Saturday, April 21, 2007

Notes from RodgersFest

I'm sitting in on much of a two-day conference here at the UW: Of Salmon, the Sound, and the Shifting Sands of Environmental Law — A National Perspective. It honors "the first forty years" of Bill Rodgers's teaching career and presents an all-star cast of environmental lawyers, law professors, and others (e.g., a geomorphologist who spoke yesterday afternoon). We've heard a number of great anecdotes along with fascinating substance.

Classic Cross Examination

Prof. Rodgers is an accomplished academic: a prolific writer and beloved teacher. But he's also been involved in significant litigation. Hence the link to trial practice. Yesterday he recounted his greatest cross examination. It was in phase two of United States v. Washington, the huge case about Indian fishing rights that has been ongoing for over thirty years. At one point, the state was arguing that "fish" in the Indian treaties did not encompass hatchery salmon. Rodgers was questioning a state witness (perhaps from the late Department of Game):

Rodgers: Does it have scales?
Witness: Yes.
Rodgers: Does it swim?
Witness: Yes.
Rodgers: Does it live in the water?
Witness: Yes.
Rodgers: Is it referred to as a "fish"?
Witness: Yes.
Rodgers: 'Nuff said.

Products Liability Litigation for the Environment

Yesterday I was impressed by "The Common Law Will Never Move -- Except Where It Pinches Too Tightly," by Michael Axline of Miller Axline & Sawyer, Sacramento. (There's a profile of Axline on the U.S. board page for E-LAW, the Environmental Law Alliance Worldwide.)

Axline began by observing that the common-law cause of action that has traditionally been used by environmentalists, but he thinks has products liability has great promise.

Axline's clients include big water companies who supply water to all of us. Traditionally, they have passed the costs of treating water on to consumers in their rates, but lately they have been trying to recoup some of those costs from the corporations whose products make extra treatment necessary. For example,
  • Jury says chemical firms owe city $175 million, S.F. Chronicle, June 15, 2006:
    A jury has hit two chemical companies with $175 million in punitive damages for failing to warn dry cleaners about the dangers of a solvent that contaminated underground water in the city of Modesto.
    Some litigation notes from Axline:
    • In preparation for what was expected to be a very long, complex trial, they began with a jury pool of 1,000 to get 12 jurors and 12 alternates. The joint juror questionnaire included
      • What is the pollution problem that most concerns you in 2006?
      • Have you, a family member or someone close to you ever had any problems with any kind of pollution?
      • How important is a clean environment to you?
      Out of 1,000 questionnaires, only about 50 weren't favorable to the the plaintiffs' side.
    • The jury returned a special verdict form finding the defendants liable on count after count after count. After that, the defendant chemical companies still refused to settle. And then the jury was asked to come back with dollar amounts -- and returned a very big verdict.
  • 2 oil giants deceived public on MTBE's hazards, jury finds, S.F. Chronicle, April 17, 2002:
    In a landmark case, a San Francisco jury has found that gasoline with the additive MTBE is a defective product and that two major oil companies were aware of the chemical's dangers but withheld the information when they put it on the market.

    The Superior Court jury made its finding in a product liability case brought by the South Tahoe Public Utility District over contamination of the district's groundwater. The district sued in 1998 after MTBE pollution forced it to close a third of its drinking water wells.

    In its verdict Monday, the jury said Shell Oil Co., Lyondell Chemical Co. (formerly Atlantic Richfield Chemical Co.) and Tosco Corp. (now part of Phillips Petroleum) had placed a defective product on the market when they began selling gasoline with MTBE, or methyl tertiary butyl ether.
    Discussing this case, Axline showed us PowerPoint slides of documents he used to show the companies' awareness of the risks, going back years before the companies publicly acknowledged any problem. Because of the lawyers' able work in discovery and in presenting that evidence, the jury even found that the companies acted with malice.
Axline also discussed a pending case in Los Angeles Superior Court in which Nicaraguan workers are suing over a pesticide that caused sterility in men who worked in banana plantations. One defendant (Amvac Chemical Corp.) settled with 13 workers for this week. Pesticide company settles sterility suit for $300,000, L.A. Times, April 16, 2007. Dow Chemical Co. (who, with Amvac, manufactured the pesticide) and Dole Fruit Co. (who used the pesticide) remain in the case, which is scheduled to go to trial next month. They deny that the pesticide harmed the workers. Again, Axline has some telling documents from discovery. We'll have to watch to see what the jury makes of the evidence.

