Bobby McDaniel on Whitewater, medical malpractice and flying blind
Published in 2007 Mid-South Super Lawyers magazine
on November 9, 2007
Updated on August 11, 2016
Since August 2006, attorneys-to-be at the University of Arkansas School of Law have honed their mock trial skills in a technologically advanced practice room. Called the Bobby McDaniel Trial Practice Classroom, the facility is named for the alumnus and trial attorney who’s one of their sources of inspiration. And if the aspiring lawyers do half as well in their careers as McDaniel has, they’ll have something to be proud of.
Born and raised in Jonesboro, Ark., McDaniel worked construction jobs and dug ditches as a teenager for extra cash. “I decided that I wanted to be a lawyer,” he says, “for no particular reason other than it seemed to be intellectually challenging and it wasn’t construction work.”
As a law student at the University of Arkansas, he showed a glimmer of the boldness that would become his trademark. In 1972, the year he graduated with honors and just four years after the assassination of Dr. Martin Luther King Jr., McDaniel published an article in the Arkansas Law Review making an audacious suggestion: “I believed that every city in Arkansas was guilty of racism, and so I urged them to eliminate discrimination in municipal services on their own rather than wait on litigation,” McDaniel says. “To my surprise, nobody would even give me an interview after that. I guess I was a troublemaker.”
So the beginning of his career was a bit bumpier than he expected. “I went into practice with a distant cousin,” he says, “who, little did I know, had been effectively retired for about 15 years. We were in an old house that should have been condemned. The deal was I was a 50 percent partner—I would do all the work and we’d split the money. Except there was no money to split, and no clients. So the first three years of my practice, I hustled pool at night in bars and honky-tonks and made more money doing that than I did as a lawyer.”
Because he had no firm partners to look to for guidance, McDaniel learned the ropes on his own. “Since I didn’t have much work to do, I’d find where the best lawyers in our area were at trial and I’d go watch them try cases,” he says. “That’s how I got started.” He launched his own firm, McDaniel & Wells, in Jonesboro in 1975.
McDaniel found his way into criminal defense work. “I loved trying murder cases,” he says. “My favorite defense in a murder case was ‘I shot the S.O.B. because he needed [to be] shot.’ I was defending a poor black woman who had no money because I knew that if she didn’t have aggressive representation she’d go to the penitentiary, probably for life. The problem was, when she shot her husband, it was broad daylight with about seven witnesses and he was unarmed.”
McDaniel went with a then-uncommon defense: battered wife syndrome. “He wasn’t beating her [when she shot him]. But she knew she was going to get a beating later, and she decided to stop him before it happened again,” McDaniel says. The jury agreed and acquitted her.
As McDaniel’s reputation grew, he became involved in more high-profile cases. In 1990, then-Gov. Bill Clinton appointed him as a special justice to the state supreme court in a tax-related case. McDaniel wrote the majority opinion in City of Fayetteville v. Edmark, establishing that the work of private attorneys hired by the city was subject to the Freedom of Information Act.
But the case that turned his career on its head arrived in 1994 when McDaniel was summoned to the defense of a woman accused of obtaining fraudulent federal loans to bail out a real-estate development company. The woman was Susan McDougal and the company was the Whitewater Development Corporation. “I was the first lawyer in the history of America, to my knowledge,” McDaniel says, “to subpoena a sitting president of the United States.” A framed copy of the Clinton subpoena hangs on McDaniel’s wall.
“Susan was referred to me and she had no money,” McDaniel says, “and so I climbed on my white horse and agreed to give her some advice . . . I represented her through the initial process. We told the special counsel that there was no reason to indict Susan McDougal, that she was about the lowest person on the totem pole, but that if they were interested in the truth, give her immunity and we’d answer every question they had. Well, they refused—they wanted to know what she would say against the Clintons before they would consider giving her immunity. Susan refused to fabricate something against the Clintons to extricate herself.”
The details of that case are well known—the defense was unsuccessful and McDougal went to jail. But little consideration is given to the effect the political turmoil had on the case’s less famous players, like McDaniel.
