Copyright 1998 American Lawyer Media, L.P.
MIAMI DAILY BUSINESS REVIEW
January 30, 1998 Friday
SECTION: Pg. A6
LENGTH: 2195 words
HEADLINE: No time for glory
- Millionaire Palm Beach lawyer Robert M. Montgomery Jr. thought
battling Big Tobacco as the state's lead trial lawyer would be the apex of
a personal injury litigation career that has included representing
Kimberly Bergalis, who died of AIDS contracted from her dentist.
- But instead of basking in glory for helping bring the
cigarette industry to the table for a $ 11.3 billion settlement,
Montgomery, 67, along with four other members of the
trial team, have been slinging it out in court and in Tallahassee over $
2.3 billion in legal fees they insist they're owed.
- Some have called unconscionable the demand that the state honor its
original contingency fee agreement of 25 percent of any award or
settlement. The dissident lawyers who have filed "charging
liens" against the state's windfall also include Fort Lauderdale's
Sheldon Schlesinger, Robert Kerrigan of Pensacola, C. Steven Yerrid of
Tampa and James Nance of Melbourne.
- They've been held up as the epitome of a greedy trial lawyer, tying up
money that the state could use to educate children on the dangers of
- "Instead of the apex, I'm fighting in the sewer with politicians
and tobacco," Montgomery said. Then he smiles. "I'm having the
time of my life."
- Montgomery recently talked about taking on first the tobacco industry,
then his own clients, including Gov. Lawton Chiles, with staff writer
Stephanie Smith. Here is an edited transcript of their conversation.
- Q: Why don't we start with why you took this case. You've said you
turned it down twice.
- A: I sure did. No. 1, the statute. The law took away what is known as
the common law defenses: assumption of the risk, comparative negligence,
the warning labels. You smoke, you die, you know about it. What are you
going to sue? You assumed the risk. Those defenses are the common law
defenses, and I knew the cigarette industry would yell and scream it was a
denial of their constitutional rights.
- The second thing is -- and I told the Legislature this -- the
Legislature is owned by the tobacco companies, pure and simple.
- I knew all this stuff. I told Fred Levin, the Pensacola lawyer who put
together the state's trial team, "Look they're going to vote to
repeal the statute. If they repeal the statute, what have you got? You've
got all this common-law subrogation stuff. I'm just not interested. Also
you're asking me to spend over a million dollars of my own money. More
than a million, probably." I said that's just foolishness.
- That was only about the first week of February 1995. About a week or
two later, he called me back and said, "Look, the governor needs
- Also, my father died of emphysema.
- Q: Were you disappointed when it settled?
- A: Of course I was. I was astounded, stunned. But you can't stand in
the way of your client settling.
- Q: What was your relationship with the governor before all this?
- A: I went to school with him. I was one of his greatest
admirers when he was in Congress, at the Senate. I had contributed to his
campaign. But two years before, longer than that, when Bob Martinez was
governor and running for re-election, Bill Nelson, the secretary of
insurance, was going to run against Martinez. I told Bill I'd help him.
And I did. So when Lawton called me on the telephone and said, "I'm
going to get in this governor's race." I said, "Governor, let me
tell you something. I'm already committed to Bill Nelson. I feel a moral
obligation. I can't leave him."
- I said, "I know you're going to win, and I'll do all I can after
the primary, but I just can't change. I can't leave old Bill." Well
that was it. We never got invited to anything again. I always attributed
it to that particular thing.
- Q: So, this hasn't affected your relationship any, I take it.
- A: Yeah, well, the governor's, quote, mad at me. I don't give a
damn if he's mad at me or not. And the attorney general's mad at me.
Somebody said, "Aren't you intimidated by the fact that you've taken
on the governor and you've taken on the attorney general?" Let me ask
you something. Name me the last four attorneys general. Who were the last
four. Can you name them? Let me ask you where the last four governors are.
