Lawyers Of The Year 2006
JOHN J. EGAN and EDWARD J. MCDONOUGH JR.
Springfield
John Egan
Born: Sept. 25, 1944, Springfield
Education: Boston College Law School (1969); College of the Holy Cross (1966)
Bar admission: 1969
Professional experience: Egan, Flanagan and Cohen (1969-present); Massachusetts special attorney general (1976-1978); Western District special assistant district attorney (1974-1975); instructor, Western New England College School of Law (1972-1973); staff attorney, Massachusetts Public Defenders (1970-1972)
Professional affiliations: Hampden County, Massachusetts and American bar associations; executive committee of National Association of Diocesan Attorneys; American College of Trial Lawyers
Edward McDonough
Born: Feb. 6, 1955; Worcester
Education: Western New England College School of Law (1981); University of Massachusetts (1977)
Bar admission: 1981
Professional experience: Egan, Flanagan and Cohen (1981-present)
Professional affiliations: Hampden County and Massachusetts bar associations, American College of Trial Lawyers
Law partners John J. Egan and Edward J. McDonough Jr. took on a couple of formidable opponents in courtroom contests earlier this year and demonstrated that a power-packed state bureaucracy and a deep-pocketed corporation may be no match for these two practitioners when they team up on a trial or an appeal.
Both these life-and-death cases involved young people who had been injured. One was an 11-year-old girl, Haleigh Poutre of Westfield, who had been beaten so severely, allegedly by her adoptive mother and stepfather, that she was placed on life support and virtually given up for dead. The other was 29-year-old Patrick O'Connell, who barely survived an inferno in his brand-new Dodge Stratus after the catalytic converter overheated and the car burst into flames while he slept in the back seat on a frosty night outside a Gardner restaurant.
On Jan. 18, one day after the Supreme Judicial Court rejected Egan's impassioned argument that Poutre should not be allowed to die and ruled instead that the life support should be withdrawn, the young girl began to breathe on her own and respond to commands. "The courts wouldn't give her a chance to live, but she gave herself a chance to live," McDonough says of the startling post-appeal developments.
On May 30, after a month-long trial in Hampshire Superior Court in which McDonough went after the manufacturer of the Dodge Stratus, on behalf of Patrick O'Connell, the case settled for an amount believed to be unprecedented in western Massachusetts legal history.
"We work as a team," says Egan. "There's no second chair for us on cases like these. Ed [McDonough] was up more in the O'Connell case than I was; I had the family and did some of the experts. But I argued the SJC case in Poutre; we both wrote the brief."
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Q. Why did you want to get involved in the case of Haleigh Poutre?
EGAN: Initially we didn't, and then we read the medical records and the court records and were struck by the fact that, within less than a week's time of this child coming into the custody of the state, the state was seeking an order which would lead to her death — when the doctors were not in agreement that this was the appropriate thing to do.
McDONOUGH: What struck me was that every lawyer in the case was advocating for her death, including her court-appointed lawyer. In other words, nobody was even in the courtroom advocating to give her a chance to live. And that made it an easy challenge to pick up.
Q. How did you actually get the case?
EGAN: Initially, the stepfather's criminal lawyer came to us and asked us to argue the case before the Supreme Court. ... My initial response was that it was nothing we'd be interested in. [But] the criminal lawyer asked me to simply take a weekend and read the documents. After we read the documents, Ed and I talked , and clearly we felt this child had been poorly, poorly served, and we decided to get in. But at that point, we decided we would not take compensation because we were really trying to advance the interests of the child. And the stepfather knew that and accepted that and was independently advised by another lawyer.
Q. What strategy did you settle on?
EGAN: It was a very difficult thing because everyone's reaction was to focus on how bad the stepfather might be, as opposed to what was in the best interests of this child. Overcoming that, with judges, was extremely difficult. All they wanted to focus in on was: "You're trying to help this person who's accused of this horrible conduct." All we kept saying to them again and again and again — and I don't think they ever got it — was: "It's not about him, it's about her."
Ed was particularly effective in trying to carry that message: that we want you [the SJC] to focus on the protections this child has not had, and how miserably the [Department of Social Services] and the court have failed her, and let the criminal prosecution deal with what the stepfather did or didn't do.
Q. After the SJC ruled for your opponent and said that life support could be removed, did you give any thought to further appeal?
EGAN: We were crestfallen. I couldn't believe the opinion, and we immediately started, on the day it was released, exploring going into federal court. And we were doing that, that day, and that night a reporter from The Globe and a reporter from AP called me and said, "Have you heard that [Poutre] has responded?"
McDONOUGH: I remember Jack told me, and I felt a smile come across my face because this is what I thought: The courts wouldn't give her a chance to live, but she gave herself a chance to live. ... This little child is not going to take "no" for an answer from the Supreme Judicial Court. And I just remember shaking my head and saying, "She's a lot tougher than I thought." That was just when we were thinking: Where do we go from here? And then what we heard was that she had picked up a toy and she was waving it.
