Erin Brockovich: The real story

In the movie, the victims in the celebrated lawsuit won big. In reality, many are
wondering where the money went and they're mad at their lawyers.

KATHLEEN SHARP04.15.200012:00 AM

The Julia Roberts film "Erin Brockovich" is in its fourth week as one of the most popular
movies in America. It's billed as being based on a true story. But the film tells only half
of it -- and the half it doesn't tell isn't pretty.
The film is about a down-on-her-luck but defiant, twice-divorced, working-class mother
of three. As a lowly clerk in a small, private law firm, she independently starts looking
into a case involving pollution in the small town of Hinkley, Calif. In the movie, the foul-
mouthed, full-cleavaged Brockovich travels to the town on her own initiative,
investigates the case with the help of dogged smarts and a few low-cut dresses and
persuades her employer to take on the case. When he joins forces with a big-time Los
Angeles law firm, she defiantly resists. In time, her street smarts outbalance the
incompetent, unfeeling lawyers at the downtown firm, and the residents come out with a
$333 million award -- and Brockovich herself gets a check for $2 million.
The truth is different. That's not unusual for Hollywood, and doesn't mean that the film --
which has garnered favorable reviews -- is bad.
But many plaintiffs in the Hinkley case say the movie misrepresents what happened.
Far from being the populist victory the movie depicts, the Hinkley lawsuit was a case
study in how the rise of private arbitration, as an alternative to costly public trials, is
creating a two-tiered legal system that not only favors litigants who can afford it over
those who cannot, but is open to potential conflicts of interest and cronyism. The case
never went to trial, because Pacific Gas & Electric, the utility accused of polluting
Hinkley, and the plaintiffs' lawyers agreed to private arbitration before a panel of for-hire
judges, some of whom had socialized with the plaintiffs' attorneys.
Now, many of the townspeople who sued complain their awards were smaller than they
deserved. Some have even hired lawyers to get back excessive legal fees charged to
children. They say the attorneys kept their awards for six months after the settlement
money was delivered, and that they didn't receive interest on it. They complain that
there was little or no apparent logic behind the varying amounts of money individual
plaintiffs received; some claim that the arbitrators never even looked at their medical
records.
Some of these charges and complaints are the predictable result of the sudden, uneven
disbursement of a lot of money into a small town. But evaluating these charges is
difficult to do, because the arbitration process is shrouded in secrecy. The formula for
disbursing the money has been kept secret, as has the entire transcript of the arbitration
proceeding. Had the case gone to trial, the transcript and the disbursement would be a
matter of public record.
After the settlement, the Hinkley plaintiffs' attorneys took some of the arbitrators in the
case on a steeply discounted Mediterranean luxury cruise. The fraternization between
the private judges and the plaintiffs' lawyers led California Supreme Court Chief Justice
Ronald George to begin a study of the business of arbitration. And while Brockovich
appears on "Oprah," some townspeople are preparing for a new round of lawsuits -- this
time against their former lawyers, including Brockovich's firm.
The following report is based on interviews with scores of residents of Hinkley, and
more than two dozen judges and attorneys. Every effort was made to elicit comment
from the powerful attorneys who represented the residents of the town. Two were
ultimately interviewed; in both cases the conversations were short and explosive and
terminated abruptly by the lawyers. What comments they did make in the case are
included below. PG&E, as well, declined to comment.

"The movie is mostly lies," said Carol Smith, one of the real-life plaintiffs. "I wish the
truth would come out because a lot of us are upset. I understand the movie is going to
make Erin and the attorneys out to be heroes.
"But where's the rest of our money?"
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That question echoes from many of the 650 plaintiffs in the case that became Anderson
vs. PG&E. The tale started in Hinkley, a town of about 3,500 in the Mojave Desert about
120 miles northeast of Los Angeles. Residents here are surrounded by
methamphetamine labs and live next to two Marine bases, downstream from a huge
naval weapons center, and 20 miles east of Edwards Air Force Base. Over the last 15
or 20 years, many of the residents have also drunk, bathed and swam in water polluted
by a chemical called chromium 6.
