Fifty years: same firm, same building, same parking space. “There is something about stability in my background,” Dan Kelly says as he reflects on his legendary career. There is also wisdom to be shared, which Dan does with host Kevin Morrison in the inaugural episode of “Verdict Academy.” A retired partner from Walkup, Melodia, Kelly & Schoenberger and a contributor to “Plaintiff” magazine, Dan discusses three fundamental aspects of trial practice: case selection, handling losses, and working with expert witnesses. Tune in for his insights about stability, resilience, and the human side of trial practice.

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Welcome everybody to Verdict Academy.

Our guest this week is Daniel J. Kelly,

one of my favorite people

and favorite attorneys.

Dan needs no introduction,

but having said that,

lemme say a few words about him.

He is in the big four invitation

only organizations abo a

International Society of Barristers

where he served as president,

the American College, of course in IETL.

He is a legend here in San Francisco.

He has not only been the president

of a San Francisco chapter of ABO A,

but he's received both our highest awards,

the Don Bailey Civility

and Professionalism Award,

as well as the Legends Award,

which you have to be on this side

of the grass long enough to receive.

Dan is a Bay Area native,

I believe he's born and raised in the

North Bay and then went to school educated

both undergrad and law

school in the South Bay,

a big part of the Santa Clara community

down there in law school. And then he

was only able to hold one legal job his

whole career at Walkup where he probably

was a partner for, I don't

know, 30 years or something.

One of the best firms in

the history of California.

Dan is an excellent trial

attorney and not only that is an

author in the field.

There are many times when I

relied on his three volume rudder

guide, personal injury guidebook,

which probably got me through more than

one malpractice situations that didn't

know what the statute was or that didn't

know which side of the V to send a

discovery to. So Dan Kelly,

thank you so much for being a guest

here in Vertical Academy today.

Thank you, Kevin. I almost

believed everything you said

about my qualifications,

but thank you.

Absolutely. Do I have that right? You

spent your whole career at Walkup?

Yes, that's correct. Over 50 years. Not

only that, it was the same building.

I parked my car in the same

garage for 50 years. Fortunately,

it was not the same car all

that 50 years. But yeah,

there is something about stability,

I guess in my background.

I didn't make many career moves.

I think the biggest move was when we

moved from the 30th floor to the 26th

floor in terms of the abating, asbestos,

and so four floors, that's

my career move in 50 years.

Love it. That says a lot. You're

obviously a thoughtful guy,

you're a great writer.

You wrote some great articles in Plaintiff

magazine about the practice of law.

How did you decide or how

was it that you became a

trial attorney?

Well, I actually started

off in law school.

There were a group of us who thought

we were going to be trial lawyers.

I think I'm the only one on to do that,

but we piled in a car and

came to San Francisco.

We were in the second year of law school.

We did it both the second year and third

year and went to the Nate Cone seminar

and Nate had assembled

whether James Martin McGinnis,

Mel Jake early, I mean the cream of

the crop in terms of trial lawyers.

And it was a full day

and we did it again in

my third year of law school. And I was

really impressed with these lawyers.

I mean, they seemed to be

comfortable in their skin.

They had great fun among each other.

They put on constructive

programs and the like,

and I thought I'd like to do that.

Then I had a tax

professor who said that the highest

paid lawyers that he had worked

with in terms of tax law were

plaintiff's personal injury lawyers.

And so I thought, well, that sounds

pretty good as well. So anyway,

it was a combination of those two

that led me in that direction.

Plus my father over the years, he

and I would get in, not arguments,

but we'd debate a little bit

and he'd always close by saying,

I think you ought to be a lawyer. So yeah,

it came to fruition with all

of those things combined.

Yeah, and yeah, of course

you get to the walkup firm.

And what year did you start there, Dan?

I started 1969. I came on board.

I actually wrote a brief to the California

Supreme Court when I hadn't been yet.

I was awaiting bar results

and I wrote this thing and it

just so happened it was an AC brief.

I couldn't even sign the thing

because I wasn't a lawyer

and Dave Harney was involved

in the case and Bill Camusi and

a lot of big name lawyers

were involved in this thing.

And I guess the word got

back to Bruce Walkup.

This brief was really well

written. I won't mention names,

but the guy that signed it took

all the credit for the brief.

