LITIGATION:

'Master of Disaster' dons new guise as plaintiffs' attorney in pollution case

Despite signing on to represent thousands of Ecuadoreans in a massive environmental lawsuit against Chevron Corp., James E. Tyrrell Jr. is not your average plaintiffs' lawyer.

In fact, over the past few decades he has become known as a go-to attorney for any major entity contemplating litigation over pollution, an area of the law known as "toxic torts."

He defended Monsanto in litigation over Agent Orange. He defended New York City and contractors against injury claims made by first responders in the aftermath of the Sept. 11, 2001, terrorist attacks. He likes to call himself the "Master of Disaster."

New York Times journalist Anthony DePalma wrote in "City of Dust," his book about the World Trade Center case, that Tyrrell is "honored by some and considered a scoundrel by others."

Clients "love him and pay mightily for his services" while opponents "accuse him of being rapacious and underhanded," DePalma added.

Put simply, if there is a case that pits the little man against Big Business or the government, Tyrrell is not generally on the side of the little man.

And yet, here he is -- in 2011 -- representing thousands of plaintiffs enmeshed in an 18-year legal battle against Chevron over alleged pollution in Ecuador.

The complex case is being fought tooth-and-nail both in Ecuador, where a judge is on the verge of issuing a final ruling, and in U.S. courts, where Chevron's lawyers are seeking to undermine the plaintiffs' case.

Tyrrell's intervention is a move that has surprised the legal community. Most lawyers would find it much easier to imagine Tyrrell representing the oil company than the plaintiffs.

"I would say it's surprising," said Andrew Klein, an Indiana University School of Law professor who specializes in toxic torts and is aware of Tyrrell's reputation.

Most assume that Tyrrell and his firm -- Washington-based Patton Boggs -- have an eye only on the mind-boggling $113 billion in damages that one expert for the plaintiffs has advocated.

Patton Boggs is due 12 percent of the 30 percent contingency fee that plaintiffs' attorneys and other investors in the case will share, according to court documents produced as part of the litigation.

As for the explanation of how the firm got involved, a Reuters report noted that Tyrrell serves as outside counsel for a British firm, Burford Capital Ltd., that finances international litigation. Burford is helping fund the Ecuadorean case, according to court filings.

Steve Donziger, the lead plaintiffs' lawyer, declined to comment on how Tyrrell came to be hired.

Tyrrell himself isn't giving much away.

Ground rules

Tyrrell agreed to speak to this reporter in the law firm's 30th floor conference room in a Manhattan skyscraper, but he would not allow the conversation to be recorded and requested that he review any quotes before they were published.

Tyrrell, looking every inch the corporate lawyer, took the line that, after 18 years in the courts -- largely as a result of creative legal maneuvering from Chevron -- his clients need some closure.

"If my clients lose, I want them to feel they had a fair shake," he said.

Tyrrell praised his colleagues for allowing him to take the case, admitting that other firms with a roster of corporate clients might not take the risk.

"Some firms are so inflexible," he said. "They wouldn't let me take on the Ecuador case."

Patton Boggs was willing because the firm is, according to Tyrrell, split 50-50 between Democrats and Republicans.

Based on campaign contributions, Tyrrell appears to tilt Republican. In the last election cycle he donated to the New Jersey Republican State Committee and then-Rep. Roy Blunt (R-Mo.), who was elected to the Senate in November, according to Federal Election Commission data.

Within Patton Boggs, there would have been serious discussions over possible conflicts with clients and the dangers of missing out on future business with Chevron and other companies, law professor Klein said.

But, ultimately, "a lawyer will represent his or her client as zealously as possible" whoever they are, Klein said. "That's as it should be."

Tyrrell signed up primarily to help enforce any ruling against Chevron in international courts, he said. The plaintiffs would have little choice but to take that route since the oil company no longer has any assets in Ecuador.

It is for that reason that the legal battle has already shifted to U.S. courts. Chevron has been using so-called 1782 actions, which allow federal judges to order the production of evidence, including depositions, for use in a foreign court.

Chevron's lawyers at another prominent law firm, Gibson, Dunn & Crutcher, have bombarded 17 different courts with such requests as part of a larger tactic to portray the plaintiffs' lawyers and experts as dishonest.

The plaintiffs "are engaged in a concerted strategy to obstruct and delay the U.S. proceedings in order to obtain a corrupt judgment from the court in Ecuador as leverage to extort money from Chevron," Gibson Dunn attorney Randy Mastro said in a recent letter to Judge Lewis Kaplan of the Southern District of New York.

Chevron's tactic seems to be working. Donziger has already been hauled over the coals by Kaplan, who ruled that Chevron's attorneys could question him (Greenwire, Dec. 16, 2010).

Most damning were outtakes from a documentary about the case, called "Crude," in which Donziger was heard saying the Ecuadorean court system was corrupt and that the only way to succeed was by "pressuring and intimidating the courts."

It is that episode that has made Tyrrell wary of letting journalists record interviews. The recording could end up being subpoenaed, he said.

Tyrrell seemed somewhat taken aback by Gibson Dunn's approach, which has included an attempt to get Patton Boggs disqualified from representing the plaintiffs. He thinks it is mainly an attempt to sow confusion and doubt within the minds of judges.

"If you don't want the litigation to be about the merits of the case, you have to make the case about the messenger," he said.

Tyrrell can take it in his stride because he has seen it all before.

Parallels to Ground Zero case?

He got his break in the litigation surrounding Agent Orange in 1982. He represented the manufacturer, Monsanto, over claims made by Vietnam War veterans that they had suffered various injuries as a result of being exposed to the chemical.

His most high-profile case up until now was the World Trade Center litigation over claims from approximately 10,000 people injured by ash and dust in the aftermath of the attacks.

Tyrrell defended the city and 150 contractors and also was liaison counsel for all 536 defendants. The case eventually settled last year, with the plaintiffs due to receive at least $625 million.

During the course of the litigation, Patton Boggs earned more than $100 million in legal fees, according to media reports and the plaintiffs' lawyers.

Tyrrell is proud of his reputation and exhibited no unease at the way he was portrayed in DePalma's book about the World Trade Center.

In fact, he suggested this reporter read the book.

DePalma speculated in an e-mail that Tyrrell's decision to take on the Ecuador case may have been shaped by his experience in the case.

Then, Tyrrell faced an uphill battle defending claims made by sympathetic plaintiffs described as "heroes" by their lawyers at every available opportunity, DePalma noted.

"The parallels to Ground Zero seem clear to me, and perhaps to Tyrrell as well," DePalma wrote. "At this stage of his career, he may be tired of playing the 'master of disaster' and would like to see what it's like on the other side."

Others are less convinced that Tyrrell's involvement in the case indicates a change of heart.

"I'm not sure it really means anything from a moral standpoint," said Jean Eggen, a professor at Widener University School of Law, who teaches toxic torts.

The plaintiffs' team likely hired him for the simple reason that "he's just good," Eggen added.

Whatever the reason for Tyrrell getting involved, Chevron doesn't seem concerned.

"The plaintiffs' backers can hire as many law firms as they'd like," spokesman Kent Robertson said. "It doesn't change the fact that their colleagues have already corrupted this trial such that no legitimate court in the world will see it as anything but a fraud."

Back in the Patton Boggs conference room, Tyrrell remained unwilling to engage on his motivations for taking the case.

He pointedly steered clear of the standard heart-on-sleeve rhetoric used by the trial lawyers he is used to locking horns with.

"I have strong feelings that I keep to myself," he said.

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