Minnesota's Tobacco Trial Turning to Defense

The defense is about to take over at Minnesota's tobacco trial, and industry lawyers are hoping for some winds of change.

Since January, attorneys for Minnesota and Blue Cross/Blue Shield have been presenting their side of the $1.7 billion lawsuit. It was filed against the tobacco industry four years ago to recover health-care costs from treating smoking-related illnesses.

From Day 1 it's been a lopsided match-up: The state's lawyer, Michael Ciresi, and his five lawyers against 11 tobacco industry-defendants, each represented by a team of blue chip attorneys. The defense fills two counsel tables and two additional rows of seats in the gallery - representing $10,000 an hour when present at full strength.

But as the trial enters its ninth week and the defense phase is expected to begin, it is the tobacco lawyers who seem in need of help.

As Mr. Ciresi and his team have presented document after document of damaging information about the tobacco industry, the defense has struggled be heard. Its objections are rarely sustained, its motions are denied or ignored, and some of its attempts at cross-examining the witnesses have been fruitless. So frustrated has the defense team become that it recently took the unusual and risky step of asking that presiding Judge Kenneth Fitzpatrick either recuse himself or declare a mistrial. That motion was denied as well.

"I don't think there's any question that we're facing a hostile court," says Robert Weber, a lawyer for R.J. Reynolds. "I don't see it as a question of outmaneuvering or trial tactics. The state basically has carte blanche for whatever it wants to do."

A judge's influence

Lead defense lawyer Peter Bleakley from the Washington firm of Arnold & Porter has successfully defended Philip Morris in previous trials. He says he's never seen anything like this trial, or its judge: "It's pretty easy to be more clever than your opponents when one side gets everything they want and the other doesn't."

Not surprisingly, prosecutor Ciresi disagrees. He believes his team has outmatched the tobacco lawyers in the courtroom, and he attributes that to preparation. "For the last four years our team has been working to put together a case that covers 40 years and a multiple of defendants. We out-prepared them."

In addition, Ciresi says the tobacco firms were surprised to encounter someone with resources and staying power that matches theirs.

"In the past, they've gone against sole practitioners who haven't had the ability to go toe-to-toe with them," he says.

Legal expert Sean Stokes, who has been observing the trial for a Wall Street investment firm, sees the defense's shortcomings somewhat differently. "They do appear to have been outmaneuvered," he acknowledges. But he cautions, "It's important to understand that, unlike Ciresi, these are different attorneys from different firms representing different clients, which is difficult. They lack leadership because, by definition, there is no leader."

United we stand?

"A part of the problem is the court's ruling that, with any given witness, only one lawyer can speak for the entire industry," says Greg Little, associate counsel for Philip Morris. "That means that a witness testifying about a Philip Morris document may be cross-examined by a Brown & Williamson attorney, who may not be as familiar with the material. You can't get across all you need in a situation like that."

The trial lawyers themselves were even more blunt, "One part of their case is that this is a conspiracy," says Mr. Bleakley. "Yet they're requiring us to speak with one voice, which makes us appear to be conspirators. That is inexcusable."

But other experts say what is driving this trial is something much more simple: facts.

Joseph L. Daly, who teaches trial law at St. Paul's Hamline University School of Law, has been watching the trial and assessing the players.

"The facts are coming in in a devastating manner," explains Professor Daly. "Some of those documents are really damning. In some cases even the world's greatest lawyers can't do anything about it."

The lawyers representing the tobacco companies, however, don't see it that way.

"It has been a show trial to condemn the behavior of the tobacco industry," says Bleakley. "The plaintiffs are allowed to do whatever they want to convince the jury that the defendants have been bad boys."

Tobacco lawyers say that despite the setbacks, their strategy will remain unchanged as they begin their phase of the trial. "We're going to start and end with what this case ought to be about," says Bleakley. "That is, have Minnesota and Blue Cross/Blue Shield incurred any increased health-care costs as a result of the defendants' alleged fraudulent conduct? The plaintiffs can't prove damage as a factual matter or as a monetary amount. And that's reality." he says. "How much of that will we be allowed to present? I don't know."

Still, says Daly, "It ain't over 'til it's over. Right now, we're watching a genius [Ciresi] at work. But that doesn't mean that when the focus turns, the jury might not see things differently."