7. Jay Kelley, Elk and Elk – Trial Debriefs, Values and Radical Transparency, Elite Talent, Collaboration at all Phases

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In this episode of The Rankings Podcast, Chris Dreyer interviews personal injury attorney Jay M. Kelley of Elk and Elk about growing a law firm, retaining top talent, the impact of a great company culture that focuses on transparency, and the need for lawyers to debrief before receiving the verdict of a case, and so much more…

Transcript

Chris Dreyer

Job opportunities can present themselves in various ways- help wanted signs, online ads, or even a referral from a friend could lead you into a new career. But sometimes job offers can come from unexpected places. This is something that my guest today knows all too well.

Jay Kelley

Like a lot of people, the opportunity finds you and I had been a felony prosecutor down in Akron, Ohio and I tried a case against a doctor, or a criminal case and the lawyer who was representing the doctor worked at a medical malpractice defense firm. We, even though we were adversaries in the case, obviously it was a professional and collegial relationship, and he had that firm then come hire me. And that firm was really, it was a really cool firm. And kind of got inundated work with nurses and medical groups, over the course of your first two years to really dig deep into the medicine and the science and also the trial support. So that’s how medical malpractice found me, it found me through trial work and I love it cause it’s really, it’s a fact-driven practice and every case has its own unique set of circumstances.

Chris Dreyer

My guest today is Jay Kelly managing partner at Elk & Elk. Jay’s focus is on medical negligence and he was named medical malpractice lawyer of the year. He is an authority on birth injury and medical liability and has had his work on medical-legal issues and medical-legal risk management published in two books.
Join us as we find out why some lawyers avoid medical malpractice, what it’s like working for a family firm, and how studying acting has helped him in his career. That’s coming up on the rankings podcast, the show where founders, entrepreneurs, and elite personal injury attorneys share their inspiring stories about what they did to get to the top and what keeps them there. I’m Chris Dreyer stay with us.
Jay has a passion for medical malpractice cases, and it’s an area in which he’s made a name for himself. However, his niche isn’t one that many lawyers find themselves wanting to get into. I asked Jay why he thought lawyers were wary of medical negligence cases and why it’s a path that few choose to follow.

Jay Kelley

So it’s expensive. It’s complicated. And the statistics bear out that it’s a very difficult area to win in front of a jury. So I think that the auto cases and the slip and falls, while those are challenging and I don’t mean to mean those practices at all, they’re a little more predictable. A medical malpractice case, when I try a birth injury claim we usually have somewhere upwards of a quarter of a million dollars in advanced case expenses, out on that case. And when you’re talking about betting on yourself in this world, you’re betting on your own triage assessment of the case and assessment of those facts because that money doesn’t come back. So I think the overhead and the risk scares a lot of people out of it. And you do have to have at least a level of medical knowledge to be able to sense, whether or not a witness has been transparent and honest with you, during the course of depositions and or testimony, in what state you’re in.

Chris Dreyer

You select those EEQ components of reading the witnesses and that aspect?

Jay Kelley

Yeah, we’ve done- and I do every year, I lecture to medical groups, – some of the largest, nursing groups for neonatal, which is obviously newborn health care, a group called AWHONN. I speak, frequently there I do fetal monitoring lecturing, I’ve invested myself into I’ve written textbook chapters in medical texts for gynecology, fetal monitoring. And people always laugh. And they’re like, why in the world would you do it? And why in the world would they invite you? And the line I always use to start those speeches is I’ve never learned anything from someone I agree with and if we really want to improve health care, and that includes not only the delivery of health care in an efficient and safe manner but also the compensation system for people who are hurt during healthcare, because it’s foreseeable, like you can’t avoid that. There are going to be mistakes made in healthcare and you need a system that’s, also reasonable and efficient for them. So I believe that by sharing a patient’s perspective in a lawsuit with physicians and nurses, hopefully, it makes them less fearful of the process and what was here about defensive medicine and things like that. And we can find those efficiencies that allow us to tell where there might be a case of merit and how to process it, without really taxing the legal system or the family too much. I have so much respect for the providers, but I also have such a keen awareness of what people are going through. And, I honestly, that’s probably one of the skills I think that I provide is a very sharp ability to navigate the process, what happened, cause that’s they don’t call us and give us some money. I’ve never had a client ask me about money. Every client asks one question and it’s the same question. And they were like, I don’t know what happened and they want an answer. Wow. it’s a cool practice.

