Malpractice Makes Perfect
Doctors and Opposing Lawyers think Jack Olender is the devil.
His clients believe he¹s their guardian angel.
By Erik Wemple
This article was originally published in the Washington City Paper, May 23-29, 1997.
"Jack Olender is a prominent local trial lawyer. He represents persons who feel they cannot represent themselves," suggests Catherine Thomas-Pinkney, who hosts Judgment on WPFW (89.3 FM).
Olender has just arrived at WPFW's Champlain Street NW offices on this Monday in late April for a show to promote "Law Day," a citywide event designed to teach citizens about their civil protections under the law. And who better to explain those protections than Olender, a plaintiff's attorney who has been stomping in and out of area courthouses for three decades?
Clearly pleased with Thomas-Pinkney's assessment, Olender keeps the theme in play. "We want to help people use the law instead of having it used against them," he says before ticking off a few areas in which locals can get free legal advice: immigration, landlord/tenant disputes, personal injury, and so an. Olender, a thin, pale man with bulky clumps of frizzy black hair adorning his head, says the American system of justice can be a beautiful thing, even for the little guys. "Our message is that the law is there for you, even though you may not be a wealthy corporation," he says.
Olender's more important message is that his firm, Jack H. Olender & Associates, is there for you as well. When Thomas-Pinkney asks for guidance on how listeners can access the maze of clinics and services on the free legal market, Olender recommends a legal clearinghouse of sorts.
"Call us and we'll be glad to give them the numbers of appropriate services," he says. "Our number is 202.879.7777. We'll be glad to put them in touch with the appropriate law school or bar association that provides the needed service." And probably even more glad to pursue good cases or make a bundle on referrals.
As the show wears on, Thomas-Pinkney solicits calls from listeners and engages Olender associate Kim Keenan in small talk on Law Day activities. But all the advice gets boiled down to seven digits.
"If you have questions, just call us at 202.879.7777, "Keenan intones.
Olender then takes the mike and delivers a pitch on the "diverse corps" of attorneys who are waiting to help the disadvantaged. And if you're interested in just how diverse that corps is?
"Call 202.879.7777," says Olender.
"That's 202.879.7777," says Thomas-Pinkney, in telethon style.
"It's wonderful that you make your law offices a center of referral," says Thomas-Pinkney. "To be able to call your office and to find whatever you need that is indeed a service that people should take advantage of," she says.
Before Thomas-Pinkney finishes the show by thanking Olender and Keenan for their time, both attorneys repeat their firm's phone number once again -- just in case a hapless listener has missed it. By the time the show is done, Thomas-Pinkney has given out the listener call-in number twice. The 17th Street NW offices of Jack H. Olender & Associates net six mentions.
Appearing on a piddly radio show is no thrill for a man who pals around with Larry King and has shared the stage with the likes of Johnnie Cochran, Elie Wiesel, and Soviet dignitaries. It's drudgery, in fact. It means interrupting a busy workday to spout off to a nonexistent audience. No one listens to the radio at 11 a.m.
Those considerations, however, don't figure into the calculus of Jack Olender, who measures fame in column inches and sound bites. Olender's peers in the medical malpractice racket are generally content to ply their profession quietly. They pick up clients on referral from chummy lawyer friends, reap their fat one-third commissions, and emerge from downtown underground parking garages in luxury cars when the day is done. If the Washington Post or Channel 4 happens to take an interest in their exploits, so much the better.
For Olender, D.C.'s master of medical disasters, the limelight is not a perk, it's his lifeblood, and he'll do whatever it takes to maintain a copious supply. Whether it's writing up advice columns for community newspapers, speaking to a group of students at the University of the District of Columbia (UDC)'s law school, or talking about Law Day on WPFW, no project is too trivial, as long as it spreads the Olender name.
Olender also promotes his franchise through his considerable philanthropic and volunteer activities. He funds the Olender Foundation, which gives scholarships to Howard University students and contributes over $50,000 each year to charities. And he donates his time and money to scores of local organizations, such as the United Black Fund, the Duke Ellington School of the Arts, the Greater Washington Urban League, and WPFW. The appreciative beneficiaries of Olender's largess, moreover, share an important appeal for a local trial lawyer: They're rooted in the District's poor black community, which happens to constitute the most fertile local constituency for malpractice cases.
Whatever the motivation behind Olender's high profile modus operandi -- fame, fortune, or altruism -- it's working for him. Olender's reputation as the area's premier injury attorney allows him to pull only the creamiest cases out of his malpractice inbox -- a luxury that in part accounts for his 90 awards and settlements of over $1 million. By gobbling up a third of the prize, he can take in a millionaire's view of the Potomac from his 3,500 square-foot Watergate apartment while still holding himself out as a defender of the disenfranchised. Courtroom success, in turn, arms him with the credibility he needs to practice his favorite vocational pastimes: bashing the medical establishment, hanging bad doctors out to dry and blocking all attempts by the District government to legislate caps on damage awards in malpractice cases.
