Business As Usual
The large ceremonial courtroom on the third floor of the Harris County Civil Courthouse was quiet. Sally Stephenson, a matronly African-American woman from rural South Carolina, was testifying on behalf of the State Bar of Texas as it tried yet again to nail John O'Quinn to the wall.
Stephenson's Deep South accent was at times nearly impenetrable, and she had to hold a microphone in her hand to be even halfway heard. Still, state bar lawyers had slowly led her through a recitation of how O'Quinn's team had threatened to take away her grandchild if she didn't hire them to represent her in a lawsuit over her son's death in an air disaster. The bar's attorneys had asked her to use her own words and to take whatever time necessary to tell the tale.
Then the cross-examination began. Stephenson had to admit she has told several versions of her story and said she couldn't remember giving a video deposition saying she never felt threatened by O'Quinn's team, led at that point by attorney Carl Shaw.
The courtroom was quiet as defense attorney Don Riddle shuffled his papers, looking for his next questions. Jurors used the pause to shift in their seats. Audience members glanced at the clock.
Then it came, apropos of nothing in particular, and louder than anything she had said so far: "I do remember Mr. Shaw called me a BEE-YITCH," Stephenson suddenly announced, her accent stretching the word to two syllables.
If you couldn't quite see the light bulb over her head as she suddenly remembered a supposedly key part of her story, you could have all but heard the click.
Stephenson plunged gamely on: "He was in my front yard when he said it -- no, he was not in my front yard, they were just going in my front door."
Or, as it turns out, he wasn't, depending on which sworn statement of Stephenson's you chose to believe. In some she denied ever hearing the comment, in others it was a bit more complicated: "You signed a statement," Riddle asked her, "saying that [a state bar lawyer] had told you Carl Shaw called you a bitch, isn't that right?"
"I feel that he wouldn't have told me that if it wasn't true," Stephenson answered. "I didn't treat O'Quinn's lawyers bad enough to have them call me a bee-yitch."
And with that, yet another state bar witness had bitten the dust. In what is likely the most high-profile ambulance-chasing trial ever brought in the United States, the bar's case rested on a trio of witnesses who were unbelievably inept: a main accuser who cheerfully allowed how she couldn't remember the last time she paid taxes and who had to admit she was using a false name she assumed to help along an inheritance scam; a smarmy attorney testifying against his father in return for a lighter sentence, and Stephenson, an innocent woman who seemed, through little fault of her own, to change her story to agree with whichever smooth-talking attorney had spoken with her last.
It was a motley crew indeed, something a state bar lawyer admitted in final arguments when, invoking a truly Texan trio of saints, he told the jury that you just don't find "Billy Graham, the pope or Roger Staubach" involved in these kinds of schemes. The jury all but laughed the bar's case out of court, however, taking less than an hour to acquit O'Quinn, Shaw and Benton Musslewhite, the longtime O'Quinn associate who watched his son Charles testify against him.
Somehow, the bar had convinced the jury that all the wrong done in the case -- threatening families, sneaking into a victim's hospital room, knocking on doors of grieving relatives -- had been done by the bar's own witnesses and that the defendants had no knowledge of what was going on.
There are those in the Texas legal community who are familiar with O'Quinn's legendary tightness with a buck and Musslewhite's loose interpretation of rules barring improper solicitation who find it hard to believe that O'Quinn wouldn't have been keeping close tabs on what the bar claimed was a $100,000 ambulance-chasing operation, and that Musslewhite wouldn't have been knocking over wailing grandmothers to get to bawling mothers if he needed to sign up a case.
But the state bar couldn't prove anything in court. And John O'Quinn, the Great White Whale who has obsessed and bedeviled a healthy portion of the bar for years and years, had gotten away again.
To be fair to the bar, if the witnesses' stories had remained consistent, there might have been a compelling case to make. On July 2, 1994, a USAir jet crashed near Charlotte, North Carolina, killing 37 people and injuring 20 others.
