MOST LAWYERS are dishonest; at least that's what the American public seems to think. In 1977 a Gallup poll asked people to gauge the integrity of various professions. Only 26 percent said lawyers had "high" or "very high" standards of honesty -- a rating far below medical doctors and exactly even with undertakers.
The American Lawyer decided to test the validity of that low opinion by focusing on negligence lawyers, who are, fairly or unfairly, the attorneys most often suspected of chicanery.
In March, posing as an accident victim, I went to 13 New York personal injury lawyers with a "case" in which their willingness to aid and abet me in perjuring myself could produce a large contingency fee: an undetectable lie would turn a hopeless claim into a winner with potential for a big recovery.
The results will disappoint those members of the bar who assume that because they are honest, their colleagues are, too. Five of the 13 lawyers offered to set up the fraud for me -- to engage in the felony of aiding and abetting perjury. In fact, under the New York State penal code, even by having the conversations with me that they did, the five appear to have committed the Class A misdemeanor of criminal solicitation.
The case I fabricated was not ambiguous: it was clear to the attorney that to have a claim I would have to perjure myself about a key fact, and that he would have to agree to help me.
I selected the attorneys randomly by using the Manhattan Yellow Pages, vaguely described my problem and made an appointment. Here is what I told the lawyers when I got there:
Last fall, I was walking up Broadway toward my apartment. I was daydreaming. Then, just as I was stepping off the curb at Broadway and 70th Street, I fell, landing flat on my back.
A woman ran across the street to help me. While I supported myself by leaning on the barriers that surrounded some Consolidated Edison construction located maybe two or three feet from my accident, she persuaded me to go to the emergency room at a nearby hospital. The woman later became a friend.
X-rays showed nothing, and the doctor told me to go home and rest and to come back only if the pain persisted. It did. Finally, in mid-December, I contacted a friend's doctor at Columbia Presbyterian Medical Center, who put me in traction for eight days. At the end of this treatment, I was given a myelogram. The diagnosis was that I had a ruptured disc and should consider an operation. But the odds weren't great. "In your case," the doctor explained, "we can't guarantee your back will be better after the operation. There's a 30 percent chance it will be, but your condition may remain the same, or even get worse."
I decided against the operation. Later I read in the paper that a woman had been awarded $9 million for back injuries sustained when she fell on a darkened staircase in her apartment building. The owner of the building paid about half, and Con Ed was held accountable for the rest.
As a college-educated young professional, I felt sure that I had lost substantial future earnings as a result of what now looked like a long-term disability, not to mention the loss I'd sustained from my short-term inability to seek work actively. I didn't know if I had a case -- and, if I did, against whom.
I was positive that I hadn't fallen where the Con Ed construction was, or because of any obstruction it had caused. The curb had no major cracks or crevices.
At no time did I make an initial, direct offer to lie about the Con Ed construction's being the cause of my fall. But I kept emphasizing how close to my fall the construction was -- and strongly implied that I was willing to shift the location of the fall slightly to make this a good case.
My experiment yielded no gray areas. The dishonest lawyers picked up on my suggestion immediately; the honest ones couldn't be tempted no matter how hard I tried. Because my purpose was to get a sense of the big picture, not to investigate individual attorneys, only the honest lawyers are named here.
"You were a fool not to think of suing earlier," began Dishonest Lawyer A. "The statute of limitations for suing the city of New York is 90 days. If you don't file a claim within that time period, you don't have a case against the city." This was a refrain I was to hear all 13 times, with minor variations. But this attorney didn't dismiss the case as hopeless. He went right for what he considered the jugular: Con Edison, for which the statute of limitations on filing a claim is three years.
"Con Edison might think you're a bimbo for waiting for so long, but that's okay. Still," he added, "it's too bad you didn't think of coming to me sooner, because then we could sue Con Ed and the city. This way we can only sue Con Ed."
I replied that I hadn't thought about a law suit until recently. "After all," I countered, "I was daydreaming at the time. It was my fault."
He laughed, "You go into court and say you were daydreaming, and they'll throw you out. Something made you fall. Something Con Ed did make you fall. Debris spilled over from the construction site. You tripped on it."
