Paul Levine - To speak for the dead

The risk in discussing jury instructions is that the jurors won't have the foggiest idea what you're talking about. The instructions are complicated, and juries are noticeably light on Rhodes scholars. I needed to explain the gobbledygook. " 'But for the negligence, the death would not have occurred.' That is what you must determine if Roger Salisbury is to be found liable for professional negligence, for violating his oath, for that is what they have charged him with. When Roger Salisbury became a physician, he promised to adhere to the Hippocratic oath. He promised to do no harm. And they have charged him under Florida law with negligently causing the death of Philip Corrigan. First, you must ask yourselves, what is the evidence that Dr. Salisbury contributed substantially to the death and that, but for the negligence, the death would not have occurred."

I couldn't tell if it was getting across, but I plowed ahead. "That is the ultimate question of proximate cause, and on that question, the evidence is undisputed."

I paused again, this time for effect. "Ladies and gentlemen, think back over the testimony of Dr. Harvey Watkins. You can think from now until the Orange Bowl Parade, and you won't find Dr. Watkins saying that the aneurysm resulted from anything Dr. Salisbury did. You see, I agree with everything Dr. Watkins said. He said it would be negligence to allow the rongeur to pierce the aorta. Fine, but there's no evidence that happened here. That's the missing link. The surgery occurred in the morning. The aneurysm happened late that night back in the private room. No loss of blood pressure during surgery, no indication of internal bleeding. Mr. Cefalo wants you to pile inference on inference, that the rongeur struck the aorta despite no evidence of an aneurysm for another twelve hours. And what did Dr. Riggs tell us?"

I spread my feet wide and stood two feet from the rail of the jury box. There I stood motionless, a rock. I wanted them to see nothing but me, to hear nothing but my words.

"Dr. Riggs told us two things, first, that the blowout in the aorta was in front where the rongeur couldn't touch it, and second, that Philip Corrigan had arteriosclerosis, hardening of the arteries. Now, unlike the name, hardening of the arteries actually weakens the arteries. Philip Corrigan was fifty-seven years old. A lot of blood had gone through those veins, a lot of miles on his odometer. And I submit to you, ladies and gentlemen, that his time had come, ex visitatione divina."

I tried to see how it was going. If they bought this, we win. If not, we get hammered. I had a decision to make. This was the point where I should move to the damages issue, register shock at the ten-million-dollar figure. Hit them with the bit about cashing in on death. But I decided to risk it.

"Ladies and gentlemen, now is when a defense lawyer ordinarily discusses damages. But I am so convinced that the evidence does not support a plaintiff's verdict on liability that I find that unnecessary. They simply haven't proved their case."

I needed a way to wrap it up. Take a risky swipe at the sympathy factor.

"Finally, one word about Mrs. Corrigan. She is a young woman and her grief will heal. Surely she knew when she married a man twice her age that at some point she would be a widow."

This was thin ice. Go too far here and risk offending the jury into a retaliatory verdict.

"Mr. Cefalo quoted you an old saw about what might have been. Another writer once said that grief is the most intense of all emotions and therefore the shortest lived. Time heals. Grief ends. Life goes on. It is natural for you to feel sympathy for Mrs. Corrigan, as I do, but it is not to enter into your deliberations. Judge Leonard will instruct you that you are not to be swayed by sympathy. Sentiment has no place here. Only the facts and the law, and they will convince you that there is no liability in this case. Thank you."

Melanie Corrigan's eyes burned a hole in my back as I walked to the defense table. Roger Salisbury's face was a mixture of hope and fear. Dan Cefalo didn't waste any time. He had the last shot.

"Ladies and gentlemen, I rise now to speak one last time for Philip Corrigan, who cannot speak for himself."

Talk about non sequiturs. If Philip Corrigan could speak for himself, we wouldn't be here.

Cefalo raised his voice in lawyerly indignation. "They've put this woman through the death of her husband, a funeral, a trial, a world of loneliness, and now they say, it'll pass. Go home, Mrs. Corrigan, it'll pass. Let me tell you folks something. When we're done here today, I'll go home to my family. You folks will go home to yours. Mr. Lassiter will see his friends and there will be cheery talk and hors d'oeuvres and the tinkling of glasses."

That was news to me. I was planning to open a can of tuna.

"But the Corrigan house will be dark and empty when she turns the key in the lock tonight. It'll be that way tonight and tomorrow and the next night. So Mr. Lassiter would have you split hairs over this and that, but the fact is that a man went into the hospital for simple surgery and he didn't come out, and they have a bushelbasket full of reasons why, but you and I know the truth. So as you prepare to go into the jury room, I leave you and ask that you remember you are this woman's last and only hope. God speed."

A dangerous combination, I thought, as the jurors filed into their windowless room. The intellect of man, the speed of God.

Waiting again, this time for a verdict. Waiting is not my strong suit. I never did the bit outside a hospital delivery room, but I know all the cliches, the pacing, the endless cigarettes, the furrowed brows. At least there, when it's over, you've got something to take home. I leave it all behind. Win, lose, or mistrial, I bury it. Winning is less joy than relief, removing the knife from the wound. Losing is not agony, just the fulfillment of promised pain.

Defending a case is particularly frustrating. If you win, you have broken even, restored the status quo. Your client wants to take you to dinner. He shows you his new bumper sticker, My Lawyer Can Beat Your Lawyer. If you lose, he questions what you should have done to win. And always finds something.

Roger Salisbury paced in the corridor. I sat with Cindy in the courtroom. While I read the latest Windrider magazine, she propped her bare feet on the defense table and painted her toenails a metallic silver that reminded me of a '71 Corvette. The bailiff came by and gave her a dirty look. She wiggled a burnished big toe at him.

Still waiting, two hundred minutes creeping along, life ticking away. Somewhere off the Canary Islands, tanned young men and women from France are sailing windsurfers at more than thirty knots. On a hundred slopes in the Rockies, skiers are whooping it up on fresh powder. Only a hundred miles away, bass fishermen are lazing across Lake Okeechobee. So why am I waiting, just waiting, in an old relic of a courthouse for six strangers to tell me if I'm worth a hot damn in my chosen field.

"Is it a good sign they're taking so long?" Roger Salisbury asked, coming in from the corridor.

"It could be," I said. Very insightful. In truth, it's meaningless. If the jury comes back with a verdict after twenty minutes, you can be sure it's for the defense. They haven't had time to order steaks at taxpayer expense, much less determine both liability and damages. After that, anything goes. They could have determined liability in the plaintiff's favor hours ago and only now be deciding how many zeroes to tack onto the verdict form.

I picked up a newspaper and turned to the sports page. There was Susan Corrigan's by-line above a story on the Dolphins game, a loss at Cleveland. The Dolphins never did play well in cold weather, losing 24 to 10 to the Browns and their defense known as the Dawgs: