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ORAL HISTORY OF JAMES J. SANDMAN, ESQ.
Fifth Interview – April 9, 2010
This interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is James J. Sandman. The
interviewer is Paras N. Shah. The interview is taking place at Mr. Sandman’s office at 1200 First
Street, N.E., Washington, D.C, on April 9, 2010, beginning at 8:30 in the morning. This is our
fifth interview session.
MR. SHAH: Jim, we finished up talking about your clerkship, but was it during the
year of your clerkship or the year before your clerkship that you decided
to go to Arnold & Porter?
MR. SANDMAN: It was actually at the beginning of my clerkship. I interviewed at Arnold
& Porter, I think, in August of 1976, shortly before my clerkship began,
and then made the decision to go with Arnold & Porter probably around
October of that year.
MR. SHAH: And how did that decision come about?
MR. SANDMAN: There were three reasons I chose Arnold & Porter. First, two of my best
friends in law school—Larry Stein and Mike Scott—both had been
summer associates there and were returning to the firm immediately after
graduating from Penn. One of the things I learned from my summer
experience in Boston was that there are limits to how much you can learn
about law firms during the usual interview process. I thought I had gone
about the process very carefully and had not been happy with the outcome.
I concluded that what I might learn from friends I knew and trusted who
had actually worked at a law firm might be as or more valuable than what
I could pick up myself during the interview process. I liked what they
described at the firm. The work sounded very interesting. The firm
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sounded very individualistic, almost quirky. It seemed to have a sense of
humor about itself, so their recommendation meant a lot to me.
Second, when I interviewed at the firm, my experience was unlike
any other firm I had interviewed at. I can remember every person I met in
that summer of 1976. I met Bud Lee, who was then the managing partner
at the firm and who had joined the firm in 1949. I met David Bonderman,
who went on to found TPG, Texas Pacific Group. I remember him
because of the hideous tie he was wearing (laughter). I met Jerome
Chapman, an antitrust partner in the firm, who gave me directions to my
next interview in another building by pointing me to the mirrored glass in
the building across the street and showing me the image of the building
that I would be going to next. I met Dan Lewis, who I think was an
associate at the time, and during the course of our interview, a long-haired
blonde guy came into the office to change a light bulb and seemed
oblivious to the fact that there seemed to be a meeting going on in the
office and had a very comfortable interchange with Dan while he was
changing the light bulb. I kind of liked that. I met Mark Schooner, whose
office was located on the third floor of a townhouse at 19th and N—it was
almost like an attic-type room that had the ceilings sloped, and you had to
go up a kind of narrow staircase to get there. They were all very different
from one another. I didn’t come away with the impression that I would be
best friends necessarily with any of them, but they had distinctive
personalities.
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The physical premises were also memorable for their lack of
pretension. It was kind of seedy, actually. The firm’s street address was
1229 19th Street, which is a red-brick townhouse located right next door
to where The Palm restaurant is, but most of the lawyers were actually in
the nondescript office building that The Palm occupies. And at one point,
I was sitting in the reception area in The Palm restaurant building, on a
ratty old couch, and there was a coffee table in front of me that had an
electric pencil sharpener sitting on it—no vase of fresh flowers, but an
electric pencil sharpener. As I sat there, people came by and poked their
pencils in, and most of them stopped to talk to the receptionist who had
some kind of tiff with her boyfriend the night before that everyone seemed
to know about. This was not like the other firms where I’d interviewed,
particularly not the New York firms, whose reception areas were usually
show places with lots of antiques and beautiful furniture intended to show
off the prominence and stability and, probably, wealth of the firms. So I
liked that. It just gave me a good impression, and it confirmed what I had
heard from Larry and Mike.
Lastly, the firm was unique among the firms that I interviewed in
that it was not departmentalized, with the sole exception of the tax
department. I didn’t really know what I wanted to do. I hadn’t identified
an area of specialty. The firm permitted people to be generalists and that
was attractive to me. I thought I could keep my options open and give
myself an opportunity to sample some different things before I had to
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make a decision about where to settle down. Other firms, of course, were
departmentalized—many of them had rotation programs—but I liked the
free-form organization of Arnold & Porter. It was unique among the firms
that I talked to. So, based on all of those things, I decided to go there.
MR. SHAH: And before you began to work there, after your clerkship, you took a
cross-country road trip. Do you want to talk about that?
MR. SANDMAN: Yes. It started in August of 1977, shortly after my clerkship ended. I had
already been to many states. I didn’t visit all of the forty-eight contiguous
states in that trip, but, by the end of it, I had been to all of them. I started
in Harrison, New York, where my parents were living at the time, and
went from there out to San Francisco. I was accompanied by Marty
Pioggia, who was a good friend of mine from high school. We decided it
would be nice to fortify our friendship with an adventure like that. We
didn’t have a set itinerary. We didn’t know exactly where we were going
to be every night. I don’t recall that we had any reservations or anything.
We decided to take it as it went. He was going to be starting graduate
school at the end of the month, so he had to be back before then, and
wanted to get to the west coast during the course of the trip, so we did
have that time constraint. And I planned to start working at the firm at the
beginning of October, but, other than that, the schedule was pretty open.
We went out on a northern route, stayed with friends from college in
Detroit, and had originally planned, I think, to stay with a law school
friend in Minneapolis. We had originally planned to go from Minnesota
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into South Dakota and go to the Badlands and the Black Hills and Mount
Rushmore, but I was looking at the map and realized that if I did that I
would be bypassing North Dakota, and I had never been to North Dakota.
If I didn’t hit North Dakota on that trip, I wasn’t sure when I would, so we
decided to head into North Dakota and, at that point, that kind of fixed me
on the goal of visiting each of the forty-eight contiguous states I had never
been to before during the course of the trip.
I think this trip was a real “see America” tour. We camped in a
campground outside of Bismarck in North Dakota. We tried to visit state
capitol buildings wherever we could. The state capitol buildings in
Bismarck and in Pierre, South Dakota were both very interesting in very
different ways. We went from South Dakota into Wyoming and camped
there, and there was frost on the ground. We woke up one August
morning there—and we were not prepared for temperatures in the 30s—
and really froze our you-know-what’s off. We visited a number of
national parks. We went to Yellowstone and Glacier. We went from
Montana through Idaho to Seattle and then down the Pacific coast on US-1
to San Francisco.
When we got to San Francisco, Marty returned East—he was
going to William and Mary—and I connected with my older sister Nancy
and we travelled from San Francisco to Phoenix together, going to
Yosemite, across Nevada, and into Utah. We went to Zion and Bryce
Canyon National Parks and then up to the Grand Canyon. In Phoenix, I
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stayed with law school friends, one of whom had been the co-executive
editor on the Law Review. And then from Phoenix on, I was by myself
and went through New Mexico and Texas, did the deep South, and then, I
guess, went all the way over to St. Augustine and came up through
Georgia, and went to Great Smoky Mountain National Park and eventually
came through western Maryland—which is very pretty—and back to
Harrison. It was about seven weeks. I put 14,000 miles on my car in that
time. I never camped for two nights in a row—I didn’t like it without a
shower—but stayed in Motel 6s at a time when Motel 6s, I think, cost
$8.99 a night. When they were first founded, they got their name from the
fact that it was $6.00 a night, but by the time I first came to stay in one,
the price was up to $8.99. It was hard to get into a Motel 6, but they had a
great product. They had standard, reliable, clean rooms at a remarkably
reasonable price, but you had to pay extra for things that you would
consider routine in most motels—for example, you had to put a quarter
into the television set to get it to operate (laughter)—but that was fine.
