For The Defense, September 2012 - DRI Today

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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.September 18 Mediation: What Is It, What to Expect, andWebcastHow Do I Make It Work for Me?September 20 It Isn’t Rocket Science, or Is It? Presenting Complex Issues to Juries WebcastSeptember 20–21 Construction Law Seminar PhoenixSeptember 20–21 Nursing Home/ALF Litigation Seminar Las VegasSeptember 25 Avoiding the Ethical Pitfalls of Joint Representation WebcastSeptember 26 Medicare Secondary Payer Act Case Law Update WebcastSeptember 27 The Generalist Counsel: Lawyer, BusinessWebcastStrategist, Consiliarius—CEOOctober 2 You’re More Important than You Think:WebcastServing as a Second Trial ChairOctober 24–28 DRI Annual Meeting New OrleansNovember 8–9 Asbestos Medicine Seminar Miami BeachNovember 13 Ethics Matters WebcastDecember 6–7 Insurance Coverage and Practice Symposium New York CityDecember 6–7 Professional Liability Seminar New York City2013January 24–25 Fire Science and Litigation Seminar Scottsdale, AZJanuary 31– Civil Rights and Governmental Tort Liability SeminarPhoenixFebruary 1February 28– Toxic Torts and Environmental Law SeminarNew OrleansMarch 1March 14–15 Women in the Law Seminar Miami BeachDRI CalendarInvestigative 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 ■ September 2012 ■ 5

DRI NewsClass Actions and Aggregate LitigationRecent Watershed Supreme Court Term Forms Basis for Eighth Annual NJFE SymposiumBy Michelle ParriniOn July 13–14, 2012, 113 state court judgesfrom 32 states and the District of Columbiaattended the eighth annual NationalFoundation for Judicial Excellence (NFJE)Symposium in Chicago, which once againfocused on a timely topic: “Class Actionsand Aggregate Litigation: Lessons Learned,Challenges Ahead.” The substantive presentations,panels, and debates built on recentimportant federal court rulings to anticipatethe unique, challenging, and growingclass action and aggregate litigation issuesthat state courts will confront in the future,and it also anticipated the decisions yet tocome. Topics ranged from how much stateattorneys general should delegate their powersto private attorneys, to the significanceof U.S. Supreme Court class action developmentsto state court class action practices, tothe role that state courts should assume inmonitoring and overseeing the ethical andfiduciary duties of class counsel, among others.One participant commented, “I thoroughlylearned much throughout.”The symposium opened on Friday, July13, 2012, with one program moderated byDavid A. Logan, dean of the Roger WilliamsUniversity Law School, Bristol, Rhode Island,“State Attorneys General: Championsof Consumer Protection.” Dean Loganpointed out that historically the state attorneygeneral position was a “sleepy backwaterway station to someplace else” but thathas changed: today’s attorneys general becomeinvolved in multistate, multiparty,multitheory litigation in the public interest,and they frequently hire private attorneysto help. But “is it a good idea for attorneysgeneral to become champions of consumersin their states?” he asked before introducingthe panelists: former Georgia AttorneyGeneral Thurber Baker, now a partnerof McKenna Long &Aldridge LLP in Atlanta,and Victor E.Schwartz, a partnerof Shook Hardy & BaconLLP in Washington,D.C. As Mr. Baker6 ■ For The Defense ■ September 2012put it, today the job is “at the confluence oflaw and public policy.” Now “when attorneysgeneral speak,” he said, “people listen.”Musing on how the job has changed overthe years, Mr. Baker identified two characteristicsthat “shaped” how it evolved:the attorney general role as the chief statelaw enforcer and the role as an independent,often elected voice. These characteristicsaccount for the position as one thatconducts business “on a duty basis.” InMr. Baker’s view, the 1990s tobacco litigation—thefirst time that attorneys generalthought that they could influence and“sway the national pendulum”—was the“single most important factor in attorneysgeneral becoming a force around the country.”It changed attitudes about banding togetheracross party lines on regional andnational issues. Explaining the thinking inthat litigation, he noted that attorneys general“didn’t have the resources or expertiseto take on an industry considered invincible,”so working together across state lines,and then hiring private lawyers, seemed tomake sense. The strategy built on previouscooperative efforts among different states’attorneys general that undertook enforcement,regulatory, and policy functions. VictorE. Schwartz, Can Governments Imposea New Tort Duty to Prevent External Risks?(NFJE 2012), http://nfje.net/Programs.aspx (select“2012 Annual Judicial Symposium” andfollow course materials hyperlink) (originallypublished 44 Wake Forrest L. Rev. 923(2009)). Foreshadowing contemporary concerns,Mr. Baker explained that when thoseattorneys general debated hiring private attorneyson contingency fee bases they didn’tnecessarily believe that the litigation wouldsucceed, but then the settlement amount increasedexponentially and the fees becamea huge political concern. Attorneys generaldo debate hiring private, contingency feebasedattorneys and often begin working oncases without that structure, he explained,“but when litigation becomes protracted, itbecomes difficult, and then they have to askthe governor or the legislature for money.”Mr. Baker predicted that attorneys generalwill continue with multistate litigationsand sometimes use contingency fees, addingthat “they have become smarter” aboutthem. See generally Thurbert Baker & AndreaGeddes, Acting Together: State AttorneysGeneral and the Rise of Multi- StateLitigation (NFJE 2012) (URL above) (discussingpast and present multistate litigationtypes, cooperation methods, andpotential future actions).While acknowledging that contingencyfees greatly serve the law by providing accessto justice to the poor, Mr. Schwartzquestioned the argument that contingencyfee contracts with private attorneys savedstates money. He remarked that private attorneyshave goals that conflict with theoath that attorneys general take to upholdthe federal and state constitutions in thepublic interest. Referring to Executive Order13433, issued by President George W.Bush to prohibit federal attorneys fromhiring contingency fee lawyers for federalagency work, a policy continued by thePresident Barack Obama administration,Mr. Schwartz explained that the SupremeCourt of Rhode Island wrote in Rhode Islandv. Lead Indust. Ass’n, 951 A.2d 428 (R.I.2008), that the attorney general could contracton fee bases with private attorneys aslong as the agreements met stringent criteriafor overseeing the work, and the SupremeCourt of California agreed in Countyof Santa Clara v. Atlantic Richfield Co., 235P.3d 21 (Cal. 2010). “Delegation does notequal abdication,” he said, suggesting thatthe symposium participants would find thetwo opinions “instructive.” If car dealersissued drivers’ licenses, states could savemoney, Mr. Schwartz noted, “but is that agood idea? Does saving money make somethinga good idea?” Mr. Schwartz advocatedimplementing legislative checks on publicsector contingency fee contracts withprivate lawyers, specifically transparency,through open competitive bidding; somefee limits; and oversight. He expressed thatthe cases handled by attorneys general todaycan use those controls, characterizingcontemporary cases as different from the tobaccolitigation as “more evolutionary thanrevolutionary.” This raised concerns for Mr.

DRI NewsBaker. Mr. Baker mentioned that attorneysgeneral worry about maintaining their independenceand believe that they should notact responsively toward a governor or a legislaturealong party lines. In concluding, tothe justices attending the symposium Mr.Schwartz said, “You do have a role to makesure that the process is handled well.” Seegenerally Victor E. Schwartz, The Role ofState Attorneys General in Brining CollectiveActions—When Is Delegation of Powerin the Public Interest? (NFJE 2012) (URLabove) (discussing whether legislaturesshould limit state attorneys’ general powerto pursue collective actions by statute, ethicsinvolved in permitting them to delegatetheir powers to contingency fee lawyers, andwhether the federal government should allowthem to hire contingency fee lawyerswhen the federal government empowersthem to enforce federal law).The symposium reconvened on Saturday,July 14, 2012, with the session, “Overviewof Class Action Developments in theU.S. Supreme Court and the Independenceof State Procedural Law.” Jessica DavidsonMiller, a partner of Skadden Arps SlateMeagher & Flom LLP in Washington, D.C.,explained why this topic was relevant tostate court judges. CAFA has many exceptions,and litigation’s slow pace means thatshe, for instance, still litigates cases instates courts that predated CAFA in inception.She explained recent rulings in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541(2011), which have tightened class certificationrequirements and have obligedfederal courts to scrutinize class certificationrequests more than in the past, andhow state courts, which don’t always interpretthe state equivalents to Federal Ruleof Civil Procedure 23 the same as the federalcourts, have applied the rulings inkey cases. See generally Jessica D. Miller& Jordan M. Schwartz, Recent AppellateFederal and State Developments in ClassActions (NFJE 2012) (URL above) (discussingdevelopments in detail). Amongothers, Ms. Miller also explained Smith v.Bayer Corp., 131 S. Ct. 2368 (2011), whichin her view “threatens to open the doorto parallel state class litigation when federalclass certification has failed” becauseit recognized that state courts’ class certificationstandards can legitimately differfrom the federal certification class actionstandard, state courts have extensive discretionto apply state standards to statewideclass certification, and a failed classcertification by a federal court didn’t precludea new named plaintiff from achievingcertification in a parallel state court action.Ms. Miller remarked that the most importantunresolved state class action practiceJessica Davidson Miller (left) and SamuelIssacharoffquestions involve due process principles,such as whether state courts have a dueprocess obligation to deny certificationin state class actions if class members donot prove individual reliance, or whethercourts must ensure that a defendant has achance to raise individualized defenses. Seegenerally Miller, supra, at 106–07 (discussingcases on point).Following Ms. Miller, Samuel Issacharoff,Reiss Professor of Constitutional Lawat New York University School of Law inNew York City, prefaced his commentaryby mentioning that he had just spoken to500 people interested in developing classaction mechanisms in Latin and CentralAmerica during a conference in BuenosAires. Why the interest, he asked?“Because we live in a mass society, whichputs pressure on courts to achieve goals,”Mr. Issacharoff answered. Among othergoals, courts face pressure to resolve disputesefficiently and to achieve “horizontalequity in resolution” by treating “similarlysituated people similarly.” He thenanalyzed five Supreme Court cases, afteridentifying the questions that they raised.First, who is in charge, and who has theright to speak on behalf of others. Second,what justifies deciding to certify a class andaltering the playing field? “This is a questionthat no one wants to address head on,but this changes the balance of power,” hesaid. Third, what is the role of individualclass members? According to Mr. Issacharoff,although “we discuss these questionsin terms of Rule 23, the underlying issue isalways due process.” Referring to Italianfilm director Sergio Leone, he also groupedthe cases into three categories: “the good,the unfortunate, and the superlative.” FirstMr. Issacharoff described Bayer v. Smithas adopting the American Law Institute(ALI) approach and as a “superlative case”that evolved from the ALI principles andthrough which the Court intended to preserve“representational integrity” becausewithout it litigation may not bind absentclass members. Next he characterized Wal-Mart v. Dukes as “good” and simply as“reaffirming previously articulated principles”about when a judge has the right tocertify a class, or in this case, not to certifya class. Mr. Issacharoff also viewed EricaP. John Fund Inc. v. Halliburton, 131 S. Ct.21 (2011), as “good.” See generally SamuelIssacharoff, Class Action Growing Pains80 (NFJE 2012) (URL above) (discussingthe “efficient capital market hypothesis”as it applied to the case). As for the “unfortunate”cases, he mentioned cases dealingwith the role of individual class members,the class action waiver arbitration casesinvolving mass- marketed goods and services:AT&T Mobility LLS v. Concepcion, 131S. Ct. 1740 (2011), and CompuCredit Corp.v. Greenwood, 132 S. Ct. 665 (2012). Withcell phones “the market is organized as amass market, which means that individualscannot litigate these cases individually,”Mr. Issacharoff said. Consumers receivedstandard form contracts that buried theclass action waivers in the arbitration provisions,which essentially denied consumersthe ability to enforce their rights. Seegenerally Issacharoff, supra, at 82–83 (elaboratingthese arguments). He viewed theseas “unfortunate” partly because they takecases away from the state courts, notingthat most state cases have rejected mandatoryarbitration on an individual basis.About the CompuCredit decision Mr. Issacharoffsaid, “This is a deeply troublingopinion if you buy the In re AmericanExpress [667 F.3d 204 (2d Cir. 2012)] reasoningof trying to fit something into aregulatory scheme.” See generally Issacharoff,supra, at 82–83 (elaborating thesepoints). In In re American Express the SecondCircuit, evaluating how the arbitrationrequirement affected “the statutory rightsunderlying the antitrust laws” and seek-For The Defense ■ September 2012 ■ 7

DRI Newswhile neutral on case values, Mr. Feinberganswered to BP, so he could not say thatplaintiffs did not need lawyers. During thesession, Mr. McGovern outlined areas raisingethical concerns in class actions, quasiclassactions, and aggregated cases; sourcesof ethical problems; and how judges couldnavigate the problems. The question, “Howmuch do you want to monitor attorney ethics?”would inform a judge’s approach, Mr.McGovern said.Discussing areas that raise ethical problems,he expressed that judges need toknow if “lawyers run the show” in a caseand adequately communicate with clients.Multidistrict litigation cases routinely use1-800 phone numbers and websites to keepclients informed. Joint defense agreementscreate confidentiality dilemmas. On attorneyconduct, according to Mr. McGovern,complex litigation “implicated” every itemin the ABA Model Rules of ProfessionalConduct, and he explained the potentialethical pitfalls in complex litigation trialstages and trial structures, plaintiff businessmodels, and plaintiff funding options.He particularly wanted to alert the judgesto “the new world of financing,” suggestingthat judges “may have an obligation tofind out who is financing what to find outwhat drives the decision- making process”in representation. Mr. McGovern highlightedthree particular ethical problemsources: plaintiff business models; plaintiffattorney financing; and aggregate settlements,particularly settlement distributionand attorneys’ fees. See generally FrancisE. McGovern, Toward an Understandingof the Mass Tort Litigation EnvironmentFrancis E. McGovern(NFJE 2012) (URL above) (discussingplaintiff business models, plaintiff attorneyfinancing, and procedural variablesleading to ethics problems).Mr. McGovern advised that the FederalJudicial Center Manual for ComplexLitigation (4th ed. 2004) and accompanyingforms offered judges “the best guidance”on how to comply with ethical rulesto ensure that “the lawyers meet ethicalobligations.” “When deciding how to dealwith ethics, look to the forms,” he advised.He also recommended that judges handlingaggregate settlements review theALI Principles of the Law of Aggregate Litigation,section 3.16, “Definition of a Non-Class Aggregate Settlement,” and section3.17, “Circumstances Required for AggregateSettlements to Be Binding.” Lookingahead, he forecasted that judges would haveto deal increasingly with challenges to settlements,which the ALI Principles of theLaw of Aggregate Litigation discusses insection 3.18, “Limited Judicial Review forNon-Class Aggregate Settlements.”Near the end of the day, the HonorableLorna E. Propes of the Circuit Courtof Cook County, Illinois, and Adam L.Hoeflich, a partner of Bartlit Beck HermanPalenchar & Scott LLP in Chicago,spoke on “how, when, and if” state judgesshould deal with experts testifying oncertification issues during the session,“Experts at the Head of the ‘Class’.” Shouldjudges, for example, test these experts byfully applying Daubert before certifyingclasses? Noting that parties frequently useexperts to support or fight class certification,the speakers explained the differentapproaches taken by various federalcircuits on analyzing testimony duringthe class certification stage, which Dukesbrought into focus, and the extent to whichstate courts should do it. Judge Propes andMr. Hoeflich specifically compared the spitbetween the Seventh Circuit and EighthCircuit. The Seventh Circuit requires afull Daubert analysis, having establishedthis in Am. Honda Motor Co. v. Allen, 600F.3.d 813, 815–16 (7th Cir. 2010). And theEighth Circuit conducts a “focused Daubertanalysis,” having concluded that courtsneeded to wait until the parties had completedmerits discovery before conductingDaubert analyses. In re Zurn Pex PlumbingProds. Liabl. Litig., 664 F.3d 604, 614 (8thCir. 2011). See generally Adam L. Hoeflich& Lorna E. Propes, Experts at the Head ofthe “Class” (NFJE 2012) (URL above) (discussingrecent federal developments, stateexpert evidence admissibility standards,and state court expert evidence- testingclass certification practices). They pointedout that the Supreme Court will resolve“whether a district court may certify a classaction without resolving whether the plaintiffclass has introduced admissible evidence,including expert testimony, to showthat the case is susceptible to award damageson a class-wide basis,” during the 2012Adam L. Hoeflich (left) and the HonorableLorna E. Propesterm in Comcast v. Behrend (No. 11-864).Mr. Hoeflich didn’t think that it wasclear how different standards would affectdifferent parties, or which parties theywould benefit, but he advocated providingtools to courts “with some teeth,” tomake sure that plaintiffs had proper proofto justify classes. Judge Propes termedthe Seventh Circuit approach “draconian.”She remarked, “The class actions left instate courts are the most righteous,” andundertaking Daubert analyses duringcertification would complicate litigation,“increasing discovery and making it difficultfor the plaintiffs’ bar.”The day concluded with a panel inwhich all speakers participated. Beforeadjourning to attend a closing reception,the symposium participants posed questionsranging from, “Are class actions goodfor certain cases and bad for others?” to“Have we reached a point where alternativedispute resolution is not so much friendof courts as anathema to jury trials?” to“What experience have you had with professionalobjectors?” and “What do youmost want attendees to take away fromthe seminar to think about?” In the wordsof one symposium participant, “The finalpanel did an excellent job of pulling strandsof the topic together.” Another participantcommented, “This is the best program thatthe NFJE has presented. Interesting andexcellent presenters.” All in all, the NFJEonce again offered a beneficial program.For The Defense ■ September 2012 ■ 9

New Leaders to Be ElectedNext Month in New OrleansEach year the DRI Annual Meeting serves as the venue forthe organization’s election of new leaders. The DRI Board ofDirectors will choose four individuals to join them as nationaldirectors (each serving three-year terms), one individual willbe selected to serve a one-year term as secretary- treasurer,and one person will be picked to be the next second vicepresident of DRI, beginning his or her track to eventual presidencyafter serving subsequent years as first vice presidentand president- elect.Election 2012Guidelines for Appearing before the DRI Nominating CommitteeThe 21st Century LawyerFive distinguished, long-time DRI membershave declared their candidacy for secondvice president and nine will be vyingfor the open seats on DRI’s Board of Directors.This year’s Annual Meeting will beheld October 24–28, 2012, in New Orleans.Immediately after the Saturday afternoonboard meeting and election, a blast emailwill be sent to DRI’s entire membership withthe election results.To inform all DRI members about theupcoming elections, For The Defense presentsa brief profile of each candidate. Thisinformation was gathered from the candidates’own responses in the Declarationof Candidacy that each completed for DRI.These declarations in their entirety havebeen made available online to DRI members.Please visit dri.org and select “2012DRI Election Update” under “DRI News” onthe home page to view the complete Declarationsof Candidacy and learn more about the candidates’plans and goals for the future of DRI and its role in the defensebar and the civil justice system.The first five persons profiled, John E. Cuttino, Kevin Driskill,James D. Holland, Neva G. Lusk, and Laura E. Proctor are candidatesfor second vice president. They are followed by profilesof the nine candidates for the board of directors. We alsopresent a short description of the electoral process, focusingon the role of the National Nominating Committee.The following guidelines have been designedto assist DRI members appearing beforethe Nominating Committee. Every memberof DRI is encouraged to participate in theelection of the DRI leadership. The opportunityto appear before the Nominating Committeeis open to all DRI members. Your appearancebefore the Nominating Committee is important,as it provides information necessary forthe Committee to make its recommendationsto the DRI Board of Directors. It also providesan opportunity for members of the NominatingCommittee to ask questions about the candidates.The Committee encourages each personappearing before it to speak openly and candidlyabout a candidate’s qualifications and abilities.10 ■ For The Defense ■ September 2012All discussion and communications within theNominating Committee are strictly confidentialand will not be revealed to anyone outside theNominating Committee. Comments should focuson the particular traits, attributes and qualificationsof the candidate that qualify him or her forthe elective position sought. Negative commentsabout candidates are discouraged unless specificallysolicited by a member of the NominatingCommittee.The list below is not all-inclusive; it isdesigned to serve as a guide to help identifypoints that are considered significant by theCommittee. While the Committee members havegeneral information and knowledge about eachof the candidates, they are looking for first-handinformation that may have been gained by eitherworking directly with the candidate or throughpersonal observation. The following tips representideas from former members of the NominatingCommittee, learned through many yearsof service, and are suggested to make theappearance process more efficient and compatibleto the DRI election process.In no particular order, here are a fewsuggestions:1) Before appearing before the NominatingCommittee, please have your commentsorganized and thought out. Time is limitedin order to allow everyone the opportunity toappear before the committee and it is necessaryto adhere strictly to the schedule.

Election 2012The 21st Century LawyerThe National Nominating CommitteeThe DRI Board of Directorswill elect the second vice president,secretary- treasurer,and four new members ofthe board at the DRI AnnualMeeting in New Orleans. Inmaking its selections, theboard will give serious considerationto the recommendationsof the NationalNominating Committee.The election procedures are laid outin detail in Article VII of the DRI By-Laws. The five- person National NominatingCommittee consists of “the three (3)most recent Past Presidents [other than thecurrent Immediate Past President]… andtwo (2) other members whom the Presidentshall select…”The National Nominating Committeewill convene on each of two consecutivedays at the Annual Meeting for purposesof hearing comments and information fromDRI members regarding the candidates forsecond vice president, secretary- treasurer,and board of directors. Members are invitedto schedule an appointment duringthese meetings to express their views onpresent and future issues facing DRI andthe defense bar and how particular candidatesmay be able to deal with those matters.The nominating committee meetingswill be held on Thursday, October 25, fromJohn H. Martin Marc E. Williams Cary E. Hiltgen Robert E. Tait Anne M. Talcott8:30 a.m. to 11:30 a.m. and 1:10 p.m. to 5:30p.m., and on Friday, October 26, from 8:30a.m. to 11:30 a.m., and 1:00 p.m. to 5:00 p.m.After receiving the input from thoseappearing before them, and from emailsand letters of support, the National NominatingCommittee will deliberate and thenreport to the DRI Board of Directors itsnominees for each position to be filled.The board then votes on each of the candidatesrecommended by the NominatingCommittee.The members of this year’s NationalNominating Committee are past presidentsJohn H. Martin, who will serve aschair, Marc E. Williams, and Cary E. Hiltgen,along with Robert E. Tait and AnneM. Talcott.John H. Martin served as DRI Presidentfrom 2007–2008. He is a partner ofThompson & Knight LLP in the firm’s Dallasoffice.Marc E. Williams was DRI Presidentfrom 2008–2009. He is a partner with NelsonMullins Riley & Scarborough LLP inHuntington, West Virginia.Cary E. Hiltgen served as DRI Presidentfrom 2009–2010. He is president of Hiltgen& Brewer, P.C. in Oklahoma City.Robert (Bob) E. Tait is a partner withVorys, Sater, Seymour and Pease LLP inColumbus, Ohio. Mr. Tait was a memberof the DRI Board of Directors from 2008–2011 and is a past president of the Associationof Defense Trial Attorneys.Anne E. Talcott is a shareholder ofSchwabe, Williamson & Wyatt in Portland,Oregon. Highlights of Ms. Talcott’s variedwork for DRI include service as chair of theYoung Lawyers Committee (2006–2007),program chair for the 2011 Annual Meeting,and program chair for the 2013 ProductLiability Conference.2) It is important to identify at the outset thecandidate (or candidates) you support, howlong you have known the candidate, the contactthat you have had with the person (e.g.,experience working with him or her in a stateor local defense organization, a DRI committee,other professional organizations, cocounselin a case, etc.) and your personalknowledge as to the candidate’s leadershipqualities.3) Describe for the committee the personalinterests of the candidate (if you know) inDRI compared to other professional organizationsin which he or she may be active,and why the candidate has a specific interestin DRI.4) Identify the specific attributes of the candidatethat are or should be important to DRI(e.g., geographical balance, diversity, corporatelaw relationship, important state orregional profiles, etc.)5) Describe the candidate’s prior leadershipexperience, of which you have first handknowledge, in any other professional organization,state or local defense organization,committee activity, community association,position in his or her law firm, co- counsel ina case, etc., where the candidate has demonstratedprior leadership experience.6) Comment upon the candidate’s ability toeffectively and efficiently carry out and performtasks assigned to him or her.7) Describe for the committee any observationsthat you might have about the candidate’sleadership abilities and the respect that othershave for him or her.8) Describe any other attributes or informationthat you feel are or should be important to thecommittee in determining whether the candidateshould be recommended to the DRIBoard of Directors for the elected positionsought.DRI appreciates your taking the time out of yourschedule to personally appear before the NominatingCommittee and share your thoughts andopinions. Without your interest and contribution,DRI would not be able to elect the best possibleleaders.For The Defense ■ September 2012 ■ 11

Election 2012The 21st Century LawyerCandidates for Second Vice PresidentJohn E. CuttinoTurner Padget Graham& Laney P.A.Columbia, SouthCarolinaJohn E. Cuttino is a shareholder in theColumbia, South Carolina, office of TurnerPadget Graham & Laney P.A. He has practicedas a defense attorney for 29 years inpersonal injury, toxic torts, pharmacy liability,construction defect, and commerciallitigation. Mr. Cuttino joined DRI in 1985and was elected a national director in 2009.Currently he serves as chair of the DRIMembership Committee and is the boardliaison to the DRI Diversity Committee. Aformer Construction Law Committee chair(2007–2009) and Annual Meeting SteeringCommittee member (2010 and 2011),Mr. Cuttino belongs to seven DRI substantivelaw committees, has written regularlyfor DRI publications, has been a presenterat several DRI seminars, and received the2009 DRI Leadership Award. He is also amember of the International Association ofDefense Counsel, the National Foundationfor Judicial Excellence, and the South CarolinaDefense Trial Attorneys’ Association.Mr. Cuttino believes that in 2013 the defensebar must continue to identify and attractsuperior state and federal judiciarycandidates and find ways to “keep the businessof practicing law rewarding, both personallyand financially,” while maintainingthe profession’s integrity. To that end, ifelected he would “make certain that DRIthrives in every respect and furthers itsposition as the preeminent defense bar organization.”To meet these goals he wouldseek to broaden DRI’s audience, increaseDRI membership, strengthen and enhancethe relationships between DRI and the SL-DOs, and seek ways to improve the performanceof DRI’s substantive law committees.To broaden DRI’s audience he would advocatefor and support the ongoing work of theNational Foundation for Judicial Excellence,the DRI Amicus Committee, and the DRICenter for Law and Policy, which he viewsas having the potential to elevate DRI’s visibility,reputation, and influence. To increaseDRI membership, Mr. Cuttino would refine12 ■ For The Defense ■ September 2012DRI’s current outreach to corporate and inhousecounsel, augment diversity efforts,attend to the retention of current members,and monitor legal profession changesto respond to new membership needs andopportunities. To strengthen and enhanceDRI relationships with SLDOs, he would encouragemore joint leadership, mentoring,and educational projects, maximize staterepresentative involvement, and continueto support annual visits by DRI officersand executive staff to each SDLO to facilitatecommunication and collaboration. Toenhance performance among the DRI substantivelaw committees, Mr. Cuttino woulddevelop a structure to encourage the exchangeof best practices among committeeleaders and increase communication andaccountability between committee leadersand the DRI Executive Committee.Kevin DriskillDriskill Law FirmOklahoma City,OklahomaKevin Driskill of the Driskill Law Firm inOklahoma City primarily practices in theareas of medical malpractice, employmentlaw, general negligence and tort defense,and legal malpractice. He has 30 yearsof experience as a defense attorney andhas tried over 50 jury trials to verdict.He joined DRI in 1985 and belongs tofour DRI substantive law committees. Mr.Driskill currently serves as the DRI SouthwestRegional Director (2009–2012) andas the board liaison to the Trucking LawCommittee. From 2004–2006, Mr. Driskillserved as the DRI Oklahoma State Representative,and he is a former presidentof the Oklahoma Association of DefenseCounsel (2001). He received the DRI StateLeadership Award in 2006. His other affiliationsinclude the National Foundationfor Judicial Excellence, the American BarAssociation, the Federation of Defense &Corporate Counsel, the Oklahoma Associationof Defense Counsel, the OklahomaBar Association, the Oklahoma CountyBar Association, and the Trial Attorneysof America.Mr. Driskill believes that the mostimportant issue for the defense bar in 2013is the continuing attack on the civil justicesystem. To counter the attack, if elected hewould continue to focus DRI’s time andtalent on educating DRI members and thepublic about the importance of the jurytrial, jury service, and an independentjudiciary. Mr. Driskill would also continueto advocate for an independent judiciaryand for jury trials. His other goalsinclude, first, strengthening the relationshipbetween DRI and SLDOs by continuingDRI work in this area, learning howDRI can assist SLDOs, involving themin the decision-making process that DRIundertakes before taking policy positions,and expanding into new areas, for instance,by becoming a clearinghouse for informationabout issues important to SLDOs. Second,Mr. Driskill would maintain DRI’sposition as a thought leader by buildingmechanisms to identify cutting-edge issuesof importance to members and to SLDOsand by encouraging DRI to work withother groups with similar interests whenthey overlap to “help shape the debate onissues rather than react” afterward. Third,he would promote and enhance the Centerfor Law and Public Policy by advancingprocesses to further its work. Fourth, cognizantthat “DRI is an organization that iscomposed of many different constituencies,”Mr. Driskill would “continue to offerprograms and services for small firms,large firms, in-house counsel, and corporatecounsel.” In other words, he wouldfoster “a broad range of programs that willappeal to DRI’s constituent groups.”James D. HollandPage Kruger &Holland PAJackson, MississippiJames Holland has defended individualsand businesses for 31 years and is a foundingmember of the Jackson, Mississippi,law firm Page Kruger & Holland PA, wherehis practice includes commercial litigation,construction law, insurance, personalinjury, and product and premises liability.

Election 2012The 21st Century LawyerCandidates for Second Vice PresidentHe joined DRI in 1988. Currently serving asthe DRI Southern Regional Director (2009–2012), Mr. Holland chairs the DRI Stateand Local Defense Organization RelationshipCommittee (2010–2012) and presentlyserves as the board liaison to the ConstructionLaw Committee. He previously workedas board liaison to the Appellate AdvocacyCommittee. He has held many other DRIleadership positions. In 2007, Mr. Hollandreceived a DRI Exceptional PerformanceCitation. His other professional affiliationsinclude the Association of Defense TrialAttorneys, the Federation of Defense &Corporate Counsel, the International Associationof Defense Counsel, the NationalFoundation for Judicial Excellence, andthe Federal, Fifth Circuit, Mississippi, andCapital Area Bar Associations. Additionally,he is a past board member and a pastpresident of the Mississippi Defense LawyersAssociation.Mr. Holland believes that the most importantissues that the defense bar mustaddress in 2013 are “the diminished publicunderstanding of the role of an independentjudiciary and the public’s role as jurors.” Inaddition to addressing these issues by promotingcivic education, if elected he wouldaddress the current changes in the practiceof law, provide specific leadership training,increase membership engagement, focusDRI efforts in diversity attainment, andconcentrate on judicial education. He wouldaddress law practice change through DRIseminars, committees, newsletters, and ournational publications. He would deliberatelydraw from the knowledge of former officers,board members, and other leaders to identify,involve, train, and enable future leadersas defense practitioners and within DRI.As an officer, he would engage newmembers by creating personal contactpoints and retain them, as well as existingmembers, by creating opportunitiesto become involved in DRI. He would supportthe important seminars, publications,and networking opportunities performedby our substantive law committees thatbenefit the entire organization by encouraginginnovation and balancing supportwith coordination, guidance, and problemsolving assistance as needed. Whilesupporting the work of the Diversity andWomen in the Law Committees, Mr. Hollandwould encourage mentoring andadvancing diverse and women attorneysto achieve diversity in the leadership structure.He would also advocate long-rangeplanning in these areas to meet the needsof DRI members into the future.Neva G. LuskSpilman Thomas& Battle, PLLCCharleston, West VirginiaNeva G. Lusk is a member of SpilmanThomas & Battle, PLLC, practicing in thefirm’s Charleston, West Virginia, office. Shehas 22 years of experience in the areas ofgeneral litigation with emphasis on productliability, toxic torts, class actions, andinsurance bad faith. Ms. Lusk has been amember of DRI since 1995, and previouslyserved as the DRI West Virginia State Representative(2006–2009). Currently, Ms.Lusk is a member of the DRI Public PolicyCommittee and serves as the first chairof its Lawyers for Civil Justice Subcommittee(2010–present). She is also a formermember of the Women in the Law Committee’ssteering committee and belongsto six additional DRI substantive law committees.Her other professional affiliationsinclude the National Foundation for JudicialExcellence, the American Bar Association,the American Inns of Court, theDefense Trial Counsel of West Virginia,International Association of Defense Counsel,the Kanawha County Bar Association,Lawyers for Civil Justice and the West VirginiaState Bar. Ms. Lusk is a past presidentof the Defense Trial Counsel of WestVirginia where she held a variety of otherleadership positions.Ms. Lusk believes that the erosion of thejury trial as a primary dispute resolutionmechanism is a significant concern for thedefense bar in 2013. She views public educationrelating to the importance of juryservice and our civil justice system as criticalto DRI’s endeavor to maintain a faircivil justice system in the United States. Ifelected, Ms. Lusk proposes undertakinga pilot program through which DRI staterepresentatives would appoint state committeesto carry out the remedial strategiessuggested by the DRI report, “It’s JuryService, Not Duty.” Her other goals includeexpanding DRI’s role as the voice of thedefense bar, in part, by repositioning theResearch and Development Committee andasking each substantive law committee tocreate a research and development subcommittee.The Research and DevelopmentCommittee and substantive law subcommitteeswill strive to become the primarysources of emerging topics to be consideredby the new DRI Center for Law and PublicPolicy and the Law Institute.Ms. Lusk would also study the organizationalstructure of the various substantivelaw committees to determine whetherthey call for more uniformity; combinemembership recruitment efforts of thestate and local defense organizations’ substantivecommittees and the DRI substantivelaw committees; support the NationalFoundation for Judicial Independence; and,promote mentoring of women and diverselawyers.Laura EllisonProctorLouisiana PacificCorporationNashville, TennesseeLaura Ellison Proctor is associate generalcounsel with Louisiana Pacific Corporation.Based in Nashville, Tennessee, Ms.Proctor is responsible for overseeing allaspects of the company’s litigation, includingemployment, product liability, antitrust,construction and other general tortlitigation. She has 20 years of experienceas a defense attorney including 13 yearsin private practice in Birmingham, Alabama.Ms. Proctor joined DRI in 1996,was elected a national director in 2007and elected Secretary-Treasurer in 2010.As DRI’s Secretary-Treasurer from 2010–2012, Ms. Proctor served as a member ofDRI’s Executive Committee and as chair ofits Finance Committee. She was a foundingmember of the DRI Corporate CounselCommittee, Public Service Committeeand served as committee chair for the DRIFor The Defense ■ September 2012 ■ 13

Election 2012The 21st Century LawyerCandidates for Second Vice PresidentAlternative Dispute Resolution Committeeand Young Lawyers Committee. Herother professional affiliations include theAlabama State Bar Association, the InternationalAssociation of Defense Counsel,the National Foundation for JudicialExcellence, the Tennessee Defense LawyersAssociation, and the Tennessee StateBar Association.If elected, Ms. Proctor’s goals wouldbe to collaborate with the DRI Center forLaw and Public Policy to develop, support,and deliver legal and public policy initiativesthat promote a fair and balancedcivil justice system. She would also createa strategic plan designed to encourage andincrease member participation among our22,000 members. This plan will include aleadership development program that willprovide DRI with a pool of strong, diverse,and well qualified leaders to direct thisorganization into the future. Ms. Proctorwould also develop skill-based workshopsfocusing on soft skills such as public speaking;and propose forming a DRI CaresFoundation to raise funds for the NFJE andidentify projects that would also “contributeto the community in meaningful ways.”Ms. Proctor thinks that one of the mostimportant, far-reaching issues for thedefense bar for 2013 and beyond is theincreasing lack of trial experience amongthe next generation of lawyers. There isno shortage of talent in the rising ranksof attorneys, just a lack of opportunity toget into the courtroom and try a case to ajury. To break this cycle, she believes, thedefense bar should look for ways to assistthe next generation in obtaining experiencein front of real juries. She believesthere is a real opportunity for the civildefense bar to partner with certain groupson the criminal justice side to help fill theirneeds and ours.Candidates for National DirectorKathleen M.GuilfoyleCampbell CampbellEdwards & Conroy PCBoston, MassachusettsKathleen M. Guilfoyle is a shareholder withCampbell Campbell Edwards & Conroyin Boston. With 26 years’ experience as adefense attorney, her practice areas includeaviation law, product liability, pharmaceuticals,insurance defense, and environmentallaw. She joined DRI in 1996 andserves on the Membership Committee, haschaired the Lawyers’ Professionalism andEthics Committee (2005–2007) and servedon the Jury Service Task Force. She serveson the board of directors of the InternationalAviation Womens Association.Her other professional affiliations includethe ABA, the International Associationof Defense Counsel, the MassachusettsBar Association, and the MassachusettsDefense Lawyers Association.If elected, she would strengthen membershipretention by analyzing currentmembership composition, identifyingcompetitor organizations, and meetingand exceeding competitors’ offerings insubstantive practice areas. One way todo this is by creating a variety of specializedopportunities for interaction andeducation, within and outside of DRI,14 ■ For The Defense ■ September 2012ensuring members look to DRI as theirprofessional organization of choice. Ms.Guilfoyle would also work to achieve diversityamong DRI membership, committees,and leadership. “People are not goingto join an organization they feel does notaddress their needs and one in which theycan see no real opportunity for advancement,even if it does have an excellent reputation,”she notes.Jack B. (Skip)McCowan, Jr.Gordon & Rees LLPSan Francisco, CaliforniaJack (Skip) B. McCowan, Jr., is a partner inthe San Francisco office of Gordon & ReesLLP. He has 36 years of experience defendingproduct liability, commercial, and environmentallitigation. Mr. McCowan joinedDRI in 1983 and has regularly deliveredpresentations during the DRI Drug andMedical Device Committee’s annual seminar.He has actively served on that committeesince the mid-1990s, and is theimmediate past chair. Additionally, Mr.McCowan testified as a representative ofDRI on two occasions before the AdvisoryCommittee on the Federal Rules ofCivil Procedure of the Judicial Conferenceon proposed rule changes to Rules 23 and26. Active in the leadership of the InternationalAssociation of Defense Counsel,he served on the Executive Committeefrom 1999–2002. He has also served onthe board of directors of the Associationof Defense Counsel of Northern Californiaand Nevada.If elected, Mr. McCowan would ensurethat DRI remains the largest, most wellrespected,and effective organization ofdefense lawyers in the country, increaseunderstanding among defense lawyers ofthe many benefits that DRI offers, and bringthose benefits to more lawyers beyondU.S. borders. To achieve these goals, hewould focus on maintaining and increasingmembership by encouraging participationin seminars, webcasts, and otherDRI programs.Stephen R.PennellStuart & Branigin LLPLafayette, IndianaStephen R. Pennell is a partner with Stuart& Branigin LLP in Lafayette, Indiana. Hehas 36 years’ experience as a defense attorneyin the areas of product liability, insurance,and commercial law. He joined DRIin 1976. Mr. Pennell served as the DRI IndianaState Representative from 1998–2000,

Election 2012The 21st Century LawyerCandidates for National Directoron the Membership Committee (2000–2006), as the membership chair for theADR Committee (1999–2000), and on theSLDO Relationship Committee (2006–2008). In 2004, he received DRI’s FredSievert Award for outstanding service. Mr.Pennell is a former Association of DefenseTrial Attorneys Executive Council member(2008–2011), past president of the DefenseTrial Counsel of Indiana (2004), and amember of the ABA, Indiana Bar Association,and International Association ofDefense Counsel. He received the ADTAPresident’s Award for outstanding leadershipin 2011.If elected, Mr. Pennell would help DRIstrengthen and improve its role as the voiceof the defense bar by becoming the primaryresource for defense attorneys to improvetheir knowledge and understanding ofthe issues and challenges facing them. Hewould work on all DRI levels to identify keyissues that DRI needs to address, developingspecific goals and plans to address eachissue, and establishing accountability toensure that DRI accomplishes the goals.William F. RayWatkins & Eager PLLCJackson, MississippiWilliam F. Ray is a member of Watkins& Eager PLLC in Jackson, Mississippi. Adefense attorney for 26 years, his practicefocuses on commercial litigation andarbitration, ERISA litigation, life insurancelitigation, and other financial servicescases. He joined DRI in 1991. A frequentwriter and presenter for DRI, he chairedthe Commercial Litigation Committee,and was appointed to the DRI Law Institutein 2002, serving as vice chair for twoyears and as chair for two years. In additionto his work on Law Institute policyand on numerous committees’ seminars,Mr. Ray worked to develop the first DRIStrictly Retail Seminar and has worked oneach seminar offering to date from the DRIRetail and Hospitality Committee.If elected, Mr. Ray would use his experiencein DRI to recruit and mentor newvolunteer leaders for the DRI substantivelaw committees and for the organizationas a whole. He would actively participatein retaining the DRI culture of civility andservice. He also hopes to bring a perspectiveof experience in the committees andseminars to the board meetings throughcommitted attention to assignments, activeparticipation in board meetings, outreachto leaders and potential leaders, andextending friendship and offers of assistanceat every opportunity.Kurt M. RozelskySmith MooreLeatherwood LLPGreenville, SouthCarolinaKurt M. Rozelsky is a partner of SmithMoore Leatherwood LLP in Greenville,South Carolina. With 18 years of experienceas a defense attorney, his practiceareas are transportation law, product liability,professional liability, and commerciallitigation. A member of DRI since 1998,Mr. Rozelsky chairs the DRI Trucking LawCommittee and belongs to five other substantivelaw committees. His other professionalaffiliations include the American BarAssociation, the American Board of TrialAdvocates, the Federation of Defense &Corporate Counsel (serving as a vice chairof the Transportation Committee), theGeorgia Bar, the South Carolina Bar, theSouth Carolina Defense Trial Attorneys’Association, the Transportation IndustryDefense Association, the TransportationLawyers Association, and the UpstateSouth Carolina Inn of Court.If elected, Mr. Rozelsky would work toincrease general membership, enhancethe DRI substantive law committees tomake each the leader in continuing educationand networking in the industry, promoteAnnual Meeting and CLE seminarattendance, encourage corporate counselto become involved in the substantivelaw committees, and continue to fosterstrong bonds with other bar organizations.To accomplish these goals he wouldstrengthen relationships with corporatepartners and related industry groups, continueto support and enhance the PanelCounsel Program, and expand publishingopportunities, both print and online.Gary SchumanCombined InsuranceCompany of AmericaGlenview, IllinoisGary Schuman, senior counsel for CombinedInsurance Company of America inGlenview, Illinois since 1987, has 37 yearsof experience in life, health and disabilitylitigation (ERISA and non-ERISA), includinginsurance bad faith. Before joiningCombined Insurance, he worked for privatefirms. Mr. Schuman has belonged toDRI since 2000. He currently chairs theDRI Life, Health and Disability Committeeand also belongs to the DRI CorporateCounsel Committee. Mr. Schuman frequentlyhas written articles for DRI publicationsand delivered presentations duringDRI programs. His other professional affiliationsinclude the American Bar Association,for which he serves as a vice chair ofthe TIPS Insurance Law Committee, theChicago Bar Association, the Federation ofDefense & Corporate Counsel and its CorporateCounsel Committee, and the InternationalClaims Association.If elected, Mr. Schuman would use hislegal experience and seminar planningskills to further the DRI mission and strategicplan. In particular, he would encourageDRI to coordinate communicationamong the defense bars to match the successfulefforts of the plaintiffs’ bars to advocateand coordinate efforts on importantissues. Mr. Schuman also would maintainthe excellence that DRI has achieved inproviding continuing legal education.Scott BurnettSmithBradley Arant BoultCummings LLPHuntsville, AlabamaScott Burnett Smith is a partner in theHuntsville, Alabama, office of BradleyFor The Defense ■ September 2012 ■ 15

Election 2012The 21st Century LawyerCandidates for National DirectorArant Boult Cummings LLP. With 14 yearsof experience as a defense attorney, hisareas of practice include appellate and classaction litigation. A DRI member since 2000and a past chair of the Appellate AdvocacyCommittee (2009–2011), Mr. Smith currentlyserves as chair of the DRI AmicusCommittee. He writes frequently for DRIpublications, has chaired several DRI seminars,and served on the National Foundationfor Judicial Excellence ProgramCommittee in 2012. His other professionalaffiliations include the ABA, the Councilof Appellate Lawyers, and the AlabamaDefense Lawyers Association.If elected, Mr. Smith would make developingthe Center for Law and Public Policyhis primary goal. “The Center will helpDRI take on a prominent role as the thoughtleader of the defense bar nationwide,” hesaid. To achieve this goal, he would buildon the success of the DRI Amicus Committeeand the relationships he developed withthe press and other amicus organizations tofurther the DRI mission. “Once the AmicusCommittee teams up with the Public Policyand Public Relations Committees withinthe Center,” he believes DRI will “expandour influence over legal policy issues in thecourts, in the press, and in Washington.”16 ■ For The Defense ■ September 2012David M. WilsonWilson & Berryhill PCBirmingham, AlabamaDavid M. Wilson, the founding partner ofWilson & Berryhill PC in Birmingham, Alabama,maintains a classic insurance defensepractice, including defending personalinjury litigation, product liability, auto andtrucking negligence, construction defect,premises liability, dram shop, workers’ compensation,and appellate advocacy. He has25 years’ experience as a defense attorney.Mr. Wilson joined DRI in 1997. He currentlyserves on the DRI Public Policy Committeeand as the vice chair of the Partnering withIndustry Groups Task Force. A former chairof the DRI Workers’ Compensation Committee(2005–2007), Mr. Wilson regularlycontributes to DRI publications, sits on seminarcommittees, and delivers DRI seminarpresentations. His other professional affiliationsinclude the Alabama Bar Association,the Alabama Defense Lawyers Association,and the Alabama Workers’ CompensationDefense Lawyers Association.If elected, Mr. Wilson’s goals wouldOn The Record, from page 1and regional discussions on issuesthat have an impact on our membersand their clients, and on our corporatemembers. We are a major playerin the lawyer organization marketplaceand we intend to project ourVoice even stronger. This committeewill have a subcommittee, chairedby Neva Lusk, which will help coordinateour efforts with Lawyers forCivil Justice on the rulemaking lobbyingdone in Washington DC.3. Public Education Committee: Thiscommittee will be led by Chair RusselMyles and Vice Chair Jill CranstonRice. It will be responsible for educatingour members, clients, corporatecounsel, businesses, and the publicat large about our legal and publicpolicy initiatives and successes.They will serve as strategists for ourpublic relations operations and willcarry out a “communications plan”that has been designed and writtenby our new Director of Communications,Tim Kolly, a DRI senior staffer.Tim has created a blueprint for howDRI will interact with the media andhow it will project the strength ofthe DRI brand through our publiccommunications.DRI is well situated for another 50 yearsof growth and strength as an organization.These enhancements will insureeven greater member value. We are veryproud of these developments.include further development of the Centerfor Law and Public Policy; fresh marketingstrategies to increase membership; helpingsmaller DRI committees identify opportunitiesto partner with larger committeesand other organizations to provide moreoccasions for meaningful networking andeducation opportunities; continuing DRI’sefforts to increase diversity of membership;and promoting a sense of belonging amongDRI members by creating opportunities forstate and local gatherings.Anthony R. ZelleZelle McDonough& Cohen LLPBoston, MassachusettsAnthony Zelle founded Zelle McDonoughLLP after 20 years of practice with large lawfirms. He represents insurance companiesin coverage and bad faith litigation and handlesother commercial litigation. He joinedDRI in 1996, currently chairs the InsuranceLaw Committee, serves on the steeringcommittees of the Appellate Advocacy andTrial Tactics Committees, and is a memberof the Commercial Litigation Committee.He frequently writes for DRI publicationsand developed and edits the Bad Faith InsuranceCompendium. Mr. Zelle has workedon 20 DRI program committees and hasdelivered a dozen presentations. His otherprofessional affiliations include the InternationalAssociation of Defense Counsel andthe Loss Executives Association.Mr. Zelle has a steadfast interest in DRI’sCLE programming. If elected he’ll work tointegrate programming among DRI substantivelaw committees with interrelatedpractice areas to “create ‘super programs’that could draw more than 1,000 attendees.”He is committed to increasing membershipand the involvement of insurance companymembers and other corporate counsel staff.He considers the relationships he has developedwith DRI colleagues, those in privatepractice and those working in-house, as thegreatest benefit of his experience with DRIand is committed to enhancing the DRIstructure to propagate the opportunitiesfor members to develop those relationships.