Ubiquitous though Olender may be, doctors will do everything possible to avoid him, because he will take risks to fully litigate cases he feels will force a change in medical practices. He'll stake settlement negotiations over his insistence that the guilty doctor's name be added to a national database of malpracticing physicians. And if that doesn't work, he'll churn out a press release that accomplishes the same end.
"I don't think he does it for the money," says Joe Montedonico, an accomplished local defense attorney and frequent Olender courtroom adversary. "He does it for the publicity and for his ego."
Before an audience of 60-odd law students and faculty at the Georgetown University Law Center, Olender is musing about the dollar value of a single human testicle. He dangles the concept in front of the students in a presentation on maximizing damage awards in medical malpractice cases, Olender's home field.
Olender may have the outsize ego of a litigator, but he has the demeanor of a CPA. He looks so sheepish and withdrawn in front of the audience that you expect him to duck under the podium and hide until time's up. Dressed in a navy suit and a striped red and blue tie, he speaks methodically and softly -- the presentation sounds like a 50-minute whisper on a handheld tape recorder. And not only is it tough to hear, it's tough to stay interested. There is no inflection in his delivery and few digressions in between his bone-dry talking points. The presentation is for malpractice diehards only.
Olender observes that he recently got a call from another lawyer seeking advice on how to attach a price tag to a testicle. He advised the lawyer to consult other settlements and jury awards. Then he boasts that he recently completed a testicle case and won "a fairly good award, but our research showed that this was the exception.²
And when it comes time to sum up the testicle talk -- just when an easy punch line would do wonders for the stone-cold audience -- Olender pulls a thought straight from the malpractice lawyer's manual: "Make sure your budget analysis takes into account the likely award from the case as well as what it will cost you to litigate the case," he says.
No one defines the antithesis of flamboyant, dynamic trial-lawyer prototype more precisely than Olender.
"He's boring," says a prominent local plaintiff's lawyer and Olender fan.
In the medical malpractice business, though, boring wins cases. After all, it's hard to spread bombast and attitude around the courtroom when you're the slamming a doctor for failing to use a sigmoidoscope to diagnose colon cancer in his patient. Gestural elegance and rhetorical flourishes don't advance your cause when you are explaining exactly how an infant's nerves were severed from his spinal column at birth.
Where others rely on bombast, Olender leans on the facts -- hard. His job is to extract telling depositions from doctors and nail them to the jury box for their alleged miscues on the operating table and in the delivery room. You can't do either without a meticulous understanding of medicine and surgical procedures.
"Jack is one of these lawyers that talk medicine as if they were doctors," says William Lightfoot, former D.C. councilmember and a personal injury attorney.
While most law firms fill their libraries with hulking tomes of federal code and back issues of the Federal Register, Olender dedicates his prime shelf space to medical journals and practitioner's books. The collection occupies a full wall -- eight bookcases -- in his enormous main conference room and both walls in another conference room.
"His library is better than any local doctor's and as good as some medical schools'," says Cesare Santangelo, a D.C.-based obstetrician who successfully fought an Olender lawsuit.
The voluminous library is conveniently positioned just behind the tables where Olender and his minions depose doctors. "It doesn't hurt to have the doctor we're suing see all these books on his subject," says Olender.
Along with the myriad newspaper clips and awards that adorn his office walls, the library bears testament to Olender's experience as a plaintiff's attorney -- a career that has helped propel the explosion of medical malpractice litigation into a multi-million dollar specialty.
Olender graduated from the University of Pittsburgh law school in 1960 with every intention of practicing personal injury law, but his initial forays as a lawyer didn't exactly break the bank. He started out repossessing encyclopedias from poor families in Prince George's County who couldn't keep up with their payments. Olender says most of the repo work was generated by a bogus encyclopedia salesman who instructed his clients to sign up for the encyclopedias even when they couldn't afford them. "He told them they'd get to keep the encyclopedias for six months or a year, and he got his commission for the encyclopedia company, recalls Olender, who collected $25 a day plus repossessed encyclopedia bookcases for his troubles.
Olender didn't enjoy the work. He pined for a career -- empowering -- not harassing the poor.
His first break came in the late '60s, when he was litigating an auto collision cases in Montgomery County courthouse. Although the cases netted a measly $2,500 -- exactly what the insurance company offered in pretrial settlement negotiations -- his courtroom performance impressed a man in the audience looking for an attorney to represent his grandchildren, who had been seriously injured in a collision with a drunken driver. He hired Olender, who produced $100,000 in an insurance settlement.
Olender continued taking whatever cases he could scare up -- auto cases and other injury claims -- until 1974, when he met Janetta Moore, a 3-year-old whose parents were looking to file a medical malpractice claim. Moore's mother claimed that the staff at Washington Hospital Center had pulled on Janetta's legs before Moore even arrived in the delivery room. The tugging, Moore's parents suspected, partially strangled Janetta and explained why she was afflicted with acute cerebral palsy.