They suffer many physical ailments, including bloody noses, various intestinal ailments,
bad backs, rotten teeth and tumors. In 1952, PG&E built a pumping station on 20 acres
near town as part of its enormous gas-transmission system. The station pumped natural
gas through an artery of pipes stretching from the Texas Panhandle to the San
Francisco Bay Area; the system served PG&E customers in much of the state's Central
Valley.
The company used the chromium to prevent rust from corroding its water-cooling
system. The chemical runoff was disposed of in unlined wastewater ponds. (After 1966,
the utility lined its ponds.) In 1987, during what the company claims was a routine
check, PG&E found that its chromium had leaked into the water supply. In December
1987 it reported its findings to the California Regional Water Quality Control Board, as
required. The board ordered the utility to clean up the pollution.
In the early 1990s PG&E undertook a $12.5 million cleanup effort, approaching the
owners of three farms and 10 houses in the area and offering to buy their properties.
Roberta Walker was one of the people approached by PG&E, which offered to buy her
house (valued at $25,000 at the time) for $60,000. She said she didn't want to sell.
When the utility asked her for a figure, she blurted out $250,000. A few weeks later, the
company agreed.
The quick acceptance made her suspicious. That's when she started searching for a
lawyer. Through a friend, she found Masry & Vititoe, a personal-injury firm in Westlake
Village, northwest of Los Angeles. At the time, Erin Brockovich worked as a clerk at the
firm. Ed Masry drove out to talk with Walker, and eventually brought Brockovich.
Other townspeople later heard about the visiting attorney and called Masry's office. He
soon placed an ad in the local newspaper, announcing a "town meeting" to collect
clients to mount a lawsuit.
Masry told the residents that he believed that PG&E's chromium had poisoned the
water, and that this was responsible for their ailments. He offered to represent them in a
suit against the giant utility. Throughout 1992, he and Brockovich continued to drum up
clients.
During this time, Brockovich, by her own account, went to UCLA's library and found as
many as 120 articles that said chromium 6 was carcinogenic. "In each and every article,
it clearly depicts that people who have exposures have chronic nosebleeds, kidney
problems and colon problems," she said during an interview.
Other scientific studies, however, from contaminated spots in China, Scotland and the
United States, have failed to find cancer-causing properties in waterborne chromium 6.
A toxicologist at the U.S. Department of Health and Human Services, Sharon Wilbur,
says that chromium 6 in water doesn't harm humans. "It's very unlikely that people could
die from drinking chromium 6 in the water, even over time," she said. Because the
arbitration that eventually decided the case was closed to the public, it's unclear what
sort of proof plaintiffs attorneys offered to support their claims.
By the spring of 1993, Masry had collected 47 clients. The signed retainers specified
that he would collect 40 percent of any award. Masry filed a suit, claiming PG&E had
discharged toxic wastewater into the area. PG&E responded by saying the complaint
didn't state sufficient facts or other legal grounds to support its claims. But the case
moved forward in San Bernardino County Superior Court.
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At this point, Masry brought in some big guns: Thomas Girardi of Girardi & Keese in Los
Angeles, and Walter Lack of Engstrom, Lipscomb & Lack in Century City. Lack's firm
specializes in insurance bad faith and toxic torts; Girardi is one of the state's best-
connected and most powerful attorneys. The Wilshire Boulevard attorneys had the
resources to wage what became a 650-plaintiff case, and they, too, asked clients for 40
percent of any award, plus costs. The plaintiffs agreed. "It was 'Either play our game or
forget about it,'" said resident Nola Wetterman. The plaintiffs played.
Girardi and Lack were known for having sued a slew of companies on behalf of 624
present and former Lockheed aerospace workers. In that case Girardi argued that a
number of alleged carcinogens found in materials used at Lockheed's Burbank, Calif.,
plant had caused his mostly elderly clients to suffer from cancer, memory loss and other
ailments. Girardi broke the suit into dozens of cases -- each with ex-workers grouped by
length of employment, type of ailments and other factors. In 1994, the groups started
winning increasingly larger awards until the fifth case went before a Los Angeles
Superior Court judge in August 1998. That's when judge and jury awarded 38 former
workers $785 million -- more than $20 million each.
