Excerpt: The Memorandum by Robert W. Kelley

Burns and Blue Eyes

Mike and Catherine Murphy came to our office in Fort Lauderdale a couple of weeks after she got released from the hospital. I remember most the sadness, this unbelievable sorrow, and their blue eyes. They both still had bandages on their burns. His hands. Her legs and arms. She had salve on her face and arms, too. They were both still very red; that raw, shellfish pink of someone left in the sun for far too long. I’d seen it on tourists all my life, growing up in the Sunshine State.

But these burns were different. Too raw. Accompanied by a pain that came from far deeper than skin. Their pain came from someplace deep within.

“We’re not the kind of people who believe in suing,” Mike said. “But . . .”

It was hard for him to say. Hard for him to talk about. Either because he didn’t know how, or it hurt too much to think about. He hesitated.

“But,” he went on, “what happened, it just doesn’t seem right.”

They’d never hired a lawyer before. I don’t think they’d ever been in a lawyer’s office. We sat on the grey fabric couch in my office, and I listened.

I’d been a lawyer for ten years by then. Long enough to know my way around a courtroom. Long enough to see the heart of a case pretty quickly. I could spot the fundamental facts to know if there was a case there. I knew, pretty quickly, when there was or wasn’t actual liability, what would resonate with a jury, what to build on. The stuff they don’t teach in law school.

I’d seen plenty of clients in those ten years. I’d seen pain. I’d seen anger. This time, in the Murphys’ eyes, I saw anguish.

Mike Murphy did most of the talking. Catherine spoke with her eyes. With pained glancing away at the mention of Matt’s name. With occasional, quick, questioning looks at me as her husband described the accident—like she was wondering if I heard that something about it didn’t seem right, too.

The Murphys, I learned, were locals. In fact, I’d grown up not too far from where they lived. My dad had been a preacher at a church across the street from where we were sitting now.

He’d brought us down from Lexington, Kentucky, where I was born, when I was in the third grade. He took over as pastor of the First Christian Church in Fort Lauderdale, less than a mile from the county courthouse and a little over that to Port Everglades. He went on to be a prominent figure in the community, serving on the boards of multiple civic organizations, and founding the city’s housing authority where he spearheaded the construction of affordable housing projects for needy families.

Yes, he was a preacher. He was a philosopher. A college professor. And, a psychologist, too, before he died. The common thread in all of that was helping others. I grew up listening to him speak and in the course of that, especially when we got to high school, he inspired me and my high school buddies to really go out there and fight the good fight and stand up for what’s right and do our best to try to make the world a better place.

I believed that and wanted to rise up to the task. But, growing up, I had no idea how. I did know I loved boats, and the warm clear waters of the Atlantic ocean. Maybe it came with the territory. Fort Lauderdale is known as the “Venice of America.” For good reason. It’s crisscrossed by more than 165 miles of rivers and waterways—and that’s just freshwater, within the city limits. Outside the port, you’ve got the Gulf Stream, the Bahamas, and then, way over the horizon . . . Africa. For me, it was heaven on Earth.

I spent as much time as I could on the water, and under it. I got certified as a SCUBA rescue diver and divemaster. Later, as a lawyer, I founded the DiveBar, “the first underwater Bar association,” a philanthropic organization for attorneys and judges dedicated to preserving coral reefs and the marine environment, and the Kelley Boathouse for the crew team at Pine Crest School. But I wasn’t thinking about going into law when I finished high school. And, as much as I loved and admired my dad, I didn’t quite see myself following in his footsteps. The pulpit didn’t seem like the place for me.

No. I went to college thinking I’d be an investigative journalist. Looking back, it’s easy enough to see where that must have come from. My high school years spanned the turbulent times of Vietnam and Nixon. The Washington Post’s Woodward and Bernstein uncovered the truth behind the Watergate break-in and cover-up, the presidential campaign slush fund and its dirty tricks, and largely led the charge in piecing together the facts that led to President Nixon’s resignation.

So, with dad’s voice echoing in my head, I headed off to college as a journalism major, determined to fight my good fight with a pen.

That lasted about two years.

Then I took an astronomy class. It was one of those “you have to take a science class” affairs. But I had a professor who really opened my eyes to the beauty and the mystery of the physical universe. So, I changed my major and spent the next two years at Vanderbilt University,  immersed in the study of physics, mathematics, and astronomy. I spent many chilly nights under the stars at Dyer Observatory in the rolling hills outside of Nashville, and eventually published a paper on a binary star system known in the astronomical world as Lambda Andromeda. I think during those years (and even today) I was just trying to figure out everything I could about our place in the universe, and to come up with my own answer to the poet Mary Oliver’s lingering question: “What is it that you plan to do with your one wild and precious life?”

