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Legal ‘Odd Couple’ formidable in court

One is a measured detail man; the other, an eloquent people person. Together, they won a $15-million settlement from Dillard’s. By JAMIE THOMPSON
Published February 7, 2005 in the St. Petersburg Times

ST. PETERSBURG – The lawyers who won a $15-million settlement from Dillard’s last week are known around the courthouse as “The Odd Couple.”

Justin Johnson looks like he walked out of a Brooks Brothers ad and is meticulously groomed, his brown hair neatly styled. He is a man of detail, feisty but measured, and works to maintain a calm exterior in the courtroom.

Michael Keane is a rounded man who wears a gray beard and suspenders. He walks with a bit of a swagger and has an easy rapport with a jury. He can be impetuous and eloquent, quick on his feet, and prefers to improvise while questioning witnesses.

It is in part their differences that make Johnson and Keane a formidable duo in a courtroom, as evinced in the Dillard’s case, colleagues say.

“It’s a team,” said Tom Masterson, chair of the Florida Bar’s trial lawyers section, “I wouldn’t want to defend against.”

Keane can’t recall the particulars, but remembers his first encounter with Johnson in the courtroom about 20 years ago.

Johnson presented his case, then rested. Opponent Keane asked the judge for a dismissal, saying Johnson had failed to prove anything.

The judge agreed. It’s one of the more embarrassing scenes for a lawyer. As Keane quickly left the courtroom, he saw Johnson struggling to tell his clients what happened.

They met again several years later. Johnson was working on a case about young man who was badly burned when a space heater caught fire in his St. Petersburg apartment. He had expensive medical bills and needed a good settlement.

Johnson was up against experienced defense attorneys and wanted to discuss legal strategy with another lawyer. He went to several in Tampa, but they kept trying to take over his case.

A mutual friend asked Keane to help. Keane gave Johnson a list of about 30 things he would do if he had the time, energy and money.

Johnson did every one of them, Keane said.

“He put together an outstanding case, went in there and blew them away,” Keane said. “It was like watching a butterfly emerge from his cocoon.”

“From then on,” he added, “Justin became a force to be reckoned with.”

The men have been friends ever since.

* * *

Keane, 51, and Johnson, 50, first heard on the news about 5-year-old Kerriana Johnson’s losing three fingers on the down escalator at Dillard’s in Tyrone Square Mall.

Then Keane got a telephone call. His wife’s mother was good friends with someone who knew Kerriana’s family. They needed a good lawyer, and Keane recommended Johnson.

It was Johnson’s specialty: personal injury law. He takes only a small number of clients, mostly serious injury cases that appear headed for trial. Johnson doesn’t advertise, and gets cases by referrals and word of mouth.

Keane’s practice, on the other hand, is wide-ranging. He prides himself in being among a dying breed of lawyers: the generalist. His clients have included Bayfront Medical Center, St. Petersburg police officers and Pinellas County.

Johnson said he would take the escalator case, but wanted Keane’s help.

Then they sat down with Dillard’s to see what the company would offer before filing suit.

“That didn’t go well,” Keane said.

The lawyers began preparing for trial.

* * *

At first it seemed a standard, though tragic, negligence case. Probably an isolated equipment malfunction or poor maintenance of the escalator.

But the lawyers did several things that turned it into a bigger case, Keane said.

The first was exhaustive research at a cost of hundreds of thousands of dollars, Keane said. Johnson wanted to talk to everyone who had witnessed the accident or had a problem on the escalator. But police listed only a few names on the report, and Dillard’s would reveal only what it had to.

Instead of relying on them, Johnson put a picture of the girl holding a teddy bear in the Times, and asked anyone with information to call.

The phone didn’t stop ringing. Person after person called to say their foot had been trapped in the escalator.

The lawyers knew they were dealing with a troubled piece of equipment. Also, they had located dozens of potential witnesses for the trial.

The lawyers then divided the tasks to suit their strengths.

Johnson was lead counsel. He was good with details. He knew a lot about medicine, and would interview Kerriana’s doctors. He also would become an expert on escalators.

Keane’s strength was people. He would factor heavily in jury selection, and take depositions, or pretrial statements, of many of the Dillard’s employees.

The lawyers decided to videotape many depositions because the alternative, reading them in court, is boring and rarely effective, Keane said.

