For The Defense, April 2011 - DRI Today

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DRI—The Voiceof the Defense BarVol. 53, No. 4 April 2011PresidentR. Matthew CairnsConcord, New HampshireImmediate Past President Cary E. HiltgenOklahoma City, OklahomaPresident-Elect1st Vice President2nd Vice PresidentSecretary-TreasurerExecutive DirectorHenry M. SneathPittsburgh, PennsylvaniaMary Massaron RossDetroit, MichiganJ. Michael WestonCedar Rapids, IowaLaura E. ProctorNashville, TennesseeJohn R. KourisDeputy Executive Director Tyler HowesDirector of PublicationsEditorJay LudlamMichelle ParriniI N T H I S I S S U E1 On The RecordFrom a Position of Strength: DRI—Realigning the Brand, Continuing the PromiseBy Henry M. Sneath, DRI President-Elect4 DRI NewsMembers on the Move • DRI Calendar6 Affiliates in ActionSLDO Winter Wrap Up, Spring PreviewT E C H N O L O G Y12 Getting Down to the Online TruthBecoming the Ultimate Cyber-SleuthBy Stephanie G. FlynnA LT E R N AT I V E D I S P U T E R E S O L U T I O N20 It’s Not Always Just About the MoneyMediation in Personal Injury CasesBy Russell M. WareY O U N G L A W Y E R S24 From the ChairThe Young LawyersYearbookBy Laurie K. Miller46 For the Common Good?Avoiding Potential Pitfalls inJoint-Defense AgreementsBy Thomas J. D’Amato and Tanis J. LeutholdProduction ManagerContributing EditorJulia BergerudMarge Motluck29 Mission ImpossibleA Practitioner’s Guide toDecoding the MMSEABy Lauren Fajoni Bartlett50 Increasing Diversity in theLegal ProfessionAre You Answering the Call to Action?By Cassandra FortinAdvertisingRepresentativeLaurie P. MokryFor The Defense, April 2011, Vol. 53, No. 4 (ISSN 0015-6884). Copyright ©2011, DRI. All rights reserved.Published monthly by DRI, 55 West Monroe Street ~Suite 2000, Chicago, Illinois 60603. Telephone: (312)795-1101. Fax: (312) 795-0747.Periodicals postage paid at Chicago, Illinois, and atadditional mailing offices. Subscription price is $65.00per year, and, for DRI members, is included in the membershipdues. Individual copies are $7.00 for DRI membersand $12.00 for non-members, plus postage andhandling.POSTMASTER: Send address changes to For TheDefense, DRI, 55 West Monroe Street ~ Suite 2000, Chicago,Illinois 60603.Correspondence and manuscripts should be sent tothe Editor.All views, opinions and conclusions expressed in thismagazine are those of the authors, and do not necessarilyreflect the opinion and/or policy of DRI and itsleadership.35 Medical Device CasesThe Intersection of Preemption,Pleading, and Rule 11By Sara Deskins Cooper and Kathryn Ams40 The Cat-O’-Ten-TailsPro Se Litigants Assisted byGhostwriting CounselBy Peter M. Cummins68 Writers’ CornerWriting to Win: ‘Plain English for Lawyers’ Redux 2011By Albert J. D’Aquino70 Think GloballyFive Tips: Overcoming Juror Bias Against Foreign DefendantsBy Christopher G. Campbell56 Watch and LearnKeep an Eye on Opposing CounselBy C. Meade Hartfield59 A PrimerThe Dodd-Frank WhistleblowerBounty ProvisionBy Darryl C. Thomas II63 Water Contamination CasesAfter the Marcellus Shale RushBy Jeffrey D. Van Volkenburg71 Defense Ethics and ProfessionalismProfessional Ethics in the Age of Internet: Threats to Juror ImpartialityBy Jason H. Casell80 Advocates and New Members2 n For The Defense n April 2011

SURE YOU’RE SEEING THE WHOLE PICTURE?Westlaw Litigator® puts everything you need in a single location, so you won’t miss criticalinformation. Millions of online briefs and trial documents. ALR.® Forms. Jury Verdicts. EnhancedCases. Expert Reports, Case Management tools, and much more. All the tools, content, and solutionsyou need at every stage of a case, fully integrated, easily accessible. Find what you need quickly,and with confidence that you’ve missed nothing. See the full picture for yourself.Visit westlawlitigator.com or call 1-800-REF-ATTY (733-2889).© 2010 Thomson Reuters L-359993/8-10Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters.

CalendarUpcoming eventsof interest toDRI members andother defense lawyersFor more informationabout any of theseevents, call DRICustomer Service at(312) 795-1101,or visit our website atwww.dri.org.April 14–15 Business Litigation and Intellectual Property ChicagoApril 21DRI CalendarAEP v. Connecticut: Will the U.S. Supreme Court Climate Change PublicNuisance Lawsuits?April 27–29 Life, Health, Disability and ERISA Claims BostonMay 5–6 Drug and Medical Device Litigation ChicagoMay 12–13 Strictly Retail ChicagoMay 18–20 Employment and Labor Law Scottsdale, AZJune 9–10 Young Lawyers Austin, TXJune 16–17 Diversity for Success ChicagoJune 23–24 Insurance Bad Faith and Extra-Contractual Liability Washington, DCJuly 21–22 Class Action Washington, DCSeptember 15–16 Nursing Home/ALF Litigation BostonSeptember 15–16 Strictly Automotive Dearborn, MISeptember 22–23 Construction Law Phoenix, AZSeptember 22–23 Hospitality Scottsdale, AZOctober 26–30 DRI Annual Meeting Washington, DCNovember 10–11 Asbestos Medicine Las VegasDecember 15–16 Insurance Coverage and Practice New York CityDecember 15–16 Professional Liability New York Citypractice focuses on representing companiesand individuals in complex trials andappeals. He has represented clients in casesinvolving employment law, trade secretsand covenants not to compete, intellectualproperty law, product liability, legalmalpractice, and issues of constitutionallaw, including constitutional challenges toOhio’s tort reform statutes.The Houston- based law firm of Hays,McConn Rice & Pickering, P.C. is pleasedto announce that Michael Gallagher, whohas been an associate with the firm since2001, has been elected shareholder effectiveJanuary 1, 2011. Mr. Gallagher graduatedfrom the University of Houston LawCenter in 2003. He began his legal careeras a law clerk to Judge Richard A. Schellof the United States District Court for theEastern District of Texas. His practicefocuses on real estate litigation, professionalliability defense, and product liabilitylitigation.The national law firm of Jackson KellyPLLC is pleased to announce the additionof employment lawyer Robin Repass to itsDenver office. Ms. Repass has had numerousappearances before the Equal EmploymentOpportunity Commission, theColorado Civil Rights Division, NationalLabor Relations Board, and the Coloradoand U.S. Department of Labor.Stoll Keenon Ogden PLLC has beenselected by Corporate INTL Magazine asthe 2010 Competition/Antitrust Law Firmof the Year in Kentucky. The Stoll KeenonOgden Antitrust Practice Group has experiencein the full range of civil and criminalantitrust litigation and counseling.Lawyers in the group have handled mattersbefore federal and state courts across thecountry and before the Federal Trade Commission.They also offer antitrust reviews,employee compliance events and audits.Stoll Keenon Ogden PLLC is also pleasedto announce that the firm has been chosenas a finalist for the “Best Places to Work inKentucky” 2011 competition. This is thefifth consecutive year that Stoll KeenonOgden has been a finalist. In 2010, the firmranked as the number one large-sized companyto work for in Kentucky.Baker Donelson Bearman Caldwell &Berkowitz PC is pleased to announce C.Meade Hartfield has joined the firm as anassociate. Ms. Hartfield concentrates herlitigation practice in the areas of productliability, drug and medical device and professionalliability. She has represented clientsin the automotive, aviation, industrialequipment, insurance, and environmentalindustries in cases throughout the Southeast.In addition she works with variousdrug, device, and life sciences companieson cases across the nation involving seriousdeath and personal injuries allegedlyrelated to various pharmaceuticals andmedical devices.The law firm of Cardelli, Lanfear andBuikema is celebrating its 20th anniversarythis year and continues to add attorneysand local and national clients. Foundedby civil trial attorney Thomas G. Cardelliin January 1991, the firm represents wellknowncorporations such as Otis Elevator,Westfield Insurance Company, AllianzInsurance Company, Liberty Mutual/IndianaInsurance Company, Barton Mallow,Harley Davidson Motor Company, CarrierCorporation, Pratt & Whitney Company,and Dana Corporation.Best Lawyers has named Thomas G.Fritz as the Rapid City Best Lawyer Betthe-Company Litigator of the Year for 2011.Mr. Fritz is a former president of the StateBar of South Dakota. He is a member ofthe American College of Trial Lawyers andthe International Academy of Trial Lawyers.He has served for three years on theMembers, continued on page 76For The Defense n April 2011 n 5

A F F I L I AT E S I N A C T I O NSLDO Winter Wrap Up, Spring PreviewC A NA DAThe Canadian Defence Lawyers (CDL) wasoff and running for 2011 with a variety ofeducational seminars planned, includinga program on occupiers’ liability on February7, 2011, in Toronto, followed by Mid-Level Madness on February 17, then theannual Insurance Symposium in Torontoon March 3–4. The CDL has also launchedits new monthly online newsletter, availableat http://www.cdlawyers.org/.The CDL Board of Directors held itsbiannual, in- person meeting in Toronto onFebruary 8, 2011, with the theme “PolicyGovernance—Where Are We Now?” followedby a breakfast round table on February9 of several CDL directors and membersof the Canadian Insurance Claims ManagersAssociation (CICMA). CDL and CICMAconfer annually in this manner, which hasproved an ideal forum for sharing topics ofmutual interest between Canadian claimsmanagers and the CDL membership.On the fun side, CDL’s annual ski tripfrom Toronto to Mont Tremblant in Quebecwas held February 3–6. Putting itsmoney where its mouth is, CDL continuesits attempts to improve the form of waivermandatorily taken from all participants.Meanwhile, CDL’s hard- working AnnualGeneral Meeting Committee chaired byJanet Clark of Halifax is presently puttingthe finishing touches on the CDL’s AGMset for Toronto on Thursday, June 9, 2011.The AGM features a day-long CPD component,as well as an engaging lunch speaker,on this occasion one of the judges of theOntario Superior Court of Justice. DRI willalso send a representative to bring DRI’smessage to CDL members and to updatethem on developments within DRI. In all,as usual a busy winter term at the CDL.FLOR I DAThe Florida Defense Lawyers Association(FDLA) returned to Big Sky Montana for its2011 Winter Seminar. In keeping with seminartradition, the CLE program was exceptional.The small seminar setting promotedin-depth discussion and exchange of ideasamong many of the FDLA’s most experi-6 n For The Defense n April 2011L. Johnson Sarber III, 2011 Florida DefenseLawyers Association Seminar Coordinatorenced defense lawyers. For each of threemornings, breakfast was served and a varietyof topics were presented.The 2011 Winter Seminar featured thesepresentations:• Medical Malpractice Update—TheExpanding Cause of Action for CorporateHospital Negligence, by Andrew R.McCumber, McCumber Daniels BuntzHartig & Puig PA, Tampa;• MSA Update and Recent Developments,by L. Johnson Sarber III, Marks Gray PA,Jacksonville, and Francis E. Pierce III,Mateer & Harbert PA, Orlando;• New Federal Motor Carrier Safety Regulationsand Their Effect on the CommercialMotor Vehicle Industry and RoadwaySafety, by Eric M. Zivitz, Butler PappasWeihmuller Katz Craig LLP, Miami;• Dealing with Appellate Rights—PreservingAppellate Issues and InsuranceIssues in Coverage for Unintended Consequencesfor Sexual Activities, each byJeffrey M. Adams, Abbey Adams ByelickKiernan Mueller and Lancaster, St.Petersburg;• Recent Legal Developments and BestStrategies for Federal Court Removal, byRobert E. Bonner, Meier Bonner MuszynskiO’Dell & Harvey PA, Longwood;• Advanced Strategies for Expert Depositions,by Joseph E. Brooks, Smith Brooks& Masterson, Tallahassee; and• Conversation with the Masters, a “blockbuster”with current and past FDLApresidents Thomas E. Dukes III, McEwanMartinez & Dukes PA, Orlando,and Ralph L. Marchbank, Jr., Dickinson& Gibbons PA, Sarasota.Francis E. Pierce III, Mateer & HarbertPA, Orlando, and Joseph E. Brooks,Smith Brooks & Masterson, Tallahassee,also discussed and answered questions onthe ethical considerations of using surveillance,undertaking investigations and jurorresearch, and other topics. Special recognitiongoes to L. Johnson Sarber III for coordinatingthe seminar. Following the seminar,attendees hit the slopes or tried some of themany winter activities available in Big Sky.The Big Sky Resort-Moonlight Basin interconnecthas access to more skiing thananywhere else in the United States—withshorter lift lines and smaller crowds. Winteractivities abounded—cross-countryskiing, snowshoeing, ice skating, zip lines,horseback riding and snowmobiling in YellowstoneNational Park.Each evening, attendees gathered at areception to mix and mingle and sharetheir moments of glory or chagrin. On Saturdayevening, attendees were treated todinner and fun at the Annual Farewell Dinner.FDLA President Joseph Brooks andPresident- Elect Johnny Sarber presenteda variety of awards to attendees. The careand thought that went into determining theaward recipients were apparent to everyonewho attended.The Winter Seminar, held over MartinLuther King Jr. holiday weekend, is one ofthe FDLA’s best—outstanding CLE credits,socializing, family fun and of course,terrific skiing, snowboarding or a hostof other outdoor winter activities. Onceyou’ve attended an FDLA Winter Seminar—you’llwant do so again! The FDLA isexploring the possibility of returning to BigSky for the 2012 Winter Seminar.

A F F I L I AT E S I N A C T I O NGEORGI AGeorgia Defense LawyersAssociation TrialAcademy ProgramChair Lynn Robersonleads a discussion.The Georgia Defense Lawyers Association(GDLA) held its annual trial academy fromJanuary 20–22, 2011, at Callaway GardensLodge and Spa, Pine Mountain, Georgia.The two and onehalfday programagain received ravereviews from participants.Openingday concludedwith a receptionand dinner, givingstudents and facultytime to networkoutside theclassroom setting.GDLA Past PresidentAlbert H. Parnellof HawkinsParnell Thackston& Young, Atlanta,addressed the students over lunch on Fridayabout career development.Program Chair and GDLA Secretary-Treasurer Lynn M. Roberson of Atlanta’sSwift Currie McGhee & Hiers assembledthe stellar faculty, which, in addition to Mr.Parnell, included Matthew G. Moffett, ProgramVice Chair and GDLA Vice President,of Gray Rust St. Amand Moffett & Brieskein Atlanta; Douglas K. Burrell of Drew Eckl& Farnham in Atlanta; GDLA Past PresidentJerry A. Buchanan of Buchanan &Land in Columbus; William T. Casey ofHicks Casey & Foster in Marietta; GDLABoard Member Robert R. “Rusty” GunnII of Martin Snow in Macon; William D.Harrison of Mozley Finlayson & Logginsin Atlanta; Elizabeth A. McLeod of FulcherHagler in Augusta; James S. “Sandy” OwensJr of Nall & Miller in Atlanta; and RichardH. Willis of Bowman and Brooke inColumbia, South Carolina.I L L I NOISThe Illinois Association of Defense TrialCounsel (IDC) is pleased to recognize severalof its members for recent achievements.Michael J. Scully of Bryce Downey & LenkovLLC in Chicago has been promoted to partner.Mr. Scully has been in practice since2002 and with Bryce Downey & LenkovLLC since 2007. Mr. Scully concentrates hispractice in workers’ compensation defense.Ted L. Perryman of Roberts PerrymanPC has been invited to join the prestigiousCouncil on Litigation Management. Thecouncil is a nonpartisan alliance consistingof thousands of insurance companies,corporations, corporate counsel, litigationand risk managers, claims professionalsand attorneys. Selected attorneys and lawfirms are extended membership by invitationonly based on nominations from councilfellows.Six Eagle Scouts who are also Chicagolawyers assembled at Williams Montgomery& John Ltd. on January 22, 2011, tohelp about 30 Chicago- area Boy Scoutsfrom 15 different troops earn their lawmerit badges. In addition to other requirements,the high school aged Boy Scoutsspent the day learning about what it is liketo be a lawyer. They concluded the dayand completed their badge requirementsby participating in a mock trial. AttorneyHoward L. Huntington, a partner with WilliamsMontgomery & John, spearheadedthe event with the assistance of fellow IDCmember Benjamin M. Whipple, an associatewith Williams Montgomery & John,along with attorneys from four other Chicagofirms.Kristin Yoo of Cozen O’Connor has beenelected to serve on the board of directorsfor the Korean American Bar AssociationChicago Chapter.Eagle Scout members of the Illinois Association of Defense Trial Counsel host Chicago-area Boy Scouts in a day-long session that fulfilledrequirements for law merit badges.For The Defense n April 2011 n 7

A F F I L I AT E S I N A C T I O NThe IDC is once again teaming up withthe Illinois Insurance Association (IIA) topresent a spring symposium. In the lastjoint venture, the symposium had morethan 160 insurance and corporate professionalsjoin IDC members. This year,the IDC hopes to draw even more insuranceand corporate attendees! The symposiumwill feature debates on whether CookCounty is truly a difficult venue; whetherdiscovery is too long and expensive; andwhether there really is any rhyme or reasonto picking a jury. Featured panelists forthese debates include:• Glen Amundsen, SmithAmundsen LLC• Louis C. Cairo, Goldberg Weisman &Cairo Ltd.• Thomas A. Demetrio, Corboy &Demetrio• David V. Dorris, Dorris Law Firm PC• Hon. Jennifer Duncan- Brice, CircuitCourt of Cook County• Hon. Kathy Flanagan, Circuit Court ofCook County• Larry E. Hepler, HeplerBroom LLC• William V. Johnson, Johnson & Bell Ltd.• Hon. William Maddux, Circuit Courtof Cook County• Matt Morrison, QBE• Christine Sullivan, Allstate InsuranceCompanyThe symposium will also offer nine differentroundtable topics, such as reducinglitigation costs, dealing with difficultpeople and investigative techniques. Theseroundtable discussions will offer an opportunityfor participants to engage in smallerbreakout sessions that will allow everyoneto walk away with real-world, practicaltips. In addition to the dynamic debatesand topical breakout sessions, the symposiumwill also feature an exhibit hall and avaluable networking reception at the endof the day.K E N T UCK YThe Kentucky Defense Counsel, Inc.,(KDC) Board of Directors met on December2, 2010, at Dinsmore & Shohl’s Louisvilleoffices. Five new directors filledvacancies left by directors rotating off ofthe board:• Leo Lansden “Lanny” King, District 1• W. Gregory Harvey, District 2• Bradley A. Case, District 48 n For The Defense n April 2011• Jason C. Kuhlman and Stephen D.Wolnitzek, District 6.In follow- up to the August 19, 2010, KDCboard meeting, KDC President DuncanPitchford provided a proposal that he receivedfrom David Mast of Mast Solutions.After lengthy discussion was held pertainingto the benefits and disadvantages of hiringa lobbyist, the board voted to accept aone-year contract with Mast Solutions.The Club at Olde Stone in BowlingGreen, Kentucky, will serve as the venuefor the KDC 2011 Spring Seminar on Friday,May 13, 2011. Speakers scheduled atthis time include:• Pete Gullett, Lawyers Mutual InsuranceCompany of Kentucky, will deliver a presentation,And Here’s the Top Ten—Ethicsand Malpractice Avoidance;• Anastasios D. “Tassos” Tsoumanis, willprovide two programs, Biomechanics ofInjury in Low Impact Collision and AirbagInduced Injuries;• Randy Watson, committee chair forthe National Fire Protection Association,will present Raising the Bar of FireInvestigations.Additionally, a judge has been invited toprovide a second ethics program, and theseminar will offer a presentation about theuse of technology in accident reconstruction(speaker to be announced).Golf tee times have been scheduledbeginning at 1:00 on Thursday, May 12 atThe Club at Olde Stone, voted by GolfWeekas one of the top 100 Best Modern Courses,ranking ahead of Valhalla.Plans are also underway for the KDC2011 Fall Seminar, which will take placeat Churchill Downs on Friday, October 21,2011. KDC Secretary- Treasurer Park Priestof English Lucas Priest & Owsley will organizethis year’s event.M ASSACHUSET TSThe Massachusetts Defense LawyersAssociation (MDLA) honored its long-timemember and board member Thomas Federico,who passed away in 2010, by donatingto the Thomas C. Federico ScholarshipFund. Given Mr. Federico’s career- longdedication to mentoring young lawyersand his commitment to the profession,the MDLA chose to support this fund, asit will endow scholarships in his name, inperpetuity, to assist deserving lawyers inpursuing continuing legal education fromMassachusetts Continuing Legal Education,Inc., (MCLE). Such endowment is a fittingway to honor Mr. Federico’s memoryand demonstrate the MDLA’s admirationand gratitude for his inspiring example.Mr. Federico was a partner of MorrisonMahoney LLP and an exceptional trialattorney, well known for his passion, integrityand energy. In addition to his workwith the MDLA and with DRI as the vicechair of the DRI Construction Law Committee,he was a member of the Americanand Massachusetts Bar Associations,the American Board of Trial Advocates,the Association of Defense Trial Attorneys,ALFA International, and the InternationalAssociation of Defense Counsel.His modesty and even-headed mannerset him apart in the legal community, andhis combination of intelligence, charmand warmth made a lasting impressionon everyone who met him, whether in theoffice, in a courtroom or in the stands of ayouth hockey game. For younger lawyers,Mr. Federico offered a model of decencyand professional competence and, just asimportant, proof that someone could bea highly successful and respected lawyer,a leader in local and national professionalassociations and, at the same time,a devoted family man, team photographerand sports fan who never missed one of hischildren’s games. His unmistakable influencecan be found in the numerous lawyersthat he mentored over the years.The Thomas C. Federico ScholarshipFund will endow scholarships for legalservices staff attorneys, practitioners whoaccept pro bono cases and other lawyerswho, without financial assistance, wouldnot be able to attend MCLE programs. Atthe young age of 52, Mr. Federico left usway too early. But in that short time, healso left an indelible mark. For anyonewho would like to support the Thomas C.Federico Scholarship Fund, please contactGrace Garcia at ggarcia@morrisomahoney.com.N E BR ASK AThe Nebraska Defense Counsel Association(NDCA) has established an AnnualAwards program to recognize and celebratethe exceptional defense lawyers within Ne-

A F F I L I AT E S I N A C T I O Nbraska, including an award for DefenseLawyer of the Year. These awards will becomea regular part of the annual meetingeach spring, and the first award recipientswill be announced during the 2011 NDCAAnnual Meeting on Friday, May 13, 2011,at Wilderness Ridge in Lincoln, Nebraska.The NDCA Law Student Chapter continuesto grow and provide law students withvaluable opportunities to mentor and networkwith the Nebraska defense bar. Withthe goal of increasing the number of collaborativeevents this year, Student ChapterPresident J.J. Krauer and NDCA BoardLiaison Renee Eveland welcomed law studentsback to school with a reception at theUNL Law College, followed by the successfullaunch of a mock interview program toprepare first-year law students for the rigorsof on- campus interviews. Volunteer NDCAmember lawyers conducted interviews withstudents and provided constructive feedback.This spring, the NDCA Student Chapterand the NDCA Board will collaborateagain to focus on appellate advocacy skillsas the students begin to prepare for theirmoot court arguments. After the studentswatch a morning of oral arguments beforethe Nebraska Supreme Court, they will meetwith the NDCA lawyers who argued to debriefand ask questions about preparing forand delivering an effective oral argument.The NDCA would also like to congratulatecurrent NDCA Board Member MarkFahleson, who is serving as the chair ofthe DRI Employment Law Committee,current NDCA Board President StephanieStacy, who is serving as vice chair of theDRI Medicare Secondary Payer Task Force,NDCA Board Member and Past PresidentKyle Wallor, who is serving as Nebraska’sDRI State Representative, and formerNDCA Board Member and Past PresidentBob Shively, who began his term as DRIMid- Region Director following the DRIAnnual Meeting in October 2010 and alsoserves as the vice-chair of the DRI SLDORelationship Committee.OHIOThe Ohio Association of Civil Trial Attorneys(OACTA) has developed a Law StudentDiversity Scholarship Program. Scholarshipsare open to incoming second- andthird-year African American, Hispanic,OACTA Immediate Past President John M. Hands (right) of Ulmer & Berne LLP in Cincinnatireceives the President’s Award from new OACTA President Gary L. Grubler of Grange MutualCasualty Co. in Columbus.Asian, Pan Asian and Native American studentsenrolled at Ohio law schools. Incomingsecond- and third-year female lawstudents enrolled at Ohio law schools arealso eligible regardless of race or ethnicity.Other criteria for the scholarship includeacademic achievement in law school; professionalinterest in civil defense practice;and service to community and to the causeof diversity.Up to two scholarships in the amount of$1,250 each will be awarded to successfulapplicants. Applicants are required to submitan application, a law school transcriptand a cover letter addressing academic,personal and professional accomplishments,and why the applicant should beselected as a recipient of the scholarship.Applicants may submit up to three lettersof recommendation. The completed applicationand all other requested materialmust be received by April 20, 2011. Winnerswill be announced during the OACTAseminar in June 2011. Scholarship recipientswill be recognized during the OACTAAnnual Meeting in November 2011. The2011 OACTA Law Student Diversity ScholarshipApplication can be found at http://www.oacta.org/.The OACTA believes that a diverse membershipmakes a stronger organization.The OACTA encourages diversity in allaspects of its activities and is committedto nurturing a culture that supports andpromotes diversity. The newly developedOACTA Diversity Committee is chaired byHilary Taylor.OACTA, during its Annual Meeting onNovember 11, 2010, in Cincinnati, presentedawards to recognize attorneys fortheir service to the OACTA, the professionand the community. James L. O’Connell ofLindhorst & Dreidame in Cincinnati, receivedthe Distinguished Contributions tothe Profession Award. The Excellence inAdvocacy Award was presented to DavidC. Greer of Bieser Greer & Landis LLP inDayton. Nicholas E. Bunch of White Getgey& Meyer in Cincinnati was the recipientof the Respected Advocate Award.For The Defense n April 2011 n 9

10 n For The Defense n April 2011A F F I L I AT E S I N A C T I O NJonathon L. Beck of Young &Alexander Co., LPA in Daytonreceived the OutstandingYoung Lawyer Award.The OACTA 2010 CommitteeChair of the Year Award waspresented to Jamey T. Pregonand the OACTA Frank SethHurd Member of the YearAward was presented to LynnetteDinkler, both of DinklerPregon LLC in Dayton.The OACTA also electednew officers and trustees for2011. New officers includePresident Gary L. Grublerof Grange Mutual CasualtyCompany in Columbus;Vice President Kevin C.Connell of Freund, Freezeand Arnold in Dayton; TreasurerKurt D. Anderson ofThe Law Offices of Kurt D.Anderson, Esq., in Cleveland;and Secretary AnneMarie Sferra of Bricker &Eckler LLP in Columbus. John M. Handsof Ulmer & Berne LLP in Cincinnati is nowOACTA Immediate Past President.Trustees elected include Thomas J Antoniniof Robison Curphey & O’Connell inToledo; Anthony Brown of Baker DublikarBeck Wiley & Matthews in Canton;Lynnette Dinkler of Dinkler Pregon LLCin Dayton; Richard M. Garner of Davis &Young LPA in Cleveland; John J. Garvey IIIof Freund Freeze & Arnold in Cincinnati;Brian D. Kerns of Kerns & Proe in Cleveland;James N. Kline of Ulmer & BerneLLP in Cleveland; Michael W. Krumholtzof Bieser Greer & Landis in Dayton; JamesL. Mann of Mann & Preston LLP in Chillicothe;Amy Mass of The Hanover InsuranceGroup in Columbus; Mark F. McCarthy ofTucker Ellis & West LLP in Cleveland; PaulW. McCartney of Rendigs Frye Kiely &Dennis in Cincinnati; Gregory E. O’Brien ofCavitch Familo & Durkin Co. LPA in Cleveland;David W. Peck of Rendigs Fry Kiely& Dennis in Cincinnati; Crystal Richie ofColumbus; and Brian Wildermuth of SubashiWildermuth in Dayton.R HODE ISL A N DThe Defense Counsel of Rhode IslandDefense Counsel of Rhode Island Director Thomas R. Bender (left) of HansonCurran LLP and fellow DCRI Director and DRI Rhode Island State RepresentativeMichael J. Reed Jr. of Allstate Insurance Company load boxes of donatedfood for the Rhode Island Community Food Bank.(DCRI) held a holiday reception December8, 2010, at the University Club inProvidence. The event was free to members.DCRI also conducted a holiday fooddrive, which saw DCRI members andothers donate nearly 700 pounds of foodto the Rhode Island Community FoodBank. DCRI President Brooks R. Magrattennoted, “This is the fifth year that ourassociation has collected food at the holidayseason. We had great support from ourmembers and I am pleased that we could beof assistance to the food bank and the familiesthey serve.” Assisting with the loadingand delivery of the boxes were DCRI membersMichael J. Reed Jr, Thomas R. Bender,Joseph M. Codega, Jeffrey D. Pethick andMichael B. Isaacs.SOU T H DA KOTAThe South Dakota Defense Lawyers Association(SDDLA) held its annual meetingon December 2, 2010, in Sioux Falls. At themeeting, the members elected the followingto office: Mark Arndt, president; GregBernard, vice president; Jennifer Wollman,secretary; and Julia Dvorak, treasurer. Themembers also voted Jody Odegaard Smithto a second term as a director and MelissaNeville as a new director.Steve Schweigman, DRINorth Central Region representative,presented RoyWise with the DRI ExceptionalPerformance Awardfor his dedication and supportto the SDDLA.The SDDLA also hosted itsannual seminar on December3, 2010. Mary Re Knackspoke about The MedicareMaze: Untangling Medicare’sSubrogation Right, andRandy Sellers spoke aboutAn Analytical Approach toJury Selection: Trying to Takethe Process Beyond Voodoo.The SDDLA had good attendance,and the programwas very well received.TEN N E SSE EThe Tennessee DefenseL aw yers Association(TDLA) thanks John Barringer andHeather Hardt Douglas of Manier & Herod,for organizing a one-hour program heldon Thursday, January 13, 2011, in Nashville.Tennessee Chief Supreme Court JusticeCornelia A. Clark provided the ethicsprogram, The Rules & Realities of EthicalLitigation.The TDLA and the Alabama DefenseLawyers Association and the TennesseeDefense Lawyers Association (TLDA) willjoin forces for their first Joint Spring Seminarat Sandestin Golf and Beach Resort,Destin, Florida, June 16–19, 2011. Programswill be offered Friday morning forboth organizations and breakout sessionsfor each state will be held on Saturdaymorning. TLDA member Bill Domico ofMemphis will assist with lining up speakers.John and Laurie Barringer will hostthe hospitality suite. The TDLA will alsohold its 2011 Fall Seminar and Meeting atThe Chattanoogan in Chattanooga, September29–October 1, 2011. TDLA memberLisa Overall of Memphis will organizethis year’s event.On December 28, 2010, the TDLA wasgranted permission to file an amicus briefby the Tennessee Supreme Court in Webbv. Nashville Area Habitat for Humanity.

