ORALHISTORY OFBRUCE TERRIS
V. PUBLIC INTEREST LAWYER
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Steve Steinbach, and the
interviewee is Bruce Terris. The interview took place in Bruce Terris’s office on Thursday,
January 8, 2015. This is the fifth interview.
MR. STEINBACH: Good morning, Bruce.
MR. TERRIS: Good morning.
MR. STEINBACH: Today we’re going to talk primarily about the founding and development
over many subsequent years of your law firm, Terris, Pravlik & Millian,
which began in 1970 as the Law Offices of Bruce J. Terris, all by yourself.
MR. TERRIS: Correct.
MR. STEINBACH: You talked to us last time about when you left the Center for Law and Social
Policy in 1970 and the reasons why you decided to do that. What
alternatives did you explore in terms of career paths before you decided to
embark on hanging out your shingle?
MR. TERRIS: I really didn’t explore very much, and in retrospect, that doesn’t show a lot of
intelligence. I was in effect booted out of the Center for Law and Social
Policy by the Ford Foundation. I didn’t go around seeing whether anybody
would care to have me work for them. I wasn’t interested in a big law firm
or really any traditional law firm, and since I knew enough about what the
situation was in public interest law, I knew that there wasn’t a lot of
possibilities there, although I suppose I could have gone and asked NRDC,
for example, whether they would like to hire somebody, but I didn’t. I really
didn’t even think about that very much. I basically thought that I could set
up a public interest law firm myself and that that would be very challenging
and a lot of fun to do.
MR. STEINBACH: At the time you were exploring that possibility, were there models out there?
Were there other public interest firms? Or was this something that was really
kind of new?
MR. TERRIS: There really aren’t many firms like ours even today, and there weren’t any, at
least that I knew of, then. You have to be a little careful when you make
kind of a broad statement like that. In some ways, lawyers who handle tort
cases, contingent fee cases, you could say they don’t charge their clients, and
they’re doing a public service, which I think they are. There are people
subsequently that have handled cases, like the tobacco cases, of course they
made a fortune doing it, but that doesn’t show they weren’t doing a public
service. There are some kinds of lawyers that serve what are largely
unrepresented portions of the public. The big difference between our firm
and the other firms is very few people have used the fee-shifting statutes
which allow you to get your attorneys’ fees from the defendant, and what’s
different about that, it’s much harder financially to do that. We know there
are thousands, tens of thousands, of lawyers in the country who handle
contingent fee cases, and some of them are not very successful, but some of
them are hugely successful, multi-millionaires. Financially, that’s a very
different kind of structure than ours and therefore attracts a different kind of
person, I think. We can’t possibly make huge sums of money. It would have
to be some kind of miracle that I don’t know where it would come from, and
so this is a very different kind of thing. So when I went out, I was thinking
about fee-shifting cases, but I was also thinking about handling ordinary
cases for people in the District of Columbia. It turned out I did not – very
rarely have we had a case of that kind. I did have a case way back in the
beginning of a psychiatrist who had been fired, and I got his job back. But in
general, it’s been fee-shifting cases.
MR. STEINBACH: So let’s explore what that means. You defined it in part by explaining why
it’s not contingency fee. I think it would help to define why it’s not
pro bono, or maybe it is. What does the fee-shifting concept involve, back
then and even to this day?
MR. TERRIS: In general, in American law, unlike British law, in American law, the winner
of a lawsuit does not collect attorneys’ fees from the defendant. People pay
for their own lawyers, win or lose, and so that means that if you have a
person that has a case that may be very important to them, but you can’t
collect a large fee, then that person, if they’re of modest means, which most
people are, really can’t hire a lawyer in this country. Now if they’ve been
maimed in an automobile crash and they’ve got a good case against the
defendant who maimed the person, they can get a lawyer because you might
get a million dollars in a lawsuit, and a lawyer can get a third or 40%, and so
that’s very attractive. Fee-shifting statutes are mostly federal, most of them
are environmental – there are some others – [EEO cases and] disability cases
under IDEA – there are some other statutes. If you lose, if you represent a
plaintiff and you lose, you get nothing. You lost the case, you don’t get any
attorneys’ fees. If you win the case, you can get reasonable attorneys’ fees,
market-rate attorneys’ fees, from the defendant. Well, that’s financially still
a very difficult problem because first of all, it’s very hard to win all your
cases, and you don’t get [more than] reasonable fees when you do win the
case, no matter how marvelously you win it, and so you’ve got to win an
awful big share of your cases, and you’ve got to be willing, even though
you’re getting reasonable rates for that case, it means looking at your practice
as a whole. You’re not going to make nearly as much money as what the
market would normally give to people who are just representing people on a
normal basis, who pay by the hour.
MR. STEINBACH: I take it there’s timing issues with the flow of funds because you’re not paid
until it’s over.
MR. TERRIS: Correct. Absolutely.
MR. STEINBACH: On the fee-shifting idea, is that something that had been reflected in federal
statutes? How far back does that go? 1960s, or what’s the genesis of that?
MR. TERRIS: It’s largely I think the 1960s, but I think if you looked you could probably
find a federal statute or two that goes back considerably further than that.
For example, the False Claims Act goes back further than that, and that’s not
in the environmental field, and you can get attorneys’ fees under that statute.
MR. STEINBACH: So you’re leaving the Center for Law and Social Policy – which I guess I
should ask, did the Center for Law and Social Policy, had they pursued feeshifting-type litigation?
MR. TERRIS: Some of their litigation was fee-shifting because it was under environmental
statutes, or maybe some others as well, but it didn’t have to use fee-shifting
statutes because they were getting money from foundations, particularly the
MR. STEINBACH: I guess I want to go back into your mindset in 1970. There’s not a lot of
models out there. This is not something that’s widely perceived as a way to
establish and run a law firm. Where does this idea come from, and how do
you have comfort that it might work?
MR. TERRIS: Part of the problem is looking from today, it doesn’t look like such a smart
idea in terms of finances. Somehow I thought that I could. I probably didn’t
really think I was going to have a totally public interest practice, there would
be something of a mix. But I thought I could attract public interest clients,
but I really didn’t know where exactly I was going to get them. It was very
fortuitous that almost immediately the Sierra Club Legal Defense Fund
essentially decided to retain me for their most important environmental cases
anywhere in the United States during the next ten years. I had no idea that
was going to happen. A person who had been at the Center for Law and
Social Policy took over, became the head of the Legal Defense Fund, Jim
Moorman, and he thought I was a fairly good lawyer, so I started handling
really the most important environmental cases in the country.
MR. STEINBACH: But you had decided to go the public interest law firm route on your own
before that was a possibility?
MR. TERRIS: That’s correct.
MR. STEINBACH: Go back and sort of walk through the logistics. You walk out the door of the
Center for Law and Social Policy. You need an office, a license, a telephone.
What did you do?
MR. TERRIS: That was solved fairly simply. I don’t know how exactly this happened, I
mean I don’t know how he knew that I was available. A person who had
been the Second Assistant to the Solicitor General when I was in the Solicitor
General’s Office, Phil Elman, a very fine lawyer, had been a commissioner
of the Federal Trade Commission, and he had left to set up his own practice.
He said, why don’t you come and we won’t have a partnership but come and
be with me and we’ll have a common secretary and a common office. So
that problem got solved really quite simply because he already had an office
and a secretary.
MR. STEINBACH: Where was your office?
MR. TERRIS: It was on Sunderland Place, just off New Hampshire Avenue.
MR. STEINBACH: So do you open – the two of you are there physically, but you’re by yourself
in terms of the structure of your practice – and you start that in 1970?
MR. TERRIS: Right.
