Trial lawyer Russ M. Herman battles pharmaceutical companies and Big Tobacco
Published in 2012 Louisiana Super Lawyers magazine
on December 23, 2011
Updated on January 4, 2012
On Jan. 7, 1973, 23-year-old former Black Panther Mark Essex entered a Howard Johnson hotel in downtown New Orleans, where he threw firecrackers, set fires and shot a .44-caliber Magnum rifle, killing seven people in a 10-hour siege before being slain by police sharpshooters. Among the victims were three police officers and a pair of young newlyweds from Virginia.
In the aftermath of the tragedy, the newlywed couple’s family wanted to file suit against Howard Johnson International Inc., arguing that the hotel’s negligence allowed the tragedy to happen. No law firm in the city would take the case—it was considered a sure loss—until an attorney for the family reached Russ M. Herman, an ambitious young lawyer who was working for his father.
“I went in to see my father and said I wanted the case because it was outrageous,” Herman recalls. “My dad said, ‘Well, go for it. It’s going to be expensive and if you lose, they’ll say nobody could have won the case. But if you win, it will be a career launcher for you.’”
Herman won, proving that there had been murders, rapes and break-ins not just at the New Orleans hotel, but at hotels throughout the chain. The victory launched a more-than-40-year career that has made Herman one of America’s leading trial lawyers. In 2010, the senior partner at Herman, Herman, Katz & Cotlar was inducted into the American Trial Lawyer Hall of Fame.
“Russ is one of the most gifted advocates in the country, and I’ve seen a lot of good ones,” says James B. Irwin, a pharmaceutical liability attorney with Irwin Fritchie Urquhart & Moore in New Orleans. “His speaking abilities have panache and maybe even some swagger. I can’t imagine anybody trying to mimic him.”
Herman, 69, is a Crescent City original who never misses a Saints game, has never missed a Jazz Fest and probably never missed an opportunity to address a guest as “dahlin’.” He is a silver-haired teddy bear of a man, a proud father of three who is just as apt to quote Cicero as he is to list the virtues of his hometown: the food, the people, the history, the music—all of it.
He also has a firm sense of mission, having caught the “law virus” from his family. “My dad got a scholarship to Loyola [University] and then one to Tulane Law School,” Herman says. “My uncle also went to law school. They had nine children between them and eight of us became lawyers. Four of us married lawyers. Eventually, we got more Tulane and Loyola law graduates combined than really any other family in the city.”
Herman developed a healthy sense of justice as a child. He remembers how his father used to corral him and his four siblings on Sunday mornings so he could read them the Prince Valiant comic strip. “And then we would listen to all these radio shows in the kitchen: Green Hornet, Superman, The Lone Ranger,” Herman recalls. “All of these people were fighting for good against bad. So I wanted to be a knight of the Round Table. Growing up, there was always this idea that it was OK to do the things that people say are impossible dreams. As long as you are on the side of what you believe is righteousness, then that’s a powerful weapon.”
Herman graduated from Tulane University Law School in 1966 and went to work for his father’s law firm, where his starting salary was $300 a month. One of his first cases involved several historic properties in the French Quarter that were damaged during the construction of a new hotel.
“My dad and uncle told me I had to go do it, that it was a great case and that I’d learn a lot,” Herman says. “The best lawyers in the city on construction law defended the case for the contractors, engineers and the owners. Lloyd’s of London was the insurer. There were great lawyers on my side. I ended up being selected to try the case for nine weeks by the other lawyers. I built a model of the site and invented a form of damage called ‘loss of antiquity.’ I said these buildings could never be restored as historical monuments because parts of them would have to be replaced; therefore, their antiquity value would be diminished. It was successful, and Lloyd’s came in and dumped a lot of money on the table.”
Herman wasn’t daunted by his first taste of the courtroom, and he still relishes the battle.
“My view? Send the best you’ve got,” he says. “I may not be able to out-think them, but I will beat them to death. I’m going to out-prepare and outwork them. I’m very creative, but I play by the book. If you’re motivated by success, doing what you think is righteous, then you are unstoppable.”
“When you’re advocating against Russ, you can be sure he will work at the highest professional and ethical level,” says Irwin. “If his opponents fail to rise to that level, then they’re going to go down in flames.”
Part of being righteous is looking after your employees. When Hurricane Katrina hit New Orleans in 2005, Herman moved every family affiliated with the firm out of the city to offices in Atlanta, Houston and Destin, Fla. “We moved everybody back to New Orleans by December,” he says. “They never lost a paycheck. They never had to pay a moving expense. We lost one employee because she fell in love with a guy in Houston and married, but we were happy for her.”
Herman stays busy, whether he’s teaching communications skills to other attorneys, writing articles, papers and books or serving on various boards in the city. Furthermore, his firm is special counsel to the New Orleans City Council.
Herman is no stranger to taking on giants. In 1993, he and his brother Maury were tasked with battling tobacco companies on behalf of Louisiana and California. At the time their mother, a longtime smoker, was dying.
“She was on a breathing machine and her lungs were completely worn out,” Herman says. “She was a brilliant woman—a songwriter, composer and teacher—and she could hardly talk. When we told her that we were going after Big Tobacco and no one had won and it was a big expense, she said, ‘Go get those bastards.’ I still think about my mother and I still think about that day, and I don’t think we could have won that case if it hadn’t been for her.”
The case eventually resulted in a $268 billion settlement, and another class action he pursued against Big Tobacco confirmed a jury verdict in 2011 for $300 million, including interest. Part of Herman’s success in these cases, Irwin says, is his ability to appeal to a jury’s humanity.
“I read his opening statement to the jury in one of the tobacco cases,” Irwin says. “In it, Russ tried to explain to the jury how it would feel to have emphysema after many years of smoking. He took a thin coffee straw and breathed through it, and then he passed more straws around to the jury and asked them to breathe through it too. Russ is the kind of person who can manage to do that without offending people or seeming petty. A lot of lawyers could not do that.”
A lot of lawyers also could not help manage the efforts of 1,000 law firms on 60,000 lawsuits in a multidistrict case, as Herman did in 2003—he served as the liaison counsel for the effort’s executive committee—when he represented patients against Merck & Co. Inc.’s arthritis and pain relief drug, Vioxx, which allegedly caused strokes and heart attacks.
“I hadn’t known him at all before the litigation,” says Douglas Marvin, a partner at Williams & Connolly, which represented Merck. “At the outset I was a bit quizzical because Russ went to each of the [multidistrict litigation] conferences armed with a quote from a Greek or Roman scholar that he would start with in his presentation to the court. He would then address the issues and he was very tough.”
As time went on, Marvin says that he and Herman realized that it was in everyone’s interest to collaborate on a solution.
“I came to develop a great deal of trust in Russ, because I saw that when Russ gave his word, he would honor it,” Marvin says. “He also realized that patience was an attribute in reaching a solution that was the right solution. At the time of the settlement in November 2007, The New York Times and [The] Wall Street Journal both had articles about it and said that it was a model for the future in mass torts. Russ was instrumental in that and most people thought it was a fair and just resolution.”
The Merck matter kept Herman in the office for many late nights. How does he balance work with the demands of family life?
“I spent as much quality time with my children as I could when they were growing up,” Herman says. “I went to all their ballgames and coached. We were in Destin together two or three weeks a year. I taught them how to fish, and every holiday we had a barbecue in the backyard and invited all of their friends. You never can spend enough time with your family and that’s probably the one regret I have. But Socrates said the unexamined life is not worth living.
“My life? It’s an open book.”