The Case of the Little Big Man

By Richard Lacayo

Three years ago, Barbara Chernow's husband was struck and killed by a New York City police car driven by a drunken officer. Chernow sued the city for $29 million, partly for the loss of her husband's future income. Because her husband was 71 at his death, the jury might have concluded that his income- producing years were mostly behind him. No problem. Her attorney was 86. Who better to demonstrate, after all, that a man still has earning power after his hair turns gray? "Chernow was in excellent health," argued the spry attorney. "He could have well outlived me."

Despite his age -- or, as he believes, at least partly because of it -- Octogenarian Harry Lipsig is perhaps the winningest liability lawyer in America, as well as the founder and head of the nation's largest personal- injury firm. Although he does not appear in court in all cases taken by his firm, Lipsig was delighted to be Exhibit A in the Chernow case, which brought out all his instinct for courtroom spectacle. "If you bore the jury, you have lost the case," says Lipsig, who just a few years ago helped win a client's lawsuit by leaping several feet up and back to perch on a courtroom railing in order to demonstrate a pivotal event in an assault case.

It also does not hurt that the diminutive ( 5 ft. 2 in.) Lipsig can handle jurors' emotions with the finesse of a symphony conductor. The faces in the jury box registered grief and shock during Lipsig's opening statement in Chernow's suit as the maestro described the doctor's tragic demise: picked up by a front fender, smashed into a "shatterproof" windshield, to "land with a thud on the roadway" with "52 bone fractures." After just one day of trial, the city threw in the towel and settled for an undisclosed amount. "Trying a case against him was like playing golf against Ben Hogan," said Linda Cronin, one of the opposing attorneys.

Lipsig takes his cases on a contingency-fee basis, meaning that he collects only if he wins. In that event, he typically garners a third of the final award, which can run into the millions. He claims to win 95% of his cases, a figure that is all the more impressive in view of his reputation for taking "impossible" cases. His trick is to combine meticulous research with show-biz instincts. In the 1940s he sued the concessionaire in a New York stadium on behalf of a man hit by a soda bottle thrown from the stands. The vendor argued that nothing could have been done to prevent the injury. Throughout the trial, Lipsig kept on his desk a mysterious brown bag that tantalized the jurors. Not until his final argument did he open the bag to dramatically take from it a paper cup. "This is what they could have done to protect my client," he announced. He won the case. Ever since, chastened stadium concessionaires nationwide have sold beverages in paper cups.

That was only one of many Lipsig victories to result in new legal responsibilities for institutions, employers, manufacturers and municipalities. In a 1958 case involving Arnold Schuster, who was murdered after he had helped track down the celebrated bank robber Willie Sutton, Lipsig won a landmark ruling from the New York State Court of Appeals, the state's highest court. It opened up police to liability if they fail to provide reasonable protection for a person who assists a criminal apprehension or prosecution. Schuster's police protection had been withdrawn despite his pleas to have it continued.

In 1969 Lipsig won another case that made it easier for patients in New York to sue a doctor or hospital for leaving a foreign object in their bodies after surgery. Instead of having only three years after surgery to bring such a suit, Lipsig's victory allowed patients three years from the time they could reasonably have discovered the problem. And just last week the state's top court affirmed a $1.25 million lower-court judgment that Lipsig had won for a high school football player who was injured on the field. Lipsig had persuaded the jury that in view of the boy's exhaustion before he went on the field against much larger opponents, the coach should have kept him on the bench. The decision set a precedent: rather than merely exercising "reasonable care" for the player -- the earlier legal standard under New York State law -- coaches must now exercise the same degree of caution as an "ordinary prudent parent."

Lipsig gets very serious about the civic virtues of liability suits. "But for lawsuits brought by personal-injury lawyers, the Ford Motor Co. would still be making defective Pintos, which burst into flames when struck from behind." He describes the firm he founded 62 years ago, which has now become Lipsig, Sullivan & Liapakis, in terms that would make the Lone Ranger blush: "Champion of the weak, defender of the poor, the equalizer in the arena of litigation."

Not everyone shares Lipsig's view of his usefulness to society. Critics of big damage judgments blame aggressive liability lawyers for causing insurance rates to skyrocket and for putting the bite on city governments whose "deep pockets" are filled with taxpayer dollars. Says Blair Childs, executive director of the American Tort Reform Association, a lobby group in Washington: "Harry Lipsig typifies the system where no one wins but the likes of Harry Lipsig. A few others win big with him. But society is hurt."

Unfazed by such criticism, Lipsig brings his crusading zeal to numerous other professional activities. He is host on a weekly cable-TV show on current issues; he also dispenses lawyerly advice in regular newspaper columns and on a weekly radio show. He brushes off complaints that he uses these outlets to encourage people to bring lawsuits. "All I do is educate people about their legal rights," he maintains. People must be learning. Several weeks ago, Lipsig's firm, which helped pioneer medical-malpractice claims, had to settle out of court in a legal-malpractice suit brought by a client who claimed that it mishandled her case.

With reporting by Raji Samghabadi/New York