Sunday, October 2, 1994
Attorney Paul Luvera Is:
— 1) A Crusader For Justice
— 2) An Ambulance Chaser
— 3) A Door-To-Door Salesman
SUMMER HAD SUDDENLY bloomed, showering its sweetness on everyone in the vicinity of the Whatcom County Courthouse, a post-modern brick and blue-glass structure that looks as if it landed accidentally in Bellingham en route to Las Vegas.
Birds sang. The sun shone. Children played in the park across the street.
Inside District Courtroom No. 1, a blond-and-brown room filled with stultifying air and for most of a late June week stupefying talk about intervertebral spaces and what ought to go on within them, Dr. Anthony J. Gallo’s well-ordered world was about to come apart.
Gallo, a retired professor of neurosurgery from the University of Oregon, is a frumpy, avuncular man with a soothing, if pedantic, bedside manner. Imagine Captain Kangaroo with advanced degrees.
Gallo had agreed months before to testify as an expert witness on behalf of a former student, David Baker, who was being sued for malpractice. On this day, Gallo said, he would much rather have been with his wife of more than 40 years at a mountain resort, where he had booked rooms to celebrate their wedding anniversary.
By the time the afternoon ended, Gallo would much rather have been almost anywhere with anyone but in this courtroom with this lawyer, Paul Luvera.
Luvera is by acclamation the Northwest’s pre-eminent personal-injury lawyer. He has sued and defeated all manner of doctors, hospitals, drug manufacturers, oil companies, restaurants, cities, counties, states, school districts and fire departments.
He is so feared by organized medicine that the American Medical Association gives seminars warning its members about him, much in the way the FBI warns the public about dangerous criminals. If the AMA had a post office, Luvera’s picture would be on the wall inside it.
Luvera had come up the road from Mount Vernon, where he lives and practices, to Whatcom County to press a claim on behalf of Cathy Crawford, a Bellingham housewife. Crawford, in the course of a routine herniated disk surgery performed by Baker two years before, had had her small intestine ripped, sliced, cut or otherwise opened, spilling its bilious contents into her stomach.
Oblivious to the life-threatening accident, Baker completed the disc surgery and sewed up Crawford’s back. Crawford became severely ill that evening. The next day a second surgery was performed, this one through a six-inch rent in her abdomen created expressly for the purpose. The torn bowel was discovered and repaired, but Crawford spent much of the next two years in frequent, agonizing pain. She couldn’t work. She couldn’t make love to her husband. She couldn’t even pull weeds in her garden.
She hired Luvera to sue Baker for negligence, which Luvera did, and which is how they all ended up this promising summer day in Courtroom No. 1.
LUVERA’S FATHER, Paul Sr., was an expert in the carving of Native American totems. One of Paul Sr.’s totems stands outside Luvera’s law office, a converted single-family home in downtown Mount Vernon. The totem is the most notable feature of the building’s exterior. Inside, on the walls of a waiting room, are the son’s contemporary equivalents: Checks written on the accounts of some of the country’s pre-eminent financial institutions.
From Citibank, there is a check to a Jennifer Pollock for $5,142,504; from Physicians Insurance to James Degel for $6 million; from Seafirst to Julie Hilsinger, $1,875,000; from Aetna to another client, $1,000,573; from CNA, $1,525,000; Fireman’s Fund and Signa, a million each; Sullivan Kelley, insurance brokers, $2 million; Landmark Insurance, $4,232,228. Not yet on the wall, but headed there, is a staggering $44 million judgment Luvera recently won against two pharmaceutical companies.
Personal-injury law involves complex evaluation of pain, a subject not easily quantified, but one that can translate, as those checks indicate, into large sums of money.
At issue in the Whatcom County trial were Cathy Crawford’s back, David Baker’s reputation, his insurance company’s bank account and Luvera’s considerable fee, not to mention his perhaps even more considerable sense of righteousness. Finally, as in every trial, truth, justice and the American Way were being tested, the American Way being a road far too heavily traveled these days, critics say, by ambulances and lawyers like Luvera running after them.
Open the Yellow Pages to the section for attorneys and you can see what those critics have in mind. The advertisements implore the hurt, the halt, the wounded to come in and sue somebody. Get rich. Luvera cringes at this, even though his own ad features a wheelchair and states that his practice is limited to “major damage claims.”
