Hall of Fame Lawyer Limelight: James Bostwick

Photo by Rory Earnshaw.

Even now, a quarter-century after his death, Melvin Belli is important enough to command his own encyclopedia entry. Not just in Wikipedia, known for its extravagantly democratic approach to such matters, but in Encyclopedia Britannica.

In the 1980s, when the family of a man left a quadriplegic after an automobile crash asked young San Francisco attorney James Bostwick to sue him for legal malpractice, Belli was already a living legend.

Having won millions of dollars for a roster of clients that included Hollywood A-listers including Mae West and Lana Turner, Belli had in 1954 been dubbed the “King of Torts” by Life magazine and gone on to defend Jack Ruby, the nightclub owner who shot Lee Harvey Oswald to death after President John F. Kennedy’s assassination.

Known for his eye-catching trial exhibits, Belli made a habit of raising the traditional pirate’s flag, the Jolly Roger, over his San Francisco offices and firing a cannon whenever he won a case. He had even appeared on an episode of the original “Star Trek” TV series alongside William Shatner and Leonard Nimoy, playing a villain portentously dubbed the “Friendly Angel.”

Taking on Belli was folly, Bostwick’s friends told him. Suing him in San Francisco was tantamount to madness.

“He was, nationally, probably considered the best lawyer in the country at the time in terms of public opinion,” Bostwick recalled. “All the jurors were practically worshiping him when we first came into the courtroom.”

Bostwick was undeterred. He went ahead, arguing in court that Belli’s firm, which had won a $250,000 settlement for the young car-crash victim, had failed to identify potential medical malpractice claims that could have garnered far more.

The trial lasted nine weeks, but in the end, Bostwick won $6.4 million, the largest legal malpractice jury verdict in San Francisco history at the time.

That’s just one of an array of records set by the University of California at Hastings Law alum who went on to found the San Francisco-based firm of Bostwick & Peterson.

In the late 1970s, he obtained a $7.6 million medical malpractice verdict that was the largest in the country at the time and has set more records – and broken some of his own – since.

As recently as 2018, Bostwick won a $14 million settlement just before trial in a neonatal brain-injury case.

The next year, Bostwick and his partner, Erik Peterson, obtained a $17 million settlement for a woman whose child suffered a severe brain injury after medical providers failed to treat a routine infection during pregnancy. The infection turned septic, and the mother was hospitalized and nearly died. These settlements are particularly difficult to obtain in a state where non-economic damages are still capped at $250,000.

Plaintiffs’ lawyers take on such cases – some of them seemingly no-win situations -  bearing the financial risk and investing months of labor “because we fall in love with these clients,” Bostwick said. “They are people that need help and there’s nobody helping them except, maybe, us. We can’t fix them, but we might be able to make their lives a little better.”

Sometimes, the lawyers change their own lives in the process.

Taking Melvin Belli to trial, for instance, proved the catalyst for Bostwick – a fan of legal thrillers by John Grisham and Scott Turow – to begin writing a novel of his own, inspired by the case and liberally sprinkled with Hollywood pixie dust.

His now 27-year-old daughter was a baby at the time, and it would take decades – including a years-long hiatus – to finish.

“Acts of Omission,” whose protagonist Matt Taylor is loosely based on Bostwick himself, was published by Post Hill Press in May 2019.

The first edition of the book sold out, Bostwick said, and a paperback version was released in mid-2020, just as bookstores closed because of the COVID-19 pandemic.

Sales of an audio version from Audible.com “went crazy,” he said, and the tale is now being adapted into a movie by well-known screenwriter Michael Schiffer and Hollywood producer Jeff Apple.

A former client of Bostwick’s, Amanda Moriarty, is assisting with the project, providing her personal perspective since she became a quadriplegic as a teenager.

Lawdragon: Tell me about creating a character based on yourself. What was that like?

James Bostwick: In a large measure, of course Matt is me. But he also is very much an independent person. He does things that I wouldn’t do. I would do things he wouldn’t do. Like literary characters often can, which I find fascinating, he developed a life of his own. They start doing things you’d never imagined that they would. I didn’t follow an outline. I just wrote.

LD: You just wrote.

JB: Just stream of consciousness and Lord, he started doing things that shocked me. Surprised me. There are a lot of differences between Matt and me, in terms of details and in terms of approach to things, but some of it is very much me because it certainly helps to draw on your own thinking.

