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The Practice and Show & Tell

The Practice

Big time trial law is reserved for those who've amassed the expertise—and capital—to engage in high-stakes litigation.

Money-chasing opportunists or fearless crusaders against corporate evil? Trial lawyers in Florida have earned both labels.

Critics bellow over lawsuits like that filed recently against Sea World over the death of a 27 year-old drifter who evaded security to stay after hours for a swim with 11.000-pound killer whale. To at least one trial lawyer, however, that wasn't irresponsible personal behavior, it was negligence: Sea World after all, didn't warn visitors of the risks posed by such behavior.

But hold on says Miami Lawyer J.B. Spence, whose mastery of trial law over more than 30 years earned him the nickname "dean of torts." Trial lawyers have another record to be considered.

"From car doors to baby cribs, the list of dangerous products recalled or redesigned as a result of lawsuits brought by trial lawyers is enough to wring an apology out of anyone who ever told a lawyer joke," says Spence. Trial lawyers "did away with the (defective intrauterine device) Dalkon Shield; we did away with the (Ford) Pinto; we did away with asbestos. If you knew the cruelty, the selfishness, the greed and dishonesty of corporate America, you'd be in horror."

"As for claims that frivolous lawsuits are flooding the courts, the numbers simply don't support them," says Scott Carruthers, executive director of the Florida Academy of Trial Lawyers. He cites statistics from the Office of State Courts Administrator showing fewer negligence suits per capita were filed in 1998 than in 1986.

However you are inclined to think about them, not all trial attorneys - or plaintiffs, as they are also called - spend much time in court. Many spend most of their careers writing so-called "demand" letters to insurance companies and negotiating modest settlements for their clients. Insurance defense know them as the "settlers."

But then there's the Big League - an elite group of plaintiff lawyers feared by insurance companies and corporate executives alike. You won't see their faces over an 800-number on a highway billboard. So what else distinguishes them from hundreds of their colleagues in the phone directory?

For one, when an attorney like West Palm Beach lawyer Bob Montgomery names his bottom line, you know he's not bluffing, says veteran insurance defense lawyer David Spicer of West Palm Beach. "When they say, 'We'll see you in court,' they mean it."

Meaning it involves more than the willingness to parade about in a court room before a jury. Big-time personal injury litigation is actually an exercise in in big-bucks venture capital and risk management. The most successful attorneys are those that have amassed the resources and expertise to, first cherry-pick cases that have the potential for a big verdict, and second, spend hundreds of thousands of dollars up-front on experts and research to prepare the case. Ultimately, they use their own wealth and willingness to risk it to match the resources and time that a corporation's insurer may devote to a case.

It's a business that no right-minded investor would underwrite. Trial attorneys don't get to bill a penny unless they convince six strangers on a jury they're not the greedy sharks lampooned in lawyer jokes. If they win, they frequently pay up to 25% of their share in referral fees to other law firms; many of their cases come from smaller law firms without the resources to take a case to trial. "Las Vegas pales so far as risk," says Montgomery who once lost $578,000 on a single case. "There are a hundred ways to lose a contingency fee case and one way to win."

"When they say, 'We'll see you in court,' they mean it."

In addition to the willingness to sue and the financial resources to prepare for court, the best trial lawyers ultimately must be able to sway a jury. Some of that skill may involve charm and salesmanship: In court they may thunder, whisper, coax, preach, badger and even cry. They may prey shamelessly on the jury's sympathies, using family photographs blown up to the size of bus advertising: A young bride beams up at a husband lost to a doctor's incompetence; a young boy at his mother's grave. They lead witnesses through descriptions of lives destroyed by the negligence of an uncaring doctor or hospital or a corporation bent on maximizing profits at all costs.

But the best also master the technical points; assembling, dismantling and assimilating engineering reports and medical records as nimbly as a soldier breaking down a rifle.

While insurance industry odds say plaintiffs attorney's clients will lose at least half the time, the best trial attorneys can get a jury to believe them nine times out of 10.

Barnes v. Foremost Fabrications and Asplundh Tree Expert Co.

Expenses: A Case Study

On July 21, 1988, Plantation city maintenance worker Alan Douglas Barnes was part of a work crew feeding tree branches into a wood chipper when his glove caught on a branch and he was pulled into the blades. Barnes lost his right arm. After a similar previous accident, the machine's manufacturer, Michigan-based Foremost Fabrications, had redesigned the chipper's feeder chute, extending it so that it was longer than the average human arm. Owners of the older models were sent letters offering extensions. But the letters got little notice, according to Fort Lauderdale plaintiffs lawyer Jon Krupnick, who argued that the manufacturer and the Asplundh Tree Expert Co. of Philadelphia, who sold the chipper, should have issued a recall notice and a warning instead.

