How 'Oh my God' Cases Became a Calling: 50 years in Plaintiffs' Law with James Bostwick

James Bostwick was raised in a medical family. His mother was a nurse; his father was a doctor. The path seemed clear to him to follow in their footsteps. That is, until he decided to go to law school – and, after law school, to become a medical malpractice lawyer. 

His father was none too happy about the decision. “He thought what I was doing was horrible,” says Bostwick. 

Until he heard Bostwick’s clients’ stories. 

“He read some of the cases and he said, ‘Oh, my God, this is terrible,’” remembers Bostwick. “That phrase, ‘Oh, my God,’ from my dad. Those are the cases we take – the ‘oh, my God’ cases.”

That was more than 50 years ago. In the ensuing years, understanding how to select cases that have that element of shock has been Bostwick’s strength. Since founding his firm, Bostwick & Associates, in 1977, he and his team have been extremely selective in their cases. They represent individuals with stories of catastrophic loss, build close relationships to understand and communicate those stories to the court, and give dignity and a sense of justice to those who have faced senselessly painful circumstances. Bostwick and his colleagues have secured more than $1B in verdicts and settlements across California, Hawaii and beyond.

As one of the most renowned trial lawyers in the country, Bostwick is a member and past president of the International Academy of Trial Lawyers (limited to the top 500 plaintiff and defense trial lawyers in the country), an inductee in the Inner Circle of Advocates (an invitation-only group of the nation's top 100 plaintiff lawyers), a member of the American Board of Trial Advocates, and an honoree in the Lawdragon Hall of Fame. He is also a Founding Member of the American Board of Professional Liability. 

Bostwick has attained record-setting result after record-setting result throughout his career, including beating his own records multiple times over. In 2020, for example, he achieved a $15M settlement for a baby who was brain damaged at birth after a delayed cesarean section that caused oxygen deprivation. The following year, he obtained a $16.5M case for another birth injury and brain damaged baby. Both were surpassed by a $17M settlement achieved for a mother who had an untreated infection turn septic, causing severe health risks for her and permanent brain damage for her baby. Results obtained in California are affected by the "draconian" caps on non-economic damages that have been in place since the mid '70s, explains Bostwick.

“Oh, my God” cases extend far beyond the sphere of medical malpractice, however. Where there are people to be helped, Bostwick will follow; he’s consistently taken on new areas of law with curiosity and command. Most famously, in the ‘80s, Bostwick sued the world-famous “King of Torts,” Melvin Belli, for legal malpractice. It was a move deemed foolhardy by many, but necessary by Bostwick, who was representing the family of a man rendered quadriplegic after an automobile crash. Just about 10 years into his career, taking on arguably the most popular lawyer in the nation, Bostwick secured a landmark $6.4M win. The case was the basis for Bostwick’s novel called “Acts of Omission,” published in 2019 and nominated for the Harper Lee Prize for Legal Fiction and winner of the National Talk Radio Firebird Book Award.

That expansion into new areas of law continues today: This past year, Bostwick took on his first mass tort. A member of the bar in Hawaii, Bostwick played a role in securing more than $4B in the litigation arising out of the devastating 2023 wildfire in Maui, which killed more than 100 people and caused billions of dollars in damage. The settlement, to be paid out by several defendants – including Hawaiian Electric, the power company allegedly at the heart of the fire – will go to thousands of victims who lost their homes, livelihoods and families in the fire. 

Lawdragon: Can you tell us about the process of the fire case’s resolution?

James Bostwick: It's been a year and a half. It actually moved very quickly for a major fire case, and there is an agreed-upon settlement of $4B. Unfortunately, there was no more money available. Some of the defendants would have gone bankrupt and that would be worse for the victims.

LD: Have you ever worked on a fire case or multi-tort case before?

JB: Never. 

LD: Wow. Do you enjoy working on new areas of law? 

JB: I found working on this particular Maui wildfire case to be very interesting and it was fascinating to watch how other lawyers who are really expert at this work in this very complex area. That doesn't mean I want to do it again.

LD: Interesting. Why do you prefer working on single-client cases? 

JB: Well, it's a whole different world. If you have a family or a person or both that you represent, you’re interacting with them on a very personal level. You get very involved with the impact it's had on their lives. Not that this fire hasn't had an incredible impact on all of these poor people's lives, but I don't get to be that close to any of them because there are so many. I like having a sense of who the people are, and then when the case is completed, I like the sense of knowing what a huge difference the result has made in their lives. 

“He read some of the cases and he said, ‘Oh, my God, this is terrible,’” remembers Bostwick. “That phrase, ‘Oh, my God,’ from my dad. Those are the cases we take – the ‘oh, my God’ cases.”

That said, I did the video testimony for some of the victims that had terrible experiences trying to get away from the fire. One family, including children, were in the water for 10 hours. There were cars exploding around them, they had to take their shirts off to breathe through and there were embers landing on them. They were so traumatized that they couldn’t go back to Hawaii. They couldn't appear in court. So I had to take their testimony on video. In doing so, I was able to connect with some of the victims, and I told them, “You're giving testimony not just for yourself, but for hundreds and hundreds of other people in similar situations.” 

