A beating, red heart thu-thumped, thu-thumped on the sleeve of the famous lawyer’s beautifully cut jacket. His hands peered forth from within the cuffs, gesturing delicately, and with pale-pawed determination to illustrate the paths his life has taken.
A jealous mistress has ruled many of Russ Herman’s days and graced her fair share of his finest hours. Herman has been utterly complicit in what Justice Joseph Story termed the “long and lavish courtship” required of a lawyer who would seek greatness. He has led the law firm that his father and uncle founded, winning landmark verdicts including a multimillion-dollar case against Big Tobacco, and becoming a legend along the way.
But for Herman, that is the beginning of his measure rather than the sum. Herman’s penchant for quoting Greek and Roman philosophers is legendary in the New Orleans trial bar. When he won a fight to bring litigation over the 2010 BP oil spill back to New Orleans, Reuters penned of a “Shakespeare-quoting father” with a novelist son. He attends Mardi Gras parades, paints, writes, teaches, has explored the Amazon, Machu Picchu, Greece and Rome and studies the great works of philosophers and poets.
If there is a personification of laissez les bon temps rouler, it is Herman, a blessed son of the Big Easy.
Even preparing for what he describes as the last major case he’ll try – while applauding his son’s trial skills and leadership in his firm’s continuing stellar reputation – he is eager to discuss quantum mechanics with his wife Sandra, and write about Native American oratory and rhetoric.
The connection, not precisely an intuitive one, between the seemingly far-flung topics is the concept of change.
Quantum mechanics attempts to explain the fluctuating nature of reality at the subatomic level. So naturally Herman was mulling the 19th century clash between European settlers whose lifestyle was increasingly dominating the North American continent and the Native Americans whose home it had been for centuries.
While the Native Americans cherished tradition, Europeans saw change as a constant, a principle articulated by the Greek philosopher Heraclitus in the 6th century BC and embraced by the Roman emperor and philosopher Marcus Aurelius – whose work Herman quotes as easily and with the same gusto as most of us order our favorite cocktail.
The differing cultures and mindsets fostered a clash of civilizations that, in many ways, determined the course of the fledgling United States.
Exploring that historical detour led Herman to a speech on Native American rights and environmental values attributed to Seattle, the 19th century Suquamish and Duwamish chief for whom the western U.S. city is named.
“For lawyers, if you want to read and know rhetoric, you can’t just stop at Aristotle, at Cicero,” he explains. “Cicero said that reading is the well-spring of perfect eloquence.”
Chief Seattle’s speech, Herman argues, offers valuable instruction in the most visible and least teachable art of the legal profession.
“A lawyer can pick it up and should read it five or six times, master the rhythm, the words used, the metaphor in speaking,” he says. “If you do that, you begin to speak in your arguments and then your openings and closings in a rhythmic, prosaic way, which is much more interesting and much more persuasive.”
While lawyers are taught to communicate with juries in the language they would use with their families at the breakfast table, Herman notes, “you can do that and be eloquent, you know.”
The sentiment is one you might expect from the attorney who in the BP battle to be placed in Federal Court in New Orleans, quoted “Measure for Measure,” William Shakespeare’s play about a duke who disguises himself as a friar to observe a corrupt judge’s governance of the realm in his absence.
If such Renaissance philosophy is all too rare in 21st-century America, it remains inextricably intertwined in New Orleans, the nexus of French, Creole, African American and Anglo American cultures where voodoo lives alongside the French Catholic tradition of Mardi Gras and beignets may be served before or after jambalaya. Or with.
It’s the city where Russ was born to Harry Herman, the attorney who co-founded the family practice in 1942, and his wife, Reba, an educator, songwriter and lifelong smoker who relied on a portable oxygen tank to breathe at the end of her life and encouraged her sons in their legal battle with Big Tobacco.
That fight was one that Russ, his son Steve, and his brother, Maury, would win in 2004, convincing a jury to order tobacco companies to pay $591 million to help Louisiana smokers quit. It’s one of the many cases that earned Russ Herman a spot in the Lawdragon 500 for more than 10 years, making him a Lawdragon Legend and a permanent member of its Hall of Fame.
In 2007, he was Lead Negotiator for Plaintiffs in litigation against Merck & Co. that led to a $4.85 billion settlement over deaths related to the pain medication Vioxx, which the prescription drugmaker pulled from the market.
More recently, he has served as Plaintiffs’ Liaison Counsel in multidistrict litigation over defective Chinese drywall used in repairs after Hurricane Katrina in 2005.
