In early 1985, Pogue and a couple of his colleagues boarded a flight from Cleveland to Greensboro, North Carolina. Their destination was the headquarters of the tobacco company R.J. Reynolds. Years earlier, Pogue had lost his luggage on a business trip, and now he refused to check his bags, so the lawyers trudged through the Greensboro airport, hauling suitcases, on their way to catch a quick connecting flight to Winston-Salem.
The Jones Day squad had been invited to Winston-Salem by Harold Henderson, who for many years had been the general counsel of Firestone Tire in Ohio. Firestone had faced ruinous litigation because its car tires had a nasty habit of exploding, and Jones Day’s team—led by one of the country’s best litigators, Pat McCartan—had successfully defused lawsuits and federal investigations. (McCartan’s defense was that yes, the tires were flawed, but hey, the process of binding rubber and steel wasn’t perfect.1)
Henderson had recently decamped to RJR. From a legal standpoint, at least, the tobacco industry was coming off a successful few decades. Suits brought by smokers generally got tossed out of courts, a reflection of the industry’s savvy at obscuring the evidence that smoking was addictive and deadly. And cigarette companies were determined to never settle cases—only fight, fight, fight. There would be no easy wins for plaintiffs’ lawyers. Remarkably, the tobacco industry had never been forced to pay any damages.2
By the mid-1980s, even as nearly one of every three American adults smoked, the landscape was shifting. Thousands of scientific reports had meticulously documented the health hazards of smoking; the annual death toll was estimated at 350,000 Americans. “No smoking” signs were becoming common. And courts increasingly held manufacturers liable when they produced dangerous products—like asbestos or faulty breast implants—even if others shared some of the blame for the health consequences.3
Now the bill was threatening to come due for the tobacco industry. In the fall of 1985, a pair of closely watched lawsuits against RJR—one in Tennessee, the other in California—were set to go to trial. Henderson surveyed RJR’s defense teams. They consisted mostly of small local firms. He got the feeling that his new employer, lulled by years of placid waters, was sailing into a gale.
After Pogue and his colleagues met with RJR brass in Winston-Salem, Henderson consulted with his board of directors and got permission to appoint Jones Day as RJR’s lead litigation counsel.4 First, though, he needed an assurance. He warned Pogue that he, Henderson, would be going “far out on a limb” by hiring a Cleveland law firm for this “bet-your-company” assignment. Pogue promised Henderson that Jones Day was prepared to stand “shoulder-to-shoulder” with its new client.5
This would turn out to be a momentous decision for Jones Day, but the lawyers scarcely thought twice about representing a tobacco company. Smoking was not nearly the cultural kryptonite it would become. More than that, the attorneys saw the gig as a validation of all the hard work they had put into years of thankless litigation on behalf of Firestone and other companies. Of course, it didn’t hurt that this new client would likely become an extravagant moneymaker for Jones Day. “I do not recall that anyone at the firm had ‘qualms’ about representing Reynolds,” Pogue wrote to me in an email. “It has always been my personal philosophy that everyone is entitled to counsel, no matter how unpopular their cause happens to appear in some circles at any particular time, and so it never occurred to me that anyone would question the firm’s representation of a successful, law-abiding organization.” Assuming that was true, it reflected a jarring lack of imagination and foresight on the part of a brilliant lawyer.
The reality was that the Jones Day litigators didn’t see these tobacco lawsuits as a matter of justice. Sure, the cigarette companies were selling deadly products. But plaintiffs’ lawyers were just trying to make a buck, and prosecutors were just trying to make names for themselves. (Jones Day lawyers would joke that the letters “AG,” which typically stood for “attorney general,” actually were short for “aspiring governor.”) This was a cynical but not entirely unfounded view, and it allowed the lawyers to avoid moral judgment and instead adopt a mercenary approach to the practice of the law. There were no good guys or bad guys in this type of litigation, the attorneys assured themselves. It was more like a game, and everyone was doing whatever they could to win.
