20 Questions with Tommy Malone
While I have tried a very large number of cases, I have actually only tried four cases in states other than my home state of Georgia. My first was in 1973 in Fargo, North Dakota, filling in for Melvin M. Belli; the second in Monroe, Louisiana in 1987. The last two were working with my dear friend, Randy Scarlett, who was a clerk in Mel's office when we met. The first of these was in San Francisco in 2007, and my last out of state case was with Randy in San Jose in 2009.
I maintain the same approach wherever I try cases: first, I am very careful with case selection and then I do my very best present the case clearly, honestly and professionally. I do try to consider perceived mores and attitudes of the locality—whether it be a rural venue or metropolitan area. For example, in San Jose, California, I entertained some pretrial anxiety and concern over using hi-tech computer graphics as I knew there would be jurors who knew much more about computer graphics than I did. So I relied on my trusty magnetic board to set the scene and it worked very well. My approach to jury selection has always been to identify those potential jurors I suspect have an agenda contrary to justice for my client, and get them off the panel through cause challenges or peremptory. My experience does not suggest any major difference when comparing jurors from one state to another. The big difference is from small venues to more metropolitan venues.
2. Since you first began practicing law, what changes have you noted that are positive within the profession? What negative?
When I entered the practice in 1966, justice was not available to ordinary citizens in South Georgia and elsewhere who were injured by the carelessness of the rich and powerful. My first trials were before jurors who did not represent a cross section of the communities. The 1964 civil rights act found its way to South Georgia in the early 1970s, and the composition of juries changed for the better. This fact coupled with increasing awareness of the happenings in the rest of the nation and world due to growing media exposure brought remote venues into the twentieth century. These have been the most positive changes I have noted in my career.
The negative from my perspective has been a lowering of the appreciation for our system of justice brought about by the well-funded "tort reform" propaganda and the impact of lawyer advertising. I have long thought good lawyers do not do enough to let the public know of their availability or existence, but the television hawking "no fee guarantee" and the "lawyer Jones got me a million dollars for my injury" have complemented the efforts of the "tort reformers" to thwart the pursuit of justice for the injured. For the most part, lawyers I encounter are professional and good to their word, the exceptions, though small in number, are troubling.
3. You have had the opportunity to handle cases with other nationally renowned lawyers. Are there any printable stories or anecdotes you would like to share with us?
Melvin M. Belli of San Francisco was my mentor. He is considered the "father of demonstrative evidence." Indeed, there are many stories arising from our relationship that are not printable, but I can share a few G-rated tales:
I do recall the first deposition we did together with me asking the questions and Mel passing me notes. The defense offered up an Emory pathologist to counter our neuropathologist. Before the deposition, he taught me a great deal in a short period of time, such as this question: "Doctor, are you familiar with Dr. Jones and his works in the field of neuropathology?" It did not matter how the physician answered the question—"Yes," and he gives validity to our expert's as an authority in the field; "No," then he is clearly not a very well read expert! He also wanted me to ask if he was aware our expert was the physician to the astronauts. Once again the answer did not matter nor did the fact our expert had never met an astronaut.
Mel had several wives, but I only knew two. When the next to last was leaving, he wrote me an interesting letter with several unprintable adjectives preceding her name, followed by the parenthetical expression: ("I will have some unkind things to say about her later").
A trip to London, Paris, Switzerland, and ending in Rome provides many stories, but most are not suitable for print. I do recall one story that characterized our differences.
My son Adam was 11, as was Mel's daughter, Melia. When we arrived in Switzerland, Adam was quite taken aback when Mel scolded Melia, who was a language student, when she said something like, "Dad when are we gonna leave?" Mel was upset, and loudly bellowed at the dinner table, "Gonna, Gonna?? Where did you learn to speak that way?" It was clear to Adam and me that our South Georgia vocabulary was not fully appreciated by the King of Torts!
