Copyright 1998 American Lawyer Media, L.P.  

January 30, 1998 Friday


LENGTH: 2195 words

HEADLINE: No time for glory

  1. 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.

  2. 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.

  3. 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.

  4. 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 tobacco.

  5. "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."

  6. 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.

  7. Q: Why don't we start with why you took this case. You've said you turned it down twice.

  8. 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.

  9. The second thing is -- and I told the Legislature this -- the Legislature is owned by the tobacco companies, pure and simple.

  10. 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.

  11. 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 you."

  12. Also, my father died of emphysema.

  13. Q: Were you disappointed when it settled?

  14. A: Of course I was. I was astounded, stunned. But you can't stand in the way of your client settling.

  15. Q: What was your relationship with the governor before all this?

  16. 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."

  17. 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.

  18. Q: So, this hasn't affected your relationship any, I take it.

  19. 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.

  20. 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?

  21. 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.

  22. Q: Do you resent the image that you are taking money away from the state's children?

  23. 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.

  24. Q: You smoked, didn't you?

  25. 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.

  26. Q: What do you think of the other states' settlements, Texas most recently?

  27. 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.

  28. Q: You have a lot of money. Why not just let it go and take what they'll give you?

  29. 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.

  30. Q: But your critics are calling you the poster child for the greedy lawyer.

  31. 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.

  32. Q: You were a corporate lawyer at one time.

  33. 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.

  34. Q: Why was that?

  35. 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.

  36. 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.

  37. Q. So you lost the steady money?

  38. 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.

  39. 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.

  40. Q: You've had your share of big cases, you had Kimberly Bergalis.

  41. 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.

  42. Q: Do you have concerns these disputes are hurting the legal profession?

  43. 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 Legislature.

  44. Q: Do you worry this is what you'll be remembered for?

  45. 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?

  46. 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 something?

  47. 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.'

  48. LOAD-DATE: January 30, 1998

  49. Copyright 1998 LEXIS- NEXIS, a division of Reed Elsevier Inc. All rights reserved.

This is a page in the section entitled Lawyers Make Billions at Expense of Sick and Dying Smokers in the Web site entitled Legal Reform Through Transforming the Discipline of Law into a Science.