It is impossible to overstate how much it bothers him to be grouped into the common conception of the personal-injury lawyer, whose place in society these days is somewhere down among the bottomfeeders, right in there with, say, politicians; or journalists.
Hungry lawyers are blamed for everything from soaring medical costs to insanely restrictive manufacturing requirements. Former Vice President Dan Quayle has tried to blame them for the entire economy’s poor performance.
Luvera, too, has been outspoken in his criticism of his peers.
“If we become a profession,” he has written, “not only of cantankerous, obnoxious people involved in litigation, but dishonest as well, we don’t deserve to exist as a profession.”
But he is even more offended by the relative ease with which big business, big insurance and big medicine have painted all trial lawyers as amoral scavengers, bearers of a plague that will wipe out civil society if left unchecked. Luvera resents this characterization, which is prominently displayed in the current debate over reform of the health-care system and which he sees as a reversal of the facts.
“The courthouse isn’t crowded because of civil litigation,” he says. “We don’t have a crisis because of litigation, it’s because we have a war on drugs. We have the criminal cases, and the corporate filings, and all the rest of the stuff that’s going on. So that in the overall scheme of things we’re a fly on an elephant’s back in the sense of the problem.”
Further, he says, he and his like serve a noble purpose. They are the last and only hope of the have-nots in their battle with the haves.
“I don’t trust big business; I don’t trust the rich; I don’t trust bureaucracy; and I don’t trust government. And I particularly don’t trust the federal government . . . I believe that unless somebody is there – the critic is there – crying out, we will be the worse off for it. We will be subject to abuse.
“What I am saying is that to abandon this system completely in the name of economics is just loathsome to me . . . It just scares the dickens out of me.”
LUVERA IS 59 years old. His parents were Italian immigrants who settled in Anacortes. He was an outstanding high-school athlete there and went to the University of Washington on scholarship. In brief pursuit of a vocation to the priesthood, he transferred after a year to St. Martin’s, a small Roman Catholic college near Olympia.
The vocation evaporated and he transferred again, this time to Gonzaga, where he enrolled in law school after just two years of undergraduate work.
“I had no idea what I was going to do, so I said why not and I applied,” Luvera says. “In those days all you had to do was give them a hundred bucks and you were in. There was no entrance exam. You showed up.”
After receiving his degree in 1959, Luvera’s only job offer came from the Skagit County prosecutor and he moved back west to take it. He never left.
Assistant prosecutors were part-time employees then and Luvera began a private practice on the side.
“The only reason my practice evolved exclusively into trial work was because I had some success at it and then the volume got to the point where that was all I had the time to do. I had to make a decision. I suppose I could have chosen anything in terms of being a lawyer, but there’s nothing I’ve ever done that’s given me as much fun as this field.”
There are in personal-injury law two types of lawyers, those who sue and those who defend people getting sued. The roles of defense and prosecution are roughly opposite what they are in criminal law. Those getting sued are usually members of the establishment – governments, doctors, hospitals, manufacturers. Those suing are usually individuals who feel they have somehow been wronged.
“To work as a defense lawyer you have to develop some kind of mentality that allows you to live with yourself and what you do,” Luvera says. “You go home, say to your wife, `Gee, I had this wonderful result today. This quadriplegic, who needs $300,000 a year to survive, I kept him from getting any money at all! As a result, the stockholders of this insurance company are going to have an enormous profit this year and I feel so good all over.’ ”
Luvera’s work quickly narrowed to representation of plaintiffs only, then narrowed still more to only those plaintiffs Luvera believed in.
“I said to myself, why would I want the pain of doing something I don’t feel comfortable doing, for a client I don’t like? It isn’t worth it . . . I actually thought I was going to go broke following this philosophy. As it turned out it was the smartest financial thing I ever did in my life. As soon as I started doing that, I became financially successful. I won cases.
“Before that I sort of thought that everything that came through the door it was my obligation to take, that I would sort of spin gold out of it; I was Rumplestiltskin.
“The image that offends me is the one where the individual persuades somebody of something they don’t believe in,” he says. “They convince a jury, they convince the person they’re negotiating with, that something is true when it’s not, and they know it’s not. They take the case they know isn’t a proper case because they know they’re skillful at it. That I think is wrong.”
