Rich Schoenberger (L), Mike Kelly and Doris Cheng. Photo by Rory Earnshaw.
Jury trials have been steadily declining in recent decades, particularly in the federal system. Yet the right to a jury trial is guaranteed by the Seventh Amendment, and has become a key part of functioning legal systems around the world. Three partners at Walkup Melodia are in the forefront of the effort to continue teaching the skills necessary to effectively represent clients before juries.
“The American adversarial system remains the gold standard,” says Mike Kelly, name partner at the firm and nationally recognized personal injury attorney. “It’s a critical part of a working democracy for citizens to be involved in community decision making, deciding what is acceptable both on the criminal and civil side.”
Kelly, together with partners Rich Schoenberger and Doris Cheng, have committed to teaching trial skills to both law students and practicing members of the bar. Many of their students seek them out after reading about their trial successes. They have taught for a wide variety of skills providers including the National Institute of Trial Advocacy (NITA), the American Board of Trial Advocates (ABOTA), local and national bar associations, and law school programs across the country.
Each has also been invited to teach internationally, including in the Republic of Georgia, Chile, Japan, the Caribbean, Kosovo, Macedonia, Scotland, Ireland and Italy. Kelly and Schoenberger helped establish an adversarial judicial system in Georgia after the end of the Cold War and Kelly was part of a team invited to bring jury trial skills to Japanese practitioners 15 years ago.
Cheng, who has spearheaded training for prosecutors throughout the Caribbean, says “I feel really fortunate to be among the people who get invited to teach. It's a privilege.”
Their teaching is a volunteer endeavor. When compensation is available, they donate their fees back to the sponsoring organizations. They don’t do this for the money. They do it because they believe in protecting a fundamental democratic right.
Lawdragon: You have all been involved in teaching trial skills and training other lawyers on a consistent basis for many years. When did that start?
Doris Cheng:Right out of law school, at the University of San Francisco. I took a two-week trial advocacy program. After I graduated, the program director invited to come back and teach the first week of the program, which back then covered pre-litigation and pre-trial topics. I was fortunate to teach with trial lawyers from all around country. I’ve been going back to USF to teach for the last 24 years and I now run the advocacy program that shaped my career.
Rich Schoenberger: I got started in the early ‘90s when I was invited to teach at NITA, by MJ Tocci. Tocci was a deputy DA in the Alameda County District Attorney’s Office, where I worked before Walkup. She was an inspirational, immensely talented trial lawyer and a great mentor to me.
Mike Kelly: I started back in 1980. I was initially invited to teach with NITA, and then at UC Hastings, where I taught evidence and trial practice courses for 20 years.
LD: Why has teaching been such an important part of your careers?
MK: Initially I was attracted by the opportunity to be surrounded by other faculty who were brilliant, experienced lawyers. Then, as my career progressed, it became about giving back. I was fortunate to have spent lots of time in the courtroom, and I enjoy passing that experience on.
RS: It’s so much fun to watch eager students learn and dramatically improve in relatively short periods of time. Obviously, those students who are fully engaged and committed to bettering their craft improve the most. There’s really nothing more satisfying than doing what you love, which for me is trying cases, and then sharing that passion with others. When it works, it really is magic.
DC: For me, it is about protecting the rule of law. The adversarial system is the most effective way to protect people’s rights. At a time when there is growing inequality and disinformation, a critical tool is the judicial branch of government. When competing belief systems polarize our society and compromise people’s sense of safety and security, the courtroom is a refuge for order and fairness. For my practice, it’s the place where we hold tortfeasors accountable. Trial skills education matters because we are training our colleagues to elevate integrity and truthfulness. That’s why I keep doing it.
LD: You’ve all been involved in bringing the U.S. adversary system to a variety of foreign lawyers in courts around the world. What were those experiences like?
MK: It’s been special. I never expected to be the original jury trial trainer for Japanese lawyers in the Saiban-In system. Following the end of World War II, General Douglas McArthur oversaw the creation of a national Japanese judicial system patterned after the Code of Military Justice with judges as decision makers and no civilian jury involvement. In the early 2000s, two Japanese legal scholars who served as visiting faculty at California law schools supported a national referendum adopting a modified jury system. In that new system a panel of nine – three judges and six civilians – hear and decide major cases.
Since no Japanese lawyer had ever presented evidence to civilian jurors, I was invited to bring a team of U.S. based advocacy teachers to Tokyo to teach a handpicked group of Japanese lawyers in a trial skills boot camp. We used consecutive translation professionals over a seven day program. Later I was asked to return twice to Osaka and Tokyo for follow-up advocacy trainings. Ultimately, I directed their first ever trial advocacy teacher training program. I still keep in touch with many of my colleagues and students there.
In Chile I was asked to come and train advocacy trainers at the law school in Santiago. Under Chilean law, jury trials exist but are limited primarily to employment cases. I was contacted by a Chilean judge who had trained with me at NITA to visit and work with practitioners to develop a Chilean-specific litigation advocacy program which continues today.
And, like Rich, I was invited to the Republic of Georgia when the USSR collapsed to help train young, optimistic, patriotic young lawyers in the adversarial system of criminal and civil justice. It was an exciting time. The motto of the young Georgian lawyers was: “Our country is free. Democracy has come. We need a judicial system that is fair.”