In the world of high-stakes litigation, few things can set off a scramble among lawyers like an air disaster. The cases are usually juicy, the airlines make easy targets and, perhaps most importantly, crashes occur regularly enough that firms specializing in them know the drill. They keep brochures and videos handy, and they know just how far they can push the solicitation rules without crossing the line.
Ethics rules in Texas and elsewhere are derived from U.S. Supreme Court rulings and local guidelines. Lawyers can send so-called Shapero letters touting their firm to victims or victims' relatives; they generally cannot make "cold calls," showing up uninvited at homes or hospital rooms. (Much to the chagrin of plaintiffs' lawyers, representatives of an airline's insurer, usually carrying a low-ball settlement offer, aren't constrained as tightly.)
But if you already have a client from an air disaster, nothing prevents you from investigating that crash. And if that investigation forces you to talk to other victims or their relatives, you're free to ask the people you're talking to whether they have a lawyer yet.
You are also not prevented from talking to a victim if you happen to represent him in an unrelated case. And that's what happened to Benton Musslewhite.
A roguish, 67-year-old charmer, Musslewhite has had a hand in cases from Agent Orange to Bhopal. He's shown up at oil-rig disasters all over the world, urging people to file their suits in the United States (and, coincidentally, to consider hiring him to do so).
He was suspended for three years by the bar in 1989 for running cases while he was on probation for, of all things, running cases.
Some say that the mere fact of not already having a client wouldn't have slowed Musslewhite down (the lawyer is, in fact, also facing case-running charges from the subsequent ValuJet crash), but fortunately for him, among the hundreds of clients he was representing in a toxic-tort case was one Floyd Doucette, whose son Dorrian was horribly burned in the USAir crash.
Nine days after the crash, Benton called his son Charles and asked him for a ride to Doucette's house, where they signed him and his son up as clients on behalf of O'Quinn. (Only O'Quinn, Musslewhite says, has the financial resources needed to pursue such high-stakes cases.)
Within days of signing up Doucette, a squad of highly unlikely investigators headed out to South Carolina, where most of the victims lived. They included a woman calling herself Betty Edward, a man named George Dillard, an O'Quinn employee named Darlene Hopper and Charles Musslewhite, who headed the operation. Benton Musslewhite and Carl Shaw also made visits to the state, and O'Quinn flew in to hold a press conference.
The firm had also hired a professional investigative firm out of Dallas called the Information Bank of Texas but were paying Edward and Dillard hundreds of dollars a day (the fee later jumped to $1,000 a day) to do their own "investigating."
The tab seems high for people with no formal training, but Musslewhite testified he was looking for "people persons" who could work with harried survivors and relatives.
O'Quinn's firm eventually handled about a dozen USAir cases, earning $4.5 million in fees. No one gave much thought to the matter until Betty Edward decided she was getting ripped off.
Edward says she was owed $455,000 in bonuses and pay; O'Quinn's people will tell you she was trying to extort $7.5 million out of the lawyer to keep quiet. When she found no relief, she took her complaints to the archconservative editorial pages of the Wall Street Journal, setting in motion the events that led to such a weak case being brought to trial.
About 18 months after the USAir crash, a Journal associate editor named Max Boot began writing a series of op-ed columns based on Edward's claims. The columns prompted the South Carolina Attorney General's Office and the State Bar of Texas to investigate the matter.
O'Quinn, Musslewhite and Shaw eventually pleaded guilty to the misdemeanor charge of giving legal advice in South Carolina without having a license from that state. Solicitation charges were dropped.
The State Bar of Texas's situation was clouded with politics and history. In the late 1980s they had gone after O'Quinn in a high-profile disbarment trial, but vivid internal disputes among members led to what was commonly seen as a slap-on-the-wrist settlement for O'Quinn and Musslewhite (O'Quinn received a public reprimand and performed 100 hours of community service; Musslewhite got probation, which he promptly violated).
