Tuesday, Aug 07, 2001

July 29, 2001
By GARY McELROY - Staff Reporter
Mobile Register

Three Mobile lawyers, with five paralegals and numerous aides and runners, moved into Montgomery's Embassy Suites hotel. They rented nearly an entire wing and established what they called a "War Room."

It was November of last year, and the firm of Cunningham, Bounds, Yance, Crowder & Brown, representing the state of Alabama, was about to take on the largest oil company in the world.

For the next seven weeks, Robert Cunningham Jr., John Crowder and Richard Dorman, all partners in the Mobile firm, averaged about five hours of sleep per night. Among other tasks, Crowder said, they read and re-read through 43,000 pages of documents they had collected In more than 100 boxes.

They met in the War Room - two connecting suites In the hotel - twice a day, at 8 a.m. and at 4 p.m., to review progress and address problems not yet solved.

Otherwise, they worked alone. Rarely did they return to Mobile and, If so, never for more than a night at a time.

It was all-out war, all-consuming," Dorman said of the trial preparation.

By Tuesday, Dec. 19, it was over. The 11-partner firm of Cunningham Bounds had beaten the Exxon Mobil Corp.

A Circuit Court jury said the international oil giant must pay the state a record $3.5 billion in damages and penalties. Jurors ruled that Exxon skimmed offshore natural gas royalties that actually belonged to the state.

The award was divided into $87.7 million in compensatory damages, plus $3.42 billion in punitive damages.

Should those amounts hold up, it would mean a fee for Cunningham Bounds of some $490 million - almost $200 million more than the annual budget of the Mobile County, Public school system.

The verdict thrust the firm into the national spotlight and prompted some to question whether one group of lawyers deserved such a potent profit. While Cunningham Bounds had never received a fee of such magnitude, it was no stranger to the spoils of success.

For years, the firm has had a reputation of being one of the toughest in the state. But even that had to be built up slowly and carefully the founding partners say.

These days, due to their success, it is firm that has the luxury of taking the cases that other lawyers can't even afford to try. And they usually are the cases with the biggest potential payoffs.

"They are in a position that everybody wants to be in," Mobile attorney Fred Helmsing of Helmsing, Lyons, Sims Leach said, with admiration. "They are tendered the best cases.

Inherently, in a defense practice, have no choice," he said. "You've been sued, here is the suit, do something about it.

In plaintiffs' work, you call your cases," Helmsing said. "And this is the point with firms like Cunningham Bounds - access. So many people are ringing them cases, they can reject the marginal or weak ones. And they have an excellent review system."

Cunningham Bounds' partner and even their adversaries, however, maintain the firm's success has not just been the result of being choosy about cases. There was a time, in the beginning, when they took any and every case they could get.

The position they are in today his largely, they say, been a product of hard work, the kind of effort and hours the firm put in when taking on Exxon.

Most of those working hours are spent in the heart of Midtown inside a subdued but graceful, white trimmed brick building on a shady block along the south side of Dauphin Street. The main building extends east and west into wings between Monterey Street and Macy Place. Behind it, two, smaller structures, once modest private homes now owned by the firm, were converted into office space as the firm's workload and prosperity, increased.

In a narrow parking lot that runs the of the main building luxury sport utility vehicles sit beside Mercedes, which sit next to Jaguars.

Just inside the front door of the main building, a resplendent, $30,000 chandelier hangs from the ceiling above, the receptionist's desk: $5,000 jade urns with gold trim on antique tables in the foyer.

Dominating it all, a wide staircase rises, then curves out of sight with antebellum grace as if promising clients a direct ascent to legal triumph. Despite its genteel appearance, 1601 Dauphin is its own kind of war room. On several recent weekday visits, it was clear there was no idling on the premises. Beyond the receptionist’s desk, everyone was bent over, hard at work. The pace was cranked up. Box after box of court files were stacked everywhere.

Unless in court or out of town, the partners labor at their richly grained wooden desks hour after hour, every weekday and many weekends. absorbing the minutiae crammed into those boxes stacked all around them.

Firm members popped into their partners’ offices with the casualness and confidence of fraternity brothers. They’d ask a question, clarify a point, then disappear as quickly as they came.

In addition to founders Robert Cunningham Sr. and Richard Bounds, the firm is made up of nine partners, two associates and a passel of secretaries, runners, investigators and paralegals, about 60 people altogether.

Although officially retired, Bounds comes into the office each weekday during the lunch hour to fill in for his colleagues. It’s at noon that partners and associates, almost to a man, go to the downtown YMCA where, often in lieu of long lunches, they exercise.

According to several partners, the daily workouts are one of the few, albeit unspoken, firm precepts to which each member tries to adhere.

