By Kenneth M. Levine
Over the years I have met with hundreds and hundreds of parents about their child’s birth injury. The moms and dads cross the spectrum of society. Rich and poor, Ph.D.’s and high school dropouts, the latest fashion and work clothes, fancy houses, and tiny rentals. The one constant throughout though is the parents love for their child and their desire to fight for justice.
At the first meeting the mom’s almost always take the lead while the dads are more quiet and stay in the background. This scenario is the same no matter the social, education or financial status of the parents. I always work hard to make a connection with both parents. Almost every dad was in the delivery room and most have information vital to the case. While mom was busy bringing the baby into the world, the dad was most often watching the delivery and the activity in the delivery room and can tell us so much we need to know. Usually by the end of our first meeting the dads have opened up and realize how much they can help us understand what actually went on during the delivery, not just the fairy tale that the doctors often write in their notes. Before they get to that point though they go through a process. I tell them I am a father also, that if I were in their shoes, I would be angry too. I would want to punch out the doctor just as they want do. They have to decide if they can trust me, trust me enough to open up, trust me enough to show their anger and fear without be judged or rejected. I do my best to validate their feelings of anger, of being helpless to stop the injury, helpless to heal the injury. I look the dads in the eye and make sure they know they can trust me, that I will fight for their son or daughter as if the child were my own.
Of the many wonderful dads I have met, one in particular stays with me. I first met him and his wife in my office on a hot summer day. Sadly, their daughter had suffered a very severe brachial plexus injury at birth. They had been turned away by several lawyers before they came to see me, and my firm was clearly the last resort. After hearing the facts of the delivery, it was very evident this was a good case. The more I learned about the case the more I began to wonder why so many firms before me declined the case. At first, I assumed it was because the prior law firms did not understand the medicine, which was mostly true, but there was more to the story as I would find out.
As the mom related the story of the delivery to me, I came to see that the most important testimony in the case would be from the dad, who was standing at the foot of the bed and saw the delivering doctor commit the malpractice by pulling hard on the baby’s head. The way the doctors’ hands were on the head, the direction of the baby’s head and the angle of the pulling were all key pieces of information. As I turned my focus and attention to the father to confirm his version of the events, I noticed for the first time he had a hoodie on that was zipped all the way up and he was hiding his hands in his lap. Even so, I could see several tattoos on his neck. The dad was angry, angry at the doctor, angry that he could not express himself well, angry that his wife kept trying to explain what he was saying, angry that he did not think he could help his child and most of all angry at the “system”. He repeated over and over that I would not be able to help his family because in the end they would get “fucked by the system”. Now the picture was becoming easier to understand. The lawyers they met with before understood as I did that the dad’s testimony was vital to the case and after meeting him none of them thought they could bring him before a jury.
The only way I could see this working was for me to make a strong connection with the dad, so strong that I could challenge him, focus him to get him ready for the way he would be attacked at his deposition. I told him to take a walk with me, just the two of us. His wife asked to come along, and I said no, just the dad and me. As soon as we got outside the heat of the day hit. It was one of the warmest days of the summer, in the mid-nineties. Close to my office is small park and we found a bench to sit on. I told him about my life, growing up in the city, not having a lot and putting myself through college and law school. I told him about kids I grew up with that succumbed to the tragedy of drug addiction and some who died. He seemed surprised by my story and even more surprised by the way I spoke. Out of the office and outside a courtroom I spoke to him in the language of the city, the language I grew up with where the work “fuck “is a verb, adjective, and adverb.
Little by little he opened up. The story was tragic. He was abused and abandoned by his father at a young age. His mother tried her best to raise five children on her own but had to work three jobs to make ends meet. Without any supervision at home, he hit the streets and was recruited into a neighborhood gang. He was in the wrong place at the wrong time and ended up in juvenile detention. From there it was a short time until he was sentenced to 6 years in federal prison for dealing drugs. His first couple of years in prison all he did was fight with other inmates and score drugs. One day he met a new inmate who was a devout Muslim. That inmate worked on him day and night to change his life, see his own value as a person. In time the message took, and he got clean, studied for his GED, and promised himself that when he got out, he would be somebody.
It was very warm in the sun and finally he took off his hoodie and I could see his arms fully covered in tattoos. What I saw on his neck was just a tiny piece. This was why he was wearing the hoodie in the office and hiding his hands.
The world was not kind though when he was released. He told me that he knew the way he spoke and the way he looked scared people. That and his limited education did not give him a lot of options for a good job. He bounced around until he met his wife. She was a college graduate with a good to as a nursing assistant. She too had a tough upbringing but was able to overcome it an get a good education. She saw beyond his ink, she saw a kind person, a person with a good soul. Their marriage had not been easy, but they fought for each other and stayed together. When they found out they were going to have a baby they were overjoyed. He promised his wife, promised himself that he would be the best dad, the dad he always wanted but never had. Instead of great joy at the delivery though he witnessed the trauma of the doctor pulling on the baby’s head, the fear that the baby would die. He felt helpless and it brough back all the terrible feeling of being helpless on the street. It was worse when they took the baby to the doctor. He tried hard to listen and understand what the doctors were telling him and his wife, but he couldn’t. His wife did her best to explain things to him, but he just became frustrated and lashed out. He wanted to learn from the doctors, but they could not relate to him, the way he spoke, the way he looked.