That jaw-dropping victory catapulted Girardi and Lack into the big leagues of California
litigators. Less noticed has been the fate of those awards. As early as 1992, Lockheed
had dropped out of the case and paid $33 million to the plaintiffs' attorney as a
settlement; in the following years, other companies had settled as well. In 1998, a few
clients began protesting that they had not gotten their money, which prompted them to
complain to the California State Bar. The Citizens Against Lawsuit Abuse (CALA) also
asked then-Gov. Pete Wilson, Attorney General Dan Lungren and others to look into the
matter, according to a press release CALA issued Sept. 2, 1998.
But CALA never received a response from the State Bar, said spokeswoman Robin
Lossing. According to bar spokesman Bill Davis, all such matters are confidential until,
and unless, disciplinary action is taken. At the time, the bar had suffered deep funding
cuts and is now addressing a backlog of approximately 5,000 such complaints. In a
newspaper article written at the time, Girardi contended that the money had been held
up on appeal; the attorney did not respond to repeated requests to be interviewed.
Meanwhile, all of the Lockheed cases have been appealed; the first verdict for $1.7
million remained intact, while portions of two other verdicts were overturned. The fourth,
containing the second-largest amount of $21 million, has been completely reversed.
Legal observers think it's quite possible that the fifth case -- the one with the record-
breaking $785 million award -- will also be reversed.
But when Girardi and Lack joined the PG&E case in 1994, the utility didn't put up much
of a fight. "We screwed up," by not cleaning the area sooner, PG&E spokesman Gregg
Pruett acknowledged in a local paper at the time.
The case started in open court in front of Judge LeRoy Simmons. But before too long,
Simmons retired. (Ironically, in view of later events, he became a private arbitrator and
landed a paying part in the movie playing his former self, a sitting judge.) On Aug. 5,
1994, Girardi wrote to the residents of Hinkley, explaining that it could be five more
years before the case could be assigned a trial date in open court. So, on the advice of
Girardi and the other attorneys, the residents agreed to voluntary arbitration. PG&E,
wary of facing an unsympathetic jury and an attorney with a reputation as a skilled
courtroom litigator, agreed as well.
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Arbitration is billed as a cheap, quick and private way to resolve civil disputes. The
practice gained momentum in the 1980s, when judges, bowing to pressure to alleviate
overcrowded courtrooms, began encouraging litigants to resolve their disputes
voluntarily. Since then, arbitration has snowballed into an unlicensed industry that's
conservatively estimated at $350 million in annual sales, according to a spokeswoman
at the nonprofit American Arbitration Association.
Not everyone thinks it's a good idea. In 1981 the late Rose Bird, then chief justice of the
California Supreme Court, called private judging a "long step backward," because it
"allows those who can afford it to play by different rules" by permitting rich litigants to
leapfrog past others who must wait their turn for a hearing. Eight years later, then-Chief
Justice Malcolm Lucas appointed a study of the trend, which ultimately supported the
practice but urged that arbitration files be kept in courthouses where the public and
press could freely inspect them. That recommendation was never acted upon.
The trouble with civil arbitrations such as the Hinkley case is that public-welfare issues
can in effect be decided secretly between corporations and high-powered plaintiffs'
attorneys who represent unsophisticated victims. In the wake of the PG&E litigation, for
example, there is no public record of whether an enormous, publicly held utility did or
did not poison a town.
"We hear a lot of complaints about these cases," said Gerald Uelman, professor of law
at the University of Santa Clara. The for-profit arbitration business is booming,
especially in California, he added. "It's upsetting to the extent that it's a resource used
by institutional litigants."
"This is a troubling trend, especially when it concerns the public domain of toxic tort
cases," said Erwin Chemerinksy, professor of legal ethics at the University of Southern
California. "It means there's decreased public awareness of what's going on in the
public domain."
One big reason for the boom is money. Public judges, who earn about $150,000 a year
in the public courts, often retire early to become, in effect, rent-a-judges. By doing so
they can earn between $100 and $500 an hour -- easily doubling or tripling their
salaries. Arbitration firms often have powerful attorneys or corporations as steady
clients. They pay monthly retainer fees or get volume discounts. As a result, some for-
profit justice firms have a vested interest in keeping their clients happy if they want the
return business, which has been the topic of seminars sponsored by the California
Judges Association.
