Mullen brings a common-sense approach to job

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Michael J. Mullen talks to Daley Center juries from a podium that he brings to court.

That’s not an unusual practice, but Mullen’s podium could be the only one in the courthouse that features a few drops of paint. It was a gift from one of Mullen’s daughters, who as a child apparently thought it would look better with pastel splashes.

“I cannot try a case without that podium,” Mullen said. “There’s my superstition.”

Mullen’s peers cite his approach from that wooden stand as the reason for his longevity in defending clients in Cook County Circuit Court and other venues. During the last 29 years, defendants hired him to prevent or limit damages in lawsuits brought by some of the city’s most well-known plaintiff lawyers.

Mullen is a shareholder at Kralovec & Marquard Chtd., where he runs…the day-to-day business of the firm and defends clients and their insurance companies in cases primarily involving product liability, commercial vehicle accidents, premises liability and construction accidents. Many cases involve catastrophic injuries or death.

“When you get into the really big ones, where the demands are millions and millions of dollars, the insurance companies and defendants want to sometimes take a chance and try those cases,” Mullen said. “Because there’s so much at stake.

“And you’re on stage; you really are. And your job is, to the best you can, to convince these 12 people that your position is the correct one. At the end of the day, the success I’ve had is attributable to the fact that the jury comes to appreciate that I am no different than the 12 of them in the box.

“Then, when it comes to closing argument, there’s a trust relationship — hopefully — and as long as I’m not saying something ridiculous, they might give me the benefit of the doubt.”

Mullen’s style attracts respect from the plaintiff attorneys he competes against.

“While we disagree and will fight hard against each other, Mike does it in a very professional way both inside the courtroom and outside the courtroom,” said Peter J. Flowers of Foote, Meyers, Mielke & Flowers LLC.

“You can tell from my world, there’s a lot of garbage that goes on inside a trial — a lot of wasted time that isn’t necessary. With Mullen, that doesn’t happen. You get to the substantive issues.”

A South Side native who grew up near 79th Street and Kedzie Avenue, Mullen became the first in his family to earn a college degree. He considered joining the priesthood but decided to become a trial lawyer.

To help pay for law school, he worked as a concrete laborer during the day and poured foundations for homes. Four nights a week, he attended The John Marshall Law School.

He earned a law degree in 1982 and joined Kralovec & Marquard at the start of the following year. He never left the firm.

When he starts evaluating a case for a client, Mullen prepares a report that indicates the probability of prevailing and a recommended settlement. He also calls the Jury Verdict Reporter to review similar cases and estimate a possible verdict amount that a jury could order his client to pay.

“Our job as defense lawyers is a difficult one. It really is,” Mullen said. “You try to do the right thing. I typically make a good offer or settlement; what I think is fair to resolve a case. We won’t try cases unless we truly believe that our client doesn’t owe any money, did nothing wrong or is not negligent. Or if the sum of money that’s being requested is just too much.”

When a case proceeds to trial, the most challenging part is preparing the closing argument, Mullen said.

“A lot of guys say they do their closing before the trial starts. I can’t. I do it the night before I have to close. So I get two or three hours of sleep the night before closing,” he said.

Unlike a plaintiff attorney, a defense lawyer can actually view a loss as a win.

If the jury finds the defendant guilty and awards a verdict that’s lower than the amount that the defendant offered to settle either before or during the trial, a defense lawyer may consider that result a victory.

In high-stakes cases, plaintiff and defense lawyers may negotiate a high-low agreement, which is sort of a gamble that controls the verdict.

The lawyers negotiate a range of two numbers, such as $10 million to $20 million. It guarantees that the plaintiff will receive at least $10 million and no more than $20 million.

If jurors return a verdict of not guilty, the plaintiff receives $10 million. If jurors find the defendant guilty and award less than $10 million, the plaintiff still gets $10 million. If the jury awards an amount between $10 million and $20 million, the defendant pays the jury-specified amount. And if jurors issue a verdict that  exceeds $20 million, the plaintiff gets $20 million.

For the defendant, the high- low agreement typically caps the highest recovery amount at the defendant’s extent of insurance coverage. In a typical high-low agreement, both sides forfeit the right to appeal.

“I used to say, ‘I don’t operate with a safety net.’ I would laugh at high-lows,” Mullen said. “But I’ve come over the years to realize how important they are. In bigger cases they make a lot of sense. And I’m hearing more and more about them in big cases.”

In a case last year, Mullen negotiated a $5 million to $15 million high-low agreement in a suit that involved a man who died about five years after suffering serious burns.

The defendant’s excess insurance carrier hired Mullen to monitor the trial. The jury returned a verdict in favor of the defendant, and the agreement required the defendant to pay $5 million to the man’s estate through its insurance carrier.

Despite the payout, Mullen  still counts the case as a victory because the agreement ensured that the excess insurance carrier didn’t need to tap into a $30 million insurance policy.

Last month, Mullen represented a defendant trucking company in a case that involved a man who suffered paralysis below his chest after a car accident. Mullen’s client admitted liability for the accident, so the case proceeded on damages only.

The jury returned a $23 million verdict, but due to the high-low agreement that ranged from $25 million to $50 million, the victim received $25 million.

That’s another case that Mullen cites as a victory given that the plaintiff’s lawyer requested $102 million.

Mullen, 56, is married to Susan and has two adult daughters, Kate and Ann. He said he “can’t help but be touched” by the physical and emotional injuries that plaintiffs allege in the cases he defends clients against.

“I feel for them; I really do.  And that dovetails in with my desire to be fair in resolving the case,” Mullen said. “You have to be a little bit like a clinician, somewhat like a doctor — a little bit detached just to protect yourself emotionally.”

When a jury returns a verdict, Mullen tries to shake hands with the plaintiffs.

“Sometimes they’re cold because they perceive me as an impediment to what they think is justice,” Mullen said. “But every once in a while, they thank me. They realize that I’m a decent guy and I can feel for their loss.”

Kevin P. Durkin, a plaintiff lawyer at Clifford Law Offices, said Mullen brings a common- sense approach to trials to help him win favor with jurors.

“Mike comes out very well in every case,” Durkin said.

“A guy like Mike — you see in the major decisions because the people who make the decisions for these big (insurance) carriers trust him. And it’s for a reason. The insurance companies see what the results are.”

BY PAT MILHIZER
Law Bulletin staff writer

Chicago Daily Law Bulletin

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