If at First You Don't Succeed, Try, Try Some Cases

 

He went to law school at the University of Michigan with no idea that lawyers actually specialize in particular fields. They do it all, he thought. “The only thing that ever inspired me in law school, the only thing that caught my attention in terms of what I would do, was trying cases,” he says.

 

Upon graduating he joined Stinson, Mag & Fizzell — which he describes as the best and largest defense firm in Kansas City at the time. Two years later, in 1985, he left for his current firm and was almost immediately handed a multimillion-dollar piece of litigation, Independence School District v. U.S. Gypsum, that others had deemed impossible to win. He was 25. The school district was suing asbestos makers to pay for the removal of the cancer-causing material that had been placed in schools decades earlier. The case went to trial in 1986. He was one lawyer against many, but he quickly learned to digest the massive amounts of data and information about the toxic substance and the case. He won.

 

From that point on, he worked on asbestos cases on behalf of school districts and building owners across the country. “I learned a lot and became more in tune with the process and what it took to be a successful lawyer in regard to these matters,” he says.

 

Then came the tobacco cases. In 1997, he settled the first individual tobacco tort action in the country in New York on behalf of Janet Sackman, a former Lucky Strike poster model. Sackman raised four children and married a New York City cop, but early in her life she was a model for Lucky Strike cigarettes. A rep from the company noticed she didn’t look natural smoking and asked her if she smoked. She didn’t. Sackman was told she should; it would look better for the advertisement. So at 17, she went home, locked herself in the bathroom and learned how to smoke. She smoked for the rest of her life. She eventually lost a lung and her voice box.

 

“Through that case we were able for the first time to order a tobacco company to disclose its privileged documents they had been hiding all these years,” McClain says. “It was that order that everyone else in the country used in all these other cases to get tobacco companies to open their documents. It showed the tobacco industry had been lying for years. They’d known their products were addictive, they were trying to make them more addictive and they knew it was killing people.”

 

In 1998, his firm was selected by the state of Missouri as co-counsel in its tobacco cost recovery case.

 

Allan Kanner, a national trial lawyer based in New Orleans, had heard of McClain before working with him on a pollution case in Missouri. He admired his success and heard rumors of his courtroom tenacity.

 

“He’s one of the few people I’ve met who will go above and beyond,” Kanner says from his New Orleans office. Colleagues agree. They say he’s willing to put in the hours it takes to get the job done. When staff members are working until all hours preparing a case, he works right alongside them, doing the research and gathering the facts to try the case. “He’s got a good set of personal values,” adds Kanner. “He’s a salt-of-the-earth type of guy.”

 

McClain most recently has been working on cases involving workers from popcorn plants. In 2004 he won $20 million in damages for his client, Eric Peoples, whose lungs were injured by the butter flavoring he worked with. In 2005, a jury awarded $15 million to another plaintiff in a similar case, and he’s had two other recent awards of $2.7 million and $15 million.

 

So how does it feel to have such a record of success? To be the Stan Musial of personal injury lawyers? To know that fellow attorneys consider you one of the most gifted courtroom lawyers they’ve ever seen?

 

“When I win, it’s a wonderful thing,” he says. “Winning a case for a client is a wonderful thing because you’ve changed their life. I love trying cases win, lose or draw. But when I lose, it’s a terrible thing for the client and I grieve along with them.”

 

McClain loves trying cases so much, in fact, he’ll do whatever he can to fit an extra case into his schedule. He recalled a time when an attorney called him up. The attorney was representing a Missouri state trooper who claimed he was exposed to hazardous materials in the workplace. The case had been pending for 10 years and the attorney representing the trooper called McClain three weeks before the trial to see if he could represent the man, fearing he would not be able to represent him appropriately.

 

“The first thing I thought was, ‘Absolutely,’” McClain says. “What a great challenge to represent someone who is injured, get ready in three weeks and be in trial again. Of course I’ll do it.”

 

In the end they lost, but McClain and his client were recently granted a new trial in September 2005 after a judge ruled that the previous verdict was against the weight of evidence in the case.

 

Many attorneys have asked him why he takes on extra cases. Is he crazy? “Lawyers who have asked me that question look at this as work,” McClain said. “I look at this as a calling. It’s not something I do for the money. It’s not something I do because it makes me successful. This is something I was made to do.”

 

Despite McClain’s obvious focus on the courtroom, Greg Leyh, who used to work at Humphrey, Farrington & McClain and now has his own firm, describes McClain as a renaissance man. “He has serious talent and an interest in a variety of things life has to offer,” Leyh says. “Community development is big on Ken’s agenda. He appreciates the things that really matter in life.”

 

Like family. He tries cases across the United States but he’s found time to coach the basketball teams for all six of his children. It didn’t matter how busy he was. Now his eldest child will be entering law school this fall at the University of Missouri. It was something he neither encouraged nor discouraged, but he’s pleased that his daughter feels the law could be a rewarding job.

 

McClain looks on his career as a blessing. “I am grateful that I can do this for a living,” he says. “I would do this for free if they didn’t pay, I love it that much. A lot of people have hobbies they enjoy, and they practice law so they can do their hobbies. The one thing I love in my life besides my family, which I desperately love, is trying cases.”