LAW DRAGON LAWYER LIMELIGHT: MICHAEL KELLY, RICHARD SCHOENBERGER AND DORIS CHENG
Posted on January 22, 2020 in Walkup News
Photo of Doris Cheng, Richard Schoenberger and Michael Kelly by Rory Earnshaw.
It would be challenging to find any three law partners who together have done more for injured plaintiffs and their families than Michael Kelly, Richard Schoenberger and Doris Cheng of San Francisco-based Walkup Melodia Kelly & Schoenberger. Each has a long track record of multimillion-dollar verdicts and settlements as well as a proven commitment to education and public service outside the courtroom. The partnership’s shared vision of service to clients and community has continued Walkup Melodia’s long-earned reputation in the Bay Area and beyond as a legal institution of achievement and integrity.
Lawdragon: How would you describe the firm as a place to work?
Richard Schoenberger: We work in a collaborative environment where we often round-table our cases and/or try them together. I like to think that we take our cases very seriously, but not ourselves. We are privileged to have the most serious cases imaginable, and as such, there’s never a dull moment. We like to keep our reputation as real trial lawyers who are trustworthy and talented. So, we take risks where we need to do so and never back down from a good fight.
Michael Kelly: We are blessed to have a firm culture where we are united in our mission to make life better for clients who have had life-changing injuries. The diversity in team members’ backgrounds, educations and life experiences permit us to widely collaborate in our case framing and messaging for juries. The result is a law firm where everyone’s views are respected and there are rarely wrong answers.
Doris Cheng: The cornerstone of our firm is respect. We are conscientious about respecting each other as people, as critical thinkers, and as advocates. We recognize that each person in our firm has valuable insight and creative ideas. No one in our firm is shy about having a voice and using their voice. Our confidence in our attorneys and staff empowers us to collaborate freely as partners on our cases and for our clients.
LD: Are there aspects that stand out about the firm’s culture or philosophy of client service?
RS: We care about the clients above all else. We never make decisions that don’t have our clients’ best interests in mind. It begins with our extremely fair fee agreement and commitment to communication. We also recognize that our clients’ best results are directly related to our willingness to take their cases to trial. We are known as a true trial firm as opposed to a firm that settles for less. That serves to maximize our clients’ recoveries, which is the ultimate goal.
MK: From the very beginnings of our firm in 1959, Bruce Walkup instilled a philosophy requiring that our clients’ interests always be placed first. While that concept is not novel and is a universally accepted ethical tenet, it makes a difference when the founder trumpets that principle regularly and with zeal. For this reason our decisions on prosecution, tactics, venue, settlement or trial are always prefaced with this question: Is the client better off?
DC: Our clients have endured some of the greatest losses in human experience. They have lost loved ones, their independence, or sometimes hope. Our mission is to maximize their recovery with the aim of improving their quality of life. We hope that means every resolution supports their most important needs, whether their needs are physiological, medical, safety, security, emotional or societal / community consciousness. We listen carefully to our clients’ needs so that we can answer the question as to whether we have ably served them.
LD: A firm like yours must get so many inquiries. Can you talk about how you decide what cases to take on?
RS: We have the luxury of receiving literally several hundred calls or inquiries a month and remain quite selective so as to be able to devote the time, resources and attention necessary to do our best for individual clients. We typically take cases involving catastrophic injuries or wrongful death and are fortunate to have a group of lawyers well-suited to handling cases of all types.
MK: There are always practical questions in deciding to take new cases: Is there enough time? Do we have sufficient resources? Is the issue one we have faced before? Will we need additional staffing? Can we affect a meaningful positive change in the client’s life? Beyond that, we ask if we are advancing a broader societal good by taking this case. Will we be making new law? Is there the opportunity to set an example and make the community or the larger world a safer place?
DC: Above all else, we want to make sure that we are a good fit for our clients. Do we have the right experience, expertise, and interest? How much can we help the client and how just is the cause? The answers are easy when fault is clear and the client’s loss is deeply sympathetic. The tougher cases, and where we excel, are the cases that take tenacity and technical-scientific expertise to prove fault and win in a meaningful way for our client.
