This article is excerpted from John A. Jenkins's book The Litigators, which is being published this month by Doubleday. Copyright 1989 by John A. Jenkins.
I have what jurors want. They want charisma. They want a fight in the courtroom. They don't want placidity. They don't want a one-dimensional lawsuit. They came here for a show! And they want to do what's right. --Philip H. Corboy
When it comes to capitalizing on tragedy, nobody at the bar, at least nobody in Chicago, surpasses Phil Corboy, the white-haired wizard of liability law. Corboy earns millions of dollars a year representing clients in personal-injury lawsuits, but instead of shrouding his good fortune he veritably trumpets it; in his line of work, a rich lawyer means happy clients, and one big fee leads to another. If your injury is bad enough and the defendant big enough, Corboy is yours for a third of the recovery, plus expenses. When he spoke the words above, he'd just earned a $20,000 fee for four hours work settling a case, and he made no apologies for it. "You and I could have the same case," he boomed, "and I'm gonna get the client more. And that's why I'm entitled to that contingent fee."
Automobile accidents, unsafe products, workplace accidents, plane crashes, and medical malpractice are the sordid stuff of Corboy's lucrative practice, and in a career that spans a third of a century he has redefined the art of personal-injury law, taking each desperate case of human suffering and molding it into a commodity marketable to any jury in Cook County.
He packages his cases for the juries because, as he puts it, "trial lawyers are people persuaders. They are marketers." Corboy knows how to sell a case to a jury. Often as not, a Corboy trial means market research, lifelike models, day-in-the-life films, and snazzy charts: a little razzmatazz for the hoi polloi.
"It's show business! Absolutely! No question about it!" Corboy exults. "Yeah! The great trial lawyers of this country are pseudocelebrities!" Corboy fancies himself a pin-striped warrior against the establishment--a guy who looks like a corporate president, but who still feels like a scrappy Irish kid spoiling for a fight.
"I'm antiestablishment, but I'm accepted by the establishment," he says, in a voice that still carries traces of a brogue from the west-side Irish neighborhood where he passed much of his childhood.
"When the head of Montgomery Ward gets hurt, who's he gonna hire? Yet, when the head of Montgomery Ward finds out I've sued Marshall Field's and finds out I've gotten a million-dollar award, he thinks that's a travesty! He thinks it's terrible!
"If Iacocca gets hurt and he's hurt in the city of Chicago and he talks around and finds out who the best lawyer in the city of Chicago is, he'll be happy to hire me. Particularly if he finds out that I've knocked off Ford and knocked off General Motors. But if he reads in the paper tomorrow, before he's my client, that I got a big verdict against Ford, he's affronted, isn't he? He's terrified that it's going to affect his part of the establishment. But when he gets hurt, who's he gonna hire?"
Even by his own lights Corboy is a rogue, and in his own complicated way it is a role he savors for the acceptance it's finally brought to the neglected Irish kid who still broods within him. I want to be loved. I want to be stroked. I want to be accepted," says the policeman's son; even now he acknowledges he is battling his own family's "outcast mentality."
"I tweak the nose of the very establishment that embraces me when they need me! It's fun. I'm immune--there's nothing they can do to me! What can they do to me? My refuge is the jury. That's where I'm safe! Whatever battle I have to fight, no matter who my foe is, is right over in that courthouse." Corboy nods toward the Daley Center, which looms like a dull brown hulk diagonally across from his own office. "And that's where I can hold my own."
He is in his element practicing personal-injury law--a "swell" (his Irish slang for fat cat) who can have his wealth and still see himself as a rebel. "I'm antiauthoritarian and antiestablishment. I'm a hybrid, really, because the people in the establishment are quick to hire me whenever they need me.
"They trust me. Because they, too, like what they regard as the best. They themselves are entitled to me. In their minds, that's how they think. It's complicated, isn't it?
"I enjoy not having to be part of the establishment. But certainly I enjoy the benefits of it. It's fun tweaking them! I can say to them: 'When you need me, I'm here--and I'll be glad to help you, even though you're the first to criticize me.'"
The law firm of Corboy & Demetrio runs like a well-oiled machine, every part in place and working flawlessly. Pending cases are tracked by a $250,000 IBM System 36 computer specially modified for the firm's needs. Lawyers work on the platoon system, each specializing in certain types of cases and each backed up by an alter-ego legal assistant.
The firm does no hourly work at all. In Corboy & Demetrio's world, that's small-time. It is the contingent fee that gives the firm all its economic incentives, and other lawyers marvel at the money Corboy & Demetrio can afford to spend in their quest for a superior result. Corboy's firm, for instance, almost always does sophisticated market research before a big trial to determine what kinds of jurors will be best. "I can't afford it, even when I know he's doing it," laments one of the city's finest defense lawyers, an occasional Corboy foe. "What account would I bill it against? There's so much competition among the defense law firms for insurance-company business that I've already discounted my rate to $150 an hour for major clients. If I start charging them more, I'll lose the business." Corboy doesn't have to worry about that. No client will chastise him. He can spend the money and take it out of the recovery.
"Competence. Excellence. Constant striving for excellent execution of my responsibilities." Corboy's litany makes you want to stand up and salute. "We just don't consciously do anything that is not the extra yard."
And yet, even though it churns out big settlements and verdicts with such apparent efficiency, there is also a familial air to the place. It is a haven for the Irish and the Catholic--for people, like Corboy, whose blood is red instead of blue. Thomas Demetrio, Corboy's 42-year-old partner, is like a son to him, and except for a one-year judicial clerkship Demetrio has been working for the firm ever since he graduated from law school. But Corboy had known him long before that, because Demetrio's father operated the restaurant in Corboy's office building.
Corboy's oldest son, 38-year-old Phil Jr., nicknamed "Flip," is an associate at the firm. So is Demetrio's younger brother, Michael. The office manager is an O'Keeffe, and a whole family of Rooneys--five in all--also work as drivers and support staff. When somebody needs a messenger, a cry goes up: "Get me a Rooney!" Five of the office's 13 lawyers attended Catholic universities as undergraduates--Corboy and Demetrio both went to Notre Dame--and five went to law school at Corboy's alma mater, Loyola University.
Associates start at a $40,000 annual salary, but they can earn $250,000 a year or more along with special presents from the master, such as a new BMW or an all-expenses-paid vacation to anywhere in the world. Corboy genuinely likes his people. He calls young Bruce Pfaff, the only Ivy Leaguer in the bunch, "Mr. Cool." Cyril McIlhargie, the firm's malpractice specialist out of Bad Axe, Michigan, is "Mr. Doctor." And Orvin Kacprzyk, the law firm's newest associate until TV anchorman Joel Daly signed on part-time last November, is "the Polish Prince." Every day at 4:30, the associates gather with Demetrio for a meeting known in the law firm as "the call"--a status conference where cases are accepted or rejected, deadlines checked, and events of the day discussed. What started as an efficiency tool has become an integral part of each lawyer's support system.
But Corboy is the rainmaker among them all, the master business-getter at his 13-lawyer firm. The Corboy reputation is what lures so much business through the door--as many as 50 prospective new cases a week. And it is this astounding demand for its services that allows the firm to carefully select the two or three new cases it takes each week. The success is self-perpetuating, because it allows the firm to take only those cases where the defendant is so well insured, and the injury so grievous, that a big settlement or jury verdict is all but guaranteed.
By 1985, that penchant for skimming off only the best cases had stretched Corboy's winning streak in the courtroom to 17 years--a streak that helped the firm to produce verdicts and settlements of $46 million a year, and contingent fees of more than $13 million annually. Corboy alone takes more than $3 million a year out of the business, and it buys him the accoutrements of the superrich: a chauffeur-driven Cadillac, a $2 million foundation that bears his name, and a million-dollar 46th-floor apartment in Water Tower Place. It's a long way from the west side.
Corboy, 56 years old and going through a messy divorce when he moved into Water Tower Place in 1981, knocked out some walls and turned the place into a chrome-and-glass bachelor pad with a Matt Helm-style bedroom, a giant Jacuzzi ("Don't ask me how many people it'll fit!"), and a commanding view of Lake Shore Drive and Lake Michlgan. As a boy, he wore hand-me-downs from his cousin; but now, in the cedar-lined walk-in closet in his bedroom, there hang 10 silk bathrobes, 36 fine shirts, and dozens of custom-tailored suits. This man on a perpetual diet--he carries 168 pounds on his five-foot-eight frame--keeps no food in his kitchen. If Corboy wants something, he calls room service at the Ritz-Carlton. And he has no booze, either, having forsworn the stuff in 1977. "I figured if you were an Irishman and you hadn't drunk enough by the age of 50, there was no hope for you!"
This is where Corboy cloisters himself as he prepares for a trial, with boxes full of files spread out across his living room floor.
At Corboy & Demetrio, perhaps 10 percent of the cases go to trial, against a nationwide average of just 3 or 4 percent. The higher ratio at Corboy's firm has to do with the gravity of the cases accepted: they are rarely routine, and insurance companies are always more likely to bridle at the size of the settlements that Corboy and his people demand.
Corboy seldom gets enmeshed in a case until he is certain it is going to trial. It takes years for a case to wend its way through the Circuit Court of Cook County. Associates and legal assistants are more than competent to attend depositions and push the paper that precedes a trial.
When a trial is a certainty, though, Corboy becomes the firm's designated hitter. Alone or with the associate who has been preparing the case in the years since it came to the firm, he sits at the Louis XIV campaign desk in his living room, reading the entire file of depositions and motions and investigative reports until he's totally immersed. Messengers ferry files to and from his office nearby. If Corboy needs something, a Rooney is standing by. Corboy likens the whole process to "taking a tremendously satisfying bath. You become an expert in many details, in a small portion of a large discipline. And when it's over, the bathtub is emptied."
There are good reasons, of course, why Corboy & Demetrio turn down so many potential new cases. "Insurance plays a role," Tom Demetrio explains. "If we know that the defendant isn't insured, we're not going to take that case because there's not much we can do to help the plaintiffs, and we tell them so." That is the main reason for a turndown, but there can be others: "If he has filed 14 other lawsuits, we're not going to get involved with that person. He's too litigious. We want to like our clients, because we know, ultimately, that 12 people are going to have to like our client in order to give him full compensation."
Likewise, Corboy & Demetrio has no qualms about dropping a client if an anticipated deep pocket doesn't materialize. "We won't stay on that case," Demetrio explains. "If, despite whatever professional talent we have, it's not going to create a corpus, we'll get out."
Corboy shrugs his shoulders. Sure, it's an imperfect system. "Well, it's a very imperfect world."
Even though Corboy & Demetrio turn down many more cases than they accept, the ratio of refusals is by far the highest on malpractice cases. Of every 20 prospective malpractice cases that come to the firm, 18 are turned down outright by a legal assistant, without even conferring with one of the lawyers. On average, of the two that survive the initial screen, one will be accepted, the other rejected.
Simply put, the lawyers take so few malpractice cases because the odds are against them. Amid all the furor over malpractice insurance premiums and the liability crisis, the trial system's bias in favor of doctors has been ignored, but it is clearly there: when cases go all the way to trial, four out of five verdicts favor the doctor. A countervailing consideration, of course, is that malpractice cases also are the ones producing the biggest verdicts when the plaintiff wins.
So Corboy and his lawyers have to do their own cost-benefit analysis when they decide whether to take a malpractice case, balancing the risk of losing--and getting not a penny in fees--against the potential payday.
"You have to work your ass off on all malpractice cases," Corboy laments. "There's no such thing as an easy one. Where are the biggest verdicts today? In malpractice cases! And the lawyer has to break his neck to win 'em.
"Why do we turn most of them down? Because mostly there's no negligence. Or there's no damage. Or there's neither. Or we have a conflict." Corboy won't sue a doctor who has ever helped his firm or testified on some other client's behalf. "We regard it as professionally uncosmetic, discourteous, to sue the doctors who helped us with another client."
But when the malpractice case of Joan Karsten came into the office in 1979, Corboy decided to put his money on it.
Edward Karsten and his wife lived in booming, upper-middle-class Du Page County. He was a Cornell-educated stockbroker; she was a housewife who raised their four children in quiet Glen Ellyn, a vivacious 46-year-old known for her fine tennis game.