Since then, O'Quinn had only become even more noted. Fortune magazine put him on its cover as a "Lawyer from Hell;" Forbes had tabbed him one of the nation's richest attorneys; and a string of courtroom victories in breast-implant cases, Texas's tobacco lawsuit and various other attention-getting causes had kept him in the headlines.
Armchair psychologists in the state's legal community were forever buzzing about the Yberdriven O'Quinn, about why he needed to still associate with Musslewhite and aggressively seek cases when his success allowed him to pick and choose. Most pseudoshrinks, knowing of O'Quinn's emotionally bereft upbringing by a stern father and absent mother, concluded that he couldn't stop himself until he had toppled the legendary Joe Jamail as Texas's top attorney.
From the beginning the bar treated O'Quinn's South Carolina case in a unique manner, appointing a blue-ribbon panel of attorneys to serve as a quasi grand jury and refusing to consider any settlement offers (even though bar rules seem to mandate at least one settlement offer, one of several due-process complaints in O'Quinn's countersuit that is seeking reimbursement of his attorneys' fees).
With a harsh spotlight on the bar and a chorus of critics waiting to charge "sell-out," the powerful organization found itself politically obligated to go to trial. Handling the case was Lonny Morrison, a former state bar president from Wichita Falls who has made a crusade of trying to improve the legal profession's image by tightening solicitation rules, and Broadus Spivey, a respected Austin litigator.
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Spivey let it be known how important he considered the case to be when he told the jury, "You are the first jury in America to have this opportunity -- never before has there been a higher lawyer and more sordid facts ... There's gonna be other plane crashes, and they're going to attract the hordes, but believe you me the hordes are watching this case, and they'll hear your verdict."
For his part, O'Quinn went through a string of high-profile attorneys, including Michael Tigar, who represented one of the Oklahoma City bombers, and David Berg, the prominent Houston attorney who dropped out of the case three days before trial. ("John had promised that he would let David run the trial his way, but as it got closer he just couldn't stop interfering," says a Berg confidante.)
Despite the string of defections (and a 90-day stay in a clinic to treat alcoholism and stress), O'Quinn amassed a quality team of litigators to represent himself, Shaw and Musslewhite at trial.
Despite Spivey's rhetoric -- he eventually would tell the jury: "Your children and your children's children will look back on this and ask if you took the opportunity [to fix the legal system]" -- the bar's case headed south with alarming alacrity.
There was Betty Edward, the "people person" investigator who first took her charges to the Wall Street Journal. She said she was promised $25,000 for each client she signed up.
O'Quinn's attorney was his former law partner, Ernest Cannon, a determinedly folksy Madisonville lawyer who's a cross between Red Duke and a Texas James Carville (his cross-examination of one witness included the "don't confuse me with a lawyer" tactic of drawling about how the bar had previously "gone through Exhibit This and Exhibit That" on direct examination).
Cannon got Edward to admit her name is really Betty St. Remy-Charter and that she adopted "Edward" in 1994 to be a possible beneficiary of a former live-in boyfriend's. He got her to admit she couldn't remember the last time she paid taxes. He got her to admit she was hoping to sell book and movie rights to her story, rights that would require an O'Quinn defeat, a defeat that would require her to tell a good enough story to convince the jury.
After Edward came Charles Musslewhite, Benton's son.
A balding, pudgy guy who tried to assume an air of gravitas by perpetually keeping his mouth downturned, the younger Musslewhite was in over his head almost immediately.
Squirmingly defensive, he allowed how the only instructions he had received from his father and O'Quinn were to do everything by the book (the defense team would repeat the phrase "Dot every i and cross every t" ad nauseam). He said he had witnessed Benton lecture Betty Edward and George Dillard, the rookie investigators, on how to keep within bar rules.
He called the speech "the Benton Drill," a cover-your-ass performance that was all but delivered with a wink and nod. He said he, Benton and O'Quinn were "speaking in code," referring to runners as investigators and talking about paying investigators for their time instead of for the cases they signed up.
"The words that they used were lawful, but my instructions were to get business, and the way to do that is door-knocking," he said.
