The Lawyer With a Bear in His Briefcase
Frank Daily chose the law because of Atticus Finch’s example, Bobby Kennedy’s letter and a healthy Irish respect for the rules
Published in 2006 Wisconsin Super Lawyers magazine
By Nancy Shepherdson on November 14, 2006
Every day during the trial, Frank Daily passed the man with no arms and no legs who always smiled and cheerfully greeted him. Gordie Farrell, a Wisconsin farmer, sat at the plaintiff ’s table, where his attorneys argued that the tractor he left running when his corn picker jammed contributed to his catastrophic injuries. Daily was in court to argue that his client, Navistar, maker of the tractor, owed Farrell no money.
You’d think it would be impossible for jurors to decide against a friendly man who lost his limbs. You’d think that any lawyer who would argue against him would be a heartless bastard, hated by all, especially the plaintiff. Yet when Daily proved Navistar was not liable in this 1987 case, he says Farrell wasn’t bitter. Daily cites it as one of his most memorable cases, mainly because he sympathized so strongly with the plaintiff: “I told the jury that it would probably be the hardest decision they would ever make and that I was glad not to be among them. I told them I would want to give this guy a lot of money, but they took an oath to follow the law.”
To win, Daily simply showed that it was not Navistar’s fault that Farrell had neglected to turn off his tractor before jumping down to clear a jam in the picker. When Farrell initially reached into the machinery, his arm was caught; when he attempted to free himself, his other limbs became entangled. But because the action of the machine had essentially cauterized his wounds, he was able to survive.
On appeal, the verdict was affirmed against John Deere, the maker of the corn picker, and Farrell was awarded almost $1 million, including interest. But the verdict clearing Navistar stood — in part because of the passion Daily brings to the courtroom. “I’ve had appellate judges tell me it is obvious that I really care,” he says. “I can’t help the emotion, and if I feel that I haven’t been treated fairly, I argue. Many appellate judges know that if I’m in the courtroom, they’ll see some fire today.”
Daily, 64, whose client list includes a Who’s Who of Wisconsin sports personalities (Al McGuire, Bud Selig and Bart Starr), knows exactly what inspired that passion, or, more precisely, what focused a passion for winning that had already become central to his life. Long ago, when he was a college freshman, To Kill a Mockingbird by Harper Lee was published. Daily read it avidly, wondering if he could be the kind of stand-up lawyer Atticus Finch was. The 1962 movie sealed the deal. “Atticus Finch embodied everything that was good,” Daily says. “That book created an itch that I absolutely had to scratch.”
First, though, he had football games to win. In three high school sports, and as a defensive back for the University of Iowa football team, he learned “you can become friends after the game is over, but on the field your duty is to inflict severe pain.” Daily’s grandfather was a Chicago alderman who employed the first Mayor Daley as a page, and Daily’s values were shaped in Chicago’s stolidly Irish “Back of the Yards” (i.e., back of the stockyards) neighborhood, where cattle industry odors, permeating the eight square blocks, were “tolerated if not actually celebrated,” Daily says. “You got used to them and even missed them when they weren’t there.”
At the same time, a respect for rules was nurtured by his parents and reinforced by ruler-wielding nuns in primary school and his teachers at Brother Rice High School. It’s this respect for the rules — his extreme sense of ethics — that defines him. “I may have lost some clients because I wouldn’t go over the edge [ethically], but I can’t worry about that,” he says. “Some people will go everywhere until they find a ‘doctor’ who will tell them what they want to hear.” Daily refuses to be that doctor.
“There is at least one opportunity to be unethical in every case,” says plaintiff ’s attorney Patrick Dunphy, of Cannon & Dunphy in Brookfield. “It’s been very clear in all my dealings with Frank that he plays by the rules. I know whenever I meet [him] in court that it’s going to be a battle royal — he’s talented, vigorous and well spoken. I’m going to return the favor, of course, but I’m confident he’s committed to being a real professional.”
Daily’s work is also informed by his background in journalism. In 1964, after graduating with a bachelor’s degree in journalism from Marquette University in Milwaukee, where he transferred after a sports-career-ending football injury, he landed at the Chicago Tribune. There he practiced the who, what, where, when, why and how of reporting, and wrote stories that moved people. He turned these skills to his advantage as a trial lawyer. But he hated objective journalism: “I always wanted to argue a side,” he says.
Another American icon besides Atticus Finch helped push Daily into the law. Former U.S. Attorney General Bobby Kennedy, then a U.S. senator from New York, and the speaker at Daily’s Marquette commencement, answered a letter Daily mailed him in 1965 asking whether a legal career was right for him. Kennedy wrote, “I know very few lawyers who can write and fewer writers who know the law.” Daily took it as a sign and returned to Marquette — the only school that offered him a scholarship — to study law. He and his wife, Julianna Ebert, a bond attorney who is also listed in 2006 Wisconsin Super Lawyers, have recently returned the favor by establishing a scholarship at the University of Alabama with their friend and client, Green Bay Packers legend Bart Starr, whom Daily met 30 years ago through a high school classmate.
In 1968, right out of law school, Daily joined Quarles & Brady, already one of Milwaukee’s largest law firms, which now numbers more than 400 lawyers in five cities. Assigned to corporate cases that didn’t excite him, he looked around for other challenges. He noticed courts were beginning to revisit the notion that companies needed to be actively negligent to be held liable in product lawsuits. By the 1980s, state courts would widely adopt strict liability as the standard for awards, which would open the floodgates for lawsuits. No longer would product liability be the sleepy province of insurance company attorneys. But Daily got there before the herd, founding Quarles’ product liability defense practice in 1976.
