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 Ann Allen, and the interviewee is
James Robertson. The interview took place at the Federal Courthouse on March 18, 2004. This
is the second interview.
MS. ALLEN: Judge Robertson, at the end of the last interview we were talking about
your return to the law firm of Wilmer, Cutler & Pickering in 1972 and the
pro bono activities of the firm. Maybe you can expand a little bit on what
legal practice in Washington was like in the early- and mid-1970s.
MR. ROBERTSON: I think I said the last time my return to Wilmer, Cutler & Pickering was, in
my mind at least, not absolutely the first thing to do leaving the Lawyers’
Committee because I thought of myself as going out and starting another
law firm, but I didn’t. I was self-aware enough to know that I probably
didn’t have, I don’t know, the energy or something to go out and hustle up
clients. That was never my strong point. Besides that, I knew that if I
tried to start my own law firm, the economic reality of it would be that I
really wouldn’t have any time to keep doing what I had been doing at the
Lawyers’ Committee, which was civil rights work and some pro bono
things as well.
So I went back to Wilmer Cutler thinking that I was going to help
provide some leadership to the pro bono program, and I think over the
years I did that. I certainly cannot and do not claim that I invented or was
the leader of pro bono of Wilmer, Cutler & Pickering. Wilmer, Cutler &
Pickering was already in the vanguard of the law firms that were doing a
lot of pro bono work in the city and they were doing it through the real
leadership of people like Lloyd Cutler, John Pickering, and prominently at
that time Louis Oberdorfer, as the very senior partners in the firm. Even
they were not, I think, the inventors of the pro bono movement though,
because the early 1970s particularly were a time of great ferment among
law students and young lawyers who were still reverberating with the
1960s. We were still in Vietnam, and Nixon was still in the White House,
and there was an enormous amount of talk among young lawyers and
certainly among young liberal lawyers about changing the system through
litigation and making a difference in American society through litigation
and systemic reform through litigation. And not only that, but young
lawyers were looking askance at some of their colleagues and some of the
causes that law firms were representing. I remember Wilmer, Cutler &
Pickering responded to that concern by declaring, I think quite publicly,
that the firm would never have anything to do with representing the
tobacco industry. You remember the film called Never on Sunday when
Melina Mercouri played the role of a heart of gold Greek prostitute who
didn’t work on Sunday?
MS. ALLEN: I remember very vaguely.
MR. ROBERTSON: Well I, with my probably quite inappropriate sense of humor, called it
Wilmer Cutler’s “Never on Sunday Syndrome.” But it was a heartfelt and
serious position of the firm that they could not in good conscience take on
the representation of the tobacco industry. As the 1970s wore on, Wilmer
Cutler and everybody began to be convinced that a lawyer can’t really
pick and choose clients on the grounds of the moral content of the client’s
causes, but that was the kind of issue that was afoot in those days. Is it
moral for you to be representing this, that and the other thing? At any
rate, law students began demanding of law firms, “Who are your clients?
What is your practice? Why should I come to work for you? Do you have
any pro bono work?” The law firms, particularly in Washington, DC,
began responding, “Yes, we do do pro bono work.” Wilmer, Cutler &
Pickering was one of the first.
When I went back to the firm, I actually took some clients with
me, although they were civil rights clients. One case I took back to the
firm with me, or brought into the firm, involved some agents of the Drug
Enforcement Administration who wanted to sue the Drug Enforcement
Administration for racial discrimination. These were black agents who
had not gotten promotions and were getting all the undercover
assignments, and they were being discriminated against in a number of
different ways. I think that case went on for 30 years before it finally got
resolved. Maybe 25 years. The case went on forever and ever and ever.
MS. ALLEN: What was the outcome?
MR. ROBERTSON: There was a settlement eventually. It was a class action, and eventually
the case was settled. I’ve forgotten the name of the case for that matter.