Trial TacticsFrom the ChairBy Tammy J. MeyerAfter 30 Years—Reflectionsof ChangeA toast to the challengesand changes that havemade us who we areand the kind of peoplewe truly want to be.■ Tammy J. Meyer is a partner with MillerMeyer LLP in Indianapolis. She has tried numerous civil cases, including trucking accidents,wrongful arrests and detention, defamation, premises liability, medical malpractice and products liability. She also hasvast experience in the area of insurance coverage and environmental insurance coverage. Ms. Meyer has been a member of DRIsince 1991.18 ■ For The Defense ■ September 2012When asked to write this piece “From the Chair,” Irequested suggestions from our Trial Tactics SteeringCommittee. I received several: what happened at the fly-inmeeting; how to get involved in the committee; what you

Trial TacticsNew Sources ofRelevanceBy Natalie C. Schaeferand Callie E. WaersTechnologyinLitigationTo gain an advantage foryour client, understandthe issues surroundingthe discovery andadmissibility of electronicevidence, as well as howbest to present it to a jury.As technology advances, it changes the way that we learnand communicate. Litigators must adapt to the availabletechnology to make effective use of the resources andinformation around them and also to communicate mes-sages to people who expect others to presentinformation in new ways. New technologyalso means that we have newsources to find relevant evidence. Courtsare still assessing the voluminous electronicresources and their relevancy tolitigation. In the meantime, it is importantto understand these resources and toemploy the most effective way to use themto your client’s advantage. Technologicaldata has potential relevance to your cases,so become familiar with the proper methodfor obtaining it and presenting it clearly. Itcan only serve to assist your clients and tomake you a more effective advocate.Social Networking andSearch EnginesThe advent of social networking websitescreated a wave of personal information thatthird parties possess and store online. Thisinformation can give a much more comprehensiveview of an individual’s personal lifethan was traditionally available. Understandingthe discoverability, admissibility,and privacy issues that accompany thewealth of information on social networkingwebsites is critical to using the websitesto your advantage. For instance, social networkingcan be a particularly useful tool tochallenge the validity of a plaintiff’s claims.A plaintiff claiming various psychologicaleffects on his or her life may provide contraryinformation on a social networkingwebsite. Alternatively, a plaintiff claimingphysical limitations may post photographsthat evince no limitation. The possible usefulnessof this information is virtually limitlessand the usefulness of these websitesincreases as more people use them.In the last several years, search engineshave become more powerful than ever.It is crucial to keep in mind that while aplaintiff’s online information may helpdefense counsel, it is a two-way street. Clientsshould know that opposing counsel20 ■ For The Defense ■ September 2012■ Natalie C. Schaefer is a member of the law firm of Shuman McCuskey and Slicer PLLC in its Charleston,West Virginia, office. Her entire practice is devoted to civil litigation. She is member of the DRI Trial TacticsCommittee, as well as the DRI Insurance Law Committee, which she serves as Young Lawyers vice liaison.Callie E. Waers is a 2013 Juris Doctor Candidate at the Washington and Lee School of Law. Ms. Waersserved a summer clerkship with the law firm of Shuman McCuskey and Slicer PLLC in its Charleston, WestVirginia, office.

Trial Tacticsmation is preserved because it is unlikelythat a third party will have reason to knowof the litigation unless the third party andyour client have a defined special relationship.Several states have recognized a tortof spoliation of evidence against third parties.The duty arises when a “special relationship”is created, such as by expressagreement. Jeffery J. Fowler, PreservingElectronically Stored Information: A PracticalApproach, BNA’s E- Discovery PortfolioSeries, The Bureau of National Affairs,A-16 (2011). A third-party preservationorder from a court or a subpoena will usuallysufficiently notify the third party of itsduty to preserve the information; however,many third-parties are strenuously objectingto having to comply with various courtorders, subpoenas, or both, so it is prudentto make every attempt to preserve theinformation that your client does control atthe outset of litigation.When representing businesses, rememberto advise your client of the many areaswhere relevant information may be stored.Remind your client to check with its ITdepartment about any automatic deletionpolicies regarding e-mails, temporary files,or archived files. Make sure that the clientplaces a litigation hold on all potentiallydiscoverable information. Also rememberto check with cellular providers aboutstored text messages and voice mails. Otherpotential areas to consider are personale-mail accounts, social networking websites,file and print servers, and alreadydeleted files. Jeffery J. Fowler, PreservingElectronically Stored Information: A PracticalApproach, BNA’s E- Discovery PortfolioSeries, The Bureau of National Affairs,(2011) (discussing admissibility issues insocial networking evidence).Ensuring Evidence Admissibility andPresenting Evidence in a CourtroomTwo particularly important things thatyou will want to consider when preparingfor a trial are social networking evidenceadmissibility and how you will use technologyto present it and other evidencetypes to a jury.22 ■ For The Defense ■ September 2012AdmissibilityAdmissibility is central to using social networkingevidence in litigation. To presentinformation obtained from a social networkingwebsite during a trial requiresauthenticating it. You can authenticate informationfound on websites with witnesstestimony or circumstantial evidence suchas appearance, contents, substance, internalpatterns, or other distinctive characteristicsof an item, taken together with all of the circumstances.Fed. R. Evid. 901. It would beeasiest for a plaintiff to admit ownershipand knowledge of the obtained information,but a plaintiff may not always do this.Due to the circumstantial element ofestablishing evidence trial admissibility,the authentication threshold is actuallyquite low. John G. Browning, Digging forthe Digital Dirt: Discovery and Use of Evidencefrom Social Media Sites, 14 SMU Sci.& Tech. L. Rev. 465–96 (2011). For example,circumstantial evidence was used ina California case to authenticate a defendant’sMyspace page that linked him toa known gang. People v. Valdez, 201 Cal.App. 4th 1429 (2011). The defendant challengedthe authentication but admittedthat the main photograph on the page wasof his face, that a user using a photographof his sister left him messages addressinghim as her brother, and messages on thepage were addressed to his name. Also, hislisted interests supported suspected linksto a known gang. Id. at 1435. The courtrecognized that the trier of fact decidesauthentication so the trial judge’s decisionto admit the evidence was not improperbecause while “the [defendant] was free toargue otherwise to the jury, a reasonabletrier of fact could conclude from the postingof personal photographs, communications,and other details that the MySpace[sic] page belonged to him.” Id. Of course,authentication is not the factor that determinesadmissibility. The evidence mustalso overcome all other evidentiary hurdlesbefore a trial judge will admit it.Presenting with TechnologyFor years attorneys expressed concern thatusing computer technology during trialpolarized a jury by creating a perceptionof a high- dollar legal team. Because weare now immersed in a computer generation,however, most juries understand, andfrankly expect, attorneys to use computertechnology during trials. However, it isimportant that you choose demonstrativetools appropriate to your case. You shouldavoid alienating the jury with modern,high-tech equipment in a small- value propertydamage case, for instance. Likewise,you should use technology only to enhancea jury’s understanding of your argumentand never simply because you feel obligatedto use it. If you routinely use technologywithout thinking about it, before using it inpresentations, take a step back before eachtrial to assess the applicability and usefulnessof the technology you will use to makesure that it facilitates understanding in theparticular case.The American Bar Association 2011Legal Technology Survey Report identifiedthe three most common forms of technologythat the surveyed attorneys reportedhaving access to in courtrooms: 65 percentreported a projection screen, 52 percentreported a DVD player, and 49.9 percentreported a single monitor for the courtroom.American Bar Association, Litigationand Courtroom Technology, 3, 2011Legal Technology Survey Report, III-I, III-27 (2011). In contrast, only 22.6 percent ofsurvey respondents reported the availabilityof a laptop with presentation software,and only 19.2 percent reported the availabilityof an evidence or document camera.Id. at III-30. As evident by this survey,court facilities may not make many ofthe tools that you may anticipate usingavailable, so you will want to prepare adequately.It is crucial that you know what isand is not available or permissible to use ina particular courtroom.Troubleshooting and PreparationTo make sure that you have adequatelyreadied your evidence and equipment fora trial, survey the courtroom before yourtrial. Know the fundamentals such as thelocations of the electrical outlets. Knowthe courtroom’s technological capacities,and understand what you will need to providefor yourself. Do you need an easel,ELMO, laptop with Trial Director capabilities,screen, dry erase board, TV/VCR/DVD, or light box for X-rays? You shouldhave backup technical support if possible.For example, if you are preparing a computerpresentation, bring a spare computerand an extra disk. If you previously havenot obtained a court ruling on whether youmay use the demonstrative tool, have alternateplans for presenting your evidence or

Trial Tactics24 ■ For The Defense ■ September 2012Research indicates that using visual aidsin addition to an oral message can reinforceand increase memory recall. RichardC. Waites, Courtroom Psychology and TrialAdvocacy (2003). Modern research on theeffectiveness of multimedia presentationshas developed several principles that aidin creating electronic presentations. Twoimportant ones are the contiguity principleand the modality principle. Id. at 359.The contiguity principle states that presentationsare more effective when words andimages are presented alongside each otherat the same time. The modality principlestates that narration increases learning andmemory retention more than on-screentext. Id. In a study testing the modalityprinciple, students were asked to watchpresentations containing a visual componentwith text or containing a visual componentwith narration. The presentationsexplained how lightning was created andthe functionality of brakes in cars. The studentswere tested after these presentationsto measure retention and their ability touse the information in problem solving.The students who viewed the presentationswith narrations retained an average of 30percent more information and had 80 percentmore creative problem- solving solutions,suggesting a deeper understandingof the information. Richard E. Mayer, MultimediaLearning, 141–44 (2001). Therefore,you should use text in presentationsclose in time and proximity to the imagesthat you use, and narration should accompanyanything that you wish a jury toretain and understand.The research seems to imply that thecontiguity principle and modality principleconflict: one suggests using narrationas opposed to text and one advises how bestto use text. The redundancy principle helpsto resolve this dilemma. The redundancyprinciple states that learning is facilitatedmore by just combining visual and audiolearning than by combining visual andaudio with on-screen text. Id. at 14760. Therecipient of the information will becomeoverwhelmed if information is presented intoo many modalities or through too manychannels at once; the audio informationwill compete with the text information.Id. Ideally, audio and textual presentationscontain the same information, and yet themore ways that you try to convey a message,the less impact your message mayhave. In a study testing the redundancyeffect, subjects who viewed presentationswith just visual and audio componentsretained 28 percent more information andgenerated 79 percent more creative solutionsto questions seeking solutions toproblems than did their counterparts whoviewed the audio- visual- text presentations.Id. Therefore, use text sparingly, and alwaysuse it in close proximity to your visuals.Do not overload a jury with informationand force jurors to choose how to receiveit. Make the choice for them by presentingvisual learning components with limitedexplanatory text, and verbally explain yourpresentation to achieve maximum understandingand information retention.Presentation software generally is easyto use and saves time because it providessimple templates, meaning that all a userhas to do is supply the information. It is notwise to rely on a template due to its ease ofuse, however, because a template may notalways offer the best way to connect witha jury. Just remember that the templatesprovided in common software offer somechoices, but a presentation creator has thepower to create an intriguing slide fromscratch. While this sounds time intensive,creating slides from scratch offers a greatway to maximize an electronic presentation’susefulness, and there is no point tousing presentation software if how you useit doesn’t enhance your message.When preparing a slide presentation, itis helpful to start at the end and work backto the beginning. The end that you wantto achieve is that jurors will understandthe presented message. So the first stepis to decide exactly what message a jurorshould take from each slide. Then buildeach slide as a mini- advertisement for thatmessage. Effective advertising appeals tothe senses with appropriate color, pleasingspacing and orientation, and directword choices. Use colors that balance eachother, and do not produce negative associations.For example, do not use a darkgreen background when a plaintiff’s attorneyhas emphasized your client’s wealth tothe plaintiff’s advantage.Avoid using images and clip-art thatrisk unfair prejudice or distraction. State v.Robinson, No. 47398-1-I, 2002 Wash. App.Lexis 339 (Wash. Ct. App. Feb. 25, 2002),addressed whether the prosecutor’s useof a slide containing curtains engulfed inflames next to the elements of first- degreearson was prosecutorial misconduct warrantingreversal of the case. The court ofappeal found the trial court should nothave allowed it, and although the prosecutor“should have known better than touse it,” the court of appeal stopped short ofreversal. Id. at *9–10. Find a way to conveyyour message clearly without jeopardizingthe credibility of your presentation.Graphs and images can very usefullyhelp jurors understand a point that youcan have difficulty conveying verbally. Forinstance, you should consider using graphsand photographs (1) to illustrate the relationshipsbetween parties or witnesses ina case with multiple parties or voluminoustestimony; (2) to organize a timeline ofevents when they may become confusing oroverwhelming to remember; (3) to show thespatial relationships that enable an understandingof the facts, with maps, blueprints,or diagrams; and (4) to demonstraterelative size of an object, file, distance, orany other quantifiable comparison.Making a comparison is one of the mosteffective tools to facilitate understanding,and visual aids can achieve this successfully.Richard C. Waites, Courtroom Psychologyand Trial Advocacy, supra note 14,at 353–54. Comparison is really the meatof all adversarial proceedings so purveyingyour message in a visual as it contraststo the opposing argument can increaseunderstanding of the big picture. You canalso use comparison to win the little points.For example, using just about any presentationsoftware, spreadsheet, or graphicssoftware, it is rather simple to create a tablewith columns comparing customer serviceratings, awards, safety certificates, or anyother pertinent information to emphasizeyour client’s standing in its industry.This is a great way to use an electronic presentationeffectively to solidify your oralmessage.Overall, the goal is to support your oralargument, engage a jury, and facilitateunderstanding. To do this, do not thinkabout what you want to convey, but thinkabout how you want a jury to understandinformation. Remember, the ultimate goalof a trial is to have a jury understand yourmessage.

Trial TacticsSOS for SNSBy Christie StrangeHow to Navigatethe Sea of SocialMedia DiscoveryWhile courts havenot reached a clearconsensus on the propertreatment of discoveryof information postedon social networkingsites, early investigation,tailored discoveryrequests, and timelymotions to preserve aregood strategies to employ.Of the myriad and variety of things that Americans doonline, few activities have received as much attention asthe use of social networking sites (SNS). Keith Hampton,Laura Sessions Goulet, Lee Rainie, & Kristen Purcell,Social Networking Sites and Our Lives: Part2: Who Are Social Networking Site Users?Pew Internet & American Life Project, http://www.pewinternet.org/Reports/2011/Technologyand-social-networks/Part-2.aspx?view=all(lastvisited July 30, 2012). These sites, whichinclude Facebook, Myspace, LinkedIn, andTwitter, are defined by their unique focuson allowing people to “friend” others andshare content with other users. Id. By someaccounts, Americans spend more time onsocial networking sites than on any othersingle online activity. Id.The pervasiveness of social networkingsites in mainstream culture is undeniable,and the statistics on social networking siteusage are staggering. In the last decade,social networking sites have dramaticallychanged how individuals communicate,interact, and connect on the Internet. Asdefense lawyers, we must understand thephenomenon of social networking sitesand the potential wealth of informationthat they contain. The prevalence of socialnetworking demonstrates that discovery of■ Christie Strange is an associate of Porterfield Harper Mills Motlow & IrelandPA in Birmingham, Alabama. Her practice is devoted to defending professionalliability, product liability, and premises liability cases. In addition toDRI, she is an active member of the Alabama Defense Lawyers Association.information from social networking siteshas the potential to be a powerful tool.To advocate effectively on behalf of clients,we must understand the importanceof ensuring that evidence from social networkingsites is preserved, investigating alitigant’s online activities at the outset oflitigation and tailoring discovery requestsfor social networking account informationthat is material and relevant to the assertedclaims.As aptly stated in E.E.O.C. v. Simply StorageManagement, LLC, 270 F.R.D. 430, 343(S.D. Ind. 2010), “despite the popularity ofSNS [social networking sites] and the frequencywhich this issue [social media discoveryparameters] might be expected toarise, remarkably few published decisionsprovide guidance.” Because of the scarcityof reported decisions and the likelihoodthat discovery of information from socialnetworking sites will become increasinglycommon, litigants will call upon courtsto determine how discovery principlesshould apply to information sought fromsocial networking sites. This determinationinvolves balancing the competing interestsof permitting discovery of relevant evidenceand preventing excessively intrusiveand unwarranted fishing expeditions intoan individual’s online activities.For The Defense ■ September 2012 ■ 25

cordingly, it is imperative to search socialnetworking sites to learn as much as possiblefrom a litigant’s public profile. If a publicprofile contains information that appearsto contradict a plaintiff’s claims or allegeddamages, courts appear inclined to allow adefendant to delve further and obtain informationfrom the plaintiff’s private profile.The obvious example involves a plaintiffwho pursues a personal injury action andclaims to be totally disabled but simultaneouslyposts pictures that depict him or herwater skiing, horseback riding, or engagingin other activities inconsistent withthe nature or the extent of the claimedinjuries. In such a situation, a good argumentexists in favor of requiring a plaintiffto produce all account information, evenmaterial that the plaintiff has restricted thepublic from viewing. Several courts haveevaluated similar factual situations and,as discussed below, courts seem willing toorder production of all account informationif a defendant can argue that informationavailable to the public contradictsa plaintiff’s claims.In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (2010), Steelcase moved the courtfor an order granting access to the plaintiff’scurrent and historical Facebook andMyspace pages and accounts, including alldeleted pages and related information. Id.at 652. This request was based on the contentionthat the plaintiff placed certaininformation on these social networkingsites that was inconsistent with her claimsconcerning the extent and the nature ofher injuries, especially her claim for loss ofenjoyment of life. Id. The plaintiff allegedthat she suffered permanent injuries thatimpeded her ability to participate in certainactivities, and these injuries affectedher enjoyment of life. Id. at 653.Contrary to these claims, Steelcase contendedthat a review of the public portionsof the plaintiff’s Myspace and Facebookpages revealed that she had an active lifestyleand traveled to Florida and Pennsylvaniaduring the time period that sheclaimed that her injuries precluded suchactivity. Id. In light of this contradictoryinformation, Steelcase sought to questionthe plaintiff about her Myspace and Facebookaccounts during her deposition to noavail. Id. Following her deposition, Steelcasesought an authorization “to obtain fullaccess to and copies of [the] Plaintiff’s currentand historical records/information onher Facebook and MySpace accounts.” Id.The plaintiff’s attorney refused to executethe requested authorizations. Id.The court deemed the informationsought by Steelcase from the plaintiff’sFacebook and Myspace accounts bothmaterial and necessary to the defense ofthis action because it could lead to admissibleevidence. Specifically, the plaintiff’spublic Facebook profile showed a pictureof her smiling outside of her home despiteher claim that she sustained permanentinjuries that largely confined her to herhouse and to her bed. Id. at 654. The courtinferred thatin light of the fact that the public portionsof Plaintiff’s social networkingsites contain material that is contraryto her claims and deposition testimony,there is a reasonable likelihood that theprivate portions of her sites may containfurther evidence such as informationwith regard to her activities and enjoymentof life, all of which are material andrelevant to the defense of this action. Id.The court concluded that denying Steelcase“an opportunity to access these sitesnot only would go against the liberal policiesof New York favoring pre-trial disclosure,but would condone [the] plaintiff’sattempt to hide relevant informationbehind self- regulated privacy settings.”Id. at 655.The court briefly addressed the privacyconcerns raised by the plaintiff and concludedthat production of the plaintiff’sFacebook and Myspace entries would notviolate her right to privacy, and the defendant’sneed for the information outweighedprivacy concerns anyway. Id. Accordingly,the court granted the defendant’s motionfor an order allowing access to the plaintiff’scurrent and historical Facebook andMyspace pages and accounts, including alldeleted pages and related information because“[w]ith out access to these sites, [the]Defendant [would] be at a distinct disadvantagein defending this action.” Id. at 656.A federal court in Nevada reached a similarconclusion in a product liability action.In April 2009, Nicole Thompson initiateda product liability action for injuries thatshe sustained in an automobile accident inApril 2007. Thompson v. Autoliv ASP, Inc.,2012 WL 2342928, at *1 (D. Nev. June 20,2012). As a result of the accident, Thompsonsought to recover damages for a massivestroke that resulted in paralysis of theright side of her body, permanent disfigurement,and anticipated future medicalexpenses. Id. In addition to the damagesclaimed for her physical injuries, Thompsonclaimed that she lost a scholarship; she alsoclaimed hedonic damages and damages foremotional distress and depression. Id. at *2.TRW Automotive, one of the defendants,moved to compel Thompson “toproduce complete and un- redacted copiesof [the] Plaintiff’s Facebook and othersocial networking sites accounts.” Id. TRWAutomotive requested “wall posts, photographs,and messages from April 2007 topresent.” Id. TRW Automotive contendedthat Thompson improperly objected to itsrequests for production; it also assertedthat “without claiming any privilege, [the]Plaintiff provided a redacted copy of herFacebook account history and a limitednumber of photographs.” Id. But Thompsondid not provide information from herMyspace account. Id.Before seeking formal discovery, TRWAutomotive obtained wall posts and photographsfrom Thompson’s public Facebookprofile that “provide[d] evidence of [the]Plaintiff’s post- accident social activities,mental state, relationship history, livingarrangements, and rehabilitative progress.”Id. at *3. Specifically, TRW Automotivecontended that it obtained wall posts andphotographs depicting the plaintiff swingingon a swing set, dancing, engaging inwater sports, caring for children and pets,consuming alcohol, bowling with friends,and offering to share medication with others.Id. TRW Automotive also claimed tohave gleaned information about Thompson’semployment, enrollment in highereducation, and the affect of her medicationon her emotional, physical, and sexualhabits. Id.Thompson ultimately changed her Facebookprivacy settings to prevent the publicfrom viewing wall posts and photographs.Id. In response to TRW Automotive’srequests for production, Thompson produced51 “heavily redacted” pages from herFacebook wall and eight photographs. Id.TRW Automotive requested that the courtrequire Thompson to produce for in cam-For The Defense ■ September 2012 ■ 27

Trial Tacticsera inspection an un- redacted copy of herentire Facebook account from April 2007to present and an un- redacted copy of herentire Myspace account. Id.Thompson opposed the requested incamera review on the bases that the requestwas tantamount to “an overly broad fishingexpedition” and that the “limits of civil discoverymandate[d] that [the defendant] notSimply stated,filing alawsuit does not authorizean online fishing expeditioninto all areas of a plaintiff’ssocial networking accountmerely because youhope to secure potentiallyrelevant information.be provided with unfettered access to [the]Plaintiff’s [social networking site] accountdata.” Id. at *4. Thompson also argued thatTRW Automotive failed to make “a sufficientshowing that the material [was] reasonablycalculated to lead to the discoveryof admissible evidence, and that the informationsought [was] irrelevant.” Id.Thompson additionally argued thatsome of the information sought was“shared information” that the plaintiff didnot control. Id. By this the plaintiff meantthat Facebook allows users to “tag” friendsin photographs and in wall posts, evenwhen the individual does not request “tagging.”When someone “tags” someone elsenotifying him or her of a photograph orwall post, the photograph, for instance,appears on the “tagged” person’s Facebookwall and becomes associated withthe tagged individual’s account. Id. at n.4.The court found Thompson’s attorney’sopposition unconvincing. Id. The courtnoted that Thompson did not claim thatthe information sought was privileged orprotected, so it didn’t warrant in camerareview. Id. Instead, she challenged28 ■ For The Defense ■ September 2012the request on the basis of relevance. Id.“Because the alleged consequences of [the]Plaintiff’s injuries include severe physicalinjuries, emotional distress, and impairedquality of life,” the court determined that“evidence relating to [the] Plaintiff’s physicalcapabilities and social activities [was]relevant to [the] Plaintiff’s claims.” Id.Significantly the court noted that “[t]hematerial obtained from the [the] Plaintiff’spublic Facebook account negate[d] [the]Plaintiff’s allegations that material on hersocial networking site accounts [was] irrelevantto any party’s claims or defenses.”Id. Accordingly, the court ordered Thompson“to upload onto an electronic storagedevice, all information from her Facebookand MySpace [sic] accounts” from the dateof the accident through the order date. Id.at *5. (emphasis in original).Without Contradictory Evidence,Courts Prohibit Fishing ExpeditionsIf a litigant’s public profile does not revealany evidence that contradicts the allegedinjuries or claimed damages, a court probablywill not permit discovery of all of theaccount information. Tompkins v. DetroitMetropolitan Airport, 2012 WL 179320(E.D. Mich. Jan. 18, 2012), is particularlyinstructive on this point.In that case Lela Tompkins alleged thatshe injured her back in a slip-and-fall accidentat the Detroit Metropolitan Airportand that the injuries impaired her ability towork and to enjoy life. Tompkins, 2012 WL179320, at *1. The defendant, NorthwestAirlines, requested that Tompkins signan authorization for the release of recordsfrom her Facebook account. Id. Tompkinsobjected to producing her entire Facebookaccount, “including those sections she designatedas private and, therefore, not availablefor viewing by the general public.” Id.The court noted that “material posted ona ‘private’ Facebook page, that is accessibleto a selected group of recipients but notavailable for viewing by the general publicis generally not privileged, nor is it protectedby common law or civil law notionsof privacy.” Id. at *2. However, this doesnot confer “a generalized right to rummageat will through information thatPlaintiff has limited from public view.” Id.In balancing these competing considerations,the court concluded that consistentwith Federal Rule of Civil Procedure 26(b),“there must be a threshold showing that therequested information is reasonably calculatedto lead to the discovery of admissibleevidence.” Id. The court reasoned thata contrary holding would permit the defendantto “engage in a proverbial fishingexpedition, in the hope that there mightbe something of relevance in [the] Plaintiff’sFacebook account.” Id.The defendant argued that Tompkin’spublic postings and some surveillancephotographs established the relevance ofthe private postings. Id. The court disagreed.The public postings showed theplaintiff holding a very small dog and smilingand standing with two other people ata birthday party in Florida. Id. The courtconcluded that these postings were notinconsistent with the claimed injury or themedical information provided; Tompkinsdid not claim to be bed- ridden or incapableof leaving the house or of participatingin modest social activities. Id.However, the court noted that the defendantmight have achieved a differentoutcome if the plaintiff’s public Facebookpage contained pictures of her playinggolf or riding a horse. Under those circumstances,“the Defendant might havea stronger argument for delving into thenonpublic section of her account. But basedon what has been provided to this Court,[the] Defendant has not made a sufficientpredicate showing that the material it seeksis reasonably calculated to lead to the discoveryof admissible evidence.” Id. Additionally,the court deemed the request forthe entire account “overly broad” becauseit “may very well contain voluminous personalmaterial having nothing to do withthis case.” Id. Accordingly, the court deniedthe defendant’s request for a signed authorizationallowing access to Tompkin’s Facebookaccount. Id. at *5.In Patterson v. Turner Construction Co.,88 A.D. 3d 617 (N.Y. 2011), Russell Pattersoninitiated a lawsuit to recover forphysical and psychological injuries, includingthe inability to work, anxiety,post- traumatic stress disorder, and lossof enjoyment of life. Id. at 618. The NewYork Supreme Court, New York Countygranted the defendants’ motion to compelan authorization for all of the plaintiff’sFacebook records compiled after the

alleged injury- inducing incident, includingrecords previously deleted or archived. Id.at 617. The Appellate Division court thenunanimously reversed and remanded fora “more specific identification of plaintiff’sFacebook information that is relevant, inthat it contradicts or conflicts with plaintiff’salleged restrictions, disabilities, andlosses, and other claims.” The SupremeCourt, New York County then entered anorder deferring determination on the defendants’motion to compel and orderingthe plaintiff to produce his Facebookrecords for an in camera review. Id. at 617–18. On appeal, the Appellate Division dismissedthis order. Id. at 618.The Appellate Division court noted thatwhile the in camera review established thatsome of the discovery sought would resultin disclosure of relevant evidence of informationbearing on the claims, some of theFacebook communications possibly wouldnot relate to the events leading to the plaintiff’sclaims. Id.The Appellate Division court specificallymentioned that the postings on the plaintiff’sonline Facebook account, if relevant,were not shielded from discovery merelybecause the plaintiff used the service’s privacysettings to restrict access. Id. (citingRomano v. Steelcase, Inc., 907 N.Y.S.2d 650(2010)). The Appellate Division court comparedthese postings to a personal diary. Id.A Preemptive Approach: EEOC v.Simply Storage ManagementIn EEOC v. Simply Storage Management,270 F.R.D. 430, 432 (S.D. Ind. 2010), thedefendant requested copies of the namedclaimants’ entire Facebook and Myspaceprofiles. Id. Before responding to the discoveryrequests, the EEOC requested a discoveryconference to address the properscope of discovery. Id. As expected, theEEOC objected to production of all of thesocial networking site content and to similardeposition questioning as “overbroad,not relevant, [and] unduly burdensomebecause they improperly infringe on claimant’sprivacy, and will harass and embarrassthe claimants.” Id. Simply Storageargued that discovery of these matters wasproper because prior discovery responsesplaced the emotional health of the claimantsat issue beyond that typically encounteredwith “garden variety emotionaldistress claims.” Id. at 432–33.The EEOC argued that the court shouldlimit production from the Facebook andthe Myspace profiles to the content that“directly addresse[d] or comments on mattersalleged in the complaint.” Id. at 434.Simply Storage contended that the natureof the claimed injuries implicated all thesocial communications. Id.In determining the proper scope of discoveryof the social networking accountinformation, the court expressly rejectedthe argument that social networking sitecontent was shielded from discovery simplybecause it was “locked” or “private.” Id.Social Media, continued on page 84For The Defense ■ September 2012 ■ 29

Trial TacticsThe Primary Purposeof Voir DireBy David W. Hoodand Michael J. BarnettJury Connection,NotJury SelectionUse your one and onlychance to have a bilateralconversation with jurorswisely by making it asenjoyable for them as thecircumstances will allow.There may not be two more famous trial lawyers in Americanlegal history than the antagonists in the Scopes MonkeyTrial. The defense attorney, Clarence Darrow, famouslyremarked years after the trial that we should “never forget,almost every case has been won or lostwhen the jury is sworn.” That sounds serious.Of course this is the same fellow whotold the Scopes jury in his final argument:“We cannot even explain to you that wethink you should return a verdict of notguilty. We do not see how you could. We donot ask it.” So by the end he was not tryingto win anyway.Darrow’s counterpart on the prosecutionside, William Jennings Bryan, had a moreinteresting thing to say about determiningwhat type of juror you want for your case:Never accept a juror whose occupationbegins with a P. This includespimps, prostitutes, preachers, plumbers,procurers, psychologists, physicians,psychiatrists, printers, painters, philosophers,professors, phoneys, parachutists,pipe- smokers, or part-time anythings.Perhaps the lesson here is that we shouldnot look for advice from the early twentiethcentury in conducting voir dire. So let’s fastforward to the present day.Our home district in Catawba County,North Carolina, has two resident statesuperior court judges, the Honorable TimKincaid and the Honorable Nathan Poovey.Judge Kincaid and Judge Poovey are bothwell respected and very capable judges whohave presided over hundreds of jury trials,from chiro cases in civil court proceedingsto death penalty cases in criminal proceedings.They both have more experience thanmost judges, and, in addition, they eachhave a great deal of common sense.Yet Judge Poovey thinks that jury selectionis absolutely critical to the outcome ofmost cases and believes lawyers should usenearly all their peremptory challenges in virtuallyevery case to help shape a jury verdict.And Judge Kincaid believes that jury selectionis largely irrelevant in most non-deathpenalty cases and believes lawyers shouldusually take the first 12 in the box and moveon to opening statements and evidence.How could two judges with similarstrengths and abilities from the same part30 ■ For The Defense ■ September 2012■ David W. Hood and Michael J. Barnett are partners of Patrick Harper Dixon LLP in Hickory, North Carolina.Mr. Hood concentrates his practice in the areas of civil litigation, insurance defense, construction law, andcollections. Mr. Barnett handles a wide variety of litigation matters in the areas of business litigation, insurancedefense, construction/real property litigation, estate disputes, collections, and domestic and familylaw. Both authors are members of DRI and the North Carolina Association of Defense Attorneys.

of North Carolina hold such diametricallyopposed views? To a certain extent judges,and all other lawyers, have differing opinionson many, if not most, trial practicequestions, but it seems none so much asjury selection. This is largely the result ofthe anecdotal nature of trial practice issues.While studies have been done on the effectof certain trial tactics on the outcomesof trials, there are simply too many variablesto view the results from these studiesas persuasive. You can search the Internetand find experts who believe that juryselection determines outcomes in 85 percentof civil cases, and other experts whofound voir dire decisive in only 15 percentof cases. William Jennings Bryan might sayit depends on how many pimps and prostitutesyou have in your jury pool.In light of the above, does voir dire evenmatter at all? Yes, but generally not for theactual selection of a juror or jury per se.While there are ways to lose a civil case byleaving the wrong people on the jury, meaningthose with obvious bias problems, it israrely true that jurors come to serve so predisposedto one side or the other that trialpractice just boils down to making sure thatyou have more red than blue jurors on yourpanel, or the opposite. There certainly aredifferences in juror attitudes from one localeto another, but that is something thatjury selection can do little to change. Therealso are marginal benefits to having one jurorover another, which in close cases couldpossibly prove decisive. Generally, however,it is unlikely that the clues that you uncoverby brilliant voir dire will translate into agreatly different jury panel in relation tothe county’s or district’s overall jury pool.Voir dire matters mostly because itprovides an opportunity for a lawyer toconnect with jurors and a jury. This connection,if done the right way, will almostcertainly have more of an impact on a trialand the verdict than selecting any particularjuror.Before we discuss jury connection, let usfirst look at the aspects of jury selection thatcan make a difference during a trial.Jury Selection and theImportance of a Juror ProfileThe most important part of “selecting”a juror takes place before you enter thecourtroom: identifying your preferred jurorprofile. Numerous studies have been conductedto determine whether factors such asoccupation, gender, income, religion, or agehave consistent effects in the outcomes ofcases across the spectrum. Most have foundlittle scientific basis to support the notionthat identification of a personality type orcombination of traits can predict juror outcomes.Many attorneys believe that this isbecause jurors do a pretty good job of evaluatingcases based on the evidence presented.Others believe this is because the jury systemitself is so inherently random that itdefies prediction. Nevertheless, most trialattorneys agree that a juror’s backgroundcan be important to a lawyer’s presentationof evidence and arguments designedto persuade that juror in a certain direction.There are legal limitations on the jurorcharacteristics that an attorney can considerin his or her jury selection decisions.Gender is off the table. JEB v. Alabama,511 U.S. 127 (1994).Race has been verbotensince Batson v. Kentucky, 476 U.S. 79 (1986).What about factors that are not prohibited?As Bryan’s quote shows, lawyers havetraditionally believed that occupation isone of the most important considerations,if not the most important. In America, atleast, what we do is so intimately connectedto who we are that it dwarfs most otherinfluences. People who run businessesreally do often favor defendants. Peoplewho work in “soft” sciences or industries,from health care to social service to governmentreally do often favor plaintiffs. Aswith everything about juror profile characteristics,these are gross generalizationsand must be supplemented by the mannerand appearance of a juror, your ability toconnect with that juror during your conversations,and other factors.A factor that many think is critical issomewhat related to occupation: socioeconomicstatus. This is a tricky one, though.Conventional wisdom dictates that themore well-off the juror the better for thedefendant in most cases, personal injuryor otherwise. This generalization is perhapssubject to exceptions more so thanthe others. During the trial of a deathclaim several years ago, by far the worstdressedjuror, with a beard that went downto his waist and who may not have evenhad indoor plumbing, made the most prodefensecomments you can have in a caselike that: “money won’t change nothin’,”and “I didn’t get no money when my mamadied,” among others. On the other hand,the most professional and likely richest jurorswere local college professors, from whoknows where, who probably would not havebeen good defense jurors given the valuesthat such cases have in some states upnorth or on the West Coast.Voir dire…interactionbetween jurors and theattorneys lays the foundationfor the jury- lawyer relationshipthroughout the rest of a trial.This brings us to geography. Dependingon the type of case, where a juror lives orhas lived can also be important. For example,in personal injury cases, whether ajuror is from the suburban or the rural partof the county or district could matter. Also,if a case involves a well-known local partyon one side and a person or entity fromoutside the county or district on the other,whether the juror has lived in the county ordistrict his or her entire life or just movedto the county or district from a differentpart of the country might well make a difference.Get to know a jurisdiction verywell before jury selection. In some countiesthere is something akin to open warfarebetween two cities or towns, or twosections of the county. That kind of biascan be at least as powerful as more generalor national trends or controversies. A Hatfieldwill hate a McCoy even if they do thesame job, grow up in the same county, andvote for the same candidates.While you may not want to be quite asrestrictive as the distinguished Bryan, therule of thumb in personal injury cases isthat a plaintiff wants economically disadvantagedand touchy- feely folks whereas adefendant wants business- oriented and lesstouchy- feely citizens. In contract cases theone who believes his or her interpretationof the writings to be more easily acceptedwill want more educated jurors than theFor The Defense ■ September 2012 ■ 31

