Med-mal attorney Jim Leventhal went from selling suits to winning them
Published in 2017 Colorado Super Lawyers magazine on March 15, 2017
The opposing counsel looked at Jim Leventhal and told him he wasn’t going to win.
It was 1980, and Leventhal, then 32, was taking his first medical malpractice case at his new firm to trial. The facts were in his favor: His client had been prescribed an unnecessary hysterectomy. The problem, his opponent suggested, was that Leventhal was out of his league. He was a clothing salesman turned public defender. He had no formal medical training and was facing off against two seasoned attorneys: one was a doctor-turned-lawyer; the other had never lost a case. Face it, the doctor-turned-lawyer told him at the start of the trial: He had no chance.
“Actually,” replied Leventhal with one of the thousand-watt smiles he’d perfected as a salesman, “I think my chances are less than that.”
The counsel’s tune changed after Leventhal’s blistering cross-examination of his client, and late that night, Leventhal’s opponent called him at home. “You did better than I thought,” he told Leventhal. “How about we settle?” Leventhal got the amount he demanded.
“And the other lawyer who never lost a case,” Leventhal adds, “I guess that changed, because I won that verdict.”
It was the beginning of what would become Leventhal & Puga, one of the most prominent medical malpractice firms in the country. Leventhal has built it piece by piece while racking up honors like becoming the third Colorado lawyer to be granted membership to the Inner Circle of Advocates—an elite organization of the 100 best plaintiff lawyers in the country. He got there by doing what he does best: becoming an expert in every issue he tackles, working as hard as he can and never taking no for an answer, while retaining the affability he perfected while selling shirts and suits to some of the same people he now confronts in the courtroom.
“As a trial lawyer, we go in front of juries who have never seen us before and they are leery of us,” says Leventhal. “It is important that they feel comfortable, that you are honest and show that you are not trying to put something over on them. It is the same thing as selling a suit.”
He’s sitting in the corner office of the sizeable sixth-floor suite his firm occupies in a high-rise in Glendale, not too far from where he first learned these skills: the Squire Shop, the men’s clothing store in Cherry Creek North owned by his parents from 1954 until 1998. By age 12, Leventhal was learning from his father how to connect with customers, gain their confidence and make a sale.
“He was always truly interested in the people who came in, he always made it part of what he was doing to find out who they were, what their background was,” says Leventhal of his father, Harold, who passed away in 2013. “Part of selling somebody something is letting them know that you are genuinely interested in who they are.”
It’s why Leventhal advises anyone who wants to become a trial lawyer to get a sales job first. And it’s why—along with family loyalty—Leventhal would put in shifts now and then at the Squire Shop until it closed.
Once, his worlds collided. Back when he was a public defender, he was picking a jury in his first case of first-degree murder. “A juror responded to the judge’s question about whether he knew any of the parties or their lawyers by saying he knew me, but did not know where he knew me from,” Leventhal says. “When it was my turn to question him, I asked if he wore a 41 short. He smiled and said, ‘You sold me the suit I am wearing.’ My response: ‘I told you it wouldn’t wrinkle.’”
Leventhal only went to the University of Denver Law School because everyone told him a J.D. would open doors in the business world; he fully expected to run the family business.
Then one day, bored from a lecture, he wandered into the Denver City and County Building and watched Rollie Rogers, founder of the Colorado State Public Defender system, defend a client facing murder charges. Rogers got the coroner to admit that he’d found an unknown hair on the victim’s body that didn’t belong to his client, but he no longer had it because of an open window in the morgue.
As Rogers dismantled the case against his client, Leventhal had an epiphany. “When he said that, I felt justice blowing away in the courtroom,” he says. And he remembers thinking, “I can do that; I can be a trial lawyer.”
But after law school, Rogers kept rejecting Leventhal’s attempts to join the public defender’s office. It turned out Rogers thought Leventhal’s nice suits meant he wouldn’t care about poor people. After Rogers’ third letter of rejection, Leventhal called to say, “I reject your rejection.” The chutzpah impressed Rogers, and Leventhal spent two and half years working for him. He briefly joined Kenneth Kripke and Associates before striking out on his own.
Medical malpractice law intrigued him, and there seemed to be ample demand. “I didn’t see many lawyers going into it,” he says.
There are reasons for that. Not only are med-mal cases expensive—Leventhal estimates it now costs between $100,000 and $600,000 to bring one case to trial—it’s hard to persuade a jury to find in your favor. “There is a tendency on the jury’s part to believe that what the doctor did was fine,” says Bradley Levin, a Denver lawyer focusing on insurance bad faith and personal injury cases, who’s worked with Leventhal for years. “If they find some fault with what a doctor did, they might think they could be in harm’s way the next time they go to see a doctor.”
