The Catcher of the Lie
Ted Warshafsky on community, Ralph Nader and getting the motherf---ers to fess up
Published in 2008 Wisconsin Super Lawyers Magazine — December 2008 on June 10, 2009
Ted Warshafsky was shopping for a lawn mower at a Wal-Mart store this summer when a sales clerk called out his name. "You're Ted Warshafsky, aren't you?" she asked. It took a moment—Warshafsky hadn't seen her in nearly 25 years—but then he remembered. She was the wife of a man who lost a leg in a farming accident in 1981. With Warshafsky as their lawyer, they received a $2 million settlement after suing the manufacturer of a grinding machine that, Warshafsky argued, had a poorly designed emergency shutoff system.
The woman embraced Warshafsky. "Because of you we were able to send our kids to college," she said. "My husband has learned to walk with a prosthesis. We've been able to travel a little. We owe it all to you."
Warshafsky would have none of it. "Look, I made a hell of a lot of money on your case," he said. "I'm a lawyer. My job is to handle your case. If I get lucky and win, I make some money. It's not some charitable thing."
Warshafsky's peers, on the other hand, will have none of that.
"What drives him is his social conscience. It's representing the little guy who's been wronged," says Victor Harding, a longtime colleague and partner with Warshafsky, Rotter, Tarnoff & Bloch. "He's taken enormous risks and outlays of time to do that."
"One of the most important things Ted has always said is finding the wrong and righting it," says Frank Crivello, another partner, who began his career with Warshafsky while a student, and who has co-authored with him an update of the Trial Handbook for Wisconsin Lawyers. "Ted has never been about the money."
Warshafsky prefers to split the difference. Now 81, and as outspoken and vigorous as ever, he says his mission as a lawyer has always been the same: to bring justice and compensation to those hurt by the negligence and oversights of others, to spark changes that lead to better products and safer practices, and to make a few honest bucks for himself in the process.
In his corner office overlooking Cathedral Square Park in Milwaukee, with his cocker spaniel, Gizmo, curled on a leather sofa, Warshafsky pages through three-ring binders that hold newspaper stories, magazine clippings and old letters relating to the many cases he's handled over his 56-year career. He stops on a story about a $1.2 million medical malpractice verdict from 1985. "I don't remember that one," he says, shaking his head. He flips to another article from 1979 about a $4.9 million verdict for the family of a boy who suffered brain damage in a car accident. That one he remembers; at the time it was the largest award ever granted in Wisconsin.
Framed on a nearby table is the jury form from one of his biggest cases: the $15 million verdict against Wyeth Laboratories on behalf of a couple whose daughter was brain damaged by a DPT (diphtheria, pertussis, tetanus) vaccination. That 1987 verdict was part of a landmark case in which the judge later agreed to make public internal company documents so that doctors, scientists and lawyers could make additional claims of other suspected DPT cases. It was, Warshafsky says, one of his proudest moments.
His life began in poverty. He was born in St. Louis, but his Russian-Jewish mother, Ida, and Polish-Jewish immigrant father, Israel, divorced when he was only 4. His mother moved him and his 10-year-old brother, Shepard, to Chicago, where they lived on the near West and South sides. As a boy Warshafsky worked all kinds of odd jobs: in the kitchen of a barbecue restaurant, as a delivery boy for a drugstore, in a canning plant.
As a young man, he was restless, unsure what to do with his life. He attended the University of Illinois at Urbana-Champaign for less than a semester, then, near the end of 1944, he enlisted in the Marine Corps before being drafted. He was activated in 1945 with the Fleet Marine Force and was assigned to work aboard a ship that transported troops across the Pacific.
After coming home and learning the G.I. Bill would pay for school, Warshafsky decided to try college again. His choice of where to study was inspired during a drive with his uncle to Madison. "It was just the most beautiful place I'd seen in the world," Warshafsky recalls. "We were very poor when I was a kid and I never saw anything as nice as that: lakes, college students."
Intending to study agriculture and become a plant breeder, he could not picture himself hunched over a microscope all day. So he wound up majoring in business administration and accounting. Soon, though, he couldn't imagine a life as an accountant, either.
At a crossroads, a friend suggested law school, and he enrolled at Madison in 1949. "It was a way of avoiding settling down and going to work," he says.
Then the discovery. "I loved it," he says. "I absolutely loved it. I found a career. It was serendipitous."
Warshafsky's wife, Delores, whom he married in 1950, helped support him through law school, but he also earned a few extra bucks playing pool in the student union building. "I played pool all the time, and there was a fair amount of betting," he says. "I made a fair amount of money, but I wasn't a hustler. A pool hustler will sucker somebody in. I didn't do that."
After graduating in 1952, he worked at a small firm in Milwaukee that he assumed was committed to helping poor people. It wasn't. He quit.
Needing to support his family, he took a job at American Motors, operating a stamping machine on the third shift. That same year he opened a law office inside a tailor shop in a heavily Latino area in Milwaukee's South Side. He hung a sign out front: Abogado. "I spoke enough Spanish that I learned in my first semester of high school," he says, "and I knew how to conjugate verbs."
His first clients, most of whom were Spanish speakers, could not always pay, but he did notarizations for free and charged little, if anything, for small criminal cases. A lawyer he knew took jewelry and watches for payment, but Warshafsky detested this idea. Instead, to subsidize his pro bono work, he began to make money with personal injury cases.
In the late 1950s, eager to expand his practice, Warshafsky started attending educational seminars sponsored by the National Association of Claimant Compensation Attorneys. Through the organization he met some sharp litigators, including Melvin Belli, Francis Hare Sr. and Perry Nichols. He also met a young lawyer named Ralph Nader, who spoke to the association about his investigation into the safety of the Chevy Corvair, which he chronicled in his book Unsafe at Any Speed.
"I was hugely impressed with Nader," Warshafsky recalls. "I invited Ralph back [to speak again] and devoted three days to products liability. I felt this was going to dominate consumer-oriented litigation in the near future."
More than that. Warshafsky felt Nader inspired lawyers to seek justice for consumers in a world where corporate greed could have deadly consequences. "Things were changing, society was changing, and Ralph recognized that," Warshafsky says. "He also preached to us that we had a duty to give back. Those of us making a goodly amount of money should give back."
Nader's inspiration took hold. In the 1970s, Warshafsky took on General Motors, claiming that a problem with the rear axle differential was causing spinouts and accidents. "We found out GM knew all about this problem," he says. "Then I got calls from all over the country. And there were a lot of lawsuits around the country. After that, GM adopted the limited slip differential. Now nobody will ever spin out that way."
During the ensuing decades, Warshafsky earned a reputation as a quick study on everything from differentials to jaw implants to vaccines to farm equipment. He also taught trial technique—including a summer course in cross-examination at Harvard Law School.
He handled cases that involved diet pills, medical errors and go-cart accidents. "We saw the law as a vehicle for improving our society and for making money," Warshafsky says. "It's sort of like Adam Smith's enlightened self-interest. So we went after product liability cases."
Warshafsky jokes that many of his victories served to put him out of business. When he succeeds in creating changes in designs or policy, the lawsuits end. "Whenever we're doing something good, making money and doing good, they change the fucking law," he says.
For all his joking, he has a rep as a no-nonsense lawyer. "He doesn't play a lot of games in court or fool around," says defense lawyer James Murray of Peterson, Johnson & Murray in Milwaukee. "He likes to get to the nub of a case."
Murray first met Warshafsky in 1975 and has defended cases against him ever since. "I was just a kid out of law school, and he already was an established lion at the bar," Murray says. "He can be charming when he wants to be, and tough when he has to be. I would consider Ted, even though he's been an adversary, a friend. He's part of a breed that's fading away."
Before Warshafsky recruited him, Victor Harding used to battle against him; he says watching Warshafsky in court was mesmerizing. "He is, bar none, the greatest I've ever seen in cross-examination," Harding says. "There is no one in the country like him. How he did it, I don't know. He would poke a witness here and poke a witness there and would bore in. You sit there in awe and wonder how he does it. He would read weaknesses and was phenomenal at it. And then he would bring it all together in the end, like a Dickens novel."
Harding helped Warshafsky pull off some of those legendary cross-examinations during the Wyeth vaccine case, a mammoth endeavor that spanned 10 years and required the lawyers to review some 40,000 articles and 20,000 documents. "This was before computers and we had all this information to sort out. Today it would take 30 seconds," Harding says.
Warshafsky, lead attorney on the case, often commuted between Milwaukee and Wichita, Kan., for the trial. "Ted would call me every night and say, ‘This is the next witness. What can we do to him?" Harding would find the relevant files and background and feed it to his partner. "We could disarm any expert," Harding says.
Warshafsky still comes into the office five days a week. "I still think I have the ability to analyze complex cases and point them in the right direction. I immodestly think I don't know anybody better in this office to cross-examine adverse witnesses, particularly technical adverse witnesses," he says. "If I have a talent, it's getting those motherfuckers—that's spelled with a small ‘m'—to fess up to the truth. There are some people who are such good liars, and there are some people who are such good catchers, and I think I have that [latter] talent."
While Warshafsky is inspired to continue working, he hopes to pass along his knowledge and skills. "I do recognize that I'm not immortal. I think it's unfair," he adds jokingly. "If there were a just God, I would be immortal because how would the world get by without me?"
McCarthy/Bond in '68
Although he never had any political ambitions, Ted Warshafsky was always interested in politics. Thus, in 1968, he stepped away from his law practice to serve as the field finance director for Minnesota Sen. Eugene McCarthy's presidential campaign, and as vice chairman of McCarthy's delegation to the ill-fated Democratic National Convention in Chicago.
Warshafsky was drawn to McCarthy's support of civil rights, his advocacy for the working class and, most important, his position against the war in Vietnam. "I was very impressed with him," Warshafsky says. "There were a group of us who wanted to get a candidate to run against Johnson on the war issue."
In Chicago, Warshafsky found himself immersed in the chaos, tension and mistrust among police, politicians and protesters. Phone lines to many delegations were mysteriously cut off and police officers raided the hotel rooms of several McCarthy staff members and supporters. "The police burst in and looked around the rooms. They didn't hit or hurt anyone. They just pushed people aside," he says. "They just went through the place, though I don't know what they were looking for."
Outside the convention hall, Warshafsky witnessed the violence on the streets and in Grant Park as police clashed with protesters. "It really was a police riot," he says. "The majority of the kids in Grant Park were just kids. Only a small minority were trashing things."
Inside the convention hall, meanwhile, Warshafsky made history. The delegation wanted to nominate a young civil rights activist named Julian Bond for vice president, making Bond the first black man nominated for the position. "We had maybe five or six minutes to prepare something," Warshafsky says. "We were all hoarse from shouting." Then the group chose Warshafsky to make the nomination speech.
"It was extemporaneous. I had no notes. I had no time to discuss it with anyone," Warshafsky recalls. "It was just off the top of my head. The reason I was picked was not because of my political influence. It was because someone said, ‘We got a trial lawyer here.'"
At 28, Bond was too young to be vice president, so his nomination was not officially recognized. Still, the McCarthy delegation made an important symbolic gesture that was seen on national television and discussed by Walter Cronkite.
Warshafsky considered himself a close friend of McCarthy, who died in 2005, though they had their differences. "He could be arrogant in a condescending way and he could do it quietly. He could hold onto a dislike. He hated the Kennedys," Warshafsky recalls. "If you attacked his personal integrity, you lost him as a friend. If you disagreed vehemently with his well-held, articulated views, you didn't." Warshafsky did the latter; they remained friends.
Even if McCarthy had made it to the White House, Warshafsky says he did not want a Cabinet position or a job in the administration. Instead, he says he would have asked for an ambassador post at some far-off island nation "where there's great weather, fine fishing and surfing."