Baron & Budd asbestos memo
Encyclopedia
The Baron & Budd asbestos memo is a memo in asbestos
litigation where it is alleged a prominent plaintiffs' firm engaged in subornation of perjury
and a cover-up. The Texas State Bar Association grievance committee dismissed complaints regarding the memo. It is cited by United States civil justice reformers
and politicians as an example of ethical problems in the plaintiffs' bar. Accusations about the memo have also arisen in the context of Fred Baron's relationship with former presidential candidate John Edwards
.
accidentally produced to the defense counsel a twenty-page memo titled "Preparing for Your Deposition." Republican Senator Jon Kyl
, a tort reform advocate, called the memo a "a startling insight into how asbestos claims are created"; in a Senate Report, Kyl writes that the memo:
Clients were also instructed by the memo to deny that they ever saw warning labels on product packages. The memo was so detailed and comprehensive that Eugene Cook, a former Texas Supreme Court
Justice, said at the time, "With this document, you could almost go down the street, get a homeless person, spend a couple of hours with him, and he would be prepared to testify."
has called the memo "subornation of perjury
." Others argue that it is merely "zealous representation."
conducted an investigation into the memo and found that "a number of former Baron & Budd employees say that the information and techniques contained in the memo are widely used, even taught to employees" and that the "memo was not truly an aberration, but a written example of how the product-identification staff works at Baron & Budd."
made political contributions to the Congressional campaign of the U.S. Attorney's wife, Regina Montoya
, and Paul Coggins recused himself from the case as a result; the Dallas Observer quotes critics who say that the Democratic administration soft-pedaled the case, which was never investigated. Judge Marshall had been re-elected twice without opposition in 1992 and 1996, but in 2000, Baron & Budd successfully targeted Judge Marshall for defeat; the Dallas Observer reports a lawyer close to the case saying that "No judge in Dallas will cross Baron & Budd after what happened in that election. They are scared to death." Local Texas judges blocked civil discovery into the production and use of the memo. Attorneys for private clients who attempted to investigate the memo found that both they and their clients were targeted heavily by Baron & Budd. The defendants agreed to replace the attorneys who had investigated Baron & Budd with new attorneys who would not pursue the matter further. And the Dallas Observer reported that the firm responded to its reporting with "a pattern of intimidation and paranoia such as the Observer has never seen before."
Asbestos
Asbestos is a set of six naturally occurring silicate minerals used commercially for their desirable physical properties. They all have in common their eponymous, asbestiform habit: long, thin fibrous crystals...
litigation where it is alleged a prominent plaintiffs' firm engaged in subornation of perjury
Subornation of perjury
The legal term subornation of perjury describes the crime of persuading a person to commit perjury; and also describes the circumstance wherein an attorney causes or allows another party to lie...
and a cover-up. The Texas State Bar Association grievance committee dismissed complaints regarding the memo. It is cited by United States civil justice reformers
Tort reform
Tort reform refers to proposed changes in common law civil justice systems that would reduce tort litigation or damages. Tort actions are civil common law claims first created in the English commonwealth system as a non-legislative means for compensating wrongs and harm done by one party to...
and politicians as an example of ethical problems in the plaintiffs' bar. Accusations about the memo have also arisen in the context of Fred Baron's relationship with former presidential candidate John Edwards
John Edwards
Johnny Reid "John" Edwards is an American politician, who served as a U.S. Senator from North Carolina. He was the Democratic nominee for Vice President in 2004, and was a candidate for the Democratic presidential nomination in 2004 and 2008.He defeated incumbent Republican Lauch Faircloth in...
.
History
In 1997, a junior associate at Baron & Budd, P.C.Baron & Budd, P.C.
Baron & Budd, P.C. is one of the largest plaintiffs’ law firms in the country. The firm focuses on individuals, municipalities, and entities harmed by environmental toxins, fraud, or disregard for safety and remains active in cases involving pharmaceutical litigation, financial fraud, Chinese...
accidentally produced to the defense counsel a twenty-page memo titled "Preparing for Your Deposition." Republican Senator Jon Kyl
Jon Kyl
Jon Llewellyn Kyl is the junior U.S. Senator from Arizona and the Senate Minority Whip, the second-highest position in the Republican Senate leadership. In 2010 he was recognized by Time magazine as one of the 100 most influential people in the world for his persuasive role in the Senate.The son...
