"American trial lawyers are on trial . . . .There's really an obligation we feel here to vindicate our own names to the extent we need vindication."
-- Jerry S. Cohen, Washington lawyer, in U.S. District Court.
The docket may have identified Union Carbide Corp. as the defendant. But when U.S. District Judge John F. Keenan convened the first pretrial conference on the Bhopal poison gas leak here last week, the conduct of American trial lawyers appeared almost as much in question as the events that killed an estimated 2,000 people in India last Dec. 3.
Against the backdrop of mass suffering and deaths in Bhopal, more than 100 negligence lawyers have been engaged in an increasingly bitter squabble over who should represent the victims, and for how much.
Embellished by personal rivalries and ego clashes among lawyers such as Melvin Belli and F. Lee Bailey, the squabble has produced charges of unethical conduct, conflicts of interest and unprofessional behavior.
The acrimony spilled into the public eye last week as the lawyers flocked here for Keenan's hearing on about 65 lawsuits that have been filed against Carbide over Bhopal. Right away, the lawyers started aiming their fire at each other rather than Carbide.
Belli accused Bailey and his law partner, Aaron J. Broder, of "chasing" his clients and trying to muscle their way into the Bhopal case. Broder, a prominent New York personal-injury lawyer, retorted that Belli and his allies "aren't in the same league" as he when it comes to winning big jury verdicts.
What's more, he added, the Belli faction had shown a "despicable" interest in their own contingency fees by suing the Indian government to prevent it from taking over representation of the faction's Indian clients.
"This is giving lawyers a black eye," said Broder, who has been sharply criticized himself for running ads in The New York Times promoting his expertise in air crashes and other "mass disasters."
"Here we have a group of lawyers [Belli's] who are supposedly concerned about the victims in India, and the first thing they do is file a lawsuit to protect their fees," he added.
Behind the personal attacks was jockeying by at least three rival factions of lawyers and the Indian government's lawyers, all hoping to be named as lead counsels in the case -- a designation that would allow the winner to snare the lion's share of the fees.
But even lawyers who agreed to work on the case for free, like Stanley Rosenblatt, a personal-injury lawyer from Miami, had their motives questioned. Carbide's chief lawyer, Bud G. Holman, warned the judge to be wariest of all of lawyers who make such offers. "The lawyers who want publicity out of this may be more troublesome than the lawyer who is prepared to wait for his fees," he said.
No one can even guess how much those fees will be. But experts anticipate that, at a minimum, the settlement will exceed Carbide's $200 million in insurance coverage, perhaps by a great deal, and the lawyers will seek a significant percentage of the total, presumably in the tens of millions of dollars.
By all accounts, there are large issues at stake in the Bhopal litigation: What is the responsibility of multinational corporations for their operations overseas? How can the courts structure a just settlement when the number of victims may run into the hundreds of thousands?
But in the eyes of some critics, the bickering among the lawyers thus far has tended to obscure the larger questions, and the tumult has proved sufficiently embarrassing that it could have long-range consequences for the profession.
For the past several years, the Association of Trial Lawyers of America has been fighting to fend off proposed changes in the country's product liability laws. Its opponents are business groups that want to stop the proliferation of multimillion-dollar punitive damage verdicts being awarded over hazardous or faulty products.
For the most part, the trial lawyers have succeeded in positioning themselves on the moral high ground in this debate, some business lobbyists acknowledge. Forming alliances with labor groups and consumer advocates such as Ralph Nader, the lawyers have portrayed big jury verdicts against companies such as A. H. Robins Co. (maker of the defective Dalkon Shield birth control device) or Manville Corp. (manufacturer of asbestos products) as an effective curb on corporate irresponsibility.
But recently, business lobbyists have sensed an opening. They say that the Bhopal case has exposed the underside of the legal profession, throwing the spotlight on such practices as the questionable solicitation of clients and huge contingency-fee arrangements that bear little relation to the amount of legal work actually performed.
"Now people are saying that maybe these business guys were right all along," contended Victor E. Schwartz, a Washington lawyer who represents the Product Liability Alliance, a business coalition lobbying for changes in the liability laws. "They can see that the plaintiffs' lawyers are not in this solely for the victims. . . . The Carbide case shows that sometimes the interests of the injured people are considered last."
What the Bhopal victims need is a prompt settlement with Carbide that provides medical aid and compensation as soon as possible, Schwartz and others say. But that goal directly conflicts with the economic interest of plaintiffs' lawyers who can earn potentially larger fees from prolonged litigation. Thus, plaintiffs' lawyers (particularly successful ones with stable cash flows) often want to delay settling cases in hopes of winning big punitive damage awards down the road. Their clients might have a greater need for money immediately, the critics say.
Bhopal "is their smoking gun," Schwartz added in reference to the trial lawyers. "People have been talking about a lot of these practices for some time, but now it's being danced before their eyes."
Yet the plaintiffs' lawyers argue that it is only they who have kept the plight of the Bhopal victims in the public eye -- and kept the pressure on Carbide to compensate them.
"If it weren't for the American lawyers, nobody would give a damn about those people today," said Jerry S. Cohen, a Washington lawyer who is aligned with Belli's group.
"What we see in the Bhopal case is a model of what the legal profession should be doing," agreed Monroe Freedman, a law professor and former dean at Hofstra Law School. "The principal criticism of these lawyers is coming from corporate lawyers who are saying, 'My Goodness, they're in this for the money.'
