Hall of Fame Lawyer Limelight: Michael Kelly

Photo by Rory Earnshaw.

For more than 40 years, celebrated trial lawyer Michael Kelly has dominated courtrooms with a mix of compassion and tenacity that has yielded astounding results. Known as one of the top attorneys in the country for high-stakes personal injury, medical malpractice and wrongful death cases, Kelly’s role as name partner and shareholder of firm Walkup, Melodia, Kelly & Schoenberger has helped the firm attain more than $1B for plaintiffs. Kelly himself has litigated more than 200 cases where he has recovered at least $1M for his clients.

Recently, Kelly has secured wins in a series of significant cases. Last year he was instrumental in resolving the California wildfire lawsuits brought against mammoth utility company PG&E, resulting in the creation of a $13.5B fund for victims of the fires. In a pandemic-related matter, he brought suit against the City of San Francisco for its failure to provide shelter and safety to unhoused people, who were left in a tent city in San Francisco’s Tenderloin neighborhood.

A member of the invitation-only Inner Circle of Advocates, Kelly has consistently provided volunteer service to various bench and bar committees and organizations.

Lawdragon: When we talked to you in December of 2020, COVID-19 was stalling your ability to conduct jury trials. How are your cases proceeding now?

Michael Kelly: In June, it felt like courts were opening up again. Judges were, for the most part, anxious to have jurors back in court. But with spikes in cases due to variant strains of the virus, we saw re-tightening of jury trial access and the re-institution of mandatory remote appearances.  When jury trials returned we were back to glass panels surrounding witnesses, masks on everyone, physical separations of jurors and restricted entry into the courthouses. It’s been difficult.

The adversary system and litigants need jury trials. The ability to get cases to trial is a central part of the legal system. Whether you’re a plaintiff or defendant doesn’t matter. So, we’ve got our fingers crossed that when springtime comes, we’ll see something much closer to pre-pandemic court access.

LD: How about your non-case related work, are you still as busy with that?

MK: There is always plenty to do on the volunteer side. I could probably stay busy full time focusing only on teaching and service on our state jury instruction committee. 

Twenty years ago, the California Judicial Council decided it wanted these instructions converted to plain language. Whether you are trying a landlord/tenant case or a battle between two tech giants, the essential roadmap for jurors are the jury instructions.

So the judicial council selected 20 people to be on a committee to rewrite all of our instructions: six trial judges, four appellate court judges, a law school professor and nine practicing lawyers. The work impacts clients and cases that I have nothing to do with and directly affects how cases are decided. Since we are only here for a brief period, I feel you ought to leave this place better than you found it. In terms of leaving a positive, lasting mark, the work I have done with the California Jury Instruction Task Force has been the most important. I’m flattered to still be on the committee.   

LD: You’ve also done a lot of teaching both across the US and throughout the world. What do you enjoy about teaching?

MK: Beginning in 1981 I taught part-time for 20 years at the University of California, Hastings College of Law. I have found teaching with other skilled lawyers to be a terrific way to improve my own trial skills. Watching someone who had handles different kinds of cases analyze an evidence or proof problem, or structure a witness exam, or argue a case, is a great way to learn.

And if you’re going to be a lawyer who tries cases, then you are always looking to be better, to be more effective and to be more persuasive. So, that’s how and why teaching started and how it has continued.

LD: Do you have any advice you give students the most often?

MK: I tell my students that you must keep trying cases to get better. Nobody who is good at this profession got that way by being born with talent. People get better with practice. All the great lawyers I have seen practiced and thought about how they could improve case by case. And of course I tell them you won’t win all your cases. Be humble, recognize that it’s not about you.

LD: Tell me about your teaching on the international stage.

MK: International teaching is bittersweet. In the United States we see national politicians regularly demean our legal system. But, when I go outside of the country, whether to Eastern Europe or the United Kingdom or to Japan, foreign lawyers are envious of constitutionally protected adversary system and want to know how to make their system more American-like.

I was able to go to Eastern Europe after the fall of the Soviet Union to work with young lawyers in new democracies. They were excited and optimistic about jury trials. In the 2008-2009 timeframe, the Japanese adopted a hybrid jury system for serious felony cases. I was flattered to be invited to go there to teach criminal defense lawyers how to communicate with jurors. Historically, all their cases had been tried to three-judge panels. There was no real effort at persuasion. No visual aids, no technology in the courtroom, little imagination, no drama. Trials were about as exciting as a trip to the post office. We taught them how to tell stories and persuade.

I love being an ambassador for our justice system. I wish our political leaders were as excited about our courts and judges as the people I teach beyond our borders.

LD: You have such a passion for the role of jury trials in our society. Why?

MK: Trials are the most tangible experience with democracy that most citizens experience. Jurors are making rules for acceptable community behavior case by case. And clients who choose trial are brave, trusting their fellow citizens to make right and fair decisions. Whether I’m representing parents who have a disabled infant as the result of poor obstetrical care, or someone who has lost a spouse or a child because of a defective product or corporate wrongdoing, I’m always impressed by my client’s faith in their neighbors to be fairly judged by them.

LD: What’s your favorite thing about the work you do?

MK: My work is about trying to put clients in a position where, though they won’t get back what’s been taken from them, they are able to optimize their lives; to make living as fulfilling as life would have been but for the problems which befell them. The cases that make me proud are those where I have been able to help people get treatment or assistance or care that restores independence and dignity and self-esteem or hope.

LD: I know you recently prevailed against the City of San Francisco in your case relating to their failure to provide sleeping sites to unhoused people during the pandemic. How did you get involved with that?

MK: San Francisco has had a spike in homelessness recently due in large part to drug use. The spike is centered in a single neighborhood called the Tenderloin neighborhood. That area has more children per capita than any other neighborhood in San Francisco. It also happens to be home to the law school I attended, which is the University of California law campus in San Francisco – UC Hastings.

There were, at one point within a few-blocks of the law school 600 tents on sidewalks and streets. The city had done nothing to fulfill earlier promises it had made to take care of the unhoused and provide opportunities for safe shelter. We wanted the City to protect two groups of people: the folks who did not have safe shelter, and the families and children who lived in this neighborhood and couldn’t navigate the streets.

Our lawsuit was not about money. The City ultimately entered into a stipulated settlement agreement with us, whereby it agreed to rehabilitate parking lots and other abandoned city-owned property to make those available for a limited, specific number of unhoused people who didn’t want to be in shelters. In those places tents could be erected but the City agreed to provide water, restrooms and security.

This continues to be a problem because I don’t think any community in the United States has figured out the ultimate solution to helping those who are unhoused. But, for the people who live in the Tenderloin neighborhood – families with children – there’s been a significant improvement in both their safety and ability to get to and from work and school.