This much was clear: Joan Karsten entered the emergency room at Central DuPage Hospital on April 29, 1979, complaining of abdominal pain. Thirty-five hours later, an appendectomy was performed by a board-certified general surgeon who also happened to be a family friend. The surgeon found that the appendix had ruptured previously, and that the area around it had become infected; so, when he removed the appendix, he also drained the abscess. Eight days later, Joan Karsten was discharged from the hospital. Everything seemed to be fine. But within four days of her discharge, she experienced bizarre symptoms: her speech became slurred, her eyes rolled back into her head, and she had tremors in her extremities.
Although she was readmitted to the hospital, Karsten fell into a deep coma within five days. Specialists from every branch of medicine were called in, but nobody could understand the problem. When Karsten came out of her coma six weeks later, she was hopelessly brain-damaged. She was unable to walk independently or to feed herself. Her speech was labored. Around-the-clock nursing care was needed.
At Corboy & Demetrio, the case fell into the lap of David Horan, who at age 33 was one of the bright young associates in the office. After graduating from the University of Virginia, he'd continued on to its medical school, graduating in 1978. That was followed by a one-year residency at Washington University in Saint Louis. But suing doctors interested Horan more than being one, so he enrolled at the Washington University law school and got his law degree in 1983. His two-year stint at what other lawyers admiringly called Corboy U. came after that.
Horan earned $50,000 a year--a piddling sum compared to the check his boss cashed each January, when the prior year's books were closed. But Corboy was the rainmaker and Horan the nuts-and-bolts guy, and the roles suited them both. Horan, who had been born the same year that Corboy began his law practice, could afford it. At Corboy U., you serve an indenture for the experience.
Since he spoke the languages of medicine and law with equal ease, Horan was the office's in-house malpractice expert. Soon after he arrived at the firm, in 1983, he was given the Karsten file to evaluate.
By then the case already had a checkered provenance. The lawyer originally hired by Edward Karsten was becoming a circuit judge. Ronald Davis was his name, and he had an office in the same building as Corboy's. Davis needed somebody he could dump the case off to, and who better than his friend Phil Corboy? Corboy agreed to take it for the standard lawyer-to-lawyer referral fee. It was the customary Rule of Thirds. Corboy had a one-third contingent interest in whatever recovery he could get for the Karstens; Davis's old firm, in turn, would get a third of whatever Corboy got.
From the start, both sides in the case had been troubled by the absence of any clear-cut, easily explainable reason for Joan Karsten's tragic plight. The defendants could use that confusion to build their case on a theory of plausible denial: whatever the cause of Karsten's problems, it was something other than medical negligence.
But, as he thumbed through the medical records and the pretrial depositions, Horan theorized that the treating doctor, Robert McCray, must have done something wrong. There simply was no other plausible way to explain what had happened--and, of course, no other way to justify a fat recovery against McCray and the other doctors who had treated Joan Karsten.
As Horan viewed it, the 35-hour delay between Karsten's hospitalization and the appendectomy was crucial. Horan thought her appendix had burst during that period, spewing fecal material into her abdomen and thus causing an infection to begin. As the infection spread, what had first seemed to be a routine recovery became a worsening condition, until finally an infection was raging throughout her body.
During the second hospitalization, Horan speculated, Dr. McCray had had a chance to reverse Karsten's downward spiral by finding and draining a second abscess that undoubtedly had formed. The fact that he hadn't done so had ultimately led to an infectious condition called sepsis--literally, blood poisoning--that caused tiny blood clots to block the capillaries leading to the central nervous system. Such a clotting of the capillaries is called "disseminated intravascular coagulation," or DIC for short. Horan believed the infection-induced DIC was what had deprived Joan Karsten's brain of oxygen, thereby causing her brain damage.
Horan's theory boiled down to this: McCray waited so long to operate that his patient's appendix burst, causing an infection that led to brain damage.
Even McCray didn't argue with parts of the theory. In fact, by the time of his deposition in 1982, he too had come to the conclusion that the ruptured appendix had caused the infection-induced DIC. "Little capillary-sized clots," he lamely explained under questioning. "It would be like a lot of flea bites all over the brain. . . . But, since that's an extremely rare condition, nobody, to my knowledge, has been able to come out flat-footedly and say that she had that condition. We all say that we think she had it. Even if we all agreed that she did have it, then there is the question of how often do you see that following appendicitis? Medicine is like that. Sometimes you get rare things."
That was the thing about McCray. He could bumble around in his own kindly way and come off as a guy you'd cut some slack to, a likable Joe who meant no harm.
And even if McCray agreed in hindsight with the diagnosis of DIC, he certainly wasn't taking the blame for Karsten's condition. So the first thing Horan needed was a medical expert who would support his hypothesis.
Horan hadn't been present for McCray's 1982 deposition. In fact, no one from Corboy's firm had, because Davis still had the case then. But as he read through Davis's questions and McCray's answers, Horan now focused on an answer that Davis had either overlooked or ignored:
Q: "Is there any doctor in the field that has written on appendicitis that you consider to be an authority on appendicitis?"
A: "In a general sense, I would say that there are several."
Q: "Could you name one or two?"
A: "I could name one. H. Harlan Stone, I would say."
McCray remembered Stone as having written frequently in the medical journals--249 articles and six books, when somebody finally got around to counting. McCray also remembered where Stone had gone to medical school and where he was then teaching: Emory University in Atlanta.
Horan had an idea: if he could persuade this Dr. Stone to testify against McCray, it would be devastating to the defense. McCray's own words qualified Stone as the man most fit to judge McCray's work. McCray wouldn't be able to credibly disavow Stone's testimony. Everyone would see that.
Horan walked down the hall into Corboy's corner office and read back to him McCray's description of Stone. This could be their lucky break! Horan had already called Emory and found out that Stone had recently transferred to the University of Maryland's medical school in Baltimore.
"Get out there!" Corboy thundered.
Horan was on a plane to Baltimore the next day.
Stone had never testified for a plaintiff in a malpractice case, but young Horan laid out the facts of Joan Karsten's strange malady and then asked Stone a direct question: "If the medical records support what I've just told you, will you testify for us?"
Stone, a deliberate man who spoke with a resonant Georgia accent, said he'd think it over. Two weeks later, having looked at Karsten's file, he telephoned Horan and told him yes, this was definitely malpractice. Stone would testify.
Horan was elated. Stone's testimony would establish the three building blocks of the malpractice case: the delay in surgery, which led to the burst appendix, which caused the brain-damaging infection. Proving that chain reaction was crucial. All three would have to be in place, in that order, for McCray to be guilty of malpractice.
Corboy & Demetrio was pressing Karsten's case against four separate defendants. McCray, obviously, was the main target, but he had only a $1 million malpractice liability policy, hardly enough to make the case worth Corboy's while. So the lawyers were also suing one of McCray's partners, Dr. Glen Asselmeier, on grounds that Asselmeier hadn't acted quickly enough to readmit Joan Karsten to the hospital when she started having neurological problems after the appendectomy. They were also suing the Glen Ellyn Clinic, in which both Asselmeier and McCray were partners. Asselmeier and the clinic each had another $1 million apiece in malpractice coverage.
But the big tuna in the case was Central DuPage Hospital, which had a $5 million policy. Davis, the lawyer who originally had the case, contended that Central DuPage should be held liable because the hospital had failed to keep adequate records by which Karsten's doctors could be kept informed of her deteriorating condition. It was a thin case against Central DuPage, though, and when Corboy got the case he wanted to drop the hospital and concentrate on the doctors and their clinic. Nothing doing, Davis's old firm replied. Davis's former partners still had an ownership interest in the case, and they wanted to reach the hospital's deep pockets. Corboy grudgingly obliged. But his strategy still was to focus on the defendants he thought were most culpable.
The insurance company hired a lawyer for McCray and the clinic named Roger O'Reilly. He was an experienced trial advocate from Wheaton, 51 years old, shortish, squat, and freckled, with big, bushy eyebrows and red hair going to gray. O'Reilly's style, in conversation and in the courtroom, was a low-key counterpoint to the stentorian Corboy's.
Since Asselmeier was entitled to present his own defense, the insurance company hired a different lawyer, William V. Johnson, for him. Johnson, 45 years old with thinning blond hair, was a strapping, cigar-smoking man from Owensboro, Kentucky, who still spoke in a kind of slow, backwoodsy drawl. His appearance was as disarming as it was disingenuous. Johnson was the skilled senior partner of Johnson, Cusack & Bell, a downtown insurance defense firm, and he had gone up against Corboy in the courtroom a year before. That was a case that both men claimed to have won--a case that veritably guaranteed a grudge rematch between two of Chicago's finest advocates.
In that 1984 case, Corboy represented a promising young DePaul University law school professor, Randolph Block, who'd been left a quadriplegic after his automobile was struck on a country road by a construction-company pickup truck. The truck's driver was looking at a map instead of the road, and he'd run a stop sign and struck Block's Datsun at 45 to 50 miles an hour. The truck driver's wife and Block's grandmother had been killed. But Randy Block had suffered, at age 28, the worst possible injury: he'd been paralyzed from the eyes down, And yet, despite his injury, he had emerged from a six-month coma to become completely aware of everything going on around him.
Johnson, who represented the construction company's insurance carrier, hadn't believed Block's condition could be so bad. You could talk to Block and, watching his eyes blink back at you, wonder whether he could comprehend anything at all. So Johnson visited Block in his hospital room one day, to assess the young man's plight for himself.
By then, Block had learned to communicate with people by using eyebrow movements to type words onto a computer screen. His eyebrows were the only parts of his body he would ever be able to move. Laboriously raising and lowering them, Block typed out a message to Johnson: "I-'m s-o f-u-c-k-e-d u-p I d-o-n-'t k-n-o-w w-h-a-t t-o d-o."
Johnson called in Dr. Fred Plum of Cornell University's medical school, one of the world's leading experts on injuries like Block's. After reading the file, Plum told Johnson: "This is the worst injury known to man." Plum called it "locked-in syndrome," a ghastly injury that leaves the victim in a state of suspended animation, alive and fully aware of everything around him and yet unable to move.
Johnson and his client certainly didn't want this case to go to trial. So, before trial, Johnson offered Corboy $9 million to settle the case. The settlement would be one of the largest personal-injury awards in the state's history.
Nothing doing, Corboy replied. The white-haired wonder wanted $40 million. And, given the insurance policies in the case, he thought he had a shot at getting that much.
The Block case had the makings of a record verdict, so much so that the Chicago Daily Law Bulletin, the legal equivalent of the Sporting News for Windy City lawyers, covered the case like a championship bout. The construction company's $100 million liability policy was the prize, and, given that the company's driver was obviously at fault, the only issue was how much of that $100 million Block and Corboy were going to get.
Naturally, Corboy wanted to find out what kinds of jurors were most likely to give him what he wanted.
Three years before the Block case came to trial, Corboy had discovered how he could use sophisticated market research to gain an edge in the courtroom.
His client was an attractive young woman named Marirose Johnson. The five-foot-eight-and-a-half-inch blond was the most popular girl at Elizabeth Seton High School in South Holland, a gymnast and captain of the cheerleaders who was out on a date with a boy when his car was rammed from behind.
Marirose's 17-year-old date, Jay Michel, had had a few drinks and was driving her home at two o'clock in the morning when he sideswiped another car on the expressway. Both drivers left their cars in the left-hand fast lane and got out, leaving Marirose alone in Michel's car. Seconds later, a third car came roaring down the fast lane and plowed into the two parked cars. Marirose was left a quadriplegic.
The accident itself involved a complicated question of liability. Three cars were involved, and each of them bore some responsibility for what happened. If it hadn't been for Michel, of course, the second accident would never have happened. But the driver Michel hit had failed to move his car over to the shoulder--he was liable for that--and the third driver had caused the catastrophe by not paying attention to what was happening on the road ahead.
Corboy sued all three drivers--better to do that than leave an empty chair for everybody else to blame--but in fact only one of the three defendants was his real target. Michel's automobile carried $5.5 million worth of insurance. The other two drivers had $35,000 worth of insurance between them.
"Obviously," said Susan Schwartz, then a brand-new associate at Corboy & Demetrio, "you know who it is that we want to hit. We want to have the jury render a verdict for a large amount of money against the 17-year-old boy."
To find out which jurors were most likely to award big damages against the boy, Corboy paid $21,000 to a Chicago market-research company, Leo J. Shapiro and Associates, to survey a cross-section of potential Cook County jurors on their attitudes about the case. The Shapiro firm used the same kind of demographic-sampling techniques it would use to determine a consumer's preference for a new brand of soap powder, interviewing people selected at random and drawing a careful profile of their attitudes and habits.
