It’s not easy to squeeze into an elevator at the Daley Center during the 9 AM rush hour. Having finally emerged on the 15th floor, I have to wait again: a machine is going by. A man and a woman are maneuvering a large conveyor belt slowly and carefully toward Judge Warren Wolfson’s courtroom. Six feet high, nine feet long, and gunmetal gray, it’s being rolled down the hall balanced on two wheeled sawhorses. Once it gets to the courtroom, the only place it will fit is in front of and perpendicular to the jury box.
There, an ominous sculpture rising well above eye level, it blocks the view of those spectators seated in the right half of the public benches. A discreet tap reveals to me that it is at least partly plastic painted to look like metal–but still its color and form make it look wildly out of place in this building where people talk for a living.
“It didn’t actually weigh that much,” reflects Jeffrey Goldberg, the 40-year-old personal-injury attorney responsible for its being in court. “Maybe 75 pounds–two people could easily lift and move it, except that it’s bulky. You know, the paint is the same gray that they use in the Post Office, and the gear and chain are actual postal spec. The model maker [Richard Tickner] is really good.” As evidentiary exhibits go, the conveyor model, even at $10,000, was relatively modest for Goldberg. He once bought an entire car in order to demonstrate that his client could not have been driving it and suffered the injuries he had. “I knew years ago, when we first expected to go to trial, that we would need a model. Some lawyers may prefer to slide through, but I want the jury to understand the case. I want to teach them engineering, medicine, whatever’s necessary. And I didn’t think you could understand that machine without a model.
“Yes, it did dominate the courtroom. And we were able to use that dominating presence on our side. It kept proving our points.”
Goldberg is in the courtroom representing Janet Rizzel (a pseudonym) in her case against Orr & Associates and its subcontractor Litton Handling Systems, Inc., a unit of the conglomerate Litton Industries, which manufactured the original conveyor. (Toward the end of the trial, Orr was dropped as a defendant.) As the plaintiff’s lawyer, Goldberg speaks first:
“First on behalf of myself and my client I would like to thank you for the time that you are going to be giving us here in court away from your normal activities of life. . . . I ask you to test what I say by, is there a reasonable basis in the evidence for it? If there is no reasonable basis for what I say to you, then you must disregard it. I also ask you to hold all counsel by the same standard.”
Goldberg is in his 13th year of helping people who’ve been hurt to collect money from those responsible. He specializes in complicated cases, especially automobile accidents, medical malpractice, and product liability. He has negotiated settlements as large as $33 million. Twenty people work for him in a 5,600-square-foot suite in the Avondale Centre building in the Loop. He puts in six long days a week and half a day Sunday. “All attorneys who work for me,” he says, “have to work Saturdays.” Says one admiring colleague: “He’s a growing presence in the plaintiff’s bar in Chicago.”
In court, before 12 people who in all probability have never heard of him before and never will again and who will decide his client’s fate, Goldberg is simply brisk, earnest, matter-of-fact–and humble. “I appreciate your correction,” he tells an adverse witness later on in the trial’s first day. “Excuse me. Maybe I counted the pages wrong.”
Later he says, “I would rather get the respect of the jury by the questions I ask, not by being a good orator. I don’t want to be the egotistical plaintiff’s lawyer–I want to be the plaintiff’s lawyer who knows the facts and presents them clearly.”
Goldberg, speaking to the jury: “This case arose out of an incident on August 17, 1976, almost 12 years ago. Janet Rizzel was employed at the U.S. Post Office in Forest Park at the Bulk Mail Center, and she was working near conveyors unloading trucks. . . .”
The conveyors are “piggyback” models, which can be extended farther and farther into the vans as the mail is gradually unloaded. Goldberg’s model, large as it is, is just one section of the piggyback.
On the day of the accident, as Goldberg tells it (pointing at appropriate moments to blowups of the loading docks), Rizzel came out of the truck to extend the conveyor further into it. Hearing a shout from the next-loading dock, she quickly crawled under the conveyor to see if anyone needed help. When she found everything to be OK, she started straight back into the truck rather than first crawling back underneath the conveyor, which was still running.