Anyway, I went back to Wilmer, Cutler & Pickering and worked in
general litigation. One of my standing jokes in the firm – people who
knew me at the firm thought it was a standing joke. Before I left the firm
in 1969, I’d been working on a case for our client Bethlehem Steel
Corporation. Grace Line had bought four banana boats from Bethlehem,
and when they were delivered, they were too small. They didn’t carry
enough bananas. These ships were subsidized by the Maritime
Administration, so it became a government contract issue in which the
Maritime Administration was involved in some way. That case was one
of these monumental big paper cases. By the way, I had been assigned to
this case because I had a Navy background. “You know about ships. This
is a banana boat. You could figure this out.” Well, indeed I could figure
it out. I did know something about ships, and I spent a lot of time at the
Bethlehem Naval Shipyard poring over naval architects plans and talking
to naval architects and studying the construction of the ship. Then I went
off to Mississippi. When I came back three-plus years later, the case was
still there in almost exactly the posture in which I had left it. It was as if
somebody put it in the freezer and saved it for me when I returned.
MS. ALLEN: And it was yours.
MR. ROBERTSON: It was mine. I did general litigation at Wilmer, Cutler & Pickering. I was
made a partner effective the year after I got back, on January 1, 1973.
1973 was a very bad year for the economy and particularly for law firm
economies. 1973, you remember, was the year of the great gasoline crisis,
and we had lines half a mile long. It was the oil embargo, the long gas
lines, the even and odd license plates. That was a troubled year in a whole
lot of ways, but I’d just become a partner, and Wilmer, Cutler & Pickering
was struggling that year. I remember my first partnership meeting. I was
no longer being paid a salary. I was now going to be paid a share of the
firm’s profits, and I had a serious thought that first year that I might wind
up getting paid less than I had been as an associate. The firm’s finances in
that year were such that one joke in the firm was, “Well the way we’ll
solve this problem is, we’ll just make all the associates partners.” Of
course it was a short-lived problem, and Wilmer, Cutler & Pickering went
on to grow and prosper quite dramatically over the years. That was my
return to law practice here. I’d opted for the big bucks and there weren’t
any [laughter].
MS. ALLEN: Had you always enjoyed litigation? How did you become a litigator? Is it
kind of a natural thing, or at some point did you have to make a conscious
decision and choice?
MR. ROBERTSON: The way law practice was organized in the late 1960s and early 1970s
when I started, litigation was not the strong point of the big firms. The big
firms were more solicitors than they were barristers. The big firms were
interested in doing mergers and acquisitions and giving tax advice and
corporate advice and trusts and estates advice. In Washington, the
practice had a lot to do with advising corporate clients, sort of translating
the government to private corporations and corporations to government.
There was a lot of that. It was helping government teach the private sector
what government was about and helping private industry teach
government what private industry was all about, but not an awful lot of
litigation. Litigation was a little bit, I don’t want to say tacky, but it was a
little bit beneath the dignity of some of the big white shoe firms.
I’m not sure where my own interest in litigation came from.
Maybe it was boredom with office practice. Quite recently I’ve had
occasion to think about that. The last few weeks here in my chambers
have been very quiet. I’ve had no trials, not even any really serious
contested motions. I’d go into court for a couple hours in the morning and
do sentencing, and that’s about it. The rest of the day I’d spend in my
chambers working on motions, and I have had occasion to think good
grief, this must be what it’s like to be in the court of appeals. You go in
and sit down, they hand you a pile of briefs and they close the door and
they say “Have a good day,” and there you are with your briefs all day
long. I was getting cabin fever. I hope I have a healthy scholarly interest
in the law, but I am not fundamentally an office person. I need the action
of the courtroom, and maybe that’s what drove me to be interested in
litigation, or maybe it’s just a certain combativeness, or I’m not sure why.
But I do remember that when I was first at Wilmer, Cutler & Pickering, I
was looking for litigation work to do and there wasn’t an awful lot of it. I
also remember that the chance to do trial work was one of the reasons, not
a particularly altruistic reason, but one of the reasons why I left and went
to Mississippi. I knew I would be thrust right into the courtroom and be
able to try cases.