The poll takers showed 713 people a small booklet that contained six illustrations and a short text explaining what happened that night to "Sue Carlson" and "Jeff Adams." "As a result of this accident," the booklet explained on the very first page, "Sue is now a complete quadriplegic; that is, she is paralyzed from the neck down, has no use of her arms or legs, has tubes connected to her body to collect bodily waste, has no control over her muscles or body functions, must be fed by others, will never have children. . . . In short, she must be cared for continuously by other people for the rest of her life."
The Sue Carlson pictured in the booklet actually was Susan Schwartz's cousin, but that was all right. The idea was to use the hypotheticals to explain how the accident happened, and then to ask eight pages of questions that would yield a profile of the person most likely to hold a teenage defendant liable for big money damages-the idealized juror for Corboy's side.
A month before the trial was to begin, the researchers reported back to Corboy. They had ranked the Cook County juror pool from 1 to 9, with a 9 being the kind of person most likely to find the young man guilty and award $7 million or more in damages, and a 1 the least likely to do so. A juror rated 5 or higher was more likely than not to reach the desired result.
The best jurors in the case were deemed by the computer analysis to be nonwhite female high school graduates--people who thought Marirose was being cheated out of a great life, just as they were. The research also yielded some "secret" questions that Corboy could ask during the voir dire, the first phase of a trial in which potential jurors are questioned, ostensibly to determine their objectivity and lack of bias.
Corboy's secret questions of the jurors might get them to unwittingly tip their hands. The secret questions were ones that seemed innocuous, but actually were loaded with meaning. The poll takers had found, for instance, that people who owned old cars, or who didn't drive at all, were more likely to vote Corboy's way, as were Protestants, people of Irish or Scandinavian descent, and people who liked to go hunting or camping. By asking prospective jurors about their backgrounds or hobbies, Corboy could find out whether they were likely to be his allies in the courtroom.
If, on the other hand, somebody answered yes to the secret question "Do you belong to a labor union?" that person was going to be a negative juror for the plaintiff. The same went for someone who was a registered Republican, or who owned stocks.
The worst jurors, from Corboy's standpoint, also turned out to be nonwhites, but the research suggested they were what some blacks called "Oreos"--black on the outside, white on the inside. The research specifically told Corboy to stay away from nonwhite male college graduates, because they had already attained the good life and probably wouldn't think Marirose could achieve all that they had.
From: Leo J. Shapiro and Associates
The pattern of response suggests that the best juror is one who places high (almost unrealistically high) value on the FUTURE that is lost to the girl.
People who are young and haven't as yet started their own "future," that is, they are unmarried, renters with incomes under $15 thousand, etc.; look forward to their careers with high expectations. They are good jurors because they see that Sue has lost her opportunity and assign a very high dollar amount to cover this loss. Other jurors who have a not-so-fabulous future themselves, in other words, they are lower income, blue collar, older with families to support, look at the prospect of this lost future for Sue with a great deal of sympathy perhaps because they believe that Sue, like anyone else, could have a great life and perhaps want such a life for their children or feel that they themselves were "cheated" out of such a life.
Not So Good Jurors
The other group is one where they themselves and probably their children have successfully made a "good life." They look at Sue's predicament differently, feeling that it is just a matter of putting an appropriate price tag on Sue's loss which in most cases is a lesser price than they would put on their own life and their children's. They have made it in life and feel that Sue might not make it as well as they did. Therefore, they feel she should get less than they do. . . . e.g., if they make $50,000 a year . . . mentally they juggle this for a period of say twenty to thirty years, throw in inflation and arrive at a figure of one to three million dollars as what Sue deserves. In other words, their own lives and income are the yardstick for measuring the settlement.
A few weeks after he got that memo, Corboy gave the judge in the case some questions he wanted asked of prospective jurors--ostensibly to determine whether they might be biased against his client, but in reality to create a profile of each juror that Corboy could then match up against the research already done by the Leo Shapiro firm. Corboy got the judge to ask about the jurors' educational backgrounds and occupations, what kinds of cars they drove, and whether they liked to go camping, hunting, or skiing. He touched on everything the market researchers told him to, and, unbeknownst to anyone else, what he came up with was a jury that the researchers had faith in. Including alternates, there were two 9s, two 8s, one 7, eight 6s, and a 4.
Corboy still went on gut instinct when he used some of his peremptory challenges, dismissing one juror solely because the man wore a toupee--a personal idiosyncrasy with the bushy-haired Corboy--and seating a man, the 4, even though the computer profile showed he would vote against the plaintiffs.
Corboy had been trying cases too long not to temper the computer printouts with his own intuition.
"I don't know any lawyers who know how to pick juries," he says. "All a lawyer can do is depick. Deselect. Use his own peremptory challenges in a very discriminating fashion. So he can get rid of those who look overtly bad and hope that those who are left will be susceptible to his persuasions.
"There are some general rules. What does a person do with most of his or her life? If I were a hangman at Buchenwald, you know what I do with my life. Do I, as a hangman, have much concern for human dignity and life? No! Let's try to translate that. Do cops? No. Do sociologists? Yes.
"Cops don't have that concern for life because they see nothing but rapes, murders, liars, and thieves every day of the week! You don't want cops. And you don't want people in the atmosphere where cops are. You wouldn't want a bartender in a cop bar. You wouldn't want a waitress who does nothing but hang out with cops.
"You wouldn't want a lawyer for a variety of reasons. Lawyers are know-it-alls. And every lawyer in the world doesn't think I'm the greatest guy that eats Campbell's soup. Why should I run the risk of having some lawyer who may think he can do it better? Or who has sour grapes? I wouldn't take the chance."
Corboy even began using an all-night Flash Cab driver, Ed Mika, as a kind of poor-man's jury consultant. Mika knows all the Chicago neighborhoods so well that, just by looking at a prospective juror's address, he can tell Corboy the resident's probable income, social status, political affiliation, and ethnic background, as well as whether the neighborhood is a high-crime area--each answer a bit of information about how the juror might vote in a case.
Mika, 67, has been moonlighting for Corboy for nine years. He got the assignment after Corboy hopped into his cab at a downtown restaurant late one night and gave Mika an address he thought Mika might not be able to find.
"So I said 'Sir, just to get the record straight, I'm going to call out the streets one after another, but I'm going to stop when I run out of breath.'" Mika recited them so quickly he could have won a role in a Federal Express commercial. "Needless to say, he stopped kidding me," and a week later Corboy called to offer him a job.
Here, in the Marirose Johnson case, was where all that experience in jury selection would translate into an instinctive decision. The research in the Marirose Johnson case, after all, told Corboy he should have an all-woman jury. But the 4, Nello Magrini, a 62-year-old blue-collar worker, was of Italian background, and Corboy's gut told him this man would help him. "I looked upon him as a warm-blooded Mediterranean, an Italian, someone who had a zest for life, who had lived and who appreciated life." As it turned out, Corboy's sole deviation from the research was right on the money.
Corboy had been holding out for a settlement that paid him and his client the full value of all the insurance policies in force on each car: $5,535,000. The night before closing arguments were to begin, the insurance companies offered $4 million, and, when Corboy rejected that, they came back the next morning and met his demands in full--an Illinois record for a traffic accident. That meant there was nothing left for the jury to decide--or was there?
When Corboy told the judge about his then-novel use of market research in jury selection, the judge suggested an experiment: let the jurors vote on damages anyway, to see whether Corboy's research would really have paid off.
The result: Nello Magrini, the warmhearted Italian whom Corboy took a chance on, was willing to award the most money: $8 million. Even without hearing Corboy's closing argument, almost everyone else said she would give between $3 million and $5 million--in other words, just about what Corboy finally got in his settlement. Not a bad first effort. Corboy had begun to craft another tool for getting the edge in a big case.
"The jury voir dire is the most important part of the lawsuit," he says with a resoluteness that belies his own considerable courtroom talents. "After the jury is picked, the case is over."
Corboy's firm was on a roll. Every year was better than the one before, and the several years following the Marirose Johnson case certainly produced their share of million-dollar awards. But even Corboy and his partner Demetrio hadn't expected all the riches they began to realize in 1984.
Tom Demetrio had started things off the year before with a record-setting victory in Cook County Circuit Court that hadn't been paid until the defendant's appeals ran out the following year. Demetrio's case involved a young mother whose Datsun had been struck by a semitrailer, killing the mother and her eight-year-old son, and rendering her ten-year-old boy a brain-damaged quadriplegic. These were the kinds of cases that were worth the most in the personal-injury trade: it would take millions of dollars to compensate such a horribly injured child for all the pain and suffering he would endure, to say nothing of the special treatment he would require.
Spurning an $8 million settlement offer two months before trial, Demetrio decided to take his chances with a jury. Not many lawyers would have done that, but such uncompromising evaluation of cases was the rule at Corboy & Demetrio. The lawyers took no prisoners. Defendants either paid the firm's settlement demand or took their best shot with a jury--a jury that, once again in this case, was going to be chosen with the secret help of a $28,000 survey of 1,001 registered voters conducted by Leo J. Shapiro and Associates, and, of course, with the curbside advice of Ed Mika, the Flash Cab driver.
Two months before the trial, Demetrio knew the kind of jurors he wanted: women who were Democrats, 34 years old and younger, high school graduates, married with three or four children, who thought abortion should be illegal. Their children should be involved in sports and the women should take pride in their homes and their families. The computer tabulation said Demetrio should challenge women aged 35 to 49 who were college graduates earning more than $40,000 and had no children.
When the 12 jurors voted after the three-week trial, they set still another record with their award: $11,876,000, all but a million of it for the disabled boy. The trucking company unsuccessfully appealed the verdict, and then, in 1984, it paid Illinois' largest judgment ever: $12 million. Four million dollars, plus $147,877.20 in expenses, went to Corboy & Demetrio. Demetrio's gamble of not accepting the $8 million settlement had produced, for him and Corboy, a 50 percent higher judgment and another $1.4 million in contingent fees.
In 1984 the Shapiro organization was also doing some jury-selection research in the case of Randy Block. Corboy thought the Block case might produce an award even bigger than Demetrio's $12 million. He was demanding $40 million from the insurance company just to settle it.
The key to Corboy's strategy was his use of the challenges given to him during the voir dire questioning of the jury pool. Roughly translated, the French phrase means "to say truthfully"--legal jargon for the process by which the judge and, sometimes, the lawyers can question jurors under oath about their backgrounds and beliefs.
During the voir dire, each lawyer can challenge an unlimited number of prospective jurors "for cause"--that is, because they give answers that show a potential bias. But the lawyers also can exclude a limited number of jurors without stating any reason at all. These are called peremptory challenges, and in the Block trial Corboy and his opponent, Bill Johnson, would each get eight. Corboy's research was designed to help him make the best possible use of his peremptory challenges. More than anything else, he wanted to use those challenges to exclude potential jurors who would be ideal to Johnson's side.
What Corboy didn't know, though, was that Johnson was using a jury-selection consultant, too. While Corboy was paying Ed Mika to keep his meter running and the Shapiro firm $18,000 for its market research, Johnson had retained a $1,200-a-day husband-and-wife psychological team from Dubuque, Iowa.
This time, Shapiro's 1-to-9 classification of prospective jurors showed that the best jurors for Corboy would be minorities who had strong family ties and who voiced strong support for the statement "Life is sacred, no matter what." Women and white college-educated males about the same age as Randy Block--young men with their lives still ahead of them--would also be good, but the worst jurors would be white men over 50 with a college education. Corboy got pretty much the jury he wanted. It had eight men and four women. Five jurors were black. Nine were rated 6 or higher. One of the potential jurors Corboy excluded had a Germanic-sounding name, wore his hair short, and had a thin, wispy mustache that made his face look, to use Corboy's word, "pinched." Another of Corboy's peremptories went against a Christian Scientist who didn't believe in medical care.
But Johnson also got a jury that suited him and his psychological experts. Thomas Sannito, one of the experts hired by Johnson, was basing his decisions on traits and personal appearance. As a defense consultant, Sannito liked jurors who "steepled" their hands together when they answered questions; he said it was evidence of a feeling of superiority that would hurt the plaintiff in the jury room.
Sannito also counseled Johnson to reject certain "strong" jurors who would most likely influence others during the deliberations. A high school biology teacher described by Sannito as "a very sweet, warm, and understanding person [who] was very bright, and talked very quickly and easily" thus was excluded. She "had big, open, blue eyes and big, full lips," Sannito observed. "Her dress was casual but she was daring enough to wear a bright yellow sweater. If you put it all together, you realize she would be a very nice person to know, a very nice lady, very dear and compassionate, but probably would have a great deal of sympathy. She would be extremely dangerous for the defense because she also appeared to be influential and could impose her beliefs on others."