You’re creating the character. Many of the people in the book are very, very real people that I know, and then some of them are amalgamations. They’re completely created out of my head.

Without being too obvious about it, I tried to make sure the reader can understand why the lawyer is doing what he’s doing in certain situations and what his reaction to events is and why.

LD: While you were going through the trial, did you have any inkling that this was a very cinematic contest? Or were you just so enmeshed in fighting for your client and trying to get justice for your client against this very powerful lawyer that the cinematic quality of it was not even a consideration?

JB: The cinematic element was probably there, but I wasn’t thinking about it. It had all the elements, though. Because I was in my late 30s, I was told by everybody that I was crazy to take on a guy like Belli. The media loved him, and he was very powerful in the local bar and in the national bar, he was in all the big groups that invite you in if you haven’t made anybody mad.

I eventually became president of an organization that, when I was originally nominated, he threatened to leave. Maybe they let me in because they were hoping he would quit! I don’t know.

LD: It took a lot of courage to take him on and to see him as a defendant – possibly a difficult one to sue – but somebody who had messed up and caused harm to somebody.

JB: That’s the thing that you go through. There was no question that he was one of the most impressive early innovators in our field. The guy had a remarkably creative approach to how to try a case. And he was brilliant and clearly was head and shoulders over most other trial lawyers in the country, though that changed, of course, over time. You don’t want to think that a person who is that important to what you do had really messed up, but it became clear to me that he had.

LD: As a lawyer yourself, was there anything you hoped to accomplish with the book that you feel like other authors in the genre haven’t done?

JB: For sure. One is that many of the books that deal with trial law are really pretty inauthentic when they talk about what happens in the courtroom. They do things for effect, but they really aren’t things that happen in a courtroom in real life. Everything that is in “Acts of Omission” is meant to be authentic. And I think most people who are trial lawyers have been pleased that it is very real but it’s still fun and interesting.

LD: You definitely kept it lively.

JB: It’s funny. I used to complain to my wife that the legal thrillers were not very authentic and they were all about criminal law. She said, “Well, then write one of your own,” and she signed me up to a novel-writing course, and that’s what got me started.

LD: So you were reading a lot of legal novels before you ever thought about doing this?

JB: Definitely. I’ve loved reading since I was a little kid growing up in the hot Imperial Valley desert. At 8, 9, 10 years old, I would go and get seven books at a time, read them and then take them back and get seven more in the summer, when it was 120 degrees outside.

LD: So you read everything in the library.

JB: Basically. All the historical novels and the Westerns, I plugged through everything. I suppose that I just drew on years of reading to try to figure out how to write. Dialogue was the hardest, of course. Writing dialogue is extremely difficult.

LD: But your skills as a storyteller, as a trial lawyer – telling a narrative and being compelling and persuasive - had to give you a little comfort.

JB: That’s true. Because if you can’t tell a good story, if you don’t get the jury involved, not only in the opening statement and the argument, but also in the way you present the case, you’re not going to have a chance. You have to be a good storyteller. You have to draw them in and you have to get them interested and you have to have some suspense. Those are all the elements of a good novel.

LD: They are. And those are obviously things you’re very good at, based on your record. What has it been like seeing your brainchild adapted for the silver screen?

JB: It’s thrilling. I’m actually working right now on helping them revise the screenplay. As much as I can, I’m trying to make sure the screenplay lives up to the goal I had for the book of being authentic and having a basis in the reality of the law.

LD: Did you always know you wanted to be a lawyer?

JB: No, I didn’t. Growing up, I wanted to be a doctor. My Dad was a physician, and my mom was a nurse. I made it all the way to pre-med at University of Washington. I think it was my senior year when I finally said, “Why do I want to be a doctor, aside from the fact that my dad was one and my mother was a nurse?” I couldn’t come up with a good answer, so I decided that I wouldn’t go to medical school.

LD: That must have taken courage after you had come so far. Did you have another career path in mind?

JB: Nothing definitive. I remember thinking, “Well, what should I do?” I took the LSAT, and I scored well, so I decided to go to law school. Really, I think my concept was, “Well, maybe I’ll get a master’s degree in business and I’ll do some kind of work where I could use my law degree and a business degree.” I really didn’t know what I wanted to do. I didn’t even know what a trial lawyer was.