, a tort reform advocate, called the memo a "a startling insight into how asbestos claims are created"; in a Senate Report, Kyl writes that the memo:
-
- gives clients detailed instructions how to credibly testify that they worked with particular asbestos products. The memo also instructs clients to assert particular things that will increase the value of their claim, without regard to whether those things are true. The memo even informs clients that a defense attorney will have no way of knowing whether they are lying about their exposure to particular asbestos products.
Clients were also instructed by the memo to deny that they ever saw warning labels on product packages. The memo was so detailed and comprehensive that Eugene Cook, a former Texas Supreme Court
Texas Supreme Court
The Supreme Court of Texas is the court of last resort for non-criminal matters in the state of Texas. A different court, the Texas Court of Criminal Appeals, is the court of last resort for criminal matters.The Court is composed of a Chief Justice and eight Associate Justices...
Justice, said at the time, "With this document, you could almost go down the street, get a homeless person, spend a couple of hours with him, and he would be prepared to testify."
Ethics
Academics disagree as to the ethical implications of the memo. Lester BrickmanLester Brickman
Lester Brickman is a professor at the Benjamin N. Cardozo School of Law of the Yeshiva University and a widely-regarded legal scholar.Brickman is a graduate of Carnegie Mellon University...
has called the memo "subornation of perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
." Others argue that it is merely "zealous representation."
Reply
Baron & Budd has admitted that the memo was produced by its employees, but denies that the memo instructs its clients to lie and has argued that statements from the memo have been taken out of context by the press. The firm retained a University of Texas Law School professor, Charles Silver, who wrote an opinion that the firm should not face criminal liability for using the memo, based partly on the sworn affidavit of paralegal Lynnell Terrell who said that she was solely responsible for the authorship of the comprehensive memo and that the memo was rarely used.Dallas Observer Investigation
However, the Dallas ObserverDallas Observer
The Dallas Observer is a free alternative weekly newspaper distributed around the Dallas, Texas . At its inception, it was conceived as a weekly local arts and cinema review publication, with the credo "Advocate for Excellence in the Arts" on the cover. For a time during the early years, the paper...
conducted an investigation into the memo and found that "a number of former Baron & Budd employees say that the information and techniques contained in the memo are widely used, even taught to employees" and that the "memo was not truly an aberration, but a written example of how the product-identification staff works at Baron & Budd."
Dismissal of Charges
Judge John McClellan Marshall, who first learned of the memo from defense counsel in the case where it was produced, called the memo "scandalous to the community as well as to the profession," and "an affront to the integrity of the judicial system," and referred it to a grand jury for possible prosecution and to a state bar grievance committee. In response to the affidavits from Baron & Budd's experts, the state bar grievance committee dismissed the charges. The Dallas Observer reports that because of "politics", the local DA dropped it, requiring the prosecution to be transferred to the Clinton Administration in 1998. Baron & Budd and Association of Trial Lawyers of AmericaAssociation of Trial Lawyers of America
The American Association for Justice , formerly the Association of Trial Lawyers of America is the leading organization for lawyers representing plaintiffs in the United States...
made political contributions to the Congressional campaign of the U.S. Attorney's wife, Regina Montoya
Regina Montoya
Regina Montoya is the senior vice president and general counsel of Children's Medical Center in Dallas. Before that she was the chief executive of the New America Alliance since 2005. She attended Harvard Law School in 1979 and became a partner at Akin Gump Strauss Hauer & Feld in 1986. She served...
, and Paul Coggins recused himself from the case as a result; the Dallas Observer quotes critics who say that the Democratic administration soft-pedaled the case, which was never investigated. Judge Marshall had been re-elected twice without opposition in 1992 and 1996, but in 2000, Baron & Budd successfully targeted Judge Marshall for defeat; the Dallas Observer reports a lawyer close to the case saying that "No judge in Dallas will cross Baron & Budd after what happened in that election. They are scared to death." Local Texas judges blocked civil discovery into the production and use of the memo. Attorneys for private clients who attempted to investigate the memo found that both they and their clients were targeted heavily by Baron & Budd. The defendants agreed to replace the attorneys who had investigated Baron & Budd with new attorneys who would not pursue the matter further. And the Dallas Observer reported that the firm responded to its reporting with "a pattern of intimidation and paranoia such as the Observer has never seen before."