Q. One of your law partners has cast your argument as one that contrasted the protection given when someone's liberty is at stake with the lack of protection when someone's life is at stake? Is that how you see it?
EGAN: The argument goes this way: There are very rare circumstances in which the state will take your life. But this order would have taken this child's life for sure, no question about it. When someone's liberty is at stake in a criminal case, they get a public jury trial, generally in the Superior Court, and the burden of proof is evidence beyond a reasonable doubt. And these are people who are accused of crimes!
This is an innocent child, with no parents to defend her, and she has a closed trial, not with a jury, and the burden of proof is not reasonable doubt; it's the fair preponderance of the evidence. This is the state seeking to end a life, and the Supreme Court allows them to do it with the least mount of protection available to the child, and the medical evidence was split 50-50. ...
Can you imagine if it were a capital punishment case and the experts agreed it was 50-50 on whether the DNA was right — that you'd take a life on that?
Q. Does this case bear any resemblance to the much-publicized Terri Schiavo right-to-die case that caused such a stir in March 2005?
McDONOUGH: The Schiavo thing was dying down, and then this [Poutre case] came up. I was getting a lot of the media on that, and I was saying, "No, no, this is the opposite. This is 11 days, not 15 years [that Schiavo was in a coma and then a persistent vegetative state]."
EGAN: I believed one of the reasons this case moved so quickly and received such short shrift from all of the courts was that they were afraid of another Schiavo, and they didn't want that spectacle in Massachusetts. And I believe they were willing to sacrifice, perhaps unknowingly, this child's rights and ultimately her life to avoid that type of case. That's another reason that we got involved.
Q. Do you visit the little girl in the hospital?
EGAN: We have never seen her; we have never been allowed to see her. The grandmother has reported publicly that [Poutre] has made progress, that she sits up, that she's regaining speech. ... I don't think we've heard the end of this. And I really think some protection has to be enacted for these children because, honestly, the agency failed her miserably. We thought the courts would be her protector, and they ended up being the facilitator for this.
Q. You also were involved in another high-profile case in Massachusetts this year involving charges of a defectively designed car. What was at stake in that one?
McDONOUGH: Patrick O'Connell was a 29-year-old construction worker who had bought a new car, a Dodge Stratus. He comes from modest means; this was his first car. He went out with a friend to a restaurant in Gardner. After a while, he decided he wanted to go home. He didn't want to leave his friend without a ride home, but he didn't feel well. So he lay down in the back seat of the car, and he kept the car running because it was freezing out. The catalytic converter overheated, and there was this smoldering fire. Patrick inhaled toxic fumes, which knocked him out, and there was an inferno. [It] was a ball of fire, and no one knew anyone was in the car. The firefighters put the fire out, the windows collapse, and there's a kid in there.
It's just a miracle he survived the fire. All his fingers on his hands were burned off, and his back was completely burned. He basically lost the use of his hands. He was in a coma for about two months while six or seven skin-graft surgeries were done to give his back back to him. He's just a tough, tough kid — a parallel to Haleigh. This kid was just not going to die.
Q. What was your strategy in going after the car manufacturer, DaimlerChrysler?
EGAN: It was a battle of experts because there were multiple experts on what's called cause and origin [of the fire], multiple experts on both sides on the design, whether or not the design was defective. Chrysler had a stable of nationally recognized experts. One of them was a three-time Indianapolis 500 winner. He came, with three championship rings, to the deposition from New Mexico to testify that [Chrysler] make a great car and that this was the fault of Patrick. And we knew his charges were over $100,000. They never put him on in the trial because, quite frankly, the judge ruled he wasn't qualified.
We were very fortunate to find very good experts. The doctor from UMass, the chief of plastic surgery, was a magnificent physician, and he was a magnificent witness. Then we had the BUC ["build up components"]. Chrysler took three Dodge Stratuses and cut into them and destroyed them and created a life-size model.
McDONOUGH: They couldn't get the model in the courtroom. What the judge did was amazing. There's a barroom in the lower level of the Hotel Northampton. Judge [Judd J.] Carhart went down and looked at it and said, "I'm going to allow Chrysler to present this model through its expert" [in the barroom]. They wheeled it in there; [Carhart] set up 14 chairs for the jury, and we had this testimony in a bar. It was unbelievable.
Q. How did the settlement in this case come about?
EGAN: The jury was out for two days before a Memorial Day weekend and came back Tuesday and said they were deadlocked 9-5 in favor of the plaintiff. The judge urged them to keep trying. At end of day, they came back in and did not report any deadlock and said, "We'll come back to work tomorrow."