I found that the trip turned out to be a good scouting expedition for
later vacations, and the first big vacation that I took after I came to work at
Arnold & Porter was to go back to Glacier National Park for a week. So, I
still continue to go back to places that I first visited on that trip but didn’t
have enough time to explore in depth. I’d recommend that experience to
anybody. It was just a wonderful way to see the country and it is a great
thing to do with a friend, and particularly an old friend, because it is a real
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lifetime experience which you never forget. Marty, unfortunately, died a
few years ago. It turned out that, unbeknownst to many people close to
him, he had a very serious drug problem. I found out in trying to contact
him for my fortieth high school reunion last year that he had died. I hadn’t
heard from him in about eighteen months or two years. That was probably
the high point of our friendship, that trip.
MR. SHAH: What was the most surprising part of that trip to you?
MR. SANDMAN: I would say how much I liked the West. I loved the openness of it, the
vastness of it, and the natural beauty of the Rocky Mountains. It is a very
different topography and look from the eastern United States, where I
lived all my life, and I liked it very much. And the impressions that I
formed of the West on that trip had a lot to do with my attraction to
Denver several years later, when I went to work at Arnold & Porter’s
office there, and my interest in staying there for an extended period of
time.
MR. SHAH: So, it is now 1977 and you begin work with Arnold & Porter. What was
that experience like, starting to work there?
MR. SANDMAN: It was hard (laughter). It’s hard to be a new associate in a big law firm.
I’m talking about a law firm of about 120 lawyers. My associate class at
Arnold & Porter was the largest class by far the firm had ever taken in. It
was twenty-seven associates, so the firm increased in size by about
twenty-five percent with that one entering class. The size of the class was
unintended. They over-hired. They got many more acceptances on the
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offers they extended than they expected. We didn’t know that when we all
came in. We found out over time that the firm had been concerned about
its ability to absorb and provide work for that number of people. As it
turned out though, the firm landed a big antitrust case from Xerox in the
fall of 1977 and the timing was fortuitous. So that put a lot of people in
the incoming class to work right away.
In retrospect, I think that one of the disadvantages of a nondepartmentalized
firm was that there weren’t institutional structures in
place to integrate people into practice groups. There weren’t those kind of
natural incentives for partners to form bonds with associates as they might
in the practice group where they would feel invested in them because they
knew that these people were going to be continuing in the same practice
and be supporting them, and where they had a personal stake in retaining
them and developing them. My first assignment was on an antitrust case.
Much of the firm’s work at the time was antitrust. Thurman Arnold, the
founding partner of the firm had been head of the antitrust division under
Franklin Roosevelt, so antitrust had been a signature specialty of the firm
since its emergence. And antitrust enforcement by the Justice Department
and by the Federal Trade Commission in the 1970s was significant. That
always gives rise to related civil suits, so the antitrust practice in the firm
was booming. A good part of the litigation that the firm did was antitrust.
I worked on a criminal antitrust case against Braniff Airways,
which was based in Texas. The case was brought against Braniff and
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Texas International and the accusation was that the two of them had
conspired to keep Southwest Airlines from getting into business. It’s
funny, in retrospect, that today, in 2010, you’ve probably never heard of
Braniff or Texas International, but you sure have heard of Southwest.
I learned something about antitrust work and about some of the
surprises that you can find in practice about what an area of law is like to
work in, as compared to what you might think it would be or what the
study of that area might be. I hadn’t had any particular interest in
antitrust. I took antitrust in law school and I didn’t really understand it.
To the extent that I thought I knew anything about the practice of antitrust
law, it was all bad. My image of antitrust was the government’s case
against IBM, which went on for years and years, in which IBM was
defended by Cravath, and the impression I had was that antitrust cases
went on for decades. They involved rooms full of documents and staffs of
hundreds with lots of boring burnout work for associates. Cravath at the
time was famous for offering combat pay to associates who were willing
to go up to Armonk, New York and review IBM documents. What I
found, though, in actually doing antitrust work was that if your clients
have interesting businesses, their antitrust work is interesting because
antitrust deals with competition in a big picture sense, the whole nature of
the business. You are not focused on a particular isolated issue usually, in
litigation anyway. You are not focused on a particular isolated transaction
or incident the way you are in many other kinds of commercial litigation.
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And I find the airline industry very interesting. I also found that antitrust
law is very challenging. You have to think hard about economic analysis
and how markets work, and although that is intimidating when you are
new to it, the challenge of it is intellectually very satisfying.
So, I thought it was a very interesting case. The thrust of it was
this. Southwest’s original business model was to fly exclusively within
the state of Texas and, at its founding, they planned to fly only among
three cities: Dallas, Houston, and San Antonio. They thought that by
flying exclusively within the state, they could avoid regulation by the
Federal Civil Aeronautics Board, which at the time regulated airline fares
and routes. An airline couldn’t decide to fly interstate without getting
approval from the Civil Aeronautics Board, and fare regulation by the
CAB kept fares artificially high. Southwest thought that if they were
unregulated by the CAB, they could undercut the competitors in the
markets that they wanted to serve and quickly establish themselves. If
they flew only intrastate, they would also have another very desirable
advantage over the competition—that is, they would be able to fly to the
downtown airports in Houston and Dallas. Love Field was the downtown
airport in Dallas and Hobby Field was the downtown airport in Houston.
Airlines flying interstate were compelled to fly out of DFW airport in
Dallas and Intercontinental in Houston. So, the convenience that
Southwest could offer travelers would give them a substantial advantage
over their competitors. Braniff and Texas International had petitioned the
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CAB to regulate Southwest notwithstanding the fact that it was going to be
flying only within the state of Texas. Their argument was that Southwest
would inevitably be carrying passengers who were on the intrastate leg of
an interstate journey and, under established CAB law, that was considered
interstate travel. And the government contended that there was no merit to
that argument and that it was an attempt to use the regulatory process
solely for anti-competitive reasons.
I joined a team of three Arnold & Porter lawyers—Mel Garbone,
Steve Lockman, and Peter Grossi—who had been working on the case for
three years before I joined the team, and it is hard to be the new person on
a case that has been going on that long. They had developed a lingo
among themselves that was incomprehensible to a newcomer. They had a
lot of history with the case that was difficult for me to break into, but
eventually I did and it was an interesting experience.
I did form close friendships with my fellow incoming associates,
and I think that is true in many big firms, that you tend to find your first
home within the firm among the classmates. And particularly because my
group was so big, there were lots of new people to meet, and I still keep in
touch with many of the people who started at Arnold & Porter in the fall in
1977.
MR. SHAH: And who were some of those people?
