Letter to Herman Benson from Leon Rosenblatt

Printer-friendly version of this pageSend by email

Dear Mr. Benson:

You asked me to describe what it has been like representing IAM Local Lodge S/6's officers in our Labor Management and Reporting Act (LMRDA) case. My wife thinks I am a bit nuts, so thank you for asking. It is nice to be able to explain my life, in these past twelve months, to someone who doesn't know me intimately enough to call me nuts.

This case simultaneously is exciting and maddening. LMRDA cases tend to be that way. My clients -- Mike Keenan, Troy Osgood, Mike Cyr, and Cathy London -- are very, very talented union leaders. The IAM defendants are very, very bad. There is a Shakespearian quality to this case, though it remains to be seen whether this is a tragedy or a comedy. ("Comedy" in the sense of the good guys win.)

In the past year, I have put in more than 850 hours. If I were a normal lawyer, charging a normal fee for service, that would be more than $200,000. So, my decision to represent these plaintiffs was, in effect, a decision to donate more than $200,000 to the cause of union democracy. With luck, I'll be paid some or maybe even all of that back someday, but that is far from certain. First, I have to get by summary judgment. This is when judges, who act as gatekeepers for the legal system, throw out cases without allowing plaintiffs to have a jury trial. Motions for summary judgment are granted with shocking regularity. (Most Americans who think they have an inviolate right to redress of their grievances would be surprised at the reality.) Then I have to win at trial. And then, after trial, I have to convince a judge that my representing these plaintiffs conferred a "common benefit" on the membership. Then I have to prevail in the certain appeal. Lawyers who win LMRDA cases usually are paid cents on the dollar.

I should mention that while I am donating $200,000-plus of my time to the cause, the IAM has, count them, three private practice lawyers and two in-house lawyers working on this case. All five are being paid by the IAM's membership.

A common weapon defense lawyers use is to inundate plaintiffs with paper. That certainly has happened here. The first batch of paper I received in discovery consisted of about 7,000 pages of documents. Just to make it more difficult and time consuming for me, they enclosed many duplicates. Of those 7,000 pages, there were probably 100 or 150 that are significant. I will say that I am lucky in this case because my clients are so diligent and competent. They spent whole days reading the documents and selecting out the important ones for me to look at. And it wasn't just them. Mike Keenan's wife, Kelly, and Troy Osgood's wife, Tracey, also helped. Troy then created a database to make order out of the documents. (He told me he didn't mind that too much, though; he would sit down at his computer every night with his vodka drink and plug away at it.)

After that first batch of 7,000 documents arrived, the IAM's lawyers kept on sending me more, in dribs and drabs, most of it irrelevant, some of it repetitive. The total now exceeds 8,000.

Mike Keenan and I flew to Washington, D.C. to take IAM President Buffenbarger's and IAM Vice President Tucker's depositions. Fortunately, we were able to stay at an IAM insider's house, so there was no hotel bill. Then I had to go to Maine repeatedly for depositions of my clients and the remaining defendants. Just to make the process more intimidating for the plaintiffs, the IAM paid a great deal of the members' money to have the depositions videotaped. Eleven depositions were taken in all. At no time did the IAM have fewer than two lawyers present; sometimes three, four and even five.

Deposition transcripts are expensive. That was a cost I did not want to carry, so the plaintiffs have been raising money. There was a party up in Brunswick with a band and food. Collections have been taken at the shipyard gates, and members have been very generous. But raising money is a struggle. My clients have joined the fundraising with their organizing. They have just come out with t-shirts, with a picture of one of Bath Iron Works’ (BIW) warships under the headline, "Bath Shipbuilders for Democracy." The tag line is, "If there aren't things worth fighting for, we wouldn't build ships."

Also in this case, the IAM's lawyers are exceptionally crafty. The key legal issue in the case is whether or not the trusteeship was imposed for a proper reason. In trying to establish it was, the defendants' attorneys reproduced in their summary judgment motion many pages of deposition testimony favorable to their argument. But they carefully omitted from their submission the pages that were unfavorable. In order to show the judge the union misrepresented the record, I had to go through thousands of pages to pull out the pages the union's attorneys were trying to withhold from court. This is a normal practice in litigation, but it is especially mean-spirited and duplicitous in LMRDA litigation. Union defendants are nastier than most corporations who are sued. Corporations take law suits as a normal part of business. Unions take law suits as a challenge to their rule, and they try to smash every rank and filer who deigns to challenge them, as a lesson to other members of their omnipotence.

What could be done to level the playing field? Making fee-shifting automatic would be a help. In employment discrimination cases, the lawyer for the prevailing plaintiff automatically is paid fees. It is presumed that anyone who prevails in a discrimination case has conferred a common benefit on society, because law suits are a principal way our society fights racism, sexism, and age discrimination on the job. There should be the same presumption in union democracy cases. The union members and lawyer who represent the successful LMRDA plaintiff should be presumed to have bestowed a common benefit on society because promoting union democracy is essential to our country's future. If fee-shifting were automatic, rather than discretionary with the judge, a few more attorneys would take LMRDA cases.

Sincerely,

Leon Rosenblatt