Home of the Brave
Three attorneys tell of serving their country
Published in 2009 Ohio Super Lawyers magazine
By Kevin Featherly on December 22, 2008
A Matter of Public Service
James W. Kelleher’s military experience led him to serve again, in the aftermath of 9/11
At the peak of the Vietnam War, James W. Kelleher was denied a law school deferment due to a surplus of military lawyers. Fortunately, he was sent to Germany in January 1973, although it was at a time when the U.S. and USSR were at the height of their Cold War tensions.
Kelleher, now a partner at Pickrel, Schaeffer & Ebeling in Dayton, served four years in the Army infantry, then went to law school at the University of Dayton, graduating in 1979. While still a student, he was recruited into the Ohio National Guard. His first thought was to sign up for the judge advocates general program for military attorneys.
But his base commander recommended against it. “The advice I got was that I might enjoy doing something different than just being a JAG lawyer,” Kelleher recalls. “I think that was probably good advice. I did a lot of other things.”
Kelleher spent 18 years in the National Guard, winding up a battalion commander of an Ohio unit that saw action in the first Gulf War—though Kelleher’s own headquarters unit was held back. He wasn’t a JAG, but he had plenty of experience dispensing nonjudicial punishments to rule breakers, including busting ranks and withholding promotions and pay. He retired from the service in 1994, focusing on his career as a personal injury attorney and adjutant instructor at his alma mater.
Summed up, Kelleher says the military left him with a deep appreciation for public service. So, in the aftermath of the 9/11 attacks, he was driven to find a way to use his talents to help.
Coincidentally, the Association of Trial Lawyers of America (now known as the American Association for Justice) had initiated a program to help 9/11 victims pro bono. Kelleher sought them out. He was assigned to help the Faulkner family from suburban Cincinnati.
Wendy Faulkner, an employee of Chicago insurance services giant Aon Corp, died in the World Trade Center’s south tower while on a one-day business trip to New York.
Faulkner’s husband Lynn was initially reluctant to pursue compensation under the September 11th Victim’s Compensation Fund. The family was already involved with charity work and missionary work.
But the family eventually decided to apply and received compensation, a sum of money that has not been disclosed. “It was one of the most rewarding experiences in my professional career,” he says.
Still, he’s guarded in talking about it. He has rarely spoken publicly about his efforts on behalf of the family, he says.
“I just viewed that as the nature of pro bono work—pro bono publico: for the good of the public,” he says. “That’s all it was.”
How to Beat the Bureaucracy
Robert Gray Palmer worked both sides of the courtroom during his days as a JAG, and the experience paid big dividends
Robert Gray Palmer, who hangs a shingle as a solo practitioner in Columbus, believes that his days as a U.S. Air Force JAG attorney gave him an invaluable leg up in his civilian career. Called to active duty in 1970, Palmer was stationed in the Philippines, where he served primarily as defense counsel. However, like many in the JAG corps at the time, he also prosecuted cases.
“These cases might only last a day,” he says, “but it was great training on thinking on your feet and that kind of thing. I found the military justice system by and large to be pretty good for defendants because the military juries actually believed that government had to prove their case.”
His prosecutorial experience taught him two valuable lessons that would shape the course of his career. First, he preferred defense work. And second, now he knew how to beat bureaucracies—whether governmental or corporate—at their own legal game.
“One of the best ways to learn how to beat your opponent is to be your opponent, if you will,” he says. “I think the experience in on-the-job training in prosecuting and representing the government—as opposed to the individual against the government—helped me learn how bureaucracies work, how people on that side of the fence think and how to prove the case against the defendant.”
With 30 years’ civilian trial experience under his belt, Palmer is recognized as one of Ohio’s top courtroom lawyers, having won a series of complex cases involving personal injury, insurance company malfeasance and professional malpractice. His best-known case is probably Dardinger v. Anthem Blue Cross & Blue Shield.