O'Quinn's attorneys, theatrically expressing bafflement, wondered why three co-conspirators, alone in a room, needed to use a code among themselves. Charles Musslewhite could point to no specific instructions to break the law but gamely kept insisting that the real message behind the words he was hearing was to go get cases any way he could.
"There you go again," said Cannon after trying yet again to get Charles to pinpoint a conversation. "I'm not asking you what you think they said; I want the actual words they used."
Charles insisted that O'Quinn had been intensely interested in the goings-on in South Carolina, although phone records seemed to contradict his testimony. "John expressed concern any number of times about the amount of money being spent without results," he said.
Defense attorneys made sure that the jury knew Charles was cooperating with the bar and that sentencing for his ethical violations, as well as for criminal offenses in South Carolina, was still pending and would be affected by the worth of his testimony. They also pointed out that while Charles was to get 3 percent of any fees for the initial Doucette case, he stood to get 11 percent for any other South Carolina cases O'Quinn might handle (O'Quinn was to receive 67 percent of the fees in both circumstances, with the rest going to Benton Musslewhite).
Like Betty Edward and Sally Stephenson, Charles also had to admit he had told several versions of his story under oath.
As he testified, at times defiant, at times seemingly depressed, he looked every so often at his father, sitting 15 feet away. He said he had a "love-hate relationship" with Benton but that he "would rather be anywhere else on the planet" than testifying in court.
Perhaps sensing that he would lose any charm matchup with his father, Charles tried to vaccinate the jury for what he knew would be coming. "Benton, my father, he comes across as very believable, but lots of time the truth with him is a movable object," he said.
For his part, during a break in Charles's testimony Benton put on a rueful face. "They've made a self-righteous snitch out of him, and it's hurt him in the legal profession," he said. "It's all semantical games he's talking about up there. He's still my son and I love him, but they've just sold him on all this -- if he saw me commit an overt act that was improper I could almost understand him getting up there, but all this about talking in codes and all...."
As if to emphasize the difference between the stumbling son and the silver-tongued dad, the bar followed Charles by calling Benton as an adverse witness. Inexplicably, they began by asking open-ended questions that allowed Benton to turn to the jury and expound in his inimitable way about himself and the ins and outs of solicitation laws.
Benton has long made no secret that he pushes the envelope on solicitation laws, believing that they are too broadly written to pass constitutional muster and that free-speech challenges would overturn almost any conviction. He can go on and on, citing case law and legal definitions, as he explains that while it's improper to do a cold-call solicitation in person or on the phone, it's perfectly proper to send a letter and then have a representative of the lawyer inquire -- either in person or on the phone -- whether the victim or relative had received that letter.
Musslewhite and O'Quinn have a long and tortured history together; Musslewhite bridles at the widely held view that he merely amasses cases and passes them on to O'Quinn. Musslewhite filed for bankruptcy a few years ago, however, and the files show that his legal business -- and to a large extent his personal life -- is essentially a wholly owned subsidiary of O'Quinn's firm. O'Quinn financed the legal practice, and he gave loans to pay off Benton's personal bills (much of the financing, critics note darkly, occurring after the USAir controversy heated up).
In his testimony at the disbarment trial, Musslewhite frankly acknowledged that getting additional business was a distinct possibility that could arise from what he insisted was a valid investigation. But, he said, he had insisted that the people he hired follow the rules as he saw them, repeating the mantra that apparently resulted in a plethora of dotted i's and crossed t's in South Carolina.
If Benton Musslewhite was the pre-Monica Bill Clinton of the defendants, effortlessly deflecting hostile questions, then Carl Shaw and John O'Quinn were the Al Gores, fighting back every inquiry with hair-splitting objections and dredging up memories of Gore's infamously robotic "no controlling legal authority" press conference performance of a year ago.
Shaw had made two trips to South Carolina. On one of those trips he had to deal with a pressing problem: The O'Quinn team had signed up the grandmother of a child whose parents were killed in the crash; unfortunately for them the child's other grandmother wasn't as eager to sign up.