“As she was walking along the conveyor, the evidence will show she put her hand along the conveyor, along the bottom rail, and when she got to somewhere along this area–she was wearing canvas gloves–her hand was dragged into the conveyor.
“Why? Because the evidence will show you that the plate that is sitting here right now [pointing to the side of the model] covers a chain drive, a chain drive that even her supervisor will tell you they didn’t know was there.
“After the accident, Janet’s arm was pulled up into the conveyor. She fell down and actually was able to extricate her hand herself. Her glove was still in the conveyor mechanism with her fingers in it.”
Even in a county notorious for judicial delays, 12 years is a long time to wait for justice. “She was referred to me [by another lawyer] in 1977, and I filed the lawsuit around the middle of 1977,” says Goldberg. The case was twice appealed on preliminary, technical questions of law, and each appeal ate up a couple of years. Now, after more than a decade, Rizzel’s doctor, her partner at the Bulk Mail Center, and several relevant postal and contractors’ officials have all died.
“It’s an extraordinarily long time,” says Goldberg. “It’s one thing for a case to go on for five or six years, be tried, then appealed, then maybe sent back for a new trial because some error was found. But two appeals without the case even being tried is extraordinary. This case has grown up with me, or I’ve grown up with it.”
Goldberg: “Orr & Associates . . . got the contract to build most of the inside of the [Bulk Mail Center] itself. . . . Litton agreed to build the conveyors. . . .
“In the plans and specifications, nothing could be more clear. The government said–and this is a page from the specifications–‘All chain drives shall be totally enclosed.’ It couldn’t be clearer. But to make it further clearer, the Corps of Engineers and the government submitted a standard postal drawing . . . for an enclosed guard.
“Somewhere along the line there was a decision made that the totally enclosed guard wouldn’t fit . . . past this roller.
“Litton went to Pemco [a manufacturer of industrial guards] . . . to do most of the chain guards and belt guards on this conveyor project. And there were hundreds of them. . . . A sketch was made out at the scene by people from Pemco and Litton, and I don’t know who else. I wasn’t there when it was drawn, and I wasn’t there when it was finished in the shop. . . . Now, we have alleged in our complaint that the guard was not properly designed and was unreasonably dangerous.
“We will show you guards that could have been put on that to totally enclose it. . . . If you just drop a plate of steel across the back around the sprockets, you have just totally enclosed this. No one will ever be hurt. But they didn’t do it.”
Rizzel couldn’t sue the Post Office: the federal government is immune from such suits. And in any case, under Illinois law an employee can’t sue her employer–instead she must seek redress through workers’ compensation. She could, however, sue the contractors who built the allegedly “unreasonably dangerous” guard–Orr and Litton.
Rizzel did not sue Pemco directly because Litton didn’t disclose the fact that it had subcontracted out the guards until after the two-year statute of limitations had run out, in 1978. But eventually Litton sued Pemco, once it became apparent that Pemco’s top management agreed that the guards as installed were unreasonably dangerous. So Pemco was brought into the suit after all.
Under normal circumstances, Rizzel would have sued Pemco, Litton, and Orr (sub-subcontractor, subcontractor, and contractor) all in one lawsuit. Say that then the jury awarded her money and held each of the defendants one-third responsible. Then if one or two of the three failed to pay up, she could, if necessary, collect the full amount from the one(s) remaining. (This often-reviled “deep pockets” provision of the law sometimes requires defendants to pay more than they strictly owe; but as Goldberg says, it’s better for a guilty party to suffer a little extra than for the innocent plaintiff to get less than he or she should.)
That prospect, Goldberg believes, would have motivated Orr, Litton, and Pemco to offer Rizzel a reasonable settlement long ago. But the fact that Litton was suing Pemco in a “third-party” suit changed the situation. In the case of a third-party suit, the law in effect at the time of Rizzel’s accident, which is the law that governs at her trial, does not allow the jury to divide the responsibility between the two firms (here, Litton and Pemco). So each company had hopes of being able to shift the entire burden of payment onto the other.
Originally, Goldberg sued using three complementary legal theories: (1) willful and wanton conduct (the guard was designed and manufactured with outrageous disregard for workers’ safety), (2) negligence (the guard was designed and manufactured carelessly), and (3) strict liability (whether or not anyone was wanton or careless, the guard itself was in fact unreasonably dangerous).