LD: Perhaps each of you can discuss a case recently resolved that was significant.
RS: In June of 2018, an attorney from San Luis Obispo contacted us to try a difficult personal injury case in San Luis Obispo where his badly injured client had been riding a motorcycle and rear-ended another vehicle on a highway grade. The plaintiff alleged that the general contractor had negligently managed a nearby construction zone that set the stage for the collision itself. The defendants denied any wrongdoing whatsoever and offered nothing whatsoever to settle the case. We agreed to try the case and in August of 2018 obtained a $5.5 million verdict, one of the largest in the county’s history.
MK: I recently concluded an obstetrical negligence case for a non-English speaking Hispanic woman who together with her husband had completed her family and sought pregnancy counselling and contraceptive services from our largest statewide HMO. The defendant obstetrician prescribed and inserted an IUD without administering a pregnancy test. The client was pregnant and should not have received the IUD, which could not be retrieved and ultimately caused significant and permanent intrauterine injury to the fetus. This mistake exposed the family and the infant to horrible hardship, and literally millions of dollars in attendant care and medical expenses over the child’s lifetime. In resolving the case we were able to provide the infant with optimal lifetime medical and rehabilitative care and reduce the stress of the parents by guaranteeing their son would be taken care of even after the parents passed away.
DC: I had the privilege of representing a young man who was badly burned in a chemical explosion due to a defective machine used to fabricate semiconductor wafers. We broke through a number of barriers in a tight knit high-tech industry to uncover negligent safety and engineering decisions that affected the lives of everyday workers who use and clean the machines that manufacture luxury goods, such as microwaves and cell phones. We worked with courageous experts who were willing to reveal trade secrets and intellectual property to make their industry safer. Our client had multiple reconstructive surgeries. Even though he will never return to gainful employment, he now has the resources necessary to provide him with full-time care and support. He has the spirit of a champion and continues to pursue as many activities as possible.
LD: Could any of you discuss ways in which your practice has changed since earlier in your career? Are there ways in which running a successful personal injury practice is more difficult than before?
RS: Obviously, the more seasoned we have become in our careers, the more serious our jobs have become. Though we don’t treat any client differently than another as far as our level of commitment and preparation, there’s a big difference between a client who has suffered an injury valued at $100,000 versus one whose case may be worth $10,000,000. Those who are catastrophically injured are at great risk without the financial and emotional resources to make it from day to day. Our most badly hurt clients are looking upon us to make decisions that will, we hope, bring them a lifetime of security and support. As our experience has grown, more of our cases are comprised of those types of cases. Truthfully, because we have been doing this a long time, and have track records of success, we are privileged to be retained by some of the most damaged in our society. That’s a heady responsibility, but because we have so much experience, we never hesitate.
MK: Certainly the most significant change I have seen over the last 40 years has been the rise in the use of alternative dispute resolution mechanisms and the pendulum swing on the part of the courts in favor of arbitration versus jury trials. The efforts of business interests and corporate lobbyists to demean the work of jurors and the value of the civil justice system, which began in the 1950s, began to bear fruit in the early ’80s. And it has only picked up steam since then. The problem of the “vanishing jury trial” is not something that happened by accident. What we see today is the result of a carefully orchestrated public relations plan to limit citizen participation in the justice system. Multinational corporations and big businesses are winning this battle. It would not surprise me if civil jury trials disappear altogether sometime in the next 30 years.
DC: One of the most significant changes in the practice of law is the increased use of computer interfaces versus in-person interaction. Our lawyer-to-lawyer, client-to-lawyer, court-to-lawyer interactions are much more reliant upon emails, instant messaging, and even court calls. Deciphering tone, intention and motivation is much more difficult when you are not communicating in person. It is not surprising that civility training is necessary or that case closure takes longer. Today, it takes intentionality to build rapport and trusting relationships with each other, but it’s worth it. We lift up the status of lawyers and the profession when we demonstrate civility and respect for our judiciary and our fellow advocates.
