At 2:50 p.m. on Feb. 15, U.S. District Court Judge Pierre N. Leval passed out packets to half a dozen lawyers, all waiting nervously for the judge's final word on how he would instruct the jury.
Dan M. Burt, the feisty attorney battling for retired Army general William C. Westmoreland against CBS, turned to page 5, stared at four words and quietly said to himself his case was finished.
"You sit there and you're playing poker," Burt said this week in his first detailed recounting of why Westmoreland settled his libel suit just short of a verdict. "They turned over the cards one at a time. They turned over that one and I said, [expletive deleted]. I remember that feeling in the pit of my stomach. I said, 'It's over.' "
The decision born of that moment brought a declaration of victory by Westmoreland as he withdrew. But as the general retreated to his home in South Carolina and his lawyer returned to his conservative-backed public interest law firm in Washington, both faced an avalanche of criticism from some conservative groups accusing them of leaving the courtroom in Manhattan much the way the United States left Saigon almost a decade ago.
Burt said this week that the four words in the judge's instructions almost two weeks ago left him no choice.
In the technical language of lawyers, Leval said the jury would need "clear and convincing evidence" from Westmoreland that the 1982 television documentary at issue was false. That was a high hurdle for Burt, higher than the language he had hoped for -- that the jury needed only a "preponderance" of evidence to vote with the general.
It also meant that Westmoreland, who has said he went to battle with CBS for his reputation, might have been forced into humiliating defeat.
By then, it seemed clear from testimony that CBS could win a special provision that makes it more difficult for a public figure to sue successfully for libel. Under the same burden of "clear and convincing" evidence, former Israeli defense minister Ariel Sharon lost his lawsuit against Time magazine when a jury decided that the paragraph at issue was false but that Time showed no "reckless disregard" for its falsity, as is required to prove libel against a public figure.
Westmoreland faced the possibility of losing on both issues. A jury of 12 U.S. citizens could have decided, in effect, that Westmoreland took part in a conspiracy in 1967 to hide enemy intelligence from the public and the government. It could have ruled that the CBS broadcast was true.
As a shaken Burt recalls telling the judge, in a quotation also remembered by others sitting in the room: " 'If he loses on truth, it will kill the old man.' "
Instead, Westmoreland agreed two days later to abandon his $120 million libel action against CBS, in return for a statement by the network that he viewed as a long-awaited apology. The statement, which CBS denied was an apology, said the broadcast and the network did not intend to say that the commander of ground forces in Vietnam from 1964 to 1968 was "unpatriotic or disloyal in performing his duties as he saw them."
Burt, talking in his Capital Legal Foundation office on Capitol Hill in the salty language that is his trademark, acknowledged that the general was "demoralized" by watching some of his former officers testify against him, saying in person what he had heard on the broadcast or seen in pretrial testimony.
"I think his heart was broken," Burt said. "He's a man who has not been served well by history."
Burt said he and Westmoreland also were exhausted from battling "the CBS machine," as he called the massive legal and public relations operation the network ran in the courtroom and in the corridors.
But he said the crowning blow in legal terms came that Friday afternoon.
As Leval wrote in the charge that never reached the jury: "Clear and convincing evidence is a more exacting standard than proof by a preponderance of the evidence. Clear and convincing proof leaves no substantial doubt in your mind . . . . Clear and convincing proof must be strong and compelling proof, not merely proof that the existence of a fact is more likely than not."
Burt said he looked at his watch at that moment, registering the precise time he knew the legal battle was over. "If that burden of proof had been 'preponderance,' I'd be summing up [before the jury] today," he said.
Since then, Burt said, he has been "hounded" by critics from the left and the right. He said some of his mail has been not only anti-Burt but anti-Semitic.
In his blue-gray office appointed with an oriental rug and modern pottery, Burt passed along one letter that had him fuming with rage. The writer, who signed her name and address, chastised the foundation, known for its conservative backers, for having Burt, who is Jewish, as its president.
"I've paid a hell of a price for this lawsuit. It's been a disastrous experience," Burt said. A libertarian, he is outraged by those who try to label him a conservative.
"My grandfather's family was killed in Russia . . . by the Cossacks," he said. "And I have to get that, right?"
Burt, 42, a native of Philadelphia, said his father told him that once the Jews came to the United States "it wasn't going to happen again."
"Then came the Westmoreland case. I took it -- Westmoreland was a very unpopular guy. In that way, he was like a Jew. He went to his Washington buddies, all the big-time lawyers, and they wouldn't take the case because they couldn't make any money. But I took it and I took a lot of grief for it."
David Henderson, a friend and close adviser of Westmoreland, said this week that the general began searching for someone to take the case shortly after the broadcast aired in January 1982. Lawyers -- among them Edward Bennett Williams -- warned Westmoreland off, contending that libel law made it too difficult for a public figure to win the case, according to Henderson. He said Sen. Barry Goldwater (R-Ariz.) also tried to talk the general out of pursuing the lawsuit.
Westmoreland was still looking for a lawyer when Richard Larry, an administrative agent for the Scaife Family Charitable Trusts in Pittsburgh, introduced Burt to Henderson in early 1982. After about three weeks of discussions and with the approval of his board at the Capital Legal Foundation, Burt agreed to take on the network for Westmoreland.