Sannito usually didn't like a juror whose Xs in the boxes on the jury questionnaire spilled out over the edges. That, Sannito suspected, indicated a devil-may-care attitude. But he put aside that suspicion for a man with vertical worry lines down the center of his forehead. Those kinds of creases, Sannito believed, indicated an exacting nature--the kind of person who wouldn't throw money around carelessly.
Still, no matter how much he'd psyched out his jury, this was not the kind of case on which Johnson wanted to go up against Corboy.
There was, after all, no disputing who was to blame. Right after the wreck, the other driver had even emerged from his pickup truck and confessed, "I'm a hundred percent at fault!"
There was also no question about the brilliant career that had once lain before young Randy Block, an accomplished swimmer on his Princeton University team who'd gone on to graduate from the University of Chicago law school. With LSAT scores in the 96th percentile, he'd been an associate at one of the city's most prominent law firms, Reuben & Proctor, and it was likely he would have returned there to make his fortune after teaching a few more years at DePaul.
"One thing we do agree on," Corboy leaned over and cracked to Johnson in the courtroom, "his LSAT scores are higher than yours and mine put together!"
Randy Block's family also had clout in the city. His father, George, was an internationally known surgeon who was chief of staff of the University of Chicago's Billings Hospital, where Randy Block had remained in a coma for six months after the accident.
George Block and Philip Corboy, two men roughly the same age who had each seen much tragedy, found an affinity in their private pain. It was George Block who had the final say on whether to take the ever-higher settlement offers that periodically were proffered by the insurance companies--offers that were based on the theory that Randy Block had been so badly injured that he couldn't possibly live more than a few years, and that his damages for lost wages, pain and suffering, and medical care thus were way out of line with Corboy's stratospheric $40 million demand. But Block demurred. The surgeon-father wanted to keep fighting on behalf of the son he still believed would live to a normal life expectancy.
And Corboy stopped at nothing. He spent the better part of six months preparing for the trial to come, even going so far as to obtain and study copies of every closing argument Johnson had ever made. With the University of Illinois playing in the Rose Bowl on New Year's Day 1984, one of Johnson's young associates, 27-year-old Pat Morris, threw a big party and invited over another young Illinois alum, Terry Lavin from Corboy & Demetrio. Lavin begged off, and Morris was incredulous. "I can't believe you're gonna turn down this party!" he remembered saying to Lavin. "What's so important that you can't come over?"
"You'll see," Lavin replied. And Morris did. With the trial about to begin, Corboy was anticipating that Johnson wouldn't argue the issue of who was at fault and would, instead, use his opening statement to go directly to the issue of damages. Lavin thus was spending New Year's Day preparing a motion for a directed verdict in favor of Randy Block--a motion in expectation of an argument Johnson hadn't yet even made!
Corboy, of course, had guessed right. So, when Johnson admitted that "my client was 100 percent at fault, or almost 100 percent at fault" (a qualifier that momentarily let Johnson slip off the hook), Corboy immediately made his motion, offering Lavin's previously prepared brief arguing that since guilt was no longer an issue Block should get a verdict in his favor.
"Now you know what I was doing," Lavin told Morris impishly.
The central issue in the trial was going to be damages, and that, in turn, depended on how long Randy Block might live. Corboy's medical witnesses claimed that Block's life span hadn't been shortened by the accident, but Johnson brought in the world's leading expert on "locked-in syndrome," Cornell's Fred Plum, who testified that Randy Block's condition greatly diminished his life expectancy, and that it was strongly probable that Block would be dead in two years.
By the morning of Friday, February 3, Corboy and Johnson were nearing the close of their trial in the Daley Center. Plum was in the box, and Corboy began his crossexamination with the customary pleasantries--"Good morning, doctor"--as he maneuvered to find his ground.
Plum was a scholar, a professor, and a physician with an active private practice. "You are a very busy man?"
"I think that"s fair," Plum replied.
Corboy wanted to know whether Plum believed he had a responsibility to look at his patients, no matter how busy he was.
Corboy shot back: "Did you ever look at John Randolph Block?"
Plum: "No, sir."
Plum was testifying only from what he'd read in Block's medical records. Even though that was common practice for expert witnesses, it still looked bad for Plum. A plus for Corboy.
"By the way," Corboy went on, "this terrible, terrible condition that you find by looking at these records of John Randolph Block, stems from what?"
Plum was playing the absentminded professor now. "Can you help me with--, I'm not sure what you are asking. What does his condition stem from?"
Corboy lurched impatiently forward. "Did he fall out of a tree?"
Everybody knew the answer. It was Corboy's way of making the point for the jury that Block was, after all, just an innocent victim. Corboy wanted to put Plum on trial, not Block. And he wanted to do that by taking the rest of the day to painstakingly build his cross-examination around two essential points: that Fred Plum, the defense's own world-renowned expert, considered Block's condition to be the worst known to mankind; and that even Fred Plum couldn't deny that Block might live in this agonizing state until he was an old, old man.
"Mr. Johnson asked you if you coined the phrase 'locked-in syndrome,' do you remember that?"
"Did he ask you anything else about locked-in syndrome?"
Now Johnson was on his feet, objecting. Corboy had to ask his own questions, not get Plum to repeat Johnson's.
Corboy began anew, "Have you any idea why he asked you about the term locked-in syndrome?"
Johnson objected again, but this time he was overruled.
"I assume," Plum replied, "'he was establishing my credentials."
"OK, OK," Corboy rejoined with evident sarcasm as he continued this desultory line of questioning. "So, your credentials, is that the only reason you are here today with reference to John Randolph Block is to establish your credentials?"
"No. Credentials for understanding the nature of his condition."
"Well," Corboy came back, "what's his condition? I guess that's what I'm trying to find out."
"Well," Plum said a little incredulously, "he is locked in."
"Oh, OK," Corboy feigned surprise. "You never told us that before."
Johnson couldn't believe it. "Excuse me, your honor. If I forgot a question that Mr. Corboy wants me to ask, I will be pleased to ask it. I don't think there is any issue."
The judge told Corboy to get on with things.
"Is John Randolph Block the victim of a symptom which is called locked-in syndrome?"
Yes, Plum finally answered.
Now Corboy could nail down the first of the two points he wanted to drive home to the jurors.
Could Block communicate like an adult?
And if Block could communicate like an adult, could he also suffer like an adult?
Suffering and language were two different things, Plum answered, but, yes, "I assume this man has the capacity to suffer. . . . This is a man who, through his communication devices, expresses deep depression and suffering because of his inability to communicate. I think that is justifiably called agony."
Q: "Can you think of anything worse and still be alive? Can you think of anything worse to a human being than being locked in a locked-in condition, knowing there is a world out there that you cannot comprehend?"
Q: "And this condition of being locked in and knowing there is a world out there, that you are inside of a body of, like in jail, is permanent in this young man's condition, is it not, sir?"
A: "I think so. Yes."
Those were the answers Corboy wanted: there was nothing worse than Block's condition, and it would never change. Such a clear acknowledgment by the defense's main expert wouldn't go unnoticed by the jurors. Now, Corboy was going to spend the rest of the afternoon setting up the doctor for the coup de grace, the last question that he would splatter all over Plum and then walk away.
Corboy handed Plum a copy of an articie Plum had coauthored in the Lancet, Britain's most respected medical journal.
"I would like this marked as an exhibit, your honor," Corboy said as he handed Plum the article.
Johnson protested. Corboy hadn't previously given his opposing counsel a copy of the article.
"I'm very sorry," Corboy said solicitously. "I apologize. I thought that you had given them to me. You supplied me with all of Dr. Plum's writings, and I thought that you had one. Excuse me. I apologize."
Johnson bridled. Corboy could kill you with kindness, which was just what he was doing now. Corboy was using his feigned politeness to show the jury that the article he was now showing Plum had actually been given to him by Plum. That gave the article an added aura of authority--and it let Corboy take the high road. He was surely going to ask an embarrassing question using a surprise document, but he was just as surely going to deny he'd done anything other than show Plum a document that Plum himself had given Corboy in the first place.
Corboy apologized once again to Johnson, and then reminded him, "But you did give me all of his writings, and that's how I found out about it."
"Now," Corboy turned back to Plum, "if you'll go to the first page, you'll see your name, will you not, doctor?"
"And right under it it says: 'Fred Plum, New York Hospital, Cornell'?"
"That's you, isn't it?" Corboy was circling. Moving in.
"Then does this not say under your headline: 'Patients with severe brain damage due to trauma or ischemia [oxygen deficiency] may now survive indefinitely'?"
"Yes," Plum replied, looking for a way to blunt Corboy's point, "for which I could substitute the term 'now survive for no prescribed nor predetermined limit.'"
"But you didn't, did you, doctor?"
"No, no, but I mean, that's the definition."
"But you didn't, did you, doctor?"
Corboy bore down harder. "In the first paragraph of that, in the summary of it: 'Patients with severe damage due to trauma or ischemia may now survive indefinitely.' John Randolph Block was a patient with severe brain damage, was he not?"
"It was due to trauma?"
"You started out by telling your readers: 'Patients with severe brain damage due to trauma or ischemia may now survive indefinitely,' did you not, sir?" Corboy was going to make doubly sure the jury didn't forget that sentence.
"'May now survive indefinitely,' yes. . . . May."
"And it's not an exact science, medicine, is it?"
"So when you say he may die in two years, he may live a lot longer than two years?"
Plum didn't answer the question, so Corboy barreled ahead. "But whatever the reason for writing it, you knew that your people in your peer group would read it! And you wrote it it at a time, as you know right now, that there are no national statistics with reference to longevity or mortality with reference to the locked-in syndrome, are there, doctor?"
"Not for locked-in."
"Thank you, sir, I have no further questions."
Travelers, the defendant's primary insurance carrier, had already paid Johnson's firm more than $150,000. Corboy was out of pocket $114,206.91, although he would get all that back, on top of his one-third contingent fee, if he won the case.
Now, just as closing arguments were to begin, Johnson made his last effort to settle the case: $9 million. Corboy talked it over with George Block and gave Johnson his reply. Nothing doing. They'd let the jury decide.
Johnson was resigned to a big judgment, maybe even a record setter, as the Chicago legal newspapers were predicting. Christ, he even came right out and told the jurors to render a verdict against his client. Four million dollars, Johnson told the jury. That's what he said the verdict should be. "I can't believe I'm doing this," he said to himself then. "I never thought I'd stand up before a jury and tell them to find against my client for $4 million!"
Privately, though, Johnson had set his own goal for the case. He wanted to keep the jury's verdict below $10 million. Anything under $10 million would be a solid victory as far as Johnson was concerned, particularly since Corboy was asking the jurors for $40 million.
But once in the jury room, the jurors proved to be just as divided as Corboy and Johnson on how much longer Block would live. That was the only real issue, after all, but Plum's testimony that Randy Block would only hold on a few more years preyed on their minds. The first thing they'd done, after electing a foreman, was to cast secret ballots on how long each juror thought Block would live. It was like "playing God," foreman Robert Stagg said, but they had no choice. The jury's estimate of Randy Block's longevity--five to ten years--was a compromise, and so was the verdict they settled upon soon thereafter: $9,000,332.05.
(Seven and a half years after the accident, Randy Block remains alive, still lucid and still locked in.)
Johnson was elated. He'd kept the verdict within his own private goal. Johnson considered this a big victory over Chicago's courtroom master--and Corboy evidently did, too. As soon as the wizard heard the verdict, he walked out of the courtroom.
Johnson didn't even appeal. His client wrote out a check almost on the spot, and the Chicago gossips played it like the $3 million windfall it obviously was for the law firm of Corboy & Demetrio. "Band on a run," ran the jazzy headline in the Tribune. "The major leagues of verdicts is still down the street at the Daley Center, as one of the town's all-stars has proved again. Media fixture Phil Corboy may be too high-profile for some tastes, but give him his due and revise the record books. In a period of five weeks, Corboy and partner Thomas Demetrio have snared jury verdicts worth $21 million . . . and last week Corboy won $9 million for a law professor who suffered brain damage in a truck crash. Okay, now roll the cameras."
Corboy saw it differently. It wasn't much of a victory when the jury gave him what the defense was already offering in settlement. But Corboy was also going to have a chance to even the score, because the Karsten case would be coming up for trial the following year, with Johnson once again on the other side.
