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It was a trial with tens of millions of dollars and famous reputations at stake. There was so much rancor between the opposing attorneys that each legal team hired private eyes to conduct surveillance on the other. One side accused the other of packing the courtroom with black people to favorably impress black members of the jury. There were allegations that attorneys improperly tried to influence or coerce witnesses. Willie Gary of Stuart, Fla., one of the nation’s most successful plaintiff lawyers, was ejected from the courtroom at one point and silenced by the judge on another occasion for uttering a profanity. Then there was “the whistling incident.” All of this prompted a frustrated and angry Alachua Circuit Court judge in Gainesville, Fla., to take the highly unusual step of appointing a special master to conduct a confidential investigation of lawyer misconduct in the midst of the trial. The behavior of Gary and the other lawyers was “an insult to the integrity of the legal system,” the special master concluded in his 35-page report, the results of which were quietly unsealed. “All these actions and posturing resulted in an atmosphere that elevated tactics in pursuit of opposing counsel over the duty to pursue truth.” This alleged misbehavior occurred in the course of a lawsuit filed by the family of the late New York Yankees and St. Louis Cardinals slugger Roger Maris against Anheuser-Busch Inc. Maris Distributing Co. sued the brewer for terminating its contract. The Maris family won a $50 million verdict after a three-month jury trial that ended in August. With prejudgment interest, Anheuser-Busch has to pay $72.6 million, and that’s increasing by about $50,000 a day as it pursues an appeal. During the contentious trial, Senior Judge R.A. Green Jr. had issued contempt of court orders against several lawyers even before appointing Gainesville solo practitioner Stephen N. Bernstein as a special master more than midway through the trial. Bernstein interviewed 48 witnesses, sometimes in the evenings after the trial proceedings had ended for the day. One of the attorneys he investigated was Gary, senior partner at Gary Williams Parenti Finney Lewis McManus Watson & Sperando, who represented the Maris family. The special master reported that Gary used profanity during the trial and harassed a witness. Gary uttered the word bulls–t — “or words to that effect” — twice in court, Judge Green said in his order for referral of sanctions. He ejected Gary from the courtroom once for this indiscretion. When Gary did it again in his closing argument, the judge forbade him from speaking for the duration of the trial. Bernstein recommended that Judge Green address this conduct himself, rather than leave it to the Florida Bar’s disciplinary process. Bernstein also cited other violations of Bar rules by Gary. During his questioning of one witness, Gary demanded that the witness “look the jury in the face and tell them you were wrong.” That, Bernstein said, is a violation of a Florida Bar rule that prohibits lawyers from asking a question for the sole purpose of embarrassing the witness. Then, in a television interview, Gary said he thought a different defense witness was a liar. That is contrary to a Florida Bar rule that says a lawyer shall not in trial state a personal opinion as to the credibility of a witness, according to Bernstein. The special master recommended that the Bar, through its disciplinary process, address the prejudicial pretrial comments made by Gary in the TV interview. Gary did not respond to a phone message seeking comment. Bernstein also recommended that the Florida Bar investigate two incidents of alleged misconduct by Gary’s co-counsel, Madison McClellan, a partner at Gary Williams, for possible disciplinary action. In addition, he found numerous instances of questionable conduct by other attorneys, but stopped short of recommending discipline against them. A Bar official confirms that there is an active investigation of the case. “It’s a safe assumption this case will be going to a grievance committee,” says Ken Marvin, chief discipline counsel for the Bar in Tallahassee. Bernard Dempsey Jr., a partner at Dempsey & Sasso in Orlando, Fla., and one of the attorneys for the plaintiff, says that in 30 years of practice, he’s never heard of a circuit court judge ordering this type of investigation of the attorneys in a case. Dempsey was not one of the attorneys criticized by Green or Bernstein. Marvin agrees. “It’s a first,” the Bar official says. “It was clear [Green] felt the conduct of the lawyers needed to be evaluated,” Dempsey says. “It’s fair to say there was a fair amount of acrimony. But most judges pride themselves on being able to control their courtroom.” PRESSING THE LIMITS Green, a retired Alachua Circuit Court judge who hears cases on a part-time basis, declined in an interview to say why he appointed a special master rather than addressing the problems immediately through contempt orders or other sanctions. But in an Aug. 31 order of referral for sanctions, he wrote: “At the beginning of this trial, it became apparent to the court that counsel, primarily plaintiff’s counsel, would ‘press the limits’ of proper conduct and compliance with directives of the court.” Peter Moll, a partner at Howrey Simon Arnold & White in Washington, D.C., who defended Anheuser-Busch during the trial and who also was criticized in Bernstein’s report, says it was he who asked Green to appoint a special master. “I felt it was necessary to find out what was going on,” he says. Moll says there were lots of shenanigans going on outside the courtroom that the judge had no way of knowing about, and that’s why a special master was needed. For example, Moll says, the Maris family’s lawyers instructed one of their firm’s interns — termed a law clerk by Bernstein — to follow a defense witness into the men’s room during a recess. When Moll asked him to identify himself, the clerk falsely claimed that he didn’t speak English. The special master’s report suggests that the clerk, Marwan Porter, was sent to eavesdrop on Moll and the witness. Moll, however, also incurred Green’s wrath. The judge found both him and Gary in contempt of court during the trial, but withheld sanctions pending further order — which never came in Moll’s case. Two other attorneys for the Maris family, McClellan and Manuel Socias, also were found in contempt by Green. They were fined — Socias says his penalty was $500 — for not following the judge’s directives concerning the questioning of witnesses. Green complained that McClellan and Socias, a solo