"Here, you sign these," he said, handing me three sheets of paper he had ripped off three pads of retainer agreements. "Let me explain a few things. You had what is called a blind accident. There were no police, no police reports. But someone saw you, and you say she's become a friend."
"Would I have to involve her in this?" I asked.
"No. I'll talk to her. Don't you talk to her." He pushed the papers closer to me.
"And the fee arrangement?" I asked.
"Expenses come off the top. Then it's 50/50 for the first thousand, 60/40 for the next five thousand, and 65/35 for the rest," he explained. "You get the 50, 60 and 65."
I asked him how much he thought my case would be worth. "It could be big," he responded. "But it's a difficult case. Con Ed might settle out of court; then again, we might have to go in front of a jury.
"And you don't have to lie," he continued. "All you have to do is shade the facts a bit. Just a little shading about where you fell. Everything else is fine."
Irving Cohen agreed to hear me out. But I had hardly finished my story when he told me I didn't have a case.
"You don't have a case against the city, and you don't have a case against Con Ed. You say you were daydreaming. You can't claim either party was negligent." The interview was friendly; he was sympathetic to my back ailments, but he didn't want to waste his time trumping up liability on the part of Con Ed or New York City.
Although Dishonest Lawyer B was referred to me by another attorney, who didn't think I had a case, this attorney did, and "a pretty good one." "But we've got to have the ammunition to shoot," he said, "so you have to supply the bullets."
The primary bullet was the witness who had helped me to the hospital. Again, the city was out of the picture, but Con Edison was in target range. If the construction site was still in the same condition as it had been in October, and the witness was willing to say so, he explained, "the only alteration we'd have to make is to replace your vagueness about slipping on the curb with something more definite" -- a chunk of sidewalk, for example.
He never used the word "lie," speaking in terms of my "story": the story I would tell the judge, the story I would tell the jury, the story my friend would have to corroborate. "If your friend won't go along with it, we don't have a case," he concluded. "It's that simple."
Lance Spodek threw up his hands when I told him the accident occurred in October.
"Go no further," he said, citing the statute of limitations. Nor was he interested in pursuing Con Ed, because by my own admission I was unable to lay any blame on that company.
"You have no case," he said.
"But what if I told a lawyer. I fell because of Con Ed?" I asked. "Then would I have a case?"
"I wouldn't take it," he quickly interposed.
"But if I lied from the beginning. . ."
Spodek shifted uncomfortably. "Yes, you probably would have a good case. But no lawyer is going to help you if he knows you're lying. I certainly wouldn't."
Dishonest Lawyer C became interested in my case when I mentioned that the Con Edison construction hadn't changed significantly in the six months since my accident.
"So why don't you go back there and find some stuff lying around?" he said, adding, "There was stuff on the street -- the doctor will have to say that."
"And if the doctor says I have a case?" I responded.
"He'll say you told him that; that's your story. Listen," he continued, with the air of one speaking to a babe in the woods, "you go to the street where it happened, take a few pictures. We'll need them for evidence. You find somethng. Then you say that you found some crap from the construction on the sidewalk, and you fell on it."
"But do I have a case?" I reiterated.
"Not against the city; it did nothing wrong. Maybe against Con Ed. It happened on the street where Con Ed is screwing up. You get it?"
Although by the time I was walking out of his office I hadn't gotten a definite "yes" or "no" as to whether I had a case, the lawyer stopped me just as I was opening the outer door in the reception area. "This doctor," he asked, "will he cooperate with you? What'd you tell him?"
"That I had fallen off the curb."
He shook his head, as if punctuating my stupidity. "The curb near the construction. Take some pictures," he said, showing me out. "We'll see what we can find."
Edward Kallen explained that, even if I could state that Con Ed was at fault, my case would be difficult to prove. "Photographs can often dramatize cracks and broken pavement, but six months after the accident it would be impossible to prove through photographs that the site had remained the same. In court, Con Ed lawyers would ask you when the pictures were taken, and, well, that would be that." He sympathized with my injuries, with my lack of money; and he said unequivocally that I didn't have a case.
"Even if I lied about the construction?" I asked.