In a real-life scene that looked like it was scripted for L.A. Law, the young lawyers of Corboy & Demetrio pile out of their offices up and down the firm's main corridor in response to a disembodied summons from the office intercom. It is time to assemble for "the call."
Todd Smith, the firm's senior associate, sits at the head of the table ruthlessly running through a 14-page agenda, barking out the names of clients for which the firm would make court appearances the next day.
"Got it!" somebody quickly yells back.
"Got it. But I could use a backup on that. At 1:30."
"Put me down," a colleague replies. "Low on your list!"
And so it goes in a daily checkoff for the assembled lawyers of cases on trial, motions due to be filed or replied to, depositions to be taken, statutes of limitations about to run out, and finally new cases to be voted on.
Smith looks over at Cyril McIlhargie, the firm's new medical malpractice ace (David Horan, his predecessor, having set up shop back in Saint Louis as a consultant to both doctors and lawyers in medical malpractice cases). "On the White case, Cyril?"
"And Vlasek is rejected." Smith dispatches one of his own prospective cases with equal efficiency,
The call at Corboy & Demetrio is unique, and its importance is in teamwork and creating a sense of community among the 13 busy lawyers there. It is a time for serious discussion, ribald humor, or just venting the frustrations of a rough day. The afternoon meeting is also a place where, as Demetrio puts it, "everybody helps each other out. Egos are not involved. Somebody's not afraid to say 'I don't know.' Sometimes, if there's a pretrial settlement conference and one of the lawyers is having trouble determining a reasonable settlement value, we'll discuss the case. Sometimes we bring new clients in. It's a time of day to help each other."
"No time for turf wars," says Orvin Kacprzyk. "We're too busy trying to be the absolute best."
Now Kacprzyk, an engaging guy who wears a punkish flattop and favors tennis shoes and jeans as his office uniform, clears his throat and solicitously explains to his colleagues: "I received a call today from Mrs. Ryan, whom we formerly rejected. She was so impressed by the way we rejected her that she wanted us to take a look at her case again."
The woman's husband was killed in a railroad yard accident. Corboy & Demetrio rejected the Ryan case because she already had an attorney, but now the woman has fired her first lawyer. The older attorneys sitting around the table pepper Kacprzyk with questions: Was the man a railroad employee? Yes. Who would the third-party defendant be, then, since under the workers' compensation law you couldn't sue your employer? Was a lawsuit ever filed by the first lawyer? What's the statute of limitations? Was there an inquest? Demetrio, standing back against the conference room wall, weighs the answers and says it doesn't sound like much of a case. "I agree," Smith adds, "but we probably oughta have her in."
As soon as the call ends, Kacprzyk eagerly heads for the conference room phone. "Hello, Mrs. Ryan? This is Orvin . . . Can you come in tomorrow?"
The next afternoon, he eagerly returns with another new case. "T.M. Mandrake is driving northbound on I-55 in Joliet when a southbound automobile crosses the median, gets airborne, and tears off the right side of her car." Kacprzyk describes his case with the painstaking precision of a rookie. "All of her passengers are killed, including her sister and two nephews. She has sustained an open compound fracture of her right arm, chipped tooth, multiple lacerations and contusions, and she's seeking our advice.
"Defendant driver is 17 years old. The car is registered to his father's name. Defendant's insurance company, State Farm, has already tried to contact Miss Mandrake. She knows that her sister's car was insured, but doesn't know the amount of coverage as of yet."
Flip Corboy breaks in: "What's the question?"
"Shall we see her?" Kacprzyk says meekly, and the room goes wild with laughter all around.
"The CASE-O-METER is at 10!" blurts out Kenneth Miller amid still more guffaws. Miller, 45, is the firm's oldest, highest-paid associate. He earned $250,000--with a new BMW thrown in as a bonus--the year before from airline-crash cases.
Kacprzyk tries to continue. "She called me last night at home."
"Why weren't you at her house this morning?" Miller asks slyly.
Adds Todd Smith: "Get that Firebird fired up, boy!"
Only one lawyer at the firm doesn't regularly attend the call: Corboy senior, the man himself, is the one who stays away, and it almost seems as if his ambivalence about straddling the line between roguishness and respectability has also found its way into his feelings about the firm. To the outside world, he is the firm, and he likes being the face man even though it means that he supervises his domain from an uncomfortable distance. Corboy is complicated like that. He can burst in on the call and stand, shifting from foot to foot, alongside Demetrio, preppy and blond, the boy next door with his surrogate dad. Look up a few minutes later and Corboy has disappeared again. He is hands off and hands on--a product, like so many of us, of his own insecurities.
It was those insecurities that motivated Corboy to become one of the nation's finest trial lawyers. He chose personal-injury law because "I genuinely wanted to be financially secure. I wanted it. Needed it. I didn't think in terms of big money. But I wanted to be able to do what I wanted to be able to do." He didn't want the life his father had led as a Chicago cop who earned $50 a week and lost the family house in the Depression. Didn't want that even though his younger brother, Daniel, joined the force, too. "Trial law was a way of getting away from that."
It was also a way of getting the attention and the adulation that he'd been denied by parents who were too busy with each other to do much for their kids. Corboy's mother was ill during his childhood, and she died of nephritis at age 41. It was Corboy's uncle, Daniel Harnett, a Roman Catholic priest, who was closest to him. And even though Corboy got the proper Catholic schooling and some support from his extended family, he was an outsider even in his own home.
He hungered for approval, for some sign that he was doing all right.
"I was not given the attention as a child that, in retrospect, I probably thought I was entitled to," Corboy says, probing thoughtfully for the reasons why he strove to stand out in what was already such a high-profile profession. "A shrink would have to determine that." Pause. "My mother was sick when I was a kid. That might have had something to do with it. Most Irish Catholic mothers smother their children with love. I don't think my mother had time for that, because she was ill most of my childhood life. My dad was a policeman who had very little money. He had a lot of problems just paying the medical bills. My clothes always came from my first cousins, and they always went after me to my brother. That might have given me some need for recognition, and some need for stroking and attention."
That self-knowledge has brought with it the realization that most of his peers aren't all that different. "Very few trial lawyers were born rich," Corboy notes. "Most of the great trial lawyers are people of my ethnicity. Irish. Or Jews. People who have not been accepted by the establishment. They're outsiders, for the most part."
What Corboy remembers most about his uncle is how much the priest taught Corboy about himself. "From the time I was seven years old, I was always treated as an adult. I was trusted as an adult." Corboy remembers how, as a 16-year-old, he smashed up his uncle's car. Corboy was afraid to drive again, but Uncle Daniel took young Phil out that night and put him behind the wheel of another car, so he could show Phil what he'd done wrong. "My uncle wasn't concerned about the car, he was concerned about me. That's why I don't have any concern with material things that are damaged or hurt or stolen. They can be replaced. People can't be replaced."
A man who sees grief daily, Corboy knows that well. With cruel irony, the lesson was repeated when his youngest son, 12-year-old Bobby, was killed on a suburban street corner. The youngster was on an errand to buy cookies. He'd just parked his bike when an out-of-control auto jumped the curb and struck him. The 17-year-old driver was uninsured. Corboy never sued. Instead, he and his wife Doris created a charitable foundation with the $100,000 he collected from his own insurance company. Over the years, he has added millions more to the Robert J. Corboy Charitable Foundation, using the money, among other things, to build a moot courtroom for his alma mater, the Loyola law school. After his divorce, he resigned as a trustee of the foundation, but by then he'd already started a new trust, the Philip H. Corboy Foundation, and funded it to the tune of a cool $2 million, The new foundation's latest project: to give the archdiocese of Chicago a million dollars for the inner-city Catholic schools that Corboy himself attended many years ago.
And yet, for all his grief over the loss of a son, Corboy takes pains to say that he feels no special affinity for his clients as a result. "It had the same effect on me as it would have on any father. It was devastating. It was a terrible, terrible experience. But it had no more effect on me as a person than it would have if I were a bartender. It was a terrible, terrible experience.
"It did not supply me with any asset. Because tragedy is personal. It did not give me any insight into other people's tragedy. I would never call upon it as a resource, or an edge to understand something or somebody. Nor have I consciously done it. Why? Because tragedy is so personal. So different. Every tragedy is different for every person. If nothing else, it taught me that. But I already knew that."
Still, you can hear in Corboy's words the gradual awakening of a man opening himself up to the pain and the insecurity he's been trying to deny for so long. Sure, he is fiercely proud of being his own man; he still says he doesn't care what most people think of him. "I'm sure there are a lot of people who wouldn't go to my funeral. A lot of people who'll sort of smile when they read my obituary. Most people are kind of two-faced. You can't go through life, visible, and not have people dislike you." But he also sees his children--his oldest son Flip, a daughter, Joan Corboy, who is a Cook County Circuit Court judge, and two other sons, John and Thomas, who are a doctor and a filmmaker respectively--and his law firm as his legacy. Corboy wants to make some of his other lawyers partners in the firm, too, so that the law firm will be self-perpetuating.
"What good's a law firm if you're dead?" Corboy wonders aloud. "My kids and Tom Demetrio are what this whole world's about, as far as I'm concerned. Your children, when it's all over, are all you've got. They're the only thing that counts. All the goddamn money, and all the acclaim, and all the celebrity, and all that, doesn't mean a thing in the end.
"Money comes so easily. At first it was startling. But then you take it for granted. And you wonder--well, why do some people just keep running for the sole purpose of making more money? That's not why I'm working. I think people who retire die. I want to practice law the way I want. I want to keep pursuing excellence."
Thursday, February 7, 1985. Corboy was already holed up in his Water Tower apartment, preparing for the trial of Karsten v. McCray, which would begin the following month. By the time opening statements began, Corboy meant to know more than the doctors themselves did about Joan Karsten.
Meanwhile his adversaries--Bill Johnson, his nemesis from the Randy Block case, who now was representing one of Karsten's doctors, and Roger O'Reilly, the lawyer representing the lead defendant, Dr. Robert McCray--were amassing proof for their theory that Joan Karsten was already very sick when she came in for her appendectomy.
One of the defense lawyers' theories was that Karsten had a rare and dormant blood disorder that somehow had been triggered by the stress of the appendectomy, without any fault on anyone's part. O'Reilly and Johnson were going to try to prove that this rare condition, known as thrombotic thrombocytopenia purpura, or TTP, had caused the tiny blood clots that cut off the oxygen to Joan Karsten's central nervous system and left her severely brain-damaged.
They also had found some medical support for another theory: that long before the appendectomy, Joan Karsten was suffering from some other neurological malady. Karsten's husband had told one of McCray's partners about his wife's hospitalization in 1972 for what her doctors then thought might be multiple sclerosis. Tipped off by McCray's partner, the two defense lawyers found the neurologist who had treated Joan Karsten in '72, and they examined her earlier hospital records. They discovered that her doctors had been concerned enough then to recommend that Karsten enter the Mayo Clinic for more tests.
The evidence of some preexisting condition was confusing, even contradictory, but it wasn't up to O'Reilly and Johnson to provide a conclusive reason for Karsten's tragedy. All they had to do was to raise some big doubts in the jurors' minds about what had really happened.
Young David Horan was going to do his best to stop them. A lawyer born the same year, 1952, that his mentor Corboy began practicing, Horan was new to this world of high-stakes malpractice cases. But he was a real go-getter, and his medical degree gave him a clear advantage. That was why Corboy sent him out on this particular Thursday morning, a month before trial, to take the deposition of the doctor who both Corboy and Horan thought was going to be the defense's star witness.
A deposition is a fact-finding exercise, an examination under oath that lets the other side freely explore the testimony and evidence expected to be presented by a witness at trial. The subject of the deposition is called the deponent, and on this particular day the deponent was a fairly accommodating witness named Dr. John M. Shaw. Shaw was an assistant professor of hematology and oncology at the Northwestern University Medical School, and he had given depositions many times before. The defendants were paying him $200 an hour. What made him that valuable was his experience in treating patients with the rare condition known as TTP. O'Reilly had already told Horan that Dr. Shaw was going to link up the allegedly preexisting TTP in Joan Karsten to the oxygen-deprivation condition, known as DIC, that both sides were pretty sure had caused her brain damage.
Horan dispensed with the usual preliminaries--age, education, university affiliation, and so forth--and got right to the point: did Joan Karsten have TTP?
