Q&A With Gary B. Blum
The time and expense of the Rocky Flats case didn’t lead Gary Blum to consider alternative dispute resolution; he was already a proponent
Published in 2010 Colorado Super Lawyers magazine
By Erik Lundegaard on March 11, 2010
Your firm, Silver & DeBoskey, along with several other firms, represented 12,000 to 13,000 plaintiffs in the Rocky Flats case. When did the firm get involved and when did you get involved?
The firm became involved in the summer of 1989. My former partner, Bruce DeBoskey, and current partner, Steve Kelly, had been contacted by a number of people relating to their concerns about the migration of plutonium from the Rocky Flats plant and the June 1989 FBI raid.
There were a couple of issues. One was the request for medical monitoring of the folks living near the plant, [but] eventually that was not allowed by the courts so that didn’t go forward.
The second issue was the nuisance or trespass issue, in which we proved that because of the migration of plutonium from the Rocky Flats plant to the surrounding neighborhoods—because of wind, ground water, fires, or lack of proper scrubbing from the plants—that this migration had an adverse impact on property values.
The defendants were Dow and Rockwell. They ran the plant at different times through contracts with the U.S. Department of Energy (DOE). The only way the DOE could get large companies to run these nuclear facilities was if they, the DOE, fully indemnified the operators against any liability or claims.
And the case began …?
It was filed in 1990 and went to trial in the fall of 2005. It was tried for four months.
When did you get involved?
I came to this firm in 2001 and got deeply involved beginning that fall. I’m the newcomer. I’ve only been involved eight years.
Initially, in 2002 and 2003, how much of a time-suck was the case?
There were times when we were doing depositions and court hearings and motion practice. And there were times when there was a lull and you spent no time on it.
But when it went to trial, I mean, the level of preparation? During trial, depositions were being taken, more discovery was being done, and the defendants were filing motions just about every night. We’d go to trial for most of the day, and then we’d meet at night until people were exhausted. Our lead trial counsel was Merrill Davidoff and Peter Nordberg from the Berger & Montague firm, and Louise Roselle [of Waite, Schneider, Bayless & Chesley].
There’s a fine line in a big trial like this between getting information across to a jury and boring people to death with details. On the one hand you need to get all of these details out to make your record. On the other hand you want the jury to stay with you and understand where you’re going.
You had discussions on this? How much was too much information?
Oh, it was a constant discussion! How to present the information and what form to use and do we call another witness on this topic or have we said enough? You’re constantly wondering: Should we end our case or should we go forward with more information?
There was a great deal of plutonium that was missing or unaccounted for from the plant. We called it MUF—material unaccounted for—and it has a half-life of over 20,000 years. The defendants said, “These are accounting errors. This is bookkeeping. They weren’t as sophisticated in the mid-’50s and ’60s. You’re making a big thing out of this.” And we said, “Are you kidding?”
What did you do when the jury delivered a verdict in your favor?
We hugged, and hugged our clients. And we gathered our stuff to go back to the hotel, which was a block away from the courthouse. We were going to have a drink or two but people were so exhausted they kind of drifted away. But everyone was incredibly happy on our side. We felt vindicated: that a jury could understand what we had said, and what had happened was wrong.
The judgment, which was entered in the summer of 2008, was $926 million plus ongoing interest of $52,000 a day after that. The defendants took this up on appeal, and there have been briefs filed: two sets of briefs on behalf of the defendants, and two sets of briefs filed on behalf of the plaintiffs. We anticipate, or we are hopeful, that oral arguments will be held before the 10th Circuit Court of Appeals sometime in March 2010.
So no money’s been paid out?
Oh, of course not. Not a penny from the DOE. The sad part is that several of our named plaintiffs have died. They came to trial, they’ve lived with this case roughly 20 years or more, and they’re gone.
This seems to be the kind of case, because it was so long and costly for all sides, that would lead someone to consider alternative dispute resolution. How long have you been involved in alternative dispute resolution?
Twenty-five years plus. It’s becoming a larger and larger part of my practice. I hope to do it full-time in the next five years.