More Cross Examination

Just now another speaker shared a story about cross examination. When James P. (Bud) Walsh was a student (he has both a JD and an LL.M. in Law and Marine Affairs from the UW), Bill Rodgers took him along to an administrative hearing (the state air pollution control board) about the Asarco smelter in Tacoma. With little or no warning, Rodgers told Walsh to handle the cross examination -- he had to leave to go teach a class. Walsh at that point did not know the first thing about cross examination or evidence. But Rodgers had left him with a pile of documents (obtained via Ralph Nader) showing that the company's plan to deal with its pollution by building its smokestack higher would not be effective. So Walsh went through the pile, asking the witness, "What about this? What about this?" The attorneys for the company -- in from a big firm in DC -- were objecting right and left. "No foundation!" "Inadmissible!" After the documents were all on the table, the administrative law judge sort of shrugged . . . and said he'd allow them all! It worked out for the student in this case, but I bet most students would agree that they skills training in Trial Ad and clinics is better than "sink or swim!"

Career Advice and an International View

One of the last speakers was John Bonine (professor at the University of Oregon and the cofounder of its environmental law clinic, the first in the nation). His topic was "Public Interest Litigation: The Hope, the Reality, The Future."

He estimated the numbers of environmental lawyers for corporations (70,000, I think), for federal, state, and local government (2-3,000), and for public interest groups (750, as I recall). (Alas, I was without notetaking tools at the time.) He said that for a long time he was "credentialist" -- telling his students who wanted to practice public interest environmental law that they really needed to get good grades, be on law review, etc., so they could get one of the scarce jobs at the Environmental Defense Fund, EarthJustice, or another public interest group.

But now he thinks that that isn't the best advice. After all, if any one student gets that rare job, all it means is that another student doesn't get it -- it doesn't mean there are any more lawyers out there fighting the good fight. Now he's excited by the possibilities of "private public interest practice," often possible for lawyers in solo or small firm practice. For instance, one lawyer wrote to him that he wasn't able to take on pro bono environmental cases when he was at a large law firm, because there were inevitably conflicts with other clients, but now that he's in an antitrust boutique firm, he can. Other lawyers might be able to do their pro bono work because their other clients -- employment discrimination plaintiffs, criminal defendants, or accident victims -- are not the sort that will pose any conflict of interest when the lawyer represents plaintiffs suing, say, a mining company.

The commenters were Karl Forsgaard, now with the Washington Forest Law Center but for many years in private practice, and Rachael Paschal Osborne, with the Center for Environmental Law and Policy. When Forsgaard was at a big firm, he was able to take on pro bono work because of the prospect of fee recovery under the federal Equal Access to Justice Act. The cases he was most involved with involved keeping all-terrain vehicles out of wilderness areas. Not only did the cases not pose conflict of interest problems, but they also didn't interfere with "client relations." The firm represented timber companies, but it turned out that they were also opposed to the all-terrain vehicle uses. Forsgaard left the firm to be in-house counsel (for the company that makes Sonicare toothbrushes). Because of time constraints, he limited his pro bono work to recruiting other lawyers to take on cases. Later, he was in solo practice, working out of his home (using our law library by the way -- a law library open to the public is a good resource!) and was able to support himself with the cases that were elible for fee recovery. Paschal is in a tougher position, since her litigation focuses on water law, where there are not attorneys fee statutes, but her small organization manages to stay afloat.

I really enjoyed a short video clip that Bonine showed, illustrating that the U.S. doesn't have a monopoly on public interest lawyers. Environmental lawyers from Papua New Guinea, Israel, the Philippines, and Jamaica -- all women, by the way -- showed tremendous passion and commitment in speaking of their work. At least two of them spoke of their economic sacrifices in their chosen field -- and said that they were more than compensated by being able to sleep at night and knowing that they were working for what really mattered to them.

I believe they were interviewed last month at the Public Interest Environmental Law Conference in Oregon. Bonine also spoke of this conference as an example of the amazing things law students are doing. This was the 25th annual conference and from the program it looks amazing. It brought in people from indigenous communities and less developed nations -- and took care to include on the last page of the program some "Guidelines for Cross-Cultural Communication."

Rodgers photo from conference webpage. Faucet photo from the EPA. Asarco smelter smokestack photo from Washington Department of Ecology.

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