Yes, replied Shaw, and "it may have been as early as 1972." But when Horan tried to pin Shaw down to specifics, Shaw conceded he couldn't really be certain about what had triggered the so-called TTP, or even when she'd contracted the rare disease. "No," he said, "I cannot make the statement with a reasonable degree of medical certainty that she had TTP in 1972." Even Shaw seemed bewildered by the records he'd examined. "If you don't evoke TTP," he told Horan late in the day, "you really are at a loss to describe her neurological findings." Shaw also confessed that he hadn't even evaluated the plaintiffs theory--that Karsten had gotten a brain-damaging infection, known as sepsis, from her burst appendix because McCray delayed operating. "I am not either an expert in infectious diseases nor do I claim to have reviewed every bit of the chart to determine whether she did or did not have [sepsis]," Shaw admitted.
Horan spent most of the day probing and prodding Shaw, testing just how strong a witness he would be for the other side. His conclusion was that Shaw's testimony wouldn't hold up on the stand. Too many holes. Too much equivocating. And even if Shaw cleaned up his act and became a strong advocate for the defense, Horan and Corboy would be able to impeach Shaw's testimony with words from this very deposition.
Horan came back to Corboy's apartment and gave the boss a blow-by-blow account of the deposition. "He backed down!" an elated Horan reported. "Shaw's a weak witness, and without him they don't have a case at all." When Horan told Corboy about Shaw's statement that he couldn't say "with a reasonable degree of medical certainty" whether Joan Karsten had TTP in 1972, Corboy erupted. "That's not close enough! If he gets up there we'll cross him and peel him and chop him up and throw him out to dander!"
That was the arch-Corboy reaction, the reflexive comments of a great lawyer psyching himself for the battle ahead. Even his nemesis Johnson marvels at how Corboy does it. "He's got a pile of money, and you're damn right I'm jealous," Johnson says, shaking his head. "He doesn't have to try cases. Yet he gets all geared up for cross-examination like he's a 35-year-old guy! You've got to admire that."
It is just part of the Corboy Method. Like every outstanding trial lawyer, Corboy first has to convince himself, totally and unalterably, that his client is a victim who deserves just compensation. "You have to work it up. You have to be thoroughly immersed. It's your job to make sure that the jury believes in you, and that you believe in the case! If you don't believe in the case, you have no business being there, because it's going to come out. The responsibility I have is to supply the finders of fact with the genuine impression that my side of the case is the right side of the case, and that my client is entitled to compensation in the amount of money that I am seeking. If you have absolute faith in your lawsuit--if you are absolutely and completely aware that this lawsuit deserves the attention of the system, and you handle yourself in a way where you believe that, that fervor comes out! That's charisma." And Corboy has it.
Inside the courtroom, Corboy maneuvers for whatever advantage he can use to take control. The courtroom is the daylight world of lawyers and jurors and witnesses and judge, and Corboy tries to rule it as his own eminent domain. He uses little ploys--"credibility devices"--to gain the upper hand, like bringing in his own custom-made highly varnished lectern to speak from. His secret worry is that, without it, he'll look like a pip-squeak if he gets stuck behind some giant, government-issue courtroom lectern--and that he'll get a verdict befitting such diminutive status.
So concerned is he about presenting the proper image to jurors that for 30 years he refused to let any of his lawyers sit at the counsel table with him. Against what was frequently a phalanx of attorneys from the other side, Corboy was totally alone. "I wanted the jurors to think that I had complete control over the case,"
Even though he has now relaxed that prohibition, Corboy hasn't lost the egotism that underlay it. He wants the jury to perceive in him what Corboy calls the Three Cs: competence, credibility, and charisma.
"I want them to think I have some X factor that the other guys don't have. Why? Because I'm the one that'll get their attention! The person in charge of that courtroom is the one who gets the attention! And I want the jurors to know that I'm in charge. I'm not the docile little boy that's willing to let everybody else take charge. I'm willing to run that risk."
Corboy needs the whole room to make his points. He doesn't so much hold a conversation as take it over. Even in his office he'll pace around, his forefinger jabbing the air and his arms painting the empty space; then he'll stop momentarily, shift from side to side, and perhaps crawl up on top of a desk or a credenza to dominate the room from the high ground. And he can tear through a cross-examination with equal vigor. "I have some attributes which might be alien to professional serenity," Corboy confesses. "I'm a Type Double-A."
Corboy's pulverizing intensity and featherweight's quickness make him a formidable courtroom foe. Once a defense attorney showed a film of Corboy's client changing a tire after the injury that had supposedly reduced him to a "vegetable." Corboy went on to win a huge award in that case after slamming the other side for invasion of privacy. Then there was the time he presented a witness who testified he'd seen an automobile accident from his hotel room window. The defense produced a guest register that didn't contain the witness's name. Aghast, Corboy quickly conferred with his witness and then brought him back to the stand--to reveal that he'd been there with a young woman, under an assumed name that was on the register!
Corboy attacked his own divorce case the same way he runs every other case, fighting every step of the way and turning what began as an amicable split-up into an embarrassing feud that was splashed across the pages of the newspapers. He did the same thing when the feds' Greylord investigation caught Judge Richard LeFevour and snared a surprised Corboy in the same net. Corboy had written the judge a check for $1,000, an apparent legal-ethics violation, although Corboy claimed the money was solicited by another lawyer to help the judge's institutionalized mother come home for Christmas. Too proud to accept what he called the "Scarlet C, for Censure" that the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court wanted to carve on his forehead, Corboy turned a matter that would otherwise have been quickly forgotten into an all-out war before the supreme court. He had friends there, justices with whom he'd been generous in his campaign contributions. And although the commission recommended censure, the supreme court took no action. "This thing's a pimple on my ass," Corboy grumbled. "It's bothering me a lot."
Jurors love a fight, and Corboy certainly gives them one. But his pugnacity is a decidedly mixed blessing. Corboy can hurt himself. "You've got to be in charge of the courtroom without being in charge of the courtroom," he tries to remind himself. "You can't be dominating to the extent you're crushing people. Be in charge, but be the good guy. "
This is where the boxing metaphor--the idea of two combatants in the ring, fiercely slugging it out--breaks down. A boxer who pummels his foe can win. But Corboy knows he can lose, or, as happened in the Block case, get less money for himself and his client, if the jury feels sorry for somebody Corboy has been beating up on.
"I have a weakness as a cross-examiner: activism. When I'm on a roll, I've got a tendency to brutalize. My business, bottom line, is to win. Sometimes it takes a stiletto rather than a guillotine! I have to be constantly on guard, constantly aware that crucifixion of every witness is not a necessity!"
Corboy is veritably shouting now, and no matter how hackneyed or tortured his metaphors become there is no doubting his sincerity. That is the Method actor in him. "Winning," he intones in one great, theatrical burst of energy. "Winning isn't everything, it's the only thing! There are no excuses for losing. Every time I've ever had any semblance of failure, I've said to myself, on reflection, 'There are lots of lawyers who could have done better than I. And that's what the client's entitled to get. He's entitled to get the best, and if I can't give it to him I shouldn't be in the case!' This is masochism, it's hair-shirting, it's self-flagellating! Call it all those things! It is all those things!"
Corboy was on foreign turf as he stepped inside the quaint courthouse in Wheaton. This was Du Page County, a short drive from Chicago but a world apart: affluent, white, suburban, and full of the kinds of jurors that Corboy liked to avoid. He had never before tried a case here. And he hadn't used his vaunted market researchers because he thought word about his big-city methods would travel fast in the county's tight-knit little communities; he feared a backlash. During the nine days both sides spent questioning prospective jurors, he'd relied on his own gut instincts, looking for women and minorities, compassionate people who he thought would have the most sympathy for an energetic middle-aged woman who'd gone into the hospital with a minor ailment and come out with the mind of a child. But that sort of jury proved hard to find in Du Page County; Corboy ended up with eight women and four men who reflected the area's white, middle-class backbone. No minorities, but he thought the preponderance of women was a plus.
O'Reilly and Johnson had already offered Corboy $1 million to settle this case. It wasn't a bad settlement given the circumstances, but it sure wasn't enough for Corboy. He knew that all together the defendants carried $8 million in malpractice insurance. He wanted $3 million, the full limit of coverage for the clinic and its two physicians who treated Joan Karsten.
The jury was selected in the courthouse's main courtroom, a stately forum that Corboy hoped would put the jurors in a big-money frame of mind. He needed a push like that, because the juries of Du Page County weren't like those in the courtrooms downtown. Du Page jurors had only once given a plaintiff more than a million dollars, and that verdict--$ 1,250,000--was in an auto-accident case in which fault wasn't an issue.
But the spacious, ceremonial room was the turf of the senior judge in the county, and after jury selection, on the Monday morning the trial began, she pulled rank on her subordinate judge, Richard A. Lucas, and told him to take his important case with its big shot lawyers back into his own courtroom.
When Corboy saw the room where he'd be spending the next six weeks, his square jaw collapsed. He was used to working the big rooms. He was a performer. He needed that space. He liked to walk around. But here, if he took two steps to the right of his table, Christ, he'd be falling into the jury box!
Corboy walked over to Bill Johnson. They'd had a battle royal in the Block trial, and from his experience then Corboy knew that in a room this small he couldn't afford to be so aggressive. The contrast with the laid-back Johnson would be too great. Even in the bigger courtroom downtown, interviews with jurors after the Block trial had found them uncomfortable with Corboy's combative style when they compared it to Johnson's.
"Johnson," Corboy murmured to his foe, "I'm gonna smile at you all through this trial even if it kills me."
Friday, March 8. With the trial slated to begin the following Monday morning, Corboy was asking the judge to keep from the jury any mention of Karsten's 1972 hospitalization for what her doctors thought then might be multiple sclerosis. "It's so nebulous as to not be able to be hooked up to the present condition," Corboy said. He read aloud the testimony of Dr. Shaw--testimony that Corboy thought proved his case, not theirs, adding, "and I don't know Dr. Shaw but I'm sure he's not going to change his testimony."
If you read the whole Shaw deposition, Roger O'Reilly replied to the judge, you'll see that the defense will be able to use Shaw to connect the 1972 hospitalization to the 1979 brain damage. Johnson agreed with his cohort--and predicted the judge would also agree by Monday.
Corboy was incredulous. His two opponents knew the judge wouldn't be able to go through the whole deposition on such short notice. He thought the two lawyers were playing fast and loose. "Give the court anything he wants," Corboy said with evident sarcasm.
"Sure," the judge said good-naturedly, "I will look at it over the weekend--"
"Give him all 187 depositions if you want," Corboy broke in.
Corboy opened his case on Monday morning, March 11, just short of five years after Joan Karsten had gone into the hospital with appendicitis.
It was a workmanlike opening, full of the medical descriptions and terminology that the jurors would be hearing throughout the trial, but oddly bereft of much emotion about Joan Karsten's lonely crucible. Corboy's main contention was that Dr. McCray had waited so long to operate that Karsten's appendix had burst while she was in the hospital, thereby setting up the brain-damaging sepsis infection. But he got so caught up in describing every little nuance on her medical chart that he didn't bring Joan Karsten's plight alive for the jury. Worse, he made no mention at all of what he now knew (from Shaw's deposition and from the hearing before the judge only the previous Friday) would be the main defense contention: that Karsten had had a neurological illness since at least 1972, and that her brain damage thus wasn't any doctor's fault.
Corboy did anticipate another defense argument, which was that Karsten's appendix actually had burst several weeks before McCray ever saw her. That possibility doesn't matter, Corboy said, because under a proper standard of care, McCray should still have operated much sooner than he did.
"The evidence will further show," Corboy told the jury, as he finally wrapped up his opening statement, "that one of the defendants in this lawsuit, Dr. Robert McCray, has specifically stated, under oath, that the sepsis came from the ruptured appendix, and that the ruptured appendix caused the sepsis. The question that you will be able to answer will come from the lips of Dr. McCray himself.
"Now, ladies and gentlemen, the multiple organ failure and all the kidney damage, brain damage, of course, came from the sepsis, which came from the rupture, which came from the appendectomy."
It was a lot for a jury to follow, this hipbone-connected-to-the-thigh-bone kind of opening statement, but Corboy gave it his best shot. He'd always said opening statements weren't his forte. He considered himself dynamite on the close.
O'Reilly was up next. He represented McCray, and, like Corboy, standing just five feet away from the jury box, he spoke to the jurors in a folksy, low-key style that seemed perfectly suited to the intimate courtroom. He introduced himself--"I am Roger O'Reilly, a lawyer from Wheaton"--because, he thought, everybody knew Corboy, "and I thought perhaps you didn't remember who I was." A nice touch.