According to the bar, Shaw, Edward and Dillard went to the house of the second grandmother, Sally Stephenson, and threatened her with losing all custody rights to the child if she didn't sign up. According to Shaw, nothing of the sort happened.
"I was in Sally Stephenson's house for five to seven minutes," he testified. "I told her how I felt badly for the loss her family had suffered, and I explained to her that [other family members] had signed [the child] up with us, and I gave her the name of a local attorney who could help her with some social security and estate problems she said she was having.... She was very nice and cordial while we were there."
He denied ever calling Stephenson a bitch or saying anything that would upset her. (He also helpfully made clear, "Mr. O'Quinn has never asked me and never would ask me to solicit.... He has never asked me or anyone I know of to improperly acquire business for the firm.")
But Shaw was and always would be small potatoes in this case, a guppy caught up in the hunt for the Great White Whale who was the main target. And that target, John O'Quinn, nearly lost his own case for himself on the stand.
As a lawyer, he's a master of the courtroom, connecting emotionally with juries, respecting or disdaining his opponents as circumstances warrant. As a witness, he was a disaster, fumbling through false modesty as Cannon questioned him and arrogantly treating bar attorney Morrison in a manner that left the image of aggressive bad manners instead of a principled refusal to cooperate.
Even with visiting judge Bill Rhea strictly enforcing time limits on each side's presentations, O'Quinn and Cannon spent a half-hour or so in a vain attempt to aw-shucks the jury into appreciating O'Quinn's legal brilliance and admirable humility.
It was perhaps epitomized by this eye-rolling exchange:
Cannon: How'd you do in law school?
O'Quinn: Pretty good.
Cannon: What's "pretty good"?
O'Quinn: Okay, I did very good.
Cannon: What's "very good"?
O'Quinn: (a sigh, a pause) I was first in my class.
More damaging than the false modesty, though, was O'Quinn's cross-examination by Morrison, a beefy, smiling galoot from Wichita Falls.
As the man rumored to be most dead-set against any settlement offer, he was perhaps not ever going to be on O'Quinn's Christmas list. But O'Quinn wasn't just curt with him -- as soon as Morrison got up to question him, O'Quinn ostentatiously turned almost completely around in his chair, showing nothing but his back to Morrison, the courtroom and even some of the jury. When Morrison tried to walk to the defense side of the courtroom to make some eye contact, O'Quinn leaned far back in his chair, letting the judge's bench cut off Morrison's view, and he bowed his head to give close examination to his fingernails.
Worse, O'Quinn insisted that people like Betty Edward and George Dillard were running an investigation and an investigation only and that almost no thought was given at all to the possibility of any new cases coming in. Instead of Benton Musslewhite's casual agreement that new business -- albeit completely legally gotten -- might have come in, O'Quinn all but tried to leave the impression he would have turned down new cases.
Darlene Hopper, an O'Quinn full-time employee, went to South Carolina "on her own," he said. When Morrison asked if he had contemplated getting any additional business by sending people to South Carolina, he said, "The contemplation was that additional employment might result from the sending of the Shapero letters and the [Shapero] brochure."
Asked if he would deny that cold calls were made on his behalf, O'Quinn said, "I have no knowledge of that.... I'm not suggesting they were made or not made, I have no knowledge. Charles has told so many different stories about all that I can't figure them out."
If any members of the team -- whom he said he hardly knew and had no control over -- were inquiring whether victims had lawyers, O'Quinn said, it was because he was looking for help on the case he already had through Benton's current clients, the Doucettes.
"Frankly I was looking for allies," he told Cannon. "If I could possibly network with an ally, with South Carolina lawyers and people, it would help this case tremendously.... It would be an enormous benefit. [The Doucette's badly burned son] couldn't talk about what it was like on the plane before it crashed, with it jumping around in the air. Witnesses were vital, absolutely. The case couldn't be done without that."
