Critics bellow over lawsuits like that filed recently against SeaWorld over the death of a 27-year-old drifter who evaded security to stay after hours for a swim with an 11,000-pound killer whale. To at least one trial lawyer, however, that wasn't irresponsible personal behavior, it was negligence: SeaWorld, after all, didn't warn visitors of the risks posed by such behavior.
But hold on, says Miami lawyer J.B. Spence, whose mastery of trial law over more than 30 years earned him the nickname "dean of torts." Trial lawyers have another record to be considered:
From car doors to baby cribs, the list of dangerous products recalled or redesigned as the result of lawsuits brought by trial lawyers is enough to wring an apology out of anyone who ever told a lawyer joke, says Spence. Trial lawyers "did away with the (defective intrauterine device) Dalkon Shield; we did away with the (Ford) Pinto; we did away with asbestos. If you knew the cruelty, the selfishness, the greed and the dishonesty of corporate America, you'd be in horror."
As for claims that frivolous lawsuits are flooding the courts, the numbers simply don't support them, says Scott Carruthers, executive director of the Florida Academy of Trial Lawyers.
He cites statistics from the Office of State Courts Administrator showing fewer negligence suits per capita were filed in 1998 than in 1986.
However you are inclined to think about them, not all trial attorneys -- or plaintiffs attorneys, as they are also called -- spend much time in court. Many spend most of their careers writing so-called "demand" letters to insurance companies and negotiating modest settlements for their clients. Insurance defense lawyers know them as the "settlers."
But then there's the Big League -- an elite group of plaintiffs lawyers feared by insurance companies and corporate executives alike. You won't see their faces over an 800-number on a highway billboard. So what else distinguishes them from hundreds of their colleagues in the phone directory?
For one, when an attorney like West Palm Beach lawyer Bob Montgomery names his bottom line, you know he's not bluffing, says veteran insurance defense lawyer David Spicer of West Palm Beach. "When they say, 'We'll see you in court,' they mean it."
'Meaning it' involves more than the willingness to parade about in a courtroom before a jury. Big-time personal injury litigation is actually an exercise in big-bucks venture capital and risk management. The most successful attorneys are those who have amassed the resources and expertise to, first, cherry-pick cases that have the potential for a big verdict, and second, spend hundreds of thousands of dollars up-front on experts and research to prepare the case.
Ultimately, they use their own wealth and willingness to risk it to match the resources and time that a corporation's insurer may devote to a case.
It's a business that no right-minded investor would underwrite. Trial attorneys don't get to bill a penny unless they can convince six strangers on a jury they're not the greedy sharks lampooned in lawyer jokes. If they win, they frequently pay up to 25% of their share in referral fees to other law firms; many of their cases come from smaller firms without the resources to take a case to trial. "Las Vegas pales so far as risk," says Montgomery, who once lost $578,000 on a single case. "There are a hundred ways to lose a contingency fee case and one way to win."
The fact that Montgomery will spend $578,000 to prepare a case is no small consideration for insurance companies, which can usually outspend and outwait the average trial lawyer. But for all the respect Montgomery commands in the courtroom, his business doesn't bowl them over down at the savings & loan. "Banks don't understand my business," he says. "They'll say 'What are your accounts receivable?' I'll say 'I don't have any accounts receivable. I've got $2 million to $4 million in outstanding costs.'" Instead, Montgomery operates with a $10-million line of credit backed by his personal fortune.
West Palm Beach lawyer Christian Searcy is also a man feared by insurance companies. But with $5 million to $8 million in outstanding expenses at any given time, he says he can't take the fortunes of his 18-lawyer firm for granted. "We don't have to lose a whole lot of cases to go bankrupt." A decade ago, the loss of a $13-million fee dispute with a former client and Montgomery's departure to start a competing firm buffeted Searcy's firm, which struggled to pay off a $4-million loan balance.
For the best trial lawyers, of course, the rewards are enormous. If a jury grants an award, successful plaintiffs attorneys take approximately 30% off the top and also recoup all of their expenses. A visitor has described Pensacola attorney Fred Levin's estate as "bigger than the Ritz Carlton." In-flight meals on Stuart attorney Willie Gary's private jet are served on Lenox china.