"The public perception somehow exists that there is a two-track system," said Chief
Justice George during an interview. Another jurist, Appellate Court Justice Miriam
Vogel, was quoted in the Los Angeles Times decrying "the growth of private judging
particularly when financially strapped litigants are forced by public judges into accepting
private judges, referees, arbitrators, or mediators who may charge large sums for their
services." She also criticized "the exponentially growing number of available retired
judges, and a dramatic increase in hourly rates and total billings, leaving those who
remain in the public system to address the problems inherent in the creation of a
second, separate judicial system."
In the PG&E arbitration, Girardi, Masry and Lack expected to settle the case against the
utility for $400 million, according to a July 2, 1996, letter to their clients. The case was
heard before a panel of retired judges in San Francisco and Los Angeles.
The former judges who heard the case were all employed by an Irvine arbitration
company called JAMS/Endispute -- one of the biggest such firms in the West. JAMS
boasts about 300 arbitrators, including some of the more prominent retired judges in
California. But the firm has also seen some controversy in its 21-year existence. In
1993, the then-chairman of JAMS, John Trotter, hired Michael Greer, a former San
Diego County Superior Court judge who at the time was being investigated for
accepting gifts from lawyers in his courtroom. Trotter publicly defended the hire, calling
the allegations against Greer "inconsequential and in some cases absurd." But in March
1996, right before the PG&E settlement, the ex-judge pleaded guilty to accepting
$75,000 to rule favorably in cases before him. Greer eventually testified against two
judges in one of California's biggest judicial scandals.
The rules that apply in open court often aren't followed in private court. No laws prevent
the hired judges from accepting gifts from attorneys. Another criticism is that the
arbitrators and their clients and attorneys often work together regularly. "The same
judges are often employed by one side or the other," said Uelman.
As it turned out, Girardi had ties to at least three of the private judges in the PG&E case:
Jack Tenner, John Trotter and Jack Goertzen. Had this occurred in public court, judicial
rules would have forced the judges to recuse themselves from the case due to a conflict
of interest. But no such ethical standards bind participants in private arbitration.
Tenner, a retired Los Angeles Superior Court judge, officiated at Girardi's second
wedding, in September 1993. This was confirmed by his wife, Kathy Risner. (The pair
are currently in the midst of a divorce.) When John Trotter sat down over dinner one
night to convince then-Superior Court Judge William Schoettler to retire from the bench
and work for JAMS, his friend Girardi came along, say both Schoettler and his wife at
the time, Nancy Morgan, who was present. Schoettler also says that Goertzen has been
a friend of Girardi's for many years. Goertzen says the relationship is only professional.
Trotter, through a secretary, refused to comment on the case, citing a confidentiality
agreement. (Tenner did not return a call for comment.)
Yet, as late as 1998, Tenner and Goertzen oversaw the controversial distribution of
Girardi's Lockheed awards; and at Girardi's suggestion Goertzen arbitrated in one of
Girardi's large cases involving Exxon.
Girardi dispenses gifts as well. "Girardi is a very generous man and very kind," said
Ralph Drummond, a former judge in Monterey County Superior Court, who used to work
for JAMS and now arbitrates disputes for Girardi. During the 1989 World Series, Girardi
used his Gulfstream jet to fly Schoettler and Morgan to San Francisco for the games; at
the time, Schoettler was a sitting judge in Los Angeles Superior Court. Schoettler
stresses that such gifts never affected his judgment. "The key is if you have a significant
case before you in court," he said. He never heard a case from Girardi or Lack in his
open courtroom, so his social relationship with them was not an issue, he said.
"I became aware that I should absolutely stay away from JAMS or its retired judges
when it came to any dealing with Tom Girardi," said Laurence Janssen, a partner in the
Los Angeles office of Washington law firm Steptoe & Johnson. As the defense attorney
in Girardi's infamous Lockheed case, he wanted to keep his case in open court. "The
common lore imparted to me was that it would be crazy to get in front of any JAMS
arbitration with Girardi."