"And let me just start out by telling you something about this man, whose professional medical conduct you will be called upon to judge in this case."
McCray was a local boy, a Du Page County native who'd gone to college after World War II and who'd been among the group of doctors who founded the local clinic "so that they could take better care of" their neighbors.
O'Reilly went through the facts of the case all over again, patiently explaining to the jury how, despite all the tests and the exploratory operations and all the specialists McCray had brought in, nobody, really, could understand what had happened to Joan Karsten. O'Reilly made his client sound like a doctor who was so totally confounded by what he saw before him that he didn't know what to do next--like a pilot who could see that his plane was crashing but who didn't know which switch to throw.
But that impression was all right with O'Reilly if it placed sufficient doubt in the jurors' minds about what had happened.
"Throughout the course of that hospital stay," O'Reilly went on in his own undramatic way, "the doctors who cared for her never determined what was the cause, the real cause, of the neurological symptoms.
"Sure, they had a lot of thoughts and a lot of impressions, but nothing where they ever said 'Hey, we can point to this and that's obviously what's causing this. This is what happened.'"
O'Reilly told them that they were soon going to learn that medical experts sometimes don't agree.
"But it's really only in hindsight, looking back, examining the records"--now he was deftly sliding back into the 1972 hospitalization--"and I am not talking about only the hospitalizations in April, May, June, and July of 1979, but also the hospitalization back in August of 1972, do we get some insight as to the most likely or the most probable cause of what occurred to Mrs. Karsten at this time in 1979.
"The evidence in this case will show that back in 1972, Mrs. Karsten was examined by a neurologist, a specialist in abnormalities of the nerves and nervous system, as well as an orthopedic surgeon." O'Reilly told the jury all about the diagnosis of possible multiple sclerosis, but he said the most likely cause "for all these unusual things and the unfortunate things and tragic things that Mrs. Karsten suffered" was the rare blood disease TTP. "It has this tendency, this particular disease, to strike, recede, stay in recession for a number of years, and then anything can turn it on again, trigger it--an operation, the stress of an operation, whatever."
Corboy just sat there, boiling, with Horan and another young associate who'd worked on the case, Susan Schwartz.
Up next was Bill Johnson, who represented Dr. Glen Asselmeier, McCray's partner. Asselmeier had been dragged into the litigation because he'd been the first doctor to see Joan Karsten when she began having complications after being sent home from the appendectomy. Asselmeier hadn't wanted to readmit her to the hospital; Joan's husband insisted on it and Asselmeier then relented. Corboy now maintained that Asselmeier's initial reluctance was indicative of the overall level of care at the clinic. That was why Corboy had sued Asselmeier even though Asselmeier had ultimately complied with Ed Karsten's wishes.
From the standpoint of creating another deep pocket, there was good reason to include Asselmeier in the case. But in the process Corboy had unwittingly made possible a very effective Mutt-and-Jeff strategy by the other side. O'Reilly and Johnson coordinated their defense. Whenever O'Reilly made an important point to the jury, Johnson could step up next and ram it home again. And because each man was permitted to cross-examine the other's witnesses, they could take turns lobbing big, marshmallowlike leading questions to each other's witnesses.
The idea, after all, was to place enough doubt in the jurors' minds that they wouldn't find for the plaintiffs; if that meant bombarding the jury with a lot of improbable medical and scientific jargon, that was Corboy's problem, not the defendants'.
Johnson finished his opening statement by telling the jurors he didn't know where Joan Karsten's infection came from, but that it sure wasn't there when McCray and Asselmeier treated her.
"So, we have an [infection], that's the basis for the case against these doctors, that wasn't there. And that is why you get to all of the initials in the case. Was it TTP? Was it DIC? That is another exotic disease, a tragic disease.
"It's a tragic thing. Not only was TTP considered, but tetanus. . . . It was considered by the plaintiffs' own expert witness as one probable cause of this lady's condition, and the tetanus has nothing to do with surgery."
Tetanus. That was a new one.
Corboy had been at trial for ten days when, on the evening of Wednesday, March 20, he met with three visitors at his apartment.
Harlan Stone, the University of Maryland surgeon who would be Corboy's principal expert witness, was there to go over the testimony he would give beginning the following morning.
Horan, Corboy & Demetrio's malpractice ace, was there to help.
And so was Dr. George Block, the eminent surgeon for whom Corboy had won $9 million the year before.
Block was Corboy's secret adviser on the case, a kitchen-cabinet of one who was street smart about the Corboy Method because he'd endured, along with Corboy, the trial of his own son's case. Now, unknown to the other side, Corboy was relying on George Block for advice on how to try this case. Block not only knew Corboy's style, he knew Johnson's. And he could translate convoluted medical jargon into understandable English, no mean task as far as Corboy was concerned.
If, as Corboy later said, Block was concerned about the care Karsten had received, he surely also wanted the satisfaction of seeing Johnson beaten. That night, Block became Corboy's sounding board as the four men sat around Corboy's apartment, first walking Stone through his direct testimony and then prepping him for the thorough going-over he would get on cross-examination.
Corboy couldn't have found a better-qualified expert to call to the stand. Harry Harlan Stone had performed as many as 4,000 appendectomies, and he was also a leading authority on postoperative infections. With his resonant voice deeply etched by a Georgia drawl, Stone commanded every juror's attention.
In court, Corboy stepped him through the testimony they'd discussed the night before. Yes, from studying the hospital records Stone had made a diagnosis of Joan Karsten's condition: "sepsis as a consequence of perforated acute appendicitis"--a complication arising directly from the operation McCray had performed. No surprise there. That was consistent with what Corboy had been saying all along, and it was even consistent with the diagnosis that another of McCray's partners had entered on the patient's hospital record.
The next key question was whether McCray had waited too long before operating on Karsten. "[Was] Dr. McCray negligent?"
Yes, Stone boomed back. "He was negligent."
"And doctor," Corboy asked as he continued this carefully orchestrated minuet, upon what do you base that opinion?"
"The standard of care is to observe a patient whom you suspect has acute appendicitis for somewhere on the order of six to eight hours, and at the end of that interval of time, if the patient still persists in pain, to proceed with operation. If the patient is not dramatically improved or, the patient has worsened, then one should proceed with operation, essentially never going beyond 12 hours."
Stone had his own theory about what had caused Karsten's permanent brain injury. He told the jurors that there must have been a huge, undiscovered abscess somewhere in Joan Karsten's body. To Stone's way of thinking, McCray should have performed an operation called a laparotomy to locate and drain this abscess during Karsten's second hospitalization. Instead, he prescribed an antibiotic therapy that Stone called ineffective.
On cross-examination, O'Reilly and Johnson tried to neutralize Stone's two main points: that Karsten's appendix had burst during the day and a half while McCray was debating whether to operate; and that the doctor had also been knife-shy the second time she was in the hospital, when he didn't go hunting for the big abscess.
"Dr. Stone, I'm Roger O'Reilly," McCray's lawyer said with his usual diffidence. "I think we met?"
"I recall meeting you," Stone replied warily.
"We took your deposition, Doctor, was it May of 1984?" Still circling. Measuring the distance. Sizing each other up.
"Late spring. I don't remember the exact date."
A few weeks before her appendectomy, Joan Karsten had had an upset stomach after eating pizza. O'Reilly contended that the upset stomach was actually appendicitis, and that Karsten's problems were her own fault because she'd delayed treatment. Early in the questioning, though, Stone told O'Reilly that he "would not put any great credence" on that.
But, O'Reilly persisted, Karsten had suffered such a fierce bout of indigestion that she'd later told a nurse at Central DuPage Hospital how guilty she felt about not seeking medical attention earlier. O'Reilly demanded: "Would that change your opinion?"
"I doubt it."
"OK. Dr. Stone, you do a great deal of writing, as we have seen on your curriculum vitae, do you not?"
Well, O'Reilly wondered, would you agree with a statement from a 1971 medical-journal article that said many people endangered themselves, even put themselves in life-threatening situations, by self-diagnosing appendicitis as indigestion?
Corboy broke in. "Could I have the author, please?"
"You're looking at him," O'Reilly replied, triumphantly nodding toward Stone. In his own revisionist history of the trial, O'Reilly would later recall the exchange as "one of these unsurpassed delights. . . . I felt a surge of adversarial joy that only a trial lawyer can experience."
But O'Reilly found himself with an even jucier setup about a half hour later.
"Doctor, you apparently, as I understand your testimony, are under the impression that Joan Karsten had a very large abscess, I believe you said, that was never detected?"
"Is that your testimony?"
"How large would this abscess have to be, in your opinion?"
"I would think it would be at least a pint size."
O'Reilly held his hands apart. "Are we talking about like this?"
Stone wouldn't bite. "A pint--"
"You show me."
"You know--what a pint milk bottle looks like, a pint milk carton, about that size."
Aha! That was what O'Reilly wanted to hear. Karsten's hospital charts showed that McCray and the dozen or so consultants he'd called in had been pushing and palpating their patient's abdomen almost continuously since she'd first been brought in. There was no way that all of them would have missed a hard, swollen area the size of, say, a Coke bottle or a milk carton.
O'Reilly and Johnson now had a damaging inconsistency that they could save for their closing argument. They could argue that it was folly for the plaintiffs main expert to accuse a dozen doctors of missing something so big.
When Johnson's turn came to cross-examine Stone the next day, he immediately set out to reiterate the point.
"Do we have a milk carton?" Johnson inquired. "Did anyone think of bringing one of those?"
The answer was no, but Johnson produced a Coke bottle instead. He held it up against a life-size skeletal model he'd brought into the courtroom and incredulously asked Stone how the doctors could have missed something that big.
But Stone had picked up on his previous mistake, and now the expert witness reversed field and ran right at Johnson. Stone replied that the 16 ounces could have been "distributed out" through Joan Karsten's body. "It could be like an extremely long piece of bacon."
"Drink this Coca-Cola," Stone told Johnson, "and I would like for you to lie down and see if we can feel this in your abdomen!"
Score one for Stone.
As Corboy sees it, a trial is "a manic-depressive sort of thing. Sometimes you're up, and sometimes you're down. Every trial's like that. It's like quicksilver. Like mercury."
And now Corboy was finding out just how low he could get, because this trial was going badly. Corboy's out-of-pocket expenses, which he always carefully tallies, had reached $191,018.48, and the whole bundle was at risk because Johnson and O'Reilly, who themselves had already billed $275,000 on the case, were tearing Corboy apart. His case against Central DuPage was so weak that in mid-trial Judge Lucas dismissed the hospital as a defendant.
McCray had been called early in the trial as an adverse witness by Corboy, and the local doctor had done an excellent job of defending himself during his three days of testimony. The excitable Corboy was a vivid contrast to the avuncular, lowkey McCray, and Corboy went after him with a discomfiting intensity.
It infuriated Corboy that McCray seemed to be the very picture of a self-effacing, affable family doctor--an image further burnished right in the middle of the trial when McCray rendered aid to a 76-year-old woman who'd been struck by a train in front of the courthouse. "The jurors see this humble man," Corboy groused. "He's no more humble than Aristotle!"
When Corboy was finished with McCray, he thought he had "cut him up with impunity," but what he had really done was establish McCray as the underdog, somebody for the jurors to pull for.
Corboy had done exactly what he knew he had to avoid. "I castrated," he later acknowledged, "when I should have tickled."
Still, Corboy hadn't learned his lesson, for when the defense's main witness took the stand on Friday, March 29, a frustrated Corboy started ripping into him, too.
Dr. Thomas S. Moore, then the chairman of the department of surgery at Elmhurst Memorial Hospital, had been practicing in the area even longer than McCray, and he had performed almost as many appendectomies as Corboy's chief witness, Dr. Stone. But the difference between them was palpable. Whereas Stone was an impressive speaker who held firm positions from which he seldom diverged on the stand, it was hard to pin Moore down on anything. While Moore circled, Corboy chased him for answers that the doctor just wouldn't give--and the frustration showed, as when Corboy tried to drive home the point that McCray himself had originally diagnosed his patient as having the septic condition that Corboy now claimed had caused her brain damage. A key objective of the defense was to shrug off that original diagnosis.
"And, Doctor, what was the final diagnosis signed by Dr. McCray on the sheet which is right in front of you?"
"Over here, maybe?" Moore fumbled around.