Judge Carhart called us back in that Tuesday night and said, "Look, someone's going to be soundly disappointed when this verdict comes in. It could be the plaintiff, or it could be the defendant. I think you ought to consider where you stand on settlement." He came up with a number he thought was an appropriate number for settlement and simply asked us both to talk with our clients. He said, "If the jury doesn't come to a verdict, I have no choice but to declare a mistrial, and I will start this trial again next week."
McDONOUGH: That was the key. I think that focused everyone on the task at hand and did not allow the parties to kind of drift away and get off the track.
Q. In the end, did you go with the figure that the judge recommended?
EGAN: In the end, we did.
Q. You can't name the figure?
EGAN: Chrysler required confidentiality. [But] our client was very well satisfied.
Q. Why do you think the public perception of trial lawyers is what it is, notwithstanding a win for your client in a case like this one?
McDONOUGH: I have a theory on that. I don't want to bash the media, but it's understandable the media will fasten onto the weird case, will latch onto a case that sounds frivolous. But if you're on a contingent-fee basis, if you take a frivolous case, you're probably not going to get paid. So why would you take it? So I think, because the public only knows about the cases that they're spoon-fed, they only hear about the aberrations.
And the other reason is oftentimes in a case like this, where in order to get your client their compensation you have to agree to confidentiality, they don't hear about the more meritorious cases. If a case is obviously meritorious, it will settle, and you won't have a trial. So, most of the cases that go to trial tend to be the more difficult cases.
EGAN: My theory is much simpler than that, which is: People don't like the institution [the bar], they don't like trial lawyers, but they all like their own trial lawyers. If they're injured and their lawyer does his job, they will be satisfied. So I just think it's sort of a dissatisfaction that's generated against a nameless, faceless group of people. But when individuals actually need a lawyer to help them and that lawyer does his or her job well, they're very appreciative.
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John Egan on ...
His most memorable moment at law school: Probably being grilled by Professor James Smith, now deceased, at BC Law School, known as "Jimmy Torts." He made a fool out of me.
Highlight of his legal career: Although it's still not over, I think it may end up being the Haleigh Poutre case.
How he celebrates a big win: I pick up the next file.
How he deals with a big loss: I pick up the next file.
His role models: My father, Jim Egan; my partner, Bill Flanagan; and the late Charlie Cohen
One thing he would change about the practice of law: I would hope to find a way to let more people know about the good work that's being done by lawyers, judges and court personnel and in corrections. I just don't think that gets through in the schools or to the public.
What he does to relax: I like to read, spend time with my family and, now, curse myself on the golf course.
His all-time favorite film or book: "To Kill a Mockingbird" (film)
One thing about him that might surprise other people: I'm nice.
What has kept him in the practice of law: I love it. I'm fortunate that the people I try cases with and against have been very professional and very civil, and every once in a while a case comes along that might give you the opportunity to change a life or to change the law. And those are precious, precious moments.
The biggest challenge facing Massachusetts courts: Public confidence. I think it's a big mistake for the courts and the judges not to be more open about their decisions, their reasons for their decisions, and not to be more accessible to the media.
The most important legal decision of the last 25 years: Haleigh Poutre's case because it shows how at risk children are in our court system
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Edward McDonough on ...
His most memorable moment at law school: I got the worst mark in my class in my criminal procedure course, and I was devastated. I went to see the professor [and] he felt so badly for me, he asked me if I knew Jack Egan, and I said I did not. But he introduced me to Jack Egan, and that's how I got this job.
Highlight of his legal career: I have to say it was a case that I won — Cosmos [v. Clerk, Hampden Superior Court]. I made a very tough decision to sue my own clerk of courts, who the jury agreed was tormenting my client and drove him out of his job and ruined a career.
How he celebrates a big win: I buy my client a drink.
How he deals with a big loss: I buy my client a drink.
His role models: My partner Bill Flanagan, who taught me to find the fun side [of practicing law], and Jack
One thing he would change about the practice of law: Just somehow to make it easier ... and I think the technology is making it easier. We need more and more of that.
What he does to relax: I play with my new baby. He's only 1 year old, and he relaxes me a lot. He's an absolute joy.
His all-time favorite film or book: "Cool Hand Luke" and "The Verdict" (films); "Of Mice and Men" (book)
One thing about him that might surprise other people: I'm not as hard a worker as some people might think. I have a terrible lazy streak, which I have to fight constantly.
What has kept him in the practice of law: I got some great advice about 20 years ago from a mentor, who told me that if you wanted to stay in trial work a long time, you had to find the fun side. I never forgot that, and I always look for the fun side, and so far I've always found it.
The biggest challenge facing Massachusetts courts: When you have a [judge] job for life, it's tough to show that you're accountable. I think it's also tough for the public to bring accountability to that process, and it's tough for the judges to demonstrate that they're accountable.
The most important legal decision of the last 25 years: I'm going to go with the Goodridge decision on gay marriage ... because it will examine the extent to which our society will defer to the courts on matters of public policy.