BEFORE HER MARRIAGE to David Baker, Suanne Baker’s friends showed her two sets of statistics. One described the incidence of divorce among neurosurgeons, which is very high, and the other described the incidence of malpractice litigation, which is even higher.
Every surgeon sooner or later gets sued, usually sooner rather than later. This was Baker’s first time. He never denied causing Crawford’s bowel injury. He maintained it was an unavoidable risk of the back surgery. Rather than concede a mistake and let his insurance company (to which he pays $60,000 a year in malpractice premiums) settle, Baker wanted to fight, even after finding out Luvera was the lawyer opposing him.
Baker had once attended an AMA seminar at which a legal expert warned doctors to beware of certain lawyers, citing Luvera as a chief example, who specialized in “making doctors look like fools.”
Baker knew what he was getting into. He was wary. His old friend, Tony Gallo, was not.
Gallo had taught Baker neurosurgery during Baker’s residency in Oregon. An experienced expert witness, on the stand he had the supreme confidence, bordering on arrogance, that neurosurgeons often possess. Without it, doing such things as drilling into people’s skulls becomes impossible.
On the morning of the day he met Luvera, Gallo had delivered to the court a folksy, friendly and, to Luvera, frighteningly effective three-hour disquisition on the history, methods and inherent dangers of lower back surgery. He had in the process disassembled Luvera’s case.
“So what do you do with this guy?” Luvera had asked during one break. “He seems like a nice fellow. You can’t do anything too heavy. You can’t go straight in and beat him up. The jury would hate you for doing it. With this guy, you have to cut and run.”
Gallo had a common touch. At one point, explaining how easy it would be to tear the stomach lining to get at the small intestine, he had likened the lining to wet tissue paper. At another point, he used an empty cardboard toilet paper roll to illustrate how hard it was for the surgeon to see inside the vertebrae.
To a jury frustrated by competing claims spoken in incomprehensible language, Gallo was a respite.
“They all seemed to think he talked in a down-to-earth way they could understand,” one juror said afterward. Luvera watched Gallo’s performance – it was so skilled and nuanced you couldn’t call it anything else – with growing dismay.
“Gallo had no compunction about saying anything,” Luvera said later. “He had all the integrity of a dog in heat. You get a guy like that combined with a somewhat folksy manner, you got trouble.
“The guy was killing us. When I realized how much he was hurting us, then you have to go in there with all guns blazing. Too many lawyers are afraid to wade into somebody, afraid they’re going to offend. In that situation, you have no choice.”
The longer Gallo talked the more visibly upset Luvera became. For the most part in court, Luvera is charming. He is especially admired by other lawyers for his ability to sell not just his case to juries, but himself as well.
Gerry Spence, a nationally renowned trial lawyer from Wyoming, says Luvera possesses the greatest of trial-lawyer attributes – an open soul.
Susan Clark, a Skagit County Court commissioner who formerly worked with Luvera, says he has the ability “to make a kind of personal connection with jurors by allowing himself to be a person in the courtroom, by being something other than a lawyer. What he’s learned to do that most lawyers never learn is to share the real person in the courtroom.”
Luvera told the jurors in this case that he “wore out rosary beads” every time he went in for surgery. He told them he has eight adult children “and they never leave home.”
When not questioning witnesses, Luvera usually sits quietly at the plaintiff’s table, scribbling notes, otherwise immobile, smiling slightly at times, steepling his hands, attentive.
But when he’s watching somebody take his case apart, his entire demeanor changes. He fidgets, riffles through notebooks, rummages through file boxes, impatiently shoos assistants away on errands and deflects all interruptions.
By the time defense attorney Gerald Palm finished his questioning of Gallo, Luvera was so wound up he seemed set to go off in eight directions at once.
“Well, I just don’t know where to start with you,” he told Gallo, then proceeded to “wade in,” throwing big roundhouse rights and a flurry of left jabs at almost everything Gallo had been saying.
Luvera is a broad-shouldered man of the rangy kind, a center fielder, not a linebacker. At rest, he looks a bit like Henry Fonda and has some of the same plain-spokenness. Confronting Gallo, Henry Fonda disappeared. In his place was a sharp-tongued, hectoring interrogator.
