Chapter Two of For Three Weeks I Owned the University of Illinois
One of my most important—though entirely unspoken—jobs as an associate attorney in a plaintiff’s personal injury law firm was CYA. Only the A I was to cover was not my own but that of the partner who assigned me a case. Hired ostensibly as an “appellate specialist,” I was expected to save verdicts won from juries when the defendants appealed, and to reverse verdicts lost, and summary judgments lost, so that we could have a new trial, or at least a first trial. Some of my most exciting legal experiences arose from these assignments. Very early in my tenure, for example, I was able to have a jury verdict against one of the partners in a medical malpractice case against an ophthalmologist in Effingham reversed because the judge gave an improper jury instruction. The partner re-tried the case, and the second time with the experience he had gained from the first trial he won a verdict in the high six figures. My worth to the firm was vindicated, but expectations became artificially high.
Such was certainly the case when the senior partner lost another medical malpractice case in Danville. The case involved another ophthalmologist who, while conducting cataract surgery with lens replacement, inserted the plastic lens backwards in the client’s eye. Naturally, there were serious visual consequences, and although the doctor repaired his error free of charge (it took two additional surgeries), the client filed a medical malpractice lawsuit, claiming that the physician breached the standard of care for reasonable ophthalmologists, and seeking money damages. The damages he could seek were limited because he was retired and had no lost income to claim, and because the doctor corrected the problem at no charge. Nonetheless, under the law in Illinois he was entitled to seek reasonable money damages for pain and suffering, permanent partial disability, and future pain and suffering. We represented him on a contingency fee contract, and under the law our potential fees were limited because of a statute passed earlier in the nineties.
The doctor was an energetic, entirely competent professional, but he had made a serious error. Doctors are, after all, only human, and are as prone to negligence as any of us. That’s precisely why they have malpractice insurance. He had done literally thousands of cataract surgeries, and had never before inserted the new lens backwards. At the first trial he had admitted that it was negligent for the lens to have been inserted backwards, but he claimed that it was not his fault. During surgery, he told the jury, time is of the essence so that he can keep his fees reasonable. He does many surgeries every day, and simply does not have time to look at every lens handed to him by a nurse to make sure it is not backwards. It is the nurse’s job to hand him a pair of forceps containing the lens, and he simply inserts it in the patient’s eye the way he is handed it. He had no opinion as to whether the nurse was negligent in this case, but he asserted energetically that he was not.
In a medical malpractice case, expert witnesses are employed by both sides to convince the jury that the doctor either was or was not negligent. Each expert witness tells the jury about his or her background, training, and experience, and what he or she has gleaned from reviewing the medical records and reading the depositions of the parties and any non-party witnesses. The expert then gives an opinion as to whether the defendant physician was negligent. The jury decides who to believe, and finds for the plaintiff if his or her expert is more believable or for the defense if the doctor’s expert is more believable. The doctor also gets to testify, or course, and as a professional can add his or her opinion to that of the expert. Often if the doctor is credible the jury will be sympathetic and find for the defense. Winning a medical malpractice trial is extremely difficult for a plaintiff’s attorney.
Part of the reason for this is the process that a case goes through prior to trial. Cases that are obviously bad for the doctor are usually settled before trial, with the insurance company paying the plaintiff some agreed amount within the limits of the policy. On the other hand, cases that are obviously bad for the plaintiff are dismissed at the outset, or at the summary judgment stage. Only cases that theoretically could go either way end up going to a jury; attorneys for the plaintiff never get to try their good cases, These days some excellent attorneys don’t try more than one case a year. The jury’s natural sympathy for the doctor more often than not leads to a verdict for the defense, regardless of the evidence.
Such had been the case in the first trial. The doctor had testified that the act of inserting the lens in the eye backwards was negligence, and his expert witness gave the same opinion. Our expert witness said the same thing, although he added his opinion that the fault was the doctor’s regardless of the orientation of the lens when handed to him by the nurse. The jury, though, agreed with the doctor and brought back a verdict for the defense. Our senior partner walked into my office when he returned from court, plopped the case file on my desk, and in response to my question of how he had done told me he came in second. I was to appeal the jury verdict, and if possible get him a new trial. Since, he said, I knew everything about ophthalmology from the previous appeal, I should have no trouble.
