To speak for the dead

9

I was cruising on autopilot. On a very rough flight. I hadn't slept or thought about closing argument since Susan Corrigan handed me the vial and told me it was a murder weapon. I still felt it in the palm of my hand, the glass cool and smooth to the touch. Succinylcholine, a laboratory name. Like the clear liquid itself, impersonal as death.

The vial added a new dimension to Susan's bald allegation that Roger Salisbury killed her father. She had an exhibit. How juries love exhibits. The murder weapon, something to take back into the jury room and fondle.

My mind bounced it back and forth. I looked at Roger

Salisbury sitting next to me. Salt-and-pepper hair well groomed, an oval face that was nearly delicate, intelligent eyes. Almost a scholarly appearance, an overall impression of competence. He looked like what he was, a physician. A healer, not a killer. But I had seen him stripped bare- literally-and wondered if his taste in after-dark activities could lead him to murder.

That's what Susan Corrigan wanted me to think. Maybe I was playing the fool for an elaborate scheme, Susan Corrigan throwing me a curve. She could have had the mono-grammed leather valise made up in any shopping center. The liquid could have been water. She could be in cahoots with Melanie Corrigan to get me to tank the case. Or at least to distract me enough that I boot it. Hauling me over the night before closing argument. And me leaping for the bait, a wholesome dark-haired young woman, maybe underneath the Ivory soap just as mendacious as Melanie Corrigan. But I didn't have time to think about it. Dan Cefalo was clearing his throat and approaching the lectern. He looked remarkably normal in a dark blue suit and a white shirt that stayed inside his pants. He turned to Melanie Corrigan, gave her a fatherly smile, then bowed in the direction of the judge.

"May it please the court," he began, "and ladies and gentlemen of the jury. First I want to thank you all for coming down here and spending a week listening to a bunch of lawyers and doctors. I know it hasn't been easy, but without the aid of responsible citizens such as yourselves, we wouldn't have a justice system."

This is the thank you folks part of closing argument. It's a way to butter up the jurors, then get down to the nitty gritty: asking them to spend several million dollars of someone else's money.

"So on behalf of Mrs. Corrigan here," Cefalo continued, nodding and drawing their eyes to the plaintiff's table, "and on behalf of all of us whose privilege it is to serve, we thank you. You had to leave your jobs and families but that's what makes our system great. I love it, the American system of justice. It's what separates us from the barbarians and Communists."

I was starting to feel very patriotic and wondering when he would get into it.

"Now the first thing to remember when I'm up here and when Mr. Lassiter gets up here, is that what we say is not evidence. This is just lawyer's talk, and you know the old expression, talk's cheap. They call this closing argument, but I'm not going to argue with Mr. Lassiter. Think of me as a guide. I'm going to guide you through the evidence so that when you go back into that jury room, you can decide the case on the evidence you heard from that witness stand and the law as Judge Leonard instructs you."

Two of the jurors nodded. Cefalo was starting with the low-key approach. I'm, your pal; let's think this through together. It's the right tone. Don't lecture. Schmooze with them, gain their confidence, then rev up the heavy equipment and steamroller them. I knew what was coming even if they didn't.

"You folks might remember back in opening statement I told you that we had the burden of proof, to prove that Philip Corrigan died because of the negligence, the malpractice, of the defendant. Now, when the lawyers get through talkin' at you, the judge will tell you that all we need do is prove our case by a preponderance of the evidence. What does that mean? Well, if you put two boys on a teeter-totter and one weighs fifty-one pounds and the other forty-nine, the boy who weighs more tilts the scales. We just need to tilt the scale."

With that, Cefalo moved from behind the lectern and held his arms out, pretending to be a scale. He lowered his right arm one way, just a bit, to illustrate his point. "A wee little tilt and you must find for the plaintiff on liability," he reminded them. He would make the case as easy as first-grade recess.

"I also told you back in opening statement that a trial is like a book, and every witness is a chapter. Every book has a story and this one is a tragedy. It's about a vigorous, healthy man in the prime of his life, a family man, a businessman, a husband, a philanthropist

…"

Again Cefalo turned to Melanie Corrigan. Six heads swiv-eled the same way. She gnawed her lower lip and fought back a tear. Her long hair was lassoed into a knot on top of her head and again she wore black. It emphasized her fair complexion, made her seem wan and helpless.

Cefalo got back into it, building momentum. "Philip Corrigan went into the hospital to have routine disc surgery. He put his trust in Roger Salisbury, who held himself out to be an expert orthopedic surgeon. Now his widow wakes up each morning, and there's always that moment, that split second, when she hopes he's still beside her."

It went on this way for a while, Cefalo painting with a broad brush. His strategy was to dance around the evidence and avoid the expert testimony until he had heated up their emotions.

"Now you folks heard from a lot of witnesses. But the two you probably remember best are Dr. Harvey Watkins, the former chief of orthopedics at a great hospital, and the defense witness, Charles Riggs, the elderly fellow who used to be the coroner. I think you should ask yourselves one question about these two. Who's done more laminectomies? Why, Dr. Watkins has done more disc jobs than a dog's got fleas. Old Charlie Riggs, he's never had a patient that lived."

A big smile; the jurors tittered. Roger Salisbury shifted uncomfortably in his chair.

"Matter of fact, Charlie Riggs never had a live patient in his entire career. His testimony was all hypothetical."

Cefalo dragged hypo-thetical across his tongue, the same way a Florida politician once accused an opposing candidate's wife of being a prac-ticing thes-pian.

"They might as well have brought Gino, my butcher, in here to describe back surgery. You know what they call coroners in the medical profession? Canoemakers. They just chop, chop, chop it up like hollowing out a log."

"Objection, Your Honor! That's not a legitimate comment on the evidence." I don't like to object during closing argument. It sometimes angers the jurors who like hearing lawyers beat their breasts, but I wanted Cefalo to know I hadn't fallen asleep.

"Overruled," Judge Leonard said.

"Canoemakers," Cefalo repeated, needling me. "Riggs has never done one laminectomy. Not one! Mr. Lassiter should be ashamed."

With that Cefalo turned and looked toward me. So did the jurors, looking peeved, wondering if I tried to bamboozle them. Good strategy, avoiding what Riggs had said, just attacking his credentials. Sooner or later, though, he'd have to address the testimony or risk giving that ball to me on an open field. Roger Salisbury was squirming so much his chair squeaked on the old tile floor. I patted his arm, a coach telling a player to calm down.

"You heard the real expert, Dr. Harvey Watkins, on the first day of trial. It was only a few days ago, but it seems like a lifetime, so let me go over it. He said that it's malpractice to pierce the aorta with the rongeur. And it was Philip Corri-gan's aorta that burst later that night. No one disagrees about that. All Mr. Riggs-excuse me, Dr. Riggs-all he said was he didn't know how the aorta got torn in front. But did he tell you what caused the aneurysm? No! He had no answer. The way I figure it, Dr. Salisbury here was poking around so much, it's lucky the rongeur didn't come out the belly button."

Roger Salisbury groaned. I had nearly forgotten how Dan Cefalo could make hokum sound like the gospel. I also had forgotten to tell Roger Salisbury not to have a stroke during the plaintiff's closing. I still had a few things to say if the jury didn't draw and quarter my client first.

"I do regret one thing," Cefalo said, lowering his voice. "Unfortunately, Dr. Watkins was taken ill shortly before his rebuttal testimony. He was not as articulate as he might have been. But I'm sure you got the drift. It was Dr. Salisbury's negligence and that alone which caused the death of Philip Corrigan and left this young woman a grief-stricken widow."

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."

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.