Knowing that he wanted to make the world a better place, Michael Kelly saw three career options when he was young – physician, minister or attorney. Four decades into a stellar legal career, it’s safe to say that Kelly made the right choice. His interest in “social justice and righting wrongs” is reflected in the countless claims he has brought for injured plaintiffs, which have resulted in more than 175 verdicts and settlements worth in excess of $1 million. The San Francisco-born Kelly, a name partner at Walkup Melodia Kelly & Schoenberger, stayed in his home city for law school at Hastings College of the Law and also for his career.
Lawdragon: What do you find satisfying about representing plaintiffs?
Michael Kelly: Probably the most satisfying thing about my work is the opportunity to help people who genuinely need assistance with surviving an injury, illness or disability for which they were unprepared – or for which their resources were overwhelmed. Whether that is replacing an income for a surviving spouse that was financially dependent upon his or her partner before death, helping to recover the funds necessary to pay for physical or cognitive rehabilitation for a child or adult who has sustained a traumatic brain injury, or restoring mobility or self-esteem to an amputee or spinal cord injury patient, these are the things that make our work fulfilling, satisfying and sustaining.
LD: What would you say is the most interesting thing you’ve done as a lawyer?
MK: I’ve been blessed to have opportunities to litigate and try cases involving everything from car crashes to dangerous drugs and devices, defective consumer products, aviation crashes, public transportation disasters and mass torts. I’ve also had the opportunity to give back to the profession by teaching at the University of California Hastings College of the Law, and by representing the National Institute of Trial Advocacy in its various course offerings across the United States, in Eastern Europe, South America, the UK and Japan.
Maybe the most interesting thing I’ve done as a lawyer was undertaking to train Japanese lawyers in how to conduct jury trials with the adoption of the Saiban In modified jury trial laws in Japan in the early 2000s. Since World War II, the Japanese had modeled their criminal cases on the uniform code of military justice, which had been put in place by Gen. Douglas MacArthur. In that system a panel of three judges decided all cases. The Saiban In system added six civilian “judges” to the panel in every case. Japanese lawyers had nowhere to turn for training in how to conduct U.S.-style adversarial oral advocacy to a panel of laypersons. I was privileged to make multiple trips to Japan, at the invitation of the Federation of Japanese Bar Associations, to develop and conduct litigation training for the Japanese bar.
LD: What types of cases are keeping you busy these days?
MK: My time these days is focused on litigating a construction defect tragedy that occurred in Berkeley, Calif., in June of 2015, in which seven visiting college students from Ireland were injured and six were killed when a balcony collapsed due to poor construction and maintenance practices. Each of the injured students was a remarkable and spectacular human being who came here as part of the J1 visa program. They were faultless in the deck failure.
The event is a national tragedy in Ireland. I’m working with a number of experts in the fields of code compliance, architecture, building engineering, waterproofing and other trades. The building was relatively new, and the structural failure has brought about a call for improved code requirements as well as ongoing inspections for exterior residential decks. This was an entirely avoidable event, and my clients are driven to make certain that nothing like this ever happens again.
LD: Can you discuss any trends you are seeing in your practice?
MK: We seem to see more and more consumer product cases being forced into the federal multidistrict litigation (MDL) process. From my perspective, that is not a good thing. Historically, individual state courts have done an excellent job of providing a forum for trying single-plaintiff product liability suits. The individual states have an interest in protecting their citizens from dangerous and defective household products, automobiles, drugs and medical devices; and case-by-case deposition and document discovery in state courts has proved to be an effective way for finding and proving the truth and making our society safer.
The ability of large corporations to remove cases to federal court and have them consolidated before a single federal judge, delaying justice for all those plaintiffs who must wait until “bellwether” litigation takes place and global settlements are thrust upon them is not a good thing. The defendant’s best friends are always delay and complexity. There is no place where greater delay happens and more needless complexity is generated than in the MDL process. Additionally, the discovery in the MDL process never identifies wrongdoing as effectively as individual state court litigation. There is substantial irony in the fact that while individual product liability suits against a given manufacturer alleging a defect in a particular product may result in multiple depositions of corporate engineers, managers and other persons, if you hurt or injure a lot of people you can actually foreclose and limit the discovery into the truth by seeking the protection of an MDL.
