Assuming the Risk:
The Mavericks, the Lawyers, and the Whistle-Blowers Who Beat Big Tobacco
About the Author
Michael Orey covered the tobacco wars as both a writer and editor for the American Lawyer. A graduate of the University of Michigan Law School, he is now an editor at the Wall Street Journal. He lives in Hastings-on-Hudson, New York.
- Hardcover: 400 pages
- Publisher: Little, Brown and Company; 1 edition (September 7, 1999)
Mississippi is not widely known for being first in anything; in fact, Michael Orey notes in Assuming the Risk, the state ranks last or near last on an embarrassing array of scales. And yet, he writes, it was in the courtrooms of this disparaged Southern state that a pioneering team of lawyers led the way in a politically controversial crusade against the tobacco industry. Mississippi was the first state in the nation to sue cigarette manufacturers to recover smoking-related health care costs incurred by the state’s Medicaid program. The fierce legal battle resulted in a multibillion-dollar settlement and eventually led to hundreds of billions of dollars in fines levied against the tobacco industry when other states followed suit.
Though decidedly pro-plaintiff, Assuming the Risk is not another vituperative rant against the Evil Empire of Big Tobacco: Orey does not shout and stomp on his soapbox. Instead, the veteran legal journalist and Wall Street Journal editor coolly focuses on the objective facts, presenting the who, what, where, and when of a complex and contentious litigation. His well-researched and detailed narrative spotlights the key figures in this real-life morality play–the mavericks, lawyers, and whistleblowers–including one particularly revealing chapter on Jeffrey Wigand, a former research scientist for the tobacco firm Brown & Williamson, whose decision to break a confidentiality agreement by speaking with 60 Minutes investigative reporter Mike Wallace became the subject of the 1999 film The Insider. –Tim Hogan
From Publishers Weekly
As the Marlboro Man descends from the nation’s billboards, Orey’s account of the first successful litigation targeting tobacco companies is well timed. For a book documenting litigation, it’s a joy to read largely because of its colorful cast of characters: a Nazi apothecarist, Sylvester Stallone (accepting a cool half million to light up his favorite brand of smokes in five movies), a witness who wears a fresh clove of garlic as a tie tack to demonstrate his feelings toward lawyers, the lawyers for big tobacco whose victory celebrations are conducted in the presence of a skeleton with a cigarette jammed between its bony fingers. Orey, who covered tobacco cases for the American Lawyer and is now an editor at the Wall Street Journal, follows attorney Don Barrett as he tries three cases against the tobacco industry, losing all of them and not earning a penny, but persevering to help pilot Mississippi’s Medicaid recovery suitAa landmark case in which the tobacco companies settled for $3.6 billion. Like all noteworthy villains, Orey’s tobacco companies make their own fatal errors. Hiring washed-up paralegals to index their most secret documents at $9 an hour beggars the cloak-and-dagger antics that make this book such an enjoyable read, regardless of how many packs a day one smokes. U.K. and translation rights: Williams & Connolly. (Sept.)
Copyright 1999 Reed Business Information, Inc.
From Library Journal
This book offers a new history of the groundbreaking Mississippi lawsuit that resulted in the first significant legal victory against the tobacco industry. Orey’s gripping and very readable account focuses on the individuals involved, particularly Mississippi Attorney General Michael Moore and whistleblowers Merrell Williams and Jeffrey Wigand. Orey, an attorney and Wall Street Journal editor, goes into much greater detail on these individuals than on the legal nuances of the case. While the book correlates with what is known of the facts of the case, it is disturbingly slim on references. Nevertheless, it is worthy of a place on public and academic library shelves next to Peter Pringle’s Cornered: Big Tobacco at the Bar of Justice (LJ 3/1/98), Richard Kluger’s Ashes to Ashes (LJ 6/15/96), and Stanton A. Glantz & others’ The Cigarette Papers (LJ 6/15/96).AEris Weaver, Marin Inst. for the Prevention of Alcohol & Other Problems, San Rafael, CA
Copyright 1999 Reed Business Information, Inc.
