SF Chapter History
HISTORY OF THE SAN FRANCISCO CHAPTER OF ABOTA
By David B. Lynch
I. THE FOUNDING
In 1963, the trial lawyers of California were facing a major challenge to the constitutional right of trial by jury. Governor Pat Brown, first elected in 1960, had proposed a radical overhaul of automobile litigation. There was an outcry from certain special interest groups that automobile cases were clogging the courts and causing excessive court delay. The legal profession was being blamed for the problem. In response to those complaints, Governor Brown proposed the creation of an Automobile Accident Commission similar to the Workers’ Compensation Appeals Board. All automobile accident cases would be taken out of the court system and put into the commission. There was significant public support.
There was strong historical precedent for this proposal. At the turn of the Twentieth Century, the workers’ compensation system was created to take the cases of injured workers against their employers out of the courts. It was implemented nationally. Governor Brown now wanted to do the same with automobile accident cases.
Trial lawyers who worked within the system knew that the governor’s proposal was badly flawed and perhaps unconstitutional. They needed to organize and get the facts out.
In Northern California, there was no organization which could speak for the entire trial Bar. Plaintiff’s attorneys and defense attorneys each had their own separate organizations, which functioned independently, but there was no group which could speak collectively.
Former Chapter President Gene Majeski, one of Northern California’s preeminent trial lawyers, recalls that there was a definite need for an organization to represent personal injury lawyers. There was no group existing at the time which was devoted to their interests as a group. Attacks on the tort systems, the right to trial by jury in civil actions and trial attorneys were starting to mount. He felt there was a definite need for a group which concentrated on these issues.
In Southern California, the situation was somewhat different. There was a collective, albeit small, group with a common cause. In 1958, a group of Los Angeles trial lawyers had banded together to form a new organization. George Hillsinger was one of the founders of ABOTA. At age 82, he is still practicing law and an active member of the Los Angeles ABOTA chapter. He recalls that the original founders of ABOTA were Fred Belanger; Mark Robinson; Jim Kenealy, Jr.; and himself. They were defense attorneys. They had become concerned over a group of Los Angeles County Superior Court judges who issued a position paper stating that the court’s civil docket calendar was too congested with a backlog of personal injury cases, and that jury trials should be eliminated in all civil actions.
After the initial formation of the organization, it was decided to include plaintiff’s attorneys in the organization. This was a radical concept. Up to that time, there was no trial lawyers organization which consisted of both plaintiff and defense attorneys. Furthermore, this new organization was by invitation only. Its founders decided that, in order to be a member, extensive jury trial experience would be required. Almost all other trial lawyer organizations in the state were based on an open membership concept whereby anyone interested in membership could apply and be accepted. Although they described themselves as organizations of trial lawyers, no trial experience was required.
This new group named itself the American Board of Trial Advocates. Its founding charter stated in part: “Whereas, we believe that our traditional jury system, both civil and criminal, is the one system of jurisprudence which guarantees necessary safeguards for the protection of the rights of person and property, and that this system should be preserved in its essence; and…Whereas, we further believe that there is a pressing need for an organization within the legal profession which will undertake to discover, encourage and recognize attorneys who can supply society’s needs for advocates combining skill and integrity and which organization will further undertake to educate the laity as to the benefits inuring to society from such attorneys who affirmatively support and steadfastly stand by our jury system.”
The initial membership requirements for ABOTA were ten trials. The total was later raised to twenty. In those days, that requirement was not hard to reach and there was a large potential pool of ABOTA members throughout California.
By 1963, ABOTA was still located only in Los Angeles and, according to the recollection of its earliest members, there were approximately fifty members. It was decided that membership should be increased and that the organization should be a statewide one. The San Diego Chapter was established.
George Hillsinger recalls that he attended the 1963 State Bar convention in San Francisco. Even at that early date, ABOTA was presenting a Trial Lawyer of the Year award at a party held in conjunction with the State Bar convention. That year, the party was at the Mark Hopkins hotel. Numerous San Francisco lawyers and judges were in attendance. There was a discussion between the Los Angeles representatives of ABOTA and San Francisco trial lawyers, plaintiff and defense, about starting an ABOTA chapter in San Francisco. The reaction was positive and plans were made to hold an organizational meeting at a later date.
