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Benedict Morelli Feels Your Pain

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Morelli separated from his first wife in 1978, the same year he met Arlene Kosarin. A petite brunette who was working as a textbook art director, the future second Mrs. Morelli was sitting in the Manhattan civil-court jury-selection pool when Morelli wandered over and they got to talking about a case he was handling. Arlene gave up her career to spend the early part of their marriage raising the couple's two boys at home. Though Morelli is Catholic, the kids are being raised Jewish, just as his wife had been. From the start, she wasn't shy about editing her husband's courtroom performance; she prescreened his summations and openings and in 1982, was so nervous about one jury deliberation that she went downtown to sit with Ben to await the verdict. When Morelli won, he remembers, "I said, 'There's a problem. You have to come to every verdict now.' " So she did.

He started performing his openings and summations for her and taking comments. She never missed a verdict until February 9, 1989, the day she delivered their second son. It was also the day Morelli lost his first case -- a verdict that he's since successfully reversed. And when Morelli started his own firm in 1998, he brought his wife on to manage the office full-time. "She's always continued to be my juror," Morelli says.

Four years ago, Morelli brought his first-born son, then 11, to watch him sum up a trial for the very first time -- the Case of the Woman Who Had Lung Surgery and Woke Up With a Useless Left Hand. He watched as his father ranted and gesticulated before the jury for an hour. When Morelli was finished, his son was aghast -- "Dad, why are you acting so crazy?" he asked. When the jury delivered a $40 million verdict, the kid understood.

Most personal-injury and medical-malpractice lawyers spend more time brokering settlements in back rooms than trying cases in court. But Morelli is now one of a half-dozen or so seasoned trial lawyers in New York, hired guns brought in to try cases less-experienced lawyers can't handle alone. When other lawyers have a case that is likely to go to trial, they may refer it to specialists like Morelli to intimidate the other side. Once Morelli is onboard, the settlement price shoots up, sometimes doubling, and becomes nonnegotiable. Even then, since starting his new firm two years ago, Morelli has tried just one case; the rest have been settled, he claims, for the price he had set.

Still, some trial lawyers, a competitive and skeptical lot by nature, take issue with Morelli's "undefeated" claim. Even if it's true, they wonder whether Morelli would really consider, for instance, a $1 million jury verdict in a case he could have settled for $2 million to be a victory. They say, as Abraham Lincoln is reputed to have said, that a lawyer who hasn't lost a case has never really tried one. They wonder which cases Morelli is settling and for how much, and which ones he's asking his associates to try on his behalf. And it's a fact that many of the mammoth verdicts that juries have awarded Morelli have been whittled down during the appeals process to much smaller settlements. (The $40 million verdict his son witnessed, for instance, was eventually settled for just $3 million.)

Morelli stands by his record. "I've handled 300 cases," he says. "I didn't take 300 jury verdicts -- no one in the world takes 300 verdicts. But in twenty years, I have just lost two cases. Both were reversed on appeal. And that's the absolute truth."

Morelli is taking curry's case on contingency; he won't see a penny unless he wins or Morgan Stanley settles -- a tremendous cash outlay that will put pressure on Morelli for some time. Discovery will continue through the spring; a trial may not materialize until the fall. On several occasions, he's already had to go to court to get the firm to release documents. Morelli now has a dozen lawyers working for him; Morgan Stanley has hundreds.

But if the case does make it to trial, Morelli could have the home advantage. "He's someone used to going to court and arguing before a jury on a daily basis," says Carl Erman, one of Morelli's old adversaries. "He has a way of relating to a jury on a common-sense level."

Which -- publicity aside -- might explain why Morelli doesn't seem so eager to settle this one. He positions Curry v. Morgan Stanley Dean Witter the same way he does all his cases -- as David v. Goliath.

"I expect I'm being underestimated," the lawyer says, chin up, eyes twinkling. "They'd love to believe I'm trying to force them into a settlement. They've got the wrong guy. I kid around about it at the office. I say, 'They're cum laude; I'm cum Brooklyn.' "


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