The painful death in 1987 of Nathan Horton, a poor black Mississippian, is the starting point for this novel-like recounting of the ultimate defeat of the tobacco industry. His heirs filed suit against the makers of Pall Mall cigarettes, citing their product as the cause of death. The author, a legal journalist, sketches vivid pictures of the broad cast of characters in this real-life drama, from Horton himself to the washed-up actor turned paralegal who stole internal tobacco company documents to the once cross-burning white lawyer who represented Horton’s family. This is a story not only of a legal battle but also of the culture of the Deep South and the changing race relations there. The 1997 multibillion settlement between the tobacco industry and the state of Mississippi, which was the outgrowth of the Horton case, was triumph with ramifications yet to be realized. This is a timely and fascinating book, a classic example of truth being better than fiction. Mary Whaley
From Kirkus Reviews
Combining brilliant scholarship with a novelist’s feel for human drama, Orey recounts how a determined group of lawyers and whistle-blowers brought the tobacco industry to its knees. Wall Street Journal editor Orey opens his odyssey in rural Mississippi, where in 1986 attorney Don Barrett began a decade-long holy war against Big Tobacco. Confronting an undefeated foe with seemingly limitless resources, Barrett was in for a long but ultimately successful struggle. He faced two major obstacles: first, the delaying, war-of-attrition tactics used by the tobacco companies to wear down plaintiffs, and, second, the tendency of juries to blame smokers for their own predicaments. Orey lucidly explains the complex legal and medical issues involved in tobacco litigation, but he’s even better at describing the maddeningly complex personalities involved. Barrett, a former segregationist, built his reputation representing African-Americans in front of Mississippi juries. Like Captain Ahab, the Bible-pounding Barrett viewed his foes as “truly forces of evil to be vanquished.” Merrell Williams, an ex-actor who stole documents proving that the tobacco industry had systematically deceived the public about smoking, is a fascinating blend of hippie idealism and self-promoting opportunism. Mississippi Attorney General Mike Moore is a smart politician who knows a good issue when he sees one. Just as public sentiment was turning against Big Tobacco in the early 1990s, Moore (and other state attorneys general) decided to sue the industry to recoup Medicaid funds spent on smokers. In 1996, Moore, Barrett, and other antitobacco advocates won a historic victory when Liggett became the first cigarette maker to settle a smoking-related lawsuit. Within a year, the whole industry had cut a deal, agreeing to pay $368.5 billion to smokers and their lawyers. Unfortunately, Congress rejected the settlement, and the tobacco wars continue. A tale of breathtaking, even Homeric, scope, filled with greed, good intentions, and a collection of deeply flawed “heroes”; scholars and the general reader will find ample reasons to rejoice. — Copyright ©1999, Kirkus Associates, LP. All rights reserved.
It may seem paradoxical to most that for trial lawyers are not afraid to lose a case. Every trial is a learning experience. You learn about your opponent; you learn about yourself. You try a losing case over and over in your head at night. You learn from your mistakes. You learn from the opposing lawyer. You become obsessed and through it all you learn how to win.
This is the true story of some country lawyers in Mississippi who launched a holy war against Big Tobacco. They were unlikely Davids battling a Goliath.
The country lawyers looked like easy pickings to the big firm lawyers from the big cities. The silk stocking crowd would bury them in paper, bankrupt them in endless discovery, and outdazzle them in court, if the bumpkins ever got that far. These champions of nicotine had never lost a case. The clients had never paid one dime to any tobacco victim. They were the chosen ones, selected to keep the streak alive, to bring home the scalps of the piteous Mississippi lawyers.
Trial lawyers know that a lawyer who has never lost a case has never tried a case. Undeterred by the myth of invincibility of the tobacco industry these dreamers were able to use the industry’s incredible arrogance on itself to bring it to its knees. In short, the truth got out, and the rest is history.
If you are a law student or a young lawyer thinking about trying cases for a living, read this book. This is how its done and how you can sleep at night.