By Alison Preece | October 12, 2022 | Lawyer Limelights, Plaintiff Consumer Limelights
It seems like David Kirby was destined for the law. His father was a highly respected legal and political figure: J. Russell Kirby joined law school days after returning from combat in World War II where he earned a Purple Heart in combat on Iwo Jima; he practiced law for half a century and spent 12 years in the state legislature. Kirby’s grandfather also served in the state legislature. Back even further, his ancestor served in the House of Burgesses in Virginia.
Growing up, Kirby was influenced by his father’s two law partners, John Webb, who would go on to become a North Carolina Supreme Court Justice, and Jim Hunt, who served four terms as governor. For the young Kirby, all signs pointed to greatness in the profession of law.
He didn’t always see it that way, though. Kirby started in pre-med, and when he eventually switched to law school he became a self-proclaimed “coaster.” Once he started trying cases he had bouts of self-doubt, reconsidering his aptitude for the profession on a regular basis.
And yet, the blood runs thick. He stuck with the law, moving into the personal injury space where he found it gratifying to help individuals find justice, while bringing larger societal changes by getting bad products off the market and ensuring safer practices in industries and public infrastructure.
Some of his notable wins over the course of his career include a $25M verdict for a young girl who got trapped in a defective drain at a community pool; a $8.3M verdict for the families of two children killed in a bus wreck in France; a $7.9M verdict involving a shooting by a disgruntled worker (at the time a national record); a $14M settlement for three workers who died in a scaffolding collapse; and a $4.7M settlement for the family of a college student who died during freshman hazing.
The Edwards in his firm, Edwards & Kirby, is John Edwards – yes, that John Edwards, the former Senator of North Carolina who was the Democratic nominee for Vice President alongside John Kerry in 2004. Kirby and Edwards went to college together and were partners in moot court. They started the firm in 1993, practicing together for six years until Edwards ran for Senate. Then they reconstituted the firm in 2013 and have been going strong ever since.
Kirby, who was born and raised in North Carolina where he continues to practice, was inducted into the Lawdragon Hall of Fame in 2022.
Now the family tradition of employing the law for the public good continues: Two of Kirby’s three children are in the law, with his youngest son, Winston, practicing alongside him at the firm and his daughter working as legal counsel to the N.C. governor. Kirby’s brother is a lawyer, as is his niece, who works for the Southern Environmental Law Center, and one of his nephews, who works with the U.S. Department of the Interior.
Kirby was invited into the Inner Circle of Advocates a few years back, which he describes as “extremely humbling. These are the absolute giants in the legal profession. It is quite an honor to be in their company.”
Soft-spoken and kind-hearted, compassionate and methodical, Kirby is a paragon of good lawyering, using every skill at his disposal to build a better world.
Lawdragon: Your father was such a well-known legal figure. Did he encourage you to go into the law?
David Kirby: That's interesting. He did, but he never pushed me to follow directly in his footsteps. He was my hero in life and the person who inspired me to go into law. He was a larger-than-life figure. He was in the state legislature for 12 years. He introduced two pieces of legislation that changed the landscape of our state, by creating a consolidated university system and an educational assistance authority for low-income students. He modeled for me that lawyers are born leaders, and that it’s your job in life to go out and change the world for the better. That was the lawyer's role in life, but I also thought very individually, that was my mission in life. That's what I was supposed to do.
I was doing everything under the sun from criminal cases to business disputes to commercial litigation. Whatever came in, I was doing, and trying to do the best I could not to trip on my way to the courthouse.
My mother was an inspiration too. She was president of the Democratic Women for the state of North Carolina and was on the board of a college that brought a new medical school to an underserved part of the state. She was a lifelong advocate for the forgotten, powerless and poor.
My parents were both eggheads. Very bright. They were both valedictorians for their high school classes, and my mother was the valedictorian of her college class. Their idea of an enjoyable weekend would be to curl up with a big book and read. They watched virtually no television. They were very active in politics and community affairs. They passed on a great set of values to all their children.
I was very lucky to have tremendous role models as parents. I had an older brother and a younger sister, and we were raised with the notion that you should go out and serve. That was your mission in life – to serve others. The three advocations that were discussed were, one, you could go into medicine and try to heal and provide aid to the sick and the injured. The other was you could go into the ministry and try to serve the soul. The third was you could go into law and try to protect people's rights and redress wrongs that are out there all around you. When I started college, I was pre-med, thinking I would go to medical school.
LD: Once you moved into law, how was your experience at University of North Carolina?
