Milwaukee v NL - Not Rhode Island

Attorneys and Wall Street experts who are reading the transcript so far from City of Milwaukee v NL Industries are all saying essentially the same thing: This isn't Rhode Island.  Here's why.

First of all, the judge John Franke is a very different one from Michael Silverstein.  Here's what one attorney not involved with this case shares with us, off-the-record:

"Maybe the most interesting thing about this trial so far is what the judge told the jury they would have to find before NL Industries can be held liable.

"Just before opening statements by the plaintiff and defendant, Judge Franke instructed the jury that it will have to find three things in order to hold NL Industries liable for the alleged public nuisance of lead pigments in paint on walls in Milwaukee. They are

• That a public nuisance exists
• That NL Industries engaged in intentional or negligent tortious conduct for which liability for the alleged public nuisance can be imposed, and
• That NL Industries' tortious conduct was a substantial factor in causing the alleged public nuisance and resulting in injury to the public.

"This is a big difference from Rhode Island.  There, if I remember right, Judge Silverstein instructed the jury that they only had to find that the defendants 'substantially contributed' to the supposed public nuisance, not that had done anything wrong.

"In short, Milwaukee has to prove that NL Industries was guilty, not just that it sold lead pigments.  After this trial, 'NL' might mean 'Not Liable.'"

I have a lot more to say about Judge Franke - all verging on gush - but let's move onto the second way in which this trial differs from RI.

In terms of attorney quality, this time the two sides are more evenly matched.  In interviewing the foreman for the RI jury, it was out there that the plaintiff was "outlawyered" by the defense, particularly the ferocious intellect, passion and energy of John Tarantino, lead attorney for Atlantic-Richfield. 

Here in Milwaukee, as the opening statements show, plaintiff lead attorney Richard Lewis is highly skilled.  Probably this will be the first time this lead paint public nuisance litigation is really argued by two of the best and brightest.  The other attorney, Donald Scott who represents NL Industries, will perform even better than he did in RI because he has a formidable opponent.  Scott is a genius, not only in legal strategy but in trial showmanship. Most of my fellow lead-paint watchers regret we can't afford, either the money or the time, to be onsite at the trial, particularly to observe Scott.  This might be his Denny Crane moment.

The third difference is that we already know from the RI trial how tedious the details of the alleged conspiracy by the former lead paint industry via its trade association Lead Industries Association (LIA) can be.  Moreover, the LIA evidence in RI was so lacking in merit that Judge Silverstein threw out this own charge of conspiracy. 

Unfortunately, for Lewis, he is putting a lot of weight on this conspiracy angle. The weakness of his opening argument, at least as I view it, was his detailed drilling down into the goings-on of the LIA. I glazed over when those old LIA players like Felix Wormser were mentioned.  Yes, conspiracies are titillating.  But this one takes so many effort and so many details to describe that I have a hunch the jury will wonder: Much ado about perhaps nothing.

There's tons more to come on this.  The transcript of the first day of the trial - ranging from the judge's discussion with the jurors to the opening arguments - is a gold mine of information.  You can order it from Gramann Reporting, Ltd at 414-272-7878.  If you don't need it right away, it will only cost you about $2.25 per page.