Those Cases That Go On and On

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in the course of time, become so complicated that no man alive knows what it means . . . Innumerable, children have been born into the cause. . . innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit

There are not three Jarndyces left upon the. earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court.

--Bleak House

Charles Dickens may have entertained some hope of reforming the tradition-encrusted lethargy of the law when he burlesqued its expensive inefficiencies in his 1853 novel Bleak House. But traditions have a way of enduring. New details need to be checked, new issues analyzed; more lawyers are hired to battle more attorneys on the other side. The Guinness Book of World Records gives its longevity award to a lawsuit that was filed in Poona, India, in 1205 and not settled until 1966.* In France, Attorney Jean d'Everlange vividly recalls the "Santoni affair," a controversy over the ownership of some

Corsican forests, which lasted from 1830 until 1975. Says he: "This case was slightly painful at first, then quite painful and finally, most painful indeed."

In the U.S. today, litigation is steadily becoming more complicated, more pervasive, more time consuming and more expensive. That fact is clear enough to any ordinary citizen with a tax problem or a difficult divorce, and no one has expressed more concern about it than Chief Justice Warren Burger. His warning: "We may be well on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated." The warning is somewhat exaggerated, but some major American cases do indeed keep expanding until they become ends in themselves, seemingly capable of lasting forever. Three classic cases in the making:

BATTLE FOR INFORMATION. The longest court trial in U.S. history has just entered its third year of testimony, and the end of the prosecution case is not yet at hand. Perhaps this fall, defendant International Business Machines Corp. will begin submitting evidence to refute U.S. Justice Department claims that the company has "monopolized or attempted to monopolize" the general purpose digital-computer market. This defense effort is expected to require another three or four more courtroom years. At a pretrial hearing in 1973, U.S. Judge David Edelstein doggedly forecast that he would "prove the legal system is so advanced and so so phisticated that there is no case that's unmanageable." The verdict on that is not yet in.

Ironically, the IBM case would not have been possible before the advent of the computer. The sheer numbers involved are staggering. IBM supplied an estimated 60 million pages of documents and other computer concerns provided 115 million more. The courtroom has now seen 4 million of those pages, through 50 witnesses and about 4,000 exhibits and 50,000 stenographic transcript pages of testimony; IBM has listed 350 additional witnesses for future swearing.

U.S. v. IBM was filed by Attorney General Ramsey Clark on Jan. 17, 1969, the final working day of the Johnson Administration. The Government's interest in IBM encouraged several other suits against IBM by rival computer companies (some of which have since been settled). To organize the defense, Cravath, Swaine & Moore, a prestigious New York law firm, began moving a platoon of 35 attorneys to an IBM office building in White Plains, N.Y., for courses in electronics, computer technology, accounting, company organization and business procedures. "In a case as big as this, there are hundreds, thousands of issues," says Cravath, Swaine Partner Thomas Barr. "So first you get an education."

Part of the struggle is a fight over information--the Government asking for vast amounts, the company often resisting. "It can be a huge job," says Nicholas deB. Katzenbach, former U.S. Attorney General and now the IBM vice president in charge of the legal defense. "Sometimes plaintiffs ask for something we don't have--we'd have to ask every salesman in every branch office--because it's not the sort of information that the company needs to run itself. Or sometimes they ask for a file from the early '60s, and those files are crated up in the warehouse with empty Coke bottles and dead mice."

On the other side, one top-ranking federal trustbuster, not mentioning IBM by name, publicly complained about being "drowned in a sea of paper." Katzenbach recently protested to a congressional committee that IBM has not stalled the trial except for "a day off occasionally for firm picnics." But a number of complications have been caused by IBM tactics. The company chewed up time authenticating documents from its own files, and it unsuccessfully argued "privilege" to the U.S. Supreme Court to prevent U.S. use of documents obtained by another antitrust litigator. On the other hand, the Government once so mishandled IBM documents that a three-month trial postponement was necessary to unscramble them.

The paper-shuffling marathon has had telling effect. Conceding that the IBM case "wears people out," Justice Department Lead Counsel Raymond Carlson recently announced he would retire this fall (Katzenbach, too, admits he is "sick to death of this," and is retiring in four years). A new federal team, the third on the case, will cross-examine IBM witnesses. The Government wants to take 200 to 300 new depositions, in part to acquaint new prosecutors with details of the case. Two weeks ago, a youthful Government attorney asked such confusing questions of a friendly witness that Judge Edelstein, amid snickering from the defense table, gently observed the "lack of sophisticated knowledge" in the interrogation.