It was not quite that simple. In an appeal from the granting of summary judgment, the appellate court reviews the evidence de novo, with no deference to the trial court’s decision. Where a jury has rendered a verdict, however, considerable deference is given to the previous decision. A jury verdict will only be reversed if it was against the manifest weight of the evidence, a much more difficult standard of review. Alternatively, I could attempt to prove to the appellate court that the trial court had committed reversible error in the admission of evidence or the instruction of the jury, as I had in the previous eye case. In this case, though, the record was clear of such error, and I was reduced to scanning the transcript of the trial and what is called the common law record of the case for proof that the jury verdict was against the manifest weight of the evidence. Lucky for me, I found it.
It turned out that the testimony of the doctor and his expert witness that inserting the plastic lens in the patient’s eye backwards was negligent amounted to what is called a judicial admission. It did not automatically mean that we would win, but it constituted a presumption of negligence that the defendant failed to rebut adequately. In effect, the admission shifted the burden of proof from the plaintiff to prove the defendant was negligent to the defendant to prove that he was not negligent. He did not do so, and the jury verdict in his favor was therefore against the manifest weight of the evidence. We would get a new trial. One of the three judges on the appellate court panel that heard the case went so far as to say in a concurring opinion that the new trial should be on damages only; he would have granted judgment to the plaintiff on the basis of the judicial admission.
The new trial gave me a unique opportunity. Our senior partner was over seventy years old, and had been trying cases to juries for almost fifty years. It was quite possible that the retrial of the eye case would be his last. I asked, in fact begged, to be allowed to be his second chair. That is, I would sit at counsel table during the retrial, handle some routine questioning of witnesses, prepare all the exhibits, argue motions to the judge, work up the jury instructions, and get him coffee when he wanted it. In short, I was to do all the scut work, and he was to be lead counsel.
I was anxious to observe him in action because he was reputed to be the best trial lawyer in downstate Illinois. He had won multi-million dollar verdicts in previous malpractice cases, in negligence cases against railroads, and in products liability cases. He was the reason there are no Burger King fast food restaurants within twenty-five miles of Mattoon or Charleston, Illinois; he had sued and won a trademark infringement case against the national chain on behalf of a pre-existing greasy spoon called, amazingly enough, The Burger King in Mattoon. He had turned down a federal judgeship because he couldn’t take the pay cut with four kids to put through college (three became attorneys) and he didn’t want to move his family to East St. Louis, which at the time was little more than a ghetto. He had been invited to teach advanced courses in trial advocacy at the law schools at the University of Illinois and at Harvard University. He was a legend in his own time, and the main reason I had accepted his firm’s offer to join them.
Since all of the discovery in the case had been completed in preparation for the first trial, there was little to do to prepare for the second. The defendant named a new expert witness, since the truthful testimony of his first expert got the jury verdict in his favor reversed. Our senior partner diligently flew to Salt Lake City, where the new expert practiced and taught ophthalmology, and took his deposition. Amazingly enough, the new expert was not of the opinion that the mere placement of the plastic lens in the patient’s eye backwards constituted negligence. We had a feeling that the defendant would testify somewhat differently on that point as well. We were entitled to confront him with his inconsistent testimony from the first trial, but if he explained himself adequately he would get away with it. Since he had the best attorneys that the money of his insurance company could buy, we were confident that he would be coached to explain himself adequately. We needed something else this time, or the result would be the same. It was my job to find it.
In addition to preparing the exhibits we would use at trial, I went back to the original discovery in the case. We had requested, and received, numerous documents and other tangible things related to his treatment of our client and other patients. Most of them had not been used at the first trial, but I reviewed them all. Among the things that we received and I reviewed were three videotapes.
It seems that the good doctor videotaped all of his surgeries, and kept copies for his records. A video camera was attached to the microscope through which he looked into the patient’s eye as he conducted surgery, and it recorded everything he saw and everything he did within the range of the microscope. We weren’t sure why he did so, but it was clear that the tapes could have significant teaching value, and that they significantly widened the scope of his medical records. He had hundreds if not thousands of such tapes, and was evidently very proud of the number and speed of his surgeries. In his answers to our interrogatories, although not in testimony at the first trial, he had bragged about both. He also told us what he charged the various health insurance companies for each surgery, and we could calculate from that information how much money he brought in every day, week, month, and year. The figures were truly astonishing, even for attorneys who were used to thinking in the millions. None of this information had come into evidence in the first trial, either.
