Laurence Leamer Interviews Lawyers Dave Fawcett and Bruce Stanley
When you drove down to West Virginia to meet Hugh Caperton, whose coal mine Don Blankenship had driven into bankruptcy, you told Caperton it might take as long as two years to bring him to justice. It’s been fourteen years now and Caperton is still waiting. Have there been moments when you wanted to call it quits or when your law firm suggested they had spent enough money on a futile quest?
DAVE FAWCETT: Never. I worked with two firms during this time and both were enormously supportive. Both were led by managing and senior partners who saw the need to fight the forces of corporate and judicial injustice. I have been lucky.
Bruce, you had your doubts about getting involved in the case. Have you ever felt you made a mistake and wanted out? And do you think this interminable case has helped or hurt your career?
BRUCE STANLEY: There have definitely been times that I wanted out. Defeat is not an easy thing for a trial lawyer’s ego, especially when you’re convinced of the justness of your position. It becomes doubly difficult when you see the wear and tear on those around you – your family, your teammates and, ultimately, your client. But I also understand that important accomplishments are not had without sacrifice. Has it been worth the sacrifice? I think the jury, and, literally, perhaps the grand jury, is still out on that one.
As for my personal career, it has been both good and bad. I have no doubt that Hugh [Caperton’s] case reflects some of the best lawyering that my teammates and I have ever been able to accomplish, yet we’ve never seen a penny of fees, and as you note, the injustice still has not been rectified. On the other hand, I had the honor and privilege of representing Delorice Bragg and Freda Hatfield in their quest for justice, and I would not trade the experiences of that case for anything. Caperton led to the Aracoma cases, to the Rawl slurry litigation, to the Jones family and the tragedy of Upper Big Branch, and hopefully, to a bit of true change in the coal fields of southern West Virginia.
I describe you two guys as the odd couple in the book. You are both from different backgrounds and both have very different legal styles. Dave, what have you learned from Bruce over these years?
FAWCETT: I have learned that sometimes very different people can have very similar values and common purposes and so are much more similar than may be apparent. Although Bruce and I have different styles, we both have a deep respect and appreciation for each other’s strengths – and a strong belief in the judicial system. I have also come to know the value of reinforcements – when fighting a war, you need brothers-in-arms.
And Bruce, what have you learned from Dave?
STANLEY: I learned from Dave to bring more of a business perspective to the practice, but I don’t mean that from a monetary standpoint. I mean that from a case approach standpoint. I think that Dave has handled the day-to-day pressure better than me.
What is your take on Don Blankenship? And how has that changed over the years?
STANLEY: I have very mixed feelings about Don. I think that in many ways we are both children of a coalfield culture that values black rock and money more than it does the planet and its people. In that sense, I understand his “pure capitalism” approach to life; it simply reflects the culture in which we were raised. But that’s also the disturbing thing to me. Plenty of southern West Virginians are prone to Don’s way of thinking, but few have the ability to think like Don. To me, it’s great promise gone wrong. As a result, more than 50 miners died on his watch since Massey became a publicly traded company. Untold environmental destruction has occurred; an untold number of companies like Hugh’s have been run out of business; and southern West Virginia has become a broken shell of a society; a land of haves and have-nots; a place of us against them. While it is unfair to lay all of the area’s social sickness at Don’s doorstep, he has actively pursued an agenda intended to exploit and worsen those conditions even though he was in a position better suited than nearly anyone else to bring about fundamental change.
FAWCETT: Don Blankenship is a man who epitomizes everything that is wrong with corporate America and CEOs who believe that all decisions should be made strictly based upon a cost-benefit analysis. Certain ideals – like complying with the law – cannot be reduced to numbers.
What about your attitudes toward justice in America? Do you have less faith or more in the American legal system after fighting this case so long?