At that time, one of the most popular restaurants frequented by both plaintiff and defense attorneys in San Francisco was Paoli’s. It was strategically located at the corner of California and Montgomery streets, a site now occupied by the Bank of America Center. In early 1964, on a date which has been lost to history, four Los Angeles members of ABOTA traveled to San Francisco for a dinner meeting at Paoli’s. Approximately fifteen plaintiff and defense attorneys from the San Francisco Bay Area were asked to attend, and they did. No minutes of that meeting were kept. According to the recollection of Robert Barbagelata, one of those present, three of the four Los Angeles delegation were Mark Robinson, Desmond Bourke and Bill Kurlander. George Hillsinger remembers being present. Bob could not recall all of the Bay Area attorneys present, but did remember that Edward Moran of the Sedgwick office; Ed Bronson, Jr.; Gene Majeski; Bergen Van Brunt; Alexis Perillat; and Malcolm McCarthy were there. George Hillsinger recalls that other attorneys in attendance were Agnes O’Brien Smith, Bruce Walkup and Bill Ferdon. The Los Angeles attorneys proposed that a new chapter of ABOTA be established in the San Francisco Bay Area. There was much discussion. The Bay Area attorneys then adjourned to a meeting in the corner of the dining room and decided to form the organization. Ed Moran was elected its first president. That night, the San Francisco chapter of ABOTA was born.
II. THE EARLY YEARS (1964-1980)
After the chapter was first organized, it would hold meetings on an irregular basis. The second president was Richard Gerry, partner of Melvin Belli. He was followed by Robert Cartwright. After that, the chapter presidency has alternated between plaintiff and defense.
The first challenge to be faced was Governor Brown’s auto accident commission plan. Members of San Francisco ABOTA joined a committee entitled the “Lawyers Committee for Judicial Freedom.” Gene Majeski was named state chairman of the committee. There were thirty-two members of the committee. They were composed of both plaintiff and defense attorneys. San Francisco ABOTA members on the committee included Gene Majeski; Robert Davis, Oakland; Burton Wines, Oakland; and J. Barton Phelps, San Francisco. Other prominent Bay Area attorneys on the committee included Edward Heafey, Sr., Oakland; James Boccardo, San Jose; and Nick DeMeo, Santa Rosa. That committee prepared a 28-page report entitled “Preliminary Report on Automobile Cases in the Courts.” Extensive research had been done by the committee in court dockets and the report showed that, of four Bay Area Counties, including San Francisco, Alameda, San Mateo and Santa Clara, there were fifty-three total judges. Of that number, only seven judges handled automobile cases. It showed that only two percent of automobile cases went to trial. It showed that of all cases on file in the four Bay Area counties mentioned above, 25 percent were personal injury cases and 17.9 percent were automobile cases. In this and other respects, the report totally discredited the fundamental tenets of Governor Brown’s plan. Because of this report and other factual information advanced by trial attorneys, the governor’s proposal did not become law.
The chapter then started a system of holding three membership meetings a year and an annual Christmas party. Al Abramson became a member in 1965. He recalled that there were about twenty members that year. He found the organization unique. Up to that time, there was no discussion or contact between plaintiff and defense attorneys other than as adversaries. He felt ABOTA changed all that. For the first time, there was a chance for the two sides to meet and discuss matters of common interest in the administration of justice. Bob Barbagelata recalled that ABOTA gave him an opportunity to meet and socialize with defense attorneys. As a result, defense attorneys became some of his best friends. Lifetime friendships were formed. Bob recalls that an entirely new atmosphere was created in the trial bar. There was a new spirit of cooperation. Although ABOTA members recognized they were adversaries in the courtroom, they also now realized that there were matters of common interest and purpose which bound them together.
The ABOTA spirt became infectious. Trial attorneys wanted to join. Membership grew rapidly. David Lynch, author of this history, recalls that young trial attorneys wanted to try cases so they could meet ABOTA’s membership qualifications. Dave became a member in 1969 and recalls what an honor it was.
The 1970s were a period of strong growth for ABOTA, not only locally, but nationally. ABOTA members took the time from their practice to organize new chapters. Chapters were formed in other parts of California, Nevada, Oregon and Washington.