DK: It was interesting. I enjoyed law school. I have to concede, I probably had a bad attitude as a student. I assumed I would go through law school then return home, practice along with my father and enter politics. I thought I would run for Congress or for governor or some major political office, because I came from this family history of serving in public office.
LD: Even back beyond your parents?
DK: Yes, there are quite a few public servants in my family tree. My grandfather served in the state legislature for 16 years. I have a great, great, great, great grandfather who served in the House of Burgesses in Virginia.
So my first year of law school, I studied hard and made good grades. Then, I’m ashamed to admit, I knew I would be working for my father and didn’t need to graduate in the top of my class so I started to coast. Once I finished law school, I worked for my father for about two weeks. Then my father’s partner, John Webb, was appointed to be a judge on the Court of Appeals and asked me to be his law clerk. I decided to do it, thinking it would be nine months in Raleigh and then I’d be back with my father. But when I told him, he looked at me and said, “Son, you’ll enjoy life in the bigger city. You’ll never come back.” And he was right. After clerking, I hung a shingle out with a close friend from undergraduate school here in the capital city.
Even though we didn’t practice together, my father was always there for me, and helped tremendously with my practice. He had been in a small law school class and several of his classmates were here in Raleigh. One in particular, Robert McMillian, sent a lot of people my way. Every two or three days, somebody walked into my office. “Mr. McMillian told me to come see you. He says you’re the person to see if you’ve got a speeding ticket.” I didn’t know anything about speeding tickets, but I figured it out.
That literally fed me that first year. I was doing everything under the sun from criminal cases to business disputes to commercial litigation. Now and then, I had a personal injury case trickle through the door. Whatever came in, I was doing, and trying to do the best I could not to trip on my way to the courthouse.
LD: Was there a particular case that led you to focus on personal injury?
He modeled for me that lawyers are born leaders, and that it’s your job in life to go out and change the world for the better.
DK: Yes, I had handled a number of smaller ones – broken arms, injured backs, mostly from car wrecks. And then a Court of Appeals judge called me with a case where a lady at a nursing home was using a motorized wheelchair to move around because she had very advanced arthritis, as well as osteoporosis. When she got on the motorized wheelchair one morning and started to go down the hall, the machine just triggered into high speed, and started racing her down the hallway. She tried to stop it and couldn't. It crashed into the end of the wall, flipped her off, slammed her into the wall, broke just about every bone in her body. She died about two weeks later.
I started doing research. I got the machine. I determined that this company had had some problems with the computer control boards in their machines. Once I’d built a case, I filed a lawsuit. As a result of that case, the company issued a worldwide recall of these particular machines. And I received a large recovery for the woman’s family.
That case moved me into focusing on personal injury work, for two reasons. One, you could not bring this lady back, tragically, but at least her heirs were compensated for the loss of losing their mother in the last year or two of her life. The other part that was rewarding is knowing I made a difference. These machines were recalled worldwide, so that type of tragedy would not happen again.
LD: Do you recall your first million-dollar verdict?
DK: Oh yes. It was in a gas water heater case, a very interesting case. The most memorable part was the lawyer on the other side who was a fabulous virtuoso defense lawyer. His name was Jim Blount. He was a bear of a man. He was about 6'1", 6'2", probably weighed 275 pounds. But not overweight. He had shoulders about four feet wide. Built like a middle linebacker. He had the most beautiful radio baritone Southern drawl voice. It was like listening to a symphony in the courtroom, “Membahs of the juray.”
I tried desperately to settle the case before trial. My client, Lee, was 14 years old at the time of the incident. He was in his backyard, smoking a cigarette. He walked over to a shed to pick up a gas can. A neighbor came out and saw him smoking. Of course, he was a young kid, and wasn't supposed to be smoking. So when the neighbor saw him, Lee darted back into the shed. When he came back out, he didn't have the cigarette or the gas can in his hands. Then about a minute or so later, there's a blood curdling scream. The neighbor saw Lee running across the yard on fire.
The main issue was the gas can he carried into the shed was on the steps of the shed, on fire, and so was Lee. All the reports from the fire department and every inspection said that this was a gasoline fire. But Lee’s father thought that didn’t make any sense. He’d been having trouble with the water heater and thought that was the real culprit. So I investigated and hired the former chairman in NFPA 58, which is the national fuel code for liquified petroleum gas. Turns out there had been a lot of similar fires in Florida with water heaters, where when people opened doors that housed water heaters, the push of air up against the burner would ignite unburned fuel and a flash fire would come out and it would set people on fire.
