Paul Levine - To speak for the dead

On cue Melanie Corrigan dabbed her eyes. Cefalo was gearing for the transition into the damages phase of his argument. He moved closer to the jury box and looked each juror directly in the eyes, moving slowly from one to the other.

"So, in summary, there is no question about liability. No, ladies and gentlemen, this is not a case of 'who wins.' This is a case of 'how much.' And this is a very substantial case because Philip Corrigan was a very substantial man. He was a builder, a developer, a man who employed hundreds and brought commerce to thousands with the first chain of shopping centers ever built in the Florida Keys. Before Philip Corrigan, there was no Zippy Mart south of Homestead. Before Philip Corrigan, there were no condos built in the flood plain. They said it couldn't be done, but Philip Corrigan did it."

Two jurors nodded, impressed.

"In a few minutes, the judge will instruct you as to the elements of damages, and they are all very substantial. You heard the accountants testify as to the loss of net accumulations of the estate of Philip Corrigan because of his untimely and tragic death. You will take their written report into the jury room. You heard the widow, Mrs. Corrigan, testify as to her grief. God willing, you will carry that grief with you into your deliberations and relieve some of it with your verdict."

God on the plaintiff 's side. I didn't like that one bit. The widow's tears were coming now. Melanie Corrigan turned away, leaving the jury with her sculpted profile.

"The judge will instruct you that Mrs. Corrigan is entitled to be compensated for her mental anguish and the lost companionship and protection of her husband. Mental anguish is something she will carry with her every day for the rest of her life. Every wedding anniversary and holiday, every time she sees something in the house that reminds her of him, every morning when she awakens and every night when she goes to sleep, she will think of him, struck down. Negligently, mercilessly, senselessly. And for that reason we ask you for a total verdict of five million dollars for Mrs. Corrigan and five million dollars for the estate, a total, ladies and gentlemen, of ten million dollars."

He let it sink in a moment, then continued, "And I don't apologize for asking for one dollar of it. You know, folks, they auctioned off a racehorse the other day for fifteen million dollars."

Judge Leonard's bald head popped up. He wouldn't mind five points of that investment.

"No apologies," Cefalo repeated. "I'm told some Japanese fellows paid forty million dollars for a picture by… what's the name of that painter fellow, Van Gogh? And our very own United States Air Force pays millions and millions of dollars for each jet fighter. But you know, they build an ejection seat into each plane, 'cause if there's any trouble, they want to save the pilot's life, let the plane go down in flames. A life is worth more than a twenty-million-dollar airplane. So, no sir, I'm not going to apologize for asking you folks for ten million dollars."

Dan Cefalo was just about done not apologizing. He seemed to be gathering his thoughts for a final assault. He walked toward the defense table, where Roger Salisbury had broken a sweat. Cefalo took a deep breath and said, "Philip Corrigan went into that hospital and said, 'Take good care of me, Doctor. Use all your training and expertise. Don't cut me open and let me bleed to death.' They put him to sleep and there he was, innocent as a baby, at this man's mercy, and this man chopped him up."

With that Cefalo turned and stabbed a finger at Roger

Salisbury. J'accuse. Then he walked to the rail of the jury box and leaned on it, a close friend of all six honest folks.

"You know, some fancy writer, I don't know his name, once wrote, Tor of all sad words of tongue or pen, the saddest are these, it might have been.' The saddest are these, it might have been. What might have been for Philip and Melanie Corrigan, we will never know. Perhaps children, other lives to share with their own total love. But Philip Corrigan, who trusted this man with his life, left this world all too soon. And now Melanie Corrigan trusts you with her life. She has only one chance. If she is unhappy with the result, she can't come back and try again. Next week this courtroom might have some fender-bender case or a dispute over a parking space at a condo. This case is here and now and it is a tragic one and a substantial one. Don't let Melanie Corrigan walk out of here and say, 'It might have been.' Thank you and God bless you."

God again. We now knew that Cefalo was for God and against communism. He sat down and Melanie Corrigan opened the faucets. She buried her head into Cefalo's shoulder. He patted her between the shoulder blades. None of the jurors even saw me stand up and approach the lectern. I felt my throat tighten. Roger Salisbury's face was frozen with panic. It was important to show him that Cefalo's stellar performance did not bother me. I did this by not tossing my breakfast into the jury box.

It was a very lonely walk, those half dozen steps to center stage. I paused and finally the jurors turned toward me, their eyes challenging. I thanked them for their attention without waving the flag in their faces. I told them I only had one chance to speak to them, and then Mr. Cefalo would get up for his rebuttal. They seemed to like that. I told them that he had a second chance because the plaintiff had the burden of proof. As the defendant, we didn't have to prove anything. And then I said, let's see what they had proved.

"A man has died, and Mr. Cefalo is right about one thing. That is a tragedy. It always is when a person is taken before his three score and ten. But the world is full of tragedies. They happen every day. And not every one, not this one, has someone to blame. Mr. Cefalo is right about something else. This is a substantial case, but not because a lot of money is involved. It is substantial because it involves the reputation and good name of a very fine surgeon, a man who has treated the poor and underprivileged in our public hospital, a man who spent years training and preparing himself in every way for life-and-death decisions."

I caught a glimpse of Dan Cefalo rolling his eyes. Give me a break, Dan. You're way ahead in the laying-it-on-thick department. What did he expect me to say, that my client spent years planning his pension fund, that orthopods are out of their league whenever they move north of ankles and knees?

I continued, "Philip Corrigan died of a ruptured aorta. We all know that. No one disputes it. Aortic aneurysms happen every day. You heard the testimony. They can occur from high blood pressure, trauma, arteriosclerosis, a host of things. It can be, as Dr. Riggs said, 'ex visitatione divina,' a visitation from God."

I was not going to be outdone in the God department. I studied the six faces. Nothing. Not a hint. At least they seemed to be listening.

"Let me now tell you of the crucial flaw in the plaintiff's case, the weak link, the stumbling block where this house of cards comes tumbling down." No one will ever accuse me of leaving a cliche unturned.

"The weak link is proximate cause. Let me repeat that. It's not ap-proximate cause. It's proximate cause. When we sit down, Judge Leonard will read you the law of proximate cause."

I needed to make a point based on Riggs's testimony. I could have said, here's what Riggs said, but that might not work after Cefalo's hatchet job. The trick now was to put Riggs's testimony in the context of what the judge would tell them.

I picked up the book of standard jury instructions. I wanted to look official, the judge's helper. Then in deep tones, trying to make the causation instruction sound like the Magna Charta, I said, "Here is what the judge will instruct you: 'Negligence is the legal cause of death if it directly and in natural continuous sequences produces or contributes substantially to producing such death, so that it can reasonably be said that, but for the negligence, the death would not have occurred.' Remember, that is not Jake Lassiter talking, that is the judge, and that is the law."