As has been mentioned in prior blogs, if my office was on fire and I had time to grab only one item from my office before leaving, the decision would be easy. I would flee the office with the wooden box full of thank you notes from clients that I have received over the past 20 plus years securely under my right arm. I cherish each and every note but this past holiday season one card caused me to pause for an inordinate amount of time and to this day remains in my mind. The card was from a family I represented following a devastating birth injury to their son. At the time, I was a young lawyer lacking the years of trial skills I have now accumulated and the import of this case was almost overwhelming. The family was truly lost and the helpless little infant was even worse. As the case developed, the defense assembled an impressive array of witnesses opining that the birth injuries were not caused by doctors’ negligent failure to deliver the child in a timely manner, rather, the birth injuries were caused by other non-negligent factors that pre-dated delivery. The “defense” in this case tore at my inner constitution.
I knew the theories advanced by the defendants were wrong, were not supported by fact or science, and were in fact purchased from expensive, well-credentialed experts for the sole purpose of defeating my lawsuit. I knew from my training that I was supposed to leave my emotions out of the case in order to stay focused and provide the most effective representation to my clients. I remembered the teachings of Plato and the Aristotle debate regarding Logos, Pathos, & Ethos. I believed that I was more intelligent than my adversary and knew that I could defeat them on the intellectual playing field. BUT, this case involved a helpless child who I cared deeply about and I just could not separate my emotions. I could not treat the high paid liars with respect. I could not bite my tongue in the face of an intellectual conspiracy designed to rob a family of money needed to take care of a son who was victimized by the very doctors his family trusted. So I came out swinging, motivated by my deep concern, if not love, for this little guy and his parents. My punches were backed by scientific research and superior preparation. I was confident that Vegas odds-makers would not even put a line on this fight because it was a no contest. I soon realized that the law, much like life, is not always fair.
The battle was much closer than it should have been. I had little success in getting the junk science defenses thrown out of the case as they should have been. Many reasons contributed to the lack of success – laws favoring the doctors, unethical experts, and a Judge who was afraid to make a controversial ruling. I caused great damage to the liars who claimed that this boy’s birth injuries were caused by unheard, unseen, unproven events as I knew I would. There was, unfortunately, one aspect of the case where science could not help me – the life expectancy of my client. The dishonest defendants argued that the baby was injured so badly that he would not live past age 7 at best. AND, they found a qualified expert who sold them that opinion. I hired an expert who disagreed and said that with the appropriate care my client could live to a near normal life expectancy. I knew that my client would live a long life, not because of medicine. Because of love. His parents so loved him that I knew he would be safe in their care. The quality of his life was, however, dependent on getting money to support his needs. With no crystal ball available to predict the future there was a risk that a jury would compromise and meet at the middle of both ages. In this circumstance, that would be a tragic result because if my expert was correct then when my client’s life was only half over, he would have no more money for his care. Certainly, he deserved the benefit of the doubt over the negligent doctors.
Before the trial ended, the case settled for admittedly a large amount of money. Enough money to purchase annuities that would provide annual income to purchase the care that my client needed each and every year for my projected near normal life expectancy. As a lawyer, you never take more pride in your efforts than when the fruits of your labor improve forever the life a child. I remain proud to this day. Now, back to that card I mentioned. This year I received a card from this family with a very special picture – a graduation picture of my little friend. Yes, the same friend who the liars and cheats of the world opined, to a reasonable degree of medical certainty, would not live past age seven. Now eighteen and a high school graduate who enjoys life and is a wonderful inspiration to his parents and all those around him. He has, and will continue even after I am long gone, to make the world a better place. My only regret is that I can’t share this picture with the defense “experts” who stated with certainty that he would be dead more than 10 years ago. I honestly wonder how those people sleep at night. I suppose I also regret the fact that similar liars and cheats will appear in the next birth injury claim case I file. The law, much like life, should be more fair to the less fortunate.