Chris Dreyer

Do you have this rounded experience of being on both sides? And I thought one of the things that I read you’ve mentioned that you took drama and theater classes and they were very valuable for you being a trial lawyer, What about those classes impacted your ability in the courtroom?

Jay Kelley

So I 100% am a lawyer because of two acting classes I took at the College of Wooster from a professor was a visiting professor from Ireland named Vincent Dowling. In that class, he really was all about how you communicate and that acting was just a form of communication. And how you communicate with your body posture, your position, your tone, and how, the words, why they’re part of it. communication is so much more and I fell in love with public speaking. I took Shakespearian styles of acting. I think my parents were terrified, but it just really made me want to get into persuasive speaking. And so I, I use it in every trial where I stand, how I stand at sidebar. I am conscious of how I appear throughout the entirety of a trial, in hopes that send a message to at least somebody.

Chris Dreyer

I love that. especially body language. you can, you immediately get that first impression based on body language and how you’re representing yourself.
Let me, take it kinda a different direction too. So you’re now the managing partner of elk and elk. Do you find since it’s a family-owned business, those candid conversations come easier because everyone says you’re not supposed to mix business and family, but it seems to be working. What’s it like being the managing partner in that mix?

Jay Kelley

So here’s what I will tell you. Every strength is your weakness. You know what I mean? You can never separate them. And the strongest thing that we have is our family values principles, and to not give David credit and Art credit for that would be the most shallow thing I could ever do. My life changed dramatically by coming here in ways I never anticipated. So the family values and the family nature of it does create an intimacy and a trust within the four walls that I think really helps the day-to-day management of the firm. The risk of a family firm is the perception that it can create outside. And so people, when you hear the repeating names or brothers, you start to wonder what’s here. So sometimes we have tried to make sure that people understand that why we did start as a family firm, we now have 87 employees, we have 22 lawyers, our average lawyer tenure here, I think is 14 years right now. So we keep people. And that’s a reflection of those family values, but sometimes communicating that it’s not just a family firm, cause some people… what do you want to hire? You want to hire the firm that has the most resources you can say it, but you’ve got to have a way to let people inside to see that we have multiple nurses and multiple specialties on staff. And I mean that we have our whole entire marketing department. We have our own filming studio, It’s a significant business. It’s really two businesses. It’s a law firm and marketing arm.

Chris Dreyer

I love that, when you identify the values too, it helps you to identify who would be the right fit for your firm. Because, ultimately I talk about this a lot, right? You couldn’t take a catcher and put them in centerfield. Do you find that knowing and understanding those values makes it really easy to recruit and hire, and not only that, but to keep your people for 14 years?

Jay Kelley

I think that our biggest challenge because we’re plaintiff attorneys – if there’s going to be a joke at a holiday party, it’s probably going to be about us. So the public sees you differently from the skyscraper law firm and things like that. But what’s interesting is legally we have no shortage of available, talented, incredible people that want to come work here. And that wasn’t the case 18, 20 years ago. The firm was on an uptick and that was from Art and Dave making a true commitment to making it the best from anywhere in the country. When you walk down our halls, the vast majority of people here have been partners at other defense law firms over the years. So, somebody who we thought was the best that we came across in trucking, we went let’s go get them. The person I’ve tried a lot of birth injury cases, the woman who I always thought was the most difficult to have on the other side, she’s a neonatal nurse and went to law school. Let’s just go get her. You know what I mean? And what we were amazed by is that by doing the business, the way that we think is right, and everybody has their own opinion of what’s right. And the business…it’s been amazing that doors that used to never open for us with incredibly talented, successful lawyers and some of the biggest firms. Those people now, they don’t only take your call, they’re excited and it’s allowed us to add a ton of talent to this firm and experience to this firm that I think really does benefit, not only the firm but the clients

Chris Dreyer

As a firm, Elk & Elk has assembled a formidable team of lawyers whose expertise ranges from auto accidents to wrongful death cases. But as the old saying goes too many cooks spoil the broth. So wanted to find how exactly the firm is able to harness the collective experience in order to benefit their clients.