MR. SANDMAN: Tom Milch started at the firm that year. Tom is now chairman of Arnold
& Porter. George Cavucci joined the firm that fall. Linda Frahn was in
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the office next to me and we worked together on a pro bono case. She’s
now living up in Baltimore for many years.
MR. SHAH: Could you talk about these first couple of years at Arnold & Porter and the
nature of the work that you did, and the people in the firm that may have
mentored you as you worked on these particular cases?
MR. SANDMAN: Yes. As I mentioned as a significant part of the firm’s practice was in
antitrust work. When the Braniff criminal antitrust case ended, I
continued to do work for Braniff before the Civil Aeronautics Board in
cases involving airline mergers. The CAB gradually went out of business
starting in 1978, when the Airline Deregulation Act was passed, but, for a
period of time, after the bill became law, it still needed to approve airline
mergers, and there was a lot of merger activity going on at the time. And
our client’s view was that with deregulation, the airline should be growing
internally and shouldn’t be trying to do it by merger or acquisition, and
that the merger was going to be in anti-competitive, particularly in several
of the hubs that had sprung up around the United States. So, I worked on
behalf of Braniff opposing the merger between Continental Airlines and
Western Airlines, which was based in Salt Lake City. I worked on a case
involving Pan-American Airlines, which involved two potential merger
targets, National Airlines and Eastern Airlines, and there was expert
testimony before the CAB. The first expert witness I ever cross-examined
was James Miller, who was an academic economist at the time, but
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subsequently went on to become Chairman of the Federal Trade
Commission in the Reagan administration.
The CAB was located in a building called the Universal Building
on Connecticut Avenue, immediately below the Washington Hilton, and
they had a hearing room that was just a large corner room in the
building—very sparse, but it was a full-fledged administrative hearing
with examination and cross-examination of witnesses and opening and
closing statements presided over by experienced administrative law
judges. It was good litigation experience, good trial experience.
My most important mentor at the time was Peter Grossi, who at the
time I started at the firm was still an associate. He was three years ahead
of me, but Peter is a wonderful lawyer and he was experienced beyond his
years. He is brilliant. He is completely unintimidated by complicated and
unfamiliar facts. He just throws himself into the facts of a case until he
knows them better than the client knows them. He will be better prepared
for an expert deposition than the expert is. And I learned a lot from him
about the importance of mastering the facts—not leaving them to the
client, the witnesses, the expert, and not thinking that your role as a lawyer
is to deal with the law as opposed to the facts. You have to deal with both
and your mastery of both needs to be complete. He was also very
generous in giving me credit for his ideas. Peter talks a lot, and I
concluded over time that if you just listen to him, at the conclusion of a
conversation, he really wouldn’t have any recollection of which of you
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had said what. And, maybe he knew he was doing this, but I would find
that when he would recount the conversation that he and I had had to the
partners on the case, he would attribute his ideas to me and say, “Sandman
and I were just talking about this and, you know, he had this idea that we
should do such and such,” and it wasn’t my idea at all, it was his idea. He
did it often enough and he talked so much that I did wonder if he thought I
had been the one generating these ideas that were really his. But he was a
lot of fun to work with.
Through him, I got involved in my first pro bono case. The firm
represented the Reporters Committee for Freedom of the Press in litigation
involving Richard Nixon’s presidential papers and his tape-recordings. It
was fascinating. I had been a history major in college. This was a
wonderful opportunity to combine my interest in history with law, and the
issues couldn’t have been more cutting-edge and challenging to deal with.
When Nixon left the White House, there was a lot of debate about what
should happen to his papers and tapes. Previous presidents had regarding
their papers as personal property and had taken them with them and given
them to their presidential libraries. When Nixon left office, because of the
pendency of criminal proceedings involving various aspects of Watergate
and because of the controversy surrounding his resignation, Congress
passed a statute that made his papers, his records, including his tapes,
government property. He filed a lawsuit in 1974 challenging the
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constitutionality of that statute, and the firm had intervened on behalf of
the Reporters Committee in that litigation and participated as a party.
The case went to the Supreme Court of the United States and, in an
unusual move, the court granted the Reporters Committee argument time
as the intervener, and an Arnold & Porter partner argued the Reporters
Committee’s position. The Supreme Court upheld the constitutionality of
the statute. At that point it fell to the General Services Administration to
promulgate regulations governing access to Nixon’s papers and tapes, and
Nixon’s lawyers had a wonderful small litigation firm called Miller,
Cassidy, Larroca & Lewin challenge the regulations. Miller Cassidy, in
fact, challenged access to Nixon’s papers and tapes until he died, and did
so with great success. It took a very long time for historians, researchers,
and the public to have access to Nixon’s papers and tapes, and his
materials are still being processed today.
I worked on the portion of the litigation that involved the challenge
to the regulations that GSA promulgated. And one of Nixon’s challenges
to the regulations was that they should not permit general public access to
the tape-recordings—that access to the tapes themselves should be
restricted, controlled. They were concerned about public dissemination
and commercialization. I can’t remember all the arguments they raised.
But Grossi had this idea that, in our brief, we should point out that in
criminal cases, when there is a wiretap or any kind of tape-recording
made, there is a standard instruction that is given to juries: that in the
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event of a discrepancy between their hearing of a tape played in the
courtroom and the transcript that they might be reading along with at the
time, they should be governed by what they hear on the tape. That’s the
better evidence of what is being said. And he thought that we should use
that argument to emphasize that direct access to the tapes is far preferable
than access to transcripts, which was one of the alternatives that Nixon’s
lawyers were arguing for. He thought it would be particularly effective to
make that argument using instructions that had been given in the
Watergate conspiracy trial with the Watergate tapes played. So, he asked
me to go down to the federal courthouse in Washington and to see if I
could find the portions of the transcript where this issue had come up and
how it had played out in the trial.
This was probably about 1978. The materials from the Watergate
conspiracy trial involving Nixon’s Chief of Staff Bob Halderman, his
domestic policy advisor John Ehrlichman—these were very prominent
names of the era—were still in the clerk’s office, in a storage room located
on the first floor of the courthouse. And when I showed up at the clerk’s
office and told them that I wanted to review materials from the case, they
showed me into this storage room, and I was left alone with the evidence
from the Watergate conspiracy trial, including the Attorney General’s desk
diary, the demonstrative exhibits that had been used during the course of
the trial—all the physical evidence that had been introduced. That would
never happen today, but I think because I was a lawyer, maybe I looked
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honest, they just left me alone there. And I spent the better part of the day
there, even though I found what I was looking for within forty-five
minutes, because it was a treasure trove for a history student. I just
couldn’t believe what they had there. It was fascinating. We handled that
case in the district court and up through the D.C. Circuit, and eventually
there was a certiorari petition in the Supreme Court—the litigation went
on for forty years or so, I would guess. But that was my first introduction
to pro bono work.