LD: How would each of you describe your style as a trial lawyer? Do you have any specific strategies or lessons when it comes to connecting with jurors? Each of you has a long track record of success – please share any thoughts about what it takes to build the type of record that leads to a Lawdragon 500 distinction or any of your other major awards.
RS: My style is pretty straightforward. I am the same person in the courtroom as I try to be outside the courtroom – credible, sincere, genuine, and authentic wrapped inside a sense of humor (mostly self-deprecating). I treat the opposition with respect, especially in front of the jury, and do everything I can to out-prepare them. I listen to my partners with whom I’m trying the case and attempt to infuse a sense of fun into the process so that we don’t all die from stress. Also, lawyers have a reputation for being slick and less than honest so to behave in the opposite manner gives you a huge leg up. Sad, but true.
MK: My style is an amalgamation of what I have learned from lawyers I have watched, read about and studied. I would hope that my style is honest, transparent, passionate and energetic. One thing I’ve learned for sure is that jurors do not like to be bored or talked down to. As a result, I try to make my presentations simple, brief, intelligent and focused – avoiding redundancy, or belaboring testimony and making sure to give your jurors credit for being smart and attentive.
DC: I hope that I am the same person in court than I am in any other setting. My goal is always to be sincere, trustworthy, helpful, attentive, and thoughtful. I respect the attention of jurors and strive to consume their time only with evidence that is meaningful and useful to their deliberation. Additionally, I want to make their jury experience and service worthwhile. That means teaching them something new that will help them see themselves as they relate to my client and judge the defendant in the proper context.
LD: Can you go back to earlier in your life and describe how you became interested in having a plaintiffs’ side practice? Did you consider doing another type of law? For example, Richard, did you consider remaining a prosecutor for your career?
RS: I never saw my career with Walkup coming. I just knew I wanted to be the best trial lawyer I could possibly be and felt amazingly fortunate to have been hired by the Alameda County District Attorney’s office, then considered the best group of prosecuting trial lawyers in the state. Trying cases is the thing I do best, but outside of a DA or public defender’s office, there aren’t too many places where you can make that happen. So, I loved that job – the camaraderie, the quality, the teamwork. But when Walkup called, I was advised by some lawyers I knew that it was an opportunity I should not deny. They saw the lawyers at Walkup as the best civil trial lawyers in the state. And, they were they right.
At the end of the day, I do the same thing as I did with the DA’s office: I prosecute cases (only civil instead of criminal), I work with amazing trial lawyers and people, I don’t bill hours, I bear the burden of proof so I get to go first instead of being on the defense and I work on extremely interesting cases where I do justice for deserving clients. So, I never thought I’d be a career prosecutor, but I never imagined I’d land in a place that so ideally suited my strengths. I am forever grateful.
MK: I don’t think I ever gave a lot of thought to what kind of practice I would be involved in until I was actually in law school. During law school I had the opportunity to clerk for a plaintiff’s personal injury practice, and got to see firsthand how lawyers could make immediate and positive impacts in people’s lives. I was struck by what an important job it was to make sure that injured people could put food on their table or take care of their families during their disability – and how without skilled personal injury lawyers, and the contingent-fee system, innocent people would suffer needlessly. It was an easy choice for me to stick with an area of the law where real wrongs were corrected, real change was affected, and hard work was rewarded with positive outcomes.
DC: I took a trial advocacy class in law school, and for the first time in law school, I felt at home. I knew then that I wanted to be a trial lawyer. I wanted to use my voice to build a case, support a cause, and achieve justice. One of my professors introduced me to the Walkup firm in my second summer of law school, and I met people who did just that – intelligently and cogently built a case; supported a just cause; and took care of people. That was my practical introduction to achieving justice, and I have loved this practice ever since then.
LD: What advice do you have for current law students who might be interested in a personal injury practice?
RS: I’m biased, but I always tell folks to go out and cut their teeth trying cases in a PD or DA’s office. Then, when they come on over to the world of civil law, they will have that experience under their belts. Armed with those trial skills, they’ll demonstrate that they’re not afraid to try cases and will default in favor of trial as opposed to the often-easier choice of settlement.
