GNS In The News

Video Poker Has Potent Foe Columbia Lawyer Skilled, Persistent

CLIF LeBLANC, Staff Writer

Columbia lawyer Richard Gergel already was at work on a new plan of attack when he learned late last year he couldn't wipe out video poker with one Supreme Court decision.

So, after South Carolina's highest court declared video poker legal, Gergel wiped his bloodied nose and maneuvered for another way to knock out the $2.3 billion-a-year industry he sees as a blight on his home state.

Gergel is more than a courtroom pugilist; he's a chess master, say those who know him well. He is sharp, disciplined, articulate and sometimes brazen - overall, a tough adversary, according to attorneys who have gone up against him.

Outside the courtroom, he is a contrast, too.

Gergel has a love for musty research and a taste for the highbrow. He can be subdued and funny, his friends say. The private Gergel seems most comfortable in the solitude of history books, classical music and his Pawleys Island hammock.

"To him, heaven is an afternoon at the Caroliniana library," said attorney Dick Harpootlian, who is on the other side of the video poker case, defending the industry.

But video poker operators see only the menacing side of the 44-year-old Gergel, the Columbia native who is the lead attorney in a federal lawsuit that threatens the video poker industry.

While Gergel has a track record of affecting public policy through notable lawsuits, his bread and butter comes from medical malpractice and employment cases. Those are the cases that provide him an income well into six figures and a 3,500-square-foot home in Spring Valley.

Gergel says he has failed to collect in only three of 100 medical malpractice cases. His success allows him to turn down far more cases than he takes: 1 in 40, he estimates.

He picks issues he believes in - to fight for principle as well as money, associates say.

A dyed-in-the-wool Democrat, Gergel selects cases even if they put him at odds with party leaders. The poker industry that Gergel wants to destroy underwrote the Democrats' best showing at the ballot box in two decades, helping Jim Hodges win the governor's office in November.

In another high-publicity case, Gergel sued to remove the Confederate flag from the State House dome. Gergel said he could find no legal authority for flying it. He lost after the Legislature passed a law to keep the symbol, which many blacks say is a reminder of slavery and some whites say is part of Southern heritage.

It doesn't matter to Gergel if his suits seem inconsistent to outsiders.

For instance, the flag-challenger also sued over the use of race to draw legislative district lines in 1995. Gergel felt it was wrong and illegal. The suit, which he worked on with Harpootlian, resulted in new elections in 16 districts that unseated one African-American House member.

On the other hand, Gergel has defended school integration and educators for 20 years as the attorney for the S.C. Education Association. At age 18, he ran for the Richland 1 school board just to "speak the truth" against white flight, he said.

Intense about lunch

Whether his clients claim botched surgery or racism, Gergel sees the law as the great equalizer.

He lost the first round of the federal video poker lawsuit when the state Supreme Court ruled Nov. 19 that electronic gambling is legal under the state's constitution.

Now, Gergel is about to take the next step. He wants U.S. District Judge Joe Anderson to declare that jackpots and payouts of more than $125 a day are illegal. Gergel expects to file that motion later this month.

The compulsive gamblers that Gergel represents say poker machines ruined their lives. "I was genuinely, personally moved by these people telling me about losing their money."

Gergel's acquaintances describe him as a mix of moral crusader and legal scholar. He leads with his sense of ethics and follows with an upper cut powered by Duke-law-review skills.

But he does it in a Southern way.

"His gentleness and gentlemanliness would not be held in such high regard in L.A.," said David Abel, a wealthy Los Angeles businessman who met Gergel when the future lawyer was student body president at Keenan High School.

Yet Gergel's South Carolina friends see his style as less than easygoing.

"I would describe him as tight as a tick," quipped Pete Strom, the former U.S. Attorney who brought Gergel into the video poker case.

Michael Stephens, a Dillon County friend since high school, said Gergel "gets intense about going to lunch."

Gergel's drive comes from his Eastern European Jewish heritage. His father started as a Columbia street peddler with dreams of becoming a lawyer. World War II kept Melvin Gergel from college, but he grew into a successful merchant who supplied opera music to his Forest Acres clientele and expected his three children to achieve.

Gergel's brother is a psychiatrist in Asheville, N.C., and his sister a computer consultant working on a doctorate in New Mexico.

The youngest of three children, Gergel has become a player among South Carolina's high and mighty, counting the cream of the state's judiciary, politicians and business leaders as his friends.

Strategy is his game

But Gergel's high-caliber reputation did him no good when the majority of the Supreme Court dealt his gambler clients a serious setback. In one of the most significant decisions in years, the high court declared that video poker could not be banished as an unconstitutional lottery.

If Gergel's side had won, the 29,000 machines spread in nearly every hamlet and city would have been outlawed and removed.

But Gergel still hopes to cripple the industry with his backup plan in the federal lawsuit. Gergel wants Judge Anderson to rule video poker violates federal anti-racketeering laws with each jackpot or payout in excess of $125 a day per player. If Anderson agrees, he could stop the illegal payouts, making video gambling much less attractive to players and less profitable to operators.

Gergel's team of fellow lawyers is drawn from three small law firms in Columbia and Charleston and, to a limited degree, the attorney general's office.

They have won a couple of rounds in court. But the bout is far from over.

They're up against high-priced, big-name lawyers - including Harpootlian, chairman of the state Democratic Party - and the state's largest law firm, Nelson Mullins Riley and Scarborough.

The cash-rich video business has had its way with the law and the Legislature, and it played a big role in defeating Gov. David Beasley, who wanted to shut down the video poker industry.

During the governor's election, Gergel found himself in league with the Republican governor. Outraged by the industry, Gergel and his team of lawyers met with Beasley and his aides to review gambling laws and to point out how Beasley's administration was not enforcing them, Strom said.