Burt says now that his strongest moment may well have come before the case finally went to trial last Oct. 9. Several CBS lawyers agreed that Burt's arguments for putting the case before a jury was "damned good," as one put it. In fact, as CBS went to trial, many of its executives said privately that they saw little chance of winning a jury verdict against the silver-haired, straight-backed general.
"Before the trial, we just blew them away, didn't we?" Burt said proudly. "How? Can you work at full speed for 72 hours without sleep? I can. For 10 days I worked 19 hours a day. Finally, Tony Murry [his colleague] collapsed in the hallway. That's how."
"There was no mystery; we just worked three weeks around the clock," he said.
"At the trial, that was when I couldn't do it with mirrors any more," said Burt, sipping coffee as he relived the more painful part of the process.
Burt is a man whose passions are evident. His friends call him "mercurial," and his moods range from noisy self-confidence to moments of self-pity. He often portrayed himself as a kid in a schoolyard fight, a loner going up against a well-trained gang of smooth city lawyers. The CBS legal team is expected to charge between $7 million and $8 million for its services. Westmoreland's legal bills, of which he is expected to pay $20,000, may run over $3 million.
"We were out of town, in New York, on their turf. They had every conceivable advantage," Burt said, pleading for understanding of what happened to his case.
It is a far cry from the combustible lawyer who shook his finger angrily at reporters during the trial, often telling them in blunt language that he would not comment, even to give his version of what was going on in the courtroom.
But Burt, whose blue jeans and bulky white sweater contrast sharply with the continental green velvet and bold plaid suits he wore in court, said he still has no desire to detail his wins or losses in the courtroom. As he puts it, "I'm not going to second-guess myself."
Burt's smoother competition, CBS lawyer David Boies, felt no such restraints. In an interview last week, he praised Burt's pretrial work and then acknowledged his team's winning points in the trial.
A partner in Cravath, Swaine & Moore, one of the nation's most prestigious Wall Street law firms, Boies, 43, ran the CBS case with a constant smile for the jury and a computer-like control of documents and facts.
Like a methodical tennis player whose game is geared to take advantage of the opposition's mistakes, Boies was there with the overhead smash whenever Burt or anyone on his team stumbled.
One of the most important times was when retired major general George Godding took the stand early in the trial to support his former commander. Godding said Westmoreland was not part of any conspiracy to hide enemy-troop numbers, as charged in the CBS broadcast "The Uncounted Enemy: A Vietnam Deception."
But on cross-examination, Godding acknowledged that Westmoreland had said there was a "command position" on the number of Vietnam enemy. As a result, when Westmoreland's officers met with intelligence officers from other branches of the government to hammer out a compromise figure for the Vietcong, they stuck close to the command figure. Such a statement was viewed by CBS lawyers as confirmation of the broadcast's accusation that Westmoreland imposed a "ceiling" on the reportable number of enemy troops.
"The right decision at that point was to take him off the stand," Boies said recently. Burt and his assisting attorney, David M. Dorsen, did not take Godding off, and Boies said Godding then repeated his comment in a form more damaging to Westmoreland's case.
Later, with documentary producer George Crile on the stand, Boies suddenly turned to the jury and provocatively invited Westmoreland's lawyers to point out "exactly what there is in the broadcast that is critical of General Westmoreland that the plaintiff believes is false."
Burt, clearly caught off guard, appealed to the judge for a recess. Out of earshot of the jurors, he pleaded with the judge to tell the jury Boies was out of line in "trying to force" Burt to ask Crile those questions. The judge refused to chastise Boies, and told the jury that "Mr. Burt is entitled to conduct his case as he sees fit and he is not under any obligation to ask questions that are suggested or challenged by Mr. Boies."
A CBS lawyer, attributing the Burt misstep to the fact that he had never tried a case before a jury, said: "Any other courtroom attorney would have met the challenge with one tough, hardball question to Crile and then sat down. Burt didn't know to do that."
For Westmoreland, the most devastating moments were when his former soldiers and later his former officers began taking the stand to testify against him.
On Feb. 6, the day retired major general Joseph A. McChristian took the stand to say it was "improper" for Westmoreland to refuse to send a cable to his superiors that showed higher enemy figures, Westmoreland looked angry and upset.
Unspoken during that courtroom scene was the conflict between two West Point graduates, who not only swear to "Duty, Honor and Country" but also to a code of loyalty among one another.
In a memo to himself after Westmoreland telephoned him to complain about the CBS broadcast, McChristian wrote: "[Westmoreland] said that he thought our conversation [in May 1967] was private and official between West Pointers. I replied that I spoke the truth . . . .He said that he has stood up for and took the brunt of Vietnam for all of us. He as much as accused me of being the one mainly responsible for his integrity being impugned [in the broadcast]."
The court battle over Vietnam was going against the general, but his Yorktown came after Leval's ruling on his legal burden.
"That burden, it is something," Burt said, shaking his head. "You'll wait a long time before you'll see another public figure in a libel case."