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Justice Department lawyers let their case go up in smoke



Published: Tue, June 14, 2005 @ 12:00 a.m.



It's scarily reminiscent of the old "Saturday Night Live" skit in which Emily Litella realizes that she had blundered, except in this case it's the U.S. Justice Department that is saying, "Never mind."

For eight months, the Justice Department attempted to make the case before a federal judge that U.S. tobacco companies conspired to deceive the public about the dangers of smoking.

Last week U.S. District Judge Gladys Kessler heard closing arguments and set a schedule for final briefs and proposed findings of fact to be filed this summer.

In the course of that trial, the government lawyers suffered what legal analysts said were adverse rulings and the lawyers managed to hurt their own case through several fumbles. It was not an easy case to begin with. Lawyers had to argue that tobacco companies were guilty of civil racketeering. The suit was filed six years ago by the Clinton Justice Department and was then picked up by the Bush Justice Department.

Judge Kessler was openly skeptical about some of the demands being made by government lawyers that would have required years of monitoring the tobacco industry by the courts and had clear First Amendment implications. Having a court constantly parsing what an industry says about its product is problematic in a society that values free speech.

Lawyers retreat

But the Emily Litella moment came when government lawyers abruptly slashed the demand for an industry-funded smoking-cessation program from a $130 billion campaign over 25 years to a five-year, $10 billion program. The original demand would have been designed to help every smoker who wants to quit, the scaled-back program would serve only those who become addicted in the near future as a result of industry misconduct.

After six years of legal wrangling and eight months in court, it is as if the government lawyers suddenly looked at the lawyers for Philip Morris USA Inc. and its parent, Altria Group Inc.; R.J. Reynolds Tobacco Co.; Brown & amp; Williamson Tobacco Co.; British American Tobacco Ltd.; Lorillard Tobacco Co.; Liggett Group Inc.; Counsel for Tobacco Research-U.S.A.; and the Tobacco Institute, and said, "You guys make a really good point. Never mind."

It is one thing for a lawyer to see his case going up in smoke, it is another when the lawyer lights the match.

An obviously pleased lawyer for Philip Morris USA, said the lawsuit had gone from a $280 billion case, to a $130 billion case, to $10 billion case and "eventually it will be a zero-dollar case." He sounds pretty smug, but he might be right. If the government's own lawyers don't have the courage of their convictions, a judge isn't likely to feel she has to make the case for them.




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