I also began to do antitrust work for a longtime client of the firm
called Harte-Hanks Communication, which was a company based in Texas
that owned some radio and television stations and small newspapers in a
number of cities around the United States. They tended to own
newspapers in one-newspaper towns—monopoly towns where the
business was profitable—and the firm did antitrust counseling for them
and also handled occasional antitrust litigation for them. I worked on an
antitrust case brought by the Attorney General of Arkansas against them in
state court in Searcy, Arkansas. I also got involved in counseling them,
and that was my first non-litigation experience with antitrust. I learned a
lot from that experience that I found helpful in litigating antitrust cases—
just knowing how to plan for transactions, thinking through rule of reason
analysis under the Sherman Act, and getting to know the client’s business
and people in a way that you don’t, or don’t to the same extent, when you
are handling their litigation.
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So I had some very interesting experiences in antitrust. My work
from Harte-Hanks illustrated the phenomenon that I mentioned earlier: if
your clients have interesting businesses, the antitrust work is interesting.
The newspaper business is interesting to me. I learned about newspaper
advertising and how it is priced, and how circulation revenue compares to
advertising revenue, and how free distribution weeklies affect monopoly
newspapers in small towns. Very interesting.
MR. SANDMAN: I just wanted to add something about starting at Arnold & Porter. I had
not been a summer associate at the firm and I felt a difference compared to
the associates who had been and who were starting at the same time that I
was in that they already knew people in the firm. They knew their fellow
summer associates who were returning. I learned a lot from the
experience about the importance of having good programs to integrate
new lawyers into law firms, the importance of well thought-through
orientation programs and mentoring programs—and particularly for those
who haven’t been summer associates and don’t have existing connections
to fall back on when they begin as an associate.
MR. SHAH: I just want to go back to the Nixon tapes case that you were talking about.
Can you discuss who else was on that case with you, and take us through
the stages of the litigation, including at the trial court level in D.C. District
Court?
MR. SANDMAN: The lead partner on the case was Bob Herzstein. Mark Schooner was on
the case. I interviewed Mark when I was first talked to Arnold & Porter,
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and I had done some airline merger work with him before the CAB. Peter
Grossi. The case was all handled on the papers. It was done by summary
judgment motions, so there weren’t any evidentiary hearings. There was
no trial in the district court. And we won on summary judgment opposing
Nixon’s challenge to the constitutionality of the regulations and prevailed
in the D.C. Circuit as well. Len Simon also worked on the case, but I
didn’t work much with Len. Len had worked on the original case
involving the statute, and in fact had attended a deposition with Nixon
himself, in the case involving the statute, before I joined the firm. It was a
good team.
MR. SHAH: Was there an oral argument in this case in the Circuit?
MR. SANDMAN: There was, but I did not attend it. I don’t believe that the Reporters
Committee was given argument time and I can’t remember why I didn’t
attend. I would have if I could have.
MR. SHAH: And is there anything that you recall about the judges at the district court
or circuit court level?
MR. SANDMAN: I don’t know really because, with the exception of the argument in the
D.C. Circuit, everything was done on papers. I do recall this: this was
classic D.C. federal court litigation involving issues of a type that rarely
come up in other courts around the United States, and the quality of the
advocacy and the quality of the opinions that came out of the case was
terrific. It was lawyering at a very high level and judging at a very high
level. The federal district court here and the D.C. Circuit have always
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been benches of very high quality and very thoughtful judges who take a
lot of care in their opinion-writing and produce very good work.
MR. SHAH: Would you classify this case as your most meaningful litigation
experience during your initial D.C. years, or is there a different case?
MR. SANDMAN: It is hard to say. As a young lawyer, you get different things out of
different litigation. Often you can get some of your most important
experience on less fascinating cases because of the role you play, because
of what you get to do. This was a case where the issues were fascinating.
This was a great example of the type of case you could talk to a nonlawyer
friend about and get an interested response. They would
understand what you were talking about and think it was, you know,
among the most interesting things a lawyer could do.
My best early litigation experience, though, was actually my little
antitrust case in Arkansas in state court because on that case another
associate, John Watkins, and I were really given the case to run on our
own. I spent the fall of 1979 pretty much in rural Arkansas interviewing
advertisers in our client’s newspaper in Searcy, Arkansas. We ended up
getting the case dismissed. The case had been brought under the Arkansas
version of the federal Robinson-Patman Act, alleging that our client was
selling newspaper advertising below cost for anti-competitive reasons.
And we had the case dismissed on the grounds that the Robinson-Patman
Act only applies to the sale of goods, commodities, and not services and
that newspaper advertising is a service, not a good, despite the fact that
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there is paper and ink involved. It is a service. There was federal law to
that effect that we were able to get the state court in Arkansas to adopt. It
was an issue of first impression under the Arkansas statute. So I got
hands-on experience in that case. For a young lawyer, getting hands-on
experience on a smaller case can often be more beneficial than being the
number four lawyer on an interesting constitutional case where you are
doing the research and writing, but it is not your case, and you are not
formulating the strategy, and you are not the one standing up in court
making the argument.
I also just found the Arkansas case a lot of fun. John Watkins and
I still keep in touch. He, about ten years later, became a law professor at
the University of Arkansas Law School—just a coincidence—and taught
there for many years. He retired a few years ago. John had been a
journalist before he went to law school, so he found the newspaper case
especially interesting. Needless to say, in a motel in Searcy that costs
eighteen dollars a night, you get what you pay for. White County,
Arkansas, where Searcy is located, was a dry county. There was nothing
to do at night there. We would go bowling. I saw my first Wal-Mart in
Arkansas. I had a great experience on that case. So, comparing that to the
Nixon case, they are apples and oranges. I found both very memorable
experiences for very different reasons.
MR. SHAH: Can you talk about life in D.C. during those years—what would you do
and where did you live?
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MR. SANDMAN: Yes, I lived in a townhouse on Calvert Street off Wisconsin Avenue. The
house was owned by a friend of mine from law school who was a year
behind me. He charged rent that was well below market. It was just the
two of us in the house. It was a three-bedroom, three-story house and very
convenient, and I think I paid $165 a month. I know it wasn’t $200. Most
of my closest friends at that time were people I had gone to law school
with or people I met at Arnold & Porter. I really didn’t know anybody in
Washington when I moved here, except for friends from law school and
people I met at the firm. I think that is fairly common for big firm
associates who move to Washington. The first network they form is with
their fellow associates in the firm where they are located, and they may
have college and law school friends, and then they branch out from there.
So, I had a busy social life and got to know Washington pretty well and
liked it. Jimmy Carter was President. It was kind of a troubled time,
particularly by the end of his administration. Inflation was just absolutely
out of control and the Iran hostage crisis was really just a bad experience
for the national psyche.
I signed a contract on a condo at McLean Gardens in, I think, late
1979 or early 1980. McLean Gardens had been a rental apartment
complex prior to that, but went condo in the late 1970s, early 1980s. The
condos were not going to be available for occupancy after renovation until
early 1981. When I signed the contract on my condo, the seller was
offering a special interest rate of about fifteen-and-a-half percent, which
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was considered a bargain at the time. Between the time I signed the
contract and the time I closed in April of 1981, the interest rate came
down. I think it might have come down to thirteen-something percent, but
the effect of interest rates like that on your monthly payment is just
unbelievable. Interest rates were so high that when you went to the
standard tables to see what your monthly payment would be at various
interest rates, the interest rates that were being charged were not even on
the table—they had been prepared a few years before when no one could
imagine that interest rates could get as high as they were. The good news
was that money market rates were astronomically high too. You could get
fifteen or eighteen percent on a money market account, but the economy
was just scarily out of control. And it really wasn’t surprising that Reagan
was elected in the fall of 1980.
