Photo by Bryce Vickmark.
Donald Migliori may one day open that Italian restaurant he’s dreamed of owning, but for now his colleagues and clients are grateful that he’s carrying on the fight at Motley Rice. Migliori did not last long as a defense lawyer before joining the plaintiff-side practice focused on large complex litigation, starting with the historic case against Big Tobacco and moving onto asbestos, anti-terrorism, medical device and other claims for injured clients.
Migliori has played a key role in the firm’s multifaceted work on behalf of victims of the Sept. 11 terrorist attacks, leading the civil actions that resulted in settlements for families who sued aviation and security companies. He’s spending much of his time now pursuing claims for people injured by transvaginal and pelvic mesh products. The Cranston, R.I.-born attorney has stayed closed to home by working out of the firm’s Providence office. He did his undergraduate work at Brown University and graduated from the Syracuse University College of Law in 1993.
Lawdragon: Where did your motivation come from to work on the plaintiff side on a case like the tobacco litigation, after doing defense-side work?
Don Migliori: I’m the last of five boys. My father was a physician and my four brothers became surgeons. Even though I wasn’t going into medicine, I was still inspired by my father and interested in doing something impactful. Defending companies didn’t have any fulfillment for me. It was a great way to learn my trade, but actually going over to the plaintiff side and working on litigation – that had massive impact. Not just in terms of civil liability, but in terms of public health and public awareness.
Massive litigation, like tobacco, made me realize that the civil justice system actually had a very powerful forum where you can change how corporations conduct business and hopefully change how companies govern themselves. Getting involved in mass torts allowed me to use my skill set and channel my passion in a way that had a social impact. That’s when I knew I was home to stay. I’ve been here ever since and am now a managing member of this firm. After Ron passed away, I feel an obligation, as do my partners, to continue his vision here.
LD: What role have you played in the different types of litigation the firm has pursued for victims and victim family members of the September 11th terrorist attacks?
DM: While I worked on the terrorism and aviation litigations at the same time, for about eight years, my primary job was running the aviation security side of our 9/11 team and getting those cases ready for trial. We took the depositions of everyone who worked at every checkpoint that day. We have repeatedly said that we have the largest single repository of information about what happened on 9/11, in the airports, to allow those security breaches to occur.
LD: What are your thoughts on the evolution of security from 9/11 to what we have now?
DM: Like other areas in our practice, I think the most important thing that comes out of such litigation is the whole public discourse. The consumer, the passenger, is much more aware, which is critically important to our safety. Technology changes every day and it has become better, so we’re doing more to scan people that go through security. I’m not a cynic. I really do believe that we’ve progressed with the TSA since 9/11. We are better off with the technology of the current systems, in addition to the general awareness within the security world. The public is not only much more aware, but more tolerant of security, and is much more vigilant in keeping an eye out for issues.
Litigation creates public awareness; it creates news, discourse and the exchange of information and ideas. I think we are a much safer flying public – still with plenty of vulnerabilities – but in a much better place than we were on September 11th.
LD: How does that litigation differ from other cases, in terms of any satisfaction your clients might have felt upon the settlement of the aviation litigation?
DM: It’s unique because in most cases when you get to the end and have successful results, there is a satisfaction that, number one, it’s over, and number two, that there was something achieved by the case.
But this is a different story because every year there’s going to be a country that’s reminding all these family members of what they’ve lost and how they’ve suffered. I can’t say that the families – after going through the victims’ compensation funds or the court system – were satisfied. The families that I talk to today, more than 14 years later, are just as devastated as they were when it first happened. If you’re talking about a medical-device case, there’s usually a beginning, a middle and an end to the legal side of the story, but there is no real end for 9/11 victims.
LD: What mindset is required for you and the firm to take on so many of these large cases that involve difficult issues and can take years to resolve?
DM: A lot of that is the legend of Ron Motley. In some ways, Ron was like a Don Quixote character. His first major battle against Goliath was asbestos. The firm used a lot of the money that we were able to get from the asbestos cases to fund the litigation against tobacco. When we were approached to go after the terrorists who supported 9/11, Ron didn’t even flinch. When you follow and learn from a leader like that, you really do believe there’s nothing you can’t accomplish, if you put the talent, the time and the resources, sincerely into doing it.
You have to make sure you’re making good choices, you have the right people around you and that you’ve got the depth of not only talent, but also of the financial support. Medical devices, which is where I evolved to after the 9/11 litigation – from hernia mesh patches to transvaginal and pelvic mesh patches – has been a natural evolution because it’s also a massive effort and litigation that few firms can do and see to completion.
LD: Can you talk a bit about that litigation?
