The attorneys at Walkup Melodia Kelly & Schoenberger are close-knit, hard-working and effective, with a consistent track record of multimillion-dollar verdicts for injured individuals and their families.
We chatted with name partner Michael Kelly on how the firm is handling an influx of work this year while managing the team dynamics of a remote office, continuing to nurture the next generation of trial lawyers, and weighing the risks and benefits of taking depositions and doing hearings over Zoom.
Kelly is a long-time advocate of the Seventh Amendment’s constitutionally guaranteed right to a jury trial, which he calls “an essential right” that needs to be “revered, cultivated, and above all, respected.” He has hopes that respect will be renewed with the incoming Biden/Harris administration.
Lawdragon: What type of work is the firm seeing these days, Mike? Have things shifted since the pandemic started?
Michael Kelly: We’ve seen an increase in large pharma cases, consumer home products and business insurance. We’re working on cases involving rideshare companies, where drivers have not been properly screened, trained or supervised. Our aim there is to get better control over the hiring and vetting process. One of my partners is involved in the California litigation against Juul and its vaping products.
We are involved in a number of cases that seek to extend traditional product liability exposure to Amazon. Amazon has done a good job in California of avoiding product liability exposure, and that’s changing. Our legislature is clarifying their obligation to be treated like any brick and mortar retailer. Historically Amazon has argued it’s not a merchant. It’s only a marketplace that has no responsibility, which only facilitates sales by others. It has taken no responsibility for vetting the products it sells. If I bought some cologne at Macy’s and it turned out that it contained chemical components that are poisonous, I would have a product liability claim both against the maker of the cologne and Macy’s. But if I bought it from Amazon, I’d have to go chase the maker of the cologne in Indonesia because Amazon says it’s not the seller. That is changing.
LD: Definitely keeping busy! Can you talk to me about how Walkup Melodia is preparing the next generation of trial lawyers? Do you have formal mentoring at the firm?
MK: We are a modest sized firm, with just 20 lawyers, but we try more than our share of cases. Of those 20 lawyers, eight are members of the American Board of Trial Advocates.
I think most everyone recognizes ABOTA as the premier association of civil trial lawyers, whether you are doing commercial work, personal injury, intellectual property, or what have you. ABOTA requires that you try 20 civil cases to verdict as lead counsel as a threshold for election. I think that speaks to our firm’s culture and work ethic: We are committed to trying lawsuits. For us, that’s step one.
Step two is making sure, in the vanishing trial era, that we make a conscious effort to involve new lawyers, younger lawyers, in cases going to trial. We will take cases precisely because we recognize they are likely going to trial to get our new lawyers in the courtroom. We recognize that there is only so much mentoring or teaching you can do in a virtual setting. Trial lawyers are born in the courtroom. We try to make sure that the associate’s responsibilities are significant. We want our young lawyers involved in matters that affect the disposition of the case. Because we’re small enough, we can position our younger attorneys to do meaningful work.
Our small size also means that every principal’s door is open to every young lawyer who comes to work for us. Whether somebody’s been here six weeks or six years, they can walk into my office or my partner’s and talk to the people who are leading and shaping the cases that we pursue.
Over time, our practice has changed, and the number of cases that get tried has decreased. But even though it is a bit more difficult to give them trial access, we make a conscious effort to get people into trial. We make it known in our legal community that we are available to co-try cases. You cannot become a good trial lawyer by all of a sudden starting to try cases 10 years into practice. It doesn’t make any sense. A great pianist could not become a great pianist by reading sheet music for 10 years and then playing her first concert in the 11th year of reading sheet music. The only way you get to be good at trying cases is by trying cases.
LD: That’s such a smart approach. Does the firm provide any outside training?
MK: We do. I sit on the national board of directors for NITA, the National Institute of Trial Advocacy. In my opinion NITA is the premier provider of in-court litigation training. Our preferred training has been to have our associates go to a NITA public program. There are usually somewhere between 30-48 practitioners from across the country at a NITA trial skills program. Our lawyers get exposure to practitioners with differing specialties and a different way of looking at facts.
LD: How has your practice been impacted by the pandemic?
MK: It’s been difficult not being in court. But we have done well in terms of personnel – no layoffs or pay cuts. But culture-wise, I miss being able to walk into one of my colleague’s offices and say, “What do you think about this?” Or talking to the younger lawyers about a recent appellate court decision. I miss interacting with people without sending a memo or a formal email. The physical separation makes us all less close personally.
