Commercial Prosecutors of the year

The following was not done alone. It couldn't have been. We needed and had a great deal of outside help.

Last January and February, for instance, we invited lawyers to tell us why they should be one of our winners. Some 800 lawyers across the world got invitations, so did 100 of our corporate subscribers. We had some 200 replies.

Then in March and into April we imposed again. At this stage we were groping- or stumbling- foggily towards our conclusions, with regular and multi-changes of mind. Some of the busiest people you will ever find took time out to listen as we plodded down out short-lists, and then set us right. They must have suffered greatly. To them and the rest we hereby send our thanks.

No doubt not all of those we spoke to will feel satisfied with the results. But at the end we felt the decisions ought to be ours. Ah, the joys of responsibility...

The team behind Exxon, when Lloyd's refused to pay insurance on the Exxon Valdez (US).

Charles A. Beach, Edward J. Lynch, and Michael J. Silver (Exxon Corp), with Robert N. Sayler, Michael F. Dolin, and Brice M. Clagett (Covington & Burling, Washington, D.C.) and George Bramblett Jr., Robert Levy and Lynn Liberato (Haynes & Boones, Texas), and J. Donald Bowen, George Pletcher, and John Tavormina (Helm, Pletcher, Bowen & Saunders, Texas), and James H. Carter (Sullivan & Cormwell, NY).

There are apparently two species or orders of settlement. The first lets the loser leave under the impression he may have won. This story, then, is about the other kind.

When the Exxon Valdez grounded and ruptured in Prince William Sound, Alaska, it shed 20% of its payload, some 11,000,000 gallons of crude-oil. Certainly enough to skip a few pump- visits, or, now and then, motor the wife and kids to Mars. The environmental cleanup is still going on (they don't have the winters, let's not forget). The insurance clean-up too is underway. And, you know, suddenly the oil job isn't looking that bad.

In fact, our winners wold probably deserve this award even if they had never got as far as court. The forum battle was enormous. From the first, there were three lawsuits with their engines on; all three were still running strong at the end. Meanwhile, they bounced up and down, and from side to side within the network of the US legal system. The various actions, mirror images of one another, ran the gamut of the state and federal systems; some shuttled back and forth between the two. Reportedly, one case attempted all three moves in a single day.

One wonders how on earth those working on them have kept track. I put this question to one of Exxon's lawyers, Mitchell Dolin: "There were moments where we didn't, I believe, in depositions, certainly, the court reporter, would ask which captain do we put on this- the state one or the federal- and we promptly disagreed."

Though you wouldn't guess it these days, for a while matters got quite spicy. Now, of course, both sides are sweetness, peace and light. After six years of asking, and three enormous lawsuits, Lloyd's has at last agreed to pay Exxon a cool $710 million. But the settlement hasn't been the quiet out-of-court kind. Instead it is of the noisier after-court variety. A year ago, the whole affair went to trial, and the dirty laundry was aired. Lloyd's, for its part, mixed sentiments (is oil a synonym for debris?), with gossip and scurrilous rumor (is Valdez's captain really a drinker?). Exxon's approach tended towards the simple, by design. As one Exxon source revealed; "With something like the Valdez(sigh) you know deep down it has to be an accident and we just wanted to get the thing to a trier of fact."Finally, one day early in June, with only seven hours logged in the little room, the jury solemnly filed back. Exxon's people were soon contentedly telling the reporters that now they were $410 million better off and they felt "just tickled to death".

Looking back on it, Dolin says; "I think Lloyd's in the end just couldn't give the jury what juries need; a scenario that makes it look like Exxon wanted this to happen, that somehow or in some way it stood to gain- but, honestly, Exxon run the Valdez aground to collect the insurance? C’mon! The losses here are in the billions. The insurance doesn't even go part way."

But if they couldn't win, what made Lloyd's so aggressive in its tone? Was it something to do with R&R and the troubles back home? Was it, maybe, that oil pollution is new as an area of liability? Well, the second suggestion is plausible. Oil pollution is a new area and some insurers do indeed try much harder with those. But it seems more likely-doesn't it? - that as people repeatedly told us; "Lloyd's really thought it could win."

Exxon's team, then won this award as much for just being smarter than their opponents as they do for doggedness and sheer, cold persistence.