It was 1979, and Brian C. Fetzer was a young attorney representing an obstetrician in a birth injury medical-malpractice case.
The infant was born with brain damage, and its mother was suing the hospital and medical staff involved in its delivery for their alleged failure to deliver the baby in a timely fashion.
She refused their $750,000 settlement offer and took the case to trial.
The jury instead found in favor of the defense. The case made headlines as the largest rejected settlement amount in a case resulting in a defense verdict.
A few things still stand out to Fetzer about his experience. For one, $750,000 was an “extremely large” amount of money for a civil case. Second, Fetzer took the case to trial after less than four years as a practicing lawyer.
Most notable to him though is that the dollar amounts don’t stay quite that low and the trial attorneys aren’t nearly that young in any 2015 case.
Fetzer is a shareholder at Johnson & Bell Ltd., but he joined as one of the firm’s first associates shortly after it was founded as William D. Maddux Ltd. in September 1975 — 40 years ago last month.
William D. Maddux — who would go on to serve as presiding judge of the Cook County Circuit Court’s Law Division in 2002 until his retirement in 2014, started the firm after leaving Kirkland & Ellis LLP with six lawyers and a batch of insurance-defense cases.
Maddux is now of counsel at Kralovec, Jambois & Schwartz — the second firm he launched in 1979.
Among the Kirkland & Ellis colleagues who came with Maddux was associate John W. Bell. William V. Johnson — the other half of the firm’s current name — joined a month later. By December 1975, Fetzer was onboard.
Today, the firm has 102 lawyers at offices in Chicago and Crown Point, Ind.
In the early days, Johnson said the firm would bring in “$2 or $3 million” each year. Today, he said the firm makes about “$42 or 43 million” annually.
As the partners reflect on four decades of growing the firm and defending clients, they also noted that civil defense work has evolved vastly through the years.
Perhaps the most noticeable change comes in the scale of jury awards. In the beginning of Johnson’s career, a six-figure verdict was considered good — verging on great.
“Now, verdicts are in the eight figures, nine figures, so the exposures are much greater,” Johnson said. “Even the top lawyers in the city, if they got a $100,000 verdict in 1967 or 1968, they were thrilled. Since that time, each five years or so, the verdicts reach a new level or size.”
It’s a growth rate that outpaces the general trend of inflation in that same time period. Based on the Consumer Price Index, $100,000 in 1968 has the buying power of about $684,816 in 2015.
Referred to as verdict inflation, Bell attributes the change to the way people respond to large dollar amounts.
“You look at how much athletes were paid back in the ’70s, and there were very few athletes who made a million dollars a year as compensation,” Bell said. Now, you get athletes that are making 10 and 20 million dollars a year in compensation, so the jurors are conditioned to the fact that a million dollars is not a lot of money.”
But the seasoned veterans attribute the change to more than people’s desensitization to large numbers. It has also come from jurors’ awareness of litigants’ quality of life.
“Quite frankly, I think the value of life has increased, with more appreciation, and that sensitivity is indispensable to society,” said Maddux, who tried more than 250 cases to jury verdicts for both plaintiffs and defendants in his 31 years of practice before joining the bench in 1992.
But with the rise in jury award amounts, the Johnson & Bell partners also noted that cases are far less likely to reach a jury. They attribute this primarily to the evolution of the discovery process as technology has made it easier to find and preserve records — meaning litigants dig a lot deeper into the facts behind a dispute while preparing their cases.
Cases can take years to reach a jury because parties spend as much time as deemed necessary to gather all the relevant evidence. Attorneys used to be able to fit an entire trial’s worth of documents into a file a few inches thick.
But that’s a thing of the past, Bell said.
“Now, your files could fill (a) room from the floor to the ceiling with depositions of witnesses, expert depositions and the documents that have been produced,” he said.
And since litigants narrow down the evidence to present their theory at trial, lots of documents gathered and studied in discovery may not even make a courtroom cameo. But it’s a necessary step, Johnson said.
“If you don’t do the work, you could get criticized severely for missing something,” he said. “The whole process is much more expensive than it used to be.”
The increasing cost of litigation in pretrial stages has also made clients more eager to settle cases than before.
Maddux estimates a case today is about 10 times more likely to settle than to go to trial. And he doesn’t see that trend reversing in the future.
And given the increase in exposure, clients such as insurance companies or self-insured companies demand more experienced attorneys to take the lead on their cases.
While Johnson, Bell, and Fetzer had opportunities to try cases very early in their careers, a young lawyer today could be in the business for six years before they ever see the inside of a courtroom, Johnson said.
That’s not to say they don’t gain experience, he said. They just move up more gradually, starting with smaller cases with few witnesses, if any at all.
“It’s a slower process than being thrown in the middle of a pond and having them swim ashore,” Johnson said.
Despite the changes, though, the three partners still say they’re happy to be in the business together.
“You can still get good results trying a case, and it’s still challenging,” Fetzer said.
Much of the challenge comes from the nature of civil defense work, Bell said, where a lawyer has to convince jurors to rule in favor of defendants based on facts, law and evidence even when there’s strong sympathy toward injured people.
“That’s very difficult to do,” Bell said.
Despite the changes civil defense has seen through the years, Maddux said, the appeal to become a defense attorney is not lost.
“You have to look at the attributes of a successful trial lawyer. Are they the kind of person who is going to get on their hind legs to fight for their client in the courtroom or not?”