A F F I L I AT E S I N A C T I O NTDLA members Dale Conder and Brad Boxprepared and filed the amicus brief on January13, 2011. The case involves a retaliatorydischarge claim. In the trial court, theplaintiff was allowed to amend her complaintafter defense counsel attempted todismiss under TRCP 12.02(6). The plaintiff’samended complaint alleged only thatshe was told by an unidentified individualat NAHFH “not to allow services to begiven to a person because it would be a badidea to give a loan to someone that old.”Defense counsel renewed its motion to dismiss,arguing that the plaintiff had failed toallege a violation of a statutory or constitutionalprovision or clear public policy. It isbelieved the decision in this case will affectnot just the law of retaliatory discharge,but also the standard by which Tennesseecourts judge the sufficiency of complaintsin all matters.TDLA was also asked to partner withDRI in submitting an amicus brief filed onbehalf of the petitioner in Freeman v. CSXTransportation, which is pending beforethe Tennessee Court of Appeals. The caseaddresses an important issue regardingthe application of the Tennessee SavingsStatute, and its use in this case is a blatantexample of forum shopping by the plaintiffs.DRI believes that it merits participationby the defense bar. The TDLA Board ofDirectors voted in favor of the brief partnership,and Marc Williams wrote the briefon behalf of DRI and the TDLA.TE X ASThe 82nd Texas legislature convened inearly January and is currently in full swing.As in a number of other states, economicissues and the staggering, projected $27billion budget deficit have dominated theearly discussions. Redistricting and thesunset review of over 20 major state agenciesare also headlining the session. Withthe introduction of a Republican supermajorityin the house after the Novemberelections, a great number of new bills havebeen introduced dealing largely with socialissues, such as immigration, voter identificationand abortion. Legislators likely willintroduce a number of civil justice measuresas the session progresses. Perhapsmost troubling, an already woefully underfundedjudiciary would suffer yet another10 percent cut under the current, proposedbudget.The Texas Association of DefenseCounsel (TADC) Legislative Committee isin place and meeting on a regular basis tomonitor the over 6,500 pieces of anticipatednew legislation. The TADC has held legislativeluncheons in the Rio Grande Valleyand Dallas, with others scheduled or beingplanned in Austin, Fort Worth, Houston,Beaumont and the Texas Panhandle, forthe purposes of keeping TADC membersinformed and current on initiatives in frontof the legislature.The TADC 2011 Winter Seminar washeld in Steamboat Springs, Colorado, February2–6, 2011. The seminar was a greatsuccess with over 90 members, spouses,guests and children attending. Ironically,the Winter Seminar coincided with anunprecedented winter storm in Texas, sofor some it almost felt warmer in Coloradothan at home! The 29th Annual TADC TrialAcademy will be held in Austin on MarchAREAS OF EXPERTISE• Construction Defect Evaluations• Construction Disputes• Moisture Intrusion Analysis• Roof Damage Evaluations• Construction Accidents• Vibration Damage EvaluationsTO SUBMIT AN ASSIGNMENT:4–5, 2011. The trial academy is one of themost recognized and beneficial programsthat the association provides. It is an intensive,two-day, trial- advocacy training seminardesigned for new attorneys, providingpractical courtroom skills by seasonedattorneys and members of the judiciary.The 2011 Spring Meeting and LegislativeAction Day will be held in Austin March30–April 3, 2011. TADC members will walkthe halls of the legislature, meeting anddiscussing civil justice issues with electedofficials, and the TADC Young LawyersCommittee will host a breakfast honoringthe current and former members of theTexas Supreme Court.The TADC standing committees—Legislative,Programs, Membership and Publications—arealways seeking volunteers toserve, speak, review legislation, recruit andwrite! If any member is interested in “steppingup” his or her level of participation,please don’t hesitate to contact the TADCoffice (tadc@tadc.org) to volunteer today.Celebrating85 Years!Forensic Engineers and Consultants• Industrial Accidents & Explosions• HVAC Evaluations• Product Failure Analysis• Electrical Failure Analysis• Fire Origin & Cause• Slip/Fall Investigations• Component Related Failures800-527-0168 • haagengineering.comFor The Defense n April 2011 n 11

T E C H N O L O G YGetting Down tothe Online TruthBy Stephanie G. FlynnBecoming theUltimateCyber-SleuthIf a plaintiff has beena prolific Internetuser, familiarity withonline resources mayend up a vital weaponin your arsenal.Mark Zuckerberg, the now 26-year-old founder of socialmedia giant Facebook, made the controversial statementwhile speaking at San Francisco’s Crunchie Awards in January2010, that the rise of social networking online meansthat people no longer have an expectationof privacy. Gone are the days when privacywas a “social norm.” According to Zuckerberg,“People have really gotten comfortablenot only sharing more informationand different kinds, but more openly andwith more people.”A number of people, of course, disagreewith Zuckerberg. Regardless of the newswebsite on which these comments werereported, Internet users freely posted dozensupon dozens of comments regardingZuckerberg’s remarks. Many of those leavingremarks not only blatantly disagreedwith Zuckerberg’s observations, but theyinexplicably verged on being abusive inhow strongly and harshly they wordedtheir comments, in some instances launchingpersonal attacks on Zuckerberg. Theresponses, while challenging the statementthat Internet users no longer have anexpectation of privacy, at the same time12 n For The Defense n April 2011■ Stephanie G. Flynn is a partner at Gallivan, White & Boyd, P.A., in Greenville, South Carolina, where her litigation practiceis primarily focused in the areas of product liability and toxic and mass torts, in both federal and state courts. Ms. Flynn is along-time member of DRI and presently serves as the 2011 Annual Meeting Liaison for the Toxic Torts and Environmental LawCommittee, co-chair of marketing for the 2012 Toxic Torts and Environmental Law Seminar, and vice chair of the Trial TacticsSpecialized Litigation Group for the DRI Toxic Torts and Environmental Law Committee.

present more examples of how people arewilling to share their thoughts freely onthe Internet.Many people are now willing to saythings on the Internet that they wouldrarely say in person, falsely secure in thebelief that they have some level of anonymitywhile sitting behind a computerscreen. Indeed, a significant number ofnews reports and articles have pointed outthat while technology use has escalated,etiquette simultaneously has declined. See,e.g., Studies Find Internet Web Use MakesPeople Rude, http://www.theinternetpatrol.com/studies- find- internet- web- use- makes- peoplerude/.What this means for an attorneyinterested in uncovering information abouta plaintiff is that, if a plaintiff has been aprolific Internet user, the attorney is likelyto find that the plaintiff’s comments aresurprisingly frank. An Internet user is lesslikely to censor his or her comments thanto try to make them more difficult to findby using a nickname or online name, alsoknown as a “handle.” Therefore, the informationthat you might find may not onlyoffer you impeachment material, but youcould also find it useful in negotiations ifonline commentary is at all relevant to acase or could embarrass a plaintiff. If informationis accessible to public view, it is fairgame. This article will offer some pointerson how to incorporate that informationinto your “game.”The Rise of Social Networkingand the Erosion of PrivacyAs we have witnessed in the news, the constanttug of war between public and privateinformation on the Internet has led toa series of well- publicized, embarrassingincidents. Many Internet users have unwittinglyposted information online, believingit was private, or at least restricted toselected viewers, only to have it become“viral” and reach the public masses. Forinstance, Virgin Atlantic Airlines had tofire 13 members of a cabin crew after theyengaged in a discussion on Facebook inwhich they criticized safety standards andinsulted passengers. See Ben Quinn, VirginSacks 13 Over ‘Chav’ Remarks, The Guardian,Nov. 1, 2008, http://www.guardian.co.uk/business/2008/nov/01/virgin- atlantic- facebook.Even more infamous was an incident thatresulted in Domino’s Pizza firing twoemployees after they posted video on You-Tube that portrayed the employees doingdisgusting things to people’s food. Thenotoriety that the video quickly gainedhad evidently been wholly unexpected bythe employees, who were hounded by themedia following the incident.As evident from these two examples,information that is publicly available andcan be accessed without invitation is fairgame for review, use, and redistribution.Consider the case of Moreno v. HanfordSentinel, Inc., 172 Cal. App. 4th 1125, 91Cal. Rptr. 3d 858 (2009). In Moreno, theplaintiff was a college student who hadmoved away from her hometown to attendthe University of California at Berkeley. Theplaintiff’s parents and younger sister stilllived in the plaintiff’s hometown, and hersister attended the local high school. Whenthe plaintiff returned to her hometown tovisit her family, she posted an article on herMySpace page in which she harshly disparagedthe town and its inhabitants. Afterreturning to college, the plaintiff removedthe article, which had only appeared inher online journal for six days, from herMySpace page. In the interim, however,the principal of the local high school hadalready discovered the article and providedit to an editor of the local newspaper.The editor published the article in the Lettersto the Editor section, using the plaintiff’sfull name, although the plaintiff’s lastname had not been available in her onlinejournal.The community responded violently.The plaintiff ’s family received deaththreats, had shots fired at their home, andultimately had to close their 20-year-oldbusiness and move out of the town. Theplaintiff and her family subsequently suedthe high school principal, the local newspaper,and the school district for invasion ofprivacy and intentional infliction of emotionaldistress. On a motion for summaryjudgment, the court ruled that since it hadbeen published on MySpace.com, the plaintiff’sarticle was not private. The plaintiff’saffirmative act of posting the article on herMySpace page, which was unrestricted,made her article available to any personwith a computer so that it was open to thepublic eye. Under those circumstances,the plaintiff had no reasonable expectationof privacy. That the plaintiff may haveexpected a more limited audience did notchange the court’s analysis.The fact that the plaintiff removed thearticle after six days and that her last name,which was not published on her MySpacepage, appeared in the newspaper whenthe article was republished, were also ofno consequence. The publication had stillbeen publicly accessible to all for a periodof time. Moreover, the plaintiff’s last namewas not a private fact. The plaintiff’s identitywas readily ascertainable from herMySpace page, which included the plaintiff’spicture. Hence, the defendants weremerely providing further publicity to informationthat was already public. As mentionedbefore, if information is accessibleto public view, it is fair game.The StatisticsThe statistics on social media and Internetuse are staggering. In early 2010, Pingdom,a company that provides uptime monitoringneeds for companies that maintain anonline presence, collected and reported inits blog on the latest available data, whichFor The Defense n April 2011 n 13

T E C H N O L O G Yit had obtained from a wide variety ofsources around the web. See Internet 2009in Numbers, Pingdom (Jan. 22, 2010), http://royal.pingdom.com/2010/01/22/internet- 2009- innumbers/.The data showed that in 2009alone 90 trillion e-mails were exchangedthrough cyberspace—247 billion on averageper day. There were 1.73 billion Internetusers worldwide as of September 2009. OnMany people are nowwilling to say things onthe Internet that theywould rarely say inperson, falsely secure inthe belief that they havesome level of anonymity.the social media front, 2009 saw 126 millionInternet blogs, 27.3 million tweets onTwitter per day, and 350 million people onFacebook as of November 2009. Not onlyhave people been sharing their thoughtsand updates on social websites, but theyhave also been posting a plethora of photographsand videos. An estimated 2.5 billionphotos were uploaded each monthin 2009 to Facebook. At the current rate,people will upload 30 billion photos eachyear to Facebook. YouTube served 1 billiontotal videos in one day, and in the UnitedStates people viewed 12.2 billion videos permonth as of November 2009.This meteoric rise in Internet use andsocial networking is occurring at the sametime that current data suggest that consumersincreasingly tolerate insurancefraud and consider it an acceptable activity.As reported by the Coalition Against InsuranceFraud in 2008, one of five adults in theUnited States, roughly 45 million people,believed defrauding insurance companieswas acceptable under certain circumstances.Fraud Stats, Consumer Attitudes,Coalition Against Insurance Fraud, http://www.insurancefraud.org/consumerattitudes.htm(last visited Feb. 4, 2010). Over just the last14 n For The Defense n April 201110 years, consumer tolerance of specificinsurance schemes—misrepresenting factsto lower premiums, inflating claims, andmisrepresenting incidents to secure paymentfor uncovered losses—has increased,while attitudes toward insurance providershas declined.When you consider all of the above—that many people accept insurance fraud,increasingly use the Internet, and spendlittle time reflecting on how others mayperceive their comments, photographs, orother information—it becomes apparentthat you could discover a goldmine of informationif you know where to look. Suchinformation can be critical to evaluating acase’s worth, the location of impeachmentmaterial, and your overall case strategy.So, where do you begin the miningprocess?Online Mining ToolsOnline information to help build yourdefense is largely available from four kindsof sources: search engines, the “deep” web,social networking sites, and local or specializedwebsites.Google and Other Search EnginesBy now, most practitioners are familiarwith and have used search engines. Literallythousands of search engines are availableonline. Google obviously has becomethe most well-known within the last fewyears. Consider that it is now commonplacefor people to use “google” as a verb. Thesesearch engines each claim to provide themost relevant results, based on the searchterms that a user enters, and they employdifferent technologies to determine the relevanceand significance of web pages basedon various criteria. These search enginesupdate their indices on a regular basis tokeep the most relevant and recent informationat the top of the search results.For new litigation, a defense attorneyoften has available only very limited backgroundinformation, acquired from thecomplaint or during the early discoveryprocess, including a litigant’s name andpossibly an address, date of birth, telephonenumber, spouse’s name, and currentemployer. A diligent preliminary searchwould include entering each of these itemsas search terms or keywords. Be creativein using middle names, common nicknames,and other variations, if you believethat they are logical based on the plaintiff’sname. Also be aware that differentsearch engines employ different methodsof using each word entered in the searchbox. Google, for instance, uses and as itsdefault Boolean connector so that you donot need to type the word and between anyof the search terms.As an example of an initial search intocyberspace, consider that you have receivedthe following biographical informationfrom a plaintiff’s discovery responses:Billy Bass123 Main StreetVillage, South Carolina, 29601(864) 555-5309DOB: 03/03/1975Employer: ABC Corporation, Inc.Armed with the information above, asearcher could start by entering the plaintiff’sname, both within and outside of quotationsmarks, into the search engine ofchoice. Such basic searches might appearas follows:Billy Bass William BassBill Bass “Billy Bass”More sophisticated or detailed searchesmight include:“Billy Bass” Village“Billy Bass” SC“Billy Bass” “South Carolina”Bass “ABC Corporation”Advanced searches would include combiningnames with birthdates, companyabbreviations, or city of residence, just toname a few: BBass75, BillyBass75, or Billy.Bass1975.Since the discovery response also provideda complete address and telephonenumber, placing those details into thesearch engine field could also uncover usefulwebsites and information of interest.Performing this type of traditional searchwill often yield a long list of results that couldreach into the thousands. If you are lucky,and a litigant is a prolific Internet user, youcould stumble onto the tip of an icebergwithin just a couple of minutes. A practitionercan, however, narrow a search furtherby using advanced search pages, offered byall of the major search engines, or by searchingwithin results, a feature offered on someof the major search engines, such as Google.Just to name a few, advanced search optionscan allow a person to narrow a search to ex-

clude certain words, return web pages updatedwithin a specified period of time (e.g.,the last six months), return web pages containingall of the search terms that a personenters, and return web pages that are only inEnglish or in a certain format. Therefore, youmay find it worthwhile to explore advancedoptions to try to limit the amount of browsingthat you may be required to do if facedwith an endless list of results.In addition to advanced search options,Google also has some additional useful toolsthat you may find worth exploring in appropriatecases. In particular, a practitioner cansign up for a “Google Alert” to monitor anynew information that is posted with regardto a particular person, company, industry,or competitor, among other things. You canrequest updates by e-mail as they occur, onetime per day, or one time per week. You canalso select the mediums from which youwould like to receive the updates. For instance,you can limit the new informationthat you receive to updates that come fromnews sources only, or you can expand it toinclude any information that is posted inthe news sections, in blogs, in video format,or in discussion forums.You might also find searching GoogleGroups (http://groups.google.com/) and GoogleBlogs (http://blogsearch.google.com/) worthwhileunder certain circumstances. GoogleGroups is an archive of discussion grouppostings and messages. The discussion topicsare endless. If a plaintiff has a particularhobby or is an avid sports fan, for instance,it is possible that he or she could join an ongoingdiscussion group dedicated to runningcommentary on the topic of interest.Additionally, recent upgrades to GoogleGroups now allow group members to createprofiles, upload pictures, and provide aquote, providing yet more avenues by whichto identify someone who may have previouslybeen more difficult to track becausehe or she was using a nickname or someother online handle rather than a real name.Similarly, Google Blogs permits you tosearch the blogging universe to find outwhat people are saying on a particulartopic. Searches are not limited to thoseblogs published through Blogger, butinclude all blogs. As some people have createdand used blogs as a type of onlinediary or forum to make running editorialcomments on topics that strike their interest,you can potentially locate significantbanks of information. As with Google’shome website, both Google Groups andGoogle Blogs have an advanced searchoption that will allow you to narrow yourresults and restrict them to certain subjects,to certain authors, to messages postedduring a certain time period, or to webpages containing certain words or phrases,in addition to other parameters.Finally, meta-search sites are also veryviable options. These search engines functionby sending your search to multipledifferent search engines at once. Therefore,they do not maintain their own indexof results, but instead draw from the indicesof other search engines. Some prominentexamples of such meta-search sitesare Dogpile (http://www.dogpile.com/), Yippy(http://search.yippy.com/), and Twingine (http://www.twingine.com/), although Twingine onlysubmits searches to two search engines:Yahoo and Google. Trying a meta-searchsite may allow you to locate results fromone search engine that the other searchengines may not have yielded, based simplyon the way that information is indexedand how the site determines the relevanceof results based on the search terms thatyou used.One very interesting, valuable metasearchsite is 123People.com (http://www.123people.com/). This site allows a personto search using a first and last name, whichcan be further modified by entering a city,zip code, and country. Results are presentedby category, including pictures, e-mail addresses,social networking profiles, documents,web links, and blogs, just to namea few. While producing substantial results,it is apparent, however, that 123People.comalso catches irrelevant results that relate toother people and inexplicably misses someonline information that has been widelyposted by your subject. Nonetheless, hopefullythe search will at least provide positiveresults in a couple of categories that you canuse to launch other searches.If you come across something worthwhile,follow that lead to see where it maytake you.The Deep WebAlthough search engines provide a logicaland easy starting point to begin to mineinformation that may be lurking on theInternet about a particular plaintiff, usinga search engine alone is akin to merelyskimming the surface of a pond. A wealthof information exists below the surface thatyou easily can overlook if you do not takethe time to dive deeply.Because the web is constantly updatedto push the most relevant and recent informationto the top, information quicklyMany people acceptinsurance fraud, increasinglyuse the Internet, and spendlittle time reflecting on howothers may perceive theircomments, photographs,or other information.becomes outdated and buried. Websites arerevised. Information is deleted. That doesnot, however, necessarily mean that it is nolonger accessible and available, if you knowwhere to look. Google and Yahoo are justtwo of the search engines that offer you theability to retrieve the most recent version ofa web page that existed before the currentresults that you have been offered. In lookingat the results, you can merely click onthe term “cached” to retrieve older information.Google includes in this result thedate for the page that it has cached.Some websites, however, provide evengreater access to older web pages that havebeen revised or deleted. Specifically, http://www.archive.org/, also known as the InternetArchive Way Back Machine, has archivedbillions of web pages as early as 1996. Itoffers access to all of the versions of the webpages that it was able to capture by enteringthe URL into the search box. Unfortunately,the site is not able to search by use ofsearch terms. Therefore, you have to knowthe precise URL of the website that youwant to search. The result is a list of all ofthe versions of that URL that are available.By clicking on any of the links, you cansee the web page as it appeared on the dateFor The Defense n April 2011 n 15

T E C H N O L O G Ythat you have selected. This type of searchis particularly effective if you are searchingfor a website of a corporation or otherentity, which would more likely have maintainedwebsite, as opposed to an individual.It can be interesting to explore in depositionswhy a corporation may have deletedcertain information or changed a site fromformer versions.Meta-search sites…function by sending yoursearch to multiple differentsearch engines at once.16 n For The Defense n April 2011Social Networking WebsitesWhile someone might think that people intheir 30s or younger primarily use socialnetworking sites, the statistics show that abroader age range of people than you mightthink use social media networking tools.Just because a plaintiff is 40 or older doesnot mean that you should forgo a searchon the hottest social networking websites:Friendster, MySpace, Facebook, Twitter,YouTube, and LinkedIn. Likewise, just asyou should not rule out searching social networkingsites based on a plaintiff’s age, youshould not rule them out based on any otherdemographic information. While in itsearly days Facebook was largely populatedby Caucasians and Asians, a 2009 study byFacebook of the ethnicity and race of Facebookusers in the United States revealedthat African Americans and Latinos hadstarted signing up at a rapid pace. See Mike,Swift, Facebook Releases First-Ever DemographicLook at Users, San Jose MercuryNews, Dec. 17, 2009, available at Pew Internetand American Life Project, http://www.pewinternet.org/Media- Mentions/2009/Facebookreleases-firstever- demographic- look- at- users.aspx.Therefore, even if your target may not fityour idea of the type of person whom youbelieve would be a prolific Internet user,take the few extra minutes to extend somefeelers into social networking sites. You maybe surprised by what you find.Not only are a broad range of peoplenow connected to the online social networkingcraze, but people tend to forgetthat their spectators may not be limited tojust their friends. If a social network userdoes not carefully implement privacy protections,or if the site on which someonehas posted information is an open publicforum, anyone can search for and find thatinformation. Many plaintiffs’ attorneys arebecoming keenly aware of this and thatclients may unwittingly mention detailsabout their lives or a case that defenseattorneys can use to a plaintiff’s detriment.One firm, primarily representing plaintiffs,has openly advised its clients and potentialclients of such pitfalls in its own firm blog.As posted in an undated blog entry, entitled“MySpace, Facebook, and Other SocialUtilities Can Jeopardize Our Case,”If you have been in an accident or havesuffered some other type of injury thenbe very careful about how you portrayyourself to the public. Certainly yourcase is not the only aspect of your lifeand you are entitled to continue enjoyingother aspects. The problem is whenyou put yourself out there in a certainlight and everyone can see it, includingdefense attorneys and insuranceadjusters.Of course we all know that MySpaceand Facebook are like any other Internetsite created by the individual, they maynot be accurate and they may not be current.Take the time to consider how youwould interpret the information on yoursite if you were a defense lawyer lookingfor ways to weaken your case. Don’tmake their jobs any easier for them.Make them work hard to try and diminishyour claim. Trust me, they haveplenty of tricks up their sleeves and wedon’t need to be giving them anymore.Emily Mapp Brannon, Shapiro, Cooper,Lewis & Appleton, P.C. (Nov. 17, 2008),http://www.hsinjurylaw.com/blog/myspacefacebook-and- other- social- utilities- can- jeopordizeyour-case.cfm.The most popular social networkingsites allow people to create their own profiles,which contain a variety of biographicalinformation, depending on the site.The extent to which profile information isavailable to the public depends on the privacylimitations that a person has placedon the information. Facebook, which fornow appears to be the most popular socialnetworking site, does allow you to searchfor a person by name or e-mail address todetermine if he or she has a Facebook profile(http://www.facebook.com/srch.php). Youwill not be able to access any additionalinformation, however, without first creatingyour own profile. Fortunately, if youdo not have your own aspirations to havean online presence on Facebook, you onlyneed to provide a name and e-mail addressat a minimum to get started. Many attorneyshave created such “stealth” Facebookprofiles solely for the purpose of beingable to perform searches and access profilesto the extent that profile owners havepermitted.Recent finds have demonstrated thegreat value that diligent Internet searchescan yield after discovering that plaintiffshad profiles on popular social networkingsites. In one case, arising from a masstoxic chemical release, a 27-year-old malebrought suit alleging several physical andemotional injuries from exposure to achemical. After performing a simple searchon MySpace, defense counsel successfullylocated a publicly accessible profile underthe plaintiff’s name. The plaintiff’s identitywas confirmed by both photographs of himthat appeared on his profile page, alongwith the fact that his city of origin matchedthat of the plaintiff’s known residence. Thissearch produced some useful information,including a few photographs of interest.In one photograph, the plaintiff appearedunconscious on a table in the snow with abottle of vodka by his side.Although the initial search had alreadyyielded some useful information that couldhave been used during depositions or duringa mediation of the case, defense counseldecided to take the search a step further.The plaintiff’s MySpace profile included theplaintiff’s MySpace nickname. The simpleact of performing a Google search of theplaintiff’s nickname yielded a gold mineof information that would not otherwisehave been found by performing the samesearch of the plaintiff’s real name. It ledto a message board for a site that was dedicatedto the celebration of binge drinking.The plaintiff had posted approximately4,500 messages on the site, called “ModernDrunkard Magazine—A Forum for Boozeheads.”Many of the posts included photographsof the plaintiff in various states

of intoxication. Through a comprehensivereview of the message board postings,defense counsel was able to create a timeline of the plaintiff’s adventures since histoxic exposure, including post- accidentroad trips across the country, wild parties,and hiking trips in the mountains.Not only did defense counsel discoverthis extensive commentary by the plaintiffabout his deep affinity for alcohol, butin exploring the plaintiff’s photographsand messages, counsel found an additionalarchive of photographs uploaded by theplaintiff on a third, unrelated website. Justas the plaintiff had used his nickname onthe Modern Drunkard message boards,he also used his nickname in connectionwith his online photo archive. A simplesearch in Google of the plaintiff’s namewould not have uncovered it. The onlinearchive of photographs was publicly accessibleto all. The plaintiff had uploaded hundredsof photographs of himself, many ofwhich were date stamped. These photographsshowed the plaintiff performing alltypes of activities from binge drinking topartying on a Slip and Slide with a toplessfemale companion. Needless to say, manyof these activities were completely inconsistentwith what the plaintiff claimed hecould or, rather, could not do, in the lawsuitthat he was pursuing. Moreover, given thatthe plaintiff had testified during his depositionthat he might drink three or four beersor mixed alcoholic drinks approximatelyfour to five times per month and neverhad a problem with alcohol, defense counselhad gathered significant ammunitionto easily impugn the plaintiff’s credibility.In yet another example of a helpful find,a plaintiff, a young male in his mid-20s,filed a product liability action after sustaininga severe and allegedly disablinginjury to his foot. The injury occurred aftera trailer jack that was supporting a largeboat allegedly collapsed, causing the fullweight of the trailer and boat to impale andseverely crush the plaintiff’s foot. In additionto considerable medical expenses, theplaintiff also sought lost wages and significantloss of future earnings. The plaintiffcontended that he was no longer able toperform his job as a supervisor for a landscapingand golf-course maintenance company,testified during his deposition that hehad been entirely unable to work since theaccident, and testified that he was not ableto enjoy vacations since the accident.Defense counsel, suspecting that theplaintiff could potentially have a profileon one or more social networking sites,searched several of the sites using the plaintiff’sname, to no avail. The plaintiff’s wife,on the other hand, was found to have an activeFacebook profile, much of which waspublic, including posts on her “wall” andphotographs. In exploring posts made bythe plaintiff’s wife on other people’s Facebookpages, as well as on her own, it was evidentthat despite the plaintiff’s testimonyabout his inability to work, he had beenworking in the same capacity in which hehad worked before the accident. Some ofthe posts made by the plaintiff’s wife indicatedthat her husband planned to workout-of-town on a job that was expected tolast a month or longer. In addition, photographsposted by the plaintiff’s wife, manyof which indicated the date or time period inwhich they were taken, depicted the plaintiffon vacation, enjoying deep-sea fishingexpeditions, and boating, all of which occurredafter the accident. Whereas the informationuncovered through this searchwas not quite as salacious as that uncoveredin the former example, it was nonethelessuseful in knocking a few dollars offof the amount demanded by the plaintiff tosettle his lawsuit.These are but two examples of the typesof information that can be uncovered ifyou take a few extra minutes to search fora plaintiff’s profile or some other Internetpresence. They also show the importanceof conducting searches creatively,using nicknames, as in the former example.When or if you do uncover an alternative,online user name or nickname, thatcreates an excellent opportunity to performadditional searches using the plaintiff’sonline “handle.” Returning to Googleor some other search engines that initiallydid not yield results, you can input anewly discovered user name or nicknameto reveal things that searching with a person’sreal name would not. Another tacticis to search for a custom URL first, on yoursubject’s social networking site profiles,and if you find that your subject has one,use it as a search term in Google or othersearch engines. MySpace, Facebook, andTwitter, to name a few, allow users to createa custom URL that offers direct accessto the user’s profile, such as: http://www.facebook.com/billybass75. This can occasionallylead to other sites where a plaintiffmight use the same handle.If at first you do not locate a plaintiff onthe social networking site, checking profilesof the plaintiff’s close friends or familymembers, if you know their identities,While a plaintiff mayhave heeded the warning ofhis or her attorney to takemeasures to avoid unwanteddiscovery of online profiles,a close family member orfriend… may not have takenthe same precautions.may lead you to an alternative user namefor the plaintiff. While a plaintiff may haveheeded the warning of his or her attorneyto take measures to avoid unwanted discoveryof online profiles, a close family memberor friend may not have been privy tothe warning and may not have taken thesame precautions. Most social networkingsites allow you to view a list of the friendsof a particular user. Facebook will typicallyallow you to view a user’s friends even ifthat user has set his or her own profile toprivate. If you locate a friend, then you maybe able to search their list of online friendsand find your plaintiff under an onlinepseudonym. Further, if the friend or a sibling’sprofile is itself publicly accessible,you may be able to locate photographs of ormessages posted by your plaintiff. A plaintiffneed not have a social networking siteprofile on a particular site for a third partyto post pictures of that person online. Inshort, sometimes you will find the most relevantinformation in a profile belonging tosomeone other than your plaintiff.Similarly, if you know the name of aplaintiff’s high school, you can enter theFor The Defense n April 2011 n 17

T E C H N O L O G Yname of the school on either Facebook orMySpace and scroll through a list of thegraduates and attendees who have associatedthemselves with the school. This mayallow you to stumble upon a plaintiff whohas signed up on the social networking siteusing an online handle rather than his or herreal name. Once you have achieved a positivehit, other links may start to fall into place.It is important to resistthe temptation to try tobecome “friends” onlineto deceitfully gain accessthat a plaintiff otherwisewould not have provided.Local and Specialized WebsitesGovernment agencies across the nation areincreasingly making certain public recordsavailable online without cost, althoughavailability still varies widely state by state.If available, access to free public recordsthrough the Internet avoids the need toresort to formal requests for informationor having to pay a personal visit to governmentagencies of interest, which is oftenmore hassle than it is worth, particularlyif you do not know if worthwhile informationexists. If you do have access to publicrecords online in your jurisdiction, youcan quickly search for information, includingarrests that may not appear on acertified criminal history, prior civil andcriminal litigation, liens, judgments, businessincorporation, licensing, and priorsexual offenses, to name a few. Therefore,it is worthwhile find out if this informationis publically available and make it a practiceto conduct some quick research usingthose resources.18 n For The Defense n April 2011Some Words to the WiseIt is absolutely critical that if you discoveruseful online information you swiftly captureand preserve it. The world of socialnetworking, blogging, and Internet usein general is fast-paced. New informationquickly becomes outdated and buriedbeneath the surface. Moreover, theprivacy protections of social networkingsites, in particular, are constantly evolving,and people increasingly have heededwarnings to protect their information andidentities from prying eyes. You may regretnot taking the time to document and preserveinformation after returning to a siteat a later date to discover that the subjectof your interest changed his or her profile’ssettings to achieve maximum privacyand photographs and other links havebecome inaccessible to everyone but designated“friends.” You may irrevocably loseinformation.In addition, if you discover that a plaintiffhas used a site’s privacy protections toshield information from view or everyoneexcept designated, authorized “friends,” itis important to resist the temptation to tryto become “friends” online to deceitfullygain access that a plaintiff otherwise wouldnot have provided. You could subject yourselfto claims of invasion of privacy andviolations of the federal Stored CommunicationsAct by overstepping the boundaries.18 U.S.C. §§2701–11.In the case of Pietrylo v. Hillstone RestaurantGroup, 2008 WL 6085437 (D.N.J.July 25, 2008), for example, the plaintiffswere employed by the defendant as serversat a Houston’s restaurant. One of theplaintiffs, Pietrylo, created a discussiongroup on MySpace.com called the “Spec-Tator” so that current and former Houstonrestaurant employees could “vent” aboutwork without outside eyes spying. Someonecould join the group only by invitation.Once a member was invited and acceptedinto the group, the member could accessthe Spec- Tator whenever he or she wishedto read or add new posts.A Houston’s manager became awareof the group through an employee, whoshowed the manager some of the contents.Subsequently, the manager requested theemployee’s password, which the employeeprovided because she feared reprimand ifshe refused. The manager used the passwordto access the Spec- Tator site and printcopies of the contents. Although the mannerin which other senior managers received theemployee’s password was disputed, othersenior managers did access and discuss thepostings on the Spec- Tator forum.The Spec- Tator posts included sexualremarks about Houston management andcustomers, jokes about specifications thatHouston’s had established for customerservices and quality, and references to violenceand illegal drug use. Not surprisingly,managers found the posts offensive andsubsequently terminated Pietrylo. Pietryloand another co-worker filed a complaintagainst the defendant, alleging commonlaw invasion of privacy, wrongful termination,and violations of several federal andstate laws, including violation of the federalStored Communications Act (SCA).The SCA makes it an offense to intentionallyaccess stored communications withoutauthorization or in excess of authorization.The statute does provide an exception to liabilitywith respect to conduct that is authorizedby a user of that service with respectto a communication intended for that user.See 18 U.S.C. §2701(c)(2). Although the defendantmoved for summary judgment onthe plaintiffs’ causes of action, includingviolation of the SCA, the U.S. District Courtfor the District of New Jersey denied summaryjudgment on the SCA violation on thegrounds that if the employee consented toprovide the password for the Spec- Tator siteonly under duress, the defendant was not“authorized” under the terms of the statuteto access the information. The plaintiffs’claim for common law invasion of privacywas also allowed to proceed to the jury.The trial of the Pietrylo case proceededto determine whether the defendant (1) violatedthe federal or state Stored CommunicationsActs, (2) invaded the plaintiffs’ privacy,and/or (3) wrongfully terminated the plaintiffsin violation of public policy. Althoughthe jury did not find that the defendant hadinvaded the plaintiffs’ common law right ofprivacy, the jury did return a verdict in favorof the plaintiffs on the Stored CommunicationsAct claims, finding that the defendanthad, through its managers, knowingly, intentionallyand purposefully accessed theSpec- Tator without authorization on five occasions.The jury further found that the defendanthad acted maliciously, warrantingan award of punitive damages. The verdictwas upheld on appeal by the U.S. DistrictCourt for the District of New Jersey. See Pietrylov. Hillstone Restaurant Group, 2009WL 3128420 (D.N.J.) Sept. 25, 2009).Cyber-Sleuth, continued on page 72

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A LT E R N AT I V E D I S P U T E R E S O L U T I O NIt’s Not Always JustAbout the MoneyBy Russell M. WareHow commonsense strategies canlead to success.MediationinPersonalInjuryCasesIn most commercial case mediations, both sides focus onmaking a sophisticated and largely unemotional bottomlinebusiness decision. Mediations in personal injury casesare different. Experience teaches that whether a plaintiffwill accept the defendant’s offer duringa mediation may depend on factors thataren’t monetary. While a defendant mustof course have fairly evaluated the case andmust come to a mediation with authorityto make an objectively reasonable settlement,that alone may not achieve a settlement.In other words, when it comes toachieving a settlement at mediation in apersonal injury case, “it’s not always justabout money.”This article will discuss some thingsthat defense attorneys can do besides offermoney on behalf of clients to increase the20 n For The Defense n April 2011■ Russell M. Ware, a shareholder in the Milwaukee office of SmithAmundsen LLC, is a DRI member and a former President ofthe Wisconsin Defense Counsel (formerly Civil Trial Counsel of Wisconsin). He is a trial lawyer specializing in the defense of lawyerprofessional liability claims, and devotes a significant portion of his practice to service as a Mediator in civil matters. He canbe reached at rware@salawus.com.

chances of reaching fair, mediated settlementsin personal injury cases.Bring Perceptiveness Abouta Plaintiff to a MediationA defense attorney will likely have learneda lot about a plaintiff at the claims stageand during litigation that you can use toprepare for mediation. Some informationcomes from a background investigation orfrom a review of the medical records. Takinga plaintiff’s deposition of course permitsa defense attorney to meet the plaintiffand gain insight into the plaintiff’s likelyattitudes, life experiences, character, andmotivations.You can also draw on your experiencewith plaintiffs in general when it comesto preparing for mediation. For example,most personal injury plaintiffs are uncomfortabletaking part in a lawsuit. Almost allwill be unfamiliar with what mediation isand how it works.Also keep in mind that for the lawyers,the mediator, and the claim professionals,the case at hand is one of many past orpending matters. Not so for a plaintiff. Aplaintiff has only one case, and you cannotexpect him or her to approach settlementdiscussions in a clinical, detached way.Identify What Will Motivate a Plaintiffto Work Toward a SettlementA number of factors other than moneymay be at work with a particular plaintiffinvolved in litigating a personal injurycase. Using the knowledge gained about aplaintiff, you can ask a number of questionsto prepare for the mediation.Does a plaintiff have a hidden agendain litigating, meaning, does the plaintiffseek something other than money?In some cases, a plaintiff may need, consciouslyor unconsciously, an apology, or atleast a direct and personal acknowledgementby a defendant that a wrong was done. Suchacknowledgement at an appropriate stage of amediation, either by the individual tortfeasoror by someone seen by a plaintiff as speakingon behalf of the defendant, may free theplaintiff to begin working toward reachinga settlement and moving on with his orher life. Often a plaintiff who has receivedan apology and acknowledgement of thewrong—even in cases in which the plaintiffhas rejected settlement offers to date as lessthan satisfactory—to react with words similarto these: “This accident happened threeyears ago. Would you believe that this is thefirst time that the defendant or his insurancecompany or anybody has ever said that theywere sorry? You know, it’s good to finally hearthis, and I really appreciate somebody sayingit today.” In that situation, you may haveremoved a major impediment to settlement,and the plaintiff may feel far more willing towork hard to reach a compromise. See DeborahL. Levi, The Role of Apology in Mediation,72 N.Y.U.L. Rev. 1165 (1997). (discussingin detail the utility of an apology in a mediationsetting).Does a plaintiff harbor strongemotions that may stand inthe way of a settlement?In other cases, a plaintiff may come to themediation with such anger about the defendant’sconduct or the severity of the plaintiff’sinjuries that mediation may seemdoomed from the start. If a defense lawyerhas reason to believe that a plaintiff willcarry emotional baggage to a mediation,that lawyer ought to notify the mediator inadvance. A mediator can then devise strategiesto confront, deal with, and eventuallyovercome the emotion so that the mediationcan proceed. See Russell M. Ware, ‘I’m TooMad to Settle!’ Working with Angry Plaintiffsin a Mediation, Wisconsin Lawyer, May2008 (discussing strategies to overcome aplaintiff’s anger during mediation).Does the case involve nonparties whowill likely influence the mediationprocess and who you should, therefore,include in the discussions?In some cases, a plaintiff will hesitate tosettle a case, even on an objectively reasonablebasis, without the approval of a valuedfriend, a family member, or another trustedadvisor. Even if a plaintiff and the plaintiff’slawyer and the mediator all agree that thepending offer from the defense is a goodone, the plaintiff may be afraid to say yes tothe settlement. That plaintiff doesn’t necessarilywant to reject the offer; the plaintiffsimply cannot make a decision one way orthe other. In that case, a nonparty’s interventionmay overcome the problem.Sometimes, a nonparty confidante’sidentity will be obvious because a plaintiffwill bring that person to mediation formoral support. In other situations, a plaintiff’slawyer will have learned of the personwhose approval is important to the plain-Mediator ImpartialityMediators don’t come up with ideas andstrategies to help one side or the other, butto help reach an agreement, and defenselawyers know that plaintiffs’ lawyers willagree to choose a particular mediator onlyif they conclude the mediator is truly neutral.This article is meant to provide insight intothe mediation process. It is not necessarilydesigned to give the defense an advantage.Rather, the concepts and suggestions itcontains can be useful to both sides in seekingan outcome at a mediation with whichthe clients will be satisfied.—R.M.W.For The Defense n April 2011 n 21

A LT E R N AT I V E D I S P U T E R E S O L U T I O NExperience teachesthat some plaintiffs will,upon unhurried reflectionand with additional timeto assess the benefits ofending the litigation, directtheir lawyers to acceptpreviously rejected offers.tiff. A wise plaintiff’s counsel would ask hisor her client to bring that nonparty to themediation discussions in those cases.If a nonparty will have an influence ona plaintiff, the lawyer for the plaintiff, thelawyer for the defendant, and the mediatormust work carefully and insightfully withthat nonparty. Experience teaches that if asettlement offer is a genuinely fair one, recommendedby the plaintiff’s lawyer, all thata hesitating plaintiff may need to make adecision to settle is a quiet statement froma trusted nonparty that ending the litigationis “okay.” See Russell M. Ware, Enlistingthe Help of Non- Parties at a Mediationto Achieve a Settlement, The Voice (DRI)Mar. 10, 2010. (discussing the role nonpartiesplay during mediation).Would it help to elevate theimportance of the mediation processin the eyes of the plaintiff?As noted, plaintiffs are often unfamiliarwith mediation and how it works. Creatingan optimistic and cooperative atmospherecan help, as can elevating both the importanceand usefulness of a mediation in themind of a plaintiff.In-person participation by a defendantcan make a positive difference. Somemediators will allow a defendant’s representative,for instance, an insurance companyrepresentative, if the case involvesan insurer, to participate telephonically.However, in- person attendance when feasible,sends an immediate, visual message22 n For The Defense n April 2011to a plaintiff that the defendant views themediation as important, worthy of everyone’sbest efforts.A brief opening statement by a defenseattorney may also help set the right tone inthis regard. Some defense counsel effectivelyuse brief opening remarks to thanka plaintiff for participating in a mediationand to assure the plaintiff that the defendantwill work with the experiencedmediator that the parties have chosen,rather than to contentiously confront theplaintiff with the defendant’s position. Anonconfrontational statement may wellencourage a plaintiff to give mediation achance to work and to listen to the mediator’sdiscussion of settlement proposals afair hearing.The Universally HelpfulFactor—PatienceA few barriers other than money identifiedand discussed above can thwart an objectivelyreasonable settlement: a plaintiff’sunfamiliarity with the process, a plaintiff’sstrong emotions, and a plaintiff’s relianceon a nonparty confidante. You are welladvised to allow an experienced mediatorto spend sufficient time with a plaintiff andthe plaintiff’s lawyer to help work throughand overcome those hurdles.Take for example the case of a plaintiffwho comes to a mediation angry oversuffering a significant loss of the abilityto enjoy life caused by a tortfeasor’s negligence,which disinclines the plaintiff toconsider settling. A terse statement bythe mediator to the plaintiff that anger isirrelevant during settlement discussionswill not move the case toward resolution.A mediator needs to take a more deliberateapproach, and an experienced mediatorwould take all the time necessary todeal sensitively with the anger. Only at theappropriate stage can the discussion movefrom the plaintiff’s emotion about his orher loss to the merits of the competing settlementoffers. Defense lawyers in suchcases would wisely counsel clients to adoptpatience to allow mediators time to workthrough such matters with plaintiffs.To further understand why patience onthe part of a defendant is so important,consider what would happen if a plaintiffcomes to a mediation with unreasonableexpectations on the value of his or her case.While almost all plaintiffs’ lawyers evaluatecases as having a value falling withina reasonable settlement range, even if aplaintiff’s target settlement figure is higherthan the target settlement figure of a defendant,laypersons can sometimes havesettlement expectations so high that theysurprise the defendant, the mediator, andeven the plaintiffs’ own lawyers. In such situations,patience on your part on behalf ofyour client is again a virtue because it maytake considerable time for even an experiencedmediator to help a plaintiff understandreasonable settlement expectationsor likely trial results.For example, a sincere and level-headedplaintiff who has sustained an injury thattypically results in a pretrial settlement ortrial result of, say, $40,000, may announceto a mediator and the plaintiff’s lawyer inthe first confidential caucus somethingsimilar to this: “I don’t think I should takeless than $500,000 for all of the pain andworry I and my family have gone through!”Here’s where patience comes in. If a mediatorimmediately reacts by scornfully callingthe plaintiff’s statement ridiculous orfoolish, or by stating the plaintiff’s opinionson the case’s value are due to ignoranceabout lawsuits and personal injurycases, the plaintiff is unlikely to trust themediator or the entire process. Only if amediator can work carefully, and sometimesslowly, with a plaintiff, and usuallywith the invaluable assistance of the plaintiff’slawyer, so that the plaintiff has a realisticunderstanding of the settlement valueand likely trial outcome of the case, do youhave hope of a settlement. If you allow amediator sufficient time to accomplish thisgoal, patience will pay off for your client.Sometimes your patience can alsoreward you even if it appears that a mediationwill fail. While in some cases a defenseattorney may think it appropriate to takeall offers off the table if a mediation sessionadjourns without a settlement, in manycases a patience- based alternative approachmay be in order.Take cases in which a plaintiff has hadto work through serious anger or has hadto reevaluate initial unreasonable settlementexpectations but is not yet ready atthe end of the mediation session to makethe final decision to settle the case, even inMediation, continued on page 76

Y O U N G L A W Y E R SFrom the ChairThe Young LawyersYearbookBy Laurie K. MillerJoin our talented andhard-working group fornext year’s kaleidoscopeof events and activities,both practice-enrichingand personally inspiring.24 n For The Defense n April 2011■ Laurie K. Miller is an attorney in the Raleigh, North Carolina, office of Ellis & Winters LLP. Her litigation practice involves medicalprofessional liability, nursing home defense, pharmaceutical and medical device litigation, and general commercial litigation.She is admitted to practice in North Carolina and West Virginia. Ms. Miller is the chair of the Young Lawyers Committee, membershipchair for the DRI Women in the Law Committee and a member of the DRI Commercial Litigation Committee’s steeringcommittee.

