Winning-Credibility of a Case Depends on a Lawyer's Personal Believability

FOR PLAINTIFFS' counsel, Robert A. Clifford, the key to winning any trial is establishing his personal credibility immediately and making sure it is maintained throughout the trial. "The lawyer has to be perceived as a credible person. Without credibility you cannot win."

In the opening statement, Mr. Clifford says a lawyer must be sure not to promise more than he or she can deliver: "Hold back or fudge anything you're not certain of proving at trial." And during the trial: "I've never put a witness on I thought was lying," or even someone he suspects might not be telling the truth.

Credibility extends, also, to demands for damages, which should be limited to an amount that can be reasonably supported by expert testimony. "The demand can't be too high or people will think you're nuts," says Mr. Clifford.

Credibility as a weapon in the plaintiffs' attorney's arsenal has worked very well for Mr. Clifford, who began his career in 1974 as a protege of noted plaintiffs' counsel Philip H. Corboy Sr. A former president of the Illinois Trial Lawyers Association, Mr. Clifford established his own firm in 1984.

His record of success has accelerated recently. During the past two years, Mr. Clifford's cases have brought in $75 million in verdicts. In 1992, he scored one of the year's largest medical malpractice verdicts nationally - $14.55 million for a woman who suffered permanent spinal cord damage during supposedly minor back surgery. In 1990, he won $9 million for a 36-year-old man whose left arm was crushed in a railroad accident and $14.2 million for an 11-year-old boy injured in an auto accident.

But his biggest victory came in 1991, when he won a $24.14 million verdict for a boy who had been hit by a Chicago Transit Authority bus. The plaintiff in this case, Anthony Pitts, was 6 years old on May 26, 1989, when a CTA bus barreled through a crosswalk and hit him, causing permanent brain damage. The accident left Anthony with difficulty in speaking and walking; he now has an IQ of 60, Mr. Clifford says.

The bus driver claimed that she had been traveling at about 15 mph and that Anthony ran into the side of the bus. Defense witnesses confirmed her version. But Mr. Clifford employed investigators to ride the bus route along which the accident occurred for several days, hoping to identify regular passengers who might have been eyewitnesses to the accident.

It worked, says Mr. Clifford. "We found four witnesses who had a consistent version, that the bus was traveling past Anthony's school at 40 mph, ignoring passengers at the bus stop and speeding through the intersection," when it hit the boy full force.

When a case has two competing versions of an accident, it becomes more necessary than ever to maintain the plaintiff's credibility by undermining that of the defense witnesses. In the Pitts case, this meant close investigation of the opposition's eyewitnesses. "Each and every one of them had some deficiency," Mr. Clifford says. For example, one witness claimed to have seen a little boy run into the side of the bus. But his investigators took photographs of the intersection from the bus seat where this witness was sitting. "We proved that this witness couldn't have seen the boy."

Once credibility has been established, there are other factors to be taken into account in winning a personal injury case, Mr. Clifford says.

Jury selection is crucial, as it is in all trials. But in personal injury trials the attorney is looking for a somewhat different mix.

In selecting the Pitts jury, Mr. Clifford says, "I'm looking for an educated jury, people who are capable of understanding complex medical and economic testimony."

As for general type, Mr. Clifford says, "You're looking for independent people who are open-minded. But you're not looking for leaders. If you pick someone who is a forceful personality, that's a mistake. They may force someone to follow them. I've seen a lot of lawyers get burned by that because they assume that a forceful personality will follow you."

When it comes to his presentation of the facts, Mr. Clifford aims to establish liability in the eyes of the jury as early as possible. "I tend to want to prove liability first, then damages," says Mr. Clifford. "You don't want to bounce back and forth. If you feel you're ahead on points on liability, go to damages."

In the liability section of personal injury cases, he notes, "I've always called a cop first. I've never lost if I've done that. But past that point, it's fair game."

When he reached the damages section of the Pitts case, he called two experts he has used in the past, then followed with several therapists who were treating Anthony Pitts. "I called Dr. Robert E. Eilers, an expert in physical rehab, and Dr. Charles Linke, the chairman of the department of finance at the University of Illinois," says Mr. Clifford. "I did some homework and found that Linke and Eilers were involved in 75 percent of the verdicts over $1 million" in the Chicago area. "Juries believe Dr. Eilers and Dr. Linke."

But, he adds, "It's not enough to throw a couple of expert witnesses on the stand and walk away from it. You need independent corroboration. That's why I bring in the treating people - the speech therapist who's doing the work, the occupational therapist. These people have no ax to grind and they offer independent credibility to the analysis of your medical experts."

During the Pitts case, Mr. Clifford broke a cardinal rule of standard cross-examination. When questioning the opposition's expert witnesses he asked questions to which he did not know the answer. Indeed, in this case, as in others, not only did he not know the answer to several questions, he also didn't care what it would be. His questions to defense witnesses regarding the damages aspect of the trial were intentionally rhetorical -- designed to make a point rather than elicit information.

When, for example, a witness described the Pitts family's ability to take care of the boy, or indicated that the family needed less money for his upkeep than had been requested by the plaintiff's attorney, Mr. Clifford asked, "'Where's he going to get the money 20 years from now?' I didn't care what he answered," Mr. Clifford recalls.

When the witness discussed a facility 120 miles from Anthony Pitts' home that could provide treatment for the boy, Mr. Clifford recalls, "I asked the witness, 'Do you think it's right to pick a spot that's 120 miles away from his home, to take him away from his mother? Should you make this decision or his mom?' I didn't care what the witness answered. I just wanted the jury thinking."

These thoughts were clearly in the minds of the Cook County jurors when, on October 10, 1991, they ordered the Chicago Transit Authority to pay Anthony Pitts $24.12 million, the largest personal injury verdict ever in Chicago. In May 1992, the CTA settled the case, agreeing to pay Anthony Pitts $15 million.