MR. SHAH: Did you get a chance to be active politically during this time?
MR. SANDMAN: I wasn’t really. Our firm represented John Anderson. He was a thirdparty
candidate for President in 1980. And I voted for Carter, but had
given some thought to voting for Anderson. By the time the election came
around, it was clear that he didn’t stand a chance, so it would have been a
waste, particularly in the District of Columbia, which always goes to the
Democratic candidate anyway. I wasn’t politically active in that election
or other political matters at the time.
MR. SHAH: And then, in 1981, an opportunity comes about for you to go to Denver.
Can you talk about that and how that came about?
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MR. SANDMAN: Yes. Arnold & Porter opened its first office outside of Washington in
May of 1980, in Denver. And the firm chose Denver because there was an
energy boom going on at the time and Denver was becoming the second
energy capital of the United States, right behind Houston. Most of the
major oil companies had opened offices in Denver. The firm was looking
for a way to expand its energy and environmental practices and thought
that Denver would be a good place to do it. Many other national firms had
the same notion at the same time—Kirkland & Ellis, Dechert, Gibson
Dunn, and Morrison & Forrester all opened offices in Denver around 1979
or 1980. I think part of their thinking was that Denver was not a national
legal market. If you asked most lawyers on the east or west coast to name
three Denver law firms, they’d be lucky if they could name one. And the
thought of the national firms was that they would be able to compete with
the local firms for new business coming into Denver more easily than they
might be able to compete in other cities that had very well-established,
nationally known large firms.
Arnold & Porter’s first client in Denver was Exxon. The matter
involved an oil shale facility that Exxon was developing in western
Colorado. In the summer of 1980, shortly after the office opened, I was
asked if I would be interested in moving out there. And, although I loved
the west from my trip out there and was interested in working on some
matters for the Denver office, I didn’t have any interest in picking up my
personal life and moving halfway across the country. I really didn’t know
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anybody in Denver except for the five lawyers from Washington that were
going out to open it. Actually, four lawyers from Washington; a Colorado
lawyer was hired to open the office.
But I did work on a case in the summer of 1980 and got a sense of
the office out there and liked visiting Denver. The office was overworked
and understaffed and the firm was persistent in trying to recruit people out
there—either to move out there to become a part of the office or to do
temporary stints out there—and, in the early part of 1981, I was asked if I
would be willing to go out there for three months to help out. And that I
was interested in for two reasons. One, I would get to be in Denver and
enjoy Colorado without having to make a commitment and leave my
friends behind. And second, by that point I wasn’t happy with the work
that I was doing in Washington, and it would be a convenient way to sort
of exit from that and begin to do something else. By that point I was
really beginning to experience some of the disadvantages of working in a
non-departmentalized firm. It was a randomness to the assignments I was
getting that was impeding my professional development, and I felt that the
work that I was doing was less interesting, less challenging than the work I
had been doing two years before. For a lawyer four or five years out of
law school, that is depressing. You want to think that you are constantly
ascending the learning curve and that every year you are adding to your
skill set and learning to do more than you had done previously. I just
didn’t feel like there was any progression to my professional development,
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and I couldn’t see how things were going to change. It just seemed that
too much was beyond my control, since I wasn’t in a department and
didn’t have a place and didn’t have a sort of clear career track in an area of
practice. For all I knew, I was just going to get more random assignments,
some of this, some of that, and I was concerned about that. I was also at a
point in my career where I thought, by this point, I should be able to do
something and sell myself to clients. And I had felt a couple of years
before that I was on a trajectory to do that but wasn’t any longer. I had
work to do in Washington, but I didn’t like it, and I didn’t see a way out of
it, so accepting the firm’s invitation to spend three months in Denver was
a professionally acceptable and graceful way to get out of the work that I
was doing in Washington and sort of start fresh. So, I agreed to go out to
Denver starting in May of 1981. I thought I was going out for three
months only. I went out to Denver two weeks after I moved into my
condo at McLean Gardens. I bought furniture for the apartment. It was
the first place I had ever owned and I fully intended to come back at the
end of three months.
I lived in Denver in the carriage house of a partner who had moved
from Washington out to Denver when the office opened. A carriage house
is something of a misnomer. It gives a misimpression. It was actually a
converted garage located about ten feet from the partner’s house. The
firm owned the house that the partner lived in, so he was very generous in
sharing its facilities. It had a third floor with a couple of bedrooms, and
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when other people would come out from Washington to do temporary
stints of one kind or another, he put them up there.
I loved Denver dearly. When I arrived, one of the office’s
significant clients, the Great Western Sugar Company, instituted a series
of lawsuits that they wanted the office to handle, and I was given those
cases to run and manage and handle on my own, with partner supervision,
but playing a much more active role than I had on previous cases, with the
exception of the Arkansas antitrust case. These cases, too, illustrate the
phenomenon I was talking about earlier: that sometimes for a young
lawyer, it is the nature of the role you play that makes a case interesting
and important to you, not the subject matter. These cases involved Article
2 of the Uniform Commercial Code. I had not opened the Uniform
Commercial Code during the time I had practiced in Washington. That
just wasn’t the nature of Arnold & Porter’s Washington practice. They
were breach of contract cases involving sugar sales. This is not sexy stuff,
it is not the Nixon papers litigation, but they were my cases. They were
cases in state court in Colorado. I argued the motions, I did the discovery,
and I was the client point-person. I learned a lot from those cases. I got to
stand up in court and be the lawyer, and I loved that experience.
I also liked working in a small office. I was lawyer number six. It
was wildly different from the Washington office. You never passed
anyone in the hall whose name you didn’t know, whose family you didn’t
know, or where you didn’t know what they were working on that day.
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There was a camaraderie about the office because it was a new enterprise
and everybody had made the decision relatively recently to leave
something behind and pick up and move there because they thought it
would be a good experience for them.
I did find that it was difficult to meet people there because I didn’t
have a network of the size that I fell into when I joined the Washington
office of Arnold & Porter with an associate class of twenty-seven joining
at the same time that I did. I was one of six lawyers. Four of the other
five were married. A couple of them had kids. They were just at different
points in their lives, and I didn’t have ready entrée to any other social
network in Denver, so it took me much longer to meet people there than it
had when I first moved to Washington. But I did know enough people in
the office and enough people close to me in age with similar interests that
I was able to get out and have a great time, and I just loved Colorado.
People live in Denver because of Colorado. You can go up to the
mountains from Denver on a weekend, even just for part of a day, and you
come into work on Monday feeling like you had a vacation. And there’s
nothing like looking out your window at the Rocky Mountains to sort of
lift your spirits, and the omnipresence of the physical beauty to me has
wonderful psychological benefits. The weather is also wonderful out
there, which people in the east often don’t understand. They think of
Denver as having very harsh winters. They actually have mild winters.