By the time the trial was over and the case had gone to the jury, however, only the third theory remained. The morning the trial began, Litton agreed to pay Rizzel $100,000 (without admitting any wrongdoing) in exchange for the “willful and wanton” count being dropped. “We accepted that,” says Goldberg, “because I didn’t think [that count] was worth that much. I don’t think the evidence was there to prove intentional wrongdoing. I got the sense that this [the defective chain guard] was a mistake.”
At Goldberg’s request, the judge approved dropping “negligence” from the case–on the morning Rizzel was to take the witness stand. If Goldberg continued to charge that Litton was negligent, then the company might well reply with evidence that his client had also been negligent–for instance, in crawling under the conveyor without first shutting it off. Then, if the jury were to find that Rizzel herself was, say, 20 percent at fault, its monetary award to her would be cut by that amount.
“Basically, you would never go to trial on a negligence theory,” Goldberg acknowledges afterward. “You can get 90 percent of the same arguments in without it [in a strict-liability case], so why open up the door?”
Rizzel, who is right-handed, lost the two end fingers on her right hand, and most of the use of the middle finger. She returned to work after ten weeks, but lost her Post Office job a couple of months later when a supervisor wouldn’t let her leave her post ahead of the usually scheduled time to have her hand looked after at the first-aid station. Later, when she looked for another job, her searches were often thwarted because she couldn’t use a keyboard at anything like her high school typing rate of 55 words per minute.
“Janet has suffered substantially in two regards,” Goldberg concludes in his opening remarks. “More than two, really. I hate to limit it to two. First of all, if she had been at the Post Office today, the evidence will be she would be earning $27,000 a year as a fulltime employee. The evidence will be that the most she is earning now is $17,000. . . . But I think you will agree with me that earning capacity pales by comparison to the effect on your own life, when you only have on one hand two fingers and the thumb. Thank you for your time and your attention.”
“Virtually all my trials are jury trials,” says Goldberg. “When we file a lawsuit, the insurance company will almost always file a jury demand–both because it stalls the case longer, and because there is the possibility that [if it’s a bench trial], the judge, knowing an insurance company will pay, may be more sympathetic to the plaintiff.” Juries, on the other hand, are carefully sheltered from this knowledge: “If you even mention the word ‘insurance’ at trial, it’s an automatic mistrial.”
Goldberg, speaking from the plaintiff’s point of view, has his own reasons for preferring to try the facts before 12 jurors rather than one judge. (In either case, the judge rules on the relevant law.) “The judge might think, for instance, ‘Well, Jeffrey Goldberg needs to be brought down to earth.’ The jury doesn’t know me, they have to go on the facts, and usually they come up with the right decision. And a judge may never have worked on an assembly line or have had a police officer lie to him.
“The judge has to rule on whether certain evidence should be allowed at the trial. If he rules it out, [in a bench trial] he still knows what it is, and it could be just as if someone told you, ‘Don’t think about pink elephants, whatever you do’–it’s hard to completely erase it from your mind. The jury never even hears the evidence ruled out of court, so it must go on the actual evidence.
“Besides, it’s always nicer to have an audience of 12 rather than one.”
Litton’s lawyer, James Toohey, in his first argument to the jury: “Just as Litton is in the center of all the counsel and all the parties at the counsel table, that is symbolic of where Litton was in the development of this chain guard.” Litton used 50 major suppliers to help it build more than ten miles of conveyors in the Bulk Mail Center; Pemco alone built 600 chain guards for them. “The model right here shows the end of the piggyback section. Only when the conveyor piggyback is totally extended into the trailer is this chain drive at all exposed. . . . This is not a work station on this side of the conveyor at all.
“With respect to virtually all of the 600 guards in the facility, they put on totally enclosed guards. This guard is the exception. . . . And it prevented anybody from doing anything other than what Janet Rizzel did at the exact minute she did it: when this conveyor is totally extended, when the drive is on, when she should be in the trailer and she is on the wrong side, and when somehow or another she gets her hand just up in here into a pinch point.
