Getting Even

Robert L. Habush went into the law reluctantly; now Wisconsin’s Trial Lawyer of the Year award is named after him.

Published in 2005 Wisconsin Super Lawyers — November 2005

In the summer of 1999, during construction of Milwaukee’s Miller Park baseball stadium, a 45-story crane fell in high winds while lifting a 450-ton section of stadium roof. Three ironworkers plummeted to their deaths. One of the victims, sensing that the work site was dangerous, had previously instructed his wife to call attorney Robert L. Habush if anything happened to him, which she did the morning after the accident. Sixteen months later, Habush won a verdict of more than $99 million ($94 million in punitive damages) against Mitsubishi Heavy Industries of America.

The Miller Park case was pure Habush, a man known for his charismatic courtroom presence, exhaustive preparation, creative strategizing and competitive intensity. Once trial preparation began, he never considered settlement. From day one, Habush worked on punitive damages, believing, as did the victims’ widows, that the ironworkers’ deaths resulted not from mere negligence but from a willful disregard for worker safety. Habush himself handled practically all of the depositions. From the start, it seemed, Habush was assembling an intricately drawn battle plan, knowing exactly what was at stake.

“At the beginning of the case, the first [crane] expert I called was Howard Shapiro,” says Chicago defense attorney John Bell of Johnson & Bell, who represented Habush’s opponents. “Bob had already gotten to him. He knew who he had to hire and got to them before I could.”

At trial, in his soft but firm voice, Habush worked the jury and shredded defense experts while laying, piece by piece, a clear foundation for the largest punitive damage award in Wisconsin history. And he loved every minute.

“I don’t think I’ve ever enjoyed myself more or been more enthralling in describing loss,” the 69-year-old Habush says. “I had to fight back.”

Life has an uncanny way of taking us places we never intended to go. Rather than following a straight and predictable path, most can only see in retrospect how the random luck, tragedies and events that take us by surprise ultimately form the people we become. Robert Habush’s career is no exception.

If there was one thing Habush knew while growing up in Whitefish Bay, Wis., it was this: He would never be a lawyer like his father.

Upon graduating from Marquette Law School in 1930, Jesse James Habush was unable to secure employment with Milwaukee’s major firms because he was Jewish. Thus, at the height of the Depression, Habush’s father became a solo practitioner, handling whatever came through the door: divorce, criminal defense, real estate transactions and — in particular — car accidents.

“My dad never saw a car accident he would turn down,” Habush says.

Consumed by his practice and frequently away from home trying cases, Jesse Habush and his son were not close. Feeling ignored by his father kindled a competitive fire in Robert Habush and an abiding desire to do anything but practice law. An accounting major at the University of Wisconsin, Habush briefly flirted with pre-med. Upon graduation, however, he enrolled at Wisconsin’s law school, intent on becoming a tax attorney with one of Milwaukee’s silk stocking firms. Graduating with honors in the top 10 percent of his class, a member of the law review and Order of the Coif, he sent out reams of résumés. Only one firm responded. It was 1961, and little had changed. His religion prevented Robert Habush, like his father, from gaining entry to the city’s elite firms.

Already married to his high school sweetheart, Habush had an infant daughter who, after receiving an inoculation, suffered small seizures and serious developmental delays that were impossible to explain. Robert and Mimi Habush were devastated.

With no job prospects, no insurance and a sick child, Habush returned to Milwaukee. It was then, out of necessity, that Robert Habush did what he’d promised never to do — he joined his father’s firm, where Jesse immediately dumped numerous unwinnable cases in his lap.

“Have fun,” Jesse told his son.

Trying one or two hopeless cases a month, Habush would return home each night and tell Mimi that “juries just don’t like me” and that he should have gone to medical school.

Then two things happened. Toward the end of his first year in practice, Habush started winning a few cases he had no business winning. He came to realize that losing bad cases was sharpening his trial skills in ways that winning easy ones never would have. Medical students practice their surgical craft on cadavers, and that’s what Habush began to call these cases: “My cadavers.”