Don’t misunderstand me: I love the jury system. I’m a member of a group called the American Board of Trial Advocates, which strongly believes that jury trials are at the heart of our justice system. But I also believe that more and more cases, because of their complexity and their cost to the litigants, need to be resolved [more efficiently], and this is a good way of doing it. In the mediations that I do for lawyers and parties, I’ve been very successful. I probably get 95 percent of my cases resolved.
How does the system work? Do other lawyers come to you?
Yes. You get a reputation for being able to get cases resolved, and for understanding people’s issues. I’m a big believer in allowing people to have their say: to make them feel like they finally have someone who is objective, and who will give them the pros and cons of their case. I’m a big believer in what I call active listening rather than imposing my will.
Has the fact that you’ve practiced on both sides—plaintiff and defense—been helpful in being a mediator?
Absolutely. You know, sometimes there’s a fine line between being objective with your client and championing their cause. I ask the people who work with me to give me detailed, confidential mediation statements. Don’t only point out your strengths, OK? Point out what you think your weaknesses are, and how you, as a lawyer in front of a jury, are going to deal with the weaknesses. The lawyers who come to me and don’t point out their weaknesses, well, it tells me something about them and the fact that they haven’t thought through their case.
What drew you to the law in the first place?
I was in the pre-law club in high school and I always enjoyed helping people. I started off as a public defender and I wanted to help people who didn’t have the money to hire lawyers. What drew me to law, I think, was thinking that the court system, and the jury system, is a great equalizer. That no matter who you were, no matter how much or how little money you had, you could get justice.
Once you started practicing, how did it differ from what you expected?
I don’t know if I had a realistic expectation of what it would be. I knew I wanted to work with a guy by the name of Rollie Rogers, who was the state public defender. I’d heard him speak in high school and I thought his heart was in the right place.
How did it differ? I guess there were times when the system got the best of my clients. And I felt like it wasn’t as fair as I’d hoped. But, you know, you get wrapped up in your client or your client’s version, and who’s to say that I was right or my client was right?
Do you have a role model?
Rollie was a fabulous trial lawyer, a legend. He was really an inspiration to a lot of the younger lawyers that worked with him.
When I went into private practice, I worked with a guy by the name of Joe Jaudon. He’s still practicing. An excellent trial lawyer. An ethical, hard-working, honest person.
Examples of what you learned from each?
From Rollie: Even if a case is difficult, and if the client is someone who, at first blush, most people wouldn’t want to spend time with, they’re entitled by the Constitution to a vigorous, honest defense. And to have someone listen to them and help them under the bounds of the law.
With Joe, what I learned was you’ve got to go into the details. You’ve got to be courteous to the other side but you cannot let them gloss over things; and that hard work, getting to the bottom of issues, looking at records, looking at what people say, can make a huge difference in how a case comes out.
You’ve been practicing for 38 years. What are some of the biggest changes in the practice of law during that time?
Obviously the advent of the computer and the ability of lawyers in a small office to just pump out documents left and right, which is sometimes good but sometimes just clogs the system.
Obviously the tenor between lawyers. Where people used to be able to talk to each other and deal with each other in a somewhat professional and courteous manner, now the pressures, or the perceived pressures on lawyers, make it that they are so unfriendly, and so acrimonious with the other side, that it not only hurts their case but it hurts their clients.
You think the pressures are perceived?
Some pressures are real and some we put on ourselves by thinking more of results than justice. Lawyers have to have meaningful but difficult conversations with clients to help bring them to reality about their arguments and chance of success.
What moment in your career are you most proud of?
The Rocky Flats case—obviously.
I was also involved in a trial with several partners representing a fellow who was falsely accused of rape. He won the criminal case, and we sued the district attorney, the sheriff, and the woman who brought the charges and won a million-dollar verdict. This was 20-plus years ago in a very conservative jurisdiction with a very conservative judge. I was very proud of that.
And I did a number of cases as a public defender. I was head of the juvenile division for a while. It was good to be part of that system because many of those kids turned their lives around. Every once in a while I’d get a call or a letter from one I’d represented, who said, “You helped me, and I want you to know I’m now a teacher or a this or a that.” You feel like you made a real difference.
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