And I guess at lunch one time,

one of my contemporaries said to

Bruce Wup, no, he didn't write it,

the new kid did.

And so I was called in and Bruce Wup said,

did you write the brief in Margo?

And I didn't know my whole career I

thought was shot right there. And I said,

yes, I did.

And the next day there

was a memo and I was to be

his associate and not the associate

of the guy that signed the brief.

So it all kind of came together that

way and that's how I really started

work with Bruce Walker.

You basically, you worked with him

until he retired? Do I have that right?

Actually first three or four years,

we tried a lot of cases together and then

it kind of one of these things, well,

you're on your own.

And that first happened

in a case in Utah where we

had the wonderful experience of suing

the Mormon church that owned the

hospital,

and we drew a Mormon judge and so on.

And so I think Bruce said, why don't

you handle this from here on out?

So I tried that case and it resolved

in terms of a settlement in the second

week. And then it was kind of like, okay,

well you've been in the water long

enough and you know how to swim,

so you're going to be swim on your

own. So off I went. That's the.

Way to do it, build up

that scar tissue. Daniel,

the purpose of the podcast basically is

a couple of things since the pandemic,

maybe before that,

but the pandemic certainly accelerated

folks working from home and less

interaction in the office. So we want to

kind of reinstall a little bit of you,

water cooler talk. And so

believing in the rule of threes,

I understand there's three things we

want to talk about in today's podcast for

our busy trial attorneys out

there. One is case selection,

one is losing and how

do you get past losing?

The third is the use of expert witnesses.

Let's talk about those one

at a time. Case selection.

Tell me about your views on

how to select a case and the

importance of that for a young

trial attorney out there.

Well,

of interest to me recently I read an

article where somebody was talking about

it. They have an algorithm in their

firm and that tells 'em whether to

take the case or not.

And it's all done through

paralegals interviewing

clients. And to me that's

completely foreign.

I wanted to sit down and meet

with the client firsthand. I mean,

this is somebody, plaintiff's world,

you're going to be trying to sell a

jury on the quality of this person.

And it's a world of first impressions.

So if your first impression

is this is not a saleable

commodity,

you can get used to them over the

long haul and working with them.

But the first impression

is still very important.

And that's something I think

the lawyer has to get ahold of.

The other thing is you cannot

have any client control,

as far as I'm concerned,

not ever meeting the client.

And as you know, Kevin,

tail end of my career, I was doing

a lot of mediations and sadly,

sometimes the first thing I had to

do was introduce the plaintiff to

their attorney at the mediation.

And that doesn't bode well. I mean,

I always said that I think a plumber

gets more respect than a lawyer.

If the plumber came in and said, Hey,

you got a U joint underneath the sink

and it's this, that, and the other thing,

you'd say, okay, fine, fix it so on.

Well, a lawyer, they're skeptics,

and if they don't meet you

until the tail end of the

case, it's a little tough to

establish appropriate client control.

You really have to instruct

the client along the way in

terms of appearance at trial,

all kinds of things like that.

If you've never met them,

how can you instill confidence in

them at the last minute? So to me,

it's extremely important to meet with,

talk to and get some idea of what this

person's all about.

And the other thing is

people think lawyers are, oh,

we're advocates and we're this,

that, and the other thing,

when I first started practicing,

I said, attorney counselor,

there's a big component

of counseling people.

They've never experienced things with

lawyers. This is the first thing for them.

And there is counseling and particularly

plaintiff's cases of people that have

suffered a loss,

either be it a family member

or a tragic injury or whatever.

And so counseling to me

starts right from the get go.

It's really the most

rewarding thing of what we do,

isn't it Meeting these folks who've

gone through some of the worst,

probably the worst time of their life,

or one of the worst times of their life,

and getting to know them and working

with them and getting through that time

together.

Yes, and I must say, I think

you have to be honest with them.

I told people that if your

heart went out to everybody,

and it does when you see these

people and what they've been through,

but you can only put so much out there.

And they have to understand

that I would talk to them and

understand their grief, their sorrow,

their loss, whatever, but also tell 'em,

I'm not here just to mouth platitudes.

I'm here to represent you

and do the best job we can

and we can only do that

working together. So again,

I go back to the human experience

of sitting down talking to

people.

Yeah, there's so much

pressure on our time.

We're all so busy and it sounds

so inconvenient to leave the

office and get in your car or whatever

and go visit your client at his home.