As part of my due diligence, I reviewed the videotapes. They were, of course, recordings of the three surgeries the doctor performed on our client: the first one, with the backwards plastic lens; the second, the removal of the lens; and the third, the insertion of a new lens in proper orientation. All three were surprisingly fast, and just as he had testified, in the first surgery we saw the forceps enter the field of the microscope’s vision when the nurse handed them to the doctor, and he immediately inserted the lens into the eye and attached it with some hooks provided for the purpose. It was impossible for me to tell whether the lens was right side up or backwards; presumably the jury would have the same problem. The hooks would work the same way right side up or backwards, so there was no way to tell from them. The first videotape was difficult for a layman to watch, as it included the doctor using a scalpel to slice into the eye to remove the cataract. I certainly flinched more than once. The second videotape turned out to be irrelevant; the doctor very briefly removed the offending lens but did not insert a new one. In the third videotape, however, we saw the forceps containing the lens enter the field of vision, and then we saw the most extraordinary thing, While the forceps were in the hand of the doctor, and before he inserted the lens into the eye, he very carefully turned the lens over twice, to make sure it was properly oriented. The maneuver took something like half a second. Then, satisfied that the lens was right side up, the doctor proceeded to insert it into the eye and attach it.
We had our smoking gun. The doctor’s defense was that he did not have time to make sure the lens was properly oriented before inserting it, and we had him on tape doing exactly that in less than half a second. Any reasonable jury would find that his failure to do so in this case was negligence. All that remained was to figure out how to elicit the proper testimony from the doctor himself.
We decided, first of all, that we had to allude to our evidence in opening statement. In a jury trial, each side has an opportunity to speak directly to the jury at the beginning of the trial, to explain what they think the evidence will show. The judge admonishes the jury that opening statements are not evidence, but they can be powerful tools in shaping jury perceptions. A theme for the trial can be established, and the presentation of evidence then supports that theme. In our case, the theme was, “Half a second makes all the difference.” While we would not explicitly mention the videotape in opening statement, we would establish the theme, and promise that we would show the jury—not just tell them, but show them—exactly what the doctor could have done and should have done to prevent this injury. We would urge them to hold us to our promise.
The order of testimony is of some importance in a jury trial. The jurors will receive the evidence in bits and pieces, not as a coherent story. The similes I like to use are that a trial is like a jigsaw puzzle, and that the opening statement is like the picture on the box. The jurors hear all of the testimony of one witness before hearing the testimony of any other witness, and they must put the pieces together themselves. Because witnesses are barred from the courtroom until they testify, they do not hear the testimony of the previous witnesses. The one exception to this is the defendant, who will testify in almost every civil case. The defendant, of course, is entitled to sit through the entire trial, and will hear all of the witnesses. It is therefore to the plaintiff’s advantage to have the defendant testify first; he or she will not have heard any other testimony, and cannot tailor his or her testimony to square with what the jurors have already heard. In a medical malpractice trial, though, it is usually confusing to the jurors to have the defendant testify first, since they have not heard anything about what it is the defendant will be vehemently denying. So it is usual to have the plaintiff’s expert testify first, followed by the defendant, and then the other witnesses, including the plaintiff. In our case, though, we decided to have the defendant testify last. That way, the very last thing the jurors would see and hear would be the doctor’s videotape, and his agreement that he could have and have should have done something different from what he did, because half a second makes all the difference.