LD: Is there a specific reason why you chose Hastings over another law school?
MK: As a native San Franciscan, I knew I wanted to stay and practice in the San Francisco area after law school. Additionally, my wife and I were married prior to law school and our families were in the area. So we had both professional and personal reasons to find a law school which was affordable and close to home with an excellent reputation, a history of producing talented courtroom lawyers and respected trial court judges. My choices were Hastings or Boalt Hall on the UC Berkeley campus. I thought Hastings would provide what I needed in terms of academic and practical training, and I’ve never regretted my choice.
LD: Do you have the type of practice you imagined yourself practicing while in law school?
MK: I don’t know that any law student ever correctly imagines what she or he will be doing after graduation. I knew that my place in the legal system would involve work in the courts. I knew that I did not want to be doing transactional or office-based work. I began my career as a criminal defense lawyer, and while the work was intense, difficult and stressful, something about the courtroom atmosphere was energizing. From there I moved to civil trials.
LD: Why did you pursue a career in the law in the first place?
MK: When I was growing up my parents and teachers instilled in me the belief that each of us has an obligation to the people around us to make the world a better place. When I was young, it seemed to me that if you wanted to make your community a better place you had three choices: You could be a physician, a minister or an attorney. I hated math and wasn’t very good in chemistry, plus I fainted at the sight of blood. That ruled out being a doctor. My penchant for sarcasm, cynicism and wisecracks made the Lord’s work an unlikely career. That left the law. Its focus on social justice and righting wrongs resonated with me. It let me remain who I was, and make a difference for the better in other people’s lives.
LD: Did you have a favorite class or professor that was particularly influential in your studies or future career?
MK: When I was at Hastings the so-called “65 Club” was in its heyday. The 65 Club concept was adopted to target and recruit nationally known legal educators, law school deans and prolific authors who had been required to retire at age 65 by their prior institutions. I think my favorite teacher among that group was Lawrence Eldridge. Eldridge started teaching law in Philadelphia in the late 1920s, first at Temple University and later at the University of Pennsylvania. He retired from Penn Law School in 1944. From 1940 to 1968 he was in private practice and also served as a lecturer on medical jurisprudence at Penn Medical School. He moved to San Francisco in 1970 and taught torts at Hastings until his retirement in 1979. He authored several books on the law, among them “Trials of a Philadelphia Lawyer” (1968) and “The Law of Defamation” (1978).
In 40 years of private practice he specialized in plaintiff-side tort cases. He taught torts with great vigor and excitement. Notwithstanding the fact that he was well into his 70s, talking about the cases he had tried and the people he had helped was inspiring. Additionally, his work on the restatement of torts and his other scholarship gave him credibility and gravitas that was not always associated with the field of torts.
LD: Was there an early experience or mentor who really helped shape the course of your professional life?
MK: San Francisco in the 1970s was a legal community full of giants in the field of torts: Bruce Walkup, Bob Cartwright, Melvin Belli, James Downing, Jim Boccardo, Marvin Lewis Sr., E. Robert Wallach and many others were on the cutting edge of trial practice, experimenting with and perfecting the use of demonstrative evidence. I was fortunate to secure an associate’s job working in Bruce Walkup’s law firm. It was the incubator for many great San Francisco plaintiffs’ lawyers and I had the opportunity to learn from all of them.
LD: How has your practice changed since the early part of your career?
MK: It’s hard to believe that the practice of any lawyer who’s been at it 40 years has not changed over time, but I think in the plaintiffs’ personal injury practice there have been dramatic changes. In the early days, auto crash cases probably made up as much as 75 percent of the work, but over time, as successful product liability suits compelled automakers to make their vehicles safer and forced manufacturers to implement designs that cushioned impact, absorbed energy, provided better occupant protection via headrests, seatbelts and airbags, the number of automobile cases litigated in the courts significantly decreased.
