Photo by Teresa Milner.
Trial attorney Jim Fitzgerald doesn’t have to imagine what his clients have been through. He’s lived it.
The renowned trial lawyer came of age far away from the world of desks and lawsuits that fill a typical lawyer’s past. Raised and still living in Wyoming, Fitzgerald worked his way through college by “roughnecking” on an oil rig. “You're working with hardworking people, but it's a hard life,” Fitzgerald explains. “The derrick hand, for example, had a wife and four children and lived in a tar paper shack. If something happened to him, who was going to take care of that widow and children?”
That lived experience has translated into a passion for representing the powerless and voiceless that is matched only by Fitzgerald’s prowess in the courtroom. Fitzgerald began his legal practice in 1975 – not right out of college, but after attending Officer Candidate School and serving in the Vietnam War. In 1982, he and his wife, Sharon, began their own practice: The Fitzgerald Law Firm.
In the decades since, Fitzgerald’s dedication to difficult cases has seen him win record-setting verdicts, including the largest award for a wrongful death case upheld on appeal in the state of Wyoming. Similarly, Fitzgerald represented a coal miner who was paralyzed and suffered a brain injury due to culpable negligence of mine management. That verdict came to an incredible $22M, the largest verdict for physical injuries in Wyoming history. But he doesn’t solely represent workers: Fitzgerald has fought on behalf of those who have been injured by defective drugs and other products, semi-truck accidents and in other instances of negligence and malpractice.
Fitzgerald’s son has joined him on his mission: In 2015, Michael Fitzgerald joined the firm. Fitzgerald’s wife, Sharon Fitzgerald, passed away too young, but Michael’s presence ensures the firm stays a family venture. Together, the pair of them take on some of the largest personal injury cases in the west and around the country. In 1998, Jim and Sharon Fitzgerald began the Fitzgerald Foundation for Children. The organization works to promote public safety for children, particularly those in Wyoming.
Jim Fitzgerald was inducted into Lawdragon’s Hall of Fame this year. The award recognizes him for his dedication to those workers and children, widows and loved ones, who have been impacted by injuries or deaths caused by powerful corporations and entities. Armed with compassion and a deep understanding of what it means to be a worker, Fitzgerald gives a voice to those who need a champion.
Lawdragon: Take me back to the beginning of your career. How did you get into your practice area?
Jim Fitzgerald: Before I limited my practice to injury and death cases, a federal court appointed me to represent a young man in a criminal trial. Long story short, the jury found him not guilty. It was the first not guilty verdict in years in that court. Word got around. Then, a lawyer recommended me to a family whose son was charged in the federal court. The jury found him not guilty. So, early in my career, I wound up trying serious felony cases and became known, and I started trying civil cases.
Ultimately, I decided to limit the practice to civil cases because Sharon and I were starting a family. It's hard to plan your time as a criminal lawyer. If you're going to do criminal cases, you must be available at any time. I still worked weekends, but at least I could plan the time.
LD: When you knew you wanted to focus on civil cases, what led you specifically to personal injury and wrongful death claims?
JF: I had a friend whose cousin was blinded in one eye by a defective product, and I agreed to take on that case. This man worked in construction, so this was a problem for his livelihood. I wound up suing what was then International Harvester [now Navistar] for the defect in its product that led to the blindness. It was what we call a no-offer case, so winner-take-all. When the jury found in favor of the worker, I thought, “This is really fulfilling and meaningful.”
Because that case turned out well, it led to more civil cases. I liked to help people who were down and out – or on their way to being down and out if they didn't get some help.
LD: I know you worked in industries like his through college. How does your background enable you to make a personal connection with your clients?
JF: Well, when it came time for me to go to college, my father said, "Where do you want to go?" I said, "I'd like to go to Colorado College." In his typically gruff way, he said, "Well, that's too expensive. You can't afford it. You're going to be paying for college yourself, so think about the University of Wyoming." It was a state school with low tuition for in-state students.
I liked to help people who were down and out – or on their way to being down and out if they didn't get some help.