LD: Related to enjoying developing more personal connections, you've enjoyed practicing with close partners throughout your career rather than at a larger firm. Why do you prefer working with a smaller team? 

JB: There was a time when we were larger. When there are too many lawyers, you don't have a handle on what everybody's doing. You don't have the ability to interact. The larger you get, the more that it becomes a bureaucracy. On the individual level, lawyer and client, it may be fabulous. They may be having a wonderful relationship, and there may be a solid work product, but as the person who had my name on the door, I had no idea whether that was happening or not. And that bothered me. Smaller seemed better. Then, because we do medical malpractice, we're extremely selective. You have to be. They're such difficult cases. Case selection is critical because it's going to cost you easily $50,000-$75,000 just to get a relatively early settlement, which is unusual. It’s nothing to spend $100,000-200,000 on expenses and costs. You better be right. 

LD: Obviously one of those costs is experts. How do you evaluate experts and get a feel of whether you want to work with them?

JB: The most important thing is you want to choose experts who are not just going to tell you what they think you want to hear. You want to have an expert who calls it as they see it; they’re straight-arrow. And even though their heart goes out to this poor family, they say it's not a case. And if there is a case, then they're willing to absolutely stand up and say so, even though they're being hotly cross-examined and attacked, which is the defense lawyer's job. So, the most critical thing is to find somebody’s opinion that you can trust. It’s also important that the expert is someone that you can relate to and that you like. Because guess what? Juries are like you. They're people. If you like 'em, the jury probably will. If they’re kind of arrogant and impressed with themselves and too busy to be bothered, even if they say the right thing, they're probably not going to be a very good witness. And then of course, how they articulate their opinions. They've got to express their opinions in a way that a layperson can understand. They've got to relate to people, and good doctors can do that. If they have a good bedside manner, they'll probably be a pretty good witness. Many doctors don't have a good bedside manner.

LD: How would you describe your style as a lawyer? You’ve been so successful over your career – what sets your approach apart?

JB: I think those of us that are really successful have to think out of the box. You must look at things several different ways. You need to make your experts think out of the box, and that goes for the person you are cross-examining, as well. Those of us that are good at this have learned to question everything, break it down into its elements and then use that in your development of the case. Ultimately, the other thing that really makes a difference is case selection. You have to visualize a really good case and spend considerable time and thought considering how you're going to present that to a jury so they get it. Lawyers tend to lose themselves in the details, and we think we understand it, but we forget that the jury may not understand it. Finally, preparation, preparation, preparation, of course. I know brilliant lawyers that do amazing things from the seat of their pants. They're gunslingers and they're good at it and more power to 'em. That’s not how I operate. I’m overprepared.

Those of us that are good at this have learned to question everything.

LD: Lawdragon was founded 20 years ago this year. What changes have you noticed in your practice over the last two decades – whether that’s changes in medicine, or recent changes in wrongful death caps? 

JB: There've been lots of changes. You mentioned caps. We have operated under really arbitrary, stringent, totally unreasonable caps in a very liberal state since 1975. It’s stunning that with a democratic legislature and a democratic governor and the supermajority, over all those years we did not get it changed. It finally did, and it went up a little bit. It's not fabulous; I still have to tell people who lost their only child that I probably can't afford to take their case. It is better. The death cap is higher than the injury cap, and you can get more than one cap in some special circumstances, and that helps. I hate to say it, but it's an accounting analysis. You have to stay in business. It’s a practicality that I find people understand when you explain the business practicalities to them. They don't like it, but that's the law. The new caps have changed how we evaluate cases recently. Certainly, the fact that we can operate remotely now with meetings, depositions and court appearances, has changed the practice dramatically. Medicine is happening by Zoom, and law is happening by Zoom. It wasn't very long ago that no court would ever consider having a hearing without the lawyers being present.

LD: How did you become a member of the bar in Hawaii, by the way?

JB: I started working with a lawyer in Hawaii and other lawyers began referring many cases to me and I was admitted on a case by case basis. With so many coming my way, it was apparent that I needed to take the Hawaii bar. I passed it in 1980 and it’s been a significant part of my practice ever since.

LD: Are there any updates on your book, “Acts of Omission”? Can we expect another one from you?

JB: I’m really busy, but I want to start organizing my time better and get back to it. I’ve got to find out what happens to those people. 

LD: I like that you put it like that.

JB: That's what happens when you write. The characters just develop a life of their own.

LD: Finally, what do you find most fulfilling about your career? 

JB: Making a difference. Helping people that have had their lives impacted. That’s everything. When I can help, it’s worth spending a lot of time making their life a little better. You can’t fix what’s happened, but you can give them some security and some help. We’re so lucky because we can make a difference in people’s lives. Isn’t that what it’s all about?