Where's Martinez? I don't know what he's doing now. What about Ruben
Askew? I hear he teaches now. Where's, my good friend Claude Kirk? Oh
boy. And you think I'm going to be intimidated by them? Why, you're out
of your mind. I represent the state of Florida, I was asked to do a job.
And I think I acquitted myself very well, as well as other members of the
team. I wouldn't take anything away any one of them, with the exception
of several. I don't like the outside law firms, I call them the asbestos
boys. I think they're driven by the dollar, driven by the settlement.
- Q: Those are the same allegations made against you, that you're driven
by the dollar, but you don't like the other law firms for that?
- A: Sure. I don't like class actions because people ordinarily don't
get anything. I'm a one-on-one person. When an airplane goes down, when
Delta 191 went down, I had four or five of those cases and I tried every
one of them. I didn't try to settle, bunch them up and settle them all at
one time. I help people. I'm an individual's lawyer. When I represent the
state of Florida, I answer to the governor -- and I had a great
relationship with the governor then. I didn't anoint myself lead counsel,
but somebody had to take over. This case had to have some direction. I
exercised my responsibility, much to the dismay of some folks on the team.
- Q: Do you resent the image that you are taking money away from the
- A: Yeah, which is a lie. They went down there
and said we want to pick up $ 57 million and Montgomery -- there was even
a goddamn editorial about it, those sons of bitches, I'm going to sue them
--that I tied up the money. But before the first dollar was turned over by
tobacco, Bob Kerrigan, on behalf of all of us, wrote the attorney general
and said, "Look, you've got $ 750 million dollars , you're not going
spend it all in one year. All we went is $ 187.5 million, 25 percent. Come
down here and pick up your $ 550 million." So yesterday when they
asked the court to release $ 57 million, we opposed them. Why? Don't pick
up $ 57 million. Pick up $ 550 million. Don't give us that malarkey.
- Q: You smoked, didn't you?
- A: Oh yes. From the time I was 14 years old to the time I was 45,
over 30 years. I damn near died from a bleeding ulcer the doctor
attributed to smoking. If I continued to do what I was doing, I'd be dead
and gone today. No question about it. But when I was 14, it was the thing
to do. More doctors smoked Camels than anything else. I was looking at
some of these advertisements today to see what tobacco knew about at the
time, how it pandered to children and continues to pander to children,
giving out T-shirts. When I was in college, they'd give out little
five-packs of cigarettes. Why? To hook you, get you smoking. Boy, we used
to love it.
- Q: What do you think of the other states' settlements, Texas most
- A: Tobacco is buying states. Doesn't anybody understand
that, what they're doing? They bought Florida, bought Mississippi. They
bought Texas. The only one they can't buy right now is Minnesota, thank
God for Hubert Humphrey Jr.
- Q: You have a lot of money. Why not just let it go and take
what they'll give you?
- A: I want to give my own money away. I don't want someone in the
Legislature giving my money away. Why can't I give my own money away? I
earned it. It's my money. You know what $ 25 million will do to all the
art organizations in this community? You want to tell me some dumb
legislator sitting up in Tallahassee should give my money away? You're
crazy as hell. No. Absolutely not. First, it's not right. I didn't take a
vow of poverty when I was sworn in as a lawyer. I'm not a priest. I'm not
a man of the cloth. I didn't choose to go into education. No, I chose to
be a lawyer.
- Q: But your critics are calling you the poster child for the
- A: You know who drives that? Newspapers drive it
because they don't like us because we sue them for libel. Corporate
America doesn't like it because they put vehicles out there that kill
people and we sue them. Also they don't like the use of the contingency
fee contract because under a contingency fee you can make more money than
in an hourly contract. You put more money aside, you can have bank
relations. I go down to the bank and get a line of credit for $ 10
million. So I take on Toyota. I take on General Motors. And I take on
Delta Airlines. I can take on any damn insurance company in the United
States of America 'cause I've got the money to do it.
- Q: You were a corporate lawyer at one time.
- A: Sure. I represented every insurance company in America at one time
or another. You can't name an insurance company I didn't represent.
