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Shortly after DeHerrera filed the lawsuit, Hall says, he was warned about her attorney. "I was told I should settle this case because David Smith would drive me crazy with paper," Hall says. "He would drive me bananas."
Which is exactly what happened. Though by Hall's estimation DeHerrera stood to gain only about $8,000 if she won the suit, Smith quickly announced his intention to depose more than two dozen people during pretrial discovery. After a single deposition dragged on for almost three days, Hall petitioned the court for relief, and the case degenerated into a long, drawn-out imbroglio. Hall complained to the court of "harassment" by Smith. Smith moved for sanctions against Hall, which Magistrate Abram denied. Smith petitioned Judge Babcock to reconsider Abram's denial; Babcock refused. Then, more than six months into the case, Smith moved to add sixteen new defendants to the suit, most of them water board commissioners or department employees. Hall called that motion "an insult to the practice of law."
After Abram quashed a Smith subpoena of EEOC personnel involved in the case, Smith filed another motion in court calling Abram's ruling "arbitrary," "capricious" and "an abuse of discretion." Later he submitted to the court a list of some forty witnesses for the upcoming trial, a number Hall says is "unheard of" in a garden-variety case like DeHerrera's. After more than a year of bickering back and forth, Hall says, the case had already consumed hundreds of hours of his time. He finally asked Judge Babcock to sanction Smith; fed up with Smith's behavior, Babcock complied. Ruling that Smith had "bounded across the line between zealous advocacy and vexatious conduct," the judge slapped the attorney with a fine of almost $10,000. (Like other judges contacted for this article, Babcock declined comment.)
Smith makes no apologies for his tactics. Winning a discrimination case requires proving intent by the employer, and that, he says, means lots of document requests, depositions and other aggressive pretrial discovery. "I am litigating what is in someone else's mind," Smith says. "I need smoking-gun documents and I ask for them. If that's `Rambo litigation tactics,' so be it."
But Hall says Smith's gung-ho style was unfair--not only to the water board but to Smith's own client. Today, more than three years after it was first filed, DeHerrera's suit is not even close to trial.
"The most discouraging aspect of this case was the delay experienced by the plaintiff," Hall says. "Even though I represented the defense, I feel that parties have a right to their day in court. [Smith's] actions significantly delayed the exercise of that right."
DeHerrera could not be reached for comment.
"I was the first person in my family ever to go to college," David Smith says. A trim man with a ruddy face, gold-rimmed glasses and a tense, gap-toothed grin, he is sitting in a swivel chair in his downtown law office, boxes of legal papers around him on the floor. He has lived in Denver for more than fifteen years, but his accent is still barbed with a Texas twang.
Smith speaks briefly of a childhood in poverty, growing up in a one-room shack on a single acre of cleared land outside Fort Worth. In the early years there was no running water; going to the bathroom meant a trip to the outhouse. His father, he says, was a carpenter with a nasty tendency to come home drunk and wallop his wife and children.
"He was pretty transient in his labor patterns," Smith says, "and practiced varying degrees of violence on my mother and myself." His mother, however, "was very caring and provided humanity to my upbringing." Smith describes his parents' divorce, which occurred when he was eight years old, as "an incredible freeing experience."
Smith graduated at the top of his high school class and won a scholarship to Texas Christian University. Drafted into the Army during the Vietnam War, he was discharged before seeing any action because of a shoulder injury he suffered moving furniture during basic training. But his military service qualified him for a veteran's scholarship to the Southern Methodist University law school. In 1972 he graduated in the top 10 percent of his class and went on to earn a master's in law at Harvard University. Along the way he married M. Julia Hook, an environmental lawyer who now works in the Denver office of Ballard, Spahr, Andrews & Ingersoll.
"David is the most principled person I have ever known," says Hook. "And I mean that as a compliment. David would not have stood by in Nazi Germany. He is a man with guts."
After a stint working on prisoners' rights cases for the Justice Department in Washington, Smith moved to Denver in the late 1970s. He spent two years as a prosecutor with the Denver District Attorney's office before striking out on his own as a solo practitioner, specializing in discrimination suits. Part of the reason he chose civil-rights law, he says, was his "empathy with economically disadvantaged people who have little or no power." Adds Smith, "I understand the problems of the underdogs very well."