‘We Can Remake Ourselves’

When Kevin E. Martingayle started practicing law in Virginia Beach in 1992, he made calls from a bulky cellphone with an antenna protruding from the top. “I thought I was a big shot,” says the Bischoff Martingayle business litigator with a laugh. “You’d go out on the beach and you had your giant phone. Nobody else had one.”

As technology changed—and everyone upgraded to flip phones, then smartphones—so did Martingayle’s practice. Enter e-discovery and Zoom meetings. But Martingayle believes attorneys need to remember the basics: “You still have to break it down to bite-sized pieces so the judge or jury can understand what’s going on,” he says. 

To mark the 20th edition of Virginia Super Lawyers magazine, we sat down with five attorneys who have been Super Lawyers listees every one of those years to ask what’s changed and how they’ve adapted.

Why Law?

Kevin E. Martingayle, Bischoff Martingayle, Virginia Beach; Business Litigation; University of Virginia School of Law 1991: I was good at writing. I thought I was good at arguing, and I was logical, so it seemed like a natural fit. I’d always been a competitive athlete. I was pretty sure I would want to be some kind of courtroom lawyer, whether handling trials or appeals or both, and that’s what ended up happening.

Cheryl Watson Smith, Cheryl Watson Smith P.C., Roanoke; Family Law; T.C. Williams (University of Richmond) School of Law 1988: I wasn’t good at science. I liked the idea of the research and the writing and the working with people. Someone suggested law to me, and I was like, “OK.”

Deanna D. Cook, Law Offices of Deanna D. Cook, Glen Allen; Family Law; University of Richmond School of Law 1991: I can’t remember exactly when or where it started, but I’ve wanted to be a lawyer as far back as I can remember. 

David H. Sump, Willcox & Savage, Norfolk; Transportation/Maritime; William & Mary Law School 1988: At the end of my Coast Guard career, I was sent to law school by the Coast Guard. It seemed like the best and most interesting job to have in the Coast Guard.

Changes Over 20 Years: Life and Law

Bill Kilduff, Emroch & Kilduff, Richmond; Personal Injury – General: Plaintiff; University of Richmond School of Law 1977: When I first started, it was easier to make your mark. Now, there are a lot of attorneys advertising on TV. It’s an extremely competitive market. If you want to try to keep up with some of the larger personal injury firms in the Richmond area, you definitely have to bump up your budget.

Cook: There has been a big trend in family law cases toward mediation, and trying to help people avoid litigation. That started in the last 10 years. I see that continuing. 

Kilduff: Finding medical articles in researching has become easier to do from your office, as opposed to going to a medical library.

Martingayle: Some cases that formerly might have been easy to try have become very expensive because of the amount of the discovery. We’ve got to work on that.

Kilduff: Medical malpractice cases are just incredibly expensive. If it used to be $1,000 an hour to hire an expert—outrageous! Now everybody accepts that as the norm. 

Sump: Maritime law is event-driven. So there will be some calamity—a vessel will sink, a vessel will collide with another vessel. Today, we have 24/7 access to our email, we have a telephone by our side. Twenty years ago, that was a struggle. If someone tried to call you about an emergency, if you were lucky, you had a pager. We had duty lawyers who would carry pagers with them. I can serve my clients much better now because they can contact me whenever they like. The other side is, it’s much more difficult to disconnect.

Smith: For me, it has been a shift away from doing litigation. On October 1 of 2005, my family and I were in a horrific car crash. My daughter had a spinal-cord injury and was paralyzed for a while, and my son has a traumatic brain injury. They were 7 and 9 at the time of the accident. I was out of the office not quite a year before I could really come back. If I had a doctor’s appointment for my son or daughter, or even myself—and then you have a client who has a hearing—you can’t keep saying to the judge, “Sorry, I can’t come” over and over again. I stopped doing litigation completely and only worked in mediation and collaborative law, and did settlements with the understanding that if the client needs to go to court, or the other side goes to court, I won’t continue representation.

“Your reputation is the most valuable asset you have as an attorney.” —David H. Sump

Standout Cases 

Sump: One of the first cases I handled as a maritime lawyer in private practice, after I left the Coast Guard, was the SS Central America treasure case. It was a landmark case in the area of treasure salvage law. It was very early in my [private-practice] career, 1995 to 2004, when we were dealing with that case. The case started in the late 1980s. We were doing postappeal work and dealing with auction issues after 2000. It is still working in some ways.

