A Measure of Endurance: The Unlikely Triumph of Steven Sharp.

The current fight over tort law is not the first--but a new book may register the strongest resonance yet with lawyers, potential jurors, and policy-makers on both sides of the debate.

A Measure of Endurance: The Unlikely Triumph of Steven Sharp, tells the story that helped move President Bill Clinton to veto the Product Liability Reform Act of 1997.

As Sharp testified at a Senate Commerce Committee bearing, "If this bill would have been in effect when my accident happened, I would not have had my day in court. And I needed it. And everybody else like me does, too."

His case also led ATLA to establish an annual award in Sharp's name, honoring lawyers and their clients whose cases illustrate the civil justice system at its best. But nothing has brought his story home to mainstream America as forcefully as this book.

In the summer between his sophomore and junior years in high school, Sharp lost both arms when the tractor that drove the hay baler he was cleaning suddenly self started and, as he put it, "the baler are my hands." The 17-year-old boy, who had operated farm machinery since he was 9, insisted he had turned off the power before hopping off to clean the baler. In fact, the same self-start problem had been at issue when a man's arm was mangled in 1986 and when another farmer was decapitated in 1990.

Three years after Sharp filed suit in 1993, the trial jury awarded him several million dollars, finding the tractor maker negligent in its product's design and warnings. Three more years passed before the Wisconsin Supreme Court unanimously upheld the verdict. (Sharp ex rel. Gordon v. Case Corp., 595 N.W.2d 380 (Wis. 1999).)

It would have cost the manufacturer 70 cents to fix the defective part; as of autumn 2002, when the book was completed, the company had neither recalled the tractor nor advised its dealers and customers of the problem. Used tractors of the same model were still readily available.

More than the law

Bill Maturing, the Minneapolis-based lawyer who represented Sharp, recently told TRIAL that A Measure of Endurance is "all record-based," and that although it is a book about law, it is about far more. "It's a cross between A River Runs Through It, Tuesdays with Morrie, and A Civil Action."

He marvels at how his former client, now friend, got on with his life--from daily routines to hunting, fishing, and even skiing, which he took up after his injury. Now 28, Sharp dates, Manning said, and "he probably will get married someday. But he will never hold his child's hand."

It is this personal quality that drives both the book and Manning himself. "One tries to reach a point where you're working out of an inner fire rather than slogging through the outer part of life every day," he said. "You have a mission to care for who your clients are.... It's all inner journey: When you come out, you're different."

That journey led a retired University of Minnesota professor and prize-winning poetry translator to write his first book. For several years, William Mishler had run a literary study group that included Manning, and the two men were close. One day Manning told Mishler about a portentous dream Sharp had (it's described in the book), and the professor asked to meet him. They had breakfast together shortly after the state supreme court ruling and later, Mishler and Sharp spent six days fishing in Oregon together.

When Mishler returned home, he wrote the first three chapters of A Measure of Endurance. "The editor was knocked out," Manning recalled. "He said, 'This guy can write like a poet.'"

In the book's "Note to the Reader," Mishler wrote that "in Bill Manning, Sharp had found a kind of legal counterpart to himself, a character who showed a comparable degree of grit, energy, and idealism in pursuit of the goal of obtaining justice."

Keen legal strategizing is part of the story, too. The Sharp case, Manning said, "illustrates the importance of asserting legal theories in the trial phase that you may need on appeal.... We had to meet the threshold of evidence on the postsale duty to warn before we could even get it to the jury. Had we not done that and proved our theory, we might not have won on appeal." Proving the theory was difficult: There was no statutory support, only case law.

The ramifications of the case, however, transcend the realm of legal theory. In presenting the first Steven J. Sharp Public Service Award to its namesake and Manning at ATLA's Winter Convention in 1997, the association's then-president, Howard Twiggs, said Sharp's case and those of future award recipients help convey "what is at stake when our opponents push for radical liability limits."

A Measure of Endurance could well have an emotional impact unmatched by popular novels that trace the course of legal cases. "If the book is a success," Manning said, "it's a very positive thing for the [tort 'reform'] debate. The Republicans are not going to give up."

A Measure of Endurance: The Unlikely Triumph of Steven Sharp

William Mishler Alfred A. Knopf www.aaknopf.com 308 pp., $24

Reviewed by REBECCA PORTER

Long ago I was the book review editor for TRIAL, and occasionally a publisher still misdirects a volume my way. Thus, a preview copy of A Measure of Endurance: The Unlikely Triumph of Steven Sharp landed on my desk without fanfare.

William Mishler, a retired University of Minnesota professor of Scandinavian languages and poetry, met an extraordinary young man named Steven Sharp, whose story became Mishler's first and only book. The author, who died in 2002, clearly was captivated by Sharp's unflagging spirit in the face of horrible disfigurement and a protracted legal battle to force a huge manufacturer to admit its negligence.