“There is no question this is not the safest possible guard. The law does not require the safest possible design. The law requires a reasonably safe design [and] . . . Litton’s engineers still believe it’s reasonably safe by virtue of the guarding by location that I just talked about.
“If you find . . . with the benefit of hindsight . . . that this guard was not reasonably safe, we have asked that any responsibility that you find for Litton be passed on, as the law allows, to Pemco”–because Pemco, he argues, designed the guard. And even so, Toohey says, Rizzel’s damages should not be large. “We believe first of all that the evidence will show that she was responsible in part for her own injuries by crawling under the conveyor. . . . We also believe . . . that she did not make maximum efforts to obtain employment, did not make maximum efforts to keep her employment at the postal service when she went back after the injury. And that had she made reasonable efforts to keep the job at the postal service, then she would not have the financial losses that she is complaining about today. . . . Whether or not she has suffered money damages by virtue of not having a career of throwing 50-pound sacks onto the conveyors is something you will decide.”
The remaining two attorneys–there are four in the courtroom altogether–are briefer. Michael Ross, for the main contractor: “Orr was not involved in the decision to fabricate and to install a guard that was on the conveyor at the time of Janet Rizzel’s injury. . . . In the event that you find Orr placed a guard into the stream of commerce that was dangerous. . . . Orr’s position is that that responsibility was really Litton’s.”
Mark Devane, for the guard’s manufacturer: “Pemco did not design this chain guard. This chain guard was designed by Robert Schmeiser [now deceased], who was the mechanization specialist from the U.S. Army Corps of Engineers. . . . Pemco never saw the chain guard installed on the conveyor. The chain guard you have seen is exactly what Litton ordered. Now Litton is suing Pemco for giving it exactly what Litton ordered. . . . And now if anyone should pay Janet Rizzel, Litton should pay.”
It looks like the jury will have its hands full–or more likely, its heads–what with Rizzel pointing the finger at Litton and Orr, while they and Pemco point fingers at one another. “Under the law, these must all be one suit, to discourage multiplicity of litigation,” explains Goldberg. “Otherwise you’d have to have two separate judges and juries to hear essentially the same facts, plus all the witnesses would have to appear twice.”
Goldberg is questioning Lance Duncan, who was Litton’s contracts manager at the time of the accident, about the design process. Not only did Litton have government specifications and drawings calling for totally enclosed chain guards, the company had to submit “as-built” drawings once the guards had actually been constructed. After several minutes of verbal fencing, Duncan must acknowledge that the as-built drawings were turned in before the job was finished, and that they showed totally enclosed guards.
“So the as-built drawing that you submitted to Orr and Orr submitted on up the chain, really doesn’t reflect what you did, does it?”
“That is correct.”
Goldberg lets his arms fall to his sides with an audible slap.
Goldberg hadn’t been surprised. The witness hadn’t been surprised. The other lawyers weren’t surprised. Nobody, except possibly the jury and the spectators, was surprised. The lawyers all know who the witnesses are, what they will say (they all gave sworn depositions years ago), and what pieces of evidence will be exhibited. “The days of Perry Mason are over, if they ever existed,” Pemco’s Devane tells me after the trial. Goldberg concurs: “This is a game where you know almost all the cards in the other guy’s hand.” Most trials have as few surprises for the legal performers as a well-rehearsed theatrical production has for the actors. Goldberg’s punctuating gesture is simply a wordless editorial comment, making sure the jury doesn’t miss the point.
Once you know the rules of the game, you can use other tactics to telegraph your story to the jury. Using his favorite yard-square blowups of the Bulk Mail Center, Goldberg manages to question Duncan about an adjustable light hanging over the piggyback conveyor. Toohey objects successfully, since Duncan had little firsthand knowledge of the job site. But Goldberg has already made the stage-setting point he wanted–“I wanted the jury know what was going to happen,” he later explains, “to call their attention to that light.” Two days later, with a postal employee on the stand, he establishes that, to adjust the light, workers routinely crossed to the “wrong” side of the conveyor–the side on which Janet Rizzel lost her fingers.
