Trying Times, Trying Cases

Trying Times, Trying CasesAuthor(s): RAY McALLISTERSource: ABA Journal, Vol. 74, No. 1 (JANUARY 1, 1988), pp. 48-52Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759695 .

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Amertcaf Cmirts

Trying Times,

Trying Cases

by ray McAllister

Sitting in his Jeep Grand Wago neer as the sun rises, U.S. Dis

trict Judge Robert R. Merhige Jr. points out two homes.

The first is his guest house, sit ting off to the side of his driveway. It is the second one on the site.

He explains that in the 1970s, when Merhige ordered crosstown busing for Richmond, Va., he en

raged this conservative Capital of the Confederacy. He was villainized in editorials, hung in effigy and threat ened with death. On Sunday after noons, angry people drove up and down the street, shouting out threats.

Merhige's dog was shot to death. And his guest house was burned to the ground.

The second home that he points out is just down the street in this ex clusive neighborhood in Richmond's West End. It belongs to E. Claiborne Robins Sr., once the driving force be hind the A.H. Robins Co. and still its board chairman. A.H. Robins gained fame for Robitussin and Dimetapp cold products, Chap Stick hp balm and Sergeant's flea collars. Now it is known for the Dalkon Shield, the infamous intrauterine device that killed scores of women and injured hundreds of thousands of others. The company has

been in bankruptcy reorganization under Merhige for more than two years.

The Robins case, technically only one of 500 pending cases, takes fully half his time. Though on senior status, Merhige works more hours than ever.

By 7:15 this Tuesday, Oct. 6, the judge is wheeling his Wagoneer through an old warehouse section not far from the city's downtown. He and youngest son, Mark, own prop erties being converted to offices or storehouses or apartments, and Mer

hige is checking on the work. Merhige is a wealthy man by

most standards, more than a mil lionaire. His wealth lies mostly in real estate accumulated during 25 years of private practice preceding his 1967 appointment by President Johnson. Without the holdings, he says, he could not afford to be a

judge. By all accounts, including his own, Merhige was an extraordinary attorney. He dealt mostly in crimi nal law and, at a time when the death penalty was used freely in Virginia, never lost a client to the electric chair.

At 7:20 he is in his chambers, turning on the lights, making coffee. "First one in makes the coffee, you know." He has beaten the marshals in, and his law clerks and his secretary. The clerks?Karen Schifter and Wil liam McDonnell?are taking a chance. Anyone who dares to wander in as late as 7:30 is likely to get Merhige's "good afternoon" greeting.

When they come in today, though, Merhige is tied up in dicta tion. He is to be "roasted" this week end for charity. And he is taking no chances.

"You know what I'm doing, don't you?" Merhige says with a

laugh. "I'm writing the guys doing the roasting, saying Shirl and I would like to have them spend a week at the Greenbriar with us." Merhige is a con artist, knows he is a con artist and delights in being a con artist.

It's part of his charm, which is con siderable. The fact that Merhige is not being roasted with real fire is

a testament. It also shows how far both Richmond and he have come

during his two decades on the bench. Now 68, he has been honored by

virtually everyone, even being named "Richmonder of the Year" in 1986 by a local magazine. Richmond is still conservative, but the liberal judge is no longer The Enemy.

His career was showcased a month earlier during a black tie cel ebration of his 20th judicial anniver sary. The career has seen him order state prison officials to extend due process to convicts, rule that preg nant women were entitled to mater nity leave benefits, help order certain Watergate tapes to be made public, and levy the then-largest pollution fine ever?$8 million against Allied Chemical Co.

The celebration brought out the city's elite that night, including Vir

Ray McAllister is a reporter for the Richmond Times-Dispatch in

Richmond, Va.

48 ABA JOURNAL / JANUARY 1, 1988



RICHMOND, VA.

ginia Gov. Gerald L. Baliles and re tired Supreme Court Justice Lewis F. Powell Jr. (Powell's son, Lewis III, clerked for Merhige in 1978-79 and was the emcee. The younger Powell remembered his first day of clerking and Merhige's first words to him: "Wait a minute. I thought I was get ting the real Lewis Powell.")

Civil rights lawyer Henry L. Marsh III remembered Merhige's in tegration rulings to a hushed ball room that included judges, legislators and lawyers, the heart of Virginia's establishment.

