D. Leon Ashford doesn't sidestep the matter. "The first thing I have to tell a client in many cases is, 'You know, there's not much about the law in Alabama that's fair. We've got to find a way around it,'" he says.
The trial lawyer has handled wrongful death and catastrophic injury cases for 35 years at the state's oldest plaintiff's firm, Hare Wynn Newell & Newton in Birmingham, where he's been managing partner since 1996. His firm turns down 95 percent of the medical malpractice cases that come its way. In a speech to the Alabama Medical Association, Ashford said firms like his are a "doctor's best friend" because "we file only the cases that ought to be filed."
He argues that refusing cases benefits all parties. "We do a thorough investigation," he says. "If we don't feel the client has a good case under Alabama law, we explain why, which, if nothing else, allows them to get closure, and avoid two years in a painful process that they'll probably lose."
This stark assessment is a response to, for starters, the Alabama Wrongful Death Act—the only law of its kind in the U.S.—which requires damages to be entirely punitive. Compensatory awards are nonexistent.
To recover damages, the plaintiff must first prove scope and preventability. It's not an easy task considering that most doctors in Alabama have a provision in their professional liability policies that allows the insurance company to void coverage if a doctor accepts responsibility for a medical mistake. Furthermore, any prior history of a doctor's or hospital's neglect or abuse is prohibited from being introduced at trial. Ashford's response? "Welcome to Alabama," he says.
Under the punitive award system, all claimants are considered equal, from "a homeless person to the presiding judge of the Alabama Supreme Court," he says. "There was a time when I couldn't even tell a jury the victim's age. I have judges who still won't let me introduce a picture of what the decedent looked like."
Even so, Ashford points out that in other states, defense lawyers often assess the value of a victim's life by revealing vices or financial troubles in order to lessen compensatory damages. "I've never had to trivialize the loss of life," he says.
And then there's Alabama's contributory negligence law, where plaintiffs who are even 1 percent responsible for their own injuries forgo compensation altogether.
"In losing cases I have jurors shake my hand and take my card and say, 'Maybe someday I can use you,'" he says. "I have to tell you, there's little comfort in that."
Ashford grew up on the outskirts of Athens, a small city roughly 100 miles north of Birmingham. He paints his childhood in Rockwellian tones—a place where his friends were named Jimmy, Billy and Joe, and where he'd spend afternoons playing baseball and fishing in Elk River alongside his dad, English, and some of his four siblings.
His mother, Joyce, was the family's "defining force," he says, "the gentle spirit who made every decision, paid every bill, fixed every meal." She named him David, but it didn't stick. "I never knew why my mother gave me this great name and never used it. I think 'Leon' was her favorite preacher," he says.
In high school, Ashford was a talented baseball player until a congenital back problem sidelined him. Nonetheless, he won an athletic training scholarship to the University of Alabama. He attended the school in the late '60s and early '70s, a few years after Gov. George Wallace stood on the auditorium steps and vowed "segregation forever." He remembers the campus rife with protests against the Vietnam War. Also impressed upon his memory is the legendary football coach Paul "Bear" Bryant, whom he worked for as a trainer. To this day, Ashford respectfully refers to him as Coach Bryant. "I would never call him 'Bear,'" he says.
During spring practice his senior year, Bryant approached Ashford on the field and asked about his post-graduation plans. Ashford said that he'd applied for a training position with the New Orleans Saints. In characteristic fashion, Bryant barked, "Why the hell do you want to do that?" The young student said he couldn't afford law school. "See me in the morning," Bryant ordered, and when Ashford did, Bryant offered to retain him as a trainer the following year and write a letter to the dean. "Coach Bryant had as much to do with me getting into law school as anything," he says.
In 1995, he had a chance to give back to the University of Alabama when the school was hit with major NCAA sanctions. The school retained Ashford's firm to handle the appeal, which resulted in a withdrawal of many penalties, scholarships restored and the exoneration of the school's faculty athletics representative. It was the first successful sanctions appeal in NCAA history.
Around the same time, Ashford represented the family of Mary McGahagin, a woman in her 60s who entered a Mobile hospital for a routine procedure but wound up in a vegetative state and died a few months later. Ashford discovered that the health care provider intentionally altered its records to cover its mistakes—but there was no law against the practice.
The McGahagin family didn't want the provider to walk away quietly, and refused generous settlement offers. After a nine-day trial, the jury awarded the family $22.5 million.
Ashford laments that he's down to trying four or five cases annually from a former average of 12 to 18, but admits that the trend toward arbitration, mediation and settlements benefits both attorneys and clients. "We move a lot more cases," he says.
The dour economic conditions have also had a profound impact on Ashford's practice. When the Big Three auto manufacturers were testifying on Capitol Hill last winter, Ashford's partner Jim Pratt received a call from a claims representative regarding the case of a brain-injured child. One of the automakers rescinded a hefty settlement offer and countered with a much smaller figure.
"They said they only have a few hundred thousand set aside to pay the claim, they have no more money, no prospect of getting more, and 'We may be in bankruptcy soon; you might want to take this.'
"If it's an unfair settlement," he continues. "I don't know how you recommend the family take it. But maybe a few days later, there won't be any settlement. It could be a devastating decision if you make the wrong one."
Just as bad are clients who have structured annuity settlements with companies like American General, the life insurance division of AIG. "I get phone calls from desperate crying parents asking, 'What is going to happen to my child's structured settlement? What can you give us right now that will allow us to get through the night?' I lose sleep every night I get one of those calls," he says.
In recent years, the firm has accepted business litigation cases, including the biggest stockholder's derivative settlement in U.S. history ($300 million in HealthSouth v. UBS and Richard Scrushy), and an ongoing $49 million suit against the failed ANB bank in Arkansas.
Traditionally, Alabama attorneys got business through word-of-mouth, eschewing flashy attention-grabbing headlines, he says. But that's changing due to new technology and "aggressive plaintiff lawyers. The days of going to church on Sunday and getting a referral from a family lawyer are over. The cases are 'gone' before I get there."
Still, Ashford is doing just fine. "I'm at a point in my life where I'm content not only in my own skin," he says, "but in what I set out to do."
And that, it must be said, could only be done in Alabama.