It was worse when they started to meet with lawyers about his daughter’s malpractice case. He hated lawyers to start with, never trusted the many courts appointed lawyers he had over the years and surely never trusted the legal system he had been a part of since he was a young man. Each white lawyer with gray hair they met with told them they had a good case but then said he would not represent them. The lawyers all gave the same vague reason that cases were hard to win and that they just could not take them on a client. In time he could see that the problem was not the case or the ability to prove the malpractice, the problem was him. He was a key witness and none of the lawyers wanted to present a former gang banger covered in tattoos who spoke and looked like a gang member to a jury. He looked me in the eye and pleaded with me to take the case, to give him a chance to fight for his daughter to be there for her. I told him it would take work, a lot of work and had to go what I say. He promised me he would do anything, and I believed him.
Over the next few months, we worked hard together, just the two of us. Because of his work schedule sometimes we met at 8 at night, sometimes at 6 in the morning. He always showed up early ready to talk and learn. He expected that I would try to change him, the way he looked and spoke and was surprised when I didn’t. I explained that he had to be honest and authentic to the jury or they would never believe or accept him. I told him that his criminal conviction might be allowed into the case so we would bring it out first, not wait for the cross examination. I made it clear to him that it was fine to tell the me or the opposing lawyer that he did not understand a question, that doing that did not make him look stupid but did convey to the jury that he was careful and thoughtful.
The biggest problem was still the anger he carried with him every day. Anger at the system, the court, the judges, the doctors, the lawyers, the world. The anger burned red hot in him, and it did not take much to bring it boiling to the top. On more than a few occasions he directed his anger at me, threatened me. He was very frightening when he reverted to his gang days and let the anger control him, but I knew he would never hurt me. His anger was base in fear and hopelessness. He became my mission; my cause and I was not going to give up on him.
I told him not to hide his tattoos. There were too many anyway and the jury’s imagination would end up worse than the reality. We were not going to run from his prior life it was part of him. We would accept it and do our best to explain it. Our focus would be on who he was now, a loving devoted father. That was our bedrock, our way of connecting him to the mothers and fathers on the jury. He was his daughter’s father. He was there in her life every day. He helped feed her, bath her. He loved her. He was her father.
His deposition did not go as well as I hoped. He was nervous and forgot a lot of what we had talked about and prepared for. He was too defensive, too angry. So we went back to work, now with a new set of challenges. We continued to meet and talk. We reviewed the deposition transcript so he could see the problems. I had to read most of it too him as he still could only read at a grade school level.
The first day of trial he came to court in khaki pants and a blue button-down oxford shirt that was a size too big. His wife had bought the clothes the day before at Target. He looked uncomfortable in the new clothes and kept pulling at the shirt collar which he had buttoned all the way to the top. He wore the same clothes every day of the trial. Each night his wife would wash and iron the shirt for the next day. His testimony came early in the case and by the grace of God somehow, he pulled it off. He answered my questions clearly, he did not try to hide his past and who he was. In his own words he told the jury how much he loved his daughter. When it came time for cross examination the defense lawyer overplayed his hand. He tried to belittle the dad, talk down to him. It was uncomfortable to watch and clearly upset the jury. The defense lawyer made the dad into a sympathetic, loving figure and helped establish his credibility.
As the dad came off the witness stand, he looked like he had just gone 15 rounds of a heavy weight fight. He came back to the counsel table and slumped in the chair for a moment just drained. I patted him on the back lightly to reassure him that he had done a good job and as I looked over, I could see something in his hand. It was a small picture of his daughter with “Daddy” written on the back. Then I knew where he got the focus and strength to give such clear and compelling testimony. He found his purpose, he found his voice, he did it for his daughter.
A few months after the trial and a several million-dollar jury verdict, I visited the family in their new home in the suburbs. The dad was in front mowing the lawn, the picture of the suburban dad, just that this one was covered in tattoos. I spent an hour visiting with the family and as I was leaving the dad pulled me aside. He told me this was the first place he ever lived that was not an apartment in a terrible neighborhood. The first place where there was not broken glass, and discarded needles on the front steps. The first place where he did not hear police sirens all night. The first place where he was not afraid of being shot walking in the street. His daughter would be able to go to a real school with services to help her disability. She would not grow up like him, she would have a good life. As he spoke, he had tears in his eyes. The tough exterior fell away and before me was just a loving, caring dad.
As I drove back to my office the vision of him mowing the lawn on a warm summer day, tattoos and all stayed with me and to this day still makes me smile. I wonder if he is coaching youth soccer these days.