Except for the occasional creak of a chair, the silence in Judge William Kelly`s courtroom was complete, underscoring the tension of the moment. After two days of testimony, Shirley Affatato had reached the point when she would describe the morning her husband Tony died.
The trial would last more than five weeks, but none of it would be more critical than the widow`s testimony. Asked to judge what a man`s life was worth, the jury of nine women and three men were hearing first from the person who valued him most. A powerful performance could cost the defendants dearly. The small public gallery at the rear of Daley Center courtroom 1912 was packed. Affatato was the first to testify in her lawsuit against Jewel Food Stores, Resurrection Hospital and two doctors. Her husband Tony had died in 1985, stricken by salmonella poisoning after drinking contaminated milk.
In the gallery, lawyers for the defendants` insurance companies gathered to study the jurors as Affatato testified, looking for evidence of emotion or sympathy. Though juries are supposed to determine liability on the basis of law, emotion, too, is a commodity of great currency in American courtrooms.
To the insurance lawyers, emotion was money. They had already offered Affatato $900,000 to settle her suit. Gambling that a jury would award more, she rejected the offer and took the witness stand.
Through most of her testimony, Affatato, whose face of narrow, sharp features would be severe if not for her lively blue eyes, had been
businesslike as she recalled the grim details of her husband`s illness and deterioration.
But near the end of her second day on the stand, David Poindexter, a lanky, boyish-looking attorney with wire-rim glasses and thick, curly blond hair, led her to the retelling of her husband`s final day.
She awakened about 6:45 a.m., June 10, 1985, she began, and found her husband complaining of chest pains and vomiting since 11:30 p.m. She phoned Dr. Oscar Osimani, her husband`s physician, now one of the defendants.
”He asked me to bring Tony to the outpatient department at 11 a.m.,”
she recalled. ”I asked what he thought it could be. He thought it was an ulcer.”
Because her husband`s illness had kept him out of work for nearly two months, her income as a secretary and bookkeeper for a suburban engineering company had become increasingly important. That morning, she left 10-year-old Anthony Jr. to watch his father so she could go to work for a couple of hours before taking her husband to his doctor. At 8:33 a.m., when she arrived at her office, her phone rang.
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”It was Anthony,” Affatato told the jury, lowering her head, choking back tears. ”He said he couldn`t wake up his father.”
Judge Kelly, whose by-the-book demeanor probably carries over from his days as a Marine Corps officer in World War II, didn`t interrupt. Others in the courtroom sat stock still. The insurance company lawyers paid particular attention to the moment and the jury`s reaction.
This, after all, was business. And when several of the jurors began snuffling and dabbing their eyes with handkerchiefs while Affatato`s composure faltered, it was carefully noted. A weeping jury could cost millions.
WWhen her testimony was over, the defense lawyers huddled with the insurance companies and, in effect, put a price on Affatato`s testimony: $600,000. They approached Affatato`s attorneys and proposed increasing the $900,000 pre-trial settlement offer to $1.5 million if she would drop the lawsuit. Taking their chances on a sympathetic jury seemed too risky.
Though emotion is supposed to be swept aside in reaching a verdict, critics of the American liability system complain it has unduly influenced juries. They accuse personal injury attorneys of trading on emotion in what critics call an $80 billion-a year ”sue for profit” personal injury law industry.
”Every jury is a one-night stand,” John Kester, a former Defense Department official, observed in the Washingtonian magazine. ”It is not very expert, it is not held accountable and it never has to live with the consequences of its actions. Civil litigation often is an opportunity for juries to play Robin Hood and redistribute wealth.”
Kester`s blunt language underscores the deep antagonism permeating the 20-year war over American tort law, which governs
civil as opposed to criminal wrongs. In the last three decades, liberalized tort laws and the spread of contingency-fee lawyering have eased the rules of evidence and given people of ordinary means more access to the courts. The result has been an explosion of big jury awards and a backlash from industry and insurers who claim the cost has grown too burdensome.
Walter Olson, a fellow at the conservative Manhattan Institute think tank, believes our tort system has made the cost of doing business in America dangerously uncertain. Unpredictable jury behavior and damage awards, he says, have driven up the cost of liability insurance, thus driving up consumer prices. A hidden tariff, he says, is a chilling effect on business innovation as manufacturers weigh the risk of bringing out new or redesigned products against the likelihood of being sued.
”Pick-a-number damage awards say a lot about the emotions lawyers succeed in evoking within the courtroom, but they can hardly reflect anything durable or objective about the world outside,” Olson argues in his book,
”The Litigation Explosion,” published in May.
Juries are inscrutable and can terrify both sides. Consequently, most of the estimated 1 million lawsuits filed annually never get to court. About 9 in 10 are dismissed or settled out of court before reaching the trial stage.
Even when they do go to trial, nervousness about jury behavior causes plaintiffs and defendants in six out of 10 cases to agree to a settlement before a verdict is reached.
Despite the publicity over rising litigation and skyrocketing liability awards in the nation`s courts, it is still hard for a plaintiff to win.
A 1990 study by the National Center for State Courts shows that only 44 percent of all verdicts in product liability cases-such as the portion of the Affatato suit directed at Jewel-favor the plaintiff. With medical malpractice- what Affatato was suing the two doctors for-plaintiffs win only 29 percent of the time.
The $1.5 million offer to drop the suit at the end of Affatato`s testimony was tantalizing, as it was meant to be. It was a moment in the trial as strategic as a championship chess move.
Under the contingency fee agreement Affatato had with her lawyers, Poindexter and Robert Holstein would get $500,000. In turn, they would give one-third of their share to Rafael Del Campo, the Affatato family lawyer who had referred the case to them.
Affatato would get $1 million, tax-free, minus about $40,000 in pre-trial expenses that Poindexter and Holstein spent preparing the case.
The alternative was to keep prosecuting the case, hoping the defendants would increase their settlement offer or that the jury would grant an even higher award. The risk, of course, was that the jury would award nothing.
Affatato chose to go on with the trial.
”The trial has just started, and we haven`t even presented the strongest parts of our case yet,” Holstein, the lead lawyer on the Affatato team, said at the time. ”We have a very strong lineup of expert witnesses who will link up the cause of death. And we still haven`t had the (Affatato) kids on the stand.”
Holstein has been in the personal injury business for 30 years, since graduating from the University of Michigan law school in 1961, when contingency fee arrangements were just becoming legal.
In those days personal injury lawyers were in the low-rent district of the legal trade, suffering from a public image as ”ambulance chasers” and a reputation that bordered on the sleazy. Nowadays, if the reputation of contingency fee lawyering is not always sterling, the incomes of its top practitioners are.
In 1989 there were 34,443 lawyers working in the top 100 U.S. law firms-the ”bluechip” firms representing mostly corporate and institutional clients. In 1989, they earned more than $12 billion. That is $360,000 annually per lawyer, Cadillac wages by anybody`s standard.
However, in 1988 the top 63 contingency fee lawyers made $750 million. That is almost $12 million for each attorney.
”Sure I like to make money,” says Holstein, whose firm, Holstein Mack & Klein is one of the more successful contingency fee firms in Chicago, ”but I like what I do and I believe in it.
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”It is the only way an average person with limited economic means can get into a fair fight in a courtroom against wealthy defendants. My job is to disrobe people publicly, to show that the high and the mighty aren`t really any different than the rest of us, and I take satisfaction in that.”
Holstein came to the Affatato case after Tony Affatato called his attorney, Del Campo, a month after he became ill. Affatato, who had been hired by the state`s Employment Security agency only six months earlier as a claims supervisor, was worried because his sick-leave benefits had run out.