Olender received the Moore case on referral from another lawyer who had turned it down for very good reasons: Malpractice cases were extremely complex and had not historically yielded handsome damage awards. Olender took the case and proceeded to tilt the malpractice playing field toward the plaintiff's bar. He won $2.5 million from a D.C. Superior Court jury -- the first seven figure malpractice award in the country, according to Olender.
The award convinced Olender to stick almost exclusively to medical malpractice cases and, more specifically, Ob-Gyn claims. It would take Olender another decade to earn the sorts of labels that are now attached to his name in the media. "Leading personal injury lawyer" has become a standard descriptor in newspaper accounts, the Washingtonian dubbed him "Jack the Ripper," and the Post has called him the "king of personal injury suits."
Olender's marathon dance with the local media began in 1988 when he filed suit against District obstetrician Julian Safran on behalf of Edward Leahy, a 3-year-old who had suffered brain damage at birth because of reduced oxygen flow through his umbilical cord. The damage was so severe that Leahy was incapable of seeing, speaking, walking, or feeding himself. After a trial that lasted nearly four weeks, a federal court jury awards the child $10 million -- the largest award ever in the District. (The award was later reduced to $4 million.)
D.C. doctors swallowed hard. After the trial concluded, the medical establishment held a protest rally at Columbia Hospital for Women, where area doctors decried the jury award and appealed for tort reform in the District. A group of 150 nurses rounded up $2,400 for a full-page ad in the Post expressing their solidarity for Safran. "We're here for you," the ad proclaimed.
In an interview with the Post, Olender had the temerity to chide the protestors for "escalating" the dispute into a "media campaign" and call the nurses "dupes" for the besieged obstetrician.
Olender's relations with the medical community haven't improved much since.
Olender is by nature calm, unassuming, even meek. He reflexively defers to others. All those traits, however, undergo a 180-degree metamorphosis when you put him in a room with doctors.
The nasty version of Olender was on full display Feb. 5, 1992, when the D.C. Council held a hearing on tort reform. At issue was a bill introduced by Ward 4 Councilmember Charlene Drew Jarvis -- the Health Occupations Revision Act of 1985 Amendment Act of 1991 -- to place a $350,000 cap on damages for pain and suffering in medical malpractice cases. The bill did not propose any limits on so-called "actual damages" such as the cost of treatment, therapy, and medical care associated with injury.
As with all tort reform measures, the bill was written with strong backing from the medical community and insurance companies , who have complained for years about the high cost of insuring doctors in the District, one of the few jurisdictions in the country that hasn't imposed limitations malpractice damage awards. The medical lobby insists that the unregulated tort environment in D.C. has sent doctors -- particularly obstetricians -- fleeing to neighboring jurisdictions, where tort reforms protect them from what they see as frivolous seven-figure claims.
At the hearing, Olender fired a quiver of arrows bearing poison specially concocted for groups that supported the Jarvis bill. He slammed the National Capital Reciprocal Insurance Co. (NCRIC), a prime mover behind the bill, for failing to train doctors in malpractice prevention techniques. "All the doctor had to do [to get a discounted NCRIC insurance policy]," said Olender, "was to attend one seminar an evening for three hours at which a buffet was served. So that certainly was inadequate." He went on to note that he was aware of NCRIC's policy because he had been asked to speak at one of the seminars. "I don't know if they've improved it any, any they haven't invited me back," he added.
He attacked the Medical Society of the District of Columbia for dissing the poor. The group, Olender said, had lobbied successfully for passage of a bill that would indemnify volunteer doctors at free D.C. legal clinics from medical malpractice liability. "The Medical Society celebrated passage of the bill," Olender said. "But they have not kept up their part of the bargain. Obstetricians have not flooded to volunteer clinics to give free care. No amount of immunity or tort reform is going to impact on care for the poor."
He got personal when it came time to excoriate local hospitals, calling upon George Washington University Hospital's Dr. Allan Weingold, who was on the hearing's witness list, to defend a an alleged hospital policy that thwarted obstetric medical malpractice claims. "Perhaps he can explain why they destroy fetal monitor tracings, and even for a number of years did not even make a summary of them before destroying them," said Olender.
And he couldn't conclude his testimony without impugning Jarvis' motives. "I think you are trying to help certain doctors and hospitals," Olender said to the councilmember.
The public display of outrage didn't surprise area doctors, who by then had grown accustomed to watching helplessly as Olender embarrassed them. If Olender had his way, they would be required to post their malpractice records in their reception areas. Just ask Dr. Kenneth Blank.
In 1989, Olender sued Blank, a District obstetrician, and Columbia Hospital for Women, for allege malpractice in the birth of Kamal Dennison, who suffered brain damage and died before his third birthday. The suit claimed that Blank had deprived Kamal of oxygen by waiting too long to deliver him. Just before the case was set to go to trial, Blank's lawyer reached a settlement with an Olender associate under which the hospital agreed to Belinda Dennison, Kamal's mother, $485,000 in damages.