“You’re on your knees and your facts are so bad that you have to develop compelling advocacy skills,” he says. “You learn to be imaginative and look at every angle, then turn chicken shit into chicken salad.”

The second thing was more elemental: Robert Habush was getting angry. Always competitive, the frustration over his daughter’s illness and the arrogance of insurance attorneys who jerked him around in court were combining to give the young attorney a sense of purpose.

“To hell with tax law,” Habush thought. “I’ll spend the rest of my career getting even.”

A few years after his daughter’s illness began, Habush’s wife learned through another parent that the problems were likely the result of an unstable vaccine manufactured by pharmaceutical giant Parke-Davis. Habush sued and had the neurologist who’d treated his daughter, but kept the cause of the illness secret, testify as his expert. Parke-Davis settled and Habush began a career dedicated to punishing corporate wrongdoing and negligence.

Habush’s most pivotal early case was filed on behalf of a La Crosse, Wis., sawmill worker who lost both legs and a hip while trying to unjam a buzz saw with a stick. Rather than shut the machine off, the man shifted it into neutral — a common practice at the facility. The machine’s carriage, however, caught him from behind and fed him into the saw.

Half a dozen lawyers turned town the case before Jesse gave it to his son just weeks before trial. With a case against the mill impossible under workers’ compensation laws, Habush went against the manufacturer with a product liability cause of action for unsafe design.

Habush, who’d always acted as his own investigative team, had previously never been inside a sawmill. Settlement offers were rebuffed by the company and its insurer. At trial, the judge ruled Habush’s client negligent as a matter of law. Things couldn’t have looked worse. Then the verdict came in: a $650,000 award for the victim.

“You’ve got something going here,” Habush remembers telling himself.

Habush began shifting his focus to product liability, winning a $942,000 verdict shortly thereafter and establishing a reputation as the go-to attorney for such cases in Wisconsin.

But Habush was learning more lessons. He saw that fear of losing was the single biggest problem for a trial attorney. Never again would he be scared of going to trial. “Once you’re afraid,” he says, “you’re screwed.” Instead, he realized, relentless preparation for and willingness to go to trial struck fear into opponents’ hearts. Habush has settled only twice during trial out of the 200-plus cases he’s tried in 44 years.

During the 1970s and 1980s, Habush became Wisconsin’s highest-profile and most successful personal injury attorney. He broke barriers and stirred controversy by being one of the first lawyers in Wisconsin to advertise his firm’s services (now called Habush, Habush & Rottier) shortly after the Supreme Court struck down a ban on consumer marketing of legal services. He became president of the Association of Trial Lawyers of America, taking countless hours from his practice to lobby for consumer and victim rights while trying to stem the tide of anti-litigation forces. He also went on a 15-year win streak, including a $3.9 million verdict against a Wisconsin blood center that had infected a bypass patient with AIDS, six jury verdicts in excess of $1 million and 25 pretrial settlements above the same figure. By the 1990s, he served as lead attorney for Wisconsin against the tobacco industry. Profiled frequently in the local press and national legal publications, he became a well-known figure, often characterized as brazen, charismatic, intimidating and egocentric but, most of all, a pre-eminent courtroom presence. When the Wisconsin Academy of Trial Lawyers instituted its annual Trial Lawyer of the Year award in 2000, it was named after Habush.

“He has a knack for being able to talk with people. He’s pretty soft-spoken at trial, softer than his opponent,” says Mike End, a partner in Milwaukee’s Gray & End, who won the 2000 Robert L. Habush Trial Lawyer of the Year award, “but the result is that the jury is listening attentively to what he says. He also brings with him a sense of humor.”

In one case End attended, Habush faced an objection as to vagueness while cross-examining a defendant. Habush immediately turned to the witness and smiled. “You understand what I was asking, don’t you?”

“It drove home that this was just a dumb objection,” End says.

Cross-examination is where Habush has made much of his reputation. It is a skill, he says, “that not all attorneys develop to the fullest.” Before trial, Habush learns the subject matter in greater depth than the expert, keeping in mind that such witnesses are generalists, but trials are specific.

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