MR. STEINBACH: I just want to follow up with one other sort of distinction. What is it that
differs from this model from what some people might call a pro bono
MR. TERRIS: Presumably there’s nobody that has a pro bono practice entirely because the
only way you can do that is essentially have foundation funding. I suppose
NRDC in a sense is a pro bono practice. When they represent somebody,
they don’t charge them because they get money from members and
foundations and what have you. Pro bono mainly exists in law firms, like
very large law firms that of course charge corporate clients and similarly
wealthy clients, substantial amounts of money, and then do good work by
doing pro bono work for a small percentage of their total practice. But
obviously you can do that if your other clients are paying you very
substantial amounts of money.
MR. STEINBACH: I want to read you something you once said at a panel discussion that
concerned the report of something called the Ash Council, which goes back
to the Nixon Administration, and ultimately gets published in the
Administrative Law Review of the ABA. You said at the time:
“I want to make it clear that neither I nor any other so-called public
interest lawyer claims to represent the public interest. Instead,
attorneys who are sometimes labeled and sometimes even label
themselves as public interest lawyers represent people in our society
who are all too often without adequate legal representation,
consumers, the poor, environmental groups, and the like.”§§
§§ Terris, Bruce J. (panelist). “A Critique of the Agencies as Presently Constituted and of the
Council’s Recommendations for Realignment and Reorganization.” Administrative Law Review
23 (June 1971): 445-451.
I wonder if you could elaborate on your thinking about what it means to be a
public interest lawyer.
MR. TERRIS: Those couple sentences do contain what I think is the heart of being a public
interest lawyer, and that is so many people in this country can’t afford legal
representation. And it’s not merely the poor; middle class people, even upper
middle-class people can’t – I can give you an example. We represented a
group of people in North Carolina where FedEx was going to have flights
going over their neighborhood at all hours of the day and night, almost
constantly. They thought this violated the National Environmental Policy
Act. They retained us to [bring a case]. Well this was I would say an upper
middle-class neighborhood. Those kinds of cases, even with us charging
very low rates, way below market rates, would cost a couple hundred
thousand dollars. It’s not easy even for an upper middle-class neighborhood
to raise a couple hundred thousand dollars. So unless you have a situation
where there’s fee-shifting and you can say there’s a good chance of winning,
they have trouble retaining a lawyer. NEPA doesn’t have a fee-shifting
provision. It’s one of the few environmental statutes that doesn’t have it.
And so we did handle that case. We didn’t win it. Essentially they ran out of
money, and we were doing it for free at the end, and that’s really the problem
in this country.
And so to go back to your question, what I think is in the public interest is
to represent people like that, not because they’re necessarily right in every
single situation. These are complicated issues. You can debate who was
right, but what is certainly right is that their side of that discussion, of that
dispute, be represented.
MR. STEINBACH: Have there been people over the years who’ve been critical of you or sort of
given you flack over your use of the term “public interest” to explain what
you do? For instance, a businessperson would say, on the opposite side of
the issue from you, “I’m representing the public interest, why should you
claim that title?”
MR. TERRIS: I can’t remember anybody ever saying it quite like that. I’ve actually been
the person who has tried to argue with people, and that article that you read is
part of that, saying to them, “don’t confuse this with ‘we’re on the right side
all the time.’” That is I think offensive to people, and it’s clearly not true,
and so we should be accurate about what we we’re doing. If we’re accurate
about what we’re doing, we’re representing people in legitimate cases that
don’t have representation, I have absolutely no problem with standing up to
anybody and saying, this is in the public interest. Even though you may be
right, Mr. Businessman, that in the argument that we’re having, the specific
argument, that your argument is correct, and my argument is not. But what
I’m doing to represent a very large number of people, is in the public interest.
I haven’t really heard people complain about that. We’ve certainly had a lot
of defendants complain about the cases we’ve brought.
MR. STEINBACH: This article I referred to is fascinating in other respects. Because you wrote it
almost five decades ago and so much of it still resonates. You make
reference in here, among other things, to the power of industry and big
corporations and how all too often, if not inevitably, they act in their own
interest and not in the interest of consumers or the breathers of air or the
drinkers of water, as you put it. And you go on to say that business cannot be
expected to regulate itself.
MR. TERRIS: It’s not supposed to. The heart of this kind of thing is they’re really not
supposed to. In our society, they are supposed to be maximizing the money
they make. They’re supposed to be trying to be as efficient as they can.
They’re supposed to push that side of issues in our society. I don’t condemn
General Motors for trying to make as much money as possible by having the
best car and selling as many cars as it possibly can. But then somebody else
who represents the public has got to look over their shoulder and say, that’s
fine, but you’ve gone too far here in this particular instance.
MR. STEINBACH: Explain why that should be through litigation or the courts, as opposed to
MR. TERRIS: Well the start is legislation, because the courts don’t start from a blank sheet
of paper. They almost always start from legislation. Sometimes it’s common
law, but more often than not, it’s legislation. I thought you were going to ask
why isn’t it enough that we have government bureaucracies that are supposed
to do this. And the answer to that is that government bureaucracies are
extremely important to it, and I’d probably even have to say even more
important than private litigation. But bureaucracies often fail, and they often
fail for reasons that are well known to political scientists about how industry
through its financial power, its ability to capture regulators. To rely entirely
on government bureaucracies is a bad mistake.
MR. STEINBACH: All of this is in the context of your comments on something called the Ash
Council. Do you remember what that was about and how you even got
involved in writing this?
MR. TERRIS: I don’t. Sorry, I don’t.
MR. STEINBACH: It’s somewhat off-topic, but one more statement you make in this article.
You say, in effect, it’s disconcerting that we’re even focusing on some of
these issues at a time when the country is still engaged in a horrible, immoral
war in Southeast Asia. And you wrote that in 1971, and it occurred to me
that we haven’t really covered in any of our previous interviews your sense
of the Vietnam War, to the extent you were opposed to it – what you said and
did – so now would be a good chance.
MR. TERRIS: I’m a little startled actually by that sentence. That sentence is stronger than I
remember my position as being. But I guess I must have come around to
that. I was much, in general I think, not as strong as that. I found the
Vietnam War a complicated issue. I think near the end, however, I think it
had gotten to that point where not much was being achieved and an awful lot
of harm was being done. But earlier on, how we got into it and how John
Kennedy first in small steps and Johnson in big steps got in, I did not find it
self-evident that that was something that was wrong to do. It certainly turned
out that way.
MR. STEINBACH: By the time you wrote that, we’re in the third year of the Nixon
Administration with still no peace at hand.
MR. TERRIS: And not seemingly achieving anything and very large numbers of people
MR. STEINBACH: Okay, let’s go back then. You’ve moved into Sunderland Place, you’ve got
this idea, you somehow get the word out that you’re available, and you get
your first significant client, which is the Sierra Club Legal Defense Fund.
What did they want you to do, and what did you do?
MR. TERRIS: The first thing I did was they had a case in the Supreme Court, Sierra Club v.
Morton [405 U.S. 727 (1972)] that involved standing. It’s interesting that
we’re talking about standing because I have a very detailed article that I’m
now trying to pedal to law reviews, on the issue of how wrong the Supreme
Court is on standing. But in any event, that case was in the Supreme Court,
and it had been in my opinion and in the opinion of Jim Moorman, badly
handled in the lower courts – that the Sierra Club had taken the very broad
position that it had standing regardless of whether it had any members that
actually used the area that was going to be made into a ski resort. And so
Moorman wanted me to write – this would be improper today under the
Supreme Court rules – wanted me to write a brief on behalf of other national
environmental organizations, there were about five of them, explaining how
essentially the Sierra Club had standing but unfortunately they hadn’t argued
correctly in the District Court, and it ought to go back to the District Court,
because they did have lots of members that used these areas, that it was the
perfect plaintiff. After all the reason it’s called the Sierra Club is because it
was started by John Muir in order to deal with the Sierra Nevada Mountains.
