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By Patricia Calhoun
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It's hard to say precisely when things started falling apart for Denver lawyer David L. Smith. A good guess might be mid-July 1992, after he filed a request in federal court to take the deposition of a dead man.
Smith, who was representing plaintiff Geana Dunkin in an employment-discrimination suit against Louisiana-Pacific Corporation, already had a reputation for outrageous behavior in the courtroom. Just two months earlier, U.S. District Judge Lewis T. Babcock had derided him for "obstreperous conduct" in another lawsuit. "You file on everything," Babcock complained. "You file a plethora of pleadings that unduly complicates, delays and magnifies the case...I have watched the paper flow across my desk...and it is disgraceful."
Now, at 10 a.m. on July 16, standing in Room C-203 of the federal courthouse on Stout Street, Smith was in deeper trouble than ever. Judge Edward Nottingham, known for his hot temper, was peering down from the bench, amazed that Smith would defy an order he'd entered seven days before in the Dunkin case. Because of Smith's "persistent course of harassment and discovery abuse," Nottingham had required him to justify all future depositions to a magistrate. But Smith had ignored the ruling. Instead, he'd gone ahead and filed unsubstantiated requests to depose more than thirty people, one of whom, he'd recently been informed, was no longer alive.
"I think you're just trying to harass everybody here," Nottingham fumed. "I think you're trying to harass Louisiana-Pacific, opposing counsel and the court. If every attorney conducted himself in the way that you have conducted yourself here, we'd be bogged down in pettifoggery. Because that's what you've been doing all morning, is pettifogging." To make sure his point got across, Nottingham took the unusual step of fining Smith more than $4,000 for his use of "Rambo litigation tactics."
For Smith, a Harvard Law School graduate and former Denver prosecutor, it's been downhill ever since. He has racked up close to $45,000 in additional fines--none of them yet paid--as well as a host of other rebukes from Denver's most eminent jurists. Judge John P. Moore of the Tenth Circuit Court of Appeals has chastised him for his "relentless aggressiveness" and "marked indifference to or ignorance of the law." Other circuit judges have labeled Smith's appeals "frivolous" and "egregious." Federal Magistrate Donald E. Abram has accused him of "faulty legal reasoning," "attorney insolence" and "disdain with the court's operation." U.S. District Judge Zita Weinshienk has said Smith's conduct "borders on incompetency."
Today Smith says he stands on the brink of financial and professional ruin. He has been suspended from practice before the Tenth Circuit, which encompasses Colorado. He faces imminent suspension in U.S. District Court and the possibility of censure by the Supreme Court of Colorado. Half a dozen formal grievances have been filed against him by other lawyers. According to a recent financial statement, his liabilities exceed his assets by more than $200,000. "You can see what kind of a monolith I'm up against," Smith says. "Every judge over there is against me."
But the 49-year-old lawyer has vowed to take his case all the way to the Supreme Court of the United States. And despite his reputation as a troublemaker, he's getting some distinguished help along the way. The president-elect of the Colorado Bar Association has signed on as his attorney, and the American Civil Liberties Union is voicing its support. Both say Smith's standoff with judges embodies an important principle of due process. Smith, meanwhile, claims the dispute involves nothing less than a sinister scheme to force a strident advocate for civil rights from the legal system.
"Judicial extortion is exactly what we have here," Smith says. "This is a full-blown conspiracy."
All lawyers, before they are allowed to practice in Colorado, take an oath in which they swear "by the Everliving God" to show respect for judges, the courts and each other. They also promise to adhere to the bar's rules of professional conduct, which state that attorneys should eschew "frivolous" claims and avoid "conduct intended to disrupt a tribunal."
There's sound reasoning behind the oath, says University of Denver law professor James E. Wallace. The American legal system is a self-governing one; unless lawyers regulate themselves, the system would devolve into anarchy and chaos. "Lawyers have to play by the rules of the game," says Wallace, who sat on a committee that reviewed the state's current ethics guidelines for the Colorado Supreme Court. Otherwise, he says, "the system would fall apart. It would just collapse of its own weight."