4. I know that your recreational passion is being on The Justice bill fishing in the Atlantic Ocean. Having had the privilege of catching sailfish with you, catch and release, of course, along with LCA Fellows Chris Searcy and Howard Nations, it is obvious that you use these times to reenergize your professional life. How early in your career did you discover that one must balance a career in law with interests outside?
I never gave it that kind of thought. I am a burn-it-at-both-ends kind of a guy. In my first med mal case, I met Dr. Roger Palmer who was chair of the Department of Pharmacology at the University of Miami. He, like Belli, changed my life. He came to Albany, Georgia, and testified as an expert witness against the local doctor who gave a sulfa drug to my 15 year old client, who had a documented allergy to sulfa and suffered a massive reaction leaving her paralyzed. Dr. Palmer and I became best friends. He not only secured my appointment to the adjunct faculty of the Medical school, he introduced me to bill fishing in the island town of Bimini in the Bahamas. He was married when we met, but I served as best man in his next two weddings and attended his last after refusing to serve as best man again—I felt I may have been bad luck. Other than my father who served as prosecuting attorney and later as Judge of the State Court, Mel Belli and Roger Palmer had the greatest influence on my career. Mel taught me the trial work and Roger taught me the medicine.
5. How have advances in technology changed your practice, particularly when handling cases from a distance?
Video conferencing and "Gotomeeting.com" have made life much better. I can sit at my desk at home or the office and conference with my good and dear friend Randy Scarlett when working on our California cases, as well as meeting with experts and conducting discovery depositions wherever they may be located. I have video conference capability even in the Bahamas so I can stay in touch probably more than my office would prefer. The cost of one trip to California paid for the equipment.
6. You have the rare privilege of practicing with your son, who is immensely successful in his own right, in a firm with very select cases. What have you taught him? What has he taught you?
Adam shares my devotion to justice and the protection of the rights of our clients. He is very talented, creative, hardworking, and has a reputation for honesty and professionalism. I am extremely proud of what he does and who he has become.
He has taught me to look at various new approaches to doing what I have been doing since my early days. While we do not always agree, we respect each other's point of view and continue to learn from each other. We have tried several cases together. In a birth injury trial coming up in January and based on his suggestion he is representing the parents and I represent the child. We will now be on a level playing field with the two attorneys representing the hospital and the doctor. Both sides now have equal opportunities for voir dire, openings, closings and the examination of witnesses.
7. What was your evolution toward litigation, and did it begin before, during or after law school? That is, did you want to be Perry Mason growing up, or did you want to become a trial lawyer after getting out of law school and reading contracts all day long for the first six months of your career?
In high school, I rode bucking horses in rodeos in South Georgia and seriously considered the study of auctioneering and horseshoeing as career paths. I quit wanting to be a cowboy and started wanting to be a lawyer when my mother explained the quality of women I could attract would be far better if I became a doctor or a lawyer. So, when I left home for the University of Georgia, I knew I would one day be a lawyer and the courtroom was always part of my plan. I had always enjoyed being something of a contrarian, and my pursuit of justice in the courtroom for ordinary, but very special people gave me an exciting if not many times disappointing life. Over time, I came to fully appreciate the joy of making a real difference.
8. What impact do you think the discovery process has had on the number of cases being tried?
The discovery process does often achieve its intended goal by eliminating surprise and giving the parties an opportunity to adequately evaluate their respective positions leading to settlement. Discovery today has become an extensive and costly process. It makes the road to justice very long for many of our clients. Many meritorious cases that should be resolved early do not reach settlement discussions until a very expensive discovery period is completed. The discovery process may negatively impact the number of cases that reach the courtroom simply because the Court's overall caseload is bogged down with cases that take up the Court's time in dealing with discovery issues.
9. What do you consider your most unusual accomplishment?
Making it to 70 years of age.