So anyway I wrote a very detailed brief on all the law of standing up to that
point, but I thought the most important thing I did was put a picture of the
area they were going to destroy on the front page, on the inside of the front
page of the brief. And the Supreme Court did remand, said that there wasn’t
standing the way it was litigated, but did remand it to the District Court, and
in the District Court the Sierra Club showed it did have members who used
the area. The developers abandoned the project, and that [beautiful] area is
MR. STEINBACH: As in the picture, still?
MR. TERRIS: That’s right.
MR. STEINBACH: So that’s the first significant assignment you had. We’re going to cover in
more detail your other environmental work and your other work in the law
firm, but I thought we should focus at least initially on your sense, looking
back, on how your firm has grown and evolved since 1970 when you started
out by yourself. How many partners or lawyers do you have now?
MR. TERRIS: We have a total of eleven lawyers.
MR. STEINBACH: And you have now been at this for almost 45 years?
MR. TERRIS: Correct.
MR. STEINBACH: So big picture overview of looking back – the growth of your firm?
MR. TERRIS: We grew very, very slowly at the beginning. At the very beginning, I did all
the work myself. There was nobody else. I researched the briefs, wrote the
briefs. And we did a lot of environmental work as I said. The Sierra Club,
wherever it had an important case, they basically gave it to me. I mean I
handled cases for them in California, Florida, all over the place. But I also
handled cases on appointment by the federal court, in the District of
Columbia Court of Appeals, criminal cases, several cases that involved
people with insanity defenses. Judge [David] Bazelon was then a very
prominent Court of Appeals judge, and he was very interested in that, but I
didn’t win any of those cases. I think I did open up some important issues,
but I think there’s just a limit to how far the courts are going to go in
recognizing defenses based on serious drug problems. So those weren’t
successful. But for that decade, that first decade, we basically handled feeshifting cases.
MR. STEINBACH: By yourself most of that decade?
MR. TERRIS: No. Within a few years I had one or two other people that were working with
me. They weren’t partners, but they were working for me. As I said before,
we handled mostly big environmental cases. Then in about the middle of that
period, NRDC lost one of its more prominent lawyers, so they took his case
load and gave it to me. I guess they didn’t have a replacement at the time.
Essentially – I don’t know if you want me to keep going through the basic
history, not the individual cases, but the basic history.
MR. STEINBACH: That would be very helpful.
MR. TERRIS: We were being paid by the hour during that period of time by the Sierra Club
and NRDC and a couple other national environmental organizations. So if
money came in through fee-shifting, it would go back to them, not to us.
Well that, of course, meant we were at that point not really operating very
differently from any other law firm, we just had different type of cases and a
different type of client. But essentially we were doing work, being paid on
an hourly basis, and were being paid below market rates. We weren’t paying
our lawyers, including myself, market rates in the District of Columbia.
After that decade – this is rough obviously, there aren’t sharp lines here – we
were no longer getting cases from the big environmental organizations. They
thought – I’m not sure they were right – that it was cheaper for them to do it
themselves, even though they were paying us below market rates, and we
were getting very good results on some of our cases, a lot of our cases. But
they were doing what people sort of knee-jerk do, which is to say, gee, when
we write that $20,000 check to Terris, somehow that looks like an awful lot
of money, so gee, maybe we can hire somebody to do this kind of work. So
by the end of that decade, we were losing business.
NRDC started doing cases under the Federal Water Pollution Act, and
they said to us, you know, these look like really quite easy cases, you really
can bring a whole bunch of them at the same time. We got from them a
whole bunch of cases, and I’ve forgotten how many we brought all together,
something like 15 cases at the same time. And they had basically told us this
is really quite easy, these people will all settle, because the cases are set up in
a quite simple way, they seem on the surface to be very simple – the
company reports to the EPA or to the state how much pollution they
discharge, you take out their permit, you compare it to how much they
discharge, that’s it. They lose. They discharge 50, they’re allowed 30. You
win. Well, that’s one of the biggest jokes you can imagine. We took about
15 cases all at about one time, and we said to ourselves, one lawyer will be
able to handle this. Well that lawyer was overrun with the amount of work,
and the cases did not settle. They didn’t settle in part because we insisted we
were going to get adequate penalties. We weren’t going to just get
injunctions. The statute provides for penalties, and we started applying the
criteria that EPA said you’re supposed to apply. So ultimately we got some
very good settlements. We got one $10 million settlement and some other
results of that kind. But these cases went on and on and on, and instead of
having one lawyer working on them, we had half the law firm working on
them. So that’s when we shifted.
We also would handle some cases for groups of people. I earlier talked
about the airport case in North Carolina. And we handled some of the
environmental cases for groups of citizens. We had a very interesting one
about the Helen Hayes Theatre in New York. We handled Water Act cases
for a considerable period of time, and a large number of them, close to 100,
all over the eastern part of the United States. Then we’ve gone on in more
recent years to handle cases involving poverty issues and cases involving
toxic waste. And those are also very large cases. We’ve shifted when it
became harder to find good water quality cases, so that led us to be looking
for other things. So we have moved as the opportunities were available.
MR. STEINBACH: You currently have eleven lawyers. What’s the largest number of lawyers
that your firm has had over the years?
MR. TERRIS: We actually now have in a sense I think thirteen, but in general we’ve never
gone over eleven, and that’s been dictated essentially by the size of this law
office, which we own. At the moment, we’ve gone to thirteen.
MR. STEINBACH: But unlike a lot of firms that were started in the 1970s, you resisted the
temptation to double and triple, etc., in size over the decades. Did you
consciously try to keep yourself this size?
MR. TERRIS: Partially. We certainly didn’t want to become a 100-lawyer law firm. I don’t
know if it would’ve even been possible. The risk for our kind of law firm, as
you get bigger and bigger, I think, multiplies. We wouldn’t have wanted to
do that anyway. We are a small group of people, we know each other well,
we get along very well. We wouldn’t want the bureaucracy. But the other
thing is literally the size of this building. So even if we got a case or
something that we needed more lawyers, we would have trouble how to
MR. STEINBACH: So you’re in a room, let’s hypothesize, with other founding fathers of law
firms, and you’re all sharing experiences and commiserating and celebrating.
What would you say were the challenges, looking back, of running your own
MR. TERRIS: The biggest challenge for our kind of firm is certainly financial. As you
noted earlier, the money comes in and it’s very delayed, it comes in in spurts.
We’ve had at least I think three times and maybe more, it might be four –
three times where partners didn’t get paid for a substantial period of time. In
at least a couple of those occasions, it was very difficult to know when the
money was going to come in. We have borrowed substantial sums of money
at times, which certainly made my wife very nervous. So that’s been by far
the biggest challenge. It’s just very hard to run a law firm in which you have
a very limited number of cases. We don’t have many cases in this law firm.
We have eleven lawyers, and at the moment, we may have six, seven, eight
cases. That’s all we’ve got. And these are big cases. They’re complex
cases. Most people wouldn’t think a law firm like our size would handle
cases like this. Something else we’ve forgotten about in the discussion about
finance is that it not only requires lawyers, they also require very large
expenses, namely expert expenses. We’ve had up to a dozen experts in a
single case. We’ve had cases in which we’ve laid out a million dollars that
we paid to experts. So it’s not simply delay, it’s not simply that we
sometimes don’t win a case and therefore we lost everything. Sometimes we
win the case, and the company, even though it’s a Fortune 500 company,
goes bankrupt. So that’s overwhelmingly the problem we’ve had.
