Let me begin by saying that being an attorney is a lot of hard work. And most of it is repetitive and somewhat boring. Not that writing a will or a trust, or drafting a deed, does not have a certain amount of satisfaction, but there are moments of happiness imbedded in the work, and some of them are joyous. I suppose that the same can be said of most professions; I know that my prior work as a theatre professor often brought me great joy. Attorneys, though, especially those of us who specialize in trial work as our firm did, are often seen as joyless sharks, attacking indiscriminately whatever moves. My memories bring a contended smile to my face even now, and I thought it might be useful to share some of them.
I was our firm's designated appeal specialist, since appeals require extensive research combined with a certain amount of oral advocacy and I had extensive experience with both. By the time I joined the firm I had published several research essays in the Illinois State Bar Journal, not to mention two books and more than a dozen theatre history and literary criticism papers. I also had twenty years of experience in persuading bored undergraduates to take an interest in whatever I was talking about. Believe it or not, arguing to judges is a lot easier. So I often found myself doing the appeals for cases another attorney in the firm had tried and lost, and it was my job to get them a new trial by pointing out the ways in which the first trial had been unfair or had broken the rules.
Incidentally, once a jury has made a decision it is usually very difficult to get that decision overturned. There are a few standard arguments that can be made, and the appeals process starts by reading the transcript of the trial. It is the appellate attorney's job to fit the facts of the trial into the law regarding reversing a jury verdict, and then to persuade the appellate court (composed of three judges who do nothing but rule on appeals) that they are right.
In my second appeal, one of the partners in the firm had lost a jury trial involving alleged medical malpractice against an ER doc who treated a man who got a foreign object stuck in his eye. The man later lost the eye. The special circumstance was that this doc had been trained for years as an ophthalmologist and so had specialized knowledge of the eye. It was a very close thing and the jury took two days to deliberate, but eventually they returned a verdict for the doc. The partner wanted very badly to try the case again.
As I almost finished reading the transcript, it jumped out at me: that fleeting moment of joy. After all the testimony was complete, and after the lawyers had argued their cases to the jury, the judge had instructed the jury on the law that they were to follow in deciding the case. One of those instructions had to do with the definition of proximate cause. There were standard definitions the judge was to use, depending on the circumstances. The attorneys submit the ones they want to the judge, and the judge decides which to use. If one attorney submits one instruction; the other attorney submits a different instruction; the first attorney objects on the record; and the judge chooses that instruction, there is an automatic reversal if the first attorney appeals on that issue. That's pretty rare; mostly whether or not reversal is justified is a question of the appellate court's discretion, but in this case it is required. This is the golden apple of appeals; you just can't lose. And that's where I found myself.
There was still a lot of work to do; I raised a few other issues, none of which was likely to result in reversal, and filed my written argument (called a brief, although they are not brief). I then replied to the response of the doc's defense attorneys (actually, the doc's insurance company's defense attorneys, but that's another story; nobody is allowed to mention insurance, even though everybody, including the jurors, know that there is insurance involved). I was interested to see how they would respond to my golden apple, but they seemed to lose it among all the other issues I raised.
Then came oral argument, about a year after the verdict was rendered. While I had buried my pet issue in the middle of my brief I led with it in oral argument and I spent most of my time on it. When it was his turn opposing counsel began to plod through all the issues I had raised one at a time in order, but the judges stopped that pretty quickly and questioned him extensively on the jury instruction. He knew very little about it, and by the end of the argument it was clear to everyone in the courtroom that I would get a new trial.
When the partner retried the case a few months later he won, getting the now one-eyed man over $500,000 in damages. Of that amount our firm got over $200,000 in fees plus the reimbursement of all of our expenses. That was a good day.
Incidentally, after we both retired I played bridge with that judge for many years. and still do on occasion. I asked him once about that trial, and he admitted that he just took his eye off the ball for a minute and made a mistake. He hadn't even known that I was the one who got him reversed. But at least he never made that mistake again.
Shortly after completing the eye case, our firm was retained by the husband of a woman who had been convicted of murder in White County in southern Illinois. The family thought that the public defender would be good enough, but as we discovered they were tragically wrong. One of our partners was hired to do the direct appeal, and the husband thought all we had to do was demonstrate reasonable doubt. We had to disabuse him of this common belief; once a criminal defendant is convicted the bar is much higher. The partner turned the appeal over to me, and I was hip-deep in my first murder case since I interned with a well-known State's Attorney while I was in law school.
