attorneys. All are deeply involved in one way or another with the Florida
Academy of Trial Lawyers, most having held the presidency or leadership
in the academy. Ron, Dickie, and I take seats behind the counsel tables
facing the gallery. Viewing the twenty or so attorneys arrayed in various
spheres of self-importance such as standing, sitting, and hands in one’s
pocket, I think to myself, “It looks like a scene of western gunslingers.”
Joe puffs his authority, “The Governor has invited Ness, Motley to put
this case together. We have Tim Howard from the Governor’s Office and
he’s prepared a brief memo on the case. He will explain the damages
and tobacco liability law. Dickie Scruggs is directing Mississippi’s tobacco
action, and will be working on how cigarettes cause injuries.” “When Fred
called me, he said that Florida counsel was leading the case and this was a
Florida case,” Phil Frieden challenges Joe. “We’ll get to team organization
and fees after we cover the merits of participation,” Dickie helps cover.
“Tim, why don’t you review the memo.”
The memo covers the legal aspects the law and lawsuit, the contingency
fee amounts, and the ethical compliance issues. I continue, “Thanks, if
you could take out the memo handed out to everyone. What you’ll see
is the basic structure of team participation, the damages for the case, and
the statute and rules on contingency for this case. Conservatively, damages
for the four-year period amount to anywhere from $1.4 billion to over
$6 billion if treble damages from fraud are proven. Using the commercially
reasonable fee rate of 25%, this would generate fees of between $350million
and $1.6 billion.”
“That’s if the law stays on the books, and if the Supreme Court finds
it constitutional. Which are long shots in my book,” Asp Tong voices his
concern. “You’re right. We’ve got the legislative battles ahead, but there is
good case law to support our market share approach to damages, consolidation
of claims, and statistical evidence for causation. Since the statute
is generic, they can’t claim that we are violating equal protection and singling
out an individual industry unfairly,” I address the obvious. “We have
Harvard Professor Laurence H. Tribe and his assistant Jonathan Massey on
our team to give our best pitch. I’ve been working with them for over six
months and all of us working the front line on this feel that the law will
stick.”
Phil Frieden gets to the meat, “Let’s talk fees. Tim’s shown the potential
return. Now how do you propose splitting the fee?” Joe stands up and pulls
a wall chart over and draws three steps as he speaks.
Here’s how we propose to split the fees. First 25 percent of the fees
for compensatory damages go to organizing lead counsel – Dickie
Scruggs’ firm and Ness, Motley. Thirty percent of attorney’s fees from
treble damages also go to organizing lead counsel. Next, 33 and 1/3 percent
of the fees, pro rata, go to all persons who contribute to the
advancing of the costs on a pro rata basis, in addition to a reasonable
rate of return by way of interest from the date of payment. $25,000 on
or before July 1, 1995, and $25,000 on or before September 1, 1995.
Thereafter up to $100,000 a year as needed, up to a total of $500,000.
The balance of the fees, 41.6 percent, would be split 50 percent to
33
Convention