But every time I've done that,

I've come away from that meeting a way

better lawyer, a way better person,

a way better advocate for that client.

Exactly. And I think it

works the other way too.

They come out of this

appreciating the lawyer,

appreciating the counseling

and being able to rely on that

lawyer and what they say on down

the line as the case progresses.

Great point. Let's talk about everybody's

favorite topic, certainly for plan's,

lawyers, and that's losing because

we always like to tout our losses.

Tell me about losing Dan and

how do you get through a loss?

Well, the first case I really

tried was against Dick Siggins,

like Goodmanson, Siggins

and Stone, great guy.

And I lost.

And so I got that out of my

system pretty early in my career.

I think I shared with you, Kevin,

that I think the next

case was Dan McNamara.

Then there was another name partner, oh,

Francis from Carol Burdick and McDonough.

And suddenly I realized I'm not

trying cases against my peers.

I'm trying cases against

these name partners.

So I lost the first one. I've lost others.

And quite frankly, it's

not easy to lose. I mean,

nobody likes to lose,

and are you going to have a

psychological trauma because you

lost a case? I mean,

there are so many things that happen in

trial that you and I both know you have

no control over.

I always said try to

get help from within and

not from without.

And by that I mean to me it was like

exercise.

I could go work out and

kind of get through things.

And I think when you talk about

working from within, sweat

comes from within.

Other people try to get

over that by drinking

or the use of drugs, in other

words, things from without.

And it doesn't work. I mean,

those things may have

a temporary solution,

but they have no future nor will

anybody that relies on those things.

You have to forgive yourself.

And somebody once said,

the person that's most difficult

to forgive is yourself.

So you can't sit there and you must

learn from what you've done and

maybe a reason you lost. You have to

analyze it and then move on. I mean,

you have to get back

on the horse basically.

And I do know some lawyers that fell

off the horse and never got back on.

Because of a loss.

And also fell off the horse

and fell off the wagon.

Well,

there's so much pressure and especially

I started practicing the early

nineties, so I saw maybe

towards the end of your career,

now that we're in the mid

twenties 30 years later,

there's so much media and

so much publicity about

these big 7, 8,

9 figure verdicts and everybody

touts on the billboards or

TV ads or on the internet

how successful everybody is.

And so now if you try

a case and lose or get

a bad result,

you feel less than because

you're not measuring up to all

what the media or what social media

is saying about what successful

clamps are doing.

And that's a whole new world,

at least from where I was to what

you're talking about now. I mean,

I see on TV somebody's examining

a witness and takes a water glass

and breaks it in his hand. I mean,

I guess people at home think

that's what lawyers do.

And it's tough. It's tough to overcome

that. And as you say, have the pressure.

Also, you have the pressure now of costs.

I mean the cost burden of these

cases is not what it was way

back when.

And I wrote an article where I talked

about packing up my briefcase after a

trial and I put a footnote, yes,

it was possible to try a case using a

briefcase, not 47 boxes,

et cetera, et cetera.

But nowadays it's a whole new

world and electronic world.

Let me just tell you one thing.

I never was comfortable using all this

state of the art stuff. State-of-the-art

for me was an overhead projector.

I plugged one in San Jose and the

power went out on a sixth floor

courthouse. The power went out.

The next time I thought I was being

such a genius with high tech stuff,

was something as sophisticated

as a slide projector.

And I put the slide in and it caught

on fire. After those two incidents,

I thought maybe I shouldn't fool

around with stuff that I have no

understanding of and resort to posters,

diagrams and that type of

thing sounds primitive,

but for me it worked. And if I

got beyond my level of competence,

I was in trouble.

Back to losses real quick.

So you were trying cases in the seventies

and eighties and back then people were

trying cases with much more frequency.

So let's say you lost a trial,

you go down to the local watering hole,

whatever it is or whichever

one it is around here,

would you talk about the loss?

And we loss is more viewed as hey,

that's what happens when you go

to trial. You lose sometimes.

I guess what I'm asking is were people

more willing to talk about the losses

then because they were trying more cases

and of course you're going to lose if

you tried cases.

Yeah, I think that's true.

And you mentioned there were

like 12 or 14 of us in the

office when I started in terms of

lawyers and we were tight knit group.