Appearing before the Supreme Court, Gergel called video gaming a "pestilence" and a "scourge" when he argued his case. "Bind them down to the ground by the chains of the constitution," he pleaded.

What makes him tick

That combination of Old Testament moral fervor and legal knowledge is Gergel's hallmark.

Gergel graduated summa cum laude from Duke University in three years. He studied at Oxford for a summer. At Duke's law school, he was an editor on the law review. Gergel said he turned own a Wall Street law firm to work at home in a small Columbia office for one-third the salary.

"His analytical abilities are so acute, he can immediately look at a situation and know what's right. He has the rarest of human traits, good judgment." said Alex Sanders, president of the College of Charleston, a former chief judge of the state Appeals Court and a friend.

Gergel sharpens that ability with sweat - long hours of research and meticulous planning, colleagues say.

Before taking the video poker case, he perused books on addiction, especially gambling compulsions. He talked to psychiatrists. And he studied the state constitution and state and federal gambling laws, reviewed the legislative history of video gambling and analyzed case law.

He learned that the industry used the courts aggressively and wouldn't accept the few verdicts that went against it. "Every case went up on appeal," Gergel said. "They wouldn't settle. The way to fight this was not one case at a time."

If the lawsuit prevails, the gamblers and their lawyers might hit a jackpot of their own.

"It may be a case we all make a lot of money on," Strom said. "But we also thought we could do a lot of good for these people that were being hurt. It's a lawsuit, but it's much more than that. It's a cause."

Though the video poker case has attracted public attention, Gergel already had established a record of public-policy cases.

In 1997, he won $1 million from a company whose truck collided with a private school van and killed a child. The suit led to a federal government crackdown on auto dealerships that sell unsafe vans to schools.

A 1992 suit in Marion County confirmed the First Amendment right of public employees to criticize their bosses.

Gergel also successfully sued the Budget and Control Board, limiting its control of state finances.

"He's very thorough," said Joseph Shine, who opposed Gergel in the budget-cutting case. "I've learned that painfully by litigating against him."

Home, sweet home

While Strom sees in Gergel the makings of a federal judge, Gergel is rooted in Columbia.

"I wanted to be a plaintiffs lawyer in the town I grew up in," he said. "I'm a real believer in a sense of place. This is where I belong."

His parents, Melvin and Meri, were active in local issues and lived their progressive, some would say liberal, convictions.

They were strong John F. Kennedy supporters and adamantly believed in integration, public education and equal protection under the law.

In the early '60s, Melvin Gergel allowed a longtime black employee to wait on white customers at the family's Five Points toy store.

"It was a violation of the racial orthodoxy of the time," Gergel said. "We had a discussion in the family, and he said, 'If people don't want to shop with me, fine."'

Being Jewish in the South, the Gergels had a sense of how it feels to be a minority.

"A Jewish kid growing up in South Carolina 30 years ago, it seems to me you had to have a strong sense of who you are, or you wouldn't survive," said best friend Walter McRackan.

"I think Richard is committed to showing us white males that we live in a broader world," said McRackan, a Methodist and owner of a Charleston commercial real estate investment firm.

Religion is a big part of who Gergel is. He is a member of a reform Jewish congregation, The Tree of Life, which represents the contemporary movement in Judaism.

Gergel and his wife, Belinda, wrote an account of Columbia's Jewish history. He is president of the state Jewish Historical Society and the Columbia Benevolent Hebrew Society.

His religion and upbringing forged civics lessons he still carries.

"I think we make progress by uniting our community, not dividing it," Gergel said. "We ought not to let things divide us - not by legislative districts, not by symbols."

That's not a new a conviction.

As a high school student in 1971, Gergel put his beliefs to the test at the height of school integration in Columbia. He and seven other student body presidents organized "rap sessions" with students and parents.

Bill Dufford, the group's coordinator, recalls the teen-agers as, "the type of kids you see holding out the hope of America."

However. Sanders jokingly characterized the teen-age Gergel as "a hippie, radical brat."

Still. Gergel was no flame-thrower. "He was always pushing to find the common ground," said Abel., who was in South Carolina working on his doctoral degree from Harvard and led the student group. "He was the most macro thinker. He was strategic."

The student body presidents, half of whom were African-Americans, met with hundreds of students around the state to discuss integration. "We're carrying a torch here," Gergel would tell anyone who would listen. "This is the future of the South ... and we should embrace it."

While parents screamed at each other, students tried to make integration work, Abel said.

An impassioned Gergel confronted parents in Richland District 1 during the 1972 primary campaign for the school board.

District Superintendent Claud Kitchens had asked Gergel to run for the board even though he already had been accepted at Duke.

"Go to these (campaign) forums and say, 'I'm a student body president, and what you're saying is not true,"' Kitchens told Gergel.

Gergel spoke up against a largely Republican group, Deadline '72, that said forced integration would cause discipline to break down and make more parents move their children to private or suburban schools.

Gergel didn't survive the primary, finding public service through the law instead.

"He has a passionate belief in these kinds of cases," said former S.C. Bar President I.S. Leevy Johnson. "He sees a wrong and wants to make it right."

Clif LeBlanc covers federal courts and federal agencies. He can be reached at (803) 771-8664 or by e-mail at cleblanc@thestate.com.

Correction: PUBLISHED WEDNESDAY, JANUARY 13, 1999

Richard Gergel's grandfather, Joseph Gergel, was a Columbia street peddler. An article in Sunday's paper incorrectly stated that Gergel's father, Melvin Gergel, had been a street peddler before owning retail stores in the area.

Reprinted from The State newspaper
January 10, 1999