RS: Yes, we both went to Georgia through the ABA’s Rule of Law Institute. The Rose Revolution happened in 2003. Before that, not only did they not have a jury system, but the prosecutors used to meet with the judges and basically decide the defendant’s sentence. It was a sham system of justice. Then Mikheil Saakashvili, who was a Kennedy-like figure, ushered in this new era, which included jury trials. It was very rewarding to bring that system to such passionate people. Sadly, the new system didn’t have long to thrive, since Russia invaded in 2008 and throttled the fledgling justice system.
DC: After the breakup of Yugoslavia from the USSR, the war in Kosovo and then the horrific genocide which ensued, countries in Eastern Europe had to rebuild their judicial systems. The U.S. State Department delivered training programs, including ones for trial advocacy. I was invited to direct four different advocacy skills programs in Kosovo and Macedonia. I worked with trial lawyers who had been displaced for almost twenty years. It was an honor to contribute to restoring their legal infrastructure and sustainability.
For the last eight years, my foreign-teaching focus has been in the Caribbean nations. Working with the National Center for State Courts in support of the federally funded Caribbean Basin Securities Initiative, I have served as the program director for trial advocacy skills training for the Prosecutor’s Offices and some of the public defense attorneys. The Caribbean lawyers are intuitive and gifted storytellers. We share a common belief that jury trials are among the necessary tools to protect functional democracies from corruption. Sharing different methods and approaches for witness examinations, opening statements and summation has made a visible difference in their pursuit and success in achieving justice.
RS: Recently I traveled to Italy to teach. We were invited there as part of an ABOTA delegation. Italy’s justice system does not allow for what we recognize to be a true jury trial where the parties are judged by their peers. Nor does the system allow cross examination in the truest sense. And expert testimony comes into evidence virtually unchallenged.
When we introduced the Italian lawyers to our system of justice trial practice, the information was received with mixed results. Younger criminal defense-oriented lawyers said, “This is really cool, I love this.” But older lawyers were not so interested in new techniques – “We don’t do it that way. Our way is better.” Theirs is an antiquated system, and, if you ask me, confusing and unfair. But that is also how they describe the U.S. system. I like to think we made some inroads in moving them towards adopting our system of justice; time will tell. Regardless, they were incredibly gracious and I know we learned as much from them as they did from us.
LD: Let’s talk about the vanishing jury trial here in the U.S. Do you think the trend will continue until it’s a relic of the past? Or do you have hopes for it being revived?
RS: It’s really scary. One poor prognosticator for me is that younger lawyers who have become partners in their firms don’t seem as passionate about getting into the courtroom as we were. They have fallen into a trend that more easily leads them to settle cases rather than to allow a jury to decide. If they’re not into it, who’s going to fight for the constitutionally guaranteed Seventh Amendment rights in 10 years? Put differently, unfamiliarity with trial breeds insecurity, which then breeds fear to engage in the process. When that happens, a vicious cycle can materialize. And, if you lack the confidence to duke it out in court, you’ll too easily depend on the settlement route.
Fortunately, from bottom to top, the lawyers at our firm have a passion for trying lawsuits and we are always trying our darnedest to get into trial. I’d like to think that those of us who are teaching the art of trial advocacy will continue to have a positive impact on the legal community at large. Hopefully the pendulum will swing back toward jury trials as the rule rather than the exception in the resolution process. In the meantime, whether it is via an expedited jury trial or some other accelerated court process, we need to continuously and tirelessly promote the civil jury system.
DC: I’m optimistic. These things are cyclical. When rights are violated, the dispute is resolved by agreement or trial. Settlements are informed by relevant predictors, and we often look at past verdicts to predict future ones. But there is always a point when those predictive outcomes become outdated and unreliable. The value of money changes. Societal prioritization of certain rights change. Trials test and create data. Our firm has handled drug and device bellwether cases, like the first defective hip replacement trial against Johnson & Johnson that Mike tried. As with every trial, that trial was necessary because the parties could not agree on what a jury would do with the case, and it was worth the risk to define our own standard for the plaintiffs’ losses.
So I think the reliance on juries will swing back, because as the value of everything continues to change, there will be a segment of people who will feel undervalued or underestimated in these cases and that will send us back to juries.
That said, we also need to see a change in the mindset of our judges and legislators. Dispositive motions and legislative bills that elevate arbitration above citizens’ ability to hold wrongdoers accountable through constitutional processes, such as the right to a civil jury trial, encourage the kind of corruption that we are working to drive out in other countries.
MK: I’m not sure how this ends. Particularly in the federal system, judges are spending less time in trial hearing disputed matters. There’s great pressure to get matters disposed of, and in the federal courts there is an anti-jury pressure to employ summary judgment and motions to dismiss as decision tools. That pressure undermines trying cases to jurors.
Corporate interest groups play a big part here. Major corporations are cynical about juries. They push the arbitration bandwagon in the hopes of little to no citizen involvement. But arbitration is private and opaque. No one in the community knows what's happening. It is made confidential by contract or service agreement. Because it’s all behind closed doors, there are no precedents set, and the wrongful conduct which underlies the proceedings can easily recur. Because the decision in one arbitration will not be binding in another, and will not be cited, there is frequent inconsistency in results.