If you are a young lawyer (less than 10 years in practice)and are reading this article, stop! Take this article straightto your department chair, your senior partner or your managingpartner. The DRI Young Lawyers Committee (YLC)is an energetic, hard-working committee and it is time to spread the word up the chain.There is no better way to describe all that this committee does than to just look back,yearbook style, at what an amazing year 2010 was.JanuaryThe Whisper editors kicked off the first of 11 issues of The Whisper,our electronic newsletter. The Legislative Liaison Subcommittee continuedits efforts reporting on legislative developments across thecountry every week in The Voice. This subcommittee covers legislativeactivities in all 50 states and changes in federal law as well.FebruaryOn February 19–20, 2010, the YLC had itsannual steering committee fly-in meetingin Chicago to plan events for the year.MarchThe Women’s Mentoring Subcommitteeformed a partnership withthe newly formed DRI Womenin the Law Committee to formalizea mentoring program forwomen in DRI. This winter, February3, 2011, the Women in theEvery year, the YLC looks to place over200 young lawyers in leadership positionswithin the committee. As you read this,we will have recently finished our 2011 flyinmeeting!AprilThe YLC published its annualcollection of articles in ForThe Defense. In that issuealone, we published 13 articleswritten by young lawyermembers. In this issue you arereading right now, we are publishingeight more. The YLCworks hard to publish qualityarticles by all members whowant to write.Law Committee and the YoungLawyers Committee hosted theirfirst ever mentoring lunch duringthe Sharing Success Seminarin Miami Beach, Florida, to bringtogether potential mentors andmentees, in person.On March 24, 2010, 11 YLCmembers were sworn into practice before the Supreme Court of the UnitedStates. On March 23, 2011, 12 more DRI young lawyers were sworn into thehigh court. Stay tuned—we’re working on getting dates for another swearingin ceremony in 2012!MayOn May 6, 2010, the YLC teamed up with theDRI Alternative Dispute Resolution Committeeand hosted a webcast designed to offer tips andtricks for a successful mediation.On May 24, 2010, the YLC began tracking andposting updates from the Supreme Court of theUnited States. Our initial tracking efforts wereheaded up by Lynn Darty of Christian & Small.She received an award for her efforts at the DRI Annual Meeting.For The Defense n April 2011 n 25

Y O U N G L A W Y E R SJuneOn June 16, 2010, the YLC participated in a day of service with Miami CommunityPartnership for the Homeless inMiami Beach as part of the annualYoung Lawyers Seminar.We had nearly 230 attendees at ourseminar and all enjoyed outstandingCLE, networkingand somuch more. Thisyear’s seminar isJune 9–10, 2011,in Austin, Texas.Online registrationis now openand you can alsoview the brochureonline.S p o n s o r s h i poppor t u nit iesare still available. Contact me if youare interested. This year we are proudto host in-house counsel from Xerox,Temple-Inland, the PGA Tour, Adidas America, Starbury Corporation, Caterpillarand more. (To that senior or managing partner: Who are you sending to the seminarthis year?)OctoberThe YLC hosted several activities in connectionwith the 2010 DRI Annual Meetingincluding the YLC dinner, a steeringcommittee luncheon, the YLC committeebusiness meeting and a networkingreception. The YLC also participated inthe service project at the Ronald McDonaldHouse of San Diego. We made up a quarterof the attendees! Once again this year,the YLC will have a dinner, steering committeelunch, business meeting, networkingreception and will assist with the publicservice project at the 2011 Annual MeetingOctober 26–30, 2011, in Washington, D.C.JulyThe seminar planning subcommitteekicked off theplanning of the 2011 YoungLawyers Seminar. The ExecutiveCommittee of the YLCmet to choose the new slate ofsteering committee membersfor 2010–2011. You can findthe current steering committee list at www.dri.orgunder Young Lawyers Committee. If you knowsomeone who would be a great fit on our steeringcommittee, please let us know! We will select the2011–2012 steering committee this July.SeptemberYLC authors submittedchapters for editingfor the upcomingDaubert Compendium,which will bereleased very soonas part of the DRI’sDefense Librar ySeries. We were ableto publish nearly twodozen authors. Staytuned for the releaseof our newest work!DecemberT he Y LC hostedanother fabulous webcastdesigned to offertips and tricks forthe young lawyerwhen communicatingwith a client duringcritical times inlitigation. We arecurrently lookingfor topic and speaker suggestionsfor our next webcast. If you have any,please let us know.The YLC Is a Working CommitteeWe work hard and we play hard. We refer cases to each other. Wedevelop life-long friendships and so much more. We are the drivingforce behind many new DRI initiatives and activities. We helpyoung lawyers get published, we help young lawyers find speakingopportunities, we help them develop their career, we help themlearn and refine their litigation skills and most of all we help connectyoung lawyers from all over the country with a business referralnetwork that they can nurture and develop for years to come.In short, we help them network to develop and grow their veryown book of business.To the senior partners and managing partners reading this article—youhave made a substantial investment in your associates.You have made an investment in your DRI membership. Isn’t ittime to help your young lawyers get involved in the YLC and makethe most out of both investments? Young lawyers in practice fiveyears or less can join DRI for only $130 and they will get a certificateto attend any DRI seminar for free (perhaps the Young LawyersSeminar this summer). Young lawyers in practice 5–10 yearscan join for $235. Send your young lawyers to us. In fact, feel freeto e-mail me directly (laurie.miller@ elliswinters.com) and I will get allof your associates signed up and we’ll do everything we can to getthem involved. Then watch your upcoming FTD magazines—youmight just see their pictures too.26 n For The Defense n April 2011

DRI Young Lawyer MembershipDRI membership and active Young Lawyer Committee participationis the key to growing your practice. These efforts combined put youin a unique position to build the relationships with peers needed togrow your network, create referrals and drive true business results.Get Involved!The Young Lawyers Committeeis dedicated to providing itsmembers with opportunities tonetwork and get involved. Withnumerous active subcommitteesand liaisons to every DRIsubstantive committee, thereis an opportunity for everyone.Committee members also havenumerous writing and speakingopportunities and are published regularly in For The Defense, DRI’smonthly magazine, in The Whisper, the committee’s monthlye-newsletter, and in various DRI compendiums.Why Should You Become a DRI Young Lawyer?• Extensive referral network and career building opportunities• Direct and frequent interaction with leading civil defense attorneysand in-house counsel• Access to a variety of substantive law committees which providenumerous networking opportunities and forums to gain expertise ina given area of practice• Gain broad exposure through multiple publishing and speakingopportunities• Access to world-class education covering several areas of the law,including the annual Young Lawyers Seminar• Exclusive access to DRI’s Expert Witness Database with informationon over 65,000 plaintiff and defense experts•••••Engage | Connect | Grow | Learn | The DRI CommunitySign up today at the discounted DRI Young Lawyer membership rate*of $130 which includes a certificate for free registration to any DRISeminar or Annual Meeting.*Those eligible for the Young Lawyer membershiprate have been admitted to the bar five years orless. The Young Lawyers Committee is open toall lawyers in practice ten years or less. For moreinformation, call the DRI Membership Departmentat 312.795.1101 or join online at www.dri.org.“Creating a network to drive businessresults is important to any attorney,but is very important to a youngattorney. I became involved early inmy career and can honestly say that Iowe much of my professional successto the relationships and connectionsI made as a member of DRI’s YoungLawyer Committee.”– John F. Kuppens, Nelson MullinsRiley & Scarborough LLP“My DRI membership is the mostvaluable membership I have. Thenetworking and CLE are second tonone and the impact my membershiphas had on my practice is trulypriceless. The price of membershipand a couple of seminars a year is faroutweighed by all the other benefitsthat can be derived.”– Laurie K. Miller, Ellis & Winters LLP“My membership has provided mewith mentors, taught me to be a publicspeaker, published writer, lawyer,litigator and leader. DRI is where I metmy clients, colleagues, outside counseland my friends.”– Laura E. Proctor, LP BuildingProducts“Participation as a DRI young lawyeris the gateway to professional andpersonal success. DRI friendshipsare deep, longstanding and result infinancial rewards as case referrals thatare confidently shared among friendswho have been trained by the nation’sbest and brightest.”– Mark A. Solheim, Larson King LLP

Yo u n g L a w y e r M e m b e r s h i p A p p l i c a t i o nY L-201 1 - 02Individual membership in DRI:A subscription to For The Defense is included in the annual dues for ALL price categories.Young Lawyer—$130 USD/year(admitted to the Bar for five years or less).Young Lawyers receive a certificate for FREE attendance at a future DRI seminar!It is valid for as long as you are a member of the Young Lawyers Committee.MaleNameFirmAddressFemaleTitleCity State/Province Zip/Post Code CountryTelephone Fax EmailFirst time admitted to the Bar in in .state/province month/day/year bar numberIn-house counsel (as defined below*)I am a member of a state or local defense organization. Yes No Name of organizationPrimary area of practiceNumber of attorneys in your firm 1–2 3–10 11–20 21–50 51–99 100+O p t i O n a lDRI is committed to the principle of diversityin its membership and leadership. Accordingly,applicants are invited to indicate which one ofthe following may best describe them:African American Asian American HispanicNative American Caucasian OtherDate of birth month/day/yearReferred by Name of referring DRI Member attorney (if applicable)To the extent that I engage in personal injury litigation, I DO NOT, for the most part, representplaintiffs. I have read the above and hereby make application for individual membership.SignatureAll applications must be signed and dated.DatePlease note: Individual membershipis not transferable. If you have anyquestions, contact Customer Serviceat 312.795.1101.My check for $130 (USD) is enclosed.Please bill me. (Your membership will be inactive until DRI receives payment.)Please charge my VISA MasterCard American Express.Card #Signature as it appears on cardExp. Date* In-house counsel is defined as a licensed attorney who is employed exclusively by a corporate or other privatesector organization, for the purpose of providing legal representation and counsel only to that corporation, itsaffiliates and subsidiaries.■ E N G A G E ■ C O N N E C T ■ G R O W ■ L E A R N ■Please remit payment to:DRI72225 Eagle Way | Chicago, IL 60678-7252P: 312.795.1101 | F: 312.795.0747E: membership@dri.org | www.dri.orgThe DRI Community

Y O U N G L A W Y E R SMission ImpossibleBy Lauren Fajoni BartlettA Practitioner’sGuide to Decodingthe MMSEAA primary payer mustconsider Medicare’sinterests when resolvinga claim, shift as muchliability as possibleto third parties, andwhen in doubt, report asettlement to the CMS.By now most of us are aware that the Medicare, Medicaidand SCHIP Extension Act (MMSEA) and Medicare SecondaryPayer (MSP) statute require companies to “takeMedicare’s interests into consideration” when resolvingpersonal injury cases, but we still have a lotof questions about the best way to go aboutdoing this. The difficulty with interpretingthese statutes in no small part is dueto the ambiguity in the provisions themselves,which provide very little guidancewhen it comes to resolving liability disputesinvolving Medicare issues. Indeed,even the courts have struggled with navigatingthis piece of legislation, calling itconvoluted, complex, and “a model of unclarity.”See Estate of Urso v. Thompson, 309F. Supp. 2d 253, 259 (D. Conn. 2004); BeverlyCmty. Hosp. Ass’n v. Belshe, 132 F.3d1259 (9th Cir. 1997) (stating that “clarity isrecognized as totally absent from the Medicareand Medicaid statutes.”).Decoding the MMSEA: Definingthe Duties and Obligationsof a Primary PayerIn general, the purpose of the MMSEAand MSP is to ensure that Medicare doesnot pay for past, present or future medicalexpenses stemming from an accidentif someone else may be liable for the harmand should cover the cost of treatment. Inthese kinds of situations, Medicare or Medicaidbecomes a secondary payer and theparty responsible for the injury assumesprimary responsibility for the claimant’smedical care. These primary payers includeworkers’ compensation, automobile, liability,no-fault and/or self- insurance policyunderwriters, as well as anyone elsewho pays money to an injured Medicarebeneficiary regardless of an adjudication oradmission of fault. See 42 U.S.C. §1395y; 42C.F.R. §411.20, et seq. These primary payersinclude but are not necessarily limitedto Responsible Reporting Entities (RREs)as defined by the MMSEA.As a general rule, the MSP statuterequires a primary payer to put the Centerfor Medicare Services (CMS) on noticeof personal injury claims involving currentMedicare beneficiaries within a reasonabletime of receiving the complaint if it reason-■ Lauren Fajoni Bartlett is a partner with the law firm of Leake & Andersson LLP in New Orleans, Louisiana. Her areas of practiceinclude drug and medical device litigation, general product liability, commercial litigation, insurance law, construction law,and appellate advocacy. She currently serves on the steering committees for a number of DRI committees, including ProductLiability, Insurance Law, Young Lawyers, and Technology. She received her juris doctor in 2002, and she is licensed to practicelaw in all federal and state courts in Louisiana and Florida.For The Defense n April 2011 n 29

Y O U N G L A W Y E R Sably expects to cover at least a portion ofthe claimant’s medical bills. The MMSEArequires RREs to report all payment obligations—settlement,judgment, award, orpayment—it makes to a current Medicarebeneficiary if the payment has the effectof releasing the primary payer from liabilityfor past, present or future medicalexpenses. Failing to do so could result inIf Medicare does coveraccident- related treatment,those payments aremerely “conditional” andsubject to reimbursementby the primary payer.fines and penalties of as much as $1,000per claim per day that the payment goesunreported. See 42 U.S.C. §1395y; 42 C.F.R.§411.20, et seq. Medicare then assumes secondarypayer status and may deny coveragefor future accident- related medicalcare that otherwise should be covered bythe primary payer. If Medicare does coveraccident- related treatment, those paymentsare merely “conditional” and subject toreimbursement by the primary payer.Rarely is it self- evident from the faceof a petition that a claimant is a Medicarebeneficiary. Usually a reviewing attorneycan make a preliminary determinationabout Medicare coverage by reviewing theclaim file to determine whether the claimantis over age 65 or in workers’ compensationcases whether the claimant maybecome eligible within the next 30 months;however, other situations where Medicareissues could be triggered are not as clear.For example, other potential claimantswho may be Medicare eligible include thosewith a pending application for social securitydisability benefits, those who haveapplied for but have been denied socialsecurity disability benefits and are appealingthe decision, anyone with kidney diseaseand anyone with end-stage renaldisease. Since this kind of information30 n For The Defense n April 2011generally will not be found in claim file orincluded in a petition, clients rely on theirattorneys to ask the right questions duringdiscovery to evaluate whether a claim isreportable to CMS.When in Doubt Ask: RevampingDiscovery to Accommodate YourClient’s Changing NeedsWhen a new file comes into the office,attorneys routinely look over the file materials,make a preliminary liability assessmentand evaluate the potential exposureon a case if the file has enough informationto do so. Historically, defense counselhave left the responsibility of determiningwhether an obligation to report exists toplaintiffs’ attorneys in large part becausedefendants deny liability; however, withthe MMSEA and MSP now in play, clientsnow depend on us to figure out what theirreporting obligations are. Since claimantsroutinely plead vague, ambiguous, andsomewhat nondescript injuries, such aspast, present and future physical and emotionalpain and suffering, past and futuremedical care, and permanent or ongoingphysical injuries, you will rarely haveenough information available at the initialpleadings phase to evaluate the issue.If your client has the claimant’s socialsecurity number or health insurance claimnumber (HICN), first initial, last name,gender and date of birth, it can check theclaimant’s Medicare status by running aquery on the CMS Section 111 Coordinationof Benefits (COB) mandatory reportingwebsite at https://www.section111.cms.hhs.gov/MRA. This is the same website that RREsuse for online reporting, and it does requirea login and password to access the database.Many RREs run a query every monthfor all their open claims. If your client doesnot, then you should ask the client to runa query before settling a claim to determinewhether the claimant is a currentMedicare beneficiary. Note that the databaseonly provides information about currentMedicare beneficiaries, but it is not adefinitive source in all cases. For example,claimants who may be Medicare eligiblealthough they have not yet applied for benefitswill not be included in the database.As a result, clients look to us to conducttargeted discovery and make recommendationsregarding Medicare compliance.You, your client, and an insurer, if applicable,will need the following information toevaluate each new claim for Medicare complianceissues:• The plaintiff’s full, legal name and anynames by which he or she has beenknown in the past, as well as the plaintiff’s address, social security number,date of birth, and date of death, ifapplicable;• Whether the plaintiff is a current Medicarebeneficiary, and if so, his or herhealth insurance claim number (HICN)and the date that eligibility began;• Whether the plaintiff has applied foror is covered by social security disabilityinsurance, and if so, the date ofapplication, the status of the claim, thedate coverage was denied, if applicable,the reason for the denial, whether thedenial was appealed, the status of theappeal and the date that it was filed, andwhether the denial of benefits has beenreversed;• If the government awarded social securitydisability insurance benefits, thedate of the award, the beginning date ofcoverage, the period for which benefitswere awarded, the injury claimed thatresulted in the award, and the date theinjury occurred for which the benefitswere awarded;• If the plaintiff is deceased, whether anyaccident- related medical bills were submittedto or paid by Medicare;• Specific information about each andevery accident- related physical injury,including whether the plaintiff continuesto undergo treatment and any finaldiagnoses or prognoses for each injury;• Whether the plaintiff suffers from aform of kidney disease, and if so, thetype of disease, date of diagnosis, currenttreatment plan for the disease, andprognosis; and• Whether the plaintiff has end-stagerenal disease, and if so, the date of diagnosis,current treatment plan for thedisease, prognosis, and the status of allMedicare applications as a result of thediagnosis.With this information in hand, the nextstep is to determine whether your clienthas an obligation to report payments toMedicare. Section 11.10.2 of the MMSEASecondary Payer User Guide provides a

wealth of information about claims that doand do not require reporting. The version3.1 of the guide (July 12, 2010), is availableat https://www.cms.gov/MandatoryInsRep/Downloads/GHPUserGuideV3.1.pdf.For example, theguide explainsInformation is to be reported for claimsrelated to liability insurance (includingself- insurance), no-fault insurance,and workers’ compensation where theinjured party is (or was) a Medicare beneficiaryand medicals are claimed and/or released or the settlement, judgment,award, or other payment has the effect ofreleasing medicals.…Where there is a settlement, judgment,award, or other payment with no establishment/acceptanceof responsibilityfor ongoing medicals, the RRE is notrequired to report if the individual is nota Medicare beneficiary.…RREs must report settlements, judgments,awards, or other paymentsregardless of whether or not there is anadmission or determination of liability.…The RRE does not make a determinationof what portion of any settlement, judgment,award, or other payment is formedicals and what portion is not. CMSis not bound by any allocation made bythe parties even where the court hasapproved such an allocation.…The geographic location of the incident,illness, or injury (i.e., injuries sustainedoutside the United States) is notdeterminative of the RRE’s reportingresponsibility.CMS, MMSEA Section 111 Medicare SecondaryPayer Mandatory Reporting, LiabilityInsurance (Including Self- Insurance),No-Fault Insurance, and Workers’ CompensationUser Guide Version 3.1 (July12,2010), at 92, 94, 95, 96.If you discover that the claimant is currentlyon Medicare, Congress has spoken—theseclaims must be reported. But,the mere fact that the Medicare reportingrequirements are not triggered when thecase is resolved does not necessarily meanthat the primary payer should not considernotifying CMS of the claim anyway.What do you do when you are faced witha situation where the mandatory reportingguidelines do not apply, but you haveevery reason to believe that the claimantwill undergo future medical treatment thatcould be covered by Medicare? And, doyou really need to worry about Medicare’sinterests after the case is over?The Statute of Limitationson Claims Against PrimaryPayers Remains a MysteryIf you think that your duty to protect Medicare’sinterests ends when the case is over,think again. While the MMSEA does notcontain a specific statute of limitationsfor Medicare’s right to recover conditionalpayments, the government recently tookthe position that the Federal Claims CollectionAct (FCCA) governs the time thegovernment has to pursue an MMSEAenforcement action. See 28 U.S.C. §2415;United States v. Stricker, 09-2423 (N.D. Ala.Sept. 30, 2010) (Bowdre, K.) (order grantingcertain defendants’ motions to dismiss).The FCCA contains two differentstatutes of limitation: a three-year statutefor tort claims and a six-year statute forclaims arising from a contractual or quasicontractualagreement. In Stricker, theUnited States sued the corporate defendantsand the plaintiffs’ attorneys who wereinvolved in a class- action toxic tort settlementto recover Medicare payments madeon behalf of the individual plaintiffs whoparticipated in the settlement. Both thecorporate defendants and the plaintiffs’attorneys filed motions to dismiss on thebasis that the government did not file suitwithin the applicable statute of limitations.The corporate defendants argued that thethree-year statute of limitations controlledbecause in the original class action theMedicare beneficiaries asserted tort claims,and from that grounding in tort, the governmentsought reimbursement from thecorporate defendants. Notably, 42 U.S.C.§1395y(b)(2)(B)(vi) supports the corporatedefendants’ position, stating that the governmentmay seek to recover conditionalpayments if it requests payment from theRRE within the three-year period beginningon the date on which the item orservice was furnished, although it appearsthat this period is tolled until the governmentlearns that the payment should havebeen made by the primary payer instead.In contrast, the government took theposition that the six-year statute controlledbased on a contract- at- law theory becauseits right to recover arose from statute, makingit tantamount to a quasi- contract. Thegovernment also cited “overwhelmingauthority” holding that courts consistentlyhave applied the six-year statute of limitationsto other government suits involvingIt is imperative thatattorneys take everyprecaution at the time ofsettlement to minimize theirclients’ risk of exposurefor future accident- relatedmedical payments.cost- recovery statutes, although those casesdid not involve the MSP statute (MSPA).The court, however, easily distinguishedthose cases, pointing out that “the jurisdictionaltentacles of the MSPA reach out toremote third-party payers whose MSPA liabilityarises solely on the basis of independenttort liability or some other situationnot involving an intentional, preexistingcontract with the Government or Medicarebeneficiaries.” Id. at 14. The court thus concludedthat because the corporate defendantsand the settling Medicare beneficiariesdid not have a contractual relationship, thegovernment’s claims were governed by thethree-year statute of limitations.On the other hand, the court found thatthe six-year statutory period applied to thegovernment’s claims against the attorneyswho represented the Medicare beneficiariesin the original class action because theyhad a contractual relationship with theclaimants. Specifically, the fee agreementbetween the attorneys and the Medicarebeneficiaries in the class action created acontractual obligation that extended to thegovernment under the MSPA. Accordingly,the government’s claim against the plaintiffs’attorneys was more akin to a contractFor The Defense n April 2011 n 31

Y O U N G L A W Y E R Sclaim than a tort claim so it was subject tothe six-year statute of limitations.The court acknowledged that “whilecourts have not developed any bright linetest or rote rule to govern interpretationof these sections, the… analysis should beguided by ‘logic and reason.’” Id. at 11 (citingCockerham v. Garvin, 768 F.2d 784 (6thCir. 1985)). The issue of prescription is farIf an MSA is advisable,a primary payer shouldconsider retaining theservices of a Medicarecompliance companyto evaluate the caseand project the amountof the set aside.from settled, but the principles of logic andreason employed by the court in Strickersupport the conclusion that the government’sclaim for reimbursement againsta third-party tortfeasor is governed by athree-year statute of limitations. Of course,since the FCCA does not contain a statuteof repose, the statute of limitations wouldtoll until CMS discovers or reasonablyshould have discovered that a claimant’streatment costs should have been paid bysome other primary payer or RRE.Imagine that a relatively healthy58-year-old man gets into an automobileaccident and sustains major injuries tohis lumbar spine and right knee. Conservativecare does not afford adequate relieffor either injury, and the claimant’s treatingphysicians subsequently recommendfuture surgery for both. A year and a halflater when the case finally goes to mediationor trial, the claimant still has notundergone surgery, although he says thathe may pursue surgery in a few years if thecondition does not improve. The claimantis not on Medicare when the case goes tomediation or trial, and you have no way of32 n For The Defense n April 2011knowing whether or when he will undergosurgery, although it certainly could be afterhe becomes eligible for Medicare. If you donot take steps to notify Medicare that anyfuture accident related medical care shouldbe denied, your client could be on the hookfor future medical expenses that may notbe incurred for many years.Next consider a 25-year-old motorcyclistwho has to undergo a total knee replacementbecause a defective tire on his motorcycleblew and caused him to skid 75 yardsbefore slamming into a tree and shatteringhis knee? The prosthetic knee joint used torepair his leg has a useful life of about 20years, and his treating physician estimatesthat he will have to undergo at least twoand possibly three more knee- replacementsurgeries during his life. In this scenario,the claimant probably would not becomeeligible for Medicare for another 40 years,but you have ample evidence to suggest thathe will have to undergo at least one futuresurgery that Medicare may cover. The statuteof limitations on Medicare’s ability topursue reimbursement begins to run on thedate of treatment not the date of settlement,which means that your client could be payingfor medical care rendered decades later.For this reason, it is imperative that attorneystake every precaution at the time ofsettlement to minimize their clients’ risk ofexposure for future accident- related medicalpayments.Reporting Nonreportable ClaimsAt present, CMS does not have any proceduresin place that permit primary payersor RREs to report settlements involvingMedicare- ineligible claimants voluntarilyeven though Medicare may have a vestedinterest in maintaining this information.In fact, if the primary payers or RRE triesto submit a claim on non- Medicare individuals,the CMS system will return anerror message. In these kinds of situations,your best bet is to recommend that your clientreport the claim, describe the injuriesand submit settlement information to theMedicare Secondary Payer Recovery Contractor(MSPRC). (See http://www.msprc.info/.)This is especially true in cases that involveMedicare Set Asides (MSAs).The MSPRC is responsible for postsettlementmedical set-aside monitoring,also discussed below, and by providingthe MSPRC with settlement informationthe primary payer can show that it hasmade every effort to notify Medicare ofthe potential for future medical care sothat it does not issue a conditional paymentfor which the primary payer maybecome liable down the road. This does noteliminate the risk of future liability altogether,although it would shift the burdento Medicare to prove that it is entitled toreimbursement. Further, if Medicare doesmake a conditional payment after receivingnotice of its secondary payer status throughthe MSPRC, the primary payer now has awaiver and estoppel defense because Medicareshould have denied the claim.Factors to consider when evaluatingwhether to recommend voluntarily reportinga claim through the MSPRC include thefollowing: (1) the claimant’s age; (2) thetype of injury involved; (3) the nature andextent of the claimant’s future medicalneeds; (4) the likelihood that the claimant’sfuture medical care will continue oncehe or she becomes eligible for Medicare;and (5) the total estimated cost of futuremedical costs that Medicare may cover.Since just about everyone will become eligiblefor Medicare at some point, practitionersshould discuss the issue of voluntaryreporting in any case that involves an ongoingresponsibility for medicals (ORM)regardless of the claimant’s age at the timeof settlement.The Pros and Cons of MSAsAs the law now stands, there are no specificprovisions that address how to handlecases where Medicare’s interests are notimmediately at issue, although CMS advisoryopinions and other sources all indicatethat primary payers should always considerMedicare’s interests when perfecting a settlementin cases such as these. See Finke v.Hunter’s View, Ltd., 2009 U.S. Dist. Lexis126830 (D. Minn. Aug. 25, 2009). But, whatdoes it mean to “consider Medicare’s interests”when resolving a case? In addition tonotifying Medicare of its potential secondarypayer status as just discussed, anotheroption is the MSA. An MSA is the amountof money reasonably projected to coverthe cost of future accident- related medicalcare that may occur once a claimantbecomes eligible for Medicare. RREs arerequired to obtain approval from the CMS

for an MSA under certain circumstances,although in the vast majority of circumstancesan MSA is optional rather thanmandatory and generally involves a compromisebetween parties. Workers’ compensationcases require mandatory MSAsthat are approved by CMS if (1) the claimantis already on Medicare and the settlementamount exceeds $25,000; or (2) theclaimant has a reasonable expectation ofbecoming Medicare eligible within the next30 months, and the settlement amountexceeds $250,000. There are no such similarprovisions for tort claims, and in factthe law does not contain any provision that“requires” a primary payer or RRE to setaside any funds for future medical care inthe liability setting; however, including anMSA is a good way to show that the partieshave considered and taken steps to protectMedicare’s interests.Since an MSA scheme is not mandatedby law in non- workers’ compensation tortcase, there are no firm guidelines on howto structure these kinds of agreements inthe appropriate case. MSAs are not alwayseasy to structure because more often thannot it requires both parties to make difficultdecisions before reaching a compromiseagreement. Issues that partiesneed to address during settlement negotiationsinclude (1) whether a claimant’sneed for future medical care will extendbeyond the age of 65; (2) the amount ofthose medical expenses; (3) who will serveas the MSA trustee; and (4) what happensto the money set aside if the claimant doesnot undergo the medical treatment afterbecoming Medicare eligible. These can bevery difficult issues to resolve because aclaimant will want to maximize the settlementamount, while the primary payer willwant to protect itself from future liabilityin the event that Medicare makes a conditionalpayment in the future. Since Medicareis not obligated to honor the terms ofany unapproved settlement agreement, aprimary payer could end up paying twicefor a claimant’s future medical care—onceto the claimant at the time of settlement,and a second time to Medicare in the eventof a conditional payment.While a primary payer cannot avoidthe risk of future liability altogether, thereare a number of ways to minimize the riskor shift liability to a third party. For example,companies such as Gould & Lamband MEDVAL, L.L.C. offer a wide array ofMedicare compliance services, includingpre- settlement case evaluations, MSA projections,trust- account administration, andIs yourcoveragesomehowless than youexpected?Take a closerlook at Catlin.fund distribution. If an MSA is advisable, aprimary payer should consider retaining theservices of a Medicare compliance companyto evaluate the case and project the amountof the set aside. This would shift the riskAs a lawyer, you understand your clients’ needs and you work diligently on theirbehalf. You also understand that your work carries serious risks that could affectyou both personally and professionally.In response to your needs Willis Programs and Catlin are offering LawyerGuard,one of the broadest lawyers’ professional liability policy forms on the market today.This program evolved from over 20 years of experience with defense attorneys andis the only lawyers’ professional liability program offered to DRI members. Defensefirms, in particular, are eligible for special coverage enhancements and price creditsthrough this program.With LawyerGuard you can have the most comprehensive coverage available.Why take the risk with any other insurance policy?LawyerGuard Your Best DefenseInsurance products offered by Catlin Insurance Company, Inc.Have your broker request a quote from LawyerGuard today!www.lawyerguard.comFor The Defense n April 2011 n 33

