Justice, What a Concept or Growing Up is Hard to Do!

Over the ensuing years I settled into the mind-numbing reality of life as an attorney. By normal, and by that I mean middle class American standards, I was a great success. But something wasn’t right. As the long hours piled up I was becoming increasingly gloomy when not around friends. For one, I was less and less convinced that one could have much impact on the world practicing law. 

I was working for the “good guys.” We had cases against Exxon, Ford, A.H. Robbins, Union Carbide, Dow, and Dupont, among others. If ever it was possible to “speak truth to power,” the guys I was working for were bringing it. They rarely lost. They made headlines and the partners made money - lots of it - but I came to understand a certain reality that had escaped me before. To the mighty corporations we were suing, we were just a cost of doing business. Public interest firms were no more than flies on the butt of a bull elephant. If my career goal was in some small way to result in a public good, then doing it case by case through the courts was unlikely to have much impact. The reform agenda resulting in passage of monumental changes to American society brought about by the Civil Rights Act, The Voting Rights Act, National Environmental Protection Act, Clean Air and Water Acts, and so many more, was already on life support as the country took a sharp turn rightward in the 1980s.

More power and money was quietly being redirected into fewer and fewer pockets, and the vast majority of the public seemed ok with it. When the partners exacted a $23 million verdict from a jury against a petro-chemical giant for willfully discharging carcinogens into the municipal water supply of a predominantly African American community, the smug guys in the thousand-dollar suits barely blinked. Leaving the courtroom after the verdict was read, they approached my boss with a settlement offer. Four million in thirty days in settlement of all claims, or they would see us in the Supreme Court in ten years - when “most of your clients will likely be dead.” Our clients, desperate to pay off mounting hospital bills, took the offer. And since there would be no appeal, there would be no written record as precedent. 

What started rattling my brain, however, were the numbers. Even the $23 million was inconsequential. In a single quarter that year, the defendant earned over $1.5 billion in profits. That is a billion with a ’b!’ To the men with gangrene hearts and rotted brains in the C-suites of these billion-dollar enterprises, verdicts in the millions were chump change, barely impacting the bottom line. This approach certainly was not going to lead to a healthier life for impacted communities, nor permanent changes in miscreant behavior. The money was just too good!

In another case, the firm represented twenty-three women, none older than thirty-five, against the manufacturer of a defective birth control device. To be clear, we represented eight live sterile women and the estates of fifteen deceased as a result of the improper design of the product. Through discovery, the firm had uncovered a memo by the company’s chief physician warning of the defect. The company’s accounting department did a cost-benefit analysis comparing the costs to recall and fix the defect to expected legal payouts, and determined it was better for the bottom line to continue selling the product. The analysis even estimated potential deaths! 

On the eve of trial, a fairly substantial settlement was offered, to be divided among the twenty-three plaintiffs. The quid pro quo was that our firm would be required to turn over all discovery and sign a gag order which would prohibit disclosure of the document to the press or other attorneys under punishment of contempt of court. My boss grudgingly presented the offer to the clients who, under great stress and still recovering from tragedy while facing a years long appellate battle, reluctantly accepted. 

The company continued selling the ticking time bombs in developing world nations for five more years until finally stopped by the Food and Drug Administration. Cal told me that not even the gods could guess at the numbers of dead and sterile women throughout Africa and South America that resulted from this miscarriage of justice. 

Seventy-hour weeks piled upon seventy hour weeks. I was increasingly miserable. Cal was of little help as she had an agenda of her own. After a particularly grueling week I came home exhausted with Sarah out and Cal in her doghouse having a “private conversation,” with her supposedly heavenly friends. When she finished and found me barely cogent on the couch in our small Oakland apartment, she first let out a yip and then pawed at me, before growling in her best cranky New York septuagenarian voice, “I wanna go down to the Lake for a walk, now!”

I barely moved but mustered what little energy I had to weakly protest, “I am too damn tired. If you wanna go to the lake, go walk yourself. You know the way. Don’t let the door hit you on your way out.” She was not taking no for an answer. She came over to the couch, grabbed the pants leg of the baggy old gray sweats I had thrown on, and started tugging. When that failed to budge me, she stepped back and started barking loudly. 

“Quiet,” I said.” But she was having none of it. 

