By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
Perhaps you remember this cheating scandal.
Three and half years ago, a junior lawyer from Dallas-based Baron & Budd accidentally handed an opposing lawyer an internal memo that appeared to coach clients to lie about central facts in asbestos liability cases.
"With this document, you could almost go down the street, get a homeless person, spend a couple hours with him, and he would be prepared to testify," Eugene Cook, a former Texas Supreme Court justice, said then. Low opinions of lawyers are fueled by these kinds of revelations, Cook testified in San Antonio. "The public thinks, 'The lawyers are doing it again. They're subverting the truth.'"
In Baron & Budd's high-volume legal assembly line, the so-called script memo was used to prepare more than 200 clients in their lawsuits against large manufacturing companies and others that sold or used products containing the cancer-causing substance before it was banned in the 1970s. The 20-page memo instructed these mostly elderly workers never to testify that they saw warning labels on asbestos packages or knew it was dangerous and gave firm directions on how to testify about their exposure to asbestos products in ways to make their cases better.
As a handful of lawyers for those companies pushed in civil courts to investigate the memo and its use, and a judge in Dallas initiated a criminal investigation, firm founder Fred Baron offered a variety of defenses and explanations. The memo was the work of a rogue paralegal and unknown to lawyers at the firm. It was not encouragement to lie because a lawyer has a duty to "refresh" a client's memory. It was a breach of the attorney-client privilege to even question the memo. At one point, the firm offered a legal affidavit concluding that whatever its behavior, it is not against the law in Texas to suborn perjury.
If anything was amiss, and Baron insisted it was not, the combative lawyer assured reporters in early 1998 that he had hired two legal-ethics experts from his alma mater, the University of Texas Law School, to set things right.
Somehow, the ethics team missed visiting Ken Treuter's desk.
For six months, until sometime in August 1998, the former private investigator was one of approximately 400 paralegals and clerks who assist the firm's 70 lawyers in moving tens of thousands of asbestos claims through the courts.
"They had so many of us in there they were setting up card tables," Treuter says of the firm's home office in Oak Lawn. "The printers would be backed up continuously; there were piles of papers stacked up for the data-entry folks."
In his $16-an-hour temp job, Treuter says he was assigned to find witnesses who could support claims by Baron & Budd plaintiffs that they were exposed to asbestos products at various workplaces from the early 1940s until the late 1960s.
The problem was, almost nobody could remember these facts without being told what to say, Treuter recalled in an interview earlier this month. It was his job to get them to name 20 or 30 different products from the multiple companies Baron & Budd would typically sue. (Baron has said the firm keeps a database on what asbestos products were used at various workplaces. The firm urges its clients to remember hazardous products it can prove were used where they worked.)
To find his would-be witnesses, Treuter says he would place ads in newspapers from Seattle to San Diego, which was his assigned region, and ask people to call if they worked at a particular company in the past. The workplaces included construction sites, government buildings, brake shops and lumber mills. He would locate further witnesses from company picnic photos and other enterprising sources.
"Realistically, would you remember the name on a bag of something you opened up 40 years ago?" Treuter asks, explaining the challenge he faced in getting the answers the firm sought.
The men he'd deal with were typically in their 60s or older, with little education and a lifetime of blue-collar work behind them, he says. Treuter, who spent 23 years as a licensed investigator doing street-level criminal investigations, says he used his good ol' boy nature to work his subject with stories of corporate malfeasance or whip up sympathy for victims of asbestos disease. "I'd tell 'em these companies knew this stuff was deadly. Guys would take it home on their clothes for their wives to wash. I'd evangelize."
Treuter says he was pretty good at his job, and he'd usually end up getting many men to say many things they had no idea about before he called. "I'd get 'em to identify every one," he says of his list of 20 or more products. Clerical staff managers and a "product ID" paralegal he worked under taught him his techniques.
"My training was focused on being more aggressive, more convincing, more persuasive and be insistent that they [witnesses] worked with so and so, and they were exposed to so and so," Treuter says.
Truth got lost in the process, he says, and Treuter recalls being uncomfortable from the start with telling witnesses how to testify. "What I was doing was fraudulent. There was never any doubt in my mind about it."