But I enjoyed law school, and I did well. I applied in my second year to maybe 150 law firms in the area. Everybody in the phone book, you know, and I got some interviews. Two, as it happens, were with some of the best personal-injury firms in the state and maybe the country.

One of them was Walkup, Downing & Sterns, with Bruce Walkup and Gerald Sterns. I went to work there as a law clerk, became a lawyer there and, eventually, a partner. Then, Jerry Sterns and I left and started our own firm. Two years later, I split with Jerry.

LD: Fascinating. I know you’ve had many, many record-setting medical malpractice and personal injury cases. Do you have some recollections of the ones where you started to learn your craft?

JB: Definitely. In those days, we tried lots of smaller cases. That’s where we got experience. I was handling over a hundred cases as a law clerk. I would walk down the hall and I would find a lawyer to go try a case for me, or go take a deposition, because I wasn’t a member of the bar yet. I was turning over cases. We all were, you know?

LD: That’s such an important lesson for new lawyers, and for law students. How you guys who are the masters at this learned.

JB: It was a combination of being thrown in the deep end, which we were, but also having some of the finest trial lawyers in the world to watch and to see what they did. I could go and watch Bruce Walkup try a case, and I could go watch Jerry Sterns try a case. Those are remarkable advantages that most people don’t have. Because I knew when it was happening, and I could always find a reason to go.

Then I got to try my own little cases, and eventually, bigger cases. I gravitated toward medical malpractice because I loved medicine. I can speak the language. It was just a natural for me, although I did lots of slip-and-falls, rear-enders, motorcycle accidents. I did them all, but more and more, I started doing malpractice cases.

LD: Which is where it all started.

JB: I can’t say that I really knew what I was doing, but I learned as I went.

LD: That’s the great secret, right? Nobody really does. You just take all your training and your values and you go in there and do your best. You’re going to lose some, and you hope to win more, right?

JB: And you learn more from your losses. I’ve always known that. You learn what you did wrong in case selection and choices you made preparing and strategizing the case. That’s where you get that. I was really lucky to be surrounded by fabulous lawyers. That was invaluable. Bruce Walkup was one of the greatest trial lawyers probably that this country has ever seen. Unsung by the public, but any good trial lawyer knows who Bruce Walkup was. I think he had the first million-dollar verdict. He had a $4 million verdict in a malpractice case back in the early ‘70s. To me, he always had this amazing judgment, especially in his investments, his cases. When we split off of the firm, normally there would have been a fight. In those days, everybody would back a truck up in the middle of the night and steal all the files. There’d be litigation for five years.

That wouldn’t happen with a guy like Bruce. He just was so smart. He said, “You take every damn case you have in the office and you pay the cost on them from this point forward. When you settle them, pay us our costs back and get us 50%.” We said, “OK.” That was so smart, because it gave us something to start with. It gave him people working their butts off to send him a bunch of money. He was just a smart man.

LD: That was a really constructive approach.

JB: He said, “There’s only one exception. There’s one case that you’re working on, Jim, and really it was with me, but you’re working on it. I want that one, because it’s like the one that I got the $4 million verdict on, and it came in because of that case. It’s another quadriplegic kid, and I want to keep that case.” I said, “My God, Bruce, the best thing that could ever happen to that little girl is if you kept her case. I’m totally onboard with that. I’ll explain that to her.” He said, “OK, great.”

That was the only exception to all of the cases the three of us had. He kept it, and we went off and did our thing. And then he called me about, oh, six months to a year later and he said, “Jim, you know that deal we made?” I said, “Yes.” He said, “Would you take that case on the same basis that we agreed on everything else?” I said, “Sure, of course I would. But why?” He said, “Because she calls me every week, and her mother’s died of multiple sclerosis and her father abandoned her. She has no family. You’re like her big brother. All she talks about is you.” He said, “Will you take it?” I said, “Of course.”

The point of all this is that he was that kind of guy. I took that case. I probably talked to over a hundred radiation oncologists, which was a very new field of specialty in those days, to try to find somebody who would testify for me. Finally found one in England.

LD: That’s an amazing story.

JB: That was the case that broke Bruce Walkup’s record and got me the highest verdict in the country. It was on Walter Cronkite. It was all over the news. I had newspapers sent to me from all over the world, China, Germany and India.

LD: Did Bruce congratulate you, I assume?

JB: He did, he did. He was also interested in getting 50% of the fee. Who wouldn’t be?

LD: You talked about your father being a doctor. Did he get to see what you had done with the medical knowledge you absorbed growing up?