Toohey’s examination of Duncan lasts well into the afternoon. The jury learns about Pemco Type C chain guards; Litton purchase order FSO 0549, which contains no reference to open-backed chain guards; plaintiff’s exhibit 12, an internal memo; Litton exhibit 15; plaintiff’s exhibit 16D; a punch list; a Pemco document; a shop copy. . . .
Toohey, lanky and somewhat soft-spoken, often pauses and shuffles his papers to find the next exhibit for Duncan to identify. One pause lasts so long that Judge Wolfson prods him: “Do you have more questions for this witness?” “Yes, sir.” “Ask ’em.” The jurors give no obvious indications of somnolence, but I find my head starting to rest against the wall.
Toohey finishes, the judge asks for cross-examination, and suddenly the drowsy atmosphere is gone. Goldberg’s questions to the Litton witness come fast, loud, emphatic.
“Sir, under the original contract and everything you know about, Litton had a responsibility to put a totally enclosed guard on that conveyor, didn’t they?”
He again shows Duncan the letter that was sent by one Litton field-worker to another claiming that the piggyback conveyor’s chain guards were not Litton’s responsibility. “That’s what it says, is that right?”
“That’s what it says.”
“Well, sir, the responsibility for the subject guards was Litton’s under the contract, wasn’t it?”
“And it never changed, did it?”
“And all of these documents we have been hearing about for the last hour or whatever, and all of the interminglings and all of that, and all of the relationship as to how Litton got the guards–and I don’t question that–had nothing to do with bottom line. The bottom line is, Litton had the responsibility to guard the piggyback conveyor; is that right?”
“We had the subcontract with Orr & Associates for it, yes.”
“The subcontract that required you to put totally enclosed guards on that conveyor, right?”
“And you didn’t do it, did you?”
“We subcontracted it.”
“You didn’t put totally enclosed guards on, did you?”
“It appears that we did not, no.”
How deliberate was Goldberg’s sudden change of pace? “I knew at that point the jury had heard an hour of some of the most boring testimony I’d ever seen–I’m not criticizing Jim, it was necessary. But I think if you know you’re going to have a long examination like that, you want to be crystal organized and move right through it. I try to get to the jugular as quickly as possible.”
Goldberg gets to the jugular again the next day, in questioning Pemco draftsman Donald Van Eycke. Van Eycke had made the drawings for the open-backed guard that was in use when Rizzel lost her fingers, but his testimony (like that of Pemco president William McNerland) proves surprisingly candid.
“Am I correct, sir,” asks Goldberg, “that every standard that you are aware of in industry from 1974, when you built these guards, and 1988, today, has always–required–in every instance–without exception–a totally enclosed guard?”
“Do you have an opinion as to whether that guard [the open-backed one] is unreasonably dangerous?”
“Well, I would have to say yes, it’s dangerous.”
“And, sir, if Janet Rizzel’s hand came in contact with this area and a totally enclosed guard had been put on this chain drive, she would have her whole right hand now, wouldn’t she?”
“And in fact the dangerous condition of this guard, the fact that it’s not guarded, is the cause of why Janet Rizzel lost her hand, isn’t that right?”
Stepping over to the model, Goldberg replaces the open-backed gray guard with a bright yellow box-shaped guard. Van Eycke, with the judge’s permission, steps down to look at it.
“Sir, is any part of this guard that I have just put on here extending beyond the side rail of the conveyor. . . ?”
“No.” If it had, the piggyback section would not have been retractable.
“And”–turning the handle–“my sprockets turn, don’t they, sir?”
“Did Pemco in 1972 and 1973 have the facilities to build that guard?”
“That is not a difficult guard to build, is it?”
A few more exchanges, and Goldberg breaks the rapid rhythm of questioning and pauses before firing the last fast pitch. “From your first days in the industry, sir, . . . . are you aware of any reasonable company that is following reasonable safety practices . . . that would allow a machine like this, with an opening in the bottom and an opening in the top, into the stream of commerce where individuals and consumers and postal workers are going to have to work on it?”
“No,” comes Van Eycke’s raspy voice. “It shouldn’t have been done. Shouldn’t have been installed.”