“What is your problem?’ she barked. “You have a great job. Every one of your friends would sever a limb to have your gig. Your parents are proud. Sarah is a little lonely but supports what you are doing. Instead of reveling in your success, you are lying around whining - “ooo, I’m not making a difference. I’m just a cost of doing business. I have no time to go rafting or take pictures. I had to quit softball because I missed too many games. I’m not fulfilled. I’m not happy!”

“Who the fuck told you life would be easy you spoiled little prick! You wanna hear about troubles? You wanna hear about my Amazon friends...All long dead. My Yakut friends...Extinct! The Aztecs....GONE!”

“I am sooo over your whimpering and whining! Maybe I was wrong. You are not strong enough to do what I need. I should just go down to Lake Merritt and find someone else to help me. I am certain SOMEONE down there will not ignore a talking fucking dog! This is the San Francisco Bay Area for heaven’s sake. I could probably stand on the damn stage in the children’s zoo, recite the Gettysburg address in Latin and no one would even find it strange! Now get the fuck up and take me for a walk you mewling, sniveling malcontent!

She had a point. I did as I was told and took her for a walk. However, right there it hit me. I needed an out. This path was not for me, no matter how successful it might look to others. If this was how I felt as I was approaching 30, what would the next 30 years bring? I needed a plan, though frankly I did not yet have one. 

Other associates were hired, but the workload only increased as the firm’s reputation grew. Cases came in from all over the country, Baltimore, Jacksonville, Los Angeles, North Carolina, and Texas. Another day, another case. Depositions piled upon depositions. I discovered that a Holiday Inn in Baltimore looked eerily similar to a Marriott in Houston. There were mornings I would awaken, gaze around the room, and truly have no clue what city I was in. 

My friends, most struggling to find some meaning in their fledgling legal careers, were envious in a positive way. I was continually receiving positive feedback, telling me how lucky I was to work for such talented lawyers, and that my career was on a speeding funicular to the top of the legal mountain where untold riches would await. 

My parents were thrilled. “My son the lawyer or doctor” is the dream of every Jewish mother. Some would argue that the reason most Jews are strongly supportive of reproductive freedom for women is that they believe abortion should be legal up until fetal viability - which occurs when said child receives their medical or legal degree!

It all came to a head as I approached my thirtieth birthday in the year 1985. I was working on a design defect liability case in Port Hueneme, in SoCal, which was on its surface a fairly straightforward affair. The firm had two clients, brothers BIlly Frank and LaVerne Duke, both country boys in their early twenties who worked on a barge anchored in the harbor. Each morning the two barge workers and a third, who was also their roommate at the Motel 6 where the company put them up, would arrive early and fire up the old boiler thirty minutes before the crane operator arrived. On this particular chilly December morning they could not get the boiler lit, and while they assiduously attempted, following all instructions in the maintenance and operations manual, to get it going, the boiler box flashed back, leaving them with second and third degree burns over much of their bodies. This, at least, was their story. 

Their medical bills and some portion of their wages were covered under workers' compensation laws that prohibited suits for damages against the company. What it did not preclude was liability suits against both the manufacturer of the allegedly defective boiler and the engineering firm that provided regular maintenance. These were the defendants in the suit.

Discovery went fairly smoothly at first, with experts hired by the firm laying out defects in both the boiler design and the maintenance schedule. The case against the boiler manufacturer was the weaker of the two, as the boiler in question was over forty years old. Doctors provided testimony as to the severity of the injuries suffered and the permanent disabilities sustained. A forensic economist testified as to future wages lost and employment that would be foregone. 

All was looking rosy until the company found and noticed for deposition a new witness. Theotis Brown was the third member of the crew that December morning, and he was with the boys in the boiler room when the explosion occurred. Going into Mr. Brown’s deposition we had valued the case at around $300,000 for each of the defendants, though as is usual in these cases we had sued for millions, hoping to get to a sympathetic jury. $300,000 was not earth shattering, but sufficient for each of the boys to buy a semi and open a trucking business, one of the jobs the disability employment counselor who had previously testified indicated would fit workers with their level of disability and education. 

Mr. Brown’s testimony, however, would prove problematic and seriously reduce the value of the case. He had disappeared shortly after the accident, only to be found months later by company investigators, living in a trailer deep in the Mojave desert. He was off the grid, so to speak. He had to be coerced to come to Los Angeles for his deposition, but, under threat of contempt, eventually relented. Brown was an African American country boy from west Texas. He had a small criminal record and had been dishonorably discharged from the Marines for alcoholism after honorable service in ‘Nam. 