That was probably because of my father, too. As a preacher, he was naturally in awe of the cosmos and how it related to us and our role here on Earth during our lifetimes. I guess I couldn’t help but inherit a similar sense of wonder about the universe, along with a nagging curiosity about why we’re here.

When I graduated, I came back home. South Florida is where I wanted to be. I love the ocean. I love the reefs. But because of the humidity, there are no serious observatories in the tropics and, consequently, in those days, there was little chance of pursuing a career in astronomy there.

So I decided to go to law school. That meant three more years of classes. Three more years of professors. Three more years of books. And three more years sitting inside, in classrooms. That was OK with me because I enjoyed being in college. I loved to read and to learn and to solve problems. But first, I decided, I wanted to spend some time out on the water.

Plus I knew it would look kind of weird on my resume if I just took a couple of years off after law school. Or, pretty much, any time after that. Nobody finishes law school and then just stops working and goes to sea on boats after they get their Juris Doctorate degree. So, I decided that before law school, I’d take some time off and get a job on a charter fishing boat. Chasing tuna, swordfish, and marlin in the Bahamas and the Caribbean. All the big game fish.  

It’s not like it was a career option. I wasn’t trying to decide between that and law school. I knew I was going to do something with my life other than fish. But there comes a point in time where you have to wander and explore and take time for yourself. Especially if it’s almost certainly the only chance you’ll ever get.

I spent a year letting the sun and saltwater etch lines in my face that would last a lifetime. I spent many days crisscrossing the Gulf Stream and crazy nights in Bimini at the Compleat Angler in Alice Town. We fished hard and we played hard. At night, I passed out in the V-Berth of our Bertram Sport Fisherman, which was tied up at the docks at the Big Game Club. Lots of late nights, followed by early mornings back out on the glimmering Gulf Stream trolling the edge of the current at sunrise.

We caught the first giant bluefin tuna of the season that year as schools of the great fish migrated north along the Bahama Bank. It weighed in at 842 pounds and made the cover of the Journal of the International Game Fish Association. After we finished photographing it and winched it down onto the dock, the Bahamians on the island descended on it with flashing machetes and razor-sharp knives. I think that fish fed the entire island for a month. That was a very fine year, and one I will always remember. Mark Twain’s famous advice about life has always been an inspiration for me: “You will be more disappointed by the things that you didn’t do than by the ones you did do. So throw off the bowlines. Sail away from the safe harbor. Catch the trade winds in your sails. Explore. Dream. Discover.”

Then I settled down and went to law school. Right in my hometown.

All I knew when I started was that I wanted to be in court, and that I wanted to be on the side of the average guy. But I didn’t know a tort from a tart. I went to law school, honestly, because I wanted to make a difference in the world. I know that sounds corny. But it’s true. I went to law school to help people like the Murphys. I just didn’t know they would be coming into my office one day, ten years after I got my J.D., and telling me a story that the world needed to hear.

I started out handling car crash cases. Plenty of them. And “medical malpractice,” when doctors or nurses screw up and do something terrible. It doesn’t matter if it was an accident. They’re all accidents. We don’t go after doctors who try their best to do their best and something tragic happens. That’s medicine. People get rushed to the hospital after falling out of a window and the doctors do everything they can to stop the internal bleeding, to repair organs that have been brutally crushed by the force of gravity. And they still die. Everyone did everything they could. And they still die. That’s medicine.

Sometimes, though, doctors make mistakes. Even good doctors. Everyone who works in the healthcare industry knows this to be true, especially the nurses. They see it all, but they are often fearful of losing their jobs if they report it. So, in the litigation arena they’ve earned the nickname, “the sisters of silence.”

Sometimes doctors are too busy, they’re overworked and exhausted. Sometimes they are intoxicated or impaired. Sometimes they are simply greedy, performing unnecessary procedures on their patients just to make a buck. I’ve seen it all during my career, and it’s scary.

I have a client who has been in a persistent vegetative state for over a decade because some bozo doctor performed a completely unnecessary and dangerous procedure on him just so he could bill the insurance company and make some money to keep his practice open. He actually later admitted it on cross-examination while he was on the witness stand in front of a jury. One of those very rare Perry Mason moments. But he actually confessed after I convinced him he would feel better if he came clean and got it off his chest.

Or somebody’s stopped at an intersection, minding their own business, and a cigarette salesman in a speeding car is working on his laptop between sales calls. Checking his inventory. And he slams into the back of a Camry and leaves a two-month-old baby boy horribly brain-damaged.

