"There were 10 people there -- five I knew personally," says Chaber. "That seemed to be the interest level."

Chaber might find her next seminar better attended, now that a Jacksonville, Fla., jury has hit Brown & Williamson Tobacco Corp. with a $1 million verdict. The verdict was returned last week in a case brought by Jacksonville attorney Norwood "Woody" Wilner on behalf of the family of a two-pack-a-day smoker who died of lung cancer.

It was only the third time in the nation a jury has awarded compensatory damages in a smoking case, and the first time a jury has hit the industry with punitive damages.

Poised to jump in now are a handful of California attorneys massing on the border of the next tobacco battle front: private suits on behalf of individuals. Perceiving a change in the public's attitude toward tobacco -- and convinced that legislative efforts to procure a settlement with Big Tobacco won't provide the industry with immunity from individual suits -- a small cadre of hopeful lawyers are moving ahead with their own suits.

"Woody's verdict is incredibly encouraging," says Chaber, who may be the first California attorney to file individual suits since last year's amendment of a 1987 statute that had barred them.

"The other encouraging thing is that the jury pools are starting to shift with the constant release and bombardment of the tobacco industry's callousness and conspiracy," she says.

Like Wilner, most of the attorneys eyeing tobacco plaintiffs work are former asbestos attorneys who think they can parlay their pulmonary-disease savvy into cases against Big Tobacco.

Chaber, for example, is a longtime asbestos plaintiffs attorney. John Ladd, another attorney who says he is close to filing individual cases against the tobacco industry, is a former Ropers, Majeski, Kohn & Bentley partner who has specialized in asbestos defense.

In fact, Wilner's friends from the asbestos bar have relied on him for help building up their cases against tobacco.

"All of us have been liberally picking his mind," says Ladd. "We've literally been in his office looking at his files. He's been generous."

Some of the attorneys are bringing hybrid asbestos suits, in which plaintiffs who smoked and have had asbestos exposure sue both industries. Others say they will be bringing pure tobacco cases.

Not surprisingly, the tobacco defense bar is greeting these efforts with contempt.

"I don't know why they would be encouraged by it," H. Joseph Escher III says of the Florida verdict.

"None of these cases are economical for the plaintiff's attorneys," says the Howard, Rice, Nemerovski, Canady, Falk & Rabkin partner, who represents R.J. Reynolds Tobacco Co. "They know it's a long, long way from a sure thing."

LONG SHOT
Escher's skepticism has good foundation.

Apart from the tobacco industry's practice of aggressively fighting litigation, California's "napkin statute" -- so-called because legislators first drew it up on a restaurant napkin -- is an obstacle the nascent tobacco plaintiffs bar has yet to surmount.

Enacted in 1987, the statute, Code of Civil Procedure §1714.45, barred product liability actions for inherently unsafe products, including tobacco, on the grounds that consumer use of those products was "knowing" and "voluntary." Although amended this year to allow suits to proceed against the tobacco industry, so far several judges have ruled that cases cannot be brought retroactively -- that is, on behalf of people who were diagnosed as having tobacco-related injuries or illness before Jan. 1, 1998.

The latest California jurist to take that view was San Francisco Superior Court Judge David Garcia, in a hybrid case brought by Chaber on behalf of a Memphis, Tenn., man who has lung cancer.

Last month in Pavolini v. Raybestos-Manhattan Inc., 992223, Garcia issued a tentative ruling against Chaber on the retroactivity issue, essentially gutting the tobacco part of the case.

Chaber and others in the new tobacco bar acknowledge the task will be a formidable one, but at the same time seem convinced that they can figure out a way to make these cases work.

For starters, plaintiffs attorneys have a glimmer of hope because the retroactivity issue is currently on appeal in Southern California, where the county of Los Angeles has sued the tobacco industry. Chaber says she has filed an amicus brief in the case, County of Los Angeles v. R.J. Reynolds, DO30404.

"We would submit that, one, our clients were not knowing, particularly in light of what is now coming out in terms of additives and manipulation of nicotine; and two, they were not voluntary, because when you are addicted to something it's hard to have that be a truly voluntary activity," she said.

Nonetheless, Chaber says she is now focusing on cases in which the plaintiff has been diagnosed after the first of this year in order to avoid the retroactivity problem. Her first effort in that direction is the San Francisco Superior Court case Henley v. Philip Morris Inc., 995172, on behalf of a 51-year-old woman who was diagnosed with cancer in January after smoking Marlboros for more than 35 years.

Thomas Brandi, a San Francisco personal injury and product liability lawyer, says he will probably take a similar tack when he files his first tobacco case. Brandi says his firm is investigating a number of tobacco cases on behalf of individuals injured by tobacco and, like Chaber, may bring cases in which diagnoses happened after Jan. 1.

"I think their model and concept is a sound one," Brandi says of Chaber's firm.

Ladd, the former Ropers, Majeski partner, launched his own practice in January in order to pursue tobacco. He is working up another theory he thinks may beat the tobacco defendants.

"I think that the failure of the filter to protect people the way they expected it to is a classic case of product liability," says Ladd, who likens the filter and low-tar brands to a defective guard on a chain saw.

Ladd, who has helped a widow file a wrongful death suit in Alameda County against the tobacco industry, says he is currently interviewing other prospective clients.

"I felt that at age 50, I had probably only one new area of law I was going to do in my career, and I decided to make it tobacco plaintiffs work," says Ladd. "My mom can't seem to stop smoking, so there's certainly that personal element."

He says his plans for the new cases are realistic. "None of us are talking about hundreds of cases," he adds. "I think that what will happen is that very few of us will attempt to do the best we can with a handful of test cases. Some of us, eventually, will find a way to win these cases, and everyone will jump on the bandwagon, and it will be a very major problem for the tobacco companies."

THE STATUTE STANDS
But RJR attorney Escher says he's not impressed with the arguments brought forward by Ladd or Chaber.

For example, Escher argues that the amendment to §1714.45 isn't a green light for tobacco plaintiffs.

"The amendment to the statute doesn't say that it is now actionable," Escher says. "It just says that the statutory immunity is removed. We still have all the arguments we would otherwise have -- namely, that there is no liability in the context of a product whose dangers are commonly known and inherent in the product."

Escher seems equally ready to poke holes in Ladd's product liability theory.

"Are there really people out there who believe that just because cigarettes have filters they are safe?" he asks. "I've never met such a person."

"There isn't anybody who doesn't know that smoking cigarettes is risky," he adds, "and the notion that the tobacco industry defrauded the entire country into thinking they were safe is a laughable proposition."

But Chaber -- who says she is fighting the good fight -- says she's not discouraged.

"It's the only product besides guns that when used exactly as intended kills people," she says.