But there was a hitch. As a condition of settlement, Dennison had to sign a form dropping Blank's name from the suit. It was no mere formality -- Blank's lawyers insisted upon the condition to keep Blank's name from appearing in the National Practitioner's Databank, a government-managed list of doctors who are either disciplined or who settle or lose malpractice cases.
Olender, who was caught unaware by the condition, went berserk, faxing a condemnation of the move to local media outlets and calling a press conference to denounce what he termed a "loophole" in medical accountability. The Post responded with a column on the spat, which suited Olender just fine. Opposing counsel Williams & Connolly panned Olender -- who accepted the condition because his client wanted to settle -- for running to the media.
"I don't think the involvement of the press was appropriate in that case," says Carolyn Williams of Williams & Connolly.
But Olender has no regrets: "What they do -- and they do it all the time -- is to dismiss the doctor out of the case and then settle with the hospital or the HMO," says Olender. "That means the doctors not reported and the public doesn't know who the bad doctors are: This incident shed some sunlight on this practice."
"There is an epidemic of malpractice in America, and the medical industry is trying to hide it," says Olender.
But Olender preys on cases in which the truth is hidden by a force more powerful than the medical industry -- nature. The birthing process can go awry for mysterious reasons that have nothing to do with the attending obstetrician. "There are a million things that have to go right, so it's a wonder that it goes smoothly as often as it does," says Santangelo. Olender concedes as much, but frequently decides that doctors are messing with Mother Nature, not the other way around.
It didn't take long for Donna Holman-Scott to realize that something was drastically wrong with her newborn daughter. The infant came out of delivery, took one breath, "and then her respiratory system completely shut down," Holman-Scott recalls. Then came a series of seizures and continued respiratory difficulties. Somewhere along the line, her child, Christina, had suffered acute brain damage.
A pediatric examination conducted when Christina was 2 and a half years old found that she was spastic in all four limbs, could not sit up by herself, and could move only by lying on her back and shimmying her way across the floor. She had to wear splints to keep her thumbs from getting entangled with her constantly clenched fists.
Christina is now almost 4 years old, and her condition is improving. In the living room of the Scotts' spacious Ellicott City, Md., home, Christina sits in her mother's lap, smiling and giggling as her parents gush about her prospects. "Last night she said 'ice cream,' " says Holman-Scott. Christina beams and jackknifes with joy at the mention of her favorite dessert. Christina becomes particularly excited when her mother takes her by the shoulders and stands her up on her lap. Her thin legs dangle with little control, but she manages to support some of her weight. "She will walk some day," says James Scott.
Although Christina cannot feed herself or even sit up without support, her cognitive skills are sharpening. Her vocabulary has expanded to the point where she can utter full sentences. "'I got you' and 'I love you' are her favorites," gushes her mother. She can now use her fingers to grasp objects without using thumb splints. And she can lie back in her mother's lap and recoil into a sitting position, a simple movement that demonstrates her growing spinal control, according to her father. "That's a big, big victory," he says.
The Scotts got another big victory this past January, when Olender delivered a $2.9-million settlement with insurers for their obstetrician, Dr. Sophia Abdullah, and Providence Hospital in Northeast, where Christina was born. Proceeds from the settlement were divvied up in standard industry fashion: $1.5 million went into trust for Christina, $300,000 to her parents, and a tidy $1.1 million to Olender's firm for commission plus expenses.
In the suit, which was filed in January 1995, Olender alleged that Abdullah had failed to perform a Caesarean section in time to prevent the asphyxia that saddled Christina with brain damage. Specifically, Olender and his expert witnesses said Abdullah and hospital had evidence of fetal distress but did nothing to expedite the delivery. "They were just taking their time," recalls Scott-Holman the events that led to the suit.
James Scott says the burden of raising a disabled child without enough income to pay for treatment and therapy would have ruined his marriage and his family, which includes four other children. "Jack Olender is like a privately sent angel," he says, "He brought me back together with my wife."
Of course, Abdullah's lawyer, Brian Nash, views Olender as a mythic figure of considerably less benevolence. (Abdullah turned down a request for an interview about the suit.) According to Nash, the Olender suit fit a mold he'd seen all too often: What was remarkable about the case was not its merits but the people who were arguing its merits.
To prove the allegations of malpractice, Olender hauled in a familiar battery of expert witnesses with 10-page resumes in their respective specialties. New York-based obstetrician Bernard Nathanson testified that Abdullah had failed to heed signs of fetal stress, and Leon Charash, a Hicksville, N. Y.-based pediatric neurologist, said Christina suffered all the damage in the 30 minutes before Abdullah finally delivered her. Nash says their testimony is more shtick than science.
"They're like a tag team," says Nash. "Nathanson says there was distress according to subtle signs on the fetal monitor tracings, and Carwash says all the damage occurred within the 30 minutes before birth. They do that all the time."