In light of their workloads, said partner Greg Breedlove, daily exercise is “one of the big things - being physically healthy.”

And while they swim, lift weights or play handball, Bounds fills in back at the office. “I just think there ought to be a lawyer here to take phone calls,” he said.

Some time ago, the firm decided that 70 would be the mandatory retirement age. Cunningham Sr. reached that in 1988, Bounds 11 years later.

One partner intimated that the firm is considering changing that policy so that Bounds can return to the daily operations of the firm full time. Many in the firm say they consider him a personal mentor.

‘There is no I’

The partners appear genuinely fond of one another, and during lengthy interviews over several weeks expressed respect for each other’s skills and work ethic.

“No one is more important that the others,” said Dorman. “They are strong personalities who speak their minds, but there are no personality conflicts.”

Crowder, who has practiced at Cunningham Bounds for nearly 30 years, agreed. "There, is not a single lawyer in the firm with ego problem," he said.

Much of the firm's success, Bounds said, is because "there is no I, me, or mine. 'It's always 'we, ours, us. 'lf it's a victory, it's ours, if there is a problem, it's everybody's problem."

Bounds said that during his career, he has seen many firms In Alabama split up over money.

At his own, he said, "there is never an argument about the distribution of income, or anything else. That strengthens support for what we are doing. There are no heroes, no hot dogs, no stars."

Cunningham Bounds generally charges clients a fee of about one-third to 40 percent of what is won in court or through a settlement. In medical malpractice suits, that fee is closer to 50 percent. In the Exxon case, they agreed to take a 14 percent fee.

The firm's payday, called a contingency fee, rides on the win. Without the win, the partnership gets nothing, not even reimbursement for the expenses it put into the case, such as experts and investigators.

Partner David Wirtes, Jr. said the firm turns down about 50 cases for every two it accepts.

Yet, "we're hungry", Wirtes said. "And when the firm loses a case for a client, it's the worst damned bitter feeling. It's horrible. You don't want to be around me."

"If we lose," Crowder said, "it's usually for the right reasons. We hardly ever appeal."

And once, even when they lost, they won.

In March, the firm represented the family of a man who died at a local hospital. They sued the facility for $10 million and the case went to trial, with two weeks of testimony before It was put in jurors' hands.

Deep into the jury's deliberations, after nearly four hours, lawyers for the hospital - perhaps fearful that the lawyers for Cunningham Bounds had done their jobs all too well - settled with Robert "Bobo" (pronounced "Bob-oh") Cunningham Jr. and Joseph "Buddy" Brown. The amount of the settlement was undisclosed, but is believed to be a substantial percent of what the plaintiff originally sought.

Only after the deal was sealed with a handshake did it come to light that the jury had, just minutes before, decided in favor of the hospital. They wouldn't have given the plaintiffs a penny.

Despite failing to convince jurors of their cause, the firm walked away with grateful clients and a large contingency fee.

Instead of delighting in the firm's seemingly golden luck, months later Cunningham Jr. expressed relief for his clients, but shook his head at the loss of the jury decision, embarrassed at the "a- whipping" he said he received.

"None of us likes to lose, none of us," firm partner Jim Yance declared.

Screen and screen again

Bounds said that in its early days, the firm accepted "anything we could get: fender-benders, whiplash..."

There was a joke that went around town 30 years ago, when the firm was headquartered in another building farther east on Dauphin and Julia streets. It was said the facility had its own "ambulance bay."

From the beginning, old-time observers suggest, the firm founded in 1958 made it a point to know everyone - police, firemen, politicians, insurance executives, emergency workers - upon whom they could depend to recommend potential clients.

While acknowledging this, some partners pointed out that there was a big difference between welcoming referrals and having operatives lurking around every wreck and fire. Never, they said, did the firm chase down victims and solicit their business.

"Some people think we have a plant in every dispatch station, hospital and police precinct in the county," Crowder said, "but you won't get anybody to corroborate that. It's just not true."

As the firm's legal prowess, and success grew, the choices widened. Today, Crowder said, "we screen we screen and we screen again." The, firm rarely takes on a case in which the potential settlement is less than $100,000, he said.

Each year, according to Crowder, he and his partners are obliged to turn down thousands of potential clients.

Yance said that about once a week he and his colleagues gather in one of the firm's several conference rooms and, in frank discussions, decide which new cases to accept and what must be done. to overcome strategic barriers in ongoing ones.

Yance said the firm generally has four criteria in taking on a case: "One: Is there significant harm to the victim, is someone taking advantage of him or cheating him? Is there fraud? Two: How bad was the harm and what has it cost the victim? Three: Does it upset us, does it offend us? And four, the actual dollar, what does it mean financially?"

"We tend to take the larger cases, because we have the resources to fight them," Yance said.