Shouldn’t somebody pay? That little boy’s life is changed forever. Before he even had a chance to start. Should that child get the best medical care and attention available?

Shouldn’t the driver’s insurance and the cigarette company pay?

Often enough, they don’t want to. And I think that’s wrong.

So, I went to law school thinking I could make the world a better place by standing up for people like that two-month-old.

Call me a homey if you want to, but I picked a law school practically in my backyard, Nova Southeastern University. I loved it. To me, after two years of advanced calculus, linear algebra, and theoretical physics at Vanderbilt, law school seemed easy. And I did everything everyone said would be important later on. I became editor-in-chief of the law review, and graduated at the very top of my class.

Only, when I graduated, things were tough. I couldn’t get a job. I applied everywhere. I wound up working on the other side. For a while anyway. Defending insurance companies. Hated every minute of it.

But I learned a lot. And I got to meet Shelly Schlesinger. “Sheldon” on legal filings. Shelly to the attorneys he worked with, which, soon enough, included me.

We met in a deposition, on opposite sides of a case. Shelly was known as the dean of personal injury attorneys in the area. He knew cases. He knew juries. He knew how to win. He was legendary, and I met him at the peak of his career.

Shelly was successful. No question. He was also quirky. And explosive. If something displeased him, he’d shout and yell. If that something happened to be someone, he’d tear them apart with a verbal assault as devastating as a missile barrage.

Well, not everyone. Shortly after I went to work for him as a young lawyer, he raised his voice at me once. Only once. I forget what it was about. It didn’t matter. What did was that I wasn’t going to let anyone treat me that way.

“Hey, I’m a lawyer,” I told him. “I expect to be treated as one. Do that again, and I’m out of here.”

Apparently, that got his attention. I don’t think anyone had ever stood up to him like that. And, apparently, he didn’t want me to quit. He never once raised his voice at me again. We eventually became close, like father and son, and we ended up trying cases together across the United States.

Shelly introduced me to some of the other great trial lawyers in Florida, guys like Bob Montgomery, Fred Levin, Bob Kerrigan, Stanley Rosenblatt, and J.B. Spence. I had the opportunity to watch them and to learn their courtroom secrets. But Shelly, to me, was the best trial lawyer I had ever seen. He could cross-examine an opposing witness until that witness became OUR best witness. He could give an extemporaneous closing argument that would move everyone in the room (including more than one judge) to tears. And he had great dignity and respect for judges, jurors, and the entire judicial process.

Shelly was my mentor. He taught me that the law is a profession, not a business. Even though he became very wealthy practicing law, he never did it for the money. “Don’t worry about the money, Kelley,” he repeatedly told me, “do the absolute best job you can for your client and the money will follow.” He decried the ambulance chasers and lawyers on television and on billboards and in the large, garish yellow-page ads that have become so prevalent these days. “They’re not really lawyers,” he would tell me, “they’re just businessmen hustling to make a buck.” So, between my dad and Shelly, I had two pretty good role models.

Shelly was whip smart. He knew how to dissect a case, to zero in on its core elements, and how to capture the jury’s attention. I learned a lot from him. And I learned a lot on my own.

Shelly trusted me. He called on me to help him with the biggest cases in the office. And he sent me out to handle them on my own. As a result, I moved up pretty quickly at the firm. I also spent a lot of time on planes and in hotels, and in courtrooms, all across the country. I took depos, argued motions and, soon enough, was taking on a growing slate of personal injury and wrongful death cases from Key West to Los Angeles. I tried cases in state and federal courtrooms across the United States—in Florida, Georgia, California, Arizona, New Mexico, Idaho, and the list goes on and on. Some were medical malpractice cases, some product liability, some involved the negligence of people and companies that should have known better and should have done more to protect people.

That gave me a broad range of experience, quickly. And, I’m fortunate to be able to say, I ran up a fairly impressive string of victories, nationwide. I didn’t know it yet but pretty soon that track record would lead to me taking part with Shelly and ten other law firms in Florida in what would be an epic and historic legal battle against Big Tobacco. The multi-state lawsuit would forever change the law and how we think about who was to blame when cigarettes catastrophically sickened smokers. Coincidentally, those cases would also expose long-hidden smoking-gun documents and a massive and deliberate cover-up by, in my opinion, some of the most evil corporations that have ever existed on this planet.

But, despite all the cases I’d been involved in and all the different ways I’d seen bad things happen to good people, I’d never handled anything like the Murphys’ case. I didn’t know that yet.

That first day, Mike and Catherine Murphy just seemed like people who were suffering, people in shock, trying to make sense of what had happened. To them. To their daughter. To Matt.

They didn’t know their rights. They didn’t even know if they had any. That’s what they wanted to know from me.