“Such class actions were started because ordinary folks and small businesses couldn’t afford to get lawyers, and major corporations, etc., always had an advantage: They could get as many lawyers as they wanted and pay whatever they liked,” he says. “Today, Congress has diminished the access to the courts for small businesses, poor people, indigents and consumers. That’s an actual, historic fact. You’re not going to turn it back, but that doesn’t mean I like it.”
Multidistrict, class-action litigation with the prospect of awards large enough to change corporate and government behavior offers a remedy to that imbalance, even in an era in which instantaneous communication and access to information have served to entrench opposing positions at least as often as they have leveled the playing field between the powerful and the vulnerable.
The wealth of information via powerful search engines like Google has made instantaneous expertise – or at least its appearance – possible. Yet left people who access those easy answers lacking in the depth of knowledge that once provided perspective and insight on how to use what they know.
“I’m very philosophical, I think, and I don’t believe the ‘plaintiffs lawyers’ and ‘defense lawyers’ in their 30s and 40s understand each others’ roles,” Herman says. “Lawyers on both sides don’t get a chance to think because everybody wants an immediate response. The judges want it, the clients want it, the adversaries want it.”
It’s a different world than the one he entered in 1966, when lawyers did a considerable amount of business on a handshake.
In the Vioxx case, Herman’s eventual settlement – which followed a number of trials and a year of negotiation – was reached when he and defense attorney Douglas Marvin hammered out the details on a napkin at a Washington, D.C., restaurant.
“After all that had come before, he made one call to his client, and I made a call to my group and said, ‘This is the figure,’” Herman recalls. “We never, ever had a cross word.”
Herman misses those days, when plaintiffs’ lawyers who had a problem with the defense team could walk over to their offices and work it out. One where defense lawyers would call Herman and say, “Russ, can we go to lunch?”
Today’s legal processes are driven too much by paperwork and an endless array of emails demanding immediate action, he believes.
“I’ll guarantee you there is not a lawyer who hasn’t received at 6 p.m. on a Friday some document that had to be answered on Monday or Tuesday,” Herman says. “Where it used to be, ‘Listen, I got your brief and it looked pretty good to me, but I’ve got a heck of a response and I’d like at least 10 days.’ And the opposing lawyer would say, ‘Sure.’”
That environment fostered the Vioxx settlement Herman reached with Marvin, who was a wedding guest when Herman married his wife, Sandra Thompson, in 2008, following a courtship he chronicled in “The Topography of Life, Love and Travel,” a book of poetry and reminiscence.
Thompson, a longtime resident of Baton Rouge, was the first Cabinet-level Secretary of Louisiana’s Department of Culture, Recreation and Tourism in the 1970s. She founded and ran her own oilfield services company in the 1980s and returned to state government in the ‘90s to lead the multimillion-dollar Atchafalaya Basin program promoting Louisiana’s swamp wilderness.
After their first date, spent at an Italian restaurant discussing Shakespeare and history, Herman asked her to call when she arrived at her home in Baton Rouge so he’d know she was safe.
“I was tired,” she recalls, “but I picked up the phone and said, ‘I guess I’ll call him.’ And he said, ‘I’m glad you called: I’ve written this poem about you.’”
His words made “Roses are red, violets are blue” those of a schoolchild.
“It was beautiful,” Thompson says. “I’m such a voracious reader and words are so important to me that I felt if I were going to be with someone, I wanted it be someone who had deep and meaningful thoughts. And I felt from that night forward, and I think he did, too, that it was just a matter of time.”
The poetry book wasn’t Herman’s first endeavor in creative writing. In the 1960s and ‘70s, he wrote two plays and a short story adapted for the television series, “Alfred Hitchcock Presents.” He was also executive producer of actor and “Major Dad” star Gerald McRaney’s first movie, “Night of Bloody Horror.”
If it sounds like Herman never slows down, that’s not inaccurate, but he does spend more time doing what he loves in his Penthouse Aerie overlooking Lafayette Square, surrounded by books, music, art and with Sandra.
Now in his late 70s, he can’t recall a time when he didn’t work and describes selling shoes for spending money while working on his undergraduate degree at Tulane University and earning $300 a month when he began practicing law at his father’s firm.
“If I’ve turned out well, it’s because I always wanted to achieve to make my folks proud,” he says. “I never practiced law for money. That doesn’t mean I haven’t been successful, but I always wanted the hard case. I wanted the case nobody else would take. If they told me it was impossible, I loved it. It was one where I felt I was on the right side.”