In that case I provided support for the prosecution to seek the death penalty, which I deeply regret. The defendant pleaded guilty to the only count in the indictment that carried the death penalty, and during the plea hearing I sat at the prosecution table immediately beside the defendant. His mere presence was so scary that the hair on the back of my neck stood on end. During the penalty phase of the trial the jury voted unanimously for the death penalty. In addition to providing the proper murder count (murder during the commission of robbery) I provided the necessary proof that the defendant was at least 18 years old at the time of the murder. Fortunately, while the case was on appeal the Illinois legislature banned the death penalty and his sentence was commuted to life without the possibility of parole.
At least in this new case there was no death penalty; the defendant had been sentenced to 30 years in the penitentiary. At the time this meant that she would be paroled in just under 15 years. Nowadays convicted murderers must serve 100% of their sentences. As I began the appeal it became clear that there was very little chance of success. There was one interesting issue, though; the prosecution had introduced evidence of the kinds of books on the defendant's bookshelves, which were predominantly murder mysteries. I stretched a point to argue that this was a violation of her constitutional rights, but I didn't expect to win.
This was an entirely circumstantial case. There were no eyewitnesses, no fingerprints, no murder weapon, no DNA, no bloodstains. The victim had been shot, and the defendant had never owned a gun. She was the last person to have been seen with the victim, and when she returned home after she and the victim went to the mall she immediately washed her clothes, reportedly with a detergent known to be good at removing blood. Most damningly, the victim's partially mummified body was found in the defendant's storage locker some months after the murder. That might have been enough for the jury to find reasonable doubt, but as the evidence was submitted they did not.
A happy coincidence occurred at oral argument. Representing the State of Illinois was an attorney from the SAPs (the Office of the State Appellate Prosecutors). I had worked for the Office of the State Appellate Defenders during my second summer in law school, and the SAPs had their office next door. I recall getting a man's felony conviction reversed the day after he was released from prison, and getting a juvenile's conviction for robbing a Huck's reversed. The SAP who was on the other side in the murder case was the same attorney who was on the other side in both of those cases. He remembered me very well, and took great pleasure in telling me that the juvenile I had kept out of the penitentiary was now serving a sentence for another robbery. He did me the courtesy of telling me that I had possibly won a reversal for my client because of my unique issue. He was wrong, of course; the conviction was affirmed.
The next step in the process was to ask the Illinois Supreme Court to hear the appeal. This was really just pro forma, since the Supreme Court decides which cases it will hear and very seldom hears a criminal case unless there is a truly egregious error. As expected, they declined to hear this case.
After the denial of the Supreme Court our real job on this case began. In Illinois, and in most other states, the direct appeal is limited to issues, witnesses, and arguments raised at the trial. This is one of the reasons that getting convictions reversed on direct appeal is so difficult. But often there are issues, evidence, and witnesses that were not raised at trial that can demonstrate a defendant's innocence, or some other reason to reverse the conviction such as the ineffective assistance of counsel. Something called a post-conviction petition exists for such a case.
I had reviewed not only the transcript of the trial and all of the evidence admitted, but also all of the paperwork generated by both the prosecution and the defense. This included a very large number of police reports documenting the entire investigation and identifying a larger number of potential witnesses. The public defender claimed to have interviewed all of these witnesses, and had not called any of them to testify because he did not believe they had anything to contribute to the defense.
My first job in the post-conviction process was to interview all of those potential witnesses. What I found was surprising. I interviewed about 20 people, located all around southern Illinois, and every single one of them denied ever having spoken to the public defender. That in itself was troubling, but so was the information that they gave me. One of them told me he had told the police that he had heard another man in a bar after the murder bragging that he had killed the victim. Another was the administrator of a trust of which the victim was one of several beneficiaries, each of whom received a lot more money once the victim was dead. Another was a man suspected of being a major drug dealer in White County. Another was the boyfriend of the victim. It struck me that, in a circumstantial case, the more stuff that was thrown against the wall, the more likely it was that some of it would stick. If the public defender had called all of these people as witnesses, the jury might have become confused enough to find reasonable doubt. That he did not do so was troubling, but it was completely unacceptable that he never even interviewed them. It looked to me like I had a clear case of ineffective assistance of counsel.
The Bill of Rights provides, in pertinent part, that every criminal defendant is entitled to be represented by counsel, but that counsel must be effective to meet the constitutional requirement. Effective representation need not result in an acquittal, but it must include things a reasonably competent attorney would do. Here, arguably, it did not.
