A few months after Tony Affatato died in 1985, a Chicago malpractice lawyer dispatched a private detective in Florida on a vital mission-to discover if Affatato had attended his mother`s funeral.
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It was an unusual but potentially critical point because the 41-year-old Affatato reported in his diary that he had wept since he was too sick with salmonella poisoning to attend his mother`s funeral. After he died, Affatato`s family filed a lawsuit charging medical malpractice and wrongful death.
So now one of the defense lawyers, Dennis Rasor, wanted to know: Was Affatato really too sick to attend his mother`s funeral, or was the diary an elaborate lie designed to boost a potential personal-injury lawsuit award?
Rasor couldn`t know if the diary would be allowed as evidence in a trial, but he was taking no chances. He had to know if it was true.
Rasor also hired detectives to canvass the Affatatos` Northwest Side neighborhood to ask if Tony Affatato appeared to be as sick as the family claimed during his 58-day illness.
All the snooping was part of a defense tactic, common in high-stakes civil cases, to turn the tables on the plaintiffs, in this case the Affatato family, by dredging up information that might raise doubts about the family`s character and integrity.
This bruising, bareknuckle prelude to a trial, known to lawyers by the mild-mannered term ”discovery,” describes the initial stages of a lawsuit in which each side gathers evidence, postures, bluffs, plots strategy and measures the other side`s chances for victory. Discovery means exactly what it implies: Both sides seek to uncover evidence to bolster their case or damage the opposition`s.
In this case, that unfolding evidence led the Affatato lawyers not only to file suit against the Jewel grocery chain, which sold the 2 percent milk that made Affatato ill, but later against two doctors and a hospital.
In the discovery phase, lawyers must divulge all evidence they hope to use; a judge then decides what is admissible.
It is at this stage, too, that the subtle art of negotiating an out-of-court settlement begins. It is a complex and dynamic system; the balance can tip with each piece of emerging evidence. Insurance companies, judges, attorneys and clients privately calculate the likely outcome of a trial and what the plaintiff`s loss-in this case the life of a state worker with two children-is worth in dollars.
Lawyers on both sides usually try to settle a case before it goes to trial. They know juries are notoriously unpredictable, prone to be swayed as much by emotion as by fact. That is one reason nine out of 10 cases end in pretrial out-of-court settlements. Another is that trials can be nasty, brutal affairs.
”A trial is a barbarous sport conducted in accordance with certain civilized views,” says Gerry Spence, one of the country`s most successful personal-injury lawyers.
For most lawyers, it is more like a war.
”One thing I tell everybody up front is . . . if we accept their case they are going to have to live through this really difficult process,” says David Poindexter, a partner at Holstein Mack & Klein, which represented Affatato`s wife, Shirley. ”They are making allegations about somebody else, but they almost are going to end up being the accused themselves.”
Shirley Affatato discovered that early in the trial.
”Every day I sit and want to vomit, portraying my husband the way they do,” she said midway through the trial. Defense lawyers had attacked her integrity and assailed her late husband`s lifestyle and honesty.
”They have got all of this money,” she said of the defendants, ”and they hire detectives to find all this dirt on you.”
Apparently, Rasor`s detectives had discovered no useful dirt for the trial; Affatato apparently had indeed missed his mother`s funeral. But the mere fact of the investigation unnerved Shirley Affatato.
Lawyers approach a lawsuit much like combat generals. Each has a grand strategy to achieve victory and contingency plans just in case a retreat proves necessary.
The maneuvering begins with the filing of the lawsuit as attorneys accumulate bargaining chips intended to intimidate their opponents. The first chip usually belongs to the plaintiff`s lawyer, who files the suit. That simple act can be a form of intimidation in which the plaintiff declares his grievance in public and demands redress. The amount of damages the plaintiff seeks sends a strong message to the defendant of how vigorously the plaintiff will pursue the suit.
In Shirley Affatato`s case, she was seeking ”in excess of $10 million.” The message to the defendants: She would not be bought off cheaply and was willing to pursue the suit to a verdict, forcing the defendants to rack up legal bills.
The defendant can react in several ways. He might be embarrassed by the suit, admit liability and quickly agree to a monetary settlement so that the plaintiff will drop the suit. That saves the defendant legal fees and also blunts possible bad publicity.