practitioner in Orlando, asked improper questions after a sustained objection and made “testimonial asides between questions.” Bernstein, the special master, did not recommend Bar action against Socias, though he did recommend Bar action against McClellan, who did not return a call seeking comment. TURNING UP THE HEAT Gary joined the Maris family’s legal team last year, two months before the trial began. He took the job on a contingency fee basis. Dempsey, the family’s original attorney, says he wasn’t willing to work on a contingency fee basis. As a result, Dempsey stayed on as counsel for the plaintiff but didn’t actively participate in the trial. Gary, 54, calls himself “The Giant Killer” on his law firm’s Internet site, based on his successful employment discrimination and other lawsuits against big companies such as Coca-Cola, Microsoft, Walt Disney and Office Depot. Last year, he won a $240 million jury verdict against Walt Disney World in an intellectual property case. Gary says he’s won more than 150 cases with pay-outs of at least $1 million. The Maris lawsuit was hotly contested from the start. But when Gary’s firm joined the fray, four years after the lawsuit was filed, and Gary called a news conference to discuss the case, the temperature “got turned up considerably,” Moll says. After Roger Maris retired from the St. Louis Cardinals in 1968, he and his brother Rudy ran a successful Anheuser-Busch beer distributorship in the Gainesville-Ocala area. Roger Maris died of cancer in 1985. In 1997, Rudy Maris and Roger Maris Jr. sued Anheuser-Busch for breach of contract for terminating the distributorship’s contract that year. The Maris family had lost an earlier antitrust lawsuit against the brewer in federal court. The company said it ended the contract because Maris Distributing Co. had repackaged outdated beer and falsified records to make it appear it was visiting customers when it was not. The Maris family lawyers contended that Anheuser-Busch wanted to take over the distributorship from the Maris family so the company could give it to friends of its chairman, August Busch III. The St. Louis-based brewer offered $20 million for the distributorship before taking it away. DINNER AND DRINKS Hostilities between the opposing legal teams seemed to escalate after Moll, more than two months into the trial, hosted several former Maris distributorship employees who were scheduled witnesses. He had them over to his house for dinner and drinks. Green, however, previously had ordered lawyers on both sides to have no unilateral contact with any witnesses until after the witnesses were excused. Maris attorney McClellan notified Judge Green during the trial that Moll had participated in several social functions with the ex-Maris employees, in violation of the court order. A Reuters news story quoted McClellan claiming that a former Maris employee testified that Anheuser-Busch lawyers had “wined and dined” him to elicit negative testimony. The witness actually testified, however, that he had discussed trial scheduling — not his testimony — over dinner at Moll’s house. McClellan told special master Bernstein that Reuters had misquoted him. Bernstein concluded that McClellan probably didn’t violate rules of professional conduct in making the allegations about the Anheuser-Busch lawyers. As to Moll, Bernstein found that he apparently didn’t violate the witness sequestration order in having witnesses to his house for dinner. But the special master faulted him for failing to disclose to Judge Green and opposing counsel his meeting with the witnesses. Bernstein recommended that Green admonish Moll. “Obviously, I don’t agree with that reading of the record,” Moll says. SPY AND COUNTERSPY After Moll met with witnesses over dinner at his home, the Maris legal team sent a private investigator to conduct surveillance on the defense lawyers’ offices. What apparently prompted this was that the plaintiff’s attorneys thought they had spotted a defense witness, who was scheduled to be cross-examined the following morning, visiting the defense lawyers’ offices, Bernstein reported. The morning after spotting the defense witness, McClellan informed Judge Green that that witness and a second defense witness had visited the defense lawyers’ offices for more than four hours. “We have it under surveillance,” he told the judge. But Bernstein found no improper conduct on the part of the defense attorneys in this instance. He determined that the witness who was scheduled to testify had stopped by the law offices for a few minutes, then met the second witness, a personal friend, at a nearby bar, where they spent the next few hours. “Mr. McClellan appears to have misrepresented the facts … for the purpose of demonizing the actions of opposing counsel,” Bernstein wrote. He recommended that the Bar determine whether McClellan violated rules governing attorney conduct. After McClellan told Judge Green about the surveillance of the defense team, the Maris lawyers accused the Anheuser-Busch legal team of conducting counter-surveillance. The defense team acknowledged doing so, but only for the purposes of determining whether the Maris team was watching them. It was this sort of scheming that led Bernstein to criticize the “paranoia” on both sides. Bernstein found no basis for another allegation against the defense lawyers. After Gary, who is black, joined the Maris legal team, the plaintiff’s team accused Anheuser-Busch of inviting blacks to observe the trial in an effort to influence black jurors. Bernstein concluded that the accusation was groundless. LOW POINT The trial may have reached a nadir when Porter, the same clerk who followed the defense witness into the men’s room, let out a whistle after a defense witness testified about how much he billed for his professional services. “The whistle was perceived to be an improper and disruptive comment on the amount of … compensation,” Bernstein wrote in his report. Porter was briefly expelled from the courtroom but was allowed to return and sat at counsel table for the rest of the day, Bernstein noted. Gary told the judge that he would discipline Porter. Bernstein held Gary blameless for the whistle, but recommended that Porter be required to report the incident when he applied to the Florida Bar to practice law. In reviewing the case, Bernstein said he found many instances of unprofessional conduct. “The magnitude of this case,” he wrote, “appears to have generated an arrogant attitude on the part of counsel toward conducting themselves in a manner compatible with the administration of justice.”

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