Y O U N G L A W Y E R SWhile we can lookto the statutes andcases interpreting theworkers’ compensationrules for guidance, theydo not always apply inthe liability setting.of future liability to the third party in theevent that the MSA does not cover the costof the claimant’s future medical expenses.Depending on the projected cost offuture medical care and the likelihoodthat a claimant will undergo treatmentafter he becomes a Medicare beneficiary,a primary payer also may want to depositthe MSA funds with a third-party administrator.Of course, the claimant may objectbecause it would mean taking less moneyat the time of settlement, and the partieswill have to determine what happens tothe money in the event that the claimantdoes not undergo future treatment. Doesthe money revert back to the primary payerif the claimant does not use the money forits intended purpose? These are issues thatparties will have to discuss as part of a disputeresolution process.A primary payer with the financial abilityto do so may choose to self- insure againstthese kinds of future claims. Remember—for Medicare to seek recourse against asettling defendant for future treatment, aclaimant must undergo treatment after heor she becomes eligible for Medicare. Thesetypes of cases are relatively few and farbetween, and the cost of the future medicalcare is usually fairly easy to estimate, somany primary payers or RREs may decidethat a self- insurance plan is a practical andpreferable solution. Alternatively, insurancecompanies have started issuing Medicarereporting insurance policies, whichprovide additional coverage in the eventthat a primary payer becomes the target ofan MMSEA or an MSP investigation.34 n For The Defense n April 2011Setting It in StoneSince the parties cannot by contract abrogateCMS’ ability to pursue reimbursementfor conditional payments and CMS canassume secondary payer status for up tothree years after it tenders payment, thereis no way for a primary payer to eliminatethe risk of having to make future paymentsaltogether. The most a primary payer cando is minimize the risk by show that it hasconsidered and taken reasonable steps toprotect Medicare’s interests when procuringa settlement, then shift the financialresponsibility for future medical care to theclaimant through contractual (settlementdocuments) or judicial processes (i.e., courtorder) or a third party MSA administrator.If the claimant is not treating and has noreasonable expectation that any conceivablefuture medical care would be coveredby Medicare, all indications are that CMSwould consider any future treatment to bea preexisting condition. For example, theMedicare questionnaire for beneficiaries65 or over only asks the applicant to disclosewhether he or she is actively treatingfor any injuries or illnesses which anotherparty could be held responsible or could becovered under no-fault, automobile or liabilityinsurance. The form does not ask theapplicant to disclose any information aboutprior accidents for which there is no activeor ongoing treatment. Similarly, the lawdoes not impose any obligation to reportinjuries or settlements where the partiesdo not reasonably foresee the need for anyfuture medical care that may be coveredby Medicare. Under these circumstanceswhere the possibility of future accidentrelated medical care is remote and not reasonablyforeseeable, such treatment wouldbe tantamount to treatment for a “preexistingcondition” which would be legitimatelycovered by Medicare as the primary payerbecause Medicare does not deny coveragefor preexisting conditions.In order to establish that the parties havetaken reasonable steps to protect Medicare’sinterests especially in cases wherefuture medical care could be substantial,one possibility is to enter the settlementinto the record, consider calling witnessesto testify regarding the amount of futurecare that is expected and/or who will coverthe cost of that care, and request that thecourt enter an order with reasons indicatingthat it has reviewed the settlementagreement and determined that Medicare’sinterests have been adequately consideredand protected.The court in Finke v. Hunter’s View, Ltd.,2009 U.S. Dist. LEXIS 126830 (D. Minn.08/25/09), faced circumstances similar tothe hypothetical cases discussed earlierwhere the plaintiff sustained permanentinjuries but had private insurance to coverany foreseeable future medical care. Inthat case, the court entered an order whichwould serve as a good model in these kindsof cases, finding as follows:1. The parties shall and have reasonablyconsidered and protected Medicare’sinterest in this matter;2. Medicare is a secondary payer under theMedicare secondary payer program;3. The plaintiff’s reasonably anticipatedfuture medical care expenses will bereimbursed by and governed by theGrand Itasca policy which will continueto be primary over Medicare;4. The plaintiff is obligated to reimburseMedicare for all conditional paymentsmade by Medicare;5. To the extent that the parties are obligatedto reasonably consider the interestof Medicare in reaching the settlement,the court concludes that the parties havereasonably considered and protectedthose interests;6. The findings of fact support the conclusionthat it is not reasonably likely thatplaintiff will require Medicare benefitsin the reasonably foreseeable future; and7. The court concludes therefore that thatthere is no reason for the parties to setaside any certain amount for futureMedicare claims.In addition or in the alternative (dependingon the amount of future care that maybe involved), the settlement documentsneed to contain specific terms about aMSA to fully protect the primary payer.At a minimum, the release should includelanguage about (1) the specific amount tobe set aside; (2) who will be responsiblefor managing the set aside; and (3) whatwill happen to an MSA in the event that aclaimant does not undergo the future treatmentafter becoming Medicare eligible.The RRE or primary payer is not requiredto set up a formal trust for an MSA, and inMMSEA, continued on page 74

Y O U N G L A W Y E R SMedical Device CasesBy Sara Deskins Cooperand Kathryn AmsThe Intersectionof Preemption,Pleading, and Rule 11By understandingthe inherent difficultyin pleading a parallelclaim with sufficientspecificity to meetthe requirements of“Twiqbal,” defense counselwill recognize improperattempts to circumventthis requirement byplaintiffs’ counsel.Attorneys defending medical device litigation are familiarboth with asserting a federal preemption defense andmoving to dismiss complaints under the heightened pleadingrequirements announced by the Supreme Court inTwombly, 550 U.S. 544 (2007), and Iqbal,129 S. Ct. 1937 (2009), which will bereferred to in this article collectively as“Twiqbal.” Recently, a new wrinkle hasdeveloped in the preemption and pleadinglandscape that all medical device attorneysshould utilize: applying Federal Rule ofCivil Procedure 11 (“Rule 11”) early in litigationto ferret out false allegations. Thisarticle describes the intersection of preemption,pleading requirements, and Rule11 to provide helpful tips for defense attorneysto effectively implement this strategy.Preemption and TwiqbalThe Supreme Court has issued severalopinions that provide a great deal of protectionto manufacturers of medical devices.See Riegel v. Medtronic, Inc., 552 U.S. 312(2008); see also Buckman Co. v. Plaintiffs’Legal Comm., 531 U.S. 341 (2001). Riegelheld that the Medical Device Amendments(MDA) to the Federal Food, Drug, and CosmeticAct (FDCA) bar “common- law claimschallenging the safety and effectiveness of amedical device given Premarket Approvalby the [FDA].” Id. at 315. The only claimsinvolving premarket- approved medicaldevices that the MDA does not preempt areso-called “parallel claims” alleging a violationof the FDCA and independent statelaw. Id. at 330. At the same time, the heightenedpleading requirements announced inAshcroft v. Iqbal, 129 S. Ct. 1937 (2009) andBell Atlantic Corp. v. Twombly, 550 U.S. 544(2007) have provided a very effective tool todefense attorneys seeking early dismissalof clearly preempted claims against medicaldevice manufacturers.The Perils of Pleading ParallelState Law ClaimsBecause parallel claims are difficult toplead in light of the heightened pleadingstandards described in Twiqbal, medicaldevice manufacturers have enjoyed much■ Sara Deskins Cooper and Kathryn Ams are associates in Greenberg Traurig’s Products Liability & MassTorts and Pharmaceutical, Medical Device & Health Care Litigation Groups in Atlanta. Ms. Cooper and Ms.Ams have experience representing and defending pharmaceutical and medical device clients in federal andstate courts, including multi- district litigation and consolidated state court litigation. Ms. Cooper and Ms.Ams also have experience with mass torts, consumer class actions and medical malpractice claims. In addition,Ms. Cooper is an active member in DRI’s Young Lawyers Publications Subcommittee.For The Defense n April 2011 n 35

Y O U N G L A W Y E R Ssuccess when moving for early dismissalof product liability claims based on Riegel,552 U.S. 312 (2008). Applying Twombly,Iqbal held that, to survive a motion to dismiss,“a complaint must contain sufficientfactual matter, accepted as true, to ‘state aclaim to relief that is plausible on its face.’”Iqbal, 129 S. Ct. at 1949 (citing Twombly,550 U.S. at 570). Some plaintiffs’ attorneysSome plaintiffs’attorneys have respondedto Twiqbal by going so far asto make up the facts neededto plead a parallel claim thatcould avoid preemption.have responded to this heightened pleadingrequirement by simply broadeningand generalizing the factual allegationspleaded in complaints. Plaintiffs’ attorneysoften allege that defendants violatedapplicable federal statutes, regulations, andordinances to satisfy Twiqbal and assertparallel state law claims.Most courts, however, are not convincedsuch allegations meet the federal pleadingstandard. In fact, the Eighth CircuitCourt of Appeals recently affirmed a districtcourt’s dismissal of a multidistrict litigationmaster consolidated complaint onpreemption grounds because the plaintiffs“failed to identify any specific federalrequirement… that form[ed] the basisfor an unpreempted parallel claim.” In reMedtronic, Inc., Sprint Fidelis Leads Prods.Liab. Litig., 623 F.3d 1200, 1206 (8th Cir.2010); but see Bausch v. Stryker Corp., No.09-3434, 2010 WL 5186062 (7th Cir. Dec.23, 2010).36 n For The Defense n April 2011What Does Rule 11 Haveto Do with Anything?The heightened pleading standardsfound in Twiqbal, combined with a slewof defendant- friendly preemption rulings,have forced plaintiffs’ attorneys tothink outside the box to avoid early dismissalof claims that courts would likelyfind preempted, including claims againstmedical device manufacturers. Some plaintiffs’attorneys have responded to Twiqbalby going so far as to make up the factsneeded to plead a parallel claim that couldavoid preemption. Because this strategydirectly violates Rule 11 by presenting contentionsas facts that wholly lack evidentiarysupport and by needlessly increasingthe costs of litigation, defense attorneysshould immediately identify those effortsby plaintiffs’ attorneys and either use thethreat of a Rule 11 sanctions motion toobtain voluntary dismissal or, if appropriate,seek sanctions to enforce Rule 11.By seeking sanctions, defense counsel willprotect their clients from the costs of movingforward with litigation premised onunfounded factual allegations and willsend a message to plaintiffs’ attorneys thatshould resonate in the future when theymake decisions about pleading strategies.A Warning Shot: Cornwellv. Stryker CorporationIn Cornwell v. Stryker Corp., the manufacturer’scounsel sought to enforce Rule 11after noting the plaintiff’s attorney literallymade up “facts” in an attempt to avoidearly dismissal on preemption grounds.No. 1:10-cv-00066-EJL, 2010 WL 4641112,at *4 (D. Idaho Nov. 1, 2010). The caseinvolved a plaintiff implanted with a metalacetabular cup and femoral stem during atotal hip replacement procedure in 2003.Id. at *1. After surgery, the plaintiff allegedlycontinued to experience pain andeventually underwent a revision of his totalhip replacement in 2008. Id. The plaintifffiled suit in federal court, alleging hisimplant was manufactured in a Cork, Irelandfacility that had been the subject of avoluntary recall initiated by a named defendantin the case. Id.Defendants moved to dismiss the complaint,arguing the plaintiff’s claims wereall preempted by the express preemptionclause of the MDA. Id. The plaintiff arguedin response, among others things, that hismanufacturing defect claims were premisedon FDA regulation violations basedon his belief (at the time he submitted thecomplaint) that his implant was manufacturedat the Cork, Ireland facility. Id.at *4. However, discovery established his“implant was not manufactured in Cork,Ireland and was not the subject of anyrecall or other regulatory action.” Id. Thus,the defendants argued plaintiff’s counselshould be subject to Rule 11 sanctions for“failing to dismiss this claim once documentationwas provided [that] the medicaldevice at issue had not been manufacturedat the Cork, Ireland facility.” Id.The United States District Court for theDistrict of Idaho agreed “counsel for the[p]laintiff should have acknowledged theundisputed facts and provided notice to theCourt regarding [p]laintiff’s position due tochanges to the factual basis for the parallelclaim argument.” Id. Despite endorsing thedefendants’ argument, the court declinedto impose Rule 11 sanctions. Id. Althoughthe district court did not award sanctionsin this instance, defense counsel shouldview Cornwell as a valuable tool and plaintiffs’counsel should view it as a warningshot to present correct facts in complaintsor face Rule 11 sanctions. Defense counselshould watch for “facts” fabricated byplaintiffs’ counsel when discovery conclusivelyestablishes that a plaintiff’s facts areinaccurate. Courts will not look favorablyon complaints pleading fabricated factsto survive motions to dismiss and couldpotentially sanction plaintiffs’ counsel forbehavior that ultimately forces all partiesand the court to waste time, money, andenergy on indefensible cases.Practical Tips for Employing Rule11 in a Medical Device CaseTo effectively use Rule 11’s sanction provisionto further a defense in an appropriatemedical device case, defense counsel mustcarefully follow prescribed motion practicerequirements and procedures and carefullytime motions and notice of motions. Thefollowing are a non- exhaustive list of practicaltips to help defense counsel employRule 11 in medical device cases:Separate Motion RequirementDefense counsel from the Cornwell caseshould be commended for creatively attemptingto obtain Rule 11 sanctions. However,defendants can learn from Cornwellto hopefully achieve a better result whenasserting a federal preemption defense.In Cornwell, defense counsel discovered amonth after it filed its motion to dismiss

that the device at issue was not actuallymanufactured in the overseas facility subjectto the FDA recall. Thus, defense counselfirst raised a possible Rule 11 violationin the defendants’ reply memorandum insupport of their motion to dismiss. If defensecounsel had followed the proceduralrequirements imposed by Rule 11, discussedbelow, they could have put more pressureon the court to hold plaintiff’s counsel accountablefor advocating a position not supportedby the facts of the case.As amended in 2007, Rule 11(c)(2)requires that a motion for sanctions “bemade separately from any other motion”and “describe the specific conduct thatallegedly violates Rule 11(b).” Federal Ruleof Civil Procedure 5 outlines motion serviceand motion filing requirements for Rule 11sanctions motions. Fed. R. Civ. P. 11(c)(2).However, motions should not be filed withthe court if “the challenged paper, claim,defense, contention, or denial is withdrawnor appropriately corrected within 21 daysafter service.” Id. In other words, the partyserved with a motion for sanctions has a21-day “safe harbor” against sanctions duringwhich the party can withdraw a challengedposition or admit the challengedallegation lacks evidentiary support.Many courts require strict adherenceto the procedure outlined in Rule 11(c)(2)and will deny a motion for sanctions unlessopposing counsel provides a 21-day noticeperiod. In fact, several courts have heldthat a letter warning opposing counsel ofan imminent motion for sanctions does notsatisfy Rule 11 and have thus denied suchmotions on procedural error grounds. See,e.g., Roth v. Green, 466 F.3d 1179 (10th Cir.2006); Barber v. Miller, 146 F.3d 707 (9thCir. 1998); Mortice v. Providian FinancialCorp., 283 F. Supp. 2d 1084 (D. Minn. 2003).However, other courts have found that letterswarning opposing counsel of imminentmotions for sanctions substantiallycomply with Rule 11 and will trigger the21-day safe harbor period. See, e.g., Nisenbaumv. Milwaukee Co., 333 F.3d 804 (7thCir. 2003); Cardillo v. Cardillo, 360 F. Supp.2d 402 (D.R.I. 2005).The Advisory Committee Notes to the1993 amendment to Federal Rule of CivilProcedure 11 specifies that “counsel shouldbe expected to give informal notice to theother party, whether in person or by a telephonecall or letter, of a potential violationbefore proceeding to prepare and serve aRule 11 Motion.” Thus, best practices dictatethat defense counsel first send a letternotifying opposing counsel of a Rule 11violation. Subsequently, defense counselshould serve plaintiffs’ counsel with a Rule11 motion for sanctions that sets forth thegrounds for the alleged violation. If opposingcounsel fails to take corrective stepsto remedy the violation, as in the Cornwellcase, defense counsel can then file amotion for sanctions with the court oncethe 21-day safe harbor period expires.Timing a Rule 11 MotionGenerally, courts will not determine theappropriateness or amount of any sanctionsuntil the end of litigation. However,when a Rule 11 violation occurs during thepretrial period, courts should levy sanctionscontemporaneously with the offendingmisconduct to ensure that Rule 11’spolicy of deterrence is satisfied. Further,certain courts have held that a party mustfile a motion for sanctions under Rule 11before a court enters a final judgment. See,e.g., Gary v. Braddock Cemetery, 517 F.3d195 (3d Cir. 2008) (finding that there “is noinordinate burden in requiring the [] courtto raise and resolve any Rule 11 issues priorto or concurrent with its resolution of themerits of the case”); Robinson v. Alutiq-Mele, LLC, 643 F. Supp. 2d 1342 (S.D. Fla.2009) (holding that “[b]e cause [the defendant]filed its [M]o tion after the finaljudgment and failed to serve and file thesame [M]o tion… [the defendant’s] requestfor Rule 11 sanctions should be denied”).Because the intertwined federal preemptionprinciples announced in Riegel,552 U.S. 312 (2008) and Buckman, 531U.S. 341 (2001) can lead courts to dismissall claims filed against a defendant medicaldevice manufacturer, defense counselshould move for sanctions immediatelyupon noticing that opposing counsel haspleaded false “facts” in order to survive amotion to dismiss or upon noticing thatopposing counsel otherwise has violatedRule 11. Such practices will ensure that acourt will hear the motion before enteringa final judgment. As discussed above,defense counsel should also prepare astrongly worded letter placing plaintiffs’counsel on notice that the contentionspleaded in the complaint are erroneousand any attempt to pursue a cause of actionbased on erroneous contentions will resultin swift action. If the factual discrepanciesare not resolved, defense counsel shouldserve plaintiffs’ counsel with a motion forRule 11 sanctions in order to start the tickingof the 21-day safe harbor clock. The preliminaryletter and the subsequent motion,Best practices dictatethat defense counsel firstsend a letter notifyingopposing counsel of aRule 11 violation.if necessary, will place pressure on plaintiffs’counsel to confirm the factual allegationsasserted in the complaint and couldalso create leverage defense counsel can useto settle the case early. Given the heightenedpleading requirements, especially inmedical device cases where preemptionoften applies, Rule 11 can serve as an effectivedeterrent and bargaining tool and willcertainly assist defense counsel in policingimproper pleading practices by plaintiffs’counsel.The Current Legal Landscape forImplementing Rule 11 in MedicalDevice Preemption CasesCurrently, very little case law addressesthe relationship between Rule 11 and federalpreemption under the MDA. However,cases addressing Rule 11 in the context ofclaims preempted by other provisions offederal law may be instructive. For example,in Smith & Green Corp. v. Trs. of theConst. Indus. & Laborers Health & WelfareTrust, 244 F. Supp. 2d 1098, 1100–01 (D.Nev. 2003), an employer filed suit in statecourt against several employee benefit trustfunds. The defendants removed the case onthe ground that the complaint arose out ofthe Employee Retirement Income SecurityAct (ERISA). Id. at 1101. The notice ofremoval asserted that all of the plaintiff’sstate law claims were preempted by ERISA,For The Defense n April 2011 n 37

Y O U N G L A W Y E R Sand the plaintiff did not contest removal ormove to remand the case. Id. at 1101, 1104.Once in federal court, the plaintiff didnot amend the complaint to allege any federalviolation. Id. at 1105. The defendantsmoved for Rule 11 sanctions, arguing theplaintiff’s complaint was “legally and factuallybaseless from an objective perspective”because ERISA preempted all claims.If the factual basis fora plaintiff’s complaintis not supported by theinformation exchangedduring discovery, defensecounsel should move forsummary judgment.Id. The United States District Court forthe District of Nevada agreed and grantedthe defendants’ motion for sanctions, notingcounsel for the plaintiff was “given theopportunity pursuant to Rule 11(c)(1)(A)to voluntarily dismiss the complaint” butdeclined to do so. Id. at 1108. Instead, theplaintiff’s counsel “made no effort to corrector amend to assert a federal commonlaw claim after being served with a Rule 11[M]o tion.” Id. Because plaintiff’s counselmade no effort to voluntarily dismiss thecomplaint alleging “garden variety statelaw causes of action clearly preempted byERISA,” the court found Rule 11 sanctionswere warranted. Id.The district court noted the defendantshad not moved to dismiss the complainton preemption grounds at the timethe Rule 11 motion was filed. Id. at 1103.The court agreed with the plaintiff that“Rule 11 should not be used to raise issuesof legal sufficiency that more properly canbe disposed of by a [M]o tion to [D]is miss.”Id. at 1103–04. However, the court ultimatelyfound that the mandate of FederalRule of Civil Procedure 1—to secure the“just, speedy, and inexpensive determinationof every action”—was best satisfied by38 n For The Defense n April 2011moving forward and considering the defendants’motion for sanctions. Id. at 1104.Although the result in Smith was favorableto defense counsel, best practicesrequire filing a motion for sanctions alongwith a motion to dismiss if defense counselwill argue that all of plaintiff’s claimsare preempted and no parallel claim exists.Rule 11 is not intended to address whethera complaint is legally or factually sufficient.Instead, it should be used to policethe plaintiff’s pleading habits where thereis no basis for the complaint in existing lawor where the plaintiff has made up facts inorder to manufacture a legal basis for his/her claims. Savvy defense practitionersneed to be aware of and, if appropriate,use Rule 11 as a means of placing additionalpressure on and gaining leveragewith opposing counsel earlier in litigation.No Twiqbal? No Problem.While most courts are not convinced thatsweeping allegations that a defendant violatedapplicable statutes, regulations, andordinances satisfy Twombly and Iqbal,there is some case law to the contrary. Aminority of cases applying a less stringentpleading standard to federally preemptedclaims may diminish plaintiffs’ incentiveto plead false facts in an attempt to survivea motion to dismiss. Unfortunately, the endresult will not change, as defendants will beforced to spend time and money engagingin discovery for claims that will ultimatelybe preempted under Riegel.In Bausch, the district court granted thedefendants’ motion to dismiss under FederalRule of Civil Procedure 12(b)(6). 2010WL 5186062, at *13. The Seventh Circuitreversed the judgment of the district court,finding that the original complaint stateda claim for relief that was “plausible on itsface” as required by Iqbal and Twombly.Id. at *11. The court stated because “criticalinformation is kept confidential as a matterof federal law” in the context of a ClassIII medical device and is only availablethrough discovery, the plaintiff’s “pleadingburden should be commensurate withthe amount of information available” toher. Id. at *12.In deciding Bausch, the Seventh Circuitrelied on the dissenting opinion in Inre Medtronic, Inc., in which Judge Melloyanalyzed the plaintiff’s burden of pleadinga parallel state law claim that avoids MDApreemption. In re Medtronic, Inc., 623 F.3dat 1209–10. The dissent stated “[t]o applyTwombly rigidly without permitting discoveryas to these documents effectivelycreates an impossible- to- achieve specificityrequirement.” Id. at 1209. The dissentconcluded by saying, “The combination ofthe rigid application of Twombly and thenow- articulated parallel claim exception to§360k preemption have, in these cases, ledto the dismissal of over two hundred potentiallymeritorious lawsuits on a technicality.I view this as unjust in this evolving andcomplex area of the law.” Id. at 1210.Similarly, the Eastern District of Missourideclined to grant a motion to dismisson preemption and Twiqbal groundsin Warren v. Howmedica Osteonics Corp.,No. 4:10-CV-1346-DDN, 2010 WL 5093097(E.D. Mo. Dec. 8, 2010). The court foundthe plaintiffs were “entitled to proceedwith their suit and obtain informationthrough discovery” to support their parallelclaims. Id. at *7. The court “respectfullysuggest[ed]” Twombly should not be stringentlyapplied to manufacturing defectclaims, which are not subject to the “particularity”pleading requirement of FederalRule of Civil Procedure 9. Id. Thus,although the plaintiff did not specificallyplead federal law violations, her claims survivedbecause the court felt discovery wasnecessary to permit a proper preemptionanalysis. Id.Finally, in Hofts v. Howmedica OsteonicsCorporation, 597 F. Supp. 2d 830, 838 (S.D.Ind. 2009), the Southern District of Indianarefused to grant a motion to dismiss theplaintiff’s claim as preempted. The courtfound discovery could permit the plaintiffto prove parallel claims, and thus wasunwilling to strictly apply Twombly to thecomplaint. Id.Only a minority of courts have takenthis position when interpreting federal preemptionand pleading requirements. However,the Seventh Circuit’s Bausch opinioncreated a circuit split that only a rehearingen banc or the United States SupremeCourt can resolve. In the meantime, morecourts may follow the Seventh Circuit’slead and apply lower pleading standards toclaims that are potentially preempted bythe MDA. Such a development would eliminatethe temptation for plaintiffs to make

up facts in order to sufficiently plead a parallelclaim. However, the result will be moredevastating to medical device manufacturers,as every case—even those with nopotential parallel claims pled—will likelymeet the virtually nonexistent pleadingrequirements advanced in Bausch and willrequire costly discovery before dismissalpursuant to Riegel.Regardless of the outcome of this currentcircuit split over pleading standards,defense counsel should use Rule 11 earlyand often in preemption cases to forceearlier analysis, validation or disprovingof the factual information contained inplaintiffs’ complaints. Even in jurisdictionsthat apply a lower pleading standardthan that announced in Twiqbal, the affirmativeuse of Rule 11 by defense counselis still an important and potentially effectivestrategy. Generally in these jurisdictions,Rule 11 will become more applicableduring and after discovery. For example,if the factual basis for a plaintiff’s complaintis not supported by the informationexchanged during discovery, defense counselshould move for summary judgment.In addition to moving for summary judgment,if the facts revealed in discovery donot support a parallel claim, defense counselshould immediately initiate Rule 11procedures to force plaintiffs to amend thecomplaint to accurately reflect the newlydiscovered factual information. If plaintiff’scounsel fails to do so, a motion forsanctions should be filed with the court inconjunction with the motion for summaryjudgment. Alleging false “facts,” regardlessof the pleading standard used or the preemptiondoctrine subscribed to, is an ethicalviolation, and defense attorneys shouldaggressively utilize Rule 11 to enforce legaland ethical obligations and protect theirclients’ interests.ConclusionThe majority of federal jurisdictions applyTwiqbal as intended by the United StatesSupreme Court. In such jurisdictions,plaintiffs’ attorneys have been forced toconsider creative methods for pleadingparallel claims with sufficient specificityto avoid early dismissal. The intersectionof pleading standards under Twiqbal,preemption under Riegel and Buckman,and Rule 11 presents a new and interestingtwist in the constant efforts by defensecounsel to resolve litigation as early as possible.Defense attorneys must keep a watchfuleye out for fabricated facts pleadedto provide a basis for parallel claims andshould also be mindful of using Rule 11, ifappropriate, in preemption cases.If defense counsel practice in jurisdictionsthat recognize less burdensomepleading standards than articulated inTwiqbal, it will be difficult to effectivelyuse Rule 11 to force early dismissal of preemptedclaims as plaintiffs will not be pressuredto assert specific facts to supportparallel claims until after completing dis-Preemption, continued on page 75Investigative Technologies Inc.TMForensic Engineering • Expert TestimonyAccident ReconstructionAreAs of expertise:• Biomechanical• Civil/structural• Construction• Consumer products• Disaster• electricalengineering• environmentalengineering• fire investigation• Human factors• industrial Machinery• Marine• Material sciences• Mold• safety/osHACompliance• slip & fall• VehicularVisit us online:• search periodicals• immediate online help• View expert profiles• press room of eventswww.cedtechnologies.com 1-800-780-4221Washington • Cleveland • Jacksonville • New York • Ft. Lauderdale • ChicagoFor The Defense n April 2011 n 39

Y O U N G L A W Y E R SThe Cat-O’-Ten-TailsBy Peter M. CumminsPro Se LitigantsAssisted byGhostwriting CounselA review of theethical implicationsof ghostwriting, thedifferent approachestaken by courts and statebar associations withrespect to the practice,and practical strategiesto deal with a pro seopponent benefitting fromprofessional assistance.Litigation against pro se parties can be a frustratingendeavor, filled not only with filings by your opponent thatyou’ll recall for years to come, but also substantive challengesthat are unique to the pro se environment. Forexample, courts usually afford pro se litigantsa considerable amount of leeway inboth the form and substance of the pleadingsthat they file, which makes it difficultto obtain early dismissals. This benefit ofthe doubt means that counsel adverse topro se litigants must anticipate all argumentsthat these pro se litigants could possiblyassert in addition to defending againstthe arguments actually raised. One commentatorhas gone as far as comparinglitigating against a pro se party to being“flogged with a cat-o’-nine-tails.” CorneliusD. Helfrich, Facing a Pro Se Litigant,The Compleat Lawyer 41 (Summer 1997).Making matters even more difficult,today’s pro se litigants seem to have addeda tenth tail with which they can flog unsuspectingopposing counsel—a ghostwritingattorney. Ghostwriting by attorneys—thedrafting of pleadings filed with a courtwithout disclosing an attorney’s involvementor identity—is not new, but what wasonce common primarily in prisoner litigationinvolving the classic “jailhouse lawyer”has become increasingly prevalent incivil litigation. As discussed toward theend of this article, for example, many individualsfacing collections suits by financialinstitutions and other creditors haveincreasingly turned to debt- relief agenciesand their affiliated “law firms” for helpcrafting counterclaims alleging violationsof state and federal law and seeking compensatoryand punitive damages, all whileretaining their pro se status. This maneuvernot only turns what should be a simplematter into a much more complex case, butit also raises a number of ethical considerations.This article discusses the ethicalimplications of ghostwriting, the differentapproaches taken by courts and state barassociations with respect to the practice, aspecific example of the sort of ghostwritingbecoming prevalent in debtor- creditorlitigation, and some practical strategies toeffectively deal with a pro se opponent benefittingfrom professional assistance.40 n For The Defense n April 2011■ Peter M. Cummins is a member of Frost Brown Todd LLC located in the firm’s Louisville, Kentucky, office. Mr. Cummins is acommercial litigator, representing a wide variety of clients in all types of business disputes, including non- compete agreementenforcement, breach of contract, fraud, Uniform Commercial Code, and banking litigation matters. He is active in DRI’s CommercialLitigation Committee and Young Lawyers Committee, having most recently served as the chair of the Young Lawyers PublicService Subcommittee for 2009–2010.

Ghostwriting as anUnbundled Legal ServiceGhostwriting is one facet of a trend knownas “unbundling” legal services, meaningrepresenting a client on a limited basis.Providing unbundled legal services is apractice that is expressly authorized bymost states’ ethics rules. For example, Rule1.2(c) of the ABA Model Rules of ProfessionalConduct (Model Rules) permits anattorney to represent a client on a limitedbasis as long as (1) the limitation is reasonableunder the circumstances, and (2) theclient gives informed consent to the limitedrepresentation. Indeed, bar associationsacross the country have encouragedattorneys to provide unbundled legal servicesin varying ways as a means to offeraccess to affordable legal representationand, in turn, to provide access to justiceto those who might otherwise not haveaccess to it. See generally ABA StandingComm. on the Delivery of Legal Services,An Analysis of Rules that Enable Lawyersto Serve Pro Se Litigants (Nov. 2009) (collectingpronouncements by state and localbar associations); see also John T. BroderickJr. & Ronald M. George, A Nation of Do- It-Yourself Lawyers, N.Y. Times, Jan. 2, 2010,at A21 (an editorial by the then-Chief Justicesof the New Hampshire and CaliforniaSupreme Courts, respectively, urging“members of the legal profession to joinwith us, as many have done, in meeting thischallenge by making unbundled legal servicesand other innovative solutions—likeself-help Web sites, online assistance programsand court self-help centers—workfor all who need them.”).Litigators who provide unbundled legalservices to clients are engaged on a limitedbasis to perform a discrete set of tasks—defend a deposition, appear at a contestedhearing, attend mediation for the purposeof reaching a settlement or, in the case ofghostwriting, draft pleadings that the clientwill file with a court without disclosingthe attorney’s assistance. To be sure, litigatorsrepresent clients on a limited basis allthe time in situations other than pro se litigation.These situations might include servingas local counsel providing intelligenceon local issues of importance, collecting,reviewing, and producing electronicallystored information and documents, representinga client on appeal following anunfavorable trial result, or performing settlementcounsel duties while another attorneyserves as trial counsel.Just as varied as the ways in which a litigatorcan provide unbundled legal servicesare the reasons why a client would want toengage an attorney on an unbundled basis.In the settlement counsel/trial counsel paradigm,for instance, a client might feel concernabout a conflict of interest in askingits trial counsel to try to settle a case duringdiscovery. Or a particular attorney orlaw firm might be able to handle a documentreview in a more cost- effective mannerthan the attorney or law firm handlingthe rest of the litigation. As long as thelimited- scope representation is reasonableand a client consents to it, lawyers can provideunbundled legal services in unlimitedways.Putting the “Pro” in Pro Se LitigationThe number of pro se litigants in civil litigation—asboth plaintiffs and defendants—isat an all-time high and continuesto increase. See, e.g., Michael W. Loudenslager,Giving Up the Ghost: A Proposalfor Dealing with Attorney “Ghostwriting”of Pro Se Litigants’ Court DocumentsThrough Explicit Rules Requiring Disclosureand Allowing Limited Appearances forSuch Attorneys, 92 Marq. L. Rev. 103, 107–08 nn.15–18 (2008). While this growth isoccurring all over the country in nearly allsubstantive areas, it is most pronounced inpoor areas of the country and most prominentlyhas involved litigating housingissues, such as landlord- tenant evictions,family law, such as divorce and child custodymatters, and personal finance matters,such as collections and bankruptcy. Id. at107 (citing Deborah L. Rhode, Access to Justice14 (Oxford. Univ. Press 2004); ABA Sec.Litig., Handbook on Limited Scope LegalAssistance: A Report of the Modest MeansTask Force, at 8 (2003)). Indeed, some studiesthat commentators often cite estimatethat 50–80 percent of all such mattersinvolve pro se litigants on at least one side,if not both, of the litigation. Id.Given these statistics, it would be easyto conclude that the only reasons for sucha significant increase in pro se litigation areeconomic. And while financial factors suchas the poor national economy and the highcost of legal services are no doubt the biggestreasons for the increase in the numberof pro se litigants—a recent survey of prose litigants by the University of Marylandrevealed that 75 percent of them had financialreason for proceeding without counsel—otherreasons include a frustrationwith or distrust of lawyers generally anda belief that a litigation matter is simpleenough that professional assistance is notA number of jurisdictionshave taken the sameposition as the ABA onghostwriting and haveauthorized attorneysto author documentsused by pro se litigantsin civil litigationrequired. See University of Maryland ProSe Law Center Data, http://www.pro- selaw.org/.Another emerging trend in civil litigationis that pro se litigants often rely on anundisclosed advocate—the ghostwriter.Indeed, the same economic factors thatwould lead an individual to proceed prose in a civil litigation matter could alsolead that individual to selectively retainan attorney to assist with various aspectsof a case. And unsurprisingly, the prohibitiveexpense associated with hiringcounsel in many situations is the biggestreason bar associations and public interestgroups encourage attorneys to offerunbundled legal services. Without accessto unbundled legal services at a definedcost, or perhaps through a contingency feearrangement, it is reasoned, a pro se litigantwould likely view the risk of goingit alone to be smaller than the reward ofavoiding significant legal bills that he orshe might otherwise incur. And aside fromthe monetary implications of hiring counsel,even if only on a limited basis, self-helpwebsites, search engines, and form books,while perhaps a suitable substitute for someFor The Defense n April 2011 n 41