In 1971, a San Francisco member of ABOTA was elected national president for the first time. He was Ed Heafey, Jr., of Oakland. He was followed by James Downing of San Francisco in 1974 and Alexis Perillat of San Francisco in 1976.
In the late 1960s, another challenge to the right of Americans to trial by jury was presented. Again, it was in the auto accident venue. Two law professors named Keaton and O’Connell proposed the establishment of a “no-fault” system to handle automobile accident claims. The concept spread around the nation and engendered much support. It was adopted in some states. It was proposed in California. Again, ABOTA members stepped forward to protect the right to trial by jury. Because of well thought out and reasoned opposition by ABOTA members, among others, “no-fault” never became the law in California.
When the late Nate Cohn was 86 years of age, he recalled that he became an ABOTA member in 1965. He described it as the best legal organization he has ever belonged to. It changed the practice of law for its members. Nate was president of the San Francisco ABOTA chapter in 1984. Nate was so impressed with the ABOTA model that he formed an organization called the American Board of Criminal Lawyers in 1978. He tried to make its membership consist of both prosecutors and defense attorneys, but that concept simply did not work in the criminal law setting, so membership today consists of criminal defense attorneys.
In the late 1970s, member Malcolm McCarthy, a widower, remarried. His new wife’s family owned a beautiful property in the mountains east of Carmel called Rancho San Carlos. For several years in the late 1970s and early 1980s, annual summer parties were held at San Carlos Ranch. They were beautiful events and very popular with the members. One year, Mal arranged for a helicopter to come to the party and take guests on helicopter flights around the Carmel area. An ABOTA trial lawyer of the year party was held there.
After the formation of the San Francisco chapter, its geographical boundaries were established to include San Francisco, San Mateo, Santa Clara, Monterey, San Benito, Alameda, Contra Costa, Solano, Marin, Napa, Lake, Sonoma, Mendocino, Humboldt and Del Norte counties. Subsequently, the Sacramento, San Joaquin, California Coast, and San Bernardino/ Riverside chapters were formed.
From the inception of ABOTA, a Trial Lawyer of the Year award was presented at an annual party sponsored by ABOTA in conjunction with the California State Bar convention. It was felt that the award should be made on a statewide basis with all chapters of ABOTA participating in the decision. Therefore, a statewide ABOTA group was formed in 1977. It was initially called CACO (California ABOTA Chapters Organization). That group consisted of chapter officers from each California chapter of ABOTA. Its name was changed to CBA and then very quickly to CAL-ABOTA.
Since that time, CAL-ABOTA has become an important state trial lawyers organization, and was the model on which other regional ABOTA organizations, TEX-ABOTA and FLA-ABOTA, were formed.
San Francisco chapter members have been well recognized as ABOTA trial lawyers of the year. They are:
1965 – Ingmar Hoberg
1969 – Bruce Walkup
1972 – Leighton Bledsoe
1978 – James Downing
1980 – Joseph W. Rogers
1983 – Marvin K. Lewis
1986 – Robert Barbagelata
1989 – Gene Majeski
1992 – Al Abramson
1995 – Ron Rouda
2001 – Jim Brosnahan
2006 – Ed Nevin
2011 – Dennis Moriarity
2014 – Michael Kelly
Joe Rogers recalled what a great honor it was to be designated Trial Lawyer of the Year by ABOTA. He felt it was the highest honor you could achieve because it was recognition by your peers.
III. THE MODERN ERA (1981-2014)
In the late 1970s and early 1980s, complaints of court congestion and case backlog once again surfaced. Part of the problem was claimed to be a shortage of the judges necessary to deal with expanding court dockets. San Francisco ABOTA stepped to the forefront with the Judge Pro Tem Program.
Members of San Francisco ABOTA volunteered their services as judges pro tem to the San Francisco County Superior Court and the Bay Area counties. All members of the San Francisco chapter made themselves available to the courts to act as judges pro tem if the parties to the lawsuit so stipulated. This model program gained much national publicity and was the model for similar programs in other parts of the state and in other states. The judge pro tem program is still in use in some Northern California counties.
