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Updated: Monday, Jun. 1, 1998 at 21:14 CDT
Recipe for greed: Politicians and tobacco industry
By Molly Ivins
Star-Telegram
AUSTIN -- This year's Editorial Writer's Award goes to Gov. George W. Bush, in honor of Murray Kempton's famous observation that editorial writers are those who ride down onto the field after the battle is over and shoot the wounded.
We are in the midst of a splendid bout here, one of those Everyone-Looks-Ridiculous rounds of political fisticuffs for which our state is nationally recognized.
This all started with a famous victory in January: the state of Texas won a whopping, record-setting $15.3 billion settlement from the tobacco companies for all the Texans who have gotten sick from smoking and had to be cared for by the state. Nice going, team.
But the thrill of victory lasted about 10 minutes before the ugly greed scrum started. The lawyers, as per their contract with the state, got 15 percent of the settlement, which works out to $2.3 billion, a very substantial chunk of change indeed. Dubya Bush does not care much for trial lawyers in the first place: his sole notable contribution to governance during his first term was "tort reform," a way to keep lawyers from winning huge monetary verdicts from juries who tend to dislike big insurance companies and other corporate malefactors. Bush thinks $2.3 billion is too big a fee for five lawyers (actually, over two years about 100 lawyers worked on the case, but that's another story) and you must admit, he has a point there. Quite a good point, actually.
Let not the ugly word "politics" rear its head here, but coming out against a $2.3 billion fee for five lawyers, no matter how much they jacked out of the tobacco companies, is not going to cost you any votes in an election year, since lawyers rank even below politicians in public esteem. So:
* U.S. District Judge David Folsom rules in late January that 15 percent for the attorneys is a reasonable fee. Since trial lawyers usually claim a third of the spoils when they take a case on contingency (that means they put up the money to fight the case, the state didn't kick in a nickel) this could be considered a bargain: on the other hand, $2.3 `billion?'
* So Bush and seven state legislators file a challenge to the fee: it is unclear, since they were not involved in the lawsuit, whether they actually have standing to do so. It becomes clearer when Folsom throws them out of court in March observing "their argument is not grounded on recognized law."
* The five attorneys, now concerned about their big fee, hire Michael Tigar, one of the biggest legal guns in the state, to represent their interests. Two months of negotiations ensue: the lawyers are willing to go as low as an $800 million floor if it goes to mediation. Two weeks ago, Bush backs out of the mediation.
* A week goes by and Morales finds out Bush's office is once again talking directly to the tobacco lawyers, in a case in which Bush has no standing. Morales is infuriated by the interference with "his" settlement and asks the judge to fine Bush and the legislators $25 million for "their frivolous intervention and improper political meddling."
* Bush replies that this is "a frivolous lawsuit against a duly elected official" and in retaliation, the seven lawmakers file a federal court document that implies Morales asked for a $1 million kickback from attorneys who bid for the case. The alleged allegation (at this point it is an cloudy reference in a deposition by Joe Jamail, yet another one of the biggest legal guns in the state, who lost the contract to sue the tobacco companies in the first place.) In one of the better strange-bedfellows aspects to this mess, Jamail, now on the same side as Bush, didn't get the contract because he wanted a 33 percent contingency fee.
Here's the state of play as of this writing: Morales claims the $1 million fund referred to by Jamail was actually upfront expense money for the lawsuit and that if anything "questionable or illegal" occurred, as Jamail alleges, the entire roomful of very-high-priced attorneys present at the time could now be disbarred. But if their side grants the right to hear Jamail's deposition, it would give the other side legal standing in the case, which they do not now have.
In another happy wrinkle, Bush is now claiming the lawyer's fees in the Minnesota tobacco settlement are much more equitable and we should renegotiate to get a similar deal. Morales replies the governor doesn't know what he's talking about: a deal similar to Minnesota's would give our lawyers 17 percent instead of 15 percent. Bush says the taxpayers are on the hook for the lawyers fees; Morales says the tobacco companies will pay them if the arbitration panel, to meet in November, is willing.
Further, `somebody' is spreading the rumor that Morales plans to run against Sen. Kay Bailey Hutchison in 2000. Morales, who is not running for re-election, has friends who claim Bush decided to give him a parting kick in the pants on his way out the door. Both sides claim they have taken the high road and engaged in no abuse, whereas the other guys have said nasty, awful, tacky things.
And if you're not confused now, you haven't been paying attention.
Molly Ivins is a columnist for the `Star-Telegram.' You may write to her at 1005 Congress Ave., Suite 920, Austin, TX 78701; call her at (512) 476-8908; or email her at mollyivins@star-telegram.com