Y O U N G L A W Y E R Sof the very basic elements of civil litigation,can never truly replace the skills of atrained advocate.Bar Associations Take VaryingApproaches to GhostwritingAt its most basic, ghostwriting is simply theundisclosed authorship of a document usedin litigation for another who appears to be,When an attorneyghostwrites something forsomeone, that attorneyprovides a form of legalservices and, therefore,ghostwriting establishes anattorney- client relationship.and is therefore presumed to be, the document’sactual author. W. Va. State Bar LawyerDisciplinary Board, Legal Ethics Op.2010-01 (Nov. 8, 2010). As discussed in furtherdetail below, filing ghostwritten documentswith a court carries consequencesbeyond those anticipated by Model Rule1.2(c), which authorizes an attorney to provideunbundled legal services. For example,Model Rule 3.3 sets forth an attorney’sduty of candor owed to a tribunal. Whethera lawyer’s undisclosed authorship of documentsused in litigation complies with thisduty is not straightforward. This is especiallytrue when, as is often the case, pro selitigants receive substantial leeway in theform and substance of the pleadings thatthey file with courts. Should a pro se litigantreceive the proverbial benefit of thedoubt when, in fact, his or her pleading hasbeen drafted by a licensed attorney?These and other ethics issues haveresulted in varying conclusions about thepropriety of ghostwriting. Unsurprisingly,because they have generally encouragedattorneys to provide unbundled legal services,bar associations have largely interpretedtheir ethics rules to permit someform of ghostwriting.42 n For The Defense n April 2011Most notably, the ABA Committee onEthics and Professional Responsibility hasinterpreted Model Rule 1.2(c) to permitghostwriting, reasoning that ghostwritingis a form of unbundled legal services authorizedby Model Rule 1.2(c) not otherwiseprohibited by another ethics rule because“the fact that a litigant submitting papersto a tribunal on a pro se basis has receivedlegal assistance behind the scenes is notmaterial to the merits of the litigation.” SeeABA Comm. on Ethics and Prof’l Responsibility,Formal Op. 07-446 (2007). In thisformal opinion, Undisclosed Legal Assistanceto Pro Se Litigants, the ABA reasonedthat a lawyer’s undisclosed assistance to apro se litigant submitting papers to a courtis immaterial because either the undisclosedattorney’s assistance will be effective,in which case the fact of assistancewill be evident to the court and, therefore,no longer undisclosed, or it will be ineffective,in which case the pro se litigant willnot have secured an advantage. Id.But ABA Formal Opinion 07-446 ignoresthe shades of gray that cloud this issue.For example, because of the advent ofonline resources, legal hotlines, and otherresources that were not widely available indecades past, pleadings filed by today’s prose litigants are not always so facially deficientthat they could not have possibly beendrafted by an attorney. So it seems misplacedto assume that a court or an adverseparty will uncover an attorney’s assistanceas glaringly obvious. Nevertheless, a numberof jurisdictions have taken the sameposition as the ABA on ghostwriting andhave authorized attorneys to author documentsused by pro se litigants in civil litigationwithout disclosing that attorneyshave written them, much less the identitiesof the attorneys rendering assistance. See,e.g., ABA Formal Op. 07-446, n.3 (citingArizona, Illinois, and Los Angeles, amongother jurisdictions, as interpreting theirrespective ethics rules as making any formof disclosure unnecessary).A number of other jurisdictions haveconcluded that the jurisdiction’s ethicsrules do not permit ghostwriting, concludingthat an attorney’s undisclosed authorshipof documents filed with a court couldviolate the attorney’s duty of candor owedto a tribunal and, perhaps more worrisomefor a ghostwriting attorney, could constitutea misrepresentation to the court. Id.at n.4 (citing Colorado, Connecticut, andKentucky as jurisdictions that require disclosureof assistance if an attorney providesassistance to a pro se litigant). TheWest Virginia State Bar is perhaps the mostrecent bar association to have addressedghostwriting, ultimately concluding thatit is impermissible, and its reasoning adequatelyoutlines the concerns shared bymany other jurisdictions and practitionersalike.In Legal Ethics Opinion 2010-01, theLawyer Disciplinary Board of the WestVirginia State Bar was asked to consider“whether an attorney can ghostwrite lettersas a service to pro se litigants.” W. Va. StateBar Lawyer Disciplinary Board, Legal EthicsOp. 2010-01 (Nov. 8, 2010). While onlyasked to opine about whether attorneyscould draft letters, the Lawyer DisciplinaryBoard actually addressed the proprietyof ghostwriting in a number of differentsituations.Before addressing hypothetical situations,however, the Lawyer DisciplinaryBoard clarified that when an attorneyghostwrites something for someone, thatattorney provides a form of legal servicesand, therefore, ghostwriting establishesan attorney- client relationship. Id. at n.1(citing State ex rel. DeFrances v. Bedell,446 S.E. 2d 906 (W. Va. 1994)). Whileit might be tempting to classify ghostwritingas something other than providinglegal advice, the Lawyer DisciplinaryBoard appropriately reiterated that regardlessof disclosure obligations, a ghostwritingattorney has various ethical obligationsdue to his or her attorney- client relationshipwith a pro se litigant.In discussing whether West Virginia’sethics rules permit ghostwriting, the LawyerDisciplinary Board noted that whileModel Rule 1.2(c) of the West VirginiaRules of Professional Conduct permits lawyersto provide unbundled legal services,ghostwriting implicates a number of otherWest Virginia ethics rules. The LawyerDisciplinary Board noted that it needed toconsider Model Rule 3.3 (duty of candor),Model Rule 3.4 (fairness to opposing partiesand counsel), and Model Rule 8.4(c)(misconduct involving dishonesty, fraud,deceit, or misrepresentation) of the WestVirginia Rules of Professional Conduct to

egan as a simple collections suit. And inaddition to having to defend against thesubstantive claims, a creditor will likelyhave to do it in state court, without theability to remove the matter to federalcourt since a counterclaim defendant isprohibited from removing a matter to federalcourt. See Shamrock Oil & Gas Corp. v.Sheets, 313 U.S. 100, 108–09 (1941) (holdingthat a counterclaim defendant cannotremove a case to federal court). Soa pro se litigant has, with the help of aghostwriting attorney, been transformedfrom a defendant in a simple collectionsaction into a counterclaim plaintiff seekingcompensatory and punitive damagesin a friendly state court, with all of the settlementleverage that accompanies thattransformation.Persels & Associates LLC, which reportedlyhas provided legal representation toborrowers facing collection actions on anundisclosed or partially disclosed basis,appears to exemplify many of the concernsexpressed by courts about ghostwriting,and the firm has also been targetedby courts and state regulatory agenciesfor various shortcomings. In one case, forexample, a bankruptcy court concludedthat its Ruther & Associates affiliate mayhave engaged in the unauthorized practiceof law by providing legal advice toan individual in Kansas through its legalhotline. In re Wood, 408 B.R. 841, 852–54 (Bankr. D. Kan. 2009). Indeed, Kansashas been especially unkind to Persels. TheKansas State Bank Commissioner recentlyissued a cease- and- desist order that wouldclose Persels operations entirely in thatstate. Firm Challenges Cease/Desist Order,Topeka Capital- Journal (Sept. 28, 2010),http://cjonline.com/news/local/2010- 09- 28/ bank_commissioner_ issues_ orders. After investigatingthe activities of Persels, the KansasState Bank Commissioner concluded thatPersels had violated the state’s Credit ServicesOrganization Act, a state law that regulatesdebt settlement companies. Id. Perselshas challenged the Kansas State Bank Commissioner’sauthority to regulate its business,arguing that as a law firm, it is beyondthe reach of the commissioner’s authority.No doubt anticipating that defense, theKansas regulatory agency succinctly summarizedits view that Persels’ activities didnot constitute the practice of law:“We’ve seen this so-called ‘attorneymodel’ in several of our investigationsof illegal debt settlement activity. Webelieve some companies have attemptedto organize themselves in such a fashionto claim an exemption from oversightby our agency, depriving Kansans of theprotections in the law,” said Kevin Glendening,Deputy Bank Commissioner….“Companies may claim to be exemptfrom oversight due to the involvementof a local attorney. However, our agencybelieves that many of these companiessimply ‘rent’ the local attorney’s lawlicense in an attempt to avoid the consumerprotections contained in the law,including limits on fees and charges,”Glendening added. “In some instances,consumers never speak to or meet withthe attorney. Typically, the attorneys donot appear in court on behalf of the consumerif they are sued by their creditors.It can delay the court process and certainlycause great harm to consumers.”Id. (emphasis added).Whether other states will join Kansas’sassault on Persels and other similar entitiesis unclear. Regardless, however, the conflictexemplifies the potential downside ofghostwriting—even for the pro se litigantsseeking help—and also provides even morejustification for adopting, clarifying, andenforcing ethics rules and laws that regulateghostwriting.Strategies for Dealing with Pro SeLitigants Assisted by CounselWhether you represent a bank faced with amultimillion dollar counterclaim assertedby a pro se litigant who has ghostwritingassistance or a defendant sued by a prose plaintiff receiving similar assistance,the applicable ethics rules and court decisionsdiscussed above will arm you withthe legal authority required for the battle.But beyond the ethics opinions and courtdecisions, what are some practical strate-Ghostwriting, continued on page 77For The Defense n April 2011 n 45

Y O U N G L A W Y E R SFor the Common Good?By Thomas J. D’Amatoand Tanis J. LeutholdAvoiding PotentialPitfalls in Joint-Defense AgreementsSufficient foresight anda proper drafting canhelp defense attorneyslimit risks to themselvesand their clients whilestill reaping the manybenefits of a jointdefenseagreement.Many defense attorneys do not think much about enteringinto joint- defense agreements. And why should they?A joint- defense agreement has so much to offer—it allowsa defense attorney to share information with other defenseattorneys and to develop a unified defensestrategy, not to mention it conservesresources by allowing codefendants to worktogether and limit unnecessary, duplicativework. With all they have to gain, it’s nothard to understand why attorneys sometimesoverlook the potential pitfalls ofjoint- defense agreements.A joint- defense agreement has implicationswell beyond the four corners of theagreement. It is not simply an agreement toshare privileged information with codefendants.A joint- defense agreement may createan implied attorney- client relationship,a fiduciary relationship, and a third-partybeneficiary relationship between counselfor one defendant and the other defendants.Moreover, a client risks waiving orlosing protection of privileged communicationsshared with other members of thejoint defense agreement.What Is the Joint-Defense Privilege?Joint-defense agreements and joint- defenseconsortiums are not new. Since as earlyas 1871, multiple defendants have joinedforces to create a united, common defense.See Chahoon v. Commonwealth, 62 Va. (21Grat.) 822 (1871); George S. Mahaffery, Jr.,All for One and One for All? Legal MalpracticeArising From Joint Defense Consortiumsand Agreements, The Final Frontier in ProfessionalLiability, 35 Ariz. St. L.J. 21, 27(2003). Today, joint- defense arrangementsare common in complex, multiparty, civillitigation as well as criminal cases involvingmultiple defendants. Mahaffery, supra at28 (citing Scott M. Seaman & Rebecca LevySachs, The Good, the Bad and the Ugly aboutJoint Defense, The Brief, Fall 1998, at 12, 13).A joint- defense agreement is groundedin the joint- defense privilege, also referredto as the common- interest doctrine, and isdefined as “[t]he rule that a defendant canassert the attorney- client privilege to protecta confidential communication madeto a codefendant lawyer if the communicationwas related to the defense of both■ Thomas J. D’Amato and Tanis J. Leuthold are attorneys with the San Francisco law firm of Murphy, Pearson,Bradley and Feeney. Mr. D’Amato’s litigation and trial practice focuses in the areas of professional liability,business, intellectual property, real estate, employment and personal injury. Ms. Leuthold representsindividuals and businesses in all phases of litigation and counsels clients on corporate matters. Her practiceis focused on professional liability defense as well as business litigation.46 n For The Defense n April 2011

defendants.” Black’s Law Dictionary 1236(8th ed. 2004). The joint- defense privilegeis waived, however, when one of thejoint defendants becomes an adverse party.Some courts have held that participantsin a joint- defense agreement can unilaterallywaive the privilege protection fortheir own communications. See In re SunriseSecs. Litig., 130 F.R.D. 560, 573 (E.D.Pa 1989); Medcrom Holding Co. v. BaxterTravenol Labs., Inc., 689 F. Supp. 841,844 (N.D. Ill. 1988); Ohio- Sealy MattressMfg. Co. v. Kaplan, 90 F.R.D. 21, 29 (N.D.Ill 1980); Matter of Grand Jury SubpoenaDuces Tecum Dated November 16, 1974, 406F. Supp. 381, 394 (S.D.N.Y. 1975).Federal Courts and State Courts Treatthe Joint-Defense Privilege DifferentlyNearly all state and federal courts recognizesome form of the joint- defense orcommon- interest privilege. However, stateand federal courts often differ in how theytreat the joint- defense privilege.For example, California has not createda distinct common- interest or joint- defenseprivilege. Unlike federal courts, Californiahas developed a common- interest doctrine,also referred to as the joint- defensedoctrine, that operates as an exception tothe general rule that a privilege is waivedupon voluntary disclosure to a third party.OXY Resources Calif. LLC v. Sup. Ct. (CalpineNatural Gas LP), 115 Cal. App. 4th 874,889, 890 (Cal. Ct. App. 2004) (commoninterestdoctrine is a non- waiver doctrine,analyzed under standard waiver principlesapplicable to attorney- client privilege andattorney work product protection); Roushv. Seagate Technology, LLC, 150 Cal. App.4th 210, 224 (Cal. Ct. App. 2007); see alsoMeza v. H. Muehlstein & Co., 176 Cal. App.4th 969, 973 (Cal. Ct. App. 2009) (Californiarecognizes “common- interest doctrine”);The Rutter Group, Cal. Prac. Guide Prof.Resp. Ch 7-C. Under California’s commoninterestdoctrine, a party does not waive anexisting privilege when the following threerequirements are satisfied: (1) the informationshared with a coparty would otherwisehave protection from disclosure;(2) the parties had a reasonable expectationthat the information disclosed wouldremain confidential; and (3) the disclosurewas reasonably necessary to advance theparty’s shared interest in securing legaladvice on a common matter. Oxy ResourcesCalifornia, LLC v. Superior Court, 115 Cal.App. 4th 874 (Cal. Ct. App. 2004); CaliforniaCivil Courtroom Handbook & DesktopReference §21:22 (2010 ed.).California’s approach differs from thatof federal courts in that federal courts recognizea distinct joint- defense privilege.The federal joint- defense privilege extendsthe attorney- client privilege to disclosuresmade in the presence of two or more clientswho share a common interest in a legal matter.In re Grand Jury Subpoena Duces Tecum,112 F.3d 910, 922 (8th Cir. 1997); UnitedStates v. Evans, 113 F.3d 1457, 1467 (7th Cir.1997); Griffith v. Davis, 161 F.R.D. 687, 692(C.D. Cal. 1995). The federal joint- defenseprivilege will protect communications thatwere made in the course of a common defenseeffort so long as the statements weredesigned to further the effort and the privilegehas not otherwise been waived. In reGrand Jury Subpoena Duces Tecum, 112 F.3d910, 922–23 (8th Cir. 1997); United States v.Bay State Ambulance & Hosp. Rental Serv.,Inc., 874 F.2d 20, 28 (1st Cir. 1989); UnitedStates ex rel. Burroughs v. DeNardi Corp.,167 F.R.D. 680, 685 (S.D. Cal. 1996).The distinction between the federalapproach and the California approach isimportant. California has not created anew privilege but rather has carved out anexception to the general waiver rules forexisting attorney- client and attorney workproduct privileges. Federal law, on the otherhand, created a new and distinct privilegefor joint- defense communications.Potential Liability for AttorneysBy entering into a joint- defense consortiumor joint- defense agreement with otherdefendants on behalf of a client, an attorneyopens the door to potential liabilityfor professional negligence under impliedattorney- client, fiduciary, and third-partybeneficiary relationships with the otherdefendants.Some state courts have recognized thatdespite the general privity of contract rulean attorney’s liability for professional negligencemay expand to a non- client if thatparty was the intended beneficiary of theattorney’s services or the foreseeability ofharm to that party due to the attorney’sprofessional negligence outweighs otherpolicy considerations. St. Paul Title Co. v.Meier, 181 Cal. App. 3d 948, 950 (1986). Forthis reason, it is imperative that attorneysexercise caution when filing joint motionsor otherwise furthering the common interestsof a joint- defense consortium.Unintended Attorney-Client RelationshipEven in early cases involving joint- defenseefforts, courts recognized that in a joint-Some courts… havenot imposed on attorneysa duty of loyalty to theirclients’ codefendants as itwould create a minefieldof potential conflicts.defense arrangement “the counsel of eachwas in effect the counsel of all.” Chahoonv. Commonwealth, 62 Va. (21 Grat.) 822,841–42 (1871). Many courts have held thata joint- defense agreement does in fact createan implied attorney- client relationshipbetween counsel for one defendant and theother defendants participating in a jointdefenseconsortium. See U.S. v. Henke, 222F.3d 633, 637 (9th Cir. 2000); United Statesv. McPartlin, 595 F.2d 1321, 1337 (7th Cir.1979); Wilson P. Abraham Const. Corp. v.Armco Steel Corp., 559 F.2d 250, 253 (5thCir. 1977). Whether an attorney- client relationshipexists is a question determinedby a court based on substantive law andthe individual facts of a case. Courts willtypically consider written agreements,intent of the parties, and other indicia ofan attorney- client relationship in determiningwhether an implied attorney- clientrelationship exists. Ageloff v. Noranda, Inc.,936 F. Supp. 72, 76, (D.R.I. 1996).If a court determines that a jointdefenseagreement did in fact create animplied attorney- client relationship, whatprofessional responsibilities and ethicalobligations accompany that impliedattorney- client relationship? Courts tendto agree that an attorney will owe someduty to the members of the joint- defenseFor The Defense n April 2011 n 47

Y O U N G L A W Y E R Sgroup upon receiving confidential information;however, courts have not agreedon the scope of that duty or whether theattorney owes professional ethical dutiesas well. City of Kalamazoo v. MichiganDisposal Service, 151 F. Supp. 2d 913, 914(holding that the attorney had a directattorney- client relationship with a memberof the joint- defense group under the termsThe joint- defenseprivilege is waived assoon as one of the jointdefendants becomesan adverse party.of the joint- defense agreement signed byeach member so that he could be disqualifiedas counsel due to the risk of disclosingconfidential information); Wilson P. AbrahamConst. Corp v. Armco Steel Corp., 559F.2d 250, 252 (5th Cir. 1977) (agreeing thatcounsel for one becomes counsel for allcodefendants in a joint- defense context,but holding that in that situation counselowes fiduciary duties to codefendants andthus cannot proceed against them in a subsequentsubstantially related matter if hereceived confidential information in preparinga joint defense).The ABA Standing Committee on Ethicsand Professional Responsibility found thatan attorney representing one defendantparticipating in a joint- defense consortiumwould not owe ethical obligations toother members of the joint- defense consortiumbecause the Model Rules do notimpose such an obligation. ABA Comm. onEthics & Prof’l Responsibility, Formal Op.95-395, at 4 (July 24, 1995). However, thesame opinion recognized that an attorneywould almost surely have a fiduciary obligationto the other members of the consortium,which might well lead to his or herdisqualification from a representation.It is not clear exactly what obligations anattorney owes under an “implied” attorneyclientrelationship, but many courts agreethat in such circumstances an attorney owes48 n For The Defense n April 2011the other joint- defense agreement defendantsa duty of confidentiality and a duty toavoid conflicts of interest such that the attorneycould be disqualified from representingthe other joint- defense agreementmembers in pending or subsequent litigationin certain circumstances. However,other courts have been reluctant to imposeon attorneys a duty of loyalty to their client’sco- defendants. U.S. v. Stepney, 246 F. Supp.2d 1069, 1082–83 (N.D. Cal. 2003).United States v. Henke, 222 F.3d 633 (9thCir. 2000), demonstrates the risks associatedwith establishing an implied attorneyclientrelationship through a joint- defenseagreement. In Henke, three criminal defendantsentered into a joint- defenseagreement whereby they shared privilegedinformation with each other. One of the defendants,Suren Gupta, accepted a plea dealwith the government and was then calledas a witness in a trial against the othercodefendants, Chan Desaigoudar and StevenHenke. While on the stand, the formercodefendant Gupta’s testimony conflictedwith statements that he made in confidenceduring a pretrial, joint- defense meeting.Neither Desaigoudar’s nor Henke’sattorney could cross- examine the witness,Gupta, without revealing information thatthey received in confidence under the jointdefenseagreement, and the witness’s attorneysthreatened the other defense attorneyswith legal action if they failed to protectthe witness’s confidences. Desaigoudar andHenke appealed their convictions on thegrounds that a conflict of interest preventedtheir attorneys from cross- examining akey government witness, Gupta. The courtrecognized that both Desaigoudar’s andHenke’s attorney had an implied attorneyclientrelationship with the witness, Gupta,through the joint- defense agreement andthat the government’s use of the formercodefendant, Gupta, as a witness duringthe trial created a conflict of interest thatimpaired Desaigoudar’s and Henke’s attorneys’ability to cross- examine Gupta. Id. at635. The court held that the circumstanceswarranted disqualifying Desaigoudar’s andHenke’s attorneys from representing them,as well as a new trial. Id.Courts have also held that an attorneycan be disqualified from proceedingagainst the former codefendant of aformer client just as he or she could notproceed against a former client if confidentialexchanges of information tookplace between the various codefendants inpreparation for their joint defense. WilsonP. Abraham Constr. Corp. v. Armco SteelCorp., 559 F.2d 250, 253 (5th Cir. 1977).Some courts, on the other hand, havenot imposed on attorneys a duty of loyaltyto their clients’ codefendants as it wouldcreate a minefield of potential conflicts.U.S. v. Stepney, 246 F. Supp. 2d 1069, 1082–83 (N.D. Cal. 2003) (refusing to extend perse rule of disqualification simply because aduty of loyalty existed to a cooperating formercodefendant).Fiduciary RelationshipAttorneys representing one defendant in ajoint- defense agreement generally owe certainfiduciary duties to the other defendants.This fiduciary duty arises by sharingand receiving confidential information.The Seventh Circuit held that a defenseattorney breaches his or her fiduciary dutyif he or she uses information obtained ina joint- defense meeting against the codefendant.Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir.1978). In such a situation, a defense attorneycan be disqualified from a representationbased on his or her fiduciary duty andthe conflict of interest it presents.Third-Party Beneficiary RelationshipAn attorney can also be held liable to hisor her client’s codefendant under a thirdpartybeneficiary theory. Assume thatunder a joint- defense agreement, attorneyfor defendant 1 and attorney for codefendantjointly prepare and sign a motionfor summary judgment. Attorney for defendant1 then offers to file and serve it,but does not file it in time. As it turns out,the court would have granted the motionfor summary judgment but for its tardiness.Codefendant then incurs substantialexpenses in preparing for and tryingthe case. Attorney for defendant 1 could befound liable to codefendant under a thirdpartybeneficiary theory.Contractual LiabilityAn attorney who is party to a joint- defenseagreement may also face contractual liabilityfor breaching the terms of the agreement.An attorney in a joint- defense

agreement typically agrees to keep certaininformation received from codefendantsconfidential while at the same time the attorneyowes his or her client a duty of utmostloyalty. When an attorney is forced toeither breach the duty of loyalty to his or herclient or the obligation to keep the codefendant’sinformation confidential, the attorneywill have a conflict of interest that mayrender him or her disqualified to representhis or her client or a subsequent client.Risks to ClientsJoint-defense agreements are not only riskybecause of the increased liability exposurefor attorneys. Defendants should also bewary because the joint- defense privilegeis not as strong as the attorney- client privilegeor attorney work product privilege.The joint- defense privilege is more easilylost or waived.For example, if codefendants do notagree to assert the common- interest doctrineand underlying applicable privilegewhen responding to discovery requests orother compelled disclosures of materials orinformation covered by the joint- defenseagreement, a client may lose certain privilegesand an attorney may face liability forbreaching his or her fiduciary duties to theother signatories to the joint- defense agreement.OXY Resources Calif. LLC v. Sup.Ct.(Calpine Natural Gas LP), 115 Cal. App.4th 874, 901–02 (ordering disclosure ofsome documents covered by a joint- defenseagreement because the party producingand transmitting them to the other partydid not assert privilege or oppose a motionto compel production).As mentioned above, the joint- defenseprivilege is waived as soon as one of thejoint defendants becomes an adverse party.See In re Sunrise Secs. Litig., 130 F.R.D.560, 573 (E.D. Pa. 1989); Medcrom HoldingCo. v. Baxter Travenol Labs., Inc., 689F. Supp. 841, 844 (N.D. Ill. 1988) (“confidentialcommunications between codefendants…are privileged against thirdparties except where the co- defendantslater become adversaries in litigation.”)Some courts have even held that participantsin a joint- defense agreement canunilaterally waive the privilege protectionfor their own communications. Ohio-SealyMattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 29(N.D. Ill 1980); Matter of Grand Jury SubpoenaDuces Tecum Dated November 16,1974, 406 F. Supp. 381, 394 (S.D.N.Y. 1975).Limiting the RisksThere are many ways that attorneys and defendantscan limit their exposure and riskwhen entering into joint- defense agreements.Before entering into a joint- defenseagreement, defense counsel should developa thorough understanding of the case andthe theories of liability alleged againsteach defendant. When there is a reasonablelikelihood that defendants could laterbecome adversaries in the same litigation,defense counsel should refrain from sharinginformation that the client wants tokeep confidential. The less likely it is thatdefendants could become adversaries, themore defendants can feel confident that theinformation that they share will remainprivileged.In cases in which defendants do nothave the same or substantially similarlegal interests, defense counsel should beextremely judicious in sharing privilegedinformation or decline participating in ajoint- defense consortium altogether. If acourt finds that the shared communicationdid not further the common defense,the underlying attorney- client or attorneywork product privilege would be waivedupon voluntary disclosure to a third party.If after reasonable consideration of thespecific facts of a case, defense counsel concludesthat entering into a joint- defenseagreement will benefit their client, counselshould fully inform their client of the risksand benefits of entering into a joint- defenseagreement. It is advisable and often necessaryto secure a client’s informed, writtenconsent before entering into a joint- defenseagreement on a client’s behalf.Before sharing any privileged informationwith other defendants, an attorneyneeds to ensure that a carefully draftedjoint- defense agreement is in place andthat it has been signed by each attorneyJoint Defense, continued on page 78Experience and Precisionin Forensic EngineeringFor over 30 years, clients have counted on Crane Engineeringto provide expert forensic engineering services and litigation support.Crane engineeringwww.craneengineering.cominfo@CraneEngineering.com763-557-9090 800-538-2797 Fax: 763-557-0710Crane Engineering, 2355 Polaris Lane North, Plymouth, MN 55447-4777For The Defense n April 2011 n 49

Y O U N G L A W Y E R SIncreasing Diversity inthe Legal ProfessionBy Cassandra FortinAre YouAnswering theCall to Action?Vision without executionis hallucination.—Thomas EdisonIncreasing diversity in the legal profession will take morethan words. It will take action. In 2003, the United StatesSupreme Court ruled in Grutter v. Bollinger, 539 U.S. 306(2003), that a law school can take race into account inmaking admission decisions because thestate has a compelling interest in achieving“a diverse student body.” Justice SandraDay O’Connor recognized that law schoolsserve as training grounds for our country’sleaders; therefore, we must make access tothe profession broadly inclusive.Despite Justice O’Connor’s observation,Caucasians constitute about 70 percent ofthe working population over the age of 16,and they represent 89 percent of all lawyersand 90 percent of all judges, accordingto 2009 data. A.B.A. Presidential DiversityInitiative Comm. on Diversity, Diversity inthe Legal Profession: The Next Steps, Reportand Recommendations (2009–2010), http://www.americanbar.org/content/dam/aba/migrated/centers/diversity/PublicDocuments/Diversity_Summary_Report.authcheckdam.pdf.We must bewilling to stand up and call on our colleaguesto take action to increase diversity,otherwise we will not make progress.A Call to ActionIn 1999, nearly 500 major corporationssigned a document entitled “Diversity inthe Workplace: A Statement of Principle,”which showcased their commitment to increasingdiversity within the legal profession.Unwilling to let this commitmentdisappear and facing the glaring lack ofdiversity in the legal profession, Roderick“Rick” Palmore—then- executive vice president,general counsel, and secretary of SaraLee Corporation and the current executivevice president, general counsel, and chiefcorporate and risk management officer ofGeneral Mills, Inc., called on corporationsand law firms to share their commitmentto increase diversity by demanding resultsin the law firms with which they worked,as well as in their own law departments.Palmore’s unrelenting mission to increasediversity inspired his new call to action.Palmore’s A Call to Action—Diversity in theLegal Profession, urged signatories to takethis commitment beyond the “disappointingplateau” that had been sustained since1999. A Call to Action appeared on the Associationof Legal Counsel’s website in Oc-50 n For The Defense n April 2011■ Cassandra Fortin is an associate of Larson King LLP in St. Paul, Minnesota, where she focuses her litigation practice in theareas of products liability, business, financial services, and insurance coverage. She is a member of DRI’s Young Lawyers CommitteeSteering Committee and serves as vice chair of the Law School Initiative Subcommittee. Ms. Fortin is also a Council andAssembly member for the Minnesota State Bar Association and a member of the Minnesota Defense Lawyers Association.

tober 2004. Rick Palmore, A Call to Action:Diversity in the Legal Profession, availableat http://www.lcldnet.org/perspectives_2004_call_to_action.html.Signatories were asked to agree to (1) takeaction consistent with A Call to Action;(2) make an abiding commitment to diversityin their own departments; (3) activelylook for opportunities with law firms thatdistinguish themselves in diversity issues;and (4) end or limit relationships with firmswhose track records reflect a lack of meaningfulinterest in diversity. Since the inceptionof A Call to Action, over 100 generalcounsels have pledged their support andsigned onto the upholding its principles.The A Call to Action SummitRecognizing that the success of A Call toAction depended on a collaborative effortamong general counsels and law firms towork together and commit to increasingdiversity in the legal profession a reality,the signatories hosted an A Call to Actionsummit in 2008. This summit provided anenvironment to foster and further dialogueabout the state of diversity in the professionand the ways in which firms and their corporateclients could collaborate to achievediversity in the legal profession.A seven- member general counsel organizingcommittee made up of Fortune 500companies brought the A Call to Actionsummit to fruition. This two-day event providedan opportunity for general counselsand managing partners to review diversitybest practices, current benchmarks,and standards within the profession andto devise an agreed-upon plan of actionfor addressing diversity in corporate lawdepartments and within major law firms.The summit also provided a forum for decisionmakers and individuals with influencein the profession to collaborate andunderstand effective and meaningful waysto increase diversity in the legal profession.To ensure continued commitment toincreasing diversity in the legal professionin recognition that change could only occurthrough measured, sustainable, and collaborativeaction, A Call to Action summitworking groups were created, led by oneFortune 500 general counsel and a managingpartner from one of the nation’s toplaw firms. Those groups included Law FirmCall to Action; Strategies for Law Firm andCorporate Partnerships; Goals to MeasureSuccess; and Recruitment, Retention andAdvancement. Participants also focusedon (1) maintaining a working partnershipbetween corporations and law firmsand gaining a greater understanding ofthe challenges and opportunities faced byeach group; (2) establishing benchmarksfor measuring improvement in year-toyearrecruitment and retention of diverseattorneys; (3) discussing ways to reshapethe profession to make it more engaging todiverse populations and instituting additionalactionable steps toward achievingthis goal; and (4) maintaining a recurringevent to discuss diversity, update the groupon the status of tangible, agreed-upon initiatives,and ensure that progress is continuallymoving forward.Leadership Council on Legal Diversity“It is the task of this generation of leaders inthe law to deepen the commitment to a professionthat is increasingly open to talentedindividuals of all backgrounds.” LeadershipCouncil on Legal Diversity Website, http://www.lcldnet.org/ (last visited Jan. 24, 2011).Continuing the collaborative efforts of generalcounsels and law firm managing partnersdedicated to creating a truly diverselegal profession, the Leadership Council onLegal Diversity (LCLD) was formed in May2009. The LCLD’s vision is “to significantlyadvance diversity and inclusion in our profession.”Its mission is “to continue the workof the ‘[A] Call to Action’ initiative by havingour organizations hire, retain, promote,and engage the best talent. A critical andnecessary element of having the best talentis having diverse talent.” The LCLD is committed“to work together to take action todrive material change in our institutions,with others in our circles of influence, andin the profession generally.”The LCLD held its inaugural conferenceentitled, “OPEN,” in Washington, D.C., inOctober 2010. OPEN stands for “Obligation,Power, Engagement, and Now.” Morethan 200 legal professionals attended theconference. Unique to this conference wasits participation requirement: for a companyto participate, its general counsel hadto attend, and each law firms had to send itsmanaging partner. Substitutes were not allowed.Moreover, the LCLD has limited itsmembership to managing partners and generalcounsels. This requirement should beapplauded because it recognizes that changewill only occur in the legal profession if corporationsand law firms send their leadersand decision makers to the table.The LCLD Strategic CommitteesThe LCLD introduced four strategic committeesat its inaugural meeting in OctoberChange will only occurin the legal profession ifcorporations and law firmssend their leaders anddecision makers to the table.2010. See About Us, Leadership Council onLegal Diversity, http://www.lcldnet.org/about_us_strategic_committees.html (last visitedMar. 18., 2011). The committees includethe following: Talent Development Committee,Partnership Committee, BenchmarkCommittee, and Pipeline Committee.Each committee has a chair, vice chair, andmembers who are themselves leaders in toplaw firms and corporate legal departmentsthroughout the country.The LCLD Talent Development Committeeis chaired by Gregory B. Jordan, globalmanaging partner of Reed Smith. Mr. Jordanreferred to talent development as “thebig issue,” a challenge that every member,firm, and organization has in common. Toaddress this challenge, the LCLD TalentDevelopment Committee has been workingon “one big idea,” the LCLD FellowsProgram.The LCLD Fellows Program is the signatureinitiative for the LCLD Talent DevelopmentCommittee. The program’s missionis to help high- potential attorneys reachtheir full potential and become leaderswithin member firms and organizations.This is accomplished through a year-long,intensive training and mentoring program,which debuts in 2011. Member firms willidentify one high- potential attorney andmember organizations will select two highpotentialattorneys to commit to the pro-For The Defense n April 2011 n 51

menting the third strategy by creating aspace online where member firms andorganizations can promote programs targetedat diverse law school students andwhere like-minded organizations can sharebest practices.State and Local Bar AssociationsAnswer A Call to ActionMany states, including Minnesota, havetaken matters into their own hands and puttheir words to action to increase diversityin the legal profession.Twin Cities Diversity in PracticeTwin Cities Diversity in Practice (TCDIP)was formed in 2005 from discussionsamong major Twin Cities’ law firms onhow they must take a leadership role toincrease diversity in the legal profession.See generally Twin Cities Diversity in Practice,www.diversityinpractice.org (last visitedMar. 18, 2011). The mission of theTCDIP is to support the efforts of its membersto attract, recruit, advance, and retainattorneys of color in the Twin Cities legalcommunity. It is also dedicated to promotingthe Twin Cities as a great placefor attorneys of color to develop professionallyand personally. One way that theTCDIP promotes itself is through “flyingsquads.” A “flying squad” travels to differentareas of the country to promote andintroduce law students to the Twin CitiesLegal market. Currently, the TCDIP has36 members—24 law firms and 12 corporatelaw departments. The partnering corporationsinclude 3M Company, Target,Cargill, Best Buy, General Mills, Cargill,Land O’Lakes, Inc., Medtronic, Travelers,United Health Group, Wells Fargo, andXcel Energy. Membership is open to privatelaw firms, corporate law departments, andother public and private employers of legalprofessionals in the Twin Cities metropolitanarea. The organization is governed bya board of directors, currently representing10 incorporated organizations and twoadditional corporate law departments. Aunique and critically important strategyof Twin Cities Diversity in Practice is thatit is led by a full-time executive director,Valerie Jensen.A key component of the TCDIP’s effortsis its summer clerkship program. The summerclerkship program offers an invaluableexperience for law students who havecompleted their first year of law school.Member law firms and corporate lawdepartments join together to host a firstyearlaw student. The law student splits hisor her summer between a law firm and acorporate law department. This is a uniqueopportunity, even more so for first-yearlaw students, because students can acquireexperience and skills in both a firm as wellas in an in-house setting. “The opportunityto pair up with a great firm and largecorporation is a very unique opportunity.The program also capitalizes on the lackof availability of 1L jobs, so it draws themost talented applicants to the Minneap-For The Defense n April 2011 n 53