A note about this public defender is in order. He was an older gentleman, in his sixties. He had previously served as State's Attorney, circuit judge, and appellate court judge. The prevailing theory in White County was that he was appointed public defender to mark out his time until retirement, at which time his pension would be enhanced by additional years of service. He tended to plead defendants out rather than go to trial, and this was the first and only murder case he had defended in his entire career. It looked like he had cut a few too many corners to me.
With a strong theory of the case in hand, I next drafted the actual motion for post-conviction relief. I was seeking a new trial based upon the ineffective assistance of counsel. I alleged facts from outside the confines of the trial, so it was beyond the scope of the direct appeal. I had to convince the judge that it was more likely than not that I could prove my case, and in a hearing that was ostensibly open to the public but was in fact attended only by the lawyers and the court officials (the judge, the bailiff, and the court reporter) we argued the merits. I succeeded, as I had expected, and the court ordered an evidentiary hearing within three months. This would be like a trial, and I would call witnesses and examine them as if it were part of the defense's case in the original trial. The main difference would be that there would be no jury; the judge would decide the case. The result would be, not a finding of innocence, but an order for a new trial at which we would present our evidence, as well as all the evidence from the first trial, to a jury.
Before the evidentiary hearing I wanted to lock in the testimony of some of my witnesses, so I scheduled depositions. These are not allowed in criminal cases but technically post conviction petitions are civil cases. So I deposed the public defender, his assistant who was the public defender in a neighboring county, and the victim's boyfriend. There were no bombshells, but at least I knew what these hostile witnesses would say. The stage was set.
I tried the case with the partner from my firm as co-counsel. He examined the hostile witnesses and I took the rest. Like the hearing on the petition this was an open hearing, but unlike the hearing on the petition the courtroom was packed. There was even newspaper coverage of every aspect of the case. I guess in a small southern Illinois county murder is a rare thing, and they understood that we were alleging that the public defender was ineffective. It was quite a circus.
Unfortunately it was not quite enough of a circus. Even after the explosive testimony that the public defender had never interviewed any of these witnesses, and my argument that he had lied about it, the judge ruled that we had not proven that absent these actions by the public defender the results of the trial would have been different. That is the second prong of the two-pronged test for ineffective assistance. Given that, he never even reached the question of whether counsel was effective.
Naturally we appealed, and I felt pretty good about our chances. For one thing all we had to do was prove both prongs by a preponderance of the evidence, or that it was more likely true than not. The judge at the evidentiary hearing was the same judge who presided at the trial, and the appellate court would consider the evidence we presented de novo, rather than giving any deference to the hearing judge's evaluation. What we forgot was that this was the same appellate court on which the public defender had sat just a few years earlier, and it was understandable that they would be loathe to find their former colleague was ineffective.
Oral argument went very well; the court asked good questions and appeared to be more interested in the evidence presented for the first prong than the second. That was good news. We settled in to wait for an order from the appellate court. They took their time about it, finally issuing an order denying our request for a new trial based on the second prong. It was close, with one judge on our side but two opposing. This order, though, was where my moment of happiness in this case came. Unlike the hearing judge, the appellate court reached the first prong and explicitly found that the public defender had been ineffective. It didn't help our client, but arguably it improved the system of criminal justice in White County for the foreseeable future.
There were still things we could have done; there is an entire sequence of petitions and hearings we could have filed in federal court. This would have been a petition for a writ of habeas corpus (literally, have her body) started in the U.S. District Court, continued in the U.S. Court of Appeals for the Seventh Circuit, and ending in the U.S. Supreme Court. But by this time the defendant's husband had filed for divorce and bankruptcy, and our $75,000 bill went unpaid. I guess this is why the conventional wisdom in criminal cases is that an attorney should get his fees up front and in cash. The partner did not, and our firm paid the price.
My first jury trial was also a source of happiness. It was a case I was never supposed to try, but as we routinely did in our firm I covered the final pre-trial hearing in Douglas County because another of our partners was out of town. Imagine my surprise when the judge told me that in his county whoever shows up for the final pre-trial hearing tries the case. I could do nothing but smile and agree, and a month later I showed up with shining morning face and a suitcase full of evidence.
It wasn't as if I was unfamiliar with the case; I had taken most of the depositions and so knew what was going on. It was a products liability case against a herbicide company, two farmers, and a spraying company that sprayed the herbicide the farmers bought. The allegations were that the product was defective when it left the factory, and that it was sprayed when the wind was too high on two occasions and the herbicide carried through the air and killed my client's vegetables. He was a vegetable grower and we alleged he lost over $200,000 that year.