Nash and his clients insist that Olender's reliance on the same set of expert witnesses means he cares about winning -- not about exposing the underside of the medical industry. "I don't know why he thinks he is going to change the face of medicine by using people that the medical profession itself doesn't respect," says Nash. Both he and Montedonico -- two of the area's premier defense attorneys say they call on a wider variety of courtroom witnesses than Olender.
"I'm on a first-name basis with these guys. It's pathetic. It's absolutely pathetic," says Nash, who claims to have deposed Nathanson so many times that his "car drives itself to his office."
But convincing a jury or a judge that there is something unholy in the alliance between Olender and his witness is tough going. Take, for example, this excerpt from a 1994 Nathanson deposition conducted by Marian L. Hogan of Wharton, Levin, Ehrmantraut, Klein & Nash, PA.:
Hogan: "About how many cases do you have with Jack Olender or any associates in his firm at the current time?"
Nathanson: "I really don't know."
Hogan: "Would you say it is more than 20?"
Nathanson: "I would be speculating. I don't know. It is a number, certainly."
Hogan: "A number?"
Nathanson: "A significant number. But I don't know how many."
Olender shakes his head when presented with Nash's allegation that he has a carefully shopped cadre of experts. "I don't agree. We rely on a diverse group of witnesses for our cases," he says. Plus, Olender argues, it's up to defense attorneys like Nash to expose errors and inconsistencies in trial testimony.
Defense attorneys insist that it's hard to get to the facts when they're facing a team of performance artists trained to elicit compassion from the jury. Nash cites a trial in which one of Olender's expert witnesses waved a dollar bill over the head of a 3-year-old boy who was allegedly born with a shoulder dysfunction. He couldn't grab it. "A couple of jurors told me later that it was over at that point. It didn't matter what we said. The sympathy factor took over," says Nash.
Montedonico adds, "These people are superb witnesses. They know what to say to a jury and how to say it, and they have gone through many depositions and many cross-examinations. "
The medical community's list of grudges against Olender, though, goes far beyond his reliance on a captive set of witnesses. Insurers bemoan Olender's refusal to enter into structured settlements, which allow insurance companies to pay damages over many years instead of forking over a one-time lump sum. The theory is that the tax benefits and interest payments under structured settlements produce a greater payoff for the plaintiff in the longrun.
Olender, however, doesn't abide the industry line. "A well-managed fund for the victim is almost always better," he says. Plus, he notes, companies that administer structured settlements often go bankrupt. For that reason, Olender rarely compromises.
"He's the least likely of any plaintiff's attorney that we deal with to accept structured settlements," says Ray Pate Jr., NCRIC's president and CEO.
And area doctors begrudge Olender's insistence on publicizing their miscues.
We try to disclose the settlements whenever possible," says Olender, adding that in some cases the client's wishes to cash in and avoid negotiating over disclosure force him to accept sealed settlements. Doctors generally decline to discuss Olender's policies on settlements -- or anything else, for that matter. The best way to ensure that doctors don't return your calls is to mention the name Jack Olender to their receptionists.
The show starts with a performance by the Duke Ellington School of the Arts Show Choir, which struts onto the stage of the Kennedy Center's Terrace Theater and performs a graceful song-and-dance routine. Then there's a short address by now-deceased D.C. Council Chairman Dave Clarke, who offers a splendid tribute to Olender. "Whether it's in Anacostia or whether it's in Ward 7 -- throughout the city, Jack Olender is there, being of service, helping people," says Clarke. Before finishing, Clarke thanks Olender for helping him choose a doctor for his neurological disorder.
The occasion is the 11th annual awards ceremony last Dec. 4 of the Olender Foundation, a private foundation run by Olender, his wife Lovell, and CPA Bob Reed. And depending on your perspective, the purpose is to celebrate philanthropy or to orchestrate more shameless self-promotion.
Whatever the purpose, the event, as usual, is stacked with the marquee names that are sure to rate a few lines in the following day's gossip column. The first awards of the event go to local do-gooders. A group of Howard University students accept $1,000 scholarships, and Olender's Generous Heart Award goes to D.C. Superior Court Chief Judge Eugene Hamilton and his wife Virginia. Then, after some live tunes and a fair amount of backslapping, come the headliners. Before you know it, Olender and Lovell are preening for the flashing cameras with Olympic gold medalist Dominique Dawes, the recipient of the 1997 America's Role Model Award.
They are soon joined by Elie Wiesel, who after the ceremony can place his Olender Foundation Peacemaker Award right alongside his Nobel Peace Prize. As Olender recites Wiesel's lifetime achievements on behalf of the oppressed around the world, Wiesel stands beside him, his head bowed. In his acceptance speech, Wiesel credits the Olender Foundation -- which that night gave out over $75,000 in donations and scholarships -- for "working for humanity."