Jones Day officially came on board as RJR’s defense firm on April 1, 1985, and the following months would be frenzied. In downtown Winston-Salem, a large team set up shop on the tenth floor of the Integon building. The lawyers began the arduous and top-secret process of sifting through millions of RJR’s documents to understand the lay of the land.6 Small squads of attorneys fanned out to interview current and former scientists, executives, and in-house lawyers.7
One result was a long report detailing the history of RJR’s work to oppose government regulations—a history that included destroying documents, hiring scientists to create smokescreens, and moving controversial research projects overseas to improve the odds that they’d be kept secret.8 The Jones Day document made clear that RJR knew that, at least for some people, its product was addictive. The law firm also produced a manual laying out its litigation strategy, which consisted in large part of blaming smokers for their own misfortune. “The key defense strategy in smoking and health litigation is (and must be) to try the plaintiff,” the manual explained.9 Another tenet was muddying the science. “The defense must not concede that cigarette smoking has been proved to be addictive,” Jones Day instructed. “Indeed, there are substantial benefits to be derived over waging a definitional battle” over the meaning of words like “addiction.”10 A group of lawyers was directed to find experts who would be willing to testify that cigarettes weren’t addictive or harmful.11
John Strauch, a renowned Jones Day trial lawyer and Camel Lights smoker,12 commanded this army of attorneys. By the fall of 1985, he had emerged as a public spokesman for the tobacco industry. The fact that cigarettes cause health problems “has not been scientifically established,” he falsely told the PBS show Frontline.* “There is a real controversy raging about what science has and has not been able to establish yet.” He denied that smoking was anything more than an enjoyable habit. Otherwise, he asserted, “you end up claiming that chocolate is addictive.”
Another Jones Day attorney, Bob Weber, was on a team prepping for the trial that was soon to start in Santa Barbara, a beach town in Southern California. Weber, who was in his mid-thirties, would go on to become one of the firm’s most successful lawyers and a top contender to one day run the place. This trial would be a crucial proving ground.
Weber had grown up in small-town Ohio, where he was a high school football star.13 Yale recruited him for its team, but during the first scrimmage of his freshman season, he ripped up his shoulder, and that was the end of that. It slowly dawned on Weber that he’d need to come up with a career plan. Maybe he could return to Geauga County and become a football coach. He toyed with going to grad school. Instead, he became a substitute teacher for a year, which was more than enough time for him to realize he wasn’t cut out to be a teacher. So, like countless other young people looking to buy time before committing to a career path, Weber decided to go to law school. He got into Duke.
Weber didn’t know anything about the legal industry, and he wasn’t alone. It was 1973, before Bates and the American Lawyer. He didn’t realize there was such a thing as large law firms, until recruiting season got underway during his second year. Weber was studying in a cubicle in the basement of Duke’s library when a lawyer from Jones Day came by to introduce himself, having gotten his name from one of Weber’s professors. The lawyer invited Weber to lunch—and then to Cleveland for a weekend of interviews. After graduating in 1976, Weber joined Jones Day as an associate.
At first, he was stuck on boring assignments. When a Jones Day client was preparing to issue bonds to raise money, he had to sit around the facility where the prospectuses were printed, going through draft after draft. There was booze and a round-the-clock buffet and a TV with porno movies in the back. Weber must have wondered whether this was the best use of his time and talent.
When he wasn’t hanging around printing plants, he played on the Jones Day softball team, along with a bunch of guys from the litigation department. Weber liked them and soon finagled a job from John Strauch, who ran the group. Weber started small, helping defend General Motors in a lawsuit, then moved on to the Firestone cases. Strauch would mark up Weber’s deposition transcripts, dispensing little tips, as they flew from one city to the next to interview witnesses and experts.
Under Strauch’s tutelage, Weber became a great trial lawyer. He mastered the psychology of juries. During jury selection, he learned to ask open-ended questions about what these men and women read, what their interests were.14 He wanted jurors who had a positive outlook and believed they could make a difference in the world. Folks like that were more likely to embrace individual responsibility than to blame corporations for misfortune.15 During trials, he emphasized his rural roots while avoiding a patronizing aw-shucks demeanor. “He was raised not to be presumptuous,” his wife once said.16 He was highly attuned to how jurors perceived lawyers. He pushed his colleagues to think less about impressing the judge and focus more on the jury. Don’t sit around whispering to each other or passing notes—jurors hate that. “They watch how you treat the people you work with. They watch how you react when our witness is on the stand,” Weber would explain. The goal was “communicating with that jury that we know what’s going on, that nothing is surprising us, and that we’re in control.”17
Years later, Weber composed a handbook, divulging to his colleagues the trial tactics that had made him largely invincible in a courtroom. “That’s how I wanted the jury to see me; as an advocate to be sure, but not an unfair or nasty one. Not an advocate using sharp tactics or trying to win at any cost; instead an advocate who, just like the jury, was interested in putting out the full story and reaching the ‘right’ result,” he wrote.18 “To carry out that persona, the lawyer must be fair with witnesses, fair with evidence, and fair with the jury.” This was a bit of a shtick—a persona, as Weber put it—but if followed carefully, it translated into ethical conduct: Don’t quote things out of context. Don’t mislead. Don’t adopt self-serving interpretations of ambiguous documents. “Let your sense of fundamental decency and ethics motivate you throughout trial,” he concluded.