Some have made fortunes by specializing in one type of case law. Tick off the names of the worst air disasters anywhere in the world over the past 20 years, and chances are there's a file for each somewhere in the Miami law firm of Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin. The 10-lawyer firm founded by Aaron Podhurst has transformed one partner's expertise 35 years ago into an internationally recognized specialty practice. Partner Steven Marks, 39, one of the firm's primary aviation specialists, never knows where his next venue may be -- or what country's laws he may have to navigate.
In Tampa, lawyer Jim Wilkes has made millions suing nursing homes for patient neglect and abuse. A publicist says Wilkes has recovered $250 million in settlements and verdicts. Wilkes, a one-time country lounge singer who also has sold used cars, was one of the first lawyers in the state to bring suits under a 1976 statute that created the nursing home patients' bill of rights -- and the potential for huge damage awards in cases that would otherwise be worth little or nothing.
Warren Trazenfeld has carved his Miami practice out of one of the most difficult niches. For the past 10 years he's sued lawyers for malpractice. "I have a 'door' practice," says Trazenfeld, 43. "The people who litigate against me have their names on the door." His cases virtually all end in confidential settlements.
In addition to the willingness to sue and the financial resources to prepare for court, the best trial lawyers ultimately must be able to sway a jury. Some of that skill may involve charm and salesmanship: In court, they may thunder, whisper, coax, preach, badger and even cry. They may prey shamelessly on the jury's sympathies, using family photographs blown up to the size of bus advertising: A young bride beams up at a husband lost to a doctor's incompetence; a young boy at his mother's grave. They lead witnesses through descriptions of lives destroyed by the negligence of an uncaring doctor or hospital or a corporation bent on maximizing profits at all costs.
But the best also master the technical points; assembling, dismantling and assimilating engineering reports and medical records as nimbly as a soldier breaking down a rifle.
While insurance industry odds say plaintiffs attorneys' clients will lose at least half the time, the best trial attorneys can get a jury to believe them nine times out of 10.
Some see in all this a tawdry game in which the lawyers' only skill is making sure the blame for any tragedy ends up landing on the one with the deepest pockets. "They can take a $10,000 liability and through their expertise make it into a $10-million liability," complains Associated Industries of Florida President Jon Shebel. He and other business advocates argue that the lawyers, far from being consumer advocates, actually put consumers at risk: Manufacturers may keep products like new drugs off the market because of liability concerns, they say.
Whatever the game, respond the attorneys, the catches don't always favor them. For example, if a trial lawyer rejects a settlement offer and the case results in a verdict that isn't at least 25% more than what was offered, the plaintiff has to pay the defendant's attorney fees.
If an insurer rejects a settlement and gets hit with a verdict 25% higher, the defense foots the plaintiff's legal bill.
And that, the plaintiffs lawyers say, is the real bottom line. "Every time you read about a $20-million verdict or a $10-million verdict, it's a case where at some point the defense refused a reasonable settlement," says Fort Lauderdale plaintiffs lawyer Jon Krupnick. "It is a failure to understand the value of a case."
Montgomery agrees. "One hundred percent of every huge verdict I've gotten is because I was forced to go to trial," he says. "What keeps me in business is people not being very smart."
Expenses: A Case Study
On July 21, 1988, Plantation city maintenance worker Alan Douglas Barnes was part of a work crew feeding tree branches into a wood chipper when his glove caught on a branch and he was pulled into the blades. Barnes lost his right arm. After a similar previous accident, the machine's manufacturer, Michigan-based Foremost Fabrications, had redesigned the chipper's feeder chute, extending it so that it was longer than the average human arm. Owners of the older model were sent letters offering extensions. But the letters got little notice, according to Fort Lauderdale plaintiffs lawyer Jon Krupnick, who argued that the manufacturer and the Asplundh Tree Expert Co. of Philadelphia, which sold the chipper, should have issued a recall notice and warning instead.
Krupnick filed a lawsuit in Broward County Circuit Court. Over a period of eight years, Krupnick spent $495,604.36 to prepare and bring the case to trial. The trial included an elaborate array of models and exhibits, and the services of jury consultant Sanford Marks of Trial Technologies Inc. in Miami. Had Krupnick lost, those expenses would have come out of his pocket.
The investment, however, paid off. Following an eight-week trial in 1996, the jury awarded Barnes $8,156,219 -- $7,730,000 for pain and suffering and $426,219 for medical expenses and lost wages. Under a standard contingency fee contract, Krupnick gets 40% of the first million, 30% of the second million and 20% of the rest. After taking his fee, Krupnick then recoups his $495,000 in costs.
