This is the first of three stories about the grass seed field-burning battle in North Idaho.

Written by: Karen Dorn Steele, The Spokesman Review

Steve Berman's favorite cases are causes, with human victims and corporate Goliaths.

"I enjoy playing David," says the 48-year-old Seattle trial lawyer known for his bare-knuckles style and big legal victories.

Berman has recently taken on Idaho and its powerful farm lobby in a major battle over the health risks of field burning, the annual practice that started again last week.

He's representing thousands of smoke-afflicted people from Spokane to North Idaho in a class-action lawsuit against 70 Idaho bluegrass growers.

In April, he filed a lawsuit seeking as much as $100 million in damages from Idaho - one day after the Legislature agreed to shield the growers from future lawsuits over smoky skies.

He's also challenging the constitutionality of the farmer immunity law.

Berman has a reputation as a "very fine, very powerful adversary," said Darrell Scott, a Spokane trial lawyer who has closely followed the field-burning case.

Most law firms in the Spokane area wouldn't have taken on the $125 million grass seed industry, Scott said.

"Lawyers weren't stumbling over themselves to take this case. It's highly risky, and it takes both courage and ingenuity. He's demonstrated both of those," Scott said.

Berman hasn't proved that field smoke causes injury, a Washington, D.C., attorney for the grass growers said.

"His advocacy and exuberance speaks for itself, but the facts in this case don't support his views," Stewart Fried said.

Berman has been on the corporate defense side only once in his career. He was retained by Microsoft to help negotiate the company's 2001 antitrust settlement.

After a string of ground-breaking cases over two decades, Berman has become wealthy, but his associates say he's not ostentatious. He's married to a former Microsoft executive and has three children, including a 2-year-old. He coaches his older kids' sports teams. He's a triathlete known for his competitiveness inside and outside the courtroom.

He also has enemies.

For years, Berman aggressively pursued shareholder cases against big companies, including Microsoft, U.S. West, Egghead Software and Nordstrom.

Most settled for millions of dollars before trial. Corporations that were sued said they'd been "Bermanized."

"No one else was doing class actions at the time. They were shocked by it," Berman said.

Many companies are still mad at Berman, Scott said.

"If you use his name in a setting with corporate counsel, you get a very strong reaction," he said.

Some of the invective gets personal.

Berman decided not to participate in the recent Ironman triathlon in Coeur d'Alene after threatening letters about his Idaho field- burning lawsuit were sent to his Seattle home.

"I've gotten some very nasty letters before," he said. "I just keep going."

A victory in Jack in the Box case
Berman grew up in Illinois, where his father ran an insurance company that covered security guards and police officers. He's a University of Michigan graduate.

He didn't pick up his skills as a plaintiff's lawyer at the top- tier University of Chicago Law School, where one of his professors was Antonin Scalia, now a U.S. Supreme Court Justice.

"They look at me with horror. It's a right-wing place," Berman said.

Berman headed to Seattle after law school. He got his first taste for complex cases when he helped represent bondholders in the Washington Public Power Supply System nuclear plant fiasco - the largest bond default in U.S. history. He helped recover $850 million for the bondholders in a 1989 settlement - a record at the time.

In another high-profile case, Berman and other lawyers got the corporate owner of Jack in the Box to pay $12 million to shareholders who had claimed the quality of the chain's fast food was exaggerated in a stock offering before a 1993 outbreak of E. coli.

Three Washington children died and more than 500 others got sick in the outbreak.

When the Seattle firm where Berman was working in 1993 refused to take the Jack in the Box case, Berman and several other partners and associates left to form their own firm, Hagens Berman. He's the managing partner of the firm, with offices in Seattle, Boston, Los Angeles and Phoenix.

In 1996, Washington Attorney General Christine Gregoire chose Berman to represent Washington against Big Tobacco. He also was lead counsel for 12 other states, including Idaho.

Berman was at the bargaining table for the secret settlement talks. The tobacco industry eventually agreed to pay out $368 billion to the 50 states for health-related damages and an anti- smoking campaign. Washington got $4.5 billion over 25 years; Idaho got $712 million.

The tobacco settlement left Berman a wealthy man, although he won't say how wealthy. He may receive $100 million from the tobacco litigation, paid out over many years, according to Washington CEO magazine.

He's using some of his personal wealth to endow a new environmental litigation clinic at the University of Washington Law School. It opens this fall.

His goal: to bring together lawyers and the university's renowned scientists to litigate in the public interest.