Banks, railroads and insurance companies. That's what I used to do. I was
the darling of the insurance industry until 1975 when I gave it up.
- Q: Why was that?
- A: Well, the driving force was this case I tried in Stuart where a
child was riding in the back seat of a car, with her family and all. There
were these barricades right out there in the middle of the road, and so
the car came up to the road, hits one of the barricades on the right-hand
front, it went to the back window and knocked the child's head off, brain
damage. I went to Stuart and I tried that lawsuit against a very, very
inept lawyer. I never should have won. I used every tactic I knew. When
that jury came back with a not guilty verdict, turned away that child, I
decided I'm never going to use my talents again to beat people out of
money. I never did.
- Also, all of a sudden, the insurance industry began to change.
They did away with the good claims people who knew what they were doing,
put a good value on the case so you could go down there and settle a case.
And, they substituted the good claims people with the MBA boys, money
pushers. And they started to dictate to me about how I was going to try a
lawsuit, what I could do and what I couldn't do.
- Q. So you lost the steady money?
- A: Oh sure, this contingency -- you not only have to spend your own
money but you're not guaranteed of anything. And certainly the state
didn't guarantee me a damn thing in this case except a hard time. So in
any event I was up there in Tallahassee and they told me, "I was
reading the statute, Mr. Montgomery, and it looked like a slam
dunk." Like I was just going to take a bushel basket and they were
just going to throw money at me. That's what people think I do.
- The insurance companies have drilled the public so far to the right in
personal injury cases that I have a difficult time getting a fair and
impartial jury because they think everybody's faking. They just think I'm
a greedy trial lawyer. They don't know a thing about me, all the
charitable things I do or the pro bono things I do.
- Q: You've had your share of big cases, you had Kimberly Bergalis.
- A: That's right. God bless her. Tears your heart out. I can
hardly even talk about that. I'll tell you something that's very
interesting. When Kimberly and her family came to see me, I believed her.
I believed her when she told me she was a virgin, never used drugs, never
had a blood transfusion. And I took her case, although I knew it was going
to be tough. And I was excoriated by the American Medical Association -- I
was an ambulance chaser. Couldn't happen to a healthy young lady. Nurses,
doctors are exposed all the time. Absolutely not. I was using fear
tactics. All I had to prove was the greater weight of the evidence. Easy,
right? They were saying I was seeking headlines and all this kind of
stuff. Kimberly Bergalis, what can I say? I'll carry that one to my grave.
I loved that child.
- Q: Do you have concerns these disputes are hurting the legal
- A: No. My profession is loaded with people who are spineless, just
like there's no statespersons, statesmen, stateswomen in Congress. You
couldn't get a Marshall Plan passed today if your life depended on it.
This tobacco statute had to be passed in the dark of night. It was a
masterful piece of politics. I tell you this about the governor, that
governor knows how to get things done. Even though I'm disappointed that
he's taken the position that he has, I have a great admiration. You
couldn't get that statute passed more than the man on the moon. They're
talking about "Oh, it was passed in the dark of night. We need the
sunshine." Shoot, if that door had been open one crack, if there was
any light on that, look what happened. The repeal. Tobacco owns the
- Q: Do you worry this is what you'll be remembered for?
- A: I hope I'm remembered for that. A contract is a contract. When
did the contract become unconscionable? When I told the governor not to
settle for $ 6 billion, putting my backside on the line together with
Schlesinger, with Kerrigan. When did it become unconscionable?
- If it was unconscionable, why didn't the attorney general sitting
there when I was asking the jury to return a verdict of $ 12.3 billion say
- GRAPHIC: Photo, FRIENDS IN HIGH PLACES: Robert M. Montgomery, Jr.,
who battled Big Tobacco as the state's lead trial lawyer, says the
industry had a strong ally in Tallahassee. 'The Legislature is owned by
the tobacco companies, pure and simple.'
- LOAD-DATE: January 30, 1998
- Copyright 1998 LEXIS- NEXIS, a division of Reed Elsevier Inc. All
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