Assuming the Risk is legal journalist Michael Orey’s 1999 book about “the mavericks, the lawyers, and the whistle-blowers who beat big tobacco.” Unwittingly, the book is a prequel to Kings of Tort and The Fall of the House of Zeus. The subject of the book is tobacco litigation in Mississippi in the 1980’s and 1990’s.
I think that I knew about this book when it was published, but forgot about it. Amazon’s categories for law books are so bad that finding books on civil litigation is like a treasure hunt. Every once in a while I stumble across one that I forgot or about never knew about.
The first half of the book focuses Horton v. American Tobacco. Led by Lexington attorney Don Barrett, the case was tried to a hung jury in Holmes County in 1988. The case was a no holds barred bet-the-company dogfight between Barrett and American Tobacco lawyer Jim Upshaw of Greenwood. Upshaw and Ed Blackmon of Canton tried the case for American Tobacco. Later, the case was tried in Lafayette County to a plaintiff verdict with $0 damages rendered.
Other than by reputation, I didn’t know much about Don Barrett or his fight with big tobacco. In general, the book portrays Barrett favorably. He comes across as a true believer of the cause against big tobacco. Without question, Barrett gambled a lot of time and money on the case and lost. At least until Merrill Williams showed up, the idea for the state tobacco actions was developed and the tide turned.
The book then turns its focus to Merrill Williams, Jr., a paralegal at a Louisville law firm representing tobacco company Brown and Williamson. Williams surreptitiously copied thousands of pages of company documents. Williams contacted Don Barrett, who he read about during the Horton trial. That led to Williams meeting with Barrett and Dick Scruggs in Jackson.
Williams, who recently died, ultimately turned the documents over to the lawyers and they were used in Mississippi’s groundbreaking lawsuit against big tobacco. The final section of the book focuses on Mississippi’s lawsuit against big tobacco and the lawyers who spearheaded the litigation.
Lot’s of interesting tidbits in this section including the account of how Clarksdale attorney Michael Lewis conceived the idea for the state recovery and Scruggs’ partner Steve Bozeman turned the concept into a cognizable complaint. Also covered was Attorney General Mike Moore’s rejection of a preliminary plan to file the tobacco litigation in Smith County with Gene Tullos. The book even references Scrugg’s litigation with Alwyn Luckey and William Roberts Wilson that ultimately contributed to his downfall.
As an attorney who enjoys reading about complex litigation, I wish the book was longer. While it seemed like the Horton case was adequately covered, I would have enjoyed more of the details about the litigation of the state case by the attorneys working on the case.
The 1990’s was the heyday for big-time litigation in Mississippi. Assuming the Risk provides a snapshot of what it was like to work on the high stakes litigation that was common during that era.