My client and I were dwarfed in the courtroom by the presence of five attorneys for the defense and their clients. I rather enjoyed playing up the David and Goliath aspect of the case in opening statement and closing argument. The attorneys all worked for insurance companies and were among the most prominent in central Illinois. As in most cases like this the case was top-heavy with expert witnesses. who testified as they were paid to do. My witnesses found the herbicide to be a dangerous product, and theirs found that it was not. Mine found that the herbicide was carried on the wind, and theirs found that it was not. It came down to who the jury was going to believe. And the biggest single component of who to believe comes down to which attorney do they trust. My client was not particularly likable, but fortunately the other attorneys came across as pretty nasty. So I had an advantage.
Most jury trials, involving auto accidents, for example, take a day or two, Even complex medical malpractice cases rarely take more than a week. This case took two full weeks and the jury deliberated for two entire days, a record for Douglas County. In the end, late on Friday afternoon of the second week, the jury came back with a verdict for my client. I was somewhat surprised but so happy that I didn't even hear the judge read the amount of damages awarded. It turned out to be $125,000. The other attorneys congratulated me and offered to take me out for a drink; for them it was just another day at the office, and only the insurance companies' money was on the line. When I took a rain check because I had to get home I let it slip that this was my first jury trial. Since I was as old as they were and they had been attorneys for twenty years or more this was shocking; there wasn't a sound for what seemed like five minutes. By this time the judge had joined us, and he looked at me with more respect than he had throughout the trial. I don't know what he thought, but as long as he was on the bench in Douglas County I was treated very well indeed.
Over the fourteen years I practiced with my firm I had many more jury trials in various county courthouses, and many more moments of joy. In federal court, though, mostly I had bench trials where the judge makes the decision and settlement conferences where a magistrate judge pounds on both sides to settle the case before trial. I used to enjoy settlement conferences a great deal, because every time I went into one I came out with money for my client, if not as much as my client thought he or she deserved. The one that sticks out in my mind was for a client who fell from a tree stand that broke while deer hunting. Once again this was a products liability case and I had assembled my experts: a metallurgical engineer and a design consultant. The company was out of business but we found the insurance company that represented it at the time of the injury, so we had somebody to sue.
The case progressed through written discovery and the depositions of witnesses, and the court called us in for a settlement conference. My client wanted $150,000, although his medical bills were only $25,000 and he was not disabled, and the insurance company wanted to pay only that $25,000. The magistrate judge met with each of us in turn throughout the day, and at about 4:30 we settled the case for $75,000. That was about what I expected to get from a jury trial, and I was as happy as a clam. My client must also have been happy, since he later hired me for another case which we also settled.
The most fun I ever had in a federal bench trial was in a case where our client was injured on a jet ski by a boat that hit him. It was one of the partners' cases, and he asked (not that I had any choice in the matter) me to try the case with him as second chair. I didn't mind; once again I had taken most of the depositions and knew the case pretty well. Negotiations for a settlement had broken down, so we tried the case before the magistrate judge. The trial went very badly, since we were unable to establish negligence on the part of the owner or driver of the boat. It was a one day trial, and during the afternoon break we casually asked the other attorneys if they would like to resume negotiations, since we were so obviously going to win. Much to my surprise they agreed, and we told the judge we wanted another half an hour. We started at the place where we were when negotiations broke down, and settled the case for just about twice that amount. After we reported the settlement to the judge he told us privately that he had been about to enter a verdict for the defense. I smiled all the way home.
I was once again handed a case to appeal that I had not tried when a partner lost a bench trial in Champaign. This was a high-profile breach of employment contract case involving two of the main anchors in a network-affiliated television news organization. The television station had been sold by a local family to a regional television conglomerate, and their M.O. was to fire a lot of people and make the rest work more hours for the same pay. When they did that here, the anchors came to us for help and we sued. The written contracts stipulated that the employer could change the terms of employment at will, and that was what the judge had found.
When I reviewed the transcript at the start of the appeal, I discovered something interesting. In writing his decision, the judge had said that the appellate court might reverse him because of the implied covenant of fair play, and that this meant that any change in the conditions of employment had to be within the reasonable expectations of the employee. This gave me my theory of the case, and in the brief I ran with it.
It was during oral argument, though, that things really got to be fun. The three judge panel was cool if not downright hostile, but I kept hammering away at the fact that one of the anchors had his workload increased by 100%, and the other had hers increased by 75%, and that such increases could not be considered reasonable. As I repeated this mantra for the fourth or fifth time, the dawn began to break in the eyes of the judges. I could tell they were transitioning to my side of the issue, and sure enough when the decision came out they reversed the judgment of the circuit court. Further, they entered judgment for our clients and ordered a new trial on damages only.