Time magazine published an article on the program, which included a photograph of the San Francisco Superior Court presiding judge and ABOTA members Al Perillat, Jim Downing and George Ball dressed in judicial robes and obviously ready to serve. Numerous trials using the judge pro tem program were held.
In 1982, Robert Barbagelata was elected national president of ABOTA. He recalls tremendous expansion of ABOTA in other states at that time. During the course of his one-year presidency, Bob estimates he made at least twenty trips to help form chapters in other states. By that time, ABOTA expansion had reached the East Coast and he recalls a trip to New York City to organize the New York City chapter of ABOTA. The organizational meeting was at the Waldorf-Astoria. Bob recalls that it was difficult to bring the plaintiff and defense attorneys of New York City together, and even harder to get them to sit down at a meeting and discuss forming an organization that both sides would belong to. However, his persuasive skills as an advocate carried the day and the organization was formed. Bob regards it as “the crown jewel” of his year as president.
Since Bob’s presidency, other members of our chapter who have been elected national president of ABOTA include Richard Sangster (1985), Ron Rouda (1998) and Edward Nevin (2003).
In 1998, during his service as a national officer and president, Ron Rouda focused much of his energy on educating the youth of America about the value of the right to trial by jury. He personally led and coordinated the development of the ABOTA Youth Education Project called “Justice By The People: An Interactive Curriculum” which provides computerized educational materials, a CD-Rom and videos for use in middle schools. Ron also supervised production of the videotape entitled “Justice By The People.” It explains the jury trial system and its crucial importance to maintaining the civil rights of all Americans.
The Curriculum has received many favorable comments from the bench and bar, including the California Judicial Counsel’s Special Task Force on Court and Community Outreach and Juvenile Law Subcommittee, the California Judge’s Association and from the Chief Justice of the State of California Supreme Court, the Honorable Ronald Mark George. In 2007, the Curriculum received the prestigious Distinguished Achievement Award for excellence in educational publishing from Scholastic, Inc. It is estimated that at least one million American school children have participated in the Curriculum.
The Youth Education Product stands as the most successful achievement originated by any member of the San Francisco Chapter of ABOTA. It may well be the most successful long-term endeavor ever undertaken by National ABOTA.
During his tenure as a national officer and president of ABOTA, Ed Nevin advanced ABOTA and the rule of law internationally. Through special programs in honor of lawyers and judges who lost their lives in defending human rights and the rule of law in Czechoslovakia, Italy and Northern Ireland, Ed brought ABOTA to the forefront as a leading trial lawyers organization advancing the cause of human rights and the rule of law. Nationally, his diversity program for ABOTA has expanded the horizons of ABOTA membership to include all qualified members of the trial bar.
All of the San Francisco chapter members who became national presidents have served ABOTA well and truly. They deserve our admiration and respect.
Membership meetings of the San Francisco chapter are a story unto themselves. A separate history could be written about them, especially those meetings at which membership elections occur. There are many stories that could be told, but are best left to historical obscurity. The timing of elections has been a subject of great debate. In earlier years, they were held at the end of the dinner meeting. Fueled by the evening’s sustenance, debates over the qualifications of prospective members would frequently become quite animated. During his tenure as membership chairman, which spanned fifteen years, Nelson Barry finally became exasperated and, in 1981, decided to hold the election before liquid refreshments and dinner were served. An uproar ensued, but Mr. Barry held steadfast to his decision and that procedure has remained the rule since its inception. Although tamer than in earlier years, election meetings are now more orderly and less controversial.
For many years, a highlight of every meeting was Nate Cohn’s jokes. A great story teller, Nate would regale the members with one or more after-dinner jokes. That tradition no longer exists, but they are a great memory to those who were there.
In the 1990s, our chapter began to hold Masters in Trial programs for young lawyers. Nelson Barry, former chapter president, feels they are one of the finest contributions our chapter has made to the legal profession. These day-long seminars take a trial from start to finish. Highly experienced trial lawyers from our chapter and other ABOTA chapters throughout the nation try an actual case in front of a live jury. The program includes opening statements, direct and cross-examination of witnesses, and closing arguments. The audience is able to watch jury deliberations by closed circuit television. These programs are highly acclaimed.