Y O U N G L A W Y E R Solis market,” said Nathan Davis, rising 2Lat the University of Minnesota Law Schooland a participant in TCDIP in 2010. Duringthe summer of 2010, Davis split his timebetween the law firm of Faegre and Bensenand Target Corporation. Davis acceptedan offer to return to Faegre in the summerof 2011 and will also work at Sidley Austinin Chicago. Davis, a native of Omaha,The legal professionneeds to walk the walk tocreate a legal professionthat represents thediversity of our nation.54 n For The Defense n April 2011Nebraska, added that “work experience isgreat in Minnesota. Everyone wants you tosucceed and will help you in whatever waythey can to make sure that happens. Peopleare very open to meeting and impartingadvice from the top to the newest associate.”Davis also participated in many of theTCDIP’s activities throughout the summer,which introduced participants to the TwinCities. “Minnesota is a great place to live.Many local restaurants and businesses, lotsof available outdoor activities, great publictransportation system, all major pro sports,affordable,” but, he said, Minnesota is “verycold and snowy.”In addition to providing an invaluableexperience for 1Ls, the TCDIP continuesto offer programming for attorneys afterthey complete law school. These programsinclude mentoring circles, a professionaldevelopment series, and summer socialand subcommittees. Mentoring circles consistof six to eight associates and juniorin-house counsel led by one senior firmattorney and one senior corporate attorney.The hope of the TCDIP is that mentoringcircles will offer junior attorneysan opportunity to extend their network inaddition to gaining insight from their mentorleaders. Furthermore, associates andjunior in-house counsel have the opportunityto become involved in the variousTwin Cities Diversity in Practice subcommittees,including marketing, professionaldevelopment, retention, best practices, andpipeline.In 2010, the Professional DevelopmentSeries provided a number of professionaland business development programs forTwin Cities’ attorneys with one to sevenyears of experience. These programs coveredimportant skills such as buildingrelationships, networking, having difficultconversations, being an indispensableattorney, and more.The TCDIP also runs the MinnesotaMinority Recruitment Conference(MMRC). The MMRC typically attractsbetween 20 and 30 Minnesota legal employerswho interview approximately 60 to 100diverse candidates. The McGhee Scholarshiphelps cover the cost of many out-ofstate students’ travel expenses.Lastly, the TCDIP cohosts an annualsummer social with the area minority barassociations, which provides an opportunityfor law students to meet minorityattorneys in the Twin Cities and also providesan opportunity for lawyers of colorto reconnect with their peers to build astronger professional community.Minnesota State Bar AssociationIn addition to the TCDIP, the MinnesotaState Bar Association (MSBA) andthe Ramsey and Hennepin County BarAssociations have actively made effortsto increase diversity in the legal professionin Minnesota. In 1993, the HennepinCounty Bar Association published areport titled, Walking Through InvisibleDoors and Shattering Glass Ceilings, whichfocused on gender issues, and came tobe know through the years as the “SageReport.” Hennepin County Bar AssociationGlass Ceiling Task Force, (1993), http://www.mnbar.org/committees/DiversityTaskForce/HCBAGlassCeilingReport1993.pdf. From thisreport stemmed the MSBA’s 2005 Self-Auditfor Gender and Minority Equity: A ResearchStudy of Minnesota Law Firms, Non-FirmEmployers and Individual Lawyers. Minn.State Bar Ass’n Task Force on Diversity inthe Profession (2006), http://www2.mnbar.org/ committees/DiversityTaskForce/Diversity%20Report%20Final.pdf. This report was based onsurveys focusing on race, religion, gender,sexual orientation, and disability. Moreover,the surveys sought to identify problemsleading to bias in the legal profession.Id. at 7. This report of the Minnesota BarAssociation Task Force on Diversity in theProfession led the task force to develop aguide to suggest ways to increase diversity,Diversity and Gender Equity in theLegal Profession: Best Practices Guide,Minn. State Bar Assn, (2007), http://www.mnbar.org/committees/ DiversityImplementation/DiversityBestPracticesGuideFinal.pdf. The guideis organized according to underrepresentedcommunities, identifying best practicesconducive to increasing representation ofeach underrepresented community. Moreover,the guide has been used by other statebar associations. The MSBA is currentlyupdating its diversity survey—which istentatively scheduled for publication in thesummer or early fall of 2011—and implementingthe best practices identified bythe task force in the greater Minnesotalegal community. Both publications seekto identify the problems as well as solutionsto increase diversity in the legal professionin Minnesota and to achieve these goalsthrough a comparative analysis of currentand past data.An invaluable opportunity the MSBAprovides to law students is its 1L ClerkshipProgram. The program began in 2005 andprovides 1L law students with an opportunityto work in a medium to large TwinCities’ law firm. The program has hadas many as 24 students participate in asummer associate experience. The programfocuses on students attending oneof the four Minnesota law schools who aremembers of a racially underrepresentedcommunity. Although the program experienceda reduction in firm participationin 2010 due to the downturn in the economy,it expects to increase its number ofemployer- participants in the future. Oneadditional challenge that the program hasexperienced is keeping students in the stateof Minnesota. To address this issue, theMSBA has broadened support of diversecommunities in the Minnesota legal market,collaborating with others to hold theMinnesota Minority Bar Summit.In 2009 and 2010 Judge Leo Brisbois,the first Native American president of theMSBA and a current U.S. District Courtmagistrate judge, revitalized the MinnesotaMinority Bar Summit. The summit isa group of minority bar associations, local

and federal bar association diversity committees,other affiliated organizations supportingunderrepresented communities,and representatives of the four Twin Citieslaw schools. Presently, the summit seeksto collaborate on pipeline issues to ensureongoing depth in Minnesota’s future legalcommunity. Moreover, the summit providesan opportunity for the leaders ofparticipating organizations to learn aboutdiversity broadly, connect with personswith common passions, and help foster anenvironment in which all are truly committedto increasing diversity in the TwinCities. The groups collaborating in thesummit created Minnesota Legal Diversityto serve as a forum for prospective andcurrent law students and legal practitionerscould learn about the opportunities offeredin Minnesota. See Minnesota Legal Diversity,http://www.mnlegaldiversity.org/ (last visitedMar 18, 2011). In 2007, the DiversityCommittee of the MSBA was approachedby the summit and accepted the responsibilityfor ongoing administration of thewebsite for Minnesota Legal Diversity. Id.These are just some of many examples ofthe MSBA’s and various bar associations’answer to Mr. Palmore’s A Call to Action.The NFL and the SECDiversity InitiativesThe legal profession is not the only professionthat recognizes the need to increase diversity.The National Football League (NFL)and the U.S. Securities Exchange Commission(SEC) understand the importance of diversityand have implemented new practicesto support diversity initiatives.The NFL’s Rooney Rule“If we always use the same playbook… we’llnever achieve any real change.” SandraLeung, General Counsel Bristol- MyersSquibb, LCLD Interviews, LCLD Website,http://www.lcldnet.org/perspectives_lcld_interviews.html (last visited Jan. 24, 2011).For decades, NFL head coaching positionslacked diversity. In 2002, the NFL publisheda study that found that 70 percent ofNFL players were African American, whileonly 28 percent of the assistant coachesand only six percent of head coaches in theleague were African American. Greg Garber,Thanks to Rooney Rule, Doors opened,ESPN.com (Feb. 9, 2007), http://sports.espn.go.com/nfl/playoffs06/news/story?id=2750645.Many justifications have been offered forthe NFL’s failure to achieve diversity amonghead coaches: few good minority candidatesexisted; because top college football coacheshave not been reflected in underrepresentedcommunities, the league didn’t have a pipeline;and even “the head coaching positionrequired a kind of thinking that did not lenditself to minority coaches.” Luis A. Aguilar,Commissioner, U.S. Securities and ExchangeCommission, Address at AgendaLuncheon Program, Board Diversity: WhyIt Matters and How to Improve It (Nov. 4,2010), http://www.sec.gov/news/speech/2010/spch110410laa.htm#P32_5972.Recognizing the need to increase diversityin the league, the NFL instituted theRooney rule, which requires all NFL teamsto interview at least one minority candidatewhen filling a head coaching positionor risk a fine. The goal of the rule is to providequalified, overlooked candidates withthe opportunity to compete for coachingpositions by placing them in the pool ofapplicants. Since the rule’s adoption, 22percent of the head coaching positions havebeen filled with minorities, and during the2006 league season, seven of the league’s32 head coaches were African American.Currently, six NFL head coaches, or 18.75percent, are minorities. Antonio Gonzales,NFL Gets ‘A’ for Racial Hiring; Slow HiringWomen, The GRIO (Sept. 29, 2010), http://www.thegrio.com/sports/nfl- gets- a- for- racialhiring-slow- hiring- women.php.SEC Rules Regarding Diversityin Policy DisclosuresResponding to calls from investors requestinginformation on corporate board diversityand company policies related to boarddiversity, in December 2009, for the firsttime, the U.S. Securities and ExchangeCommission (SEC) adopted a rule to assessa company’s commitment to developingand maintaining a diverse board of directors.Aguilar, Board Diversity: Why It Matters,supra. The SEC rule requires disclosureof whether, and if so, how, a nominatingcommittee considers diversity in identifyingnominees for director positions. Id. Ifa nominating committee or a board has apolicy about considering diversity in identifyingdirector nominees, the final rulerequires disclosure of how the nominatingcommittee or board implements thispolicy and how the nominating committeeor the board assesses the effectivenessof its policy. “Diversity” is not defined inthe rules, which permits each company tointerpret it. Id.The rule first applied to proxy solicitationson February 28, 2010. Id. Unfortunately,while some companies providedWe must also rememberthat having minorities inleadership positions orincreasing numbers doesnot mean that the “diversityissue” has been solved.useful information, many simply providedabstract disclosure statements, for example,that diversity was something consideredas part of an informal policy. The newrule requires more than this. Id.U.S. SEC Commissioner Aguilar has recommendedusing disclosures that indicatewhether a company has a policy of interviewingone or more candidates who areminorities or women, retaining a searchfirm that has been specifically instructedto seek candidates that are minorities orwomen, or soliciting recommendationsfrom organizations that have a reputationfor identifying candidates with diversebackgrounds. Aguilar also recommendedhaving a disclosure indicate how manycandidates were interviewed that werewomen or minorities. Id.Given the studies that indicated thatdiversity in boardrooms results in realvalue for both companies and shareholdersand studies that indicate that companieswithout ethnic minorities and womenon their boards eventually may be at a competitivedisadvantage and have an underperformingshare value, it is not surprisingthat the SEC answered the call of investorsand enacted a rule regarding diversity policydisclosures. Id.Call to Action, continued on page 72For The Defense n April 2011 n 55

Y O U N G L A W Y E R SWatch and LearnBy C. Meade HartfieldKeep anEye on OpposingCounselBy watching youropposition closely,you might learn howothers view you andhow your courtroomchoices are interpreted.In the hustle and bustle of a trial, do not lose sight of theother side—literally. Without losing focus on your owncase, take as much time as you can to watch your opposingcounsel. Watch what he or she does, at the counsel’s table,behind the podium, in front of the jury.Watch the seemingly insignificant choicesthat he or she makes. Then watch how thejudge and the jury react. Often, you willnot believe your eyes. Every time, you willlearn from his or her mistakes.Poor choices in the courtroom can costeven a great attorney. Make certain thatyou avoid some of the following misstepsthat I, along with various judges and juries,have witnessed opposing counsel makeover the years. Or if you actually want tolose a trial, try a handful of these tactics.Bore Everyone from the StartCan an attorney be so dull during openingstatement that the judge falls asleep atthe bench? Since I have witnessed it firsthandon occasion, I can confirm that evena good judge can doze off in a courtroom.Of course, in one instance, the opposingcounsel never knew that his lackluster performanceduring his opening statement hadlulled an important member of his audienceto sleep. With his back turned from thejudge so that he could face the jury, he delivereda two-hour diatribe, a disorganized,repetitive, and rambling banter. Everyone,including the judge, was ready for a nap.Your opening statement can have all ofthe right arguments, but all will be lost onyour audience without the appropriate delivery.To keep the judge and the jury on track,use visual aids to pace your arguments, considerwell-placed pauses for emphasis, andfind the right tone and volume changes tokeep your judge and your jury engaged.Move around the room and evaluate whetherall eyes and ears are on you. Because whileour opposition never saw the judge rest hisfully tilted head on his hand, close his eyes,and do a few head nods, you can bet that thejurors did. And if a judge cannot stay awaketo pay attention, why should jurors?Drink During Your Opening StatementIf you are the only person in the room witha soda in your hand, you might want to putthat drink down—and leave it alone. First,the act of taking a sip of your carbonated56 n For The Defense n April 2011■ C. Meade Hartfield is an attorney with Baker Donelson Bearman Caldwell & Berkowitz, P.C., practicing from both Birmingham,Alabama, and Jackson, Mississippi. She primarily concentrates her practice on product liability, including drug and medicaldevice litigation. An active member of DRI, Ms. Hartfield currently serves as the Publications Vice Chair for the Young LawyersCommittee and the Young Lawyers Liaison for the Trial Tactics Committee.

efreshment is visually distracting whileyou are trying to state your case. Second,everyone else in the room starts wonderingwhy they do not have in hand the coldbeverage of their choice. After all, jurorsmust sit for hours on end in uncomfortablewooden chairs, listening to strangers talkabout unfamiliar and sometimes uninterestingissues. They need refreshment morethan anyone.Stop and think about how this small actcould have big consequences. Your openingstatement sets the tone for the rest of yourcase. A jury is most attentive at the beginningof a trial. At this stage, jurors pick upon both verbal and nonverbal cues. Theyprobably will decide which counsel theylike better and, in turn, their instincts willtell them which side of the aisle they planto support. If you want to give them a reasonto dislike you right from the start, graba drink and take a sip in between your sentences.Your thirst may decrease, but sowill your likeability.Land a Blow Below the BeltIf you want to lose respect in the courtroom,throw stones. Better yet, hurl themat your opponent and his or her witnesses.Most attorneys keep some zingers in theirback pocket, just in case a verbal exchangegoes crossways. But the courtroom is notthe place for personal attacks. Whether youtake a jab at a witness or an opposing counsel,even what you think is subtle proddingcan do major damage to your credibility.As my mother says, “You can think it,but you do not have to say it.” Use your filter.It may feel good when the words leaveyour mouth, but you have no idea how allthe watching eyes and listening ears in thecourtroom will feel about what you said,and how and why you said it.The blame game is dangerous. Be carefulin deciding whether to and when to playit. For instance, blaming a party can alienateanyone on the jury who has felt victimizedin the past. Everyone has been pickedon at some point in his or her life. So yourstone- throwing will conjure up the jurors’schoolyard sense of right and wrong. Youcould appear a bully. And bullies do notalways get away with their antics. So tryto keep the zingers to yourself, or else thejury could blast you with a low blow of itsown—a hurtful verdict.Meet Only Once WithYour Star WitnessHave you ever watched an opposing counsel’scase crumble at trial with one question?Here is an example. Question: “Didyou smell any gas?” Answer: “No, I onlysmelled smoke.” That answer will kill yourdryer- fire case against a gas company, if thewitness was the only person at home in thehours before the fire and the best person toestablish whether a gas leak caused the fire.I could tell that this particular opposingcounsel was completely caught off guard byhis witness’ response. He fished for a differentexplanation, but when he kept receivingsmoky, gasless answers, he cut thequestioning short and asked the judge fora break. At which point, he promptly settledthe case for a substantially lower figurethan his prior settlement demand. Unfortunatelyfor that opposing counsel, his starwitness was his homeowner client’s teenagegrandchild, who had moved several statesaway a year or so before the trial. She wasnot very accessible, and apparently, ouropposition did not have the opportunity tomeet with her often to make sure that theyhad fleshed out the key issues in the case.As a result, she surprised everyone duringthe trial.Witnesses often are full of surprises onthe stand. You had better hope that the surprisedoes not come from your star witness.To curb that possibility, you need tomeet with that witness more than oncebefore trial starts. Granted, you cannotcontrol what a witness says on the fly. Butby having multiple preparation meetings,you increase the number of times the witnessgets to practice telling his or her story.Also, you decrease the number of surprisedetails that could come to light on the standas that witness walks down memory lane.In short, witness preparation will help youavoid being shocked during trial by thevery person who is supposed to help youwin your case.Disobey the JudgeAn obedient attorney makes for a happyjudge; a happy judge makes for a happierattorney. Disobeying a judge is the fastestway to make even the most laid-back judgevery angry, very quickly. For instance,if a judge gives you a deadline from thebench, you had better keep it. Capitalize itin your calendar. Tattoo it on your arm inpen ink if you must. Otherwise, beware ofthe judge’s reaction. Take, for example, thetime that I saw one opposing counsel missan expert disclosure deadline and thentry to hedge on the specifics of what documentsthe judge had said were due, andwhen. The judge did not mince words whenhe reminded opposing counsel that he—Witness preparationwill help you avoid beingshocked during trial bythe very person whois supposed to helpyou win your case.and every other witness in the court room,including the court reporter—rememberedexactly what he had said from the bench.And then the judge politely excluded a goodchunk of the expert’s testimony.Similarly, if a judge has ruled againstyou and in favor of the other side, respectthe ruling. I once saw an opposing counselnonchalantly try to slip in testimonyregarding the financial status of our corporateclient, despite the judge’s pretrial rulingthat all evidence of either party’s sizeand wealth should be excluded from trial.The judge immediately shot up to the edgeof his seat and shouted in a most authoritativetone, “Don’t go there.” Opposingcounsel looked as if he had been caughtred-handed. The judge looked upset. Thejury caught on. And in the bench conferencethat followed, the judge’s face spokevolumes. The opposing counsel had triedto reopen a closed matter. He had refusedto accept an adverse ruling and, in the process,he lost some major “cool points” withthe judge and the jury.Use a Catch Phrase That Becomesa Mantra for the Other SideChoose your case themes and catch phraseswisely. You could hear them again—fromthe other side. Think about how the oppo-For The Defense n April 2011 n 57

Y O U N G L A W Y E R Ssition might attack your key words andphrases throughout a trial. Some wordslead to obvious danger zones, such as callingthe other side “greedy” or calling awitness a “liar.” Let a jury draw those conclusionson its own by the way you presentyour case. Otherwise, you risk offending ajury with your verbal darts. And a mad juryis a dangerous jury.“Your Honor, Iobject,” is the easypart. Make certain thatyou brush up on yourrules of evidence andknow the right thingto say afterward.Remember, strong language will evokestrong reactions. For example, I oncewatched a corporate representative for theother side describe the company’s goldenrule as, “He who makes the gold rules.”As you might imagine, that phrase didnot sit well with a conservative jury thatunderstood the Golden Rule as, “Do untoothers as you would have them do untoyou.” Do not give your opposition such agift, because the words used by your trialteam as a defensive shield could become agood sword for the other side. In the warof words, choose your weapons carefully.Allow Your CorporateRepresentative to Arrive Late“One Mississippi, two Mississippi, threeMississippi….” Thirty minutes later, thecorporate representative for the other sideshowed up, without an explanation. Wenever knew what caused his delay. We onlyknew that his absence would prolong thetrial day, and we watched the jury glare athim when he walked in with the opposingcounsel.If someone will arrive late to court,make sure it is not someone on your team,let alone the person sent to represent the58 n For The Defense n April 2011face of your client. Communicate to yourcorporate representative the importanceof showing the utmost respect in everypossible scenario in the courtroom. Thatincludes timeliness. Tardiness shows a lackof concern, and the last person who needsto appear unconcerned is the companyman or woman. If running behind scheduleis unavoidable, at least make sure thatthe corporate rep has a good and, of course,truthful excuse and that you appropriatelycommunicate that reason to the judge and,if necessary, to the jury. Otherwise, the jurywill draw its own conclusions, and apathyon the part of your corporate representativeusually is not a helpful jury inference.Fail to Make Proper ObjectionsHave you ever watched opposing counselmismatch their objections or forget themaltogether? I have seen seasoned attorneysobject to open-ended questions that werenot leading and then fail to object whenthe questions really were leading. Moreover,I have seen opposing counsel rarelyraise a hearsay objection, even allowingwitnesses to read hearsay testimony fromother witnesses’ depositions into evidence.These head- scratching patterns will makeyou raise an eyebrow at trial.Learn to object at the right time and inthe right form. When you make the wrongobjections at the wrong time, you can losecredibility with a jury if the judge keepsoverruling your objections. Moreover, ajury could resent you for interrupting theline of questioning. And you look andrightly may feel silly. Even worse, a properobjection never made is waived forever.When you fail to object altogether, you doyour client a disservice, and you look evensillier. “Your Honor, I object,” is the easypart. Make certain that you brush up onyour rules of evidence and know the rightthing to say afterward.Hammer Your Best Point to DeathToo much of a good thing can make yousick. The same is true during a trial. Forexample, I have seen a jury eventuallytire of hearing from an opposing counselabout his favorite topic—the contractbetween the plaintiff and the defendant.After a while, whenever the opposing counselmentioned the word “contract,” or displayedsome provision on the projectorscreen, the jurors collectively shifted intheir seats and let out audible sighs andgroans. Some of them would even turn toour litigation team, give us a good smirk,and roll their eyes in boredom. I could seewhat they were thinking: “If I hear aboutthe contract one more time….” No matterwhat the contract said, the jurors simplyhad become disinterested. They hadheard the same series of questions posedto almost every witness that took the stand.The jurors were sick of the contract and, inturn, sick of the opposing counsel.To avoid losing jurors’ attention andsupport a little more each day of a trial,find fresh ways to make your key points.For example, the opposing counsel concernedabout the contract could have madehis point without having every witnessreread the pertinent provisions. He couldhave asked about the underlying principlesof the contract without actually usingthe document. He could have refrainedfrom showing the contract to every laypersonwitness who had not seen the contractbefore and had no reason to know of itscontents. He did not need to ask every singlewitness with the same aggressive lineof questions that the jury heard day in andday out. Belabored, the issue never cameback to life for the jury. So if you plan toattack an issue, at least hit it from differentangles. The jury will stay entertained, andyou will have hammered home your bestpoint without beating it to death.Avoid Shaking the Opposition’sHand After a Disappointing VerdictOne of the most unbelievable things thatI have seen in a courtroom was an opposingcounsel marching out after the juryreturned a verdict against his client—withoutso much as a “good job,” or “that wasa close one,” or “congratulations” to ourtrial team. That reaction affronts professionaletiquette and plain old good manners.Shaking someone’s hand is such asmall gesture, and reaching out your handextends well beyond you and the other person.A handshake can symbolize respectfor the legal profession itself, for the difficultyeveryone faces in trying a case, andfor a battle well fought by both sides.So do not let your pride swell to the sizeof the room and prevent you from movingKeep an Eye, continued on page 76

Y O U N G L A W Y E R SA PrimerBy Darryl C. Thomas IIThe Dodd-FrankWhistleblowerBounty ProvisionBecome a go-to lawyerfor Dodd-Frank issues byembracing the changesand working to developspecific expertiseabout the new law.Cheryl Eckard has become a virtual poster child for wannabewhistleblowers everywhere. In 2010, the Departmentof Justice (DOJ) awarded her $96 million as a reward forinformation that she provided about her employer, Glaxo-SmithKline, concerning alleged systemicabuses in one of GlaxoSmithKline’s foreignfacilities. The government used the informationit obtained from Eckard to net a$750 million settlement from the corporation.While Eckard’s 12.8 percent share ofthe settlement proceeds may seem impressive,it is modest compared to the 30 percentshare that whistleblowers may nowreceive under the Dodd-Frank Wall StreetReform and Consumer Protection Act of2010, Pub. L. 111-203.Quite expectedly, the plaintiffs’ bar hasstarted to pitch cases using Eckard’s storysupplemented with tidbits about their experiencein qui tam, IRS, and Sarbanes-Oxley whistleblower claims. One plaintiff’sattorney even purchased airtime before themovie Wall Street—Money Never Sleeps toadvertise his experience in achieving whistleblowerawards for his clients. See SEC.Snitch.com, http://www.secsnitch.com/new- secsnitch-commercial.html. The news is also filledwith statistics reflecting the harsh disparityin the compensation received by staff-levelemployees compared to corporate executives.Employees certainly have a financialincentive to report corporate malfeasance.As defense attorneys who represent thecorporations that may be vulnerable towhistleblower claims, it is imperative thatwe are well versed in the law concerningwhistleblower claims and be able to effectivelywork with our clients to prevent anddefend against these claims. With that inmind, this article will analyze the act’swhistleblower provisions and various whistleblowerretaliation protections, discusssome of the SEC’s most important whistleblowerprovision regulatory proposals, andoffer tips for defending clients facing SECenforcement actions or retaliation claimsbrought by employees.BackgroundOn July 21, 2010, following the worst Americaneconomic collapse since the GreatDepression, President Barack Obamasigned the Dodd-Frank Act. In addition toits announced purpose of ending “too big■ Darryl C. Thomas II is an associate with the law firm of Larson King LLP in St. Paul, Minnesota. He focuses his practice in theareas of mortgage lending and servicing litigation, insurance coverage litigation, and product liability. Mr. Thomas is an activemember of DRI where he serves on the Lawyers’ Professionalism and Ethics Committee as liaison to the Diversity Committeeand is also a member of the Federal Legislative Pilot Program for the Young Lawyers Legislative Liaison Subcommittee.For The Defense n April 2011 n 59

The Dodd-Frank Act additionally establishesanti- retaliation protections to financialservices employees who provideinformation to the new Bureau of ConsumerFinancial Protection or any othergovernmental agency regarding fraudulentor deceptive acts specifically related toofferings or provisions within consumerfinancial products or services. Financialservices employees are individuals workingfor companies such as those that extendcredit or broker loans, those that providereal- estate settlement services or propertyappraisals, or those that offer financialadvisory services to consumers for proprietaryproducts. The financial servicesindustry even includes companies providingcredit counseling.The SEC’s Regulatory Proposals toImplement the Whistleblower BountyOn November 17, 2010, the SEC released itsProposed Rules for Implementing the WhistleblowerProvisions of Section 21F of theSecurities Exchange Act of 1934. 17 C.F.R.pt. 240, 249. Although the final rules arenot due until April 21, 2011, the proposedrules shed light on some important terms.As reported in the SEC’s annual whistleblowerprogram report, the rules seekto “delineate eligibility for a whistlebloweraward and the procedures for applyingfor an award in SEC actions and relatedactions.” U.S. Securities and ExchangeCommission, Annual Report on WhistleblowerProgram (Oct. 2010), http://www.sec.gov/news/studies/2010/whistleblower_report_to_congress.pdf.Under the currently proposed rules, theSEC will “pay awards, subject to certainlimitations and conditions, to whistleblowerswho voluntarily provide the Commissionwith original information about aviolation of securities laws that leads to asuccessful enforcement of an action broughtby the Commission that results in monetarysanctions exceeding $1,000,000, andof certain related actions.” 17 C.F.R. pt. 240,249 (emphasis added).When Is InformationVoluntarily Provided?Under the Dodd-Frank Act, whistleblowersare eligible for awards only when theyprovide original information voluntarily.The proposed rules consider a submissionvoluntary if a “whistleblower provides theSEC with information before receiving anyformal or informal inquiry, request, ordemand from the SEC, Congress, or anyother federal agency, State or local authority,or other regulatory body includingself regulatory organizations such as theFinancial Industry Regulatory Authority(FINRA).” 17 C.F.R. pt. 240, 249.Enforcement investigations typicallycommence when the SEC opens an informalinquiry. This is the stage before SECstaff have granted authority to issue subpoenas.Thus, at this initial stage, SECinvestigators gather information fromcompanies by requesting information ona voluntary basis. After a formal investigationbegins, SEC personnel have theauthority to subpoena information andcompliance is mandatory. The proposedrules seek to clarify that to have actedvoluntarily, a whistleblower must comeforward with information before receivingany kind of request, informal or formal,from a government, oversight, orself- regulating authority. If a request forinformation is directed to an employer,then it “is considered directed to employeeswho possess the documents or otherinformation that is within the scope of therequest to the employer,” and if one of thoseemployees puts forth information after theemployer receives a request, that would notqualify as “voluntary.” 17 C.F.R. pt. 240,249. Finally, under the proposed rules, disclosureto the SEC is not considered voluntaryif the potential whistleblower has aclear duty to report the alleged violations.Officers and directors, for instance, havesuch duties and, in some cases, attorneys.What Is Original Information?Section 922 and the proposed rules imposethree requirements on “original information.”First, the information must comefrom a whistleblower’s independent knowledgeor analysis. Second, the SEC cannotalready know the information “unlessFor The Defense n April 2011 n 61

Y O U N G L A W Y E R Sthe whistleblower is the original source”of that knowledge. 17 C.F.R. pt. 240, 249.Third, the information cannot be exclusivelyderived from an allegation made ina judicial, administrative, or other context,such as the news media, an audit, or a governmentreport, unless the whistleblowerhim- or herself is the original source of thatinformation.To have actedvoluntarily, a whistleblowermust come forward withinformation before receivingany kind of request,informal or formal, from agovernment, oversight, orself- regulating authority.Although the Dodd-Frank Act doesn’tspecifically define “independent knowledge,”the SEC’s proposed rules to implementthe whistleblower enhancementsdefine “independent knowledge” as factualinformation in the potential whistleblower’spossession that the whistleblowerdoesn’t obtain from publicly availablesources. 17 C.F.R. pt. 240, 249. Under thatdefinition, public sources may include bothwidely disseminated sources, such as corporatereleases, and generally availablepublic sources, such as civil filings or Freedomof Information Act requests.The proposed rules do not require directknowledge, meaning that a potential whistleblowermay derive information secondhandfrom other parties. Furthermore, theproposed rules also would allow a whistleblowerto derive independent knowledgeby analyzing information from otherindividuals or sources, “either alone or incombination with others,” even generallyavailable information, as long as examiningand evaluating it “reveals informationthat is not generally known or available tothe public.” 17 C.F.R. pt. 240, 249. In the62 n For The Defense n April 2011words of the SEC, the rules include thistype of analysis because “there are circumstanceswhere individuals can review publiclyavailable information, and, throughtheir additional evaluation and analysis,provide vital assistance to the Commissionstaff in understanding complex schemesand identifying securities violations.” 17C.F.R. pt. 240, 249. Under the act, certainindividuals may not receive an awardeven though they provide original information.For example, the act does not allowawards to whistleblowers who are, at thetime the information is provided, members,officers, or employees of a regulatoryagency, the U.S. Department of Justice, aself- regulatory organization, the PublicCompany Accounting Oversight Board, oranother law enforcement organization. Theproposed rules further exclude people withlegal, compliance, audit, supervisory, orgovernance responsibilities for an entity asalluded above, when those persons receiveinformation about potential violations andwhen the information is communicated tothose persons for the reasonable purpose ofinitiating entity response. For example, ifan employee at Company X communicatesa potential violation to his or her supervisorwith the expectation that the supervisorwill remedy the situation, that supervisorcannot then contact the SEC and claim thathe or she has “independent knowledge” ofa potential securities violation.The Dodd-Frank Act also prohibitsawards to those who gain informationperforming an audit of a corporation’sfinancial statements as required under thesecurities laws. Under the proposed rules,however, this exclusion would not applyto a company’s accountants even thoughthey individuals may have contact with thecompany’s independent public accountant.Under the proposed rules attorneys whoreceive information from their clients whilesubject to attorney- client privilege could notreceive whistleblower awards. This exclusionholds unless the person communicatingthe information has waived the privilegeor if 17 C.F.R. §205.3, which creates exceptionsfor securities violations to the attorneyclientprivilege, applies, or state bar ethicsrules permit disclosure. See Model Rules ofProf’l Conduct R. 1.6(b) (confidentiality ofinformation), R. 1.13(c) (organization as client).An attorney could not take informationfrom a potential whistleblower seeking legalrepresentation or services and then contactthe SEC on the attorney’s own behalf for theattorney’s own benefit.Finally, both the Dodd-Frank Act andthe proposed implementing rules excludethose who obtain information by a meansor in a manner that violates federal or statecriminal law.What Is an Eligible Enforcement Action?A whistleblower’s eligibility for an awardalso partially depends on whether theinformation leads to the successful enforcementof an SEC or a related action. If theSEC can establish unlawful conduct bya preponderance of the evidence then itwould consider an enforcement action successful.As such, a whistleblower’s originalinformation must connect to evidenceleading to a successful enforcement andplay a significant role in making the SEC’scase against the wrongdoer.Determining whether a whistleblowerwould receive a bounty would dependsomewhat on when the whistleblower providesinformation. The SEC files an actiontypically after starting an initial investigationof a securities violation and afterstaff investigators recommend enforcementbased on preliminary findings. The proposedrules would consider the significanceof a whistleblower’s information to boththe decision to open an investigation andthe success of the resulting enforcementaction. Furthermore, if the whistleblower’sinformation caused the SEC staff to beginan investigation, the whistleblower wouldreceive a larger award than if the informationsimply related to conduct alreadyunder investigation—unless that informationwas essential and unobtainable withoutthe whistleblower’s help.Finally, the proposed rules set up a twoparttest for situations involving informationregarding conduct that the SEC is notalready investigating. First, the informationmust cause the SEC to open an investigation.The information need not be thesole information in the SEC’s decision toopen an investigation. Second, if the informationdid cause the SEC to open an investigation,the proposed rules require that theinformation “significantly contributes” toa successful enforcement.Whistleblower, continued on page 77

Y O U N G L A W Y E R SWater ContaminationCasesBy Jeffrey D. Van VolkenburgAfter theMarcellusShale RushThe settled law ofa state concerningstanding requirements,property law, and watercontamination claims willprovide the backbone fordefending these claims.The history of the United States has been defined, in part,by the discovery of domestic natural resources over the last200 years. From the beginning of large-scale production ofoil south of Erie, Pennsylvania beginning with Drake’swell in 1859 and the great gold rush in thehills of California beginning in 1848, domesticnatural resources have served tostimulate local, regional, and national economies,as well as to secure vital componentsnecessary for the continued function of domesticsociety. Domestic natural resources,when properly extracted and used, presenta boon to property owners and the country.Instead of coal, oil, or gold, the current timeperiod may come to someday be known asthe “Marcellus rush.” “Marcellus” refers tothe large shale formation that runs throughthe Allegheny Plateau region of the AppalachianBasin, which runs across parts ofNew York state, Pennsylvania, West Virginia,Maryland, Ohio, Kentucky, and smallportions of Virginia.The primary reason for the ongoingpush to extract natural gas in the MarcellusShale formation is that the naturalgas deposits contained in the MarcellusShale formation constitute one of the largestdomestic sources of natural gas everdiscovered in the United States. Additionally,its proximity to the major metropolitanareas of the Northeastern United Statesmakes its transportation to high- densitypopulation and usage areas an easier propositionthan transporting natural gas fromthe South or the West.Despite the economic benefits that propertyowners, lease holders, services companies,and state and local governmentsreap as a result of new leases for MarcellusShale drilling, environmental groups havesounded alarms over the potential contaminationthat some believe could result fromthe drilling of Marcellus wells. Examiningthe drilling process is beyond the scope ofthis article, but one of the primary concernsadvocacy groups voice is that drillingmay contaminate potential groundwater and drinking water. Access to thenatural gas reserves contained in the MarcellusShale formation is achieved by drilling“deep wells” located at vertical depthsof 6,000 to 7,000 feet. The technology usedto drill these deep wells involves a processcalled hydraulic fracturing, which has been■ Jeffrey D. Van Volkenburg is an associate with the law firm of McNeer, Highland, McMunn and Varner, L.C., in Clarksburg,West Virginia. Mr. Van Volkenburg practices in the firm’s litigation department specializing in insurance defense and coverageand toxic tort defense. He is the vice chair for the Expert Witness Database Subcommittee for the DRI Young Lawyers Committee.Mr. Van Volkenburg is also active in the Defense Trial Counsel of West Virginia.For The Defense n April 2011 n 63