Jay Kelley

It does. So we on the medical malpractice side, every case goes through a filter system here, and that system that we put it through is collaborative. It would be the most insanely narcissistic thing in the world for me to say I’m going to decide alone if you have a case. So what we do is we take the case, almost like a funnel, and we go one step at a time. But at every step, all of the attorneys who are in our firm that do medical malpractice, the nurses, and the paralegals who work the cases are all in that realm. So if we decide that something’s not a case, it, it’s after we’ve indexed the records, reviewed the records, reviewed the literature, and it’s a collective decision. And our hope in that is that from a firm standpoint, we don’t miss good cases cause somebody doesn’t see something, but most importantly, for the client, they’re not getting a single attorney review. They’re getting five attorneys with a nurse with medical research and we go one step at a time. And if it passes through the gate, we go to the next step so that we’re trying to always provide honest, timely answers to people and it’s not a single opinion. And what’s fun about it is it really makes your day better and it provides so much peace of mind to you as a lawyer, that if all of a sudden your thoughts are validated or your questions are clarified by people within your own firm. Then when we get to the point of filing a case, what we typically do is we’re supposed to have a case filing meeting where the most detailed presentation is in there and everybody then voices on. I would get this expert to watch out for this specialty and this is who typically represents it. Cause you want to go into it, giving people the best chance in the world to make a recovery within the legal system.

Chris Dreyer

Yeah. Yeah, definitely. So let’s talk about that. Let’s go there. Let’s go the other side. So let’s talk about, some, learning experiences. Is there any pitfalls that stand out, like things that went wrong, but now you’ve learned from them?

Jay Kelley

So we have definitely gotten better about learning how to be 100% transparent, even with bad facts for clients. People aren’t hiring a true leader. They might think they want a cheerleader at first, but, we have a very transparent approach with our clients where we tell them this is the risk of your case, this is the challenge of your case. And by including clients every step of the way in the process and making the client, the singular focus of the process, it has honestly changed our business in the office and in the courtroom. And we have a mission statement for the people in here that if it’s good for the client, do it. If it’s good for the firm, do it. If it’s not fair to you, we’ll fix it. But we only fix it after you do what’s best for the client and the firm. And a story that I will tell you is myself and a lawyer – I tried a bunch of cases with a fantastic lawyer. We tried a case where we killed the other side factually and it could not have gone better. And we learned two huge things in that case. It was a tight courtroom. He and I sat at the trial table, the client sat behind the rail just because of the way the court was configured and we talked about it when it first came up. We’re like, I don’t know if I like her being back there and we’re like but we need the table, we’re lawyers, it’s about us. And so they became a little disconnected, from the case and -going back to my whole posture and communication – it prevented any sort of interaction with your client where people saw that the case was not about two lawyers, that people probably don’t like presumptively. Do you know what I mean? That’s, it’s not about there’s that nice couple behind the rail. We learned that. And we learned that even with the jury, you have to say what you want immediately. And what I mean by that is, people always save damages and stuff like that for the end. We didn’t mention our ask in the case until the closing argument. And I saw one juror’s face light up and jury goes out they give us a verdict well above what the last offer was. And it was a good number, it wasn’t the number we asked for. And what was interesting about that was I’ve always said it’s easy to convince people of things they want to believe and almost impossible in a courtroom to change their mind. It’s a fight. You can’t change someone’s mind in a fight. And I left him to formulate his own belief as to what the value of the case was. And there was nothing I could say in closing argument that was going to change that. And then he convinced the entire jury how he got to his number and became the authority in the case. So from that moment forward, we put damages in jury selection and open. We told people exactly what we were asking for. And what’s interesting is I would say in greater than 90% of the cases where we have been successful, since we’ve gotten the exact number we ask for. It’s become a destination because those people don’t know just like our clients when they come and don’t know what their faith is worth. They don’t know what the facts of the case are, what’s required. So you say, this is what we’re going to prove number one, and number two to you. Can you go to number? This is where we think number three is. So instead of putting people on a road without a map and without telling them where they’re going to be spending their vacation days, we say this is where you’re going, this is what we’re asking for. This is why we’re asking for it. And so we’ve come totally around that. It’s a client-first business, and you have to be immediately transparent. And everyone you with everyone, you interact with opposing counsel, courts, clients, and jurors.