I grilled my clients as to what Brown might say, but they insisted that they were all friends and roommates, and I should not worry too much. This would turn out to be the first but definitely not the last time that Billy Frank and LaVerne were less than one hundred percent truthful regarding what actually happened that morning. 

On direct examination, when questioned by the defendant's attorneys, Theotis dropped a bombshell. He had witnessed the brothers’ increasing frustration when the pilot light kept fizzling out, “And then Billy Frank went into the equipment cabinet next to the boiler and took out a can of Varsol. Billy handed it to LaVerne. Ah told them not to get that stuff near the pilot flame, but LaVerne splashed it all over the open box and the thang near exploded.” Mr. Brown testified.

The defendant's counsel completed their questions before lunch. I discovered that Varsol was a highly volatile solvent used for paint thinning. The case was in trouble, so I called Oakland to get directions. The best advice Luxemburg could offer was to take on the credibility of the witness on cross examination, and that was what I did - and did well. 

Despite strenuous objections as to relevance by counsel, I took Brown down point by point over four excruciating hours. I delved into his dishonorable discharge, the fight he had with his white C.O., his alcoholism, his failure to pay child support, and a description of the decrepit single wide trailer that Brown called home due to lack of money. I insinuated that Brown needed cash and was thus lying for the company and asked if Brown held white people accountable for his discharge. I used every trick that Luxemburg and numerous trial classrooms taught. When I was done, Brown was nearly in tears, and his testimony was not worth the paper it had been transcribed on. 

I was satisfied with the job I had done, knowing I had saved the case. The evil corporation that had drummed up this obviously perjured testimony had been crushed. But there was one nagging question that remained: why had Brown done it? We had no proof of any payment, and the company vehemently rejected the accusation. 

Most critically to the “good guy” image of the white knight coming to the aid of the powerless worker that I still clung to was an exchange I had with Brown as Brown got up to leave. Walking directly over to me, jet black skin now glistening, this ex-Marine who had remained saturnine during my relentless questioning now had tears pouring down his cheeks - I could not be sure whether they were tears of rage or contempt - and he nearly spat under his breath, “ahh do not care wat kand of dirty lawyah tricks you be playin, Ah be tellin’ the truth!”

As it happens, the day of that deposition was also the day of my thirtieth birthday. Very pleased with the job I had done, I was walking on the beach adjacent to the Santa Monica pier when the call came from opposing counsel, offering $325,000 each to settle all claims. Billy Frank and LaVerne happily accepted when I relayed the offer, and with that I went to a local bar and enjoyed more than one George Dickel and ginger, having just earned the firm over $200,000, as well as a nice bonus for myself. 

Three weeks later, when Billy Frank, LaVerne, and their girlfriends came to Oakland to sign the final paperwork and pick up their settlement checks, having already put deposits on some very fancy big rigs, my sense of right and wrong wobbled noticeably and my nagging doubt came to fruition. After introductions and niceties, the papers were signed and the checks cut, I made the mistake of asking Billy Frank the question I had not been able to answer. With the picture of the defeated, teared up ex-Marine still there in the back of my exhausted brain, I asked, “Why did Theotis lie? He was your friend, and there was no evidence of any improper payments,” despite what I had alleged and still believed true. 

Billy Frank turned slowly, smiled his rotten tooth, tobacco-stained grin, and said almost proudly, “He waren’t lyin’, he were tellin’ the truth.” And with that, the four of them nearly skipped out of the office.

I was facing an existential crisis, but in trying to sort out my thoughts as my now former clients sauntered forth into the Bay Area night with their newfound wealth, I had no time to come to grips with my emotions. In my inbox, a memo greeted me describing a case in south Texas. I snatched open the travel agency envelope and found an itinerary for a flight to Houston first thing in the morning. This was potentially serious trouble. Sarah had been especially stressed lately, and if I were to cancel the weekend for work there was no telling how she would react. I walked down to Luxemburg’s office to see if the trip could be delayed until Monday.

Luxemburg, as intense an individual as I had ever met, still somehow managed a seemingly happy family life. I looked up to him for his passion, his sense of right and wrong, his incredible skills in front of a jury, and his ability to balance the intensely long hours with a young family. He had a lovely wife who understood she had married into the life of a trial lawyer and accepted what came with it, the good as well as the bad. 