Not all of his colleagues would follow Weber’s advice. And in any case, it only applied to how the firm behaved in the presence of jurors.
Twenty-five years earlier, Melvin Belli had lost the first-ever tobacco lawsuit to go to trial. He’d sued tobacco companies twenty times since then. He’d never won. Now, in John Galbraith, Belli thought he’d found his silver bullet, a plaintiff who would finally knock Big Tobacco to its knees.19
Belli was one of America’s most famous lawyers. His roster of clients ranged from Jack Ruby to Muhammad Ali, with plenty of politicians, movie stars, musicians, and millionaires mixed in. But he was best known for his exploits as a plaintiff’s lawyer. He pioneered the use of graphic evidence—gigantic photos of accident scenes or gruesome injuries, sometimes even a skeleton—to drive home his points to a jury. In the 1950s, Life magazine dubbed him the “King of Torts,” and the moniker stuck. Once, after winning a big case, he hoisted a Jolly Roger flag atop his firm’s offices and fired a cannon to signal the start of the celebration. With a mane of silver hair, he generally appeared in court wearing fine tailored suits, lined with red silk, and black snakeskin boots.20 “When you’re the king of torts, you’ve got to live like the king of torts,” Belli explained.21
Belli had filed a $100 million lawsuit against RJR in 1981 on behalf of John Galbraith, who’d started smoking in 1930 when he was eighteen. Every day for the next fifty years, he’d consumed at least two packs of Camel, Winston, or Salem cigarettes, all made by RJR. Even on his deathbed, kept alive by an oxygen tube snaking up his nostrils, Galbraith would sneak smokes. That’s how addicted he was.22 He died in the summer of 1982 at sixty-nine. (His widow and adult children took over as plaintiffs in the suit.)
In 1984, the U.S. surgeon general had branded smoking as the “chief single avoidable cause of death in our society,” and the director of the National Institute on Drug Abuse had deemed cigarettes more addictive than alcohol or even heroin.23 With the science clear, Belli was confident this case would be a turning point in the war against tobacco. He planned to make addiction the centerpiece of his case. If the Galbraith family won, it was sure to trigger a tidal wave of new suits by smokers and their families. Already, there were about seventy-five similar lawsuits against RJR pending nationwide.24
Weber, Strauch, and the Jones Day squad had a simple objective: Crush this lawsuit. Pulverize it. Make Belli rue the day he had pursued RJR. Doing so would signal to other would-be plaintiffs and their lawyers that RJR was not going to roll over. It was going to continue to fight with all its strength.
From the start, the battle was lopsided. Lawyers for RJR submitted thousands of pages of motions and briefs, burying Belli’s team in paperwork. Jones Day demanded that the Galbraiths hand over Christmas cards, phone logs, lists of attendees at family members’ weddings and birthdays.25 The RJR contingent subpoenaed and then deposed just about anyone who had ever been in contact with Galbraith: distant relatives, former employees, an ex-wife from more than forty years ago.26 After tracking her down in a trailer park in the Arizona desert, a team of six lawyers spent hours interviewing her about Galbraith’s hobbies and eating habits. Did he use bug spray? Did he eat peanut butter? Did he read books?27 Meanwhile, whenever Belli’s side wanted to depose an RJR witness, Jones Day strenuously objected. That meant the plaintiffs had to go to court to force the witness to sit for an interview, which ate up more time and resources. A couple of years later, a Jones Day lawyer would sum up the strategy: “The aggressive posture we have taken regarding depositions . . . continues to make these cases extremely burdensome and expensive for plaintiffs’ lawyers. To paraphrase General Patton, the way we won these cases was not by spending all of Reynolds’s money, but by making that other son of a bitch spend all of his.”28
Shortly before the Galbraith trial began, Jones Day and its client faced an important choice. Belli had filed the lawsuit in state court against not only RJR but also the store that for years had sold Galbraith cigarettes. The fact that one defendant was from California meant the case had to stay in state court. But then Belli dropped the retailer as a defendant. RJR now could seek to remove the case to federal court. Normally, this would have been a no-brainer. Federal courts tend to be more hospitable to big companies, and just as important, it would have restarted the entire process, pushing a trial years into the future and putting pressure on the plaintiffs to give up.
But Weber and Strauch were increasingly confident they’d prevail. Galbraith, the lawyers had learned, had lived an unhealthy lifestyle; it would not be hard to pin the blame for his illness on things other than cigarettes. And a win in this bellwether case would be worth much more than just kicking the can down the road. The lawyers decided to go to trial now.