Denver is semi-arid. The winter weather there isn’t too much different
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from Washington. It’s not uncommon to have sixty-degree days in the
winter. Most importantly, Denver gets more than three-hundred days of
sunshine a year. It gets very unusual to have two cloudy days in a row in
Denver, and that, too, makes it a very pleasant place to live. After I’d
been in Denver for about six weeks, I realized that I wasn’t going to be
ready to come back to Washington at the end of three months.
The partner in charge of the office, Norton Tennille, was very good
to me and, although we didn’t work much together, I would definitely
consider him a mentor. He didn’t pressure me to extend my stay. He very
definitely let me know, though, that I would be more than welcome to
stay. That sort of no-pressure encouragement was actually a very smart
strategy on his part. He also immediately began to give me roles to play in
the office that helped to integrate me. He put me in charge of hiring as an
associate. Now, a six-lawyer office doesn’t do a lot of hiring, but we were
looking to hire associates, and we were looking to establish our first
summer associate program. I had been active in interviewing applicants in
Washington, but I’d never been on the hiring committee, and I was
flattered that he gave me something to do that obviously would have an
impact on the future of the office. And I liked having an administrative
role—that was probably my first management experience in the firm,
getting involved in a six-lawyer office’s hiring program, setting it up.
By about August, I realized that I definitely wanted to stay longer.
I wouldn’t have been able to tell you exactly how long, but I knew I’d
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reached the point where, if I was going to stay much longer, I needed to
take the Colorado bar exam. I had been admitted pro hac in the litigations
I had been handling in the local courts, but if I stayed much longer it
would be hard to explain that. The next bar exam I could sit for was the
following February, so I registered to take the Colorado bar and did so the
following February. Once I’d done that and once I had to take another bar
exam—that’s a big commitment—I wasn’t going to leave any time soon
after that. When I passed the Colorado bar exam, I bought myself a pair
of cowboy boots to celebrate, which I still own and still wear sometimes,
and I rented an apartment, moved out of the carriage house, and ended up
staying for ten years.
I met my wife two months after I moved to Denver. She came to
work in the Denver office of Arnold & Porter as a legal assistant, and she
started work on July 5, 1981. It was the first workday after the Fourth of
July weekend. I remember that. She had known Norton Tennille
previously. After college, she had worked at the Natural Resources
Defense Council in New York and had done some pro bono work with
Norton, who was an environmental lawyer. She had then gone on to the
Yale School of Forestry & Environmental Studies for a master’s degree,
and, when she was getting out of there, contacted Norton about a position
in Washington. He told her he didn’t have a job for her in Washington,
but if she were willing to come to Denver, he had a job for her there, so
she came to work in Denver and she worked there for a year.
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We really didn’t date. We did not date during the year that she
worked in the office. We were friends and did things together, but she had
a boyfriend for a good part of that year. We did do things together and we
worked together on a project that involved a client called the Council of
Energy Resource Tribes, which was a group of Native American tribes in
the western United States that had energy resources on their reservations.
They formed this council to provide joint technical expertise—engineering
expertise, financial expertise—for them to share and to give them access
to people and resources that they could not afford individually, but with
their combined funds were able to establish and share among themselves.
And we worked on a master project to integrate their regulation of energy
development on their resources by third parties with federal and state
requirements.
MR. SHAH: Just going back to your wife-to-be, how did that relationship start?
MR. SANDMAN: I think it’s fair to say we liked each other (laughter). We really didn’t
begin dating until the following summer after she left. I’m sorry, at the
end of one year. She went off to law school at New York University and
started there in the fall of 1982. She spent the summer of 1983 in Denver.
She worked as a summer associate at one of the big Denver law firms, and
it was that summer that we really began dating. And then she went back
to law school for her second year, and after her second year came back to
Denver in the summer of 1984, and that’s really kind of when things took
off.
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She worked in the Denver office of Gibson, Dunn & Crutcher.
That summer, the firm had a gathering of all their summer associates from
all their offices in Los Angeles and invited the summer associates to bring
a guest along. By that point, I was a partner in Arnold & Porter—I had
become a partner on January 1st of 1984—so I went to a summer associate
function at another law firm as the date of a summer associate, but being a
partner in a competitor firm. Very interesting experience. Her summer
associate class at Gibson Dunn was a wild group of people. They were
very, very funny. One of them we still keep in touch with. And on that
trip to Los Angeles, they hung around together and we did things together
as a group. That was the summer that the Olympics were in Los Angeles,
and there was just a lot going on in the city. We had a great weekend out
there, just a great summer that year. When Beth went back to NYU in the
fall of 1984, she made plans to spend her last semester in law school at the
University of Colorado Law School, which had environmental courses,
other courses that she couldn’t get at NYU that she knew she wanted to
take. She knew she wanted to be an environmental lawyer and wanted to
take things like water law that weren’t offered at NYU.
So, our relationship really developed over the summers the two
years after she left Denver. While she was in law school, we definitely
communicated, but not a ton. She didn’t have time to write letters. There
was no e-mail at the time, and she’s never been a big phone-talker. She
did get to Denver to visit periodically. I got to New York. I remember
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there was one New Year’s Eve where I had a party in New York. Arnold
& Porter had maintained an apartment in New York on Central Park South
for many years that was available for lawyers visiting New York to use
when they were there on business. New York went through a financial
crisis in the 1970s that impeded economic development—in particular,
construction of hotel rooms—and it would often be difficult to get a room
in New York, so the firm had this two-bedroom apartment that you could
stay in. And they made it available to lawyers in the firm for private use
on weekends through a lottery that was open to associates, as well as
partners, and, if you didn’t get the apartment in a lottery one year, you had
priority the following year. One year, I was number one in the lottery, and
I picked a long weekend that included New Year’s Eve to use the
apartment, and, with the year’s notice, was able to plan the party and get
the word out to friends, which you could really do only in New York.
You can live in Denver and arrange a party in New York relatively easily
because you can get anything delivered in New York and you can do
anything by telephone. So, at 6:30 in the evening on the New Year’s Eve
of my party, everything showed up at the door, and we had a great time,
and Beth was a part of the party.
Beth and I went to the Cotton Bowl in Dallas over New Year’s
1984-85. Boston College, my alma mater, was playing in the Cotton Bowl
that year, and I proposed to her there. When I proposed to Beth, I was
very definitely going out on a limb, if you keep in mind the history of our
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relationship. She’d been in New York for the past two-and-a-half years.
We’d seen each other during the summers. This was not something where
marriage was going to necessarily be at the forefront of her mind. But I
knew this was the right decision. I talked to a friend about it from Boston
College that I worked for when I’d been in school there, Jim McIntyre,
and he gave me some good advice. He said the most important thing in a
marriage is shared values: “Do you share the same values?” And my
answer was, “We do, but she lives them better than I do,” and he said “Go
for it.” So I asked her to marry me. It took her sixteen days to say
“yes”—not that I counted—and she didn’t exactly say “yes.”