"You could lie, but I wouldn't be your lawyer," he said.
Dishonest Lawyer D thought I had a $20,000-to-$30,000 case against Con Ed. "I've handled many of these types of cases," he said, and Con Ed is "the perfect defendant. Everybody hates Con Ed," he explained, "and everybody thinks Con Ed is rich." Still, he continued, it would be a tricky case, for which he thought a $1,000 retainer and an overall contingency fee of about 30 percent would be necessary payment for his services.
"Basically it's up to you -- whether you're up to, well, quite frankly, lying. You've got good injury because it's well documented." So all I would have to do for the benefit of the Con Ed lawyers, he said, would be to replace my "I don't know what happened; I was daydreaming" with "As soon as I got up, I saw I had fallen over some loose pavement from the construction site."
That -- plus the cooperation of the woman who saw me fall -- was all I would need, he said. Then again, we could omit mention of her existence if she proved uncooperative. "Does your friend need money?" he asked. "Because there would be some money in this for her, too." She would be paid a fee for testifying.
"As it stands, you don't have a case," he explained. "But if you're asking me to help fabricate a story, I can do this. All we have to do is bend the facts a little."
"But," I demurred, "I would have to swear under oath."
"Everybody lies under oath. It comes down to your word against Con Ed's. As I said," he continued, "it won't be an easy case. It could take two years. But there's money in it for you, and there's money in it for your friend."
Robert Grochow explained that his firm charges a contingency fee of one-third and that "we never discuss how large a claim might be until the last minute."
Grochow deflected all suggestions of suing Con Ed, because the construction was located two or three feet from where I fell, and because he thought we could possibly get an extension from the courts on the 90-day statute of limitations. The city was the most likely defendant, and the city could have been negligent.
"You say you were daydreaming," Grochow noted, "so it is possible that you did fall on something without realizing it."
I kept trying to bring Con Ed into the picture. Finally, Grochow said, "Look, we don't go out there and dig holes and break up pavement for our clients. It has to be an existing condition. We can't fabricate this."
Nor would he give me an indication whether or not I had a case. Next week, he would send an investigator with me to the site.
"If he finds something, you may have a case. But if he doesn't -- the sidewalk is in relatively good condition -- then there's nothing we can do."
"You're too late for the city," Robert Cantor said, " and you're unable to prove that there was any liability. I'm sorry about your injury -- it's a tough break -- but you don't have a case."
Would I have a case if I could say that someone was liable?" I asked.
"Yes, if you say that honestly. Otherwise, it's just not the kind of thing I'd get involved in. I'm sorry. You have no case. You're one of thousands who slip on the sidewalk and fall. I'm sorry."
Dishonest Lawyer E said, "You should go back to the site of the accident and try to jog your memory. Perhaps there is something there, some liability on the part of Con Edison or the owner of the apartment building on the corner, that you failed to notice previously."
"But I've been back there," I explained, "and I found nothing I could have fallen on. I really have to say that the accident was my fault."
"You need to refresh your memory," he continued." As it stands, as you present the facts to me now, you have no case. But you've got a serious injury, and you really need to refresh your memory."
I nodded my head, finally understanding that this lawyer was never going to use the word "lie" when a good euphemism -- "refresh your memory" -- was available.
"So if I do 'refresh my memory,' then what?" I asked.
"Then you get back to me, telling me what you found, and we proceed from there."
"And what about the witness?" I asked. "Will she have to testify?"
"Why don't you go with her to the site tomorrow? If she'll agree with you about where you fell, so much the better. If she doesn't, then we might not want to bring her into the case at all."
I had only one question left: how much was my case worth? This lawyer gave me the largest figure to date, estimating an award at between $60,000 and $100,000. His contingency fee would be 30 percent.
Paul Fink said he was sorry that I had taken the subway so far just to find out I didn't have a case.
"Do you remember stepping on a stone, or falling over anything in particular?" I had to answer no, I had been daydreaming.
"To sue the city you have to file a claim within 90 days, and that's unalterable. You have no one to sue. No, you don't have a case." his "no" was unalterable.