Denver attorney Henry Hall, who authored a statute on frivolous litigation for the Colorado Legislature, agrees. "A lawyer owes a duty to society and to the court that transcends his duty to his client," Hall says. "There is no right, in this day and age, to be a `superadvocate.' You just can't do it. The system can't afford it. There must be reasonable limitations on advocacy.
"David Smith's `crime,'" Hall adds, "is that he violates this principle."
Hall knows Smith well. Formerly an in-house attorney for the Denver Water Department, Hall first started tangling with Smith in 1990, when Smith filed a sex-discrimination suit against the city on behalf of an employee named Kelly J. DeHerrera. DeHerrera, a laborer, utility worker and equipment operator, alleged in the suit that she was passed over for promotions and paid less than her male counterparts solely because of her gender, even though the federal Equal Employment Opportunity Commission had already investigated and found no basis for that claim.
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."
One such underdog is James Edward Qualls, a bus driver fired from his job with the Regional Transportation District in September 1989. According to court records, Qualls was discharged after getting into an altercation with a bus passenger outside the Northglenn Mall. Qualls allegedly brandished a knife and threatened to slice off the man's testicles.
Both the EEOC and a federal labor arbitrator found that Qualls's dismissal was justified, but Qualls remained convinced that he was fired because he is black. He searched the Yellow Pages for an attorney and came across Smith's name. Smith agreed to take his case and in 1992 sued RTD in federal court for racial discrimination.
"His tenacity was what impressed me most," says Qualls. "He's much like me in that respect. If I feel like I'm being wronged by you, I'm going to raise a boatload of hell about it."
As in the Dunkin and DeHerrera cases, however, Smith quickly ran into trouble with the judges assigned to hear the suit. At a hearing in August 1992, Zita Weinshienk chided Smith for failing to read a relevant case she'd cited in an order a few months before. Afterward, she incorporated her criticisms into a judicial order. Instead of apologizing, Smith filed a motion objecting to Weinshienk's "false, defamatory and/or inappropriate comments" and requested they be stricken from the record.
Later, RTD attorney Rolf Asphaug became incensed when Smith failed to show up for a court-ordered deposition in Smith's own offices. Asphaug had spent most of the previous day preparing the witness and going over documents that took up almost six feet of shelf space. Today, Asphaug calls Smith's actions "infuriating."
"I think deep down, the man is sincere," Asphaug says. "I don't get the sense he's out to harm his clients, or anyone else for that matter." But Asphaug was sufficiently disturbed with Smith to ask the court to impose sanctions for canceling the deposition. A magistrate supervising the case complied, saying Smith had "taken attorney congeniality, cooperation and civility to a new low."
Because of Smith's suspension from the Tenth Circuit and other disciplinary problems, Qualls's claim against RTD is now in legal limbo. Still, Qualls says he has no complaints about Smith. "He's pissed a few people off because he won't stand still for them to run roughshod over him," Qualls says. "I'm totally in his corner, as he is in mine."
Other clients appear to share Qualls's faith in Smith. Says John Casillan, whom Smith has represented in another discrimination suit against RTD, "I'm sticking by him now."
Casillan, a former RTD maintenance technician, was fired from his job in 1989 following an incident in which he allegedly tried to run over a co-worker with a golf cart. Casillan claimed he was dismissed because of his national origin, which is Filipino and Hispanic.
Casillan says he asked several attorneys to take his case, but all of them wanted a retainer he couldn't afford. Finally he called on Smith. "He seemed like he was a fighter," Casillan says. "That's what I liked about him."
In December 1991 a judge dismissed the Casillan suit. Smith appealed the dismissal, but the Tenth Circuit denied the motion and, saying the case had been "groundless from the day of filing," fined Smith more than $14,000 to offset RTD's costs in defending itself. RTD, the court said, was "entitled to some form of compensation for having been dragged so pointlessly through the courts."