After the New Year’s in Dallas, she went back to NYU—in fact, I
think she had exams after Christmas that year—and then was going to be
coming back to Denver to finish up law school at the University of
Colorado, Boulder. So, she arrived in Denver in mid-January, and her
response to my marriage proposal went something like this: “I think,
maybe, I might want to say yes.” And it turned out that that was a “yes”
because like within a week, she was suddenly on a tear to make wedding
plans and wanted to get married immediately after graduation, which was
only a few months away. I really hadn’t thought through what the
schedule would be, but that was a lot faster than I even thought about. So,
she kind of went from needing a few weeks to think about this to
apparently being fully committed. We got married on June 2, 1985, about
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a week after she got her diploma from NYU. She went back to New York
for her graduation.
MR. SHAH: Jim, you mentioned you were elected to the partnership in 1984. Can you
talk about how your role changed in the Denver office over those years?
MR. SANDMAN: Yes. From the time I arrived there, I really ran my own cases and, as I
said, the cases weren’t as complex or as objectively interesting as the
things I’d worked on in Washington, but I was getting very good
experience and really felt that I was growing and developing as a lawyer
in the way that I should, and in the way that I’d been missing in
Washington. So, because I was running my own matters and because I’d
begun to have an administrative role in the office, there wasn’t a bright
line between what my experience as an associate was like and what my
experience as a partner was like. This is true for anybody elected a
partner. The work you do the Monday after you’re elected a partner is
exactly the work you were doing the Friday before you were elected a
partner.
I was part of what I think is still to this day the largest partnership
class at Arnold & Porter. There were twelve of us selected partner at the
time when, you know, the firm was just maybe 250 lawyers. That was a
good chunk of the class that had started together in 1977. I was
technically the class of 1976 because I got a credit for clerkship. I learned
that the betting among the staff in Washington was against me on the
chances that I would be elected a partner because I was in Denver and
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Arnold & Porter was a very Washington-centric firm. Denver was really
off the radar screen of many, many people. But I thought, “well, there’s
one thing that’s distinctive about me in this class of people being
considered for partner: I’m the only one outside of Washington,” and
turned out not to be an issue.
The one thing I did notice that made an impression on me about
being a partner came up during my first summer as a partner in 1984 with
summer associates. The title “partner” makes people look at you
differently and perceive you differently, and I noticed that a couple of
them would be nervous, you know, getting assignments from me. It was
clearly a big deal to them to be working with a partner. For most of my
life, I have looked significantly younger than I am. When I was a partner
at age thirty-three, I probably looked to be twenty-six or twenty-seven, so
I didn’t think I was scary looking, but it made a big impression on me that
how you conduct yourself, how people perceive you, is different when
you’re in a position that’s viewed as a leadership role. And I did begin in
the next few years after that to get more involved in management of the
firm as a whole. I was added to the firm hiring committee. I was put on a
strategic planning committee, and the strategic planning committee role
got me back to Washington with some frequency for meetings. So, I
began to feel more integrated into the firm as a whole.
But I definitely maintained contact with all my friends in
Washington. I had a reputation back in those days as being something of a
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gossip. I wasn’t really a gossip, but I did know a lot about what was going
on, and the joke used to be that if you wanted to know what was going on
in Washington, call Sandman in Denver because he knows better than
anybody. I did work at keeping in touch with my friends and colleagues
in Washington, and I also thought it was important to the development of
an office outside of Washington that people who come into the other
offices know something about the culture of the firm and be able to make
their connections through people in their office who had worked in the
main office.
I also began to do more work with lawyers in Washington than I
had done when I first moved to Denver. My caseload my first few years
in Denver was largely a local caseload. I did cases in Colorado working
principally with other people in the office. The office’s biggest client, the
Great Western Sugar Company, filed for bankruptcy in early 1985, and
most of what I did for them was litigation. At that point, a lot of it was
defensive litigation. The litigation was automatically stayed under the
Bankruptcy Code when they filed, so those cases disappeared. I began at
that point to work on smoking and health litigation for Philip Morris,
which had been a longtime client of Arnold & Porter. And I was recruited
to that work by Murray Bring, who was a partner in the Washington
office, who later went on to become general counsel of Philip Morris for a
number of years. The smoking and health litigation had been going on
since the 1950s, but the firm wasn’t brought in to do any of that work for
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Philip Morris until late 1984, when there was a new wave of litigation
filed—more litigation filed by different kinds of lawyers than had brought
suit against tobacco companies previously, so the company decided to
gear up. The work that the firm had done previously for the company had
mostly been in the antitrust and Federal Trade Commission areas. But this
was national litigation, and it was amenable to staffing from different
offices of the firm. I worked on cases in Texas for many years. There
were more cases filed in Texas than any place else by far. Starting in
1985, and for probably the next five years or so, I spent a good amount of
time in Texas, principally in Houston and Beaumont, but in other parts of
Texas too, working on smoking and health litigation for Philip Morris.
They were fascinating cases. Tobacco law is not like any other
kind of law. There are issues that arise in product liability cases involving
cigarettes that are just very different from traditional product liability law.
There are preemption issues that arise under the Federal Cigarette
Labeling and Advertising Act. Warnings had been on cigarette packs
since 1966, so there were obviously assumption of risk defenses.
Virtually all of my cases were in state court in Texas. That was the first
time I had ever done significant litigation in a jurisdiction where judges
are elected, and the experience was a real eye-opener. In parts of Texas,
the judicial system was just clearly corrupt. It was all about influence and
money and contributions to political campaigns. We regularly had the
experience of arguing before judges where, at the end of an oral argument,
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the judge would say “motion denied.” No explanation. Nothing. No
questions asked. No opinion, no nothing. A very eye-opening experience
for me. I don’t think elected judges are a good idea based on my
experience there and in other places.
I worked with lawyers from around the United States on those
cases. I worked with lawyers from Jones Day, from King & Spalding,
from Shook Hardy & Bacon, who was co-counsel for Philip Morris out of
Kansas City, and from Chadbourne & Park, and also with local counsel in
all these places. I was sometimes in the position of having to hire local
counsel for litigation, which I learned a lot from. If you’re national
counsel hiring local counsel, you’re basically in the position of the client,
and it’s very interesting to be a lawyer interviewing another lawyer to
handle a case and to see how the other lawyer presents himself or herself,
and what appeals to you and what turns you off. I learned some very basic
things. It’s important for a lawyer to say: “I’d like to handle this case”; “I
would like to work with you”; “I will give this case my personal
attention”; “You’ll never find a phone call unreturned in less than five
hours,” something like that. You know, energy, enthusiasm, and service
mentality count for a lot. Anybody I was interviewing was somebody who
would come well-recommended, so I was dealing with a group of people
who’d been screened very well, but the personal impressions they
conveyed, the preparation they had done for the interview made a big
difference, and you can sort people out pretty easily.