At the time, Daily pledged to fight lawsuits against client companies in whatever state they were brought, and he’s made good on that pledge. He has tried cases in more than half the states of the union. As a result, Daily is always rushing from or to somewhere. He calls his life “controlled chaos,” but sometimes it’s more chaos than control. One day last summer, for example, he arrived back at his office after spending more than 12 hours trying to get back to Milwaukee from Alabama. His flight out of Memphis had been canceled, and overnight accommodations had been a bullet-riddled motel. He joked to his partner that they might be safer under the beds than on them. But his biggest concern was that he hadn’t had time to change into a suit and tie to greet a writer.
“I’m an old-fashioned guy who always wears a shirt and tie in the office,” he says. “But when you’re crawling around trucks in Alabama, you don’t want to do that. So all I had was this T-shirt.” He was genuinely embarrassed, even though it was a clean, pressed yellow T-shirt covered by an inoffensive sports jacket. The trucks he was crawling around belong to a Monroe County, Ala., logging company that is being sued by the widow of a man killed when his logging truck ran off the road. Daily’s client is the manufacturer of the axel involved, and he thinks the company is not responsible for the death. Nevertheless, he sees it as his duty to learn everything he can about the equipment.
“I never even heard of a log skidder before and now I know how to operate it and everything else about it,” he says. He has a plastic model of a log skidder displayed prominently in an office cluttered with mementos from cases. In one corner sits a statue of Groucho Marx, which he picked up on a whim several years ago in Buffalo, N.Y., and, like a good trial attorney, bargained the store owner out of. “I still had a dark moustache [back then],” he says, “smoked an occasional cigar, admired Groucho’s quick and irreverent wit and got teased about looking more like him than Burt Reynolds.”
It’s things like the log skidder that Daily relies upon to remind him to stay humble and grateful. “I’m constantly being exposed to things that I know nothing about and ways of making a living that make my life seem luxurious. For me a bad day is getting bumped from an airplane, not having a tree fall on me.”
The logging company trial, should it occur, will take place in the Monroe County Courthouse in Monroeville, the very courthouse where scenes from To Kill a Mockingbird were filmed. In fact, every year Monroeville citizens put on a version of the Mockingbird play, and Daily, in honor of the many cases he has tried in Alabama, was recently “summoned” to play a jury member in the production. He’s one of the few nonresidents of Monroeville to be so honored.
When he first became a lawyer, Daily’s approach to winning clients was simple: Please give me a chance to try your cases anywhere. Determined as he was to win those cases, he was methodical in observing plaintiff ’s attorneys and borrowing, or at least blocking, their techniques.
“Frank is quite accomplished at the little tricks we practice,” says plaintiff ’s attorney Robert Habush, senior partner of Habush Habush & Rottier, who has faced Daily at trial a dozen or so times. “Frank would have made a terrific plaintiff ’s lawyer — and that’s my highest compliment. He has that flair that most plaintiff ’s attorneys have.”
Both men remember a particularly vivid incident of trial technique one-upmanship. Daily explains: “One of [Habush’s] techniques is to position himself between the jury box and the door where the jurors enter the courtroom. From that vantage point he focuses on each of them with an almost hypnotic stare, which conveys the message that they damn well better find in his favor. Knowing that, I tried to outmaneuver him each time the jury was coming in or going out, so I could smile at them and block them from the famous Habush stare. Being the fierce competitor he is, Bob was not going to let that happen, so he would try to beat me to the position. We would jostle each other in an unseemly display that looked like two basketball players trying to get position for a rebound. The result was that probably neither of us was able to look much at the jury — and that was good for me.”
But techniques take a lawyer only the last few yards in a trial. To get the ball all the way down the field takes research, preparation — and an intimate understanding of jurors. Having grown up on the south side of Chicago, with two teachers as parents, Daily seems constitutionally incapable of putting on airs. Many times, he says, he’ll tell tales of his Irish grandfather in order to put juries at ease. But he also believes grounding himself in the realities of life in America before a case goes to trial.
“I believe in talking to everyone in my group [before a trial]. We call it the Mayo Clinic of the law firm. We’ll sit at this conference table” — the one in his corner office with breathtaking views of Lake Michigan — “and kick around ideas. I also love to hear from younger associates and non-lawyers, including secretaries, messengers and mailroom guys. These are the people who sit on juries.” Here, his gestures, always larger than life, become emphatic. He simply cannot understand why others in his profession do not reach out to people at all levels, since a cross-section of people always decide their clients’ fates.
With all this preparation, even Daily sometimes loses. But he still feels every trial is worthwhile. Perhaps that’s why To Kill a Mockingbird speaks so strongly to him. When Atticus Finch defends a black man accused of raping a white woman, he knows, given the reality of all-white Alabama juries in the 1930s, he will lose. But he also knows the man deserves his day. Atticus explains the duty this way: “It’s when you know you’re licked before you begin but you begin anyway and you see it through no matter what.” That’s Daily’s favorite quote from the book, and a sentiment that informs his practice today. “He is gracious in defeat,” notes Habush, “even when I surprise him with evidence on the last witness in a trial.”
He’s gracious in victory too. But when he is victorious, he lets everyone else leave the courtroom until he is alone; then he brings out a mechanical “celebratory bear” that he carries to every trial. His wife gave it to him so he’d have someone with whom to share a win far from home. Wound up, the tiny brown bear in a blue hat crashes his cymbals together with vigor as he totters around the defense table. Daily permits himself a smile of satisfaction as the bear runs down. When the cymbals grow silent, he’s on to the next case, somewhere in America, bear in briefcase.
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