Given such groping, appeals, recesses, opinion-writing time and hearings on remedies, experts believe the IBM case will easily eclipse the 15-year antitrust-litigation record set in the El Paso Natural Gas divestiture case that ended in 1972. "At best, it'll be 1985 before a change in the IBM market structure is finally ordered," says one Washington attorney, "and by that time, the markets will have changed dramatically, maybe making the restructuring irrelevant." For that reason alone, many computer-industry experts forecast another face-saving consent decree, to be negotiated by the Government --a solution that would leave IBM intact and dominant in the industry.

THE MISSING WILL.

When Howard Hughes died in a plane en route from Mexico to Houston last year, he left an estate estimated to be worth as much as $2.5 billion--and no will clearly indicating what he wanted done with his fortune. As a result, between 100 and 200 lawyers are currently swarming about the corpus of the steadily shrinking estate.

Since no unchallenged will was found immediately after Hughes' death, his cousin William Rice Lummis was appointed temporary co-adrninistrator of the estate, while local law firms handle Hughes affairs in the four geographical areas where his assets are concentrated. But three weeks after his death, a so-called Mormon will mysteriously turned up at a church office building in Salt Lake City, making bequests to the Mormons, various worthy institutions and a gas-station attendant, Melvin Dummar. It also named Hughes' estranged aide Noah Dietrich as executor. Trial on the authenticity of the will is scheduled to begin Aug. 15 in Las Vegas, and Dietrich has retained lawyers in Los Angeles and Houston to handle the case.

By now, 40-odd wills or pseudo-wills have appeared, prompting an army of lawyers to do combat for various relatives and other claimants. They range from a maternal aunt, through ninth cousins, to Rice University, the Boy Scouts and Actress Terry Moore, who claims a secret marriage to Hughes. The state of Texas also has attorneys attempting to establish Hughes as a resident at the time of death, which could net $100 million in state inheritance taxes. And finally, there are about ten lawsuits pending against the Hughes estate. Among them: three Texas banks trying to retrieve loans to Hughes, and the University of Nevada (claiming the $2.8 million balance of a promised $3.8 million).

Despite the press estimates of Hughes' wealth, the exact amount is a matter of considerable confusion. Lawyers for the estate filed appraisals in Houston and Las Vegas courts last March declaring it to be worth only $ 169 million. They included an evaluation by Merrill Lynch Pierce Fenner & Smith stating that Hughes' two main holdings, the Summa Corp. and the Hughes Television Network, were worth $110.8 million. Of the total, they said, $87 million should be set aside to cover costs of lawsuits pending against Hughes interests.

To keep control of Summa, Cousin Lummis has abandoned his Houston law practice to take personal charge of the holding company. Among his problems: fat salaries for four former Hughes nurse-secretaries, who must be kept happy and available to testify at future court hearings.

Lummis' old Houston law firm--Andrews, Kurth, Campbell & Jones --handles official Hughes-estate legal business in Texas. So far, the firm has been awarded $592,143.48 for legal work from April 5, 1976, through last January, most of it billed to 5,649.5 hours of attorney time--charged for at a rate of from $40 to $125 an hour by 31 Andrews, Kurth lawyers. One of the estate's California firms--Gibson, Dunn & Crutcher of Los Angeles--got $75,324.26 for two weeks of work in April 1976. The court appointed O. Theodore Dinkins Jr., 31, attorney for "unknown heirs" who may turn up later, and his firm has already collected $141,872.77 in fees and expenses for the first six months of work. Houston Probate Judge Pat Gregory told Dinkins, "You're going to hate me when you realize I've taken away 20 years of your life with this case," but thus far Dinkins has managed to conceal his dismay.

Under a Texas law, attorneys working in "good faith" for a claimant to an estate may collect fees from the estate even if their client's claim is thwarted. Attorney George Parnham, representing Dietrich in Texas, says he is owed $300,000. Most attorneys are gambling on contingency-fee arrangements, with their bills depending on their clients' success. Los Angeles Attorney Harold Rhoden, a high-roller representing Dietrich in California and Nevada, figures that validation of the Mormon will could mean a $4 million fee. But, he says, "if I lose, I'll hang myself."