Trial Tacticsside who wants notions of basic fairnessto win out instead. These canards, though,are full of exceptions and qualifications,and many lawyers believe that they are toosimplistic to be of value.Voir Dire and Jury“Selection” QuestionsAfter you have identified your preferredFlared nostrilsdo notseem like the reaction thatan attorney should elicit.juror profile, the majority of your selectionwork is done. During voir dire youwill need to ask only a handful of “selection”questions that correspond with thejuror profile that you have identified suchas occupation, what part of the county ordistrict someone lives and where he or shecame from originally. You will also need toask the “bias” questions that are applicableto your case. For example, if it is a personalinjury case, it is important to ask about previousaccidents, as well as previous injuryclaims made of any type. For every “selection”question that you ask a juror, makesure that you include events that may havehappened to close family and friends aswell. Lastly, you will want to ask jurors ifthey know the potential witnesses and ifthey are familiar with the entities or peoplementioned in important exhibits. Thisseems obvious but you would be surprisedat how many otherwise good trial lawyersforget to ask those questions.And there you have all of the questionsthat are critical to ask in most civil casesfor selection purposes. That is not to saythat these are all the questions that youshould ask. There are others, to be sure.But the point of those other questions isto give you something to talk about witha juror, to help establish a connection withthe potential juror.Jury ConnectionVoir dire is mostly important, in our opinion,because it allows an attorney to connectwith a juror or a jury. This interaction32 ■ For The Defense ■ September 2012between jurors and the attorneys lays thefoundation for the jury- lawyer relationshipthroughout the rest of a trial. Accordingly,everything in voir dire should beviewed through the prism of juror connection,rather than juror selection. Lawyerswho ask questions that they know mightput them in a negative light with some jurors,and justify it with the “duty to my client”rationale, are shooting themselves inthe foot. Point that gun of yours in anotherdirection.Juror Connection QuestionsThe connection questions that we recommendasking in most trials cover the followingtopics: past jury service, experiencein law or medicine, prior testimony incourt, other legal disputes, family details,leisure activities, prior relationship withor knowledge of anyone else on the jury orany member of the courtroom staff, childcareobligations, home ownership, anddriver’s license ownership. It is possible,though not likely, that these answers couldmatter in your jury selection analysis. Butmore important, these are topics that jurorswant to talk about, which means thatyou can ask follow up questions that showthat you listened to jurors and cared abouttheir answers. In other words, these arequestions that allow you to have a conversation.Conversations, after all, are howwe establish connections of all kinds, includingconnections to jurors.As you connect with a jury make sureto avoid objectionable questions. There aretwo types of objectionable questions thatlawyers ask in jury selection: legally objectionableand tactically objectionable. First,let us look at the legally objectionable questions.We have worked on cases duringwhich the plaintiff’s attorney asks the jurypool if they or anyone in their family worksfor a particular insurance company. Um,not only objection sustained, but mistrial.Then there are the questions such as, “Willyou agree to award substantial damages ifI prove such-and-such?” An objection tothis will usually be sustained as improperstaking out of a jury, though some versionmight not be objectionable: “If we provesubstantial damages were caused, wouldyou award what the law provides regardlessof the amount?” This is really just a “willyou follow the law” question.A favorite topic of conversation with ajury, usually favored by plaintiffs’ attorneys,is to talk about the criminal versuscivil burden of proof. This is more of aconnection question than a selection question,and thus is pretty innocuous. However,if it strays into asking the jurors whatthey know about the law, the question willusually result in a sustained objection. Youshould limit your law questions to thingsthat make it appear that you are just askinga jury to follow whatever the judge tellsthem the law is. This can be done persuasivelyto begin your opening statementbefore it actually begins. But we suggestthat you choose your language carefully.You want a jury to forget that this is anadversarial proceeding while you are establishingrapport. If a judge interrupts youwith sustained objections it may not seemthat you just want a juror to talk to youinformally.How about tactically objectionable questions?Let’s talk about politics and religion,shall we? The things that polite people donot discuss. Should they matter in jury selection?Probably. Should we ask aboutthem? Hell no! Remember our prism: connection,not selection. Jurors who tend tovote one particular way in elections arelikely to lean one way or the other in tortcases largely because the issue of tort reformhas become so politically polarized. Thereis a reason that the last Republican- runNorth Carolina General Assembly passedcertain tort reform bills, which would nothave passed as out of hand when the Democratscontrolled the assembly. Similarly, ifyou don’t think that a member of the UnitedChurch of Christ likely is biased in a differentdirection than a member of the Churchof God, you are not paying close enough attentionto your denominations.We have heard lawyers ask about thesethings, directly or indirectly. We have alsoseen how jurors almost always flare theirnostrils when attorneys ask such questions.Although we are not human behavioralexperts, flared nostrils do not seemlike the reaction that an attorney shouldelicit. If the information comes out sideways,that is fine: I know witness such-andsuchfrom church, or I know that lawyerbecause we have worked together on politicalcampaigns. But most people just do notlike to talk about their own political affil-

iations or opinions or religious beliefs infront of a room full of strangers. Jurors arepeople after all.You should also stay away from askingjurors in civil cases about their connectionsto criminal law, even if you think it highlyrelevant. We have defended police or otherfolks in trials when it probably would havehelped to know about a juror’s past brusheswith the law. If a juror wants to tell youabout that sort of thing, though, you canelicit it with questions such as, “Anythingin your life experience that would tend tomake you think the police are probably inthe wrong here, before you hear any evidence?”rather than by asking about criminalhistory directly.Another set of questions that you shouldnot ask are questions that sound as if theycame out of a can. Plaintiffs’ attorneys, forinstance, often use tort reform questions,and they usually leave jurors shaking theirheads, literally. Some questions also haveso many big words in them that we urgeyou to take them out and shoot them. If jurorsbelieve that you are not being straightwith them, or that you are not a genuineperson, you are in big trouble.Using Jury Connection toElicit Jury TestimonyYou can and should use your time connectingwith a juror to elicit what some expertsrefer to as “juror testimony.” If you havebeen in a trial when a juror goes off on thetort crisis, talks about how big business isdestroying American jobs, or complainsabout the government either doing too littleor too much about particular topics, youknow what we mean by juror testimony.How might those attitudes and valuesaffect the ultimate verdict? No one knowsfor sure, but we sure have secretly wincedor woo-hoo’ed, depending on whose ox thejuror was goring when this happened.When connecting with a juror youshould look for ways to elicit jury testimonythat is favorable to you. If a juror answersa question that sounds as if he or she hassome good opinions in your favor, thinkabout whether you can bring that out inmore detail in some way by asking followup,soft-ball questions. Some trial expertsbelieve that this is a mistake because byencouraging that juror to talk you mayend up having the juror challenged by theother side. But our view is that a lawyer onthe other side either (1) wishes that he orshe had struck the juror but has alreadyaccepted him or her, or (2) probably alreadyplanned to strike the juror based on theearlier answer. So before that juror exitsthe stage, we say give him or her a chanceto perform a soliloquy in your favor beforehe or she goes. Again, this might be a littletricky since the person could go off on tangentsthat are not helpful. Hey, if you wanta risk-free life, then go live in a bubble, orbecome a transactional lawyer.Conversely, you should, of course, try tolimit the possibility of a juror offering jurytestimony that works against you and pollutingthe rest of the jury pool with obviouslyerroneous opinions. The best way todo that is to remember the old adage fromlaw school about cross- examination: neverask the “question too far.” If a plaintiff’sattorney detects a tort reformer on yourpanel based on a previous answer, you certainlywouldn’t expect him or her to followup with another question to disclose thebias more fully. But we have heard opposinglawyers do this many times, and thankedthem for it. If it’s already known that youwill strike someone with tort reformer tendencies,why let him or her speak again forany reason? We actually think that the tortreform- type questions usually yield a netnegative for plaintiffs anyway. You startpeople thinking that, by God, this is thesame thing, a personal injury case, that wasinvolved in that McDonald’s coffee case.They may never have made the connectionwithout your question. We know the riskon the other side is that you then have keptyour closeted tort reformer on the jury. It’sa judgment call. But again, we think thatyour connection potential with a jury is betteras a whole if you don’t bring up essentiallypolitical issues during jury selection.Jury Connection in PracticeEven though many judges instruct a jurythat voir dire is not the time for lawyersto persuade jurors to vote their way, theundeniable truth of jury trials is that persuasionbegins the first time that potentialjurors see you get out of your car in thecourthouse parking lot. Yes, it is improperto argue your positions in a case overtlyto a jury during voir dire, and it will tickoff a judge. But everything you do, say,and wear communicates something to thefolks around you. If you want to persuadea jury that you are a very successful lawyerwho knows what he or she is talking about,drive a flashy car to the courthouse, parkit in a conspicuous place, and wear expensivecourt attire with plenty of jewelry. Ifyou want to tell the jury that you are not arich lawyer, and thus maybe your client isMost peoplejust do notlike to talk about theirown political affiliationsor opinions or religiousbeliefs in front of a roomfull of strangers.not rich either, then drive an old car to thecourthouse and wear less expensive suits.Once inside the courthouse, rememberyour manners and open the door for folks.Further, do not skip them in the metaldetector line. People hate when lawyers dothat, and jurors are actual people, as wesaid earlier. In a courtroom, when and aftera jury pool walks in, do not slouch, weara smile, act like a reasonable person, anddo not whisper too much with your clientexcept at the appropriate times in the juryselection process when making decisions.Make it clear by facial expression or otherwisethat you are comfortable in the courtroom,but do not use inside jokes or otherthings that make it appear that you are a littletoo cozy with a judge or the courtroompersonnel. When having juror conversations,by all means make direct eye contact,even if that involves moving your body oryour chair so that you can see and interactwith all of the jurors.Something that you should not do as youare attempting to connect with the juryis cross- examine a potential juror. Thisseems like an obvious point but it happensmore than you might think and more thanit should. Some attorneys think that it isthe only way to get necessary and truthfulinformation from a potential juror.For The Defense ■ September 2012 ■ 33

Trial TacticsSomethingthat youshould not do as you areattempting to connectwith the jury is crossexaminea potential juror.This is particularly true when the attorneywants to challenge for cause. Regardlessof the rationale, in our experience, italmost always backfires. Even if you excusethe potential juror who you just finishedhumiliating (and, for obvious reasons, youshould) some of the jurors who are selectedwill no doubt keep the experience in mindthroughout the trial and even as they deliberate.Obviously, there are varying degreesof juror cross- examination and some moderateform may be marginally beneficialwith relatively minimal risk. In our opinion,however, it is best to stay away fromany type of cross- examination whatsoever.If you do not you are interfering with youropportunity to connect with the jury.After all, what you want to portray invoir dire is that you are cordial, respectful,good- natured, friendly to everyone, includingopposing counsel, and you have asense of humor. This last point can be verytricky, but if you can laugh once or twiceduring jury selection it will help make yourconnections to the jury more genuine. Peoplelike that sort of thing. Do not apologizefor “prying” into personal affairs becausethat makes jurors think that you actuallyare prying, but instead ask the questionsthat you need to ask with candor and genuineinterest. Perhaps most importantly,listen to the answers that you receive fromjurors and follow up when appropriate.Jury Connection and Active ListeningOne important aspect of jury connectionis active listening. This essentially meanslistening with the idea of reinforcing aspeaker’s thoughts and following up withrelevant questions and comments to showthat you really did pay attention and caredabout the answers that you received. This34 ■ For The Defense ■ September 2012is important to establishing connection, tobe sure. But before we discuss this, let’s discussa more basic issue.You should actually listen before worryingabout whether you actively listen! Wecannot tell you how many times this doesnot happen during voir dire or a trial. Lawyersask questions to which they shouldalready know the answers because someonehas already given them. Sometimesthey assume that an answer was x when itwas y, just because they did not really listen.Or heaven help the questioner who isjust ticking off a list of questions like a grocerychecklist rather than actually listeningto the answers, which also happens morefrequently than it should. This is an obviouspoint, but it is really hard to establishrapport with a jury if they believe that youdo not care what they say.Regarding active listening, you haveseveral techniques to show a speaker thatyou care about him or her and his or herresponses. One is to repeat certain answersto show that you have listened and tounderline an answer for other jurors whoneed to hear a favorable answer but maynot have listened as intently. Another is toask follow- up questions about, for example,something that happened to someone’saunt or uncle—not because it reallymatters for selection purposes but to helpwith your connection to that juror. Lookfor opportunities to permit a juror to talkabout issues that he or she actually willwant to talk about, which you can sometimesidentify by body language or justwith common sense.Using Your Juror Strikes toConnect with a JuryAnother opportunity to connect witha jury as a whole takes place when youexcuse a juror. When it is time to announceyour strikes, do not under any circumstancesrefer to the jurors that you strikeas “number 2” or “seat 5” or anything similar.Humans prefer having others refer tothem by name instead of by number. Moreimportantly, the other humans whom youwill leave on a jury will appreciate that youthink of them as people instead of as numbers.This enhances your connection withthe remaining jurors. If you have to addthe seat number for clarification, fine, butsay something similar to “I would like tothank, but excuse, Mrs. Hood, juror number3.”You should mix it up a little, too, sothat you do not sound like a robot: “Withour thanks, we believe Mrs. Hood may bemore appropriate for a different case thanthis one. We respectfully excuse her fromthis particular case.”You should also take the opportunity toexcuse a juror who you would otherwisewant to keep because common sense anddecency dictate that it is the right thing todo. For example, if a juror makes it clearthat he or she really needs to be at homefor a good reason, such as caring for a sickrelative, but he or she did not go throughthe proper procedure to be excused bythe judge, you should excuse that person.The excused juror will express gratitude,and the jurors who will remain and withwhom you hope to connect will think thatyou are a nice person. Contrary to whatmany litigators seem to think, it is a goodthing for a jury to think that you are a niceperson.One issue that can come up, particularlyin your home county or district, is that youor other attorneys in your firm may indeedhave a professional or close personal relationshipwith a prospective juror but theother lawyer failed to ask his or her questionsin such a way to elicit that information.Should you “volunteer the bias” andget that juror out of there? Yes, for the samereason that you should do all of the thingsthat we have discussed: it helps you connectwith the jury. It will make the jury thinkthat you are fair and honest, and those arealso good things for a jury to think aboutyou when they deliberate in the jury room.In addition, some judges will not like it ifyou do not volunteer the information. Connectingwith a judge is pretty important,too, obviously.ConclusionJury selection is the one and only time thatyou will have a bilateral conversation with ajuror, at least until after a trial is over. Use itwisely by crafting that conversation so thata juror finds it as enjoyable as the circumstanceswill allow. This will enable you toconnect with the juror, which is, or at leastshould be, the primary purpose of voir dire.If you also can find out useful informationfor selection purposes, then bully for you.

Trial TacticsFacing anAccelerating TrendBy Clifford L. SomersA Disquisitionon CompellingArbitrationAn illustration, usingFlorida as an example,of the issues involved incompelling arbitrationand what to look for inyour own jurisdiction.This article results from the author having recently argueda hard fought motion to compel arbitration in the Floridastate courts, which led to his having the hubris to believethat he was thus prepared to write an article on the subjectwith a national scope and incautiously volunteeringto do so. The good news is thatthere is a way to do this without surveyingthe law of many states. The federal law onthis subject, more so than in most areas ofthe law, dictates the practice of the states.There are certainly unanswered questionsthat the federal law does not govern. However,the second piece of good news for theauthor is that Florida courts prolificallyhave issued opinions on the subject. Thus,this article will survey the federal law asit applies to all states, then examine somespecific questions that arise in Florida,which will almost certainly arise in everystate if they have not already done so. So asurvey of the Florida law will give a readernecessary clues about what to look for inthe law of his or her state.The Federal Arbitration ActThe Federal Arbitration Act (FAA) 9 U.S.C.§§1–16 was enacted in 1925. The basic purposeof the act was to overcome the refusal■ Clifford L. Somers is an attorney practicing in the firm of Barr, Murman& Tonelli, P.A., in Tampa, Florida. He is a board certified civil trial attorneyby the Florida Bar and the National Board of Trial Advocacy. Mr. Somers islisted in Who’s Who in American Law and The Best Lawyers in America. Hepractices in the field of medical negligence defense.of courts to enforce agreements to arbitrate.According to the United States SupremeCourt, those refusals to arbitrateoriginated in “ancient times” when the Englishcourts fought for extension of jurisdictionwithout all of them being opposed toanything that would altogether deprive everyone of them of jurisdiction. Congress,in enacting this legislation, was motivatedfirst and foremost by a desire to change theanti- arbitration rule that seemed widespreadand to place arbitration agreementson the same footing as other contracts. TheSupreme Court has held that the act is basedupon and confined to the incontestable federalfoundations of control over interstatecommerce. It seems as though almost everytime the Supreme Court has had the opportunityto write an opinion concerningthe FAA, it has delighted in reciting someor all of this history. See Allied- Bruce TerminixCompanies, Inc. v. Dobson, 513 U.S.265, 115 S. Ct. 834 (1995) (offering a fairsampling of the history). Although the lawhas been around since 1925, much of thedecided case law dates back only about 25years. There appears to be a clear trend towarda greater and greater effort to movelitigation into arbitration. This is a politicallandmine. Utilities, cable providers, andmany other large national and internationalFor The Defense ■ September 2012 ■ 35

Trial Tacticsbusinesses now include arbitration clausesin their service contracts. Arbitration alsohas become much more frequent in the relationsbetween health-care providers andpatients. An examination of Supreme Courtdecisions will show that most of them supportarbitration, and the split among thejustices in those decisions follows the expectedlines with the more conservativeMuchof the state litigationabout enforcement ofarbitration agreementshinges on whetheran agreement isunconscionable or void ascontrary to public policy.36 ■ For The Defense ■ September 2012and business- oriented justices expressingstrongly pro-arbitration views.Of interest, Senator Franken and othersintroduced a bill known as the ArbitrationFairness Act of 2011, Senate Bill 987on May 12, 2011. This would amend theFAA to exempt claims for civil rights andconsumer claims. It states that “no predisputearbitration agreement shall be validor enforceable if it requires arbitration ofan employment dispute, consumer disputeor civil rights dispute.” Arb. FairnessAct, S. 987, 112th Cong. §402 (2011). Consideringthe present political climate, thisauthor would suggest that this bill has littlechance of passing in the near future. However,it certainly signals that Congress hastaken note of the recent trend in arbitrationand especially arbitration agreementsin contracts with utilities and other entitiesin which a consumer has essentially nobargaining position whatever and these arepure contracts of adhesion.Back to the real world. Section 2 of theFAA is the core of the act. It reads as follows:A written provision in any maritimetransaction or a contract evidencing atransaction involving commerce to settleby arbitration a controversy thereafterarising out of such contract ortransaction, or the refusal to performthe whole or any part thereof, or anagreement in writing to submit to arbitrationan existing controversy arisingout of such a contract, transaction, orrefusal, shall be valid, irrevocable, andenforceable, save upon such grounds asexist at law or in equity for the revocationof any contract.The U.S. Supreme Court and other courtshave concluded that Congress really, reallymeant it when it said “shall be valid, irrevocableand enforceable[,]” as we shall see aswe examine the decided cases. Other partsof the act come up in the case law, but it issection 2 that contains its teeth.As someone might expect, states havemade several attempts to avoid the effectof the FAA. The Allied- Bruce case representsone of those attempts. In that casethe Allied- Bruce companies had a contractwith homeowners that specified that anycontroversy under the contract would besettled exclusively by arbitration. Dobsonsued in the state court under the contract,and Allied- Bruce moved for a stay to allowarbitration under the contract and section2 of the FAA. The motion was denied. TheAlabama Supreme Court affirmed on thebasis of a state statute invalidating predisputearbitration agreements. The reasoningof the Alabama Supreme Court wasthat the FAA applied only if at the timethat the parties contracted and acceptedthe arbitration clause, they “contemplated”substantial interstate activity that wouldinvoke the Commerce Clause powers ofCongress. The U.S. Supreme Court ruledthat the language of the FAA reached tothe limits of the Commerce Clause power ofCongress. The Supreme Court settled a disputeamong the several circuits on whetheror not the language of the FAA was restrictivewith respect to its scope. Allied- Bruce,513 U.S. at 270, 115 S. Ct. at 837. Readingsubsequent cases, it is pretty clear thatthis Commerce Clause issue doesn’t persist.Courts pretty much assume that thesecases fall within the Commerce Clause,although most cases that reached the appellatelevel in the federal courts dealt withrather large businesses.Much if not most of the litigation concerningthe enforcement of arbitrationcontract clauses relates to the “savings”language in section 2 of the FAA, which,recall, states “save upon such grounds asexist at law or in equity for the revocationof any contract.” Basically this means thatthe courts will treat an arbitration provisionthe same as they would any other contractprovision. Thus, if a state law wouldmake a contractual provision invalid forreasons such as fraud, duress, unconscionability,and contrary to public policy, thenthe arbitration provision would fail for thesame reason. Much of the state litigationabout enforcement of arbitration agreementshinges on whether an agreement isunconscionable or void as contrary to publicpolicy.California courts began to strike downarbitration contracts that precludedclass arbitration and required consumersunder the arbitration contract to arbitrateindividually rather than as a class.The California courts found that provisionunconscionable because it deprivedconsumers of the opportunity to proceedin class actions. Discover Bank v. SuperiorCourt, 36 Cal. 4th 148, 30 Cal. Rptr. 3d 76,113 P. 3d 1100 (2005). The Supreme Courteliminated what it called the “DiscoverBank” rule in the case of AT&T MobilityLLC v. Concepcion, 131 S. Ct. 1740 (2011).The opinion in Concepcion was deliveredby Justice Scalia and joined by Justices Roberts,Alito, Thomas, and Kennedy. The dissentincluded Justices Breyer, Ginsburg,Sotomayor, and Kagan. That type of lineupis pretty typical in these cases. In Concepcionseveral customers attempted to bringa class action against the telephone companyalleging that the company’s offerof a free phone to anyone who signed upfor telephone service was fraudulent inthat the company charged the customerssales tax. The AT&T telephone contractrequired arbitration of all disputes but didnot permit class arbitration. AT&T movedto compel arbitration, and the federal districtcourt denied the motion based on theDiscover Bank decision. That is, the districtcourt found the arbitration provisionunconscionable because it disallowedclasswide proceedings. The Ninth Circuitaffirmed. The Supreme Court reversed.The Court, as recited in the decision syllabus,specified that section 2 of the FAAreflects a liberal federal policy favoringarbitration and the fundamental princi-

ple that arbitration is a matter of contract,and courts must place arbitration agreementson an equal footing with other contractsand enforce them according to theirterms. Concepcion at 1742. The Court heldthat section 2 of the FAA permits courts todeclare arbitration agreements unenforceableunder general contract defenses “butnot by defenses that apply only to arbitrationor that derive their meaning fromthe fact that an agreement to arbitrate isat issue.” Concepcion at 1747. The Courtdefined the issue in Concepcion as whethersection 2 preempts California’s rule classifyingmost collective arbitration waiversin consumer contracts as unconscionable.The Court held that the Discover Bank rulewas a court-made rule that declared unenforceableany arbitration agreement thateliminated class actions on the basis ofunconscionability allowed a court to invalidatea whole class of arbitration, somethingthat the legislatures could not do. The casewas reversed and remanded for referral toarbitration. This is a very unpopular decisionwith consumer advocacy groups.Another twist that comes up in thesecases is the “intertwining” rule. The federalcircuits have split on whether, in casesthat involved both federal issues that partiesmust litigate in the courts and stateissues that they could arbitrate, courtscould sever the state issues and send themto arbitration in accordance with an arbitrationcontract. Some of the federal districtcourts have ruled that when suchintertwining occurred, courts could notsever the state law issues to send to arbitration.Others have ruled differently. The U.S.Supreme Court settled that issue in DeanWitter Reynolds, Inc. v. Byrd, 470 U.S. 213,105 S. Ct. 1238 (1985). The case involved alawsuit against the securities broker DeanWitter Reynolds that involved both claimsunder the Securities Exchange Act andstate law actions. The district court deniedthe broker’s motion to compel arbitrationof the state claims, and the Ninth CircuitCourt of Appeal affirmed. The SupremeCourt reversed. The Supreme Court permittedsevering the state law actions andsending them to arbitration under the contract.Interestingly, the Supreme Court hadto consider the effect of arbitration findingson facts that were also relevant tothe federal action within the federal lawsuit.Noting that the Supreme Court hadpreviously held that res judicata wouldnot apply to arbitration findings in a federalcourt proceeding, nor would collateralestoppel, the Supreme Court neverthelessruled that under the doctrine of preclusionthe trial courts should take into accountthe federal interests warranting protectionwhen ordering state actions into arbitration.Although the author has read thisThe Experts & Research ToolsYou Need to Succeed— All in One PlacePrecise Expert referralsin virtually all fields, withongoing personal assistance24-hour turnaroundfor most referralsNO CHARGE unlessyou designate orengage an expertResearch reports onExperts, revealingchallenged testimonyand disciplinary sanctionsFree Expert-led Webinarson case-relevant topicsMore than 5 decadesof unparalleledexperienceMake TASA part ofyour case strategy today.Technical Advisory Service for Attorneys800-523-2319experts@tasanet.comTASAnet.comFor The Defense ■ September 2012 ■ 37

Trial Tacticslanguage repeatedly, it is not clear, and thissuggests that under these circumstancesthe court order directing the parties toarbitrate ought to cover the effect of factualfindings in the state law arbitration on thefederal court proceedings.One issue that can derail an attemptto compel arbitration is waiver. As withany other contract provision, an agreementto arbitrate can be waived. Generallythis occurs when a party seeking to compelarbitration initially either has electedto proceed in a nonarbitration forum orhas responded as a defendant in a nonarbitrationproceeding and involved itselfin discovery, motion practice, and similaractivities that are inconsistent with adesire to arbitrate. The extent of activityrequired to constitute waiver can rangefrom answering a complaint and takingsome depositions all the way up to activitiesundertaken on the eve of a trial. Itseems highly likely that each state will haveits own peculiarities in this regard. However,one issue likely to arise is whether aparty seeking to oppose arbitration mustshow that it was prejudiced by the actionsof the party that belatedly sought to compelarbitration. In the Seventh Circuit, theparty opposing arbitration does not need todemonstrate prejudice. Cabinetree of Wisconsin,Inc. v. Kraftmaid Cabinetry, Inc., 50F.3d 388 (7th Cir. 1995). In the District ofColumbia Circuit, prejudice is not requiredbut can be a factor. National Foundation forCancer Research v. A.J. Edwards & Sons,Inc., 821 F.2d 772 (D.C. Cir. 1987). In theEleventh Circuit prejudice is required. S&HContractors, Inc. v. A.J. Taft Co., Inc., 906F.2d 1507 (11th Cir. 1990). In Texas notonly must the party opposing arbitrationshow prejudice, but there is a strong presumptionagainst waiver. Perry Holmesv. Cull, 258 S.W. 3d 580 (Tex. 2008). ThePerry Holmes decision is well worth readingbecause the 36-page opinion is verydetailed and full of citations. Interestingly,the Supreme Court of Texas wrote that ithad never before upheld a waiver. It doesso in Perry Holmes, a case in which arbitrationwas sought on the eve of a trial in acourt proceeding. Even then, the majoritydrew a dissent. The U.S. Supreme Court hasnot waded into this fray. It may do so eventually,but the author suggests that a decisionmay well not bind the states because38 ■ For The Defense ■ September 2012each state will have its own law concerningwaiver under contract conditions.State IssuesAs promised, this section of the article willdraw from Florida law. The point is simplyto illustrate issues that can arise and directa practitioner to look for those issues inhis or her own jurisdiction. In the day andage of the computer and the many searchengines that exist, it should not be difficult,once a practitioner has identified anissue, to find out what a particular jurisdictionhas done with it. At any rate, that’sthe author’s hope.Florida courts have established threecriteria for determining arbitrability. Theycan be found in many different court opinions.One is Seifert v. U.S. Home Corp.,757 So. 2d 633 (Fla. 1999). In that case thecourt set forth the “elements” for courtsto consider in ruling on a motion to compelarbitration as follows: “(1) whether avalid written agreement to arbitrate exists;(2) whether an arbitrable issue exists; and(3) whether the right to arbitration waswaived.” Seifert, 757 So. 2d at 836. Thecourt also sets forth several “rules of construction”as follows:Today arbitration provisions are commonand their use generally favored bythe courts…. Accordingly, the determinationof whether an arbitration clauserequires arbitration of a particular disputenecessarily ‘rests on the intent of theparties.’ A natural corollary of this rule isthat no party may be forced to submit adispute to arbitration that the party didnot intend and agree to arbitrate.Id. (citations omitted). The court also citedand quoted from Miller v. Roberts, 682 So.2d 691, 692 (Fla. Dist. Ct. App. 1996): “Thegeneral rule is that where an arbitrationagreement exists between the parties, arbitrationis required only of those controversiesor disputes which the parties haveagreed to submit to arbitration.”In Seifert the Supreme Court of Floridadealt with an action by a home purchaseragainst the builder for wrongful death as aresult of carbon monoxide poisoning fromthe garage that was distributed throughthe air- conditioning system. This is one ofthe few cases in which Florida courts havedenied arbitration. The court held that thecontract between the home purchaser andthe builder that contained the arbitrationclause dealt with the construction and saleof a home and did not clearly set forth an intentionto require arbitration of tort claims.Another illustrative Florida case is Murphyv. Courtesy Ford L.L.C., 944 So. 2d1131 (Fla. Dist. Ct. App. 2006). In that casea truck buyer sued the truck dealershipalleging violation of the Florida Deceptiveand Unfair Trade Practices Act (FDUTPA).A motion to compel arbitration by thedealership was granted, and the appellatecourt affirmed. Murphy, the truck buyer,contended that the FDUTPA claims wereunfairly contained within the purchaseagreement that she signed with the dealer.A Florida Third District Court of Appealwrote, among other things, that[t]he test for determining arbitrabilityof particular claim under a broad arbitrationprovision is whether a ‘significantrelationship’ exists between theclaim and the agreement contained inthe arbitration clause, regardless of thelegal label attached to the dispute….Florida public policy favors resolvingdisputes through arbitration when theparties have agreed to arbitrate…. Alldoubts regarding the scope of an arbitrationagreement must be resolved infavor of arbitration.Murphy, 944 So. 2d at 1133.Thus, a fair question regardless of the jurisdictionis whether an arbitration agreementfairly encompasses the dispute beinglitigated. The author suggests that in mostjurisdictions a purely commercial contractcontaining an arbitration agreement maybe open to attack if the claim in questionis a tort claim. However, this is such a simpleproblem for a contract writer to preventthat I suspect that this particular questiondoesn’t arise too often anymore. Incidentally,the Murphy case contains an admonitionthat several of these cases containto the effect that a contracting party can’tget out of a contract just because the partydidn’t read it. Murphy, 944 So. 2d at 1134.Another threshold question is which issueswill the courts reserve for themselves?That is, which issues will the courts rulethat an arbitrator cannot decide? In twoopinions issued on the same day, the SupremeCourt of Florida recently ruled thatit was for the trial court, not the arbitrator,to determine whether an arbitration agree-

ment was unenforceable on public policygrounds. In Shotts v. OP Winter Haven, Inc.,2011 WL 5864830 (Apr. 17, 2012), the courtfound that the question of whether limitationsof remedies available to the claimantfound in the arbitration agreement violatedpublic policy was for the court and not forthe arbitrator to decide. In Gessa v. ManorCare of Florida, Inc., 2011 WL 5864823(Apr. 17, 2012), the court found that limitationson remedies available to the claimantin an arbitration agreement in a nursinghome context were issues for the court andnot the arbitrator to decide. Other jurisdictions,however, surely will have other views.For instance, in Bess v. Check Express, 294F.3d 1298 (11th Cir. 2002), the EleventhCircuit ruled that whether a deferred paymentcontract was void ab initio as violatingthe Alabama Small Loan Act constituted achallenge to substance rather than the existenceof a contract containing an arbitrationclause was an issue that the arbitratorshould address. It is possible to glean distinguishingcharacteristics here, but the outcomesbetween this Eleventh Circuit caseand the Supreme Court of Florida seem tobe opposite. And a Florida Fourth DistrictCourt of Appeal recently ruled that a disputemust be arbitrated when a complaintalleges fraud seeking to avoid or invalidatean entire contract rather than just the arbitrationclause contained within the agreement.Thus, when a borrower sued a loancompany, which then sought to compel arbitrationunder the loan agreement, and theborrower alleged that the entire loan agreementwas fraudulent but not specificallythat the arbitration clause was fraudulent,or that its inclusion within the agreementwas fraudulent, the court ruled that the arbitratorshould decide the issue. CFC of DelawareLLC v. Santa Lucia, 2012 WL 2122179(Fla. Dist. Ct. App. June 13, 2012).With respect to waiving the right to arbitrate,Florida provides a handy citationto those who wish to argue that a waiverof arbitration does not require prejudice.In the case of Raymond James FinancialServices, Inc. v. Saldukas, 896 So. 2d 707(Fla. 2005), the Supreme Court of Floridaheld that waiver of the right to arbitratedoes not require proof of prejudice. In thiscase, Raymond James initially had opposeda customer’s attempt to arbitrate the claimbefore the New York Stock Exchange andthen later argued that the dispute requiredarbitrating once it became embroiled in alawsuit in the Florida state courts. The courtheld that having once opposed arbitration,Raymond James had waived the right toarbitrate regardless of prejudice. The Floridacourts have found waivers reasonablygenerously. In the case of Marine EnvironmentalPartners, Inc. v. Johnson, 863 So. 2d423 (Fla. Dist. Ct. App. 2003), the FloridaFourth District Court of Appeal found thata defendant who had answered a complaintin a lawsuit without raising the issue of arbitrationhad waived the right to arbitrate.As a test, the court said: “A party claimingwaiver of arbitration must show: (1) knowledgeor an existing right to arbitrate and(2) active participation in litigation or otheracts inconsistent with the right.” Marine Environmental,863 So. 2d at 426.In Qubty v. Nagda, 817 So. 2d 952 (Fla.Dist. Ct. App. 2002), the Florida Fifth DistrictCourt of Appeal held that prelawsuitnegotiations did not waive arbitration. Thiscase also contains language to the effectthat someone can’t avoid a contract becausehe or she didn’t read it. Florida case law hasmany other waiver cases, but the ones discussedhere provide the flavor and a startingpoint to research the issue.A recent hotbed of litigation in Floridahas centered on whether a nonsignatoryto an arbitration agreement can be forcedto arbitrate or can force signatories to theagreement to arbitrate. In Global TravelMarketing, Inc. v. Shae, 908 So. 2d 392 (Fla.2005), the Supreme Court of Florida ruledthat when a mother signed an arbitrationagreement on behalf of her 15-year-old sonwith a travel agency as part of safari contractand the son was killed on the safari,the travel agency could compel the subsequentwrongful death case by the estate toarbitration even though the son was not asignatory and he was a minor. In Moralesv. Perez, 952 So. 2d 605 (Fla. Dist. Ct. App.2007), the Florida Third District Court ofAppeal ruled that in a lawsuit by a physicianwho was a member and a shareholderof a medical practice holding company,which involved two different contracts,neither one of which was signed by bothparties, the trial court’s denial of the defendant’smotion to compel arbitration wasreversed. The reversing court noted thatresolving either of the contract disputeswould involve the same factual determinationsas the other. In Cunningham HamiltonQuiter, P.A. v. B.L. of Miami, Inc., 776So. 2d 940 (Fla. Dist. Ct. App. 2001), theFlorida Third District Court of Appealdecided that an arbitration clause appliedto a project owner asserting claims againstan architectural firm even though the twohad not directly signed a contract betweenA fair question regardlessof the jurisdiction is whetheran arbitration agreementfairly encompasses thedispute being litigated.them because the claims against the firmarose from the design- build contract withthe general contractor containing the arbitrationagreement existed. In Henderson v.Idowu, 828 So. 2d 451 (Fla. Dist. Ct. App.2002), the Florida Fourth District Court ofAppeal ruled that an arbitration agreementbetween an employee and the employee’semployer governed a wife’s claim for lossof consortium involving a claim in whichher husband sued his employer and hissupervisor for employment- related tortseven though the wife had not signed theagreement. The supervisor had not signedit either, but the court determined that hewas entitled to enjoy the arbitration agreementas well. In Shetty v. Palm Beach RadiationOncology Associates—Sunderam, 915So. 2d 1233 (Fla. Dist. Ct. App. 2005), a physicianand shareholder in a radiation oncologypractice individually and on behalf ofthe practice sued an employee who handledbilling for the practice for breach of fiduciaryduty and other claims. The employeemoved to compel arbitration. The FloridaFourth District Court of Appeal reversedthe denial of that motion and held that theemployee, who was not a signatory to thearbitration agreement, could compel arbitrationunder it. In Lash & Goldberg, L.L.P.v. Clarke, 88 So. 3d 426 (Fla. Dist. Ct. App.2012), the Florida Fourth District Court ofAppeal ruled that a plaintiff who had suedFor The Defense ■ September 2012 ■ 39

Trial Tacticsa number of entities, including her ownattorneys and her employer for many differentcauses of action, could compel arbitrationagainst all of the defendants eventhough some of them had not signed thearbitration agreement. The court noted:Generally, a non- signatory to an arbitrationagreement cannot compel asignatory to submit to arbitration….These arecontract issues,and state laws generallygovern contractual disputesbased on the appropriatestate contract law.One exception to the rule is that a nonsignatorycan compel arbitration whenthe signatory to the contract containingthe arbitration clause alleges substantiallyinterdependence and concertedmisconduct by both the non- signatoryand one or more of the signatories.Id.We come next to unconscionability andpublic policy making an arbitration agreementvoid, issues that partake of the sameflavor. The various jurisdictions seem tohave the greatest leeway to differ from oneanother and from federal courts in theseareas. After all, these are contract issues,and state laws generally govern contractualdisputes based on the appropriate statecontract law. Nevertheless, a smatteringof Florida cases will serve to illustrate theissues that can come up.In SA-PG Sun City Center, L.L.C. v. Kennedy,79 So. 3d 916 (Fla. Dist. Ct. App. 2012),the Florida Second District Court of Appealfound the contract for admission of a residentto a nursing home not procedurallyunconscionable. Florida, as do most jurisdictions,breaks unconscionability intotwo categories: procedural unconscionabilityand substantive unconscionability.In the SA-PG Sun City Center case, the patient,Mr. Bush, was admitted to a nursinghome by his wife, Fern Bush. Ms. Kennedy,the Bushes’ daughter, drove Ms. Bush to the40 ■ For The Defense ■ September 2012nursing home and was present when shesigned the admission papers consisting of35 pages that included a one-page arbitrationagreement on page 16. A subsequentwrongful death lawsuit ensued and thenursing home moved to compel arbitration.Ms. Kennedy, serving as the personal representativeof the estate of Mr. Bush, contendedthat the arbitration agreement wasprocedurally and substantively unconscionable.The Florida Second District Courtof Appeal pointed out that a party assertingthe defense of unconscionability mustshow both procedural and substantive unconscionability.Id. at 919. The party assertingunconscionability bears the proofburden. If the court determined that thearbitration agreement was not procedurallyunconscionable, then it did not needto consider substantive unconscionability.The plaintiff asserted that Ms. Bush, due tophysical limitations and difficulty seeing,did not have the ability to know and understandthe terms of the arbitration agreement:she was physically unable to read thedocument, the agreement was not explainedto her, she had no meaningful opportunityto have the agreement reviewed by anyonewho could explain it to her, and the directorof the nursing home facility who was presentduring the admission process did nothave sufficient understanding of it to haveexplained it to her had she asked. The FloridaSecond District Court of Appeal foundthat the agreement was not procedurallyunconscionable. In Florida procedural unconscionabilityis a fact issue, and a hearinghad taken place in which trial courthad considered deposition testimony. TheFlorida Second District Court of Appeal, inlanguage that I suspect it will rue in othercontexts, depending on one of its own decisionsfrom 2009 and a decision of the FloridaSupreme Court from 1936, wrote:[A party’s] alleged inability to understandthe Agreement does not vitiate herassent to that Agreement in the absenceof some evidence that she was preventedfrom knowing its contents. Florida lawhas long held that a party to a contractis conclusively presumed to know andunderstand the content, terms and conditionsof the contract…. And ‘[t]his istrue whether a party is physically unableto read the agreement or simply choosesnot to read the agreement.’SA-PG Sun City Center, 79 So. 3d at 920.(citation omitted).Another case is Dale v. Comcast Corp.,498 F.3d 1216 (11th Cir. 2007). The EleventhCircuit held that an arbitration agreementbetween a provider and a subscriberof cable services that precluded a classaction was substantively unconscionable.It is interesting because it provides a viewof the type of things that courts might considersubstantively unconscionable. It is, ofcourse, also interesting because Concepcionhas no doubt done it in. In Powertel,Inc. v. Bexley, 743 So. 2d 570 (Fla. Dist. Ct.App. 1999), the Florida First District Courtof Appeal ruled that a cellular telephoneservice provider’s contract was both procedurallyand substantively unconscionable.The opinion includes a good discussionof the tests for both procedural and substantiveunconscionability in the Floridacourts. Perhaps of significance to this discussion,the substantive unconscionabilitythere was the elimination of punitive damages,which, as a matter of public policy, theFlorida courts believe should be available.Drafting ConsiderationsIf someone reads the many cases concerningunconscionability carefully, certainaspects stand out. First, an arbitrationagreement needs to state clearly who itmight bind. If signatories have relationshipswith others who will not sign an agreementbut who would clearly qualify as third-partybeneficiaries, such as spouses, children, oremployees, the agreement should say so.Second, a drafter should place an arbitrationagreement on a separate page or pagesif it is part of a larger agreement. Third, adrafter should plainly label an arbitrationagreement in block letters at the top, specifyingthat it is an agreement to arbitratein which both parties will surrender theirright to a trial by a jury and will insteadarbitrate all disputes. Fourth, the agreementshould make clear that it extends toall disputes of every type, whether commercial,civil rights, torts, and others. Fifth, adrafter should include a section that statesthat the signatory has had the opportunityto read the document, to ask questionsabout it, signs it freely and willingly withoutduress, and the signatory understandsthat by signing the agreement he or she sur-Arbitration, continued on page 84

Trial TacticsExperts’ PriorTestimonyBy Tracey L. Turnbulland Brodie M. ButlandThe “AdoptiveAdmission”Provision of FRE801(d)(2)(C)Contradictoryauthority in the areaunderscores that eventhe best preparationmay not always preventexpert witnesses frombecoming potentiallydamaging witnesses.Selecting an expert witness is a critical litigation decision.It goes without saying that a litigator should thoroughlyvet every expert. But as every experienced litigator knows,developments in a case can transform an expert from anasset buttressing a case into a liabilityundermining it.• An expert may make concessions duringhis or her deposition that greatly damagesthe retaining party’s case.• An expert may make statements duringhis or her deposition that undercutanother expert, fact witness, claim, or acombination of these.• An expert may have a horrible testimonialdemeanor.• An expert may have prior criminal convictions,civil liabilities, or other similarbad acts that a retaining party didnot learn of until afterward.• New evidence may force an expert toreach a different, unfavorable conclusiongiven his or her experience ormethodology.• New evidence may allow a party to claimgreater damages after an expert hasopined to a reasonable degree of professionalcertainty that the damage figurewas significantly lower.In light of one of these unforeseeabledevelopments, a retaining party may considerdropping an expert as a trial witnessto avoid undermining its case. Whilethe loss of an expert can be detrimentalto a case, attorneys often overlook a separateand potentially more disastrous landmine:the “adoptive admission” provisionof Federal Rule of Evidence 801(d)(2)(C).Under this provision, even if a retainingparty does not call its expert to testify duringa trial, the opposing party nonethelessmay be able to use that expert’s prior testimonyas an “adoptive admission” to supportits own case.Unfortunately, the extent to which an opposingparty may use an expert’s prior testimonyas an adoptive admission is far fromclear. Three separate lines of authority haveemerged in the Fifth and Third Circuits andthe U.S. Court of Claims. One line holds thatan expert’s statements constitute a partyopponentadmission once a party has designatedan expert and the expert provides an■ Tracey L. Turnbull is a partner and Brodie M. Butland is an associate with Porter Wright Morris & ArthurLLP in Cleveland, Ohio. Ms. Turnbull’s practice focuses on litigating trade secret and intellectual propertydisputes, as well as product liability and employment discrimination claims. She is an active member of DRI,serving on its Trial Tactics, Commercial Litigation, and Women in the Law Committees. Mr. Butland concentrateson complex commercial litigation. He is a member of the DRI Young Lawyers Committee.For The Defense ■ September 2012 ■ 41