Luvera has had one knee and two hip replacements and moves only with obvious effort. He was nonetheless in rapid, constant motion, juggling charts, turning pages, shuffling transparencies, rummaging files. He didn’t badger the witness, he flogged him.
Reed Schifferman, a Seattle attorney who has opposed Luvera in several cases, says, “He understands people better that any other attorney I’ve ever met. He can size up a witness and know immediately where their Achilles’ heel is. Then he goes right for the throat.”
Luvera took Gallo apart. It was not a clean dismemberment. Gallo fought every inch of the way, refusing to answer even the simplest of questions without obstinately challenging their form or content. Luvera read back from a deposition Gallo had given before trial that differed in some areas from his testimony; he pushed and prodded Gallo to find passages in the medical literature. He wouldn’t let him answer some questions and insisted he give one-word answers to others.
When Gallo referred to statistics, Luvera asked when he had become an epidemiologist. When Gallo interpreted diagnostic images, Luvera asked when he had become a radiologist. When Gallo offered an improbable explanation, Luvera asked if a simpler one wasn’t better. “If you hear hoofbeats, that means horses, not zebras, right?” he said.
By the end Gallo was spinning. Several times, he appealed to the judge for shelter from the storm enveloping him.
“Do I have to answer that?” he asked.
“Yes,” the judge said.
It was a bravura Luvera performance.
Veteran courtroom watchers marked it down on their all-time lists. At one point, even Luvera took some small pity on Gallo, saying to him, “You knew about the boiling oil when you joined up.”
TRIAL LAWYERS ARE a breed unto themselves, regarded by the rest of the legal profession as unruly and unsavory. They sometimes share more qualities with circus performers than, say, tax attorneys.
“We’re like the untouchables; they just don’t want anything to do with us,” Luvera says. “They think, `All you people cheat and lie and steal and try cases. I mean that’s just the way you are.’ ”
Schifferman, the Seattle attorney, likens trial lawyers to jet-fighter pilots. “I say trial lawyers as opposed to litigators. Litigators push paper and run down to the courthouse and make cute little motions to the judge. Trial lawyers try cases.”
It has its rewards, Schifferman says. He recalls once telling a colleague that trying cases was as good as sex. The friend replied, “No, it’s better. It lasts longer.”
Luvera is of two minds about his work, which is not to say he is uncertain about it. He is uncertain about very little. Rather, he divides trial law into craft and purpose. He is a communicant to the purpose, which he sees as ennobling. He is an assiduous student of the craft, which he sees as simple hard work.
“I’ve always said in my field I think we’re really high-paid, high-called, door-to-door salesmen. We’re selling a product and we just have this license that says we’re lawyers. I’m not too sure it’s any different from my dad’s grocery store, selling potatoes and onions. The whole concept, persuasion, is a concept of sales. I know that sounds a little demeaning, but the reality of it is that that’s true.”
In pursuit of craftsmanship, Luvera has been at the forefront of courtroom innovation. He employs psychiatrists to analyze opposing witnesses. He hires people to serve on mock juries. He hires consultants to help him select juries.
Luvera was among the first attorneys to make heavy use of audio-visual aids at trial. When he first used an overhead projector in court, another attorney asked if he could use it. Luvera refused, saying that would be like asking to use the other team’s best bat.
Other lawyers and judges say Luvera is always the best-prepared person in the courtroom, but he lives in fear of the unexpected. He relies on a staff of largely non-lawyers for most of his preparation. They do the research and send him off to court to do battle with it.
“If they don’t swing their trapeze perfectly and you reach out and it isn’t there, you fall, because oftentimes, there’s no net. You just hit the ground.”
Luvera is the only attorney from the Northwest who belongs to the Inner Circle of Advocates, a group whose membership is limited to 100 trial lawyers nationwide. They join by invitation only and need at least one million-dollar verdict to get in. Luvera is the current president.
He declines to discuss his income, but he typically receives 30 to 40 percent of settlements and judgments as his fee. It doesn’t take many of those million-dollar verdicts to add up to what would pass in most circles for wealth.