Marsh said he and other civil rights lawyers found it "comforting to have Judge Merhige on the bench" during the turbulent days. At a time when the state's courts and legisla ture "didn't understand the 14th Amendment, we had a judge who'd call them as he saw them."

By 7:45 this morning, Merhige is going over a pre-sentence report for a 9:00 sentencing. He makes a few phone calls on the Robins case, then calls in lawyers for a pre-trial confer ence in an injury case.

He wants the case settled. "This is the worst I've seen in 20

years on the bench, and I've seen some bad ones," he begins. Behind the scenes is where Merhige does some of his more important work. "I've seen injuries as bad but not in combina tion with others."

A tractor-trailer with failed brakes has crashed into a pickup truck at a toll plaza. The man in the pickup, who has a wife and seven children, is now a quadriplegic. The trucking firm admits blame?only the dollars are at issue.

Merhige finds out that the truck ing firm's chief lawyer's offer is up to $3 million. The paralyzed man's law yer is down to $5.5 million.

Merhige turns to the latter. "I don't blame you for not taking this. We're talking about compromise. Would you take five?"

Seeing he has an ally in the judge, the lawyer agrees, tentatively, to the reduction.

"I might reduce your fee," Mer hige adds.

The lawyer is taken aback. "I'm not sure how you can," he says, uneasily. "It's a matter of contract."

Merhige says he might give it a

try, anyway. Both lawyers appear unsteady,

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ABA JOURNAL / JANUARY 1, 1988 49



even defensive. Certainly apprehen sive. When one suggests difficulty in

meeting the trial date, the other bolts upright.

"John, calm down," Merhige says. "He's going to be there when the trial begins. He doesn't want to be the only lawyer in Richmond who's hit for $3-to-$10 million this year. And he realizes you want to be the only lawyer in Hopewell who gets $3-to $10 million this year.

"That's the trouble. We've got egos involved here. We ought to be talking money."

The judge wants to be sure they do. "I want you all to go into the con ference room and talk," he says. To the trucking lawyer, in an aside in tended for all to hear, he adds, "Five million dollars is not a crazy figure. It really isn't.

"I think you ought to pay $5 mil lion. And I think he ought to reduce his fee a little bit."

The lawyers gone, Merhige says confidently, "They'll work it out." (Within three weeks, the paralyzed

man's lawyer will announce a $4.7 million settlement, a record personal injury figure for Virginia.)

Merhige goes back to the phone for 10 minutes, then on to the bench.

Merhige's courtroom has been called the most beautiful in the state. Richly paneled, el

egant and judicial in every sense, both it and his inner office look out over

Virginia's Capitol Square. The capi tol, designed by Jefferson, and the grounds are breathtaking as the leaves turn. "When the foliage is gone, you can see the governor's office, see

right into it," Merhige says. A convicted felon awaits sent

encing for illegal possession of fire arms. Many of his guns came from people who stole them. His lawyer makes the novel argument that his client's illegal collection has gotten the guns off the street.

"I know you're perfectly sincere. But somehow," Merhige says, putting a hand to his heart, "it doesn't touch

me here."

"I understand," the lawyer re

sponds. Merhige sentences the man to

three years. Merhige has to give up his court

room. The U.S. Circuit Court of Ap peals for the 4th Circuit is in town

and, though there are numerous courts in the building, his usually is taken by one of the panels. "They're spoiled now," Merhige grins. "I'll never get it back."

He goes to a small courtroom for a race discrimination case. A low-lev el postal employee has missed filing deadlines, his alleged discrimination is a decade old, and his only evidence is from himself and his wife.

If ever there is a case suited for a three-paragraph dismissal order, this is it. But Merhige wants to give the man his day in court. Eventually, the judge tells the man he has lost.

The man's frustration, his bewil derment, are evident. "I left out that that was an action that took place

when President Kennedy was in of fice," he interrupts.

Merhige would never tolerate that from a lawyer, but here he lis tens. "It's unfortunate you simply waited too long," he says finally. "And I'm very, very sorry."

The 45 minutes he allowed the man was too long. A jury trial, next up, is now behind schedule.

Merhige practically sprints into chambers. "We're really rushed," he says to no one in particular, adding to Karen, "tell the marshals to put the jurors in the courtroom."

