By Kenneth M. Levine
Could it really be just five minutes since I last checked the time. I was sure it was much longer than that, but it was just five minutes. Sitting in a courtroom waiting for a jury to return with a verdict can make minutes seem like hours and hours like days. I spent every waking moment of the past three weeks in court on trial or back in the hotel room preparing for the next trial day. Sleep was limited to five hours a night. The only other activities were talking to my wife twice a day, grabbing something to eat and running a few miles each morning. That’s it. No time for television, no time to check the internet, no time for emails and the latest Red Sox score. I only have one chance to win this case and there is no way I was going to be outworked or unprepared. There would be time for sleep and to get back to life later, when the case is over but for now there was one focus, to do everything to win. The associates from my firm that I brought with me to trial would tell me how tired they were, mentally and physically. They ask how I can keep going hard every day while trying not to mention how much older than I am than them. I tell them this is the challenge, to give all you have and then find a way to give more. To read and re-read everything. To break down every aspect of the case over and over and then over again. There would be time to rest later when the trial was over but for now it was work and only work.
And now the trial was almost over. All the testimony is done, the closing statements are finished. I am sitting in the courtroom sometimes making small talk with my clients but mostly keeping to myself. I am sitting with my own thoughts, re-living each moment of the case both good and bad. Why did I ask that question, why did I not ask this one? Did the jury understand the case, did I teach the medicine, did I call the right expert witnesses, did the jury like my clients? On and on and on I roll the trial around in my head. I question every move, every detail, frustrated that there is nothing more I can do. The jury has all the information and evidence they are going to get. Now there is nothing to do but wait and try not to check my watch every minute.
Time matters when a jury is out. The old wife’s tale is that a quick jury in a medical malpractice case is a sign they decided for the doctor and hospital. A quick jury means the jury concluded the doctor was not negligent and stopped right there, never reaching the issue of damages, of money. On the other hand, a jury out for a long time probably found for my client and believed the doctor was negligent. The longer jury deliberation is needed to decide how much money to award my clients. I can’t say this formula was always true in 42 years as a trial lawyer and hundreds of jury trials, but I can say it was a very good sign of the result.
So, I sit and wait for the jury knowing time is my friend. One hour passes with no verdict. Good, let’s keep it going. Each time the door into the courtroom opens my heart jumps. Is it the judge announcing there is a verdict? No, just the clerk coming to get some papers. Two hours pass. Good, but I need another hour at least before I feel I have a chance to win.
My clients are nervous. The fate of their child hangs in the balance. I try to reassure them while also preparing them for bad news. It’s a tough tightrope to walk.
Just then, the judge appears on the bench. The jury has reached a verdict. I look at my watch and see the jury has been out for five hours. I wish it was longer but this it is what it is. This is long enough for me to win the case but there is no way to be sure. As the jury comes into the courtroom, I tell my clients win or lose we did our best and I wish them well. I try to read the faces of the jurors for some indication of the verdict, a smile, a nod, but I get nothing. Just blank faces showing no emotion.
When the jury is seated the judge asks if they have reached a verdict. The foreperson stands up with the verdict form and begins to read. I am too nervous to look up, so I stare down at the table. Years of work and preparation, weeks of trial, hundreds of thousands of dollars invested into the case for expert witnesses, millions of dollars on the line and it all comes down to this moment.
Finally, I hear the Foreperson say the magic words. The jury has found for the Plaintiff, we have won the case. I don’t know yet how much money the jury has awarded, that is the last line on the verdict form, but it is not important, I have won the case, the child and family will be taken care of the, the child with this terrible injury will have a better life. A moment later the foreperson says the jury has awarded the plaintiff’s several million dollars. It is icing on the cake. I immediately move to shake my opponent’s hand and show humility in victory. Next are big hugs for my clients and the lawyers from my office that were with me at trial. I move around the courtroom thanking the court personnel and finally get to the judge. I thank the judge for her patience and fairness during the trial and say maybe I will have another case in this jurisdiction again down the road. As I turn away from the judge, I watch my opponents walk silently out of the courtroom with their heads down. I know how it feels to lose and understand how they feel, but I don’t feel sorry for them.
My eyes close and fall asleep the minute the flight home takes off. The hard work, emotions, and exhaustion has caught up with me. My wife will be waiting at the airport, and I can’t wait to see her. She knows we won the case and is proud of me, but she has been just as proud when we have lost. She more than anyone knows how much work goes into each case. She is my rock, taking care of everything at home the weeks and months I am away at trial. Our joke is the biggest snowstorms in Boston always seem to come when I am out of town. No matter the outcome, she is always there to lift my spirits after a loss or make sure I don’t get too full of myself when we win. I’ll sleep well in my own bed tonight knowing tomorrow morning there is a ton of mail and messages waiting for me in the office. And of course, time to get working on the next case.