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Plaintiff's Lawyer as Hero:


A Review of Adam Penenberg's Tragic Indifference

By MATT HERRINGTON


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Friday, Oct. 10, 2003

Adam Penenberg, Tragic Indifference: One Man's Battle with the Auto Industry Over the Dangers of SUVs (HarperBusiness 2003)

Successful trial advocacy requires no small measure of theater. Whether understated or flamboyant, every trial lawyer has a thespian side. Successful plaintiff's lawyers, in particular, are wizards at striking the pose of selfless avenger.

Adam Penenberg's Tragic Indifference: One Man's Battle with the Auto Industry Over the Dangers of SUVs presents a portrait of a very successful, spellbinding trial lawyer. Unfortunately, however, you are better off seeing the magic in person - in a courtroom near you.

A Great Topic, But a Deeply Flawed Presentation of It

Tragic Indifference has a great topic: the Ford Explorer/Firestone tread separation imbroglio. It also provides an interesting view of the interrelationships between the plaintiffs' bar, the expert and consumer advocacy industries, and corporate America.

This was a multi-front war fought out in the courts, in Congressional hearings, and in the media. And the fight was not simply between plaintiffs and defendants; it also featured an initially cold (but later blazingly hot) war between Ford and Firestone in all three forums. There is some interesting inside baseball here for the crisis management jock here, though much of it has also been chronicled elsewhere. And there is no shortage of heartbreaking stories of car accidents.

The problem with Tragic Indifference, though, is that it is so painfully, almost comically, one sided. The result, for me, was that I felt the author had blown his credibility with me before I was even halfway through the book.

A Dramatically One-Sided Portrayal of Key Characters

Consider, for example, Penenberg's description of Tab Turner, the trail lawyer who is the "One Man" referenced in the subtitle. Penenberg writers, "Those who knew Turner thought him 'brilliant,' 'driven,' fiercely independent, 'a lone wolf,' 'a pit bull' . . . . He was not worldly and couldn't care less about social standing, preferring tangy barbecue to French foie gras . . . ."

Saints have received less uniformly glowing praise. And it's not just reserved for Turner; it also applies to all who side with him. For instance, a former Firestone employee who testified for the plaintiffs is "as earnest and true blue as they come in an industry rank with the odor of burnt rubber." Give me a break.

Meanwhile, Penenberg paints his bad guys in tones as dark as his heroes' pastels are light. Jacques Nasser, the CEO of Ford - why, dear reader, he was not a lone wolf at all! He was a "'one-man guillotine' in a splashy Saville Row suit." Nasser had "some 16 managers reporting directly to him, as if he were supreme royalty surrounded by dukes." No doubt Nasser also prefers pate to pulled pork.

Even Unethical Behavior Is Lauded if the "Good Guys" Do It

This is more than a problem of language: Even bad behavior, if it helps the plaintiffs, is depicted as heroism.

For example, Penenberg describes how two experts who make their livings as critics of the auto industry obtained a purportedly "suppressed" National Highway Traffic Safety Administration study of uncertain provenance; they believe the study contradicted NHTSA's public statements.

But they got the study "through the mail" - it was not an official document, it had no provenance - it was not, and here is the key point, admissible evidence. This technicality is resolved through trickery that is at least unethical, and likely illegal too. Penenberg reports that one of the experts "stashed the analysis in one of the [NHTSA] dockets concerning rollovers and then went off for lunch. When he returned, [he] informed a clerk he needed a certified copy of the report, and described where to find it. A couple hours later [he] got it back complete with NHTSA's official seal and tied with a blue ribbon."

That's not a cute story. Not even close. It's a story of an ethical violation, a lie to the government, and a confidentiality breach.

A Federal Judge's Reasonable Evidence Ruling Is Wrongly Critiqued

Conversely, if anyone who helps the plaintiffs is a hero then - according to Penenberg's perspective - anyone who raises any obstacle to their quest for justice must be evil. For instance, Penenberg skewers a respected federal judge who excluded the testimony of a tire expert named Rex Grogan. Penenberg notes that Rex Grogan's book, The Tire Investigator's Guide to Tire Failures, is "a reference work used by [the expert's] peers worldwide."

So was the judge foolish or wrong to exclude Grogan's testimony, as Penenberg implies? Not necessarily. A number of other courts have done the same. There are published opinions that raise serious questions about Grogan's methods.

I was looking forward to this book and expected better. Penenberg has enjoyed considerable success as a journalist. But this book is so slanted that it will not have any enduring relevance.

The original title for this book was "Blood Highways." Perhaps the editors should have stuck with it. It is no more cartoonish than what the reader will find between the covers. Penenberg plainly has the talent to do better. Hopefully, in the future he will.


Matthew Herrington practices law in Washington, D.C. His email address is mherrington@wc.com.

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