Posted Dec 01, 2007 04:26 pm CST
FIEGER VS. U.S.
The headline in huge type stripped across the top of Page One of the Detroit Free Press in late August was wrong: It was the U.S. government that had indicted Geoffrey Fieger, one of the nation’s most successful trial lawyers and ubiquitous talking heads, for violating campaign finance laws.
Presses were replated and the headline reversed, though not before bundles of the early edition were dispatched to the far reaches of Michigan.
The final, technically correct edition read: U.S. VS. FIEGER. But the original version captured the reality of both Fieger’s defense and his style.
Whether in his several successful murder defenses of assisted-suicide practitioner Dr. Jack Kevorkian during the 1990s, his efforts to recapture jury verdicts in the tens of millions that appellate courts have snatched from his grasp or his triumphs over disciplinary actions, Fieger’s primary approach to defense is offense.
And even now, when Fieger faces losing his career—his law license—and his freedom, nothing has changed. In a lengthy motion to dismiss (PDF) filed within days of the indictment, Fieger’s lawyers cast the prosecution as selective and vindictive, linking it to the 2000 presidential election, former White House adviser Karl Rove and a series of such prosecutions against prominent Democrats now drawing scrutiny by Congress.
The Bush administration, he says, was simply looking for a way to get him as part of a corrupt, systematic effort to help Republicans and hurt Democrats. U.S. v. Fieger, No. 2:07-cr-20414 (E.D. Mich.).
A Justice Department spokesman dismisses the criticism as “grandstanding.”
But during an October day of multitasking, Fieger sticks to playing offense. That his indictment was revealed the very day Attorney General Alberto Gonzales submitted his resignation was no coincidence, he asserts: “Something was up. Anybody who knows the news business understands that you don’t announce the indictment of someone like me on a Friday afternoon.”
OFFENSE AS OFFENSE
When he’s not playing offense, he can be simply offensive, as in the schoolyard taunts and insults he heaps on opponents—much like the motormouthed boxer Muhammad Ali, with whom Fieger has compared himself.
As a one-time gubernatorial candidate and featured commentator on a radio talk show, he’s lampooned politicians and ridiculed judges in the most savage terms. When provoked he gets really tough.
Criticized in print by the president of the state bar, Fieger denounced him as an “ass-licking brownnose.” He routinely described Michigan’s Republican governor in equally colorful terms as the progeny of barn animals. He denounced conservatives on the Michigan Court of Appeals as “squirrels, mollusks and lizards” for their seemingly routine rejection of multimillion-dollar jury verdicts he wins in tort claims suits.
But, as did Ali, Fieger also walks the walk.
He is suing Michigan Attorney General Mike Cox for his part in an investigation of Fieger’s $453,686 secret contribution to a 2004 campaign against the re-election of a Michigan Supreme Court justice. An independent counsel found no criminal violations in connection with Fieger’s donation. Fieger v. Cox, No. 05-CV-73891-DT (E.D. Mich. Dec. 8, 2006).
Fieger is also suing that justice, Stephen Markman, and three other members of the state’s high court to keep them from deciding a disciplinary action against him. Fieger v. Ferry, No. 04-60089 (E.D. Mich. Sept. 26, 2007). The case stems from a 1999 appearance on Fieger’s aforementioned radio show, Fieger Time, in which he declaimed “three jackass judges” and likened them to Nazis after they struck down a $15 million medical-malpractice verdict he’d won.
When it comes to Fieger, the justices can also give as good as they get. In his 2002 re-election campaign, for instance, Chief Justice Clifford W. Taylor hammered trial lawyers, noting that “Geoffrey Fieger apparently has $90 million of lawsuit awards pending in the state court of appeals.”
Another justice, Robert P. Young Jr., said in a speech at the Michigan Republican Party convention in 2000 that “Geoffrey Fieger and his trial-lawyer cohorts hate this court.
There’s honor in that.” He’s one of the four Fieger has asked be recused from his discipline case.
The very subject of Fieger even precipitated a nasty public spat among the justices. When Republican Justice Elizabeth A. Weaver agreed that her colleagues had shown “bias and prejudice” against Fieger, Chief Justice Taylor suggested in a draft opinion that Weaver go on a hunger strike, saying it had the “potential for everyone to be a winner.”
The comment was later struck from the opinion, but Justice Weaver posted it on her personal Web site. Grievance Administrator v. Fieger, 729 N.W.2d 451 (2006).
The disciplinary case took another twist—favoring Fieger—in September. A federal judge found the state’s unique ethics rules concerning courtesy and civility are overly broad and thus unconstitutional.
Fieger. Photo by John Sobczak
Despite the volatile vortex around Fieger, the subtext on both sides is nearly always the same: tort reform and his seeming immunity to what it has done to rein in other lawyers.
