Pro Bono Heroes: Trio scores $26-mln verdict against Charlottesville rally organizers

(Reuters) - “A bubble of hate and violence.”

That’s how Paul, Weiss, Rifkind, Wharton & Garrison partner Karen Dunn described a four-week civil trial against the leaders of a 2017 white supremacist rally in Charlottesville, Virginia, that turned deadly.

Dunn and co-counsel Roberta Kaplan of Kaplan Hecker & Fink and Cooley senior counsel Alan Levine represented nine clients injured at the "Unite the Right" rally, in a trial that culminated in a $26 million verdict from a federal jury late last month. For their work, they are Legal Action’s pro bono heroes for December.

Kaplan, who is Jewish, told me she was inspired to bring the lawsuit after being horrified by the August 2017 event, where neo-Nazis, Klansmen, members of the alt-right and other extremists marched with torches, weapons, swastikas and confederate flags, chanting slogans such as “Jews will not replace us.”

One of the defendants, self-identified white supremacist James Alex Fields Jr, drove his car into a group of counter-protestors, killing Heather Heyer and injuring dozens of others, including seven of the plaintiffs in the suit. Fields is serving a life sentence for first-degree murder.

Defense counsel Elmer Woodard and James Kolenich, both solo practitioners, did not respond to requests for comment.

Kaplan started with a legal theory – that rally leaders could be sued for conspiracy to commit violence – but she also knew that bringing such a case would be a major undertaking.

A month before the rally, she’d left Paul, Weiss to launch her own firm.

“We had maybe six lawyers at the time,” she said. “The idea that we would be able to do a case of that size was obviously insane. It immediately occurred to me that we needed help.”

(After leaving Paul Weiss, Kaplan also co-founded and served as chair of Times Up, which she resigned from in August.)

She turned to Dunn, whom she knew primarily by reputation but now counts as a close friend. Dunn said 'yes' immediately, with a caveat: that the legal team would have security.

And indeed, Kaplan has had to face a barrage of venomous slurs and worse. “External threats have been a constant from the very moment we filed this case,” she said.

For example, one of the defendants in 2019 posted about her on the Telegram messaging app: "After this stupid kike whore loses this fraudulent lawsuit, we’re going to have a lot of fucking fun with her.”

Levine and Kaplan had worked together on cases over the years. Kaplan told me that she was struck by a thought when sitting next to Levine in synagogue: “Who better to depose Nazis?”

Levine takes it as a compliment. “I have a reputation for being a tough examiner, and I’m pretty tenacious,” he said.

Those skills were put to good use as the trio and colleagues from their respective firms dug into the suit on behalf of the nine clients -- students, clergy, counter-protestors and bystanders.

Levine likened the division of labor to “three infantry divisions” waging war together.

The suit was funded by civil rights nonprofit, Integrity First for America.

All along, the plaintiffs' lawyers anticipated the case would go to trial. “There was no settlement to be had,” Dunn said.

Jury selection began on Oct. 25 at the federal courthouse in Charlottesville, with U.S. District Judge Norman Moon presiding.

Psychologically, it was a challenging case for the trio to try. The 20 defendants, some of whom were pro se, adopted varied approaches, but Dunn said the proceedings involved repeated use of racial slurs and violent images, as well as arguments supporting the creation of a white ethno-state.

Initially, the language was shocking, but she said it soon became “part of the day-to-day” courtroom testimony.

The defendants argued that there was no conspiracy, and that they were exercising their First Amendment rights at the rally.

However, the plaintiffs lawyers countered that free speech doesn’t shield violence, and that the organizers had planned for the event to turn violent.

The plaintiffs didn’t win across the board. The 11-member jury rejected the federal claim of conspiracy to commit racially motivated violence but backed a conspiracy claim brought under Virginia state law.

The jurors also found some of the defendants violated Virginia’s racial, religious or ethnic harassment or violence statute, and that Fields, the car driver, was liable for assault and battery and intentional infliction of emotional distress.

Actually collecting the money is likely to be a challenge, but the lawyers say they intend to go after any assets the defendants may possess.

“While the jury deliberated, I thought to myself what the ramifications would be if we didn’t get a verdict in our favor. It would have really shaken my faith in the system,” Dunn said.

Kaplan agrees. “I’ve never had a case like this before,” she said – not even United States v. Windsor, when she convinced the U.S. Supreme Court in 2013 to invalidate the Defense Against Marriage Act and require the federal government to recognize same-sex marriages. “Thank god it showed the system worked.”

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