Jason Kirby Kirby & Kirby, San Diego

The Go-To Guy

for Business Litigation Referrals

by Dan Baldwin

Our referrals come from other lawyers in town when the dispute is serious enough that a lawyer tells his or her client or friend, ‘You need a good litigator.’ Other times, larger firms find themselves in a conflict situation and want to refer an existing client to a litigator who is not going to try to take their client from them. When referring attorneys send us a matter, that client will get a successful outcome,” says Jason Kirby, Partner in Kirby & Kirby, LLP, a business litigation firm based in San Diego.

The reason Kirby and his firm attract so much referral business is a commitment to finding a way to win. “Our track record of success is rather unbelievable. We obsess about how to win a case. I have a talent for seeing how all the evidence can be shaped together and how best to present it. Whether we’re working directly with a client or with a referral, we are in it to win.”

“We are very hands on about our cases. We make our clients’ problems our problems. Our representation always becomes very personal. We treat our clients like family and develop great relationships. A client that knows his or her lawyer is fully engaged in living their dispute creates a bond and a level of trust that makes the attorney-client relationship seamless,” he says.

The firm “fights above its weight,” meaning that they find that a smaller team can handle large litigation cases as well, and often more efficiently, than a larger and less flexible firm. As an example, the firm represented approximately fifty defrauded investors in the litigation against Chicago Title arising out of the local Ponzi scheme run by now-disgraced Gina Champion-Cain. There were big firms hesitant to take on fifty individual clients with competing interests. But in 2021, Kirby and his team recovered more than $22 million for their fifty clients. “Handling that many clients was a total team effort wherein everyone in our firm was fully engaged. And that case was just one of many and not necessarily the largest that we were handling at the time,” he says.

Kirby compares trial work to putting on a play. There is an art to putting on a case, the order of witnesses, the witnesses through which the facts will present best. There must not only be a beginning, a middle and an end, but a simple narrative that runs throughout the trial and holds it all together. Kirby says, “Doing defense work, I have always believed there is a way out.” He cites a high school experience in which a police

officer talked to the students about driving and accidents. He said something along the lines of, ‘Just prior to an accident, there is always a way out if you look for it’ and that statement had a direct impact on his life and the way he approaches cases. “Plaintiff’s work just means not letting there be a way out.”

A Family Affair

Kirby & Kirby is primarily engaged in business litigation and real estate litigation cases, but they have always handled a wide range of cases in many different practice areas, such as investment fraud, personal injury/wrongful death, probate litigation, employment litigation, intellectual property litigation, and in other business-related areas. Their practice is 100 percent litigation. They have no transactional practice or any other competing interests with other firms. Their singular focus is handling a particular dispute from start to end. With the exception of a few individual persons and companies that keep finding themselves involved in litigation, their client mix and case mix are vastly different year to year.

The other partner in the firm is Kirby’s father, Michael L. Kirby. They have two senior paralegals, Susan Head and Kay Dillon, each having more than 30 years’ experience. They also employ a contract attorney who was a former associate attorney at Kirby Noonan, Heather Schallhorn, “Our internal staff is just incredible and everything we do is a team effort. We are lean and mean and if we lost any person at our firm, he or she would be extremely difficult to replace. We have an amazing group of people who work really well together. Everybody cares deeply about clients and cases, and it really comes through in the work product. I have the title of managing partner, but I do very little to manage our employees. They are too good at what they do to try and suggest how they should do it.”

Kirby finds that in almost every case our attorneys and staff connect with our clients to develop a strong relationship that is very familiar, which often leads to going to extraordinary lengths to earn a win for their clients.

For example, Kirby represented a retired couple who sold their home in Rancho Santa Fe after more than 30 years living in it. The buyers were from Manhattan Beach and were accustomed to newer construction. When the buyers set out to remodel and update the home, they discovered mold conditions in the wall cavities and accused the owners of wrongdoing with respect to their statutory disclosures. The husband passed before the trial. Kirby represented the widow. The case lasted for years, but the jury trial only took a couple of weeks. Kirby’s clients were cleared of all wrongdoing and eventually recovered the vast majority of the clients’ attorneys-fees from the buyers.

“The client relationship was truly one of family, with hugs and tears and all that comes with it. The widow, the paralegal, and I would meet every day outside the courthouse and talk about the day. There simply wasn’t a day that did not go well for us. To this day, the three of us still get together,” Kirby says.

Failure to Intimidate

Sometimes opposing firms will try intimidation tactics when facing a smaller firm—a tactic that fails when against the “leaner and meaner” team headed by Kirby.

He was involved in a dispute in which a mother left control of her trust to her husband, oldest son, and an independent trustee. However, she left her son with some superior powers over her husband and that fact eventually created some resentment by the father. The chosen son’s three siblings harbored resentment that they were not given any role whatsoever. The father and the other three siblings met with lawyers to try and oust the chosen son and the independent trustee, so that the father could take over. With a trust holding close to $50 million, the father and three kids hired two big law firms and two top lawyers within those firms. They filed a probate case making a number of extremely hostile fiduciary allegations against Kirby’s clients.

