The American Civil Liberties Union has the "kamikaze" warriors of corporate lawyering--Skadden, Arps, Slate, Meagher & Flom--working for it in the upcoming Arkansas trial over the constitutionality of a law there requiring the teaching of creationism in the public schools.
The trial--which begins, appropriately enough, on Pearl Harbor Day--is billed as the greatest since the Scopes trial in Tennessee 56 years ago. Arkansas passed its law in March, Louisiana followed in July and several other states are considering similar laws, but waiting to see what happens in Arkansas.
"We know it's a big case," said one lawyer for Arkansas. "If the ACLU can stop it here, they can stop it everywhere."
ACLU litigation director Bruce Ennis is delighted to have the Skadden Arps lawyers' help. The corporate takeover specialists are famed for no-holds-barred infighting in multi-billion-dollar litigation. They are noted for doing things such as chartering private planes in the dead of night to fly lawyers to the middle of nowhere to get restraining orders and injunctions.
"We (ACLU's lawyers, private attorneys Bob Cearley and Phil Kaplan in Arkansas and Skadden Arps) have done in one month what most firms would take a year to do," Ennis said.
Skadden Arps is approaching this case the same way it deals with corporate takeover bids, says partner Peggy Kerr. That means frantic 24 hour-a-day hustling to prepare for trial, a pace rarely seen outside their customary field of litigation.
It leaves the lawyers for Arkansas, headed by Attorney General Steve Clark, "feeling pretty outgunned," according to one lawyer in Clark's office. That lawyer, who asked not to be identified, said Clark and four young assistants are working on the case in addition to their other duties. "We're pretty confident," the lawyer added, but "we're hitting against some pretty fast pitching."
For example, each side had agreed to allow the other to interview its witnesses voluntarily, without subpoenas. Skadden Arps lawyers, none of whom where experts in areas such as microbiology and carbon dating, interviewed Arkansas' witnesses with up to three experts in science, religion or education sitting in, feeding questions for the lawyers to ask.
Then, 10 days ago, Clark suspended the agreement to produce witnesses voluntarily. While Ennis and one of Clark's deputies tried to resolve the dispute, the typical Skadden Arps mobilization began.
ACLU's Arkansas lawyers filed motions in the court there and Skadden Arps paralegals reserved hotel rooms in places like Appollo, Pa., Spartanburg, S.C., and Caribou, Maine, for the depositions. They got lawyers in those towns ready to go to the local courts to get subpoenas for the testimony. By the next afternoon, the machinery was in place. Two subpoenas had already been served. Clark then agreed again to voluntarily produce the witnesses. The subpoenas were dropped, the reservations canceled.
Kerr won't say what all this is costing Skadden Arps, but since May the firm has allowed the equivalent of seven full time lawyers to work on the case, plus clerical staff and numerous summer associates. Figured conservatively, that would mean Skadden Arps is looking easily at $1 million in pro bono salaries and expenses on this one.
The ACLU is picking up all out-of-pocket expenses, such as travel or photocopying or computer time--at least those which the firm decides to bill to ACLU.
There are some differences between working for the ACLU and working for private firms, Kerr said. No private planes because "we don't have that kind of budget," she said. "On ACLU work, we fly coach."
Ennis, who has been with the ACLU for 15 years, says he has not seen anything like this before. "I have never known a firm to contribute such an enormous amount of quality work in such a short time."
If the ACLU wins, Ennis said, it will ask the federal judge in Arkansas to award attorneys fees. Even if the judge doesn't award hourly fees at the rate Skadden Arps usually charges, the total could still come to well over $1 million, making the Arkansas law perhaps one of the costliest in the state's history.