Trial Tacticsopinion. Another line holds that an expert’sprior testimony is never a party- opponentadmission without direct evidence of anagency relationship. The final line holds thatan expert’s prior testimony becomes a partyopponentadmission only once the expert isdesignated as a trial witness.The inherently contradictory authorityand the lack of a governing precedentUnder theCollins lineof cases, an expert ispresumed to speak forthe party that retainedthe expert regardlessof whether the experttestifies during a trial.42 ■ For The Defense ■ September 2012in most federal jurisdictions can createa quandary when trying to decide howto proceed with a potentially ineffectiveexpert. The conservative approachwould involve designating the expert asa potential trial witness in the event thatthe expert becomes necessary during thetrial. This approach may be warrantedwhen a retaining party would prefer touse other evidence to establish liability ordamages instead of its expert but that evidenceis subject to pending admissibilitychallenges. In other words, the retainingparty needs the expert just in case thecourt rules the other evidence inadmissible.Yet this precautionary approach mayallow the opposing party to read parts ofthe expert’s deposition into the record as aparty- opponent admission and undermineother evidence of damages if the expertultimately becomes unnecessary.This article assesses different strategiesavailable to you when you either seek(1) to prevent an opposing party to useyour party’s expert’s prior testimony as anadoptive admission during a trial; or (2) touse the testimony of an opposing party’sexpert as a party- opponent admission duringa trial. First, this article reviews FederalRule of Evidence 801(d)(2)(C), whichattorneys and courts typically rely on todeem expert deposition testimony a partyopponentadmission. Second, this articleexplains the three lines of authority thatcourts follow in deciding whether priortestimony of an expert not called to testifyduring a trial can become evidence readinto the record as a party- opponent admission.Third, this article suggests tactics thatyou can use if you encounter these lines ofauthority, or when a jurisdiction has notadopted one yet.Adoptive Admissions:FRE 801(d)(2)(C)Federal Rule of Evidence 801(d)(2) statesthat admissions by a party- opponent arenot hearsay. Courts holding that at least insome circumstances prior testimony by anexpert constitutes a party- opponent admissionrely on the “adoptive admission” provisionin subsection (C) of the rule, whichstates: “A statement is not hearsay if… [t]hestatement is offered against a party andis… a statement by a person authorizedby the party to make a statement concerningthe subject[.]” Fed. R. Evid. 801(d)(2)(C). To determine whether the statementwas authorized by the party, a court mustconsider the contents of the statements,but they cannot alone establish authorization.Fed. R. Evid. 801, Advisory CommitteeNotes (1997).According to the committee notes, subsection(C) was phrased broadly to encompassstatements to third persons andstatements by an agent to the principal—it does not apply solely to statements madeto third parties. Id. However, the AdvisoryCommittee did not indicate whether, or towhat extent, a retained expert’s opinionsand prior testimony constituted a partyopponentadmission as an authorized statementby a party.Three’s a Crowd: The Collins, Kirk,and Glendale Lines of AuthorityIn discussing cases addressing the useof an expert’s deposition testimony as aparty-opponent admission, Glendale Fed.Bank, FSB v. United States, 39 Fed. Cl. 422,423 (1997), aptly observed that “[t]his areaof law is murky at best with several divergentstreams and many highly fact specificeddies making up the case law.” But fromthe legal quagmire emerges three primarylines of authority running the entire gamutof approaches. Each of these approaches isdiscussed below.The Most Extreme Approach:Collins v. Wayne Corp.An early approach to the question of admissibilityof an expert’s deposition against theretaining party, generally credited as originatingwith Collins v. Wayne Corp., 621F.2d 777 (5th Cir. 1980), is that an expert’sstatements are attributable to a party as anadmission under Fed. R. Evid. 801(d)(2)(C) once a party has designated an expertas such and the expert has rendered someform of opinion. It is, therefore, irrelevantto these courts whether or not the expertwill testify during a trial.In Collins, a party retained an expertto investigate and analyze a bus accidentand report on the bus speed and its impactwith a tractor- trailer. Before the trial, thedefendant sought to exclude the expert’sdeposition because he was merely a “consultant.”Id. at 780. The Fifth Circuit heldthat deposition testimony of an expert employedby a bus manufacturer to investigatean accident was an admission under FederalRule of Evidence 801(d)(2)(C) becausethe expert witness was an agent of the defendant,who employed the expert to investigateand analyze the bus accident. Id. at782. The court found that in providing hisdeposition, the expert performed the functionthat the manufacturer had employedhim to perform. Specifically, the expert’sinvestigation report and deposition testimonyexplaining his analysis and investigationwas an admission of the defendant.Id. The district court erred in failing to admitthe testimony as a party- opponent admission,though ultimately the Fifth Circuitfound the error harmless. Id. at 782–83.Several courts not within the Fifth Circuithave adopted the Collins rule. Long v.Fairbank Farms, Inc., No. 1:09-cv-592, 2011WL 2516378 (D. Me. May 31, 2011); Deanv. Watson, No. 93-C-1846, 1996 WL 88861(N.D. Ill. Feb. 28, 1996). See also BNSF Ry.Co. v. Lafarge Sw., Inc., No. 06-1076, 2009WL 4279850, at *4 n.3 (D.N.M. Feb. 3, 2009)(finding that parties adopted expert’s opinionsbecause they designated the expert assuch after knowing his opinions). Courtshave applied Collins to the trial setting and

to pretrial motions practice. In Long, crossclaimantssought summary judgment onindemnification and other related claims.2011 WL 2516378, at *1. In their briefing,third-party plaintiffs cited the depositiontestimony of an expert retained by thirdpartydefendants and argued that it constituteda party- opponent admission underFederal Rule of Evidence 801(d)(2)(C). Thethird-party defendants responded that theexpert was hired “to fully explore andbetter understand the allegations againstit,” the defendants “always expected [theexpert] to testify impartially,” the expertwas never subject to defendants’ controlnor authorized to make admissions for thedefendants, and the defendants had not yetdetermined whether they would call theexpert to testify during the trial. Id. at *9.“Even taking all of these assertions at facevalue,” the court held that the expert “wasauthorized by [the third-party defendants]to make a statement concerning the subjectmatter about which he testified,” andhis statements constituted party- opponentadmissions under Federal Rule of Evidence801(d)(2)(C). Id. at *10. Among otherauthorities, Long cited Collins for support.Id. The court did not find it persuasive thatthe expert was not subject to control bythe third-party defendants, as that would,at most, have indicated that there was notan agency relationship sufficient to find aparty- opponent admission under FederalRule of Evidence 801(d)(2)(D). Id.Under the Collins line of cases, an expertis presumed to speak for the party that retainedthe expert regardless of whether theexpert testifies during a trial. Accordingly,Collins and its progeny allow an expert’sdeposition to be used against the retainingparty under Federal Rule of Evidence 801(d)(2)(C) with very little restriction.The “Independent Expert”:Kirk and SoitecOn the opposite end of the spectrum,courts find that an expert’s deposition cannotbe used against the retaining party asan admission because the expert is considered“independent.” This view is exemplifiedby the Third Circuit’s decision in Kirkv. Raymark Indus., Inc., 61 F.3d 147 (3d Cir.1995), in which the court stated that the“agency theory” set forth in Collins misses“the entire premise of calling expert witnesses.”Id. at 164. As the court explained,despite the fact that one party retainedand paid for the services of an expertwitness, expert witnesses are supposedto testify impartially in the sphere oftheir expertise. Thus, one can call anexpert witness even if one disagrees withthe testimony of the expert. Rule 801(d)(2)(C) requires that the declarant bean agent of the party- opponent againstwhom the admission is offered, and thisprecludes the admission of the prior testimonyof an expert witness where, asnormally will be the case, the expert hasnot agreed to be subject to the client’scontrol in giving his or her testimony.The Value of MembershipDRI Membership Gives You Access toValuable Benefits, Quality Service.As a member of DRI, you have an all-access pass tothe Marsh U.S. Consumer, a service of Seabury &Smith, Inc., benefit program that’s been designedespecially for you. With this program, you can takeadvantage of valuable benefits and quality serviceyou’re unlikely to find anywhere else.Valuable BenefitsYour DRI membership gives you accessto highly rated insurers and special grouppricing. Your options include:• Disability Insurance* 1• Hospital Income Insurance* 1• Major Medical• Short-Term Medical• Group Term Life**• Long-Term CareQuality Service• One-stop access to a wide rangeof products.• Telephone support fromspecially trained representatives.• A comprehensive benefitswebsite with information,contacts, enrollment forms,FAQs and more!• Easy enrollment that gives youquicker access to benefits.Quality benefits and services—The Value of Membership.Access your benefits today! Call 1-800-503-9230 or visit www.personal-plans.com/drifor more information including costs, exclusions, limitations and terms of coverage.56159 ©Seabury & Smith, Inc. 2012 AG #9117*Underwritten by Hartford Life Insurance Company, Simsbury, CT 06089.**Underwritten by The United States Life Insurance Company in the City of New York.d/b/a in CA Seabury & Smith Insurance Program ManagementAR Ins. Lic. #245544CA Ins. Lic. #0633005Plans may vary or may not be available in all states.1Plan is not available to residents of New York.RSH56159 DRI Ad (4/12)Full Size: 7.5" x 5" Bleed: N/A Live: N/AFolds to X": N/A Perf:N/AColors 1c/0c: Black56159 DRI ad.indd 1 2/10/12 9:25 AMFor The Defense ■ September 2012 ■ 43

Trial TacticsUnder theKirk analysis,an expert’s prior testimonyis not deemed to be anadoptive admission withoutindependent proof that aretaining party has controlover the testimony orconclusions of an expert.Since an expert witness is not subject tothe control of the party opponent withrespect to consultation and testimony heor she is hired to give, the expert witnesscannot be deemed an agent.Id. (citations omitted). Applying this analysis,the Kirk court noted, “because an expertwitness is charged with the duty of givinghis or her expert opinion regarding the matterbefore the court, we fail to comprehendhow an expert witness, who is not an agentof the party who called him, can be authorizedto make an admission for that party.”Id. (emphasis in original). Based on this reasoning,Kirk held that an expert’s depositionin a prior, unrelated case could not be usedto impeach a party in a pending case. Id.Though Kirk involved an attempt to useexpert testimony from prior, different litigationas an admission in a present case,Third Circuit courts have applied Kirk withequal force to experts retained in the samelitigation. See St. Paul Fire and MarineIns. Co. v. Nolen Group, Inc., No. 02-8601,2007 WL 2571524, at *7 n.6 (E.D. Pa. Aug.31, 2007) (“Although [one case] distinguishedKirk on the basis that Kirk dealtwith expert testimony provided in a priorlitigation, rather than in the same litigation,the distinction is unavailing. The criticaldistinction is whether an expert is, onthe record, an agent of the party.”); Pfizer,Inc. v. Ranbaxy Labs., Ltd., No. 03-209,2005 WL 2296613, at *2 (D. Del. Sept. 20,2005) (“[T]he Court does not read Kirk tobe limited to circumstances involving the44 ■ For The Defense ■ September 2012prior trial testimony of a witness.”); Bostickv. ITT Hartford Group, 82 F. Supp. 2d 376,379 (E.D. Pa. 2000) (same).The extension of Kirk to expert depositiontestimony in the same litigation isexemplified by Soitec, SA v. Silicon GenesisCorp., No. 99-10826, 2002 WL 34453284(D. Mass. Feb. 25, 2002). In that case, anexpert was designated as a trial witnessof the plaintiff but later withdrawn. Thedefendant then attempted to introducehis prior deposition testimony as a partyopponentadmission under Federal Ruleof Civil Procedure 801(d)(2)(C). The courtexpressed its agreement with Kirk thatin the relationship between a lawyer andexpert, the “expert is more like an independentcontractor offering his own opinionand is not ‘controlled’ by the party whoemploys him.” Id. at *1. As a result,[t]he adoptive admission theory faltersbecause it cannot be said that [the plaintiff’s]actions represent acquiescencein or adoption of every aspect of [theexpert’s] testimony, and particularlythe comment on which [the defendant’wants to rely, which was made in thecourse of the deposition…. [C]ounsel forthe employing party is under no obligationto state ‘we agree with that statement,’or ‘we disagree with that one.’ Id.The court rejected the agency theory ofadmission of Federal Rule of Evidence801(d)(2)(D) on the same grounds. Id.Similarly, a bankruptcy court, thoughacknowledging Collins, also followed Kirk’sreasoning and held that the depositiontestimony of an expert identified by thedebtor, but not called during a trial, wasinadmissible hearsay evidence. In re HiddenLakes Ltd. P’ship, 247 B.R. 722, 724(S.D. Ohio 2000). Citing Kirk, the courtnoted that “expert witnesses are supposedto testify impartially in the sphere of theirexpertise,” and nothing suggested that thedebtor had actual control over the testimonyor conclusions of the expert. Id. Thecourt thus precluded the non- testifyingexpert’s deposition testimony. See alsoPfizer, 2005 WL 2296613, at *2 (findingno adoptive admission because the plaintiffhad not provided “independent proofof the existence of [the expert’s] authorityto speak for [the defendant]”).A handful of courts have also employedKirk’s reasoning when an expert had testifiedand been cross- examined but theopposing party wished separately to admitthe expert’s prior deposition testimony asa party- opponent admission. These casesrejected Collins and found that the expert’stestimony did not constitute an adoptiveadmission. They also noted that the propertime to address prior deposition testimonywas during the expert’s cross- examination.Smith v. United States, No. 3:95-cv-445,2012 WL 1453570, at *31–32 (S.D. Ohio Apr.26, 2012) (rejecting Collins and adoptingKirk to preclude testimony); Koch v. KochIndus., Inc., 37 F. Supp. 2d 1231, 1244–45 (D. Kan. 1998), rev’d in part on othergrounds, 203 F.3d 1202 (10th Cir. 2000).Thus, under the Kirk analysis, anexpert’s prior testimony is not deemed tobe an adoptive admission without independentproof that a retaining party has controlover the testimony or conclusions ofan expert. This is even true for experts whoare designated as trial witnesses but subsequentlywithdrawn.Trial as the “Critical Juncture”: GlendaleThe third approach, originating with GlendaleFed. Bank, FSB v. United States, 39 Fed.Cl. 422 (1997), attempts to create a middleground between Collins and Kirk. Onthe one hand, Glendale agreed with Kirk’spremise that an expert “is expected to givehis own honest, independent opinion,”and that “[h]e is not the sponsoring party’sagent at any time merely because he isretained as its expert witness.” Id. at 423.Glendale noted that deeming a depositionto be the point at which an expert’s viewsbecome attributable to the retaining party“would unduly intrude on a party’s abilityto control its own case,” as well as “inhibit aparty’s attempt to fully explore and understandits own case.” Id. at 424. On theother hand, Glendale rejected Kirk’s premisethat to constitute an adoptive admissionunder Federal Rule of Evidence 801(d)(2)(C), the expert must be an agent of theparty. Rather, Glendale noted that FederalRule of Evidence 801(d)(2)(C), which concerns“person[s] authorized to speak,” isseparate and distinct from Federal Ruleof Evidence 801(d)(2)(D), which concernsagents. Id.The court ultimately determined thatan expert’s deposition testimony may bean adoptive admission once the expert was

designated as a trial witness, since by thatpoint the court “may assume that thoseexperts who have not been withdrawn arethose whose testimony reflects the positionof the party who retains them.” Id. at 424–25. Importantly, Glendale was not basedon a “retroactive[] finding [of] agency orcontrol at the time of a particular deposition”;rather, Glendale’s rule was basedsolely on the perception that “[t]he beginningof trial is a critical juncture” when itwas “fair to tie the party to the statementsof its experts.” Id. at 425. The court, therefore,permitted the plaintiff to use depositionsof two of the defendant’s experts asparty- opponent admissions because thoseexperts were not withdrawn before thetrial. Id. The court, however, prohibited theuse of a third expert’s deposition as a partyopponentadmission because he had beenwithdrawn before the trial. Id.Numerous courts have found Glendale’sreasoning persuasive and allowedan expert’s prior deposition testimony asan adoptive admission if the expert wasdesignated as a trial witness. CadlerockJoint Venture, L.P. v. Royal Indem. Co., No.02-16012, 2012 WL 511531, at *1, 3 (N.D.Ohio Feb. 15, 2012) (excluding the expert’sdeposition testimony because the expertwas withdrawn before the trial); Mann v.Lincoln Elec. Co., No. 1:06-cv-17288, 2010U.S. Dist. LEXIS 43824, at *3–6 (N.D. OhioMay 5, 2010) (same); Minebea Co., Ltd. v.Papst, No. 97-0590, 2005 WL 6271045, at *1(D.D.C. Aug. 2, 2005) (same). See also Durhamv. Cty. of Maui, 804 F. Supp. 2d 1068,1070 (D. Haw. 2011) (finding Glendale “persuasive”but declining to “craft a particularrule drawing a clear line between whenexpert opinions qualify as statements ofparty opponents”); In re Hanford NuclearReservation Litig., 534 F.3d 986, 1016 (9thCir. 2008) (citing Glendale and holdingthat an expert’s testimony from the “firstbellwether trial” in a multistage trial wasadmissible as an adoptive admission in asubsequent trial stage).The Glendale line of authority seeks tocompromise the two extremes exemplifiedby Collins and Kirk by holding thatan expert’s prior testimony only becomesan adoptive admission when the expertis designated as a trial witness. The testimonyof an expert withdrawn prior to trialwill not be admissible against the retainingparty under Federal Rule of Evidence801(d)(2)(C).Navigating Uncertainty: Usingan Opponent’s Expert andProtecting Your OwnNot having a uniform standard for admittingan expert’s prior deposition testimonyas a party- opponent admission complicatesunderstanding the circumstancesunder which courts may admit an expert’sprior deposition testimony as an adoptiveadmission. However, we have some generalsuggestions for approaching the issuewhen you seek to protect an expert’s depositiontestimony, or, conversely, to use anopponent’s.Protecting Your Own ExpertWhen a party’s expert is a potential liabilitythe party should ensure that it does notopen the door to an adoptive admission byunnecessarily designating the expert as atrial witness. Practitioners in the Fifth andThird Circuits have a reasonable expectationof how courts will analyze the issue:Fifth Circuit courts will likely follow Collins,and Third Circuit courts will likely followKirk. In these jurisdictions, it appearsthat a party will not suffer a meaningfuldisadvantage by designating the expert asa trial witness.As for Glendale courts, you may face afundamental strategic difficulty. It is a relativelyeasy decision to abandon an expertwho significantly undercuts a party’s caseduring a deposition or whose opinion nolonger appears to be valid—and under Glendale,the opposing party will not be able touse that expert’s deposition testimony as anadoptive admission. The difficulty arises,however, when you can potentially establisha significant point through other evidence,including another potential expert,but your opponent likely will challenge thatevidence. In those circumstances, you justifiablywould not want to abandon an expertwithout confirming the admissibilityof the other evidence. However, in practice,courts often cannot resolve evidentiary admissibilityissues before the parties mustdisclose their trial witnesses.In such circumstances, you could file amotion before the deadline for identifyingtrial witnesses seeking an expediteddetermination of outstanding admissibilityissues, or, alternatively, for permission towithdraw the expert upon the admissibilityruling without rendering the expert’s priordeposition testimony a party- opponentadmission. The Glendale rule was foundedon a presumption “that those experts whohave not been withdrawn are those whosetestimony reflects the position of the partywho retains them.” Glendale, 39 Fed. Cl.at 424. That presumption, however, arguablyis not appropriate when a party designatesan expert as a witness only because ofpending admissibility issues for other evidence,and the party cannot establish itslitigation position without judicial guidance.Without a ruling, you must choosethe lesser of two evils based on the bestavailable information.Additionally, even if you identify anexpert as a trial witness but later withdrawthat expert, you still have means of mitigatingor eliminating the potential damagefrom the prior testimony. First, all depositiontestimony is subject to the rule ofcompleteness in Federal Rule of Civil Procedure32(a)(6) and Federal Rule of Evidence106, which provide that when a partyintroduces part of a deposition as evidence,an adverse party may require the offeringparty to introduce at the same timeany other portion of the deposition thatin fairness should be considered with thatpart. Thus, if an opposing party designatesfor the record an expert’s testimony as anadoptive admission, you could mitigatethat testimony by calling for counter designationsto ensure a fair evaluation of theadmissions cited by the party opponent.Second, you should question whether thetestimony actually constitutes an “admission.”In In re Welding Fumes Prods. LiabilityLitig., No. 1:03-cv-17000, 2010 WL7699456 (N.D. Ohio June 4, 2010), the courtfound that an expert’s prior testimony“did not make a clear, admissible admission.”Id. at *31. Further, the court notedthat if the court admitted the depositionstatement as evidence, “it would have tobe accompanied by [the expert’s] explanation,as well[,]” and the combined testimony“would be unduly confusing to ajury, carry very little probative value to thedefendants’ case, and, in the end, carry noclear ‘admission.’” The court thus refusedto admit the expert’s previous depositionExpert Testimony, continued on page 85For The Defense ■ September 2012 ■ 45

Trial TacticsSmall Business OwnersMaking Big BusinessDamages ClaimsBy Krista Fowler AcuñaDefending LostEarning CapacityClaimsDetailed and thoroughdiscovery regardinga plaintiff, theplaintiff’s business,and the plaintiff’s rolein the business arevital to a successfulmotion in limine.■ Krista Fowler Acuña is a shareholder of Houck Anderson, PA, based inMiami, Florida. She defends and counsels consumer and recreational productmanufacturers and retailers and construction companies in all aspectsof products and general liability matters. She is an active member of the DRITrial Tactics, Product Liability, and Women in the Law Committees.46 ■ For The Defense ■ September 2012The U.S. Small Business Administration reports that morethan 26 million small businesses operated in the UnitedStates in 2011. Litigators defending personal injury andwrongful death lawsuits can, therefore, anticipate casesinvolving the owners or co- owners of smallbusinesses and other self- employed plaintiffs.Crafty plaintiff attorneys will attemptto muddy the waters of lost earning capacityclaims, arguing that they are synonymouswith lost profits to the businesses.This “what the company earns, I earn” theorycan result in over- inflated lost earningcapacity claims.Defense litigators must, therefore, aggressivelyand thoroughly investigate thenature of a plaintiff’s economic claims indiscovery when dealing with small businessowners. The goal is to lay the ground workto prevent the presentation of lost businessprofits to a jury. This article discusses thegeneral status of the law on this issue andpresents effective pretrial strategies.To exemplify the issue, let’s consider thefollowing case example: when a plaintiff ina personal injury claim experienced a herniateddisc injury in 2006, he was the soleowner of a mortgage brokerage companythat employed approximately 50 employees.He alleged that due to his significantback pain he was unable to operate his businesseffectively or work in the office. Profitsdeclined significantly over the first halfof 2007, and the business eventually closed.The plaintiff’s damages claim was premisedon net- income projections, which historicallyfluctuated between net profits and netlosses. He claimed that lost profits of thebusiness, due to his inability to effectivelymanage it, equaled his lost earning capacity.In some ways this may seem logical, anda jury certainly may think so, but it is basedon a significant misunderstanding of lostearning capacity. Quite simply, it confusesdamage to the business with damage to theindividual plaintiff. Thus, a defense litigatormust focus on the actual losses experiencedby the plaintiff.Generally, lost earnings are determinedby subtracting earning capacity after aninjury from earning capacity before theinjury. Black’s Law Dictionary defines“earning capacity” asthe capability of a worker to sell his laboror services in any market reasonablyaccessible to him, taking into considerationhis general physical functionalimpairment resulting from his accident,any previous disability, his occupation,age at the time of injury, nature

of injury and his wages prior to and afterthe injury… refers to that, which, by virtueof the training, the experience, andthe business acumen possessed, an individualis capable of earning.Evidentiary Standard and FactorsThe purpose of a jury’s award of damagesfor the loss of future earning capacity is tocompensate a plaintiff for the loss of capacityto earn income as opposed to the actualloss of future earnings. Generally, an awardof damages for loss of earning capacityrequires a plaintiff to present evidence ofa reasonable certainty of injury and proximatecausation between that injury and theloss of earning capacity. A jury must haveevidence that will allow them to calculatelost earning capacity reasonably.To demonstrate a reasonable certainty ofinjury, a plaintiff must show an inability toperform tasks that he or she could performbefore an accident. Without proof of consequentdiminishment of earnings, however,this evidence would not sufficiently supportan award for lost earning capacity. A plaintiffmust prove both elements to support alost earning capacity award. The majorityof jurisdictions dictate that it is proper fora jury to consider the following items in determiningwhether a plaintiff has experienceda diminished earning capacity due toan injury (rather than other due to causativefactors): age; health; habits; surroundings;life expectancy; talents; skills; experience;training; the plaintiff’s business, profession,or occupation; the extent of his or her injuries;his or her physical capacity to performwork, both before and after the injury; andearning before and after the injury.A defense strategy can challenge damagesdirectly through four general avenues:(1) demonstrate that a plaintiff didnot have an earning capacity to lose, orhe or she had less earning capacity thanclaimed; (2) demonstrate that the injurysustained did not affect the plaintiff’scapacity to earn, or that it had less effectthan claimed, either because the injury wasnot as serious as claimed or because it didnot impair faculties for or abilities to workas claimed; (3) demonstrate that the injurydid not proximately cause the alleged lossof earning capacity; and (4) demonstratethat the plaintiff based the values claimedfor potential diminution of earning capacityon too much speculation or conjectureor they involved too many improbabilitiesto warrant consideration.Plaintiff’s attorneys too frequently focuson comparing earnings before and afteran injury. A defense litigator must developand evaluate all of the factors that couldaccount for changes in earning.The Role of Businessesand Lost ProfitsEvidence of the profits and loss of profitsof a business in which a plaintiff has aninterest is typically inadmissible to provelost earning capacity when the nature ofthe business, for the most part, dependson the employment of capital, the laborof others, or similar variable factors. Thereason for this rule is that the loss of businessprofits from a business featuring thesequalities is not necessarily due to a plaintiff’sinjury, profits based on that businessmodel are uncertain, and assigning a valueto losses under those conditions involvesgreat speculation.Courts have relaxed the rule againstadmitting evidence of loss of profits in abusiness when the evidence has not positivelyshown that the employment of capital,use of the labor of others, or similarvariable factors predominated in the operationof the business and principally contributedto the production of income.In these circumstances the courts havetaken the position that evidence of the lostbusiness profits can assist in calculatingdamages (when a plaintiff has also demonstratedthe requisites elements of proximatecause and certainty).In short, when the returns from someone’sbusiness depend almost wholly on hisor her own personal efforts, labor, skills,talents, knowledge of his or her business,initiative, and business services, or thebusiness relied on only small amounts ofinvested capital, or some combination ofthese, then courts mostly will view lostprofits of the business as relevant and probativeand permit juries to have the data,not as a measure of damages, but to considerin determining the loss of earningpower of the injured party. Most jurisdictionshave accepted this exception to thegeneral rule, and it is stated in the RestatementSecond Torts §924.Because some level of subjectivity isinvolved in determining whether a businessdepends “almost wholly” on a plaintiff’spersonal efforts, a defense litigatormust explore the details of the plaintiff’sbusiness, its structure, and its financials;the details of plaintiff’s specific day-to-dayrole in that business; and all collateral factorsthat may have affected business profitsother than the injury to the plaintiff. Collateralfactors are particularly importantnow in light of the downturn of the U.S.economy since 2008, which has had a significantimpact on small businesses.In an extremely wide variety of factualsettings, courts have considered whetherthe personal skill, initiative, and endeavorsof an injured plaintiff in operating abusiness warranted admitting evidence oflost business profits. Collectively, the factorsthat courts consider when making thisdecision fall into six general categories:• The nature of ownership or organizationof the business;• The character of the injured party’s work,that is, the amount of personal directionand labor that he or she contributed;• The industry- specific market conditions;• Hiring of a substitute;• A change of professions after experiencingthe injury; and• Whether the injury proximately causedthe lost profits.The Nature of Ownership orOrganization of a BusinessThe more closely an injured plaintiff isinvolved in the operations and workingsof the plaintiff’s business, the more likelyit is that a court will determine that it wasthrough his or her own personal endeavorsthat a business achieved profits. Relevantfactors considered and inquiries undertakenby courts to discern a business’ organizationand ownership makeup include:• What type of business is it—corporation(and what type of corporation) partnership,or sole proprietor?• What is the plaintiff’s role in the operations—CEO,president, sole or partialshareholder, franchise owner, incorporator,or manager?• How does the plaintiff receive income—salary, all or portion of the profits, commissions,or undefined?• Were company earnings paid to thebusiness or directly to the plaintiff?For The Defense ■ September 2012 ■ 47

Trial Tactics• How much capital was invested?• How many employees were necessary?How vital were they to the successfuloperation of business? What did theydo?• Can business earnings be attributed tospecific employees or capital? If so, how?What portion may be attributed to eachemployee?The more closelyaninjured plaintiff is involved inthe operations and workingsof the plaintiff’s business,the more likely it is that acourt will determine that itwas through his or her ownpersonal endeavors that abusiness achieved profits.• How long had the business operated?Was it new or well established? Had thebusiness successfully operated for sucha period of time that would give it permanencyand recognition?The Character of an Injured Party’s WorkThis factor, the character of an injured party’swork, focuses on the extent of a plaintiff’sdirect involvement with the business’sproductive activity. Relevant factors andinquiries include:• How was business generated—throughpersonal relationships, unique skills ofthe plaintiff, mailers, general advertising,or a combination of these?• Why did customers choose the plaintiff’sbusiness? Did this have anything to dowith the plaintiff’s personal skill, initiative,and endeavors?• Who made up the customers—repeatcustomers, one-offs, or referrals?• How long had the plaintiff been in thebusiness? Did his or her reputation haveanything to do with generating business?48 ■ For The Defense ■ September 2012• Before the accident, when businesscame in, who did the actual work? Howinvolved was the plaintiff? Did he or shehave a hands on or supervisory role?After the accident, how did this change?• Does the evidence demonstrate that theplaintiff has personal entrepreneurialskills, a particular work ethic, or consistentsuccess growing businesses? Didhe or she take part in trade associationsor was the business a participatingfranchise?• At the time of the accident was he or shein the middle of executing expansivebusiness plans?The Industry-Specific Market ConditionsIn some cases the fluctuating market conditionsof the particular business hasaffected the admissibility of business profitsin determining loss of earning or lostearning capacity. The more volatile themarket conditions, the less likely a courtappears willing to admit the evidence. Relevantfunctions and injuries include:• Were there unexpected fluctuations,less or more competition, changes inthe plaintiff’s habits and modes of living,sources of supply, and increased ordecreased demand?• Was the company’s loss directly attributableto an injured party’s failure to workor to a downturn in the market?• Were there changes in government regulationsor industry standards’ thatmade the operation of the business moredifficult?• Were the market conditions affectingthe pre- injury and postinjury periods sosimilar that a plaintiff can show that thedefendant’s negligence alone accountedfor the damages and proximately causedthe damage?Hiring a SubstituteSmall business owners commonly foregodrawing a regular or set salary, thus, issuesof salary and the costs of hiring substitutesoften become central issues in thesetypes of damages claims. Courts frequentlyadmit evidence of the cost of hiring a substituteduring the incapacity of an injuredperson as proof of, or partial proof of, damagesresulting from loss of earning poweror decreased earning capacity. Courts generallywill admit it as evidence to provethe extent of disability or impairment inthe carrying on of a business and to determinethe worth and loss of a businessowner’s time. The evidence is typicallyrestricted to serving as proof of the substituteemployment for only those tasks thata plaintiff would have done had the injurynot occurred. The cost of hiring a substitutemay also be admissible when a plaintiffdoes not receive a set salary or wage todemonstrate the market value of the plaintiff’searning capacity.Relevant inquiries are:• How does the plaintiff receive income:from a regular salary, all or a portion ofthe profits, commissions, or some undefinedmeans?• Was a substitute hired? What was thecost?• Could a substitute have been hired andstill maintain the business? What wouldthe cost have been?• If the plaintiff did not hire a substitute,what was the increase in labor costs afterthe accident? Did this increase affect theplaintiff’s income?A Change of ProfessionsDefense practitioners should also stay alertfor information that a plaintiff changedprofessions after an injury or asserted abusiness failed due to an injury, but heor she did not subsequently attempt toremain in that industry or line of business.Generally, if a plaintiff elects to changeprofessions after an accident for reasonsunrelated to the accident, a jury may notconsider evidence of alleged lost earningsfrom his or her former profession followinghis or her accident in assessing damages forhis or her injuries.Returning to the case example, therethe plaintiff seemed an entrepreneurialsort: he had “dabbled” in other businessventures, including music and movie production,telemarketing, and real estate. Henever attempted to diversify his mortgagebusiness, he did not attempt to re-open thesame or a similar type of business, and henever even returned as a salaried employeeto the same type of business. These factswould belie the argument that a juryshould determine the plaintiff’s lost earningcapacity by considering losses allegedlycorresponding to the period betweenthe business’ closing to the time of the trial.

If a plaintiff elects to change professionsafter an accident for reasons unrelated tothe accident, a jury may not consider evidenceof the plaintiff’s alleged lost earningsfrom his or her former profession followinghis or her accident in assessing damages forthe injuries because the plaintiff has notsatisfied the causation element. Inquiriesshould focus on the following:• What was the plaintiff’s pre-injuryprofession?• What was the plaintiff’s post-injuryprofession?• Why did the plaintiff change professionsafter experiencing the injury?• Is the post-injury profession less physicallydemanding than the pre- injuryprofession?• Did the change in professions have anythingto do with the injury?Whether the Injury Was the ProximateCause of the Lost ProfitsTo be admissible, the lost profits of a businessmust proximately result from analleged injury, and the evidence must providesufficient certainty to allow a juryto reasonably estimate the amount of theplaintiff’s loss. While they overlap with theabove inquiries, relevant inquiries include:• Does the plaintiff have evidence that theinjury directly affected profits? Did theplaintiff become unable to perform specifictasks due to the injury? For instancedid the injury— prevent him or her from honoringexisting contracts,— prevent him or her from forming newcontracts or generating new business,or— prevent him or her from doing thethings that that plaintiff did before togenerate business?• Did a substitute or could a substitutehave performed the things that theplaintiff did before to generate business?• Did the plaintiff reduce the pay amountthat he or she received from the business?• How did the “book” of the business comparebefore and after the injury?• How did the plaintiff’s “book” comparebefore and after the injury?Case ExamplesIn several specific cases courts have ruledevidence of lost business profits admissibleas one factor for a jury to consider, but notthat the lost profits equaled the lost earningcapacity award. In one case a plaintiff wasan opera singer and the sole shareholder ofan “S” corporation. The plaintiff drew anannual salary and filed tax returns separatefrom the corporation, but all the earningsand the royalties from performances wentto the corporation. The court ruled the lostprofits of the corporation admissible toassist the jury because the plaintiff exclusivelyearned all the monies, and the corporationdid not receive an infusion of capital.In another case, a court ruled lost profitsof a refrigeration and air- conditioningbusiness admissible because the partnershiprequired little capital investment andused the full-time services of the plaintiffand his brother but did not employ anyoneelse. In a third case, a court ruled theprofits from the management of a grocerystore admissible as a measure of the plaintiff’searning power when the plaintiff wasthe sole owner and manager of the store.In contrast, courts have ruled lost profitevidence inadmissible to support a lostearning capacity claim in the other circumstances.A court, for instance, refusedto admit evidence of the plaintiff’s earningsfrom a wrecking company when the plaintiffwas the sole shareholder, the companyhad significant capital investment, and itused the labor of others to perform criticalfunctions of the company. Another courtrejected a plaintiff’s theory that “what thecompany earns I earn” where the plaintiffwas the incorporator, the president, and themanager of an industrial power tool corporationand holder of 69 percent of the stock.The court ruled the earnings of the corporationinadmissible because the businesswas newly established and earnings wereinternally inconsistent.Pretrial Strategies and DiscoveryThe issues discussed in this article all turnon the admissibility of the lost profits of aplaintiff’s business as evidence of the plain-Show other attorneys, clients and organizations what you know.Earn ABA-Accredited Board Certification in your specialty andenhance your legal practice.NBLSC Board Certification is available in the followingspecialties: Civil Trial, Criminal Trial, and Family Trial Law, SocialSecurity Disability, and now Civil Pretrial Practice.Learn more today.Add another credential to your name.www.nblsc.us/EarnBoardCertificationNowABA-Accredited Board Certificationin Civil Pretrial Practice isnow available.For The Defense ■ September 2012 ■ 49

Trial Tacticstiff’s lost earning capacity. The goal, therefore,is to prevent or limit the introductionof this evidence to a jury using motions inlimine. Detailed and thorough discoveryregarding a plaintiff, the plaintiff’s business,and the plaintiff’s role in the businessare vital to a successful motion in limine.More often than not, you will also requirethe expertise of a forensic accountant, anIn some cases thefluctuating market conditionsof the particular businesshas affected the admissibilityof business profits indetermining loss of earningor lost earning capacity.economist, and depending on the natureof the business, an expert in that industry.Retain experts early, and use their expertiseto formulate and flesh out the discoveryplan early in a case to shape appropriatediscovery requests, to identify all nonpartysources of information and documents,and to craft suitable deposition questions.Experts can also assist in resolving discoverydisputes, such as objections to obtainingfinancial and other corporate recordsof a business. An expert, for instance, canestablish the necessity and relevance of thedocuments to the formulation of opinionsthat the expert will form in a case.From the defense perspective, you canpursue challenges in four different avenues:• Demonstrate that a plaintiff possessedno earning capacity to lose, or it was lessthan claimed;• Demonstrate that the injury sustaineddid not affect a plaintiff’s capacity toearn at all, or it affected the plaintiff lessthan claimed, either because the plaintiffexperienced a less serious injurythan he or she claimed or because it didnot impair his or her faculties or abilityto work as her or she claimed;• Demonstrate that there is no proximate50 ■ For The Defense ■ September 2012cause between the injury and the allegedloss of earning capacity;• Demonstrate that a plaintiff has basedthe values claimed for any potentialdiminution of earning capacity ontoo much speculation or they involvetoo many improbabilities to warrantconsideration.The admissibility of lost company profitsturns largely on the character of an injuredparty’s day-to-day work in his or her business,especially the extent of his or herdirect involvement with productive activity.Discovery to explore regarding a plaintiffindividually includes:• What is the plaintiff’s education, experience,training and work history, particularlyas it relates to the nature of thebusiness at issue?• Could some other member of the companyor a temporary manager have assumedthe plaintiff’s role in the company?• How was the plaintiff involved in thegrowth of the business, procurement ofnew business, and the like?• How did the plaintiff participate inplanning and implementing businessgrowth, and expansion, and did he orshe or the business undertake businessdiversification to address economic orindustry changes?• Was the plaintiff involved in industryassociations or groups related to thebusiness?• Had the plaintiff previously delegatedor depended on other employees to performmanagement tasks essential to thebusiness?• Which specific day-to-day tasks couldthe plaintiff not perform due to theinjury at issue, and which can the plaintiffperform?• Did the plaintiff hire a substitute duringthe period of incapacity?• Does the plaintiff draw a regular salary?• Does the plaintiff track or allocate vacationand sick and personal days similarto a typical employee, or can he orshe otherwise quantify the specific timemissed from work during the period ofdisability?• With accommodations, such as usingthe phone, Skype, or other electroniccommunications, could the plaintiff stillfulfill his or her role in the business fromhome?Discovery to explore regarding plaintiff’sbusiness includes:• Is the business a sub-S corporation?• How long has the company existed?Has it actively engaged in business longenough to establish patterns and trendsregarding profitability, or does its youthmean that the lost profits figures rely onspeculation?• Has the plaintiff contributed to the capital,and if so, how much?• How many employees does the businesshave?• What is the overall company structureand plaintiff’s role within that structure?• Does the plaintiff perform actual servicesthat produce income to the company, oris plaintiff’s role strictly managerial?• Where does the business income comefrom?• Which fluctuating market conditionsare involved in this particular business?• How would you describe the business’smarket sector, industry, customers, geographicparticipation, suppliers, andnecessary raw materials?• How does the business compare to othersimilarly situated business in similarmarkets? Did other businesses lose profitsdue to shared market conditions duringthe period in question? If not, didother businesses succeed by diversifying,seeking new market shares or customers,or by finding capital investments?Also investigate the following nonpartysources for relevant information:• IRS returns for both the individual andthe corporation• Accounting and financial records ofthe corporation held by any nonpartyaccountants or bookkeepers• Licensure records with state or countyagencies, if applicable• Bankruptcy recordsConclusionIn the case example at the beginning of thisarticle, the plaintiff attempted early in discoveryto premise his lost earning capacityclaim on his tax returns before and afterthe accident, which suggested a loss of over$2 million. His attorney’s theory was thatthe plaintiff’s back injury made it impossiblefor the plaintiff to run his businessproperly and it failed.Lost Earning, continued on page 85

Trial TacticsWhat We All CanLearn from the“Broccoli Analogy”By Michael H. Bernstein,John T. Seybertand Betsy BaydalaEffective Useof Analogies inLegal PracticeWhile the most effectiveanalogy is the one thatyour audience remembers,before using an analogy,you should still vetand consider it fully.“Judges and lawyers live on the slippery slope of analogies;they are not supposed to ski to the bottom.” R. Bork, TheTempting of America 169 (1990). This quote from JudgeRobert Bork best sums up lawyers’ relationship withanalogies. We use them often to help makea rhetorical point, but if we take an analogytoo far or use it too often, we maydilute the power. An analogy is “a similaritybetween like features of two things, onwhich a comparison may be based.” RandomHouse Webster’s College Dictionary47 (2d ed. 1999). Analogies are part of alitigator’s arsenal, reducing an abstract orcomplex concept to a simple, commonplaceoccurrence or thing to assist an audiencein understanding a particular point. Everyday lawyers use analogies, comparing caselaw to the facts of their cases, developingarguments based on the practical effect ofthe law, or contrasting a well- developed■ Michael H. Bernstein is a partner, John T.Seybert is special counsel, and Betsy Baydalais an associate of Sedgwick LLP in thefirm’s New York City office. All three aremembers of the firm’s Insurance Divisionand devote their practice to defense of life,health, and disability carriers. Mr.Bernstein is a member of DRI andserves as the chair of health careprogramming for DRI’s Life, Healthand Disability Committee. Mr. Seybertis a member of DRI and its TrialTactics Committee.line of reasoning with a new, developingarea of law. Lawyers use analogies ineach situation to help convey their pointsto their audiences. This article discussesfive questions that every lawyer should askbefore introducing an analogy into his orher argument.“A Broccoli Mandate” vs.“The Broccoli Horrible”Analogies to broccoli played a large rolein one of the U.S. Supreme Court’s recentdecisions, as well as the arguments leadingup to that decision. This analogy servedto make a complicated and controversialissue more “palatable.” Specifically, onJune 28, 2012, the U.S. Supreme Courtdecided one of the most politically chargedconstitutional issues in our nation’s history:whether the 2010 Patient Protectionand Affordable Care Act (Affordable CareAct) individual mandate provision, whichrequires most Americans to purchase ahealth- insurance policy providing “minimalessential” coverage, is constitutional.National Federation of Independent Businessv. Seblius, 132 S. Ct. 2566 (2012); 26U.S.C. §5000A.Two years after the Affordable Care Actwas signed into law, Chief Justice John G.Roberts delivered the U.S. Supreme CourtFor The Defense ■ September 2012 ■ 51