The lawyers are waiting to take care of a few details first. Merhige tells them quickly what depositions he will let in. The lawyers are talking about

a two-day trial. Merhige isn't. "This trial will be over. Ill be on

a plane out of here by tomorrow morning. You'll be here by yourself."

The lawyers leave for the court room, and Merhige puts on a robe. Merhige's plane doesn't leave until 1 p.m. tomorrow, so the judge has conned them. How long will the trial last? "Oh, I don't know. I bluff 'em tell them I'm going to the movies,

whatever."

Merhige begins the jury trial at 10:10. A doctor, shot in an emergency room scuffle, claims security at the rural hospital was inadequate. A

marginal case. On the one hand, there were no security guards. On the oth er, it's not clear they could have done anything anyway.

ABAJ/?ruce Parker

Merhige takes time to slip out briefly for a hot dog lunch.

ABAJ/Bruce Parker

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Merhige between sessions.

80 ABA JOURNAL / JANUARY 1, 1988



The trial goes three hours and breaks for lunch. Merhige jumps on the phone. More calls.

The judge is a photograph junk ie. There are hundreds in his cham bers. Family, friends and clerks, of course. But this is an eclectic collec tion: There is J. Edgar Hoover, for mer Supreme Court Justice Tom Clark and his attorney general son, Ramsey Clark, John J. Sirica, Hubert Humphrey, and LBJ, of course. All autographed.

Merhige often skips lunch. To day, he puts on his coat and touring cap, and darts across Main Street to a sidewalk cart. He can't get his usu al?the woman doesn't have tossed

salads today?so he settles for a hot dog with mustard. One dollar.

At 1:50, it is time for more Ro bins. A conference call to lawyers in Washington, New York and Chicago. Big issues and niggling details, both. How many people want hearings on a specific issue, how can he get rid of claims that actually involve a com peting IUD, that type of thing.

The call ends after 20 minutes, and Merhige asks Karen to set up an order for a hearing on Nov. 27 and 28.

"You know it's Thanksgiving weekend," she says.

"You got a contract that says you can't work Thanksgiving weekend?"

"I just wanted to make sure you know it."

"Yes, I know it," Merhige says. "I just wanted to make sure they couldn't give me that crap, they had to be somewhere else."

There is a judicial machismo to Merhige, which includes working holidays. "Up until six months ago? I'll try not to exaggerate this?I don't think I missed a day being in this of fice when I was physically in Rich mond, in 18, 19 years. I don't think I missed a day being in this office sometime. Saturday, Sunday, Christ

mas, New Year's."

His family had to pay some of the cost. "Well, it's tempered, I guess, that when I'm home, I'm home," he of

fers. "I stay at home. I don't play golf. Whatever I do, I do with my family.

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It was worse when the children were young. But since I came on the bench, the only one who got cheated was Mark. He was only 7 at that time." Robert III was already 20.

The lawyers come back from lunch. It seems they're talking. Set tlement is a possibility. The judge pushes.

"I've seen stronger cases," Mer

hige tells the doctor's lawyer. The lawyer won't be bullied.

"I've seen weaker cases," he says. The hospital has offered

$250,000, with the prospect of going higher. Merhige thinks it's generous, possibly to a fault. Seven minutes lat er, the case is settled.

Hands in his pocket, bouncing on his toes, Merhige is nothing short of gleeful. "Now I can get some work done."

At 2:30, Merhige tells the jurors they can go home. "The parties have reasoned together and they have set tled, which is the way all cases should end."

He waives the rule that the par ties have to pay for a jury if they don't settle in time to avoid one. In other words, Merhige is feeling guilty. "That's my fault," he will say later. "I misread that one. I didn't realize they were so close."

The settlement gives him time to watch a videotape for a Michigan State University study on pretrial publicity. The mock case is for judges to decide whom they would strike from a jury pool.

The 40-minute tape begins with a long-winded introduction and Mer hige is impatient. "Move it! Move it, Professor!" he says to the TV screen. The jury selection is easy. Six jurors in, two out.

Merhige and his law clerks go back upstairs. In chambers, a federal prosecutor from West Virginia is waiting, merely to say hello. Friends and acquaintances often drop by.

