The Gladiator

Cynthia Chihak's eat-what-you-kill philosophy

Published in 2009 San Diego Super Lawyers — June 2009

As Cynthia Chihak rises to cross-examine the witness, a physician, she's not much taller standing than the witness is sitting. In a deceptively soothing voice, the slender Chihak asks, "Did your mother ever tell you, 'You should always tell the truth?'"

The physician shifts in his seat and stiffly replies, "I believe we had that discussion at one point."

"So why did you forget it when you came into the courtroom today?" Chihak fires back.

Telling that story in her office near Del Mar, Chihak punctuates it with a throaty laugh, delighting in the event as much now as she did then. "I don't come from a silk-stocking firm," she explains. "I have a street mentality. You eat what you kill. That's what being a plaintiffs' lawyer is all about."

She has successfully settled and litigated hundreds of complex personal injury, medical malpractice and products liability cases, earning six- and seven-figure verdicts for failure to diagnose brain aneurysms, incorrect prescriptions and drug overdoses.

Her office walls are covered with plaques, including Outstanding Trial Lawyer by the Consumer Attorneys of San Diego—which she has won five times—Trial Lawyer of the Year and the Daniel T. Broderick III Memorial Award for the highest standards in civility, integrity and professionalism.

As proud as she is of the latter honor, she cautions, "Being civil doesn't mean being a pushover."

 

Chihak developed her self-described "gladiator mentality" early. "I was an only child and probably should have been a boy," she says. "My dad always said he wanted me to be a doctor or a lawyer, not a nurse or a secretary." She grew up in Lynwood, Calif., only half a block from the site of the Watts riots.

Her intolerance for injustice was set at a young age. In third grade, she went to the grocery store and a little boy tried to steal her bike. "He hit me, I hit him, and I got my bike back," she says. "When I got home, my mom, who was a factory worker, said, 'What's the problem? You got your bike back. Now, here's another quarter—go back to the store and get some milk.'"

While pursuing a double major in chemistry and psychology at UCLA, Chihak put herself through school by working as a cocktail waitress. It was perfect training for a trial lawyer; she learned how to handle people.

"There's nothing like putting down a glass of bourbon in front of a customer, knowing it's bourbon, and having him say [she slips into a slurred, drunken voice], 'This isn't bourbon!'"

She continues: "I'd take the glass into the back. Pour the drink into another glass and bring it back."  The drunk voice again: "That's MUCH better."

Chihak laughs, and says, "The only way I could win was to make the customer happy. I see a lot of trial lawyers who don't realize that, who can't read people." They won't listen to a witness and don't follow up on obvious questions because they are stuck to a script. Or, worse, "they won't realize the jury is glaring at them because they're picking on some poor little nurse. I just think, 'Stop. You're losing.'"

 

Chihak revels in relentless preparation. In one case, a client's prostate cancer became terminal and he wanted to sue his doctor for not giving him a prostate-specific antigen (PSA) test.

"The other side told me they had never lost a PSA case and the offer to settle was zero," she said. "I told my client, who was a friend of a friend, 'I'll take the case but the smart money isn't on me.'"

The tide turned, albeit slowly. An oncology expert, who testified for the defense, stressed the importance of velocity—how fast PSA levels rise, rather than how high the PSA levels are. He based that opinion largely on one study in the New England Journal of Medicine, even though the findings contradicted another study the expert had done himself.

On the stand, Chihak surprised the expert witness by handing him an issue of the Journal of Oncology, which had come out only three days before, reviewing all 87 of the pertinent studies in this area.

"They discovered that the study you are relying on was wrong," Chihak said. "And your own study was right. Did you know that?"

He replied:  "How would I know that? It came out three days ago!"

In the same cross-examination, Chihak further discredited the witness by asking if he was unbiased or had been coaching the defense. When the physician expressed umbrage at the notion, Chihak produced e-mails in which the expert suggested the defense should not agree to move the trial up, because the plaintiff was likely to die soon. Moving the trial up, the physician said, would allow the judge to see him alive, making him more sympathetic. The physician also told the defense lawyer, he would "be very happy with my work."

"Not only are you an advocate for the defense—you auditioned for the job!" Chihak said.

That devastating moment for the physician was the result of Chihak plowing through numerous documents, re-reading them over and over. "I am over-prepared," she says. "If you're not prepared, the doctor will win easily."

The key, she says, is to be ready for deposition, when physicians and experts are not as prepared as they are for trial. "You win or lose in depo," she says. "You have to go in knowing what you want them to say and what position you want them to take."

"She reminds me of a rooster," says defense attorney Michael Neil, who has faced her in court several times. "She just gets in there and fights. But she's smart about it—she knows when to object. Some defense attorneys object to everything and it loses meaning with judges and juries. She's a tiny gal but she's big in the courtroom."

 

When she started out as a young lawyer, Chihak gravitated toward practicing on her own, "taking whatever came through the door." In those days, a $15,000 settlement was huge. In fact, when she received an offer to settle for $160,000 in one malpractice case, she and her then-partner wondered if the decimal point was in the wrong place and called the opposing counsel to make sure it was correct.

She learned quickly. She learned to let arrogant doctors just talk, as one did in a breast reduction case, where he declared, "Of course, she [the plaintiff] brought photos of what she wanted. They all bring photos. And I throw them away. She doesn't know what she wants. I know what she wants."

The doctor, who was irritated by the patient's continual demands for retreatment, finally removed a huge amount of breast tissue and left the skin envelope sagging. "He really deformed her," Chihak says. "I amended the case to include battery, our theory being he gave her a different surgery than she expected—a subcutaneous mastectomy instead of a breast reduction."

The trial judge allowed her to keep the $650,000 pain-and-suffering judgment, even though it exceeded the malpractice limit of $250,000.

"In those days, we had Polaroid photos, and the defendant's lawyer said she wanted copies of some photos," Chihak says. "I told her it would cost $102 to have them made, and she sent me a letter saying she wasn't authorized to spend $102." For a long time, Chihak kept a copy of that letter with the verdict, which totaled more than $1.1 million.

 

Chihak's first husband was a lawyer and her second is a judge. "We are not well-rounded people with a lot of hobbies," she says. "It's kind of sad. Even when we travel, it's with our lawyer groups. Our kids say whenever they're around us, it's like being cross-examined." She pauses a second: "And that's true!  But that's OK—we get stuff out of them and find out what they're doing."

A few weeks ago, Chihak was called to jury duty and by chance assigned to her husband's courtroom. The judge said he normally questioned only the first 24 panelists, but in this case would make an exception and asked number 27, Chihak, to stand. The exchange went something like this:

 

JUDGE: What is your name?

CHIHAK: Cynthia Chihak-Denton.

JUDGE: And do you know or are related to anyone in this courtroom?

CHIHAK: Well, I'm married to you, judge.

JUDGE: And do you promise to do whatever I tell you?

CHIHAK: I promise to follow the law.

JUDGE: You're dismissed.

 

The worst parts of being married to a judge, she says, are not being able to appear before some judges who are friends and having her political activism curtailed.

"I used to be fairly politically active, and he's supposed to be more conservative [about engaging in politics]," she says. "In the last election, I wanted to be involved in so-and-so's campaign and he said, 'Do you really have to do that?" I told him, 'I'll put the sign on my half of the front yard.'"

Did the gladiator get her way? What do you think?

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