DM: There are 80,000 women with mesh products who have brought cases. There are millions of women with mesh in them that need pelvic repair. So you’ve got all these cases out there and you’re really spending your time doing the same basic things – gathering information, organizing the story and the history of how things came to pass. You’re integrating knowledge and experience from other cases to infer by what means corporations make decisions or don’t make decisions.
You have to bring a story to a jury that explains why something that has caused injury was not only preventable, but it was also known to be preventable before it started. The conduct may be a little different, depending on the type of litigation, and the evidence may be a little different. But the formula remains the same – the picking of your cases carefully, doing the hard work to get cases ready for trial, investing in the human resources and the financial resources, getting down to the real meat of the story, and having the absolute determination to bring it to a jury until you are told to stop for a settlement.
LD: How does the firm decide when to settle instead of going to trial?
DM: One of the things that has been constant at the firm is a parallel system of trial work and resolution. The trial side of the firm takes cases to trial. It is solely focused on getting cases ready for trials, building any information needed to try a case, in a massive way. We focus heavily on gathering the right information and the right documents, the right stories, in order to tell those stories to a jury. And then we have a totally separate department that’s headed by Joe Rice, which is our settlement side. The trial side is dogged about getting cases ready and getting cases to the jury until it is told to stop.
LD: That’s interesting. Is there an absolute wall between the two sides, trial and resolution?
DM: The reason why the answer to your question is “yes” is because to settle, you necessarily have to compromise, you necessarily have to come to some point where you’ve reached an agreement that is mutually acceptable or unacceptable – something that both parties can walk away from and say, “Yes, we’ve agreed to this,” and both will walk away less than perfectly satisfied.
If you’re a trial lawyer, you can’t be thinking about how you meet somebody in the middle. You really do have to continue to push. The engine that drives the resolution is this idea that you’re going to go to a jury until you’re told not to. It’s a lot easier for Joe Rice, for example, to walk away from the table, and say, “That’s unacceptable. We’re going to trial.” Joe has that freedom; he’s not exhausted from getting ready for trial, he’s not invested in the same way. We’ve always kept the two distinct, so that you can get the most out of both. As I’ve gotten older and as the mesh litigation has evolved, I actually have taken on the role, with Joe Rice, of resolution counsel. I’ve personally made a little bit of a transition toward the resolution side from the trial side.
LD: Are there some heated arguments between the trial and resolution sides, where trial is told to pull back when it doesn’t want to?
DM: No. I’ll give you one funny story. Ron, the day after we settled the tobacco litigation, asked me to notice depositions of defendants in the case. I said, “Ron, we don’t have a case anymore, we resolved it.” He said, “Until I see the dismissal stipulation, I want you to notice the depositions.” As a fairly young lawyer I felt like I was in a bind, but I was relieved by being told by the negotiation side to step down.
But it’s not a battle. It’s a really good armor to wear. You really do want to go to trial. It is disappointing when you’re a trial lawyer and you don’t get the opportunity to tell the story you’ve been building. But when you take a step back, you realize, “This isn’t about us, in the end our clients are the ones we’re serving.” If in getting ready for trial it leads to a resolution that tells the trial team how well they prepared.
LD: How do you feel about doing more of the resolution work instead of the trial work?
DM: It’s mixed. I still participated in tobacco trials in Florida last year, and that’s a nice change of pace for me, to step out of the resolution side and go into the courtroom, so it keeps my skills going. I think with Ron passing, with our firm continuing to grow and really take on great work and actually doing better than ever, there is a different sense of responsibility that I have to our clients. If I can play a role in resolution because I feel that’s more the business side of what we do, and in the end, if we’re getting good resolutions and getting them out to our clients efficiently and quickly, then I feel like as a managing concept, it’s very fulfilling.
I still get the benefit of having young lawyers come into my office weekly and ask me about advice, about how to prepare for a trial or, “What would I do if I had this witness on the stand?” Because it’s part of the cost of getting older, I feel like I get to mentor a lot in the trial side. Yes, it’s making me feel a little bit older and more responsible, to be on this side. But I’m never going to give up the battle in the courtroom.
LD: Is there something you’ve thought about doing beyond this, years down the road?
DM: My dad was an anesthesiologist and his whole career he also ran a school for certified nurse anesthetists, so education was very important to him while being a clinician. All his children have done both, practicing medicine or law and teaching. I was able to teach law for 10 years at Roger Williams Law School. I taught 9/11 litigation and mass torts to honors students. I am taking a little break from that now because of the time demands of work. But I would go back to teaching. I think that’s very fulfilling.
Then the ultimate goal is to open my restaurant one day and do something where at the end of the night your job is done. I haven’t had a job since as an adult where, when the day ended, the job ended. I love food and I love Italian culture. One day my ideal job is to have an Italian restaurant and when the final shift is ended, to know I’ve done a good job in that short period of time for whoever was in front of me.