Esther Dardinger was diagnosed with a serious brain tumor, and had undergone three intra-arterial chemotherapy sessions that were showing immense benefits. But then her insurance company, Anthem, stepped in, refusing to fund any more treatments. Anthem claimed the procedure was experimental.
“Esther was like the perfect sample of how this treatment was working,” Palmer says. “So they yanked the plug and the tumor starts growing back and it’s aggressive.” The final denial letter arrived the day after her funeral.
Palmer represented the woman’s husband, Bob. In 1999, a Licking County Common Pleas Court jury found Anthem liable for breach of contract and bad faith, awarding $2.5 million in compensatory damages and $49 million in punitive damages. Following the insurer’s successful appeal, the Ohio Supreme Court reinstated the family’s punitive damages, but reduced them to $30 million.
But then, in an unusual step, the court demanded that much of the money be diverted to create a memorial cancer research fund at Ohio State University in Esther Dardinger’s name. “What the court didn’t know,” Palmer says, “is that Bob Dardinger—who is just a hell of a fine person—was going to do that anyway.”
Taking His Chances
Thomas S. Kilbane could have skipped Vietnam, but chose otherwise—and he’s glad he did
Thomas S. Kilbane is a partner at one of Ohio’s biggest legal shops, the 275-attorney Squire, Sanders & Dempsey, and is the former global chair of its litigation group. However, if the breaks had gone another way, he might never have made it that far.
When Kilbane entered active duty in the Army in the late 1960s, he was given two choices. Transfer to JAG school as a captain and teach at the University of Virginia, or take his chances and stay on a non-JAG track for two years, a track that could lead to Vietnam.
He chose the path leading to Vietnam.
Kilbane had already taken a deferment to attend law school at Northwestern University. He showed such talent that he garnered offers from many firms, but he picked Squire Sanders because the firm offered to give him full tenure credit toward an eventual partnership while he served. That loyalty has been returned; Kilbane has spent his entire civilian career with the firm.
While still in the Army, he spent a year at Fort Eustis, Va., not as a JAG officer, but as something very close to it. He says he worked first chair defense on 10 special court-martial cases while at the post, and won them all.
Given that, he had every reason to think that when he finally arrived in the combat zone in June 1968 as a young captain, his talents as an attorney would be in high demand, particularly since the Qui Nhan Support Command had 12 spots for staff attorneys on its roster to fill. After making the request, he was told to go outside and wait to find out if his request would be granted.
“Many hours later, two gun jeeps pull up with M-60s and these guys decked out in their flak vests and M-16s, grenades, the works,” Kilbane recalls. “They got up out of their jeep and said, ‘Captain Kilbane?’ ‘Yes.’ They said, ‘Welcome to the 8th Combat Transportation Group.'”
So much for lawyering. While in the country, he was promoted to intelligence, and given security responsibility for approximately 5,000 U.S. troops in a 50-square-mile combat zone in central Vietnam. For meritorious achievement in ground operations against hostile forces, he was awarded the Bronze Star.
Upon discharge, Kilbane returned to Squire Sanders, where he started defending personal injury plaintiffs. Over time he moved into complex commercial contract litigation, and finally into antitrust, construction and securities issues. One of his highest-
profile cases, Central National Bank v. Dow Chemical Company, is notorious as the longest jury trial in state history, lasting
16 weeks and resulting in a $26.1 million verdict against Dow.
When he looks back on how the Vietnam experience affected his career, Kilbane talks about the collegiality among the troops at a point in the war when the sense of mission was still very strong among the troops, and morale was very high. “It was mission, it was camaraderie,” he says. “You’re in a dangerous environment, in which people looked to each other to take care of each other. And everybody did.”
Though the experience is far less dramatic, Kilbane says juries go through something similar. And his sensitivity to that, formed in the cauldron of a wartime environment, helped him succeed as a lawyer, he says. “The great camaraderie made me better able to relate to juries,” he says. “That’s something that I think is true.”
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