But the foundation is also working for Jack H. Olender & Associates. The Washington Times judged the event newsworthy enough to print blurbs both when the awards were announced and after they were given out. Reviews of the ceremony also appeared in the Prince George's Post, the Metro Herald, Washington Jewish Week, and the Capital Spotlight. Just in case Olender's peers in the legal community missed the coverage, he served notice with a full-page ad in Washington Lawyer, complete with photos of Olender and the award winners.
"He thinks he does a good service for people. Some of it is self-serving, probably a lot," says NCRIC's Pate. "l don't care about the peace award.²
Olender is refreshingly candid about his appetite for the limelight: I guess I wouldn't be speaking to Washington City Paper if I minded publicity a lot. I enjoy seeing myself on TV; my wife likes it, too."
He doesn't have to mention that he also likes to see his name in print and to hear his voice on the radio. Whenever the publicity mill runs dry, Olender manages to create news out of the ether. When Olender and his wife were on a bus tour of western national parks in 1995, he thought it might be newsworthy to poll his fellow tourists, who were predominantly white senior citizens, on the O.J. Simpson trial.
The shocking results? O.J. was guilty, they said. However, the kicker, at least according to Olender, was that a "sizable percentage" believed" his guilt hadn't been proved beyond a reasonable doubt. Although Olender's findings might have seemed self-evident and pointless, they were good enough for a commentary piece in the District's Afro-American newspaper. Legal Times followed with a short item on Olender's follies. Olender know that the media wakes up hungry every day, and if it doesn't have enough coal to feed the monster, well, he¹s happy to shovel some their way.
After Mayor Marion Barry's 1990 cocaine bust, Olender fired off an unsolicited letter to US. Attorney Jay Stephens recommending that he plea bargain with Barry instead of dragging the case through a divisive prosecution. While Stephens obviously ignored the advice, the letter earned Olender mention in two Post stories.
Sometimes Olender's taste for ink gets messy. Always one to make sure he gets his due, Olender in November 1991 faxed local media outlets to proclaim that he had been named "Lawyer of the Year" by the Bar association of D.C. It seemed like a perfectly reasonable move for the excited winner of such a prestigious award. Problem was, the bar association itself hadn't yet made the selection public, according to a report in the Post.
And Olender has learned the hard way that his never-ending public exposure leaves him vulnerable to a host of ankle-biters. According to an account in Legal Times, Olender in 1995 appeared on a WOL (1450 AM) show to comment on the Simpson trial and other legal issues. During the show, a caller described a pattern of racial discrimination in the workplace. He said that a white supervisor had told a black employee that the employee's father was "probably in jail like the rest of them for using and selling drugs." He also said that the president of the firm had retaliated against the employee when he complained. Olender opined on the air that "the victim in this harassment has a valid lawsuit in federal court. The caller then identified himself as David Paul, a former Olender employee, and quipped, "Such as the one that I now have against you, Jack?" Olender says Paul was lying and has since been fired. (Attempts to reach Paul were unsuccessful.)
Although Olender never picked up a publication that he didn't want to be featured in, his PR efforts are by no means indiscriminate. He targets black media outlets like WOL, and his commentary articles are a staple of community publications like the Afro-American, the Informer, and the Metro Herald.
"Ninety percent of his client base is disadvantaged African-Americans in the District," says a local defense attorney.
Olender's detractors charge that he cozies up to black charities and media outlets merely to pad his client referral. "It's easy for people to question motives," counters Olender. But there are few white figures in town -- Clarke was one -- who have dedicated themselves to black Washington as steadfastly as Olender "He is a very fine person and a great humanitarian," says former Ward 8 Councilmember Wilhelmina Rolark.
As Olender has learned, his target clientele doesn't reflexively ring up a malpractice attorney after a nasty brush with the doc. Although studies suggest the poor fall victim to medical malpractice at a greater rate than any other demographic group, they are the least likely to file suit against their doctors.
The trick, then, is to educate your clientele on its rights under the law and then get it into your office. Olender has succeeded on both counts. He has penned so many advice columns for small papers on how to choose a good doctor -- and what to do if you don't -- that he could release a hefty compilation book (he's probably thought of that by now).
And he's never shy about encouraging his audience to get litigious: "A favorite myth perpetuation by the medical and insurance industries is that the American public is enamored of lawsuits," reads a September 1996 Olender column in the Metro Herald titled "If a Doctor Injures You or a Loved One." "The truth is, when it comes to medical malpractice, not enough lawsuits are filed."
If Olender's publicity mill somehow fails to put his name before his target clientele, his philanthropic crusades do a nice job of picking up the slack. Within the District, Olender is as renowned for his charity as for his success in the courtroom. Again, Olender is selective about where the money and attention end up.
Former Councilmember Jim Nathan son recently solicited a contribution from Olender to fund a senior citizens' center that recently opened in Ward 3, the predominantly white area of Northwest that Nathan son represented on the council. Olender declined. "He said that his interests were elsewhere. His priority was the well-being of the eastern part of the city...He's very straight about that kind of thing," says Nathanson.