At the same time, we saw ourselves doing more and more product liability work on behalf of consumers for a variety of household and consumer products such as infant furniture, home appliances, tires, automobiles, drugs and devices. Additionally, in California, we experienced draconian restrictions on the right of medical patients to be fully compensated for injuries caused by their healthcare providers. Limits on recoverable damages as well as severe restrictions on plaintiffs’ attorneys fees, works to the benefit of doctor and hospital insurance companies in preventing fair and adequate compensation to patients for life-altering injuries caused by doctors, hospitals, nurses and other healthcare licensees. Our legal landscape was dramatically changed by the restrictions implemented by the California legislature in 1975 with the Medical Injury Compensation Reform Act (MICRA), with the result that at least 80 percent of patients who have suffered at the hands of negligent healthcare providers are marginalized and foreclosed from bringing cases in the courts.
As someone who always was involved on the medical side of tort practice, I watched the section of the bar that handled plaintiffs’ medical negligence claims almost entirely vanish. In my practice, I have continued to do medical negligence and healthcare malpractice, but my ability to represent clients who have had substantial and significant quality of life impairment, without economic harm, has been greatly limited because of our MICRA statute. At the same time, I found myself becoming more involved with so-called “mass torts” that implicated healthcare delivery issues – particularly those that involved medical devices. My 40 years of experience in healthcare-related litigation – whether physician negligence, hospital errors, negative drug interactions, coupled with my work on product-defect claims in the '80s and '90s – seems to have been a good prelude to becoming involved in medical-device defect litigation.
LD: What do you do for fun when you’re outside the office?
MK: If I’m not at work and truly on vacation, then it’s likely you will find me in the outdoors, typically fishing on a mountain river, creek or stream in the Sierra, the Rockies, or the mountains of Montana. If I’m not on vacation and I’m home and need a break, then you’ll find me at the ballpark. I have been a fan of Major League Baseball, and the San Francisco Giants, since 1960. I’ve had season tickets for the Giants for more than 35 years. Since I live in the city, and the park is downtown, it’s a great getaway – and when the team is winning it’s even better.
And of course, like almost all grandparents, I’d rather be hanging out with my grandchildren than doing almost anything else. I once read a quote that said “Our grandchildren accept us for ourselves, without rebuke or effort to change us, as no one in our entire lives has ever done, not our parents, siblings, spouses, friends — and hardly ever our own grown children.” I think that’s true. Our time together is special. There is nothing that has to be accomplished, there is no judging of thoughts or opinions, there’s just fun. And seeing the world through their eyes, well, it’s better than TV, movies, books or theater.
LD: If you weren’t a lawyer, what would you be doing now professionally?
MK: I think I would probably be teaching something somewhere. Maybe History, maybe Political Science, or English at the university level. Maybe Social Studies or English in high school. Maybe Torts or Constitutional Law or Trial Practice in law school. My mom was a teacher and it gave her great satisfaction. I think that teachers, as a whole, are both undervalued and underpaid. They step in and take the place of parents for our children six-to-eight hours a day for 12 to16 years of kids’ lives. They are excited and challenged by their students’ curiosity, intelligence, creativity and longing for learning. It makes going to work fun. There is great satisfaction in watching young people develop, grow, become independent and face the world with optimism. It’s a way to make a difference, to help change the world one person at a time. I think it’s very satisfying work.
LD: Do you have a favorite book or movie about the law or justice system?
MK: My list of favorite movies about lawyers probably looks like everyone else’s – although I’m not sure that the order I would put them in is the same as other people’s lists. “My Cousin Vinny” is in the top five, together with much more serious fare including “To Kill a Mockingbird” and “12 Angry Men.” My top five also probably includes “The Verdict” and “A Few Good Men.” I often use clips from “My Cousin Vinny” when I’m doing advocacy teaching – there’s both power and truth in humor. And while the dramatic cross-examination of Jack Nicholson by Tom Cruise in “A Few Good Men” is what people most often think about, the part of the movie that focuses on the lawyer preparation and anxiety about how to approach and attack that cross-examination is what I like most. “The Verdict” actually captures, more truthfully than many might believe, how medical malpractice cases have historically been defended, and James Mason’s portrayal of the defense lawyer is more real than fantastical in my experience. As for “To Kill A Mockingbird,” and “12 Angry Men,” well, they are just great from start to finish.