MK: I would tell them to go hang out in courtrooms. Meet lawyers who try cases. Ask questions, network, volunteer to work for the lawyers who look like the best they see. Take note of how jurors look when the evidence is presented. Find a position as early as possible in law school that gets them near lawyers who try cases. Network with those lawyers. Volunteer if necessary to get experience.
DC: My advice to law students is to travel and read as much as possible. You can only serve people well if you understand the human condition. The human condition comes in many different forms, affected by socio-economic factors, race, religion, custom, culture, sex. We learn about people and their condition when we meet them and learn their histories. If we can’t even imagine walking in someone else’s shoes, we cannot competently serve them.
LD: To take that one step farther, are there certain traits you look for in younger attorneys or potential new hires?
RS: Yes, people who don’t just want to try cases, but actually feel the need to do so. That is, when they are chasing their bliss, it is not simply being a lawyer or a litigator or someone who does transactional or tax law, but rather someone who really needs to try cases in order to be fulfilled. They need to be willing to work hard and listen. And they need to have character and integrity.
MK: We try to find candidates with empathy, humility, intelligence, and “street smarts.” Because our work involves trials, it’s important that our lawyers have life experience and understand how to communicate with the people who show up for jury duty. And it probably goes without saying that we want new lawyers to have a sense of fairness, justice and the importance of the civil justice system in protecting the average citizen.
DC: I want to work with people who crave knowledge and action, who want to serve our clients, and who will listen and consider different opinions and philosophies.
LD: Each of you is very active in terms of public interest and extra-practice activities. Doris, maybe you can talk about your 2019 stint as President of the San Francisco Bar Association. Rich and Mike, you are involved in associations and teaching. Can you speak about this and why your involvement is important and if there are issues that you focus on?
RS: I know I can speak for Mike and Doris when I say that teaching has been a perfect outlet for us to give back to a profession that has given us each so much. We know how stressful trying cases can be and how trial work itself is in danger of becoming a lost art. But, trial by jury in many ways sets us apart from autocratic societies and helps keep us free from tyranny. So, our desire to teach is part an effort to boost the confidence of those willing to dare greatly in the courtroom and part a grassroots effort to ensure the vitality of the most important ingredient of our rule of law – trial by jury.
Watching young lawyers get the hang of trial advocacy as a byproduct of one’s teaching is immensely satisfying, especially because the students may go out and do some good things of their own for society armed with what we’ve equipped them. Plus, we’re all hams in one way or another and we get to try out our material on unsuspecting students..
MK: I have been involved in teaching since 1980. I spent 20 years as an adjunct faculty member at UC Hastings teaching trial advocacy and trial practice. In the early 1980s I started teaching for the National Institute for Trial Advocacy, which led to teaching opportunities with an American Bar Association Rule of Law Initiative, and that in turn gave me opportunities to teach in eastern Europe, Great Britain, South America and Asia. My teaching opportunities have provided an opportunity to be a cheerleader for our system of adversarial justice. I believe deeply in the importance of our constitutionally guaranteed rights of trial by jury. Mentoring and teaching and guiding others to be better advocates is an essential requirement for the adversary system to function correctly. There is great satisfaction in seeing less experienced lawyers develop into better advocates through structured programs like NITA training and Bar Association sponsored advocacy training programs.
DC: Service is an honor. And it has been exactly that – an honor – to serve as a teacher, speaker, collaborator or leader in any endeavor that promotes trial by jury and the rule of law. I truly believe that the American adversarial justice system is the most fair process for adjudicating civil and criminal disputes. When we share different techniques and methods for advocating justice, we raise the bar for our legal system; we promote a fair and equitable process for helping the people in our society resolve genuine differences of opinion about important rights; and we fortify the belief that we, as a people, deserve ethical and competent representation in a fair forum. I have spent the last five years as a program director for numerous advocacy training through the State Department’s Caribbean Securities Initiative, and we have changed the efficacy of the justice system throughout the Caribbean. As President of the Bar Association of San Francisco, I established three training programs to promote women trial lawyers in the courtroom. The dark reality is that if we do not serve our profession, we surrender its value and the consequences are serious – consider the effects of legislative budget cuts to our courts and our judiciary.