High Court to decide whether Exxon spill award will stand

 By Tony Mauro
LEGAL TIMES

WASHINGTON - When he filed the first major lawsuit after the 1989 Exxon Valdez oil spill, famed California lawyer Melvin Belli proclaimed, with a measure of glee, "There will be native Alaskans, sea otters, beavers marching into court for years on end. It'll never be over."

Hyperbole aside, Belli has been proven right. No sea otters have been spotted, but lawyers are certainly still marching into court. On Feb. 27, they'll be at the Supreme Court arguing what could be the final chapter of the legal wrangling over the damage caused by the spill. Arguments in Exxon Shipping Co. v. Baker will focus on a $2.5 billion verdict awarded against the oil company on behalf of a class of more than 32,000 commercial fishermen, Native Alaskans, and other individuals and businesses harmed by the accident, which spilled 11 million gallons of crude oil into Prince William Sound. Exxon describes that judgment as "larger than the total of all punitive damages awards affirmed by all federal appellate courts in our history." The plaintiffs call it "about three weeks of Exxon's curreent net profits." Squaring off in court will be busy lawyers who are also preparing for two other arguments between now and the end of April: former Acting Solicitor General Walter Dellinger of O'Melveny & Myers, and Stanford Law School professor Jeffrey Fisher, a young star of the Supreme Court bar who made his name representing criminal defendants before the high court - and winning.

Fisher was involved in the Exxon Valdez case at earlier stages at Seattle's Davis Wright Tremaine, where he continues to cochair the appellate group. But he acknowledges, "This is the first time I have really delved into maritime law."

Which means he is learning about precedents like the Amiable Nancy case of 1818, which some interpret as a bar on punitive damages when a ship captain is at fault. The dispute draws on an unusual mix of maritime law and more recent sources, such as the Clean Water Act and the Supreme Court's decisions limiting punitive damages. But the court explicitly rejected Exxon's request to review the $2.5 billion verdict as a violation of the Constitution's due process clause.

As a result, Exxon supporters are hoping to win. over Justices Antonin Scalia and Clarence Thomas, who have never found in their copies of the Constitution a bar against punitive damages, However, under maritime law - a form of judge-made common law - the two justices might join others who have voted to limit punitive damages in recent years.

"The shackles are off" Scalia and Thomas, says Mayer Brown's Andrew Frey, a top strategist in the long battle against punitive damages. Frey, who wrote a brief for the American Petroleum Institute, says, in pmt, that even though the ruling may stress maritime law, it may also be "very important for the issue of punitive damages generally." Both sides are also curious about Chief Justice John Roberts. His views on punitive damages are still emerging, and in several cases as a private practitioner, he represented the state of Alaska before the Supreme Court. Alaska, which sides with the plaintiffs against Exxon before the high court, is seeking argument time, but the court has not yet ruled.

Justice Samuel Alito might also have been in play, but he has recused, posing the possibility of a 4-4 tie, which would leave the pro-plaintiff ruling of the Ninth Circuit U.S. Court of Appeals standing. According to his financial disclosure statements, Alito owns between $100,001 and $250,000 in Exxon Mobil stock.

Among the dozens of briefs and lodgings with the high court, there are some interesting audiovisual elements.

One brief, filed by David Case of the Anchorage law firm Landye Bennett Blumstein on behalf of Native Alaskan and Native American groups, offers color photographs of loons and sea otters killed by the oil spill.

Fisher filed a DVD with the court that includes audio of the first call made by ship captain Joseph Hazelwood after the accident, as well as other trial exhibits. The Exxon brief disputes whether Hazelwood was drunk at the time of the accident, but Fisher says the company is brazenly slanting the record.

The DVD was lodged- with the court in part, Fisher says, to remind it of "the community and social outrage" at the time of the spill. "After 19 years it is hard to get back in that place. It dissipates. It's important to get the Court back to the event itself," he says.

Dellinger could not be reached for comment. Even before the Exxon case, Dellinger is slated to argue Feb. 19 in the energy case Morgan Stanley Capital Group v. Public Utility Group District 1, and on March 18 he argues for the District of Columbia in the landmark gun rights case District of Columbia v. Heller.

Fisher, for his part, will argue March 24 on behalf of criminal defendants in the sentencing case Burgess v. United States, and on April 16 in Kennedy v. Louisiana on whether capital punishment should be allowed for the crime of child rape.


LET'S GO TO THE VIDEOTAPE
Fisher said he was also emboldened to file the DVD with the court because of the importance the justices attached to the car chase video in the case of Scott v. Harris last term.