In a short interview in which almost all his replies were shouted, attorney Lack would not
comment on the arbitrators in the Hinkley case. When asked if Trotter, Tenner and
Goertzen were the arbitrators in the case, he said, "You have your facts wrong." He
would not describe the case as arbitration. "It was a real case, a full trial, with rules of
evidence and a court recorder," he shouted when asked. When asked if Salon could
view the transcript, he exclaimed, "It's confidential!"
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PG&E's attorneys may have been wary of Girardi as well. Indeed, what happened next
provides a rare glimpse into the sometimes cloak-and-dagger world of nine-figure
lawsuits. During negotiations in June 1996, PG&E appeared to be stalling, Girardi told
clients in the July 2 letter. Then, Girardi learned that PG&E's outside counsel, Haight,
Brown and Bonesteel of Santa Monica, had hired private investigators to snoop into his
bank records and private affairs, as well as those of his clients. It's against California
law to obtain confidential private records. One of the firm's operatives, who had just
been fired, took the damning information to Girardi.
The investigator, Ben Ortiz, a retired LAPD officer, was suing his former employers at
Haight, Brown and Bonesteel. Around the same time, another, unrelated, case against
the firm alleged similar spying practices by Haight, Brown; it also detailed the Ortiz-
Girardi snooping. Buried inside this second case, worthy of a John Grisham novel, are
allegations of racketeering and collusion among judges and attorneys throughout Los
Angeles County. David Sharp, the attorney in that latter case, alleges that Girardi and
Lack used the Ortiz affair to pressure PG&E into making a large settlement -- "part of
which was used to curry favor with active and retired judges involved in that case and
others," according to Sharp. His suit is on appeal.
Ortiz and Sharp claimed that PG&E's hired counsel routinely broke the law to gain
inside information in order to win its cases. In the July 2 letter, Girardi told clients that he
had confronted PG&E with the damning evidence: "This was certainly grounds for us to
threaten separate litigation for invasion of privacy."
PG&E fired its law firm and hired another. On June 12, 1996, PG&E settled the Hinkley
case with Girardi for $333 million, and delivered the money a few weeks later. It was
trumpeted as the largest settlement of its kind.
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As the case unfolded, residents say, they began to feel increasingly removed from it.
"We had no idea what was going on and weren't allowed to watch," said Lynn Tindell, a
plaintiff. (The rules for viewing depend on how the lawyers and arbitrators structure
each case, according to a spokeswoman at the American Arbitration Association, the
State Bar and lawyers.)
Some plaintiffs attended the hearings, while others who called their lawyers' offices to
find out the location of the private trials were discouraged from attending. "They
wouldn't tell me," said resident Ron Gonzales. When he found out, he said, the
attorneys changed the venue. "I told them it was against the law to keep this stuff from
me." Plaintiffs relied on the attorneys' letters for details of the case.
Since no law governs procedures in these closed-door cases, pretty much anything
goes -- even things that would not be allowed in court. There are no public records of
the case. This is another troubling aspect of the system, said Chemerinsky. "In these
kinds of cases, the court system has many protections -- some of which are absent in
arbitration." Indeed, as the PG&E cases continued to be heard behind closed doors, the
Hinkley victims felt left out of the process.
Still, many of them were delighted to hear of the settlement's general terms, figuring that
a third-of-a-billion dollars would benefit them to the tune of a half-a-million each, minus
their attorney's fees. But in August 1996 when they were informed of the amount of their
award and the circumstances of their payment, many were shocked.
First, the plaintiffs were surprised when their attorneys told them they wouldn't be
getting their money for five months. Under California State Bar Rule 4-100, an attorney
has to release his client's money "promptly," as soon as the client asks for it. Although
many factors could delay the distribution of funds for a few weeks, none of the legal
experts Salon interviewed understood the lengthy hold period.
A staff attorney for the California State Bar's Professional Competency Unit, Randall
Difuntorum, said that in 1997 the bar disciplined an attorney who had kept his client's
award for an unusually long time -- six weeks -- before releasing it. While cautioning that
he did not know the full details of the complex Hinkley case, John Sprankling, a
professor of legal ethics at McGeorge School of Law in Sacramento, commented, "I
don't understand the rationale for a six-month delay."