When I came back to the firm from Mississippi, I kept looking for
opportunities to get into the courtroom, but the firm didn’t have an
established trial practice. There weren’t then and there aren’t now too
many law firms in Washington, D.C. that one regards as primarily “trial
firms.” It was at about that time I think that a number of lawyers broke off
from Hogan & Hartson and formed the Williams & Connolly law firm.
Ed Williams and Dave Webster and couple of other people started it. It
was conceived as a barrister firm. They were going to be trial lawyers, to
the exclusion of everything else. They were trial lawyers, and that was a
very exciting idea. Hogan & Hartson had a good deal of trial work
because they represented D.C. Transit. And D.C. Transit had all kinds of
buses hitting people or people hitting buses, or that sort of thing, and there
was insurance defense and trial work there. Wilmer wasn’t all that big
then, but it was growing, and it had aspirations to be a big firm. The dayto-day work of the trial courts was not being done by the big firms, and
still isn’t being done by those big firms. The question for me was how do
I support myself as a litigator and then how can we get more litigation into
this firm so that the younger lawyers can get their hands dirty and go into
court and make mistakes and learn how to talk to judges and so forth.
The pro bono program at Wilmer, Cutler & Pickering and at other
law firms was in substantial measure designed to give young lawyers
opportunities to get into court, which is another reason why I worked on it
and tried to get the firm doing more pro bono work. But I digress
MS. ALLEN: Other than pro bono litigation, what kind of cases did you handle? Was it
mostly in the District of Columbia, or were you litigating around the
MR. ROBERTSON: Well, it was not mostly in the District of Columbia. Litigation then was
considered, and maybe to some extent these days still is considered, kind
of a service that firms did for their big clients. For example, one of the
firm’s big clients was the Monsanto Chemical Company. In some year,
that I could pin down if I had to but I frankly can’t remember what year it
was, an employee of Monsanto who was a toxicologist was indicted in
Chicago for things that happened before he got to Monsanto, things that
happened in another company he worked for, and Monsanto asked if we
would undertake his representation. I wound up representing this guy. I
wound up representing him in the investigation stage and at the time of the
indictment, and we defended him in trial, and we represented him on
appeal. Monsanto picked up the tab for the whole thing, which is quite
remarkable, because he was then an employee of Monsanto but what he
did happened before he got to Monsanto. I never figured out why
Monsanto was so generous as to pay for this defense, but they did and that
was a huge matter. There were four defendants. It was a seven-monthlong trial in Chicago.
I took with me a young associate by the name of Pat Douglass who
was involved with me in every step of this case. The case went on so long
that all three of Pat’s children were born while she was working on this
case. I have to tell you about this. She was pregnant with her first child
just before our client was indicted. Pat and I flew out to Chicago to make
one last effort to convince the U.S. Attorney not to indict. Pat was very
pregnant, very pregnant at that time, and I said “Pat, you can’t go,” and
she said “I’m going to go.” So she went with me and met with the United
States Attorney, who I think was Dan Webb. He turned us down, and as
we went to the airport – in those days, they were quite leery about letting a
very, very pregnant woman get on an airplane – Pat sort of covered herself
with a raincoat and walked behind me so nobody would notice her and
went and sat down in the plane. The plane had no sooner taken off than
she said, “Oh.” She had some twinges. I thought ‘God, this is terrible.’
Well, it was a false alarm, but I did take her directly from National Airport
to Columbia Hospital for Women that night, and her baby was born a few
days later. That was baby number one.
The case then went to trial and Pat was with me in court every day.
It was a seven-month trial, and you really get to know the jury in a sevenmonth trial. They get to know you, and after about the third month, Pat
was showing this pregnancy, and I noticed the jury was kind of giving her
dirty looks. One day I figured out that Pat was not in the habit of wearing
her wedding ring in court. I said, “Pat, would you please put your
wedding ring on,” so she did and the jury was all smiles after that. The
second baby was born within a couple of weeks after the guilty verdict.
