MAY 25, 2024 – (Cont.) In the morning of May 25, Dan and I found our way to the Dalkon Shield Settlement Claims Administration facility occupying a full city block in downtown Richmond. On hand to greet us was Mike Sheppard. I remember him well even without the aid of my journal. He engaged with us enthusiastically and exuded intelligence and competence and well-deserved pride as he led us on a tour of the facility that Judge Mehrige had anointed him to manage. If we were to succeed in our plan to buy the facility, I knew that its commercial success would depend on our retaining Mike Sheppard as master of the works.
As I read my journal entry describing our encounter with Mike, I wish I’d inquired further about his . . . war stories:
Mike was telling us a Vietnam story (how after having capture a Viet Cong on the Ho Chi Minh Trail, Mike was introduced to General Abrahms for special treatment. Mike asked the general about General Patton, and in response the general closed the door and told war stories for close to an hour.
I know that at the time I was curious—about Mike’s own war stories, as well as what the American commanding general in Vietnam had had to say (for an hour behind closed doors) about the legendary general of the American Third Army in Europe World War II. Unfortunately, the press of immediate business didn’t allow me to spend the rest of the afternoon listening to fascinating oral histories.
After the tour, Mike drove us the short distance to the courthouse for our meeting with Judge Mehrige—the General Patton of American mass tort litigation. As I would later learn, however, long before the Dalkon Shield case, which came after Judge Mehrige, an LBJ appointee, had reached senior status, he’d distinguished himself in presiding over many landmark cases: in the desegregation of Virginia public schools; the admission of women to the University of Virginia; by authoring the opinion of a three-judge panel denying the appeals of G. Gordon Liddy, Bernard Barker, and Eugenio Martinez in the Daniel Ellsberg office break-in case; and presiding over the 1979 Greensboro Massacre murder trials of members of the KKK and American Nazi Party[1]. Among all federal jurists, Judge Merhige had one of the lowest rates of reversal on appeal.
But 20 years ago today when Mike Sheppard shepherded us to Judge Mehrige’s chambers, I was ignorant of the Judge’s record. All I knew about him was that he was in charge of one of the biggest mass tort cases in history, and that he controlled something that fit squarely into my business plan at the bank.
Of course, I’d been in numerous judicial chambers in state and federal courthouses, but I’d never seen anything that rivaled what I stepped into that morning. Nor had I encountered a judge as magisterial as Judge Merhige—though Minnesota’s own, Judge Miles Lord (I loved his comic book name), was a close runner-up.
My journal captured the essence of the experience, starting with the chambers:
What a venerable place these were! “Chambers” meant just that—several rooms decorated with the mementoes of a 27-year-long judgeship. Photographs of Presidents, personally autographed for the judge, certificates of commendation of one sort or another, and various other framed paper, little of which I had a chance to survey, adorned the walls.
The Judge’s staff, though cordial, seemed to walk about with a certain decorum that emanated from the inner sanctum of His Majesty’s Chambre.
After waiting for long enough to drive home the reality of of our inferior status without our crossing the threshold of resentment, we saw the great door open.
At last the Judge made his appearance. In contrast to his titanic and fearsome reputation, he is of slight build and hardly the imposing and intimidating figure I had anticipated. He reminded me of Grandpa Holman. Taking my cue from Mike, the former Green Beret, who has coffee “every morning with the Judge,” I remained standing until His Honor granted magnanimous permission to be seated.
The Judge wasted no time in getting down to brass tacks, and I proceeded to deliver my five-minute pitch. It couldn’t have gone better. What followed was close to a two-hour “conversation” with the Judge, which also went well. I was performing up to my potential for once, when it really counted.
The Judge received our concept well, and I felt a surge of encouragement. It was only last January when I’d been prepared to scrap the project completely. Here I was, a few months later, pitching my idea to the high and mighty Judge Merhige.
The Judge also talked at length about the Dalkon Shield case, though at one point, a pounding noise from his courtroom interrupted his monologue. He invited us to follow him into the courtroom to investigate. There we found two workers, one standing on a step ladder and pounding on the ceiling, while the other guy was watching from below. His Honor lit into them both and threatened them with a contempt order if they didn’t cease and desist. The Judge is my friend, for crying out loud, so how could I think unkind things about him? However, who did he think he was? He didn’t own the building or the courtroom or his own goddamned chambers, for that matter. Nor did he have any legal authority over those poor workmen. The arrogance of power!
Oh well, the meeting went very well for us, and while Mike drove us to the ramp where we’d parked our rental car, he told me what a great job I’d done. He said many people crumble before His Honor. Mike speaks candidly. I felt like a million bucks.
Dan and I were on cloud 90 as we streaked back to Washington. We need not have hurried—weather delays resulted in a late departure.
I was thankful to be safe on the ground again in Minneapolis. Unfortunately, the kids were asleep by the time I arrived home.
So concluded me brush with judicial divinity. In the weeks that followed, I worked tirelessly on the project, but I encountered too many skeptics among my superiors and “deal killers” (members of the law, accounting, and risk management departments) at the bank. It didn’t help that I was perceived as a lawyer first and a business person (without an MBA) second. Nor did it aid my cause that the “venue” for my proposed business plan was . . . class action litigation.
To bank executives, all litigation is anathema, and I simply could not get them to grasp that we would never be a party to litigation. We would merely be a court-appointed neutral administrator of claims and distributor of massive amounts of money (for handsome fee income plus obscene amounts of “float” interest on all the settlement checks we’d be cutting). I’d convinced my boss that the ultimate outcome of my plan was money—not litigation—for the bank, but neither he nor I could get through to the better golfers (and astonishingly rigid thinkers) up the food chain.
Ultimately, I was forced to abandon my efforts and figure out other more conventional ways to “enhance shareholder value”—after first improving the bonuses of my superiors.
Subscribe to this blog and receive notifications of new posts by email.
© 2024 by Eric Nilsson
[1] “MAGA!” or, depending on your party affiliation, “The more things change, the more they remain the same.”