Trial Tactics5–4 majority opinion upholding the individualmandate as constitutional, but notunder Congress’ power to regulate commerce.In delivering the Court’s opinion,Chief Justice Roberts noted that Congresshad never relied on the Commerce Clauseto compel people who are not engagedin commerce to do so by purchasing anunwanted product. 132 S. Ct. at 2586. ChiefThe keyto usinganalogies in litigation is tounderstand the audience,which is always the finalarbiter of a particularanalogy’s effectiveness.Justice Roberts held that the individualmandate was unconstitutional under theCommerce Clause because Congress doesnot have an enumerated power under theConstitution to make decisions for individualswho are sitting on the sidelines ofcommerce and not doing what the governmentwants them to do. He observed thatif the Court found that Congress had suchexpansive power, Congress could then,for example, justify a mandate requiringeveryone to buy broccoli to addressthe nation’s obesity problem. Id. at 2588.This, Chief Justice Roberts said, “is not thecountry the Framers of our Constitutionenvisioned.” Id. at 2589. While the majorityultimately upheld the Affordable CareAct individual mandate as an appropriateexercise of Congress’ power to tax, theCourt found that Congress did not havethe power to regulate inactivity under theCommerce Clause. Therefore, Congresscould not mandate that all Americans buyand eat broccoli to address the nation’s obesityproblem, no matter how serious thatproblem may be.Indeed, even before the Supreme Courtrendered this landmark decision, the broccolianalogy had garnered significant attentionin both the courts and the media. J.B.Stewart, How Broccoli Landed on Supreme52 ■ For The Defense ■ September 2012Court Menu, N.Y. Times, June 13, 2012.Many lawyers believed that if the SupremeCourt struck down the individual mandateas unconstitutional it would largelybe because of the role that broccoli playedin defining the “Obama Care” debate. Id.For weeks, many protestors stood vigil outsidethe Supreme Court with painted signsannouncing “I hate broccoli!” Notably, theword “broccoli” is mentioned a total of 12times in the Supreme Court majority, concurringand dissenting opinions.Clearly, the broccoli analogy made a significantimpression on the Supreme Court,and we cannot overstate the power of thisanalogy in the context of the health-caredebate. It is thus a timely reminder to lawyersthat the right analogy actually canaffect the outcome of a case. Before jumpingon the analogous vegetable bandwagon,however, lawyers should pause to considerthe following five questions to decide whenand how to use an analogy for the best rhetoricaleffect.Does the Analogy Help Simplifya Complicated Issue?The use of an analogy is a powerful andoften necessary device that can help anaudience to understand a complicated legalissue. An effective analogy in litigationbreaks down a complicated legal issue byusing an easily understood example, whichpulls an audience in because the audiencecan then relate to the complex issue basedon a simplified illustration. An analogy isunnecessary, however, when dealing witha readily understood concept. For example,everyone knows that driving whileintoxicated is a dangerous act. Therefore,analogizing this type of driving to playing“Russian roulette” is not a very effectiveargument because an audience doesnot need help understanding the inherentdangers of this activity. Conversely, whenarguing thorny issues involved in motionsfor a protective order against the disclosureof confidential material, an analogysuch as “you can’t put toothpaste back intothe tube” reminds a court in a short, concise,and real-world way that once a confidentialdocument is disclosed without anyjudicial constraints on its redisclosure, thedocument can be disseminated freely, andsimply requiring the other party to returnit later cannot fix the effects.Today, the average American reads atthe eighth- and ninth-grade level. L. Drutman,Is Congress Getting Dumber, or JustMore Plainspoken? Sunlight Foundation(May 21, 2012) http://sunlightfoundation.com/blog/2012/05/21/grade-level-congress/ (last visitedAug. 3, 2012). Congress writes legislationat slightly above a tenth-grade level.Id. In stark contrast, the Constitution,which addressed the limited enumeratedpowers of the federal government, waswritten in 1787 at a 17.8-grade level. Id. Itshould, therefore, come as no surprise thatwhen the constitutionality of the AffordableCare Act individual mandate provisionwas challenged, the Supreme Court had toexplain the resulting ruling on this sophisticatedconstitutional law question with avegetable analogy.As Chief Justice Roberts admitted,“the path of [the Supreme Court’s] CommerceClause decisions has not always runsmooth.” In analyzing whether Congresshad the authority to enact the individualmandate provision under the CommerceClause, the Supreme Court necessarily hadto determine whether Congress sought toregulate activities that “have a substantialeffect on interstate commerce.” 132S. Ct. at 2585. Given the complexity ofthis constitutional law issue and the noveltyof Congress’ use of this power, analogizingthe individual mandate, whichcompels individuals not engaged in thehealth-care marketplace to purchase healthinsurance, to Congress forcing everyone tobuy and eat broccoli, effectively illustratedthe Court’s concern about the ramificationsof upholding the individual mandateunder the Commerce Clause. Indeed,“[e]ven those who reject[ed] the broccoliargument appreciate[d] its simplicity.” SeeStewart, supra. Thus, the analogy workedand helped simplify a complicated issue.Will an Audience Understandthe Analogy?An analogy is only effective if your audienceunderstands it. A lawyer will generallybecome immersed in a case and intimatelyunderstand all of its strengths and weaknesses.During a trial, an effective litigatoris one who can communicate that understandingto a jury in a simple and concisemanner. For example, a lawyer may analogizethe heart to a circulating pump in a

medical malpractice case so that a jury canunderstand the heart’s primary function.The key to using analogies in litigation is tounderstand the audience, which is alwaysthe final arbiter of a particular analogy’seffectiveness.In the case of the Affordable Care Act,the Supreme Court understood that whilethe litigants’ arguments as well as theCourt’s decision directly concerned theparties, the ultimate audience was the citizensof the United States. As Chief JusticeRoberts stated in his opinion, “[i]t isnot [the Supreme Court’s] job to protectthe people from the consequences of theirpolitical choices.” 132 S. Ct. at 2579. Thus,the Supreme Court, in deciding the constitutionalityof the Affordable Care Actindividual mandate, needed to explainthe decision to the average member of itstrue audience, who has a reading level ator below that of a ninth grader. Drutman,supra.Everyone in America understands thesymbolism of the broccoli analogy andwhat it means to be forced to buy somethingthey don’t want. This was nowherebetter stated than by former PresidentGeorge H.W. Bush, who famously declaredafter his election to the presidency: “I donot like broccoli and I haven’t liked it sinceI was a little kid and my mother made meeat it. And I’m president of the United Statesand I’m not going to eat any more broccoli.”See http://en.wikiquote.org/wiki/George_H._W._Bush (last visited July 3, 2012). WhetherPresident Bush was simply commenting onhis distaste for broccoli or making a largerobservation about the “perks” that comewith achieving high office does not reallymatter. The point here is that the broccolianalogy was easily understood by everyonegiven the widespread attention this commentreceived at the time. Fast forward tothe recent Supreme Court decision on theconstitutionality of the Affordable CareAct and we can see that the broccoli analogyhas lost none of its rhetorical power.The broccoli analogy—not the pertinent“substantial effect on interstate commerce”test—spurred the fiery national debate overwhether the individual mandate in the actwas constitutional because everyone couldunderstand the implications of a Congressempowered to force Americans to buy andeat broccoli. See Stewart, supra. See alsoH.J. Geiger & R. Lempert, The Health Careand Broccoli Analogy, N.Y Times Letters tothe Editor, June 16, 2012.Even lower federal courts have a tendencyto explain how they have resolvedcomplicated legal questions by using simpleanalogies. For example, in United Statesv. Lowis, 174 F.3d 881 (7th Cir. 1999), theU.S. Court of Appeals for the Seventh Circuitexplained that prejudicial witness testimonyheard during a trial could not becured by simply telling jury members toforget what the members had heard. Inother words, the Seventh Circuit explainedthat the court could not just “unring thebell.” Id. at 885. The court further observedthat “if you throw a skunk into the jurybox, you can’t instruct the jury not to smellit.” Id. Both analogies paint a colorful picturedemonstrating that once a jury hearsthe harmful testimony, the jury’s memoriesof it cannot be erased. These analogiessuccessfully presented the difficulty ofthe legal situation in a real-world, practicalway. Moreover, they explained why courtsneed to act before a jury hears prejudicialtestimony during a trial.While most people can understandthese analogies, a lawyer should considerwhether an audience will understand analogiesbased on the lawyer’s own personalexperiences. Using golf analogies may notreach people who do not play the game.For example, not everyone on a jury mayunderstand a reference to a “mulligan” asa do-over, and in fact, it may backfire if jurorsinterpret the reference as elitist. But ifa litigator knows that a particular judge isan avid golfer, arguing that there are “nomulligans in litigation” may be an effectiveanalogy to use in arguing for issue preclusionor res judicata.Does the Analogy Further Your Theme?An effective analogy illustrates and reinforcesthe theme of a case. The backdrop tothe Affordable Care Act is the rising costof health care borne almost entirely byfederal and state governments and thoseAmericans who have purchased privatehealth insurance. In other words, uninsuredAmericans do not bear the cost ofincreasing medical costs, which unfairlyburdens those who do have health insurance.Despite this problem, Chief JusticeRoberts was concerned that upholdingthe Affordable Care Act individual mandateprovision under the Commerce Clausewould give Congress a license to “justify amandatory purchase to solve almost anyproblem.” 132 S. Ct. at 2588.In illustrating what Chief Justice Robertsconsidered a novel act by Congressunder the Commerce Clause, the broccolianalogy was effective not only because itsimplified a complicated constitutionallaw issue but also because it related to thetheme of rising health-care costs. Chief JusticeRoberts explained that a large group ofAmericans do not eat a healthy, balanceddiet, and that group’s failure to maintaina healthy diet increases health-care costs.These increased costs are then borne, inpart, by other healthy Americans who areforced to pay more for their own insuranceor health care. Chief Justice Robertsobserved that if Congress had the power torequire everyone to buy health insurance,it could also address the diet problem byordering everyone to buy and eat vegetables,such as broccoli.During the “Obama Care” debate, otherexamples of Congress’ purported authorityto “regulate inactivity” were tossed about,including forcing Americans to buy certaincars, dishwashers, or refrigerators. Forexample, Chief Justice Roberts also analogizedthe individual mandate to Congresspassing legislation mandating thatall Americans purchase a car to addresstheir need for transportation. Id. at 2591.Nonetheless, it was the analogy to broccoli,a controversial but universally recognized“healthy” food, which garnered themost attention due to its relationship to thegeneral debate over the overall health of thecitizenry and how to pay for the citizenry’shealth care. So this analogy was perfect forthe question posed and certainly helpedfurther the theme.Similar to the broccoli analogy in therecent Supreme Court decision, an analogymust fit the overall theme of a trial or anargument. For example, in trying to portraya company that took inadequate stepsto correct a retaining wall before it collapsedand caused damage to surroundingproperties, you might analogize thecompany’s steps to placing a “band aid”on the problem. Or, if the company intervenedtoo late, it could become the equivalentof “closing the barn door after theFor The Defense ■ September 2012 ■ 53

Trial Tacticshorse already escaped.” Depending on thesituation, one analogy might fit the overalltheme better than the other. But bothconvey a similar notion in simple, practicaland real-world terms.Lawyers developing an overall theme,and an analogy to use with it should considerreviewing the relevant pattern juryinstructions applicable to their cases. AOne of the biggestrisksof using an analogyis the possibility thatthe analogy relies onincorrect assumptions.plaintiff’s attorney needs to have a themeconsistent with all of the elements that theplaintiff’s side must prove for each cause ofaction alleged. A defendant’s attorney mayhave a simpler time identifying an analogyif he or she has a handful of interrelateddefenses. For example, with a defensebased on limitation of actions and laches,either in a statute or a contract, using aticking clock analogy demonstrates a senseof urgency and delay on the part of a plaintiffin initiating the action.Will the Analogy SurviveAttacks by Your Opponent?Every lawyer’s job is to find the weaknessesin his or her opponent’s case. Sinceanalogies by nature do not contain identicalfacts to those in a case, your opponentalways has an opportunity to underminethe effectiveness of an analogy by notingfactual distinctions or exceptions. Thus, aneffective analogy must withstand such collateralattacks.In this regard, proponents of the AffordableCare Act and the individual mandatevigorously attacked the broccoli analogy.Indeed, one commentator ominously statedthat the broccoli analogy’s “use by theSupreme Court bodes ill for us all.” H.J.Geiger, The Health Care and Broccoli Analogy,N.Y. Times Letter to the Editor, June16, 2012. When arguing before the Supreme54 ■ For The Defense ■ September 2012Court, the government urged the court tosustain the individual mandate under theCommerce Clause, notwithstanding concernsthat it basically amounted to “regulatinginactivity” because of the uniquenessof the health- insurance market. Accordingto the government, upholding the individualmandate would not result in empoweringCongress to order people to purchasebroccoli because someone purchased broccolifor his or her own sake individually,while mandating health- insurance purchasingguaranteed the stability of thehealth-care marketplace as a whole. ChiefJustice Roberts rejected this exception tothe broccoli analogy because someone alsopurchased health insurance for his or her“own sake,” to cover the need for medicalcare, just as someone purchased broccolito cover his or her need for “healthy” food.132 S. Ct. at 2591.In her concurrence, Justice Ruth BaderGinsburg disagreed with the majority holdingthat the individual mandate was aninappropriate exercise of Congressionalpower under the Commerce Clause. Rather,Justice Ginsburg agreed with the government,finding an exception to the broccolianalogy based on the “unique attributes ofthe health-care market”:The inevitable yet unpredictable needfor medical care and the guarantee thatemergency care will be provided whenrequired are conditions nonexistent inother markets. That is so of the marketfor… broccoli… Although an individualmight buy… a crown of broccoli one day,there is no certainty she will ever do so.And if she eventually… has a craving forbroccoli, she will be obliged to pay at thecounter before receiving the… nourishment.She will get no free… food, at theexpense of another consumer forced topay an inflated price.132 S. Ct. at 2619–20 (Ginsburg, J.,concurring).Because virtually every American willneed medical care at some point in his orher life, Justice Ginsburg concluded thatthe individual mandate did not compelindividuals to purchase an unwanted product.Rather, Justice Ginsburg viewed theindividual mandate as a requirement thatpeople pay for medical care in advance—through the purchase of insurance—andthat Congress’ mandate simply establishedthe payment terms for the inevitableconsumption of medical care, whichshe found affects interstate commerceand was “quintessential economic regulationwell within Congress’ domain.” Id.at 2620. Therefore, Justice Ginsburg foundChief Justice Robert’s concern that Congress’would have unlimited power underthe Commerce Clause if the Court upheldthe individual mandate under this clause“unfounded.” Id. at 2623. In doing so, shedubbed Chief Justice Robert’s analogy “thebroccoli horrible.” Id. at 2624. Justice Ginsburgconcluded that “[w]hen contemplatedin its extreme, almost any power looks dangerous,”and Chief Justice Robert’s “hypotheticaland unreal possibility” of “thebroccoli horrible” involved “specious logic”in denying Congress the power to enact theindividual mandate. Id. at 2625.In response, Chief Justice Roberts rejectedJustice Ginsburg’s inevitable consumptionof health-care exception to thebroccoli analogy on the grounds that virtuallyevery American also would participatein the food- purchasing market. Accordingto Chief Justice Roberts, such inevitabilitydid not authorize Congress to enacta mandate requiring people to purchase aparticular food product in the market todaybecause “[t]he Commerce Clause is nota general license to regulate an individualfrom cradle to grave, simply because he willpredictably engage in particular transactions.”Id. at 2591. The dissenting opinion,which acknowledged Justice Ginsburg’s exceptionsto the broccoli analogy as “a verygood argument,” noted that “those differencesdo not show that the failure to enterthe health- insurance market, unlike thefailure to buy… broccoli, is an activity thatCongress can “regulate.”” 132 S. Ct. at 2650(Scalia, Kennedy, Thomas, and Alito, J.J.,dissenting). Fatal to Justice Ginsburg’s exceptionto the broccoli analogy, therefore,was her dismissal of the conclusion thatCongress would have the power to compelindividuals into the health-care market,which would also then empower Congressto compel individuals into other markets,such as the food (and the broccoli) market.In some cases, such as this recentSupreme Court case, an analogy can windup taking over the argument on the merits.One of the biggest risks of using an analogyis the possibility that the analogy relies on

incorrect assumptions. An adversary canthen undermine the credibility of an opponent’scase just by pointing out the flaws inan improperly drawn analogy. One recentbook recounts U.S. Supreme Court JusticeLouis Brandeis’s consideration of ananalogy to illustrate a point and his eventualdecision against using it when his lawclerk, Hon. Henry Friendly, pointed outits flaw. David M. Dorsen, Henry Friendly,Greatest Judge of His Era 30 (2012). In Olmsteadv. United States, 277 U.S. 438 (1928),the majority found that the government’sinsertion of wires into listening devicesoutside the house of a suspected criminaldid not amount to an invasion of privacybecause it did not involve trespassingon the property. In preparing his ferventdissent, Justice Brandeis sought to demonstratethe danger of this ruling by analogizingthe government’s ability to listento conversations over a telephone to thenext phase of technology—the television.In a draft version of Justice Brandeis’s dissent,he argued that the majority opinionin Olmstead would also allow the governmentto peer into citizens’ homes throughtheir televisions. While this argument mayseem comical today, the opinion was writtenin 1928 when people did not yet understandthe properties of television well. Butbefore publishing his dissent, both JusticeBrandeis and his law clerk fully vetted thepotential flaws in this analogy and decidedagainst using it. Dorsen, supra, at 30.Will the Analogy Carry the Day?As the New York Times pointed out, theSupreme Court was not the first to usethe broccoli analogy in the health-caredebate: “The vegetable trail leads backwardthrough conservative media and pundits.”Stewart, supra. Although extremelyclever, the broccoli analogy did not answerthe entire question of the constitutionalityof the individual mandate. As a result, thebroccoli analogy, which was persuasive inillustrating the unconstitutionality of theindividual mandate under the CommerceClause, became futile when the Chief Justiceadopted an alternative, less straightforward,meaning of the individual mandate:namely, that it was merely a permissibletax that fell within Congress’s enumeratedpower to “lay and collect taxes.” 132 S. Ct.at 2593. Chief Justice Roberts, therefore,analogized the individual mandate “tax”on someone’s failure to purchase healthinsurance to a tax on the retail price of cigarettes,which seeks to influence peopleto quit smoking. Id. at 2598. The ultimateSupreme Court ruling supporting the constitutionalityof the individual mandateunder Congress’ enumerated taxing power,therefore, raises another important consideration:does the analogy lead a decisionmaker to the desired result?Many times an analogy will only take alitigator halfway home. For example, Courtsanalogize the dissolution of a legal corporationto the death of a person. See Commissionerof Internal Revenue v. Henry Hess Co.,210 F.3d 553, 557 (9th Cir. 1954) (“Once acorporation has dissolved, its position is inmany ways analogous to that of a dead person.”).But unlike a person who is actuallydead, a corporation may continue businesslong after it has dissolved. Cf. Stearns Coal& Lumber Co. v. Van Winkle, 221 F. 590,594 (6th Cir. 1915). Thus, in the context ofEngineers, Architects, Scientists & Fire InvestigatorsStructural EngineeringMark R. Duckett, P.E., S.I.mduckett@robsonforensic.com800.631.6605NY Labor LawRobert J. O’Connor, P.E.roconnor@robsonforensic.com516.742.6288Construction ManagementGregory H. Pestine, P.E.gpestine@robsonforensic.com800.813.6736Construction SchedulingMichael D. Klein, P.E., CHMMmklein@robsonforensic.com843.722.0119liability under the Comprehensive EnvironmentalResponse, Compensation, andLiability Act (CERCLA), many courts haveruled that being “dead” is not enough: corporationmust be “dead and buried.” UnitedStates v. SCA Services Of Indiana, Inc., 837F. Supp. 946, 954–55 (N.D. Ind. 1993); ChesapeakeAnd Potomac Tel. Co. of Va. v. PeckIron & Metal Co., Inc., 814 F. Supp. 1285,1292 (E.D. Va. 1993); Bancamerica Comm.Corp. v. Mosher Steel of Kansas, Inc., No.90-2325-V, 1992 WL 81983, at *3 (D. Kan.Mar. 12, 1992). Accordingly, while analogizingthe dissolution of a corporation to adeath may be colorful and even somewhatuseful, the analogy may not suffice to winthe day fully.Nance v. United States, 92 Fed. Cl. 41(Fed. Cir. 2010), offers another exampleof this situation. The case involved anuntimely action brought by the formerowners of coal mines who alleged that thegovernment improperly took the mines.Analogies, continued on page 89With 175 experts at one firm, Robson Forensic provides extensive experiencein construction claims and injuries. Visit us online for CVs and expert bios.www.robsonforensic.com | 800.813.6736For The Defense ■ September 2012 ■ 55

Trial TacticsDon’t Blame the SystemThe Myth of“One Truth”By Sidney K. Kanazawaand Patricia L. VictoryThe science of how wepaint our individualrealities, and thelawyer’s art of bringingpeople together.The legal myth of “one truth” has led us astray. Accordingto the myth, litigation and trials are a search for “onetruth.” But if there is only “one truth,” why do we need 12people to find that “one truth” and why are we satisfied ifonly nine agree on “one truth”? More interestingly,how can we expect 12 lay people—ina matter of days—to find this “onetruth” when that “one truth” eluded theopposing lawyers for years in pretrial discoveryand continues to elude them at trial?If there is only “one truth,” why is the sameproduct (with the same design, same documents,same witnesses, and nearly identicaljury instructions) sometimes founddefective and sometimes not? And if oursystem is designed to find “one truth,” whyis it so error- prone? In the breast implantlitigation, after several plaintiff verdicts,the bankruptcy of a major silicone manufacturer,and the creation of a multi- billiondollar settlement fund, several highlyrespected epidemiological studies andseveral judicially appointed expert panelsconclusively found no causal connectionbetween the silicone breast implants andthe autoimmune diseases that they allegedlycaused. On the criminal side, DNAevidence has exonerated nearly 300 people(17 on death row) who were convictedbeyond a reasonable doubt and there havebeen more than 600 other people exoneratedwithout DNA evidence in the last fewyears. Even on the appellate level, the U.S.Supreme Court has a long list of 5–4 decisions.If there is only “one truth” why can’tthe highest justices in our land agree onthat “one truth”?Is our system broken?No. The myth is false. There is no “onetruth.”Different RealitiesWe are all different and do not see andexperience the world identically. Each ofus sees the world through lenses groundedby our own life stories. A color-blind personperceives the environment differentlythan one who can see colors. A seasonedhunter notices small marks in the dirt, disruptionsof leaves, and faint smells in theair that may be completely unnoticed bya novice hunter. Even people with similar56 ■ For The Defense ■ September 2012■ Patricia L. Victory and Sidney K. Kanazawa are based in the Los Angeles office of McGuireWoods LLP andappear regularly in state and federal courts throughout California and occasionally outside of California. Ms.Victory is from Tucson, Arizona, and is admitted to practice in California and Arizona. Mr. Kanazawa is fromHonolulu, Hawaii, and is admitted to practice in California and Hawaii. He is also a past chair of the DRI TrialTactics Committee.

ackgrounds may interpret what they seeand hear in unique ways. Two small townstudents may enter a major state universityand feel completely different about theexperience. One may feel intimidated bythe size and anonymity. The other may feelfree from the prying eyes and strict moresof small town life.Stories Paint the IndividualRealities We Believe and SeeFrom the beginning of time, stories havegiven us a convenient feeling of control overan otherwise random environment. It feelsgood to be certain. In ancient Greece, storiesof fights between gods and mortal menexplained the scary sounds of thunder. Inprimitive societies, ritual sacrifices werethought necessary to appease the gods andcontrol rain, harvests, and other phenomena.In Pacific island communities, fertilitywas thought to be influenced by touchingcertain phallic shaped rocks. With theperiodic birth of children of certain sexes,the mythical power of these objects andthe stories accompanying them were reinforcedand retold with increasing authority.But no one stopped to measure how manytimes touching a rock resulted in pregnancyor the failure to touch rock resultedin no pregnancy. Like Pavlov’s dog, occasionalreinforcement of the story was sufficientto sustain belief in the story. Whatsocial scientists call “confirmation bias”caused believers to look for and rememberonly those instances supporting the storyand forget those instances when the connectionwas not evident.Invisible GorillaThe power of stories to frame and limitwhat we see has been established in a numberof laboratory and field experiments. Inone such experiment, two scientists at Harvardset up an experiment in which studentswith white shirts and black shirtspassed basketballs to each other and movedaround. The scene was videoed and observerswere asked to count how many timesthe white shirt students (and not the blackshirt students) passed the basketball.As the white shirt and black shirt studentsmoved and passed the basketball, astudent in a black gorilla suit walked intothe middle of the scene, turned to the camera,beat her chest, and walked off camera.The entire gorilla sequence took nineseconds.After viewing the video, viewers wereasked how many times the white shirtstudents passed the basketball. The viewerswere then asked whether they saw thegorilla. Fully 50 percent of those viewingthis basketball passing video did notsee the gorilla. When shown the videoagain, many were convinced the video waschanged. Christopher Chabris and DanielSimons, “The Invisible Gorilla: HowOur Intuitions Deceive Us” (2009); see alsohttp://www.theinvisiblegorilla.com/.Significance to CourtsConsistent with this and other recent socialscience research, the Innocence Projecthttp://www.innocenceproject.org/ and ExonerationProject http://www.exonerationproject.org/#!home/mainPage have demonstrated thatjudges and jurors are equally subject to theillusions of attention/perception, memory,confidence, knowledge, and causation as describedin the Invisible Gorilla. The exonerationfrom wrongful convictions beyonda reasonable doubt of more than 800 people,17 of them while waiting on death row,has shaken our intuitive belief in confidenteyewitness testimony. Writing for a unanimousNew Jersey Supreme Court, Chief JusticeRabner, with the assistance of a SpecialMaster, extensively examined recent scientificresearch on perception and memoryand observed that “eyewitness ‘[m]is identifica tion is widely recognized as the singlegreatest cause of wrongful convictions inthis country.” State v. Henderson, 208 N.J.208, 231 (2011). While “eyewitnesses generallyact in good faith” “human memory ismalleable.” Id. at 234. The court recognizedthat “there is almost nothing more convincing[to a jury] than a live human being whotakes the stand, points a finger at the defendant,and says ‘That’s the one!’” Id. at237. But the court found that “[r]e cent studies—rangingfrom analysis of actual policelineups, to laboratory experiments, to DNAexonerations—prove that the possibility ofmistaken identification is real, and the consequencessevere.” Id. “We are convincedfrom the scientific evidence in the recordthat memory is malleable, and that an arrayof variables can affect and dilute memoryand lead to misidentifications.” Id. at 218,see also Jennifer Thompson- Cannino, RonaldCotton, Erin Torneo, “Picking Cotton:Our Memoir of Injustice and Redemption”(2009) (A very confident Jennifer Thompsonidentified and convicted Ronald Cotton forrape twice only to learn years later throughDNA evidence that Ronald Cotton was innocentand not the perpetrator of the crimeagainst her.); http://www.cbsnews.com/2100-18560_162-4848039.html.How can we expect12lay people—in a matterof days—to find this “onetruth” when that “onetruth” eluded the opposinglawyers for years in pretrialdiscovery and continuesto elude them at trial?Rethinking Unconscious FeelingsThe revelations of DNA evidence and theacknowledged fallibility of eyewitness testimonyhave been accompanied by newinsights about our brains derived fromfunctional magnetic resonance imaging(fMRI). Since the 1990s, scientist usingfMRI tools have peered into the unconsciousprocesses of our brains and revisedour thinking about human decisionmaking.Western philosophers have generallyassumed humans are logical creatureswho are sometimes led astray by emotion.This has sometimes been characterized asthe battle between good and evil. Recentscientific investigations suggest a moreintegrated relationship, with our unconsciousfeelings playing a larger role in dictatingwhat we see and decide.In Jonah Lehrer’s 2009 book, “How WeDecide,” he describes how quarterbackTom Brady throwing a critical Super Bowlpass, pilots avoiding a crash, radar operatorsdistinguishing between a hostileincoming missile and friendly low flyingair craft, firefighters surviving a firestorm,and other individuals forced to make split-For The Defense ■ September 2012 ■ 57

Trial Tacticssecond decisions commonly cannot rationallyexplain their decisions other thanthat they had a feeling. These anecdotalexamples and more extensive studies haveshown that the human brain has a remarkableability to learn from trial and error,improve itself, and express complex instantaneouscalculations in feelings. When thepart of the brain controlling emotions isOur legal system doesnot have the luxury ofresearch, experimentation,and time to find “one truth.”removed due to injury, scientist found thesubject still capable of rationally evaluatingchoices but incapable of choosing. Andin evaluating mass- murder sociopaths, scientistshave found a consistent absence ofemotional response in these individuals.They are very rational but show no feelingsof compassion, empathy, guilt, shame,or embarrassment. With the help of fMRItechnology, scientists have found activity inthe prefrontal cortex of the brain supportsthis external picture of unconscious feelingsmodulating rational decision- making.Leonard Mlodinow in his 2012 book,Subliminal: How Your Unconscious MindRules Your Behavior, expands on this “newscience of the unconscious” and describeshow our brains create “truth” with alawyer- like “confirmation bias” that drawson our pre- conceived feelings to cause us tosee what we want to see:As the psychologist Jonathan Haidt putit, there are two ways to get at the truth:the way of the scientist and the way ofthe lawyer. Scientists gather evidence,look for regularities, form theories explainingtheir observations, and testthem. Attorneys begin with a conclusionthey want to convince others of and thenseek evidence that supports it, while alsoattempting to discredit evidence thatdoesn’t. The human mind is designed tobe both a scientist and an attorney, botha conscious seeker of objective truth andan unconscious, impassioned advocate58 ■ For The Defense ■ September 2012for what we want to believe. Togetherthese approaches vie to create our worldview….As it turns out, the brain is adecent scientist but an absolutely outstandinglawyer.Leonard Mlodinov, “Subliminal: How YourUnconscious Mind Rules Your Behavior,”5, 200 (2012).Like the Invisible Gorilla example above,our feeling and the stories in our head providea preconceived map of what we expectto see—white shirts passing—which causesus to look for only those things in the environmentthat confirm our map and to disregardand not even see those things thatcontradict our map, e.g., a gorilla in themiddle of the screen.Unconscious Feelings CreateNatural PolarizationPolarization of the truth we choose tosee should come as no surprise. Researchand observations described in Mlodinov’sbook demonstrate our natural tendencyto categorizes the world we see. We groupthings as “animals” or “plants,” furnitureas “antique” or “unfinished,” and peopleas “enemy” or “boring.” Much of this categorizationis unconscious. Even whenwe think we are unbiased, our decisionmakingand actions often belie this beliefand we instantly create stories to “fill-inthe-blanks”about situations, things, andpeople about which we have little information.Saying a person is a lawyer, professionalathlete, public school teacher,Republican, Southerner, Californian,immigrant, or Canadian instantly conjuresa framework of pictures and judgmentsabout the person’s appearance, ethnicity,income, and intellectual capacity thatcauses us to be surprised or not surprisedwhen we meet the person and can testwhether they measure up to our imaginedprofile. See Arin N. Reeves, The NextIQ: The Next Level of Intelligence for 21stCentury Leaders, (2012) (Dr. Reeves uses“crowd sourcing” and other recent socialscience research to explain how diversityand inclusion avoids unconscious bias andgroup blindness.). In 1998, three scientists—TonyGreenwald, Mahzarin Banaji,and Brian Nosek—collaborated to developa test of this unconscious bias—“ImplicitAssociation Test” (“IAT”)—and found suchstereotyping to be the rule rather than theexception. Leonard Mlodinov, Subliminal:How Your Unconscious Mind Rules YourBehavior, at 153–57. You can test your ownunconscious bias at https://implicit.harvard.edu/implicit/. Our unconscious feelings colorour categorizations and polarize our separateviewpoints. Our different life storiesand feelings drive different visions of theworld and “truth” we see.Unconscious Feelings AreDerived from Group IdentityMlodinov notes that the subliminal feelingsinfluencing our worldview andunconscious decision- making are greatlyinfluenced by our sense of group membership.He recounts an interesting studyinvolving Asian American women at Harvardwho were given a difficult math test.As Asian women, the subjects were ostensiblya part of two in-groups with conflictingnorms: Asians, a group typicallythought to be good at math, and women,a group commonly thought to be poor atmath. Before taking the test, one-third ofthe group were given a questionnaire abouttheir families to trigger the group’s Asianidentity. One-third were asked about coeddormitory policies to trigger their identityas women. And one-third were asked questionabout their phone and cable service (acontrol) and given the test. While all of thesubjects indicated the questionnaires hadno effect on them, the group manipulatedto think about their Asian identity did thebest, the control group was second, and thewomen identity group did worse. Apparently,how the women viewed themselvesaffected their confidence in their intuitionsand choices during the math exam.Id. at 169–70.Group Identity Binds and BlindsBreaking from the mental biases of ourgroup is difficult. Since the lawyer in ourmind does an outstanding job using confirmationbias to pick out from reality onlythose things consistent with our unconsciousfeelings (and discounts and ignoreseverything contradicting that feeling),there is little opportunity to change mindsonce we identify with a group unless wecan find a way to alter, augment, or join aperson’s group identity.Jonathan Haidt, in his 2012 book, TheRighteous Mind: Why Good People Are

Divided by Politics and Religion, expandson these thoughts at length and notes theimportance of sincerely embracing another’sperspective before being able to understandand change their point of view.If you really want to change someone’smind on a moral or political matter,you’ll need to see things from that person’sangle as well as your own. And ifyou do truly see it the other person’sway—deeply and intuitively—you mighteven find your own mind opening inresponse. Empathy is an antidote torighteousness, although it is very difficultto empathize across a moral divide.Jonathan Haidt, The Righteous Mind: WhyGood People Are Divided by Politics andReligion, 57 (2012); see also http://www.yourmorals.org/.Haidt praises the brilliant insights ofDale Carnegie in his classic book, How toWin Friends and Influence People, because iturges readers to avoid direct confrontationsand instead engage in respectful, warm, andopen dialogue (“begin in a friendly way,”“smile,” “be a good listener,” and “never say‘you’re wrong’”). As Haidt points out, ourgroupings generate trust within our groupbut also create a distrust of those we viewas outside of our group. The morality of thegroup both “binds and blinds.”Significance to LawyersBy accepting that we each see and derivedifferent meanings from the same stimulus,we can appreciate the commentof anarchist Dick the Butcher in Shakespeare’sHenry VI, “The first thing we do,let’s kill all the lawyers.” With just wordsas tools, lawyers daily pry us from our separategroup identities (employee, employer,consumer, parent, crime victim, insider,outsider, etc.) to remind us of our jointmembership in a common societal groupthat believes in consistent justice and fairnessfor all. We can trust. We can collaborate.And we can build together because ofthis unifying foundation of fairness craftedand maintained by lawyers. The violent andselfish darkness promoted by anarchistslike Dick the Butcher cannot be quelledby just a coercive police or military presence.That would simply replace one darknessfor another. Only a belief—nurturedby lawyers—in a common flame of justiceand fairness can push back the darkness.Killing the lawyers kills the glow and reachof our common sense of justice and fairnessfor all and thereby loosens the bondsbetween us. When we no longer feel a commonalityit is easy to separate from anddemonize others.Art of LawyeringKeeping the flame of justice and fairnessbright is an art, not a science. Unlike science,law is a practical art that imperfectlyfashions fair solutions now so that we—asa tribe—can live together and move forwardwithout killing each other or permanentlydividing our tribe. Our legal systemdoes not have the luxury of research, experimentation,and time to find “one truth.”Nor do we have the patience to obtain completeconsensus in every matter dividingus. When a dispute is brewing, we need asolution—now. We cannot wait years andcenturies to craft “one truth” or gain universalagreement about that “one truth.”We must deal with the realities of themoment—we each have different life storiesthat have molded our feelings, whichin turn dictate the reality we create and seethrough lawyer- like confirmation bias. Weare not seeing the same reality, but lawyersmust somehow bridge that divide.Think about what we really do. We talkabout fighting and going to war against ouropponents. Clients talk about wanting themeanest and most uncompromising SOB todestroy the other side. And we describe ouractivities in litigation as battles in whichwe seek to kill our adversaries. But in reality,we do not kill anyone. We use words.We persuade. We cajole. We enlighten. Weinspire. And we ultimately find agreementwith the other side and settle 98 percent ofthe cases filed. Even with respect to the twopercent of cases that go to trial, experiencedtrial lawyers know they are seeking agreementand approval by the court or jury. Itis not a war. Berating, embarrassing, orundercutting the opposition is not enoughand is not persuasive. We are not soldiers.No matter how much we overspend andoverpower our opponent, if our positionlacks credibility, justice, and fairness wewill not find agreement and we will lose.In short, we—unconsciously—arefocused on the root of the divide betweenus. When we are successful, at somepoint—in our negotiations with opponentsor our presentations to judges and juries—we establish enough credibility for ouropponent or the trier of fact to trust us.For at least a brief moment, we become apart of one of our opponent’s or the trier offacts’ identity group (e.g., American, fairminded,compassionate, believable, officerof the court, etc.). We are sufficiently“like” them in some small way for them toWhiteboardsand apologiesdemonstrate an art oflawyering that is consistentwith the recent scienceof how our unconsciousfeelings guide our decisions.feel safe listening to us and opening theirminds to our ideas.Indeed, this is the essence of our profession.We use our credibility to bring peopletogether—not divide them. We stepbeyond our client’s group to remind allof the parties of what we have in common.Transactional lawyers collaborate tocraft integrated stories in the present thatbuild to a compatible story in the future.Litigators use facts from the past to build astory in the present that allows the partiesto step out of the past. People need not viewor interpret every detail of the story identically.Lawyers artfully create enough agreement—withopponents or with a judge orjury—to allow us to move forward together.Our skill at creating stories that bring peopletogether is the reason why anarchistDick the Butcher would say, “The first thingwe do, let’s kill all the lawyers.” We are theprimary obstacle to anarchy. We createcommon stories—common visions of reality—thatkeep us together.Whiteboards as a PhysicalDemonstration of the Art of LawyeringWhiteboards are a convenient illustrationof the art of lawyering.At an all-day-all-night settlement conference,we finally came to an agreementFor The Defense ■ September 2012 ■ 59

Trial Tacticson key settlement terms in a major classaction involving attorneys who had beenacrimoniously at war with each other foryears. There was no love, no respect, andno trust among the attorneys. The disdainand vitriol for others ignited the airof the settlement conference and burnedthe mediator as he shuttled between theparties, desperately looking for at least onemoderate among polarized true- believersin each camp.Near midnight, the mediator pulledtogether a small group willing to listen tosomeone other than themselves and theircomrades in arms. On a sheet of paperhe outlined a compromise on incompleteterms.Money and a few key terms were agreedupon and sold to the respective campsafter several more hours of heated debateand discussion. In the cool of the earlymorning, there were actually a few smiles.A few handshakes. A few kind words forthe other side. The parties thought theyhad a settlement, except for a few minorterms that needed further discussion andconsideration.For the next three months, heatede-mails, telephone calls, and conferencecalls, with and without the mediator,stoked the flames of the dispute back intoan inferno. Every “minor term” became agoal-line-stand among entrenched opponentswho refused to give an inch.Finally, during a holiday week betweenChristmas and New Year’s, all of theattorneys and principals converged in alarge conference room—traveling fromHawaii and New York and many parts inbetween—for a meeting to hammer out thefinal terms of the settlement.Within an hour, all of the terms wereagreed upon.The secret? A floor to ceiling whiteboardin the conference room that outlined all ofthe terms for all to see.In an oil spill that closed the Port of LosAngeles for five days and contaminatedseven miles of shoreline and thousandsof pilings, more than 2,000 claims arosefrom individuals and commercial entitiesfor damages and losses suffered as a resultof this spill.Within three days of the spill, an outdoormeeting was convened at one of piers.People were angry. Blobs of black goo was60 ■ For The Defense ■ September 2012everywhere in the Port. People gatheredhours before the meeting commiseratingand collectively pumping up their fury. Agroup gathered contact information fromthose present to commence a mass actionagainst the stupid foreign shipping companythat caused this mess.As the meeting started, the vocal angerof the crowd could not be contained. Peopleshouted and demanded answers. Then,a fellow at the back of the crowd stood andyelled, “We don’t give a damn about any ofthis. Where is my money!” At that, a womansitting in the front row who had been collectingcontact information for a mass actionagainst the shipping company, stoodup, turned to the back of the crowd, andshouted, “Sit down and shut up! These guysare trying to help.” And with that comment,the group organizing against the ship ownerbecame a liaison with all of the claimants.600 claims were settled and paid within twoweeks of the spill and all 2,000-plus claimswere settled and paid within three monthsof the spill—with only one small claims actionbeing filed as a result of this spill.The secret? A whiteboard used duringthe course of the meeting to record all ofthe claimants’ complaints and suggestions.In a heated union recognition meeting,disgruntled drivers crowded into a conferenceroom to hear why they should notsign union cards to create a union to fighton their behalf against management. Thepresident of the company was late, whichfurther angered the crowd. The delayedmeeting commenced and multiple grievanceswere raised.But in the end, despite the growlingmeeting and a month-long picket, the driversrejected the union.The secret? A whiteboard used duringthe driver meeting that recorded all ofthe drivers’ grievances and some possiblesolutions.Visual Message of UnityWhy did whiteboards make such a differencein resolving the heated differencesin each of the foregoing cases? How didthe whiteboard bring people together?What was on the whiteboard that madethe difference?In each case, the whiteboard serveda very simple but critical function. Theunfiltered physical display of what peoplewere saying demonstrated that the opposingparties heard and understood what theother said. It did not mean agreement. Butthe whiteboard effectively conveyed anappearance of respect for the other and asincere attempt to see the world throughthe eyes of the other. All sides were nowpart of a single group. A common story.A common vision of reality. The attorneyswere no longer warring gladiators representingdifferent groups on a battlefield.Like the events of 9/11 that drew out theempathy of New Yorkers for each other andmade them feel united as one group helpingothers like themselves, the whiteboardsubtly redefines the grouping. The physicaldisplay of one board for all sides makesall sides one group interested in the sameenhancement of trust between the membersfor a common end—a just and fairagreement.Apologies like WhiteboardsLike whiteboards, sincere apologies createan appearance of respect and sympathythat opens an opportunity for the partiesto drop their swords and view themselvesas part of a common group with commonvalues, a common problem, and a commoninterest in building sufficient trust betweenthemselves to solve the problem by agreement.See Sidney Kanazawa, “Apologiesand Lunch,” For The Defense (July 2004).Key ElementsWhiteboards and apologies demonstratean art of lawyering that is consistent withthe recent science of how our unconsciousfeelings guide our decisions. Both addressthose unconscious feelings by demonstratingan empathetic concern for the other.They demonstrate, at least, an effort to seethe world from the viewpoint of the other.These small acts create a sense of commonalitybetween the parties rather thana hostile distance and incompatibility. Thetwo essential elements of this empatheticdisplay of commonality are sincerity andrespect.SincerityWithout sincere interest in and curiosityabout the viewpoint of another, neithera whiteboard nor an apology willmake a difference. Writing or mouthing“One Truth”, continued on page 90

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Medical Liability and Health Care LawFrom the ChairBy Ted J. McDonald IIIDedicated to BeingYour IndispensableResourceWe need your helpidentifying the needsof our membersand improvingcommunication andinteraction to takefull advantage of theresources our committeecan provide; for you, ourpractitioner clients, andindustry members.■ Ted J. McDonald III of Adam & McDonald in Overland Park, Kansas, practices in a variety of areas of civil litigation with a primaryemphasis on defending and consulting long term care and assisted living facilities. He serves as counsel for some of thelargest providers of long-term care services in the country. Mr. McDonald’s background includes experience in product liability,medical malpractice, and personal injury litigation.62 ■ For The Defense ■ September 2012

In January, DRI Medical Liability and Health Care LawCommittee Vice Chair Todd Symth, Smyth & Whitley,Charleston, South Carolina, and I attended the DRI CommitteeLeadership Conference in Chicago. It was a won-derful opportunity to exchange informationand ideas, and to share experienceswith the DRI Executive Committee, Boardof Directors, members of the Law Instituteand, most importantly, the chairs and vicechairs of the other substantive law committees.I am pleased to report that theDRI leadership, starting with PresidentHenry Sneath, is dedicated to making DRIand your Medical Liability and Health CareLaw Committee indispensable to both thehealth care practitioner and provider.Our members’ collective talent, energy,and willingness to participate is an invaluableresource. Our committee enjoys tremendousmomentum, due in large partto the dedication and leadership of pastcommittee chair Phil Willman, Moser &Marsalek, St. Louis, Missouri, over thelast two years. Going forward, I believewe must continue to identify the needs ofour members and improve communicationand interaction to take full advantageof the resources our committee can provide,not only to committee members but toour health care practitioners and industrymembers. We need your help to do both.“Opt-In” and Participate inCommittee Communications onCommittee Homepage ListServCurrently, the ListServ on our committeehomepage on the DRI website is the most efficientway for any member to communicatewith the committee as a whole. Membersshare information on experts, experiences,and successful strategies with colleaguesand committee leadership, post informationon seminars, websites and opportunitiesfor involvement. As a member of DRIand the committee, you have access to DRI’swebsite (dri.org) and committee homepageand ListServ. However, you must log-on tothe website, go to our committee page and“Opt In” to participate on the committee List-Serv. To “Opt In” on the homepage, click theblue box “ListServ.” On the ListServ page,all committees that you have joined shouldappear. Click “Update Settings” and selectthe “Med Lib” ListServ.Attend a Committee Meeting andLearn About Committee Resourcesand Opportunities for ParticipationOur committee conducts business meetingsat the Annual Meeting (October 24–27,2012, New Orleans, Louisiana) and at eachof our seminars: Medical Liability (March14–15, 2013, Miami, Florida) and NursingHome/ALF Litigation (September 20–21,2012, Las Vegas, Nevada). At each meeting,subcommittee chairs give reports oncommittee business, including seminarplanning and preparation, publications,webcasts, webpage/blog/social media,membership, and special projects/initiatives.Attending a business meeting maybe one of the best ways to meet committeeleaders and active members, learn aboutresources relevant to your practice andexplore opportunities for participation.Join us at our next committee meeting inLas Vegas September 20!2012: What We’ve Accomplishedand What’s Yet to ComeOur committee has been busy to-date, andthere’s much more to come, in 2012. Congratulationsto Medical Liability and HealthCare Law Seminar Program Chairs AlexHagan, Ellis & Winters, Raleigh, North Carolina,and Jackie Trimm, Starnes & Atchison,Birmingham, Alabama, on a verysuccessful seminar this past March in NewOrleans. Alex and Jackie assembled an outstandingfaculty and program and PatrickKearns, Wilson Elser, San Diego, California,did an outstanding job marketing the seminar.We had a record- setting attendance of523 registrations. We hosted five counselmeetings (also a record attendance number)and the feedback from our counsel hosts hasbeen wonderful. We welcomed a numberof new DRI and committee members duringthe seminar, indicating a tremendousamount of energy and momentum.Jackie and Patrick Kearns, next year’sprogram chair and vice chair, are alreadypreparing for the next Medical Liabilityand Health Care Law Seminar, March 21–22, 2013, at the beautiful Eden Rock Hotelin Miami Beach, Florida. Top medicalmalpractice defense lawyers from across thecountry will present on topics such as fetalheart rate monitors and the impact on obstetricslitigation, post-event disclosures,litigating the “never event” case, the MedicareSecondary Payer Act and the Medicare/Medicaid and SCHIP Extension Act, newtechniques in preparing health care providersfor deposition, the impact of obesity inmedical outcomes and lawsuits, techniquesfor defending the psychological injury/emotionaldistress case, defending high risk andcatastrophic neurosurgical injuries, defendingthe damages- only case and defendingstate medical board actions. The seminarwill also include a young lawyers’ breakoutsession devoted to training the youngerlawyer on the role and responsibilities of thesecond chair in a medical malpractice trial.By now you should have received yourbrochure for the upcoming Nursing Home/ALF Litigation Seminar, September 20–21, 2012, at the Cosmopolitan Hotel in LasVegas. If you’re involved in defending longtermcare claims, you cannot miss this seminar.Thank you to Richard Moore, BleekeDillon Crandall, Indianapolis, Indiana, andPamela Schremp, CNA HealthPro, Mentor,Ohio, for assembling am outstanding faculty.I personally look forward to presentationsfocused on current effective methodsin defending fall claims, piercing plaintiff’scorporate- veil strategies, defending theelopement case, developing effective trialthemes, and voir dire and jury selection inthe long-term care case. As always, we lookforward to seeing the many providers andclaims professionals hosting counsel meetingsand attending the seminar.Rob Smith is the committee’s liaisonfor the upcoming Annual Meeting, October24–28, 2012, in New Orleans. Rob,together with Committee Vice Chair ToddSmyth, has done an excellent job in coordinatingour joint effort with the ADR,Employment and Labor Law, and ToxicTorts and Environmental Law Committeesin planning, preparing, and presenting themain stage substantive presentation: WhenMedical Liability, continued on page 87For The Defense ■ September 2012 ■ 63