"They are not going to outspend us, and they are not going to out-manpower us," Crowder said. The firm to date has spent more than $4 million in litigating the state's battles with oil companies, Crowder said, including Exxon appeals, and cases against Amoco, Shell Oil, Hunt Petroleum and Mobil, all involving similar lease issues.

Crowder said he broached the need for approval of additional funds at a recent firm meeting with his partners. Some sighed, he said, but no one flinched.

"The ability to finance large litigation is essential," Bounds said. "Otherwise, they bury you."

Two Sided success

You won't get a tally from Cunningham Bounds of the accumulated wealth of the firm and Its individual partners.

It would be safe to say, based on property holdings and past cases, that more than one partner is a multi-millionaire.

There are custom-designed homes at the Country Club of Mobile, on the Bay, on posh Ono Island at the Gulf.

In 1996, when Bounds and his wife decided to sell their Montrose home and build farther down the Bay, it was firm attorney Breedlove who bought the Montrose house for about $1.5 million.

It's not hard to find somebody with a tale of largesse associated with the firm, be it a large tab at a local restaurant or a hunting trip in South America. Bobo Cunningham is a world-class fly fisherman who enjoys flying his seaplane to his vacation home in the Bahamas.

Buddy Brown, a former U.S. Air Force pilot, has his own jet, a Citation 500. Brown said the aircraft is by no means a silk-stocking extravagance. Rather, he said, it's a necessity that's added "one full year of practice" to his career.

“I didn’t want to waste time and hours in airports,” Brown said. “ I can say I’m going to kill a pile of (work) today. Kick the tires, light the fires, and away I go!”

While there are perks that come with large settlements and jury awards, the firm’s work ethic has exacted a personal price for some of its lawyers. Nearly half the partners have gone through divorces.

“It certainly can put a strain on a relationship if it’s not as strong as granite,” Crowder said. “No question when you have somebody working 60 hours a week, and you are wound just as tight as a rubber band on a toy airplane most of the time, it can take its toll on a marriage.”

In part to deal with the stress, in the past the firm has required partners to take a nine-month sabbatical every five years.

Finding the Facts.

While it’s the lawyers who get the limelight, Cunningham Bounds relies heavily on its investigators to collect information, interview prospective witnesses, gather strategic material, accumulate technical data and take, pictures and notes.

Jeff Stokes, a former undercover detective for the Mobile Police Department, heads a six-member crew - four investigators and two secretaries - who work exclusively for the firm. Each Investigator often juggles as many as 25 cases.

Stokes said he and his investigators, one a former assistant Mobile police chief, have 100 years of law enforcement experience among them.

The average investigation of a case takes about three months, Stokes said, after which time his team delivers to Cunningham Bounds' lawyers what he calls "the whole package, a Reader's Digest version of a novel," in a binder four or five inches thick.

Often another binder filled with nothing but pictures, including aerial photographs if necessary, accompanies the first one, Stokes said.

"There's nothing like being, there," he said of the on-site investigations the firm both sanctions' and requires. "And we have the luxury of taking the time. We physically touch everything. Our mandate is to find out the facts of the case, whether it helps us, or hurts us."

Stokes said once his team has done its work, the partners take over like anchors in a relay race.

"They really get intense," Stokes said, "they don't play; they go right for the jugular. And I've never seen anybody prepare like these guys. They over-prepare."

Even referrals lucrative

A popular dream among the rank-and-file of the Mobile Bar, one local attorney said recently, is to refer a huge, successful case to Cunningham Bounds, receive an appropriate fee "then retire."

The attorney was only half kidding.

Over the years, Cunningham Bounds has developed goodwill among fellow trial lawyers for its reliable referral fees when cases sent to the firm turn out well in court.

Although some Mobile plaintiff firms provide higher fees - anywhere from 35 percent to 50 percent of their contingency earning's Bounds' Industry standard of one third often still means the biggest referral check in town because of the firm's track record of winning often an winning big.

Attorneys in town say that in the field of personal injury and wrongful death, six-figure referral, fees are common. Even seven-figure payments, they say, are not unheard of.

According to one recent account, a lawyer was summoned to the firm to pick up a high-dollar referral fee. In light of the size of the check, the attorney drove there half expecting balloons and party favors in celebration of what, to him, was a momentous payday.

He later reported, however, that in a matter-of-fact gesture, a secretary reached into a box crammed with rows of other checks, then casually handed him one as if paying for a pizza.

Beyond the generous referral fees' other attorneys in town - more than a dozen interviewed over several weeks - expressed respect for the way Cunnighham Bounds conducts its business.

One attorney who has faced them in court said that Cunningham Bounds is a tide that raises all ships. “If you want to see a lawyer perform at his best,” the attorney said, pit him against that firm.

