“Ridin’ the range once more
Totin’ my old .44
Where you sleep out every night
And the only law is right
Back in the saddle again”
“Back in the Saddle Again”
Gene Autry/Ray Whitley
For Fort Worth attorney Steven Lawrence, the “saddle” in Gene Autry’s classic western song was the driver’s seat of a 2004 Chevy Silverado pickup which, in just two years, he drove more than 170,000 miles across about 30 states. Instead of a .44, Lawrence was armed with the modern lawyer’s weapons: a laptop, cellphone, and briefcase.
The attorney, who’s also a skilled poker player, took the marathon trip after making his biggest bet ever on what he calls “probably the case of a career.” He put all his chips on the table—and all his possessions in storage—after carefully studying a 2012 “whistleblower” lawsuit filed against industrial giant Trinity Industries Inc. Dallas-based, 85-year-old Trinity is widely known as one of the world’s largest diversified manufacturers of heavy metal products.
Its subsidiary, Trinity Highway Products LLC, manufactures highway guardrails that are used along roads throughout the country. One of its products was called the ET Plus, a guardrail energy-absorbing “end treatment.” The rails are designed to take a direct hit and curve away from the vehicle. But something has to go on the end of the rail, because, without the end terminal, the rail can turn into something of a spear.
To the layman, or jury member, the main issue in the suit came down to exactly one inch. That one-inch reduction in the steel end—from five inches to four—made the guardrail lighter and cheaper, saving Trinity approximately $2 per rail. Trinity had built a five-inch device, and it tested out just fine. But when it modified the end device by one inch, Lawrence and others claim that the new four-inch design would lock up and impale vehicles to maim or kill their occupants. The modified, four-inch ET Plus end treatment, Lawrence argues, was “just sitting there waiting to kill you.”
Trinity’s chief legal officer and senior vice president, S. Theis Rice, disagrees. “This product is not designed to stop accidents,” he countered. “It is designed to reduce the impact of crashes.”
So now the fight was joined and, instead of signing a new lease for a posh apartment in Austin, where he’d been working for a Dallas law firm, Lawrence realized his real value to the case was deposing experts and talking to victims.
In order to do that, he had to get in his truck and go out and find the facts. He embarked on a fact-finding mission in his Silverado, tearing up the highways, often sleeping in the vehicle and brushing his teeth at gas stations. Some of his friends, he admits, may have thought he was “crazy or half-cocked.”
Meanwhile, Trinity steadfastly maintained that the modification was immaterial or irrelevant to the guardrail’s safety. The Department of Justice declined to intervene in the case—or, as Lawrence puts it, “the government just shrugged its shoulders” at the escalating claims. Rice went so far as to say, “We do not believe this litigation should have [even] made it to trial, because we think it should have been dismissed.”
“From the first day, I knew [Lawrence] was extremely smart.”Walter D. Kelley Jr., Former Federal District Judge in Virginia
All the arguments and legal moves against Trinity came to be considered qui tam actions, in legal parlance. That meant that this would be a whistleblower suit brought under the federal False Claims Act. Under the law, such suits can reward a private individual with part of a judgment or a penalty imposed by the court. The whistleblower in this case was Joshua Harman, a Virginia business owner whose company installed Trinity guardrail systems along state highways.
Basically, the whistleblower status meant that Lawrence’s client, Harman, would be standing in the government’s shoes, but without the government’s muscle or the legions of DOJ attorneys behind him. It was a classic tale of a whale—Trinity employed nearly 25,000 people, and its annual revenue at the time was more than $6 billion—pitted against a minnow.
But no whale ever encountered anything quite like Steven Lawrence.
Nearly a decade before, Lawrence, the only child of a traveling salesman and a school administrator and just two years out of law school, had lost his 55-year-old father to a stroke. The loss rocked and confused the young man, to whom much had seemed to come easy.
He’d been valedictorian of his high school class, Phi Beta Kappa at Virginia Tech, and won a scholarship to the prestigious University of Virginia School of Law, which he eschewed to attend The University of Texas law school, also on a scholarship.
After law school, Lawrence was hired to be a clerk for Walter D. Kelley Jr., a federal district judge in Virginia who eventually became Lawrence’s mentor. “From the first day, I knew he was extremely smart in figuring things out and cutting through the legal mumbo-jumbo,” Kelley says. But he admits at the same time that Lawrence, his first hire, was, well … a little different.
“All I care about is hard work, not when it’s done,” Kelley goes on. “Having said that, I believe you could call Steven a bit nocturnal.” (During the course of researching this story, it wasn’t uncommon to receive texts and emails from Lawrence after 2 in the morning.)
After clerking for Kelley, Lawrence found himself working in Austin for the prominent, Dallas-based law firm McKool Smith in patent litigation. It was at that time that his father—who was also Steven’s “hero” and a long-time minister at a local jail—passed away. What was once robust now was empty. Losing that life anchor was tough. “The hardest thing I ever did was to listen to all the people talk to me about how my dad helped them,” Lawrence says.
It wasn’t much easier carrying on at McKool Smith, but Lawrence had promised the firm that he would finish work on a large and complicated piece of litigation. “I told them that when it was over, I was taking some time off, and it would be for a good while,” he says.
Probably no one figured the time off would last three years. As Lawrence puts it: “People mourn in different ways.”
It was a time for introspection, an opportunity to look at who he really was and consider what he wanted to be. There are many ways to do this—to block out the rest of the world and focus. You can divorce daily vicissitudes by playing poker in Las Vegas for 18 months, say, or spend a year in self-reflective study on the side of a mountain in Thailand.
Lawrence did both.