Luxemburg had two young boys who clearly adored their dad, and regularly came by the office on Sundays - often the only time they could see him. I could never get out of my mind the Sunday afternoon ritual of Luxemburg slowly dragging the boys, one attached to each leg, towards the large double entry doors, his wife Margaret on one arm as he ushered his family out so he could get back to work. There was much love in that family, but the nagging feeling would not leave me that this was not the future I wanted if I ever had children. It reminded me too much of my own childhood, where dad worked long hours and I often joked that dad and I were introduced the day I left for college at eighteen. What was the point of kids if you never saw them and missed their childhood?

The case was in Victorville, 125 miles southwest of Houston in the middle of East Bumblefuck, Texas. I rented your standard issue sedan at Houston Hobby and, after grinding through the traffic in the endless sprawl of exurban Houston, made my way down Texas 59, arriving at the Holiday Inn in Victorville with just enough time to grab a shower and make my way to the Motel where I was to meet the potential clients. 

It was a gruesome case. Dunkirk LLC, a major international arms and petrochemical giant, was decommissioning an old smelter stack at their plant on the outskirts of town. Last July, they had hired a small, family-run toxic removal outfit based in Brownsville, to deconstruct the brick smokestacks. In the 100-degree heat of a sweltering south Texas summer, the crew was tethered to the stacks high above the ground when two of the workers became dizzy and disoriented and tumbled inside, dangling limp on their harnesses. 

By the time the paramedics arrived thirty minutes later both were unresponsive and were pronounced dead on the way to the hospital. Their employer, devastated by the deaths of the two men, paid out the paltry workers’ comp death benefits without incident, and then contacted Luxemburg concerning a possible negligence action against Dunkirk. 

I was meeting with several of the remaining workers, brothers Jose and Enrique Gonzalez, and the wives of the two dead men at a Motel 6 just outside of town. By the time I had arrived, the two young widows, infants bouncing gently on each of their knees, toddlers at their feet, had already determined they were in. I did not have much convincing to do, and after a few niceties the retainer contracts were signed, after which, Jose, Enrique, and I headed out to the plant to get a look. 

We all piled into an old Econovan and rode the several miles to the facility. You could have located the plant from outer space. Massive industrial flood lights illuminated the grounds and lit the dark night sky for miles with an eerie yellow, post-apocalyptic glow. As we approached, I was startled by an intermittent sonic boom that my companions did not even seem to notice. A quarter mile away, the source of the blasts was quickly apparent. The plant was surrounded by retainer ponds shimmering in a thousand colors mother nature had never intended: sepia and butterscotch, amber, ruby, magenta, plum, and cobalt, with some emerald and umber thrown in for good measure. It was as if the Gods had been on a month-long bummer of an acid trip when this deathscape was created.

Littering the ground in this industrial-age chemical stew were what seemed to be hundreds of dead and struggling birds, some still in their death throes, beating their wings pathetically as they flopped around in the toxic wasteland. Pigeons, bluebirds, gulls, and numerous others I could not identify, plus buzzards that had come to feed on the dead and dying fowl. The sonic booms were being set off by numerous air cannons, placed around the grounds in a clearly unsuccessful attempt to keep the feathered creatures at bay. 

I was carrying hazmat containers, in which I placed several of the dead birds for shipment to labs at Berkeley. At that point a Dunkirk security vehicle came rushing from inside the walls, screeching to a halt only a few feet from where we were standing. The heavy mall cop jumped from his green Yugo with “SECURITY,” hand lettered on the side. His name tag, also hand lettered, identified him as Plant Security Officer Johnson. Agitated and out of breath, and with a hand on his holstered handgun, “Officer” Johnson demanded to see what I had sealed inside the clearly labeled hazmat bag. 

Tired and wanting to get away from the pestilential Martian landscape as quickly as possible, I told him it was none of his damn business and started to climb inside the van. Security Officer Johnson placed a fat hand on my shoulder and actually withdrew the weapon from his belt, ordering me to halt. I turned just in time to see the Gonzalez brothers emerge from the passenger side of the van with guns drawn and pointed at the now-shaking officer of Dunkirk law. 

Jose spoke calmly. “Jim Bob, you’re really not gonna shoot our lawyer over a couple of birds, are you?” Jim Bob hemmed and hawed obsequiously, but slowly, not taking his eyes from the brothers, holstered his gun, and only stopped trembling when Jose and Enrique did the same. Jim Bob pleaded with my Brownsville outlaws that his orders were to let no one near the ponds. 

