It's a long way to certiorari

It's a long way to go

It's a long way to certiorari

And the highest court I know.

These are the words, as best I recall them, of one of our class songs at Harvard Law School, many decades ago. Golden oldie it isn't, though it does help explain why, at an even earlier date, Cole Porter left the place so hurriedly after enrollment.

Let the ditty introduce the layman to the curious word certiorari. It means permission by a higher court to hear an appeal from a lower one. The word permission is never used because everyone knows what it means. Lawyers being lawyers, certiorari it is. When the U.S. Supreme Court refuses to grant cert, then the matter is over. When cert is granted, the case lives on.

Last week, the Supremes granted certiorari and thereby plugged the life-support back in on one of the most malingering patients in legal history, the legendary Exxon Valdez case.

Many people remember that the Exxon Valdez tanker went aground and gushed 200,000 gallons of oil a minute into the waters of Alaska's Prince William Sound. And that its captain allegedly was drunk. It is harder to recall just how long ago that was — March 1989, more than 18 years ago.

It was the largest oil spill in the United States. It dominated the news and became part of the national culture.

But in the United States every really big story happens twice — first the thing itself, and then the trial.

The Exxon Valdez trial occurred five years later, in federal district court in Alaska. The plaintiffs were fishermen and natives claiming that their livelihoods had been destroyed by the spill, and the principal defendant was Exxon, which owned the now-immortal tanker.

It was a jury trial. It lasted for months. And then the 12 jurors deliberated and debated. And decided. They came in with a punitive damage award of $5 billion against Exxon. (Compensatory damages of $286 million had been awarded in another phase of the trial.)

That decision was on Sept. 16, 1994. Exxon quickly filed an appeal on the punitive award.

That was more than 13 years ago.

And for those 13 years, the case has remained in the seamless limbo known as appeal. It is as if time stopped. The matter went to the 9th U.S. Circuit Court of Appeals, and there it stayed, shrouded by mystery and fog, like Skull Island. From time to time small fleets of litigants tried to approach and were themselves enveloped in the eerie mists.

Many plaintiffs died. No matter. Advantage moved from one side to the other, with no end in sight.

Then last week, the fog thickened. The Supreme Court granted certiorari, and so those plaintiffs still clinging to life will have to keep on waiting to see whether they get their money — the pot is now about $4.7 billion, because during the appeals process the sum was lowered but interest has kicked in.

Why has it taken 13 years for an appeal that still lives on? Because the 9th Circuit sat back and permitted that to happen. The appeals court could have thrown out the punitive damages. There were arguments for either course, and for every gradation in between. There were timeouts when the circuit court sent matters back to Alaska, but for most of the 13 years, the case remained in its jurisdiction.

There was a reasonable argument for everything about this appeal except delaying it for 13 years. That delay was an unconscionable betrayal of duty and common sense by one of the highest courts in the land.

If Exxon lawyers have contributed to the delay by filing myriad motions, that is the company's right. It is free to do anything the law allows in furtherance of its perceived obligation to its shareholders. But this outrageously protracted appeal is not the fault of Exxon. It is the fault of the court that let it happen.

British statesman William Gladstone said that justice delayed is justice denied. Justice delayed past even Dickensian parody is not merely denied but shamelessly mocked.

Those fishermen who are still alive no doubt are praying that the U.S. Supreme Court will uphold the verdict. They pray for justice — and speed.

David Lebedoff is the author of "Cleaning Up," an account of the Exxon Valdez trial. He wrote this commentary for the Los Angeles Times.