MR. STEINBACH: So finances first and second and foremost.
MR. TERRIS: Right.
MR. STEINBACH: How about other aspects of running a law firm? What do you look for when
you hire lawyers?
MR. TERRIS: I don’t think it’s very different than what anybody else would look for,
except we obviously are looking for people that care about public interest
law. But that’s not a very hard thing to come by, because the people that are
going to apply here would be out of their minds to apply if they didn’t have
an awfully great interest in public interest law because they’re not going to
make the money that they’re going to make some other place. The people
that we get here are all people that certainly their credentials would allow
them to get a job in a big law firm in Washington. So if they come here,
unless there’s something wrong with their minds, they want to practice public
interest law. Other than that, we look very much for the same thing that
anybody else does.
MR. STEINBACH: So you have a pool and you select the best people you can from that. How
do you as a manager retain those people, keep them satisfied, so they don’t
MR. TERRIS: An awful lot of them have gone elsewhere. In recent years, it seems to have
changed, and now the people who come here seem to stay. But the basic
method of keeping people here, I think, is really a feeling that they’re the
kind of people who want to accomplish something, they want to feel good
about what they do, they don’t want to be protecting General Motors to go
back to that illustration from getting sued on safety defects. They’d rather be
on the other side of that fight. Whether or not General Motors ultimately is
right or is not right because that may be a very complicated question, but like
me, they’d rather be on the side of the small guy against the big guy. So
that’s certainly part of it.
Another thing is that the kind of cases we handle are enormously
interesting. At least I think they are, and I think the people here think they
are. I don’t really deserve a lot of applause for what I do because, to me, I’ve
had the most fascinating law practice imaginable. It’s really been fantastic.
Every day when I come to work I look forward to it.
And the way we work here I think is also attractive to our young lawyers.
We don’t say to them, “We’d like you to do a 5-page memo and here’s the
topic.” Now this is all second-hand. I’ve never been in a big law firm, but
I’ve gotten it from other people. So they are given a 5-page memo and they
come back in three or four days and I give them something else to do. That
isn’t how we’re structured. We’re structured that we say to the newest
associate if we possibly can, “This is your case. It’s your case to think about
and to figure out what our strategy is and how we’re going to go about it and
how we’re going to win this case. We’ll give you all kinds of help. We’ll
have meetings, we’ll talk to you, we’ll go back-and-forth, but it’s your case.”
Otherwise you’re not going to be worth anything to us. You’re not going to
be creative if we just give you a little job to do and then you come back in a
few days and then we give you another job and another job. Now that isn’t
always true. Sometimes we have two or three people on a case, but then we
basically say to them, you two or three, it’s your case, and it’s not the
partner’s case. So there’s an enormous amount of interaction. I think it’s
very interesting to people the kind of work that they do. And even when
some of the work is intrinsically boring, like if you have to go through an
awful lot of documents. You can’t always make that the most interesting
thing in the world, but I think basically the people here find this a very, very
challenging environment, and that overcomes that they are not making
$150,000 or $200,000 a year.
MR. STEINBACH: It’s a very, very competitive legal environment out there, as you know. How
do you distinguish yourself? How do you attract clients? How do you get
the word out that you exist and have this particular niche?
MR. TERRIS: Let me back up. When we were doing Water Act cases, we were finding
those cases ourselves and then we would go to environmental groups,
particularly Friends of the Earth, and say, do you want to bring this kind of
case? Or the American Canoe Association – they basically would want to
bring any good clean water case. And since they weren’t paying any money,
they said terrific, great for us. We get a lot of publicity, we do good for the
environment, etc. So that’s part of how we do it, we ourselves generate
cases, bring them to our people who have been clients with us for years and
years and years. However, we also are pretty well known, so there are
people who come to us. The Honeywell case up in New Jersey, they came to
us because they knew we’ve done a lot of work in New Jersey on water
cases. To me, the surprising thing isn’t that we get some cases. What’s
surprising to me is our doors don’t get knocked down doing cases because
we’re known everyplace. In the old days, we did get cases like that. When
we started there were no environmental lawyers in the country. Essentially
there were none. Probably a year after I started out, I was one of the more
experienced environmental lawyers in the country. Today half the lawyers in
the country took Environmental Law courses in law school, and they would
love to handle one environmental case on what they would regard as the
good guy’s side. So there’s people out there all over the place that would be
willing to do it for free. Well, we can’t do it for free. So we don’t get as
much of that kind of traffic that I wish we did.
MR. STEINBACH: In terms of being the managing and founding partner of this firm, how hard is
it to – all the stuff you have to deal with like staff and property regulations
and taxes and employment rules. How do you learn all that and how
challenging has that been?
MR. TERRIS: For the most part, I don’t handle it. We’ve had good office managers. We
have a good accountant, an accounting firm, that does our taxes and directs
the office manager how to do the books in the correct way. Those things are
brought to myself and my two partners in a fashion that is pretty focused. In
other words, it isn’t that I have to go out and I have to do all these things.
It’s brought to us in a way that the issues are fairly clear and we can make
decisions without being an expert in all those fields that you said. And now
we have an administrator who’s also technologically very, very good, which
today is the biggest headache. Taxes, staff, and all that is minor in
comparison to have your computer system operate, because somehow it
always seems that it isn’t operating, and I’m an idiot on these things. I think
one can basically assume that given my age. So that’s the biggest problem
MR. STEINBACH: A couple other general questions about your practice here over the years.
Has your firm ever done any defense work or considered doing defense
MR. TERRIS: You mean in the environmental field?
MR. STEINBACH: You’re representing the corporation, you’re representing what you would say
is not the “public interest” plaintiff.
MR. TERRIS: No. But that’s an interesting question that you’ve asked. Years ago, I mean
really a lot of years ago, I read in one of the legal newspapers that there was a
lot of agitation among general counsels of big corporations that they were
being overcharged and not getting as good service as they should get from
their usual law firms, and I wrote the general counsels of several large
corporations. I said, why don’t you think about a different kind of law firm?
We wouldn’t have handled anti-environmental cases or something like that,
but we might have handled some neutral kind of things. Or even some
environmental things that would help them on the environmental side. I
never even got a response [laughter].
MR. STEINBACH: So no business has ever reached out to you to be kind of like the angel on the
shoulder telling them how to do these things consistent with the laws?
MR. TERRIS: Never. And I think it’s quite clear from our relationships with defense
counsel over the years that this wall between us is absolute. And you see it
in individual cases – not always, but you see it in individual cases about
which they get very worked up. Some of the defendants and counsel get
very, very worked up. I just think they regard [our work] as it’s almost unAmerican.
MR. STEINBACH: To do what you do.
MR. TERRIS: That’s right [laughter]. Something almost morally wrong is involved here,
something really fundamental.
MR. STEINBACH: Looking back again over the past forty-plus years, have you ever thought of
leaving, doing something different?
MR. TERRIS: No.
MR. STEINBACH: Never?
MR. TERRIS: Never. I should be a little more clear about that. Definitely nothing except
for public service, and years ago I was approached – when would this have
been? – in the Carter Administration, I think, people asking me what kind of
a job would I be interested in. But the jobs that I was interested in were so
high that I didn’t really expect anybody was going to bite. And then years
ago also I got a request, do I want to put in some kind of paperwork for a
district court judgeship? – which I did not do because I didn’t think, at that
point at least, I was qualified to be a district court judge. I thought I was
qualified to be a court of appeals judge, but not a district court judge. Today
that wouldn’t be true, but at that time it was true.