And the videotapes can offer important insights. In this case, they showed some Dillard’s employees struggling to answer questions. One showed a Dillard’s manager constantly looking to her lawyer for help.

And on the videos, Dillard’s employees were not as polished as they eventually were at trial.

The lawyers decided to videotape some company leaders because of what Keane calls the CEO phenomenon: Top executives usually don’t take the time to learn all the details of a case. It can look bad on video.

And after a jury watched some Dillard’s leaders say, “I don’t know,” repeatedly on the videos, it made the company look indifferent to what happened, Keane said.

“It was perfect,” he said.

Another benefit of playing the video depositions is that it allows one side to dominate the performance – few interruptions of opposing counsel, no immediate cross-examination.

“It was a powerful tool,” Keane said. “I’ve never seen jurors take so many notes during depositions.”

* * *

Just before trial Dillard’s offered $9-million, Keane said.

Kerriana’s lawyers rejected it. The company likely wouldn’t allocate any significant funds for the girl’s mother, which was a deal-breaker, Keane said.

“It does no good to create a wealthy Kerriana and do nothing for the rest of the family,” Keane said. “It creates division and unhappiness.”

Also, Kerriana’s lawyers felt they would get at least $9-million at trial.

They had practiced their case in three mock trials – one focused solely on jury selection.

In rented hotel conference rooms, the lawyers performed a miniature version of the case, about four hours of what would ultimately be a two-week trial. They asked experienced colleagues to play Dillard’s lawyers. They also listened to the hired mock jurors deliberate for hours.

“We learned something every time,” Keane said.

For example, they were worried about the issue of parental responsibility. Many mock jurors said that if a child got hurt in a shopping center, the parents were mostly to blame.

But when the lawyers laid out their case, even those jurors were willing to place most of the blame on Dillard’s, rather than the girl’s mother. It made the lawyers confident the parental responsibility question could be overcome, Keane said.

The mock jurors came back with verdicts of $15-million to $22-million. They also imposed punitive damages of an average of $25-million, Keane said.

With those numbers, a $9-million offer seemed too low.

* * *

The trial started on Jan. 18.

Johnson said goodbye to his wife and two children on Sunset Beach, and rented rooms at the Holiday Inn Heritage in St. Petersburg. He had healthy meals delivered every day, a place to take a quick shower and grab a fresh suit.

“At the end of the day, I would have circles under my eyes, and look like a sad sack,” Keane said. “Justin would look perfect.”

Keane decided to stay at home with his wife and two boys. While driving to court, Keane listened to a book on tape, The Cheating Culture , focused in part on corporate scandals. The tape helped him come up with phrases to use during the trial, such as “corporate indifference,” which several jurors said played in their minds during deliberations.

The trial unfolded largely as planned. Kerriana’s lawyers decided not to show the jury all the gruesome pictures from the accident, including images of her detached fingers in the escalator pit. The pictures were compelling, Keane said, but could possibly lead to an appeal, based on trying to provoke the sympathy of the jurors.

They also decided not to have Kerriana testify because doctors said it might be too traumatic. Her mother told jurors about the accident, although she perhaps was not as emotional as lawyers would have liked.

“She is a very quiet person,” Keane said. “She went to the bathroom two or three times to cry during the trial. We would have loved for her to do that in the courtroom. But she’s not that kind of person.”

Keane’s main fear was that Dillard’s would admit complete responsibility. He feared they would tell jurors: “We’re sorry. We’re not putting up any argument. We’re not going to defend ourselves. She’s a great mom, and you should award her a fair sum.”

Keane thought it could make the jury come back with a smaller award because total contrition would strike a chord with jurors. “It would have been hard to overcome,” Keane said. “Then it really becomes a question of how much.”

While Dillard’s attorneys used that strategy in part, accepting some blame, they also pointed a finger at the girl’s mother, saying she, too, was at fault.

Dillard’s lawyers could not be reached for comment.

* * *

The courtroom was packed for closing arguments. Johnson summarized his case and asked the jury for $35.8-million.

“That’s the wages of sin for Dillard’s, who knew this was going to happen,” he said.

Then it was Dillard’s turn.

