NOLA.com : Judge in Gulf oil spill trial can handle the numbingly complex trial ahead, colleagues say
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Mark Schleifstein, The Times-Picayune02/12/2012 6:25 AM
On the day in August 2010 that an Idaho gathering of judges tapped U.S. District Judge Carl Barbier of New Orleans to oversee 535 consolidated lawsuits in the BP Deepwater Horizon disaster and Gulf oil spill, Barbier was already warning the attorneys who would appear in his court that the complex litigation was to be dispatched with courtesy and professionalism.
“It is likely that during the course of this litigation your working relationship will occasionally be strained, communication derailed, and mutual trust questioned,” Barbier wrote in his first, 31-page order outlining the scope of the case. “The Court expects, indeed insists, that professionalism and courteous cooperation permeate this proceeding from now until this litigation is concluded.”
For those who had already appeared before the 13-year veteran of the federal bench or against him during his career as a trial lawyer in New Orleans, Barbier was simply describing the standards he has always insisted upon.
“He brings both intelligence and a good personality to dealing with one of the most complex cases in history,” said Tulane Law School professor and former dean Edward Sherman, an expert on complicated litigation.
“I am a better attorney for having worked for him, and I would say a better person for knowing him,” said Suzanne Scalise, a Loyola School of Law professor who was a law clerk with Barbier in 2003 and 2004. “He’s incredibly bright and a fantastic mentor. He expected a high level of performance from us and he wanted us to get things right. But he really did everything in is power to make it a wonderful work environment.”
Complex cases don’t scare court
The federal Judicial Panel on Multidistrict Litigationdecided to transfer the complex case to New Orleans because many of the lawsuits were filed here, close to the accident, and because the New Orleans-based court has had success handling equally complex cases. Among them: a myriad of lawsuits filed after Hurricane Katrina, a multitude of damage suits stemming from contaminated Chinese drywall, and a variety of national class-action cases involving prescription drugs.
They chose Barbier because of his experience in similar cases.
“He has a distinguished career as an attorney and now as a jurist,” the judges wrote in their transfer order. “We have every confidence that he is well prepared to handle a litigation of this magnitude.”
Unlike other high-profile court cases, the oil spill litigation won’t be tried in front of a jury. Barbier will be deciding all questions about the liability of BP and other companies and government agencies, and will have to determine the relative merit of evidence presented as fact as well as the opinions of expert witnesses.
One of the difficulties Barbier will have is in deciding where the trail of damages ends, trial lawyer Scott Bickford said.
“If you’re a towel salesman on the beach in Pensacola and can’t sell towels, do I get to claim the loss of income or revenue for not selling towels?” Bickford said. “The answer is probably yes. But does the towel manufacturer have a valid claim? What about the raw cotton supplier? Do you go back to the cotton farmer?”
That’s where Barbier’s experience will help, Sherman said.
“He did a lot of admiralty and maritime work as an attorney, so the maritime issues that are so important in this case, he understands and has dealt with very deftly,” Sherman said. “And the federal court in the eastern district of Louisiana has been a leader in developing creative approaches to mass disasters and mass torts.”
Judge’s warmth, humor appreciated
Although billions of dollars are at stake, attorneys in his courtroom have embraced Barbier’s sense of humor and warm personal manner.
When lead BP attorney Andy Langan brought his son from Chicago last year to sit in on a day of the proceedings, he was welcomed with a courtroom ovation and kind words from the judge.
The Alabama-Louisiana college football rivalry also surfaced in the courtroom when Alabama Attorney General Luther Strange, a Tulane alumnus who serves as coordinating counsel for state interests, was forced to wear a purple-and-gold striped tie after LSU prevailed during the two teams’ regular season match-up in Tuscaloosa.
When Alabama trounced LSU in the BCS national title game, Louisiana members of the plaintiffs committee wore crimson ties and temporarily broke court rules to don Bear Bryant-style houndstooth hats adorned with red feathers.
“He’s innately a kind man. He has a wonderful sense of humor,” Bickford said. “That really comes across. But I’ve seen him get pissed off, and you do not want to be on his bad side.”