James Hillary said I didn't have a case that could be easily proven. "Some lawyers say 'sue' for just about anything, but this is never what I recommend for a case like yours," he said. "You really can't say that anyone was negligent."
He thought that the owner of the apartment house on the corner where I fell might be responsible for keeping the sidewalk in good reapir, and that should consider writing its owner a letter, explaining my accident and asking for damages of $1,000 -- or the difference between my hospital bills and the amount my hospitalization insurance had covered.
"But this is the only thing I can suggest," he said, "because it is the only way you can stay within the law and what you know to be the truth."
Deflecting my suggestion that I could perhaps lie about Con Ed's being liable, he concluded, "Some lawyers are willing to help a client in these situations, but I am not one of them."
He would be happy to help me draft the letter, for which he would charge me his standard rate of $100 an hour, or fraction thereof. spelled out in black-and-white terms, but we absorbed them nonetheless.
I hope you'll learn, Georgie, how to spot definitions of masculinity which are untrue. Unfortunately, they're not easy to see. They come in odd glances when you're not meeting a standard of economic achievement; or they are spat out by some invisible cultural mechanism that pressures you to hold back tears.
It hurts to admit it, but too many of the silent expectations come from fathers, like me, who say one thing and feel another (we forget that our young sons pay a lot more attention to feelings than to words). I remember the Sunday night we went to a Chinese restaurant. You insisted on taking Death Squad Commander, Greedo and others of their strange crew, which was fine with me. You also insisted on carrying them into the restaurant in a red, beaded pocketbook you'd found. I said, "Oh, that's a good way to carry your toys."
I felt, "Heh-heh, excuse me, son, but boys don't carry pocketbooks." You took the bag, but I know you got the message.
I worry about some of the other messages you're getting -- particularly the one that tells you I don't know how to be a father. Men are not supposed to admit any kind of self-doubt, but there it is.
What puts men at a disadvantage in this thing called parenthood is that we don't talk about it among ourselves as much as women do. It's one of those conversational topics, like impotence, that's not really allowed. So the feelings don't get expressed and bounced around, but they do sit inside you and make you feel like a dope when it comes to being a dad.
I don't always know what to tell you or how to help you. When your feelings get hurt, there's not much I can do except welcome you into my arms and stick around while your pain rides out the test of time. I don't want to tell you to take your hurts "like a man" because that's what got us all into trouble in the first place. Nor can I guarantee your safety. I think you're finding that out for yourself.
Recently you've been afraid to go outside the house to climb your dome or swim in that damned plastic pool that keeps springing leaks, because a while ago you saw two guys get out of their cars and fight about a parking space on our street. You saw them get red in the face. You heard them screaming words you had never heard before. Then you saw one of them take out a gun and blow the other guy's brains out. Right outside our house. How does a 4-year-old boy deal with that? You want to know if bullets can go through wood. Glass? Steel? If Spiderman were there, he would have stopped it, right? Right.
So I don't have to tell you that your father can't put safety into a package and hand it to you, tied with a pretty bow. You want me to do that, but I can't. That's probably the hardest thing about being a father.
Georgie, I'm scared too. I'm hesitant to let you see my fears, not because they're "unmanly," but because you look to me for assurance. But I can't promise you that kind of thing won't happen again. I tell you to go outside, that you can't stop living because things may be dangerous, but you're taking your time. I don't blame you.
You may as well know that dads, who are supposed to be fearless as they face problems, are not. Boys don't have to be, either. But face them, and keep going. As men, we make plans for our families and for our careers, and often we see those plans collapse. In time we pick up the pieces, but not without trembling.
That's pretty much how it goes. We tremble through, day by day, and somehow the days go by and turn into years, and finally boys like you are out on their own and become fathers themselves without knowing much more about it than their own fathers did. I think you'll be amazed, as I am, at how fast it all moves as you walk at your own pace, welcoming the beauties and fleeing the beasts. While you're still holding my hand as you walk, I can offer you very few answers. I do have hope.
I hope you know how much I love you. Part of that is selfish; most of it is really for you. If you're filled with love, it will spill out and come back to you. I'm not sure of too many things, but I'm sure about that one.
Happy Father's Day, son. Let's eat Chinese food.