“I needed to find the facts, even if I didn’t like the facts.”Steven Lawrence, Fort Worth Attorney
At the poker table, good players are both monomaniac and mathematician, with cards and math continually flying across the table; as in fly-fishing or practicing yoga, nothing else should clutter the mind. In Vegas, Lawrence both played with and taught (at $100 per hour) the pros. “It was quite a break from non-stop litigation,” he recalls. “It clears your head.”
With his earlier savings bolstered by his earnings at the Nevada poker tables, Lawrence decided to travel to Thailand and rent a place on a mountainside, where, “at night, the only lights you could see were the stars and the glow from the temple just on the other side of the mountain.”
By the time he returned to the states and dove into the Harmon case, Lawrence saw the lawsuit “not only as a good one, but a righteous one.” So he embarked on what can only be described as a crusade, climbing into his pickup and pushing across America. He took depositions, questioned experts, and probed the smallest guardrail bolts and nuts.
It was a race against time. He learned to shower at the major truck stops, because they had “all the hot water, shampoo, and soap you need for just $12.” Some nights he slept at spots that he said looked like the Bates Motel.
The hardest part, he said, was “interviewing the individuals and listening to their stories. I took it deeply personal, and I wasn’t going to let [Trinity] get away with it. My job was to make sure [the lawyers and experts] got unfiltered access to the central facts of the case and, frankly, to the central facts of a public-safety issue. I needed to find the facts, even if I didn’t like the facts.”
A Big Award
One “fact” Lawrence did like was the guardrail story aired by “20/20,” the ABC-TV newsmagazine. It was a long piece that featured graphic 911 calls, and Lawrence analyzing a computer-generated animation of a guardrail penetrating the side of a car and contending, “The guardrail does not have the room like it needs to save a life.”
The lawyers at Trinity were not amused by this, or by other pre-trial publicity. They unsuccessfully argued that the jury pool might be prejudiced by the program and other “highly inflammatory and inadmissible statements and images.”
The trial would begin in Marshall, in East Texas, in July 2014, just three weeks after the DOJ stated that the government had no issues with Trinity, and less than a month after the Federal Highway Administration said the ET Plus would continue to qualify for federal funding.
U.S. District Judge Rodney Gilstrap presided over what he eventually characterized as a carnival, “replete with errors, gamesmanship, and inappropriate conduct.” At the eleventh hour a mistrial was declared, a blow to Lawrence and his pocketbook, as he was now forced to re-prepare for another bare-knuckled trial.
A retrial was set for 90 days later. By now 14 states had suspended new installations of the four-inch end terminals. Yet Trinity still seemed to be scoreboarding the Lawrence team—right up until the company’s writ of mandamus was rejected by the U.S. Court of Appeals for the Fifth Circuit.
A New Trial
Round two came just four days after that. In October 2014, a new trial started. The bad news for Trinity began with the judge admitting photos and other evidence that had been deemed prejudicial, and thus not admissible, during the first trial. Before the verdict came down, a lawyer for Trinity told reporters that the company had a “lot of bad facts.”
Lawrence‘s primary role was to work with expert witnesses and prepare exhibits and presentations, often working into the early-morning hours poring over evidence and other exhibits proposed for trial the next day.
This time, after five days, the jury returned with a verdict against Trinity. And after Judge Gilstrap was finished doing his treble damages and other math, the awards came to more than $680 million—the biggest in the 155-year history of the False Claims Act.
In effect, the jury found that Trinity had failed to inform federal officials that it had modified its guardrail system, while it continued to promote the product as approved by the Federal Highway Administration.
With the adverse verdict, Trinity stock shares plunged more than 10 percent. Some shareholders sued the company. Yet the Trinity legal team was unwavering and, as a company spokesperson put it at the time, believed that “the decision cannot and will not withstand legal scrutiny.” The spokesperson added that Trinity strongly believed “the courts will affirm its position.”
Many thought the huge sum was just the beginning of Trinity’s woes. Personal-injury lawyers now had a playbook. Lawrence and his former mentor Kelley, who’d left the bench by then to practice law, decided to work together to represent the victims of the “defective” guardrails.
But not all was good news for Lawrence and the other attorneys who might take on Trinity. Rice, the chief legal officer, and Trinity partnered with a number of lawyers nationwide, with Rice arguing, “We decided it would be in the best interest of the company to fight and not settle.”
And, fight they did. Lifted by an appellate dream team consisting of law firms Gibson Dunn, Haynes and Boone, and Akin Gump Strauss Hauer & Feld, Trinity won a victory last September, when the Fifth Circuit court in New Orleans voted 3-0 to overturn the lower court ruling. Kelley, who had kept abreast of the oral arguments, called the decision “a stunning surprise.”
Right now, Lawrence says his best-case scenario is for the U.S. Supreme Court to reverse the Fifth Circuit and let the case continue in some fashion. “The worst,” he says, “is that they don’t hear it, and companies will be able to get away with fraud as long as they can convince a few key bureaucrats not to act.”
Jeff Eller, a spokesman for Trinity, tells D CEO, “We are simply not commenting on the appellate process.”
While admitting that the Supreme Court hearing and chances of reversal are slim, Kelley says that, “if the reversal stands, it will gut the False Claims Act.”
No matter what the courts ultimately decide, Lawrence and Kelley feel positive, because they’re responsible for at least one important outcome: end-terminal products that don’t meet more up-to-date criteria, including the ET Plus, will no longer be funded by the feds.
Lawrence, who’s now 39, continues to work on the product liability cases. And, going forward, he insists he would once again put his chips all in “to make a difference,” and he hopes another major project will come along for him to “put my heart and energy into.” But would he be prepared to go whole-hog: rev up the old Chevy truck and shower at the Flying J again?
“Yes,” he replies. “If the situation demanded that kind of effort, I would do it.”
Because then, he’d be back in the saddle again.