Leventhal was ready to counter the odds through hard work. While a public defender, he was involved in a case in which a psychiatrist retained as a witness for the prosecution had talked circles around him during cross-examination. “I made an absolute fool of myself. He knew the medicine and I had no clue about it,” he says. “I decided I was never going toe to toe with a doctor unless I know as much as he or she does about a particular issue.”
One of his first med-mal cases involved a woman who’d gone into the hospital for a hysterectomy and left without her right leg. Leventhal spent three days a week talking with her. He finally grasped how the surgeon had accidentally cut an artery during her hysterectomy, cutting off the blood supply to her leg. Then the hospital took too long to realize the mistake. He won the case.
Later, Leventhal spent a year and a half untangling a medical mystery. His client, a 15-year-old girl, had suffered a catastrophic brain injury during cardiac bypass surgery. Four cardiac surgeons he consulted said he couldn’t win. It was only after grasping the concepts in cardiopulmonary bypass that Leventhal was able to figure out that the perfusionist—who ran the heart-lung machine that kept the girl alive while the surgeons operated on her unbeating heart—had been operating the machine improperly, depriving her brain of oxygenated blood. Not only did his client win a settlement that helped her meet her medical needs but Children’s Hospital Colorado altered its perfusion program.
Then in 1992 he got involved in perhaps his biggest case. Seven years earlier, a 72-year-old woman had contracted AIDS from donor bone she’d received during a hip replacement. The tissue bank supplying the bone argued it wasn’t at fault, since the HIV test came back negative. But because it could take six months to a year for HIV antibodies to appear in the blood after an infection, banks were supposed to screen out donors from high-risk groups, and Leventhal learned from an anonymous witness they weren’t doing that.
“It was like a John Grisham movie,” says Leventhal. “He met me in Memphis Airport, in disguise, because he was terrified that by talking to me he could lose his life.” The resulting legal victory made nationwide news and led to stricter federal donor screening rules.
It’s all about connecting the dots, says Leventhal, plus being among the first to use new technologies like real-time deposition reporting software and developing short, concise trial performances. “The practice of law is a moving target, and you have to pay attention to what’s going on. Watching shows like L.A. Law and Boston Legal, you see that the arguments are concise and powerful, and the methods of persuasion have changed. You have to be much more concise in your presentation, and that has changed, in part, because of these kinds of shows.”
“I feel very comfortable saying he is the best I have ever worked with and surely one of the best in the nation,” says Robert E. Sanders, a Kentucky personal injury lawyer who’s a close friend and colleague of Leventhal’s. “Jim will study the medicine like a wildman and master it. He can’t be snow-jobbed by anybody using medical jargon because he speaks the language as well as the docs do.”
“He never gives up,” says Michael Bender, former Chief Justice of the Colorado Supreme Court. “He stayed with at least three cases I am aware of for three or four years after suffering substantive losses, and each time emerged as the winner.”
His firm, now including 13 other lawyers, has been responsible for some of the largest medical malpractice verdicts in Colorado history.
“If you had a popularity contest, I suspect Jim wouldn’t win. I hope I wouldn’t either, since winning means you aren’t doing what you need to do as a lawyer,” says Judge Edward Bronfin, who opposed Leventhal on many cases before he was appointed to Colorado’s 2nd District Court in 2008. “But in my relationship with Jim, no matter how contentious a deposition or hearing, there was never, ever a feeling on my part that any of it was personal toward me or that we couldn’t go out after and have a drink.”
Now nearing 70, Leventhal could be lightening his work schedule, and maybe spending more time with his wife, Catherine, a national spokeswoman for the Red Cross, and his 20-year-old son Jake, whose first album with The Jive Tribe just hit iTunes. He could be speaking and teaching more, which he often does as a member of the American Association for Justice’s Board of Governors. He could be out on the slopes.
Instead, he’s still tackling two to four major trials a year.
“The bottom line is what we do makes a big difference in people’s lives because it allows them to survive financially,” he says. “But at the end of the day, your client, who happened to be at the wrong place at the wrong time, is still dead or brain-injured or disfigured, which makes celebrating a victory impossible.”
He also knows there’s still work to be done. According to researchers at Johns Hopkins University, medical malpractice is now the third leading cause of death nationwide. Leventhal says he has limited ability to change that, since Colorado is one of many states that limit medical malpractice damages—a $300,000 maximum on non-economic damages and a soft cap of $1 million for total damages. “The laws are so slanted, we have to turn down 90 percent of the cases that come in,” he says. “It’s nuts. I am hoping I can institute some change at some point so the legislature rights this wrong and makes this fair and victims of medical malpractice can get justice.”
There’s another reason he keeps going into the office: “It’s fun,” he says, “and it’s one hell of a ride.”