Since Michigan’s legislature passed waves of sweeping reforms beginning in the early 1990s, the state has been ranked at No. 3 by Forbes magazine for its pro-business climate. And some of Fieger’s staggering successes with juries have evaporated on appeal.
Still, Fieger and his firm collect on a lot more in verdicts and settlements than the appellate losses tallied in newspaper headlines. That does not hold true for some other Michigan lawyers.
“Med-mal and products liability have just about dried up,” says Robert Raitt, president of the Michigan Association for Justice, the trial lawyers’ group. Some small firms on either side of the fence have disbanded; others of significant size have shrunk in recent years, he adds.
Fieger, Fieger, Kenney, Johnson & Giroux is an 18-lawyer litigation machine. Multimillion-dollar verdicts are both expected and the norm. (The other Fieger is Geoffrey’s father, who died in 1988. Jeremiah Kenney was a big-firm defense lawyer who joined Fieger in 1999 and died of cancer in 2005.)
Fieger claims the biggest jury awards ever in Indiana, Ohio, Pennsylvania, South Carolina and West Virginia. He also claims more million-dollar verdicts than any other lawyer.
But the courts are reacting. In October, for instance, the Ohio Supreme Court tossed out a med-mal verdict of $30 million, the state’s largest ever, echoing earlier decisions in Fieger’s home state.
A 2004 Michigan Supreme Court majority opinion rejecting a $21 million jury verdict in a sexual harassment case against DaimlerChrysler seemed to say the problem with Fieger is that he is simply too good.
Said Justice Young, writing for the majority: “Trial counsel engaged in a sustained and deliberate effort to divert the jury’s attention from the facts and the law. … [T]he jury’s verdict unmistakably reflects passion rather than reason and prejudice rather than impartiality.”
Justice Michael F. Cavanaugh, dissenting, said DaimlerChrysler just got outlawyered: “I do not believe that this court should now step in to help defendant correct its errors in judgment.” Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391.
Raitt, the leader of Michigan’s trial lawyers’ bar, says that tort reform has been secured in the courts: “Gov. [John] Engler appointed judges who would make sure it stays that way, and the [U.S.] Chamber of Commerce has poured millions into elections to seal it.”
Fieger’s dealings with Engler went beyond his various taunts. In 1998, riding the fame and notoriety of his work for Kevorkian, Fieger even snared the Democratic nomination for governor and ran an unsuccessful effort to unseat Engler, who is now president of the National Association of Manufacturers.
Fieger got the nomination because of his popularity in Detroit, where he has been successful with big-money verdicts and spectacular, though rare, criminal defense.
Sam Riddle, a prominent black political adviser who ran Fieger’s gubernatorial campaign until they had a loud and public falling out, says grudgingly, “He’s the only white boy who could run a viable campaign for mayor of Detroit right now—he’s beloved in the black community.”
Riddle then polishes the compliment with the back of his hand: “In my own way I love and respect Geoffrey Fieger. But because I kind of understand him, it’s very easy not to like him. The bottom line is none of his checks to me have ever bounced, and he never asked me to hold one.”
Dan Pero, Engler’s former campaign manager and chief of staff, says loyalty to Fieger is only pocket-deep.
“The plaintiff lawyers are concerned because Fieger is the poster boy for all of them and their work,” Pero says.
THE SHARKLESS TANK
Fieger’s newly built office is somewhat like him. It is a lot bigger than most, offers an odd mix of messages, and has the feel of being a work in progress with no particular aim at completion.
There may be a metaphor swimming in the 500-gallon saltwater aquarium. Fieger put some small sharks in it, only to have them eaten by other fish added later.
“There is a hierarchy of fish, and it seems the only fish you can put in now are the meaner ones,” he says matter-of-factly.
Under the brightness of 24 skylights in a multileveled, multiangled ceiling, there are more than a few statues and statuettes of lions on desks and shelves. The firm Web site’s main page, at fiegerlaw.com, has a blend of photos with the mop-topped Fieger and a long-maned lion behind his shoulder. The firm’s entrance is guarded by two large, bronze lion statues that once did the same for the French Embassy in Morocco.
Mementos are scattered around the office in a fashion that would choke an interior decorator. Among numerous items on the floor at the edge of one wall sit a small hubcap and steering wheel from an old VW van—all that is left from the vehicle Dr. Kevorkian used to transport his willingly dying patients.
In the Kevorkian days, Fieger seemed especially capable of self-inflicted damage. In 1999, a federal appeals court upheld Rule 11 sanctions against him for filing 13 complaints in one court on the same day, all seeking an injunction in one of Kevorkian’s cases. He immediately withdrew 12 of them when one was assigned to the judge he preferred.