Lack, in the interview, said, "There were 650 cases! That was record time!" But he
would not explain how the process of disbursement worked.
In a separate but similarly contentious interview, Ed Masry, the attorney Brockovich
worked for, would not explain the process either. "Why are you being stupid?" he said.
"It was a complicated $333 million settlement. Are you an idiot?"
The Hinkley clients tried to get answers by calling Masry's and Girardi's offices, but
suddenly, they couldn't get through to anyone, not even Brockovich. "None of the
attorneys would take our calls," said Carol Smith.
People needed their money to pay off debts; others wanted to buy new cars and
appliances. The attorneys were besieged with over 100 phone calls from clients,
lenders and creditors regarding the unreleased settlement awards. It got so bad that
after Aug. 21, 1996, Lack's office wrote letters to clients telling them, "There simply isn't
time to have these conversations."
Finally, on Jan. 2, 1997, nearly six months after PG&E had deposited the money, the
attorneys mailed awards to their clients. It's not clear where the interest the money
earned went. Girardi's office sent out a "global settlement statement" that seems to
indicate that the accrued interest went into the money disbursed to residents of the
town.
But some of the plaintiffs say their checks did not include interest; Tindell, Smith and
others said the amount they received in January was the same amount as had been
announced in August.
Many of the residents had a hard time reconciling the small amount of their checks with
the enormous legal fees. Arbitrated cases are supposed to be quicker and cheaper than
court trials. In this case, Masry, Girardi and Lack took 40 percent, or $133 million. The
residents, of course, had agreed to this.
But then the clients were billed an extra $10 million for expenses, which weren't
detailed. "I wrote Girardi a letter, asking for a statement of his accounting of the case,"
said Gonzales. But Girardi didn't provide one.
That left $196 million for the plaintiffs, or an average of about $300,000 per victim. The
amounts varied. Dorothea Montoya received $60,000; Christine Mace got $50,000;
Lynn Tindell $50,000; Tiffany Oliver got $60,000. All of these people were longtime
residents who had suffered presumably documented medical problems. "It didn't make
sense why my husband, who's had 17 tumors removed from his throat, got only
$80,000," said Smith.
Since the official accounting of the money is secret, there's no way to ascertain how
much money was distributed to Hinkley residents short of a survey of all 650 clients in
the case. Their suspicions aroused by the secrecy, many Hinkley residents want to
know where the money went. (While Girardi would not comment for this article, he has
been quoted in the Los Angeles Times contending that at least 50 Hinkley residents
have written him to say that they didn't want the disbursement made public --
presumably because their awards were larger.)
Family members who'd experienced the same level, intensity and duration of chromium
exposure received wildly different awards. The Gonzales family, for example, had lived
close to the PG&E plant for 14 years; the father, who had a foot of his lower colon
removed, received $100,000; his daughter Lydia, who has suffered skin problems,
received $200,000; another daughter, Anita, who led one of the first groups of plaintiffs
and who also lost some of her colon, received about $2 million; his son Daniel, who has
suffered skin and other problems, received nothing. "His story wasn't dramatic enough,"
said his son Ron.
Residents were first told in the July 2, 1996, letter that their awards would be based on
their medical records. Some residents say their medical records were never solicited.
"But no one ever looked at my medical records," said Smith. "I'm sure of that because
my doctors told me so after I asked." Other plaintiffs echoed the same complaint.
Otherwise, there was no mention of the criteria, formula or method by which the money
would be divided. It was up to the arbitrators, Lack told his clients in a July 24, 1996,
letter. "We are confident that by Aug. 15, 1996, the Judges will be in a position to
announce all awards," the letter said. "We have the utmost confidence that their awards
will be fair to all parties concerned."
Roberta Walker, who had started the case and was depicted in the movie as Donna
Jensen, didn't get the $5 million that her movie counterpart received. "It's a big
fabrication," said Walker. "People look at $333 million and think, 'Wow! You got that
much money?' But no."
Nola Wetterman, who has suffered miscarriages and back problems, received many
millions of dollars, sources say. Wetterman herself says it's about $1 million.
Another older ill resident was awarded about $25,000. "He blew up at one of the
attorneys, who didn't like his attitude," said Tommy Wetterman, Nola's son. "He got a
real bad deal."
