With settlement talks grinding on, the trial of BP over its culpability for the massive 2010 oil spill in the Gulf of Mexico looks set to begin Monday in a New Orleans courtroom -- and two nearby overflow rooms -- packed full with lawyers, public relations specialists, reporters and other observers.
U.S. District Judge Carl Barbier, a former plaintiffs' lawyer in maritime accident cases, has allotted a total of 6 hours and 40 minutes for 11 opening arguments from private plaintiffs, the Justice Department, Gulf Coast states and corporate defendants. There have been more than 300 depositions and 72 million pages of documents produced, according to one lawyer involved in the case. Legal fees alone will eventually run well into the billions of dollars.
"I'll be down there, and I'm sure other folks will be down there as well," said Val Exnicios, a lawyer for an association of shrimpers and oystermen. Other plaintiffs include hotels, vacation homeowners, fishermen and business owners.
Lawyers involved in the case said settlement talks were continuing through the weekend. Unlike Exxon, which spent two decades fighting damage claims over the 1989 Exxon Valdez tanker spill in Alaska, BP has been eager to put to rest the entire affair surrounding its ill-fated Macondo exploration well.
But while opposing sides often reach agreement on the eve of trials, lawyers familiar with the case said the trial would probably move ahead.
Sources said the private plaintiffs group and the Justice Department were each seeking more than $25 billion in civil claims. If the Justice Department decides to file criminal charges, that would be a separate trial.
Any settlement by the Justice Department could have political impact if voters see it as not large enough given the size of the spill and of BP, still one of the world's biggest oil giants. The associate attorney general in charge of negotiations, Thomas Perrelli, also oversaw talks that led to the recent $26 billion foreclosure abuse settlement with major banks.
If the trial moves ahead, lawyers for the plaintiffs' steering committee and the Justice Department are expected to attack BP and rig owner Transocean, saying that their gross negligence and willful misconduct led to the blowout on the Deepwater Horizon drilling rig, which caught fire and sank April 20, 2010, killing 11 people and spilling as much as 4.9 million barrels of crude oil into the Gulf of Mexico.
If found guilty of gross negligence, BP and Transocean could have to pay $4,300 a barrel instead of $1,100 a barrel in federal fines under the Clean Water Act and Oil Pollution Act for oil that was not recaptured. (Under one scenario, BP pays $3.5 billion. Worst case: roughly $17 billion.)
A gross negligence finding would also hurt BP's case against private plaintiffs and affect criminal charges the Justice Department is weighing against the company and individuals.
"We do not use words like 'gross negligence' and 'willful misconduct' lightly, but the fact remains that people died, many suffered injuries to their livelihood, and the gulf's complex ecosystem was harmed as a result of BP and Transocean's bad acts or omissions," the Justice Department said in a memo.
"Whether we look to a single bad act or a series of inter-connected failings discharges of oil from the Macondo Well resulted from the gross negligence or willful misconduct of Transocean and BP."
Despite several inquiries into the accident, plaintiffs hope to unearth more damaging material about BP's failure to heed warning signs before the blowout and its alleged willingness to cut corners because of costs.
The Justice Department's memo says BP's internal inquiry failed to probe the role of onshore and senior management.
BP's argument will be that the oil spill was caused by multiple lapses by different people and companies, a conclusion reached by a presidential commission that investigated the spill.
"The record leads directly to the conclusion that no single action, person or party was the sole cause of the blowout," Mike Brock, BP's trial counsel, said.