In response, Jose spit a long stream of Redman on the obese mall cop’s weathered work boots, and said, doing his best impression of Cool Hand Luke, “Shit, Jim Bob, what we have here is a failure to communicate. We’re taking these birds to a lab to see if they can help determine why our friends died in this hellhole of a town.” 

Enrique then asked, “While it is your job workin for these sumbitches, I ask you, is that measly paycheck worth dyin’ for? ‘Cause if you try to get those birds, I swear to God I’ll blow your fuckin head all the way to San Antone!” 

With that, the three of us climbed back into the van and drove away, leaving Jim Bob jabbering something unintelligible into his walkie talkie. I dropped the brothers at the Motel 6 and slowly drove back to the Holiday Inn for a restless night. 

The next morning, I was due early at an air force base in Apisville, another hour south on Highway 59, to interview the Air Force doctor who had performed the autopsy. I dragged myself down to the hotel restaurant, filled my plate at the buffet, and began slowly sipping my coffee, mind completely blank, when my few moments of calm were suddenly interrupted by the unmistakable sound of cowboy boots clicking loudly on the glazed, faux-Mexican tile flooring.

Standing over me on the other side of the small two-seater was a tall Texas Ranger wearing a white Stetson with a rodeo brim, a leather band decorated with lone star conchos, and a three-piece buckle set. He was lean with weathered skin, as bronzed as a cigar store Indian, and a cast iron jaw. I could not see his eyes behind the mirrored glasses. When I tried to stand, the Ranger gently but firmly held me in my seat. 

Half-smiling, he introduced himself as Sergeant Austin Travis of the Texas Rangers, and without waiting for an invite pulled out the chair opposite, turned it around, sat, and leaned forward across the small table. Still with the same inscrutable smile, he reached across and helped himself to a piece of toast on my plate. 

“Mind if I ask you a few questions, Counselor Cooper?” He softly and now menacingly drawled. If he did not have my full attention before, he certainly did now. I had not been asked nor provided a name. Without waiting for an answer, Sergeant Travis began his questions, firing them rapidly and not waiting for a reply.

“Did you enjoy your flight from San Francisco yesterday on Delta 327?” Followed by, “That blue Chevy you are driving, license plate Louisiana RTX 475, how is it handling?” And “Did the Gonzalez brothers and those two grieving widows show you some good Texas hospitality last night at the Motel 6?” 

He paused for a moment, and then said, “I hope that van didn’t break down on the road back from the plant. You know if they’re not well-maintained, sometimes they can end up in bad accidents. The engines in those old Econovans have even been known to explode in this oppressive heat.” Another pause. “Those birds you collected and sent to C A L I ForNIA, you don’t think they’re going to incriminate Dunkirk, the biggest employer in this part of Texas, do you?” 

With that, he rose up from the chair, pushed himself to his full six-foot-five height, and took a couple steps toward the exit. But then he stopped, loudly clicked his heels, doing his best SS impression, and moved back directly over me and leaned over so only I could hear, “I do hope you find it in yourself to forego your trip to Apisville this morning to talk to that Air Force doc and head back to California, ASAP. There’s a 2:30 flight out of Hobby that if you hurry you can catch. Enjoy your stay in Victorville, and for your sake, I would highly recommend you not show your sorry Yankee ass here again.” Smiling, he stood up, tipped his hat, and exited the restaurant with his boots clicking loudly on the floor. 

It was the most threatening conversation I had ever been a part of. I played it over and over in my head, but however I reconstructed it, it still transpired like a malarial dream. I began packing for the drive to Apisville, but stopped suddenly and plopped myself on the bed, my head now throbbing with neuralgic strategic dread. 

When I stopped shaking, I paid the tab and put in a call to Luxemburg. The Karen Silkwood case, in which a whistleblower at a nuclear plant in Oklahoma had died mysteriously in a car accident on a rural road, had been all over the news. There was nothing on the highway between Victorville and Apisville, and I was terrified. I relayed the conversation and Luxemburg agreed it was best for me to take the deputy’s advice and head home. 

A week later the tests on the birds came back, as well as the autopsies. It turned out that the stacks had been used to smelt cyanide. The heat had volatilized the ambient cyanide, overcoming the two deconstruction workers. The birds had been exposed to a laundry list of carcinogens, mutagens, and teratogens. Victorville was a company town basically owned by Dunkirk, a point Luxemburg made when he motioned to have the case removed to Federal Court in Austin, where it still languished when I left the firm a year later.