Smith says the reason his clients remain loyal to him despite his many problems is that he has been willing to risk such sanctions on their behalf. "My clients like me," he says, "because nobody else is going to go out on these limbs for them."
If Smith had simply paid off the fines he has received over the last few years, he would be in much better shape. Instead, he has immediately appealed each of the fines to the federal circuit court, doggedly pursuing a legal strategy that has both infuriated a whole new round of judges and brought the ACLU and the U.S. Supreme Court into the picture.
The problem is that so-called interlocutory appeals are not allowed in the Tenth Circuit. Instead, attorneys must wait until the underlying suit has concluded before asking the appellate court to review fines imposed in the lower court. Smith's appeals, the Tenth Circuit has consistently ruled, are themselves frivolous and deserving of additional sanctions; of his $50,000 in total fines, well over half comes from sanctions imposed by the appellate court. Last November a circuit court panel suspended him until he pays off the fines completely. And in February, as Smith continued to fight the sanctions, the court ordered him to show cause why he should not be held in contempt.
Both the ACLU and Smith's attorney, Phillip Figa, say the court's suspension of Smith is unfair. They note that other circuits around the country--the second, the seventh, the ninth--specifically allow interlocutory appeals. How, then, can they be called "frivolous" by another court?
In March Figa petitioned the U.S. Supreme Court on Smith's behalf, asking the justices to review the issue. Figa, the president-elect of the Colorado bar, argued in his petition that interlocutory appealability is the subject of a "sharp split" among the circuits that only the high court can resolve.
Figa also charged that Smith is caught in an "unconstitutional `Catch-22' dilemma." Smith cannot practice law until he pays the fines, Figa argued to the court, but can't earn money to pay them unless he is allowed to practice.
Though Smith's wife is a partner at Ballard, Spahr--a nationally prominent law firm based in Philadelphia--the couple keep their assets "strictly separate," according to affidavits filed with the U.S. Supreme Court. Julia Hook says Smith has asked her for a loan to pay off the sanctions but says she declined as "a matter of principle" because she believes the fines were "erroneously" ordered by the courts.
"If I thought for a moment they were justified, I would pay them," Hook says. "They are not. I have looked at this closely over a long period of time. With reluctance I have concluded that what's going on here is that the judges in the federal district court have decided to drive David out of practice."
Smith says questions about his assets are at the center of one of the grievances filed against him by another attorney, who has alleged that Smith transferred his ownership interest in his house to his wife last year to escape payment of the sanctions. Smith says that complaint, like the other formal complaints against him, is an attempt to use the bar's grievance machinery to "gain an advantage in the underlying case."
James H. Joy, executive director of the ACLU of Colorado, says Smith should not be penalized merely for appealing his fines. He says the ACLU may enter the fray on Smith's behalf if the Supreme Court agrees to hear Smith's case.
"I have no knowledge or opinion of the original sanctions," Joy says. "But it does seem to me that basic fair play allows you to pursue your appeal if you feel you've been wronged by the lower court. That's the whole basis of our system."
Figa says he has reviewed the case files in Dunkin, DeHerrera and at least two other cases in which Smith has been sanctioned by a judge, and he doesn't believe Smith's behavior was objectionable. "I've found it to be strong advocacy, zealous advocacy--but not disrespectful of the courts," he says. "He's always been respectful and polite and recognizes his place within the system. He's not a wildman."
Figa admits he is "not optimistic" about getting the Supreme Court to take up Smith's appeal. "We're hopeful," he says. "But realistically, the Supreme Court takes a very tiny percentage of the cases brought to its attention."
Smith, meanwhile, remains convinced that there is an "ideological conspiracy" against him at work between corporate defense lawyers and the federal judges in Denver, many of whom, he says, are "to the right of Attila the Hun" and politically hostile to plaintiffs in civil-rights cases.
His downfall, he says, would bode ill for all the other civil-rights lawyers in town. "They have ruined me financially, they have destroyed my reputation and they have knocked out an advocate of civil rights in the federal courts," Smith says. But "I'm pretty stubborn. I will beat my head against the wall on this a little while longer.