MR. STEINBACH: So other than the possibility of a significant job in an administration or some
judicial appointment, you never thought about being a different type of
MR. TERRIS: No. Never. It really goes back to what I said before. This law practice, from
my standpoint, is the most fascinating law practice I can even imagine. The
kind of meetings we have, when we think about strategy and how we’re
going to go about doing things, is so challenging to me and so interesting
about how to do it. And then I get a good feeling obviously about the things
we do. But even aside from the good feeling about the things we do, just the
mechanics of law practice, it’s been terrific.
MR. STEINBACH: There’s a lot of lawyers who have been practicing for decades who when you
get them over a beer will say, practice isn’t as fun as it used to be; it’s far
more cumbersome; it’s not nearly as exciting; it’s much more bureaucratic;
it’s hard to deal with clients; etc. Do you share the views that life as a lawyer
has gotten worse, or do you feel differently?
MR. TERRIS: I don’t feel that at all. I don’t feel it in the slightest.
MR. STEINBACH: You’re just as excited and happy doing what you do as in 1970?
MR. TERRIS: Absolutely.
MR. STEINBACH: That’s great.
You founded your firm with enormous experience in matters such as the role
of the police, community relations, one man, one vote, even national security
issues. Did you ever think that you would end up spending so much of your
practice as an environmental lawyer?
MR. TERRIS: I would have thought it was crazy. But you know, it’s particularly so
because there wasn’t really an environmental field when I went to law school
or up until virtually the same time as this law firm got established. There
essentially were no environmental lawyers. The Ford Foundation deserves a
tremendous amount of credit for this. Around 1970 when it started funding
NRDC and started funding other kinds of people in the country and the
Environmental Defense Fund was getting started at that time. That was
really the beginning of real environmental law in the country, so it would
have been impossible for me to have dreamt about it before that time.
But people would say I’m really not an environmentalist. Most of the
people in this field I think are people that go out and they hike and they put
up tents overnight and they do all those kinds of things. I don’t do that, never
have. I can remember when I was a teenager at the camp I attended, I
paddled around in a canoe for a few hours and that kind of thing, but the only
thing that I’ve ever done that environmentalists might recognize as a core
environmental-type activity was when a group of people retained our firm to
fight about the High Ross Dam in the State of Washington. They said, you
can’t represent us unless you come and see this magnificent area where they
want to build this dam, and so they said you have to go out there. Well, the
dam, this magnificent area, was not on a road. It was a two-day, three-day
hike into the mountains of Washington. My wife came along and her knees
have never been the same since that time because she’s certainly also not a
real environmentalist. My knees didn’t get hurt by it, but it was all I could
take, those three days. So, no. The answer I guess is a long-winded answer
that says I couldn’t have dreamt that this is what I was going to spend much
of my life on.
MR. STEINBACH: So the evolution of your environmental practice has been almost more
fortuitous than by design, I suppose?
MR. TERRIS: Yes, I think for the reasons I said earlier, we move from one type of case to
another kind of case, we went to where the opportunities were. But I’m also
very interested in other kinds of things. I’m very interested in poverty law,
so we started doing a lot of that kind of work.
MR. STEINBACH: You’ve told us that your clients in the environmental field included the Sierra
Club, the NRDC – National Resource Defense Council – are there others that
come to mind?
MR. TERRIS: Friends of the Earth has probably been the biggest. American Canoe
Association, we represented them on a lot of water cases for years. For some
years we represented the National Wildlife Federation. So we’ve represented
most of, or at least a number of, the big environmental organizations, but
most of that’s been a long time ago. Some of the people we represent now
are national ones. The Sierra Club we do still represent in some things. But
we also now represent local environmental groups too.
MR. STEINBACH: How would you describe your firm’s expertise in the environmental area to a
MR. TERRIS: I would immodestly say: very close to total. If you look at our
environmental resume,*** which I guess is about thirty pages long, it’s got
lawsuits in almost every conceivable area. One area we have not [worked] is
the nuclear area. But just about every other kind of case you can imagine.
*** “Environmental, Preservation, Land-Use, and Zoning Matters Handled by Terris, Pravlik &
Highways, power stations, refineries, toxic waste, air quality, water quality,
land use. On and on.
MR. STEINBACH: Right. I noted several dozen: historic preservation, land use, zoning,
Endangered Species Act, wetlands preservation, on and on and on. You must
be, for a firm, unique to have developed specialty and expertise in so many
areas of environmental law.
MR. TERRIS: I think the reason is that we can do a new area – if somebody brought us a
new area, we would know how to go about it. In other words, we might not –
if somebody brought us a new thing, we might not already have expertise in a
substantive way. But the methodology of handling an environmental case we
would know, and we would also know the underlying kinds of issues that
have come up again and again in different kinds of cases. Take standing or
exhaustion of administrative remedies and primary jurisdiction. There are a
whole bunch of basic kinds of issues that come up in all kinds of cases. It
doesn’t matter which kind of a case you’re talking about. So we have
expertise in an awful lot of those. But basically we know how to go about an
environmental case so that if somebody walked in the door today and said
here’s a new one, and you’ve never done one exactly like this before, and
we’d say, that’s right, we haven’t, but we know how to do it.
MR. STEINBACH: So you have environmental organizations as clients. Are there sometimes
individuals or citizens groups that you also represent in the environmental
MR. TERRIS: Yes.
MR. STEINBACH: Describe those sorts of cases.
MR. TERRIS: I described earlier the North Carolina group. They got themselves together
and they were very worried that their neighborhood was going to be badly
hurt by planes constantly flying over it, so they got themselves together. We
represented them. Sometimes there’s an individual, not as often, but
occasionally, that comes to us. We’ve handled a number of cases for citizen
groups in different parts of the country. We have a case now in western
Pennsylvania that we represent local environmental groups.
MR. STEINBACH: What cases and results have you been proudest of – that you’ve worked on
that your firm has accomplished in this field?
MR. TERRIS: There’s one that doesn’t have a landmark decision but it was of enormous
importance. It was in the District Court in San Francisco and involved the
federally-owned roadless areas in the country that we wanted to tie up so that
they would have the potential to be designated for preservation. Once you
drive roads through wild areas, they really can’t be considered any longer for
preservation. In that case I can’t remember exactly how many acres it
involved but something like 30 or 40 million acres. It was an enormously
important case. We got an injunction that lasted for many years, and the
result was that much of this area has been preserved. It covered all kinds of
places in the West. In other words, it was not one given place; it covered all
kinds of roadless areas.
MR. STEINBACH: Was it Forest Service connected or other entities?
MR. TERRIS: I can’t remember if it was all Forest Service or part of it. I think it was all
MR. STEINBACH: Which ultimately led to I guess the promulgation of some roadless
MR. TERRIS: Right.
MR. STEINBACH: In the Carter Administration, perhaps?
MR. TERRIS: I think that’s right, because it was back in the 1970s. And I remember one of
the more startling things in my practice. I went in to argue a temporary
restraining order in the morning. The judge said, “I’m going to decide
whether there’s going to be an injunction issued, not the temporary
restraining order, so you’ve got two hours for lunch and come back and you
argue.” So instead of having a little half an hour argument, it was a fourhour argument, and we got the injunction. So that’s one of the big successes.
Another big area was Sierra Club v. Fri [412 U.S. 451 (1973)].
MR. STEINBACH: Which ended up in the Supreme Court.
MR. TERRIS: That’s correct. And we won on a tie vote.
MR. STEINBACH: Did you argue?
MR. TERRIS: I argued that case. A very smart guy at the Sierra Club, the president of the
Sierra Club, came up with this idea, I have to give him credit – Larry Moss.
