Davis & Norris and the Lawyer’s Mission

Among the group of US attorneys representing the Vietnamese Agent Orange victims meeting in Ha Noi late March, two faces have appeared for the first time: Frank Davis and John Norris, two of the four attorneys from Alabama.

To the Vietnamese, these two men are known as “the quiet force in the shadows” because they have never appeared to this day in front of the Vietnamese public or media. Albeit quiet, their contribution is far from small, and so is their role in the case.

From left: Frank Davis, John Norris, Jonathan W. Cartee, Stan Morris

In 2003 legal circles in America were shaken by the news that Monsanto – one of the defendants in the Vietnamese AO lawsuit – had been forced to settle with the population of Anniston County in Alabama for $700 million for harm done to them by Monsanto’s production of PCB (a hazardous substance from the electrolysis process).

Monsanto had in fact stopped producing PCB there in 1977 but had not cleaned up the area afterwards, which led to the contamination of the land and the occurrence of dangerous diseases, including cancer. Monsanto was aware of the situation but purposefully covered it up. The public got to know about it only when the people of Anniston started filing charges against the company in 1993.

Face to face with Monsanto

Frank Davis and John Norris then found themselves representing 18,000 plaintiffs in a battle lasting more than ten years against the chemical giant.

The $700 million settlement that Monsanto agreed to pay far exceeded the settlement that the defendants in the Erin Brokovich case in California had to pay – the story that inspired the movie by the same name which brought a third Oscar to Julia Roberts in 2001. In the Erin Brokovich case, the Californian chemical giant PG&E paid $333 million in 1996 to settle about 1,000 plaintiffs’ claims that the company had let Hinkley County’s water be contaminated with chromium VI, causing grave illnesses in the local population.

“We accepted the Vietnamese case as it shares some similarities with the Anniston PCB; it has many plaintiffs, the same environment matters and poison matter, and we again face Monsanto,” John Norris explained to Tuoi Tre Newspaper during an interview in Ha Noi. He added, “right from the beginning we believed that the chemical companies were wrong, and we wanted to side with justice.” Norris revealed that he had in the past refused three offers to represent chemical companies. “It would have been an easy choice but my conscience did not allow me to do so.”

On the side of Justice

For people in Viet Nam interested in the lawsuit this is their first look at Frank Davis and John Norris. With his long grey hair and piercing eyes, Frank has a “don’t mess with me” air about him. He is perceived as the mastermind of the Pair Who Defeated Monsanto. His colleagues say that people line up outside his office in Birmingham to get his help on legal strategies. John Norris on the other hand looks less fierce, but he’s actually a powerhouse in the courthouse. He is the lead arguer and litigator. If the case survives, Frank Davis and John Norris will probably take the lead in the fight against Dow Chemical and Monsanto due to their many previous experiences confronting them. When the appellate brief was being drafted last year and the first draft needed improvement, John Norris took it upon himself to make the necessary changes so it could be submitted to the court.

Both are renowned lawyers (commanding hourly rates of $500-600) and are rarely able to leave the U.S. due to their enormous workload. Every single hour, every day they lose is a day their adversaries gain. To these lawyers time is money, time is their weapon in the fight against the corporations. John Norris told us this was his first trip to Asia, and that it had been quite a while since he had left the U.S for such an extended time.

Peter Shuck in his book “Agent Orange On Trial” wrote about the many pressures endured by the lawyers representing the Vietnam vets against the chemical companies from 1978-1985. Many saw their family life shattered, some got divorced, some became stressed and depressed, some had nervous breakdowns or got really sick. Asked about those very real risks, John Norris said “If no one has the courage to take risks then those plaintiffs will have no chance to access justice.”

Americans are often leery of lawyers, seeing them as cutthroats ever on the prowl for disputes that will fill up their pockets. John and Frank think otherwise. “We think that lawyers should serve the public and the community. That is the role of the lawyers.”