It began on November 8, 1985, in Santa Barbara Superior Court, a white building with a red-tiled roof and a clock tower, designed to evoke a Spanish castle. The judge surveyed the crowded courtroom. “How many of you are there?” he asked. “I don’t think I want to be here today.”29 RJR had twenty-two representatives in the room: seven lawyers, five publicists, an errand boy, three men who assisted with jury selection, a woman who took notes for those men, a couple of legal secretaries, and three others whose precise roles reporters at the courthouse couldn’t immediately discern. Jones Day knew this wasn’t a good look, and it convinced the judge to prohibit Belli from mentioning to the jury how many lawyers were there representing RJR.30
The courtroom also had a regular audience of analysts from Wall Street firms. The outcome of the case could have market-moving implications for the shares of RJR and other tobacco companies.31
The defense strategy was simple: Blame the victim. Galbraith wasn’t addicted to cigarettes, Strauch insisted. He just didn’t try hard enough to quit. Tobacco didn’t kill him, Strauch asserted; Galbraith had a host of other ailments, ate junk food, drank too much. His parents and siblings had died young; by that standard, Strauch suggested, Galbraith had lived a surprisingly long life.32 Another RJR lawyer argued that if cigarettes were indeed bad for Galbraith, the blame lay not with the tobacco company but with his wife, “who helped him obtain cigarettes after he became seriously ill.”33 And on and on. All of this was supplemented with Jones Day’s well-rehearsed experts, whose sworn testimony cast doubt on the fact that cigarettes were deadly and addictive.
Halfway through the five-week trial, news came from Knoxville, Tennessee, where Jones Day was defending RJR in another lawsuit brought by a smoker. A federal judge had tossed it out of court. For Jones Day and its client, this was an encouraging omen.
In Santa Barbara, the jurors deliberated for nine hours before returning with their verdict on the morning of December 23. It was a balmy day, the temperature in the sixties, and a gentle breeze blew in from the Pacific as the lawyers made their way to the courthouse. The vote was nine to three (just enough to avoid a hung jury): RJR was not responsible for Galbraith’s death. As the decision was read and the jurors were surveyed, Galbraith’s widow and children stared ahead, fighting to suppress their emotions. A Wall Street analyst sprinted out of the courtroom to call his colleagues with the great news for Big Tobacco. “People said we were in a new era, a new ballgame, and somehow things have changed,” Strauch crowed to reporters afterward. “But we said personal responsibility was still the issue.”34
The lawyers headed to the Santa Barbara airport. Their grateful client had sent a corporate jet to fly the team home to Cleveland.
Around that time, a Jones Day lawyer showed up at the University of Texas Health Center in Tyler, Texas. The attorney was there to see a doctor named Gary Huber. More than a decade earlier, in 1971, a representative of the Tobacco Institute, the industry’s leading trade association, had approached Huber,35 who at the time was a respiratory scientist at Harvard Medical School. The lobbyist had proposed bankrolling a new research center focused on tobacco. Huber said yes; the industry would eventually spend nearly $3 million on the Harvard center. At the time, cigarette companies were desperately searching for evidence that maybe, just maybe, their products didn’t kill their customers. Partnering with Harvard had obvious attractions, namely “the P.R. value of the Harvard name,” as an industry executive put it.36
The results, however, were not what the industry was looking for. Huber tested how the lungs and hearts of lab animals reacted to cigarette smoke. The animals got sick. Huber tested the effect of low-nicotine cigarettes on humans. People compensated by smoking more cigarettes and inhaling the smoke deeper into their lungs.37 Huber published his findings, and tobacco executives publicly pooh-poohed them. “So what?” shrugged the medical director of the Tobacco Institute, saying Huber’s conclusions would only be of interest to “people who worship at the temple of health.”38
In 1980, Huber went from Harvard to the University of Kentucky, where he hoped to continue his research. But the anticipated funding from the tobacco industry never materialized. It was hard to miss the message: His independent-minded research was not appreciated. Five years later, Huber relocated again, this time to the University of Texas. That’s when he got the visit from Jones Day. The firm arranged for Huber to be paid to critique research on the connections between smoking and diseases like emphysema.39
By now, Huber understood the game, and he was ready to play. He published papers downplaying the risks of secondhand smoke. Research that documented its health risks was “shoddy and poorly conceived,” he claimed.40 Secondhand smoke, Huber wrote, “is so highly diluted that it is not even appropriate to call it smoke.”41 In another report, he pondered, “Is smoking beneficial to your health? I believe that for some individuals, it may be.”42 When damaging studies about the health risks of smoking came out, RJR and other tobacco companies pointed reporters toward Huber’s research.43
