What a Difference...

by Jack H. Olender

Reprinted from Pitt Law Magazine with permission from University of Pittsburgh School of Law

"What a difference a day makes . . . twenty-four little hours." And, wow, what a difference forty-five years make -- especially in the malpractice/personal injury law practice. Armed with my Pitt Law LL.B. (J.D.) degree, a few months clerking for a trial lawyer in McKeesport, Pennsylvania, under my belt, and my George Washington University LL.M. in Forensic Medicine, I thought I was well-prepared to embark on a successful malpractice/personal injury career. Perhaps I was prepared, but the field has evolved so dramatically over the years that it would be hard for a 1960's era young lawyer traveling in a time machine to even recognize it today.

I started a solo practice of law in the District of Columbia at the beginning of the Golden Age of personal injury law. The first reported million-dollar personal injury verdict was Ergas v. Barricini, won by Jacob Fuchsberg in New York. A sign advertising candy had fallen in a windstorm on a young boy, resulting in devastating injuries. We published Mr. Fuchsberg’s closing argument in the APTA (D.C. Association of Plaintiffs’ Trial Attorneys) Law Journal (Dec. 1964) which I helped found and edit. Fuchsberg set the bar. The quest was on.

The million-dollar verdict is not easy to come by for an inexperienced lawyer with a modest inventory of soft tissue injury cases. But in the 1960's and 1970's, an enterprising young lawyer could gain experience trying a lot of cases, most of them referrals from other lawyers. Remember, advertising by lawyers was generally not permitted until Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691 (1977). Today, TV advertising siphons off a fair number of the desirable cases and courtroom reputation is not as big a factor in promoting new business for injury lawyers. In fact, those of us who are very serious about containing tort "reform" try to avoid publicity for our substantial verdicts and settlements. We don’t want to give tort "reformers" any fodder for their campaigns to curtail injury damage suits.

American tort "reform" first raised its ugly head in the late 1960's in Massachusetts. I remember my wife and I attending a convention of ATLA (American Trial Lawyers Association), in Miami Beach, when Massachusetts passed "no fault" legislation. Most of us had never heard of it, but pandemonium broke loose. We thought it was the death knell of the tort system as we knew it. Imagine, personal injury lawsuits could not be maintained for auto accidents unless the injuries exceeded certain dollar and/or verbal thresholds. It was startling, an un-American concept to us; New Zealand or Australia might experiment with it but we could not see it in the land of the free and the home of the brave.

"No fault" spread like wild fire with legislation pushed in many states. I was caught up in the frenzy. In Maryland, I was made co-chairman of the Trial Lawyers legislative committee. We were able to turn the "no fault" proposal into what I think was the nation’s first PIP (personal injury protection) law, which had no tort "reform." In D.C., we were able to bottle up "no fault" in the U.S. Congress, which at the time had total jurisdiction over D.C. law. I was a soldier lawyer in the national battles. I remember watching from the gallery as the U.S. Senate defeated national "no fault." Vice President Gerald Ford presided so that he could cast the deciding vote, if necessary, against "no fault." In those days, Republicans were against national tort "reform" as a violation of states’ rights.

Later, when malpractice became the hot tort "reform" issue, I was appointed chair of the D.C. Trial Lawyers legislative committee and have been unable to escape from the job for twenty-five years.

In many states, tort "reform" is one of the biggest changes in the personal injury/malpractice field. Injured malpractice victims and their families are often not able to retain experienced counsel to prosecute malpractice suits in Texas and California, for example. Legislation in such states has made it virtually impossible for plaintiffs, in most instances, to obtain a substantial monetary recovery with an adequate fee for the lawyers, to justify suits that require substantial expenditures of time and money.

While doing what I could to fight tort "reform," I worked hard at my day job as a trial lawyer. I tried personal injury cases back-to-back-to- back with a few malpractice and product liability cases in the mix. There were good verdicts in with the run of mill. I was able to make new law in the appeals courts a few times, such as in Greater Southeast Community Hospital v. Maxine Williams, 482 A.2d 394 (D.C. 1984) which holds that a viable fetus is a "person" within the context of D.C. wrongful death and survival statutes.

The turning point in my evolution into the malpractice trial lawyer who prosecutes major cases was meeting a little girl named Janetta. She and her mother were brought to me by their family lawyer after two more experienced malpractice lawyers had turned them away. This was about 1974.