Medical Liability and Health Care LawChorioamnionitisBy Walter J. Price IIIAn AlternativeCause forCerebral PalsyRecent studies mayprovide an objectivecausation defense toclaims of negligence inlabor and delivery care.■ Walter J. Price III is an attorney with Huie Fernambucq & Stewart LLPin Birmingham, Alabama, where he practices in the areas of medical malpractice,professional errors and omissions, product liability, and insurancedefense. Mr. Price is a member of DRI, the Alabama Defense Lawyers Association,and the International Association of Defense Counsel.64 ■ For The Defense ■ September 2012Lawyers defending health-care providers have long recognizedthat many, many cases arise from labor and delivery.Some of the more significant cases include claims involvingcerebral palsy. “Unexpected adverse outcomes” repre-sent one of the most frequent reasons for litigation.Baergen, The Placenta as Witness,34 Clin. Perinatol. 393 (2007). Generally,in cerebral palsy cases plaintiffs questionpredelivery monitoring and treatment,especially in the face of “nonreassuring”fetal monitoring results. Plaintiffs associatecerebral palsy with asphyxia allegedlydemonstrated by fetal monitor strips. However,emerging medical evidence points toinfection and an associated inflammatoryprocess as an alternative, significant causeof cerebral palsy in infants.BackgroundCerebral palsy occurs in 1 to 2.4 cases per1,000 live births. Muraskas, et al., A ProposedEvidence- Based Neonatal Work-Up toConfirm or Refute Allegations of IntrapartumAsphyxia, 116 Obstetrics and Gynecology261 (2010); Wu, et al., Chorioamnionitisand Cerebral Palsy in Term and Near-TermInfants, 290 JAMA 2677 (2003). Cerebralpalsy is a group of nonprogressive motorimpairment syndromes characterized byspasticity, movement disorders, muscleweakness, ataxia, and rigidity. Koman, etal., Cerebral Palsy, 363 The Lancet 1619(2004). Birth asphyxia can cause cerebralpalsy, though it does not account for mostcases. Nelson, Causative Factors in CerebralPalsy, 51 Clinical Obstetrics and Gynecology751 (2008). Indeed, studies estimatethe number of such cases as only 20 percent,or even as low as 8 to 10 percent. Yoon,Intrauteran Infection and the Developmentof Cerebral Palsy, 110 (Suppl. 20) BJOG 124(2003); Perlman, Intrapartum Hypoxic-Ischemic Cerebral Injury and SubsequentCerebral Palsy: Medicolegal Issues, 99 Pediatrics851 (1997). A majority of cases ofcerebral palsy occur in term infants. Nelson,supra, at 749.As noted, in litigation plaintiffs generallyclaim that fetal heart-rate monitoring canidentify inutero asphyxia occurring in connectionwith delivery, and poor outcomes,including cerebral palsy, resulting from thefailure of the involved health-care providersto recognize this condition and acceleratedelivery. Fetal monitoring has become anaccepted part of predelivery care. Similarly,delivery by Cesarean section has continuedto increase. Nonetheless, researchers havenoted that despite the use of fetal heart-rate

monitoring, as well as other improvementsin care, the rate of cerebral palsy has notdeclined over the past 30 years. Id. A “fivefold”increase in delivery by Cesarean sectionaccompanies this. Muraskas, supra, at261. This evidence calls into question thecausal relationship between birth asphyxiaand the failure to recognize it during the deliveryprocess and injury.Notably some scientists have not onlyquestioned this connection but also the useof fetal heart-rate monitoring tracings andtheir interpretation as evidence supportingliability. For example, the terms generallyused to assess negative changes reflected byfetal monitoring, such as “fetal distress” and“nonreassuring pattern,” are vague and subjective.Schifrin, et al., Medical Legal Issuesin Fetal Monitoring, 34 Clin. Perinatol, 330(2007). Moreover, the alleged injury mechanism,birth asphyxia, also involves an“imprecise” definition. Perlman, IntrapartumAsphyxia and Cerebral Palsy: Is Therea Link? 33 Clin Perinatol. 336 (2006). In addition,the often poor quality of fetal hearttracings during the expulsive stage of laborfurther reduces the ability to assess poor oxygenationat that point. Schifrin, supra, at332. Thus, liability may rest upon opinionsthat rely on inexact concepts. In fact, onestudy calls into question whether someonecould assess and confirm that a poor neurologicoutcome was actually avoidable:Thus, the inability to assess prospectively:a) the fetal adaptive mechanismsto maintain cerebral perfusion andmetabolism, or b) the inherent toleranceor resistance of the fetal brain to intrapartumasphyxia using current markersrender it almost impossible, with anydegree of certainty, to offer a legal opinionas to whether an alternative medicalstrategy could have altered the neurologicoutcome or whether the outcomewas an unavoidable act.Perlman, Intrapartum Hypoxic- IschemicCerebral Injury in Subsequent CerebralPalsy: Medicolegal Issues, 99 Pediatrics 857(1997).As suggested above, questions also persistabout the causal link between birth asphyxia,as purportedly shown through fetalmonitoring, and cerebral palsy. Emergingresearch findings indicate that maternal infectionand associated inflammation frequentlyalternatively could cause cerebralpalsy. Maternal infection may affect the placentaresulting in inflammation of the innertwo layers of the lining of the placenta,the chorion, and the amnion. Research haslinked the resulting infection- induced inflammation,chorioamnionitis, with cerebralpalsy. As discussed further below,the exact cause of injury remains unclear,though researchers have identified a firmrelationship between chorioamnionitis andcerebral palsy. Not only does this cast doubton the medical cause of injury that plaintiffsoften assert, chorioamnionitis frequently isclinically silent and requires a pathologicstudy of the placenta to identify it, whichchallenges proof of liability.Involved AnatomyA placenta is a temporary organ thatattaches to the wall of a mother’s uterus.It provides oxygen and nutrients to a fetus,as well as removes waste products fromthe fetal blood. A placenta also protects afetus from infection, trauma, and toxins.Redline, Disorders of Placental Circulationand the Fetal Brain, 36 Clin. Perinatol. 549(2009). A placenta has two internal layers,the chorion and the amnion; the amnionmakes contact with the amniotic fluid inwhich the fetus is maintained.The umbilical cord attaches the placentaand the fetus. It is made up of three bloodvessels. These include two smaller arteriesthat carry blood from a fetus to the placentaand a larger vein that returns bloodfrom the mother to the fetus. WilliamsObstetrics107 (17th ed. 1985). In supplyingoxygen and nutrients to a fetus, maternalblood leaves the mother’s arterial vesselsand forms “lakes” near the chorionic platewhere the exchange takes place. Id. at 108.Inflammation is the body’s responseto an insult. Chorioamnionitis is inflammationof the chorion and the amnion.Acute chorioamnionitis is identifiable bythe presence of leukocytes, or white bloodcells, in the amnion and the chorion. Baergen,Manual of Pathology of the HumanPlacenta 284 (2d ed. 2011). Funisitis isinflammation of the umbilical cord. It, too,represents an inflammatory response. Itindicates a fetal response to a maternalinsult. The fetal response follows that ofthe mother in time. Redline, Infections andOther Inflammatory Conditions, 24 Seminarsin Diagnostic Pathology 8 (2007).Thus, finding funisitis establishes that aninfection and an inflammatory processhave persisted for a longer period of time,which originated before delivery and birth.Effects of Chorioamnionitisand FunisitisAcute chorioamnionitis has been associatedwith preterm deliveries, as well asChorioamnionitisfrequently is clinically silentand requires a pathologicstudy of the placenta toidentify it, which challengesproof of liability.“lung disease, poor long-term neurologicoutcome, and cerebral palsy.” Baergen, supra,at 282. Researchers have noted that aninfection “always” causes acute chorioamnionitis.Id. Bacteria in the cervicovaginaltract usually initiates the infection. Reilly& Faye-Petersen, Chorioamnionitis and Funisitis:Their Implications for the Neonate, 9NeoReviews 411 (2008). Interestingly, theinfection “occurs most often in the presenceof intact fetal membranes.” Baergen, supra,at 283. Thus, contrary to the beliefs that laypersons generally hold, an infection may invadea placenta, and even the amniotic sac,causing an inflammatory response, even beforea mother’s membranes have ruptured.This, also, is significant to an inflammatoryprocess’ onset, which can even begin beforea health-care provider admits a mother to ahospital in anticipation of a delivery. Variousmicroorganisms may cause the infection.Baergen, supra, at 289.Initially, a mother’s body responds toan infection by releasing leukocytes. Thisreaction begins in the intervillous spaceand the maternal vessels of the decidua.Baergen, supra, at 287. However, these leukocytes“always” migrate toward the amnioticsac. Id. Therefore, an inflammatoryresponse, as reflected by the presence ofleukocytes, can directly affect a fetus. InFor The Defense ■ September 2012 ■ 65

Medical Liability and Health Care Lawaddition, a fetus normally swallows andbreathes the amniotic fluid, exposing it tothe organisms contained in the amnioticfluid. Id. However, studies have shown thatinjury may occur even when a mother’sinfection hasn’t directly infected her fetus;instead, a fetal inflammatory responsecan trigger fetal inflammatory responsesyndrome (FIRS). FIRS is a conditionTrained and experiencedplacental pathologistscan… categorize theinflammatory response into“stages” by completing apathologic examination.hypothesized to involve a “systemic fetalinflammatory response” that can causemultiple organ dysfunction, septic shock,and death. Bashiri, et al., Cerebral PalsyFetal Inflammatory Response Syndrome: AReview, 34 J. Perinat. Med. 9 (2006).Finding neutrophils, a type of whiteblood cells that attack invasive bacteria,in the walls of the vein or arteries of anumbilical cord indicates that somethinghas stimulated this fetal response. Redline,Inflammatory Response in Acute Chorioamnionitis,17 Seminars in Fetal andNeonatal Medicine 22 (2012). These neutrophilsgenerally first appear in the chorionicvessels and the umbilical vein. Asdiscussed further below, pathologic reviewidentifies this as “Stage 1.” The next stage,“Stage 2,” finds neutrophils in the wallof the umbilical artery. Later, “Stage 3”finds neutrophils in the Wharton’s jelly,which surrounds the umbilical vessels. Id.Chorioamnionitis and funisitis stages areimportant because studies have associatedmore severe responses with more severeinjuries, and finding that a process hasprogressed as time passed could suggestthat the condition existed before labor ora mother or a child received delivery care.One study demonstrated that chorioamnionitisis “independently associated with a66 ■ For The Defense ■ September 2012four-fold increase of CP [cerebral palsy] interm infants.” Wu, supra, at 2680–81. Thissame study noted that often birth asphyxiawas diagnosed despite finding chorioamnionitis.Id. at 2681. Significantly, for purposesof birth injury litigation, studies haveshown that conditions traditionally associatedwith hypoxic- ischemic encephalopathy,such as low Apgar scores, meconiumin amniotic fluid, and neonatal seizures,may actually result from the infectious orthe inflammatory process as opposed to ahypoxic- ischemic event. Nelson, supra, at752. In other words, the effects of chorioamnionitisand funisitis may mirror thoseassociated with birth asphyxia, whichplaintiffs in litigation assert that poor fetalheart tracings demonstrate.The exact cause of inflammatory processinjury is not certain. Several noted theoriesinclude1. Elevated levels of fetal cytokines inthe presence of maternal infection cancause direct injury to a fetal brain bystimulating the fetal inflammatoryresponse;2. Inflammation of the placental membranesleads to interruption of placentalgas exchange and blood flowresulting in hypoxic- ischemic braininjury in a fetus;3. Maternal fever raises the core temperatureof a fetus, which, in turn, mayharm the developing brain, especiallywhen accompanied by cerebral ischemia;and4. Maternal intrauterine infection leadsto direct infection of the fetal brainor meninges, although this is rarelyseen.Wu, supra, at 2682.Regarding the first theory, cytokines areproteins released by the immune system;they regulate immune response. Studieshave identified increased concentrations ofcytokines in children with cerebral palsy.Shalak, et al., 110 Clinical Chorioamnionitis,Elevated Cytokines, and Brain Injury inTerm Infants, Pediatrics 673 (2002). Thesecytokines may cross the blood-brain barrierthat protects brain cells from insultsfrom invading organisms. Id. at 677. However,these same proteins may be “toxic” tothe fetal central nervous system. Holcroft,et al., Are Histopathologic Chorioamnionitisand Funisitis Associated with MetabolicAcidosis in the Preterm Fetus? 191Am. J. Obstet. Gynecol. 2011 (2004). Theyoung fetal brain is particularly susceptibleto injury by these inflammatory mediators.Nelson, supra, at 755. Complicatingthe effort to locate the cause of injury is thatbrain injury resulting from the inflammatoryprocess “mimics the neuroradiologicalfindings of hypoxic- ischemic brain injuryin term infants.” Wu, supra, at 2682.Regarding the second theory, someresearchers suggest that the inflammatoryresponse may affect the placenta and causehypoxic- ischemic brain injury. Others havesuggested that the fetal inflammatoryresponse could alone cause hypotensionwith decreased perfusion to the watershedregions of the brain. Id. Other potentialcauses of reduced fetal perfusion associatedwith the inflammatory process includevasoconstriction of the umbilical cord vesselsand intravascular coagulation withcerebral arteriolar obstruction. Id. In sucha scenario, a child would actually receive ahypoxic- ischemic injury, though the shocklikecondition would cause it as opposed toasphyxia resulting from some other insult.Of course, someone would expect that aplaintiff’s counsel would counter this theoryby suggesting that the fetal monitorwas, by exhibiting signs of distress, reflectingthe effects of the inflammatory process.Although, as alluded to previously, afetus may have experienced those effectsfor some time preceding the period that thefetal monitor recorded.One study has referred to a maternalfever; however, while fever may be associatedwith acute chorioamnionitis, asnoted, this condition mostly is “clinicallysilent” and “diagnosed only after pathologicexamination of the placenta.” Reilly& Petersen, supra, at 411.Practical ConsiderationsSince doctors may not always discover chorioamnionitisbefore birth, a substantialissue to explore when litigating involveswhether the placenta has undergone pathologicreview, which is the sole means ofconfirming chorioamnionitis. Unfortunately,obstetricians do not always send aplacenta for a pathologic review. Muraskas,supra, at 262. Clinical issues also canbecome relevant. For example, in mostcases intrapartum asphyxia “deprives all

other organs of oxygenated blood beforethe flow of oxygen to the brain is diminished.”Muraskas, supra, at 266. As such,an attorney must closely review the clinicalpicture to look for reduced urine outputindicative of renal failure, the presence ofliver enzymes, or cardiac enzymes, amongother things. In addition, meconiumstainedamniotic fluid may not be an indicatorof hypoxic- ischemic encephalopathy.In the United States, 15 percent of birthsannually involve meconium- stained amnioticfluid. Id. at 265. As such, finding it doesnot settle the causal question.Trained and experienced placentalpathologists can, as indicated, categorizethe inflammatory response into “stages” bycompleting a pathologic examination. Thisassists in defining the time of an event. Achild may have suffered harmful effects ofthe inflammatory process before the periodpurportedly identified by a fetal monitorrecord, and, indeed, it may have happenedbefore the mother’s admission to the hospital.A child many have experienced directcellular damage for some time before he orshe was born.Chorioamnionitis and funisitis involvethree stages, and the maternal responseprecedes that of the fetus. Pathologicalexamination pinpoints the stages by identifyingthe number and the location ofthe neutrophils. Dr. Redline has opinedthat “Stage 1” chorioamnionitis, notedas subchorionitis and chorionitis, maydevelop six to 12 hours after exposure tothe infectious agent. Redline, InflammatoryResponses in the Placenta and UmbilicalCord, 11 Seminars in Fetal & NeonatalMedicine 297 (2006). Chorioamnionitis,or “Stage 2,” can develop within 12 to 36hours. Id. Necrotising chorioamnionitissignals “Stage 3,” which develops 36 hoursor more after exposure. Id. Again, in termsof stages, funisitis begins when neutrophilsappear in the chorionic vessels andumbilical vein, then, during the next stagethey appear in the umbilical artery, andfinally, they appear in the Wharton’s jelly.Severe fetal inflammatory response mayeven “develop as a consequence of subacuteprocesses beginning days before delivery.”Redline, Placental Pathology and CerebralPalsy, 33 Clin. Perinatol. 569 (2006). Note,however, that these stages are not exact andcan overlap. Experienced placental pathologistscan estimate the length of time thatan inflammatory process continued or howlong a stage persisted by examining placentalsamples in comparison with historicalknowledge. More severe inflammation suggestsnot only that more time has passed,but, also, it is associated with a poor outcome.The severity of the fetal response isparticularly relevant to the degree of injury.Redline, Infections and Other InflammatoryConditions, 24 Seminars on DiagnosticPathology 9 (2007).The medicine involved in these issues,especially regarding the means of injury,is complex. Defense attorneys need to identifyknowledgeable and experienced expertwitnesses to address the pathological confirmationof chorioamnionitis and funisitis,as well as to discuss the effects of theinflammatory process. Only a few placentalpathologists have experience in this field,and a defense of a birth injury case involvingcerebral palsy will require a focusedeffort to obtain the appropriate assistance.ConclusionDr. Baergen’s article, “The Placenta as Witness”is aptly titled. Pathologic review ofa placenta may yield information vital toa defense of a birth injury case involvingcerebral palsy. These claims create substantialexposure, and the health-care providers’conduct is often judged based onnothing more than fetal monitoring recordsand an assertion that these records depictfetal birth asphyxia. However, emergingscience has revealed that cerebral palsy isoften associated with infection and inflammationinitiated by bacteria or other microorganismsaffecting the placenta. Studieshave firmly linked inflammation of the placenta,chorioamnionitis, and inflammationof the umbilical cord, funisitis, to the developmentof cerebral palsy, and confirmingtheir existence with a pathologic review ofa placenta may provide an objective causationdefense to claims of negligence in laborand delivery care.For The Defense ■ September 2012 ■ 67

Medical Liability and Health Care LawPlaintiffs’ attorneys tryto squeeze every lastdrop of “Damages”juice at trial…Fighting theSqueezeBy J. Thaddeus Eckenrodeand Dwight A. VermetteAttempting tomaximize economicdamages at every turn issimply another “workaround”that plaintiffs’attorneys use to makelitigating cases subjectto caps more financiallyattractive to pursue.Several years ago, as one plaintiff’s attorney was wrappingup his evidence in a medical malpractice case against us,we were surprised that he did not attempt to offer into evidencethe medical bills relevant to the treatment that theplaintiff had received. Those expenses,which were unquestionably legitimate andcaused by the medical condition that ourclient allegedly failed to diagnose, totaledabout $50,000. After the trial concluded, weasked the attorney why he had not submittedthose expenses, and he simply statedthat he felt that his case was all about thenoneconomic losses suffered by his client,meaning the impact of losing his sight onhis hobbies, lifestyle, and ability to enjoylife, among other things. In essence, heexpected those types of damages wouldhave a worth of over $1 million, and hedidn’t want to “diminish” the value of hiscase with the medical bills. How times havechanged.Caps Increase Plaintiffs’ Attorneys’Interest in Economic DamagesAlthough most plaintiffs’ attorneys routinelyseek both economic and noneconomicdamages during medical malpracticetrials, in the seven or eight years since thetrial described above, we’ve seen more andmore plaintiffs’ attorneys go to unusuallengths to bolster and prove high medicalexpenses and other “out- of- pocket” damages,working feverishly to squeeze everydrop of compensable “economic” lossesthat they can from juries. We attributethis change in our area to our state’s (Missouri)enactment in 2005 of a “hard” capof $350,000 on “noneconomic” damages—a limit that applies in each malpractice caseto a collective group of plaintiffs if a caseinvolves more than one, no matter howmany defendants there are, how serious theinjury or loss suffered, nor how egregiousthe care or negligence, if an injury or lossdoesn’t otherwise support a punitive damagesaward. Mo. Rev. Stat. §538.210. Dueto “tort reform” efforts around the country,more than half of the states currentlyhave a cap on at least “noneconomic” damagesin medical negligence cases. Compilingan accurate list of those states remainsa somewhat temporary achievement, how-68 ■ For The Defense ■ September 2012■ J. Thaddeus Eckenrode is the founder and managing officer, and Dwight A. Vermette is an associate, ofEckenrode- Maupin in St. Louis. Mr. Eckenrode focuses his litigation practice on medical negligence, productliability, and other catastrophic tort claims. He is a member of the Missouri Organization of Defense Lawyers(MODL) and both the DRI Medical Liability and Health Care Law and Trial Tactics Committees. Mr. Vermettespecializes in litigation, estate planning, and other areas of general practice. He is a member of MODL.

ever, in that the list is in flux constantly asindividual states face ongoing challengesto their caps on constitutional grounds,and state legislatures revisit these issues tooverhaul the laws on their own or becauseof court rulings that have whittled downthe caps that legislators initially enacted.Quite frankly, the status of a state’s individualcap or lack of one may change witheach election and the new faces elected orappointed to any of its three branches ofgovernment. [Note: Since the original draftof this article was prepared, the MissouriSupreme Court declared its state’s noneconomiccap referenced above to be unconstitutionalin Watts v. Lester E. Cox MedicalCenters, et al., on July 31, 2012, effectivelyending six years of certainty about noneconomiccase value.]What caps offer defendants, of course,is significant protection against runawayverdicts. But they also encourage plaintiffs’attorneys to go to seemingly extraordinarylengths to bolster the damages claimsthat they can make to maximize potentialverdicts that may favor their clients.Similar to most states that enacted caps,our state saw a noticeable decrease in thenumber of medical malpractice lawsuitsfiled in the years after enactment of thenew cap as plaintiffs’ attorneys across thestate claimed that taking on a case with apossible maximum value of $350,000 wasgenerally not worth the effort, given thatit often cost more than $100,000 just tobring a malpractice case to a trial. Thosewho have chosen to take on cases of anysort, however, have also started lookingfor every nickel that they could identify asan “economic” loss for which they couldseek recovery unimpeded by the cap, pursuingpast medical expenses, past wageloss, future diminution of earning capacity,and future medical expenses, amongother things. From those basic categories,plaintiffs’ attorneys, using liberal economicexperts and creative “life-care planners,”have created classifications and subsetsof economic damages so exhaustive andbroad that even the plaintiffs themselvesseem astounded during trials to learn howmuch they’ve apparently lost.As young lawyers years ago we constantlyheard the general mantra that suggestedthat the value of a personal injurycase was “three times the specials,” with“specials,” of course, meaning special damagesor incurred economic losses of anykind, such as medical expenses, propertyreplacement cost, lost wages, future lostwages, and expenses. In fact, Internet postingsby plaintiffs’ attorneys seem to indicatethat this old rule of thumb still holdsas a starting point for case value discussions.If you simply “Google” the phrase“three times the specials,” you will see thisyourself. On the one hand, this suggestswhy in the trial described at the beginningof this article the plaintiff’s attorneythought that introducing evidence ofonly $50,000 in medical expenses might“diminish” his plaintiff’s case’s value inthe eyes of the jury. On the other hand,someone can quickly see that, if faced witha maximum noneconomic judgment of$250,000 to $500,000, depending on theapplicable state “cap,” a plaintiff’s attorneywill want to introduce as much evidence of“economic” damages as possible. One reasonis to convince a jury to award as muchin noneconomic or general damages as possible,assuming that the jury also has heardof the “three times the specials” concept,to perhaps obtain a verdict large enough towarrant revisiting the issue of that state’scap on an appeal. More likely, however,an attorney simply wishes to enhance acapped general damages award with asmany otherwise provable economic lossesas possible because states commonly donot cap economic damages. Notably somestates with caps apply them to the totaldamages awarded and do not differentiatebetween economic and noneconomiclosses. See Ind. Code Ann. §34-18-14-3(currently limiting total damages to $1.25million); Va. Code Ann. §8.01-35 (increasingthe previous total limits of $2 millionto $2.05 million on July 1, 2012).“Billed Versus Paid”Medical ExpensesOne growing economic damages battlegroundrelates to the amount of medicalexpenses billed versus those actuallypaid. As any trial practitioner knows, ahealth-care provider often sends a bill to apatient that is often astronomically higherthan the amount that provider was actuallypaid by a health insurer. Hospital bills,for example, are routinely “adjusted” significantly,sometimes as much as 75–80percent because a hospital has contractedwith various health insurers and, of course,Medicare, to honor contractual rates. Thatmeans that although a plaintiff may have abill from a hospital for $250,000, the plaintiff’shealth insurer may have only paid thehospital $50,000 for the care rendered, plusa nominal out- of- pocket deductible amountthat the plaintiff paid. Defense attorneyshave argued consistently for years thatallowing a plaintiff to seek the full amountof such a bill as part of his or her “loss” inthis scenario results in a huge windfall tothe plaintiff. The counterargument madeby plaintiffs’ attorneys is that allowing evidenceof the amount that an insurer paidviolates the “collateral source” rule.For obvious reasons, plaintiffs’ attorneyshave fought vigorously to keep theamount “billed” as the measure of damagesbecause, depending on the extent ofthe medical care rendered, those figurescan potentially make a difference of hundredsof thousands of dollars in a judgment.For cases involving a noneconomicdamages cap, this is important since medicalbills often will make up the largest componentof the limitless economic damages.Currently, the approach taken by differingjurisdictions on “billed versus paid” medicalexpenses appears, as with caps, to varygreatly from state to state and remains inevolution. Some states continue to bar allevidence of the portion of a bill paid by aninsurer or of any “adjustment” and allowonly evidence of the amount billed. Brannonv. Shelter Mutual Insurance Co., 520So. 2d 984 (La. App. 3rd Cir. 1987). Somestates limit the evidence to only the portionof the medical expenses that were actuallypaid or remain owed to a health-care provider.Mills v. Fletcher, 229 S.W.2d 765 (Tex.App. 2007) (also holding that the portionof a bill that was “adjusted” did not constituteexpenses “incurred” by the plaintiff).However, with most state legislaturesand many courts now acknowledging theinherent injustice of allowing a plaintiffto seek an award of damages for expensesthat he or she has never truly incurred, thehybrid solution of allowing a jury to decidethe “reasonable value” of medical serviceshas evolved: a court may admit both theamount billed and the amount paid intoevidence, and the jurors hear the evidenceof both figures, and potentially other evi-For The Defense ■ September 2012 ■ 69

Medical Liability and Health Care Lawdence of reasonableness, and they awardwhatever they think fair. See, e.g., Deck v.Teasley, 322 S.W.3d 356 (Mo. banc 2010).However, these diverse “reasonable value”methodologies, which require varyingdegrees of proof before a court will authorizesubmitting them to a jury, dependingon your jurisdiction, have undergone ongoingattack as well. The most recent judicialThoroughly deposingtheplaintiff’s supervisor mayreveal that the plaintiff’sbelief that he or she wouldhave received some ofthese additional benefitsis only wishful thinkingand without basis in fact.ruling on the “billed versus paid” issuethat we uncovered as of this writing camefrom Colorado this past April. That state’ssupreme court, in several rulings in differentcases, specifically prohibited a defendantfrom introducing evidence of theamounts paid by an insurer for medicalservices, rationalizing that the collateralsource rule forbade it. However, the court’srulings continue to allow a defendant tointroduce other evidence of the “reasonablevalue” of medical services. Sunaharav. State Farm Mutual Automobile Ins. Co.,2012 WL 1492843 (Colo. 2012); Wal-MartStores, Inc. v. Crossgrove, 2012 WL 1492845(Colo. 2012); Smith v. Jeppsen, 2012 WL1493568 (Colo. 2012). This means that inColorado and other states that follow similarrulings although a court will not admitthe amount that a health-care provider wasactually paid into evidence, a defense attorneycan, in theory, still try to establish thatthe “reasonable value” of medical servicesis less than the amount of the bill for theservices. However, if a defense attorneycannot show how much a health-care provideractually accepted as payment, can he70 ■ For The Defense ■ September 2012or she make a plausible argument that theamount billed should not be the measureof damages? How much success will he orshe have trying to cross- examine a plaintiff’streating physicians on the “value” oftheir services? And how many physicianswill answer cross- examination questionsin ways that seem to discount the valueof the professional care that they provide?Does evidence that a health-care provideraccepts less than the billed amount, orallows an “adjustment,” even without referencingthe actual amount in question,constitute a violation of a state’s collateralsource rule? Ultimately, will a jury becomedistracted, if not simply feel dumbfoundedor offended if a defense attorney attemptsto contest an issue that may appear completelycollateral (excuse the pun)—howmuch the jury should award for medicaldamages—when the jurors have the actualbill right in front of them?In this situation you should still stronglyoppose any attempt to limit past medicalexpense evidence to the “billed” amount,plan to offer contradictory evidence ofvalue and have it ready, and make a strongrecord for an appeal because courts’ positionson this issue tend to change frequently.But for now this is a battle thatdefense attorneys frequently lose whenplaintiffs’ attorneys fight to squeeze everydollar of damages from juries.Lost WagesSimilar to medical expenses, damages forlost wages are generally easy to calculatesince the amount that an injured plaintiffwould have made at a job that he or she hadat the time of some alleged negligence usuallyinvolves reviewing routine documentationsuch as personnel file materials, wagerecords, attendance reports, and W-2s.Once again, however, plaintiffs’ attorneystry to bolster these figures with additionalcalculations for valuating vacation andsick leave also allegedly lost, fringe benefitsnot received, promotional opportunitiesunreached, and raises and bonuses notearned since an injury. You have a strategicopportunity if you challenge these lossareas. You probably can’t diminish the evidenceof wages that a plaintiff would havereceived between the date of an injuryand a trial, assuming that the plaintiff’semployer testifies that it would probablyhave continued to employ the plaintiff if heor she hadn’t become injured. If, however,you can adduce some evidence demonstratinguncertainty about the likelihoodof promotions, raises, or bonuses, then ajury might not only award a few dollars lessin damages, but a jury might view a plaintiffas overreaching, and if the jury beginsto question a plaintiff’s honesty in general,perhaps that will help undermine hisor her credibility to help you on other caseissues. If a plaintiff has testified in a depositionor responded to interrogatories bysuggesting that his or her past wage lossconstitutes more than just “salary,” thoroughlydeposing the plaintiff’s supervisormay reveal that the plaintiff’s belief that heor she would have received some of theseadditional benefits is only wishful thinkingand without basis in fact.Future DamagesWhile the types of “past” economic damagesmentioned earlier certainly are ripefor inflation beyond true loss, you have toaccept that a plaintiff theoretically wouldhave at least some documentation to supportthose damages—wage records or amedical bill, for instance. However, theplaintiff’s bar seems to have adopted theconcept of “creative” future damages,which it has found increasingly useful.We put “diminution of earnings capacity”and “life-care plans” in this damagescategory. Each may represent admittedly,potentially a legitimate loss. At their verycore, however, they often use assumptionsand unknown variables as their purportedfoundation rather than substantialsupporting evidence, and a defense challengeshould use these assumptions andunknown variables as a challenge startingpoint.Future Wage Loss (Diminutionof Earning Capacity)When an injured plaintiff loses time fromwork, as noted above, that usually is provableand easily calculable. However, whenthat same plaintiff claims that for the next30 years he or she will be unable to makethe same wage, or worse yet, argues that heor she planned to move on, through educationor other opportunities, to becomea successful “fill in the vocational blank”with a lifetime of even higher wages and

enefits, you should undertake a vigorousbut professional attack on those dreams.First, you should question the likelihoodthat a plaintiff would have kept his or hercurrent job, or would have become eligiblefor the promotions and raises that heor she claims would have come his or herway. Thoroughly examining a plaintiff’spersonnel file for every job that he or shehas had may highlight information thatbears on the plaintiff’s ability to keep, ifnot grow in, his or her current positionand place of employment. You must evaluatethe actual future viability of a plaintiff’semployer. Will that company still exist infive years in the current economic climate?Will that company still have same numberof jobs available? What has been the historyof both that employer and that industry?While deposing a plaintiff’s supervisoron past wage loss is important, as notedabove, examining individuals higher in themanagement chain will explore how manyemployees with job evaluations and experiencecomparable to the plaintiff actuallymove up the ladder, how many promotionalopportunities actually may exist, the likelihoodof this plaintiff working his or herway up the ranks, and both the company’sand this employee’s ultimate longevity.Needless to say, if a plaintiff claimsthat he or she someday planned to moveto greener pastures in some other business,industry, or professional field, thatclaim only magnifies the guesswork inherentin his or her claim and presents anopportunity to demonstrate that the plaintiffattempted to dupe the jury. You muststrongly challenge the verifiability of thisclaim that the plaintiff intended to pursuethese plans. You can’t simply rely on a juryto agree with your argument that a plaintiffcan’t prove that he or she had lofty butthwarted dreams because without contradictoryevidence, or at least showing thatthe plaintiff didn’t actually pursue thesegoals, the jury may very well give him orher the benefit of the doubt. Many injuredplaintiffs will claim that they planned toobtain new degrees or training that wouldhave allowed them greater opportunities.You must explore this fully in depositions,examining what steps, if any, the plaintiffactually has taken to that point, what currentlyhas prevented the plaintiff from pursuingthose “plans,” how long it would taketo carry them out and the investment necessaryto succeed, and the opportunitiesavailable to someone in that industry.Finally, depending on the exact nature ofa plaintiff’s injury, is it reasonable to believethat this plaintiff is completely unemployable?Although a plaintiff’s attorney willargue that it is demeaning for a professionalperson to take a job as a departmentstore cashier, if a plaintiff can hold a job ofany type, you should explore the options inan attempt to mitigate the otherwise hugeclaimed future earnings loss. One usefulpublication is the Dictionary of OccupationalTitles with O*NET Definitions (6thEdition), which comprehensively lists literallyevery vocation, trade, job, or professionin existence and helps demonstratehow little an allegedly unemployable plaintifftruly has done to investigate his or heractual options.To illustrate loss, plaintiffs’ attorneysusually will call an economic expert toproject not only the simple loss of wagesfor the next 30 years of unemployment,but all of the other less obvious lossesas well. These include projections of theincome that a plaintiff would have madein the alleged field of new opportunitiesthat the plaintiff planned to pursue. WhileGeorge H. W. Bush may have coined theterm “voodoo economics,” plaintiff economicexperts clearly put that concept intoplay. Using various tables on the growthof wages and benefits, studies on the educationaland location variables about jobavailability, and “data” on the likelihoodof advancement and professional growth,these economists will come up with figuresthat far exceed those calculated by simplymultiplying a plaintiff’s last salary timesthe 30 years he or she supposedly won’twork. However, these same economists areactually quite adept at honestly admittingthat they are not predicting actual loss butsimply projecting or estimating potentialnumbers that will come to pass only if variousassumptions hold true. For instance,to arrive at these numbers the economistprobably assumed one or more of the following:a plaintiff’s employer would stay inbusiness, the plaintiff would succeed sufficientlyin his or her current position toqualify for certain promotions, those promotionalpositions actually would becomeavailable, he or she would take a job in hisor her claimed new field, inflation wouldstay at X percent, or wages would growat Y percent. Although an economist willquickly acknowledge that he or she personallycannot make those predictions,you must go through all the assumptionsthat he or she has made and get him or herto concede that each one may not actuallyoccur, and that if they do not, it will negativelyimpact his or her projections or evenmake them inaccurate. The more timesthat an economist admits that somethingis an “assumption,” and something thatmight not ever occur, the closer the houseof cards may come to at least partial collapse.Likewise, when addressing futuredamages during a closing argument, youshould focus on the many “assumptions”that purportedly supported a plaintiff’sclaim, equating assumptions with wishfulthinking.Other “Economic” Loss (Valueof Services Provided)Another way that plaintiff’s attorneys increasinglyuse “economic” expert testimonyis to assign a value to the services providedby an injured plaintiff to his or her family.Nobody who has ever been a stay-at-homeparent or taken care of the general needs ofa household would ever suggest that thoseservices don’t have value. In light of thelimitations placed on noneconomic damagesby caps, however, plaintiffs’ attorneysare more likely than ever to ask their economicexpert to assign a monetary value tothese services so that they can submit themas part of the consortium of a plaintiff’s economicloss and avoid losing the amount to adamages cap. Economic experts have usedvarious studies or economic literature tosupport these projections, including TheDollar Value of a Day, by Expectancy Data:Economic Demographers. Since you mustbe cautious about attacking these allegedloss components for fear of alienating a jurythat will agree that they have some value,you must make a strategic decision aboutwhether or not it is better to allow the juryto consider these figures as evidence andsimply concede that the defense doesn’tquarrel with them, demonstrating that youwon’t fight about every little penny. On theother hand, if you feel that an opponent haspresented a damages claim through thesefigures, you must resist. You should tryFor The Defense ■ September 2012 ■ 71

Medical Liability and Health Care LawAttackinga life-careplan must be donewith caution becausequestioning can becomea dual-edged sword.challenging the underlying foundation ofthe economist’s projections by raising theissue of alternative literature to plant theseed with the jury that not all experts agreewith the figures used by the plaintiff’s economist.Likewise, you can also suggest thatsomeone’s contribution to household needsslowly diminishes over time with the departureof children from the nest and the tendencyof older people to move into smallerhousing requiring less effort to maintain,for example.Future Medical Expense(Life-Care Plan)Perhaps no elements of economic damagesthat courts routinely admit into evidenceare as rank with speculation and conjectureas the projections made by “life-care” planners,usually nurses with a “certificate.”Often with little more documentation thana plaintiff’s medical records and liberallyinterpreting some physician’s note aboutthe plaintiff’s prognosis and treatmentplan, this “expert” will make artistic use ofspreadsheets and tables to itemize the surgicalneeds, physician and psychiatric visits,medical supplies, medications, homeimprovements, ambulation and movementmodalities, special diets, and more thatthe plaintiff will need and project costsfor these items on a per annum or lifetimebasis. Likewise, in an attempt to appearreasonable, a life-care planning expert frequentlywill claim to have researched boththe cheapest and most expensive optionsavailable for each item, assigning a “low”cost projection and a “high” cost projectionfor future care needs. Needless to say,plaintiffs’ attorneys are thrilled to havea jury even “split the difference” in thesefuture care-need ranges, which generally72 ■ For The Defense ■ September 2012mean a significant seven to eight figureverdict. However, even the “low” end figuresultimately amount to millions of dollarsover the assumed life expectancy ofa plaintiff, which is what makes it worthyour while to take painstaking care to tryto demonstrate a life-care plan’s inaccuracyand lack of true merit.Most plaintiffs’ attorneys prove “lifeexpectancy” by simply reading the U.S.Bureau of Labor life tables to a jury, whichcan seem unimpeachable. However, a50-year-old man with congestive heartfailure, a 30-year smoking history, COPD,hypertension, and diabetes does not havethe same life expectancy as the “average”male on these life tables. When the differenceis significant, and the extended lifeexpectancy will lead to substantial multiplicationof the future damages that aplaintiff claims, it may be worthwhile foryou to call an actual expert witness on lifeexpectancy to explain to a jury in simpleterms why, due to a plaintiff’s multiple preexistingor other health conditions, the lifetables don’t really apply to this plaintiff.In general, we are not advocates ofendorsing and offering expert testimonyat trial from either a defense economist ordefense life care planner, except in thosecases where the defense almost concedesthat a plaintiff’s verdict is likely, and themain goal is to limit a runaway damageverdict. Otherwise, the simple act of callingan economist or a life-care planner for yourside may convey exactly that message to thejury: we cannot defend our client so we justwant to try to reduce damages. We recognizethat this is a strategic decision that youmust wrestle with on a case-by-case basis.On the other hand, we do recommendthat a defense team at least retain a “consulting”economist and life-care plannerto assist in evaluating a plaintiff’s expert’sprojections in these areas when your jurisdiction’sprocedural rules protect you andyour client so that your opponent cannotdiscover a consulting expert’s identity.Regarding a life-care plan, a good consultingdefense expert can assist in formulatingyour cross- examination of a plaintiff’sexpert during a trial, to help you avoid steppingin any traps regarding certain planitems and to help you attack those items onthe plaintiff life-care plan that are a completestretch.Life-care planners seem to fall into oneof two categories: those whose plans limitthe total number of actual items that theylist and focus instead on “big ticket” items,and those who itemize future needs downto the number of sanitary wipes that aplaintiff will use per year. The typical itemslisted in either type of life-care plan include• Office visits with various physicians• Surgical and hospital care• Specialized transportation (vans, wheelchairlifts, hand operative devices)• Home modifications• Adjustable bed• Wheelchairs, crutches, walkers, canes• Medications• Lifts for shower, bath, bed, stairs• Attendant care by RNs, LPNs or aides.• Therapy (OT, PT, RT)Besides these obvious care needs thatyou can expect to see itemized, the “other”group of life-care planners seem to believethat they can convey a sense of thoroughnessby articulating items down to theminutia. We recently received a life-careplan that included hundreds of future careneed items, including• Replacement cane tips• Electrode patches for a TENS unit• Ergonomic long-handled sponge• Long-handled shoehorn• Number of jars of Vaseline neededannually• Adaptive jar/bottle opener• Sanitary wipes• Washable bed pads• Exercise equipment• Gym membership• Stationary bikeAlthough these items at least make somemedical sense, that same life-care planwent on to list various items that, in theory,have nothing to do with the medicalneeds of that plaintiff.• Automobile oil changes• CD player• Audio books (two per month)• Hair dryer stand• Lightweight folding chair• Automobile tire rotation• Cell phone charger• Wheelchair tote bag• Walker pouch• Elevated garden cart• Snow removal• Lawn maintenance