Pretty soon, fairly or not, some residents say they saw a pattern in the distribution
method. "If you were buddies with Ed and Erin, you got a lot of money," said Smith.
"Otherwise, forget it."
Residents also were confused about the high fees charged to the town's 100 children.
According to the California Code of Civil Procedure, the California Probate Code and
case law, attorneys may take only 25 percent of the settlement money given to minors.
The arbitrators allowed the attorneys to take 33-and-a-third percent.
"We were livid when we found that out," said Smith.
Apparently, the plaintiffs' attorneys and JAMS's Trotter had decided that any minor who
turned 18 during 1996 would be treated as an adult, according to a number of
townspeople. That meant that at least three Hinkley teens whose 18th birthdays fell in
calendar year 1996 were charged at the higher 40 percent rate.
When the money did come, some residents tried to complain about what they felt were
unfair amounts, but they were put off. "We didn't even get to talk to Erin and she's the
one who got us mixed up in this thing," said Smith. Some wanted to contest the awards,
but were discouraged. "We were told if we appealed the settlement, we'd get less
money," said Ron Gonzales. "It was essentially a threat."
One plaintiff, Muriel Marcum, tried to explain to her attorneys that her medical condition
merited more money. But Lack wrote back, saying he was "disgusted by such a
statement, which betrays your utter lack of knowledge ... The symptoms you have
suffered ... could be related to any number of causative events."
Those bold enough to actually contest their awards had to pay extra. "The Judges will
be charging you by the hour for handling these appeals and the charges will be
deducted from your recovery," Lack told his clients in the July 24, 1996, letter. The
judges heard some of the appeals in Lack's office, a two-hour drive from Hinkley. "If you
miss your appointment, you will be charged anyway," the letter informed clients.
One resident who did appeal was Gonzales. He was given an award of $100,000, but
appealed on the grounds that he deserved more. "Ten minutes later, one of the judges
offered me $250,000." The appeal cost him $21,000 in arbitration fees.
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In the summer of 1997 -- while some of the residents of Hinkley were still fuming over
what they regarded as paltry checks -- Girardi and Lack, flush from their winnings and
wanting to "give something back" to the California legal community, organized a
weeklong Mediterranean cruise for 90 people, including 11 public and private judges.
The three PG&E arbitrators were among those invited.
One judge called it "absolutely incredible." A luxury yacht floated on azure waters;
tuxedoed butlers balanced silver trays of free champagne; young bikini-clad ladies
frolicked on the sun-splashed deck, according to retired Judge Schoettler, who was a
guest. As another bare-chested judge remarked at the time: "This gives decadence a
bad name."
The cruise was organized under the banner of Girardi and Lack's Foundation for the
Enrichment of the Law. Girardi told the Los Angeles Times that the cruise included "an
extensive professional program." The cost was about $3,000 per person, about half the
normal rate; Girardi told the Times he and Lack had received a discount for chartering
the entire Cunard cruise ship. After some confusion, all of the judges on the trip paid
their way, save two unrelated to the PG&E case who were invited to lecture.
The public judges claimed the cruise had been an educational seminar, allowable under
both state and federal judicial rules. But Schoettler said no one he knew attended a
lecture. The fact that the three PG&E judges accepted the discounted cruise from the
attorneys whom they had just enriched is one reason Chief Justice George instigated a
study into the business of arbitration.
The study, completed in September 1999, recommended that arbitrators disclose their
relationships with parties before them, and refrain from accepting gifts from those who
come before them.
---------------------
Meanwhile, the PG&E plaintiffs grew increasingly disenchanted with the case. Roberta
Walker regrets that she ever agreed to arbitration. "I wanted it to go to court. I wanted a
jury to decide it." She believes that if that had happened, PG&E's executives might have
gone to jail "for murder, for lying, for destroying the lives of thousands of people," she
said. She added that she doesn't begrudge her attorneys their fees, but wishes that the
settlement had provided her and her family free medical coverage for life.
But some of her neighbors had grown disgusted with their lawyers. "I feel like I was
treated like a country hick that didn't understand plain English," said Tindell. "We are the
ones who made those guys zillionaires." Some residents began to take their cases to at
least four other attorneys for help.
