping the truth] is something every attorney deals with on an individual basis," says Paul Donsbach, a former Baron & Budd lawyer who now practices in Hawaii and no longer does asbestos work. "I think that is something of a private matter, whether people are going to push the envelope or not."
Baron says that rules governing lawyers make it clear that informing clients about the consequences of their answers is ethical.
"Look," he says. "For instance, you're in an automobile accident. You come in here and say, 'You know what? I ran the red light.' I'm not going to then sit here and say, 'Well, you are going to have to tell them you didn't.'
"But if you come in here and say you were in an automobile accident at an intersection, I'm going to say, 'Now if you tell me you ran the red light, that means you are going to lose your case.' And then wait for your answer."
Baron says this hypothetical is "absolutely, positively" ethical. "And in fact if you read any of the deposition-preparation materials--in fact, if you read the American Law Institute [Restatement on the Law Governing Lawyers]--you have an obligation to do that. You gotta tell the guy, 'discussing the applicability of law to the events in issue.' Absolutely, positively, I have a duty to do that.
"You know, there are probably 350,000 of these [asbestos] cases that have been filed over the last 15 or 20 years. You're asking me to say what we do, which is what everyone else does, and which is the way these cases are handled--and it is the way every product-liability case is handled--is wrong."
Everbody does it
"Context counts, and a lot of ethical things are not bright lines," says Stephen L. Pepper, a University of Denver College of Law professor and a renowned ethics expert.
As Pepper and others point out, there are schools of legal thought that would bless the practices of Baron & Budd.
"You know, it's quite an elaborate conversation you have with a client, to get the facts without encouraging lying," he says. "Knowledge of the law is a two-edged sword. And this is a classic example of it. You can use that knowledge to try to remember truthfully, or, depending on the kind of person you are and your motivation, you can use that knowledge to lie.