• Replacement tennis balls for walkerIn reviewing all of these items, you can’thelp but think that someone has attemptedto “pad” the damages. Tennis balls… really?Needless to say, we could argue that whetheror not this plaintiff was injured, the plaintiff’svehicle would still need oil changesand tire rotations; the plaintiff would stillneed a cell phone charger; the plaintiff probablyalready has a CD player; a hair dryerstand is unnecessary; a stationary bike, gymmembership, and weight set are redundant;and a gardening cart is a luxury that isn’t amandatory care item. And, are audio booksa “need”? The response from this life-careplanner to our feigned shock at this lengthylist of items, however, and the one that youcan expect to hear from every plaintiff’slife-care planner, is that a life-care planner’sjob is to try to consider all of the day-to-dayitems that a plaintiff might need, to anticipateall of the things that a plaintiff simplycan no longer do him- or herself, thingsthat the plaintiff desperately wishes that heor she could do, and to consider how to allowthe plaintiff to live as normally but assafely as possible, anticipating all potentialscenarios of concern.Although it is frequently a stretch, jurorsdo seem to accept the notion that certainthings that an injured plaintiff canno longer do for him- or herself, even ifhe or she rarely did them before, havesome value. Ultimately, when faced witha seemingly absurd projection—maybe32 weeks of snow removal in a climatethat sees an average of three snowstormsper year—carefully questioning a life-careplanner on the actual research that he orshe did to reach that projection is important.Although, as do the economic experts,life-care planners will ultimately make astatement such as, “if the jury doesn’t agreewith these projections then I presume theywill award less,” it is important to respondby politely pointing out that “you listed 32weeks of snow removal, when you knowthis area averages only three snowstorms ayear.” The idea is to show a jury that a plaintiff’sattorney has tried to inflate the damages.You might just plant the seed of doubtin the jurors’ minds about the credibility ofthe rest of a life-care plan.The big ticket items in a life-care plan, asnoted above, often include home “modifications,”special automobiles or vans, largeassistive devices such as hospital beds orelectric wheelchairs, and nursing or nurseaidhome care. You must evaluate each ofthese items carefully, the extent to whichfar cheaper alternatives are available, includingstate services, if that inquiry doesnot violate your state’s collateral sourcerule, and the true need for each. For example,some life-care plans will list 24-hour-Damages, continued on page 86You don’t need a sales pitch.You need answers.You don’t need an estimate.You need a budget.You don’t need excuses.You need results.We are not like the others.We are Precise.Whether you’re facing a complex eDiscovery projector a multifaceted trial, the unexpected is going tohappen. With more than a decade of experience,Precise is prepared for the unexpected.eDiscoveryDocument ReviewTrial Servicesprecise-law.com© 2012 Precise, Inc.For The Defense ■ September 2012 ■ 73

Medical Liability and Health Care LawKidney TransplantInvolving HIVContractionBy Matthew L. JohnsonThe SuccessfulDefense ofan Informed-Consent CaseA review of one verdictin an informed-consentcase, noteworthydue to the nationallypublicized circumstancessurrounding theunderlying event thatled to the lawsuit.On November 16, 2011, a 12- member Cook County, Illinois,jury found in favor of a major Chicago teaching hospitalin an informed- consent medical malpractice case inwhich the plaintiff’s attorney sought over $50 million dol-lars in compensatory damages. The casewas tried by William V. Johnson, presidentof Chicago’s Johnson & Bell, who representedthe University of Chicago MedicalCenter (UCMC). He was assisted at trialby Johnson & Bell shareholder Matthew L.Johnson and associate Erin E. Blake.The verdict is noteworthy due to thenationally publicized circumstances surroundingthe underlying event that ledto the lawsuit. In November 2007, almostfour years to the day that the verdict camedown, four Chicago- area organ recipientstested positive for human immunodeficiencyvirus (HIV) and hepatitis C. Thediagnoses of these infections among thetransplant recipients came within a yearof their respective transplants. The organsfor the transplants came from a deceasedadult male who, unbeknownst to anyoneinvolved, had contracted HIV and hepatitisC in the months before his fatal caraccident. His relatives made the decisionto donate his organs, and when the organswere harvested, they were tested for infectiousdiseases, including HIV and hepatitisC. Because the man contracted these infectionsduring the “window” period betweentransmission and conversion to seropositivestatus, the organs tested negative at thetime that they were harvested. Before thesecases the last known transmission of HIVfrom an organ transplant had occurred inthe late 1980s.Illinois-based Gift of Hope, the organprocurement organization that contactedthe various Chicago transplant centersabout the availability of the organs, wasthe entity that tested the organs for infectiousdiseases, including HIV. When thishappened, and even today, the standardtest used in this scenario was the “ELISA”test. This test generally can detect antibodiesto HIV within a window of about threemonths. Nucleic acid testing (NAAT), whichtests for DNA or RNA of actual viruses, wasnot commonly available in 2007 in this settingand was not used in these cases. Nucleicacid testing can diagnose even infectionsobtained within 2–4 weeks of the test.■ Matthew L. Johnson is a shareholder with Johnson & Bell, Ltd., in Chicago. He is a co-chair of the firm’s health care law practicegroup. His practice is devoted to the defense of hospitals and other health care providers in medical negligence cases. Mr.Johnson also defends retailers and restaurants in premises liability claims. He is a member of the DRI Medical Liability andHealth Care Law Committee.74 ■ For The Defense ■ September 2012

The plaintiff’s attorney’s theory of liabilityin the Chicago trial did not have todo with the testing modalities used. Rather,central to the theory of liability was the socialhistory of the deceased donor of the organsat issue. According to the social historythat was provided by his relatives to theorgan procurement organization, the deceaseddonor was a homosexual. The plaintiff’sattorney predicated liability on theplaintiff’s testimony that had the plaintiffknown that the decedent was a homosexual,she would not have accepted the organfor transplant. In 2007, when the plaintiffreceived the organ, the informed- consentpractices used by transplant centers variedwidely throughout the United States.A key trial issue was the relevance andapplication of certain guidelines issued bythe Centers for Disease Control and Prevention(CDC) to the transplant surgerycommunity, specifically, the “CDC Guidelinesfor High Risk Behavior,” which outlinedthe CDC’s definition of high risk fororgan donors:Donor Exclusion CriteriaRegardless of their HIV antibody testresults, persons who meet any of thecriteria listed below should be excludedfrom donation of organs or tissuesunless the risk to the recipient of notperforming the transplant is deemedto be greater than the risk of HIVtransmission and disease (e.g., emergent,life- threatening illness requiringtransplantation when no other organs/tissues are available and no other lifesavingtherapies exist). In such a case,informed consent regarding the possibilityof HIV transmission should beobtained from the recipient.Behavior/History Exclusionary Criteria1. Men who have had sex with anotherman in the preceding five years.2. Persons who report nonmedicalintravenous, intramuscular, or subcutaneousinjection of drugs in thepreceding five years.3. Persons with hemophilia or relatedclotting disorders who have receivedhuman derived clotting factorconcentrates.4. Men and women who have engaged insex in exchange for money or drugs inthe preceding five years.5. Persons who have had sex in the preceding12 months with any persondescribed in items 1–4 above or witha person known or suspected to haveHIV infection.6. Persons who have been exposed in thepreceding 12 months to known or suspectedHIV- infected blood throughpercutaneous inoculation or throughcontact with an open wound, nonintactskin, or mucous membrane.7. Inmates of correctional systems.(This exclusion is to address issuessuch as difficulties with informedconsent and increased prevalence ofHIV in this population). (emphasis inoriginal).During the trial, the plaintiff’s attorneyargued that the CDC guidelines set thestandard of care for the transplant surgeonat the UCMC who performed the kidneytransplant. The plaintiff’s transplant surgeryexpert, citing these guidelines, opinedthat the UCMC transplant surgeon wasrequired to obtain the plaintiff’s informedconsent for the use of an organ designatedby the CDC as high risk before performingthe operation.The defendant’s attorney’s response tothis argument was, first and foremost,that the CDC did not set the standardof care for transplant surgeons. Rather,the standard of care on this issue wasestablished in conjunction with the writtenpolicies of the Organ Procurement andTransplantation Network (OPTN). The U.S.Congress established the OPTN when itenacted the National Organ Transplant Act(NOTA) of 1984. The act called for a unifiedtransplant network that a private, nonprofitorganization would operate under afederal contract. Then, following furtherstudy and recommendations from a NOTAcommissionedtask force, the U.S. Departmentof Health and Human Services (HHS)solicited proposals in 1986 for the operationof the OPTN. The United Network forOrgan Sharing (UNOS) was awarded theinitial OPTN contract in September 1986,and the UNOS has continued to administerthe OPTN since that time. Effective March2000, the HHS implemented a final ruleestablishing a regulatory framework forthe structure and operations of the OPTN.Under the terms of the final rule, policiesintended to be binding upon OPTN membersare developed through the OPTN committeesand board of directors and thensubmitted to the secretary of the HHS forfinal approval.On the issue of communicating a donor’ssocial history, the OPTN policies as theyexisted in January 2007 when the plaintiff’stransplant occurred did not requirethat a hospital obtain informed consentfrom the recipient of a CDC- designated,high-risk donor before surgery. Rather, theOPTN guidelines, as revised on November19, 2004, stated as follows:4.0 Acquired Immune DeficiencySyndrome (AIDS), Human PituitaryDerived Growth Hormone (HPDGH),and Reporting of Potential RecipientDiseases or Medical Conditions, IncludingMalignancies, of Donor Origin4.1 Screening Potential Organs forHIV. All potential donors are to be testedby use of a screening test licensed by theU.S. Food and Drug Administration(FDA) for Human Immune DeficiencyVirus (HIV). If the potential donor’spre- transfusion test for HIV is negativeand blood for subsequent transfusionshas been tested and found to benegative for HIV, retesting the potentialdonor for HIV is not necessary. If nopre- transfusion sample of the potentialdonor’s blood is available, the Host OPO[organ procurement organization]…must provide, to the recipient transplantcenter the screening results anda complete history of all transfusionsreceived by the donor during the ten (10)day period immediately prior to removalof the organ. Organs from donors witha positive screening test are not suitablefor transplantation unless subsequentconfirmation testing indicates that theoriginal tests’ results were falsely positivefor HIV. If additional tests relatedto HIV are performed, the results of alltests must be communicated immediatelyto the Organ Center and all institutionsreceiving organs from the donor.Exceptions for cases in which the testingcannot be completed prior to transplantare provided in paragraph 4.1.3 below.4.1.1 Donor History. The Host OPO[organ procurement organization] willobtain a history on each potential donorin an attempt to determine whetherthe potential donor is in a “high risk”For The Defense ■ September 2012 ■ 75

Medical Liability and Health Care Lawgroup, as defined by the Centers forDisease Control. The Host OPO [organprocurement organization] must communicatethe donor history to all institutionsreceiving organs from the donor.(emphasis added).It was the last sentence of section 4.1.1 ofthe OPTN policies that was critical to theparties’ respective theories in the case. TheThe standard of care inthe transplant communityafter the publication ofthe four Chicago caseswas used to highlight theUCMC’s transplant surgeon’scompliance with the prevailingstandard of care as itexisted in January 2007.plaintiff’s attorney took the position that4.1.1 infers an informed consent processbetween the institution performing theorgan transplant and the potential organrecipient; otherwise, the organ procurementorganization would not have a reasonto communicate the donor history tothe institution performing the organ transplant.Meanwhile, the defendant’s attorneyargued that this sentence did not mean thatinformed consent was required; rather, thetransplant surgeon needed to receive informationthat a donor belonged to the highriskgroup as defined by the CDC and toweigh it in counseling a patient about thebenefits of accepting a particular organfor a transplant. In other words, the transplantcommunity had not yet adopted aspecialized informed- consent process forusing CDC- designated, high-risk organs.Therefore, it was incumbent on the individualtransplant surgeon to weigh the riskof infection against the benefit of a transplant,and it was not necessary under thestandard of care as it existed at the time76 ■ For The Defense ■ September 2012to obtain a specialized informed consentto use a CDC- designated, high-risk organ.The defense expert on this issue wasDr. Dorry L. Segev, a transplant surgeonand epidemiologist on the staff of TheJohns Hopkins Hospital, Baltimore, Maryland.During the trial, Dr. Segev testifiedregarding the interplay between the CDCguidelines and the OPTN policies and thestandard of care for transplant surgeons asit existed in January 2007 in this scenario.Dr. Segev testified,So in January, 2007, the standard consentprocess was the physician woulddistill down the important aspects ofthe donor to tell the recipient so theycan make an educated decision aboutwhether to accept the organ or not. Thebehavioral criteria that had been identifiedby the CDC in 1996 were nowhere onthis radar because 20 years had gone by,not a single HIV infection had occurred.There are hundreds of other more importantthings we need to talk to the patientabout, and so it was within the purviewof the physician obtaining informedconsent as to what aspects of the donorhistory should be discussed. And usuallyin those situations it was donor kidneyfunction, the creatinine, the age,hypertension, the cause of death. So ifit was stroke, it means there’s more vasculardisease than not. These things thatwill determine—will predict whether akidney will last longer or less time, thosewere the things that were the standard ofcare. The standard of care was you as aphysician, as part of the art of medicine,would tell the patient what you felt wasimportant for them to know at the time.See Trial Tr., A.M. v. U.C.M.C., Nov. 9, 2011,at 112–13.Dr. Segev noted that annually over16,000 persons in the United States diedwhile waiting on the transplant wait list fora suitable organ and that the list had over92,000 persons on it. See Trial Tr., A.M. v.U.C.M.C., Nov. 9, 2011, at 41. Meanwhile,over 425,000 transplants had occurredsince the 1980s without transmitting HIVfrom a donor to a recipient. See Trial Tr.,A.M. v. U.C.M.C., Nov. 9, 2011, at 41. Therefore,Dr. Segev testified that “I and thegeneral transplant community [feel] verystrongly that these organs should be madeavailable because the risk of transmissionof HIV is incredibly small.” See Trial Tr.,A.M. v. U.C.M.C., Nov. 9, 2011, at 111–12.The jury weighed Dr. Segev’s testimonyin conjunction with evidence regarding theOPTN guidelines implemented after thetransplanting occurred in this case. Theseguidelines read as follows:4.1.1. Communication of Donor History.The Host OPO [organ procurementorganization] will obtain a historyon each potential donor in an attempt todetermine whether the potential donoris in a “high risk” group, as defined bythe Centers for Disease Control and Prevention(CDC). If the donor meets thecriteria…, the Host OPO [organ procurementorganization] must communicatethis information regarding donor historyto all institutions receiving organsfrom the donor.…If the transplant center receives informationfrom the Host OPO [organ procurementorganization] that the donor meetsany of the above criteria, the transplantcenter must inform the potential recipientprior to implantation. The transplantcenter shall maintain documentation ofthe potential recipient’s informed consentto receive an organ from the donorwho meets any of the above criteria.In the event that the potential recipientis not able to provide informed consent,the legal next of kin, designatedhealthcare representative, or appropriatesurrogate may provide consent onthis matter. (emphasis added).The standard of care in the transplantcommunity after the publication of thefour Chicago cases was used to highlightthe UCMC’s transplant surgeon’s compliancewith the prevailing standard of careas it existed in January 2007.The second primary argument that thedefense attorney raised was that althoughthe standard of care did not require theUCMC transplant surgeon to obtain a specializedinformed consent to implant aCDC- designated, high-risk organ, neverthelessa member of the transplant surgeon’steam, a nurse coordinator, had informed thepatient of the donor’s homosexuality. Thejury heard testimony from the coordinator,who testified that it was her custom andpractice to provide such information. Thejury also heard testimony from the plain-

tiff, who denied that she was told that thedeceased donor was a homosexual. She andher family testified that the first time thatplaintiff learned that the deceased donorwas a homosexual was when she was diagnosedwith HIV and hepatitis C in November2007. Moreover, the plaintiff testifiedthat she previously had rejected two previouskidney offers on the basis of the socialhistory that the coordinator had providedto the plaintiff. Although the jury heard andconsidered this testimony regarding the twoprevious kidney offers, despite a defense objectionand a pretrial motion in limine, thedefendant’s attorney used it to argue thatthe plaintiff knew about CDC- designated,high-risk organs due to her years on thetransplant list and the education that shereceived during those years, and she decidedto accept the kidney with knowledgeof the donor’s homosexuality.In Illinois, it is rare for a medical malpracticecase to proceed to a trial exclusivelyon an informed- consent theory. Inthese cases, a jury receives the followinginformed- consent instructions:In providing medical [services] [care][treatment] to [patient’s name], a [insertappropriate medical professional]must obtain [patient’s name]’s informedconsent.When I use the expression “informedconsent” I mean a consent obtainedfrom a patient by a [insert appropriatemedical professional] after the disclosureby the [insert appropriate medicalprofessional] of those [risks of] [and][or] [alternatives to] the proposed treatmentwhich a reasonably well- qualified[insert appropriate medical professional]would disclose under the sameor similar circumstances. A failure toobtain informed consent is professionalnegligence.[The only way in which you maydecide what (risks) (and) (or) (alternatives)the [insert appropriate medicalprofessional] should have disclosed to[patient’s name] is from expert testimonypresented in the trial. You mustnot attempt to determine this from anypersonal knowledge you have.]The instruction on burden of proofreads, in part, as follows:The plaintiff claims that defendant failedto inform the plaintiff of those [risks][and] [or] [alternatives to] the [describedthe procedure performed] which a reasonablywell- qualified [insert appropriatemedical professional] would havedisclosed under the same or similarcircumstances; plaintiff further claimsthat if the defendant had disclosed those[risks] [and] [or] [alternative], a reasonableperson in the plaintiff’s positionwould not have submitted to the [describethe procedure performed]; andthe plaintiff further claims that he wasinjured, and the defendant’s failure todisclose [risk] [and] [or] [alternatives]was a proximate cause of that injury.The defendant [denies that he failed toinform the plaintiff of those [risks of][and] [or] [alternatives to] the [describethe procedure performed] which a reasonablywell- qualified [insert appropriatemedical professional] would havedisclosed under the same or similar circumstances;denies that a reasonableperson in the plaintiff’s position wouldnot have submitted to the [describe theprocedure performed] after being told ofthose [risks] [and] [or] [alternatives]; [deniesthat the plaintiff was injured or sustaineddamages] to the extent claimed;and denies that any failure to disclosethose [risks] [and] [or] [alternatives] wasa proximate cause of any injury].See Illinois Pattern Jury Instructions105.07.01 and 105.07.03 (2011).With these instructions in mind, thedefendant’s attorney argued that a reasonableperson would have submitted tothe transplant under the circumstancesin this case: the plaintiff had been on thetransplant list for seven years and hadrecently converted to a dialysis method thatrequired a port in her neck, and, statisticallyspeaking, a patient faced an increasedrisk of a chance of death for each year thatthe patient was on dialysis, whereas, sincethe late 1980s, among over 425,000 transplants,no reported case of HIV transmissionexisted.The court denied a directed verdictmotion, grounded in the plaintiff’s testimonythat had she known of the risks ofdeath versus contracting HIV and hepatitisC she would not have proceeded withthe surgery, based on a ruling that the relevanttestimony was equivocal. Nevertheless,the defendant’s attorney used thetestimony to highlight the apparent lackof meaningful risk in obtaining an organfrom a CDC- designated, high-risk individualas of January 2007.In closing argument, the plaintiff’s attorneyargued that the evidence was unequivocalthat the UCMC negligently had practicedinformed consent for the implantation of aCDC- designated, high-risk kidney to theplaintiff, and she would not have acceptedthe organ had she received a properly implementedinformed consent. It followedthat then she would not have had the surgeryand she would not have contracted HIVand hepatitis C. Meanwhile, the defendant’sattorney argued that while the standard ofcare did not require a specialized informedconsent in this scenario, nonetheless the defendanthad provided the plaintiff with thedeceased donor’s history of a homosexuallifestyle, and the fact of that history was ather disposal when she made the decision toproceed with the surgery.Informed Consent, continued on page 87For The Defense ■ September 2012 ■ 77

Medical Liability and Health Care LawThe NationalPractitioner Data BankBy Stephen A. ManueleAdministrativeChallenges toReports andAssociated TortsYou should closelymonitor case law relatedto NPDB reporting,HCQIA immunity,and administrativereview, as it continuesto develop and evolve.Attorneys who represent health-care providers willundoubtedly encounter the federal National PractitionerData Bank (NPDB) during their careers. Many defenseattorneys deal with the NPDB and its enabling statute, theHealth Care Quality Improvement Act of1986 (HCQIA), which, among other things,governs medical malpractice paymentreporting requirements. In addition tomedical malpractice cases, when defenseattorneys represent hospitals they may contendwith the NPDB and the HCQIA whenthey encounter a state or federal lawsuitby a health-care provider who was subjectedto an adverse peer review action whothen sued a hospital for defamation, tortiousinterference with business relations,or negligence.Navigating the HCQIA reportingrequirements may require a detour intoadministrative law. Likewise, a foray intoagency practice may have consequences fora pending lawsuit. This article will discussthe NPDB and HCQIA, the immunity provisionsof the statute, the U.S. Departmentof Health and Human Service administrativereview of NPDB reports, and the effectsuch an administrative decision may haveon pending litigation between a reportingentity and the report’s subject.Health Care QualityImprovement Act of 1986Congress enacted the HCQIA to preventmalpractice, to improve the quality ofhealth care, and to ensure that incompetentphysicians could not move from stateto state without disclosing or others fromdiscovering a physician’s previous damagingor incompetent performance. 42 U.S.C.§11101(1)–(2) (2012). The HCQIA seeks topromote these goals through professionalpeer review, which it accomplishes, in part,by limiting the civil liability of the physicians,administrators, and health-careentities involved in professional reviewactions. Id. at §11101 (3)–(5).The HCQIA established the NationalPractitioner Data Bank (NPDB) to collectand release certain information about theprofessional competence and conduct ofphysicians, dentists, and other health-carepractitioners. See 42 U.S.C §11101 et seq.;45 C.F.R. §60.1 (2010). The HCQIA and theHCQIA regulations determine which professionalreview actions and other events■ Stephen A. Manuele is a partner with Feldman Kieffer LLP in Buffalo, New York. Mr. Manuele concentrates his practice incivil litigation and the representation of health care professionals and organizations. He is a member of the Medical Liability andHealth Care Law committee of DRI and the New York State Bar Association. Matthew Kibler, Esq., an associate of Feldman Kieffer,LLP, assisted in the research and preparation of this article.78 ■ For The Defense ■ September 2012

and which entities must report to the NPDBunder which circumstances.The National Practitioner Data Bankprimarily is an alert or flagging system.Congress intended the information thatit contains to direct discrete inquiry intoand scrutiny of specific areas of a practitioner’slicensure, professional society memberships,medical malpractice paymenthistory, and record of clinical privileges.According to the National PractitionerData Bank Guidebook, the “information inthe NPDB should serve only to alert Statelicensing authorities and health care entitiesthat there may be a problem with aparticular practitioner’s professional competenceor conduct.” Nat’l Practitioner DataBank Guidebook, Pub. No. HRSA 95-255, atA-3. Notably, the federal Privacy Act protectsthe contents of the NPDB from disclosureto the general public. 5 U.S.C. §552a(2012). Additionally, section 11137 (b)(1) ofthe HCQIA considers information reportedunder the statute confidential and preventsdisclosing it, other than to the physician orthe practitioner involved, except to hospitalsseeking information from the NPDB tofulfill their legal obligation to obtain thatinformation about applicant physicians.See 42 U.S.C. §11135(b) & (c).The HCQIA requires reports to the NPDBfor the following events: (1) medical malpracticepayments made on behalf of aphysician, (2) state licensure disciplinaryactions based on reasons related to professionalcompetence or conduct, (3) professionalreview actions based on reasonsrelating to professional competence orconduct adversely affecting membership,(4) exclusions from Medicaid or Medicareand other federal programs, and (5) a professionalreview action that adversely affectsthe clinical privileges of a physician for a periodlonger than 30 days. See Nat’l PractitionerData Bank Guidebook, supra, at E-2; 42U.S.C. §11131, et seq. Additionally, section11133 requires a health-care entity to reportto the state board of medical examiners andto the secretary of the U.S. Department ofHealth and Human Services incidents whenit “accepts the surrender of clinical privilegesof a physician… while the physician isunder an investigation by the entity relatingto possible incompetence or improper professionalconduct,….” 42 U.S.C. §11133(a)(1)(B) (2012); 42 U.S.C. §11134 (b) (2012).While a physician may certainly disagreewith the findings of a professionalreview action, the battle over the reviewdetermination typically arises once thereviewer makes a final report and providesit to the NPDB. Once the NPDB receives areport, the findings may follow a physicianthroughout his or her practice anywhere inthe United States.The HCQIA Immunity ProvisionIn enacting the HCQIA, Congress realizedthat effective peer review also requiresthat the individuals or entity conductingthe review have immunity from liabilityas long as such a review is reasonable andbased on the facts so the act includes animmunity provision.According to section 11101 of the HCQIA,Congress found that the nationwide problemsof increasing occurrences of medicalmalpractice, the need to improve the qualityof medical care, and the need to restrictthe ability of incompetent physicians tomove among the states without disclosingor others discovering a physician’s previousdamaging or incompetent performance“can be remedied through effectiveprofessional peer review.” 42 U.S.C. §11101(2012). Congress also explicitly found that“[t]here is an overriding national need toprovide incentive and protection for physiciansengaging in effective professionalpeer review.” Id.The HCQIA immunity provision specifiesthat if a review action meets certainstandards, the participants in the peerreview process resulting in the professionalreview action “shall not be liablein damages under any law of the UnitedStates or of any State (or political subdivisionthereof) with respect to the action.”42 U.S.C. §11111(a)(1) (2012). Under theHCQIA, to qualify for immunity a reviewingbody and individuals participating init must take a professional review action(1) in the reasonable belief that theaction was in the furtherance of qualityhealth care; (2) after a reasonableeffort to obtain the facts of the matter;(3) after adequate notice and hearingprocedures are afforded to the physicianinvolved or after such other proceduresas are fair to the physician underthe circumstances; and (4) in the reasonablebelief that the action was warrantedby the facts known after such reasonableeffort to obtain facts and after meetingthe requirement of paragraph (3).Id. at §11112(a).Immunity under the HCQIA is a questionof law that a court may resolve wheneverthe record is “sufficiently” developed.McLeay v. Bergen Mercy Health SystemsCorp., 271 Neb. 602, 714 N.W.2d 7 (Neb.2006). Additionally, the HCQIA statuteexpressly requires that it “shall be presumed”that the reviewing body has metthe professional review standards unless apreponderance of the evidence rebuts thepresumption. 42 U.S.C. §11112(a) (2012).See F.R.E. 301 (2012).A professional peer review action willsatisfy the requirements of 42 U.S.C.§11112(a)(1) immunity if peer reviewers,with the information available to them atthe time of the professional review action,would reasonably have concluded that theiraction would restrict incompetent behavioror would protect patients. Bryan v. HomesRegional Med. Ct., 33 F.3d 1318 (11th Cir.1994). Courts use an objective standard ofreasonableness when considering whethera professional peer reviewer has met thestatutory requirements of the HCQIA forimmunity. Egan v. Athol Mem. Hosp., 971F. Supp. 37 (D. Mass. 1997). A defendant’s“subjective bad faith or hostility is irrelevant”when he or she has participated in apeer review. Id.In addition to the peer review immunity,section 11137(c) of the statute affordsadditional immunity to health-care entitiesfrom liability associated with submittingNPDB reports, stating that “No person orentity… shall be held liable in any civil actionwith respect to any report made under42 U.S.C. §§11131 et seq.… without knowledgeof the falsity of the information containedin the report.” Civil action immunityunder section 11137(c) extends to state tortclaims when a plaintiff claims damages thatsolely resulted from a report to the NPDB.See Lee v. Hosp. Auth. Of Colouitt Co., 353F. Supp. 2d 1255 (M.D. Ga. 2004).False report immunity is important, forexample, in defending against an actionwhen a report subject abandons physicianpracticeprivileges while undergoing ahospital peer review investigation, whichtriggers an obligation by the hospital toreport the physician to the NPDB underFor The Defense ■ September 2012 ■ 79

Medical Liability and Health Care Lawsection 11131. Under the HCQIA, an investigationterminates when the health-careentity takes final action or formally closesits probe. Doe v. Leavitt, et al., 552 F.3d 75(1st Cir. 2009); Lee v. Trinity Lutheran Hospital,408 F.3d 1064 (8th Cir. 2005); Polinerv. Tex. Health Sys., 537 F.3d 368 (5th Cir.2008). If a reporting entity cannot completean investigation and the reportingWhen parties disputethe factual accuracy of anNPDB report in a lawsuit, anadmissible secretarial reviewcan support immunity.entity takes a final action, the entity mayassert false reporting immunity if a physiciansues it alleging false reporting.No Private Right of ActionUnder HCQIAFederal courts have held that the HCQIAdoes not create a private right of actionallowing a physician to challenge a reportmade to the NPDB, either in law or inequity. Brown v. Medical College of Ohio,79 F. Supp. 2d 840 (N.D. Ohio 1999). Cf.Carter v. BlueCross BlueShield of Tennessee,Inc., 2006 U.S. Dist. Lexis 24899 (E.D.Tenn. 2006).In Brown v. Medical College of Ohio,the plaintiff initiated an action to enjointhe defendant from reporting his resignationto the NPDB until the defendant hadcompleted the professional review process.In reviewing the legislative history of theHCQIA and its regulations, the court heldthat physicians were not a “class for whoseespecial benefits the Act was passed.” 79F. Supp. 2d at 845. Moreover, the courtnoted that permitting a private right ofaction would contravene the administrativechallenge process created by theHCQIA regulations.In a similar case, the court in Carter v.BlueCross BlueShield of Tennessee, Inc., followedthe Brown decision and denied theplaintiff’s temporary injunction to enjoin80 ■ For The Defense ■ September 2012the defendant from reporting the plaintiffto the Health Care Integrity ProtectionData Bank (HIPDB), a companion reportingdata bank created by the federal HealthInsurance Portability and AccountabilityAct (HIPAA). 2006 U.S. Dist. Lexis 24899(E.D. Tenn. 2006). As happened previouslywith the HCQIA, the court in this casedid not find that a private cause of actionexisted under HIPAA that would permita court to issue an injunction to preventreporting.While neither the HCQIA nor the regulationsto administer it contain a privateright of action, the subject of an NPDBreport may avail himself or herself of theadministrative remedies established bythe U.S. Department of Health and HumanServices.The HCQIA Dispute ProcessA physician may seek a review of an NPDBreport by the federal secretary of the U.S.Department of Health and Human Services(DHHS). The HCQIA directed thesecretary of the DHHS to promulgate regulationsestablishing procedures to handledisputes challenging the accuracy ofthe information in the National PractitionerData Bank. 42 U.S.C. §11136(2) (2012).Under those regulations, a physician whodisputes the accuracy of a report can seeksecretarial review, which the act limits toreviewing the accuracy of factual informationin a report and ensuring that theact did require the reporter to report thatinformation. 45 C.F.R. §60.16(c)(2) (2012).Under the HCQIA regulations, when a physicianseeks secretarial review of a report,the secretary reviews the written informationsubmitted by both parties. Id.Any physician, dentist, or other healthcarepractitioner or health-care entity maydispute the accuracy of information in theNPDB concerning himself, herself, or itself.42 C.F.R. §60.16 (2012). According to section60.16 of the HCQIA regulations, a subjectof a report may dispute the accuracy ofa report within 60 days from the date thatthe secretary mails the report to the subject.To dispute a report, the report subjectmust(1) Inform the Secretary of Health andHuman Services and the reportingentity, in writing, of the disagreement,and the basis for it;(2) Request simultaneously that the disputedinformation be entered into a“disputed” status and be reportedto inquirers as being in a “disputed”status; and(3) Attempt to enter into discussionwith the reporting entity to resolvethe dispute.42 C.F.R §60.16 (b)(1)–(3) (2012).Before the DHHS can take action on areport, the report subject must request thatthe reporting entity withdraw or modifyan NPDB report. A reporting entity cancorrect a report, void a report, or declineto change a report. Nat’l Practitioner DataBank Guidebook, supra, at F-2. Accordingto the guidebook, “[t]he dispute processis not an avenue to protest a paymentor to appeal the underlying reasons ofan adverse action affecting the subject’slicense, clinical privileges, or professionalsociety membership. Neither the merits ofmedical malpractice claim nor the appropriatenessof… an adverse action may bedisputed.” Id. at F-1.If a reporting entity refuses to void orto modify a report, the secretary of theDHHSS will, upon request, review the writteninformation submitted by both parties.42. C.F.R. §60.16(c)(2). After review, thesecretary will either (1) conclude that theNPDB information is accurate and includea brief statement by the physician, dentist,or other health-care practitioner orhealth-care entity describing the disagreementconcerning the information and anexplanation of the basis for the decisionthat the information is accurate, or (2) concludethat the information in the report isincorrect and send corrected informationto previous inquirers. 42 C.F.R. §60.16(c)(2)(i)–(ii).A decision by the DHHS on the accuracyof an NPDB report is a final agency actionsubject to judicial review. See Suleman v.Shinseki, 2011 U.S. Dist. Lexis 52280 (E.D.N.C. 2011); Leal v. DHHS, 620 F.3d 1280(11th Cir. 2010). As directed by 5 U.S.C.§702, courts “review agency determinationsunder the ‘arbitrary and capricious’standard, which ‘provides the reviewingcourt with very limited discretion toreverse an agency decision’.” Warshauer v.Solis, 577 F.3d 1330, 1335 (11th Cir. 2005)(quoting City of Oxford v. FAA, 428 F.3dPractitioner, continued on page 88

Writers’ CornerMeeting the Reader’s NeedsDoes the Quality of AppellateAdvocacy Make a Difference?By Mitchell C. TilnerI recently came across an article reporting the resultsof a study designed to determine whether an appellatebrief’s “readability” affects the outcome on appeal. LanceN. Long & William F. Christensen, Does the Readabilityof Your Brief Affect Your Chance of Winning an Appeal?12 J. App. Prac. & Process 145 (2011). After analyzing 882federal and state appellate briefs and the outcomes thosebriefs produced, the authors concluded: “[T]he length ofsentences and words, which is ‘readability’ for our purposes,probably does not make much difference in appellatebrief writing.” Id. at 147. Stated differently, “therewas no significant relationship between readability andoutcome….” Id. at 157.These conclusions are consistent with the widely heldview, at least among judges, if not lawyers, that appellatejustice depends on the merits of a case and not onthe quality of appellate advocacy. According to JusticeBrennan, “[i]f the quality of justice in this country reallydepended on nice gradations in lawyers’ rhetorical skills,we could no longer call it ‘justice.’ Especially at the appellatelevel, I believe that for the most part good claimswill be vindicated and bad claims rejected, with trulyskillful advocacy making a difference only in a handfulof cases.” Jones v. Barnes, 463 U.S. 745, 762 (1983) (Brennan,J., dissenting).More recently, Chief Justice Roberts, formerly an appellatelawyer himself, has voiced similar skepticism thatskillful advocacy makes a difference: “I don’t understandthe concept of extraordinary success or result obtained.The results that are obtained are presumably the resultsthat are dictated or command [sic] or required under thelaw…. The results obtained under our theory should bewhat the law requires, and not different results becauseyou have different lawyers.” Tr. of Oral Argument at30–31, Perdue v. Kenny A., 130 S. Ct. 1662 (2010) (No.08-970), http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-970.pdf.As an appellate lawyer, I am intrigued. Is a readablebrief prepared by a skilled appellate advocate no morelikely to produce a favorable outcome than an awfulbrief? Is it true that skillful advocacy rarely makes a difference,as Justice Brennan asserted? How can I justifybilling a client for the many hours spent in front of mycomputer screen, carefully selecting each word and massagingeach sentence to produce a brief that is, if not eloquent,at least readable?With oral arguments on the wane in many jurisdictions,appellate lawyers present themselves to courtsalmost exclusively through briefs. The judges who read abrief form an impression about a lawyer’s skill and integritybased in part on the quality of the writing and theanalysis. The judges may share with judicial colleaguestheir impressions of a lawyer’s work, favorable or unfavorable.These impressions may inform the judges’ viewsof a lawyer’s arguments in other appeals.And the savvy lawyer understands that while the appellatejudges may constitute the principal audience for abrief, they are not the only audience. Law clerks, clients,opposing counsel, and even unknown lawyers and prospectiveclients who gain access to the brief through computerizedresearch services likely will read the brief, too.In time, brief by brief, a lawyer’s reputation grows. Alawyer ultimately reaps the benefits, but so does a client.A lawyer who approaches a court with a reputation forsuperior appellate advocacy will afford a client the bestchance of achieving at least a receptive hearing, if not avictory on an appeal.Without question, readability and, more generally,superior appellate advocacy are important. But whatmakes a brief readable? What qualities distinguish it assuperior?Advice on appellate briefing is in no short supply, butmost of the advice ultimately rests on one fundamentalprinciple: write to meet the needs, expectations, andmotivations of the reader. Sensitivity to the reader distinguishesthe expert brief writer from the novice. Theexpert knows that “[t]he overarching objective of a brief isto make the court’s job easier. Every other considerationis subordinate.” Antonin Scalia & Bryan A. Garner, Mak-■■Mitchell C. Tilner is a partner in the Encino, California, firm of Horvitz & LevyLLP. He and the firm specialize in civil appeals. Mr. Tilner has briefed or supervisedmore than 300 appeals and writ proceedings and has argued more than 80appeals in state and federal courts. He is a member of the DRI Appellate AdvocacyCommittee, and the California Academy of Appellate Lawyers and a fellow of ing Your Case: The Art of Persuading Judges 59 (2008).the American Academy of Appellate Lawyers. Writers’ Corner, continued on page 8582 ■ For The Defense ■ September 2012

Think GloballyCreating Clarity, and InsecurityPreparation of a Reform ofCivil Liability in FranceBy Christelle CoslinFrench civil law has undergone significant changes duringthe last years. After the reform in 2008 of the statutesof limitations and the suggested reform of contractlaw in May 2011, the third chapter of this modernizationprocess tackles civil liability. This proposal is based onthe endeavors of a working group led by Professor Terré,under the aegis of the French Academy of Moral andPolitical Sciences. Legal authors and practitioners wrotea draft text. The Ministry of Justice organized a publiccomment period on this draft, which ended on January16, 2012, and we do not know the results yet.This suggested reform aims to improve the clarity andefficiency of civil liability. To achieve this, the workinggroup has suggested substantially amending the FrenchCivil Code and gathering all relevant rules in one singlesource by carrying out a double codification covering(1) case law developments, and (2) the various texts havingestablished special liability regimes, for instance, thespecific traffic accident compensation regime.The suggested reform would newly define civil torts.Firstly, it would create a general definition of a civil faultin which illicitness would become the central point. Indeed,a civil fault would now correspond to an “illicitfact,” meaning a breach of “a rule of conduct imposedby the law or by the general duty to be cautious and diligent.”Adopting previous case law solutions, the suggestedreform also specifies the conditions to hold legalentities liable from a civil standpoint when a companybody, its organization, or its functioning has engaged ina civil fault.Secondly, respecting the notion of damage, defined as“any established harm to a personal interest that is recognizedand protected by the law,” the main innovationwould introduce a new head of loss: the harm to a collectiveinterest, which particularly aims to compensateenvironmental losses. However, the suggested reformonly creates this concept and refers to the law for moredetails on the conditions governing compensation ofthis type of loss.Thirdly, the suggested reform also affects causationprinciples. On the one hand, the suggested reformdefines a cause as “any fact that may… produce [thedamage] in the ordinary course of things and withoutwhich it would not have occurred,” and a limit is definedin the chain of causes: “only the immediate and directconsequences of the damage can be compensated pursuantto this text.”On the other hand, the law includes and clarifies theprinciple of joint and several liability: the law would holdeach party involved liable for the entire damage towardthe victim, and the victim subsequently could file anaction against the co- tortfeasors in proportion to theseriousness of their respective fault. Moreover, the suggestedreform would establish equal contribution in theevent of collective liability without any fault, a noticeablenovelty under French law.The suggested reform also innovates the scope andreason of civil liability, particularly exemption fromliability. In several instances a harmful event wouldnot give rise to liability, more specifically when thebehavior in question “resulted from legal and regulatoryprovisions, was imposed by the legitimate authorityor required for purposes of self- defense or to protecta higher interest[,]” or when the victim agreed to thebreach of a right insofar as the right was available. Avictim’s fault could only partially exonerate a tortfeasor,unless the fault meets all the conditions of a forcemajeure event.Moreover, the public policy nature of tort liabilityresulting from a fault would arise from the law as thesuggested reform explicitly would prohibit contractualclauses limiting liability except in cases that do notrequire a fault to create liability, unless a victim sustaineda personal injury.Furthermore, while retaining the principle of fullcompensation and specifying its scope, the reform wouldcreate a new large-scale exception due to an intentionallucrative fault. In such a case, the reform would authorizea court to set the amount of damages according tothe profit generated from the fault and not from the losssustained. Such decisions bring to mind punitive dam-■■Christelle Coslin is a senior associate in the litigation practice of the Paris officeof Hogan Lovells and regularly advises clients on jurisdiction, choice-of-law, andinternational litigation issues. She has broad experience in commercial litigation ages even though the reform would limit the amount ofand product liability issues with a focus on e- commerce disputes. Think Globally, continued on page 85For The Defense ■ September 2012 ■ 83

Social Media, from page 29The court described the challenge of defining“appropriately broad limits—but limitsnonetheless—on the discoverability of socialcommunications of a subject as amorphousas emotional and mental health.” Id.On the other hand, the court rejectedSimply Storage’s contention that the EEOCmust produce all of the content from thesocial networking sites and concluded that“the simple fact that a claimant has hadsocial communications is not necessarilyprobative of the particular mental andemotional health matters at issue in theface.” Id. at 434–35. The substance of thecommunication must determine its relevance.Id. at 435. The court deemed itreasonable to expect severe emotional ormental injury to manifest itself in someSNS content. Examining that content couldreveal whether onset occurred, when, andthe degree of the distress; it might alsoidentify evidence of other stressors thatcould have produced the alleged emotionaldistress. Id. The court concludedthat Simply Storage could discover profiles,postings, or messages, including statusupdates, wall comments, causes joined,groups joined, activity streams, and blogentries, during the relevant time periodthat revealed, referred, or related to anyemotional feeling, or mental state, as wellas communications that revealed, referred,or related to events that could reasonablybe expected to produce a significant emotion,feeling, or mental state. Id. at 436. Thecourt directed the EEOC to apply the samestandard to determine which photographsposted to the claimants’ account the EEOCneeded to produce. Id.Pre-trial ConsiderationsYou might expect that a search for reporteddecisions addressing discovery of informationposted to social networking siteswould yield numerous results. But that isnot the case. The courts have not reached aclear consensus on the proper treatment ofdiscovery of information posted on socialnetworking sites. Nevertheless, some commontrends have emerged, and these trendsprovide some guidance on how to treatsocial media discovery.Investigate EarlyYou must investigate a plaintiff’s onlineactivities immediately. In an ideal situation,the investigation would yield damagingevidence obtained from socialnetworking sites in the form of photographs,status updates, wall posts, tweets,or all of the above, which directly contradict,or, at least cast serious doubt about theveracity of the plaintiff’s alleged injuries orclaimed damages. You could have this idealsituation if a plaintiff actively uses socialnetworking sites and has lax privacy settingson those accounts.If a plaintiff is active on one or moresocial networking sites but restricts theinformation available to the public, thesituation becomes more challenging. If aplaintiff’s public profile contains evidencethat contradicts the asserted claims, youcan advance a legitimate argument thatall account information is discoverable.As discussed, at least several courts haveallowed more extensive discovery into aplaintiff’s “private” profile if the informationmade available on his or her publicprofile contradicts the asserted injuries orclaimed damages. Even if a plaintiff’s publicprofile does not contain damaging information,a public profile potentially canbecome a treasure trove of helpful informationabout employment, education, andcontacts.Tailor Discovery RequestsDespite the ease and pace at which peopleexchange information online, courts hesitateto grant unfettered access to all of aplaintiff’s social networking account informationwithout first establishing the necessaryfactual predicate. Simply stated, filinga lawsuit does not authorize an online fishingexpedition into all areas of a plaintiff’ssocial networking account merely becauseyou hope to secure potentially relevantinformation.If a plaintiff’s public profile does notcontain any information that contradictsthe asserted claims, you must tailor discoveryrequests narrowly to the facts andto the allegations at issue. A court probablywill not view a request for “all informationfrom all social networking sites” favorably.Move to Preserve Social NetworkingSite Account InformationIt is also advisable to file a motion to preserveevidence contained in social networkingsite accounts simultaneously withinterrogatories and requests for productiondirected at such information. The motionshould require a plaintiff to preserve evidenceof social media accounts and prohibitthe deletion or modification of theaccounts, including status updates, wallposts, and photographs.Arbitration, from page 40renders the right to a jury trial in the caseof past, present, or future disputes. Sixth,it is also a good idea to specify which rulesthe arbitration will follow. For instance,Florida has an arbitration code, and commonlyin Florida an arbitration agreementwill state that the arbitration will be conductedin accordance with the Florida arbitrationcode. Many other arbitration codesand rules exist, including the various rulesof the American Arbitration Associationand the New York Stock Exchange ArbitrationRules, to name a few. Seventh, if an84 ■ For The Defense ■ September 2012arbitration drafter seeks to attempt to limiteither the damages or the redress available,the drafter needs to know what jurisdictionhas said about an agreement that restricts oreliminates those elements. Finally, it helpsto specify that except as otherwise providedin the agreement, the substantive law of thestate will govern.Entities seeking to arbitrate disputeshope that arbitration will resolve disputesmore quickly and cheaply than litigation.They also hope that an arbitration panelwill approach awards differently than layjuries so that the entities do not end upwith a “runaway” result or an inexplicableresult. Further, if the arbitrators are expertsin the field in question, arbitrating entitiesassume that the arbitrators will understandthe complex issues in the litigation,eliminating potential confusion. Whetherthese assumptions necessarily hold truemay remain questionable. However, thetrend to arbitration, among other alternativedispute resolution methods, appearsto be accelerating, and most attorneys whodefend civil lawsuits will increasingly needto deal with compelling arbitration. Goodluck to all.