The partner handled the new trial, and he came away with a judgment for about $250,000. Damages in a breach of contract case are comparatively limited; there is no "pain and suffering", which is usually the element that pushes damages so high in negligence cases. Million dollar verdicts are not uncommon in medical malpractice cases, for example, but usually not in contract cases. Even so, the partner and I were convinced that our damages were too low, so we appealed again. I pointed out in the brief what the various categories of damages were, and how they should have been calculated. I asked for just over $400,000. When the television station's brief was due, we got a call requesting an extension of time from their attorneys. We agreed, and used the extra time to negotiate a settlement for $400,000. It turned out the insurance company had determined that we were going to win anyway and it didn't want to incur any additional attorney fees. Our share was $160,000 and the payment of all of our expenses. I got a nice bonus at the end of that year.
The anchors, who were married, had moved to Chicago, where the man retired and the woman began work as a corporate attorney. She had gone to and graduated from law school while the suit and the appeals were pending. As far as I know they live there still.
Early in my second year with the firm a partner and an associate left under less than optimal circumstances. I inherited one of the associate's federal cases, a breach of contract and consumer fraud action against the Menards in Terre Haute. It was a case I would not have filed myself, but it was my job to take it to a conclusion. Our client had purchased a home building kit that was advertised as containing everything needed to build an A-frame home. It turned out not to contain everything, and our client spent more than $150,000 in addition to the kit. He wanted all of that money back, and we were also seeking attorney fees and punitive damages. I conducted written discovery and took depositions of everyone involved, including my expert and Menards' expert. Not unexpectedly, the court entered summary judgment for Menards, finding that we could not win on any theory.
I disagreed, and filed an appeal to the Seventh Circuit, one step down from the Supreme Court. I argued in my brief and also in oral argument that even if the advertising could not be construed as part of the contract, being seen as "mere puffery", the count alleging consumer fraud must stand. Toward the end of my argument I took a chance and made a Monty Python joke. The senior woman on the panel laughed out loud, and I knew I had an ally. And when the decision came down some months later I found that I was right. In a 2-1 decision the Court of Appeals reversed the District Court and reinstated the consumer fraud count of my suit. We prepared for trial and settled for more than the amount my expert was going to testify we were entitled to. My client was livid; he wanted all of his money back. I was finally able to explain to him why he couldn't get that much, and why settling for a sure thing was better than taking a chance and getting nothing.
Incidentally, our former partner is now a well-respected judge and the associate is one of the premier personal injury attorneys in downstate Illinois. A total of four attorneys from our firm have become judges, and one was elected State's Attorney, which is not bad for a comparatively small firm in the middle of a cornfield. Three of us have retired from the firm, including the founding partner, and the other two partners with whom I worked are now about 75 and ready to retire themselves. A new generation will be guiding the firm's fortunes in the near future.
Near the end of my career I was assigned the appeal in a high-profile criminal case. One of the partners had defended an attorney who had run for Congress twice in a case involving the Internal Revenue Service. He lost, and the client was sentenced to two years in the penitentiary. And this was not to be at Club Fed; he was to serve his sentence in the Menard Correctional Center, one of the roughest and most notorious prisons in the country. Manuel Noriega was one of their better-known inmates. We were anxious to get his conviction reversed. Fortunately there was a little time; he did not have to report for a week. I put together a motion to the Court of Appeals under one of their little-known but extremely useful rules. If I could convince them that we were likely to succeed on appeal, they would stay his sentence until the appeal process was complete.
The problem was that I did not have a persuasive issue. In a federal appeal an attorney is limited to the issues raised in the post-conviction motion. As I quickly reviewed the transcript and that motion I saw only one possibility, and the District Court judge had ruled against us on that issue twice, albeit without giving his reasons. So I did some quick research, guided by the cases cited by the partner in his post-conviction motion, and sent off the motion with two days to spare. The client was resigned to his fate, and his wife was going to drop him off at the prison in two days. Meanwhile, a miracle happened.
On the day the client was to begin serving his sentence, we got a fax from the Court of Appeals at about 4:00 p.m., telling us that the three judge panel assigned to the case had allowed my motion and stayed his sentence! The court had of course also faxed the order to the penitentiary, with the result that our client was released before they even finished processing him. He had to call his wife to turn around and come and get him.