He brought the case to us to argue about how to protect the areas of the
country that had good air quality, not bad air quality. The statute had no
specific provisions to protect those areas. We developed a theory about how
it could be protected by the statute even though [the statute] was not specific
on the subject. So that resulted in the law being that you couldn’t
significantly degrade clean air areas. It ended up with Congress having to
take action and passing legislation in that field that protected those areas,
which still exists. It’s still an important part of the Clean Air Act. So that
was very important. Then a case was brought to us about – these were all in
the 1970s; that was a time when we really were getting cases bringing
completely new issues and enormously important issues – this was a case that
involved clear-cutting in a national forest in West Virginia. We got a ruling
that you couldn’t clear-cut these kinds of areas. That so panicked the lumber
industry that that went to Congress, and although we didn’t get everything
we wanted, we got a [statute with a] substantial amount of protection against
clear-cutting in national forests throughout the whole country, which was
also extremely important.
MR. STEINBACH: It’s interesting in both the Sierra Club v. Fri case and the clear-cutting West
Virginia case that you’re doing cutting edge even in advance of legislation in
this area – that then Congress after the courts rule steps in and comes up with
some kind of [law]. That must have been exciting and fun.
MR. TERRIS: It was. I’m trying to think of those which were most important. Then, of
course, the Laidlaw case.
MR. STEINBACH: Before that, you actually, I think, argued Kleppe v. Sierra Club [427 U.S. 390
(1976)]. Did you argue that under NEPA in 1976?
MR. TERRIS: Okay, yes. A different Sierra Club case.
MR. STEINBACH: Different Sierra Club than what you referred to earlier. To deal with
preparation of regional environmental impact statements.
MR. TERRIS: We’d been brought in to do a lot of work on what was then an enormous
effort to mine coal in the Great Plains states, particularly Montana and
Wyoming. They had low sulfur coal and the thought was that if an enormous
number of mines opened up, it was going to be, from an environmental point
of view, devastating to those areas. The issue was whether you were going to
get a comprehensive environmental impact statement that covered not just an
individual mine – these were mines that were going to be on federal
government land – that you had an overall environmental impact statement
which would evaluate the effect on this whole area of much of two states.
The government wasn’t willing to do it. We won it in the Court of Appeals.
The government took it to the Supreme Court and technically we lost;
however, to a substantial degree we actually won because what the Supreme
Court said about what had to be done pushed the law under NEPA quite
significantly towards looking at problems as a whole in a macro way and not
just looking at individual projects. So it was certainly not a complete defeat,
and that law continues to be good law today.
MR. STEINBACH: Then you started to mention your argument in Friends of the Earth v.
Laidlaw [528 U.S. 1967 (2000)], which is relatively recent, in 2000, in the
Supreme Court. Tell us about that.
MR. TERRIS: That case largely involved the law of standing, which is present in almost all
environmental cases. Virtually no defendant gets sued [in an environmental
case] that doesn’t say that you don’t have standing. We took that through to
the Supreme Court. We won in the Supreme Court, and it’s one of the major
cases on standing. One of the few that’s actually been won in the Supreme
Court upholding standing. But it’s also a case in which we ended up not
getting paid because the company went bankrupt. I shouldn’t say we didn’t
get paid. I think we got paid $10,000 on a bill of over $1 million.
MR. STEINBACH: How would you summarize the holding of the Laidlaw case and why you
think it’s one of the more significant of the standing cases in the Supreme
MR. TERRIS: It certainly was very clearly important under all the environmental statutes
that deal with harm to individual people. It basically said that the harm that
was critical was to individuals and you didn’t have to prove environmental
harm itself – that the whole project was causing harm – that if you can show
that a particular person was harmed, then the representative of that person,
the organization, Sierra Club, had standing. It applied a proposition that I
would have said existed before Laidlaw. Obviously you don’t know a
proposition is controlling until you get a Supreme Court ruling, and certainly
Justice Scalia didn’t think that that was the law before. So that was very
important. And it also had a mootness issue in it that was important. It
reiterated prior Supreme Court law that a case is not moot unless there is
really no possibility that the harm is going to continue.
MR. STEINBACH: The significance of Laidlaw is that it allows individuals who are affected by
action that has to do with the environment to bring a suit even if they can’t
establish or show overall harm to the environment? Is that right?
MR. TERRIS: Right.
MR. STEINBACH: Would you say that’s still valid standing law?
MR. TERRIS: Yes. That’s clearly the law today. Part of that really was not clearly
established before then. Most of the lower court cases did support it. The
most important thing about it was it clearly was more hospitable to
environmental standing, and so it’s had a very big influence on lower courts
quite outside of technically how big the change was. There have not been a
lot of standing cases lost in lower courts since then, environmental cases.
MR. STEINBACH: What’s prompted you to write a big law review article about standing even
MR. TERRIS: I’ve done a lot of thinking about standing. It’s not only Laidlaw, we’ve had a
lot of standing cases in lower courts, and it essentially dawned on me that the
law of standing has no constitutional support whatsoever, that it’s been made
up by the Supreme Court. They just made it up. You’d say to someone,
come on, that’s not possible. Where would you look to find support for
constitutional standing? You would look to the language of the Constitution,
that would be the first place you’d look. There’s nothing in the Constitution
that supports it. It says you can only bring a case or controversy. Well, these
are cases and controversies in ordinary English language, and there’s no
indication that those words meant something different 200 years ago. So
then where else would you look? Let’s look at the English history. Well, a
number of distinguished scholars have looked at that history and have found
no support for it. Quite the opposite: there is some indication that England
allowed people to bring a lawsuit, individual people to bring lawsuits,
representing the public in a number of the different kinds of common law
writs of action. So then look at early American history. There’s nothing to
support it in early American history. So where did it come from? It came
from the Supreme Court, in roughly the last 100 years, it made it up. They
said this is required by the Constitution. It’s not a case or controversy unless
you have standing, but that’s circular. That doesn’t tell you where you got it
MR. STEINBACH: So Justice Terris would eliminate all standing requirements?
MR. TERRIS: Yes. But only in one sense, constitutional standing. The argument is
whether the Supreme Court has the right to make that decision or Congress
has. Congress of course can decide we don’t want to have these kinds of
cases in the federal courts, but in this other field, we think it’s so important
the public be able to bring lawsuits that we’re going to allow it. So in my
view, the standing people who think that they are cutting down on judicial
activism, have actually done the most judicially activist thing around by
saying, we decide this and Congress doesn’t, whereas the non-activist
proposition is to say this isn’t our job, jurisdiction, generally, is in the hands
of Congress and it’s also in the hands of Congress in this matter.
MR. STEINBACH: Fascinating. Has any Justice gone on record along these lines?
MR. TERRIS: No. As far as I know, it’s never been presented to the Court.
MR. STEINBACH: Maybe we can race and get this transcript online before even a law journal
publishes and break some news [laughter].
Your firm has over the years I guess, I’m just generalizing here, won
consent decrees and injunctions and civil penalties in environmental matters
and has also received awards, you personally and your firm, for your
environmental practice. Reflections on that?
MR. TERRIS: Let me just talk about the penalties because one of the things you can do, the
statute basically says that the penalties go to the federal government. The
courts have allowed kind of an end run around this, and this by the way I
think annoys some defendants – that you can set up the penalty award so that
it doesn’t go to the federal government. It’s used for other environmental
purposes. We got a consent decree in New Jersey for $10 million, and we
used that $10 million to set up a foundation in New Jersey that gives out
money regularly for environmental causes. We don’t run it. We have
nothing to do with it, but it’s been set up with a lot of prominent people on
the board. We’ve also in other places gotten money and used it to buy land
that would be added to existing parks so it would also be kept for
environmental purposes, preserved for environmental purposes. So there
have been a number of those kinds of things that I think have been useful.