Pat was very pregnant with her third child when she went down to argue
the appeal in the 7th Circuit. So all three of Pat’s children were involved
with that case.
I did a lot of work with the securities enforcement part of the law
firm. Wilmer, Cutler & Pickering had a very busy and successful SEC
practice. The firm had brought Manny Cohen in from the SEC, and then
Manny Cohen brought Art Matthews in from the SEC, and later Art
Matthews brought Ted Levine in from the SEC. Cohen had been the
Chairman of the SEC, Matthews had been the Director of Enforcement,
and Levine had been I think either his deputy or also Director of
Enforcement. So the firm got quite a toehold in securities enforcement
and in SEC fraud cases.
I did a great deal of work over the years in SEC civil fraud cases,
either investigations from the SEC or lawsuits between companies or by
investors against companies arising out of SEC fraud. Those cases were
in New York, in Denver, in Detroit. I’m still answering your question
whether I was litigating in the District of Columbia or all over the country.
The answer is, all over the country. Commercial litigation, SEC litigation.
I think I told you the last time that before I went to Mississippi, I
was doing a lot of auto safety work, but I was involved then in the
regulatory phase in helping the Automobile Manufacturers Association
work with or against the government in the formulation of auto safety
regulations. When I returned to the firm, we were in the litigation phase
of auto safety, and indeed I had quite a career working on auto safety
litigation between probably the early 1970s when I returned and the late
1970s when it all disappeared in a puff of smoke, and if I may I’ll kind of
spin that out for you.
MS. ALLEN: Please do.
MR. ROBERTSON: The National Highway Traffic Safety Administration (NHTSA) (which we
called “nittsa”; they hated to be called “nahtsa”) was the regulatory agency
that was to enforce auto safety regulations, and I think beginning with
Carter in 1976 is when they began to get really proactive. I’m trying to
think of the name of the director.
MS. ALLEN: Is that when Joan Claybrook was there?
MR. ROBERTSON: Yes. I think that may have been Claybrook’s time. She of course being a
former Nader person, and depending on which side you were on, I think
the industry probably thought of Joan Claybrook as the fox in the hen
house, and the activists thought they finally had somebody in there who
could really make something happen. NHTSA brought a series of cases.
Actually, the cases arose this way: NHTSA finds something in an
automobile they think is a defect, they tell the car company there is a
defect, and the car company disagrees. The agency studies it, investigates
it and finally issues an order to the car company to recall the cars and fix
the defect. The car company objects, and then the government sues for an
injunction to require the car company to recall the car. General Motors’
pitman arms, Ford windshield wipers, Buick carburetors, and one or two
other defects were all cases that I worked on. This was my stuff. I was a
young partner, and I was in charge of these cases and they were mine to
run with.
The most memorable of them was the General Motors pitman arms
case. The 1959 Cadillac had a piece in the steering linkage that connects
the steering wheel with the thing that makes the wheels actually turn
called the drag link, and this connection between the steering column and
drag link was called the pitman arm. In fact, I’ve got a bunch of them
around here, they’re paperweights. The pitman arm in the 1959 Cadillac
was a cast metal thingamajigger which had a metallurgical defect. It
would break if there was too much pressure put on it. Well, I won’t bore
the historians with the details of this case, but of course when you are in
the middle of litigation nothing is boring. This was a huge case, because it
was a test case for both the agency and General Motors on what was
meant by the statutory term “unreasonable risk of accident injury and
We had to litigate first what is a defect, and second what is an
unreasonable risk. These cars at the time we dealt with this case were
already 15 years old, and one of the arguments we were able to make was
that the defect that they are talking about as most metallurgical defects
will only happen in the first few months of the life of any product. It’s
called, believe it or not, infant mortality, things that are going to go wrong
will go wrong quick or not at all. That was argument number one.