One legal magazine estimated a recent year’s income at $750,000. That seems conservative. Last year alone, he won settlements and verdicts totaling more than $20 million. Out of his cut he pays the salaries of about 20 people, plus the considerable expenses of bringing cases to trial.
Still, there is enough left that he drives $50,000 cars and a Harley-Davidson motorcycle, lives in splendid isolation behind electric security fences outside Mount Vernon, has a condominium in Pike Place Market, a cabin at Mount Rainier and is building a new house at Gig Harbor. He wears Rolex watches, designer ties and suspenders with dollar bills on them.
AN HOUR AFTER the jury had been sent out, after the lawyers had sent their clients home, packed up a van full of exhibits, exchanged ritual insincerities with opposing counsel and phone numbers with the bailiff, Luvera and Ralph Brindley, one of his associates, sat on a bench in the hallway outside Courtroom No. 1. Their faces were drawn, their bodies sagged, their minds were spent. They were empty.
If they were athletes, we would honor them, we would sing fight songs and tussle to get their autographs because they had given everything. Luvera was frustrated.
“I’ve never seen a case,” said the man who had tried a thousand of them, “I’ve never seen such a simple case that grew and grew like this. The defense was everywhere. A thousand theories.”
Luvera had described it in his closing argument as a squid defense, squirting black ink everywhere and escaping in the confusion.
How does anybody sort this stuff out?
How does a jury?
When Luvera talks to juries, he often talks about justice, which he defines as “the jury’s ability to make exceptions.”
“I have a very strong feeling that the protection that we have, the common person’s protection, is that jury. If we are going to allow the bureaucrats and the judges to decide – this is not a stump speech or a jury argument, this is what I really believe – we’re going to end up with injustice because they’re not going to take into consideration those intangibles that make up what I think really is justice.”
But don’t you want juries to find the truth?
“I don’t want that, because I want to have some exceptions and I want those exceptions to be made by a committee of 12 people and I want them to say, `We are going to ignore the law.’ ”
Civil juries, in fact, are seldom instructed to find truth. They are told to find what was probable, what was most likely, to find an answer, not the answer.
The answer the law offered this week, for Crawford and Luvera, was no. The jury came back for the defense. Luvera hadn’t proved his case, several jurors said later. Crawford got nothing, not even the money to pay for the surgery that repaired her intestine.
Luvera had seen the verdict coming when it was just a speck on the horizon. During a break on the first day of testimony, he had said the jury had quit listening. Their minds were made up even then.
“I’ve always said you lose malpractice cases that are pushes. If there is an equally balanced story on each side, then the person suing is going to lose almost inevitably . . . You would think that with logical people, `Who knows?’ would offend them. It doesn’t. With `Who knows?’ you lose.
“This is the first one of these I’ve lost in 10 years,” he said later. “But if you try enough cases, you’re going to lose.
“Philosophically, I allow myself 48 hours to rejoice the victories and 24 hours to mourn the losses. My 24 hours are up.”
He would sleep with a clear conscience. He usually does.
Luvera had told this jury that he admired an opposing witness because the guy had refused to tell fibs. That was the word he used. Fibs.
Imagine that. In 1994, in the year of Bosnia and Rwanda, somebody lives who regards the existence of a man who refuses to tell fibs as a sign of honor, honor not just for the person, but for all of us.
I asked Luvera one day if he had regrets, if there was anything he would like to do that he hadn’t done. Without pause, he said:
“Come back three more times.”
Those are the words of someone comfortable with the world and his place in it. Many people experience the world as vague, evanescent. When looked at too closely, any one part of it disappears. Luvera does not have this problem. He seeks resolution and almost always finds it.
Over dinner one night, Luvera, his wife, Lita, and I discussed how the justice system ought to work. Luvera grew exasperated, at one point saying, in mock disgust, “Pragmatists, you two are pragmatists. That’s the worst sin of all.”
He’s right, of course. Pragmatism is, to the believer, the worst sin of all. And Luvera believes, heart and soul; sometimes contradictorily, always fervently. He does not come to court to find truth. He comes to deliver it.
Terry McDermott is a reporter for The Seattle Times. Harley Soltes is Pacific’s staff photographer.
Copyright (c) 1994 Seattle Times Company, All Rights Reserved.