STANLEY: I really don’t think about it in terms of faith anymore. I think about it in terms of process. The system, while highly idealistic in concept, is nevertheless a system. Those who navigate the system best, or who find themselves in the smoothest waters, tend to fare better than poor pilots on rough seas. And as with any system, if those in a position to do so game it, then it simply will not work as intended. And the system does get gamed. That said, it is amazing to me how well it can work, even in the face of improper manipulation, through diligence and good lawyering. And there are lot of good lawyers and good judges out there. But there are also bad ones. And it is those bad ones who cause the non-lawyers to lose faith in the system. If the American justice system is to survive, the rest of society has to believe that we in the legal community are both capable of and willing to police our own.
FAWCETT: It is not a matter of having faith or losing faith. It is a matter of insisting upon a fair process. Real, genuine, due process is what makes our system work. When we lose it, the system loses all credibility. I have a greater understanding than ever for the need to have limits on the power of judges when they have a past, present or future financial interest in a case. Without measures to ensure an independent judiciary, our legal system will be no better than that in third world countries.
You two don’t work in a pro bono firm. You work for one of the largest, most successful law firms in the world servicing mainly corporations and the wealthy. Few lawyers at the firm are taking on cases like Caperton. Should American law firms take on more cases like Caperton? Is there a need out there for more lawyers willing to take cases like Caperton?
STANLEY: Reed Smith has been incredibly supportive. Even after it became clear the kind of journey we were facing, they gave the nod to all of the other incredible cases I’ve been privileged to be a part of. And the firm’s pro bono commitment is very significant. All of our lawyers, but especially our young lawyers, are encouraged to take on pro bono matters and that encouragement is validated by treating the time spent on those cases the same as time spent on cases for clients who pay the bill every month. It’s important to remember that corporate America likes predictability. And unpredictability in the legal system is not good for business. We may disagree about what the law should be, but once we decide what the law is on a given issue, then everyone’s best interest is served by applying it fairly. While the jaded may hear that and think I’m spouting pablum, I believe it to be true. The biggest problem is a lack of equal access to justice. It’s simply hard for an attorney to make a decent living representing the poor and the weak, and as a society, we have made a relatively lousy commitment of resources to assure equal access. One of the reasons Reed Smith signs off on the cases I do is because they expect me to make money for the firm doing them. I can assure you that if we can get to the point where a lawyer can make a decent living – not get rich, but be able to make the mortgage and car payments – there would be no shortage of attorneys – good attorneys – willing to take on those unrepresented cases. The tort system/contingent fee model has proven that. We just need to find and commit to good equivalents for the worthy social justice and criminal justice cases still out there.
FAWCETT: Many law firms of all sizes – including some very successful big firms – have lawyers who devote time and resources to people who can’t afford to pay for counsel. Lawyers have a duty to do pro bono work, and many go well beyond what is required. We as lawyers are trained to help people. It’s easy to forget that when you are also told and expected to make money. It is right and healthy when law firms choose to take at least a portion of their cases not so much to make money, but to right a wrong.
Finally, what are the crucial things you have learned in this epic quest for justice?
STANLEY: Be sure to take enough time every day so that you have the energy to live and fight another day.
BRUCE: 1) Paid politics and judging are bad roommates. 2) What you don’t know will always fill a lot bigger book than what you do. 3) I’m really not sure that you can’t go home again – you just might not feel welcome everywhere. 4) The law, like all human endeavors, is subject to human error and foible. 5) When you’re in a fight, especially of this magnitude, try to make sure of the person you’re sharing your foxhole with. If you didn’t know them before, you will before the end. The test is simple – when all seems lost, is your foxhole buddy there for you? Fortunately, it has worked out for us. 6) In the end, it’s all about relationships. The greatest accomplishments are not the verdicts won, but the relationships made. What good is a war story if nobody wants to share it with you? 7) As a society, we crave justice. 8) I am truly and constantly amazed at how much my wife, family, and friends love and support me in all the sometimes crazy things that I do.