Berman's firm collects 20 percent to 33 percent of each settlement, typical for class-action or contingency fee lawsuits where lawyers aren't paid up front. If the cases go to trial, plaintiffs' firms typically collect 40 percent of a verdict.

In 2001, he reached a $92 million settlement with Boeing over a lawsuit charging the company concealed production problems until after its 1997 merger with McDonnell Douglas.

Enron, Gold Train
Recently, he was chosen co-lead counsel for 21,000 current and former Enron Corp. workers whose pensions vanished when the big Texas energy company collapsed into bankruptcy. The case is scheduled for trial in October 2005.

Berman also has taken on many international cases.

He's seeking restitution for property confiscated in May 1945 by the U.S. military on the so-called Gold Train - 40 train cars loaded with treasures the Nazis looted from Hungarian Jews during World War II.

U.S. generals kept the most valuable pieces for their own offices and homes, and the U.S. government later sold much of the property at auction for refugee relief. Berman wants a group of the original owners who became U.S. citizens to be reimbursed.

He also recently lost a case on appeal that sought reparations for Korean and Chinese nationals forced into slave labor by the Japanese during World War II. He has petitioned the Supreme Court to hear the case.

The international cases "present the same kind of profile as the grass case. You have people who've been victimized, and they need a legal champion," Berman said.

`He's doing this for his heart'
Two Post Falls girls are responsible for Berman's decision to file his Idaho case, Moon v. North Idaho Farmers' Association.

They are 13-year-old Kaley Fowler and 11-year-old Alex Heisel, children with lung disease who suffer when the fields are burned.

"After I met them, there was no way I wasn't going to do this case," Berman said.

"He's doing this for his heart, not his checkbook," said Alex's mother, Trina Heisel of Post Falls.

Idaho was happy to snag Berman in 1997 to handle the state's tobacco lawsuit. He was lauded for his expertise and appointed a special deputy attorney general.

That praise has vanished. In legal papers filed for the Moon lawsuit, the Idaho attorney general's office refers to Berman only as an "out-of-state lawyer."

In a response, Berman replied that he has a vacation home in Hailey, 12 miles south of Sun Valley, where he likes to hike and mountain bike, and he pays Idaho taxes.

Berman is incensed with the Idaho Legislature's response to his field-burning lawsuit.

Only twice in his legal career has the losing side tried to go to a legislature for a political fix, Berman said.

In the Washington Public Power Supply System case, some of the 88 utilities being sued tried to change state securities laws in Olympia in their favor. The effort failed after 60,000 bondholders wrote to protest.

In what Berman and field burning critics see as an end-run around the Moon lawsuit, bluegrass growers and their insurers went to the Idaho Legislature this spring. They persuaded the lawmakers to grant them immunity from future lawsuits if they register their fields and burn legally.

The legislators met behind closed doors with the growers, but refused to meet with him or his clients, Berman said.

"It doesn't say much for democracy in Idaho. I'm not sure in any other state that 80 farmers would get a special interest bill after a trial judge found they're killing and injuring people with their burning," he said.

Last fall, First District Judge John Mitchell of Coeur d'Alene issued an injunction requiring growers to bale their fields and post a $100,000 bond before burning. He referred to two deaths - Marsha Mason of the Rathdrum Prairie and an unnamed second person - and testimony from area doctors that the smoke was harming their patients.

Growers appealed to the Idaho Supreme Court, which ruled that Mitchell overstepped his authority and that field burning can proceed. The court also agreed to rule on Berman's constitutional challenge to the farmer immunity law.

Peter Erbland, an attorney for the grass growers, said Berman is wrong to call the recent immunity bill a ruse to protect a few. The Legislature was trying to balance agriculture and public health interests, Erbland said.

After the Idaho Legislature passed HB 391, Idaho Gov. Dirk Kempthorne signed it into law as an emergency - giving it immediate force of law that covers this year's field burning.

Mark Snider, Kempthorne's press secretary, declined comment on Berman's lawsuit.

"It's pending litigation. It would be inappropriate to discuss it," Snider said.

Berman said he is prepared to take the case to the U.S. Supreme Court if necessary.

"The law is clear in this country that they can't immunize private conduct because it interferes with the right to use your property," he said. "If we do lose, I'm confident the Supreme Court will reverse it.

"But I will have lost because it will mean two more years of burning."

Karen Dorn Steele can be reached at 459-5462 or by e-mail at [email protected].

Copyright (c) 2003 Bell & Howell Information and Learning Company. All rights reserved.