Janetta was cerebral palsied from birth. Her position in her mother’s womb was what is called a double-footling breech. She was feet first. There is an entry made by a nurse in the hospital record that says Janetta’s feet were down while in the labor room and two resident obstetricians pulled the feet down and out. It’s a no-no to pull the feet down and out in the labor room. It should be done only in the delivery room when you are ready to deliver. Otherwise, you can strangle the baby — deprive her of blood circulation with oxygen. I agreed to take the case and recruited an M.D./J.D. I worked with who was instrumental in enlisting the necessary expert witnesses and preparing the case. After suit was filed, we took the depositions of the two resident obstetricians. They claimed the nurse’s record entry was in error. They testified under oath that this all occurred in the delivery room when they were trying to deliver the baby, and not the labor room. Our predicament was that the nurse had disappeared. We couldn’t locate her. Why should the jury not believe two nice young doctors over a note written by a missing nurse? But, like Paul Newman in "The Verdict" (which came out after our case), we found the missing nurse at a Bronx hospital while preparing with one of our expert obstetricians. She had been in England for two years learning to be a nurse midwife and now she was practicing nurse midwifery in the Bronx hospital. Just as the nurse saved the day for Paul Newman, our nurse saved Janetta’s case. The jury believed her and awarded Janetta, in 1976, the first multi-million dollar obstetric verdict in the country -- $2.5 million. (Since then, I have had the privilege to obtain more than 200 seven- and eight-figure settlements and verdicts).

After Janetta’s verdict, while I was packing my briefcases and files, the M.D./J.D. told me he had called the newspapers. I bawled him out -- told him we would get into trouble. The prohibitions against promotion and advertising were so pervasive, I was actually afraid he would get us suspended. Thirty years later, my concern seems ridiculous.

Janetta’s case was personally very satisfying. The money allowed her to get the best care, graduate from college and become a counselor for handicapped people. A beautiful painting made by Janetta hangs in my office. She made it with a wand paintbrush attached to her head. I know I’m on the side of the angels in representing such a child and her family. The icing on the cake was when a hospital administrator acknowledged that the verdict was the best thing that had ever happened to clean up the hospital labor and delivery suite.

Would Janetta’s case be won today? I hope so, but there are many additional problems today that we did not have in 1976:

! It is harder to get credible experts to testify for a plaintiff -- some of the specialty organizations, neurosurgery, for one, retaliate against members who help plaintiffs, to the extent of trying to take away their licenses.

! The cost of hiring many experts has skyrocketed.

! Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US. 579, 113 S.Ct. 2786 (1993), makes it more difficult and expensive to put on expert testimony with the necessary reliable foundation.

! The medicine has become more complicated. The defense is placing more emphasis on causation — so what if there is substandard care? — it didn’t cause the injuries. Reports and guidelines are regularly being published by the medical profession that make the more paranoid among us think they are devised just to defeat malpractice cases.

! The propaganda campaign by big business, the insurance industry, and the medical industry about frivolous lawsuits, coupled with bad lawyer jokes, have poisoned potential jurors against plaintiffs’ lawyers and their injured clients. In some venues, the presumption is the case is phony.

! In states with caps on damages, periodic payments, statutory fee restrictions, etc., the great risks vs. low expectation of damages involved in pursuing the case would chase away most experienced lawyers.

While we’d certainly encounter obstacles if we tried Janetta’s case today, we would also have some assets to assist us, in the form of popular techniques and resources, that weren’t available to us in those days. Although focus groups and mock trials have been around a long time, some lawyers think it’s almost malpractice to omit them in trial preparation of a major case. The same is true for jury consultants.

Would Janetta’s case be tried at all today?

In a jurisdiction such as the District of Columbia, which has a strong history of compulsory Alternative Dispute Resolution (ADR), probably not. The likelihood is the case would be settled at mediation some time close to trial. Although we have court-appointed mediators available at no charge to the parties, we would opt for a privately retained mediator selected from a few experienced practitioners and retired judges who are very knowledgeable and skilled at working through the chaff and the posturing and getting the parties to agree. One sad result of successful, mandatory mediation is that younger lawyers get little trial experience in substantial cases, even as second chair. Are we becoming dinosaurs?

I think not. Regardless of the difference time makes, there will always be a need for good trial lawyers.