“That’s the first time I’ve seen people testify that honestly when they were defendants,” marvels Goldberg afterward. (Of course, Van Eycke and company president McNerland weren’t admitting blame; their contention was that they had fabricated the kind of guard Litton wanted, believing that the guard once installed would totally enclose the chain–but without ever seeing it installed or in operation.) The facts, and the unaccustomed frankness, were there in any case; but Goldberg’s earnest, staccato questioning had made them stand out.
And for making the facts stand out, there is no substitute for preparation. “I don’t believe cases are won on trial,” says Goldberg, “but in preparation. If you’re taking someone’s deposition two years before trial, you’ve got to know all the right questions to ask then. . . . It takes intelligence, in all fields, and an interest in trying to feel for your client. On the defense side, they’re paid by the hour, for being there. We get paid”–one-third of the total award–“only if we win.”
“Janet, how old are you?”
“34 years old.”
“And on August 17, 1976, what happened to you?”
“My hand was caught in a conveyor belt at the Chicago Bulk Mail Center.”
“I always call clients by their first names,” says Goldberg. “I want the jury to feel that they’re a friend. And I always refer to the defendant as ‘Mister.’ I might say, ‘Hi, Lance,’ to Lance Duncan in the hallway, but in front of the jury it’s always ‘Mr. Duncan.’ Of course it does get interesting if your client answers, ‘Well, Jeff . . .'”
In the same vein, Goldberg always declines (except during closing arguments) to have a glass of water on his table, even though that is an amenity available to the judge, the lawyers, and the witnesses. “I don’t want to have any if the jury can’t,” he says–even a small thing like that might help build rapport. “It might just be superstition,” he shrugs, “but who knows?”
“I heard a noise, a yell in the truck adjacent to the left of us. . . . I just crawled underneath the belt, and as I stood up I saw the canvas containers coming out of the truck.”
“When you go underneath the belt, how did you go from one side to the other?”
“Pretty much as crawling on your hands and knees as a little child would do.”
Goldberg gets down under the model to demonstrate, and she agrees that’s what she did.
“I was concerned about [Litton’s possible] argument that she was actually injured while crawling under,” says Goldberg later. The company could well argue that that was not a reasonably foreseeable use of their product. Here again the model came to the rescue–a photograph might have made the conveyor seem lower or thinner. But seeing the situation in three dimensions, it obviously would have been impossibly awkward for someone crawling under to swing herself up using the far side of the conveyor as a handhold.
“When I saw the gentleman coming out of the van, I asked if he was OK. And when I determined that he was all right, then I proceeded to go back into my own truck. And I just put my hand along the rail. And as I put it along the rail, I felt it being snatched up into the machinery.”
“What did you do?”
“I grabbed my forearm . . . to prevent it from going up any further, and I began to scream.”
“And did you remain standing?”
“No, sir. I fell to my knees, and that’s when I could feel it grinding my hand.”
“And what did you do next?”
“When someone stopped the machine, I pulled my hand from the machinery.”
“When you pulled your hand from the machine, what did you see?”
“My baby finger on the right hand was completely severed. And there was a bone sticking up from the ring finger, and it was completely–the flesh was gone. And the middle finger was just being held on there by–it was down in my palm. And it was just held there by a little flesh, just a little skin.”
“She was petrified about going on the stand,” says Goldberg later. “We started preparing for it, practicing, in June. It helped make her answers shorter, more to the point.”
At the time of the accident, Rizzel had been working at the Bulk Mail Center only two weeks. After four days in the hospital and ten weeks at home, she came back to lighter-duty work in October 1976. But her hand still required warm soaks every day. In December, when she was loaned to a different department and asked the supervisor to let her go to the nursing station early because her hand hurt, he said she should wait. She went to the ladies’ room and soaked the hand herself; when she returned, he admonished her to stay at her work station. Her hand still hurt, so she told him she would punch out for the day. “And he just said OK, and then I left.” A few days later she got her dismissal letter.
She didn’t work during 1977. “I wasn’t really used to my hand being the way that it was,” she says during the trial, “and I didn’t really think there was very much that I could do.” She passed a computer-programming course at Control Data Institute but couldn’t do the necessary keypunching. Also, “I had to be near other people, and there were very embarrassing questions about my hand.”