One of those was Michael Dolan, who runs a one-man practice in Bakersfield. He talked
to 81 of the plaintiffs and found they received, on average, $152,000. That too fueled
speculation among the town's residents about who had gotten the money. But before
Dolan took any action, Girardi, Lack and Masry went on the offensive. On June 22,
1998, the three filed a suit against Dolan. They claimed Dolan slandered them when he
told Hinkley plaintiffs they had a right to sue Girardi, Lack and Masry for malpractice
over the too-high minors fee, among other issues. The attorneys also charged that
Dolan had interfered with their business relationship with the clients.
The suit landed on the front page of the Los Angeles Daily Journal, a legal paper, two
days later. In his defense, Girardi claimed that the minors' higher fee had been
approved by arbitrator Trotter, and therefore was permissible. But under California law,
a Superior Court judge had to approve the higher fees charged to the minors.
According to the PG&E settlement signed by lawyers on both sides, the settlement
would not be final until a Superior Court judge approved certain aspects of the case.
Dolan and others say that has not yet happened. In an interview, arbitrator Goertzen
said that he assumed a Superior Court judge approved everything, since it was
required.
The slander case against Dolan didn't last long. Two weeks later, on July 7, 1998, the
three attorneys quietly dropped the suit. But talk in Hinkley about the case continued.
This prompted Masry to sue Dolan again in August 1998. When Dolan moved to depose
Masry as part of the open court proceedings, Masry again dropped the suit, in March
1999.
The following month, Girardi, Masry and Lack refunded some money to the minors who
had turned 18 in 1998. On April 26, 1999, the three wrote letters informing the teens
that "computer errors" had generated incorrect awards. They added, "It is unclear under
the law as to whether your fee should have charged as an adult or as a minor." The
attorneys enclosed checks amounting to the difference between 33-and-one-third
percent and 40 percent, which totaled a few hundred thousand dollars, said Dolan.
The attorneys also steered some clients with large awards toward certain financial
planners, one of whom was Ed Masry's son, Louis. In May 1996, a few months before
PG&E settled, Louis Masry started his own company, Sunrise Financial Services, now
located in the same building as his dad's law firm. "I had met some of the people while
my father represented them, but most of my clients came from referrals," he said in an
interview. Louis Masry now represents about 100 people from Hinkley.
Girardi, Lack and Masry appeared on television shows and in newspaper stories,
discussing their victory against PG&E. Yet, the attorneys repeatedly warned their clients
not to talk to the press or even share information among themselves. "We again
strongly urge you not to discuss your awards with anyone other than immediate family
members," the three wrote on July 24, 1996. They also said in the same letter that
PG&E had the right to sue the residents if they violated the confidentiality of the
agreement; a PG&E attorney was later quoted in the Los Angeles Times saying that
was "ridiculous."
Around the same time, Brockovich was arranging to sell her "true story" to Hollywood
for about $100,000, according to Brockovich. With the aid of Girardi and Lack,
"Universal [the movie studio] actually got ahold of the trial transcripts under a court
order," Brockovich said during an interview.
"What's Universal got to do with this case?" asks Hinkley resident Smith. "And how
come we never got a copy?"
When the studio released "Erin Brockovich" last month, Lack and Masry started fielding
calls from potential clients around the country who had seen their names roll by in the
film's credits, under a "Special Thanks" heading. The three attorneys are now mounting
similar cases against PG&E on behalf of townspeople in other Southwestern backwater
towns.
All of which raises questions about this type of justice. "Obviously, there is something
broken with our system," said Robin Lossing of Citizens Against Lawsuit Abuse. Once
the attorneys take out their enormous fee, there's not much left for the plaintiffs, she
said. "This is a lawyer-run lottery system. Who really pays for this? Consumers do."
Indeed, one could argue that California taxpayers are already paying for it. A few
months after PG&E settled the Hinkley case, in October 1996, the California Legislature
gave the utility $500 million to improve the "safety and reliability" of its distribution
system. And if Masry, Lack and Girardi get their way, PG&E may pay them even more
money in future cases -- without any way for the public to understand how or why.