PRICELESS PATENT. In 1954 an Italian scientist named Giulio Natta developed a method to make a tough, heat-resistant plastic named polypropylene out of propylene gas, a byproduct of the crude-oil cracking process. He applied that year for a U.S. patent and assigned it to his sponsor, the giant Italian chemical company Montecatini. But between 1954 and 1956 DuPont, Phillips Petroleum. Standard Oil (Indiana) and Hercules all claimed prior invention and asked for patents on the plastic, which is used to make fabrics, film and molded products like toys, dishes and auto parts. In the quarter-century since it all began, Natta has won a Nobel Prize, but after perhaps as much as $25 million in costs, the polypropylene case has yet to come to trial on its merits.

Under U.S. Patent Office rules, the competing applicants have to submit evidence to buttress their claims of priority. Montecatini began requesting tens of thousands of documents from competing companies. Two Washington attorneys, Mary Helen Sears and Edward Irons, were assigned to conduct the interrogations. Thus began a Homeric odyssey that took lawyers and legal stenographers from Oklahoma to Delaware to Germany and Italy--and back to Delaware.

At first the going was rough: at Phillips headquarters in Bartlesville, Okla., lawyers for various concerns dined separately at the Holiday Inn. irritated at Phillips' tardiness in extending guest privileges to the country club. As the procession moved to Chicago and Wilmington and on to Milan for additional depositions, however, the competing lawyers formed a sort of club of their own. They even wrote poems to each other, commenting on the complexities of the case in parodies of Lewis Carroll, W.S. Gilbert and Cole Porter.**

Expert witnesses had to be repeatedly called in at fees of $400 to $1,000 a day to verify experiments. One witness, determined not to give any hasty answers, would think silently for six to eight excruciating minutes before responding to a question. An Italian expert wanted to demonstrate his language ability by testifying in English; he startled the hearing room by acknowledging that he knew one principal very well because "he and I were gay together."

Legal Tornadoes. Along the way, in 1963, Natta was awarded a patent for a particular kind of polypropylene and the broader patent in 1973, but patent awards can be appealed to U.S. courts--and have been. In the meantime, additional litigation has appeared --over infringement and royalties and related patents. "It was like a hurricane spinning off little legal tornadoes as it goes," says Irons.

In 1966 Montecatini merged with an Italian government-owned corporation to become Montecatini Edison. When the Italian economy nose-dived in the early 1970s, Montedison hastened to settle many of its royalty demands for only one-tenth of what it had been claiming. "It just shows that this system can bring a foreign government to its knees." commented one attorney close to the case.

The plastics industry has estimated that the royalties on the manufacture of polypropylene might now amount to $ 15 million a year, but the polypropylene business itself has sales amounting to $530 million, so the litigation is a relatively minor business expense. Although the main patent on polypropylene will expire by 1990. most lawyers expect the litigation will still be sailing merrily along. Says Kenneth Madsen, a New York lawyer representing Eastman Kodak: "The legal problem continues to grow. Some chapters shut down, but new ones open up." Have any companies been deterred from manufacturing polypropylene? "Anybody who wanted to produce the product has done so without regard for the patent," says Attorney Irons. "They try to wear down the patent holder with extended litigation or, at worst, pay royalties later. The sad truth is that all this litigation has meant absolutely nothing: it hasn't stopped anybody from doing anything."

"For many years, the --a-- I would say the flower of the Bar, and the --a-- I would presume to add, the matured autumnal fruits of the Woolsack--have been lavished upon Jarndyce and Jarn-dyce. If the public have the benefit, and if the country have the adornment, of this great Grasp, it must be paid for in money or money's worth, sir. "

"Mr. Kenge, " said Allan, appearing enlightened all in a moment. "Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?"

"Hem! I believe so," returned Mr. Kenge.

* New Delhi officials can find no record of this extraordinary case, but they add that the nation's high courts do have 534,411 cases that have been in litigation between ten and 30 years. ** Sample: "Night and day, I was the one/ When sessions ended and they all wended, To have their fun/ I wasn't done."

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