And therefore, he said, his energetic team of not-quite-trained investigators, working out of a war room in a suite in the Columbia, South Carolina Adam's Mark hotel, having daily "to-do" meetings and getting up to $1,000 a day, needed to be talking with people who had been injured or had lost loved ones in the crash. They were eventually joined by Carlos Williams, a local who said he was a part-time preacher, part-time private investigator. If any members of that team did anything improper, John O'Quinn knew nothing about it. And in fact he'd have been mightily angered if he had found out.
A steady stream of lawyers had been drifting into and out of the courtroom's seating area throughout the two-week trial, unable to resist a glimpse of the biggest show in town. On the day of final arguments, more than 200 people crammed into the room, filling the benches and lining the walls.
Former mayor Bob Lanier and wife Elyse arrived fashionably late, standing patiently until a bailiff secured them comfortable chairs behind the state bar's table, where they sipped coffee. At a break, room was made for them behind O'Quinn's team, just in case the jury had somehow gotten the wrong message.
For the bar's lawyers, the case was a magnificent chance for the public to get back at every conniving lawyer who had ever preyed on a grieving widow.
"This is the greatest iceberg on the sea of ambulance-chasing in the history of mankind," said Spivey, on his way to exhorting jurors to think of their children's children. "An iceberg, you know, 83 percent of it is under the surface. What you don't see is what is below the surface.... It's what you haven't seen here, but what you must infer from circumstantial evidence, that is most important. This is the most significant opportunity to do something in the field of law that needs tending to."
Spivey also offered his version of the O'Quinn-trying-to-topple-Jamail theory but added that O'Quinn "could never touch [Jamail's] coattails, because that would require integrity, honesty and restraint."
For the defense team, the case was personal -- "I see jealousy, envy, covetousness," Cannon solemnly declared -- and fatally flawed. The wrong people were being tried.
"Don't misunderstand me, that was bad business over there, what Charles and Betty Edward and Carlos Williams did over there in South Carolina," Don Riddle said. "But because John O'Quinn paid for what he thought was a legitimate investigation, then he must be in on the deal, the bar says. But if that's true, why didn't he pay?" he asked, saying Edward and others were still claiming they were owed money.
It was the bar who was embracing people like Betty Edward and Charles Musslewhite, the defense argued. Charles knew he would get a larger cut of any new cases, so that is what he concentrated on.
"Charles left town with a fistful of money and a couple of people working for him, and he decided hey, why spend a lot of time investigating, because the [National Transportation Safety Board] is going to investigate anyway. I'll take Betty and George and line up a local guy, and we'll go get cases," Riddle said.
Jury members didn't have much to say after the verdict, but it was clear they didn't take long to make up their minds. While they were out for almost two and a half hours, they took a 20-minute break and took their time reading the charge. Actual deliberations took less than an hour, one said.
The verdict came back so fast that O'Quinn and some of his lawyers weren't even in the courtroom when it was announced. O'Quinn was sprinting down the hallway when he heard the loud cheers that went up from dozens of his supporters. He began crying almost immediately.
After accepting congratulations for a half-hour or so, an exhausted and enervated O'Quinn gave a statement to the press. Speaking slowly, as a cordon of friends and attorneys hovered protectively behind him, he wouldn't answer but one or two questions.
"It is hard for me to express what I feel right now. I am extremely happy this terrible ordeal is over, this nightmare that I and my family and my friends, the people I work with who are my friends, and the clients who are my friends, have endured. Even when you're innocent, you never know because innocent men are occasionally convicted," he said.
He said a juror had told him during the postverdict crush "how stumped and astounded they were at how pitiful and weak the evidence was that the bar was presenting."
O'Quinn said he did not expect the trial to end his ongoing battle with the bar. "All I know is what my friend Ernest Cannon said today; he said, 'John, they are going to stay after you until they get your license, but I don't think they are going to get it today.' "
By then, the bar's lawyers had slipped quietly away. Their Great White Whale had eluded them again.
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