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player ready...She began trying to explain that, during lunch, she remembered making the markings herself after the pre-trial deposition three years earlier. She had done it to emphasize certain entries, not to change the meanings of them.
Rasor would have none of it.
”You altered this record?” he shouted at her, striding from the rear of the courtroom toward the witness box, slapping the top of a partition in front of the jurors as he passed.
”No. What had happened, sir, was-” Mrs. Affatato tried to argue, but Rasor gave her no chance to finish.
”So after coming to the deposition,” Rasor snapped, ”and giving sworn testimony under oath, you thought you would go back and maybe make that entry look a little bit better for your case, is that it?”
Though all the attorneys agreed after the trial that the alterations were innocent, the way they were revealed in the trial was a coup for the defendants. It dramatically raised doubt about Mrs. Affatato`s integrity, and the defense attorneys continued to pointedly mention the alterations throughout the trial.
”The whole point,” Rasor said in an interview after the trial, ”is to show (the jury) she is willing to do anything and say anything to facilitate her case to get more money for herself.”
Later in the trial, Devine stumbled upon another significant discrepancy. Mrs. Affatato`s lawyers called as a character witness Jean Hansen, an official with Illinois Department of Employment Security, her husband`s supervisor at his last job. Hansen hired Affatato six months before he died and was overseeing his training as a supervisor.
Under questioning by Poindexter, she explained that Affatato was earning $15,000 a year. But, she said, he was an outstanding employee who quickly mastered the intricacies of the job. She was sure by 1990, had he not died, he would have been earning $25,000 to $30,000.
”How did he compare to other workers holding the same position?”
Poindexter asked Hansen.
”He was like our shining light,” she replied. In cross-examination, Devine underscored that Affatato had obtained his last two jobs, including the one in Hansen`s office, through political connections. He also referred to evidence that Affatato had accumulated poor work evaluations in his previous job with the Cook County Forest Preserve.
Then Devine asked Hansen about a discrepancy he had noticed in comparing Affatato`s employment applications for the state job and his previous job with the Cook County Forest Preserve. The 1981 application for the county job listed some courses at Wright Junior College. The application for the state job in 1984 also listed six semesters of accounting courses at Northeastern Illinois University in the early 1960s.
Devine asked Hansen if a false claim of college credits on Affatato`s application would have affected his potential for promotion within her agency. ”They could,” a stunned Hansen answered, ”Yes.”
Afterward, Devine subpoenaed records from Northeastern that showed Affatato had never attended the school. Near the end of the trial, over Poindexter`s strenuous objections, the judge allowed Devine to read a letter from the university`s registrar to that effect.
”They have made the credibility of the Affatato family an issue in this case,” Devine said at one point in a meeting between the lawyers and the judge, ”and now they are trying to shut the door on anybody going forward and showing there is another side to that.”
Besides the battle of experts, lawyers also engage in more subtle efforts to sway a jury.
The Affatato lawsuit lasted a total of 19 trial days. Mrs. Affatato`s role ended by the fourth day. Still, on each of those 19 mornings, the jurors would file into the jury box, sit down and look across the courtroom to see Mrs. Affatato.
She did not need to be there, but her presence was important symbolically. Each time the jurors looked up and saw her, they were reminded that this case was about a human life.
For similar reasons, a Jewel executive also sat through every day of the trial at the side of the company`s two defense attorneys. And a nun in a white habit from Resurrection Hospital`s administration sat in the public gallery directly behind the hospital defense lawyers throughout the proceedings.
Neither ever figured into the trial. But their presence seemed designed to suggest to the jury that the two corporate entities being sued by Mrs. Affatato had humans in them too.
Dr. Osimani, Tony Affatato`s physician, appeared in the courtroom only on the two days he was called to testify. Dr. Zimmers, however, conspicuously attended the trial every day. Rasor, lead counsel for Zimmers and the hospital, made sure of that.