We got an award from the Hackensack Riverkeeper, which gave us a lifetime
achievement award, and then also the National Wildlife Federation was nice
enough to give us an award. It is nice to have people think you do something
MR. STEINBACH: When we talked previously about the police issues you worked on in the
1960s and we reflected on recent events, the more things change, the more
things stay the same, I’m wondering if your reflections on the environmental
progress this country has made are somewhat different – that, in fact – I don’t
want to put words in your mouth – but looking back over the last 30 or 40
years, there’s been extraordinary progress, it would seem, in the
MR. TERRIS: I think you’re absolutely correct. We were talking about it a few moments
ago. There was no environmental movement of consequence. The Sierra
Club had existed for many years, of course, and there were other groups that
were important, but there wasn’t a real environmental movement. People
didn’t even really understand the danger to the environment up until roughly
the same time, a little before, our law firm was founded. So you didn’t have
courses in law school, you didn’t have environmental organizations, you
didn’t have bureaucracies in the federal and state governments that dealt with
this. That’s enormously changed. On the other hand, we now know the
dangers and the harm that’s caused is immensely greater than we probably
imagined in 1970. Climate change in itself – it’s no longer that we’re putting
a little bit too much pollution into the air and therefore that causes people to
get ill and even to die earlier than they should die. That’s certainly serious,
but it’s not like we are going to destroy the planet that human beings live on.
It’s gone to a level of environmental danger that is immensely greater. And
when you see what the environmental problems of China, say, are today, you
realize what could have happened if we hadn’t started doing the things we
did in 1970 and earlier. So you’re absolutely right, and yet we probably feel
more threatened today than we did at the beginning.
MR. STEINBACH: As proud as you are of your contributions to the one person, one vote
outcome, you must be as equally proud of your contributions to the
environmental law field.
MR. TERRIS: I think that’s right.
MR. STEINBACH: Your firm has handled other matters, and I think where I want to go next is
the work you did on behalf of the women of the Foreign Service in the State
Department, which is an extraordinary tale of its own. Why don’t you tell us
about that matter?
MR. TERRIS: Very close to the beginning of the firm, we started doing work, and I’m not
sure what the sequence is, whether Alison Palmer came to us first or some
other people in the State Department came to us first. But in the 1970s we
handled a number of State Department individual cases, people with
individual problems. There was a Grievance Board and we fought for
[Foreign Service officers] to keep their jobs and that kind of thing. I can’t
remember now whether that was before Allison Palmer came to us or not, but
in any event, early in the 1970s, Allison Palmer came to us. She was a
Foreign Service officer, a very feisty woman, not a person who backs down.
Most people who litigate that’s true of. That’s one thing I’ve learned about
clients in all kinds of fields that have come to us. They tend to be feisty
people, and she certainly was. She claimed the Foreign Service was not
treating her like they were treating male Foreign Service officers.
Her case started as an individual case but quickly became a class action
and not only for Foreign Service officers but also female Foreign Service
applicants, in a whole variety of different kinds of things – promotions,
evaluations, awards, on and on, a long sequence of things as to which we
claimed that female officers and applicants weren’t being fairly treated. It
was very complicated litigation, very lengthy litigation, which we lost in the
District Court and we appealed. And the case, lo and behold, came in front
of a panel of the Court of Appeals, that one of the judges was a person who
somehow keeps coming back into my life in a completely professional way:
Patricia Wald. She wrote the opinion reversing, and then it went back to the
District Court, and we ended up with a settlement in which all the substantive
things that the State Department was doing that were discriminatory were
remedied. We looked at statistics of all these things and made sure that they
were corrected. Then the individual women who had been discriminated
against in the past had a process in which they could get relief, benefits based
on what kind of discrimination had occurred to them. Ultimately I think the
whole case took over twenty years. I can’t say I’ve done an investigation of
the State Department in the last few years but I have some degree of
confidence that that problem is totally over. In the world we live in now, to
reinstate that kind of discrimination I think would be impossible.
MR. STEINBACH: When I looked at Judge Wald’s opinion, one of its opening lines is, “This
class action began over ten years ago.” [Palmer v. Shultz, 815 F.2d 84 (D.C.
Cir. 1984)] And you just told us the whole thing took almost twenty years by
the time it was finished, which has got to be, from the perspective of running
a law firm, a big deal to jump into and to stay with for all that period of time.
MR. TERRIS: This particular case and the delay in getting attorneys’ fees had a huge
impact. This was the biggest case in terms not necessarily of importance,
although this was enormously important, but in terms of how much work we
put into it.
MR. STEINBACH: You identified I guess in the course of discovery in the lower court at least
seven different areas where the allegations were that women in the Foreign
Service were being disadvantaged, which must have taken enormous
amounts of effort to uncover through discovery and expert testimony, etc.
MR. TERRIS: Right. We were paying experts to analyze this material. We had expert
MR. STEINBACH: Then you’re developing several different types of legal claims that the facts
fit into under the employment discrimination laws at the time. Lots of this
strikes me as relatively new at the time, that this was a very significant
gender discrimination case.
MR. TERRIS: It was pretty early in the process. I won’t say there weren’t any other cases
at the time, but it was early.
MR. STEINBACH: Judge Wald wrote the opinion, but Robert Bork and Harold Greene were also
on the panel. Do you remember the argument?
MR. TERRIS: It’s funny, I don’t remember arguments very well. I think I get so focused on
the argument that I don’t have very much distance. I don’t even remember
more recent arguments that well.
MR. STEINBACH: This is a matter that you personally handled most of the way through?
MR. TERRIS: Yes, but there were certainly associates. At the very beginning, I handled it
probably by myself because it came very close to the beginning of the firm.
But over the twenty years when we got more lawyers, there definitely were
other lawyers working on the case.
MR. STEINBACH: Did you take the leading role in writing the brief?
MR. TERRIS: The basic method that we use in this office, I haven’t written a major brief
for a long time. I am basically the editor and also an important part of the
strategy. I don’t want to say the strategist because as I said before, we like to
impose on lawyers involved in a case heavy responsibility for being the
strategist. But I’m certainly very heavily involved in the strategy.
MR. STEINBACH: And you argued in front of the D.C. Court of Appeals.
MR. TERRIS: Yes.
MR. STEINBACH: I noticed your firm to some extent served as, once there was a settlement, as
the monitor of court orders and consent decrees. Do you remember that?
MR. TERRIS: In the Palmer case?
MR. STEINBACH: Yes.
MR. TERRIS: We definitely were doing that. We weren’t court ordered in the sense that
you have a monitor and then you get paid automatically for that kind of
work. That kind of monitor doesn’t represent the plaintiffs. We were
representing the plaintiffs.
MR. STEINBACH: How significant was the victory in the Palmer case?
MR. TERRIS: I think it was enormously significant, but I’m sure some people would say,
and there’s certainly some truth to this, this was going to happen anyway. I
mean you probably won’t find any government agencies today that were
operating the way the State Department was operating when we sued them.
So you could say sooner or later this was going to get remedied. But it got
remedied I’m sure faster, considerably faster, and had a great benefit to the
women in the Foreign Service – and I think I would say to the country, to not
have a system in which you’re essentially not taking advantage of half the
people in the country in terms of their talents. So I think it’s an important
MR. STEINBACH: So wholly apart from the State Department itself, it’s a watershed moment
for all federal hiring with respect to women?
MR. TERRIS: I’m sure that people who were in personnel jobs in the government, I would
think, would have known about this case and it would be more of a push to
get these kinds of things remedied and not to continue the historic way that
women were treated.
MR. STEINBACH: Your firm has brought other employment-related litigation against other
federal agencies and private employers.
MR. TERRIS: Indeed. But those have been individual cases. They’re not cases that would
change the world.