10. I once practiced with a fantastic, though legendarily difficult trial lawyer named Olin Zeanah. One of my partners, beginning when we were associates, kept a list of "Zeanahisms." They were little gems of knowledge that Zeanah would occasionally impart. Did you have a trial icon or mentor in your early years of practice who shared with you the wisdom of years of practice? If so, please tell us about them.
My father: "A man is only as good as his word."
"It's a damn poor road that don't run in both directions."
"The best is not good enough for my friends and hell is not hot enough for my enemies."
"A poor settlement is far better than a bad verdict."
Mel Belli: Communicate with the jury not only through the spoken word, but with good demonstratives which help tell your clients' story. He also taught me to look beyond the horizon.
11. Litigators tend to travel a great deal. What are some of your favorite cities or places, and what fascinates you about them?
Anywhere in the Bahamas- the water, the laid back pace of the people, and of course, the fishing.
San Jose and San Francisco, California- the great climate, food, people and memories.
Debbie and I love Santa Margarita in Italy-the food, the people, the scenery, the history and its proximity to Portofino.
12. Have you ever had a case in which your opposing counsel went over the line ethically in representing their clients' interests? How did you deal with it?
In my first med mal case in Albany, (and maybe my first deposition) when deposing a local doctor the defense lawyer, who was 30 years my senior and dean of the defense bar, insisted we make all objections at the time of the deposition. He asked a hypothetical question of about four pages. I objected by saying it included facts not in the case and omitted facts pertinent to the question. The defense lawyer then said, "Doctor, now that Mr. Malone has questioned your medical qualifications, isn't it true you graduated from the Medical College of Georgia?" The lawyer then went on to establish outstanding credentials of this local physician. When it was my turn, I asked, "Doctor, did you, at any time, think I had questioned your medical qualifications?" After confirming he did not, I asked if he had any idea why the defense lawyer would say such a thing, to which he answered no. At the conclusion of the deposition, I asked the doctor if I might borrow his examining room, and invited the defense lawyer to join me. Once we were alone, I asked the senior defense lawyer if he was aware my father had a very bad temper, to which he replied "yes." I then asked if he knew me to be his son, and would he suspect that I had the very same temper problem. I then asked him to please help me by never again doing what he had just done because I felt I may not be able to control my temper and might just knock him out of the chair he was sitting in. "Are you threatening me?" he asked. "No, I am just asking you to please help me," was my reply. That defense lawyer and I never had any similar problems thereafter.
13. What intrigues you about prior generations of trial lawyers?
How they all gave so freely and unselfishly of their time and talent to pay it forward to the younger lawyers like me. The knowledge and insight they shared has clearly given us the opportunity to extract a measure of justice for our clients that was not possible during the practice of many of them.
14. If you were a judge, what would you do differently from what you deal with most frequently in your practice before presiding jurists?
I would readily excuse any juror for cause if there existed a reasonable apprehension as to their ability to be fair and unbiased.
15. What is your greatest extravagance?
My wife, Debbie, but she is worth every penny and more.
16. If you could meet anyone from history, who would it be, and why?
Justice Thurgood Marshall. His work as an attorney, such as Brown v. Board of Education, laid the groundwork for the most important changes seen in our country in the last century. Marshall's time on the Supreme Court exemplified his life's dedication to the protection of individual rights, a tenet I personally hold so dear.
17. Diversity, along with excellence and integrity, is central to the LCA's mission and plays a fundamental role in our selection of Fellows, growth, and goals. We want to quote you on diversity in the next issue of Litigation Commentary & Review, as well as the Diversity Law Institute's new website. So in a word, sentence, or paragraph, what, in your opinion, is the significance or importance of furthering diversity within the profession of law and throughout our system of justice?
There can be no real justice without diversity.
18. What trait do you most value in your friends?
19. If you could not be a lawyer, what would you like to be?
20. What is your motto?
There is no greater reward than being able to make a meaningful difference in the quality of life of another person.
By G. Steven Henry