And so before trial you'd be

talking about things and how do I do

this, how do I do that?

And then after trial,

we'd exchange info back

and forth. There was no,

I mean you knew you

lost, they knew you lost.

They knew that you didn't feel good

about it, but you have to get over it.

And I had,

I would say a counseling group of about

12 other lawyers that you can say have

been there, done that, great lawyers

and they've all taken a flop. I mean,

it just happens and you

have to get over it.

Yeah, not going to help a lot of clients.

If you stop practicing a law after a

loss, right, future clients that need us,

you're not going to help.

Yeah, exactly.

Sometimes it's just, this

sounds kind of corny,

but sometimes it's just

the fight that matters.

Sometimes you just need to in and try

a case and if you lose it, you lose it.

But it's just kind of helpful

your client just to fight for him.

Oh yeah. You see all these ads now on tv,

I won't mention names,

but one of these guys I did a

mediation for and he was touting

about this great trial record. I

said, if you've got that many trials,

send me your list of trials and

I'll see if I can propose you for

membership in a ota. I'm still

waiting. And that's been 10 years ago.

So I'm still waiting. And quite frankly,

I had one lawyer come in and tell me

I wanted to hit him, quite frankly.

He said, you know what this case

is all about Dan. I said, no,

I mean tell me I've read the facts

and so on. But he said, well,

this is a pump it and dump it.

I said, what? And he said, yeah,

you know what it is? It's in the trade.

We call it pump it and dump it. I said,

what are you talking about? He said,

well, but you pump up the damages,

you do this, that pump it up, pump it up,

and they know you're going to dump it.

Well, yeah, that word gets around

the dump, part of it gets around,

believe me. And you have no

credibility with insurance companies,

defense counsel, so on if

that's your mo. And sadly,

I think a lot of these people that

tout themselves as trial lawyers,

it would be like me saying I am

an expert in jet propulsion or

something ever having done that, so.

Fair enough. So moving on to

our third topic here today,

expert witnesses.

I know you tried a lot of medical

negligence cases as I understand it,

where experts, it can be

important sometimes for a

jury to make a determination.

Talk to me about your philosophy

on expert witnesses, Dan.

Well, it started out doing

medical negligence cases.

Most times you were so happy

you even had an expert and

who was willing to testify

against a fellow physician.

Sometimes they had to travel

quite a ways to get there.

I once had a neurologist

testify who flew in from Miami,

and I remember defense counsel asking

him How many neurologists you teach?

You think you flew over to get

to California to testify here?

But you had these experts and

I think the key was I soon

learned that you have to sometimes

confront those experts with the tough

questions that they're going to

face either in deposition or trial.

And as a young lawyer, you say, boy,

I'm just happy I have this expert.

I don't want to upset 'em,

but you really have to probe and make

sure they're ready and kind of locked

and loaded. I think I told

you, Kevin, back then,

I used the phonetics of what an expert is.

I said,

X is A has been and a spurt

as a drip under pressure.

That seemed to kind of explain

some of the people I saw as

experts. So times have changed,

but a lot of these people

are still phonies and have

credentials or testify a lot.

I sat as a judge pro tem many times

and you'd see experts come in.

One guy, for example,

I knew had testified probably a

hundred times for the defense and

maybe twice,

and it was mid-January and he was asked

how many times he testified for each.

He said, well take this year

for example. And he said,

it's been even, I've testified once for

the plaintiff and once for the defense,

and the lawyer accepted that and I

thought it's January and he is already

testified twice. But anyway,

you see people like that and

they're out there and they crumble

if handled appropriately by good

lawyers in cross-examination.

Was your philosophy then when

you'd retain an expert witness,

would you go meet with that expert

and make sure they understood, intend,

do a mock cross with them to see how they

withstood or how would you handle that

to make sure they could

hopefully withstand the

cross-examination at trial when

there's an inevitably bad

facts that are exposed?

Yeah,

ideally you would do

just that is meet with

them, go over things. Initially,

I can give you an example of what I was

going through as a plaintiff's lawyer.

I retained an expert that was used by

Dave Horney and this was a Southern

California expert, and he

had reviewed everything,

his secretary or phone

me and said that he was

ready and so on. We

scheduled his deposition.

I flew down to la. He said,

we just meet over lunch and

the depositions at two o'clock.