Argument number two, and the one that I always thought was most fun,
was that you can’t put enough pressure on a pitman arm to break it unless
the steering wheel is turned all the way to the left or all the way to the
right putting a maximum amount of pressure on it. When can you do
that? Only when you are parking the car. And when you are parking the
car, it’s not moving very fast, if at all, and so there is no unreasonable risk
of accident injury or death, even though it can be quite startling to have
the steering wheel spin completely free in your hands.
MS. ALLEN: Which is what happens when it breaks?
MR. ROBERTSON: Well, Michael Burack, who was then an associate in the firm, worked the
case with me. Burack found and we developed and put on an absolutely
world-class expert witness. His name was Alan Tetelman. Tetelman had
three degrees from Yale, culminating in a Ph.D. in metallurgy. He was at
Stanford University teaching, and he was putting together a new
consulting firm on risk evaluation. Tetelman was one of the first people to
be deeply involved in the kind of actuarial, mathematical notion of what
risk really is. We tried this case ultimately before Judge Oliver Gasch
here in this Courthouse and put Tetelman on the stand. Gasch later told
me that Tetelman was the best expert witness he’d ever heard anywhere.
Alan Tetelman convinced Judge Gasch that whatever risks were posed by
this potential pitman arm failure  because none of them had happened for
years, since the first infant mortality phase  was not an unreasonable risk
of accident, injury or death. Well, I was at the top of the GM charts until
the Court of Appeals got hold of it, and it took the Court of Appeals about
ten minutes to reverse. The Court of Appeals said it was clearly an
unreasonable risk. The Court of Appeals never paid any attention to the
details of the risk analysis, but then this comes under the category of ‘say
no more’ about the Court of Appeals.
A footnote to the Alan Tetelman story. Some years later, Tetelman
was hired to do a safety analysis of the San Diego airport, which was then
perceived as being not a very safe place to land. He was going to San
Diego for his engagement when a PSA airplane, and you may remember
the two PSA airplanes collided over the San Diego airport and everybody
was killed.
MS. ALLEN: He was in one of them?
MR. ROBERTSON: He was in one of them. And Mike Burack and I, over the years, every
time we get together, we talk about Alan Tetelman and we can both see
him now standing on a cloud saying to us, “I told you guys there is no
such thing as a risk-free society, no such thing as zero risk.” That was the
proposition he stood for.
Anyway, I tried another case in this court before Judge John Lewis
Smith on the subject of windshield wipers that flew off Ford cars. He
thought that was pretty risky. I tried another case before Judge June Green
of this Court, and that was memorable. When I say I tried, actually that
case went off on summary judgment. This case had to do with carburetors
that burst into flames. We said, well, maybe they burst into flames
occasionally, but that’s not an unreasonable risk of accident injury or
death. Why not? Because the carburetor is up in the engine compartment,
separated from the passenger compartment by something called a firewall.
That’s what the original firewall was, it had nothing to do with computers.
The original firewall is the wall between the engine compartment and the
passenger compartment of an automobile.
MS. ALLEN: I didn’t know that. I always thought it was a construction term for houses.
MR. ROBERTSON: It may also be that.
MS. ALLEN: There is one in a car?
MR. ROBERTSON: There is one. And nobody in the whole history of this car had ever been
injured at all by one of these burning carburetors. Everybody had always
been able to stop their car, get out of the car, get away from the car.
Defect? Yes. Unreasonable risk of accident injury and death? No. I was
making that argument to Judge June Green, who everybody who knew her
will remember as a rather regal woman, and I have this visual picture in
my mind to this day. Here I am making this perfectly rational argument
about a perfectly rational subject and statistics, and she sat up straight in
her chair at the bench and leaned over with that white bow she had above
her robe, and she looked over and she said, “Mr. Robertson, do you expect
this Court to wait until someone is burnt to a crisp before we take any
action in this case?” And while I was stammering with a reply, she said,
“The Government’s motion will be granted.” That was it.