In 1995, the San Francisco City Hall, which included the civil trial courts, was closed for extensive seismic renovations and remodeling. Plans were underway for a new courthouse. The courts would never return to City Hall. It was a significant event in the legal history of San Francisco. Of all the legal organizations in San Francisco, only ABOTA stepped forward to mark the occasion. Our chapter sponsored a special closing ceremony at City Hall to mark the event. It was attended by all of the superior court judges, municipal court judges, and many ABOTA chapter members. Mayor Frank Jordan attended. ABOTA members presented vignettes from San Francisco’s legal history. At the end of the ceremony, ABOTA presented the court a framed replica of an American flag as it existed in the year that the Bill of Rights was enacted.
Also in 1995, our Chapter was named Outstanding Chapter of the Year by the National Board of Directors. This award was presented at the National Board meeting in Washington D.C.
In 1996, yet another threat to the jury trial system ensued. These were three “tort reform” initiatives which would have basically taken away the right to trial by jury in civil actions for many California citizens. San Francisco ABOTA, joining the other California ABOTA chapters, took the lead in a reasoned response to those initiatives. They were soundly defeated in the 1996 election. There has not been a major “tort reform” initiative on the California ballot since that time.
In 2000, our chapter president was Don E. Bailey. He was a great attorney with a wonderful personality. He was thrilled to be elected the chapter president and was looking forward to a rewarding and productive year. In mid-year, an old cancer from several years before, which had been treated and thought cured, suddenly reappeared with a vengeance. Don was dead within two months. In his memory, our chapter established the Don E. Bailey Civility and Professionalism Award which is awarded annually at our Christmas party to the member who most typifies those virtues. The first award in 2000 was presented to Richard Dodge, Walnut Creek, who had also died of cancer that year. Don’s wife presented it to Mrs. Dodge. Since then, the recipients have been: 2001 – Norman Saucedo, San Jose in 2001; Joe Rogers, San Francisco in 2002; Bob Barbagelata, San Francisco in 2003; Nate Cohn, San Francisco in 2004; William McDowall, San Mateo in 2005; Nelson Barry, San Francisco in 2006; David Lynch, San Francisco in 2007; and long-time member Vincent McLorg, San Anselmo in 2008. Vince died in mid-2008 so the award was presented to his wife Kathleen. Since Vince’s posthumous award, winners of the Don E. Bailey Award have been John DeMeo, Santa Rosa in 2009; Ralph Lombardi, Oakland and Ronald Rouda, San Francisco in 2010; Michael Ney, Walnut Creek in 2011; George Shelby, Lafayette in 2012; and Daniel Kelly, San Francisco and Edward Nevin, San Francisco in 2013.
In 2008, our Chapter achieved an historic milestone when Cynthia McGuinn was elected our first woman Chapter President. She and her fellow officers were sworn into office by California Supreme Court Chief Justice Ronald Mark George in December 2007. Cynthia is an outstanding trial attorney with a great record of success. In her year as Chapter President, she was innovative and inspirational in her leadership and vision. Cynthia established the Chapter’s first “Ethics & Civility Program” in which chapter members present interactive programs at Bay Area law schools that focus on civility and adherence to the highest ethical standards key as key components of effective advocacy. Cynthia also spearheaded the chapter’s “Community Education & Acknowledgment Program” directed at educating school children, prospective jurors and new citizens on the important role that jury service plays in “government of the people, by the people, for the people.”
The Ethics and Civility Program inaugurated by President McGuinn has blossomed into one of our Chapter’s finest achievements. Its name was changed to “Civility Matters!” and former President Bill Smith assumed responsibility for its development. Under his leadership, it has become a National endeavor and programs have been given throughout California and the Nation. The emphasis is on education of law students and young lawyers on the important topics of legal ethics and civility in the practice of law. It has been well received everywhere including accolades from many Judges and law school faculty. The program has been so successful that California and 15 other states have added Civility in the practice of law to their oaths for new attorneys. The goal is to incorporate this language into the new attorney oaths of all 50 states. Chapter members Chris Beeman and Joe Russoniello have provided invaluable assistance to Bill as co-chairs of the Program and currently such assistance is being provided by co-chairs Doris Cheng, Michael Lucey and Rob Peterson. Our congratulations are extended to Bill Smith and his co-chairs for the excellence of this Program. It has truly brought great credit and acclaim to ABOTA.