My father didn't provide anything except some meals along the way. So, I know what it's like to be out working. I worked as a welder's assistant on a pipeline. We moved from one town to another doing that, and I had no place to live. The boss's son and I got to be friends, they loaned me a truck, and I slept in the truck.
LD: This was while you were in college?
JF: Yes. I also did highway construction. I “roughnecked” on an oil rig, which is very dangerous and hard work. The law of product liability was not developed in those days. If somebody got hurt, worker's comp provided the only remedy, which was a minimal remedy. I could see how these people were good, hard-working people who had bills like anybody else.
LD: Do you see some of those people you met back then in your clients today?
JF: Sure, because the people who get injured – aside from motorists – are generally people out working. A product breaks when it shouldn't. Or, because there's inadequate supervision and training, a 100-pound object falls from 40 feet and hits somebody in the head and wrecks their life. Those are the kinds of people I like to help.
LD: You now work alongside your son, as well. How would you say that your styles complement each other?
JF: He's more careful and thoughtful and he has a very analytical mind. I'm sort of a “right and wrong” guy, so it helps that we practice together.
LD: How would you say that “right and wrong” style shows up in trial?
JF: Well, we're fortunately in a position where we can pick and choose cases where we can make a big difference in someone’s life. As I mentioned, I like to take cases for the down-and-out. So, I look at cases to see where there was a defective product, or a careless person that caused the problem – a death, or partial blindness. I’ve found it fulfilling to represent widows, widowers and children.
I also like to do things that have a beginning and an end. My father had a friend who was a prominent lawyer, and he did all kinds of natural resources work but was never in a courtroom. I talked with him before I went to law school. He’d had one client for 20 years working on various projects. I said, "Well, that's admirable, but it's not for me. I want to start something, finish it, and move on to the next thing."
LD: Speaking of your cases, I know you've had some incredibly large verdicts, including the largest verdict for wrongful death upheld on appeal in Wyoming. Why is having verdicts upheld on appeal so important to you, especially in your practice area?
JF: Getting a verdict isn't easy and keeping it on appeal can also be a big challenge. Here's what happens. People take a case to trial, the jury's outraged and they render a large verdict. Then it's up on appeal. The court of appeals has got to have good grounds if they're going to affirm it; they've got to have information in the record that's persuasive to them. So, we do our best to do our homework and get the information into the record that needs to be there to support our verdicts.
LD: Are there any cases that particularly stick out to you in your memory?
JF: Well, there are categories of cases. I enjoy product liability cases because it's usually a matter of a corporation not using enough foresight to realize that there's going to be a problem with the product. Or they start to learn that their product is harming people and they don't do anything about it.
Early on, one of the cases I was fortunate to work on was a case against Caterpillar Tractor Company. I did a lot of leg work on the case, and I enlisted a friend who’d won a case against Caterpillar. One of the things that I found that others who had brought suits against the company had not yet found was a witness who had once been the Vice President for Engineering of Caterpillar Tractor Company.
I found an article at the Georgia Institute of Technology, in which this gentleman – and he was a gentleman – had written that heavy equipment manufacturers needed to quit blaming the operators for rollovers and ensuing deaths. Equipment can roll over; it does roll over. It can do that without any carelessness on the part of the operator, such as when there is a large gravel slide. What was lacking were strong, rollover protective structures.
I enjoy product liability cases because it's usually a matter of a corporation not using enough foresight to realize that there's going to be a problem with the product.
So, I figured I needed to get this man's testimony. Nobody else had ever gotten it. Long story short, the man, Mr. Burkes, came to his deposition in Illinois. I had this article, and when I walked into the room I said, "Thank you for showing up." He took a check out of his pocket and handed it to me. It was the check I had sent for his witness fees and travel. He said, "Your widow needs this more than I do."
His testimony provided the backbone for upholding that verdict on appeal, which at the time was the largest wrongful death verdict in the history of Wyoming. It’s still the largest that withstood appeal. Mr. Burkes testified that rollover protective structures were necessary, feasible and available. With that in the record on appeal, the Wyoming Supreme Court affirmed.
LD: You’re right; he was a gentleman. What kinds of cases are you working on now?
