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Trial Lawyers Ready Suit on Racial Reparations PALM BEACH, Fla. -- Trial attorney Willie Gary and other top legal strategists are considering legal action that could make them the most beloved -- and hated -- men in America. Potentially the biggest lawsuit in American history, it would force today's generations to pay for slavery and its aftermath. Though key questions have yet to be answered -- such as when, where, how and who -- the final chapter of America's most peculiar tragedy could be written in court, rather than Congress, with Gary and other high-octane trial lawyers playing the protagonists. "I think the nation will be better off for having dealt with this issue," said Gary, the 53-year-old son of an Indiantown sharecropper who recently won a $240 million verdict against The Walt Disney Co. "Otherwise, it's like pain without ending. It's always going to be there." If successful, the lawyers win trillions of dollars for American blacks and go a long way in making amends for slavery. But they also could inflame racial tensions -- and divide blacks who suddenly get to decide who benefits and who does not.
Each lawyer has considered a racial reparations suit on his own, but now for the first time they are talking about a common strategy. They met last month in Washington, D.C., at Transafrica, a lobby that monitors U.S. policy in Africa and the Caribbean, and plan to continue meeting monthly until a strategy is formed. "We can't resolve all of the issues that will be raised at this point," said Gary, chairman and chief executive of Atlanta-based Major Broadcasting Cable Network, a TV channel that caters to black Americans. "A lot of them will have to be resolved judiciously along the way." Besides Gary, participants include Alexander Pires of Washington, who won a $1 billion settlement for black farmers in a discrimination case against the U.S. Department of Agriculture; Richard Scruggs of Pascagoula, Miss., who won the $368.5 billion settlement for states in their suit against tobacco companies three years ago; and Dennis Sweet of Jackson, Miss., who won a $400 million settlement in the fen-phen diet drug case last year. Famed Los Angeles attorney Johnnie Cochran, Harvard Law School professor Charles Ogletree and Randall Robinson, who has written a new book on racial reparations titled "The Debt," are leading discussions. "There is going to be a reparations case. It's just a matter of where it's going to go," said Sweet, who also plans to sue history book publishers that give blacks short shrift. "You're starting to get a lot of black lawyers who are in the position to do this kind of stuff," he said. Skeptics will point to other racial reparations suits that have failed and to numerous legal hurdles, including sovereign immunity for the federal government and a six-year statute of limitations on federal cases. Further, some will say the courts are the wrong place to talk about slavery. "I think this is yet another example of a very dangerous tendency to turn to the courts to solve all of our social problems," said Daniel Troy, a constitutional lawyer in Washington and a scholar at the American Enterprise Institute, a conservative think tank. "How do you even begin to address what reparations are owed to the great-great-great-grandchildren of slaves?" Troy said. "My grandfather came here in 1920. Why should I have to pay reparations for slavery? Is anyone paying reparations for discrimination he suffered in Russia? There's no end to this game." Even the lawyers are cautious. "It has to be a carefully thought-out lawsuit," said Scruggs, who's now busy building a class-action suit against HMOs in Miami and is undecided on his role in the racial reparations suit. "Using the wrong theory and the wrong logic, you open the door for any minority group to bring similar action: The Irish could do it, the Jews could do it. "Like it or not, it's a huge political issue." Indeed, but the nation's politicians have refused to deal with racial reparations, said Jack Hitt, a contributing editor for Harper's Magazine who organized an August meeting in Washington with Gary, Scruggs, Sweet and Pires. Their conversation on racial reparations is included in the November issue of Harper's. Because proposals in Congress to apologize for slavery or to create a commission to study reparations have failed, a class action lawsuit might be the only way to bring the issue to the forefront, Hitt said. "We are a nation of litigators. That's what we do. We go to court," he said. "Maybe it's fitting in the end that slavery should wash up on the shores of a judge's bench." When or if the lawsuit is filed, black Americans would not be the only ones seeking reparations for past wrongs. Jews are suing Germany's government for slave labor reparations dating to the 1930s and Nazi power, and former American prisoners of war who were forced to work in mines during World War II are suing Japan's government for wages, plus interest. The racial reparations lawyers have not decided how far back in time they'll go, who they'll sue, how much money they'll seek, and who benefits if they win. They say they probably won't file just one suit, but a series of suits against the U.S. government, states, corporations and individuals who continue to benefit from slavery's aftermath. They say they'd also make the case that while slavery ended in 1865, its effects lingered long afterward through sharecropping schemes, housing discrimination, racial segregation and peonage laws. "No one can disagree that black people have suffered the most in this country," Gary said. "This is not about money. It's about stepping up to the plate and reaching out to a group of people that on this issue have been left behind." As for legal strategy, Gary has proposed a breach-of-contract suit, in which a class of plaintiffs would sue the federal government for breaking its post-Civil War promise of 40 acres and a mule for each freed slave. Getting the public to support racial reparations also would be a key component, Gary said, adding that black and white politicians and celebrities would need to be rallied. "This country has taken steps to make a lot of wrongs right, and this rates at the top," said Gary, who won a $500 million verdict in 1995 against funeral home operator The Loewen Group and now represents four plaintiffs in a racial discrimination suit against Coca-Cola. "I feel there will be more white people supporting this than you think. I think you will see the right thing done," Gary said. "We still have a lot of racial problems in this country, but we've come a long way."
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Legal Arguments 