Or the defendant and his lawyers can use pretrial discovery and motion hearings as delaying tactics to wear down the plaintiff`s resolve to pursue the suit. In that way, the defendant hopes the plaintiff will simply drop the suit or accept a smaller compromise settlement. In some cases, the defendant may be willing to pay a settlement if he does not have to publicly admit liability.
And, of course, the defendant may feel wrongly accused and marshal evidence to defend himself.
In the Affatato case, the defendants said they were willing to pay a settlement to avoid a trial. But they also warned that if Shirley Affatato and her lawyers would not accept a settlement the defendants thought reasonable, they would fiercely defend themselves in court.
The plaintiff`s lawyer shows the strength of his case in pretrial meetings, hoping to boost the price of an out-of-court settlement. The defense lawyer exposes the weaknesses of the plaintiff`s case, hoping to deflate the figure.
Both sides know those strengths and weaknesses will be paraded in front of a jury and usually would just as soon not gamble.
”When it comes time for a trial, neither side wants to risk a jury verdict on a real knotty case,” says Judge Donald O`Connell, presiding judge of the Cook County Circuit Court Civil Division. ”By the very presence of a judge and a jury, the posturing is over. So often plaintiffs don`t want to let go of their case, but when the jury is called up, they finally realize this is all for real. Often they will accept the same settlement money they had rejected a year earlier.
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”Likewise, an insurance company that for three or four years insisted it would pay out only $100,000 all of a sudden is in front of a jury risking $1 million. And, all of a sudden, the company decides to settle for $300,000 or $400,000 instead of $100,000.”
It is money, of course, that drives the system. Critics of American tort law-the laws governing civil, non-criminal disputes-argue changes in the system have so relaxed liability rules that plaintiffs` lawyers routinely abuse the system for easy money.
In a Maryland Law Review article a few years ago, Robert J. Samuelson, a commentator and columnist on economics, called the practice ”gaming” the system.
Samuelson explained the ”game”: A plaintiff`s attorney files a lawsuit of questionable merit against a corporation. He asks for $100,000 in damages. The plaintiff has only a weak chance of winning damages, but the corporation calculates it would spend at least $15,000 to defend itself in court.
”In these circumstances, the defense`s least expensive course is to offer to settle for $14,999,” Samuelson says. ”Given the (outside) chances of losing, a more generous settlement (say, $25,000) may even make sense.”
That, of course, would be easy money for an unscrupulous lawyer. If he won a $25,000 out-of-court settlement for his client, he might earn $8,000 for a couple of hours of work.
Opponents of modern tort law argue these tactics encourage frivolous lawsuits.
But defense attorneys can use different strategies to ”game” the system, too, Samuelson says.
A wealthy corporation faced with the strong likelihood of losing a $10 million product-liability suit, he says, may intimidate a plaintiff by showing its willingness to engage in a protracted, expensive court battle.
”The defense`s best strategy may be to procrastinate,” Samuelson says,
”to run up the plaintiff`s legal costs . . . increasing the temptation for a much smaller settlement in which the defendant admits no guilt.”
If such abuse of the system is widespread, there is no data to prove it. Most courts do not tabulate the outcome of litigation they oversee. No one knows, for example, how many suits each year are thrown out for lack of evidence or how many are settled out of court with cash payments to the plaintiffs. Indeed, defendants who do not want the publicity of a lawsuit often forbid plaintiffs from revealing the amount of an out-of-court settlement.
Discovery means there are supposed to be no surprises in the trial; all the evidence is laid out. If there isn`t enough, a judge can summarily throw the case out. It further limits the arguments in the trial to evidence uncovered in the pretrial hearings.
Shirley Affatato`s lawyers knew from the outset they would name Jewel in her lawsuit. But it took them months of scouring her husband`s medical records in the discovery process before they targeted the hospital and two doctors in the suit.
By the time her lawsuit came to trial last Sept. 26, Affatato`s lawyers and the defense attorneys had spent hundreds of hours on discovery. The accused doctors, Mrs. Affatato and the expert witnesses for each side had been questioned and cross-examined in pretrial hearings. Every shred of evidence and every proposed exhibit had been studied and either allowed or rejected by the trial judge.