MS. ALLEN: Right from the bench.
MR. ROBERTSON: Summary judgment in the middle of the argument. Well, that was pretty
much the end of my career as a litigator of the auto safety cases. But I
spent a lot of my time on them between the time I returned from
Mississippi and the late 1970s. I’m just pulling these books to look at
them. The pitman arms case actually went to the Supreme Court in 1977.
I think the Supreme Court question had to do with a penalty and whether a
penalty was proper.
MS. ALLEN: Did you argue the case before the Supreme Court?
MR. ROBERTSON: Actually, I think cert. was denied. Oh, that was the issue. The question
presented was whether in applying the key definitional provision of the
National Traffic and Motor Vehicle Safety Act requiring that a
manufacturer recall automobiles containing defect which poses an
“unreasonable risk” of accident, injury and death the Court of Appeals
disregarded the intent of Congress by adopting a preset rule which
precludes introduction of evidence on the existence and degree of risk.
Cert denied. End of auto safety career. I think many people who were
litigators in Washington in the 1970s and 1980s, which, you will recall by
the way, was the high tide, or at least the most energetic part of the tide, of
what came to be known as “deregulation” – lawyers who had dined out for
years on regulation of some industry or another had to be reprogrammed
to do something else because the regulatory practice didn’t exist anymore
in many sectors.
MS. ALLEN: So it made a difference to your practice?
MR. ROBERTSON: You bet! We’ll probably have to come back and do this again because just
the discussion of it helps me to sort out the timeline. First, banana boats to
deal with, but after banana boats, auto safety for five, six, seven years, and
I think after that was when I got involved in the securities fraud issues.
The criminal case from Monsanto was one-off. I didn’t really do much
criminal work. The firm continued to do an awful lot of SEC work. I
never did much of the SEC regulatory work, but I was defending
companies in SEC fraud class actions. That work I did for maybe another
ten years during the 1980s. And then in the first half of the 1990s, before I
came on the bench, I was doing completely different kind of litigation. I
was doing what was then called “insurance coverage litigation.”
MS. ALLEN: Representing insurance companies?
MR. ROBERTSON: Yes. Representing insurance companies. The typical insurance coverage
case is by a manufacturer against an insurance company for refusing to
pay on a policy. In that period of time, the coverage cases we were
working on involved what was known as the “long-tailed tort problems.”
Asbestos, plastic piping, those were two particularly vexing cases, just to
describe some.
In the asbestos case, for example, shipyard workers would sue
asbestos manufacturers for injury to their workers. The problem was that
there were eight or ten asbestos manufacturers and nobody knew whose
asbestos had done the damage. So they sued them all and got judgments
against them all or they settled them all. Then one of the asbestos
manufacturers would then go and sue its insurance company, but it
wouldn’t just sue one insurance company because it had insurance policies
with different carriers, year after year after year. So you had, let’s say,
arguably, ten asbestos companies suing fifteen or twenty insurance
companies for policies that were in different years. It was a huge mess.
The insurance companies all said it didn’t happen during my policy, you
have to prove it,” and that “it comes within this exclusion or that exclusion
of the insurance policy. So there were huge numbers of lawyers involved
in these insurance coverage cases that went on for years and years. Huge
numbers of lawyers.
I can remember going to a meeting of insurance company lawyers
in Houston in one of these insurance coverage cases. I think this one had
to do with plastic piping, PVC pipes that were used for house plumbing
systems, and they leaked, causing incredible amounts of damages to
builders all over the country. Builders sued the insurance companies, and
there were, I don’t know, 15 or 20 insurance companies, 15 or 20 years’
worth of liability, and maybe double that number of lawyers in this law
firm in Houston. I walked in and looked around and realized that almost
everyone in that room was young enough to be my son or daughter. And I
thought, ‘I don’t feel like I’m too old to be a trial lawyer, but maybe I am,
maybe they think I am.’ Litigation is  and certainly the traveling and
courtroom part of litigation is still  a young person’s game.