Steve Moore of the plaintiffs’ firm of Moore & Wolfe, said Cunningham Bounds enjoys a reputation of hard work, integrity and results that belie the stereotype of lawyers as greedy schemers feeding on other people’s woes.

“We live in an age in which there is such a negative connotation to the image of the trial lawyer,” Moore said, “For our community, you are pretty hard-pressed to transfer that negative national image to the Cunningham Bounds firm. The reason is that, once again, they just stand out as ethical, well-prepared attorneys... They’re leaders.”

Another lawyer, in another part of the country, though, isn’t as enamored of the firm.

Sherman Joyce, president of the Washington-based American Tort Reform Association, said the high-dollar won by firms like Cunningham Bounds are "dramatically out of line with the underlying harm and it's a very disturbing trend around the country."

He calls it "regulation by litigation."

"We certainly know Cunningham Bounds, Joyce said, describing them as a "prominent, politically active, successful personal injury law firm involved in, high-profit lawsuits."

A devil's collection

"This is not a happy place," said Jerry Weakley, Cunningham Bounds' office manager of many years, as he and Wirtes drove up in front of a warehouse one recent afternoon.

Inside the huge white building, piles of twisted and tangled metal - once cars, airplanes, motorcycles and other: equipment - rest on the wide concrete floor inside.

They are a devil's collection of objects d'art, symbolizing death, injury and loss. The warehouse is a repository for much of the evidence in pending cases and for the records of cases past.

In one corner, a car is cut into two pieces, the halves separated by piles of unrecognizable junk. Another large vehicle lies crushed as though flattened under the footstep of a giant.

A van, its frame completely intact, was so thoroughly burned there is nothing left but gray metal. A relatively minor crash Into an electric pole caused two people riding in It only slight injuries, Wirtes said, but the van caught fire, and they had to get out. When they did, he said, both were electrocuted.

In another corner, a normal-sized sedan has been reduced nearly to the width of a single car. Nothing that was alive inside this thing upon impact could have survived. A visitor doesn't ask; neither Wirtes nor Weakley volunteer the fate of the occupants.

Weakley was right. Like a funeral parlor or a morgue,. the warehouse is sad and eerie. Sound is magnified. Voices reflexively lower out of respect and the sense of dread these macabre shapes, invoke.

A small motorbike leans against a crate. Except for a skewed strip of metal near the handlebars, it looks ready to take a spin, but the young girl who was riding it was crushed when she got caught under a road grader last year on Dauphin Island.

In two large, oblong crates, the charred scraps of a private airplane - a four-foot fragment of a wing is the largest piece - are all that remain of a crash that killed four people near a small airport in Louisiana in 1999.

"That one bothers me a lot," Weakley said as walked past the crates. At least two of the victims were still alive when the plane caught fire.

Adjacent to and above the warped steel, another section of the warehouse contains hundreds of boxes of court records associated with the grim images on the floor and many other cases.

Despite the obvious riches and material comforts these lawyers enjoy away from their work, the warehouse with its fearsome inventory reminds them that many of the firm's cases began when people were maimed, paralyzed, crushed or burned.

Firm partner Mike Worel said that when working a case, he places a picture of his client - or the victim, if he is representing relatives - at the front of the file "so that every time I pick the file up, the first thing I see is that picture. It reaffirms what I am doing here."

"You hurt as much as your client, you feel it," Bounds said.

Bounds said he grows weary and angry when someone accuses his firm of racking up high jury awards for nothing but the personal gain of its partners.

"People think our only objective is to make more money and get another Jaguar," Bounds said. If they knew anything about the firm, by golly, they might not feel that way. We put in as much as we take out. I tell them, 'Don't tell me about the "little folks." I'm not getting.' into that with you.' "

Bounds said his firm has the means to take important cases without initial fees and the talent to win them. Without firms like his, he said, the lives of many victims would never be mended.

"Joe's arm is cut off," Bounds said "Well, Joe, it's going to cost you $5,000 or $10,000. Bring that in, and we will take it from here. 'Well,' Joe says. 'I'm Sorry I guess I'll just have to accept what happened to me.'"

"We are the poor man's key to the courthouse," Bounds said. "Without that, who are you going to get to represent them?"

A framed print hangs on Crowder's Office wall to his right. He can see it whenever he looks up from his desk.

In the picture, a small, hollowed eyed man in tattered clothes clings in fear and confusion to a much taller man with chiseled features. Together they face a mob below them, whose outstretched arms and fingers point toward the little man with loathing.

Towering over the scene like a monolith is the universal symbol of justice, a blindfolded giantess in ancient robes holding up a set of scales that look as if they themselves weigh a ton.

The painting, artist unknown, is called "The Advocate."

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