To speak for the dead

by Paul Levine

  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 wi
ll 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.

  10

  WE HAVE, YOUR HONOR

  Waiting again, this time for a verdict. Waiting is not my strong suit. I never did the bit outside a hospital delivery room, but I know all the cliches, the pacing, the endless cigarettes, the furrowed brows. At least there, when it's over, you've got something to take home. I leave it all behind. Win, lose, or mistrial, I bury it. Winning is less joy than relief, removing the knife from the wound. Losing is not agony, just the fulfillment of promised pain.

  Defending a case is particularly frustrating. If you win, you have broken even, restored the status quo. Your client wants to take you to dinner. He shows you his new bumper sticker, My Lawyer Can Beat Your Lawyer. If you lose, he questions what you should have done to win. And always finds something.

  Roger Salisbury paced in the corridor. I sat with Cindy in the courtroom. While I read the latest Windrider magazine, she propped her bare feet on the defense table and painted her toenails a metallic silver that reminded me of a '71 Corvette. The bailiff came by and gave her a dirty look. She wiggled a burnished big toe at him.

  Still waiting, two hundred minutes creeping along, life ticking away. Somewhere off the Canary Islands, tanned young men and women from France are sailing windsurfers at more than thirty knots. On a hundred slopes in the Rockies, skiers are whooping it up on fresh powder. Only a hundred miles away, bass fishermen are lazing across Lake Okeechobee. So why am I waiting, just waiting, in an old relic of a courthouse for six strangers to tell me if I'm worth a hot damn in my chosen field.

  "Is it a good sign they're taking so long?" Roger Salisbury asked, coming in from the corridor.

  "It could be," I said. Very insightful. In truth, it's meaningless. If the jury comes back with a verdict after twenty minutes, you can be sure it's for the defense. They haven't had time to order steaks at taxpayer expense, much less determine both liability and damages. After that, anything goes. They could have determined liability in the plaintiff's favor hours ago and only now be deciding how many zeroes to tack onto the verdict form.

  I picked up a newspaper and turned to the sports page. There was Susan Corrigan's by-line above a story on the Dolphins game, a loss at Cleveland. The Dolphins never did play well in cold weather, losing 24 to 10 to the Browns and their defense known as the Dawgs:

  CLEVELAND-When the game was still dicey and the field was turning icy, the Browns showed the Miami Dolphins what a Dawg Day afternoon is like on the shores of frozen Lake Erie.

  Cute. I wanted to see her. Maybe after the verdict, if she calms down about this murder business. My daydreaming was interrupted by The Knock. It's the knock that sets the adrenaline pumping, the knock from inside the jury room. It could mean anything, including the fact that the jurors are hungry. The bailiff hurried over, as best he could. He was a retired motorcycle cop with snow-white hair, a bow-legged walk, and a hacking cough. When he came out, he headed straight for the judge's chambers, a poker face all the way. Must have forgotten about the bottle of Jack Daniels I schmear him with every Christmas.

  In a moment the judge flew through the rear door of the courtroom, still hooking his robe in front, its tail aflutter like a mainsail tacking. Things would happen fast now if there was a verdict. But the jury might have a question, not an answer. Usually baffling questions. Could the court reporter read back the nurse's testimony about the patient's postsurgery constipation? You can never tell what goes through their minds.

  But no questions this time. The foreman was holding a piece of legal-size paper neatly folded at the middle. He was a retired accountant. No trace of a sense of humor or spontaneity when I questioned him on voir dire. I had asked him the last book he read. "The Price Waterhouse Guide to the New Tax Law," he responded. Not the kind of a guy to have a beer with, but perfect for the defense in a personal injury or medical malpractice case. I tried to catch the foreman's eye. No soap. Looked at the rest of them. Still no luck. Legal folklore has it that they avoid your eyes when they've voted against you.

  One of the women, a housewife, looked toward Melanie Corrigan and teared up. Now what the hell did that mean? The widow was through with her tears. She had dusted on some blush during the long break. A nice mixture of healthy and sultry, shedding her mourning widow image a mite early. Her lips were freshly painted in a pink liquid gloss, a wet look. Her hair now cascaded over her shoulders. She ran a hand through the reddish brown waves and tossed her head back, showing me a fine line of neck. A splendid pose for a shampoo ad.

