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July 1994
I am in San Francisco, California to attend the annual summer convention of a Bar Association for Trial Lawyers. Last year was the first time in my career that I attended anything like it and it was truly a rewarding growth experience for me as a professional. I met trial lawyers from all over the country. I was exposed to techniques and strategies that were completely novel to me. The programs included practical subjects like evidence and procedure, but some were inspirational, designed mainly to remind us of the most positive aspects of what we do; very much in the spirit of a professional pep talk. We are helping injured people in need, providing access to the Courts for people who otherwise couldn’t afford it. We are protagonists in David against Goliath stories where we bring cases against the government and huge corporations with tremendous resources and powerful law firms at their disposal.
One of the goals of Tort law – cases seeking damages for harm caused by wrongful conduct; is to try to eliminate the harmful conduct to avoid harm to additional victims. It is beneficial to society that Ford Pintos with exploding gas tanks are no longer manufactured. The same is true of drugs which cause birth defects in children, or heart attack and stroke in patients with arthritis or diabetes. It was exhilarating to be reminded that I am doing work that provides a tremendous benefit to society.
We trial lawyers invest our own money in the cases we bring. No interest is ever collected. It may take many years for the case to be resolved and the investment to be returned. If the case is lost, and the client cannot afford to repay it, it is a loss. In addition, if the case is lost, the attorney will never be compensated for the time and effort devoted to the matter over the years it was investigated and prosecuted.
Today, I heard a presentation by a trial lawyer from the State of Alabama. He must be fantastic with a Jury, because he was not only held the attention of about 300 trial lawyers for the better part of an hour, but he was entertaining and he taught me something which I can't wait to try.
The subject of his talk was “The Golden Moment”. He told us that in his opinion, it is essential, at least once during the course of a lawsuit, before the case comes to trial, for the trial lawyer to visit the plaintiff – the injured party – in their home. It enhances your ability to understand what that person’s life is like, to experience the kind of compassion and empathy that is really necessary to effectively speak to strangers about the effect of the injuries on that person’s life.
On rare occasions, if you are very fortunate, you will experience what he called the Golden Moment. It can best be described as a flash of inspiration or an epiphany. It made perfect sense to me. I was completely sold and enthusiastic about it.
September 1994
Today, I actually experienced a Golden Moment. I don't think I will ever forget the experience. Shortly after returning from San Francisco, I received a telephone call about a potential new case. In order to evaluate it, I had to go to the office of a large and well-known plaintiff’s medical malpractice firm to review the file which was in their possession. It was a case that was already in suit; in fact it was ready for trial. It involved a claim of Obstetrical malpractice on behalf of a twelve year old girl with very severe Cerebral Palsy and mental retardation. She was confined to a wheelchair, and had no useful speech, able to make only vocal sounds. It was claimed on her behalf that there had been negligence in the handling of her mother’s labor and the birth which caused her brain damage.
The attorney that started the case and prosecuted it had been disbarred. The case had been reviewed and rejected by the firm that had the file, and by another prominent firm before that. It seemed highly unlikely that I would be able to find a case where two experienced firms had not. However, I thought there was nothing to lose by looking at the file.
The injuries were so significant, that if it were a case it would be well worth the effort. Lawyers who handle medical malpractice cases are compensated by a percentage of the recovery. The worse the injuries are, the higher the amount of compensation the victim is entitled to, and therefore, the higher the attorney’s percentage of the recovery. This is true even in New York where the actual percentage was reduced in 1985 from the 1/3 that it still is for ordinary negligence cases, to a sliding scale for medical malpractice. The lawyers who specialize in these more difficult and strenuously defended cases get only 10% of any recovery above 1.25 million dollars – the very point of which is to discourage the attorney from risking the fee on the first 1.25 million, by trying to get the client what they are entitled to. The example I give my clients is this;
If a person sustains injuries worth 3 million dollars in a negligence case, the attorney will be paid one million dollars as the fee. If the same injury is caused by medical malpractice, the attorney’s fee is 450,000.000. A pay cut of 550,000.00.
After reviewing the file, I decided to consult experts about the medical records. I obtained favorable opinions from the experts and accepted the case for trial.
Since the case was already on the trial calendar, I decided to visit the client’s home before attending a conference to schedule the trial and respond to questions I knew the Judge would ask about the nature of the case and the possibility of settlement.
They were an Italian family and they lived in a modest middle class home in Brooklyn. Marcella was in a family room when I arrived, watching the Disney movie “The Little Mermaid”[1]. I didn’t think much of it at the time. I was directed into the adjoining kitchen by her father. There I was introduced to her mother and several siblings. I spent about an hour in the kitchen speaking to the parents about the case. When we were finished, I was escorted back out through the family room.
As I was leaving, the movie was had reached the point where the mermaid needs desperately to speak, but is unable to. Marcella was on her feet, beating her chest, and making unintelligible but woeful sounding noises in empathy with the mermaid. Her father explained to me that it was her favorite movie because she identifies with the mermaid, Ariel's inability to speak.
I was stunned. I had just witnessed a clear and dramatic expression of the pain and frustration that this poor child feels and had thereby been provided with a way to convey her suffering to others. I felt a little bit foolish and a little bit guilty that even though she was the subject of the case, I had spent most of my time in the home with her parents. How easily I could have missed seeing what happened, and left with home without the understanding I had gained.
Nothing had changed in terms of my ability to prove her case, but my connection to her, my understanding of how she felt, and my gratitude for having had the experience gave me a determination and confidence I have rarely known.
The case was ultimately settled for the full amount of the available insurance - the largest settlement of my career up to that point, and for many years afterwards.
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