Photo provided by O'Reilly Law
To say Terry O’Reilly has a big personality would be an understatement. One of San Francisco’s legendary plaintiffs’ attorneys, O’Reilly is famous not only for obtaining big jury-trial verdicts and settlements but also for his outsize personality, which combines a healthy dose of acerbic humor with plainspokenness.
In an interview mostly done via rapid fire e-mail correspondence, the 68-year-old trial veteran did not miss a beat and shared morsels of wisdom gained over 42 years of trying product liability cases involving anything from airplanes and cars to gel candies.
Lawdragon: You’re one of the first plaintiffs attorneys who focused on automobile-design litigation. How has that side of your practice changed, especially now that cars operate more like computers?
Terry O’Reilly: Because I race cars from the '50s, I am closely aware how good cars are today. Even in the '70s, the Bondurant School at Sears Point used to teach racing in dead, ordinary-stock Datsun 510s. The point was that the most pedestrian Japanese technology of the day was far better than the ability of most drivers. Bondurant loved to stuff 19 racers in a Ford van and to drive the course flat out. What we learned was that the car will do much more than you think and was much safer than most drivers. Scared the hell out of you, too.
When I was on the Consumer Attorneys of California Board I ran a program teaching that at Sears Point. Computers have dramatically changed the pattern of driving but not always for the best. Because cars are so much smarter, they allow bad drivers to get worse. The idiocy of using phones while driving is not solved by making the car itself a phone. Air bags kill people because there is no way to activate them in less than a split second and that requires explosives. They were designed to replace seat belts but now most people wear seat belts.
The accidents we see now are not the result of poor technology but of bean counters in the companies cutting corners. We had a number of cases involving rental car companies putting cars on the road without inspection: saved $175 but damaged tires killed passengers.
We are an immense distance from the Pinto gas tank, where Ford deliberately calculated the cost of paying claims against the cost of designing a safe tank. But not as far as we should be.
LD: You’ve really carved out your reputation as a plaintiffs lawyer working on aviation cases. What drew you to handling aviation cases and how different are those cases from other personal injury cases you’ve handled?
TO: If you look over the cases I have tried to verdict - and that's close to 200 now - they run the full range from medical malpractice to bad faith. Many of those are aviation cases but they are by no means the majority. The simple truth is that there are not that many aviation cases. Airline disasters are, thank goodness, rare. I have tried two and my guess is that two is more than most lawyers who claim to be aviation lawyers can claim. We try helicopter cases, light-aircraft cases, the occasional business jet.
We take cases that we think will end up before a jury. Most don't. So, we take almost any tort case. I once even tried a rape case. Never again.
I started my practice with the Walkup firm in San Francisco, where I was a partner until 1987. That firm was best known for its medical malpractice trials, and that is where I started. I had my first multi-million dollar verdict, $7 million, which was a record at the time, in 1978 in an obstetrical case. However, California imposed insanely low limits on malpractice, which drove most experienced lawyers to expand their caseloads.
I had started with some aviation cases and then was added to the team for the Paris DC-10 disaster in 1974. I found the engineering interesting, similar in many ways to the auto design issues I was working on.
In 1965, I was on a TV panel show - the advantage of going to Loyola in LA - in which we interviewed a legendary San Francisco trial lawyer. I asked him what attracted him to his cases, your same question, and he told me that he had a great curiosity about other fields and since every case was a challenge to learn other professions - whether cop, fireman, doctor or pilot, and was not so much focused on the dreary trivia of law - he had found trial work to be very satisfying. He had a good point.
LD: You also famously represented the family of a girl who choked to death eating those once-popular gel candies. How did you get that case as it’s nowhere near related to airplanes or cars?
TO: The truth is that although trial lawyers love to claim weird specialties, the economics of the practice require that we seek cases with potential, no matter what the type of tort. I have always been referred my cases and sometimes you get referred unorthodox issues because the family lawyer has no idea what to do.
The gel candy case came to me the same way. We learned in that case that Japan - where the candy was introduced - voluntarily took it off the shelves when the dangers were learned, after some 19 deaths. This meant that an extraordinarily sleazy Taiwanese manufacturer could seize the market and start killing children all over the Pacific Rim. We deposed this slime and he had no shame at all. It was just a matter of money. How Wall Street overlooked this guy we will never know.