Chris Dreyer

That’s incredible. And you’re just. You’re hitting the Ray Dalio’s principle book – radical candor, radical transparency- just everything on the head. You’re the managing partner of elk and elk now and I like to ask this question, it’s a little bit different. It gets you to think a little bit too, but you only have so much time. So what does your high-value activities look like? What provides the most value to the firm that you do?

Jay Kelley

So really there are three places where I think my time gets divided among one is case management and I love that part of my practice. And what I have done is I handle still the same cases, typically the birth injury, the catastrophic cases, or if someone is a specific client of mine or referral to me. I’ve reduced some of that volume in my life because, look, if I represent you, you have my cell phone from day one and honestly, if you’re on my website, you have my cellphone from day one. If I’m your lawyer and you can’t get ahold of me, I’m not your lawyer. I’m just a phone number or something like a blog post. The other part is interoffice day-to-day management. And whether that be case assignments or those types of things, but, John O’Neill, I would say, who’s in our office as a partner as well, does a lot of the running, if not all of the running, of the litigation side for the auto cases, the trucking cases and some of those issues. And then the marketing. And the marketing, if you think about it, it’s storytelling. At the end of the day people probably… if you look historically, I’ve seen my goal from a marketing standpoint for the firm is really introducing the truth of our firm to the public. And the legal community knows who we are. The legal community knows what we are. The legal community trust and respects us, how in the world do you introduce to when 99.9% of the population never thinks they’re going to need a lawyer? So we’re an interstitial or interruptive ad, no matter what we do. How do you communicate with them? And so what we’ve tried to do is try to do things where we start to introduce more people in our firm than Art and Dave. So bring the entire firm forward. So people see the quality of attorney, the quality of paralegal, the quality of nursing in a meeting, and the support staff that we have here. And so we can start to earn people’s trust where they don’t have to just say, that’s a law firm that advertise their say the same way they look at a hospital like in Cleveland. And when they look at the Cleveland Clinic and say find something serious, I want to go to University Hospitals or Cleveland clinic. Those were our two largest hospitals, the best people and the best resources. You don’t want to put your money in a small bank. You know what I mean? I want people to start to look at our firm the same way that wait for a second, I can get personal service, I can get quality service and better service there because I’ve seen the resources that they bring to bear. A third of my time is in marketing and part of marketing is we have a ton of a brand recognition, we’re trying to build both for the industry of legal work and the firms specifically brand credibility.

Chris Dreyer

Great answer. For me, I know the name of the firm is Elk & Elk, but what I can tell you is one of the first things that stood out was just expertise. I trusted that your firm was very high quality and did exceptional work. I don’t know exactly what it was for one individual thing that I read, but it was an immersive experience. You’ve got a great website and that’s just the feeling that I got as an observer. So let me jump, let me go over to a, a personal question. Just add some fun here. So I read you were a big calves and Browns fan and, so I got asked, how did you handle LeBron leaving?

Jay Kelley

So the first time was hard. I mean for sure. The first time that LeBron left was definitely hard because he was one of your own and you had something so special and unique the second time wasn’t as hard. Not that we don’t want him here because he’s such a great ambassador for our city and for our state, and I went to law school at Akron, started prosecuting in Akron, so I have a ton of Akron connections. But he delivered something to this city that had gotten to a point where it almost seemed impossible. I’d been 52 years without a championship. The first time I was hurt for myself, the second time I was happy for him, I was like, you know what? If this is what he wants, if this is what he’s going to do. And one of the things I love about him is if you look at how that guy surrounded himself, Rich Paul, local Cleveland kid, Randy Mims, like all the people, Maverick Carter, those are all local kids and friends of his loyalty to a school and the community, like, so we have no hard feelings for him at all.

Chris Dreyer

Excellent points in our conversation that would make for great advice. He explained the virtues of putting your client’s needs first. Why you should let the jury know from the outset, what you want and how elk and elk utilize the collective knowledge of their lawyers. Clearly, he was a gold mine for great ideas.
So I wanted to ask what the absolute best piece of advice was that he had for other lawyers.