Now Fieger, who turns 57 this month, has added concerns compared to the freewheeling days of Kevorkian and his bid for governor. Fieger and his wife of 24 years now have three children, all adopted at birth, two of them minorities. They are 6 months, 4 years and 6 years old.
Their photos are sprinkled around his office. He says fatherhood has softened his edges.
Fieger is furious as he shuffles through papers on his desk on a Monday. On the previous Friday, his privilege to work a case as a visiting lawyer was revoked by South Carolina’s chief justice. A copy of his indictment had found its way to the court’s disciplinary arm and, in turn, to Chief Justice Jean Hoefer Toal.
Toal relied on South Carolina Appellate Court Rule 404(e), which says the high court “may, for violations of South Carolina law, the South Carolina Rules of Professional Conduct or orders of the court, withdraw its permission for an attorney to appear pro hac vice.” In the matter of Geoffrey N. Fieger, No. 07-DE-L-1135.
“And I never got notice or a chance to be heard,” complains Fieger, his voice rising in volume and pitch to the point of cracking. “Even the Justice Department says that an indictment is not proof of a crime.”
At issue is retrial of a case in which Fieger won a $30 million verdict for the family of a prominent surgeon who died, allegedly because of negligence, when he underwent surgery. The trial judge ruled the award—all of it compensatory damages—was excessive.
A similar bid to disqualify Fieger in a West Virginia case was unsuccessful. He says the tactic had been a common one over the years. But now, after his indictment, the method and the stakes are different, he says.
“The intent now is to destroy the firm,” he says.
He hears that other lawyers are telling potential clients that Fieger is going to prison and they would do well to take their cases elsewhere, and that the word is out that when Fieger wins, the courts take away the money.
“But that hasn’t trickled down to the people yet,” he says. “One might have thought the two-year investigation and indictment would destroy our practice, but that’s the one area where there has been little to no effect, though I know that was the desired effect: to adversely impact people’s willingness to come to me.”
A number of defense lawyers have willingly come over to the plaintiffs side and joined Fieger. About 20 of them with 10 or more years’ experience have worked at the firm since the late 1990s, according to name partner Ven Johnson, who was the first to do so, in 1995.
As Johnson sees it, who better to take apart a defense than someone experienced at crafting one?
Except for Fieger, trial experience was lacking at the firm in the early 1990s, when his national exposure in the Kevorkian matter brought in hundreds of good cases from around the country.
The boon proved as problematic as it was lucrative. That’s why name partner Robert Giroux left the firm in 1994, only to return in 2001. He was made partner in January.
“Because of Geoff’s notoriety, we had huge cases and we were going around getting our asses kicked a lot of times,” Giroux says of his initial stint. “We were inexperienced and up against the best of the best on the other side.”
Fieger was trying half a dozen big cases a year himself, leaving little of his time for the younger lawyers, Giroux says. So Giroux left, spending seven years with a 75-lawyer defense firm.
Giroux has worked a number of cases with Fieger and, while probably picking up new tricks now and then, still wonders how Fieger does what he does. “I’ll ask myself: ‘How did he just go from yelling at someone in a courthouse hallway a few minutes ago to now charming the jury?’ ”
Giroux says Fieger “is the most fearless person I’ve ever met. He’s afraid of nothing that I know of. And as far as I can tell, it’s not false bravado, not a defense mechanism. It’s genuine.”
At the end of the day, Fieger turns off lights in various offices and rooms as he walks along the hallways to leave, grumbling at the costly inattention of others.
On walls throughout the building are many photos and drawings of John Lennon, as well as some of the other Beatles. And noticeably there is photo after photo, drawing after drawing, painting after painting, editorial cartoon after editorial cartoon of Fieger. He’s the show and the meal ticket for the 60 staffers and lawyers—and their families—and they all know it and enjoy it.
“I have 200 people that I care for who depend on me,” he says. “The effect of convicting me would be greater than simply putting me in prison.”
FEW QUIET MOMENTS
Fieger plays his car stereo loud, maybe up all the way—at the moment, John Lennon in his post-Beatle, social-politics stage. Fieger worked for a record producer and as a roadie in England after dropping out of college in 1970—traveling with various artists, including the psychedelic-funk musician Arthur Brown. (Best remembered for the opening line in one song: “I am the god of hellfire.”)
The odyssey seems appropriate for this son of the late Bernard Fieger, a New Yorker and Jewish civil rights activist turned labor lawyer, and the late June Oberer Fieger, a Norwegian-American educator and teachers’ union organizer.
Fieger’s music contacts in London came through his brother, Doug, who went on to become the lead singer and songwriter for the Knack, best known for the 1979 hit “My Sharona.”
When a tour passed through Jamaica, Fieger stayed and lived in a two-bedroom place on some rocks jutting out from the beach at Negril, long before that area was developed. He paid $12 a month; that included running water and no electricity.
