INSIDE THE FIRM
Aug 7, 2001
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."