Consultants: The Art of the Trial
In mounting high-stakes lawsuits, trial attorneys use an army of consultants -- from computer animators and medical illustrators to focus group leaders.
Leona Allison, a 61-year-old Miami artist, can barely keep up with the demand for her work. But there are no pictures of sunflowers, water lilies or picnickers on the riverbank among the thousands of works in her portfolio. Allison's palette runs to shades of blood and bruise and bone.
A medical illustrator for nearly three decades, Allison discovered a knack for drawing while taking an anatomy class in college. Before graduating with a master's degree in medical illustration in 1970, she fielded offers from such luminaries as heart surgery pioneer Michael DeBakey. After grad school she went to work illustrating textbooks for University of Miami Medical School instructor and plastic surgeon D. Ralph Millard.
In 1974 she opened her own business, taking advantage of the growing demand for such work in the courtroom as she perfected her ability to render the landscape of anatomical systems. For Allison, whose Allison Legal Graphics Inc. has grown to 14 employees, depicting the Mona Lisa would involve creating layers of skin, bone and beyond. "When somebody smiles, I think of what muscles they're using," she confesses. Lawyers use such illustrations to supplement expert testimony and show jurors exactly what damage an injury involves. Allison estimates her illustrations have been used in more than 20,000 cases. It is painstaking work that draws on meticulous review of medical records and hours of interviews with the treating doctors in a case.
The finished exhibit can be a life-size, three-dimensional model or a board-mounted illustration with several layers of overlays. Her illustrations fetch from $200 to $3,500, while models can cost as much as $20,000. The state's most successful trial lawyers are avid collectors of her work. "Once you've had a Leona Allison," nothing else will do, says Jon Krupnick, who says he wouldn't consider putting on a medical malpractice case without her.
Allison isn't the only specialist who has become indispensable to the practice of high-stakes litigation. An entire industry of experts, from jury consultants to model-makers to document managers, has grown up in Florida and is transforming the art of the trial. What once might have played out as a contest between two lawyers with yellow legal pads can now be a high-tech battlefield -- strewn with computer-animations, working models, lasers and light shows. Depositions are instantaneously accessible in words or video with the flick of a wand over a bar code.
Miami model-maker and illustrator George Ondricek, 45, says the most important part of what he does is help lawyers figure out what their visual presentations should include. He reviews the case file, then comes up with a plan for exhibits that can range from simple board-mounted illustrations to fully functioning scale models. His work takes him to toy stores, junk yards and hobby shops, searching for model cars, car parts and whatever odd bits of material he thinks he may need. For a case involving an elevator accident, he once built a working, 3-foot by 5-foot model elevator. In the case of a child who caught her hand in a car door hinge, Ondricek created a life-size mock-up of the vehicle's side and doors.
Some consultants help lawyers test-market their themes and arguments as if they were soft drinks. Willie Gary of Stuart, for example, finds volunteer jurors before whom he stages mock trials in a mahogany-paneled courtroom just outside his office. Other lawyers use consulting firms to organize focus groups that are conducted behind two-way mirrors, where lawyers can watch reactions to their trial themes and arguments.
Such staging does not come cheaply. Prices range from $5,000 to $20,000 a day for focus groups, and as high as $50,000 for two to three-day mock trials.
Once reserved for only the most exotic or high profile cases, these services are becoming far more routine. "More and more I go into court now and there's a jury consultant on the other side," says Sanford Marks, a Miami jury consultant and president of Trial Technologies Inc., a Miami-based consulting firm that does everything from focus groups to witness preparation. "It almost is malpractice in a large case to not use the services of a trial consultant," he says.
Exhibits are also far more ambitious. Krupnick remembers when other lawyers came to see something as simple as a 3-foot by 4-foot enlargement of a steering wheel mechanism he used in 1972. Twenty-seven years later, he thinks nothing of reconstructing an entire hotel balcony to demonstrate how a toddler fell seven stories.
Two years ago, West Palm Beach plaintiffs lawyer Chris Searcy hauled a 10,000-pound section of railroad track into the courtroom to demonstrate how a poorly maintained switch led to a deadly accident in 1991. Such elaborate preparation can make a difference, particularly when the other side is unable, or unwilling, to ante up.
"Insurance companies are very frugal," says veteran insurance defense lawyer David W. Spicer of West Palm Beach, who had the opportunity to use a jury consultant for a recent trial against Bob Montgomery. Spicer won. "It's a big luxury," he says. "It's got to be a huge case."