JB: At first, he hated what I did, hated the concept of it. He was a great doctor himself; the only malpractice suit he ever had, I settled after he died for $750 and paid it myself. But he was a very bright guy, went to Stanford Medical School and was an obstetrician and gynecologist. We would talk about the cases that I handled, and he would say, “Well, that’s horrible, because that’s not good medicine.” I said, “Exactly. It has to be an ‘Oh-my-God case,’ Dad, or we won’t take it.” As he kept hearing about them, he was like, “OK, I get what you’re doing. Those are the things we need to improve.” He understood it.

LD: That’s a wonderful foundation for your medical malpractice work. Can you tell me about some of the more recent matters you’ve handled?

JB: Of course. In one of them, a woman was hit by a truck and had a mild traumatic brain injury. She was a very high-powered executive recruiter at one of the biggest recruiting firms. Brilliant, brilliant woman. In the courtroom, she was clearly the smartest person in the room. When she was on the stand, she never missed a question. Never missed a trick. She was smarter than our Harvard-educated judge. The jurors had to understand, though, that she had a brain injury.  That was a fascinating process of showing them that although she looked good, talked well, was smart as hell, she still had executive-function disabilities that were devastating to her. She was in her 50s and could not do more than one thing at a time. 

The defense offered $6 million to settle the case, and we turned it down, which was rather unnerving at the time. But we ultimately obtained $20 million. The jury understood that you could have all of her capabilities but still have to turn the radio off when you drove or you’d run a stop sign; that you couldn’t talk to anybody while cooking dinner or you’d burn it. That meant she couldn’t work.

LD: Right. You had to somehow capture that yes, she is this brilliant woman, but, and in a respectful way to her, she will have this hurdle for the rest of her life.

JB: Exactly. Another interesting one recently involved a baby who had surgery virtually right after birth, for something relatively innocuous: a little cyst on her ovary. Unfortunately, they got air into a blood vessel and she had a cardiac arrest and suffered severe brain damage.

LD: That’s horrible.

JB: It was a laparoscopic surgery. They inflate the stomach of the patient, adult or child, to make enough room to operate. The trouble was that when they started blowing it up, the needle wasn’t in the open perineal space. It was in a vessel. It went straight into the heart and into the brain and killed the child’s brain. It was an interesting case, because in the medical profession, that was a known complication. They said, “We’re not going to pay any money.” You run into that in medical malpractice sometimes, where certain people say, “Well, that happens. That’s an inherent risk.” Well, then you can’t win the case or you can’t even get an expert.

I kept beating my head against this brick wall. I kept saying, “It’s a known risk when you’re driving a car that you might blow the stop sign.” That does not mean that it’s OK to blow the stop sign. If you do blow the stop sign, you’re negligent in how you operated your vehicle. But it’s a known risk. The question is not whether it’s a known and inherent risk. The question is whether it’s an acceptable risk.

LD: That’s a smart way to reframe the issue.

JB: We finally found an expert to say, “It shouldn’t happen if you do the procedure correctly,” and I got the largest settlement in state history on that case.

LD: Even though most lawyers wouldn’t have taken the case.

JB: I almost dropped it. I almost dropped it. Because I was having trouble with that concept, but I just couldn’t accept that.

LD: Right. You knew it just couldn’t be that there was nothing for this child who had no say in what happened, right?

JB: Right. This poor family was just having a terrible time. And that’s the kind of thing that you can run into in the malpractice business, where they say, “Well, that’s just something that happened.” That’s not really the question. The question is whether it should happen and whether, if you follow the right procedures, you should be able to prevent it from happening.

LD: When you’re overcoming those kinds of obstacles just to get a trial, the victories become that much sweeter. Plaintiffs’ lawyers are making such a difference for people who are so badly injured, and really putting yourselves on the line to do it. That’s rare.

JB: That’s sometimes our biggest problem: We can make foolish judgments and take cases that we shouldn’t because we get too involved with the client and we lose our objectivity.

LD: Right, you’re thinking with your heart.

JB: Yes. That balance between business and objectivity and your heart and your passion and your need to do good, because most, not all, but most of the folks who do what we do, we’re crusaders inside and that’s what drives us. We’re not all ambulance chasers. They’re out there, of course. There are bad doctors and bad lawyers. But most of the doctors are really great people trying to do good, and most of the lawyers are the same.