We had a decent case, but I thought there’s no way on God's earth I could ever win in court because of our state’s negligence laws. North Carolina has contributory negligence, which I thought would sink us. I said to Mr. Blount, I begged him, “Let’s settle this case. My client has been terribly injured, horribly burned. He’s a good kid, he’s in college now and the money will help him get through school.” But Jim said, “David, some cases just need to be tried.”
Blount was incredible in the courtroom. I would put a witness on, thinking it was going well, and then Jim Blount would finish his cross-examination and I’d think, “Why did I call that witness? That was a stupid mistake.” It was like that with every single witness. I started going home and saying to my wife, “I’m not cut out to be a lawyer.” I was ready to enroll in med school.
The other part that was rewarding is knowing I made a difference. These machines were recalled worldwide, so that type of tragedy would not happen again.
Later in the trial, I put my NFPA 58 gas code expert witness on the stand. He’d been a fireman, served on national fire protection committees. Really knew the subject of LP gas fires. But he didn’t have any formal education past high school.
Blount, with his mastery of cross, began his line of questioning: “Do you have a doctorate? No? Ok not a PhD. Are you a licensed engineer? Ok, not a licensed engineer. How about your college studies? Oh I see, you didn’t go to college, ok. You have zero education in physics and engineering.”
Then he got to meat of it. “What else was in that shed with the water heater? Rakes, shovels, paint cans? So they must be in and out of there a lot, don’t you think? They had that water heater for six years. How many times do you think they’ve been in and out of that shed in those six years? Fifty times? A hundred? Two hundred?” And he’s just going real slow with all of this, getting my witness to answer each of these little questions, building it up. Then he says, “How is it on those other 200 occasions, when one of the family opened the door to that shed, how is it that this flash fire didn't happen on one of those occasions?"
And I’m thinking: God he’s good. What a good question.
My expert witness turns to the jury and says, “Members of the jury, LP gas works in mysterious ways.” And I think: we’re cooked. It’s done, we lost this case.
But then, miracles do happen in trials. Blount knew he was kicking my butt. So he let a new associate, who never tried a case, get up and do closing arguments. He got up and argued that where this kid was burned was consistent with this being a gasoline fire, and that Lee had stepped into a puddle of gasoline and the cigarette lit the gasoline and got the gas can and Lee on fire.
Bingo: You could have driven a Mack truck through the door he opened for me. I showed the jury the burn chart, and how Lee’s burns began right above the knee, through the thighs, up the torso and onto the neck. No burns on the ankles, shins or calves. And I pointed out that the water heater stood just above the height of his shins. So clearly, it didn’t add up. Why weren’t his feet and ankles burned if he was standing in a puddle of gasoline burning from the ground up?
Then, I hammered home the pain he endured, how his sister and parents couldn’t stay in the room while he had debridement, using razors to cut off dead skin, because they couldn’t stand to hear the screams of a child. And now, in college, he never takes his shirt off because he feels like he’s grotesque, doesn’t want anyone to see his disfigured skin.
I didn’t ask for any specific sum of money. I just said, “You decide what’s fair.” The jury came back with damages of $1.7M. And this is almost 40 years ago. A large sum back then.
It felt great to get that verdict, but you know, I actually called Jim Blount to apologize that it was him on the losing end. I had tremendous respect for my adversary. He was a virtuoso. No underhanded tactics, just great lawyering. Of course, he was an absolute gentleman about it. And in the years that followed, he actually sent a lot of cases to me, which is the greatest compliment. I wish all my adversaries were like him, although maybe not as skillful as he was.
LD: What an incredible story. What advice do you have for young trial lawyers?
DK: Be yourself. I believe that very strongly. And uphold the dignity of the profession. You can cross-examine someone effectively and directly, being firm, courteous and polite all at the same time. You can be a great lawyer without being a jerk.
Try to connect the case to the juror’s lives. Every case is about what specifically happened to your clients at a particular moment in time. But it’s also about, what relevance does it have to the juror’s life? Can the juror see themselves in that situation? Why does the case matter to the juror?
Built like a middle linebacker. He had the most beautiful radio baritone Southern drawl voice. It was like listening to a symphony in the courtroom, “Membahs of the juray.”
I always try to be mindful of the person I’m representing, while also broadening the case into, why is this important to society, in our greater lives? You frame the case to help the jurors think, is this the level of safety that we want for people working in this town, this community, this state, our country? You appeal to their common sense.
And to truly be a good trial lawyer, you need to go get your knees bumped. The more you’ve been out there and experienced the highs and lows of life, had the thrill of success and had your heart broken, the more humanity you’ve got and the better trial lawyer you’re going to be.