So, I asked them to sit on the couch and tell me about it. I sat next to them.

They seemed like the kind of couple who would normally hold hands; if they could. But the bandages and the burns wouldn’t let them. So, they sat side by side a little awkwardly and spun out their story.

They both had warm, open faces. Teachers’ faces. The good kind. The kind that cares. Mike had a strong, square chin; a fine, sharp nose like something off a Roman statue; swept-back hair and a mustache the color of whipped butter; and smile lines indelibly creased at the edges of his mouth and his eyes. He looked, honestly, like a slimmed-down, more handsome version of Captain Kangaroo.

Catherine was nearly as blonde, with the same kind of creases from happier times at the corners of her eyes and mouth.

Catherine’s mouth, though, wasn’t working quite right for her. Scar tissue forming from her burns had tightened one side, and she appeared noticeably self-conscious about it.

Barely two months had gone by since the accident. Catherine had only been out of the hospital a few weeks. I could see in their eyes not just the pain, but a plea. Like they wanted me to make sense of it all. They wanted comfort. I wish I could have given them that. Then and now.  I can’t. No one can. Not unless they invent a time machine and can take the Murphys back before that day in July when Matt died.

I listened carefully as they told me about the accident. About the little bump they felt just before they saw the flames wrapping around the car. They had played it over in their minds again and again. It was just “a little bump.” They weren’t even sure they’d been hit. But then, barely seconds later, there was the fire. Everywhere.  

Had they been wronged? Yes. No question. When you’re riding along minding your own business and something hits you and the car you’re in bursts into flames and people die, you’ve been wronged. Someone is to blame. Someone should be held accountable. But who? That was a question I couldn’t answer yet.

I couldn’t imagine the pain they must be feeling. And there was nothing they could do about it. Not then. Not now. I thought of my own little girls and I felt my stomach tighten.

The story did sound odd. A runaway trailer. A crowded toll booth. A tap. Then flames.

A tap.

Then flames.

I kept trying to picture it. And I couldn’t.

A tap. Then flames.

But even if I agreed that what happened didn’t “seem right,” as Mike Murphy put it, that, in and of itself, didn’t necessarily mean we would be able to hold someone responsible for it in court.

There’s a difference, and I needed them to understand that. There might not be anyone the courts would hold accountable. Not really. Oh, sure, something that wasn’t supposed to happen happened. Something bad. But that isn’t always somebody’s fault. Accidents do happen. Lightning strikes. Drivers have heart attacks. Houses catch fire or cars suddenly veer out of control and slam into some random vehicle filled with innocent passersby. Folks on their way to the movies or headed home after school get shoved off the highway and into a lake and they drown. The driver who had the heart attack that started it all ends up safely stopped against a guardrail with a dent in his bumper and no recollection of what happened.

Technically, yes, he’s at fault. Maybe even, technically, to blame. But really?

Still, accidents are what we have insurance for. The companies don’t sell collision policies and personal injury protection, and uninsured motorist coverage, or any of the other kinds of insurance they offer, thinking you’re going to go out and wreck on purpose. Or that someone is going to deliberately aim their car at yours. Sure, legally, there’s often someone at fault. And there might be someone to blame. But even if there’s not, there’s almost always an insurance policy covering what happened. Often enough, several of them. Yours and the other driver’s, at least. Maybe more.

I explained all that to the Murphys. There seemed to be a good chance that there were a number of insurance companies involved that they could collect from, very likely without ever going to court. I thought there might even be a case against the manufacturer of the trailer tongue and coupler.

But, I continued, getting the companies to pay all they should would take time and effort. These cases take months, sometimes years, especially since we were all in Florida and the accident happened in Virginia. They involve investigators and travel and document searches. Finding and interviewing witnesses. Court filings and appearances before judges. Gathering evidence and, often, preparing exhibits. Even if we never go to court. Even if the case gets settled.

In fact, I told them, the only way to get companies to agree to a meaningful settlement is for them to see that you’ve got a good case and that you’re totally prepared and ready and willing to go to trial.

That’s expensive. No doubt about it. We would put in the work and pay any costs involved up front (eventually almost a million dollars). And the only way the firm would get any of that money back is if we won. The Murphys wouldn’t pay a penny if we didn’t. That’s what working on a contingency fee is all about. It’s often a very substantial financial risk, so it’s important for the firm to evaluate each new case carefully before making any commitments to the clients.

That was all laid out in the retainer agreement I gave them to sign. That, and a special note. I specifically wrote “but no products liability case against General Motors.”

I didn’t want them to leave that day thinking that we were going to sue the world’s largest motor company. No way.

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