MR. STEINBACH: Not class actions like the Palmer decision was?
MR. TERRIS: Right.
MR. STEINBACH: Your firm has handled many other matters, but some others are worth
reflecting on. Your firm has handled a variety of civil rights cases. Any
recollections or reflections on any of those?
MR. TERRIS: It’s now a long time ago, and I don’t remember the details. We handled a
housing discrimination case a while back. We also represented the Black
Panthers for a period of time as to their troubles with the FBI. Unfortunately,
the funding source of that collapsed after a while. It was a difficult litigation.
We had a judge that wasn’t exactly favorable to that kind of a case. I would
call him a conservative judge.
MR. STEINBACH: What were your claims on behalf of the Black Panthers?
MR. TERRIS: Again, it’s a long time ago, but they were being spied upon and FBI people
were interfering with the things they were doing. The Panthers – large
numbers of people didn’t like them and didn’t like their views. The things
that we were representing them about were fully protected First Amendment
rights, and the FBI was interfering with them. I think by the year 2015, I
think people pretty well know the FBI wasn’t exactly following the
Constitution at that time on many of these things.
MR. STEINBACH: Your firm has recently been involved in litigation against the District of
Columbia regarding preschool special education. What’s that about?
MR. TERRIS: That’s a case under IDEA, the acronym, that the federal government requires
that the states, in return for getting a lot of money from the federal
government, identify children that have disabilities, mental or physical
disabilities, and then evaluate them and come up with a specific plan as to a
remedy for those children. This lawsuit involved children 3 to 5-years-old so
they would be getting treatment, services at that time which would help them
so that by the time they got to school age they could ideally participate in the
regular school system. The District had the worst ratio in the country for
identifying such children. It identified approximately 3% of the total number
of children in the District as disabled. All the other States did better. Many
of those other states didn’t do well, but the District being entirely an urban
jurisdiction, and one with substantial amounts of poverty, would be expected
to have higher percentages than in other states.
We won that case in the District Court. It got reversed in the Court of
Appeals on the ground that the class definition was not done correctly.
We’re now back in the District Court for resolution, which I think will occur
in the next few months as to whether the District still violates IDEA. I feel
fairly confident there will be an injunction again. In the meantime, however,
I should say, because of our lawsuit in the District Court – the District
government said it was because of our lawsuit – the District has improved
very substantially. It’s no longer the worst in the country, so a very large
number of children are getting services that they would not have gotten.
MR. STEINBACH: You made the decision to take that case?
MR. TERRIS: Yes.
MR. STEINBACH: What motivated you to become active in that matter?
MR. TERRIS: Because I think it’s important that disabled children get these kinds of
services. Otherwise they really run the very serious risk that they will not
develop to the limit of their capability. There’s lots of evidence that if you
get to these children early, that substantially increases their performance in
school and then later on in life. I think it’s a very important issue and one as
to which there was every possibility we could be successful. And the fact is
we have been successful on the merits of this. The District’s main interest I
think at the moment is to make sure they don’t pay our attorneys’ fees.
MR. STEINBACH: I ask because your firm’s resume has as one of its objectives to provide highquality legal representation to individuals and groups that cannot otherwise
afford such services. And it seems consistent throughout the past 45 years
that that’s what your firm has pledged to do.
MR. TERRIS: Nobody else could do this in the sense – one of the people that brought the
case to us was a lawyer, a very dedicated woman helping children of this
kind, but she’s an individual practitioner, and she didn’t have the resources to
bring a case of this kind, so we could do it. And of course we weren’t paid.
We paid for experts, and unfortunately under this statute, you don’t even get
recompense for those experts if you win, so this is going to come out of our
pocket regardless. But we felt we were in a position to do it.
MR. STEINBACH: It’s impossible to read a law firm resume and not ask about something
labeled, “Harris v. Florida Elections Candidacy Commission.” [122 F.
Supp.2d 1317 (N.D. Fla. 2000)]
MR. TERRIS: Well, in Bush v. Gore [531 U.S. 98 (2000)], the main events we had nothing
to do with. We were involved in non-main events that had the potential to be
important. There had been a lawsuit brought about how the ballots of people
in the military were being treated. Somebody else had brought the lawsuit,
and then they felt they were overwhelmed because things were moving at an
incredible speed, and they asked if we wanted to handle the case. So we said
okay. There was nobody to pay for it, of course, and there wasn’t even a feeshifting statute. So we handled it. We went in a very short period of time to
the District Court, to the Court of Appeals, to the Supreme Court – and I’ve
forgotten how many days we did this in, something like four or five. I think
there was a substantial issue to prevent the count going forward. I think the
one thing one can say definitely in the Gore, Bush dispute is it had little to do
with law and an awful lot to do with politics, and when the chips were down,
nobody was going to consider a new issue. Just like the outcome was
dictated by politics, that whether we had a good case or not, it was decided
on the basis of politics. But I might say that in the lower courts, every single
judge, all four judges we got, just happened to be Republicans and so we
didn’t get any breaks.
MR. STEINBACH: That must have been a whirlwind of events.
MR. TERRIS: It was. Because we were working all night. Half the office was here all
night getting these briefs out in no time. It was something.
MR. STEINBACH: Have I left out anything significant in focusing on the past decades of your
MR. TERRIS: Let me add a couple things. We’ve brought two big cases against the District
of Columbia on Medicaid, and one of them we won in the District Court.
Judge [Gladys] Kessler issued a very long detailed opinion of what was
wrong with the program. We’ve been monitoring her order ever since. I
forget how long that is, fifteen years or something. And there’ve been
substantial improvements; there’s no question about that. Although they still
haven’t complied with the court order; I should say the court order was
translated into a settlement. So that’s a major activity that we still are doing.
We also have another Medicaid case against the District in which we have
twice lost in the District court. It was reversed the first time, and now we’re
in the Court of Appeals again. It’ll be argued again in February, about
providing prescription drugs to people on Medicaid and telling them if the
drugs are not provided, that the pharmacy is required to say why, so the
Medicaid beneficiaries have the right to contest that. The District doesn’t
require an explanation and leaves people essentially defenseless when the
pharmacy on the instructions of the District doesn’t fill the prescription. So
that’s also an important case in the poverty field.
I should say one other thing about the cases we’ve handled in the
environmental field. We’ve brought a number of very big cases involving
toxic waste and the one that’s been completely resolved involved Honeywell
in Jersey City. We won that case. The result was Honeywell had to dig up
the same amount of material taken out of the 9/11 site, an enormous amount
of material, and that area is virtually restored now and will be developed.
The recession in the country has slowed this down, but it will be developed
into a model area of Jersey City. There will also be an expansion of the
college there, and it will certainly have an enormous impact on Jersey City.
It’s a very large area, so that’s extremely important.
MR. STEINBACH: I’ll ask one final question. As a father you look back with pride over your
children’s lives. You must feel to some degree that way about the success of
your law firm?
MR. TERRIS: Yes. I do. It wasn’t an easy thing to do, and I guess it shows you that there
are things that it’s better you don’t know about in advance or the
ramifications of them. You might have been too chicken to do them. And
the thing is if somebody came to me today and asked should I do this, I’d be
very hesitant to say yes – because part of what’s happened, I have to admit,
we’ve had some very good luck. Some very good luck. I think we’ve done a
good job, but I’m not sure we still would have been able to do this without
having very good luck. There were times we were very, very close to being
at the margin as to whether we just could continue, and suddenly we won a
case and got a lot of attorneys’ fees. The Palmer case was the first example.
MR. STEINBACH: But knowing what you know looking back, you’d do it again?
MR. TERRIS: Oh definitely. Now that I know I have the luck [laughter].