"Well yes, they are, and yes, they should be," he continued. "What else but the profit motive could have brought to the doorsteps of the impoverished people of India some of the finest legal talent in America? . . . The last people in the world who want to see contingency fees and big compensations are the negligent multinational corporations."
Still, the Bhopal case shows the striking effect of the export of American personal injury law to the Third World. In the days shortly after the disaster, lawyers like Belli and John Coale of Washington flew to India and, with the help of local Indian attorneys, collected thousands of retainer agreements signed by Bhopal victims. Almost all of the retainers contained standard American contingency fees arrangements, allowing the lawyers to collect anywhere from 25 percent to 33 percent of the damages finally awarded.
In recent weeks, lawyers on all sides have agreed that at least some of these retainers are of dubious validity. Holman, the Carbide lawyer, said last week that his law firm had done a computer analysis of the 30,000 names that appear as plaintiffs on all the lawsuits against Carbide and found that as many as 35 percent may be duplications.
Why was the rate so high? "The Indians signed every form that was put in front of them by runners on the streets," Holman charged last week.
Even some plaintiffs' lawyers acknowledge the problem. "Some of these Indian lawyers were collecting powers of attorney [forms] and selling them," said Cohen, who has made two trips to Bhopal. The Indian lawyers "were giving people 125 rupees to sign them. That's why you have to watch out for some of these American lawyers who say they represent 60,000 or 70,000 clients."
For his part, Cohen said that he's got 8,260 contracts to represent 24,000 Bhopal victims. But he said all of them are valid because he and his Indian associates have verified each one, having opened up an office in Bhopal and having compiled medical histories for each client.
"There are real honest-to-God people we're representing," he said. "These aren't just some guys who are out there sleeping in the streets all night." 3 Factions of Lawyers
But the debate over the retainers is only one small skirmish in the Bhopal lawyers war. In the days since the disaster, three rival factions of American lawyers have emerged in a high-stakes battle for control of the litigation.
One such faction, closely identified with Belli and claiming to have 29 lawyers, is headed by Cohen and Stanley Chesley of Cincinnati. Another, headed by Bailey and Broder, claims 27 members, buttressed by an indetermine number of "defections" from the Belli group. Yet a third group, claiming seven members, is headed by David S. Schrager, the past president of the trial lawyers association, and Gene Locks of Philadelphia.
To be sure, there are substantive differences among the factions about how to approach the case. Belli's group wants to turn Bhopal into a class action suit in which all the claims would be consolidated so there could be one verdict and one mass award. Bailey and Broder say prolonged litigation only would mean further agony for the victims in Bhopal. They argue instead that the suit should be postponed temporarily to give the parties time to negotiate a settlement -- with themselves named as chief bargainers for the private plaintiffs.
"Their [the Belli-Chesley-Cohen] attitude towards these mass disasters is to litigate them to death and then to settle," said Broder. "I say, 'Let's settle first.' I'm against the running of the meters."
Finally, Schrager, reflecting the most traditional views of the personal-injury bar, was running on an anti-class-action, anti-settlement platform that called for each case to be considered separately. Because each of the Bhopal victims suffered differently, there can be no justice in one award divided evenly, they argued.
Yet these legal fine points frequently have been submerged during a series of divisive meetings among the lawyers in New York and Washington, marked by occasional name-calling and emotional rhetoric, according to some of the participants.
At one New York meeting, Broder showed up and made a dramatic pitch to dump the Chesley-Cohen team and go the settlement route with he and Bailey as the new captains, according to Cohen.
"He got up there and gave this impassioned plea about the people of Bhopal with tears streaming down his cheeks," Cohen said. "Everybody was was laughing like hell. It might have been great for a jury, but not for a group of lawyers."
Broder disputed that account and said that only he and Bailey have got the legal clout to intimidate Carbide into making a just settlement offer.
"I'm the lawyer who got the largest wrongful-death award in the history of mass disasters," he said. "I'm the lawyer who got the largest sustained verdict in any personal-injury case in New York. . . . We're talking about threat value. When it comes to winning the specific cases, I don't think they [Chesley and Cohen] are in the same league."
Two weeks ago, the waters were further muddied when the Indian government hired the Minneapolis law firm of Robins, Zelle, Larson & Kaplan, which had made its reputation winning big verdicts on the Dalkon Shield and MGM Grand Hotel fire in Las Vegas. The firm filed its own suit against Carbide and then argued that all the private lawyers should work as de facto junior partners of the government's appointed counsellors.
Cohen said this was the height of "arrogance," triggering his own lawsuit in New Delhi to stop the government from depriving its people of their rights to their own American lawyers.
At last week's hearing, Keenan showed little patience for the bickering among the lawyers. He said he would designate a three-member "executive committee" to oversee the plaintiffs' case, with one seat guaranteed to the Robins, Zelle firm. The other lawyers were ordered to agree among themselves on the other two members by this Tuesday -- or the judge would make the appointments himself.
Outside the courtroom, lawyers such as Belli, Bailey and Schrager were besieged by scores of television and newspaper reporters asking for their comments on the historic case. The flamboyant Belli (once known to the media as the "King of Torts") attracted the most attention, and vigorously defended the role of the personal-injury bar in Bhopal.
Asked by one reporter about charges that he had engaged in "international ambulance chasing" by going to Bhopal, Belli laughed. "I'm no ambulance chaser," he said. "I always get there before the ambulance arrives."