The independent trustee passed away during the litigation. Kirby suggested, in no uncertain terms, that the litigation tactics were partly responsible. The case was so aggressively litigated and intense that he practically had to make it his singular focus for years. During the case, his client came into possession of an email between opposing counsel and his estranged family. It was a good email that pretty much explained what was actually happening, but Kirby had to turn it over and not use it because it was potentially privileged, and the privilege was then asserted.

When another big law firm got involved, his turning over the email was second guessed, and the same email was in the possession of yet another person. In the end, the big firm was disqualified for trying to use the email. Kirby was praised by the majority and dissenting opinion for his ethical decision making. (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083)

© Bauman Photographers

“More than anything, the case taught me that no matter how large my opponents and no matter how hard they try, I cannot be crushed or outworked. As we were approaching trial, the father and family brought in an experienced trial lawyer to add to their arsenal. There were days where all three lead attorneys would team up and email me or call me separately to try and dominate by age and authority, but I was rather immovable. The case was ultimately resolved through a confidential settlement agreement,” Kirby says.

Learning the Mechanics Early

“It is hard in this profession to ever get as much trial experience as you want. I feel like I was fortunate to get some real good trial experience early in my career. I know for my father’s generation of attorneys as soon as you passed the bar, they handed you a bunch of cases to go try. All the original founders of Post Kirby had come from Luce Forward and they all started their own firm based on their reputations as excellent trial lawyers. That is hardly the typical experience of my generation of attorneys. And still, because that is what we were known for, I felt like I got to get involved in trial work earlier in my career than most. It took some volunteering and pushing myself into certain cases, but I learned the mechanics of how to put a trial together and do well with it,” Kirby says.

He credits especially two mentors: his dad and now partner in business and Judge Richard Haden.

“Working with my dad has always been a huge blessing. I can honestly say, and it’s going to sound biased, but I don’t know that I’ve ever seen a better lawyer than my father. I’ve never seen anybody who works so hard and seemingly

never loses; he just wins everything he does. It’s been a 20-year master course to watch him and learn from him. And it wasn’t just him, all the lawyers in his firm taught me something along the way. When you are a young lawyer there is nothing better for your development than to be surrounded by great, great lawyers,” he says.

Before taking the bar exam, Kirby worked as a fulltime law clerk for Judge Richard Haden who had an independent calendar in the Hall of Justice—handling more than seven hundred or so civil cases in his department. Kirby got to sit and watch “how the sausage was made.” He was exposed to the entire gamut of civil cases and lawyers—good ones and bad ones. That broad exposure of seeing how things are done made him realize that he wanted to be a business litigator. He says Judge Haden was a great mentor, a hands-on and ethical man who really seemed to enjoy what he was doing. He would drag Kirby into meetings and settlement conference, into whatever he was doing, to get an insider’s view of how the whole court system operated. The direct exposure to those actions proved to be a wonderful experience being on the inside of what he would view from the outside for the rest of his career.

“I enjoy that it takes so many skills to be a litigator. You must write well. You must have the confidence to stand your ground. Strategic thinking about a case is always essential. I obsess over it. You have to process a lot of complicated and complex information and simplify it down to the level where you present it to a jury or a judge. It is my job to take a complicated matter and make it simple so it’s easy for a court or jury to understand and decide. Even when I find I’m in over my head and an issue seems overly complicated, I take comfort in the fact that there has to be a way to view it in a far simpler form, so everyone can understand it. It all seems to work out in the end. I feel lucky to do what I do and to have enjoyed as much success doing it as I have. It has all been rather unbelievable.” n

Contact Kirby & Kirby, LLC 501 W. Broadway, Ste. 1720 San Diego, 92101 619-200-8793 www.kirbyandkirbylaw.com

EXPERIENCE

» EDUCATION

• California Western School of Law (2001) • University of Arizona (1995)

» HONORS AND AWARDS

• Super Lawyers • AV Preeminent Martindale Hubbell • San Diego Magazine – “Top Lawyers”

» ASSOCIATIONS AND MEMBERSHIPS

• Association of Business Trial Lawyers –

Board of Governors • Enright Inn of Court • Consumer Attorneys (San Diego & California) • San Diego County Bar Association • American Bar Association

» INTERESTS AND HOBBIES

• Enjoys time with his nine-year-old daughter • Plays bass and electric guitar and drums • Avid surfer, skier, and snowboarder • Fan of Formula 1 Auto racing • Loves classic comedies • Enjoys Beatles, Rolling Stones, and Led Zepplin era rock music • Reads Greek philosophy, Homer, Marcus

Aurelius, Epictetus