"On the top sheet of the first one. What does that say? What was Dr. McCray's final diagnosis?"
"All kidding aside," Moore replied, "would you read it? Because you can read his writing. It is difficult for me to read his writing. I will try if you want." Moore studied the document. "'Sepsis, postappendectomy.' Go ahead. Tell me what it was. I can't read it."
Corboy: "You will agree that that was Doctor [McCray's writing]--even though it may be hard to read, that that's what he put down . . . ?"
Moore: "I can read the first part of it, and I am sure I can struggle with the rest of it by your reading it to me."
Corboy: "'From' or 'for,' I don't know whether it's 'from' or 'for,' 'sepsis postappendectomy for ruptured appendicitis'?"
Moore: "I would think 'from,' I don't know. I don't know what it is. 'Ruptured appendicitis,' yes."
Corboy now tried to put his line of questioning back on track. "In any event, as an expert in this case and having reviewed the records, you would conclude, would you not, that the final diagnosis written by Dr. McCray was 'sepsis postappendectomy.' And sepsis is what we are talking about, are we not?"
Moore: "That's what you were talking about."
The following Monday, Corboy was back in the judge's chambers, arguing out of the jury's hearing about another witness whom O'Reilly and Johnson were planning to use against him.
Dr. Paul Menet wasn't just another of Karsten's treating physicians. He was also a partner of McCray and Asselmeier, and, after privately conferring with the defense lawyers who represented his clinic and his partners, he intended to give testimony that would hurt Corboy's case.
An obviously agitated Corboy wanted Menet kept off the stand. "This witness, Your Honor, is an attending physician of my client!" Because of the doctor-patient relationship, Corboy maintained, Menet should never have even conferred with the defense lawyers without the patient's approval. "There is going to be an attempt, apparently successful, to have this doctor change his diagnosis and change his treatment and change everything as to what he found on and after the 14th day of May, 1979."
The judge let Menet take the stand anyway to testify that, even though his diagnosis of sepsis in 1979 was the same as Corboy's experts' now, Menet didn't think the sepsis had anything to do with Karsten's brain damage.
But if the appendicitis-induced sepsis didn't cause her brain damage, then what did? That was where Dr. Shaw, the expert whom O'Reilly and Johnson were saving for the end of the trial, was supposed to come in. Shaw was going to attribute the whole sordid mess to the exotic disease TTP. But O'Reilly and Johnson must have come to realize what Corboy and Horan already knew--that Shaw wasn't going to be a credible witness. If Shaw got up there, Corboy would use Shaw's deposition answers to destroy him. So they decided not to call him.
Corboy cried foul. The defense lawyers had specifically mentioned Shaw and his diagnosis of the rare disease TTP in their opening statements. The jury had heard all about the TTP, was contaminated by it, even, and now Corboy wasn't going to get his shot at proving Shaw's alleged diagnosis wrong.
An astonished Corboy shifted about restlessly. He'd been jobbed. He felt absolutely certain that his two foes intended all along to keep Shaw off the stand.
"Excellent lawyering," he said grudgingly. "If they get away with it."
Instead of Shaw, the lawyers brought in Dr. Richard Dominguez, the doctor who'd treated Joan Karsten in 1972, when she'd been hospitalized for weakness in her left arm.
Like Dr. Menet, Dominguez had also apparently discussed Joan Karsten's case privately with one of the defense attorneys.
Dominguez had ordered an electromyelogram test in 1972 that confirmed the existence of some kind of neurologic abnormality. And, he testified, he was concerned that Joan Karsten appeared to be suffering from multiple sclerosis.
An enraged Corboy was back in the judge's chambers again, crossing swords with O'Reilly and demanding a mistrial. "It is a brand-new element in this lawsuit! There has been no diagnosis of multiple sclerosis!"
"I didn't ask for a diagnosis," O'Reilly calmly replied. "You asked on your cross-examination."
"Can I finish?"
"I thought you finished," O'Reilly said coolly. "You stopped talking."
"One at a time," the judge broke in. "He never stops talking."
Corboy wanted the last word in this battle of experts. He was going to present a rebuttal witness.
Although the ever-prepared Corboy had kept three expert witnesses in reserve for an eventuality such as this, when the time finally came he was left with little choice about which of them to use.
One of his three spare experts was a University of Chicago hematologist, a specialist in diseases of the blood, like the defense expert Shaw. But Shaw had never been called to the stand, so there wasn't anything for Corboy's hematologist to rebut! No sense in calling him.
That left the Corboy side with two general surgeons who were specialists in treating infectious diseases. But one of the two had another commitment he couldn't break, and that left, by default, Dr. S. Martin Lindenauer.
Lindenauer had come to Corboy along with the case. The University of Michigan professor had been brought in by Davis, the Chicago lawyer who ceded the case to Corboy when he became a judge. Corboy didn't know much about Lindenauer, but he seemed credible enough as Corboy took him across ground that by now was so well-traveled. Lindenauer, like all of Corboy's witnesses, held firm to the chain-reaction theory that a botched appendectomy was what had caused Karsten's sepsis, and ultimately her brain damage.
"Doctor," O'Reilly said as he began his cross-examination, "let's clear the air a little bit. You have testified before in court, have you not, in medical malpractice cases?"
Yes, said Lindenauer, maybe three or four times. In California, Florida, Missouri, Illinois. Always for the plaintiff.
"Do you work with any lawyer referral services of any kind as far as expert testimony is concerned?"
O'Reilly asked the same question two more ways, and both times Lindenauer replied no.
Lindenauer had been asked the same question by O'Reilly at his deposition the year before, and he'd answered no then, too. But O'Reilly knew that Lindenauer's answer then, as now, was wrong--knew it because he'd already checked around in Lindenauer's hometown of Ann Arbor and obtained a copy of a deposition that Lindenauer had given five years earlier, in which he admitted to having taken cases from an expert-witness referral service.
The best lawyers stay away from expert witnesses who advertise their services, because they have the taint of a hired gun about them. It was a point of pride with Corboy that he didn't use hired guns. But now the chagrined Corboy had to watch as O'Reilly dismembered his last witness. Lindenauer was impeached. The impact of that one falsehood would carry over to all of Lindenauer's testimony.
O'Reilly kept banging Lindenauer over the head with that 1980 deposition, and the more the doctor tried to weasel out with an "I don't recall" the longer O'Reilly kept reading from it to refresh Lindenauer's recollection. A sorry performance.
"It referred to a referral service, Dr. Lindenauer?"
"Yes," Lindenauer finally confessed, "it does."
"One more nail," Corboy said under his breath.
Corboy considers the closing argument to be his greatest skill. That's where he ties his case together and makes his pitch for the big money. In this trial he was working for the Karstens, of course, but he also had his own interest to protect: he was riding their case for a contingent fee of one-third of the gross, plus reimbursement of expenses that now were closing in on $200,000. Lose it and he'd get nothing but a blemish on his 17-year perfect record.
his time the dapper, white-haired lawyer with his elegantly fitted suit lived up to his own expectations. Standing only a few feet from the jury behind his special lectern, he gave a skillful, soulful close that touched on every part of the case, beginning with an apology for being too aggressive and ending with a lesson in economics.
"All you can do in this lawsuit," Corboy intoned, looking first at one juror and then the next, all 12 of them, "is bring Edward Karsten back to an optimum of what he had before. You might say to yourself, 'How crass can the law be? This white-haired guy is saying, You can bring him back to his optimum by giving him money.'. . .
"You know the life he has. He is not entitled to get some bunch of money and say, 'Here, go have a ball for yourself.' . . . He is not to be given something, a medal. But he is entitled to compensation. Not for showing he is gallant and honorable and decent--because he is supposed to be all those things--but for what he has lost, not what he has to gain."
Corboy came to the money part. He always spends a lot of time on that, because he doesn't want the jurors to feel guilty about delivering big money. Here he was looking for a verdict of between $4.5 million and $8 million--four to eight times more than any lawyer had ever gotten from a Du Page County jury.
The verdict form had a top line for the total and then lines underneath for the individual components of the award--disability and disfigurement, pain and suffering, medical expenses, lost wages, and so on.
Don't fill in the top line, Corboy urged the jury. Don't fill it in.
He wanted them to assign a value to every subcategory first, even if the individual numbers added up to "some large figure." Remember, he said, "I asked [in voir dire] if each and every one of you would have any difficulty in signing a verdict for a very large sum of money, even if that large sum of money is in the millions of dollars, and each of you said under oath [that] you would have no such problem!"
When O'Reilly's turn before the jury came, he reminded the jurors of another oath they'd taken: to keep sympathy and compassion out of their deliberations. O'Reilly said he didn't know what had happened to Karsten--"only God knows"--and he didn't rise to Corboy's bait on damages. "I'm not going to comment in regard to any astronomical figures that Mr. Corboy may ask you to return against me, because the court also will instruct you that if you decide for Dr. McCray on the issue of liability, you have no occasion to consider that."
Because the burden of proof lay with Corboy, he got the last word--a closing rebuttal in which he made one final, desperate lunge at O'Reilly.
"Well," Corboy said to the jurors, referring to his foe's contention that only God knew what had happened, "God isn't here. He may be in this room in various forms in a capacity over all of us, but He is only going to give you help in this lawsuit. He is not going to tell you what the diagnosis was."
Jurors can be fickle in the same way that members of any group can be. Some people mix well together, others don't. The difference here was that millions of dollars and a doctor's vindication depended on the group dynamic of people who'd been pushed together and yet who barely knew each other.
The lawyers had been talking to the 12 men and women in that box for six weeks without receiving any hint of what was going on behind the eyes that tracked them from point to point and occasionally nodded off.
Now they were going to find out.
Corboy, who thought he had won the case, was going to learn just how defective his human radar was.
The first order of business was to elect a foreman, and the group selected a machinery salesman because he seemed to be the best talker.
The next vote that afternoon was to see where everybody stood on the case, and it turned out there wasn't much of a dispute on that, either. The first vote was ten to two in favor of the doctors, and even those two jurors quickly moved over to the other side after a little discussion with the others. Everyone thought Corboy was a great orator--one of the jurors paid him the supreme honor of saying he was eloquent enough to be a preacher--but nobody thought he had much of a case.
"It seemed to me," one juror said, "like everything that Corboy got over to the jury, either Johnson or O'Reilly got up and just kind of tore the witness apart."
"You go through the charges and make your decisions," another juror said, "but still, at the end, there are still no answers." All the defense evidence about exotic illnesses and preexisting conditions made it too tough for them to fix the blame on McCray. "The essence of his [Corboy's] argument was that she had had an infection and the doctor had missed it. That is probably the biggest point that there was no ultimate answer for."
When the jury sent word the following day that it had a verdict, Corboy and Horan were packing up back at their hotel in Naperville, while their associate Susan Schwartz kept a vigil near the courtroom. A verdict coming that fast was usually a bad sign for the plaintiffs; arguments over money always took longer. In fact this deliberation already had been dragged out because the jurors even gave themselves a half-hour cooling-off period, in case anybody wanted to change his mind.
Schwartz telephoned Horan: Verdict's coming in. Get back here.
More bad news: when the jurors filed back in, some of them didn't even look at Ed Karsten and his children, who were sitting there in the courtroom.
One of the men, on the other hand, made a special point of staring right at the family, to show that what was about to happen didn't bother him at all.
By the time Corboy and Horan got back to the courtroom the verdict was already in: innocent as to all defendants.
Corboy seemed genuinely astonished, but he tried to stay upbeat as the bad news sank in. "OK," he said curtly. "We've lost it. Now it's time to fight it on appeal."
After the verdict was in, the judge told the jurors that Corboy and Karsten had turned down the malpractice insurance company's $1 million settlement offer.
"They should have accepted it," one of the jurors said, "because right now, the way this goes, they will probably get nothing, when they could have had a million bucks."
Maybe they should have accepted. But Corboy wasn't done yet. As he said, there was still the appeal. On June 29, 1987, the Second District of the Appellate Court of Illinois threw out the verdict. The justices not only agreed that the defense had pulled a fast one with Dr. John A. Shaw, they also said that Dr. Menet and Dr. Dominguez didn't belong on the stand at all. As a penalty for violating Joan Karsten's physician-patient privilege by speaking privately to two of her doctors, O'Reilly and Johnson will be precluded from using Menet's and Dominguez's testimony as the case proceeds.
The second trial is scheduled to begin in April.
Art accompanying story in printed newspaper (not available in this archive): photos/Paul L. Merideth.