Titans of Trial || Wisdom from FJA's Greats
July 8, 2015
Michael K. Bailey of Bailey Fisher, PLLC
How do you find the time to help so many other attorneys and still work hard enough to win cases on behalf of your clients?
I make time because we all benefit by helping each other. My basic work week starts at about 70 hours, so I usually have time to respond to inquiries unless I’m traveling, getting ready for trial, or in trial. Besides, it’s a two-way street – if I don’t find time to respond, how can I expect anyone else to help me out when I need an answer?
What is the most important thing you focus on in your cases?
I know it sounds obvious, but the key is preparation. In a big case, I take a lot of depositions. Know the case. Not just the big issue stuff, but all of the little details. Anticipate issues that the other side may not even think of. I admire trial lawyers who seem to be able to try cases by the seat of their pants, but I’m not one of them. I have to outwork the defense rather than necessarily outshine them in the courtroom.
What are your top 3 professional goals in the next year?
Get one year closer to retirement, find a way to maintain the quality of my practice and still put in an appearance at home now and then, and get better cases without having to work as hard at it!
If you weren’t a trial lawyer, you would be ____?
A doctor. But I’d want to be a surgeon, and I don’t know if I’d have the patience to be a good one.
What makes your practice different from others?
We do things the old-fashioned way. We don’t advertise. Instead, we are involved in the community and rely on the relationships we have built to sustain the practice. Doing things that way isn’t as easy as it used to be.
Who do you look up to?
I give a lot of credit to my dad, who taught me the value of hard work, and to my faith, which keeps me grounded.
The best advice you’ve ever received?
Learn your trade before you worry about learning the tricks of the trade.
What are some top tips that help you succeed in your practice?
Work hard. Honor your promises and commitments. Understand that you can’t help everybody, but be slow to turn someone away with a legitimate problem that you can help solve even if you do it out of charity.
If you had to pass on words of wisdom to your fellow attorneys, what would you say?
Good judgment reconciles the conflict between “He who hesitates is lost” and “Look before you leap”. Don’t bet against human nature or the laws of physics.
Questions Submitted from the Young Lawyer Section
What information would you tell a young lawyer to read/analyze/get familiar with regarding honing their knowledge as it relates to plaintiff’s personal injury? For example, if a young associate previously worked in an insurance defense firm and has now switched to plaintiff’s work, how could they learn the “pre-suit” stuff since they didn’t deal with that previously?
The best thing you can do as a young lawyer is watch other good lawyers try cases. Not complicated products liability or medical malpractice cases, but good, simple auto negligence or falldown cases. These are the meat and potatoes of our business, and you can learn how to prepare a case by watching the end process. Sometimes you learn what to do, sometimes you learn what not to do.
As far as presuit stuff is concerned, my best advice is to make friends with a good legal secretary or paralegal – they know the mechanics of presuit practice as well as most lawyers. Learn the medicine. You will never be a good plaintiff’s PI lawyer until you understand how to read medical records and interpret them.
I have a paralegal for the first time in my 2 and a half years of practice. What is the best use of her time to assist me in keeping my cases moving forward? What is the best way to monitor her progress on assignments?
That’s hard to say, because it depends on the personalities involved and their skill sets. But my philosophy is that lawyers should do lawyer things and paralegals should do paralegal things. Which means that you shouldn’t delegate something to a paralegal that involves legal analysis or requires them to understand how to prepare a case for trial (or settlement). Paralegal work should be task-oriented rather than “big picture” – don’t rely on them to develop the game plan for a case, only to carry out specifically-assigned tasks with well-defined objectives. You are the director. Even the best paralegal is still only a stagehand that shouldn’t be responsible for how well the play comes together.
This paralegal is shared with another associate in our office. How can we ensure that neither of us are monopolizing her time, making sure that we are not providing her with so many assignments that she is drowning, and also ensure that neither of us are trying to be too respectful and hands-off that she isn’t given enough work to do?
Meet as a team at least twice a month, maybe more often, to coordinate your efforts and make sure the workload is manageable and things are getting done. Make sure you and the other associate know what the other is handling, and try to agree on priority assignments.
Is a challenge pursuant to 90.705, FS ie voir dire exam of expert subject to Daubert deadlines in pretrial orders or is the right to voir dire and challenge the expert at trial absolute?
That’s a sore subject for me. Although I haven’t had it happen yet, I have heard from other lawyers that some judges are considering any challenge to an expert’s testimony to be a “Daubert” challenge, and requiring that such issues be raised well before trial. That is just foolishness of the highest order. There are certainly legitimate challenges that go to the expert’s qualifications (or lack thereof), the predicate for the opinion, and other foundational issues that are not “Daubert” challenges, and which can and should be addressed under 90.705 as they arise in trial, and not precluded by the Court because they were not raised on pretrial motion. This is going to be a troublesome problem until we get some solid appellate decisions that provide guidance.
How do you see the plaintiff’s practice changing over the next 10 years? 25 years?
It will only get harder, more expensive, and require more time to do a good job for our clients. I hate to sound so cynical, but I’m afraid that’s the reality of things. Support the FJA – it’s the best investment you can make to help preserve what we have.
What is one of your personal favorite quotes that inspires you or gives you encouragement?
Like a lot of trial lawyers, I think it’s hard to beat Teddy Roosevelt’s “Man in the Arena” speech. If you haven’t read it, you need to.
As a civil trial attorney, Michael K. Bailey has concentrated his practice over the past thirty years in the prosecution of personal injury and wrongful death cases involving automobile negligence, medical malpractice, products liability, premises liability, and insurance claims. Michael K. Bailey is the inaugural recipient and namesake of FJA's Michael K. Bailey TLEL Award.