”My preference,” Rasor said, ”if I am defending an individual doctor in a trial, is that the doctor be there throughout. The jury has to be there, and I don`t want to give the jury another reason not to like him. Being there is another example of his conscientiousness.”
Such studied patronizing of jurors by lawyers has led some critics to suggest the jury system in civil law is outdated. They argue that most high-stakes lawsuits usually involve technical and specialized issues that laymen cannot possibly understand and properly judge.
”Jurors can make reasonably sensible intuitive judgments about people-even about professionals-because we are all in the people-judging business every day of our lives,” Peter Huber said in his 1989 book, ”Liability.”
”But jurors are not experts about technology itself, and intuition here is a terrible guide.
”Blue-collar workers see too little threat in their familiar cigarettes, alcohol and construction-site environments, and too much threat in the less familiar hazards of air travel or high-tech medicine.”
Such critics suggest that panels of doctors might be better suited to judge medical malpractice cases than juries. Similarly, they say panels of design engineers should decide product liability suits.
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Some critics contend the length of a complex, high-stakes lawsuit has ensured the least qualified citizens will be jurors. The argument is that the most qualified prospective jurors, faced with taking a month or more from their work, find ways to wriggle out of jury duty.
”In most cities and counties,” John Kester, a Washington, D.C., lawyer, wrote in The Washingtonian a few years ago, ”prospective jurors can get out of jury duty one way or another, often simply by asking.
”As a result, juries are overstocked with people whose jobs are so meaningless and low-paying that they prefer to miss work. The legal system suffers from decisions made by juries composed of people who have nothing better to do.”
Nevertheless, the jury system seems sacrosanct in our society. It probably would be political suicide for an office-seeker to openly criticize the jury system, much less campaign for its abolition.
Almost 9 out of 10 times, plaintiffs demand a jury rather than a bench trial, in which the judge reaches a verdict. The reason is that juries tend to make larger awards, even though judges in bench trials tend to side with plaintiffs.
A study released last year by the National Center for State Courts, a legal research think tank, examined lawsuit trial results from 27 state court systems over three months. Juries, the study said, sided with the plaintiff 54.3 percent of the time, but judges did so 69.6 percent of the time. The median award granted to plaintiffs by juries was $30,000, compared with $2,537 by judges.
Just as lawyers were about to start their final arguments at 9:20 a.m. on Oct. 25, a sheriff`s deputy assigned to Judge William Kelly ordered the courtroom cleared. The deputy had just received a telephone call. ”If the case in courtroom 1912 doesn`t go the right way,” the caller said, he ”would plant a bomb in the courtroom.”
Whether it was serious or a prank was never determined. But the jury was sequestered for two hours and 15 minutes while the room was searched. The judge ordered that the jurors be told only of a bomb threat in general, but not that it was directed at his courtroom, fearing that it could prejudice their thinking.
It was an unsettling prelude to the final act.
In final arguments, each lawyer summed up the evidence and recommended a verdict to the jury.
Devine said that Jewel acknowledged making Affatato ill. He asked the jurors to establish whatever amount they thought ”fair and reasonable” to compensate the family for medical costs and loss of Affatato`s wages during his illness. But, he argued, Jewel should not be held responsible for Affatato`s death.
”I`m sorry Mrs. Affatato lost her husband at age 41,” Rasor added, urging the jury to award the family nothing. ”Forty-one-year-old men who smoke, are obese and abuse alcohol can lose their lives without it being the fault of doctors.”
David Poindexter argued that even in the worst-case estimates, Affatato would have lived at least 10 more years had he not been stricken.
”What is this worth?” he asked the jurors. ”What are 10 Christmases worth? Ten birthdays? Ten years of sledding, bike riding, going to football games with the kids? Award him $1 million for every year he lost.”
As the jury retired to deliberate, it was the defense lawyers who seemed confident of the outcome. Poindexter and Holstein clearly were worried.
———-
Next: The verdict.