We were pretty sure of what his testimony would be because we were entitled to ask him leading questions. For most witnesses, questions must be open-ended, allowing the witness to respond as he likes. Such a question might be, “What time is it?” The answer might be something like, “It’s two thirty.” A leading question would suggest the answer in the question itself, and can only be answered yes or no. The equivalent leading question would be, “It’s two thirty, isn’t it?” Skillful use of leading questions can force a witness to testify exactly as the attorney wants him to. Because they are so powerful, leading questions are only allowed for hostile witnesses (such as the defendant), for cross-examination (the opposing side’s examination of your witnesses, or your examination of his), or under limited circumstances to save time, such as establishing necessary background information (“Doctor, you graduated from Harvard Medical School with your M.D. degree in 1984, didn’t you?”). Under most other circumstances, leading questions will draw an objection, and the attorney will have to rephrase the question so it is open-ended. The interrogatories and the deposition are the places where the attorney obtains the information that enables him or her to craft skillful leading questions; two hours of detailed questioning during a deposition might be effectively boiled down to two or three leading questions.
Incidentally, even though we could shape the defendant’s testimony through the use of leading questions, he would still have two opportunities to clarify his statements. First, his own attorney would be entitled to ask him to clarify his adverse testimony during the plaintiff’s case, and he would be asked open-ended questions by his own attorney during his case. A jury trial is designed to be fair to both sides.
Before opening statements in a jury trial the parties must choose the jurors. The judge calls 12 randomly selected potential jurors from a previously published list into the jury box and asks them some general questions. The attorneys for the parties, in Illinois courts but not in federal courts, then get an opportunity to questions the potential jurors individually and as a group. A potential juror may be stricken from the panel by the judge for cause (if, for example, it is clear that he or she could not be fair and impartial, or if serving would be too much of a hardship), or by one of the attorneys for no reason at all, called a peremptory challenge.
Each side in a jury trial is given a certain number of peremptory challenges, often four or six each, and may use them on any juror who is not stricken for cause. While an attorney may strike a juror for almost any reason (she is a doctor, he is a lawyer), there are two reasons that are illegal. No juror may be stricken on account of race, and no juror may be stricken on account of gender. Other than that, no reason need be given. An attorney who believes the other side has stricken a juror for an unacceptable reason has a mechanism available to challenge the action.
The use of peremptory challenges is an art in itself; the attorney must keep an eye on the other eleven potential jurors, as well as on those yet to be called into the box, in order to get the 12 jurors most favorable to his or her case. At the same time, the other attorney is doing the same thing. Sometimes an otherwise objectionable juror will remain on the jury to prevent someone even worse from being seated. The attorneys know who is coming next because all of the potential jurors are numbered, and each has filled out a questionnaire that the attorney has reviewed.
When jurors are stricken for cause or by use of a peremptory challenge, the judge calls new potential jurors into the box from the list and the questioning of the jurors goes on. Finally, both sides exhaust their peremptory challenges, or choose not to use more of them, and the 12 jurors are seated. The judge will probably also seat one or two alternate jurors, who will hear all of the evidence but will not deliberate unless one of the original twelve jurors cannot do so for some reason (illness, for example). Illinois law requires a unanimous verdict by twelve jurors in a civil case, unless both sides stipulate to a lesser number. Federal juries are smaller, and some other states allow verdicts that are not unanimous. If the jurors cannot agree on a verdict, the judge declares a mistrial and the matter must be tried again before a new jury.
I began learning valuable lessons from our senior partner as soon as jury selection began. He was in his seventies, with sandy but graying hair, and he had a number of physical ailments. He was as trim as he had ever been, though, and as energetic. When the judge called upon him to begin voir dire, as the questioning of potential jurors is called, he leaped to his feet, strode confidently over to the jury box, and introduced himself to the potential jurors in his patented mellow tones. The men admired him, and the women fell in love with him; or at least that was the way it looked to me. He was that effective in presenting himself, a sort of latter-day Spencer Tracy in an elegant but rumpled suit. It didn’t seem to matter so much what he said, as how he said it. His goal was to make the jury like and trust him. If they did that, they would believe him. And if they believed him, he would win the case. It was Aristotle’s ethos personified.
Choosing the jury took one day. The second day began with opening statements from both sides. Following opening statements, in which we implanted our theme and the proof of negligence which was to come, testimony began. Our expert was an earnest young man from Florida who explained to the jury exactly what a cataract is, how an ophthalmologist is trained (he was a professor of ophthalmology at a medical school), and how cataract surgery takes place. He gave a very strong and well-supported opinion that placing the replacement lens in the eye backwards is a breach of the standard of care for an ophthalmologist; in other words, it was negligence.