Since 2008, our Chapter has been a faithful financial supporter of the Journalist’s Law School held annually at Loyola School of Law in Los Angeles. This Program gives representatives from all media outlets a week of basic instruction in the law. It is headed by Professor John Nockleby and taught by Loyola faculty. It has received rave reviews from its students who say it gives them a much better understanding of how the law works and the importance of the jury trial in the American legal system.
In 2015, our Chapter will launch its first Teachers Law School where a selected group of Bay Area teachers will be given a day of basic instruction in the American and California legal system including the importance of the jury trial. This will become an annual event and will enhance the ongoing Youth Education Project started by Ron Rouda in 1998.
IV. ABOTA MEMBERS AND WORLD WAR Il
“Doc” Haley, chapter president in 1976, was a senior at USF when Pearl Harbor was attacked on December 7, 1941. He was on the USF football team and recalled they played their last game of the season on December 6 at Kezar Stadium against Mississippi State. USF lost. At a chapter meeting, he told the story of that game and how, on December 5, 1941, there was a big USF pep rally in the rotunda of the San Francisco City Hall. The head cheerleader for USF was Mal McCarthy, also a senior, who was one of the founders of our ABOTA chapter, and chapter president in 1978. On December 8, 1941, both of them went to the Marine Corps recruiting office and enlisted. “Doc” described it as a pretty eventful weekend.
Mal McCarthy recounted how he knew that the USA would win the war with Japan because “Doc” Haley, who was in five Pacific Island invasions, stood 6′ 5″ tall and weighed over 250 pounds, was never hit. For that reason, he knew that the Japanese soldiers were poor marksmen.
Many of the earlier members of ABOTA served with great distinction in World War II. To recount each of them and their exploits would require a separate history.
The list presented below is not meant to be exclusive and includes, to the author’s best knowledge, our chapter presidents who saw combat. They are:
1. Richard Bettini (chapter president in 1973), Lieutenant, U.S. Army Air Corps. Pilot of B-26 attack bombers. Many low-altitude missions over France, Belgium and Germany.
2. James Downing (chapter president in 1974), U.S. Army Air Corps. Tail gunner on B-17s. Thirty-five missions over Germany.
3. J. Fred “Doc” Haley (chapter president in 1976), Major, United States Marine Corps. Fought in five Pacific campaigns. Winner of the Bronze Star and many other decorations. Later served three years in the Korean War (1950-53).
4. Malcolm McCarthy (chapter president in 1978), Captain, United States Marine Corps. Member of Merrill’s Raiders, an elite special operations unit. Fought in seven Pacific campaigns and participated in six amphibious landings. Badly wounded. Winner of the Silver Star, Purple Heart, and numerous other medals.
5. Jeremiah O’Neill (chapter president in 1982), Captain, 8th U.S. Army Air Force. Piloted B-17 bombers on 25 raids over Germany.
6. Joe Rogers (chapter president in 1991), Captain, U.S. Marine Corps. Wounded at the Battle of Iwo Jim in 1945. Winner of the purple heart and other decorations.
These World War II combat veterans, along with other chapter members who served in that and other wars, went on to become outstanding trial lawyers. Their courage and leadership skills have served ABOTA and the trial bar very well.
V. OUR COMMITMENT TO THE FUTURE
On July 1, 2014, the San Francisco chapter of ABOTA had 350 members. It remains the leading organization of trial lawyers in Northern California.
Invigorated by its rich past history, the San Francisco chapter of ABOTA recognizes the importance of protecting the rule of law and preserving the right to trial by jury in civil actions. Our chapter will stand ready to preserve and protect those rights.
This year (2014) our Chapter celebrates the 50th anniversary of its founding in 1964. This is a very special year for us. Throughout these 50 years, our ABOTA Chapter has remained true to its founding mission as set forth in the original ABOTA Charter:
“NOW, THEREFORE, we reciprocally and morally bind ourselves to expend the reasonably necessary time, effort and funds to form and maintain an association, not operated for profit, composed of practicing lawyers whose paramount practice is contested litigation in which the right to jury trial is insured by constitutional provision.”