As the Vietnamese plaintiffs see the prospects for their case become dimmer with each court hearing, better prospects may now lie with legal minds with the experience and endurance of John Norris and Frank Davis.

US lawyers representing the Vietnamese victims asked the 2d Circuit Court of Appeals in New York for reconsideration of its February 22 decision dismissing the Vietnamese case against the chemical companies. Dean Kokkoris, one of the lawyers who drafted the Vietnamese plaintiffs’ appellate brief, talked to Tuoi Tre Newspaper during the attorney-clients’ conference with VAVA in Ha Noi.

What has your group –the attorneys—discussed with VAVA so far?

We’ve discussed so far the content of the Court’s decision. The decision dismissing the Vietnamese case is 35-page long; the one dismissing the US veterans’ case is even longer. The two cases are parallel and have some common points. We discussed with our client the reasons for the court’s dismissal and how we’ll go about regarding the next appeals, which arguments we’ll use, what points we dispute.

We know the content of your discussion is confidential but is there anything you can tell us?

What matters most is that the court clearly understood our International Law arguments. In previous phases we focused on the international law argument that spraying poison is a war crime, but now we’ll focus more on domestic law arguments since no judge in the US would dismiss the US veterans’ claims while letting the Vietnamese’ claims survive, even if our international law arguments are valid. From now on we will focus on our domestic law-based claims.

Does that mean that if the US veterans’ case fails there is very little chance that the Vietnamese case will survive?

Correct. If the veterans’ case is rejected, it will be extremely hard for the court to accept our case. We have petitioned for the appellate court to hear our case en banc (with all 15-20 justices present as opposed to the June 2007 hearing, where the panel had only 3 judges).

We filed this petition on March 7 before leaving for Viet Nam. If the 2d Circuit accepts to rehear the case, the same process will take place all over again: we will be asked to rewrite our brief and to prepare for a new round of oral argument in front of the court.

Is there any possibility that the Court of Appeals refuses to reconsider its decision?

Of course, there is, though courts usually do not turn down such request. We based our petition on two grounds: 1/the judges’ arguments are contradictory; 2/ this is a matter of utmost importance and the court should reconsider it. We argued that this is an important case, the court erred in its decision and should reconsider it. If the Court of Appeals does not grant us the request we’ll file to the Supreme Court.

Did we make any mistake at last year’s oral argument?

Everybody in our group agrees we did the right thing. We attached the Vietnamese case to the US veterans’ case. That was the wisest move possible because if the US veterans are not compensated by the Government then nobody else will be. The veterans’ attorney presented a number of very good arguments based on domestic law. The Court turned us down but had to acknowledge the validity of our international law claims. The Court is aware that the US military used herbicides that were in fact poisonous, a number of US military officials argued that it was OK to use herbicides while it was not in reality. The Court understood it all but purposefully misinterpreted it and ignored the reality that the Agent Orange contained dioxin –which is a poison—and said that that was just a herbicide.

Some of your colleagues mentioned that the decision was “result-oriented”. Is that what you think, too?

That’s exactly what it is, and it’s common practice in some courts. The judges make up their mind almost right away, then strive to find arguments, analyses and evidence justifying their decision. It’s a reverse process. Instead of trying to understand the law and legal arguments then reach the proper conclusion, they operate in reverse: they formulate a conclusion first, then find arguments and evidence to justify it afterwards. I believe the Court has done just the same in our case: adopt a conclusion first, then strive to find the corresponding arguments and evidence afterwards.

Is there anything to prevent such practice? The case is rife with political factors so the same thing might happen again in the next oral arguments.

I believe that our greatest hope lies with the US veterans’ case. They are the best claimants. Public opinion is on their side, they receive a lot of sympathy, they have lots of resources and contact with influential people. Our arguments may well be based on domestic law but they can’t be as weighty as when they’re presented by the US veterans. The Vietnamese victims’ greatest hope lies with the US veterans’ victory in the next appeal. If they win, our case will survive.

Thanh Tuan

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