For four years following April 1978 she worked a switchboard, until she was terminated for being tardy–the result of public-transportation problems and the need to take care of her mother, who’d had a crippling stroke. In 1984, when her mother’s sister was able to take over that care, Rizzel took switchboard jobs. Her current job pays $9 an hour, or about $17,000 a year.
“Janet, during the course of your employments, have there ever been job postings or jobs that were available to employees within the firm?”
“And have you ever applied for better jobs than what you have?”
“What has been the typical requirement in most of those jobs?”
“Normally they require a typing speed of 55 to 60 words a minute.”
“And have you applied for any within the last year?”
“And did you take the typing test?”
“And what did you get, what was your score?”
“24 words per minute.”
“Did you have all of the other skills they needed?”
“Yes, sir.” The other jobs paid in the range of $19,000 to $24,000 a year.
Goldberg hands Rizzel a Lipton Tea jar. “Janet, around your house you have to unscrew jars on occasion; is that right?”
“How would you do that?” She grips it with her arm instead of her hand: “I wouldn’t be able to hold it [the other] way; it would fall out.” She then demonstrates that she can grip a screwdriver, but not firmly enough to use it.
“Before the accident, did you do things in the garden, shovel walks, mow the lawn, trim the hedges?”
“Do you do that stuff now?”
“And how does it get done?”
“I impose on friends and family members.”
“How does your hand feel now?”
“It’s still very sensitized . . . to cold weather. . . . I have problems with it every day. . . . The joint [in the middle finger] that’s immobile is always–it always hurts, it hurts continually.”
But hearing about something is not the same as seeing it. Goldberg first asks the judge’s permission, and then his client steps down, faces the jury, and shows these 12 strangers the hand that has remained discreetly out of sight at all possible times during the trial.
Even that does not end Goldberg’s examination. With a sure grasp of how to double back and add a twist to a story, he asks about her career plans before the accident. She says that, before she worked at the Post Office, “I originally wanted to go into the field of nursing. . . . And [later] I changed my major to business administration.”
“Did you want to become a career mail handler?”
“And what did you want to do?”
“I was hoping for something in the personnel department or anywhere in the [Post Office] administrative level.”
“And what skills would you have needed to do that?”
“Most of them require a minimum typing speed of about 50 to 60 words per minute. And be very articulate, I guess have knowledge of business.”
“And do you have the basic requirement to just be able to work a computer or typewriter to get those jobs, now?”
The final arguments, once the evidence is all in, mirror the opening statements made eight days earlier. Goldberg puts the totally enclosed guard on the machine to underline his reasoning: “If a totally enclosed guard had been used, none of us would be here today and Janet Rizzel would have her right hand.”
He hits back at Toohey’s opening jab at Rizzel’s alleged failure to exert “maximum effort” at job hunting. “I’d be glad to compare her efforts at [her first switchboard job, where she received raises totaling 87 percent in three years] and getting work to the efforts of Litton Systems–” At this point Toohey objects and is overruled. Goldberg goes on: “–who did not put one engineering moment into designing a good guard. They did nothing. If you want to talk about maximum effort, I’ll talk all day.”
But summarizing the evidence rhetorically is easy compared to the tightrope Goldberg must walk when asking for damages. He can’t seem mercenary. He starts by acknowledging that difficulty, then walks the jury through the four-part form they will have to fill out if they conclude she deserves compensation. “Medical expenses” are easy–the itemized bills for two operations, hospital care, therapy, and follow-up come to a total of $5,870. “Lost earnings” are a little more problematic. If Rizzel had stayed on at the Bulk Mail Center as a mail handler, she’d be making $28,052 today, compared to the $17,160 she actually makes at her current job. Even allowing for the time she took off to care for her children and her mother, the earnings lost through age 62 come to around $404,000.
What about disability and disfigurement? Goldberg almost seems to be thinking out loud: if the earnings loss is about $10,000 a year, “I believe what we do for ourselves outside of work means more to us.” He extemporizes: “$5,000? $10,000? $20,000 a year? I don’t know. I think $120,000 [for the past 12 years] would be fair, plus $420,000 for the next 42 years’ life expectancy, for a total of $540,000. Disfigurement? I would suggest less, possibly half, giving a total for disfigurement and disability of $810,000. That’s my evaluation–I want each of you to make your own.