Through his friendship with attorney Bill Manning, Mishler met Sharp seven years after his arms were severed by a hay baler. "Ten minutes after we had begun our conversation," the author wrote in a note at the book's end, "I knew I wanted to write his story, not primarily because of the dreadful ordeal he bad undergone or the remarkable recovery he had accomplished, but rather because of the remarkable qualities of courage, humor, and resilience he presently manifested. I suspected these must have been his to a remarkable degree before they became tested, the accident and legal trial serving as a kind of compound crucible that had put them indisputably in evidence."

By combing the trial records and interviewing the people of Sharp's community in remote Eagle Valley, Oregon, Mishler delved as much as possible into his protagonist's thoughts and emotions, as well as the mind-set of others involved in the trial. Without a hint of melodrama, his tale is matter of fact--in the truest sense--and sensitively told. Mishler carefully sets up the history of the area and its residents so that readers from other parts of the country and other walks of life can understand the lifestyle and motivations of the Eagle Valley farmers. For example, he includes an incident in which a neighbor's three border collies attack the sheep they were trained to guard. Mishler adds no emotion to the account when the neighbor hands a gun to Sharp and tells him to shoot the maimed sheep before shooting the beloved dogs. It is a fact of life that feral dogs are no longer of use. The author allows the neighbor's terse directive and few sentences afterward to relay the tenor of the scene.

Many ATLA members will be familiar with the story of Steven Sharp. In 1992, at 17, he was finishing a summer job baling hay for his neighbor, Dwight Saunders, using a Heston baler and a Case 970 tractor that was more than 15 years old. Sharp's mechanic-father, R.E., had replaced the tractor's Power Take-Off (PTO) unit--which runs attached machinery--three times because the PTO's clutch plates burned out and the local Case representative told him the unit could not be repaired. He never had cause to take the unit apart, so he never saw--nor would he have recognized--that a badly designed rod inside the PTO could allow it to engage if its on/off lever was even a fraction of an inch out of place. Saunders taught Sharp how to use the tractor and baler, warning that he had lost two fingertips because he left the PTO on while pulling hay from the baler. He told the boy to always push the PTO lever fully forward to its off position.

On the last day of his summer job, Steven saw that the baler was pushing a pile of hay ahead of it instead of pulling the hay into its rollers. He shut off the PTO. Leaving the tractor running, as was standard practice among farmers, he began to clear the wisps of hay from the front of the baler when the machine suddenly came to life and pulled his left hand, then his right, between the rollers.

"The baler was working with the force of 90 horsepower behind it, drawing him in like any sheaf to be crushed.... By bracing his forehead, stomach, and knees against the unmoving parts of the baler and pulling with all his power, he was able to slow the rate at which he was being drawn into the machine," wrote Mishler. Again, he lets the facts speak for themselves: "30 to 40 minutes later, [Sharp] broke free of the baler."

Mishler then unfolds the story as it happened, through Sharp's self-doubt as to fault, his long struggle toward rehabilitation and the toll on his family, and their decision to sue Case after a friend handed them a clipping from an old agricultural journal. That clipping connected them with Minneapolis lawyer Leo Feeney. The author tells how Feeney, who had handled a wrongful death claim against Case involving the same tractor, passed the case to Manning, a partner in the firm. The book provides details of grueling depositions and the months leading up to trial. It is only when Steven takes the stand to testify that the reader finally fully understands the true horror he faced and the courage of his actions.

Mishler organized his book like a trial, so that the reader receives information sooner, but in much the same way the jury did. While the reader is privy to more than the jurors ever knew, this approach gives the book balance and a certain natural suspense. For example, the author includes the jury verdict form in its entirety, then replays the scene in which the judge reads the answers one by one, re-creating the palpable tension that those in the courtroom must have endured.

Mishler truncates the slog of litigation that A Civil Action mercilessly did not, while presenting an honest account of Manning's dedication and dogged pursuit of detail in preparing Sharp's case. After the verdict, the author skates ahead three long years until Sharp's victory is upheld by the Wisconsin Supreme Court. Mishler explains in his "Note to the Reader" why Case's point of view is represented in the book only through official testimony: The corporation and its lawyers would not reply to his repeated requests for information from their side.

A Measure of Endurance weaves salient points, just enough background, and verbatim testimony into a seamless story that's nearly impossible to put down. It's no wonder that ATLA chose to name its annual public service award--presented to attorneys and clients whose cases tell the story of American civil justice--after Steven, who would have been barred from suing Case if proposed federal legislation setting a statute of repose in products liability cases had passed. His story showed lawmakers how the bill would deprive injured people of access to justice.

Cases like Steven's can make a difference. Whether Mishler fully realized this when he began writing is unknown. But every trial lawyer who has laced hostile stereotypes personally should carry a copy of this book to lend the critics. Tell them to read it before they go arty further. Say, "This is why I do what I do."

REBECCA PORTER is an associate editor of TRIAL.