Krupnick filed a lawsuit in Broward County Circuit Court. Over a period of eight years, Krupnick spent $495,604.36 to prepare and bring the case to trial.

The trial included an elaborate array of models and exhibits, and the services of jury consultant Sanford Marks of Trial Technologies, Inc. of Miami. Had Krupnick lost, those expenses would have come out of his pocket. The investment however paid off. Following an eight-week trial in 1996, the jury awarded Barnes $8,156,219 - $7,730,000 for pain and suffering and $426,219 for medical expenses and lost wages. Under a standard contingency fee contract, Krupnick gets 40% of the first million, 30% of the second million and 20% of the rest. After taking his fee, Krupnick then recoups his $495,000 in costs. Here's a breakdown of where the money went:

Over a period of eight years, Jon Krupnick spent $495,604.36 to prepare and bring the case to trial. The trial included an elaborate array of models and exhibits.

Some see all this as a tawdry game in which the lawyers' only skill is making sure the other business advocates argue that the lawyers, far from being consumer advocates, actually put consumers at risk: Manufacturers may keep products like new drugs off the market because of liability concerns, they say blame for any tragedy ends up landing on the one with the deepest pockets. "They can take a $10,000 liability," and through their expertise make it a $10 million liability," complains Associated Industries of Florida President Jon Shebel.

Whatever the game, respond the attorneys, the catches don't always favor them. For example, if a trial lawyer rejects a settlement offer and the case results in a verdict that isn't at least 25% more than what was offered, the plaintiff has to pay the defendant's attorney fees.

If an insurer rejects the settlement and gets hit with a verdict 25% higher, the defense foots the plaintiff's legal bill.

And that, the plaintiff's lawyers say, is the bottom line. "Every time you read about a $20-million verdict, it's a case where at some point the defense refused a reasonable settlement," says Fort Lauderdale plaintiff's lawyer Jon Krupnick. "It is a failure to understand the value of a case."

Montgomery agrees, "One hundred percent of every huge verdict I've gotten is because I was forced to go to trial," he says. "What keeps me in business is people not being very smart."

Show & Tell

THE "KING OF DEMONSTRATIVE EVIDENCE" DOESN'T LEAVE MUCH TO THE JURY'S IMAGINATION.

JON KRUPNICK

Age: 59

Law School: University of Notre Dame, 1965

Law Firm: Krupnick Campbell Malone Roselli Buser Slama Hancock McNelis Liberman McKee, 17 lawyers

Law Office: Fort Lauderdale

Biggest Verdict: $16.5 million - car crash, Ford Motor Co., 1983

When Fort Lauderdale lawyer Jon Krupnick describes the scene of the accident, it's as if you are there. That's because, if you are a juror in one of his cases, he probably had it built for you in painstaking detail. To say that Krupnick has an eye for details is like saying Clarence Darrow has a way with words.

A 5,000-sq-ft. warehouse in Fort Lauderdale testifies to Krupnick's obsession, a penchant that has earned him the nickname "the king of demonstrative evidence." It is a museum of tragedy, crammed full of wreckage and the meticulously reproduced models of accident scenes and defective machinery. For an accident scene involving a Ford Bronco, Krupnick reproduced the entire accident scene, including both cars. It was too big for the courthouse, so Krupnick had a courtroom built in his warehouse, complete with jury box and judges bench.

Krupnick does not believe in leaving much to the jury's imagination. For the case of a client that lost his arm in a woodchipper, Krupnick had a full-size model of the machine built, then he climbed in to demonstrate the impossibility of a defense theory that the man had climbed into it on his stomach, intending to commit suicide.

Krupnick began his career doing defense work. He says he wasn't really good at it, and he didn't like it much, either. Then in 1972, he happened to take a case involving a boating accident. It ended with Broward County's first ever million-dollar verdict. Two years later, he formed the 17-lawyer firm he works in today.

Krupnick declines to discuss finances in detail, but says it's a disappointing year if the firm's 10 partners earn less than $500,000. "If they're over $1 million, we're pleased." Then there was 1994. After 2 1/2 years of work, the firm settled a case against Dupont for allegedly defective fungicide Benlate®, for $214 million. The firm earned $34 million, after costs. Krupnick rewarded his staff with $1 million in bonuses.

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