Merhige has many of each from points distant, in part because he often is assigned elsewhere to help clear dockets. Moreover, his speaking schedule is intense. During the re

maining three weeks of October, for instance, Merhige has engagements in Charleston, S.C., Washington, D.C., and New Mexico. He also has accept ed invitations from the University of Richmond, the Virginia State Bar, the

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University of Georgia, Georgetown University, a congressional commit tee and the University of Virginia.

Merhige returns to the phone, trying to get his flight from Charles ton changed. He wants to be back Friday night, not Saturday.

Then it's Robins. Again. This time a hearing for group estimates of dollars in the mammoth case. "How do you work up a fair hearing when 99 people want to talk, and 30 of them are lawyers?" he asks himself. "You can't have 30 lawyers cross-examin

ing the witnesses." At 4:00, he's on the phone with

Dennis Drebsky, a New York lawyer representing Robins, about the esti

mates. He dictates another letter, then heads to a funeral home.

The settlement has allowed this trip, which Merhige didn't think he could fit in. A young woman has been killed in a bizarre and highly publi cized strangling, one of two that have confused the city and Richmond po lice. Her husband had assisted in court research on Robins. The judge has been asked to stop by.

It's a half-hour trip. Merhige parks and hurries inside the funeral parlor. He emerges after three min utes. The young man is not there, but Merhige has talked to his minister.

Raised in Long Island, Merhige followed friends to college in High Point, N.C. He went on, of

all things, a basketball scholarship. Merhige is 5-foot-7 1/2. "College was fun. I was a bad student. Cs and a

couple of Ds. But I didn't work. When I got to law school, I loved it. I

worked."

A friend steered him toward an athletic job in Richmond, telling him he could study law at the College of William and Mary. Merhige came to Richmond, went to enroll at William and Mary, and found it was 60 miles away in Williamsburg.

So he enrolled in the University of Richmond's law school instead, and worked nights in the school's library. He later joined a firm in the city and never doubted he had made the right move.

"I don't know that being a judge was the right job for me. That I don't know," he says. "But being in the law was right, no doubt in my mind." He laughs. "I'm sure there may be doubt in the minds of a lot of others, but not in mine."

Back at the office, at 5:30, it's time for questions from the law clerks. Karen wants to know if she should start work on a particular opinion ("No, I need to go over my

notes") and wants an answer in a

housing discrimination suit fee ap plication ("Not sure yet").

Bill brings up another fee appli cation. The lawyer says there are three legal issues. It will take more than an hour for him to argue.

Not here it won't. "You tell him if he argued it be

fore the Supreme Court, he'd only have 30 minutes," Merhige says. "And here he's got eight fewer judges."

The judge sits down to the week ly progress report he receives on the hundreds of thousands of Dalkon Shield claims. The progress includes dealing with duplicate claims, trans ferring information into computers, keeping up with correspondence and changing addresses and changing lawyers, and the like. Once manage able in a regular workday, it now goes until 9:30 each night. There are 30 daytime employees and 20 nighttime employees handling it.

"I'm telling you," Merhige says, "the thing is absolutely mind-bog gling." Merhige, who has always seemed indefatigable, sometimes seems less so when talking about Ro bins these days. Not long ago, a story in The Washington Post called into question his dispatch in handling the case.

"We're going to make it, but it is absolutely mind-boggling."

(There are more than mind-bog gling numbers to the case. A week earlier, Merhige warned both his neighbor, E. Claiborne Robins Sr., and Robins' son, company president E. Claiborne Robins Jr., that he might force them to resign if they did not resolve an impasse blocking another company's attempt to buy out Ro bins. And two weeks after that, Mer hige would hold E. Claiborne Robins Jr. in civil contempt for disobeying a court order and fine him $10,000.)

He takes a phone call from a for mer law clerk, then one from the head of the court's Robins research unit. More Robins. "There's never an end," he says. "Never."

By 6:15, he is ready to leave, stopping to buy a paper before head ing home for a drink. At 6:40, nearly 12 hours after he left home, Mer hige's work day is over.

Nearly. All that's left is a three-hour

working dinner at a local restaurant. To discuss Robins.

ABAJ/Bruce Parker

There's never an end" to the Robins case.

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Trying Times, Trying Cases