This was the case of a salvage master who managed to go to the bottom of the ocean [and] locate and remove gold from a ship that foundered and sank back in 1857. He recovers the gold, brings it to the courthouse here in Norfolk, and the court has to determine the true owner and value of the gold. 

We’re talking about somewhere between $500 million and $1 billion of gold. One of the primary issues was, “Who had the ownership interest in the gold that was sitting at the bottom of the ocean?” Was it the people who owned it when the vessel sank in 1857? Was it the insurance companies that paid off all the claims for the lost gold back in 1857? Or was it the salvage master who found the vessel and went to the expense of recovering it? 

Our firm represented the various insurance companies that insured the cargo in 1857 and paid the claim for the lost gold. Many of those insurance companies still existed at the time the gold was delivered to the courthouse. The real issue was whether “finders-keepers law” applied to finding the gold at the bottom of the ocean or whether maritime salvage law applied to the gold. Ultimately, the court determined it wasn’t whoever found it got to keep it—it was whoever owned it and paid the claims on it still owned it.

There have been a lot of documentaries done on it. It’s a famous case.

Kilduff: [I handled] a case representing a lady who was pregnant and was developing signs of preeclampsia—high blood pressure that can be an extremely bad situation for a pregnant mother. The hospital and the doctor did not react quickly enough, and the mother ultimately had a stroke. We were able to get a significant recovery—$3 million—for both the wrongful death of the fetus as well as the stroke to the mother.

Smith: My client really just needed an apology. It was a very quiet room. It was said very sincerely. It took a while for it to resonate with my client, but we were able to work through and shut the case quickly after that. 

“Some cases that formerly might have been easy to try have become very expensive because of the amount of the discovery.” —Kevin E. Martingayle

Martingayle: One that had been a source of frustration for me and my clients for a long time was Tanner v. City of Virginia Beach [2009]. A noise ordinance had been used against little restaurants and bars as a way to rein in and, quite frankly, pick on places that catered to younger crowds and had loud music. People were just paying these Class 4 misdemeanors as the cost of doing business. They weren’t getting complaints from neighbors, or adjacent businesses, or people walking up and down the street. It was clearly an effort to not allow them to play fun, loud music.

We were able to show that many [nearby] small communities had objective standards: what the equipment had to do, how to measure it, how far away to stand from the source. The city of Virginia Beach kept it vague. I was arguing they did it on purpose. 

One of the key findings the trial judge made: He said there’s no question they’re enforcing this in a selective and uneven manner, but he didn’t find they were doing it maliciously. Well, that ain’t the standard. If you’re doing something selectively and unevenly, there’s your constitutional violation. You don’t have to be intentionally mean about it. We were able to show that, at the 31st Street park, the city was putting bands on a stage that were generating a lot of complaints from an apartment building three blocks away because the music was very loud, and nobody got a ticket. In the meantime, there were little bars that the city wasn’t very fond of, and they didn’t particularly like the young clientele, and we also felt like there were some race issues. 

That’s the kind of bullying I like to fight against.

Cook: Almost every case is memorable, but for different reasons. Sometimes I have people call me back years after the fact to thank me for helping them through such a difficult time. 

Advice for the Next Generation

Cook: Having a good mentor is critical—making sure you’re learning things the right way. I worked for the same lawyer for 15 years before I went out on my own. 

Sump: Your reputation is the most valuable asset you have as an attorney. I encourage you to not take action that would harm your reputation as an honest and fair litigant.

Smith: Find an area of the law that resonates with you and your values. The law is hard. If you’re moving into family law, I would encourage you to train in the collaborative process and mediation.

Kilduff: You don’t need to become a millionaire the first year in practice. Take your time. If you learn how to do it right, you’re going to be successful with hard work. And it’s going to come for you.

Martingayle: I’ve been teaching at William & Mary Law School for almost 10 years, and I always tell law students, “Some of you are going to decide you made a mistake, and you’re going to wonder why you’re here, and there’s nothing wrong with feeling that way. Law school can be stressful, it can feel strange.” But I say: “Unless you have to quit, finish. Get that law degree.” Because you can do anything with it. There are a lot of people who have a law degree who are not practicing conventional law: They write books, they get involved in the sports world, maybe an athletic director at a college.

Also, be willing to change what you’re doing. That’s another beauty of the law degree. It’s not like being a doctor, where you’re an orthopedic surgeon, you can’t tomorrow be a psychiatrist. But we can remake ourselves overnight as lawyers. If you don’t like what you’re doing, call time out, take a deep breath and rethink it. You can go in a totally different direction. It’s a real gift.