“Pain and suffering–that’s the hardest.” Rizzel’s hand is now unusually sensitive to cold; the stubs of her fingers, where the severed nerves have formed balls, are especially sensitive, and the doctor testified that there is no good treatment for that.
“That’s pain–what of suffering? At 22, Janet had the ability any one of us does to decide her own future. She suffers today because that ability, that livelihood, that decision making is taken from her. Take a typing test, improve your income? She can’t. She’s tried. If her mother has to go out of the house, Janet can’t lift her wheelchair over the threshold.” And just in case anyone’s lost track of the argument: “The pain and suffering Janet Rizzel has gone through has been caused by one thing and one thing only–Litton not putting on a totally enclosed guard, as they promised the government they would.
“I’ve labored long and hard to decide about pain and suffering, and I’ve decided I can’t. You can decide better. You have more experience of life, because any 12 people will have more experience than just one. You know what it is to have to ask your neighbors for help and not be able to repay them in kind. We believe you will make a fair and just award.”
Was this a clever stratagem, to leave “pain and suffering” in their hands? “It is and it isn’t,” says Goldberg later. “I have used this argument in the past–not suggesting an exact amount, just listing the elements to consider and then charging the jury with the responsibility. I feel it involves them. And the feedback we got after the decision was that they liked being left with something.” It also avoids the appearance of being too demanding. “And I truly believe,” Goldberg adds, “that 12 people who’ve experienced life’s problems can do a better job of evaluating pain and suffering than any one person can.”
Toohey, for his summing-up, immediately does what Goldberg has carefully refrained from doing: he adds up the three items, to come to a frightening total of $1,219,807, plus an unknown amount for pain and suffering. Then he restates the case against Rizzel–“This was not a reasonably foreseeable area of employee contact”–and against Pemco.
As for damages, if the jury should get that far, “I agree the testimony was reasonably accurate. And it shows her lost earnings weren’t due to the injury. She went back to work in October and was terminated for reasons totally unrelated to the injury. [He reads from the official letter:] ‘deviated from your tour of duty without permission . . . negative attitude.’
“Was she too overcome by her injury to work during 1977? She hadn’t been in the fall of 1976. She was terminated at [her first switchboard job] for tardiness, not for inability to do the work. Is it Litton’s responsibility forever, every time somebody loses a good job? . . . There is not one bit of evidence in the record that Janet Rizzel lost a penny due to this injury.
“I leave it to you to apply reasonable standards. This figure, to me at least, is shocking. I think it represents a bad-faith claim. . . . If you remove that figure, and rely upon your own judgment, it would not shock me if you came up with $75,000 to $150,000.”
“‘Bad faith’? That meant I didn’t have integrity,” says Goldberg later. “It was a personal insult to me”–suggesting that he deliberately overstated her damage claim so that, even if the jury cut it in half, he would still get what he actually thought was reasonable. “But it is a staple of closing argument.”
After about five hours, the jury emerges, pins the responsibility on Litton, and awards Janet Rizzel the amount of her medical bills plus $50,000 for lost earnings, $270,000 for disfigurement and disability, and $25,000 for pain and suffering–for a total of $350,000. (To that, of course, you can add the $100,000 pretrial settlement to abandon “willful and wanton conduct,” a settlement the jury was unaware of.)
“I think they felt she didn’t have the best work record,” Goldberg reflects. “They wouldn’t accept that her earnings loss was all because of her disability, but the $50,000 shows they felt it affected more than just the ten weeks she was off immediately after it. The $270,000 shows the substantial disability this can be to somebody. Pain and suffering? That goes to the kind of sympathy a particular person gets from a particular jury.”
The total is a little more than a quarter of what he asked for–so how could Goldberg figure he won? “Easy,” he replies with a grin. “Their final offer, before trial, was $215,000–including the [pretrial partial] settlement of $100,000. Instead of that, we got $450,000.”
Art accompanying story in printed newspaper (not available in this archive): photos/Jon Randolph.