JF: We recently finished a case where we represented a woman who was sexually and serially assaulted by a certified nursing assistant in a hospital. My son did a lot of work on that case and argued it on appeal.
In our investigation, we found that there was video evidence of this certified nursing assistant leading the patient into a room and not coming out for an hour.
In this woman’s life, the certified nursing assistant was a powerful presence who had authority, and he took advantage of it serially. So, we got justice in that case. It was fulfilling.
LD: How do you go about choosing new cases?
JF: We have criteria. We study the damages someone has suffered. If there's a death case and we can find a remedy, we're going to do it. If someone's paralyzed and we can find a remedy, we're going to take that case. If someone's blinded or an amputee, et cetera, those kinds of things, we will do what we can to find the remedy.
Sometimes the remedy is clear, and sometimes it's not. Sometimes it takes a lot of engineering understanding to put the case together. Not that I'm an engineer, but one of my mentors was, so that helped.
LD: Which mentor was that?
JF: His name was Russ Dunn, and he just passed away recently.
He was very sharp, understated and strong. He'd been an officer in the Marine Corps and then went to law school. He was a very capable man – ethical, honest and hardworking. I've been fortunate to have several mentors who have taught me a lot.
LD: What advice would you give to somebody just starting out as a lawyer now, especially in your practice area?
JF: I think it's much harder to start out as a lawyer now and to build a practice, but if somebody wants to be a trial lawyer, the best way to learn how to do that is to try cases. If you're going to go out on your own and be able to put food on the table for families, you're going to have to learn the game. One of my favorite sayings is from Winston Churchill: “Play for more than you can afford to lose, and you will learn the game.” Of course, trial are not games but they can be risky, so hard work and dedication are essential
LD: Why would you say it's harder to start out now?
JF: Well, one of my pet peeves is lawyer advertising. Anybody can walk out of law school and put an ad in the yellow pages saying that they do product liability and wrongful death cases and so forth. I just think that is misleading and too often results in clients whose lawyers are not the best for the cases.
LD: What’s the best way to get cases?
JF: Doing a good job and getting referrals through word of mouth.
LD: Your firm celebrates its 40th anniversary this year. How does it feel to hit that milestone?
My heart has been in it. I'm lucky; my son is lucky, and we're all privileged to do this work.
JF: Well, I look at it case by case and day by day. The time has accumulated, but I'm not wedded to the notion that we're anything special just because we've been doing it for so long. You still must work hard and do a good job on every case.
LD: You’re also a member of so many different trial organizations, and you’ve been President of the Inner Circle of Advocates. What do you enjoy about those organizations?
JF: Well, to start, if you’re a young lawyer, it's a good idea to get involved with your state’s Trial Lawyers Association. Those are the people who may be looking at a potential case and decide it’s not one they want or that it doesn't fit their criteria, and they could send the case to you.
What I like about the Inner Circle of Advocates is, for one, you cannot apply to join. Membership is by invitation only. Potential members are heavily screened. Membership is limited to 100 lawyers around the country, and the meetings are very instructive. I won't break my arm trying to pat myself on the back, but aside from me, let's just say everybody in there is exceedingly well-qualified. It's wonderful to have that resource to learn from and to share ideas and so forth. So, it was a privilege to be invited to join the Inner Circle of Advocates.
LD: What do you feel are some of the pressing issues in the legal profession at the moment?
JF: Well, since state legislatures and Congress can be – and have been – persuaded to cut back on injured people's rights, it's important for us all to remember that we represent people who don't have a voice in these law-making institutions. Industry does; tourism does; corporations do. But average people don’t. So, it's important to remember that we should be preserving this system for ordinary people. People who don't even know it yet are essentially relying on us to keep the system of fairness going for them. A lot of my time, especially early in my career, was spent working to preserve that access. That's a difficult task, but we need to be doing it so that the system's there for the next set of widows, orphans, paralyzed and blinded people.
LD: You've certainly been very successful, so that must be fulfilling.
JF: Well, my heart has been in it. I'm lucky; my son is lucky, and we're all privileged to do this work. Think of it: We're the only profession that has the power to command somebody to show up and give testimony. Think of the power of that process. With huge power comes huge responsibility.