He now owns two hotels there, as well as homes on Anguilla in the British West Indies and in Sedona, Ariz.
Once at home in Michigan’s woodsy, well-appointed Bloomfield Hills section, just across the lane from where Mitt Romney grew up, Fieger changes out of the dark blue suit and crisp white shirt with Geoff sewn in cursive on the cuff.
He puts on jeans and a light-blue, small-V-necked T-shirt, then drives his wife, Keenie, and a couple of guests a quarter-mile up the road to another home for the annual, unofficial homeowners’ association meeting. He hasn’t missed one in 10 years. There are about 20 folks there—the usual number, mostly older, eschewing jeans and T-shirts.
One neighbor, former General Motors chairman Roger Smith (the one hounded on film by provocateur Michael Moore), is not there. “I’ve only seen him at one of these,” Fieger says as he sips chardonnay. “It was at my house two years ago. A hundred of them showed up—more than I’ve ever seen. They all wanted an up-close look at the Democrat in their midst.”
Fieger saw Smith just a few weeks earlier, he says. The former automaker had come to Fieger’s nearly block-long, 35,000-square-foot law office building in Southfield because it houses a state-of-the-art independent television studio.
“I’m sure he was doing a feed on something concerning the autoworkers’ strike,” says Fieger.
To make his regular appearances on the major television networks, Fieger has only to walk downstairs.
The federal charges against Fieger are almost too mundane: He is charged with using straw donors to give more money than the law allows to the John Edwards 2004 presidential campaign.
In all, $127,000 moved from Fieger firm lawyers, employees and a few family members, as well as from vendors doing business with the firm. The employees subsequently received bonuses that, after taxes, totaled the exact amounts of their contributions.
The limit is $2,000 from individuals or corporations, so the government alleges that the reimbursements are illegal. Since the Edwards campaign knew nothing of the arrangement, Fieger and his partner Johnson were charged with causing it to file false campaign statements with the Federal Election Commission.
Fieger had known for some time what was coming. Shortly before 7 p.m. on Nov. 30, 2005, about 80 federal agents, mostly FBI, raided Fieger’s offices and visited the homes of 32 alleged straw donors. An FBI agent told one law firm employee he had been flown in from Iraq for the job, according to Fieger’s lawyers.
U.S. District Judge Paul Borman questioned the show of force in mid-October, saying he’d never heard of anything like it during his 13 years on the bench.
Borman was considering a discovery request from Fieger’s lawyers, who want documents and depositions from former and current Justice Department employees, to see if the Bush administration orchestrated the Fieger prosecution for political reasons.
The straw-donor law invoked against Fieger has been around, in one form or another, since 1972. In more than three decades there has been but one jury verdict involving the law—an acquittal—though there have been several plea agreements in recent years.
Thus no court has crafted an opinion concerning the law itself, according to some of the few experts in this narrow slice of election law. They say the practice of conduits and reimbursement for campaign contributions is widespread. And, if need be, Fieger and his defense team expect to challenge the stat-ute itself.
Fieger’s defense team points to what it says are other, similar cases. In Wisconsin, a bureaucrat said she was convicted of bribery when she refused to implicate the state’s Democratic governor. Her conviction was subsequently tossed by the 7th U.S. Circuit Court of Appeals at Chicago as “thin” and “preposterous.”
In July, 44 former state attorneys general, including a few Republicans, petitioned the Judiciary committees in both houses of Congress for an investigation into the prosecution and conviction of former Alabama Gov. Donald Siegelman. Siegelman, a Democrat, was convicted of bribery in a case that a GOP operative has sworn was orchestrated by Rove.
“This is nothing more than a bunch of allegations they are throwing against the wall to see if anything sticks,” says Bryan Sierra, a Justice Department spokesman. “There are no supporting facts to make connections or show a conspiracy. This is just grandstanding.”
Although Fieger can take a sack of salt and spin it into cotton candy for a jury, he doesn’t plan to represent himself. For that he’s chosen Gerry Spence, the one living lawyer he idolizes other than himself.
The 78-year-old Spence says the case offers something new to him: representing and defending a fellow top-gun trial lawyer, one who will need to sit on his hands and bite his tongue.
“That’s a huge challenge in this case,” Spence says.
Some predict this could be the storied Spence’s last, biggest case. The government, by the indictment’s implication, predicts it will be a finale for Fieger, too.
“I’m going to put them on trial,” says Fieger. “I don’t relish the opportunity of putting my life on the line, but sometimes people have to do that, I guess. It doesn’t mean I’m not frightened.”
Geoffrey Fieger’s straw-donor indictment (PDF)
Geoffrey Fieger’s motion to dismiss (PDF) the indictment
Gerry Spence’s response (PDF) to the indictment