“It was the most frustrating thing I’ve ever been a party to,” McDaniel says. “I’ve never seen such an abuse of power. To be in the middle of it was overwhelming and disconcerting because it showed how scary it is when people in power ignore and abuse the U.S. Constitution for political purposes.”
So scary, in fact, that McDaniel quit criminal defense altogether. “It was my quiet form of protest,” he says.
Still, McDaniel’s experience defending McDougal cemented his lifelong affection for the underdog, and he put it to good use. Always interested in medical malpractice, he discovered his new calling by taking on personal injury cases. “Everybody who’s a victim of malpractice says yes, we need the court system to work,” he says, “but those who are just driving along in their cars or sitting at home reading a newspaper, those who aren’t victims yet, who never expect to need a lawyer, don’t even know they need to speak up for the jury system.”
McDaniel knows. He’s served as president of the Arkansas Trial Lawyers Association and gets results for victims of malpractice, like the $8.5 million he landed for Buell and Juanita Edwards—the largest medical malpractice award in Arkansas history.
Juanita Edwards visited a mobile catheterization unit in 1997 for a routine cardiac procedure in which dye is injected into the bloodstream as a diagnostic test. “The physician went in to do the procedure; the staff had set it up so that all he had to do was inject the dye and read the test,” McDaniel says. “They were short-staffed, but rather than cancel the test, they hired inexperienced help.” The staff failed to purge the air from the line; when the physician injected the dye, an air bubble went to Edwards’s brain, causing a stroke and rendering her quadriplegic.
“The jury awarded $1 million for loss of consortium for her 75-year-old husband, which was quite a landmark,” he says. “‘Consortium’ means a whole lot more than the sexual marital relationship. It means care, attention, companionship—he was essentially deprived of his lifelong companion. Normally, in Arkansas, nothing is ever awarded for consortium, so a million-dollar award for a man in his 70s was unprecedented.”
McDaniel is also the first Arkansas attorney to get punitive damages assessed against a physician in a medical malpractice case, a decision affirmed on appeal this June. In Paul Montgomery v. Mark McCoy, M.D., the physician was found liable for performing unnecessary surgeries and altering medical records. The $500,000 punitive damages award was “truly a high-water mark in my experience,” McDaniel says. “I felt we brought something important to light.”
After such a long and distinguished string of firsts, it’s no wonder his alma mater named a classroom after him. But McDaniel will tell you his proudest accomplishment is his family. “One of my sons (Dustin, 35) is now the Arkansas attorney general, and the other son (Brett, 30) is a brilliant young lawyer in Colorado doing medical malpractice defense work,” McDaniel laughs. “It makes for some interesting dinner conversation.”
The success of his sons is especially impressive considering McDaniel was a single parent. “I raised both my children from the time they were 12 and 7 while I was trying to build a law practice,” he says. “Did you ever see the movie Mr. Mom? That was me. It was hard as hell, but it was the best job I ever had.”
In 1999, McDaniel married his wife, Tonja, a psychotherapist and former client for whom he’d won a settlement. “A few years later, she called me up and said, ‘Mr. McDaniel, this is a social call,’” he says. “‘You never would talk to me while my case was going on—you always made me talk to an associate. But I’d like to buy you a drink with some of the money you got for me.’” Unfortunately, Tonja was injured in a 2001 fall that left her with disabilities requiring constant care. “We’re doing the best we can,” McDaniel says. “Tonja has a great attitude—she’s just a wonderful person.”
McDaniel, an instrument-rated pilot, also enjoys flying a twin-engine plane to business appointments, although he confesses to a peculiar preference: flying in bad weather just for the challenge. “I prefer to fly when I can’t see the ground or the wingtips—if you’ll pardon the language, it’s a kick in the ass,” McDaniel says. “If you’re gonna be a real trial lawyer, you gotta be a Type A personality. If you look in the dictionary under ‘Type A,’ you’ll see my picture.”