Y O U N G L A W Y E R Sin use for approximately half a century.However, to tap the reserves in the MarcellusShale formation, companies haveoften drilled horizontal wells, and in usingthe hydraulic fracturing process, fracturingmay sometimes extend to nearby watersources. The process of horizontal drillinghas been refined in recent years in the BarnettShale formation in Texas.Counsel must be ready toadvise and counsel clientson the claims, defenses,and issues that couldremain after the MarcellusShale rush has subsided.64 n For The Defense n April 2011This article seeks to examine how thestate and federal courts in the MarcellusShale region have treated water rightsissues as well as some of the causes ofaction and theories of recovery that plaintiffshave used in water contaminationcases in those jurisdictions. Based on priorcase law, this article also seeks to examineissues that may arise in the future inpotential litigation in places where MarcellusShale drilling is currently takingplace. Plaintiffs potentially could sue companiesfor alleged contamination to drinkingwater sources with more frequency inthe region because most new well drillinghappens in rural areas, which rely moreheavily on individual water wells ratherthan the centralized, municipal water suppliesmore frequently seen in high densitypopulation areas. It is possible that claimsalleging water contamination might gainmore traction from plaintiffs depending onlocalized drinking water sources.The specific statutory requirements mandatedby state authorities for contaminantlevels deemed acceptable for consumptionin water varies by state, and it is beyondthe scope of this article. See http://water.epa.gov/drink/contaminants/index.cfm#1. It warrantsmentioning, however, that in 2005 Congressdecided to exclude the “hydraulic fracturing”of wells from EPA regulation under theClean Water Act. See Energy Policy Act of2005, Pub. L. No. 109-58, §1(a), 119 Stat. 594(2005). “Hydraulic fracturing,” sometimesknown as “fracking,” refers to the procedureof injecting fluids at a high pressureinto part of a well to force out oil or gas.See also Hannah Wiseman, Untested Waters:The Rise of Hydraulic Fracturing in Oiland Gas Production and the Need to RevisitRegulation, 20 Fordham Envt’l L. Rev. 115(Spring 2009).The attorneys representing companiesinvolved with Marcellus Shale drilling naturallyhope that property owners, operators,drillers, and contractors will mutuallybenefit from the exploration and developmentof new wells. However, counsel mustbe ready to advise and counsel clients onthe claims, defenses, and issues that couldremain after the Marcellus Shale rush hassubsided. The issues raised by potentialwater contamination claims arising afterMarcellus Shale drilling will likely presentsome novel issues. Most jurisdictions,however, have a well- settled base of law towhich potential litigants can look to makeeducated predictions about how courts willtreat individual causes of action and watercontamination claims.Standing and Statutes ofLimitation and ReposeBased on well- settled case law developedfrom previous water contamination casesin most jurisdictions, a plaintiff in a potentialMarcellus Shale drilling suit will likelyassert the following causes of action: trespass,medical monitoring, private nuisance,negligence, gross negligence, and battery.However, before analyzing those substantivecauses of action, we must evaluate theissues of standing and statutes of limitation.Constitutional Standing RequirementsCompanies continue to drill MarcellusShale wells at increasing rates and willlikely continue to do so for the next severalyears. As a result, litigation allegingwater contamination claims could spreadwell into the future. One important componentof water contamination claims will bewhether putative plaintiffs have “standing”to move forward with their suits. A concurrentconsideration will be the various statutesof limitation and repose that may beimplicated claims filed late by landownersor others alleging contamination.Federal courts possess jurisdiction to decide“cases” and “controversies” under articleIII §2 of the United States Constitution.Federal courts are obliged to satisfy themselvesthat they possess subject- matter jurisdictionin every case and may sua sponteraise the issue of standing. Judice v. Vail, 430U.S. 327, 331 (1977). The “irreducible constitutionalminimum of standing containsthree elements: ‘injury, causation, and redressability.’”Lujan v. Defenders of Wildlife,504 U.S. 555, 560 (1992). One of the criticalissues practitioners must be preparedto address is whether a potential plaintiffhas demonstrated that he or she “has sustainedor is immediately in danger of sustainingsome direct injury as a result ofthe challenged… conduct and the injury orthreat of injury must be both real and immediate,not conjectural or hypothetical.”Rhodes v. E.I. DuPont Nemours & Co., 657F. Supp. 2d 751, 757–58 (S.D.W.V. 2009) (citingCity of L.A. v. Lyons, 461 U.S. 95 (1983)).State courts also have their own standing requirements.See Findley v. State Farm Mut.Auto. In. Co., 576 S.E.2d 807 (W. Va. 2002)(“Standing is comprised of three elements:First, the party attempting to establishstanding must have suffered an ‘injuryin-fact’—an invasion of a legally protectedinterest which is (a) concrete and particularizedand (b) actual or imminent and notconjectural or hypothetical. Second, theremust be a causal connection between theinjury and the conduct forming the basisof the lawsuit. Third, it must be likely thatthe injury will be redressed through a favorabledecision of the Court.”).Standing requirements are especiallyimportant in the context of potential medicalmonitoring claims. The United StatesSupreme Court has only addressed theissue of standing in the context of medicalmonitoring claims in Ortiz v. FibreboardCorp., 527 U.S. 815, 884 (1999), where JusticeBreyer, in a concurrence joined by formerJustice Stevens, seemed to support theproposition that “fear of cancer or medicalmonitoring” could constitute an ArticleIII injury- in- fact. See also Rhodes, 657F. Supp. 2d at 758; Mass. v. Envt’l ProtectionAg’y, 549 U.S. 497, 517 (2007). And theFourth Circuit has acknowledged that anincreased risk of injury can constitute an

injury- in- fact. Friends of the Earth, Inc. v.Gaston Copper Recycling Corp., 204 F.3d149, 160 (4th Cir. 2000) (en banc) (“threatenedrather than actual injury can satisfyArticle III standing requirements”)). Theplaintiffs in Friends of the Earth sued thedefendant for a violation of the Clean WaterAct, and those claims probably differ fromthe claims a plaintiff would probably pursuein a case stemming from alleged watercontamination.For those attorneys practicing in Ohio,a state with active Marcellus Shale drilling,the Sixth Circuit, in Sutton v. St. JudeMed. S.C., Inc., 419 F.3d 568 (6th Cir. 2005),reversed a district court decision that dismisseda medical monitoring claim basedon lack of standing. The court of appealsfound that the potential increased risk forfuture harm from an implanted deviceconstituted sufficient evidence to satisfyArticle III standing requirements. See alsoRhodes, 657 F. Supp. 2d at 759 (citing anddiscussing Sutton v. St. Jude Med. S.C., Inc.,419 F.3d 568). Other circuits seem to havereached similar conclusions with respect tostanding requirements and medical monitoringclaims at least at the district courtlevel. See City of N.Y. v. Exxon Mobile Corp.(In re Methyl Tertiary Butyl Ether Prods.Liab. Litig.), 2009 U.S. Dist. Lexis 59287(S.D.N.Y. 2009); see also In re Paoli RailroadYard PCB Litigation, 916 F.2d 829(3rd Cir. 1990) (Paoli I); In re Paoli RailroadYard PCB Litigation, 35 F.3d 717 (3rdCir. 1994) (Paoli II); 113 F.3d 444 (3rd Cir.1997) (Paoli III). Paoli II found that medicalmonitoring arising from exposure toallegedly toxic substances was a valid causeof action in Pennsylvania. 916 F.2d at 850–51. Paoli I set forth the test that a courtshould use, which required, in part, thatthe plaintiff prove that there was “significantexposure” to a proven hazardous substancecaused by the defendant’s negligencethat resulted in a “significantly increasedrisk of contracting a serious latent disease.”35 F.3d at 787.Statutes of Limitation and ReposeAs statutes of limitation and repose maybe considered “procedural” in nature, itis important that practitioners remaincognizant of the different treatment thatthe federal courts may give state statutesthat are arguably procedural in nature. InShadburne- Vinton v. Dalkon Shield ClaimantsTrust, 60 F.3d 1071, 1077 (4th Cir.1995), the Fourth Circuit Court of Appealsannounced that different analyses wouldbe used in analyzing statutes of limitationand repose depending on whether the issuewas the constitutionality of retroactive legislationor a choice of law conflict. Id. at1074; see also Lieberman v. Cambridge Partners,LLC, 432 F.3d 482, 490 (3d Cir. 2005)(citing P. Stolz Family Partnership, L.P. v.Daum, 355 F.3d 92, 102 (2d. Cir. 2004) (discussingthe difference between a statute oflimitation and statute of repose)).Because of the possibility of latent diseaseclaims, practitioners must be preparedto address how “discovery rules” andtolling doctrines apply to claims. Marylandhas a “discovery rule” that it appliesto latent disease cases. See Harig v. Johns-Manville Products Corp., 394 A.2d 299 (Md.1978). Ohio, New York, Pennsylvania, Kentucky,and West Virginia each maintain a“discovery rule” that toll applicable statutesof limitation for injury claims. See Cundallv. U.S. Bank, 909 N.E.2d 1244, 1250 (Ohio2009); Willey v. Bracken, 2010 W. Va. Lexis104, at *14 (W.Va. Oct. 14, 2010); Cochranv. GAF Corp., 666 A.2d 245, 248–50 (Pa.2009); Huggler v. City of New York, 289A.D.2d 240 (N.Y. App. Div. 2001); LouisvilleTrust Co. v. Johns- Manville Products Corp.,580 S.W.2d 497, 501 (Ky. 1979). Virginiacourts maintain a more stringent standardfor evaluating when statutes of limitationexpire, and the legislature has consistentlyrefused to adopt a “discovery rule.” SeeVan Dam v. Gay, 699 S.E.2d 480 (Va. 2010).Counsel must also find out whether thepertinent statutes of limitation specificallyhas a latent disease exception as a “discoveryrule” may not extend to all tort claims.State and Federal DistrictCourt Treatment of WaterContamination ClaimsUnderstanding some federal and statecourt cases involving water rights can helpa practitioner to understand the issues thatmight arise in these cases and how courtsmay treat them, as well as how a practitionermay begin to mount a defense.West VirginiaWest Virginia has seen extensive drillingfor new natural gas wells in the MarcellusShale formation. At the state courtlevel, case law concerning water rightsinvolving personal consumption has notbeen extensively developed. The FederalDistrict Court for the Southern Districtof West Virginia, after removal by the defendants,examined claims arising fromthe admitted contamination of a drinkingwater source in Rhodes v. E.I. DuPontStanding requirementsare especially importantin the context of potentialmedical monitoring claims.Nemours and Co., 657 F. Supp. 2d 751 (S.D.W.Va. 2009). In Rhodes, a group of plaintiffsasserted claims for negligence; gross negligence;reckless, willful, and wanton conduct;private nuisance; past and continuingtrespass; past and continuing battery; medicalmonitoring; and public nuisance. Id.at 756. After extended discovery, the defendantmoved for summary judgmentbased on the statute of limitations and ageneral motion for summary judgment.The opinion in Rhodes provides an excellentoverview of potential standing issues,as well as the treatment courts frequentlyprovide to substantive common law claims.The court, sua sponte, analyzed theplaintiffs’ standing to assert claims formedical monitoring based on the increasedrisk of disease. Id. at 757–58. The court referencedthe holding in Baur v. Veneman,352 F.3d 625, 634 (2d. Cir. 2003), whichheld that “the courts of appeals have generallyrecognized that threatened harmin the form of an increased risk of futureinjury may serve as injury- in- fact for ArticleIII standing purposes.” Baur, 352 F.3d at633; see also Benney v. Deutsche Bank AG,443 F.3d 253 (2d Cir. 2006); Ortiz v. FibreboardCorp., 527 U.S. 815 (1999) (Breyer, J.,concurring). The Rhodes opinion acknowledgedthat the Fourth Circuit had notdirectly addressed the issue of standing inthe context of medical monitoring claims,but it had found that an increased risk ofinjury could constitute an injury in fact.For The Defense n April 2011 n 65

Y O U N G L A W Y E R SSee Friends of the Earth, Inc. v. GastonCopper Recycling Corp., 204 F.3d 149, 164(4th Cir. 2000) (relying on alleged violationof federal statute—the Clean WaterAct). As previously mentioned, the SixthCircuit has also recognized that a plaintiffhas standing to sue for medical monitoringwhen his or her only injury is a perceivedrisk of future harm. See Sutton v. St.Because of the possibilityof latent disease claims,practitioners must beprepared to address how“discovery rules” and tollingdoctrines apply to claims.Jude Med. S.Ct., Inc., 419 F.3d 568 (6th Cir.2005) (product liability claim for surgicalimplant device).Although not explicitly stated in theopinion in Rhodes, it appears that noneof the plaintiffs were able to directly showa current injury. In consideration of thisfact, the court’s analysis of the defendant’smotion for summary judgment on theplaintiffs’ negligence, gross negligence,and reckless, willful, and wanton conductclaims focused on the issue of damagesor the “injury” element of the respectiveclaims. The court considered whether theplaintiffs had sufficient evidence to raisea question of material fact with respect tocausation. Rhodes, 657 F. Supp. 2d at 763–64. The court found that “human exposureto PFOA [perfluoroctanoic acid] concentrationsbelow regulatory guidelines couldnevertheless cause human diseases.” Id.at 764 (referencing In re Methyl TeritiaryButyl Ether (MTBE) Prods., 458 F. Supp.2d 149, 158 (S.D.N.Y. 2006)). Concludingthe standing analysis, the court found that[p]laintiffs have raised a question ofmaterial fact as to whether the PFOA inthe PWD [Parkersburg Water District]water and in their blood originated atthe Washington Works plant. Assumingthat a significantly increased risk66 n For The Defense n April 2011of disease can qualify as an injury, theplaintiffs have also raised questions ofmaterial fact with respect to whetherDuPont’s actions caused them to suffersuch an increased risk.Id. at 766. The court found that the plaintiffsfailed to assert, and subsequently didnot provide evidence demonstrating, that“they will be subject to ‘reasonably certain’future injuries.” Id. The court, whiledismissing the plaintiffs’ negligence claim,did qualify the holding, finding that the“plaintiffs have sufficiently established theelements of ‘tortious conduct’ to supporttheir medical monitoring claim. Therefore,to the extent that plaintiffs’ negligenceclaims establish liability for their medicalmonitoring claims, their negligence claimssurvive.” Id.The court further found that the plaintiffshad insufficient evidence to sustaintheir public and private nuisance claimsto avoid summary judgment on thoseclaims. Relying on West Virginia law, thecourt found that because the contaminationimpacted a municipal water supply,the plaintiffs could not sustain a claimfor a private nuisance: “In order to effect aprivate nuisance, the contaminated watermust reach the groundwater below theplaintiff’s property or affect a direct supplyof water on an individual’s property.” Id.at 767 (referencing Anderson v. W.R. Grace& Co., 628 F. Supp. 1219, 1233 (D. Mass.1986) (“The right to be free of contaminationto the municipal water supply is clearlya ‘right common to the general public,’ thusinterference with that right would be a publicnuisance.”)); see also Restatement (Second)of Torts §821B cmt. B.With respect to the plaintiff’s public nuisanceclaims, the court examined whetherthe plaintiffs could demonstrate that theysuffered a “special injury different in kindand degree from that of the general public.”Rhodes, 657 F. Supp. 2d at 769 (referencingIn re Lead Paint Litig., 924 A.2d 484, 503(N.J. 2007)). The court’s analysis found thatthe plaintiffs had “not suffered a specialinjury different in degree and kind fromthe other PWD [Parkersburg Water District]customers” because “the only injuriesalleged as ‘special injuries’” were the“PFOA contamination of their propertiesand bodies” and the “increased risk of disease.”Id. The court found that these injuriesdid not constitute the “special injuries”necessary to sustain a claim for public nuisance,partly because the plaintiffs had notoffered evidence of remediable injuries dueto trespass or battery and granted the defendantssummary judgment on the publicnuisance claims. Id. at 769, 770 n.16. WestVirginia law defines a trespass as “an entryon another man’s ground without lawfulauthority, and doing some damage, howeverinconsiderable, to his real property.”Hark v. Mountain Fork Lumber Co., 34S.E.2d 348, 352 (W. Va. 1945). The court didacknowledge that “[a]n increasing numberof courts recognize trespass actions forintangible intrusion of particles so long asthere is property damage.” Rhodes, 657 F.Supp. 2d at 771–72 (citing Maddy v. VulcanMaterials Co., 737 F. Supp. 1528, 1540(D. Kan. 1990)). But the court dismissedthe plaintiffs’ trespass claims because WestVirginia has not adopted the rule permittingtrespass claims based on an intangibleintrusion of particles. Id. at 772–773(citing Bartless v. Grasselli Chemical Co.,115 S.E.2d 451, 455 (W. Va. 1922)). Thecourt also dismissed the plaintiffs’ batteryclaims, relying on the Restatement (Second)of Torts §15 (1965) (a harmful bodilycontact is contact resulting in “any physicalimpairment of the condition of another’sbody, or physical pain or illness.”).The final claims that the Rhodes courtaddressed were the plaintiffs’ medical monitoringclaims. While the court cited numerousdecisions, including United StatesSupreme Court decisions, which expresseddisapproval of medical monitoring claims,the federal district court relied on Bowerv. Westinghouse Electric Corp., 522 S.E.2d424 (W. Va. 1999). In Bower, the West VirginiaSupreme Court of Appeals recognizeda cause of action for “the recovery ofmedical monitoring costs, where it can beproven that such expenses are necessaryand reasonably certain to be incurred as aproximate result of the defendant’s tortuousconduct.” Id. at 431. Importantly, theRhodes court held, “[y]et I reluctantly concludethat the plaintiffs need not show anexisting injury or a reasonably certain futureinjury for their negligence claims tosupport their medical monitoring claim.”657 F. Supp. 2d at 776. The court furtherclarified that “the ‘injury’ requirementis satisfied by a negligent invasion of the

plaintiff’s ‘interest in avoiding expensivediagnostic examinations.’” Id. at 776 (citingBower, 522 S.E.2d at 430 (quoting Friendsfor All Children, Inc. v. Lockheed AircraftCorp., 746 F.2d 816, 826 (D.C. Cir. 1984)).The Bower decision required demonstratingunderlying liability for recoveryfor medical monitoring. Rhodes, 657F. Supp. 2d at 776. The court in Rhodesacknowledged that the Bower court did notinvolve a plaintiff that could not sustain aviable underlying tort but still sought medicalmonitoring. Id. But the Rhodes courtfound that the Bower court framed therequirement for a preexisting tort as “tortiousconduct.” Id. And “the relaxed injuryrequirement [no actual physical injury]of medical monitoring claims apply alsoto the underlying tort.” Id. Applying the“relaxed” requirement, “the emphasis is onwhether the defendant has breached a dutythat could cause harm—not on whether theconduct actually results in present or ‘reasonablycertain’ future harm.” Id. at 777(quoting Friends for All Children, 746 F.2dat 825 (Plaintiff “ought to be able to recoverthe cost of a variety of diagnostic examinationsproximately caused by [a tortfeasor’s]negligent action,” even “in the absence ofphysical injury.”)). The court interpretedthe Bower decision to mean that “all elementsof an existing theory of tort liability,except for the injury requirement, mustbe met for medical monitoring liability toarise.” Id.PennsylvaniaFiorentino v. Cabot Oil & Gas Corp., 2010U.S. Dist. Lexis 120566 (M.D. Pa. 2010),provides a view into how courts mightgreat claims arising from Marcellus drillingthat involve allegations of widespreadcontamination. Specifically, Fiorentino caninstruct defense attorneys about how theycan challenge claims early in litigation. InFiorentino, a group of 63 plaintiffs filed suitalleging the following causes of action arisingfrom natural gas wells drilled on theirrespective properties: (1) violations of thePennsylvania Hazardous Sites CleanupAct, 35 P.S.§6020.101-1305 (HSCA); (2) negligence;(3) private nuisance; (4) strict liability;(5) breach of contract; (6) fraudulentmisrepresentation; (7) medical monitoring,requesting trust funds; and (8) gross negligence.Id. at 2. The United States DistrictCourt for the Middle District of Pennsylvaniawas asked to rule on the defendants’motions to strike portions of thesecond amended complaint and to dismissthe second amended complaint. Id.at 3. The plaintiffs alleged that the defendants’hydro- fracturing process and otherproduction activities caused the releaseof methane, natural gas, and other toxinsonto the plaintiffs’ land and into thegroundwater. Id. at 7.The defendants challenged several of theplaintiffs’ causes of action in the motion todismiss. The court declined to dismiss theplaintiffs’ strict liability claim at the earlystage of the proceedings. Id. at 15–16. Thecourt also declined to dismiss the plaintiffs’claims for medical monitoring. Theplaintiffs agreed that Pennsylvania law didnot provide a cause of action for gross negligenceand consented to the dismissal ofthat claim; however, the court refused tostrike the allegations from the complaintsupporting the gross negligence claimbecause they were material to the plaintiffs’punitive damages request. Id. at 19.The court went on to clarify that the plaintiffscould continue to assert claims for fearof future illness and future emotional distress.These claims survived solely becausethe plaintiffs had alleged a present injury.Id. at *21 (citing Simmons v. Pacor, 674 A.2d232, 237–38 (Pa. 1996)). The court finallypermitted the plaintiffs’ negligence per seclaim to survive the defendants’ motion tostrike. The defendants also challenged theplaintiffs’ claims for HSCA violations onprocedural grounds, but the court did notdismiss them.New YorkIn re Methyl Tertiary Butyl Ether (MTBE)Products Liability Litigation, 458 F. Supp.2d 149 (S.D.N.Y. 2006), clarified New Yorkstate’s standing requirements as they applyto water contamination claims if a contaminationlevel did not surpass the maxi-Marcellus Shale, continued on page 73For The Defense n April 2011 n 67

W R I T E R S ’ C O R N E RWriting to Win‘Plain English for Lawyers’ Redux 2011By Albert J. D’Aquinon Albert J. D’Aquino is one of the founding partners of Goldberg Segalla LLP, afirm that has grown from seven attorneys in 2001 to well over 100 in 2011. Histrial practice focuses on the defense of attorneys and physicians in professional liabilityactions, trucking companies in catastrophic injury cases, and manufacturersin product liability actions. He has tried cases to verdict throughout the great stateof New York for 25 years and writes the appellate briefs in those of his trials that you describe it as one or the other rather than as “trueare appealed. Mr. D’Aquino is a member of the DRI Appellate Advocacy Committee. Writers’ Corner, continued on page 7268 n For The Defense n April 2011Many attorneys hope to find some easy, magical wayto produce the writing that most impresses us. In 1978,Richard C. Wydick’s unparalleled contribution to thediscipline of persuasive legal writing was published:“Plain English for Lawyers,” 66 Cal. L. Rev. 4, 1978.Many law school curricula have included study of this38-page article, and all should. More than 30 years laterthe concepts introduced in Wydick’s guide to great legalwriting are as relevant as ever. In our firm we have circulatedcopies to our lawyers, and I find it helpful toreread the article each year to perpetually ingrain itseffect on my writing. Wydick’s rules are neither magicalnor easy, but they do produce the result to whichwe aspire: writing clearly, effectively and persuasively tocommunicate a legal argument.Wydick articulated several important, concrete stepsto improve a letter or brief. Summarizing them into oneedict, they amount to edit, edit again and, in that process,strive to eliminate excess verbiage, strive towardeconomy of language. The reward for those who undertakethis effort is elegant, persuasive writing. Achievingthe final result definitely takes time, but it is timewell spent. After years of adhering to Wydick’s tenets, awriter can produce the desired result—economy of languagerich with meaning—with fewer edits and in lesstime. In this article, I will acquaint readers with some ofWydick’s central themes and hopefully instigate interestin reading his article for all its lessons.Abandon “Throat-Clearing” Phrases“Throat-clearing” phrases are those that, when added toor removed from a sentence, do not alter the meaning:they are useless. Lawyers use them thinking that theyneed them, similar to the way that major league pitcherswind up to deliver a strike across the plate. Pitchers’wind-ups, however, serve a mechanical purpose in deliveringa pitch. When your reader is a court, writing, “Itis important to note that the defendant did not deny hisguilt,” does not have a purpose. Writing, “The defendantdid not deny his guilt,” conveys the same meaning, anda court will know that this is important. Why say in 13words what we can say in seven?Once a writer accepts this concept, he or she can easilyavoid “throat-clearing,” prefatory, wind-up phrases.Examples abound: “It should be remembered that,” “Inthis regard it is of significance that,” “Of all of the manyrationales offered by the parties,” and the list could continue.For some it seems a nebulous, grandiose right oflawyering to employ such phrases, which may, in fact,have a place in oral arguments when used sparingly formaximum effect. In writing, however, they add nothing.Cumulatively, they make a written product unnecessarilylong and may fatigue a reader to the detriment of agood argument by burying it in verbosity. Which wouldyou rather have, a two-page letter to a court that leavesyou feeling satisfied with your use of prefatory phrases,or a one-page letter whose import you make evident to acourt upon its first reading? We know what judges prefer.Give it to them.Reduce Compound PrepositionsThese are the cousins of ‘throat-clearing’ phrases and, astheir relatives, add nothing to the meaning of a sentence.Why write and make your reader read “prior to” insteadof “before,” “in the event that” instead of “if,” “until suchtime as” instead of “until,” or “the fact that” instead of,well, nothing else? “The fact that the treasurer removedthe clause from the contract may have caused the boardto reject it” is better as “The treasurer’s removal of thatclause may have caused the board to reject the contract.”And it uses fewer words. Compound prepositionsabound in some legal writing, and you can easily reducethem by simply considering whether in removing themyou lose meaning in a sentence.Redundancy Is Only That Nothing More(Sorry, That Was Redundant)Unfortunately one generation of lawyers passes downredundant phrases to the next with nary a thought toending the legacy. Why tell someone that their failureto perform the terms of a contract have rendered thecontract “null and void”? If it were only termed null, doyou risk that a court may later find that contract valid?Is a copy of a document less “true” or less “correct” if

Visit www.dri.org orcall 312.795.1101 to registeror for more information.Now Stay Connectedwith the DRI Events iPhone AppDownload the DRI 2011 EventsApp from the App Store by simplysearching for “DRI Events.”DRI Events iPhone App featuresThe ability to personalize your seminar itinerary tofit your individual scheduleThe capability to view the schedule-of-eventsby dayThe Young Lawyers seminar attendee listwith real-time messaging capabilities(Note: Must login to this feature using youremail address)A comprehensive listing of sponsorinformationDon’t have an iPhone?All Smart Phone users are able toaccess the DRI Events MobileSite via their phone’s mobilebrowser by visiting:http://dri_meetings.quickmobile.mobi/mobile

T H I N K G L O B A L LYFive TipsOvercoming Juror Bias AgainstForeign DefendantsBy Christopher G. Campbelln Christopher G. Campbell is a partner in DLA Piper’s New York City office, wherehe represents a wide array of international and domestic clients in product liabilityand commercial litigation. He is the publications chair of DRI’s International Law Raise the Issue Early, and Choose Jurors CarefullyCommittee and the editor of the For The Defense “Think Globally” column. If you When it comes to juror bias, it is important to raisewould like to contribute a column for “Think Globally,” please e-mail Mr. Campbell the issue early, with both the judge and the jury. Bringat christopher.campbell@dlapiper.com. Think Globally, continued on page 7870 n For The Defense n April 2011A few weeks ago, I rewatched the 1993 movie RisingSun, starring Sean Connery and Wesley Snipes and basedon the novel by the late Michael Crichton. The story is amurder mystery, but the hook is that the murder takesplace in a high-rise Los Angeles office tower during aparty celebrating a Japanese corporate takeover of a U.S.company. The mystery is interesting, but just as compellingis the film’s treatment of America’s collective anxietyover Japan’s growing economic might in the 1980s andearly 1990s. As someone who has represented Japanesemanufacturers before judges and juries, I was remindedof the concerns over juror bias during that time period.In one case, a Japanese defendant even argued that, dueto potential jury prejudice, the court should deny the demandfor a jury trial. In re Japanese Electronic ProductsAntitrust Litigation, 631 F.2d 1069 (3d Cir. 1980). Not surprisingly,that argument failed.That brings us to today. While Japan no longer wieldsthe same economic influence or inspires the same trepidationamong Americans, the topic of juror bias againstforeign companies still looms large. It seems to alwaysloom larger during tough economic times and to alwaysloom largest against our greatest economic rivals. Yesterday,it was Japan. Today, it’s China. But juror bias isa legitimate concern for companies based in a foreigncountry. In fact, some jury consulting firms provide theirforeign clients with maps ranking potential juror biasacross regions of the country and specific venues. Considerthe following five tips for avoiding or overcomingjuror bias against your overseas clients.Plan Ahead—Consider International ArbitrationFor many members of DRI’s International Law Committee,which sponsors this column, and other members ofDRI at large, international arbitration is a way of life. Forothers of us, however, international arbitration remains,well, foreign. It is likewise unfamiliar to many internationalclients, particularly those clients who are not regularlyinvolved in litigation. To those of you and yourclients who fall into this category, become familiar withthe ins and outs of international arbitration and considerbuilding a clause into your contracts that directs disputesto that arena. The International Chamber of Commerce,the International Centre for Dispute Resolution, and theLondon Court of International Arbitration are leading organizationsin the area, and they have model arbitrationclauses that you can tailor to your client’s particular needs.Consider a Bench TrialThis one is obvious, but it is worth mentioning. Manyof us ask for a jury trial automatically, knowing that theopportunity is usually waived unless requested at theoutset of a case. Others may consider the risk of a biasedjury to be less than the risk of a biased judge, thinkingthat having many jurors—as opposed to one judge—maywash out the effects of any bias. Studies have shown thathas not been the case. Foreign corporations have faredfar better in patent cases tried before judges as opposedto juries. While your opposing party can always requesta jury trial if you do not, it is important to rememberthat the parties can often stipulate to a bench trial laterin a case. There is always a fair amount of horse tradingon various issues before a trial, and this might be somethingto negotiate.Challenge the VenueWhile the potential for juror bias is rarely sufficientgrounds for a change of venue outside the criminal context,you often have a variety of other means of challengingvenue. If moving to transfer based on forum nonconveniens, for instance, it may still be useful to raisebefore the court potential xenophobic biases in the currentvenue, perhaps pulling recent newspaper editorialsor other information to support the point. The court maynot grant your forum motion on that ground, but theadded context may help you ultimately prevail.

D E F E N S E E T H I C S A N D P R O F E S S I O N A L I S MProfessional Ethics in the Age of InternetThreats to Juror ImpartialityBy Jason H. CasellJuror impartiality has its roots in the Sixth Amendmentto the U. S. Constitution, which provides that in“all criminal prosecutions, the accused shall enjoy theright to a speedy and public trial, by an impartial jury.”Obviously, when the framers drafted this language,they simply aimed to ensure that juror bias would notthreaten the fairness of trials. Indeed, judges continueto remind jurors of their duty to remain impartial whenthey serve on criminal and civil panels, and not to speakto anyone about a case or to read or watch any relatedmedia coverage.But the ubiquity of instant, electronic communicationand mobile applications for social networking sites suchas Facebook, Twitter, MySpace, and LinkedIn allowsjurors to research the issues in the cases on which theyserve, as well as to immediately interact with others. So,how does this play out?In a Fort Lauderdale, Florida, drug trial in March 2009,a juror informed the judge seven weeks into the trial thatshe overheard a fellow juror talking about researchingthe case. The judge interviewed all 12 jurors, and after amajority admitted searching Google for the defendant’sname and medical terms, the judge declared a mistrial.Other instances of Google “research”—including juroruse of Google’s Earth Street View to examine crimescenes—have occurred with such frequency in recentyears that legal experts have coined the phrase, “Googlemistrial.” John Schwartz, As Jurors Turn to Web, MistrialsAre Popping Up, N.Y. Times, Mar.17, 2009. In February2009, an Arkansas juror used his handheld mobile deviceto post messages on Twitter during court proceedings,including the following tweet: “I just gave away twelvemillion dollars of somebody else’s money.” Id. The judgedenied the defense counsel’s motion for a new trial, andthe decision has been appealed. Id.A January 28, 2010, memorandum to all federal districtjudges from U.S. District Judge Julie Robinson—chair of the Committee on Court Administration andCase Management of the Judicial Conference of theUnited States—endorsed a set of suggested jury instructionsthat district judges should consider to deter jurorsfrom using electronic technology to research or communicateabout trials on which they serve.The proposed model instructions cover juror conductthrough a judge’s acceptance of a jury’s verdict:You should not consult dictionaries or reference materials,search the Internet, websites, blogs, or use anyother electronic tools to obtain information aboutthis case or to help you decide the case…. You maynot communicate with anyone about the case on yourcell phone, through e-mail, Blackberry, iPhone, textmessaging, or on Twitter, through any blog or website,through any Internet chat room, or by way of anyother social networking websites, including Facebook,MySpace, LinkedIn, and YouTube.According to the National Center for State Courts,no uniform standard exists throughout the country forjurors in state trials. However, some state courts crafttheir own rules. For example, new rules took effect inSeptember 2010 requiring Michigan judges to instructjurors not to use handheld devices while in the jury boxor during deliberations. The Florida Supreme Courtadopted similar rules in October 2010. Individual countycourts in Indiana and Oregon have completely bannedelectronic devices.Given the prevalence of mobile devices and social networkingsites, it is difficult to prevent jurors from sendingor receiving information about a trial or conductingresearch.So what can defense attorneys do? First, and foremost,they should ask jurors during voir dire about their socialnetworking habits. They should also monitor social networkingactivity throughout a trial up to the verdict bysearching sites such as Facebook, Twitter, and MySpace;conducting general Internet searches; and establishinge-mail alerts for key search terms. Defense attorneysneed to monitor this activity passively, meaning that youcannot issue Facebook friend requests or follow jurorson Twitter, for instance so that you will not run afoul ofethics rules forbidding ex parte communication betweenattorneys and jurors.This monitoring also raises another ethical issue. Forexample, if an attorney finds a juror post that potentiallyis harmful for a client, that attorney will obviously reportthe post to the judge. But what if he or she comes acrossa juror post that is favorable for the client? As an officern Jason H. Casell is a senior counsel in the Austin, Texas, office of Bowman andBrooke LLP, and is a member of the DRI Lawyers’ Professionalism and Ethics Committee.Mr. Casell represents pharmaceutical companies in litigation in state andfederal court and has extensive experience in electronic discovery matters involvinggovernment agencies as well as mass tort litigation. Ethics, continued on pageof the court, the attorney would still have the obligation76For The Defense n April 2011 n 71

Writers’ Corner, from page 68and correct”? Is payment of a fee less thantotal if it is only “full payment” or only“complete payment” rather than “full andcomplete payment”? While these examplesmay seem nitpicky, excellent writingresults from nitpicking. Cumulatively,each seemingly small change in style suchas this yields a sense in a reader that theyunderstand the message without lingeringdoubts about the meaning of certain passages,or without having to endure fatigueto make it through a brief laden with pointlessredundancies. Eliminate redundanciesand synonyms in the same sentence.Omit Surplus WordsSurplus words are easy to find and destroythrough editing. They almost jump out atyou when you read keeping their existencein mind. “Despite the fact that she wasinjured she walked to the station” meansthe same as the economizing, “Thoughshe was injured she walked to the station.”Omitting surplus words from one sentencealone may not seem important, butin an entire brief, the effect is compelling.It is perfectly acceptable to simply use oneword—“probably”—instead of more thanone word—“in all likelihood”— to conveythe sentiment that an event is, well, probable.This is a major tenet of Wydick’s article.Use Shorter SentencesThis is where the rubber meets the road inrefined persuasive writing. Some resist it inan effort to write sentences that soar withpassion and allusions and end up includingtoo many thoughts in one sentence. Whenwriting for an opponent or a court, it is betterto write sentences that hit like punchesrather than flurries that don’t quite hit themark. Wydick’s rule is simple: limit yourselfto one main thought or assertion persentence whenever possible. In editing,divide a sentence with more than one mainthought into as many sentences. Wydick’sarticle includes an appendix of exercises tolearn how to do this.Use Familiar, Concrete WordsDon’t use common “lawyerisms” unlessyou absolutely must. Typifying superfluity,“lawyerisms” also distract from your intendedpoint. To this day lawyers will write,“The contract specified said lessee was responsiblefor removal costs and any relatedcleaning costs.” Would your brief involve a“phantom” lessee? Not likely. Substitutingthe word “the” for “said” in the sentencewould suffice. Using “said” only makesa reader pause to consider who, exactly,“said” refers to. If more than one lesseewas involved in a transaction, then referenceeach by name for clarity. Using “said”is one of many examples of poor, outdatedword choice. Your goal is clarity, not to exemplifythe vestigial verbiage of an obsoleteconcept of “impressive” legal writing.ConclusionWydick’s humble yet seminal article is filledwith many other lessons for serious legalwriters too numerous to address here. Hecounsels using the active, not passive, voiceand shows how to do so. He reviews closelystructuring subject-verb-object agreement ina sentence and artfully using “elegant variation”to avoid reusing the same word in asentence as a finer point of creating an interestingwritten product. The dividends thatyou can reap from Wydick’s methods includegreater persuasiveness and clarity. Fewerwords usually suffice; brevity and commonusagewords equal clarity; redundancy ispointless; and editing is always needed. Themore subtle message to your readers is thatan excellent lawyer must have written thecompelling letter or brief that they just finishedreading. Let that lawyer be you.Call to Action, from page 55Encouraging Others toAnswer the CallThe efforts of A Call to Action, the LeadershipCouncil on Legal Diversity, and variousstate and individual bar associationshave made and are currently making tobring about diversity in the legal professionshould be applauded and replicated.These organizations have created innovativeprogramming and methods to increasediversity that your firms and legal departmentscan and should use to promote andincrease diversity.It is not enough to simply talk the talkof diversity. The legal profession needs towalk the walk to create a legal professionthat represents the diversity of our nation.You can do this by joining the LeadershipCouncil on Legal Diversity, participatingin minority recruitment fairs, partneringwith local bar associations, or becomingactive in the DRI Diversity Committee.Increasing the number of minority associatesin law firms or legal departmentsis not enough if these individuals do nothave quality substantive work and experiences,opportunities to develop and fostertheir legal careers, and opportunitiesto become general counsels, managingpartners, and judges—the leaders of ourprofession.Change will take time, especially sinceachieving partner [or partnership track]can take as much as eight to 10 years.Moreover, we must also remember thathaving minorities in leadership positionsor increasing numbers does not meanthat the “diversity issue” has been solved.Efforts to increase diversity in the legalprofessions, and arguably in all professions,must be continuous. In the wordsattributed to Thomas Edison, “when youhave exhausted all possibilities, rememberthis—you haven’t.”Cyber-Sleuth, from page 18The Pietrylo case serves as a cautionarytale. Although you may discover that protectedinformation exists and if it is otherwiseunavailable to you, your best courseis to avoid coercive or deceptive acts toacquire it.72 n For The Defense n April 2011ConclusionThe pointers discussed above only scratchthe surface of the information resourcesnow available online. Multitudes of otherresources are either free or accessible ata low cost that can also assist counsel indefending clients. The background andnature of a case will also, of course, dictatethe appropriate resources to search toyield useful information. Taking the timeto become familiar with Internet resourceshas been and will very likely continue to bea vital weapon to tuck away in your arsenalfor the future.