The trial of a case is a real adrenalin producer. When I was in trial
on a case I used to joke that I couldn’t believe that clients were paying us
to do this. We ought to be paying them for the opportunity to do it
because it was such fun. But it was also unbelievably trying to the body
and sleep deprivation and everything else. You work too hard when you
try cases. While I didn’t decide I was too old, that I had to quit, there was
a point at which I said maybe I should be thinking about doing something
I think this interview also didn’t cover some discussion I was
having about another whole area of litigation that I did in this roughly 20-
year period after Mississippi and before the bench. That is the vaccine
litigation. Wilmer, Cutler & Pickering represented a major manufacturer
of the DPT vaccine and polio vaccine. Diphtheria, pertussis and typhus
vaccine – DPT. Whooping cough was pertussis. But the sad fact is that
vaccines confer immunity on everybody only if everybody accepts the
vaccine. Actually, it is literally called “herd immunity.” All of the public
health officials and all pediatricians will urge that every child receive the
DPT vaccine because if every child doesn’t receive the DPT vaccine, then
the possibility of whooping cough spreading and becoming a wild virus
again is a real possibility. So that’s why kids have to have the vaccine.
But if kids have to have the vaccine to go to school, it’s also true that
some tiny, tiny percentage of children will have very bad reactions to it.
And the reactions can become serious neurological deficits and
retardation. All kinds of awful things happen to a very few kids. Those
are the kids who bring the lawsuits, or their parents do. Those are very
wrenching cases, but if you are defending them, you can’t just say “Oh,
you have a retarded child, well it must be the vaccine, we’ll pay you.”
You need to insist on proof that the vaccine caused it or that there was
enough of a temporal relationship that it’s reasonable to conclude that the
vaccine caused it. These were high-stakes cases. There were experts on
both sides disputing whether the vaccine was at risk, why the vaccine was
at risk, whether it was a defect or not. It was extremely complicated and
also very emotional litigation. Eventually the federal government took
over the issue by enacting a vaccine compensation act which essentially
reduced most vaccine claims to a no-fault posture in which parents could
get relief from the federal government if they could prove the injury, and
that would be that. So, I got legislated out of the vaccine litigation
At about the same time I was involved with vaccine compensation
litigation, I took a side trip into a large but quirky piece of litigation
involving an oil spill in Alaska and the claims of fishermen to be
reimbursed for salmon they did not catch. Our client was the TransAlaska Pipeline Liability Fund, essentially a pot of money that was funded
by the deposit of five cents for every barrel of crude that crossed the state
in the Trans-Alaska Pipeline. The Fund existed for the very purpose of
providing compensation for damage caused by oil spills, but of course
compensation for oil spills, like compensation for vaccine injuries, is not
simply paid over on demand – pots of money are entitled to a defense –
and so several of us – Steve Hut, myself and Alan Braverman, among
others – became quite knowledgeable about the salmon fisheries of
Alaska, the sushi markets of Japan, the Russian-speaking fishermen of the
Kenai Peninsula, and several other fascinating subjects. One indelible
visual memory of that case is of three Washington lawyers in blue suits
looking for breakfast one March morning in Soldatna, tiptoeing in their
tassel moccasins around pools of spring melt in the parking lot and then
into a restaurant, where the bearded heads of about fifty big guys in
overalls and plaid shirts turned in unison to check us out, and immediately
swiveled back to their ham, eggs, biscuits, and gravy.
I think I’ll summarize by saying that in a time of deregulation and
changing administrations, there really was in Washington something like
litigation du jour. I did auto safety, and then I did securities class actions,
and then I did vaccine compensation and TAP and Alaska salmon, and
then I did insurance coverage defense. It was sort of one wave after
another. All quite different types of litigation.
MS. ALLEN: But a lot of litigation. It was 1984 and you were invited to be a member of
the American College of Trial Lawyers?