  Roger Salisbury could have been in an ad, too. For Plum-mer Funeral Home. When news of The Knock reached the corridor, he quit pacing and hastily joined me at the defense table, the color draining from his face. Now his complexion was the gray of a California seal. I wondered if he was too young for a coronary.

  "Has the jury reached a verdict?" Judge Leonard asked in a grave tone suitable for an execution.

  "We have, Your Honor," said the foreman, with no wasted breaths. He stood and handed the verdict form to the bailiff, who used it to shield a cough, then handed it to the judge. Judge Leonard took a thousand years to read it, and I strained with X-ray eyes to read it from fifty feet away. Not a trace of emotion crossed Judge Leonard's face as he handed the form to the clerk. Annoyed at having been interrupted, she reluctantly put down her new paperback, this one a survey of women's sexual fantasies.

  "The clerk will publish the verdict," Judge Leonard said in the same stern voice.

  The clerk stood up, lodged her chewing gum in the roof of her mouth, jammed a pencil into her Afro, and in a bored monotone, started reading:

  "In the Eleventh Judicial Circuit, in and for Dade County, Florida, Case Number eight-seven, one-eight-three-seven-six, Melanie Corrigan, as Personal Representative of the Estate of Philip M. Corrigan, deceased, versus Roger A. Salisbury, M.D." She paused, cleared her throat, ah-chem. Oh get to it, already. "We, the jury, find for the defendant."

  Boom. That was it. She sat down. Roger Salisbury slapped me on the back. Dan Cefalo winced once, recovered like the pro he was, and asked the judge to poll the jury. He did. Each one affirmed the verdict. Melanie Corrigan looked over at Roger Salisbury and gave him a small, bittersweet smile. Like it didn't matter. Like that's one for you. If that wasn't the damnedest thing.

  Judge Leonard was doing his thank-yous to the jurors while his bailiff handed them certificates bearing a sketch of the judge that made his round face look like Abe Lincoln on Mount Rushmore. Good for a few votes in the next election.

  Then it was over. The jurors picked up their things, the few spectators ambled down the corridor looking for more action. Roger Salisbury began babbling about how brilliant I was, how great Charlie Riggs was, how beautiful Cindy was. He wanted to treat me to dinner, champagne, wenching.

  I was spent. I told him I would be poor company. In truth

  I was tired of his company. I had given him a piece of myself. The camaraderie that comes from the shared experience evaporates when the experience ends. Like war buddies, you drift apart when the conflict is over. Quickly.

  So why did I feel that the case of Corrigan versus Salisbury was only just beginning?

  11

  THE WASP AND THE CATERPILLAR

  Cindy headed back to the office and I aimed the 442 convertible west on Tamiami Trail toward the Everglades. No way I was going to return phone calls and compile expense account forms after coming out of trial. I wanted some open air. Tamiami Tr
ail is Calle Ocho in Little Havana. I passed city parks where old Cuban men played dominoes, drinking espresso, cigars clenched in brown teeth, vowing to return to a Cuba Libre. They do not consider themselves immigrantes, a term that implies a voluntary move to a new home. They are exilados, refugees in exile. When their homeland is liberated from the Communist butcher, they will return.

  The young Cubans, the teenagers born in Miami, look at matters differently. With their 280Z's, late nights in Coconut Grove discos, and weekends on Key Biscayne beaches, they have no desire to take up arms or swing machetes in the sugarcane fields. If they don battle fatigues, it is only because the look is fashionable this season at the Banana Republic boutique.

  When hundreds of thousands of Cuban refugees flooded Miami in the 1960s, there were few directions to go. East was the small downtown and Biscayne Bay. South was pricey Coral Gables, and it would be years before most exiles could move there. North was Liberty City, officially the Central Negro District on old police reports, a place the Great Society passed by, the scorching pavement without the palm trees of the Gables or the pines of South Dade.

  The only direction was west, and those who fled Castro pushed Miami that way, blowing the city out at the seams, bringing new food and music and clothing, and in a generation, they owned the gas stations and restaurants and auto dealerships and furniture stores and even banks. From the bay westward for one hundred forty blocks, onto the fringes of the Everglades, on both sides of Tamiami Trail, they lived and worked and prospered. In the middle of what was a sleepy Southern town another country grew, strange and forbidding-Fantasias Ropas, Vistas Funeraria, Clinicas Quiropracticas-its premises off-limits to English speakers.