One of Olender's favorite east-of-the-river charities is the United Black Fund (UBF), which assists needy African-American D.C. youths and is managed by Rolark. The Olender Foundation last December donated $10,000 to UBA in the name of award winner Dawes. In the awards ceremony, Olender proclaimed that Dawes herself had "designated" UBA to receive the funds in her name.
"It's obscene what he does," says D C. activist Dorothy Brizill. "He throws a few bucks people's way in charitable donations. It's just advertising for his firm."
There are times he is able to combine his two passions: protecting his franchise and marketing his name. Olender's generous contributions to UBA date back to the period when Rolark, as head of the council's powerful Judiciary Committee, oversaw tort reform proposals, none of whichever made it past the committee. The donations raised allegations of wrongdoing from local activists.
Olender says he doesn't consider whether his philanthropy advances his business interests. "I'm doing something full-time, and I don't separate it out and divide between professional and philanthropic ... I just keep busy," he says.
Although that line doesn't sway Olender's detractors in the medical community, it's a canonical truth within the city's judicial establishment. Last October, four of the District's most prominent judges joined over 100 well-wishers -- including council members Harry Thomas and Linda Cropp -- at the Howard University School of Law to fete Olender when he received a Washington Bar Association service award. The judges didn't leave a single superlative or sweeping laudation in their court chambers that night.
"Jack Olender is a man who for years has labored to open the door to all," gushed John Garrett Penn, chief judge of the US. District Court for the District of Columbia. "He is an outstanding lawyer and humanitarian," said Annice M. Wagner, chief judge of the District of Columbia Court of Appeals.
"Olender can be relied upon to serve in the interest of honor and justice," proclaimed Eugene Hamilton, chief judge of the Superior Court of the District of Columbia and Olender Foundation Generous Heart Award recipient and Loren A. Smith, chief judge of the US. Court of Federal Claims, put it as Olender probably would have phrased it in a press release: "Jack Olender represents the modern incarnation of the knight errant who protects the innocent and defenseless." The encomiums prove that Olender is among friends when he enters almost any courtroom in D.C. -- if you don't count defense lawyers.
Once the fulsome tributes concluded, Olender approached the podium in a black suit and squeezed out a few words of award-recipient boilerplate: "There is nothing more pleasing than to be recognized by one's peers. It's humbling to be added to the list of recipients of this award. I am happy being a lawyer, and I can't think of anything I'd rather do."
The small crowd stampedes out of the UDC auditorium after listening to an hour long lecture on the life and achievements of Joseph L Rauh, the D.C. civil rights leader. The attendees -- mostly UDC law students and local lawyers -- quickly pour into a reception area, where drinks and hors d'oeuvres are being served.
In their wake stands Olender, who has stayed behind to help At-Large Councilmember Hilda Mason and her husband Charles, both frail octogenarians -- make their way out of the auditorium. Hilda is pulling on Charlie's wooden cane to help him up the steep aisle that leads out of the auditorium. Olender asks Hilda if they plan to attend the reception. "Yes, if I can get him out of here," says Hilda, motioning toward Charlie.
The trio moves up the auditorium aisle at a shuffle and finally reaches the reception room after exchanging some small talk about Rauh. Olender gathers the Masons' jackets and begins looking around for a place to hang them. Charlie looks up and says, "He's a great guy." Hilda nods in agreement. Olender continues poking around for a coat rack.
For Olender, cultivating close ties to the city's political class is a master of survival. His grand way of life -- the million-dollar settlements, justice for poor malpractice victims, publicity from his courtroom exploits becomes extinct the moment any meaning tort reform passes into law in the District. If Jarvis' proposed $350,000 damages cap had made it into law, Olender would make fewer marks with the piece of chalk he uses to keep his running tally of million-dollar cases.
Even without Olender's activism, the District is an inhospitable spot for tort reform bills like Jarvis'. In recent years, the council has been populated with trial attorneys who wring a generous part-time living out of the city's unlimited damages statutes. And the District's liberal heritage prejudices its leaders against initiatives backed by fat-cat insurance types.
Still, Olender acts as if he's eternally about to lose the swing vote on a bill to cap malpractice damages at $5. Anyone who has given more than Olender to D.C. politicians over the years should be investigated for overstepping campaign contribution limits. Olender regularly maxes out on contributions to his candidates, who need to pass a simple test to earn Olender's support: oppose tort reform (it helps to stick up for the University of the District of Columbia and other Olender pet causes).
Jack's been involved in D.C. politics for as long as there has been D.C. politics, "says Lightfoot. To the extent that someone's trying to change the jury system, Jack gets in there and fights.
At present, only four council members will have to weather re-election campaigns without a generous check from Olender. Jarvis, for obvious reasons; Ward 3's Kathy Patterson, who has pushed for UDC funding cuts; Ward 8's Sandy Allen, whose opponent in the last election, Eydie Whittington, had the "correct" position on tort reform; and At-Large Councilmember Carol Schwartz, who is a Republican, "and that should be reason enough not to support her," says Olender.