He opened the packet of

records when I arrived at his

office and I thought, oh my God,

he hasn't even reviewed this stuff.

And somehow in a candlelit restaurant,

he was reading the records as I

was almost choking over lunch,

but he was my expert. What are

you going to do? I think to me,

the two things that

bothered me most logistics,

one of trying a case is not easy.

Making sure everything comes

together and people show up on time.

And the other thing was

experts because they can go

sideways and often do,

and hopefully you can get a hold of

things from the get-go and not experienced

what I experienced an hour and

a half before the deposition.

How about defense experts? What's

your philosophy on defense experts?

How would you handle those at trial?

Would you go after bias issues?

Would you try to get all

the good stuff from 'em?

Did you have a general philosophy as

what you do with the defense experts?

Well, the first thing I would do is a

lot of research before getting there,

and I always thought if Line

Enemy had written something,

you can get your hands on stuff.

I watched Bruce walkup one time

cross-examine a radiologist,

and the guy had turned the lights off to

look at the films, the defense expert,

and he spoke a rather loud voice. In

fact, the more you confronted him,

the louder he got on and on and on. Well,

he had written an article

in a radiology journal,

and one of the things he concluded

was that the average juror doesn't

understand the difference between a

radiologist and a radio repairman,

and you don't need to turn the

lights off to look at an x-ray,

but it really impresses the

jurors if you do so on and

on and on. And if you get

really confronted, raise

your voice, be more firm,

that type of thing. So yeah,

I watched these really good lawyers

and the first thing they did is

they found out everything

they could about the expert

and be that talking to other lawyers,

finding out where they testified,

so on,

and doing your best armed with

that type of stuff to cross

examinee them.

Yeah, it's incredible sometimes how folks

forget the articles they wrote and the

positions they took when it was

just a pure academic exercise.

And then when the money gets paid

to advocate a certain position,

that seems to go out the window sometimes.

Yes.

I must say having co-authored the

Rudder Group Practice Guide and

serving as an expert

witness maybe a dozen times,

I can tell you that it works the other

way where you're sitting there trying to

explain that. I just wrote

chapters 1, 3, 5 and seven,

and you're talking about chapter four,

and I had nothing to do with

chapter four, that type of thing.

Well, that's great, Dan. Honestly,

we're basically out of time,

but is there any parting

words you want to use or

convey to some of our younger trial

attorneys who are out there trying to make

their way in this world?

I'd say taking advantage of

things like this. I mean,

education is the key.

I told you at the get go that

I wanted to be a trialer after

watching top trial lawyers.

And I also served as a juror on a

case when I was in law school and

I saw great, there was fellow Paul Dana,

the old Furman San

Francisco was Dana Bledsoe,

and he had defended

against, I can't tell you,

and he had a personal problem, alcoholism,

so on and recovered. And here he was

in San Jose and defending a case.

And I got to watch him firsthand

and I thought, holy Toledo,

this is a trial lawyer. Talked to him

afterwards and he said, I was working,

had worked in city government before

and didn't know what I was going to do

afterwards. And he said, Hey, trial

lawyer, be a trial lawyer. And I thought,

here's a trial lawyer telling

me, be a trial lawyer.

Then Bob Pelke in San Jose.

I somehow was invited to their office,

Christmas party by a young

secretary as I recall,

and there were like four men standing

at the end of the cocktail party.

And Pelke said to me, what are

you doing here? Who are you?

And I explained, and Bob said, be

a trial lawyer. So yeah, I mean,

I had nice people around me all

the time telling me those things,

but I'll never forget when

Bob Papaka was diagnosed with

cancer, he would go to mass every day.

He did that after World War

II and was a man of his word,

but we showed up trial lawyers,

members of the A ODA

chapter went to San Jose,

and we went to Mass about

50 of us with Bob Pekin.

There's just kind of this down

deep. I think we're good people.

We're carrying people.

We're trying to do the best we can

for clients that have sustained major

losses. So I think a good part

of what I would call lawyering,

where you feel good

afterwards, and as you say,

it's not nice to lose, but that's another

feeling and you have to cope with it.

Well, Daniel J. Kelly, you're a prince

of a man and a giant in our profession,

and I really appreciate

the time you spent it.

I think you got those reversed, the

smallest French you've ever seen, pal.

Thank you. Thanks for your time.

Thank you for listening

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