Attorney Bob Stoler said the company was not the “evil corporate empire.” While Dillard’s had made some mistakes, the girl’s mother was to blame, too. He suggested a fair sum was $2.5-million.

As Stoler spoke, Kerriana’s legal team scribbled dozens of note for Keane. He would handle the rebuttal, the last words the jury would hear before deliberations.

When Stoler told the jury that the sky was the limit for Kerriana, one member of Kerriana’s team, a jury expert, handed Keane a note that read: “Sky’s the limit. Do a ladder.”

Huh? Keane thought.

Then it was time. He walked to the podium with all his notes and, midway through, he thought of the ladder. “The sky’s the limit,” Keane told the jury. “Well, one envisions the picture of a ladder, climbing to the top.

“One good hand,” he said, raising his left hand in the air, as if to grasp the rung of a ladder. “And one bad hand,” he said, trying to grab a rung with only two fingers, like Kerriana.

“That’s going to be her climb,” he said.

His voice boomed across the courtroom. Even one of his own colleagues teared up for the first time in the trial.

* * *

The jury deliberated for a couple of hours, then adjourned because one member was hungry. Jurors returned the next morning and had a verdict by noon: $9.5-million. And yes, they would consider punishing Dillard’s with punitive damages. The jury went to lunch, and Keane began preparing for the punitive phase, which would unfold like a minitrial.

He planned to ask for $22-million to $69-million more.

If a person had a $100,000 house, and needed to be punished, $2,000 might be a reasonable sum, Keane planned to say. The person wouldn’t starve, but might not be able to take a vacation. For Dillard’s, an equivalent sum was about $44-million, Keane said.

Or, he would suggest the jury award Kerriana the equivalent of the company’s sales the day of her accident: $69-million.

He would point out that Dillard’s told shareholders in annual reports that it had no significant litigation pending. “This case didn’t matter to Dillard’s,” he planned to say. “It won’t matter unless you make it matter.”

Keane sat quietly in the courtroom, rehearsing his arguments.

By that time, Dillard’s was ready to deal.

* * *

Lawyers discussed settling the case throughout the trial. The day before the verdict, Dillard’s said it was not prepared to offer more than seven figures.

No deal, Kerriana’s lawyers said.

Keane said they also tried to cut a “high-low deal,” setting the parameters for a settlement to protect both sides. If jurors’ ultimate verdict was below the low number, Dillard’s would pay the agreed-upon low figure. If it was above the high, Dillard’s would pay the already agreed-upon high.

Dillard’s wasn’t interested, Keane said.

Its lead attorney, Stoler, had indicated that he hoped a settlement could be reached, but he was not in charge of the money, Keane said. That was the job of an insurance lawyer sitting quietly in the back of the courtroom.

And after the jury said it would consider punitive damages, that lawyer was ready to deal, Keane said. “The mad scramble began,” Keane said.

The lawyers agreed on $14-million, then fought over one more million. Dillard’s agreed to pay $15-million, including $3.8-million for the girl’s mother, Lori Medvitz.

* * *

In the excitement of victory, Johnson and Keane headed to different bars to celebrate.

Johnson’s group went to Dan Marino’s at BayWalk – more his style. Keane parked himself at the Ferg’s Sports Bar & Grill where Keane, a die-hard Red Sox fan, was a regular. He sipped Budweiser, waiting for Johnson.

Other lawyers on the team came, too: Shirin Vesely, who met Keane when she was a star on the trial team at Stetson’s law school . . .

At the bar, Keane and Johnson sat together, ribbing each other about various gaffes during the trial. (Those conversations belong in the bar, not the newspaper, Keane said.)

Keane went back to work the next day. But Johnson tends to disappear after a trial, Keane said. He spends time with his family, and heads off into the gulf on his boat, Keane said.

Both men, who declined to reveal how much they made on the case, were supposed to meet a reporter for an interview on Friday. But Keane showed up by himself and explained that Johnson had changed his mind.

“He told me he wasn’t good at this kind of thing,” Keane said. Then he shrugged: “That’s Justin.”

“He has zero interest in publicity,” Keane said. “He doesn’t care what other people think of him.”

The lawyers will rest, Keane said. Then they will pick another case, and begin again.

–Jamie Thompson can be reached at 727 893-8455 or jthompson@sptimes.com

[Last modified February 7, 2005, 01:45:08]