Writers’ Corner, from page 82An appellate brief is not a novel; thereader does not expect to be entertained orkept in suspense. But like a novel, a briefmust engage the reader.An appellate brief is not a law reviewarticle; the reader does not expect commentaryon arcane legal principles tangentiallyrelated to the issues on appeal. Butlike a law review article, a brief must demonstratea lawyer’s command of the subject.The reader of an appellate brief expectsto receive all the information needed—andno information not needed—to understandthe issues and the pertinent law quicklyand to decide the case efficiently and fairly.The reader expects sentences without needlesswords, paragraphs without needlesssentences, and briefs without needless,meritless, or repetitive arguments. Thereader expects arguments written in plainEnglish with proper grammar and withoutoutmoded legalisms and archaic expressions.And the reader expects a lawyer toadopt a civil, professional tone and to resistthe inevitable temptation to impugn thetrial judge or opposing counsel.An expert brief writer strives to meetthe needs of the reader by producing readablebriefs of superior quality. That lawyerknows that his or her reputation, if not thesuccess in a single appeal, depends on it.Think Globally, from page 83damages to the profit generated. Anotherconcept taken from Anglo- Saxon commonlaw that the reform would also introduceis mitigation, as the text enables a court toreduce the amount of damages if a victimdoes not take “the safe and reasonable measuresto limit the loss.”The text also suggests departing fromthe traditional distinction between tortliability and contractual liability by specifyingthat “damage to the physical andpsychological integrity of the person arecompensated [according to the tort regime]even though they would be caused in thescope of the performance of a contract.”However, this distinction would be maintainedin a case of a contractual breachbecause contract nonperformance couldonly give rise to compensation under therules relating to the implementation of contractualliability.To conclude, this suggested reformwould make changes that may greatly modifyFrench law on certain points. Whilemore clarity generally could result fromadopting the reform, modifying conceptssuch as fault or introducing new headsof loss or new rules to compensate lossescould create legal insecurity. So it will beinteresting to examine the results of thepublic comments organized by the Ministryof Justice and to follow the transformationof the current propositions into a bill.Lost Earning, from page 50This “what my company earned I earned”theory was rebutted through a multifacetedapproach in discovery. The defense attorneyretained a forensic accountant andmortgage broker expert early, and theyassisted with discovery to establish keyfacts such as (1) the plaintiff had no particularbackground, experience, education ortraining in the business beyond a brief twoyearemployment as a mortgage processer;(2) the plaintiff took advantage of marketconditions at the time that allowed himwith little start-up capital and experienceto start a subprime mortgage brokeragethat grew quickly from 2004–2007; (3) thetop five lenders with which the plaintiff’scompany did business went bankrupt inearly 2007, several months before the businessclosed; and (4) the plaintiff’s role in thecompany was purely managerial, and hehad established a corporate structure withdepartment heads that removed him fromthe physical labor of servicing and placingmortgages. The defense attorney exploredall of the factors discussed in this articlewith the help of experts, in written discoverythrough production requests, andmost importantly, with the plaintiff duringdeposition. Taking this approach, thedefense attorney then prepared an effectivemotion in limine that put significant pressureon the plaintiff and his attorney. In theend, the defense attorney achieved a settlementin an amount favorable to the defendants.Expert Testimony, from page 45testimony. Id. at *32. Depending on thenature of the testimony the opposing partyseeks to admit, you may move to precludethe testimony because it does notconstitute an “admission.” This wouldespecially hold true in cases where subsequentevidence undermined an expert’sconclusions.Many of these strategies also apply tojurisdictions that have not consideredwhether and when an expert’s prior testimonyconstitutes an adoptive admission.If a jurisdiction has not yet considered theissue, you preemptively could move to precludethe expert’s deposition testimonyas a party- opponent admission, arguingthat a court should adopt Kirk. Should acourt have the inclination to adopt Glendale,you alternatively could seek an expediteddetermination of the admissibility ofevidence, or permission to withdraw theexpert when the court rules on admissibility,as discussed above. As with the Glendalepreemptive motion, you should filethis motion well in advance of the trial witnessdisclosure deadlines.If a court rejects a preemptive motionor declines to provide an expedited admissibilityruling, then you will have to makethe best decision possible based on the circumstances.Sometimes not designatingan expert as a trial witness may be the beststrategic decision under the circumstances.Other times, you may need to designatean expert as a trial witness in case a courtrefuses to admit other evidence as inadmissible.In those cases, you will have to briefthe issue. If a court adopts Glendale or Collins,you should take all necessary steps topreserve the issue for an appeal, and thentry to exclude the proposed depositiontestimony as not truly an “admission” ormitigate the damage through counter designationsunder the rule of completeness.For The Defense ■ September 2012 ■ 85

Using an Opponent’s ExpertThe strategy differs significantly when youcontemplate using an opponent’s experttestimony as an adoptive admission. Priortestimony of expert witnesses generallyseems admissible as an adoptive admissionin Collins jurisdictions. For Glendale jurisdictions,your approach will depend on thegoal. If you want to encourage the opposingside to strike its expert altogether, thenyou may want to raise the adoptive admissionissue before the parties must designatetrial witnesses. In contrast, if youseek to ensure that a court will have adoptiveadmissions read into the record, thenyou should not raise the use of an expert’sprior testimony as an adoptive admissionuntil after an opponent has designated theexpert as a trial witness.The same applies to jurisdictions thathave not yet adopted an approach. If yourgoal is to gain adoptive admissions for atrial, you should delay raising using anexpert’s prior testimony until after anopponent has designated the expert as atrial witness. Once an opponent has designatedthe expert as a trial witness, you mayuse the expert’s prior testimony as an adoptiveadmission if the court adopts eitherCollins or Glendale.Kirk and its progeny pose the most difficultywhen you want to use the testimonyof an opposing party’s expert because theysupport precluding litigants from usingthe testimony of independent experts asadoptive admissions. That said, you stillcan use the prior testimony of the opposingparty’s expert as an adoptive admissionif the opposing party controls theexpert’s opinion or testimony. While thistypically will not apply to third-partyexperts, it may apply to in-house expertsor to other experts who have an agency oremployment relationship with an opposingparty. Thus, even in a Kirk jurisdiction,you may have grounds for admittingan expert’s prior testimony under certaincircumstances.ConclusionEven the best preparation does not alwaysprevent expert witnesses from becomingpotentially damaging witnesses. Whenan expert becomes a liability, an attorneysometimes may have to designate thatexpert as a potential trial witness even ifthe attorney probably will not call him orher to testify during a trial. In jurisdictionsallowing adoptive admissions, this tacticcould mean that an opponent may usethe expert’s prior testimony as an adoptiveadmission against the attorney’s party. Youshould remember that some jurisdictionspermit this, keep in mind the ones thatdo, and understand the grounds for usingan expert’s prior testimony as an adoptiveadmission. You should also understandthe three lines of authority on priorexpert testimony as an adoptive admissionto identify strengths and weaknessesof each persuasively in jurisdictions withoutgoverning rules so that you can obtainthe most favorable result.Damages, from page 73per-day nursing or attendant care, whichseems extremely excessive when a plaintiffmay sleep up to 8 hours of that time.A life-care planner generally will explainthat away by noting that a plaintiff “might”have difficulties at night and need helpthat wouldn’t be available without attendantcare. Needless to say, a plaintiff withfamily members at home should not needround-the-clock professional care whenfamily members are home to address thosepotential middle of the night hypotheticalproblems as long as those members aren’telderly, frail, and unable to take on somecare duties for some legitimate reason.When challenging a plaintiff’s life-careplan, instead of asking the life-care plannerto explain why the plaintiff needs a particularitem, it is sometimes better to questionthe plaintiff’s own treating physicians aboutwhether certain items are truly necessary toa plaintiff’s care. Getting a plaintiff’s owndoctor or doctors in effect to question the legitimacyof items in a life-care plan may bemore persuasive to a jury and lead jurors toquestion the overall merit of the balance ofthe projections. However, although a treatingphysician may be willing to state that aplaintiff doesn’t truly “need” some things,”86 ■ For The Defense ■ September 2012he or she ultimately will agree when questionedby a plaintiff’s attorney that he orshe would never refuse the injured plaintiffany of these listed items to create a safeand beneficial environment.Attacking a life-care plan must be donewith caution because questioning canbecome a dual-edged sword. On the onehand, a jury may find tennis balls and aCD player unnecessary, which may leadjurors to develop skepticism about the balanceof a plan. Depending on your venueand jury pool, jurors may appreciate oreven be entertained by your methodicalevaluation of items from the sublime tothe ridiculous. However, some jurors mayfind a detailed line-by-line attack on alife-care plan tedious, and ultimately, aplaintiff’s attorney likely will argue thatif nit- picking over small dollar items is allthat the defense attorney can do, that nitpickingmust inherently establish that thelarge dollar items are legitimate, and theyprobably account for over 90 percent of thetotal life-care plan value. The counterargument,of course, is that if trials are trulyabout “compensation,” then as much as allof the listed items may improve a plaintiff’slife, just as they would improve the life ofanyone who has these things, only thoseitems that meet a true “need” can qualifyas compensatory. This is especially helpfulif a plaintiff’s attorney has used thatword, “compensation,” in his or her openingstatement to explain why the plaintiffhas sued the defendant.Since a life-care plan likely will accountfor the largest portion of the economicdamages that a plaintiff will have the abilityto list, it is critical to pick apart its legitimacy,accuracy, and honesty. However,no matter how you approach it, in tryingto illustrate that a life-care planner hasinflated a life-care plan, even if you canjustifiably do it because it includes inappropriateitems, you must still approacha cross- examination of the life-care plannercarefully so that you do not fall intothe trap of appearing uncaring about aninjured plaintiff’s true needs.ConclusionEven though you already face enough challengeson the issues of liability and causationin medical negligence cases, you maystill need to focus on the various ways thata plaintiff’s attorney has attempted to milkevery bit of “pure dollar” damages from ajury, which will only increase those otherchallenges. Caps on damages do prevent

unaway verdicts, but through constitutionalattacks, legislative lobbying, andpolitical public relations campaigns, theplaintiffs’ bar continues to chip away atdamages reforms. Attempting to maximizeeconomic damages at every turn is simplyanother “work-around” that plaintiffs’attorneys use to try to make litigating casessubject to caps more financially attractiveto pursue. All trial practitioners know thatattacking a plaintiff’s evidence withoutalienating a jury is important in the trialdance. Despite an inherent desire to scream“poppycock!” at each creative new elementof economic damages presented to a jury,you must keep your ultimate strategy andgoals in mind.Informed Consent, from page 77Respecting damages, the plaintiff’sattorney argued that due to the medicationsnecessary to treat the HIV, the plaintiffexperienced kidney rejection, she hadto go back on dialysis, and she could havea shortened life expectancy as a result. Theplaintiff’s attorney also argued that theplaintiff might experience liver failure as aconsequence of her hepatitis C. Lastly, theplaintiff’s attorney highlighted the emotionalturmoil and life changes that accompaniedthese diagnoses.The defendant’s attorney, while acknowledgingthe poor outcome, argued that dueto advances in medication the patient’sHIV would very likely never convert to fullblownAIDS as long as the plaintiff continuedher pill regimen, which at the time ofthe trial consisted of one pill per day. Thetestimony to support this argument camefrom Dr. Michael Wong, an infectious diseasesspecialist from Harvard University,Boston, Massachusetts. The defendant’sattorney also argued that encouraging hepatitisC drug trials currently underwaygave clinicians realistic hope that medicinecould eradicate the disease within theplaintiff’s lifetime. Lastly, the defendant’sattorney highlighted the medical evidencefrom experts and treating physicians thatsupported the position that the plaintiff’skidney’s rejection was unrelated to theHIV therapy.The jury deliberated for shortly over twohours following a two-week trial. Duringthe deliberations, the jury asked for thegeneral informed- consent form for the surgerythat the plaintiff had signed and forthe medical center’s booklet for transplantpatients. Of the four medical malpracticecases that arose from the four infectiousdisease transmissions at the three Chicagotransplant centers, three were resolvedout of court. The case discussed here wasmediated unsuccessfully during its fouryearpendency as the parties held vastlydisparate opinions on its value. Plaintiff’sattorneys are currently seeking an appellatereview by the First District AppellateCourt of Illinois.Medical Liability, from page 63the Players Are All In—Successfully ResolvingHigh Stakes Litigation in the TwentyfirstCentury. This dynamic presentationwill incorporate audience participationthrough “real time” voting, as they navigatethe multi- faceted evaluation processin a complex fact scenario facing a hypotheticalFortune 500 company. The panelof experts will present strategies to bestevaluate, negotiate, and resolve high-stakesclaims ranging from product and premisesliability to toxic torts and employment disputes,with special considerations on howMedicare Secondary Payer obligations andrelated federal reporting requirements canimpact settlement negotiations.Our committee is also pleased to presentan additional CLE session during theAnnual Meeting at our business meetingon Medicare Secondary Payer obligationsin general and Medicare Set-Asides specifically.John V. Cattie, Jr., with the GarretsonResolution Group, will present LiabilityMedicare Set-Asides—Has the Time Come?This session will outline the statutory, regulatory,and administrative guides providedby the Centers of Medicare/MedicaidServices (CMS) on the issues of future medicalsin liability settlements and what practitionersand their clients can do to reducethe risk of CMS reimbursement actions.Our publications continue under theleadership of Tracy Zucker, Moser & Marsalek,St. Louis, Missouri, and LauraEschleman, Nall & Miller, Atlanta, Georgia.Tracy and Laura oversaw the publicationof our newsletter, Med Law Update, inFebruary and June 2012. If you have nothad an opportunity, go to the DRI websiteand review the following informative,practice-relevant articles: Your Hospital’sWebsite—Providing Plaintiffs with a Portalto Their Privacy, by Jennine A. Gerrard,Bower, Monte & Greene, P.C., NewYork, New York; Waiving a Right to Arbitration:Overview of the Legal Actions ThatCan Be Considered an Invocation of the LitigationProcess and Result and Prejudice tothe Opposing Party, by Alicia M. Harrison,Starnes, Davis, Florie, LLP, Birmingham,Alabama; A Look at CMS’ Proposed Ruleson Reporting and Returning Overpaymentsand Their Ambiguities, by Connie S. Ditto,Hermes Sargent, Bates LLP, Dallas, Texas;and Assistive Reproductive Technologies:Walking Science in the Courtrooms intothe Family, by Donna Moye, Thompson &Knight LLP, Houston, Texas. Thank you toTracy, Laura, and those authors submittingcontributions to the Med Law Update andto this edition of For The Defense.Finally, our committee is currentlyworking on a number of projects and initiatives.We would like to provide additionaleducation to members, practitioners,and industry members in the form of webcasts.As we formulate our webcast schedulefor the next 18 months, we would love tohave your input. Please contact Reed Bates,Starnes & Davis, the chair of our WebcastSubcommittee, at rbates@starneslaw.com.Our committee is also currently preparingMedical Malpractice and HIPAACompendiums for practitioner and industryreference.On behalf of the committee and ViceChair Todd Symth, I would like to thankour leadership and those who have participatedin a meaningful way in 2012. Asalways, if you have suggestions on how ourcommittee can better serve its membersand the clients we represent, or if you wantto get involved, please send me an email attmcdonald@mam-firm.com.For The Defense ■ September 2012 ■ 87

Practitioner, from page 801346, 1351 (11th Cir. 2005)). So the reviewstandard that a court will apply defersgreatly to the agency, and a court usuallywill uphold the agency’s determinations aslong as they are rational.To initiate a lawsuit alleging harm due toan NPDB report, a plaintiff does not necessarilyneed to lodge an administrative complaintfirst. Instead, these are two separatepaths, and administrative exhaustion doesnot typically apply in these cases. Courtshave determined that physicians seekingto redress harm allegedly caused by a peerreview determination reported to complywith the HCQIA can seek redress for allegedharm through lawsuits because these physiciansdo not simply seek to correct reports,and the administrative remedies deal withreport correction. Zawislak v. MemorialHermann Hosp. Sys., 2011 U.S. Dist. Lexis123598 (S.D. Tex. 2011). Simply put, onepath does not preclude the other. However,reviewing the specific pleadings has benefitswhen evaluating potential litigation strategies.If a civil complaint seeks to correctan NPDB report, the correction should belongwithin the domain of administrativereview. In defending actions against reportingentities, you should determine if an administrativereview is pending.When representing a reporting entityin an secretarial review action, lay yourproof bare. Submit all relevant documents,including testimony taken during a peerreview hearing and witness affidavits, aswell as other proof in admissible form. Thiswill assist the reporting entity to establishthe admissibility of a favorable decision bythe DHHS under the Federal Rules of Evidencein a civil lawsuit.88 ■ For The Defense ■ September 2012HCQIA Secretarial Review andthe Public Record ExceptionIf a secretarial review favors the reportingentity, essentially finding that the NPDBreport was factually accurate, the questionbecomes how you may use that decision ina lawsuit between the report subject andthe reporting entity. You may offer a favorablesecretarial review as admissible proofunder the public record hearsay exceptionof Federal Rule of Evidence 803(8).Federal Rule of Evidence 803(8)(C) specifiesthat the hearsay rule does not excluderecords, reports, statements, or data compilations,in any form, of public officesor agencies, set forth in civil actions andproceedings and against the governmentin criminal cases, factual findings resultingfrom an investigation made pursuantto authority granted by law, unless thesources of information or other circumstancesindicate the lack of trustworthiness,even when the declarant is availableas a witness. See Casey v. Philadelphia ElectricCompany, 1987 U.S. Dist. Lexis 2799(E.D. Pa. 1987).Almost “all of the exceptions to the hearsayrule” in Federal Rule of Evidence 803“represent types of hearsay evidence thatjudicial experience reveals have sufficientreliability to justify consideration by thetrier of fact with or without the presenceof the declarant and regardless of whetherthe declarant is absent, that absence canbe explained.” Yankee Atomic Energy Companyv. United States, No. 98-126 C, 2004U.S. Claims Lexis 363 (Fed. Cl. 2004) (internalquotes and citation omitted). Under theFederal Rule of Evidence 803(8)(A) exceptionto the hearsay rule, “it is not necessarythat a government agency have firsthandknowledge of all matters contained in therecords “‘as long as the agency has firsthandknowledge of the investigation…’”.”Id. (citations omitted). Federal Rule of Evidence803(8)(A) “does not require the documentbe kept in the course of a regularlyconducted activity[.]” Id. (citation omitted).Further, “[p]er sonal knowledge is satisfiedif a colleague or subordinate has knowledge.”Id. (citation omitted).“Admissibility” of public records “is presumed,and the burden of proof is on theparty opposing introduction[,] and [t]heburden shifts to the opponent of such evidenceto demonstrate the lack of trustworthinessonce it is established that theevidence is in fact a public record.” Id. (citationomitted); Austin Carias- Reyes, et al. v.Lee, et al., 1996 U.S. Dist. Lexis 5042 (E.D.La. 1996). Federal Rule of Evidence 803(8)(C) does not preclude introducing opinionsand conclusions in public reports as long astwo criteria are met. First, all statements inthe report must be based on factual investigation.Second, any portion of the reportthat is admitted must be sufficiently trustworthy.Courts use four nonexhaustivefactors to determine whether a report issufficiently trustworthy: (1) the timelinessof the investigation; (2) the investigator’sskill and experience; (3) whether a hearingwas held; and (4) possible bias when areport was prepared with a view to possiblelitigation. In re Nautilus Motor TankerCo., Ltd., 85 F.3d 105 (3d Cir. 1996); AustinCarias- Reyes, et al. v. Lee, et al., 1996 U.S.Dist. Lexis 5042 (E.D. La. 1996).While it doesn’t appear that a court hasaddressed the admissibility of a HCQIAsecretarial review under Federal Rule ofEvidence 803(8), federal courts have held,for example, the following admissible:(1) reports generated by U.S. Department ofEnergy contractors, Yankee Atomic EnergyCompany, No. 98-126 C, 2004 U.S. ClaimsLexis 363 (Fed. Cl. 2004); (2) a remedialinvestigation report, authorized under theComprehensive Environmental Response,Compensation, and Liability Act (CER-CLA), 42 U.S.C. 9604(b), United Statesv. Davis, 826 F. Supp. 617 (D. R.I. 1993);(3) a coroner’s report, Austin Carias-Reyes,1996 U.S. Dist Lexis 5042 (E.D. La. 1996);and (4) a traffic accident report authorizedunder state law, Reagan et al. v. Duna-WayTimber Company, 2011 U.S. Dist. Lexis79240 (W.D. Ark. 2011).When parties dispute the factual accuracyof an NPDB report in a lawsuit, anadmissible secretarial review can supportimmunity. For instance, when defending areviewing entity in a lawsuit you can use afavorable finding by the DHHS to show thatthe entity that submitted an NPDB reporthas immunity under section 11137(c) of theHCQIA, particularly when the sole basisfor the report subject’s claims is the factualinaccuracy of the NPDB report, as in adefamation lawsuit. See McLeay v. BergenMercy Health Systems Corp., 271 Neb 602,614, 714 N.W.2d 7, 22 (Neb. 2006) (findingthe reviewing entity that submitted anNPDB report was entitled to HCQIA immunityin a defamation action for the claimeddefamation damages). See Payne v. HarrisMethodist, et al., 2001 U.S. Dist. Lexis 815(N.D. Tex. 2001) (finding immunity undersection 11137(c) of the HCQIA for an NPDBreport on defamation claim)ConclusionThe NPDB is designed to protect the publicfrom physician incompetence. Physiciansand entities often lose sight of thisintent, especially because an NPDB report

can have such a profound impact on a physician’spractice. As the landscape of themedical profession changes, hospitals andother entities charged with reporting obligationsunder the HCQIA face new andgrowing challenges from the subjects ofthose reports. Attorneys who representreporting entities need to stay abreast ofdevelopments in the law to defend againstthese claims properly.Of course, how a case develops willdepend on the situation, and whether anattorney represents a doctor who feelsaggrieved and unfairly treated, or whetheror not an attorney represents a peer or ahospital accused of wrongdoing when conductinga peer review. Either way, thesestatutes and the related case law continueto develop and evolve, and you shouldclosely monitor them to evaluate the currentstate of the law.Analogies, from page 55The plaintiffs argued that the court shouldapply equitable tolling to their claims becausethe damages were not ascertainableuntil after the statutes of limitations had expired.Id. The government moved to dismissthe case, arguing that the alleged impropertaking occurred years earlier, and the actionwas barred by the passing of the governingstatute of limitations. Id. at 47. Theplaintiffs argued that the court should equitablytoll the limitations period becausethe damages were “inherently unknowable”as of the accrual date. Id. at 48. Analogizingthe facts of their case to the delivery ofthe wrong fruit tree, the plaintiffs’ attorneyargued that the plaintiffs did not know thatthey even had a claim until the “tree borefruit.” The court determined, however, theplaintiffs knew other facts that should haveput them on notice of their rights to sueand, therefore, the analogy failed to carrythe plaintiffs’ argument.Accordingly, a litigator should considerwhether an analogy that he or she wishes touse will support a case sufficiently and leaddecision maker to the desired result. Ananalogy that only answers half the questionmay not be useful. Moreover, placingtoo much faith in a particular analogymay lead to the unintended consequence ofopening the door to a collateral attack onthe analogy that unhinges a case.ConclusionAn analogy can be a very effective litiga-tion tool, but before using one, you shouldvet and consider it fully. The SupremeCourt Affordable Care Act decision providesa perfect example of an analogy thatwas effective but addressed only half thelegal issue presented. As one journalistsummarized the Supreme Court decision:“Resolved: The government cannot makeyou eat broccoli, though it may levy a nonbroccoli-eating tax on any who refuse.”H.W. Jenkins, Jr., ObamaCare: Upheld andDoomed, The Wall St. J, June 30–July 1,2012. In the end, the most effective analogyis the one that your audience remembers,and regardless of its political or constitutionalramifications, the broccoli analogyis one that will be remembered for a longtime.DRI 2012 Annual MeetingThe 21st Century Lawyer October 24–28 New Orleans MarriottNEW this year!“Suited for Success” Public Service ProjectThe Young Lawyers Committee is partnering with Dressfor Success NewOrleans andOzanam Inn to hostan on-site drop-off station, where Annual Meetingattendees will be able to donate professional attire andaccessories to help disadvantaged women and menbecome self-sufficient and successfulin their careers.You can make a difference—bysimply throwing an extra suit in yoursuitcase—and help a strugglingwoman or man get one step closer tosupporting themselves.DRI Learning LoungeHaving trouble figuring out how to operate your iPad or iPhone?Are mobile apps a mystery? Spend 30 minutes in the DRI LearningLounge, participating in small, interactiveclasses. There will be beginner andintermediate level classes available.Classes are limited to 10 peopleand on a first-come, first-servedbasis. You must bring your owniPad or iPhone to use in theclasses. The DRI LearningLounge will be located in theExhibit Showcase.Save $200 when you register bySeptember 26. Log on now at dri.org.For The Defense ■ September 2012 ■ 89

“One Truth”, from page 60the right words is not enough. There mustbe credibility behind those words. The messageis the entire communication—body,eyes, and words. A betrayal of any part ofthat communication as less than sincerechanges the entire meaning of the whiteboardand the apology.RespectWith respect, there is an old saying in thesales world that “like buys from like.” Peoplefeel most comfortable and safe buyingand doing business with people who arelike themselves. We trust people like ourselves.Respect brings people together witha sense that they share, at least, one commonvalue—the adult humility to be publiclypolite toward others unlike themselves(which also holds the possibility of a willingnessto listen to the other).Message of UncompromisingAdvocacyBy contrast, a lack of sincerity and respectsignals a need to be wary of the other. Todistrust. Yelling “I am right and you arewrong” is not a prescription for trust andchanging minds. It may be sincere butit is entirely based on the myth of “onetruth” and disrespectfully assumes therecan be no other legitimate “truth.” Closingour eyes, holding our hands over ourears, and jabbering “I’m not listening”has never been the recipe for deal makingor dispute resolution. Yet in our polarizedworld we seem to believe this is theonly way to be true to one’s self and one’sbeliefs and one’s stories and perceptions ofreality. Incredibly, lawyers who “take noprisoners,” “eat glass,” and “are tough asnails”—i.e., champions who can aggressivelypromote their side and dismissivelyrefute the other side—are often thought tobe ideal advocates and warriors by bothclients and other lawyers. No one seemsto question whether this uncompromisingnarrative makes any sense at all.Art of AgreementAs discussed above, this perception of lawyeringas uncompromising advocacy doesnot square with reality. Dale Carnegie andsocial scientists studying the unconsciousmind have repeatedly found that in-groupmembers tend to trust their own but not90 ■ For The Defense ■ September 2012those outside of their group. Groups “bindand blind.” Being a part of a group generatestrusting and supportive behavior.“You are one of us.” Criticism from outsidea group is quite different. Sports teamsoften use derisive comments of opponentsto stir up their own team to fight harderand to be more committed to their owncause. Outside comments do not changeminds. They cement differences. Theremust be a feeling of identity and comfortwith the speaker before anyone will listenand reevaluate their own position. Asnoted by Jonathan Haidt, “Intuitions can beshaped by reasoning, especially when reasonsare embedded in a friendly conversationor an emotionally compelling novel,movie, or news story.”Vicious and hostile letters, abruptand abrasive phone calls, curt and condescendinge-mails, and mean and dogmaticpleadings selfishly may make us feelsuperior, but they are unmistakably disrespectfuland unlikely to engender feelingsof trust. Depositions, courtroom appearances,and settlement conferences whereeach side touts their strengths and ignorestheir weaknesses are similarly unlikely toaddress feelings and viewpoints. Nor is themiserly exchange of discovery with moreobjections than substance a good means ofdeveloping the trust needed to find commonground.Just as the stories of gods comforted butmisled the Greeks, and stories of sacrificecomforted but misled ancient people,and stories of phallic symbols comfortedbut misled Pacific islanders, stories about“one truth,” “toughness,” and “no compromise”may be comforting but they are misleadingus.When 98 percent of our cases settleand require a modicum of trust betweenthe parties to find common ground foran agreement, stories about our role asuncompromising warriors and zealousadvocates are not helpful.Listen More Than TalkWe need to listen more than talk. Hear thelife stories, acknowledge the feelings, andrespect our opponent’s perspectives of reality.There is no “one truth.” It is a myth. Ourlife stories and our perspectives are notuniversal. Not appreciating that there areother life stories shaping different perspectivesis like counting passes and not seeingthe gorilla in the middle of the screen.Art of Agreement IncludesAgreements with Triers-of-FactThe art of listening, understanding, andseeking agreement includes agreementswith judges and jurors. If an opponent isunwilling to mutually listen, understand,and participate in crafting a fair and justresolution of a dispute, the art of lawyeringand the art of creating an agreement shouldgo beyond the short sighted opponent andbe addressed to the trier-of-fact. The goalis justice and fairness. An unjust or unfairagreement achieves nothing at all.Action ItemsHere is what you can do right now to avoidthe blindness of the “one truth” myth.• Have Lunch. Before exchanging pleadingsthat yell “you’re wrong, we’re right,”invite your opponent to lunch. Listen.Learn the life stories of the attorneyand her client. Seek to understand sincerelyand respectfully and see the worldthrough their perspective.• Show Respect. With the kindness youwould show to those you love, showthe same respect and more to an opponent.Regardless of whether that respectis reciprocated, the demonstration ofrespect will instill trust in your wordby the other side giving your voice morevolume and meaning in the ears ofyour opponent. Disrespectful behaviordoes not generate that same effect andonly encourages the other side to stoplistening.• Reserve Judgment. Reserve judgmentand try to understand and see the opponent’sperspective before discounting it.You cannot understand the feelings andviewpoint of the other without reservingjudgment.• Show Understanding. Using whiteboards,apologies, and public displaysof sincere and respectful empathy, showthat you understand and heard the other’sposition. This does not mean agreement.It is simply an honest recognitionof another perspective.• Talk to and Listen to Others. There is onlyone way to attack the myth of “one truth.”Talk to and listen to others. Anyone andeveryone. On the street. In a plane. In a

cab. On a train. In court. In the office.On the beach. With ear buds, hundredsof television channels, and thousandsof Internet sites, we can immerse ourselves24/7 in our own groups, with ourown music, and with our own politics.We can associate in groups with onlythose like us. We do not need to listento anyone with whom we disagree. Wecan limit ourselves to associating withonly those who share a similar life storyto our own. Who have feelings like oursthat causes them to see the world withour viewpoint. But this freedom of multipleand separate realities exists onlybecause we share a basic common set ofvalues about fairness and justice. Withoutthis base of fairness and justice,we cannot plan and collaborate for thefuture and we cannot extricate ourselvesfrom past disagreements. “One truth”is a myth. But the failure of lawyers torepeatedly remind us of our joint membershipin a common group devoted tofairness and justice for all invites thetyranny of “one truth” becoming a reality.There are many totalitarian regimesin our history that have tolerated only“one truth.” Devotion to and failure toappreciate the mythical nature of “onetruth” in our current society can leadto the darkness sought by Shakespeare’sDick the Butcher. Attack the myth. Talkto people.• Show Bullying Jerks the Art of Agreement.If an opponent is too selfish andtoo shortsighted to engage in creating amutually just and fair agreement, takethem to trial. The goal is a just and fairresolution. If you have sincerely andrespectfully attempted to understandand see the world from the perspectiveof your opponent, you can confidentlyenroll judges and jurors to helpyou reach that just and fair consensus,even when your opponent refuses tocooperate. The trier of fact has the powerto create just and fair resolutions whenopponents fall short. Trials—not capitulation—beforejudges and juries are usuallythe best alternative to a negotiatedagreement.“One truth” is a myth. As lawyers, we caneither be part of the problem or part of thesolution. We can either help our clients seethe world through the eyes of others or wecan faithfully close our ears and stoke ourclients’ separate “one truth” beliefs. If wechoose the latter path, there will be no needto “kill all the lawyers.” The myth of “onetruth” will become a reality for every separategroup and individual and will immobilizeus and eventually tear us apart. Letus not be so blind. “The best way to defeatan enemy is to make him a friend” —AbrahamLincoln.Trial Tactics Chair, from page 19modeling started, and I was at the topof my class. I enjoyed each new sessionand looked forward to them with a newexcitement each time. Towards the endof the program we were all instructedto complete a portfolio. Photo sessionswere scheduled, and before long I hadbecome at ease in front of the camera. AsI looked at the finished work, I saw a newperson, one that I was proud of, believe itor not. It really was me in those pictures(no photoshopping at that time). However,the main event was yet to come.That would be when I graduated witha “degree” as a professional model. Atthe graduation ceremony and dinner,I modeled three of my own choices ofclothing in front of hundreds of people.As I looked out across the stage that eveningI felt a surge of confidence. I heardthe band playing, “If My Friends CouldSee Me Now” as I walked down the runway.A smile spread across my face forI had accomplished the first step in mychange. I had acquired a look that I hadwanted, confidence that I needed, and asense of accomplishment. Now all I hadto do was live it.Living with my change was the hardestpart. I had grown into a young lady inless than a year. I had acquired a taste ofmy own, and a name for myself. Peopleno longer knew me as Susan’s little sister,or Joe and Bobbie’s daughter. Theyknew me as Tammy. I started to like thenew Tammy. I had a good feeling aboutmyself. It was a feeling I could not recallhaving before that time.Along with these new feelings camenew insights. I began to see each personas unique in their own way. I knew I wasone of a kind and that it was my choice,and my responsibility, to become thekind of person I wanted to be. Why inthe world would God have created me ifHe didn’t have a special plan for my life?How could I think of myself as beinginsignificant, ugly or awkward? Therewas only one me; I must be pretty special.I not only began to like myself forwho I was, but for who I had become,and who I could be in the future. I saw apurpose and a future for myself. And no,it wasn’t to be a runway model. I decidedI wanted to be a lawyer, and I set out todo just that.My concluding paragraph read as follows:I want to strive for improvement withas much zeal as I had then. I knowthat I can never be perfect, but I can bewho and what I want to be. A new andchanged person is reflected in that mirrortoday. Whenever I glance in the mirror,I not only see a new face, but I knowthat the face is reflecting a new outlookon life.Reflecting back on my college paperreminded me of the many changes thathave occurred since writing it. I got married;became a lawyer; had a beautifuldaughter; became a good lawyer, partnerand mentor; got married again to my verybest friend; turned 40 (with grace); overcameseveral physical hurdles in life; andnow at this phase of my life I am embracingchange. Change is bound to come, bothpersonally and professionally. What we doabout, and with, the change is the key!Thanks for allowing me to serve as thechair of the Trial Tactics Committee overthe last two years, which have been full ofso many changes and challenges. While attimes I could not be physically present atcalls, meetings, or gatherings, I hope thatwhen all is said and done, we can toast ourmany challenges and changes as they havemade us who we are and the kind of peoplewe truly want to be. Salute! And, no youcan’t see the modeling pictures; they areunder lock and key for a reason!For The Defense ■ September 2012 ■ 91

AdvocatesDiane Fleming Averell,Morristown, NJDenise B. Bense,West Conshohocken, PACynthia Glass Bivins,Houston, TXJames F. Bleeke,Indianapolis, INRobert M. Bodzin, Oakland, CADouglas S. Brossman,Lancaster, PAMartin J. Buckley,Saint Louis, MOJessica J. Burgasser,Buffalo, NYDavid L. Carrigee,New Orleans, LADarren A. Craig,Indianapolis, INMichelle Thurber Czapski,Detroit, MIDaniel G. Federico,New York, NYStephen F. Fink, Dallas, TXDavid J. Frankenberger, Jr.,Fresno, CAPhilip M. Gulisano, Buffalo, NYRichard R. Harden,Champaign, ILWinston N. Harless,Nashville, TNJonathan R. Harwood,Hawthorne, NYRobert M. Henstridge,Laguna Hills, CASteven J. Jager, Seattle, WAVirginia Easley Johnson,Miami, FLKaren L. Keith, Louisville, KYPrashant Kumar Khetan,Washington, DCLaura Lally, Libertyville, ILWalter J. Lipsman,Los Angeles, CAJamie M. Magnani,Boston, MAMichael J. Mazzone,Houston, TXBeth McMasters, Louisville, KYLawrence J. Myers, Atlanta, GAAndrew Oettinger,Milwaukee, WIFrances M. O’Meara,Los Angeles, CASteven W. Quattlebaum,Little Rock, ARMichael R. Reynolds, Oakland,CACarlos Rincon, El Paso, TXLynn M. Roberson, Atlanta, GAAndrew J. Rutens, Mobile, ALGena L. Sluga, Phoenix, AZAdvocates and New MembersEach 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.Tracey L. Turnbull, Cleveland,OHSarah O. Wang, Honolulu, HIJames M. Weiss, Cary, NCBrady A. Yntema, Greensboro,NCGlenn M. Zakaib, Toronto, ONJoseph D. Zopolsky, Dallas, TXNew MembersAlabamaJames Willis Garrett III, MobileArizonaVenessa Bragg, PhoenixMicalann C. Pepe, PhoenixBrian J. Schmidt, PhoenixLeon B. Silver, PhoenixKendall D. Steele, PhoenixKenneth W. Welsh, Jr., PhoenixSteven A. Adelman, ScottsdaleArkansasAmber Davis-Tanner, LittleRockCaliforniaCharlotte M. Konczal, FresnoErick Rhoan, FresnoKim J. Cabodi, Laguna HillsSudhir Lay Burgaard, LosAngelesKaren A. Rooney, Los AngelesYvette Davis, OaklandDamon Michael Thurston,OaklandGary R. Basham, SacramentoColoradoRobert L. Harris, DeltaJanuary Allen, DenverRobert Lapidow, DenverJason P. Rietz, DenverMary Kathryn Strauss, DenverTravis Young, DenverPatrick A. Singer, GreenwoodVillageDistrict of ColumbiaTara L. Goodwin, WashingtonThomas S. Hay, WashingtonErrol R. Patterson, WashingtonFloridaDixie Daimwood, FortLauderdaleChristopher J. Jahr, FortLauderdaleJamie C. Such, FortLauderdaleCarolina Dean, MiamiLisa Michelle Goldberg, MiamiAmal Laassel, Orlando92 ■ For The Defense ■ September 2012Sage Morris-Webster, OrlandoJami Gursky, PlantationAnthony J. Parrino, SaintPetersburgJessica Cochran, TampaMark B. Hartig, TampaMatthew J. Jowanna, WesleyChapelGeorgiaJoseph J. Angersola, AtlantaAdam C. Joffe, AtlantaEdward M. Newsom, AtlantaSteven Ross Wilson, PowerSpringsHawaiiLeighton M. Hara, HonoluluIdahoJennifer Hearne, MeridianIllinoisSamuel Rosenberg,ChampaignTerrence S. Carden III, ChicagoMeghan Amanda Carlock-Gonnissen, ChicagoElizabeth Spellmire Francis,ChicagoMaris J. Jager, ChicagoPhillip Nava, Mount ProspectIndianaSara R. Blevins, IndianapolisRachel A. East, IndianapolisRachel Moore Schafer,IndianapolisIowaJacob C. Langeveld, CouncilBluffsJessica L. Fiocchi, DavenportKansasDon D. Gribble II, WichitaKentuckySara Collins Glogower,LouisvilleNoelle Haegele, LouisvilleLouisianaJacob E. Favaron, LafayetteJedd Malish, New OrleansMarylandJason E. Fetterman, BaltimoreThomasina Poirot, BaltimoreMassachusettsBradley L. Croft, BostonMeghan J. Donegan, BostonJonathan Levin, BostonMichiganMatthew Ryan Rechtien,DetroitMinnesotaCindy L. Butler, MinneapolisVeena Iyer, MinneapolisMark Lorentzen, MinneapolisJames A. Schaps, Saint PaulMississippiKathryn Breard Platt, GulfportNicholas C. Giallourakis,JacksonJames Seth McCoy, JacksonVernon M. McFarland, JacksonSusan L. Steffey, JacksonDavid B. Strickland III,JacksonPeeler Grayson Lacey, Jr.,LaurelPatrick Marvin Tatum,RidgelandMissouriStephen Buckley, Saint LouisNew JerseyJohn H. Maucher, Cherry HillJohn Raymond Gonzo,HackensackHarry D. Norton, Little FallsNew YorkKathleen Feroleto, BuffaloMichael E. Maxwell, BuffaloLouis C. Mussari, BuffaloMaureen N. Polen, BuffaloBrian Margolies, HawthorneAlba Alessandro, New YorkWilliam J. Beausoleil, New YorkKari Merolesi, New YorkAnna Schwartz, New YorkNicolette Renee Ward, NewYorkLori Rosen Semlies, WhitePlainsNorth CarolinaNora F. Warren, CaryL. Lamar Armstrong,GreensboroPamela A. Robertson,GreensboroNorth DakotaChristina A. Sambor, BismarckOhioBrodie M. Butland, ClevelandOklahomaEmily N. Kitch, Oklahoma CityJ.T. Sherman, Oklahoma CityDan W. Ernst, TulsaKenneth Thomas Short, TulsaOregonDan R. Schanz, SalemPennsylvaniaJohn A. Roda, LancasterSouth CarolinaJ. Benjamin Connell, CharlestonAshley Sumner Heslop,CharlestonR. Hawthorne Barrett,ColumbiaChristopher C. Genovese,ColumbiaAndrew W. Kunz, ColumbiaDavid R. Sligh, Myrtle BeachSouth DakotaMary R. Ash, Sioux FallsTennesseeClaire V. Thomas, NashvilleTexasJames Erdle, DallasMicah R. Prude, DallasLauren E. Wood, DallasBlair L. Fassburg, El PasoJulie Moeller Albright, HoustonNicole G. Andrews, HoustonDemetrius Kelvin Bivins,HoustonMini Kapoor, HoustonGraham Baker, San AntonioVirginiaJames Frederick Watson,LynchburgWilliam W. Sleeth III,WilliamsburgWest VirginiaGene W. Bailey II, CharlestonKrista D. Black, CharlestonBradford P. Bury, CharlestonRobert A. Lockhart,CharlestonJoseph Kendall Merical,CharlestonJonathan T. Osborne,CharlestonJenna E. Hess, HuntingtonJeffrey N. Poulin, MartinsburgJulie R. Shank, MartinsburgWhitney G. Clegg, WheelingDiane G. Senakievich,WheelingBreiAnne R. Varner, WheelingWisconsinMark E. Schmidt, Milwaukee

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