There followed our other witnesses: the client and his wife, other physicians whom he consulted, a couple of nurses from the operating room. We had established the extent of the client’s limited damages, and had given the jury another doctor’s opinion about negligence, but we had not established the fact of malpractice to anyone’s satisfaction. For that, we needed the doctor himself. And we needed that videotape.
The defendant doctor took the stand as an adverse witness on the morning of the fourth day. Our senior partner led him through some background questions, eliciting along the way facts about the number of surgeries he had done, the number he does every day, week, month, and year, and what he charges for them. He testified to the basic facts of this case, and claimed he was not negligent. We impeached him with his testimony from the previous trial, but he was able to explain it succinctly; he had been well-coached. Then we brought out the videotapes.
This was no surprise, even though we had not used the videotapes at the first trial. At the final pretrial hearing, both sides must present to the judge, and to each other, lists of witnesses to be called, exhibits to be admitted, and jury instructions to be given. The videotapes had been on our list. They had been on the list at the first trial as well, but were never used. Apparently no one had ever watched them all the way through. Incidentally, we had also included the defendant’s expert from the first trial on our list of witnesses for the second trial, since he had inadvertently given testimony that was favorable to us. We had no intention of calling him as a witness, but the defendant did not know that. His attorneys spent a lot of time and effort in an ultimately unsuccessful attempt to have him barred as a witness. I think they were surprised when he did not testify.
Our senior partner carefully led the doctor through identification of the videotapes, authenticating them, and admitting them into evidence. He then played the first tape for the jury, with the doctor providing commentary about what was going on and why it was happening. Although he was entitled to lead the witness, our senior partner gave the doctor his head and allowed him to testify as he wished. As we had expected, the jury flinched at the sight of the scalpel slicing open the eye. Following the playing of the first tape, our senior partner forced the doctor to reiterate his position that he simply did not have time to check on the orientation of the lens before inserting it into the patient’s eye. He agreed that was his general practice, and as far as he knew he did it in all his surgeries.
They went through the same process with the second videotape, just for the sake of completeness, and once again the doctor testified that he always followed his general practice. Then came the third tape.
This time, the doctor’s commentary came to an abrupt halt when he saw himself on tape turning the forceps over and over beneath the microscope before inserting the plastic lens into the patient’s eye and fastening it in place. Our senior partner stopped the tape, rewound it, and played the important section again. The questioning then went something like this:
“Doctor, right there you turned that lens over twice before implanting it, didn’t you?”
“Yes.”
“And you did that so you could make sure the lens was in the proper orientation before implanting it, isn’t that right?”
“Yes.”
“And that process took about half a second, didn’t it?”
“Yes.”
“And you didn’t do that in the first surgery, did you?”
“No.”
“If you had done so, it would have taken about half a second, wouldn’t it?”
“Yes.”
“And if you had done so, the lens would not have been implanted backwards, would it?”
“I don’t know.”
“If the lens had not been implanted backwards we wouldn’t be here, would we?”
“No.”
“Half a second can make all the difference, can’t it doctor?”
“I don’t know.”
The case was all over except the shouting. Oh, there was still the clarification examination of the doctor by his own attorney to go through, and the doctor’s own case, including the testimony of his expert (who had not, of course, seen the videotape previously, but watched it just before his testimony the next day for the first time). The doctor himself testified again in his own defense, but it was pro forma. The jury had made up its mind, and we all knew it.
We rested our case before noon on the fourth day of trial, and the defense rested before noon on the fifth day. The parties gave closing arguments, and the judge instructed the jury. We went out to lunch at 12:30 on Friday, with orders from the judge to be back in court by 2:00 in the afternoon to wait for the verdict.