Marcellus Shale, from page 67mum contaminant level (MCL) under stateand federal guidelines. The case was part ofmulti- district litigation. Id. at 153–54. Thedefendants argued that the plaintiffs’ onlylegally protected right was a right to receivedrinking water that met state and federallaw. As a result, the defendants assertedthat the plaintiffs couldn’t pursue claimsunless contamination exceeded the federaland state MCL. Id. at 154. The plaintiffscountered that even contaminationbelow the legal maximum contaminationlevels invaded legally protected interestssufficient to trigger standing under ArticleIII. The court rejected the defendants’contentions that MCL defined by statuteshould constitute a bright-line standardfor purposes of whether standing existedto assert claims. Rather, the court foundthat a plaintiff could sustain an injury- infacteven if a contamination did not reachan MCL. Id.OhioAs in other states, in Ohio it is highly likelythat defendants involved in water contaminationcases will face nuisance causes ofaction. Ohio’s treatment of nuisance lawdeserves mention. In MHE Assocs. Ltd.Partnership v. United Musical Inst., 1995U.S. Dist. Lexis 5808 (N.D. Ohio 1995), theFederal District Court for the NorthernDistrict of Ohio clarified:Under Ohio law, nuisance has beendefined as anything which “endangerslife or health, gives offense to the senses,violates the laws of decency, or obstructsthe reasonable and comfortable use ofproperty.” Harris v. City of Findlay, 59Ohio App. 375, 18 N.E.2d 413 (1938). Toconstitute a nuisance, the thing or actcomplained of must either cause injuryto the property of another, obstruct thereasonable use or enjoyment of suchproperty, or cause physical discomfortto such other person. State ex rel. Chaflinv. Glick, 113 Ohio App. 23, 177 N.E.2d293, 294 (1960). Nothing in these descriptionssuggest that Defendant must physicallyinvade Plaintiffs’ land in orderto recover under a nuisance theory. Infact, cases cited by counsel for both partiessuggest the actual contamination ofPlaintiffs’ property is not a prerequisitefor recovery. See, DeSario v. IndustrialExcess Landfill, Inc., 68 Ohio App. 3d117, 587 N.E.2d 454 (1991).Id. at 7–8 (emphasis added). The districtcourt further held that “[p]lain tiffs do notneed to show physical harm to the propertynor physical discomfort in order torecover, it is enough that Plaintiffs canshow sufficient obstruction or interferencewith the use or enjoyment of the land.” Id.at 8. Additionally, attorneys practicing inOhio must be aware that Ohio courts permitrecovery for claims for the loss of valueof property based on public perception. Id.at 10 (citing DeSario v. Industrial ExcessLandfill, Inc., 587 N.E.2d 454 (1991)).In Chance v. BP Chemicals, Inc., 670N.E.2d 985 (Ohio 1996), the Ohio SupremeCourt considered the plaintiffs’ claims arisingfrom the injection of hazardous wasteinto the ground by the defendant throughthe use of “deep-well” injection technology.The appeal occurred after a jury verdictin favor of the defendant. The focus ofthe court’s opinion centered on the right ofHeavy Lift & RiggingBrent R. Leisenring, P.E.bleisenring@robsonforensic.com800.813.6736NY Labor LawHerbert J. Heller Jr., P.E.hheller@robsonforensic.com516.742.6288Construction ManagementGregory H. Pestine, P.E.gpestine@robsonforensic.com312.527.1325Structural EngineeringMark R. Duckett, P.E., S.I.MarkR.Duckett@robsonforensic.com800.631.6605With 175 experts at one firm, Robson Forensic provides extensive experiencein construction claims and injuries. Visit us online for CVs and expert bios.adjoining property owners to assert claimsfor trespass. Id. at 990. The court specificallyrejected the defendant’s assertionthat a court should analyze the injection ofmaterials into the ground should throughthe prism of the “negative rule of capture,”which was first articulated in oil and gaslitigation arising in Texas. See RR Comm. ofTexas v. Manziel, 361 S.W.2d 560, 568 (Tex.1962); Williams and Meyers, Oil & Gas Law(1959), Section 204.5, at 60.2.The defendant argued that native brinewaters into which the injectate was placedwere waters “of the state” under pertinentstatutory guidelines. As such, the defendantargued that the property owners did nothave ownership interest in the waters. Thecourt found that the property owners didhave an ownership interest in the rocks intowhich the defendant placed the injectate. Id.at 992. The court concluded that if the injectateinterfered with the property owners’rights, a cause of action could lie, regardlessof the way the injectate interacted with nawww.robsonforensic.com| 800.813.6736For The Defense n April 2011 n 73

tive brine. The court did clarify that it didnot accept the property owners’ assertionof absolute ownership of everything belowthe surface of their properties. Id. Thecourt went on to provide an overview of theproblems associated with proving the lateralmovement of the injectate as alleged bythe property owners. The court concludedthat the property owners were responsiblefor demonstrating some kind of physicaldamage or interference in a situation involvingan “indirect invasion.” Id. As such,the court affirmed the jury findings in favorof defendant- appellee concerning theproperty owners’ trespass claims.ConclusionWhile the potential claims that plaintiffsmight assert and defenses that defendantsmight assert in litigation arising from MarcellusShale drilling are many and varied,the settled law of a state concerning standingrequirements, property law, and watercontamination claims provide the backboneof what will become the defense tothese claims. For those attorneys who serveclients in the oil and gas industry, the Marcellusrush mandates that we become preparedin the advance for the issues that willarise.MMSEA, from page 34all likelihood a plaintiff will insist that thefunds be released to him or her so that heor she can maximize his or her recovery.The RRE or primary payer may not haveany real objection to this because it has nointerest in becoming a trustee for a claimant,but if it does not establish a formaltrust, it is all the more important to putCMS on notice so as to minimize the riskof having to reimburse Medicare for conditionalpayments down the road.Another option may be to include languagein a release designating a claimant’sattorney as the MSA trustee since thegovernment has a right of action againstboth the RRE and the claimant’s attorneyfor reimbursement. A number of jurisdictions,however, do not allow attorneys toserve as sureties for their clients. Some ofthese jurisdictions include Arizona, California,Florida, Indiana, Illinois, Kansas,Missouri, North Carolina, South Carolina,Tennessee, Vermont, and Wisconsin.Depending on the jurisdiction, this maynot be a viable option.If parties decide that the claimant willadminister the MSA directly, it is criticalthat the settlement documents include adequatelanguage to the effect that• The parties have taken Medicare’sinterests into account as part of thesettlement;• The claimant has investigated the extentof all future accident- related medicaltreatment;• The claimant has consulted with theappropriate individuals to calculate theset aside;• The claimant stipulates to the adequacyof the amount set aside;• The claimant waives any and all rights,claims, or entitlement to funds in excessof the stipulated set aside amount; and74 n For The Defense n April 2011Further, the settlement release shouldcontain specific language addressing theMSA and should include a specific dollaramount that the parties have agreed to setaside for future medical care that Medicaremay cover. While initiating an indemnityaction against a claimant to recover thecost of future medical care may be a futileendeavor, adding this kind of language tothe settlement release will at least give theprimary payer the ability to pursue a claim.Good language in the release will alsomake it difficult for Medicare to prove thata primary payer did not adequately protectMedicare’s interests in the settlementshould the government decide to pursue aclaim for reimbursement.In the end, the safer way to settle a claiminvolving an MSA and still minimize theprimary payer’s exposure for future medicalpayments would be to obtain a formalMSA opinion from a third-party vendor,voluntarily report the settlement to Medicareor the MSPRC, or both, if appropriate,include adequate language in the settlementrelease to protect the primary payer’sinterests, and tender the funds to theclaimant for management and administration.While this would not eliminatethe risk altogether, it is the best way to shiftliability to others in the event of a futureconditional payment, and it is the mostpractical solution for dispensing with liabilityclaims that require MSAs.Physical Injuries Not Required:Assessing Liability Claims That DoNot Have Medical Components.If you are a practitioner who deals mainlywith issues that do not have medical components,you may want to revisit the languagein your settlement agreements beforedismissing Medicare compliance as irrelevantto your cases. In a limited number ofinstances a settlement, judgment, award,or other payment releases a client fromresponsibility for medical costs associatedwith a claim or has the effect of releasing aclient from medical costs associated with aclaim even if the underlying incident itselfdoes not include a claim for physical injuriesthat require medical care. The MMSEAdoes not carve out an exception for thesetypes of claims, and, in fact, the MMSEAUser Guide states that the RRE has a dutyto report all claims involving a Medicarebeneficiary if “medicals are claimed and/or released or the settlement, judgment,award or other payment has the effect ofreleasing medicals.” See CMS, MMSEASection 111 User Guide, at 92.In a CMS “Alert” dated November 12,2010, CMS identified a number of claimsthat may fall into the “no injury” categoryof reportable cases, including loss of consortium,errors and omissions, directorand officer liability, or wrongful terminationactions. CMS Office of Fin. Management/Fin.Services Grp., Alert: LiabilityInsurance (Including Self- Insurance), No-Fault Insurance, and Workers’ Compensation—SpecialDefault ICD-9 Code forResponsible Reporting Entities (Nov. 12,2010), https://www.cms.gov/MandatoryInsRep/Downloads/NGHPICD9RRE.pdf. If a claimant inone these types of cases is covered by Medicareand the release language includes arelease of all past, present, and future injuries,including medical expenses, whetherknown or unknown, the RRE has to reportthe claim. Id. The good news is effectiveJanuary 10, 2011, RREs now have a specialdefault ICD-9 code to use in “no injury”claims. Id. If your standard release includesthis kind of language, you should instructyour clients of their reporting obligationsunder the MMSEA and advise them to usethe no injury code that is now available.

Otherwise, they, too, may find themselvesliable for penalties for failing to complywith the MMSEA reporting requirements.A Final NoteThe reporting requirements and the MSAobligations for liability cases involving liabilityinsurers, including self insurers andno-fault insurers, are far more speculativethan for workers’ compensation cases,and we cannot draw analogies in everyinstance. While we can look to the statutesand cases interpreting the workers’ compensationrules for guidance, they do notalways apply in the liability setting. NeitherCongress nor the CMS has provided muchinformation about the duties and obligationsof primary payers in liability cases,and the courts offer little more assistance.With so little information available, Medicarecompliance remains a moving target,and the only recourse the primary payerhas is to consider Medicare’s interests whenresolving a claim, shift as much liabilityas possible to third parties, and when indoubt, report a settlement to the CMS.Preemption, from page 39covery. Rule 11, however, will become moreuseful during and after discovery in thosejurisdictions. If the facts revealed duringdiscovery do not support a parallel claimand plaintiff’s counsel does not amend thecomplaint to accurately reflect this development,a motion for sanctions may bewarranted and should be filed in conjunctionwith a motion for summary judgmenton preemption grounds.Ultimately, the intersection of Riegel,Buckman, Twombly, Iqbal, and Rule 11provides a great deal of protection to medicaldevice manufacturers. Defense counselneed to understand and take advantageof this under- utilized tool. Medical devicemanufacturer clients will benefit from earlierdisposition of cases and favorable rulingsregarding pleading requirements andethical obligations of counsel. By understandingthe inherent difficulty in pleadinga parallel claim with sufficient specificity tomeet the requirements of Twiqbal, defensecounsel will recognize improper attemptsto circumvent this requirement by plaintiffs’counsel. Enforcing Rule 11 will notonly hold opposing counsel responsible forinappropriate behavior, but will also deterplaintiffs’ attorneys from employing similarstrategies in future cases.The authors would like to thank the authorsof the Drug & Device Law Blog, http://druganddevicelaw.blogspot.com/,for inspiring thisarticle, which is based on their November5, 2010, blog entry entitled “Preemption,Pleading & Rule 11,” and for promulgatingthe term “Twiqbal.”Put Your Work in the Hands of In-house CounselBe seen! Be heard! Be read! Write an article for DRI’s print journal, In-House Defense Quarterly, and get your name in front of thousandsof readers, including all of DRI’s Corporate Members, as well as many outside counsel subscribers. If you have a topic that would be ofinterest to in-house lawyers, we have space available for articles in all upcoming issues. Volunteer today to ensure you don’t miss out on thisopportunity!Articles for the Summer 2011 issue are due April 30, 2011; Fall articles are due July 31, 2011; and articles for next Winter’s issue aredue October 31, 2011.Contact Kristen Netschke, DRI Corporate Counsel Committee Publications Chair (kristen.netschke@meadowbrook.com), or Jay Ludlam, DRI Director of Publications (jludlam@dri.org),for more information.For The Defense n April 2011 n 75

Ethics, from page 71to report the post to the judge, even thoughdoing so may hurt that attorney’s case.An attorney must understand the risks ofmonitoring and report misconduct regardlessof the effect on a case.Defense attorneys should also ensurethat a trial judge reminds jurors each day—before and after recesses—that they are notto communicate with others about a caseduring a trial, which includes communicatingelectronically, and that they are notto conduct research of any kind. If the particularjurisdiction has an adequate pattern-juryinstruction available, attorneysshould request that instruction. If not,attorneys should seek special instructions,perhaps emphasizing to jurors that the purposeof the instructions is to ensure thatthey remain free from outside influenceand information to enable them to reachan unbiased verdict.Short of sequestration, an extreme andcostly measure, there is no way to guaranteethat jurors will refrain from using handhelddevices and social networking tools duringtrial and deliberation. But by proactivelytaking the above steps, defense attorneyswill have a much better shot of ensuringa fair trial for clients in an age beyond theConstitution’s contemplation.Members, from page 5Board of Governors of the American BarAssociation.M. Pierce Rucker has been elected presidentfor a third term by the members ofthe board of directors of Sands AndersonPC. Mr. Rucker focuses on defending doctors,nurses and public/private hospitalsagainst medical malpractice claims. He isa past president of the Virginia Associationof Defense Attorneys. Mr. Rucker hasbeen lead counsel in numerous jury trialsinvolving medical malpractice claims.He has also appeared before and servedon numerous medical malpractice reviewpanels and acted as an arbitrator in medicalmalpractice cases.Neil J. MacDonald has opened hisown civil defense firm, MacDonald LawGroup LLC, in Beltsville, Maryland. He isjoined by fellow DRI members RachelleA. Schofield, Dawn D. Gile and VincentJ. Palmiotto.Cozen O’Connor member John J.McDonough was recently admitted as asustaining member to the Product LiabilityAdvisory Council, Inc. (PLAC). PLACis an association of more than 100 leadingmanufacturers and over 350 of the foremostproduct liability defense counsel inthe United States and abroad. PLAC wasformed in 1983 to analyze, understand,and shape the common law of product liability.A respected and influential organization,PLAC membership is both an honorand recognition of an attorney’s expertisein product liability law.Richard L. Righi of the Righi HernandezLaw Firm has been appointed a volunteermember of the Arizona SupremeCourt Attorney Discipline Hearing Panelby Chief Justice Rebecca Berch. Mr. Righiis the president of the Arizona Associationof Defense Counsel (AADC). He has managedvarious subcommittees of that organizationduring the past 11 years and chairedthe AADC Construction Defect SpecialInterest Group for six years. He is a formermember of the Maricopa County Bar AssociationConstruction Law Group Section,and belongs to the Home Builders Associationof Central Arizona.Marge MotluckWant to send a note of congratulationsto a colleague featured in this month’s“Members on the Move”? Please visit theDRI Membership Directory, available freeonline at www.dri.org under “Member Services,”where you can find contact informationfor all of your fellow DRI members!Mediation, from page 22the face of the defendant’s best offer. Youmay well serve your client by leaving a finaloffer open and, as the mediation adjourns,telling the plaintiff directly or through themediator that you and your client understandhow hard both sides have worked andthat, as a sign of respect for the plaintiff andthe plaintiff’s counsel, your client will leavethat final settlement offer on the table for 48or 72 hours. Again, experience teaches thatsome plaintiffs will, upon unhurried reflec-tion and with additional time to assess thebenefits of ending the litigation, direct theirlawyers to accept previously rejected offers.ConclusionDefense attorneys must always rememberthat a well-trained mediator’s discussionswith a plaintiff in difficult cases arenever based on manipulation or misdirection.Rather, they recognize that withfew exceptions, personal injury plaintiffsare well- meaning people with legitimateclaims of fairly debatable value who willwant to reach a resolution and lay down theburden of litigation if they know that theyhave been treated fairly.Therefore, while in some cases a plaintiffand a defendant may have irreconcilabledifferences on the monetary value ofa case, those situations are not the rule.Defense attorneys can resolve many difficultpersonal injury cases through mediationif they attend to factors other thanmoney that may affect outcomes.Keep an Eye, from page 58in the direction of the victors. Make theeffort. It is okay to truly believe that youshould have won your case; you can alwaysappeal. Just do not let a bitter post-trial attitudeoverride your good judgment and bestbehavior. Breathe deep, count to ten, andwalk across the room. The lawyers on theother side will appreciate the gesture. It76 n For The Defense n April 2011speaks to your good character. And if youfail to make the effort, the lawyers on theother side may never forget your last baddecision during the trial.Fail to See the LessonsOver time, we litigators will see manythings in the courtroom that make uschuckle and a few things that make uscringe. Through observation come lessons.By watching the opposition, you learn thatattorneys can overlook simple things thatmake big differences during trials. Moreimportantly, by watching your oppositionclosely, you learn how others might viewyou and interpret your own choices in thecourtroom. Maybe the phrase should beknown as, “Watch and learn and grow.”

Ghostwriting, from page 45gies that you can employ against pro se litigantsassisted by ghostwriting attorneysto achieve the best possible results for yourclients?The obvious first step is to determinewhether a ghostwriter is assisting your prose adversary. In the case of debt- settlemententities, the assistance will be at least partiallydisclosed, if for no other reason thanthat the ghostwriter will desire his or hercontingency fee upon settlement. In othercases, as ABA Formal Opinion 07-446noted, ghostwriting assistance will be clear“from the face of ” the pleadings. ABAComm. on Ethics and Prof’l Responsibility,Formal Op. 07-446 (2007). If not, however,written discovery requests or questions in adeposition on the topic, if answered truthfully,should reveal the fact and extent ofassistance by an attorney.Once it is clear that a pro se adversaryhas ghostwriting assistance, the next stepis to determine the relevant jurisdiction’srules on the subject. You will often findthese in the jurisdiction’s ethics rules gov-erning the legal profession, but you mayalso find them in state or federal courtdecisions on the topic. These rules willprovide a roadmap for pursuing the disclosureof the identity of the ghostwritingattorney and will also assist you in neutralizingwhatever advantage pro se litigantsnormally gain by truly representingthemselves.As discussed above, the main accommodationcourts make for pro se litigantsis most often leeway in the form and substanceof the pleadings that pro se partiesfile. Therefore, if a pro se litigant has undisclosedassistance from unidentified counsel,it is in your best interest to make a courtaware of the ghostwriter’s assistance. Youcan do this creatively through motion practice.For example, a request that a courtclarify your obligations as opposing counselwith respect to things such as serviceof pleadings and settlement communicationswill not only clarify the path for you,but clarifying your obligations will alsoput a court on notice that your adversaryis not truly pro se. This awareness may leada court to be less apt to give a pro se litigantthat “benefit of the doubt” that he orshe desires. In that same vein, a court thatknows that a pro se litigant has assistancefrom counsel may be more inclined to dismissa claim or strike a frivolous pleadingunder Federal Rule of Civil Procedure 11than if the court is in the dark about theghostwriter.And finally, again depending on thejurisdiction, a party faced with a pro separty assisted by counsel may find relief instate laws that regulate fields other than thepractice of law, such as debt- relief servicesor credit counseling.ConclusionAnyone who has litigated against pro separties assisted by ghostwriters mustunderstand that, as with “true” pro se parties,no two experiences are alike. But bybecoming aware of applicable ethics rules,state laws, and court decisions, and followingthe strategies set forth above, you canneutralize some, if not all, of the cat’s 10tails.Whistleblower, from page 62Tips and Strategies for DefendingEnforcements and Retaliation ClaimsThe effect of the Dodd-Frank Act’s whistleblowerbounty is clear. The provision willdramatically increase government prosecutionof securities laws. The increasedenforcement actions will inevitably lead tomore private securities litigations. Relatedto the retaliation claims, Dodd-Frank’senhanced protections will increase discoveryand require longer document- holdingperiods. The anti- arbitration provisions inDodd-Frank will likely raise overall discoveryburdens in retaliation cases since arbitrationsignificantly limits some forms oftraditional discovery.Additionally, establishing an immediateright to a jury trial in these types of retaliationcases will increase potential exposureof employers and influence pretrial negotiations.Simply put, allowing juries to hearretaliation claims will likely increase damageawards especially given the currentfinancial situation and the apparent publicsentiment against corporate citizens.To counteract these negative effects oncorporations, below are a number of tipsand strategies for handling the inevitableincrease in SEC enforcement actions andsecurities- related whistleblower claims.• Counsel your corporate client to establishan incentive program for employeeswho initiate contact with the companyregarding compliance issues.• Obtain and review your corporate client’sdetailed, companywide publicationsasking employees to reportpotentially illegal activity to appropriateindividuals working for your client,including, but not limited to, complianceissues involving false claims, securitiesviolations, and governance mishaps.• Counsel your corporate client to documentits actions each time an employeeor other party notifies the client about acompliance issue.• Counsel your corporate client to provideand note all compliance training that itprovides to employees.• Counsel your corporate client to increaseholding periods for personnel files andensure that your client properly documentsrecords to take the Dodd-FrankAct’s extension of the statute of limitationsfor whistleblower claims.• Update your corporate client on recentchanges to the Sarbanes- Oxley Actregarding subsidiaries and affiliates ofpublicly traded companies so that theyare prepared to withstand related whistleblowerclaims.ConclusionAs mentioned, the SEC’s proposed ruleswill become concrete rules in April 2011.Along with the whistleblower regulations,the Dodd-Frank Act mandates a numberof new regulations. This article provideda glimpse into one small portion of Dodd-Frank’s effect on corporate clients. Weshould embrace the changes and work todevelop specific expertise about the new actand its implementing regulations. Doing sowill help us become valuable, go-to lawyersfor Dodd- Frank- related issues.Y o u n g L a w Y e r s+ + +The DRI CommunityFor The Defense n April 2011 n 77

Joint Defense, from page 49and defendant involved in the joint- defensegroup. The provisions outlined below are notexhaustive and merely address some of thepoints that attorneys should consider includingin a joint- defense agreement. See PaulW. Burke & Brian T. Moore, The More theMerrier: The Challenges of the Joint Defense,A.B.A. The Brief, Fall 2007, at 12 (includingtwo examples of joint- defense agreements).A defense attorney can minimize therisks associated with creating an impliedattorney- client relationship and fiduciaryduty by carefully drafting a joint- defenseagreement. A joint- defense agreementshould contain, at a minimum, the followingprovisions:• No attorney- client relationship isintended nor created (either express orimplied) between the codefendants andtheir respective counsel.• Each party is represented exclusively byits own attorney.• The agreement is not intended to interferewith the attorney’s obligation to ethicallyand zealously advocate for his orher individual client.• Each client waives any conflict of interestclaim or right to disqualify from representationany attorney who receivesconfidential information pursuant to theagreement either now or in the future.• Each client has had its individual counselexplain the agreement to it and eachclient understands it and each agree toabide by its terms.To limit additional liability, the agreementshould make the following points clear:• The parties and their counsel are notobliged or under any duty to share informationor materials.• The agreement is not intended to makeany party the agent of any other partyfor any purpose whatsoever.• Any actions taken under the agreementare intended solely to benefit the attorney’sindividual client and not the othermembers of the joint defense agreement.To limit an unintentional waiver of a privilege,the agreement must include the followingprovisions:• The information shared will remainconfidential and will not be disclosedto outside parties both during andafter withdrawal from the joint- defenseagreement without prior written consentof the party who made the informationavailable, or without court order.• Each party agrees to assert the commoninterestdoctrine and underlying appli-cable privilege when responding to anydiscovery request or other compelleddisclosure of materials or informationcovered by the joint- defense agreement.• No confidential communications andderivative information obtained by virtueof the agreement shall be admissiblein evidence in any proceeding arisingfrom a claim made by one party to theagreement against the other party.ConclusionThe use of joint- defense agreements is along- established, common practice amongmembers of the defense bar. Such agreements,however, are not without peril. Defenseattorneys should thoroughly screena case at inception to determine if a jointdefenseagreement is appropriate, and achange in circumstances among the defendantsmay require reevaluation down theline. If a joint- defense agreement is appropriate,defense counsel should obtain theinformed consent of the client and use precautionwhen disclosing privileged information.With sufficient foresight and a properlydrafted joint- defense agreement, defense attorneyscan limit risks to themselves andto their clients while still reaping the manybenefits of a joint- defense agreement.Think Globally, from page 70the topic out into the open in jury selection.Right after introducing your client,who ideally will have a friendly face inthe courtroom as a corporate representative,acknowledge that the company isSee whatThe CourtReportersays.A comprehensiveonline guide tocourt news andanalysisspecificallyrelevant tothe civildefensepractitioner.www.dritoday.com78 n For The Defense n April 2011based outside the United States but thatLady Justice wears that blindfold for a reason,so that all parties are treated equally.Then your task is to ferret out would-bejurors with potential biases against a foreigncompany. This will depend on thecase, but alerting a judge to the issue inadvance should buy you more leeway toask the types of probing questions thatyou will need to vet potential jurors onthis point. Because money always matters,I suggest focusing on whether prospectivejurors have an economic reason to bebiased against your client. For example, it isa red flag if a juror’s spouse has been laid offso that a company could relocate a plant inanother country with cheaper labor.Remember the Issue Throughout theTrial, and Hit It Again in ClosingOnce is not enough. Avoid the temptationto believe that jurors “get it” if you raisethe possibility of bias one time during juryselection. Trials are about themes, and, ifyou are concerned enough about juror biasto read this column all the way through,then it is probably to your advantage to hitthe issue several more times at trial. By hittingthe issue, I do not mean always usingthe “B” word, but also finding ways to makeyour client relatable to jurors. If you willneed to use a translator, for instance, thentry to find a way to make light of the awkwardnessof the translation process thatserves to “humanize,” for lack of a betterword, your witnesses to the jury. In closing,turn the issue into one of responsibility forthe jurors. They took an oath to be impartial.Here, you have a foreign company thathas put its faith in the U.S. legal system toright a wrong, and it is the jury’s responsibilityto make sure that the law is appliedfairly and without bias.This is obviously a quick-and-dirty overviewof the issue, but for the many of uswho represent foreign manufacturers andother companies, I believe that these tipsare useful to keep in mind.

Everyone has one of those days—when you feel likeyou’re chasing your tail. DRI members rarely feel thisway—they are connected and have a sound network ofdefense attorneys and in-house counsel to engagein business relationships.In-housecounsel areeligible for freeregistration at DRISeminars.* Call312.795.1101 fordetails.w w w . d r i . o r g*In order to qualify for free registration, an individual must be a DRI member and a member of DRI’s CorporateCounsel Committee. Offer excludes DRI Annual Meeting.

AdvocatesJoseph R. Alberts,Indianapolis, INJoshua Bachrach,Philadelphia, PALauren Fajoni Bartlett,New Orleans, LAEdward R. Benjamin, Jr.,Portland, MEDenise S. Blocker,Oakland, CADavid L. Brandon,Los Angeles, CAR. Matthew Cairns,Concord, NHSheila Jane Carpenter,Washington, DCDavid E. Constine III,Richmond, VAAlex J. Hagan,Cary, NCCary E. Hiltgen,Oklahoma City, OKRobert A. Luskin,Atlanta, GAMichael T. McCormack,Hartford, CTGretchen N. Miller,Chicago, ILJeffrey W. Morof,Chicago, ILSean Patrick Mount,Metairie, LAHugh C. O’Donnell,Western Springs, ILDominic J. Ovella,Metairie, LAMichael A. Petruccelli,Fort Lauderdale, FLJoseph P. Postel,Waukegan, ILStephanie M. Rippee,Jackson, MSSean S. Smyth,Calgary, ABJeffery A. Styres,Jackson, MSStephen A. Tyler,Crown Point, INMatthew T. Wagman,Baltimore, MDHeather L. Weakley,Los Angeles, CASteven R. White,Keene, NHKyle Wilson,Little Rock, ARGlenn M. Zakaib,Toronto, ON80 n For The Defense n April 2011A D V O C AT E S A N D N E W M E M B E R SEach month, DRI welcomes new members from the United States and Canada and abroad. Some of these newmembers have been recommended by current members actively involved in advancing goals shared by DRI. Anyindividual who recommends a new member is recognized as an “Advocate” for DRI.New MembersAlabamaJohn R. Campbell,BirminghamAlabamaPatricia R. Osuch,MontgomeryArizonaCody M. Hall, PhoenixSunita A. Krishna, PhoenixDenise J. Wachholz,PhoenixArkansasWilliam Stuart Jackson,Little RockCaliforniaR. Randall Huff, AltadenaR. Joseph Decker,Los AngelesPenelope Deihl, Los AngelesBrian Ginter, Los AngelesJens B. Koepke, Los AngelesJennifer N. Lamirand,Los AngelesCameron J. Hoyler, OaklandKatherine McClelland-Glenn, OaklandJackson Isaacs, San DiegoMarilyn R. Moriarty,San DiegoCarol Sleeth, San FranciscoLinda C. Hsu, Santa MonicaJohn C. Hentschel,Walnut CreekColoradoMargrit Parker, DenverConnecticutMichael McKenna,HartfordDistrict of ColumbiaDawn B. Williams,WashingtonFloridaCharles M.P. George,Coral GablesLeslie Viviana Marenco,Coral GablesBrendan Keeley,Fort LauderdaleSteven A. Osher,Fort LauderdaleEvan M. Goldenberg, MiamiArmando G. Hernandez,MiamiDavid M. Havlicek, OrlandoPhilip Frank Moring, OrlandoFredric S. Zinober,Saint PetersburgDavid M. Nicholas,WellingtonMark F. Dickson,West Palm BeachAndrea J. Lux,West Palm BeachGeorgiaWilliam D. Newcomb, AtlantaCheryl A. Staugaitis, AtlantaAndrew M. Thompson,AtlantaJames J. Ward, AtlantaPhilip M. Williams, AtlantaCandice V. Wilson, AtlantaConstance Boaz Woods,AtlantaEllen Ash, WoodstockHawaiiRyan H. Engle, HonoluluJustin F. Kollar, LihueIdahoRaymond H. Goettsch,HaileyIllinoisSalvador A. Carranza,ChicagoJonathan A. Claydon,ChicagoBridget M. Curry, ChicagoMartha-Victoria Diaz,ChicagoRichard C. Huettel, ChicagoJustin D. Kaplan, ChicagoDale L. Matschullat, ChicagoJeffrey A. Merar, ChicagoLaura Kight Musick, ChicagoDavid S. Osborne, ChicagoJames L. Wideikis, ChicagoChristina M. Formeller,NorthbrookIndianaSharon L. Stanzione,Crown PointEdward J. Fujawa,IndianapolisTina M. Bengs, ValparaisoIowaCynthia Scherman Sueppel,Cedar RapidsKansasMark A. Lynch,Overland ParkKentuckyAdam L. Towe, LondonC. Laurence Woods III,LouisvilleLouisianaJason M. Baer, MetairieChristian B. Bogart, MetairieLauren E. Brisbi, MetairieMaria B. de Gracia, MetairieChristopher J. Rouse,MetairieLouis M. Grossman,New OrleansMark N. Mallery,New OrleansMichael R. Phillips,New OrleansAmanda W. Vonderhaar,New OrleansMaineRosie M. Williams, PortlandMarylandMarc A. Campsen, BaltimoreKen C. Clendenin, BaltimoreChristopher J. Madaio,BaltimoreDarah M. Okeke, BaltimoreMassachusettsEric D. Levin, BostonLee W. Rabkin, BostonLaura W. Tholen, BostonMichiganTerry Bonnette, DetroitCynthia M. Filipovich, DetroitKevin M. Kileen,Grand RapidsGary N. Felty, Jr., SouthfieldPamela M. Miller, SouthfieldMinnesotaWilliam M. Hart, MinneapolisBradley Lindeman,MinneapolisKen Douglas Schueler,RochesterHilary Rae Stonelake-Curtis,RochesterJessie L. Becker, Saint CloudMatthew Moehrle,Saint CloudChristian Brandt, Saint PaulJames Zacharski, Saint PaulMississippiSusan E. Howell, JacksonCeejaye S. Peters, JacksonMissouriEmma Lee Dill, Kansas CityDarci F. Madden,Saint LouisCorey M. Schaecher,Saint LouisMontanaJohn F. Simpson, MissoulaNebraskaCarolyn Breitkreutz, OmahaSara A. Juster, OmahaJeffrey A. Nix, OmahaJohn P. Weis, OmahaNevadaAdrianne C. Duncan,Las VegasNew HampshireMarla B. Matthews,ConcordNew JerseyDaniel M. Young, MarltonSusan L. Nardone, NewarkSueCarol Greene-Buckner,RoselandStephen McDougall,RoselandGregory B. Gilmore, WayneNew MexicoNeysa E. Lujan,AlbuquerqueKevin D. Pierce,AlbuquerqueNew YorkDaniel J. Tyson, AlbanyDawn J. Lanouette,BinghamtonPeter A. Bicks, New YorkAbigail Bowen, New YorkSiobhan A. Handley,New YorkRichard Jacobsen, New YorkThomas A. Mobilia,New YorkClaire F. Rush, New YorkLaurie Strauch Weiss,New YorkMatthew J. Skiff, SyracuseNorth CarolinaChad T. Diamond, Cary

Jeremy Falcone, CaryTaylor Stukes, CharlotteAnitra G. Royster, DurhamPatti W. Ramseur,GreensboroJulie C. Theall,GreensboroGeorge J. Oliver, RaleighGemma L. Saluta,Winston SalemOhioGregory T. Rossi, AkronDavid M. Krueger,Chagrin FallsLori Welker, ClevelandOklahomaJennifer Ahrend,Oklahoma CityVanessa A. Hicks,Oklahoma CityJobby C. Mathew,Oklahoma CityThomas A. Swafford II,Oklahoma CityCollin R. Walke,Oklahoma CityOregonJohn C. Young, SalemPennsylvaniaMaria E. Bermudez,PhiladelphiaPeter Colonna-Romano,PhiladelphiaEvolea Watson, PhiladelphiaSouth CarolinaDavid W. Overstreet,CharlestonLee C. Weatherly, CharlestonPeter A. Rutledge, GreenvilleSouth DakotaJeffrey Connolly,Rapid CityJustin T. Clarke,Sioux FallsTennesseeElizabeth M. Hulton,Johnson CityWilliam L. Bomar,MemphisTexasJoseph Ross Matetich,AustinLauren E. Braddy,Corpus ChristiVermontSophie E. Zdatny,BurlingtonVirginiaLisa Frisina Clement,RichmondA. Tevis Marshall,RichmondWashingtonRobert R. King, SeattleWest VirginiaKelly Beth Griffith,CharlestonSamuel D. Madina,CharlestonStephen Taylor Hood,HuntingtonGary A. Matthews,HuntingtonMcEvan H. Baum,MartinsburgWisconsinWayne R. Luck, AppletonAndrea P. Goode, MilwaukeeTimothy M. Johnson,MilwaukeeWyomingDaniel E. White,CheyenneCanadaAlbertaKara Smyth, CalgarySean S. Smyth, CalgaryNova ScotiaCheryl A. Canning, HalifaxOntarioStafanie Baldassarra, TorontoJed Blackburn, TorontoAnne-Marie Naccarato,TorontoJanet C. Stevens, TorontoDaniel Waldman, TorontoSaskatchewanGreg Thompson, SaskatoonSouth AfricaGautengJanusz Luterek, PretoriaEngage | Connect | Grow | LearnMembershipStay Connected on the Go with the DRI Member AppNow you have the convenience of DRI’s online community at yourfingertips with the new DRI Member App. Available for free throughthe iTunes Store, the DRI Member App provides easy access to DRI’sonline resources right in the palm of your hand.Features include:Access to DRI’s Online Membership Directory: Now it’s more important thanever to make sure your DRI member profile is updated—so others can find youon the DRI Member App. Search, email and even call your DRI colleagues withthe touch of a button.Browse the latest headlines on DRI Today: DRI’s online legal and businessportal designed specifically for the defense attorney is now available in aconvenient hand-held format. Browse relevant news, blogs, Supreme Courtcase analysis and legal resource sites.Read Commentary from Fellow Members on the DRI Blog: Updated multipletimes daily, DRI’s Blog is your chance to hear what other DRI members thinkon today’s hottest cases and news stories.Download this FREE Member Benefit Today!http://itunes.apple.com/us/app/dri-the-voice-defense-bar/id391213868?mt=8Don’t have an iPhone? All Smart Phone users are able to access theDRI Member Mobile Site [http://dri.quickmobile.com/] with all the samefeatures listed above via their phone’s mobile browser.

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