MR. ROBERTSON: I raised that because you asked me if many of my cases were jury trials,
and I said no, not many. I think it’s correct to say that I tried more jury
cases in a year-and-a-half in Mississippi than I tried in almost all the years
after that until I came on the bench. Some of the cases I was working on
weren’t really jury triable. Very few securities class actions have ever
been tried by juries. They are almost all settled. The automobile safety
cases were by statute not jury triable. They all went off on injunction
actions by the government. The insurance coverage cases, again, those
cases were too big to try, too complex to try. Nobody could figure out
how to try them. Some insurance coverage cases are tried, but they are
cases in which the jury essentially is asked to determine what the intent of
the parties was when they adopted some exclusion in an insurance contract
– how can the jury make that determination?
The white-collar criminal trial of the toxicologist I told you about
earlier was certainly a long jury trial, and I tried a couple of jury cases out
in Missouri for a company that was a distributor of propane gas. That was
Empire Gas, a regional propane company that had all kinds of commercial
disputes concerning the purchases and sales of companies. Except for
those, there really weren’t that many jury cases, which is why I was
surprised and seriously flattered when I was invited to join the American
College of Trial Lawyers. Up until some time in the 1980s, they wouldn’t
even think of admitting anybody to fellowship who didn’t have a lot of
jury trials under his belt. But they did and actually, it’s interesting – I was
installed in the American College of Trial Lawyers in the same year as
Thomas Penfield Jackson of this Court. Judge Jackson – not a judge then,
or maybe he had just become a judge  was what I call a real trial lawyer.
He was doing medical malpractice defense and insurance defense in the
courts of the District of Columbia and Maryland. He was the kind of guy
who was in court all the time trying cases.
MS. ALLEN: I didn’t know that.
MR. ROBERTSON: Yes. He was. And he was a wonderful trial lawyer, and I felt very
privileged to be recognized by an organization that honored that kind of
trial experience. But the College was then waking up to the fact that there
were a lot of good litigators around who didn’t have the chance to actually
try many cases but who at least were worth a look anyway.
MS. ALLEN: You cited some interesting recent statistics that the decrease in the number
of cases that go to trial has continued. The chances of actually litigating a
case to a jury trial now is a real rarity.
MR. ROBERTSON: Absolutely. There is a good deal of discussion going on in the judiciary
today about the decreasing number of jury trials, of trials of many kinds,
but jury trials is mostly what we do. Just in the time that I have been on
the bench, the percentage of civil cases going to trial has dropped from
something like 3 or 3 ½ percent to something like 1 or 1 ½ percent. The
number of criminal cases going to trial has dropped from something like
4 percent to something like 2 percent. Why? Well, that’s a matter of
some dispute. Some people say that trials are too expensive. Other people
are saying they take too long. Still others say there are too many
technicalities. But I think the judicial sense of it is that most people settle
cases because the risks are too large. There’s too much of a downside risk
to going to trial if you are a defendant. And if you are faced with a claim
for $10 million and you can settle for $500,000, at least you walk away
with some money. So, it’s risk analysis again that’s driving most
settlements. But the truth is that the work of the federal courts is many
fewer trials than it used to be. Many fewer.
MS. ALLEN: And more motions?
MR. ROBERTSON: More motions. Yes. Simply that. More motions. I think that’s a
complete answer.
MS. ALLEN: I want to ask you about one more thing that didn’t get on the last tape, and
that’s the interesting connection you had with Judge Gasch. Can you talk
about that?
MR. ROBERTSON: Oliver Gasch and I had something in common. We both had gone to
Princeton, and we were both night students at GW Law School. For some
reason, I met Judge Gasch while I was still in law school. I think it’s
because he came over there to speak just after he’d gotten on the bench,
and because a fellow I worked with on the law review, John Tansey, either
knew Judge Gasch or [Something happened to the tape here. The
recording stops, with a very faint, muffled sound].