Before long, Huber had become “one of the most cited researchers in America,” as one newspaper put it.44 “Modern Puritans want to control us through government,” a syndicated columnist warned about tobacco regulations, pointing to Huber’s work,45 which also was picked up in a Congressional Research Service report.46 RJR and Philip Morris cited Huber’s research in ads47 and in a lawsuit against the U.S. government.48 Jones Day covered Huber’s tab, which stretched into the millions of dollars.49
Well into the 1990s, RJR and its lawyers were lying about tobacco’s dangers. “Cigarette smoking is no more ‘addictive’ than coffee, tea, or Twinkies,” the company said in a written statement to a congressional committee in 1994. Jones Day helped craft the testimony that day by RJR’s chief executive, James Johnston.50 Lawmakers pummeled Johnston. “I was shocked and appalled that the Congressmen would treat a man of your stature, and a representative of such a fine company, in such a disgraceful manner,” a Jones Day employee wrote to Johnston afterward.51
The relationship between the two institutions was tight, sealed over many a boozy weekend. Chuck Blixt, RJR’s general counsel, was often up in Cleveland, attending cocktail parties and NBA games with the firm’s partners. “Jones Day’s representation of RJR over the past ten years has been invaluable to the company,” Blixt wrote in a thank-you letter after one jaunt in 1995. “On a more personal level, the friendships that have developed from this relationship have meant a great deal to each of us at RJR.”52 The Jones Day team, and sometimes their wives, would go down to North Carolina or Florida for a weekend of golf, tennis, and meetings with politicians at a lush resort.53
Both sides had reasons to be happy. Weber beat back one legal assault after another, including a $2 billion racketeering case brought on behalf of more than one hundred union health plans.54 At RJR’s instruction,55 Jones Day whipped up white papers—“Does Advertising Really Control Cigarette Consumption: The Surprising Answer”—and then RJR cited those papers as evidence in response to allegations that cartoon spokesman Joe Camel led people to start smoking.56 This went beyond normal lawyering or the zealous representation of a longtime client. Jones Day was creating science fiction.
For the law firm, the rewards were obscene. In 1985, when Jones Day took on RJR as a client, the tobacco company was spending a total of about $1 million a month on legal fees, only a fraction of which was going to the firm.57 Thirteen years later, RJR was paying Jones Day alone $7.8 million in a typical month—or nearly $94 million a year.58 This single client was responsible for 19 percent of the firm’s total revenue.59 Let that sink in: Nearly one out of every five dollars that Jones Day earned came from RJR. Month after month, year after year, you could count on this gusher continuing. “It’s a huge stabilizing force,” a retired partner, George Manning, told me. “It’s the reason why the firm was able to continue to grow.”
Yet despite the best efforts of RJR and Jones Day, the science on the dangers of smoking had gone from being very strong to being bulletproof. Their decades of deceit now known, tobacco companies had become public villains. Texas and dozens of other states were suing the industry to recover the many billions of dollars in costs associated with caring for ailing smokers. In 1997, Gary Huber was subpoenaed for a deposition by Texas’s lawyers. Huber called a Jones Day lawyer, Bob McDermott, and told him that he planned to comply. McDermott was “extremely angry,” Huber later said.60 He warned Huber that he wasn’t permitted to talk about his tobacco work with outside parties. “What have you done?” McDermott demanded. If Huber cooperated, “the weight of Jones Day could come down on you.” McDermott ended the conversation on an ominous note: “My prayers are with you.”61*
Huber asked the state’s lawyers to buy him a life insurance policy. “I did feel concerned . . . for my family,” Huber later said under oath. His wife “has cried herself to sleep many nights, lost weight, just worried about a lot of things.” 62 A judge offered him the protection of U.S. Marshals.63
Huber went through with the videotaped deposition, and he backed away from his research that played down the risks of secondhand smoke. He essentially admitted to having been a stooge for the tobacco industry. (He also recounted what McDermott had said.) The industry would eventually settle Texas’s lawsuit for a record $14.5 billion.
Yet for years afterward, Huber’s research continued to reverberate. “WHERE THERE’S SMOKE, THERE’S DISTORTION,” an Arizona Republic headline blared on a 2002 opinion piece. “The oft-stated claim that secondhand smoke is dangerous to others is utterly unsupported by scientific findings,” the columnist wrote, falsely. Huber’s debunked research was a crucial piece of his argument.64