I retired from the firm before that appeal was complete; the partner finished it up and argued the case before the Seventh Circuit. Unfortunately he lost; our on-the-fly research was incomplete and our argument was shot down by a very recent case on the same subject. So about a year after his sentence was stayed our client went back to Menard and this time he stayed there. This was fourteen years ago, and I have been happily retired ever since. Thanks to the State of Illinois, Social Security, and TIAA (a private annuity company for college professors from my years of teaching before SIUC) I was able to retire at age 62. And thanks to my wife's pension we are quite comfortable.
In a nifty turn of fate my final appeal was like my first appeal: a medical malpractice case against an eye doctor. This case was tried by our founding partner who when he came back from Danville where the case was tried tossed the case file on my desk and told me he came in second. I understood him to mean that he wanted me to appeal and get him a new trial. So I once again ordered the transcript and read it when it came in. It turns out that the defendant had been sloppy in his testimony. In answering a question he used language that could reasonably be construed as admitting negligence. This was enough to get the judgment reversed and a new trial ordered. This time I was to assist the partner in what would be both his last trial and my last trial.
It was during my preparations for trial that my first moment of joy in this case came. The defendant ophthalmologist had videotaped all of his cataract surgeries through a camera attached to the microscope he used to look into the patient's eye. In this case he had implanted one of the artificial lenses backwards, ruining our client's vision. He did two subsequent surgeries for free, taking out the lens in the first and implanting a new one in the second. So there were three videotapes which we had obtained in discovery. As part of my due diligence I reviewed all three. They were pretty horrible to watch; each involved the doctor slicing into this guy's eyeball. In the first I saw the artificial lens held by forceps enter the field and inserted rapidly into the eye. I certainly couldn't tell that the lens was backwards and the doctor had testified that he had to do it quickly because he had so many to do each day. He threw the nurse who handed him the forceps under the bus by testifying that he had to trust her to give it to him right way up and she made a mistake. There is a rule in some states (the "Captain of the Ship" doctrine) which holds the surgeon responsible for all mistakes made in the operating room, but that is not the law in Illinois. The second videotape yielded nothing helpful, but the third gave me that moment of joy. In the final surgery, when the forceps holding the lens entered the surgeon's field of vision through the microscope, he briefly turned it upside down and then right side up again, clearly checking to make sure it was in the correct orientation. The doctor's defense was shot to pieces, from his own actions. The whole procedure of checking the lens took less than a second.
During the trial things went just as planned. When he was shown the videotape the ophthalmologist had no explanation why he had not checked the lens during the first surgery. The jury quickly found in our favor, awarding our client $125,000. The amount would have been a lot higher if our client had been younger, but he had retired and had no lost income. We settled the case at a small discount to forestall an appeal. We would have won, but it would have taken a lot of time and our client's attorney fees would have increased from the standard 1/3 of the judgment to 40% because of an appeal.
There was one more fleeting moment of happiness in this case. The insurance company's attorneys retained a new expert for the second trial and I saw a way to mess with their heads. They were clearly less than satisfied with the first expert's testimony, so we put him on our witness list. Opposing counsel went ballistic, not only moving to strike the witness but moving for sanctions against us. I argued that he was a previously disclosed witness who had been properly deposed and had in fact testified during the first trial. His testimony would be useful to us, and we were perfectly within our rights to call him as am witness. The judge of course agreed, and the expert remained on our witness list. Of course we had no intention in the world of calling him to testify, but opposing counsel did not know that even if they might have guessed it. They spent a lot of time planning how to cross-examine their own witness, and all of that time turned out to be wasted. I don't know for a fact, but my guess is the insurance company would not have compensated them for that time.
A life in the law can be satisfying as well as lucrative. I was not a partner in my firm but I was compensated fairly. Generally an associate attorney such as I was is expected to bring into the firm three times his or her salary annually, to pay for his salary and benefits as well as his assistant's and his share of the overhead (other staff salaries and benefits, the mortgage, utilities, unreimbursed client expenses, and so on). In my first two years I did not hit that mark, but after I was established and began to have some success with trials and appeals it happened automatically. And the more I brought in the more my annual bonus increased. I did not have access to most of the really big cases; the partners kept these for themselves. Even so I took my happiness where I could find it, and there were many moments of joy not necessarily connected to a paycheck.
More information about several of these cases and a few others that stick in my mind for one reason or another may be found in my legal memoir, For Three Weeks I Owned the University of Illinois (Lulu Press, 2011). It is available on Amazon.com.
