Tuesday, 13 March 2012

Day 2 - The spokesperson is asked to speak

My mother told me "never trust a man in a black dress." (Maybe she wasn't right all the time).

The courtroom was visibly different on the second day of the trial and not only because there were fewer cameras and more vacant seats. For reasons not explained, but perhaps due to the absence of witnesses, the black robes of Quebec’s court dress had not been required on the opening day. The official dress code was in effect once the real business of witness testimony began today. The medieval quality of these heavily smocked black robes (to say nothing of the judge’s oddly bright red tippet/scarf) provided a quaint counterpoint to a courtroom otherwise determinedly modern and festooned with the latest technology.

In the American TV shows and movies that influence our image of courtrooms, the witness is seated in a raised box to the side of the judge. Quebec courtrooms maintain traditions that date from pre-Napoleonic French law, and the witness and presenting lawyers stand facing the judge with their backs to the court. Witnesses who testify all day (or for several days) are required to remain standing, unless given permission by the judge to sit. So too do the lawyers remain standing as they examine the witnesses or present arguments to the bench.

One of the disadvantages of this arrangement is that those who watch from the back of the room have difficulty seeing and hearing what is going on. (Only after complaints from the media was a microphone brought in to amplify the witnesses’ testimony.)

The first order of business was to shuffle the calendar to manage an apparent challenge to the subpoena of one witness, who was ordered to return to the court on April 2, subject to a decision of the Appeal Court. The second order of business was to order that all future witnesses to the trial be excluded from the court-room and, it would appear from the judge's remarks, to also refrain from reading certain trial documents.

But the real order of business was the first day of testimony of Mr. Michel Descôteaux, the former public relations chief for Imperial Tobacco.

A one-company man

In response to the questions of Bruce Johnston (Trudel and Johnston), Michel Descoteaux detailed a professional life spent entirely in the service of one company. He started working for ITL in 1965 (at the age of 18), processing insurance files, but was moved into public relations in 1967-68 and was quickly promoted. By the time he was 35 he was director of Public Affairs, a position he occupied until 2000 (and shared with his successor until 2002). His educational qualifications were acquired at night school at the University of Montreal. For 21 years, he was in effect the only spokesperson for Imperial Tobacco (other than senior officers), as well as being the company’s representative at the industry association, the Canadian Tobacco Manufacturers Council. He retired in 2002 to what he described as a pleasant retirement, one where he did not have to get up any earlier than he wanted.

After establishing Mr. Descôteaux professional work experience, Mr. Johnston turned the discussion to the experience of Mr. Descôteaux in communicating Imperial Tobacco’s position or policy on any of the risks associated with smoking cigarettes. His questions were of the order: “How were press releases processed?” “Were you involved in setting the companies’ position about smoking and health?” “Were the companies free to arrive at a policy different than BAT?” “Why didn’t you just ask the scientists ‘what’s the truth on smoking and health so we can tell our employees?’” “Is it fair to say no scientists were involved in deciding what to say about smoking and health?”

It might be expected that after 30 years of working in public relations for one of the most controversial industries, Mr. Descôteaux would be accustomed to answering (or not answering) difficult questions. Certainly at times his answers were challenged as being inconsistent with some views he had expressed in trial documents. His statement that Imperial Tobacco was “very strongly independent from BAT” was contrasted by Mr. Johnston with a confidential memo Mr. Descôteaux wrote to his boss, Jean-Louis Mercier, in July 1979 to encourage a proactive communication campaign with company employees (factory and sales staff) about smoking and health issues. (Exhibit1) The memo suggested that BAT’s approval would have to be sought first. 

“Il va sans dire que nous devrons nous assurer que leur contenu sera conforme aux politiques internationales de l'industrie. A cette fin, nous pourrions, si nécessaire, les soumettre a B.A.T. aux fins d'approbation avant de procéder a leur impression”
(It goes without saying that we must make sure that the content is consistent with the industry’s international policy. For this we could, if necessary, submit them for BAT’s approval before proceeding).

“I realize that it sounds contradictory to what I have said before,” acknowledged Mr. Descôteaux. It would appear even Justice Riordan acknowledged the difficult position of the witness, as he offered “we often regret what we write. As a judge I can attest to that.”

Similarly, Mr  Descôteaux’s statement that he took his lead on smoking and health issues from the company scientists (“I had access to people with special knowledge - I never doubted what they said.”) was contrasted with comments he made in 1981 to BAT scientist Bob Gibb that suggested a more active role in influencing communications about science. In response to a proposed company statement to support medical advice against smoking when pregnant, Mr. Descôteaux wrote: (Exhibit 2)

“I am amazed that BAT would agree with the advice of doctors concerning pregnant women. I would suggest here that they word their paragraph somewhat differently along the following lines: "Nevertheless, in the absence of definitive answers to the question, many doctors advise their pregnant patients to modify their smoking habits pregnancy as a sensible part of prenatal behaviour not unlike the advised reduction in alcohol consumption or in the use of non prescribed medicine." BAT's agreement could open the door to claims for warnings on cigarette packages, for example, and has very important implications in the passive smoking debate.

Mr. Descôteaux’s own views on smoking and health were sought (over the objections of ITL’s Counsel Deborah Glendinning). He said his own attitude had evolved over time, as the company’s had. The corporate view stated in the late 1960s “There is no proof that tobacco smoking causes human disease” (Exhibit 3) remained unchanged until 2000 when the President decided to take a different approach when appearing before a Senate Committee. When the company president changed his mind, so did Mr. Descoteaux.

Controlling the message

The storylines that emerge when a skilled lawyer questions a skilled messenger might be expected to contain what someone in Mr. Descôteaux’s former position might describe as “differences of nuance.” But Mr. Johnston and Mr. Descôteaux were not the only two working to establish what the court would or would not hear about these events. ITL's lawyer Ms. Glendenning (Osler Harkin and Harcourt) offered several objections to Mr. Johnston's questions and to the submission of certain documents.

On only one occasion was she successful at changing the narrative. When tangentially answering a question about of the practice of lawyer’s reviewing documents prior to their destruction or retention, Mr. Descôteaux began an anecdote about his exchange with a “young lady” from a law firm who was reviewing his files. Ms. Glendenning quickly rose to her feet to prevent the man who was once in charge of corporate communications from finishing his story. Mr. Descôteaux didn't immediately 'get the message', and she had to object a second time before it was clear that he wouldn't be able to finish his story.