At issue was Georgia police officer Timothy Scott's liability in a civil rights suit filed by Victor Harris, who was injured by Scott during a high-speed chase. During oral argument and in the decision, several justices referred to the videotape of the chase taken from the police car, filed with the court. Scalia described it as "the scariest chase I ever saw since 'The French Connection.'" Even though lower courts found otherwise, the court, based on its own viewing of the tape, found that Harris, the target of the chase, was creating such a danger to public safety that the officer was justified in bumping the car off the road, resulting in an accident that left Harris a quadriplegic. "We are happy to let the videotape speak for itself," Scalia wrote for the 8-1 majority.

But what exactly did the tape say? Yale Law School professor Dan Kahan, David Hoffman of Temple University's James A. Beasley School of Law, and Donald Braman of George Washington University Law School decided to find out. They played the videotape, which is still available on the court's Web site, for 1,350 people. They then asked questions aimed at determining whether the viewers found the police officer or the injured man at fault.

Overall, they found that a majority of viewers agreed with the court's interpretation of the video. But the researchers say in a forthcoming article that the interpretation was far from unanimous, and that different demographic groups viewed the officer as more at fault. Liberals, women and African-Americans were "significantly more likely" to reject the view that the police acted properly (as did dissenting Justice John Paul Stevens). The researchers assert that the court was wrong in concluding that the tape "supported only one reasonable view of the facts." In opting for its own view of the tape, the court showed a lack of "judicial humility" that undermines its legitimacy, the authors state.


MUCH MORE THAN A DOORSTOP
The latest edition of the unquestioned bible for Supreme Court practitioners has arrived - all 1,427 pages of it. The ninth edition of Supreme Court Practice has just been published by BNA Books, and its girth is a testament to the increased complexity of Supreme Court advocacy, even - or especially - as its docket declines. In 1986, when the court was deciding twice as many cases as it is now, the sixth edition of the book ran a mere 1,030 pages. The first edition in 1950 was 553 pages long and cost $7.50. The latest edition goes for $455.

It is a soup-to-nuts guidebook to everything lawyers need to know about petitioning, briefing and arguing before the Supreme Court, with insights into the best ways of getting favorable attention from the court at every stage.

One unnerving footnote reports that lawyers have fainted during oral argument on at least three occasions through history and advises, "Preparation, food, and sleep should stave off similar embarrassments." Elsewhere, the book advises lawyers to remain calm under the barrage of questions from the current bench. Anger or impatience should be sternly suppressed," the authors urge, adding that "counsel, like a salesman, is trying to purvey an idea, and no salesman ever persuaded a customer by irritating him."

Co-author Stephen Shapiro, a partner at Mayer Brown, says the section on oral argument was beefed up because "newcomers before the court are not always prepared for the onslaught." The new edition also plumbs the mysteries of the shrinking docket and of how to win review.

Though much of the book is arcane - one chapter is titled "Preparing and Printing the Joint Appendix" - it has a special significance for lawyers who argue before the court. Veteran advocate David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel can char his career by the editions of the book he owns. Frederick was a law student at the University of Texas when he won his first copy in 1987 as the prize in a moot court competition.

Frederick bought his next edition as he was about to clerk for Justice Byron White in 1991, then the next as he entered the solicitor general's office, and the following one as he began private practice.

"This is an invaluable reference for anyone with cases in the court," says Frederick of the book, colloquially known as "Stem & Gressman," after its original authors in 1950, Robert Stem and Eugene Gressman. "It's always within reach of my desk," says Beth-Brinkmann, of the D.C. office of Morrison & Foerster, who describes it as "an indispensable reference book that actually contains information that you cannot find on the Internet."

Roy Englert Jr. of Robbins, Russell, Englert, Orseck, Untereiner & Sauber adds, "Considering how universally it's accepted, it's more like the Bible, the Quran, the Bhagavad Gita, and the Talmud all rolled into one."

In addition to Shapiro, Mayer Brown partners Kenneth Geller and Timothy Bishop are also authors, as is Edward Hartnett, professor at Seton Hall University School of Law in New Jersey. The court clerk's office assists in ensuring accuracy of the book.

Last but not least, Gressman, one of the original authors, also worked on the ninth edition. Now 90 and a professor emeritus at University of North Carolina Law School, Gressman said in a telephone interview, "I'm very happy with the book." So happy, in fact, that he has already begun work on the 10th edition. ''I'm still active," he adds. "I haven't lost any marbles."


Tony Mauro is the U.S. Supreme Court Correspondent for Legal Times, a Recorder affiliate based in Washington, D. C. His email address is tmauro@alm.com.