In April's special election to fill the vacant Ward 6 seat, Olender, his wife, and his firm collectively chipped in $1,500 for the second-place finisher, the Rev. George Stallings.
Unlike other hefty contributors, Olender doesn't hammer his friends on the council with requests and complaints. "He doesn't get involved in a lot of political issues," says Lightfoot. As long as tort reform doesn't rear its cankerous head on the agenda, in fact, Olender is seldom seen in the District Building.
Olender deepens his ties to local politicos by doing the little things that other bigwigs won't deign to do. He fires off letters to the editor when his candidates take a beating in the media and works the polls on Election Day. Last Nov. 4, for example, Olender stood for four hours in front of a 17 Foggy Bottom polling station handing out literature for at-large school board candidate Romaine Thomas, wife of Ward 5 Councilmember Harry Thomas.
Even though the canvassing didn't seem to win many converts -- the candidate came in a dismal sixth in the election -- Romaine and her husband won't soon forget Olender's support. It's hard enough to get help from your friends and neighbors, let alone a millionaire lawyer.
The sanctuary of Calvary Baptist Church on 8th Street NW is filled with a biracial mix of local activists, politicos, residents, and media representatives long before the farewell service for deceased council Chairman Clarke is slated to begin. As the crowd mills about, Olender takes his place in a pew in the front of the sanctuary set aside for the 21 speakers scheduled to pay tribute to Clarke. The program divides the tributes into three tiers separated by musical selections. Olender is scheduled to speak with the first group of speakers, lifelong friends of Clarke's. Following uplifting talks by Clarke's boyhood pals and former D.C. congressional Delegate Walter Fauntroy, among others, the Rev. Lynn Bergfalk calls Olender to the podium.
"Dave was not a 'show me the money' lawyer. He chose public service. He chose to toil for the underdog," Olender proclaims to a near-capacity crowd of mourners.
Olender is speaking about Clarke, but you get the sense that he's penning his own obituary. He was a social engineer using his legal trailing and genius to help all people -- including the poor, the elderly, and the weak -- so that there could be equal justice for all," he says.
"Although he can no longer lead and advocate for us, we can look to Dave's legacy of passion, compassion, conviction, impatience, determination, integrity, intelligence, and hard work f or guidance in our struggle to heal our city," Olender continues.
Olender wraps up the tribute by again trumpeting his friend's concern for the city and its disadvantaged citizens. "He was a lawyer who believed he could make a difference by advocating for all the people. He was a hero to all who love human rights and equal justice for all," says Olender.
As Olender steps down from the podium, Bergfalk steps back up to the podium and addresses the crowd: "I neglected to mention that Mr. Olender is a medical malpractice lawyer in the District," notes Bergfalk.
Jack Olender Letter to the Editor
Published in The Washington City Paper, May 30, 1997
I am grateful for the kind words about me and my work in Erik Wemple's "Malpractice Makes Perfect" (5/23), and I can understand the not-so-kind words. It is not unusual for observers to question the motives of people who try to do good. Perhaps our city would be in better shape if more gave back regardless of motives. I am satisfied with my work to date if your second lead is really true: "Doctors and opposing lawyers think Jack Olender is the devil. His clients believe he's their guardian angel."
A few points do require clarification.
The $2.5-million verdict in Moore v. Washington Hospital Center was the first seven-figure obstetric malpractice verdict in the country; it was not the first seven-figure malpractice verdict. And the $10-million verdict in Leahy v. Drs. Safran & Horwitz, Chartered, in 1988, was the largest malpractice verdict in the District of Columbia and not the largest verdict of any nature.
An anonymous local defense lawyer is quoted as saying, "Ninety percent of [Olender's] client based is disadvantaged African-Americans in the District." If that were true, I would be proud to represent that segment of our city. Although I don't consider the color of my clients' skin relevant to anything, and we don't note or keep records of such things, I would estimate that our clientele pretty much follows the demographics of the District of Columbia: two-thirds black and one-third white and other. A substantial number of our clients, black and white, are not "disadvantaged," unless professionals are considered disadvantaged. The article reports that I said a disgruntled former employee was lying about a grievance he publicized. I did not accuse him of "lying." I indicated that my perception was that the incident did not take place the way he perceived it. In fact, both an independent investigation and the appropriate government agency found that there was no basis for the grievance.
The article reports that the District is one of the few jurisdictions that haven't imposed limitation on malpractice damage awards. In fact, a very substantial minority of states have no caps on malpractice damage awards, and the District of Columbia is one of that substantial minority.
My disappointment with the article is the failure to give prominent mention to the associates in Jack H. Olender & Associates. I am proud of the team of excellent lawyers and staff that we have developed. They are part of whatever success I have attained. Out of eight lawyers on the team, four have served as president of the Trial Lawyers Association of Metropolitan Washington, D.C. In this law firm, we are developing some of the best trial lawyers in the country, and most of them are intimately involved in community activities, teaching, and mentoring. They try to give back and make a difference. I am very proud of them.