Jay Kelley

So from a trial lawyer standpoint, one of the things that I will tell you that the single best lesson I learned in my life as a trial lawyer of course came like every lesson out of failure. And it was when I started as a prosecutor. The second week I was at work I ended up trying a case by myself because the lead prosecutor in my courtroom fell ill. So here I was looked all of probably 12 years old with freckles and tried an aggravated arson case. Won the case, couldn’t have been more excited for myself, but if I’m being fair there was an eyewitness who saw the crime, they caught him a mile away from the crime with the evidence. You know what I mean? So it wasn’t a Rubik’s cube. The second case I tried, like 10 days later, I won. Again, not the most complicated case. The third case that I tried, I lost. And it was a really tough case. It was, the evidence was much thinner, there was a lot more steps, the lawyer on the other side was just a really cool guy who I love trying the case against. And my mentor in that prosecutor’s office was a guy named Fred Zuck, the nicest, most humble guy you could ever meet. And Fred brought me in and said, there’s something I always say about verdicts. He goes, they can make a fool, look like a hero and a hero look like a fool. And he said, he goes, I’ve watched your trials because you weren’t that good in your first case and you won. He goes, you tried a really nice case in your third case, and you’ve lost. You’re a much better lawyer in case three than in case one. So he said, never judge yourself by the verdict. He goes instead, while you’re waiting for that verdict, use that time to ask yourself: did the case go in as I had expected? Did the case go in as well as I could have put that case in? And he goes, be fair to yourself and then accept the verdict. And it’s hard to do for clients. You know what I mean? And I don’t minimize, I say in the course of my, 20 some years, there’s six cases that I truly wish, you know, of the hundreds turned out differently. And I say those names every morning, they’re in my wallet. But for me as a lawyer, I do that same process. Every time, the minute the case is done when we’re waiting for the verdict I do my own debrief of the case. And honestly, it’s the only time you can be fair because if you get a big verdict, you’re a hero, no matter how bad you were in the courtroom. If you lose, people are going to question you no matter what. So that was the single best advice I ever got and gives you a little bit of a defensive back mentality.

Chris Dreyer

So that was going to be my final question, but I have to ask another question here just because that’s such a great statement. Do you take that same approach on the case that you won?

Jay Kelley

Yeah, for sure. So you’re done, you don’t know if you won or not. Do you know what I mean? So you actually dig through it. And I’m a believer that you want to do your best for these people and what an incredible privilege for someone to trust you. And no one wants to be a plaintiff, no one would trade their health or their child’s health for any amount of money. And I take such great pride in the fact that someone trusts me. Honestly, like I still see myself as the same like everyone else, you see yourself as the same person who grew up, went to high school, you know what I mean? But you don’t see yourself as necessarily someone’s resource Whether we win or lose, every case that we resolve or when I try to make it my mission to call those clients every year, just to see how they’re doing. Because honestly, some people put their money into an annuity. Some people put their money into investments, some people do different things. And so I want to learn because if I learned that a client did something in their house that made their child’s cerebral palsy easier to deal with, I want to be able to tell the next client who we’re successful for. And honestly, like it charges you up too. You know, when you call on here that you’re making a functional difference in someone’s day to day life. And that’s what lawsuits are about. Lawsuits aren’t about boats and money and luxurious items. Lawsuits for us are about wheelchair wide doorways, track systems and ceilings, extra exits in from houses. Never ever stop learning from your successes, from your failures. And whatever it is, there’s something there that will be better for your next client

Chris Dreyer

In any business, it’s all too easy to focus on results and numbers, and sometimes forget a little about the user or the client. But Jay’s success as a lawyer goes to show that putting your client’s needs first, isn’t just important, it’s imperative. And if you take care of your clients, then the firm will take care of itself.
You’ve been listening to The Rankings Podcast, I’m Chris Dreyer. A huge thank you to today’s guest, Jay Kelley for joining us. You can find all of the links from today’s conversation in the show notes. And we want to hear from you, Jay likes to draw on his acting classes but what non-attorney skills do you find useful as a lawyer? Drop us a review and share your thoughts. Thanks for joining us. We’ll see you next time.

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