It turns out that the U.S. has no regulation that prevents what he did. The FDA was never empowered. Shocked regulators seized all the candy they could find as “filth” but they knew this would not stand up in court. So the slime still imports candy, although through another company. The only protection for the consumer is in the courts.
Taiwan does not have corporations as we know them and manufacturers there have dozens of misleading names, knowing that the courts will not enforce foreign judgments. It is impossible to get even a Democratic legislature to even look at this problem as Taiwan is our creature and hyper-protective of its businesses. Another crusade, another day.
LD: You must have answered this question a number of times but we’ll ask it again: What was your reason for going to law school?
TO: I grew up playing rugby in The Wirral and when we immigrated in 1960 to Long Beach, I was in deep culture shock. The irony is that The Wirral is across the Mersey from Liverpool and there was a local band that was doing quite well, but when I arrived, no one had heard of The Beatles. Long hair was out.
So, it took a while. I went to Loyola University, which had a good rugby team. Then, in 1964, I read a Sports Illustrated article which said that Cal had the best rugby program in the U.S. So, I had to figure a way to get into Cal, because I had no idea what I wanted to do in life but my father had played soccer for Arsenal and I had to do better. I tried for a Ph.D but I have no facility for languages. NBC News offered a job in Burbank, but they had no rugby team.
Eventually, I got into law school at Boalt. Good enough. I had no idea of being a lawyer but the idea grew on me. I earned my letters but the turning point was when a professor whose class I had cut all semester - it conflicted with rugby practice - cornered me and I told him the truth. He laughed, and told me to take the final. That was when I thought that law might have possibilities. I have been involved with rugby ever since and I am still a Trustee of the U.S. Rugby Football Foundation and a member of the Witter Committee at Cal. And Cal continues as the best, with 28 National Championships out of 35 played.
LD: After more than 40 years in practice, any signs of wanting or needing to slow down?
TO: I was diagnosed with cancer in 2008. The treatment was successful but at times like that you tend to take a careful look at where you are and where you are going.
Trial practice is being choked to death by discovery. Endless interrogatories, depositions and motions. Insurance defense firms love the paperwork as it is very profitable, requires very little intellect and makes getting to trial hugely difficult. Add to that the insane cuts in court budgets and the quality of the courts has declined so far that trial is becoming torture. I recently was in front of a judge whose greatest concern was making sure that the jury received her daily delivery of cookies.
Time to head for the stillness of the Sawtooth Mountains. Anyway, I have an idea for a novel.
LD: What advice do you wish you received when you were still new to the law and what advice do you usually give to aspiring lawyers?
TO: One of the great trial lawyers, Phil Corboy of Chicago, advised me never to take partners. So true. But in the end, impossible. Phil eventually made Tom Demetrio a partner and that worked out very well, as Tom has taken Phil’s place as the best trial lawyer in Illinois.
It takes a very strong personality to be a trial lawyer. You have to be able to take a heart-breaking loss and still go to work the next day. Not easy and trial lawyers are easy prey for chemical dependency. The three-martini lunch has long gone but it was a fact of life when I was a young lawyer. By the same token, trial lawyers generally make terrible managers. Our minds are focused on proof and argument and we have no time for employee squabbles. Ideally, I would work as a contract lawyer, just trying cases for a firm someone else manages.
LD: Any other passions outside of rugby and racing cars?
TO: I inhale novels and history. When you spend a life on the road, that is inevitable. I am a great admirer of the late Donald Westlake, whose range was enormous. He could make you almost like the hard killer, Parker, and could write the most difficult genre, the comic thriller, in the Dortmunder series. He could write rings around any Booker (yawn) Award winner. So, he’s the ideal.
If I write a novel, it will be noir, likely set in San Francisco because there are too many writers working the mountain-sheriff angle. I have a plane crash in Argentina I once worked as an unusual backdrop.
I saw a lady interviewed the other day. She has written 140 titles, over 90,000,000 copies sold. Soft-core ladies porn, throbbing bosoms, that sort of thing. Worth a try.