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And I met some wonderful lawyers. Larry Germer is a lawyer in
Beaumont who has since gone on to found his own law firm. Royal
Ferguson is a guy I worked with in El Paso who has been a federal judge
in El Paso for about fifteen years or so. I also learned something about the
different skill sets of lawyers. Big firm litigators tend to brief writers, as
opposed to courtroom lawyers. There are certainly courtroom lawyers
among them, but they usually are best at motions to dismiss, motions for
summary judgment, and appellate briefs. I sometimes worked with local
counsel who were less than great brief writers, and, initially, I was too
dismissive of them. I tended to value in them what I was good at, which
was brief writing, and so, if they weren’t good brief writers, I thought,
“Boy, they’re not very good.” But then I’d see them in court, and they
could get up in court and—with great comfort and persuasiveness—
explain a case and win over a hostile judge in a way that I could never do,
or certainly not do as well. And the lesson I took away was that’s why
lawyers should work in teams. Nobody’s going to have an equal measure
of all of the skills that go into being a great lawyer, but you can assemble a
team where you have different people with different skill sets that can
complement each other and where they can compensate for each other’s
weaknesses. It gave me a respect for courtroom lawyers and people who
handle higher-volume caseloads than I have ever had to handle and who
can get on top of things quickly that I hadn’t had before. I value the
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relationships that I developed with the local counsel I’ve worked with
around the country.
MR. SHAH: Did any of these tobacco cases make it to trial?
MR. SANDMAN: No. None of them did. The bulk of the cases that I worked on were
financed largely by a lawyer in Houston named Will Watkins, and he died
in about 1987. And when the funding for the cases dried up, they
gradually went away. Most of them were voluntarily dismissed. They
were all in discovery for long periods of time or appellate proceedings.
There was lots of litigation about the scope of preemption, the scope of
discovery. Not one of those cases ever went to trial.
MR. SHAH: If you had to pick from your Denver years the case that sticks out most in
your mind, what would that case be?
MR. SANDMAN: It would be Dille vs. Council of Energy Resource Tribes. Dille was a
gender discrimination case brought by five female employees of the
Counsel of Energy Resource Tribes, all of whom were laid off on the same
day. They were laid off, as I recall, in 1985. Our client, CERT—it was
called C-E-R-T—had gotten a lot of its funding from the federal
government. This is the group I mentioned earlier that was a group of
Native American tribes that pooled their resources to permit them to
develop their energy resources. CERT’s funding was cut by the Reagan
administration and, as a result, they had to close the office they had
maintained in Washington and had to reduce the size of their staff in
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Denver. And, for financial reasons, they laid off these five employees.
They sued under Title VII, alleging gender discrimination.
I took all of their depositions, and one thing became clear to me,
which I remembered ever since, both as a manager and as a lawyer doing
employment cases from time to time: I think they sued because of the
manner in which they were treated when they were terminated. They were
each called in one-by-one and told that they were being laid off for
financial reasons, but there was a locksmith on location changing the locks
on the doors as they were escorted out, and they all saw it, and they were
all deeply offended by that. The message it sent was “You can’t be
trusted—we’re changing the locks, so you won’t come back in here and
steal things.” That message was inconsistent with the explanation they
were being given for their termination. If you’re being terminated, not for
misconduct, but because of a lack of funding, that doesn’t say anything
about dishonesty or lack of integrity. They just felt insulted. They were
very angry about it, and all of them talked about that in their depositions
with great emotion and concern.
We defended the case on the grounds that our client was exempt
from Title VII. Title VII deals with employment, and its prohibitions
apply only to employers as defined by the statute. The definition of
“employer” in Title VII excludes “an Indian tribe.” Our argument was
that our client, although it was set up as a District of Columbia non-profit
corporation, had been organized as a membership organization with
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membership restricted to recognize Native American tribes, and that the
whole couldn’t be less than the sum of its parts—that all CERT was, was a
number of Indian tribes that had gathered together and chosen to use the
corporate form of business to get together. If each of them had done
individually what they did together, they would be exempt from Title VII.
The result shouldn’t be any different just because they combined in the
non-profit corporation form. And we prevailed on a motion to dismiss
before Judge Kerrigan in the United States District Court for the District
of Colorado. The plaintiffs appealed to the Tenth Circuit. I argued the
case in the Tenth Circuit, and the Tenth Circuit affirmed.
The best argument to be made against us was never made. It
wasn’t picked up on by the plaintiffs’ lawyer. It wasn’t picked up on by
any of the four judges who heard the case. And it was a real lesson to me
in statutory construction and the importance of the language of the statute,
and how little people really focus on that. People are very ready to turn to
legislative history, to other tools beyond the language of the statute, to
make an argument or to refute it and don’t focus enough on the language
of the statute. But here was the argument that could have been made
against us: the same section that defined an employer, excluded from the
definition, at least at that time, “the United States, a corporation owned by
the United States,” several other entities, and then “an Indian tribe,” but
there wasn’t the parallel language for “an Indian tribe” that there was for
“the United States.” It didn’t say, “an Indian tribe, a corporation owned
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by an Indian tribe.” The principal reason that Indian tribes are exempted
from Title VII is the recognition of their sovereignty. It’s that the federal
government does not tell them how to do business. And one sovereign,
the United States, was singled-out for exemption from Title VII, but the
Congress had felt it necessary to specify separately that a corporation
owned by the United States also be exempted, as if that’s a different legal
entity that might not be necessarily encompassed by the sovereignty of the
government itself. We focused in our argument on the language we
wanted to use: “an Indian tribe,” and there was also helpful legislative
history that we turned to, but no one ever looked two lines up in the statute
to say, “you know, let’s read the whole paragraph. There’s a way to say,
in this statute, what you say it says, and Congress has shown right within
this paragraph that they know how to do it. They didn’t do it for your
client.” I had an answer to that argument. I can’t remember what it is
right now (laughter), but I’ve worked it through. But my answer did
depend on legislative history. It was going to be hard to respond to the
argument based solely on the language of the statute itself. And I see that
phenomenon come up all the time in litigation, in contract-drafting. There
is a way to make words say what someone thinks they say, and often the
words are not those that they’re choosing to use to try to make their point.
MR. SHAH: And you argued this case before the Tenth Circuit?
MR. SANDMAN: Yes.
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MR. SHAH: Can you describe that experience? Was this your first federal appellate
argument?
MR. SANDMAN: Yeah, that was my first federal appellate argument. It was interesting. I
remember Judge Tacha was on the panel, and her first question to me was,
“Why should Indian tribes be allowed to discriminate?” (laughter). I
hadn’t thought that the question would be put quite so directly, and that’s
not what Congress did. They weren’t saying it’s okay for tribes to
discriminate. Their motivations were quite different from that. But it was
a very active bench. They were clearly well-prepared and, although I did
get to make my argument, they had a number of questions, but not so
many that I wasn’t able to make the presentation that I had prepared. It
was exhilarating. If you’re a lawyer who has developed a legal argument
over some time and thought a lot about it, being on the spot and having to
answer questions about it and parry with the judges is anxiety-provoking,
but, when it’s over, there’s an elation that comes from that that only a trial
lawyer or an appellate advocate can really appreciate. We had not gotten
an oral argument in the district court. The district judge decided it on
papers.
MR. SHAH: And what did you think your chances were when you walked out of oral
argument?
MR. SANDMAN: I didn’t know. I felt pretty good about it. They hadn’t done anything to
suggest that they were leaning against me, but they had been pretty careful
not to tip their hand. They asked good questions of both lawyers.