LD: Your ability to help your clients must be hamstrung without full access to the courts these days, too.
MK: Without question. Every judge in America would agree that trial dates settle cases. It’s the reason why we file all our cases shortly after we’re retained. It sends a message that we are serious. Right now there’s no urgency; defendants are not worried that a jury is going to tell them, “You did this wrong and you owe money.” That is a problem.
We won’t see jury trials in California on a widespread basis until April of 2021, is my guess. What does that mean? That means a year of backlog, not just in the civil cases, but the criminal cases as well. And since criminal cases are given statutory priority, the court system must clean up the backlog of criminal cases before we can even schedule civil cases.
LD: What are your thoughts on conducting a whole trial over Zoom?
MK: I think that would be unconstitutional. In that scenario you are talking about private trials. An opaque system. Plus, for jurors, their historic work as a team is frustrated. There is no personal trust-building among jurors. The judge and counsel have no idea what’s going on in the juror’s location – whether they are multitasking, texting, reading the paper, watching TV on another screen. Without being in the presence of witnesses, jurors can’t fulfill the job of assessing the weight and believability of testimony – how does the witness appear while testifying? Do they appear nervous? What is the witness’s attitude, their demeanor towards the manner that they’re testifying about?
We look at somebody in a Zoom square and cannot tell whether their hands are fidgeting and tearing up little pieces of paper, or their knees are shaking or their foot is constantly tapping the floor. I need to be able to assess how the judge, opposing counsel and jurors are relating to the witness. That’s not something you can simultaneously determine with 14 boxes on the screen.
LD: It’s a lot to ask of jurors, to ignore all the other distractions and duties in their home to focus on a trial on their computer screen. Have you had to do any contentious depositions or the like over Zoom so far?
MK: I have. Recently I had a case where opposing counsel wanted to have the witness wear a mask during the Zoom deposition.
LD: You’re kidding!
MK: I wish I was. I’m not going to move forward where a juror cannot see the witness’s face and lips and eyes. We are creating impressions. We are asking jurors to judge weight and believability. A masked witness is not an acceptable situation.
When parties are given the right by the Constitution to confront and cross examine, that means confront and cross examine. That doesn’t mean look at somebody wearing a mask through a TV lens without the benefit that comes from physical proximity to the witness, to the defendant, to the judge and court staff. We need jurors in the same place at the same moment all together seeing and experiencing the same thing, not somebody with a bad computer or too-small screen with bad WiFi.
LD: Last time you talked to us, you spoke about the decline of the civil jury trial. Do you think that the court shutdowns from the pandemic are going to accelerate their demise, or do you think maybe we’ll see a renewed appreciation for the court system once they finally reopen?
MK: It’s a great question, and one a lot of people have asked. I’m heartened by what I’m seeing. I think there was a risk that we would see the more cynical forces of evil say, “Oh, well this proves you don’t need jury trials. We can do this in a more expedient and cheaper manner.” Quicker and cheaper is always the excuse: We could do it faster, we could do it cheaper. But justice needs to be made correctly. While I don’t favor justice delayed, I favor doing things right and not doing things in a hurry-up fashion.
The budget argument is: Zoom is cheap. We don’t need courthouses. We don’t need court attendants. We don’t need bailiffs. We don’t need custodians. We don’t need the electric light bills. I’m really heartened to see that the judiciary, almost uniformly has said, “No, actually, we do need in-person jury trials.” There’s a reason the civil jury trial is in the Bill of Rights. The Sixth and the Seventh Amendments relate to the right to a jury trial in civil and criminal cases. That is as much a basic right as freedom of speech and freedom of religion. The forefathers recognized that the citizens need control over their government.
The greatest shot in the arm for jury trials would be to have the President of the United States say, “You know, one of the foundational amendments to the U.S. Constitution is the Seventh Amendment. That gives citizen jurors the power to control their communities, to set the law, to set standards of behavior, to keep government officers in check. We need to value that. We need to encourage it. We need to respect and acknowledge the fact that we are the only country that has maintained the jury trial. It’s not available in England. It’s clearly not available in China. It’s not available in Russia.”
Think if the new President went to law schools and said, “The work that you are doing and will do when you graduate is important work. It’s important to the fabric of our society. I believe in it. I believe in you.” That more than anything would put an end to the vanishing jury trial.