Closing arguments and jury instructions are inextricably entwined. Jury instructions are often the first thing I do when preparing for a trial, because the instructions lay out very clearly what must be proven and how the jury is to decide the case. Until I know where I have to end up, I can’t figure out how to get there. Most of the instructions are cut-and-dried, and are taken verbatim from something called the Illinois Pattern Jury Instructions. Two of the instructions, though, known as the issues instruction and the burden of proof instruction, must be tailored to the facts of the particular case. It is how the judge instructs the jury on how they are to decide the case, and consequently these two instructions are most important. The parties submit proposed instructions to the judge prior to trial, and if there are differences each side gets a chance to persuade the judge that its version of the instruction should be used. The jury, of course, never hears these arguments, which take place in the privacy of the judge’s chambers. A case can rise or fall on the quality of the issues instruction and the burden of proof instruction, and sometimes a jury verdict can be reversed if the wrong instruction is used, as in the previous eye case I had appealed. In order to claim an erroneous jury instruction later, however, the attorney must object to the instruction before trial, and submit his own proper instruction for the record. If he does not do so, he cannot later claim error.
In closing argument the attorneys attempt to show the jurors how the evidence that has been admitted fits the judge’s instructions as to how they are to decide the case. The closing argument thus looks back to both the opening statement and the testimony and exhibits, and looks forward to the jury instructions. In fact, I like to tell the jury that, “The judge is going to instruct you that . . .”, and then quote one or more instructions verbatim. When the judge later gives the instructions exactly as I prophesied, I gain credibility. The other side can do the same thing, of course, but the attorney for the plaintiff gets to do it first. This is an advantage, particularly when coupled with the invaluable opportunity the attorney for the plaintiff has when he is allowed a few minutes at the end to rebut the closing argument of the defense. The plaintiff has these advantages because he or she has the burden of proof, which can be difficult to meet under the best of circumstances.
In our case, closing argument was relatively brief. Our senior partner reiterated our theme; tied the evidence to it; reviewed the qualifications of our expert, the basis for his opinions, and the substance of those opinions; and did the calculation of the amount of money the doctor obtained from his break-neck surgical schedule. He then played the third videotape for the jurors once again. He reminded them of the doctor’s testimony, which virtually amounted to an admission of negligence; briefly outlined the damages we were seeking; and closed with a quotation from Abraham Lincoln in one of the courthouses in which he had practiced law some hundred and fifty years before. It was a distinguished performance by any standard.
While we were supposed to be back in court by 2:00, at about 1:45 my cell phone rang. It was the clerk of the court, with news that the jury had returned with a verdict. The verdict was announced at 2:00: the jury unanimously found for the plaintiff, and awarded the full amount of damages we were seeking. When we interviewed four or five jurors later, we confirmed that they made up their minds when they saw the third videotape, and the only reason they did not return a verdict earlier was that they wanted to finish their free lunch.
We never did discovery why the doctor videotaped his surgeries. He did not teach at a medical school, and there was no market for tapes such as these. Perhaps he just wanted souvenirs of his conquests. The odds are that if he did not have the videotapes the jury would have found in his favor as they did at the first trial. If there is one, I guess the moral of the story is be careful of what you videotape; it can come back and bite you on the ass.
It turned out that this was indeed the last jury trial of our senior partner. He sold his shares in the professional corporation that was our law firm to his partners, one of whom was his son, and started coming in to the office only when it pleased him. That was good for the firm, since his name still brought in big cases from across the state. His vested share of the firm’s profit sharing scheme provided more than enough income for the rest of his life, and he still owned the building that the firm rented, not to mention hundreds of acres of prime farmland growing corn and soybeans that at last count was selling for over $6,500.00 an acre. He and his wife split their time between their home in Mattoon and a second home in Florida, and they visited their far-flung grandchildren whenever they could. He later beat colon cancer with the same steely-eyed determination he used in the courtroom. His life in the law had been a good one, and I was privileged to have worked with him even as short a time as I did.
POST SCRIPT. I first posted this blog in 2012, the same year that For Three Weeks I Owned the University of Illinois came out. I write this in 2020, and I have recently had cataract surgery on both eyes. I did not tell my ophthalmologist about this case. I did note, however, that he did not videotape or otherwise record either of my surgeries. My vision is now 20-20 in both eyes, and I see colors with a clarity and intensity I have not had in years. Further, the surgery was not a problem, despite my misgivings. I felt nothing, and my sight was improved immediately. I would recommend it to anyone with a cataract problem.
For Three Weeks I Owned the University of Illinois is still available on Amazon.com; it contains this essay and seven others, including the title essay.