Bickford should know. One of his clients, restaurateur Stan “Pampy” Barre, once referred to Barbier as “one pissed off, fed-up judge” who “turned a little guy into an ax murderer” in sentencing Barre to five years in a City Hall corruption case.
‘Very even-handed, very careful’
Born in New Orleans, Barbier received a bachelor’s degree at Southeastern Louisiana University and a law degree from Loyola. He clerked for William Redman, then a judge with the Louisiana 4th Circuit Court of Appeal, and with the late U.S. District Judge Fred Cassibry in New Orleans.
Barbier worked as a trial lawyer in New Orleans until he was appointed to the federal bench by President Bill Clinton in 1998. During his private practice, he served as president of the Louisiana Trial Lawyers Association, lobbying successfully against then-Gov. Mike Foster’s attempt to gain legislative approval of no-fault automobile insurance.
His career representing plaintiffs similar to those who have brought suit against BP has led to some concerns about his ability to be impartial. But most dismiss that concern and some even worry he could become too accommodating of the defendants in the name of fairness.
“All the attorneys I’ve talked to say he’s very even-handed and very careful,” Sherman said. “I don’t think anybody is claiming he has any predispositions in this case.”
Michael McAlpine, a lawyer who represents corporations and insurance companies, argued a case before Barbier involving a 2008 explosion that sank a dive boat during the decommissioning of a natural gas pipeline in the Gulf of Mexico, killing three men.
“That case also involved general maritime law and all of the bells and whistles that go with it,” McAlpine said. “I was really impressed with the way he handled it.”
Like the BP case, it involved overlapping federal and state laws and the legal limitations of damage liability.
“He absolutely got it, and used his knowledge of the people involved, the personalities, to steer it to a very satisfactory outcome,” McAlpine said.
A numbingly complex case
Though the upcoming trial is numbingly complex, most court observers seem to think Barbier will rise to the challenge – a major part of which involves assigning weight to “fact” witnesses and opinionated testimony given by experts.
In some cases, fact witnesses have undergone two days of depositions, resulting in 400-page transcripts. Those are often accompanied by dozens of exhibits, each of which can contain up to 2,000 pages. Lawyers are providing Barbier with a two-page summary of each deposition, but the originals are online for his use, including links to the exhibits.
Expert witnesses are required to submit a written report online, with a similar two-page summary. Several have had their testimony challenged by either the prosecution or the defense, with Barbier as the arbiter.
Much of the expert testimony will be in response to questions raised by the parties about the opinions contained in the experts’ reports. Barbier will participate in the questioning.
Barbier may rule later that he will ignore an expert’s testimony.
The judge already has made it clear he will set a comparatively fast schedule for the first trial. For instance, he has blocked out 400 minutes for opening arguments, which will begin on Feb. 27, with BP getting 90 minutes, the largest share of time, and the federal government, at 75 minutes, the second-largest share.
But the trial is likely to be seeded with a variety of land mines as it progresses.
For starters, there’s the sheer volume of evidence. There’s no way Barbier will be able to read every line of every deposition, or every page of every exhibit, court observers say.
But he’s likely to review much of it, Scalise said.
“He reviewed everything that was written, motions, memos, cases,” she said. “There was nothing that was ever written that did not get reviewed and edited by him. There was nothing that went out of his chambers that he didn’t know more about than we did.”
Barbier also will have to deal with bickering during the trial, among both plaintiffs and defendants. While the most fractious battles may be between Transocean, Halliburton and BP, there may also be conflicts between Louisiana and the U.S. Justice Department as the trial progresses.
Sorting through the ebb and flow of testimony and evidence during the trial will require concentration, attorneys say. There are likely to be days when “smoking gun” revelations are made, but there will also be many more days of tedium during the first trial phase, which could last three months or more.
One factor in Barbier’s favor is that the trial’s high profile means some of the top lawyers in the country will be here, Sherman said, adding: “You’re not going to see any courtroom antics by these attorneys.”
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Mark Schleifstein can be reached atmschleifstein@timespicayune.com or 504.826.3327.
